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12: Clause 3, page 3, line 16, at end insert—

“( ) carers,

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( ) local authorities,”

13: Clause 3, page 3, line 22, at end insert—

““carers” means persons who, as relatives or friends, care for other persons to whom NHS services are being provided;”

14: Clause 3, page 3, line 35, at end insert—

“(9) For the purposes of subsection (5), each of the following is a local authority—

(a) a county council in England;

(b) a district council in England, other than a council for a district in a county for which there is a county council;

(c) a London borough council;

(d) the Common Council of the City of London;

(e) the Council of the Isles of Scilly.”

Amendments 11 to 14 agreed.

Clause 4 : Availability, review and revision of Handbook

Amendment 15

Moved by Earl Howe

15: Clause 4, page 3, line 41, at end insert—

“( ) Before any revision of the Handbook, the Secretary of State shall consult such persons (if any) as in all circumstances he may consider appropriate.”

Earl Howe: My Lords, I want to point out a small error in the printing. The amendment should read:

“Before any revision of the Handbook, the Secretary of State shall consult such persons (if any) as in all the circumstances he may consider appropriate”.

With this amendment I bring us back to the issue of who, if anyone, should be consulted when the handbook is revised. As the Bill stands, the Secretary of State may go ahead and revise the handbook without being under a duty to consult anyone at all. In Grand Committee a number of us questioned that. What it means, effectively, is that the Secretary of State has sole power to interpret the constitution as he sees fit. I realise that he would not do that in any way irresponsibly, but it was something that left some of us uncomfortable in the sense that it should be a collaborative process. It also means that those with the closest knowledge of how the constitution works, or should work, in practice have no say at all in the way that the manual to the constitution is drafted. They have no right to make a contribution to that process.

That seems, at the very least, short-sighted, but it is also wrong in principle. In reply in Grand Committee, the Minister made two associated points. The first one was that it would not be proportionate for the Secretary of State to have to consult on every minor change which might only be technical. The second one was that if the change was a more significant one relating to a policy issue, the Government would already have consulted on it, so there would be a lot of unnecessary extra bureaucracy if the Secretary of State also had to consult on the change to the handbook which brought the change of policy into play.

I understand both those arguments, but I accept the second one only up to a certain point. The purpose of consulting on changes to the handbook is not just to

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obtain people’s views on changes in government policy. It is just as much to ensure that the information in the handbook is accessible, intelligible and workable. The Minister said in our earlier debate:

“The intention behind the regular reviews of the handbook is to assess whether the handbook continues to be fit for purpose for patients, public and staff”.—[Official Report, 26/2/09; col. GC 155.]

If that is so, there is, at the very least, a prima facie case for involving staff, as well as patients and the public, in the review process. After all, there was consultation when the handbook was initially drawn up.

7 pm

I am the first to want to avoid burdening everybody with unnecessary and pointless consultation. No one wants that. But I do suggest to the Minister that, from time to time, there could be a good case for consulting key stakeholders about changes being made to the wording of the handbook. This would not necessarily be when major changes of policy were in prospect, but rather when the practical implications of new or existing policy required explaining in clear and appropriate terms. This is one area of life where I do not believe that the Secretary of State or the Department of Health has a monopoly of wisdom. As it stands, the Bill gives the Secretary of State that monopoly. I, for one, am not comfortable about that, which is why I beg to move.

Lord Darzi of Denham: My Lords, Amendment 15 proposes that,

on any revisions of the handbook. In our previous debate on Amendments 3, 7 and 8, which proposed that bodies be under a duty to have regard to the handbook as well as the constitution, I clarified our intentions behind the purpose and status of the handbook, although I promised that I would look at it again. Just as it would be incongruous to impose a duty on bodies that must have regard to the constitution also to have regard to the handbook, it would be disproportionate to impose a formal duty to consult on any revisions to the handbook. I agree with the noble Earl that any significant changes to policy or law that affect the handbook are likely to trigger consultation requirements in themselves, either by virtue of statute or because there will be an expectation that we should consult or comply with the Government’s code of practice on consultation.

For this reason, we have chosen not to oblige the Secretary of State to consult again before amending the handbook, even for significant changes. The Secretary of State may need to make minor technical or legal changes to the handbook at any time to reflect current departmental policy or changes in the law. It certainly would not be proportionate to have to consult on a change of this kind. For the handbook to be useful as an explanatory guide for patients, public and staff, it is important that it should remain a live document that is constantly kept up to date. We want it to be as helpful as possible. A duty to consult on all changes, however minor, would impede this.

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The intention behind the three-yearly reviews of the handbook is to assess whether it continues to be fit for purpose for patients, public and staff, as we debated in Grand Committee. For these reviews we will, of course, continue to involve on an informal basis those patients, public, staff and other stakeholders—as the noble Earl suggested—who were involved during the development of the handbook. We will do this to ensure that the handbook continues to be a relevant and useful document. This approach has been supported by stakeholders; one example is UNISON.

Again, I reassure noble Lords that the constitution cannot be amended via revisions to the handbook. Noble Lords will be aware of our previous debates. We have to ensure that the process for consulting on the constitution is robust. I hope I have reassured noble Lords that while we fully intend to involve patients, public and staff as necessary in each review of the handbook, we do not feel that it is necessary to impose a formal duty on the Secretary of State to do so. Once again, I hope I have reassured the noble Earl and that he will withdraw his amendment.

Earl Howe: My Lords, I am grateful to the Minister for his reply and I respect his position. I reworded the amendment that I tabled in Grand Committee to allow discretion for the Secretary of State not to consult on a particular change to the handbook if, in the circumstances, he felt that it was appropriate. This is not as sweeping an amendment as the one that we debated previously. I come back to the point that we need to bear in mind that the drawing up of the handbook that we have now was the subject of extensive consultation, so it is not altogether anomalous to suggest that revisions should be similarly consulted upon. Nevertheless, this is not a matter that it would be appropriate for me to press. I take note of what the Minister said and beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendment 16 not moved.

Clause 5: Report on effect of NHS Constitution

Amendment 17

Moved by Lord Darzi of Denham

17: Clause 5, page 4, line 3, after “staff” insert “, carers”

Amendment 17 agreed.

Clause 7: Supplementary provision about the duty

Amendment 18

Moved by Lord Darzi of Denham

18: Clause 7, page 5, line 33, at end insert—

“(7A) Subsection (7) does not apply if—

(a) the provider does not have control of the premises, or

(b) the services are provided by means such that the persons receiving them do not do so at the premises.”

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Lord Darzi of Denham: My Lords, the noble Earl, Lord Howe, tabled an amendment which we discussed in Grand Committee that sought to exempt two classes of premises from the requirement to display a notice about quality accounts. They were private dwellings and premises to which the public do not normally have access. I undertook to think further about this issue and come back on Report. Following further legal advice I agreed that we need to make the clause more explicit. The new provision would exclude certain premises from the requirement to display a notice. They are premises that the provider does not own or run, such as the patient’s own home; or premises that the provider owns or runs but that patients do not directly access, such as a pathology lab. Our guidance will encourage providers to think about how they will publicise their quality accounts with patients whom they see off-site. I am very grateful to the noble Earl for his scrutiny, and for that of the Committee, in bringing about improvements in the drafting. I beg to move.

Earl Howe: My Lords, I thank the Minister again for his consideration of the points that I made in Grand Committee and for moving this excellent amendment. I really am very grateful to him.

Amendment 18 agreed.

Amendment 19

Moved by Earl Howe

19: After Clause 7, insert the following new Clause—

“Quality of data

(1) The Health and Social Care 2008 (c. 14) is amended as follows.

(2) In section 20 (regulations of regulated activities), after subsection (3)(j) insert—

“(ja) make provision as to the collection and analysis of data used in the preparation of quality accounts;”.”

Earl Howe: My Lords, we had a useful and wide-ranging debate in Grand Committee about possible ways in which quality accounts might be quality assured, in the sense of their being subject to external audit or being otherwise validated for accuracy and reliability. The Minister, if I do not misrepresent him, expressed a good deal of sympathy with the concept of validation, but saw no need to insist on a formal audit as such.

I respect the Minister’s point of view, and I do not propose that NHS bodies should be burdened with any additional regulatory requirements. However, I still see accuracy as one of the cornerstones for the success and credibility of quality accounts. My concern has been brought into sharp focus by the recent publication of the Audit Commission’s report on data quality in the NHS, Figures You Can Trust. If noble Lords have not read this report, I respectfully recommend that they do. The Audit Commission’s research—which was partly desk-based and partly involved inspections of several trusts—found that there is, to put it mildly, a great deal of room for improvement in the reliability of NHS data.

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The error rate in clinical coding, for example, ranged from 0.3 per cent to 52 per cent, a range described by the commission as varying from excellent to wholly unacceptable. The average error rate was 9.4 per cent. The commission identified four main factors that it believes lie behind this. One is the training of staff; another is lack of involvement by clinicians; another is a lack of clarity in specific areas of the coding system; and the fourth is the quality of the source documentation and records. The reviews found that although trust boards devoted a significant amount of scrutiny to financial information, there was little evidence that they discussed or challenged the quality of other data. Indeed, the responsibility for quality assurance of data is typically delegated to information managers. The result of that is that many trusts do not have the knowledge or expertise at senior level to challenge the reliability of the data that are submitted to them. Not enough importance is attached to data quality at board level and there are no systematic programmes to enable trust boards to review the accuracy of such data. In general, the need to make sure that information is accurate is not seen as being an organisational responsibility of which everyone in the trust has a duty to take ownership.

Against that backdrop, it is not surprising that the commission sounded a warning about quality accounts. It said:

“If quality accounts are to have the same status as financial accounts and if patients and the public are to have confidence in the data that they contain, the quality of the data should be subject to internal and external review”.

That is paragraph 56. It goes on to say that it does not think that this needs to be on the same scale as for financial accounts, which are subject to detailed internal and external audit,

““But we do consider that boards should put in place the kind of assurance programme outlined above and declare in their quality accounts that they have done so”.

The assurance programme it refers to is the one currently being piloted in NHS North West for payment by results. There is an obvious read-across here to quality accounts because quality accounts, as the commission points out, will rely on accurate clinical coding and secondary-uses service data.

The report usefully suggests that commissioners of NHS care could play a much stronger role in scrutinising information provided to them by trusts, which is surely right. The same applies to strategic health authorities. We need think only of Mid-Staffordshire in that context. It also suggests that regulators have an important part to play in improving data quality in the NHS. The noble Baroness, Lady Young, was very quick to dismiss this idea when we debated it in Grand Committee. I was suggesting then, if noble Lords remember, that the Care Quality Commission should be given the task of auditing the accuracy of a trust’s quality accounts. The noble Baroness did not like that idea at all—and I guess if she does not want to do it, it will not be done—but the suggestion that I made could be finessed if, instead of an audit role, we were to give the CQC the responsibility of assessing at the pre-registration stage how accurate and reliable an NHS body was in collating and analysing the data that it produced for its quality accounts. Competence in that area could be

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one of the standards that a trust had to meet before being allowed to operate. The amendment I have tabled makes this proposal, and I make it in all seriousness.

The importance of data quality in the NHS has never been higher. Leaving aside quality accounts, we have to think only of payment by results and the tariff system. But, at the same time, the problems identified by the Audit Commission could be considerably ameliorated simply by involving and engaging clinicians in the whole process. Generally speaking, that does not happen at the moment because much of the data that are currently collected relate to targets and processes rather than to clinical practice or the quality of care. I am sure the Minister will agree that the closer involvement of clinicians is inherently more likely when quality accounts come on stream because clinicians have a direct interest in making sure that the facts are not misrepresented. At the same time, the commission’s report suggests that if a trust submits poor quality data, there need to be punitive consequences built in to the performance management process. So the answer lies in a top-down as well as a bottom-up series of initiatives.

I hope that the Minister will think carefully about these suggestions. I put them forward in a genuinely constructive spirit, although I realise that I may be at risk of being shot down again by the noble Baroness, Lady Young, when she reads Hansard. I hope not. For now, I beg to move.

7.15 pm

Baroness Tonge: My Lords, the amendment highlights the reservations that I have had all along about quality accounts. Of course we want quality in the health service, and there should be some way of measuring the quality of its work, but unless these data are collected properly, unless they are the right data and unless they are properly audited by an independent person or persons, they are not really going to be worth while.

Of course, if we are talking about quality, we will have to involve the clinical staff. I am concerned that the clinical staff will be burdened with more bureaucracy and more forms to fill in. Instead of getting together and having proper clinical discussions about how their teams could improve their performances, which is how the noble Lord, Lord Darzi, referred to it when he introduced the subject, forms will be prepared by the department of quality and they will have boxes to tick. It will all descend to that rather banal level. I am very concerned about this. The principle is excellent and it goes without saying that we want quality in the NHS, but I am still totally unconvinced that this will have the right outcome.

Lord Darzi of Denham: My Lords, Amendment 19, tabled by the noble Earl, Lord Howe, seeks to give the CQC a role in the data collection and analysis that go into preparing quality accounts. As I said in Grand Committee, I share the noble Earl’s view that data used in the preparation of quality accounts should be of the highest standards. The question is how to reach that stage of the highest quality of data. That is where we differ. I believe that the only way in which we will improve the quality of our data is to have clinicians

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taking ownership of the data that they provide and a clear framework of safety, effectiveness and patient experience.

I assure noble Lords that one of the most gratifying things about High Quality Care for All is that it captures what drives clinicians. Quality is the organising principle of the NHS. We are introducing the process of clinicians taking ownership of the data and publicly reporting them following engagement with the clinical community across the country. The pride of any clinician is to publicly report the data on the care that they provide. I sympathise with the noble Baroness in relation to some of the challenges that measuring and collecting these data may bring. We are strongly encouraging the NHS to appoint further staff to help in the collection of these data and to improve the coding of many procedures and episodes of care that are provided through the NHS.

I also believe that we need analytical power, epidemiological support and statistical competencies in the NHS. That is why we will be announcing the creation of 10 quality observatories in the 10 strategic health authorities. The function of these quality observatories will be to collect and analyse these data and, more importantly, to give them weighting against age, social deprivation and the disease entity. The data in themselves need to be refined and analysed before they become useful. The purpose of collecting these data is to empower clinicians to use the measures against the standards in constantly engaging in quality improvement. That is what drives clinicians; that is the movement that we are trying to create on the back of that.

The noble Earl mentioned the north-west. He is right that the north-west has started a process of improving the quality of its data by working with external stakeholders. I believe that it has the best data collection system in the country. However, it did that by engaging its clinicians, who took ownership of the data. I suggest to the noble Earl that the NHS collects more data than any other healthcare system, but it does not have ownership of it. That is what will improve the quality. The regulator is not the person to do that, but the clinicians—those who are involved in care.

That comes back to the second point raised by the noble Earl in his amendment, on the quality assurance of the data. As I have suggested previously, I strongly believe that commissioners, patient representatives and local communities could and should challenge organisations on the quality of data. The noble Earl also referred to the Audit Commission, which said that commissioners have a strong role in ensuring quality assurance. I will also support that way of ensuring that those who commission the services will, based on the information from the providers, constantly appraise and encourage them to seek that external validation; that is their job, rather than the job of the regulator in the form of the CQC. When the noble Baroness, Lady Young, was concerned about this in Grand Committee, I sympathised with her because the regulator, who is independent, is there to ensure that core standards of care are maintained rather than to assure the data quality. I believe that the commissioners should probably be playing a greater role in that.

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