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I very much look forward to what my noble friend is going to tell us as to how he sees this issue. But I must say to the most right reverend Primate-I think I have got that right-that if he can manage the Anglican Church he really could manage the National Health Service.
Baroness Finlay of Llandaff: I wonder whether this is one of the occasions where the organigram that we were discussing previously in Committee might be helpful. I would be grateful if the Minister could tell us in his summing up when we might expect to see that diagram.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, we heartily endorse the important role that clinical advice will play in supporting the NHS Commissioning Board in fulfilling its duties and carrying out its functions effectively. We fully expect clinical networks and the new clinical senates to make a vital contribution to this.
The Government intend that doctors, nurses and other experts from across health and social care will form clinical senates to give expert advice to commissioners. They will do this principally, although not exclusively, in two situations: senates will have a role in the authorisation of clinical commissioning groups, as well as having a role in advising on significant service change on a large geographical scale. Existing clinical networks will also be taken forward and developed and will advise on how specific services can be better designed to provide integrated and effective care. The Government are committed both to retaining and strengthening clinical networks and to using them to help ensure that a range of professionals play an integral part in the clinical commissioning of patient care. The networks will include patient and carer representatives that exist in areas such as cancer care, so that they cover many more areas of specialist care. Networks will have a stronger role in commissioning, in support of the board and local clinical commissioning groups.
Although we fully agree with the noble Lord, Lord Patel, in highlighting the important role that both clinical networks and senates will play in the new system, I cannot support his Amendment 51, nor can I support Amendment 224A, tabled by the noble Lord, Lord Hunt. The reason why I cannot accept them is the same in each case: both of them would specify the roles of networks and senates in legislation. That would restrict the range of ways in which they can operate, which in turn would limit the value that is delivered for patients.
Clinical senates and networks will not be statutory organisations, and that is why they are not referred to in the Bill. That, surely, is a positive thing. It gives them much needed flexibility in how they operate, maximising benefits for patients while minimising bureaucracy. This flexibility will allow both senates and networks to act as enablers of the commissioning system, supporting commissioners by providing them with expert advice. They will not act as another layer of management or administration which hinders progress; instead, the board will host both clinical senates and networks, allowing any supporting functions which can appropriately be shared to be organised with the least administrative bureaucracy. The review of the current system of clinical networks is identifying the features that deliver the greatest benefits, allowing the new system to build on these in a streamlined way that effectively drives improved quality and outcomes.
The board will be subject to a duty, in the proposed new Section 13J within Clause 20, to obtain appropriate advice to enable it to discharge its functions effectively. We believe that this general duty is sufficient to ensure that it seeks appropriate advice, including, of course, clinical advice. In practice, clinical networks and clinical senates will form one way in which the board fulfils this duty.
Clinical commissioning groups are also under a similar duty to seek appropriate advice. Although the board will host senates and networks, clinical commissioning groups will be closely involved in their design and functioning, as well as benefiting from their advice. It is expected that the board will issue guidance about avoiding conflict of interest where this might arise. The exact number of clinical senates is yet to be determined but they are expected to be able to offer informed, strategic advice across a health economy, which might suggest having around 15 across the country. Clinical networks will be based on patient flows rather than NHS boundaries, so variations in size will continue, but representation will always be appropriate to the remit of each network.
Clinical senates will bring together a wide range of experts from across different areas of health and social care to provide cross-cutting advice on strategic commissioning decisions for broad geographical areas. The detail of the functions that clinical senates will carry out in support of commissioners is still being developed, but I think that they will come into their own particularly for strategic issues arising across a broader area than just at clinical commissioning group level. They could provide advice on the clinical aspects of commissioners' proposals for large-scale service change or reconfiguration-exactly as the noble Lord, Lord Hunt, indicated-where commissioners feel that a broader strategic view would be useful. We think that they will also have a role in the quality aspects of authorisation or annual assessment of clinical commissioning groups. As a result, although analysis is being carried out to determine the most appropriate number of senates, it is intended that they will operate across a wide strategic area.
Baroness Williams of Crosby: I have a quick initial question. If a CCG happens to be in the area of, say, a university medical school or medical hospital, how would the process of picking who would be on the clinical senate be handled?
Earl Howe:As I have mentioned, the senates will come under the wing, so to speak, of the NHS Commissioning Board. They will effectively be part of the board. While we have yet to receive details of how the board will configure itself sub-nationally, it will clearly have to do so in ways that make sense of the local commissioning and provider architecture in an area so, where you have a university, it might well be that medical experts from that university will be part of the senate. It is too early to say, but I look forward to updating my noble friend as and when I have further particulars.
Lord Hunt of Kings Heath: I stand as a supporter of the noble Earl on the concept of senates. He is not getting much support but I agree with the point that he made that if clinical commissioning groups feel that there needs to be a wider strategic view, say on reconfiguration, the clinical senate could provide useful support. The problem is that some clinical commissioning groups may not think that there is a need for a wider strategic view because they will simply seek to defend existing provision. My argument is that you may need a mechanism which is somewhat more proactive, and which can intervene in the way that the noble Baroness's wonderful South West Thames Regional Health Authority used to do.
Earl Howe: The noble Lord could be proved right. As I have said, we will see how the functions of senates are defined. That work is ongoing. The initial proposals for the design and implementation of senates are currently being developed and initial straw-man proposals are being tested with the intention of presenting a clear set of recommendations to the top team of the special health authority later this year, so-
Lord Warner: I am sorry to interrupt the noble Earl but I am still puzzled about where he and the department are taking this concept of the senate and how it fits in with the regional specialist commissioning set-up, which already exists and which has 10 regional commissioning capabilities aligned with the SHA areas. I am not clear about whether that work is to be folded into the senates. Is it free-standing? Are the lessons all to be lost, and what are the costs of this? What does hosting the senate mean in terms of costs, because there are costs to these regional bodies that are undertaking the work on specialist commissioning? I am at a loss to understand how these two elements-the senates and the regional commissioning capability that is there now-coexist and what the cost implication is of hosting senates alongside those.
Earl Howe: I will talk in a moment about specialised commissioning and I hope the answer to the noble Lord's question will emerge. Amendment 84, tabled by the noble Lord, Lord Patel, would require the board to commission highly specialised services, in collaboration with the sub-national clinical senates that are accountable to it.
I will not rehash my arguments around Amendments 51 and 224A, but many of the same points will apply to this amendment. Specialised services are challenging to commission; they involve complex care pathways, small numbers of providers and very small numbers of patients with rare conditions. The new NHS Commissioning Board authority will be considering options as to how it does this, including the best form for its substructures. There will be the freedom to adapt these over time and, to ensure that progress is not lost, the board will be required under existing provisions to maintain the necessary focus of clinical expertise in these highly specialised areas.
The noble Lord, Lord Hunt, asked how we ensure that clinical senates are not ignored; this is precisely why we do not want to prescribe their role in the Bill. We want senates to be enabling bodies, which is why we are inviting views on the type of advice they could provide to identify the functions of the board and CCGs where they would add value.
The noble Lord, Lord Patel, indicated that he thought the clinicians on the senate would have to come from outside the clinical commissioning group area. That is not the case; he is not correct in that assumption. There may be slight confusion with the rules we set for secondary care doctors on CCG governing bodies, who must avoid conflicts of interest, hence the need for area restrictions in that context. Experts on clinical senates can come from, in theory, all or any areas of the country. The difference between the senates and regional specialist commissioning is that the latter focuses on specialised services and nothing else. The senates could, in theory, work across all services; the two are not designed to do the same thing. The senates will be quite high level. It is expected they will be about only 15 in number, and while they may be established in a certain form they can evolve over the years to conform to the requirements that are placed upon them.
My noble friend Lady Jolly pressed me on the role of the board with regard to specialised commissioning, and I have already indicated in outline part of that role. The key point is that the board will maintain the necessary focus of clinical expertise and it will be under specific duties to obtain professional advice in the exercise of its functions. Under the regulations, the types of service the board will be required to commission will be kept under regular review. Work is going on at the moment to define what those services should be in the first instance, and I fully expect them to conform broadly to the specialised services national definition set. As my noble friend knows, the list of those services has historically changed over time and I expect the same will apply in the future.
The noble Baroness, Lady Finlay, asked about the long promised organigram. In fact, our fact sheet on the overall health and care system does have an organigram in it. It includes the NHS Commissioning Board and describes how senates and networks will be hosted by the board. I refer the noble Baroness to that sheet. The noble Lord, Lord Kakkar, asked how senates will be different to academic health science centres in their focus. In short, AHSCs are partnerships of local academic and health bodies to support innovation
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I hope that noble Lords will be at least somewhat enlightened by the details I have been able to give about clinical networks and senates. As I say, this is work in progress. I make no apology for that. This was very much a recommendation that emerged from the Future Forum report. We have got on with the work needed to flesh out what these bodies should be, but we have a broad and, I hope, helpful idea of their role across the wider NHS system. I hope the noble Lord will feel able to withdraw his amendment.
Lord Patel: My Lords, I thank the Minister for his extensive reply. When I moved this amendment in the name of the noble Lord, Lord Walton of Detchant, I did not think there would be such enthusiasm to join in. I was surprised by the enthusiasm generated by his amendment, and I thank noble Lords who joined in. The most reverend Primate said this amendment was not necessary. I hope that he was not referring to the amendments that I had tabled, or I would say to him that my amendments were "zuri sana"-for those of you who do not understand, that means they were very good. He understands that.
The noble Earl has, to a degree, clarified the Government's thinking on what the role of these senates will be. As he said, it is work in progress. Of course, we will need to wait and see what the details are. In the mean time, I beg leave to withdraw the amendment.
Baroness Jolly: My Lords, Amendment 57A is to do with reporting complaints to the NHS Commissioning Board. There are two distinct areas for complaints: complaints related to commissioning and those related to care or service delivery. In fact, they would filter through the board, clinical commissioning groups and local authorities. I include local authorities because, if we are talking about complaints about possible integrated services, we cannot decouple clinical commissioning groups from local authorities.
In the far-off days that have been mentioned earlier in this Committee, before PCTs and foundation trusts were even thought of, most NHS boards had a complaints convener. I was one such person. We had a quarterly report back to the board. We reported back on complaints, but it is also worth putting on record and remembering that not only did trusts receive complaints but they received a lot of plaudits as well. You only have to wander around a hospital-I spent six months in my DGH as a visitor at the tail-end of last year-to see the number of cards of thanks sent in by relatives or by patients. Plaudits should get a mention, and we have far more plaudits than complaints in the NHS. Complaints, however, are important and should be reported back. In those days, they were reported back quarterly to the board, as they perform a useful function: they are a barometer of the institution. You can see what is working and what is not and where there are issues. They go up and down. They can form part of the performance dashboard and they are also critical for learning. An institution or trust can learn from complaints.
Handling complaints is a delicate-and should also be a transparent-process. The NHS Commissioning Board is committed to transparency. Its role is overseeing service provision and so it should see a breakdown of the complaints that are arising within the service it oversees-not personal details of Mrs Gidden's hip replacement or Mr Patel's hernia, but an appropriate format that will reflect the health of the NHS. As the board also oversees commissioning, it should also see complaints that relate to an organisation's competence in commissioning. So, with that as the framework of my complaint, I wonder whether the Minister could clarify the nature of reporting such information to the NHS Commissioning Board. I am sure he will be happy to agree to its importance. I beg to move.
Baroness Wheeler: My Lords, I am pleased to speak on this group of amendments, in particular on Amendments 143A and 143B, on behalf of my noble friends Lady Thornton and Lord Hunt. I am also speaking to the clause stand part debate on Clause 275, which relates to the abolition of the National Patient Safety Agency.
A critical function of the NHS Commissioning Board is to improve the quality of services and drive improvements in health and social care. A key way of achieving these objectives is learning from complaints information. There is a clear need for the NHS Commissioning Board to have meaningful comparable complaints data from service providers which can be used to help drive improvements in healthcare and strengthen the quality of services for patients and the public. This information can contribute significantly to an enhanced patient experience and enduring service improvement. It can enable the board to identify possible trends and patterns of risk and to take appropriate action through putting pressure on healthcare providers to raise standards and demonstrate how they have learnt from patients' complaints.
Through this means, the board can hold providers to account for the safety and effectiveness of healthcare. Having this information is important because it identifies
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While NHS complaints systems have been much improved and enhanced in recent years-my own Government introduced the current system in 2009-we recognise that the current systems for capturing complaints information require significant improvement. We know that a sadly recurrent theme at the Mid Staffs public inquiry has been that the complaints of patients and families were not heard. A system which ensures that complaints information gets transmitted to the people running the NHS would help to remedy this.
Another crucial point is that, with the loss of primary care trusts, there is nowhere independent where complaints about GPs who are members of the local CCG can be investigated. It is clearly not appropriate for the CCG to investigate a complaint about a GP who is a member of the group.
The Health Select Committee has supported the view that commissioning bodies should be the engines that drive improvement in complaints handling, in the analysis of data and leading change within the NHS. Amendment 143A, in particular, would enable the NHS Commissioning Board to play its part as a major service commissioner in developing more meaningful NHS complaints procedures and information, establishing a duty on Monitor to publish information.
Amendment 143B is a probing amendment, which would delete the board's proposed functions in relation to information. This is in the context of our support for the continuation of the National Patient Safety Agency's much valued independent role. The National Patient Safety Agency provides a vital function under its current remit, managing the National Reporting and Learning Service, the National Clinical Assessment Service and the National Research Ethics Service. The NPSA acts as an umbrella organisation, providing a valuable overview of patient safety incidents by collection and analysis of data, and monitoring to ensure that lessons are learnt that can be fed back and used to improve patient safety.
Under the National Reporting and Learning Service, the NPSA receives confidential reports on patient safety from incidents from healthcare staff across England and Wales, and oversees the independent processes of clinicians and safety experts who analyse these reports to identify common risks to patients and opportunities to develop improvements in care and practice. However, under the proposed new arrangements, the NPSA is to be dismantled and split up. On these Benches we are totally opposed to this. I ask the Minister how the information monitoring and service that it provides can be provided by the separate bodies that will now span across these issues. The NPSA's value is as an arm's-length body that is respected and valued by the NHS for its independence, expertise and the service it provides. Therefore, I also ask the Minister how he will ensure that there continues to be an overview, information and reporting system for the important functions currently undertaken by the NPSA.
Lord Whitty: My Lords, I intervene briefly in this debate to ask the noble Earl whether, in his reply, he could perhaps cross-refer to a later section in the Bill, which deals with the role of one of the entities to which my noble friend Lady Wheeler has just referred, namely HealthWatch England. In any procedure for complaints, whether about treatment or the ultimate effects of commissioning on patients and the quality of service, an independent body that represents the views of the users of the health and social care system is required. There is a whole group of relevant amendments, but it is the last group printed on this list so we will probably not reach it much before Christmas. Nevertheless, within that group is a strong line that HealthWatch England should be an independent body, which means independent not only of the providers but of the regulators. In any proper complaints system-although I do not suggest that this is the only channel for complaints-you need an independent consumer view. This has stood the test of time in several other sectors. It would be a major role for HealthWatch England if it could be built into the kind of clear procedure to which the noble Baroness, Lady Jolly, referred.
Earl Howe: My Lords, this has been a valuable debate on what is an important topic by any standards. It is vital that patients feel able to raise complaints where services are not good enough. It is equally important that there are appropriate systems for ensuring that complaints and safety incidents are effectively monitored and addressed, and that wider lessons are learnt.
Amendment 57A would require the Secretary of State to create a new procedure, whereby complaints about both health and social care providers could be brought before the board. Amendment 143A would go further by giving the board a more specific role in collecting and analysing information relating to complaints about both the provision of health services and commissioning decisions by the board or clinical commissioning groups, and making this information available to the public. The current NHS and adult social care arrangements for handling individual complaints were developed to make the process of complaining quicker and simpler, and to put the focus on meeting the needs of the complainant. It is important that all NHS organisations view and manage complaints in a positive manner and use the information obtained to improve service delivery.
Under the current regulations, a complaint about poor service provision may be made either to the service provider or to the commissioner of that service. It is important that people have that choice. Someone may be deterred from making a complaint to the service provider if they consider that it may impact on their future healthcare provision. We consider it right for these general principles on complaints handling to be carried forward into the new system architecture. In future, we envisage that complaints about service provision would be made to the service provider, or to either the local clinical commissioning group or the NHS Commissioning Board, depending on which had commissioned that service. They would also deal with complaints about how they have performed their own functions.
Of course, where it proves not possible to resolve a complaint locally, the complainant has the right to refer the case to an independent arbiter. In the case of an NHS complaint, this referral is to the Health Service Ombudsman. The system of handling complaints will therefore continue to operate largely as it does now. The arrangements for monitoring complaints will also be similar. The NHS standard contract already requires all providers to report complaints information to commissioners. This information is collected by the NHS Information Centre and would be available to the NHS Commissioning Board. This is then discussed as part of the clinical review meetings between commissioners and providers, who are required by regulations to implement learning from complaints and other incidents. It will be vital that the NHS Commissioning Board is able to identify any emerging trends from this information.
In reply to the noble Lord, Lord Whitty, the board will be assisted by both the local healthwatch and HealthWatch England, which will act as a conduit for the views of service users about their experiences of complaints handling. It will also be able to make recommendations to providers and commissioners about how services and procedures could be improved. There will be a duty on NHS organisations to have regard to the recommendations of the local healthwatch, which will also put pressure on providers and commissioners to improve.
Finally regarding these amendments, the noble Baroness, Lady Wheeler, makes the valid point that it is important that information about complaints is made available to the public. Patient and service-user generated information, which includes complaints as well as information collected from patients and staff through surveys, real-time feedback, ratings of services and patient reported outcome measures, are all vital in helping patients to make informed choices about their care.
Separate arrangements currently apply in reporting patient safety incidents that have or could have resulted in harm to a patient. These are reported in anonymous form through the National Reporting and Learning Service, operated by the National Patient Safety Agency. Safety has to be the key priority of all those working in the health service. We cannot allow it to be an add-on or an afterthought. Patients rightly expect that any service provided with NHS funding will be safe.
For this reason, we want to put safety at the heart of the NHS by transferring these functions from the NPSA to the NHS Commissioning Board. Clause 275 therefore makes provision to abolish the NPSA as part of our plans to reduce the number of arm's-length bodies. Instead, new Section 13Q, which Amendment 143B seeks to remove, gives the NHS Commissioning Board responsibility for those functions currently carried out by the National Patient Safety Agency. This is in relation to collecting information about patient safety incidents, analysis of that information and sharing the resulting learning within the NHS and more widely.
Safety is, of course, another of the core domains of quality. We believe that the NHS Commissioning Board, as the body that will be legally responsible for ensuring
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While I have sympathy with the intention behind these amendments, I hope I have reassured noble Lords that our reforms will ensure effective systems for reporting complaints and safety incidents which will enable this information to be shared more widely and will maximise the chance of it translating into improved practice in future.
The noble Baroness, Lady Wheeler, asked me whether I thought that clinical commissioning groups should handle complaints about their member GP practices. As the NHS Commissioning Board will commission primary care services, complaints about a primary medical provider would be addressed either to the provider itself or to the board, not to the clinical commissioning group. Of course, anyone can raise a complaint with the regulatory bodies if they choose to do so.
Earl Howe: My understanding is that that is the intention. The clinical commissioning group will wish to monitor the quality of service provided by its member practices and the outcomes that those practices achieve. As part of that monitoring we fully expect that safety will be a core component.
Lord Greaves: Before my noble friend replies to this group of amendments, I hope that I may ask the Minister a question on something on which I confess total ignorance. The Minister said that many of the functions of the National Patient Safety Agency in collecting statistical information would be transferred to the national Commissioning Board. What other functions does it have and what will happen to them?
Baroness Jolly: I thank the noble Earl for his reply, the noble Baroness, Lady Wheeler, for her commitment to quality and the noble Lord, Lord Whitty, for the patient voice input. I beg leave to withdraw the amendment.
Noble Lords will probably appreciate that I have severe misgivings about aspects of the Bill but the amendment attempts to build on parts of the Bill of which I largely approve. The devolution of commissioning is important, but the later provisions in the Bill which associate issues of public health and well-being more clearly with the role of the health and social care system are also important.
When we are talking about configuration in the sense of bureaucratic bodies, it is important to try to build into this a relationship between what are mainly local authority services and those services which will be commissioned by the new commissioning groups. The original form of the commissioning groups in terms of GP commissions has been altered somewhat but there will obviously be quite a number of them. We do not know how many of these commissioning groups are envisaged by the Government. This amendment attempts to say that there ought to be a relationship between commissioning groups and the local authority boundaries within which they operate. It is intended to be a relatively flexible operation, although it would be very sensible in many areas for there to be a total coincidence in coterminous boundaries between commissioning groups and local authorities. In others, there may well be more than one, but I still think some recognition of a relationship with the local authority services is important. It is important not only in the provision of social care and dealing with the developing conditions of individual patients and users, but for environmental health issues, on which I have later amendments. The public health service should ensure that the commissioning authorities recognise the importance of work in the public health area and the need to co-operate with the public health authorities.
It is actually quite difficult to get the National Health Service, at both local and policy level, to take into account in its operational work the need for a public health dimension. There have been some significant improvements in this relationship in recent years, but they need to go further. I am therefore suggesting that, in principle, we should ensure that there is a relationship between the commissioning groups, the public health authorities and public health and well-being committees, and the local authorities that provide social care and public and environmental health services. It is intended to be reasonably flexible. Clearly such coterminosity, if that is a word, would not apply to specialist commissioning groups and, as I have said, I am not suggesting that there should be only a single commissioning group within each local authority area;
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Lord Rea: My Lords, following the noble Baroness, Lady Finlay, I raised this issue briefly on the second day of Committee. I felt, however, that the Minister only gave a partial answer. CCGs must have an "area" as set out in their constitution, but there seems to be nothing in the Bill which defines the limit of this area or its basis other than that CCGs will cover the registered practice population of the GPs sitting on the CCG. This will result in very untidy boundaries which will interdigitate with a variable number of other CCGs.
However, proposed new subsection (1A) in Clause 10(3) says that a clinical commissioning group has responsibility for other people resident in its area but not registered with a GP-homeless people, rough sleepers, asylum seekers, et cetera. A geographical boundary for those people is therefore implied. Can the Minister say how this boundary is to be delineated? Will it coincide, as my noble friend has suggested, with the local authority, or with the former PCT-which in fact in 85 per cent of cases will be the same as the local authority boundary-or will it have some other basis? There is a strong case for-sorry about this word again-coterminosity with local authorities. They provide many of the services on which GPs depend. In fact, they are an integral part of primary care, such as social services and community health services, and public health, including maternal and child welfare services. They are especially important as, under the Bill, local authorities will all have their own director of public health. There are a number of services which were formerly provided by PCTs on a geographical basis: for example, ambulance and emergency services, genito-urinary medicine clinics, and drug and alcohol services. These are by no means all the services which CCGs will have to commission or co-operate with. What arrangements will be made for the area that these services will have to provide for?
Lord Kakkar: My Lords, Amendment 60 is in my name and that of the noble Lord, Lord Patel. It proposes to deal with the anxieties over real and perceived conflicts of interest that might exist in the functioning of clinical commissioning groups. The amendment proposes that:
"The Secretary of State must publish, and may from time to time revise, a code of conduct for all clinical commissioning groups ... The code must, in particular, incorporate the Nolan principles ...'The Nolan principles' means the seven general principles of public life set out in the First Report of the Committee on Standards in Public Life".
It is important to take the opportunity to explore the issues around potential conflicts of interest and the anxieties that these raise. The reason is very simple. Clinical commissioning groups will be new public bodies. They will have by large measure a large number of primary care practitioners as their membership.
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For many other statutory bodies in the public sector involved in healthcare, we have dealt with the problem of potential conflicts of interest by ensuring that those organisations and those who serve in those organisations are obliged to conduct themselves in a way consistent with the seven principles of the standards in public life: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. Those seven principles are very powerful indeed.
On 14 April I put a supplementary question to the Minister at Oral Questions about whether clinical commissioning groups would be obliged to follow the Nolan principles. The Minister stated that, since they were going to be public bodies, they would be obliged to do that. As they are new public bodies, many of those that are going to serve in important capacities in clinical commissioning groups will have little experience of public life. Yet they will have very important responsibilities and have to deal with the sensitivities and anxieties of patients, because they will both serve in capacities on clinical commissioning groups and continue to serve as patients' principal caregivers and primary medical practitioners. We need to find a way of ensuring that those anxieties are overcome.
In many other situations, we have dealt with that through these seven basic principles. Indeed, the Parliamentary Standards Act 2009 was designed to ensure that anxieties over the conduct of Parliament could be dealt with in such a way as to satisfy the public more generally that there was transparency, and that those serving in public life in this Parliament had no doubts about their obligations and responsibilities. The Parliamentary Standards Act 2009 includes a commitment and requirement to adhere to the standards in public life defined in the Nolan principles. I therefore believe it might be an important opportunity to overcome the anxieties that attend the question of potential conflicts of interest in terms of the conduct of clinical commissioning groups for the same approach to be taken with regard to this Bill, and to include a specific reference to the Nolan principles in terms of the conduct of clinical commissioning groups.
Lord Hunt of Kings Heath: My Lords, clinical commissioning groups are, of course, one of the main building blocks of the Government's proposed changes to the National Health Service and I support my noble friend Lord Whitty when he argues for the need for population-based bodies at that essential local level. However, I will follow the noble Lord, Lord Kakkar, in looking at issues to do with corporate governance in clinical commissioning groups. I am concerned whether the corporate governance structure will be sufficiently robust. Will clinical commissioning groups be sufficiently accountable to the public? What safeguards will be put in place to ensure that clinical commissioning groups operate in the public interest?
Schedule 2 sets out the details of the governance structure. Clinical commissioning groups will be bodies corporate with a constitution and a procedure for decision-making; an accountable officer and audit and remuneration committees are to be appointed. That is fine as far as it goes but I hope the noble Earl will use this opportunity to clarify what effective corporate governance structure is to operate. My Amendments 175CA and 175CB seek to do just that.
On Amendment 175CB, I seek guidance and reassurance about the composition of the boards of clinical commissioning groups. On every other board in the NHS the non-executives are in a majority. Will the noble Earl confirm that that will be the case with clinical commissioning groups? If not, why not? I follow what the noble Lord, Lord Kakkar said: surely, by any definition, GPs are the least experienced in any form of corporate governance in the health service? Therefore, given that they are the least experienced, is it right that they should be subject to so much less scrutiny and challenge than those other organisations in the National Health Service which are hugely well versed in corporate governance? At the very least the chair and vice-chair of the clinical commissioning groups should surely be lay people to ensure that the public interest is represented.
There would be considerable merit in ensuring an external appointments process. I have suggested here the NHS Commissioning Board but there may be other suggestions. All experience with public bodies shows that if boards are responsible for deciding on their membership you will often run into trouble. We have seen this in the education sector, with corporations of colleges simply deciding themselves who should be appointed and who should replace those who retire. Simply leaving clinical commissioning groups to decide on their membership is a recipe for deep trouble, particularly when the temptation for CCGs will be to spend resources on themselves, on their constituent GPs. The issue around public interest and conflict of interest will become a keen problem and, without strong, effective corporate governance, we may well run into great difficulty in the future.
There are probing amendments around membership but, in relation to Amendment 175CA, I would like to know whether the noble Earl feels it is appropriate that local authorities should have some kind of representation on the boards of clinical commissioning groups. Amendment 175CA in particular draws attention to the role of district councils in two-tier areas. That is because clearly the principal local authority will be the host of the health and well-being boards. There will be concern, particularly in rural areas, if the non-metropolitan district councils do not have some involvement. I at least pose the question as to whether they may have some involvement at the clinical commissioning group level.
My principal amendment is Amendment 175D which concerns the accountability of clinical commissioning groups. I do not understand how those groups will account to their patients. As a patient, what do I do if I do not agree with the decisions of the clinical commissioning group? What if I think the decisions made by my clinical commissioning group put me at a
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How do members of the public hold the clinical commissioning groups to account? As far as I can see, the Bill is completely silent on that. The noble Earl may say that it is contained in the doctor-patient relationship, but I do not think that is true at all. My relationship with the GP is not about commissioning: it is about essential care. Frankly, there is already a risk that, because GPs are collectively going to commission, the doctor-patient relationship might be undermined in any case. That is because the moment we place commissioning decisions with GPs, there will always be a suspicion among patients that decisions they are making clinically will be governed by the needs of the clinical commissioning group and the need to ration resources. Clearly, the Secretary of State has said, and has been saying consistently, that the reason the budget has been put with GPs is to give control over the budget overall.
I have put forward a model essentially based on the foundation trust model, which says that the members of clinical commissioning groups should be the patients who are on the lists of the GPs within that group. The membership should then vote for a governing body and the governing body should then appoint the non-executives on a clinical commissioning group. I am not completely wedded to that model: I just lifted a model that is currently in operation in the health service. My main point is that I do not believe that it is right and proper that a public body should simply be composed of one profession that is given enormous power-if you are lucky, there may be one or two non-execs on the board as well-accountable to nobody at all at the local level. There is no mechanism at all whereby I as an individual patient have any way of challenging the commissioning decisions of those clinical commissioning groups. This is a very important issue to which I am sure we will return. We have to make CCGs properly accountable.
Lord Patel: My Lords, I will be brief in supporting the amendment of my noble friend Lord Kakkar. I also support the comments just made by the noble Lord, Lord Hunt. I think it vital that local commissioning groups are accountable and conduct themselves according to the highest principles of public life. CCGs are legally responsible for the quality of their decision-making processes. Therefore, they need to be able to stand up to judicial review. The individuals making those decisions should be required to adhere to the highest standards of conduct for public officials.
I know that, to a degree, the Government recognise this by raising the structures of CCGs-namely, the inclusion of lay and other professional members on governing bodies, the requirement for compliance, the principles of good governance and the pledges about
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The Bill also states that CCGs may pay members of the governing body such remuneration and allowances as it considers appropriate. Full autonomy may not be appropriate as it might undermine public confidence in the ability of members of CCG governing bodies to act in the public interest. Some degree of national guidance about fee scales might also be valuable.
Baroness Williams of Crosby: I will speak to Amendment 101A, in my name and that of other noble Lords. Before I do, I will say one word about the amendment spoken to by the noble Lords, Lord Kakkar and Lord Patel. I was pleased to hear what they both said because in a way it reflected the crucial nature of trust in the medical experience, the relationship between the patient and the doctor. That is at the centre of the ability to create a successful health service. They were absolutely right to emphasise that. Without going into detail, it is fair to say that the Nolan principles are becoming a kind of gold standard of the behaviour of people in public life. It is eminently suitable that that gold standard should be openly applied to those who are members of clinical commissioning groups at the local level. That will go some way to retaining the level of trust that exists between the medical profession and citizens.
Turning to Amendment 101A, we do not want to go over the ground again about membership of the board. This is, in a sense, the board in a miniature-the membership of the clinical commissioning groups. It is crucial that clinical commissioning groups are very close to their communities. The reason that my amendment refers in particular to a representative of the nursing profession is because almost nobody is ever closer to a local community than nurses. The information and knowledge that he or she carries can be vital to the working of the local clinical commissioning board. Also, nurses tend to be the recipients of any complaints there may be, so again it acts as a two-way channel. I also hope that we can bear in mind the importance of somebody with public health experience on a clinical commissioning board.
I make one other, final remark. As evinced by amendments later on that we will come to discuss, the major guarantee of the behaviour of a clinical commissioning group will be transparency. I hope that when we come to look at the extent to which members of boards should declare any interests that they may have, and should be recused from any decision which might bear upon that interest, we will recognise that this is one of the most important elements in dealing with the point that the noble Lord, Lord Hunt, legitimately raised. The real concern is about the interests of individual GPs or groups of GPs in their own particular business-so to speak-and the way that that must be made absolutely plain before the clinical commissioning group takes a decision that can have any bearing upon the individual interests of individual members of the board.
Lord Warner: My Lords, I shall speak to Amendments 169, 171 and 174 in my name and that of the noble Lord, Lord Patel. I very much endorse the remarks made earlier by the noble Lords, Lord Kakkar and Lord Patel, and my noble friend Lord Hunt. There has been a huge amount of concern about the governance and accountability of clinical commissioning groups since they were launched upon a slightly unsuspecting world. That is not to say that it was a bad idea to have them, but a large number of questions have been legitimately asked about how they will be held to account for large sums of public money and how they will govern themselves, given in particular that they are a new type of public body. We have been unsure from the beginning precisely how many of them will emerge. It seems that there are now in the order of 200, or 250 or something like that, but we are not quite sure how many there will be eventually. Some of them are quite small and some will be quite big, so they are quite variable in their scale of operation.
The conflict of interest issue has come up repeatedly. I cannot remember how many events I have been to where that issue has been expressed. There is also the fact that these bodies are untested. They are different in kind from many other public bodies that there have been. The theme running through my three amendments is about trying to improve the governance and accountability of clinical commissioning groups, given the large amount of public money that they will be spending-the collective expenditure of these particular groups runs into tens of billions a year.
I can appreciate how difficult it may be for a group of clinicians to agree who should be the chief executive. I also have no wish to impose an overly rigid management structure on clinical commissioning groups, particularly in their early days. However, I am old-fashioned enough to believe that public bodies handling large sums of public money should have a senior accountable officer who, knowing that he or she may be held publicly accountable, can speak the truth to colleagues when they are tempted to duck responsibility. It is an important principle of the way in which we have run public bodies that there is a senior accountable officer who can internally, as well as externally, give strong advice and leadership on propriety in the way that public money is spent. This amendment would ensure that the governing bodies of clinical commissioning groups had a person who could perform that function.
Amendment 171 attempts to strengthen the provision on standards of governance for clinical commissioning groups in new Section 14L(2)(b). At present the Bill requires the governing board of clinical commissioning groups to have,
As I have said, clinical commissioning groups are a new kind of organisation, spending large sums of public money. There has been much debate about the adequacy of the Government's wraparound of these bodies. I share that concern and I believe that, as worded, the Bill does not go far enough. It tends to leave these groups to look around for a governance model that they deem to be relevant to them. They might find this a rather difficult proposition in its own right. There is a very strong likelihood that they will have very divergent governance arrangements for such large sums of public body money. We do not expect PCTs or local authorities to have that level of governance divergence in the way in which they conduct their affairs. That is why Amendment 171 attempts to increase the rigour and reduce the variation in the governance arrangements for clinical commissioning groups. It requires them to meet the standards of good governance of any elected or appointed public body authorised by Parliament. That seems to me to be the standard that we should be looking for, and we should expect these groups at least to be able to point to a governance system that is no worse than that of local authorities or PCTs.
If this wording can be improved further, or if other noble Lords have ideas for improving that governance, I am happy to go along with any proposition that strengthens the Bill in its governance requirements and produces an outcome that is likely to mean less divergence between individual clinical commissioning groups in the type of governance that they produce for the running of their affairs.
Amendment 174 has a different theme. It attempts to address the key issue of information that enables a public body, such as a clinical commissioning group, to discharge its public accountability in a way that enables comparisons to be made with other similar bodies within, in this case, the NHS. It is one thing to give clinical commissioning groups a lot of flexibility in the way in which they organise themselves. I see no reason why we should allow a thousand flowers to bloom in the way in which these groups choose to render public accounts for their work and expenditure decisions.
I also struggle to see how the national Commissioning Board can itself review the performance of clinical commissioning groups without some template setting out how it would do so. It would not be able to shrug its shoulders when asked about groups perceived to be performing poorly. It will need some evidence that it can make public about that inadequate performance. Why should that evidence vary dramatically from clinical commissioning group to clinical commissioning group? If that is to be the case, we should be clear from the outset that there will be a more standardised system of minimum financial performance information that these groups are required to publish annually. That is in the interests not only of the good governance of these bodies but of the public understanding what they are getting for their money from those groups.
It is critical that any such system has a good weighting of financial and cost data. Healthcare systems here and overseas are very good at putting into the public arena data about what they have produced that are often disconnected from how much they have cost to produce. We need a clear obligation in statute on the
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I lived through the process of dealing with financial meltdown in the NHS in 2005-06. One of the main causes of that meltdown was that the NHS could explain to hardly anybody collectively the relationship between the level of activity and the cost of that activity. It had two streams of data-one about money and one about activity-and they were not related to each other. If we repeat that approach in clinical commissioning groups, we will end up in the same place as we ended up in 2005-06.
The whole structure that the Bill sets up for the NHS depends on a number of things to work efficiently. It depends on the clarity of responsibilities and on different bodies having a clear understanding not only of their own role but of their role in relation to each other. One of the most important parts of the process underlying the structure is integrity. Although there has been much exaggeration about potential conflicts of interest in some of the things that I have seen, there is one-the one that I have highlighted in this amendment.
One commendable thing about this Bill is that in relation to acute care and hospitals we are stopping the process by which organisations-in this case acute trusts-are rewarded for the volume of the procedures they do rather than the quality of their outputs. It is important in commissioning that we stick to that same principle. There must be no possibility whatever that anybody who is involved in the commissioning of services stands to gain by the provision of those services, or their volume. That is why I have drafted this amendment. It may be imperfect in some way or another but its intention is to say that those commissioning decisions must be completely separate from the derivation of any benefit-or pecuniary benefit-as a result of that.
I have absolutely no problem whatever with people who either work for or are shareholders of commissioning support organisations advising CCGs on what to do. If they are, as we have been led to believe, experts in commissioning and clinical commissioning groups want to bring in their expert advice, that is absolutely fine. I do not have a problem with that at all, as it could be a much more efficient and effective way in which to do it. However, it would be unacceptable if those same people had any role whatever in the decision-making processes of the CCGs, either by being a member of a CCG board or by being a member of one of the CCG sub-committees. My amendment attempts to remove that potential conflict of interest. It is probably one that the Government had intended to remove, but they have not done so in the Bill as it stands, and so there is a loophole which needs to be closed in order that there is complete integrity about the process.
Baroness Finlay of Llandaff: My Lords, this group of amendments and this debate are incredibly important. The risk of conflict of interest relating to general
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I have been a GP myself and have had to go through the business of partnership agreements. I know only too well from colleagues of mine how disastrous the break-ups in partnership agreements can be and the degree of animosity that can occur. When we talk about GPs being on commissioning groups, there is a real problem in terms of how much they are going to get paid for undertaking commissioning decisions. If they are commissioned from an organisation with which they have a link-because they are a GP with a special interest and they work in another organisation-what are they being paid for? The content of their general and medical services contract is not closely defined. If they have a special interest, which their practice then refers to one of the partners in the group who is providing a service as part of another provider group, there is a risk that people in that practice will be getting double-paid under the organisation of that arrangement.
To try to explore this, I telephoned Assura, a group which is providing dermatological services in an area. I tried to explore the situation with regard to their internal governance arrangements and commissioning arrangements if they have a GP working there and how those arrangements are monitored. I was reassured by what I was told by the person on the phone, who was most helpful. However, it did not take away my anxiety. This provider was being careful and making sure that clinical governance structures were in place, but I have not been able to understand where the controls are on a clinical commissioning group. Will they be only on people who are GP principals on it, or will they apply to all the doctors who are working in general practice? Where will the GPs sit if there are a small number of principals, a large number of salaried GPs in an area who are doing all the clinical work and who know what needs to be done, and a senior partner who is taking the profits out of the business which is the business of the general practice?
Where coterminosity links to this is that, if you have coterminosity between the commissioning group and other services-local authority services, education services and so on-you at least have another organisation, or two others, which will be seeing what is happening. If you take a complex family-perhaps a single parent with one child with developmental delays, another with complex conditions such as epilepsy, diabetes or whatever, and another child who might be being neglected-then, by having triangulation between local authority services, education services and those services being commissioned, the gaps in the commissioning process may emerge. However, if you do not have coterminosity, I can see each group saying, "It falls outside our area", and the children or the patients will fall through the gaps. With regard to the commissioning group, poor decisions in commissioning or decisions which involve a conflict of interest may not be revealed for a very long time.
Therefore, I urge the Government to look closely at these amendments, particularly the one tabled by my noble friend Lord Kakkar on the Nolan principles, because, unless we tighten up on the processes that will monitor and provide governance over the way that members of the clinical commissioning group behave, we run a risk. I wish that I could share the optimism of the noble Baroness, Lady Barker, that the conflict of interest will lie only among those supporting commissioning decisions, but I do not.
Lord Greaves: My Lords, this is a very mixed bag of amendments. It is all about clinical commissioning groups but the issues behind such a mixed group are varied and it is quite difficult to get a coherent debate about them-although I do not criticise the Government Whips' Office for attempting to push this Bill along a bit, given the speed it is going. I shall speak to three or four of these amendments. I totally agree with everything that my noble friend Lady Barker said, so I will say no more about that.
In his speech, the noble Lord modified it a bit further than his amendment seems to go but the basic principle behind it is extremely important, except that where there are large, sprawling counties in two-tier areas those counties are clearly far too big to be the areas of the commissioning groups. In a county such as my own, Lancashire, or North Yorkshire it would seem sensible for the clinical commissioning groups to be smaller than the county, although I would argue strongly that the county boundaries and the top-tier or the unitary authority boundaries should not be crossed.
Lord Greaves: I am not saying that there are no counties where that might be the appropriate arrangement. I am saying that in very large counties which, first, have a large population and, secondly, cover a large geographical area it would be excessive. Indeed, the situation in those counties which I just referred to is that the primary care trusts do not cover the whole county. All I am asking for is a degree of flexibility to allow appropriately sized clinical commissioning groups where the counties themselves would be too large. I declare that my own county is one such example. Indeed, as I said earlier, the areas that people are looking at as being appropriate for CCGs in Lancashire do not cover the whole county but the principle is absolutely right.
More important is Amendment 60, which is linked with Amendment 92ZZA, which my noble friend spoke to. Amendment 60 is about the code of conduct and was spoken to by the noble Lord, Lord Kakkar, and the noble Lord, Lord Patel, who I am pleased to see in his place again to hear what I have to say. As far as I am concerned, there is a real sense of déjà vu here,
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I do not want to say a great deal more about this now, because if I start I will be difficult to put down. However, there was a great deal discussed during the Localism Bill since the Government started off with the position that they wanted to sweep away the existing regime in local government for local authority members, which is based on the Standards Boards for England and which they thought-and I agreed with them-was highly bureaucratic and expensive, very legalistic and over the top. They wanted effectively to remove the standards regime altogether. As a result of intensive discussions in your Lordships' House in Committee, on Report and at Third Reading, a compromise was arrived at-a lighter touch regime, which regrettably does not involve a national code of conduct but requires local authorities to have a standards regime, to adopt a code of conduct based on the Nolan principles and a published system which is transparent and applies to local authority members in their area. The two noble Lords putting this amendment forward might profitably spend an hour or two reading Hansardfrom the Localism Bill-I am sure they will enjoy doing so-and looking at the way it might be applied to clinical commissioning groups, different bodies but with the same principles. If they come back on Report to say what regime would be appropriate I am sure those of us who have been involved in the Localism Bill would be pleased to discuss it.
Amendment 175CA is the first of what I believe to be extremely important amendments put forward by the noble Lord, Lord Hunt of Kings Heath. It refers to representatives of district councils in two-tier areas. This is important because district councils in two-tier areas have actually been written out of this Bill and not included under the various definitions of local authorities, despite having a very important role to play in public health; they are housing authorities, housing standards authorities and environmental health authorities, and they provide all sorts of public health facilities such as leisure services. At present they often work closely with their primary care trusts on local projects to improve public health. It is an important issue in this Bill that will come up again later so I will not say any more now.
Direct representation on CCGs is not necessarily the most important issue here. If you have five or six district authorities in one CCG, as it looks like we will have, the representation would not be very direct anyhow. It is a crucial issue and one which casts its shadow over discussions we shall have in coming days. The really important parts of the amendment tabled by the noble Lord, Lord Hunt, are about the governance structures, how many independent members there may be on the CCGs and what role they will have. This is absolutely fundamental and links with local accountability. Should local accountability be to the patients in the area? Should it be through GPs? Should there be an
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I think it was the noble Lord, Lord Hunt, who said that if it is simply left to the groups themselves to appoint their members and successors they will run into trouble. There are going to be many countervailing forces within this new complex system that we are to have at local level. Bringing those countervailing forces together might result in integration, but if there is not sufficient integration and accountability built into the system it will result in conflict. There will be all sorts of different bodies involved. People will be out on the streets campaigning and collecting petitions, and the general culture within the local NHS will too easily become one of conflict rather than of people working together for the best of the area. The composition of the commissioning groups, the way in which they work and their accountability are going to be absolutely fundamental to this. If, with the assistance of this House, the Government get it right, it could be very successful. If they get it wrong, we will all be back in two or three years trying to get a new system, and we really do not want to see that happen.
Lord Beecham: My Lords, when I spoke to the amendments concerning the NHS Commissioning Board, I said that the arrangements for governance, membership and the like were skeletal. In the absence of the most reverend Primate, I am probably safe to say that these arrangements for clinical commissioning groups are, by comparison, words made flesh. There is currently virtually nothing in the Bill that indicates how these commissioning groups would be constructed, what their membership would be and indeed what they should do.
Clause 22 contains provisions to make changes to the 2006 Act to provide for regulations as to the governing bodies of clinical commissioning groups. It is disappointing that nearly a year after the Bill was first produced we are debating the formation of clinical commissioning groups without any clarity at all-for example, in the form of draft regulations, if they are to be prescribed by regulation rather than the Bill itself-about how these groups should be composed. It is quite unsatisfactory. Clearly tonight we are not going to be voting on anything-these are probing amendments-but I hope that before we get to Report we can have sight of draft regulations to see what is in the Government's mind and what changes might be necessary for the composition of these bodies. I have some sympathy with Amendment 101A, tabled by the noble Baroness, Lady Williams, but that assumes that it would be the function of the NHS Commissioning Board to ensure the composition of the commissioning groups. That does not necessarily follow and presumably we will not know until we see what the draft regulations contain.
A number of your Lordships have referred to the issue of coterminosity. In principle, it sounds fairly straightforward although in practice it looks a little less straightforward. There are different types of
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In previous debates the Minister referred to the possibility of groups working together. This needs to be fostered. It may be that the Commissioning Board would have a role in that, or this matter could be covered by regulations to provide for the opportunity for groups to cluster effectively to replicate the pattern of primary care trusts. As matters stand, however, it does not seem that is likely.
There are issues of a different kind about coterminosity because some, in particular GP consortia, may have interests in different areas. The Haxby Group in York, which has been mentioned in your Lordships' House before-the general practitioners' group which on NHS-headed paper advertised effectively a private service, though that is not the point I am making-also operates in Hull. That is in a different area. Hull is a unitary authority and York, which is also a unitary authority, is in North Yorkshire. They are two quite distinct areas. The practice, however, operates in both. I am not sure how a practice like that fits into the scheme of commissioning groups. Will it be present on two commissioning groups? Maybe and maybe not. Maybe it creates a difficulty; maybe it does not. It needs looking into.
I agree with the noble Lord, Lord Greaves, in commending my noble friend Lord Hunt's proposals around some district council representation. We will revert to this later when we are talking about health and well-being boards, where there is a more obvious role. Nevertheless, there is a potential role for district councils, with the services and responsibilities to which both noble Lords have referred, to have some place in commissioning groups. There is certainly, judging by the tenor of the previous debate, a clear role for either the director of public health or at least his or her representative to sit on commissioning groups. Again, if there is simple coterminosity-one local authority and one commissioning group-there is no problem.
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There seem to be a number of unanswered questions and this late in the day, in every sense, we cannot take them much further tonight. I hope, however, that the Minister can assure us that there will be an opportunity to have draft regulations and responses to all the issues that have been raised tonight in good time for the House, which has different concerns across the divide here, to consider them carefully, in order that we can take a clear view about how to close the gaps in the Bill on the basis of clear proposals expressed where necessary in the form of the draft regulations which will apparently be heading our way at some indefinite point in the future.
I have two amendments in this group. One concerns a public health specialist on the clinical commissioning groups. We have been around the houses with this and my noble friend Lady Williams has spoken most eloquently on this matter so I will not emphasise the points again. My second amendment is to do with the recruitment and remuneration of lay members of clinical commissioning groups. The Committee has rehearsed the arguments that there is a lot of silence around clinical commissioning groups and their governance. This just underpins that. There is a bit of a Catch-22 with this situation because the Bill makes provision for an audit committee and a remuneration committee and also for a lay member to chair each of the two groups. Therefore, you could argue that a remuneration committee might play a part in deciding how much a lay person would be remunerated for sitting on the group. However, we do not yet have the lay person to chair the group and take the decision, so who will take the first decision about the appointment of these two lay members? They will also need remuneration; who will take that decision?
The other big issue that has been discussed by the Committee this evening is that of transparency within the governance of clinical commissioning groups. I expect the noble Earl hopes to wind up soon. When he does, I hope he will be able to give us a steer on the Government's thinking on this.
Baroness Armstrong of Hill Top: Briefly, this is a very important set of amendments, which we do not have time to deal with effectively in the next 10 minutes. I understand that the Government do not want to spend more money. Indeed, the Minister said earlier that the whole idea was to cut down the amount of money spent on CCGs, relative to what was previously spent on PCTs. The problem is that there will be more CCGs than there are PCTs and there is deep anxiety over the lack of clear governance. The Government have a problem here. So far we have had clues that there is to be accountability upwards. These amendments make it clear that there must be accountability downwards, too.
As the noble Baroness, Lady Finlay, said, GP groups are different from other groups in the National Health Service. They are not used to this level of accountability or this level of governance-even at the level that the Government have already put into the Bill. Nobody outside, particularly in other aspects of the NHS, thinks that the governance in the Bill is adequate. I share the concerns that other people have expressed tonight; I share the concerns about coterminosity.
I have mentioned previously to the Minister that Durham is now a unitary county. We used to have seven PCTs in Durham and Darlington; we now have one. We will have three CCGs. I do not believe that that will be cheaper and I am not yet convinced that it will be more effective for commissioning. The Government have a lot to do to reassure people that this will be more effective and that it will be accountable. There are many GPs who are now anxious the other way around. They are anxious that if they go into CCGs, the level of accountability, governance and bureaucracy will be so great that they are saying, "We're not sure we want to have anything to do with it".
This is an area where I suspect the Government will say that, in all truth, this is not where they want to be. However, this is where we are and the responses that we have heard so far simply do not meet the level of anxiety and the need for accountability that everyone thinks is there.
Lord Davies of Stamford: My Lords, what I want to say might have been a little long as an intervention in the Minister's speech but it will be very short as a speech. I simply want to ask the noble Earl, when he replies to this debate, to address in a considered way how the Government intend to deal with an enormously significant and worrying conflict of professional interest that could arise in this context. Anyone who is a member of a clinical commissioning group, whether he or she is a GP or not, must presumably be committed and signed up to the priorities, policies and plans of that clinical commissioning group. However, where that individual is also a GP who has his or her own patients, some of those patients may have conditions that do not get a very high priority in those plans and policies. Surely there is an immediate conflict of interest. In the present circumstances, the GP can say to his or her patient: "I am doing my best to battle with the PCT to get the treatment that I really think you need". However, in the situation that arises as a result of the structure in this Bill, that GP would be on both sides of the table. He would be arguing with himself and making representations to himself. Surely the noble Earl would agree that it is a thoroughly unsatisfactory situation. Can he assure the Committee that it will not arise and, if it does, that the Government have a clear set of rules or procedures for dealing with it?
Earl Howe: My Lords, we have had another well informed and stimulating debate. I will start by going back to the beginning. On paper, clinical commissioning groups can seem like a dry concept, but I would encourage your Lordships to look beyond the words and duties on the page and consider what CCGs will be able to achieve in practice. GPs and other front-line professionals already make the clinical decisions that
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I have seen at first hand the work of primary care clinicians-GPs, nurses, allied health professionals and others-in leading the commissioning of services. I have been struck on numerous occasions by their dynamism, innovation and their absolute dedication to ensuring that their patients receive high quality care. It is in that context that we should consider our debates on this topic, including this one, which have focused primarily on ensuring that CCGs have effective governance arrangements, but have also touched upon CCG boundaries.
I do not agree with the noble Baroness, Lady Armstrong, that the arrangements are weak. We have already responded to the Future Forum's recommendation to strengthen the Government's arrangements for CCGs and made it a requirement for every CCG to have a governing body. We recognise that good governance will be critical to the design and operation of CCGs, in order that they act transparently, manage conflicts of interest and have the proper checks and balances in place to provide assurance that decisions are taken in ways that protect patients' best interests, promote continual improvements in quality and provide assurance that public money is well spent.
That is why I believe that the Bill already achieves the intent of Amendment 60, which would place the Secretary of State under a duty to publish a code of conduct for CCGs, incorporating the Nolan principles on public life. I am fully in support of CCGs adhering to the principles established by the Committee on Standards in Public Life. However, new Section 14L already states that the main function of a governing body of a CCG includes ensuring that the group complies-and these were the words quoted by the noble Lord, Lord Warner-
The Nolan principles, or any successor principles which the Committee on Standards in Public Life or another body was to issue, would be foremost among these. However, the provision in the Bill will also encompass any other relevant, generally accepted principles of good governance issued by appropriate bodies, such as the Institute of Good Governance, and therefore has the potential to be of wider effect. That is why I feel that Amendment 171 is also unnecessary, as it appreciably narrows the field of vision of the governing body.
In addition, the Bill already sets out other provisions which relate to a CCG's conduct. For example, with respect to the constitution of a CCG, the constitution must include arrangements for ensuring absolute transparency. It must specify the arrangements for discharging the CCG's functions, its decision-making process, how it will secure transparency about the decisions of the group, and how it will deal with conflicts of interest of members and employees of the CCG or members of the governing body.
Amendment 174 clearly aims to ensure transparency around the performance of a CCG in terms of its financial management and the outcomes that it secures for its patients, by requiring the NHS Commissioning Board to specify minimum standards of financial and performance information to be published annually by all CCGs. I say to the noble Lord, Lord Warner, that this is already provided for. Under new Section 14Z13, to be inserted in the NHS Act 2006 by Clause 23, CCGs are already subject to a duty to prepare and publish an annual report on how they have discharged their functions in the previous financial year, and the report must explain how the group has discharged its duty as to improvement in quality of services. The Bill also requires each CCG-
Lord Warner: I am sorry to interrupt the noble Earl, but I was aware of that. My concern was that it seemed to leave to clinical commissioning groups the decision on what type of information they put in that. They could put in a whole load of information that was not comparable with any other clinical commissioning group. The whole point of my amendment was that there should be a level of standardisation so that we could see the different levels of performance in different CCGs.
Earl Howe: My Lords, I take that point on board. It is my understanding that the NHS Commissioning Board will wish to set common standards for CCGs to follow. However, I will follow up that point with the noble Lord. As I said, the Bill requires each CCG to prepare annual accounts, independently audited. The board may, with the approval of the Secretary of State, direct CCGs as to the methods and principles according to which their accounts must be prepared, and the form and content of such accounts. Therefore, there will be scope for the board to drive consistency in the area the noble Lord mentions.
I turn now to Amendments 169, 175BA, 175C and 101A, which concern membership of, and appointments to, CCG governing bodies. In response to amendment 169, as the Bill stands, under new Section 14N, regulations may already provide that members of governing bodies must include the accountable officer of the CCG. Paragraph 11 of Schedule 1A also specifies that the accountable officer may be one of the following: a member of the CCG, or an employee of the CCG or any member of the group. Restricting the accountable officer to being the "most suitable senior employee" of the group, as Amendment 169 also proposes, would narrow who the officer could be and ignore other able candidates, so I am not attracted to that amendment.
Amendment 175BA, and Amendments 175A and 175B, which we will be discussing in more detail in a future group, clearly intend to ensure CCGs have access to professional or other expertise to advise on all areas of their work. This is undoubtedly important, but the governing body is not the route to achieve this. As the Future Forum advised, a clear distinction should be made between governance of CCGs and clinical involvement in designing care pathways and shaping local services.
Clinical involvement in designing pathways or shaping services is exactly what a CCG will need to ensure in exercising its duty in new Section 14V, which requires
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Clinical senates and networks will, of course, be crucial to effectively meeting this duty and to ensuring that CCGs can access specialised advice, as will the local knowledge and public health knowledge held by health and well-being boards. We believe there is a case for ensuring that governing bodies include the voices of some other professionals-at least one registered nurse and a secondary care specialist-but it would be unhelpful, as the Future Forum also acknowledged, for governing bodies to be representative of each group. That could lead to bodies that are too large and slow to do their job well. CCGs should have the flexibility to determine the professional input into their governance arrangements.
Amendment 175C would provide for regulations to be made setting out how lay members are recruited and remunerated. Subsection (3) of new Section 14N already makes provisions as to the appointment of members, including lay members, to the governing body. Paragraph 12 of Schedule 1A allows the CCG to pay members of its governing body such remuneration and other expenses as it considers appropriate. These existing provisions cover the intent of Amendment 175C.
Lord Hunt of Kings Heath: My Lords, can the noble Earl assure me that the appointments will be made by independent bodies, and that it will not be a case of the board of the CCG making the appointments to itself? In terms of corporate governance, can he also assure me that non-executives will be in a majority as they are on every public body which the Government have recently enacted?
Earl Howe: If the noble Lord will allow me, I will answer those questions in a moment. Amendment 101A would similarly duplicate existing provision by placing a duty on the NHS Commissioning Board to ensure that all CCG governing bodies meet the requirements for clinical and non-clinical representation. The board already has to do this; under proposed new Section 14C, the board can grant an application only if it is satisfied that the applicant CCG has made appropriate arrangements to ensure that the group will have a governing body which satisfies any requirements imposed by or under the Act. That would include regulations made under proposed new Section 14N providing for minimum levels of clinical and lay representation.
Amendments 170A, 175D, 175CA and 175CB seek to introduce alternative governance arrangements for CCGs. These amendments would remove the existing functions of the CCG governing body and, through the proposed new schedule, replace the governing body with both a board of directors and a board of governors. I was grateful to the noble Lord for explaining where this idea originated. However, the amendments do not propose functions for these boards to exercise. They concentrate almost solely on the form of CCG governance; they neglect the function. As to that form, there is much here which is already provided for in the Bill and in relation to a governing body. I should perhaps explain that our preferred approach is to set
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Turning to Amendment 59A on the subject of the area covered by CCGs, in the light of our lengthy debate on this last week, a letter will shortly reach your Lordships to provide further information on the arrangements for geographic areas of CCGs. It includes some analysis of the key issues which I hope will be useful and reassuring. We accepted the Future Forum recommendation that the boundaries of CCGs should not normally cross those of local authorities. If a CCG wishes to be established on the basis of boundaries that will cross local authority boundaries, it will be expected to demonstrate to the NHS Commissioning Board a clear rationale in terms of benefits for patients; for example, to reflect local patient flows and to secure a better service for patients. The board will also be required to seek the views of emerging health and well-being boards. In addition, CCGs will have the flexibility to enter into lead or joint commissioning arrangements with other CCGs; for example, for commissioning of lower volume or more specialist services. I hope that this reassurance will satisfy the noble Lord's concerns.
Finally, Amendment 92ZZA seeks to mandate the Secretary of State to make regulations imposing a ban on shareholders and employees of commissioning support organisations being given a seat on a CCG committee or governing body of a CCG-I assume that it is the governing body that the amendment refers to rather than the NHS Commissioning Board. We agree that there should be no conflicts of interest between a CCG and any commissioning support organisation that it uses. The support offered by such organisations should inform decisions made by CCGs, but we have always been clear that CCGs cannot delegate their duties or responsibilities. However, such an absolute ban would not take into account situations, for example, where a CCG may wish to invite individual employees from commissioning support organisations to provide expertise on a committee. The Bill already requires CCGs to have robust provision for managing conflicts of interest in how they discharge their functions.
It is clear from the debate that these amendments were proposed with the best of intentions, but I hope that noble Lords will feel that the points that I have made are sufficiently compelling to encourage them not to press the amendments.
I have a few questions that I would like to answer briefly. The noble Lord, Lord Hunt, suggested that the chair and deputy chairs of CCGs should be lay members. Each CCG must have at least two lay members. We are specifying that, and we have committed that one of the lay members of CCGs will be either the chair or the deputy chair of the governing body.
The noble Lord, Lord Rea, asked me how a CCG's geographic area would be determined. The primary factor in establishing the CCG's boundaries or geographic area would be the practices that made up the membership of the CCG. The NHS Commissioning Board must satisfy itself that the proposed area for a CCG is
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The noble Lord, Lord Hunt, suggested that he could not understand how CCGs would be accountable. Accountability is a key area. There is no doubt about that and I share the noble Lord's desire to get this right. We listened to the Future Forum when it said that there is a balance to be struck between the need for good governance and the need to avoid overprescription. Perhaps that is a generally accepted principle-I certainly agree with that. I think the amendment of the noble Lord, Lord Hunt, goes too far. However, we are absolutely clear that CCGs will be materially accountable in a number of ways. I could recite a number of ways that I have in front of me, but at this hour it might be appropriate for the noble Lord to receive that in writing from me. I would be happy to do that and to copy it round.
On the subject of conflicts of interest, we will be having a very full debate in the context of Clause 20 on conflicts of interest. I have a lot of material here, but essentially there are principally three safeguards in the Bill to prevent conflicts of interest: statutory requirements on clinical commissioning groups to have in place arrangements to manage those conflicts of interest-those have got to be set out in the group constitution; secondly, strengthened governance arrangements as regards the governing body, and I briefly outlined those; and specific provision for regulations to require that the board and the clinical commissioning groups adhere to good practice in relation to procurement and in commissioning healthcare services.
My noble friend Lady Jolly asked who will appoint members of the clinical commissioning group boards. We will work with patient and professional groups and with emerging clinical commissioning groups to determine the best arrangements for appointing members of governing bodies. As I have indicated, the Government will issue regulations in due course, setting out in more detail the requirements for appointing non-GP members to the governing body.
The noble Lord, Lord Hunt, asked whether non-executives would be in the majority on boards. I am not currently able to give that assurance. We are still working with a wide range of stakeholders on the regulations for governing bodies. We are well aware of concerns in this area. I will take the noble Lord's points very firmly on board.
Very briefly in this group, I would also like to speak to government Amendments 172, 173 and 175, which are minor and technical in nature. Amendment 172 clarifies that the remuneration committee of the CCG governing body has the function of making recommendations to the governing body on its determination of allowances payable under a pension scheme established by the CCG for its employees under paragraph 10(4) of Schedule 1A. Government Amendment 172 allows regulations made under new Section 14L(6) to make provision requiring CCGs to publish prescribed information relating to determinations of the allowances payable under a pension scheme. Government Amendment 173 makes provision for the board to publish guidance for governing bodies on the
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The issues of accountability, governance, conflicts of interest and transparency are about confidence in the new system-not only confidence in this House but confidence in the population. The issue of coterminosity-which I thought was a word I had invented but I am glad that others took it up-is also vital to that because people understand the county boundary and where the services are and that there is a relationship between them. I am grateful for the Minister's
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