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The key to this is to have in place a rigorous framework of requirements, approved by the board as part of the CCG establishment process, to ensure absolute transparency and to manage conflicts of interest, subject to oversight-the oversight must be proportionate, but it has to be there. We can put on the face of the Bill, as Amendment 176AD would have us do, a detailed list of behaviours that we would expect members

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of CCGs to observe. Obviously I cannot disagree, as I say, with the stipulations on this list, but they are already provided for in the Nolan principles and indeed the GMC code Good Medical Practice, to which the noble Baroness, Lady Finlay, referred-and adherence to that is a condition of registration for medical professionals. The noble Lord, Lord Warner, was absolutely right: this code is what GPs and doctors in general fear to transgress. Of course, if one looks at that set of behavioural requirements, they are actually only an ideal and they have no specific system in place to ensure that they are met. The sanction on doctors is the threat that they will be referred to their regulator.

The NHS Confederation was very clear about this, and I have to say I agree with it. The Bill has to allow flexibility for the way that conflicts of interest are handled and developed over time, rather than being rigidly set in law. What the NHS Confederation told us was that conflicts of interest need to be managed effectively otherwise,

I agree with that. There is a balance to be reached, and we believe the system that the Bill would introduce for managing conflicts of interest-the key points of which I hope I have described-provides that.

Baroness Thornton: My Lords, I thank the Minister. He will know, as will all those who have been Ministers, that when we are first appointed, we are told-the noble Baroness, Lady Williams, will remember this-that not only must we declare all our interests and have probity about the way we conduct ourselves, but we have to be seen to be doing it. A lot of these amendments are about being seen to do the right thing, and in terms of the relationship between GPs and their patients that becomes even more important. I agree with the noble Baroness, Lady Williams, and the noble Lord, Lord Marks, about their amendments and the need to have proper safeguards and remedies on this.

I think that if we co-operate, the noble Baroness, Lady Finlay, and I can probably crystallise these into something on the face of the Bill. I was disappointed that the noble Earl feels that this is satisfactory in the Bill at the moment, because I think the noise outside this Chamber and the comments from GPs tell us that people are very concerned about it. We need to address that in the Bill. I am happy to withdraw this amendment, but we may need to return to this at a later stage.

Amendment 156 withdrawn.

Amendments 157 and 158 not moved.

Amendment 159

Moved by Lord Warner

159: Clause 22, page 29, line 33, at end insert "providing that it can demonstrate that it can meet the requirements of commissioning competence specified by the Board"

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Lord Warner: In moving Amendment 159 I shall also speak to Amendments 160 and 164 in my name. I start by emphasising that this is a package of amendments that relates to many concerns that have been expressed to me and others-namely, that we need to make very sure that we ensure the assessment of competence of CCGs is sound and open before they undertake the commissioning of services that this Bill will enable them to do.

My earlier Amendment 157 enabled us to debate the number and population size of clinical commissioning groups, both of which considerations have a considerable bearing on the issue of competence of CCGs. I will not rehearse those arguments again except to emphasise that if the Government go ahead with such a large number of clinical commissioning groups, as it seems may well happen, then it is even more necessary to tighten up the Bill's provisions on proof of competence and the ability of the National Commissioning Board to reject applications where competence is in doubt. It is for those applicants to take on the role of a clinical commissioning group to prove that they are competent to take on this task and to safeguard the public money that will be entrusted to them.

Amendment 159 makes it clear that in submitting an application to the board, the clinical commissioning group applicant must demonstrate that it can meet the requirements of commissioning competence specified by the board. If its application does not do so then the board should be able to reject it out of hand. The onus is on that group to show that it is competent to undertake the commissioning. It seems to me that clinical commissioning groups will have had plenty of time to assemble their case and to prepare for their application. The Bill should make it absolutely clear that a demonstration of competence should be mandatory in submitting an application. If I can put it crudely, we do not want to see people taking a punt. They have to be able to demonstrate that they can actually do the job, otherwise public money and safety will be put at risk.

Amendment 160 is linked to Amendment 159. It requires that when the board publishes information for applicants, that information document must specify the competencies required to commission health services. This problem of specifying competencies in commissioning has bedevilled the whole movement towards commissioning over several decades. Mark Britnell's attempts at world-class commissioning ran into the same problem-we were not sufficiently clear about what competencies would deliver good quality health services from commissioners. So this competency issue is at the heart of making clinical commissioning groups work. It is vital that the board is left in no doubt of its responsibility for doing this and that applicants are in no doubt that the competency hurdle that they have to clear is put very clearly to them before their application can be accepted. What we do not want to see, if I may put it this way, is a load of well meaning waffle coming out of the board about commissioning. We want to have articulated the competencies that have to be met before applicants can be successful. Amendment 164 rounds the whole process off in terms of applicants showing that they

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can discharge clinical commissioning group functions "competently", which is the word which it adds to the Bill.

These amendments make it clear that Parliament regards competence in commissioning as the yardstick by which the success or failure of applications to become clinical commissioning groups will be judged. This issue should be uppermost in the mind of the board when it makes decisions, and wording that makes this clear should be on the face of the Bill. Competence in commissioning has been missing in the past and we are in danger of repeating the mistakes of the past by not making it absolutely clear in this Bill what is required of the applicants to be clinical commissioning groups. I beg to move.

Lord Hunt of Kings Heath: My Lords, I have a number of amendments in this group. I will start with Amendment 159A which questions why, on page 9, line 36, it is possible for non-providers of primary medical services to be eligible to apply to establish a clinical commissioning group. Particularly in the light of my noble friend's comments on Amendment 159, one would surely only want applicants who had experience of providing GP services to be able to apply to form a clinical commissioning group.

Amendment 160A requires the board, before considering an application to form a clinical commissioning group, to consult with the general public, the relevant local authority, the relevant health and wellbeing board, and patients receiving primary medical services from providers within the clinical commissioning group. The noble Lord, Lord Greaves, raised some pertinent questions about transparency in the formation of clinical commissioning groups. It is extraordinary that there seems to be no process by which putative CCGs consult with their patients before they make an application. The decision is, essentially, being made by bureaucrats within the National Health Service system-who put constraints on CCGs,-and the GPs themselves. Where on earth are the public in all of this?

Lord Greaves: The noble Lord very kindly referred to what I said. Is it not also the case that a group of GPs could go ahead and put forward proposals without even consulting all the GPs in their area?

Lord Hunt of Kings Heath: From reading the Bill, it is only when two or more are gathered together that they can make such an application. So the noble Lord is quite right. The amendment is seeking assurance that there will be public consultation and consultation with patients. We are told this is all about patients. Can patients therefore be consulted before GPs commit themselves to forming a clinical commissioning group? Or are we just to be told at some stage, "That's it, you are in that clinical commissioning group because you are in that practice and you have no choice". It is remarkably high-handed for it all to be done with no public involvement whatever. It is remarkable how many changes are already being made without any statutory authority given by this legislation.

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I want to continue the theme of consultation, because I have a number of amendments in this group which come back to the same point: Amendment 164A in relation to the board's determination of applications; Amendment 166 in relation to variations in the constitution of clinical commissioning groups; Amendment 166B in respect of variations made in the area covered by a clinical commissioning group, as specified in the constitution; Amendment 167A in respect of mergers, and Amendment 167B as regards the dissolution of clinical commissioning groups.

If I as a patient am part of the clinical commissioning group, one would have thought that I would have a role in deciding whether it is appropriate for that clinical commissioning group to be dissolved, or is that again just for the GPs to decide? What about Amendment 216ZZA as regards commissioning plans? Perhaps I have misread the Bill and there are crucial points which would envisage members of the public and patients within a CCG area being consulted on all these matters.

9.30 pm

On the question of parliamentary scrutiny, many of the rules concerning the application to become a clinical commissioning group are to be covered by regulations. I would have thought that, in view of their importance, these ought to be affirmative. Amendments 164B, 166A, 166C and 167C provide for that.

Over and above matters to do with application of parliamentary scrutiny are questions as to what CCGs are actually going to do and how we can ensure that they understand that their responsibility is to provide comprehensive provision to their patients covered by clinical commissioning groups. My Amendment 163 seeks to cover that. Under proposed new Section 14C to be inserted in the 2006 Act, the board must grant an application if it is satisfied as to a series of matters set out in proposed new Section 14C(2). In proposed new Section 14C(2)(e), the board has to be satisfied that a CCG is able to discharge its functions. What functions are these? This takes us back to Clause 10, whose functions on CCGs are dissipated from the functions set out in Section 3 of the NHS Act 2006, which encompass comprehensive revision.

This is vitally important. What are we entitled to as patients from our local clinical commissioning group? This is very important when it comes to any potential rationing by those CCGs in terms of treatments that we can receive. I, for one, prefer the safeguard that is contained in Section 3 of the 2006 Act, unamended, as opposed to the proposals in this Bill.

Amendment 166ZA is concerned with applications to vary the constitution of a clinical commissioning group and asks for the board to determine and publish, after consultation, criteria which Government are granting as a variation to the constitution. It is not unreasonable for us to know under what criteria such a variation may be granted.

My Amendment 167BA makes the same point in respect of the dissolution of a clinical commissioning group. My Amendment 220ZC will also provide for patients covered by a clinical commissioning group to

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be consulted in any proposed dissolution. Amendment 167D relates to property transfers in the event of a dissolution or variation of the constitution of a CCG and again requires the board to consult before a property transfer can take place. Finally, my Amendment 165 provides that when a clinical commissioning group is granted an application, it is wholly committed to assume the duties under Section 3 of the NHS Act 2006.

Baroness Williams of Crosby: My Lords, I congratulate the noble Lord, Lord Hunt, particularly on Amendment 160A. The idea that patients whose GPs are serving on the Commissioning Board, or are part of a commissioning group which represents that board, should be consulted and we should hear what their own experiences have been, is innovative and interesting. He should be congratulated on putting it forward. It means involving patients as individuals in their own assessment of the service that they have had. Time and again the Bill reflects the demand that that should happen-no decision without me, and so on. This actually makes that real. It gives the words flesh, and I congratulate him on that. It is quite an exciting idea and I hope that it is one that will commend itself to the Government, given the Government's wish to involve patients.

I am not so happy about Amendment 163B. I fear that the opposition Front Bench has not taken on board as much as I hoped that it might the idea that regulations should not go straight to Parliament, even if they are affirmative, but should go by way of the Health Select Committee. The noble Lord will be familiar with the argument-that the Health Select Committee has a huge range of expertise and knowledge. As a former Minister he will know-as well as I or the noble Baroness, Lady Thornton, knows-that the regime of regulatory scrutiny is not very effective. If there is an individual Member of Parliament in another place who knows a great deal about it and is concerned about it, you can have a real debate and that real debate can affect the outcome with regard to regulation. However, nine times out of 10, there is no great debate. In the case of the negative resolution procedure, there is often no debate at all.

I fear that this is a very weak safeguard for the huge amount of regulation that is built into the Bill. I therefore hope that I might commend to the House, and not least to the opposition Front Bench, the idea of looking again at the proposal, which is also radical and new. It is an idea that really ought to commend itself to those of us who believe strongly in accountability to Parliament and in the need to strengthen Parliament's power vis-à-vis the Executive across the whole world.

Lord Hunt of Kings Heath: My Lords, perhaps I can come back to that. On Amendment 160A, I am grateful to the noble Baroness for her support. I am not even sure that I got it right. I am also trying to get at the fact that so much is happening now without any consultation. The CCGs are essentially being decided by the system and then at some stage there will be a formal application process. I am long enough in the tooth in the health service to know about NHS consultation. Frankly, we all know that the traditional NHS consultations make the decision and then consult. I fear that, with CCGs, this is what is happening.

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While I welcome the support for the involvement of the public in a formal application, I find it perplexing that so much is now being decided and that the public are not involved at all.

I listened to the noble Earl before supper talking about this being bottom up. That is not what is happening. I do not think that he understands quite how much this is being driven by the centre. It is quite extraordinary. You can call it guidance, but putative CCGs are being given such clear steers about what will be acceptable. I feel that we will reach a situation where, at some point, it will all be a done deal and the consultation will simply not be realistic.

On the noble Baroness's comments about making the regulations affirmative, I accept that, even if they are affirmative, there is a limit to what parliamentary scrutiny can provide-although that does provide some safeguards. I would be interested in debating the idea of giving the Health Select Committee a role, although excluding your Lordships' House from it would be a problem. I say to the noble Baroness that I think it a pity that the House did not adopt my suggestion about a mandate for a kind of national policy statement approach. There is an argument for having a more interactive debate, if you like, about some of these matters. I very much take to heart her constructive comments on this and the Select Committee role. It could be a very useful debate for the future.

Lord Alderdice: My Lords, lest it be thought that we were all wholly of one mind on these Benches in regard to some of these proposals, let me say that I am much more cautious about the propositions. My noble friend Lady Williams of Crosby has described the propositions for consultation with patients as novel. She is quite right. When the noble Lord, Lord Hunt, says that he recognises NHS consultations from the past as decisions first and consultation afterwards, he recognises how the previous Government carried out their business. As somebody who was in the health service at the time, I was very familiar with it.

We must be realistic about some of the propositions that come forward for consultation. Think through what is actually involved in doctors coming forward with proposals to fulfil the requirements set down in legislation in all its various aspects passed by Parliament, and then being asked to consult with the patients as to what exactly they think. Think through what exactly that might look like for general practitioners and their patients-those patients who would choose to back the general practitioner in his application to go along with the proposals, or would start to run a campaign against their GP. Is there really a thought that this will be something that serves the interests of helping general practitioners and their patients to move forward together? It is an interesting and novel proposal from the point of view of debate in your Lordships' House. However, I am not at all convinced that it has been thought through in terms of how one might actually implement such a thing, and in terms of working with patients and patients working with their general practitioners.

In psychiatry, for example, I think of how much discussion and consultation there has been with patients about who their sector psychiatrist might be, never mind all sorts of other important decisions about

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them. The fact is that it is not a way in which one can possibly run these things. It is important to have consultation with the public in general, but to try to divide it up so that patients are consulted on whether their GP should follow decisions taken in line with decisions that Parliament set down is wholly another matter. My noble friend was right to describe it as "novel", but I am much more cautious about the proposal than she is.

Lord Hunt of Kings Heath: I thought that what the noble Lord said about the last Government was a cheap shot. I was talking about the NHS consultation in my experience over 40 years. It has not been a wholly satisfactory situation. It is quite remarkable what the noble Lord seems to be saying. The health service has strong corporate governance and strong processes for consultation, but suddenly we are bunging £80 million to GPs and they do not have to consult. Are they in such a mystical position that they do not need strong corporate governance; that we can trust them, even though some of that money will be spent with the GPs instead of on other parts of the health service? Suddenly we think that they are jolly good chaps and we can trust them. We can trust them simply to form these clinical commissioning groups, in which in theory they will have great power, and there is no consultation whatever. It is quite remarkable what the noble Lord is saying.

Lord Alderdice: My Lords, let us be clear. It was no cheap shot. It was a comment on how the previous Government carried through their policies. He will know very well that I sat on those Benches and asked the questions of him. I am very much aware of it. What I said had nothing to do with corporate governance. It was the specific proposal that GPs' patients should be asked to express a view on the proposition that their general practitioner be part of a clinical commissioning group. As though there was some serious alternative to it, and that it was something that could be carried through willy-nilly without any potential disadvantage in the GPs' conduct of the practice.

What I pointed out was that this is not something that has any kind of precedent; it was, as my noble friend said, "novel". What I said about it was quite clear. It has not been tried and I am not persuaded that it is something that has been well thought through. It could be very divisive within a practice. That is not at all to say that other elements of corporate governance are not appropriate. I wholly support them and the proposal. I was addressing a specific issue and I notice that it was the one issue that the noble Lord did not respond to.

Lord Hunt of Kings Heath: So I as a patient have no right to say or comment on which clinical commissioning group my GP wants to join? It is nothing to do with me and just up to the GPs to decide? That is what he said. On the question of general consultation, let me remind him of the NHS plan. If this Government had done this properly, they would have published a Green Paper. They would have gone through a process of working with the health service, they might have spent six to nine months doing it and they would have got

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much greater buy-in. It shows that they have dealt with these reforms in a high-handed manner. The result is that there is no buy-in whatever and that is why the Government are in the trouble they are. I pray in aid the way that the NHS plan was dealt with and the fact that 500 people came together on a number of bases to work on the plan. That is why it had so much greater ownership.

9.45 pm

Lord Alderdice: My Lords, I addressed one specific proposal, not the whole world and the whole conduct of the Bill. I addressed one specific proposal, and the noble Lord comes back and tells me, "Has a patient no right to express a view?". Of course the patient has a right to express a view. There will be public consultation. That is not the issue. The issue is that the noble Lord produced a specific proposal. One of my colleagues found it novel and interesting. I find it novel, but I am not at all persuaded that it has been well thought through, and I am interested that the noble Lord jumped so immediately to defend not the proposal but his posture.

Lord Patel: My Lords, I thought that I might get up to say one sentence to stop this conversation from going further. My name is on several amendments, particularly those proposed by the noble Lord, Lord Warner, about competency. I have a simple question, which I am sure the Minister will be able to answer easily. What competencies do the commissioners have to demonstrate before they are authorised to become commissioners? I know that there will be guidance, but what competencies will be looked at that demonstrate that they can be commissioners? I am being very brief today because of being chastised for talking too long; but now I have evidence that suggests that I was not the worst, so I will carry on another time.

Lord Greaves: My Lords, I want to say one or two things about the consultation and go back to what I was saying before dinner. The question of patients is a bit of a red herring. To that extent, I think that the noble Lord, Lord Hunt of Kings Heath, was asking to be tripped up over it. Everybody is a patient to some extent, but the important thing is that the residents of an area, or citizens-whatever they are called nowadays-should know what is going on and that there should be an opportunity for a public debate to take place in the normal places-local newspapers, local radio, public meetings-about the future, structure and organisation of the health services in their area.

The noble Lord, Lord Hunt, was absolutely right when he said that there is a huge amount going on at the moment. It is not going on in complete secrecy; people involved in it know what is happening and are telling other people, and people in local authorities and others are having some discussions. However, by and large, there is not a proper process for providing people with open and full-or even partial-information about the proposals that are taking place. I do not think that it is a question of patients being able to tell their doctors which CCG they want to be part of, because the CCGs will be area-based, as we all know,

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and the doctors will be part of the CCG in their area. The questions are: what area is that going to cover, where is the CCG going to be, and how is it going to fit in to the health service? That is a fundamental question. So to that extent the noble Lord, Lord Hunt, is absolutely right. I think that the question of patients is a red herring.

Whenever I go to see my doctor, I consult him about what is happening in the health service, he consults me about that and all sorts of other things, and occasionally we get around to talking about my health; but I do not suppose that I am a very typical patient. That is a fact of life. However, it is a fundamental problem, and the source of a huge amount of the mistrust about what is going on at the moment is that people simply cannot find out what is going on. That is not in the amendments to this Bill. The Minister and his colleagues simply need to tell the health service to be a lot more open and transparent about what is going on and allow local debate on it.

Earl Howe: My Lords, these amendments are all concerned with the process of the establishment of CCGs or changes to the established organisation. The Bill lays the groundwork for the NHS Commissioning Board to establish CCGs. Ensuring the competence of an applicant group to exercise the functions of a CCG is a key part of that process.

In the first instance, the board may publish guidance on the making of applications and this may include details of how it will assess the fitness of CCGs for establishment and therefore their suitability to assume responsibility for exercising their commissioning functions. That is really what Amendment 159 is trying to get at. The whole process is intended to ensure that the CCG has made appropriate arrangements to discharge its functions competently. If the board is not satisfied about that, it will not grant the CCG's application, or else it will grant it subject to conditions under the transitional arrangements.

I can confirm that we intend to make provision in regulations to require the NHS Commissioning Board to take the views of the shadow health and well-being board into account when they consider the establishment of a CCG. Health and well-being boards will be able to provide insight into the willingness and ability of a prospective CCG to be involved in partnership working and engaging with the local population. That is the theme of Amendments 160A and 162.

However, in my view, wider mandatory consultation with the public, either by a prospective CCG or by the board on receipt of an application to be established, would be completely disproportionate and add unwarranted delay to the establishment of new arrangements. We already have intelligence that early implementer health and well-being boards are engaging in constructive dialogue with CCG pathfinders about the right size, area and configuration to best meet local patient needs. That is fine, but problems arise when you start to mandate it. I am very uncomfortable about that. Consultation with the public has its rightful place but I was completely unconvinced by the argument of the noble Lord, Lord Hunt. For my money he simply has not made the case.

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We also need to ensure that we do not have a cumbersome process for agreeing changes to CCGs, which may evolve over time as organisations and may choose to merge formally or to adapt their constitutions, which of course would need to be agreed with the board. A number of amendments in this group seek to require consultation, with the public, the relevant local authority, the relevant health and well-being board and patients receiving primary medical services from providers within the CCG, for different processes: establishment, variation, merger or dissolution of CCGs. The Bill as it stands would set clear duties for patient and public engagement in new Section 14Z. CCGs would have to engage the public in their planning of the commissioning arrangements; in the development and consideration of commissioning proposals, which would have an impact on the manner in which the services are delivered to the individuals; and in the range of health services available. They would also have to engage on decisions of the CCG affecting the operation of the commissioning arrangements where implementation of the arrangements would impact on individuals or the range of services available. The CCG would also have to consult the patients it is responsible for on its commissioning plan. That is quite right and proper and I hope that, in that area at least, there will be some agreement across the House.

As regards local authorities and health and well-being boards, these boards will include representation from the local authority and CCGs. I suggest that is the ideal forum for CCGs to discuss proposals such as mergers with their fellow members. However, it would not be appropriate to impose an explicit requirement for CCGs to consult the board on such matters.

Turning to Amendments 164B, 166A, 166C and 167C, tabled by the noble Lord, Lord Hunt of Kings Heath, I commend the report of the Delegated Powers and Regulatory Reform Committee of your Lordships' House. These amendments would make the resolution procedure for certain regulation-making powers relating to applications between CCGs and the board affirmative. This approach was rejected by the DPRRC, which found that the negative resolution procedure would give noble Lords ample opportunity to consider regulations laid before the House covering determination of applications for establishment of a CCG, for variation of CCG constitutions and on dissolution of CCGs.

The noble Lord, Lord Patel, asked me about competencies. In September the department published Developing Clinical Commissioning Groups:Towards Authorisation, which sets out our current thinking on the domains that the Commissioning Board may wish to use as indicators to judge the competencies of prospective CCG commissions.

While I know that there will not be a meeting of minds over this, I hope that I have at least fleshed out what the Government's intentions are. There will, obviously, be opportunity for further reflection on these matters.

Lord Warner: My Lords, I was not convinced by the noble Earl's views on the number of clinical commissioning groups in our earlier debate. I was even less convinced by what he had to say about competencies. There was a lot of talk about, "The board may wish to do this",

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and, "The board may wish to do that", on competencies. The problem of healthcare commissioning in this country has actually been the lack of competency. That has been the problem for 10 to 20 years, under successive Governments. If we miss the boat again on this issue, we are making a great blunder.

I do not want to go over the ground about consultation with the public at all. I am interested in having in the Bill that the critical requirement of becoming a clinical commissioning group is competency to do the job, and that the board is required to specify what those competencies are, before people make an application. My noble friend Lord Hunt has made the perfectly sensible observation that while we are sitting, chatting about this Bill, people out there are doing the business about who will be clinical commissioning groups. That is what is actually happening. We need to make sure that they are under no illusions that competency is the yardstick by which they will be judged. I am not satisfied with the Government's response and wish to test the opinion of the House.

9.57 pm

Division on Amendment 159

Contents 46; Not-Contents 106.

Amendment 159 disagreed.

Division No. 1


Bach, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Brookman, L.
Browne of Ladyton, L.
Chester, Bp.
Clark of Windermere, L.
Clarke of Hampstead, L.
Collins of Highbury, L.
Craigavon, V.
Dubs, L.
Elder, L.
Emerton, B.
Farrington of Ribbleton, B.
Finlay of Llandaff, B.
Grantchester, L.
Greengross, B.
Grenfell, L.
Hollins, B.
Howarth of Newport, L.
Hoyle, L.
Hunt of Kings Heath, L.
Kakkar, L.
McAvoy, L.
MacKenzie of Culkein, L.
Masham of Ilton, B.
Maxton, L.
Noon, L.
Palmer, L.
Patel, L.
Patel of Bradford, L.
Pitkeathley, B.
Puttnam, L.
Radice, L.
Rea, L.
Rogan, L.
Royall of Blaisdon, B.
Sandwich, E.
Snape, L.
Thornton, B.
Tunnicliffe, L. [Teller]
Warner, L.
Wheeler, B.
Whitaker, B.
Wilkins, B.
Williamson of Horton, L.


Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Ashcroft, L.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Barker, B.
Benjamin, B.
Berridge, B.
Black of Brentwood, L.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Brinton, B.
Brookeborough, V.
Brougham and Vaux, L.
Burnett, L.
Caithness, E.

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Cormack, L.
Cotter, L.
Crickhowell, L.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Empey, L.
Faulks, L.
Fink, L.
Flather, B.
Fookes, B.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
Gold, L.
Greaves, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Henley, L.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Hunt of Wirral, L.
James of Blackheath, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Lee of Trafford, L.
Lexden, L.
Liverpool, E.
Luke, L.
Lyell, L.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mayhew of Twysden, L.
Morris of Bolton, B.

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Moynihan, L.
Newlove, B.
Noakes, B.
Northover, B.
O'Cathain, B.
Perry of Southwark, B.
Popat, L.
Randerson, B.
Rawlings, B.
Rennard, L.
Ribeiro, L.
Roberts of Llandudno, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selsdon, L.
Sheikh, L.
Shipley, L.
Shutt of Greetland, L. [Teller]
Stedman-Scott, B.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strathclyde, L.
Taverne, L.
Taylor of Goss Moor, L.
Tyler, L.
Ullswater, V.
Verma, B.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Warsi, B.
Wei, L.
Wheatcroft, B.
Wilcox, B.

[For the continuation of today's proceedings, see Official Report, 1 December 2011.]

30 Nov 2011 : Column 341

[Continuation of Official Report from col. 340, of Wednesday, 30 November 2011.]

Health and Social Care Bill

Committee (9th Day)(continued)

Wednesday 30 November 2011

10.07 pm

Amendments 159A to 169 not moved.

Amendment 170 had been withdrawn from the Marshalled List.

Amendments 170A to 171A not moved.

Amendments 172 and 173

Moved by Earl Howe

172: Clause 22, page 33, line 44, at end insert "or (b)"

173: Clause 22, page 34, line 2, at end insert "or (b)"

Amendments 172 and 173 agreed.

Amendment 174 not moved.

Amendment 175

Moved by Earl Howe

175: Clause 22, page 34, line 16, leave out "function under section 14L(3)(a)" and insert "functions under section 14L(3)(a) and (b)"

Amendment 175 agreed.

Amendments 175A to 175CC not moved.

Clause 22, as amended, agreed.

Amendment 175D not moved.

Schedule 2 : Clinical commissioning groups

Amendment 175E

Moved by Lord Marks of Henley-on-Thames

175E: Schedule 2, page 280, line 34, at end insert "and shall apply the provisions of paragraphs 19A and 19C and the guidelines in paragraph 19C of this Schedule"

Lord Marks of Henley-on-Thames: We will withdraw this amendment but I am bound to say that on the question of conflicts of interest, we were really rather disappointed that my noble friend the Minister maintains the very clear view that he expressed. Of course we accept that there is power in the Bill to deal with conflicts of interest, but there is no assurance that that will be done. I stress that there can be no public confidence that it will be done unless there is something on the face of the Bill, so I hope he will depart from that clear view and take these amendments away with him for consideration for the next stage. I beg to move.

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Earl Howe: My Lords, if I could just respond to my noble friend I will of course reflect, as I always do, on the debates that we have and the points put forward and I should be glad to discuss the matters that he raised outside the Committee if that would be helpful to him.

Lord Marks of Henley-on-Thames: I am very grateful. On that basis I beg leave to withdraw the amendment.

Amendment 175E withdrawn.

Amendments 176A to 176AD not moved.

Schedule 2 agreed.

Clause 23 : Clinical commissioning groups: general duties etc.

Amendment 176B

Moved by Lord Hunt of Kings Heath

176B: Clause 23, page 35, line 41, at end insert-

"( ) promote awareness of the NHS Constitution amongst providers of primary medical services within the clinical commissioning group"

Lord Hunt of Kings Heath: My Lords, we come to a second large group of amendments concerned with clinical commissioning groups and the way they do business. They also relate to responsibility for primary medical services and also relationships with the other healthcare professions. Amendment 176B adds to the responsibility stated in Clause 14O(1)(b), on page 35, in lines 40-1,

I would have thought a good basis for the promotion of awareness of the constitution might be to assure that GPs themselves were knowledgeable about the NHS Constitution and hence my amendment to promote awareness among GPs by clinical commissioning groups.

The noble Earl has got two answers to any issue raised as to how the Secretary of State will ensure that there is comprehensive provision. One is the mandate and the other is the NHS Constitution. Given that, and given that he puts so much store by the NHS Constitution, which is very welcome, it would be nice to know that general practitioners had some knowledge of it and some understanding of their responsibilities under it as commissioners.

One of the most important responsibilities laid upon clinical commissioning groups is to promote the involvement of each patient in decisions about the provision of health services to patients. However in Clause 14T(2), on page 36, it is surprising that while the board may publish guidance to clinical commissioning groups on this, it is not required to. Equally surprising is in Clause 14T(3) that the clinical commissioning group is only required to have regard to such guidance. My Amendments 194A and 194B require the board to publish guidance and require clinical commissioning groups to implement the guidance. I hope the noble

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Earl will be able to accept that involvement of the public is of such importance that it ought to be a mandatory requirement.


Amendment 197ZA concerns patient choice. Clause 14U, page 36, line 40, states that each clinical commissioning group must act with a view to enabling patients to make choices with respect to aspects of health services provided to them. That, I am sure, is worthy of support by all noble Lords, but I take it that this applies to the commissioning of services. What about GP services themselves? The noble Earl will know that there has been a long-standing issue with patients often finding it difficult to change GP practices. It would have been sensible to have given clinical commissioning groups some remit to encourage choice within primary medical services. We have a situation where clinical commissioning groups can decide to place large contracts with themselves as GP providers. We have already discussed the issue of conflict of interest. One is looking for some comfort that somewhere in this system there is going to be some proper performance management of the quality of primary medical services. Again, I would be interested in the noble Earl's views on that.

On the same basis, my Amendment 207A returns us to public involvement and consultation by CCGs set out in Clause 14Z(2) on page 38 of the Bill. I would just stress the importance of ensuring that if CCGs are consulting about commissioning decisions, why should they not also consult on the provision of primary medical services? The noble Earl may say that it is inappropriate for CCGs to do this, because of potential conflicts of interest, and the fact that they do not actually hold the contract of GPs. That is going to be held by the national Commissioning Board. I understand that, but I do say to him that if the Government propose to establish local field offices of the board to hold those GP contracts, it is a much more complicated picture which could well undermine the prospects of integration of primary medical services with commissioning.

My Amendment 208ZA concerns the voluntary sector. I know that on Monday your Lordships had a long debate at the end of the evening on issues about the voluntary sector and supporting it. I do not intend to say anything more about it at the moment, save that the much-maligned primary care trusts have given a lot of support to third sector organisations. I would particularly mention some of the support they have given to organisations in relation to public health, or to organisations that have perhaps provided support for patients in their own homes in the community enabling discharge of patients from hospital. Can we have some assurance that clinical commissioning groups will at the very least be encouraged to give support to these kinds of programmes in the future?

Amendment 197D continues with the theme of clinical commissioning groups' consultation, but particularly stressing the need for other professional groups, the non-GPs, to be consulted. I heard what the noble Earl said earlier about the reason why professions such as dentistry were not to be given equal status with

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GPs. I think there will be issues about the relationship between GPs and the other contractor professions given that GPs are going to have so much commissioning responsibility. It will be very important to ensure that there is a confidence-building exercise among those professions, so they do not feel excluded from the work of clinical commissioning groups. He did not answer my question on rural dispensing and the conflicts and tension between the pharmacists and the GPs who dispense rurally. I do not really expect him to do so tonight, but I would just point out to him that he knows that there is a real tension here. It is something in rural clinical commissioning groups that will need to be watched carefully.

My Amendments 216ZZA and 216ZA continue the theme in relation to commissioning plans. They are intended to ensure that the agreement of all individuals for whom the CCG has responsibility for ensuring comprehensive service provision, and of the health and wellbeing board, should be required to agree to a commissioning plan or revision of a plan. My Amendment 216ZBA follows the same theme and also suggests if there is a disagreement between the clinical commissioning group and the health and wellbeing board, then the national commissioning board should decide how that will be dealt with.

I do not think this new system has any chance of working unless the health and wellbeing boards are seen to be a core focus for pulling together public health, commissioning and social care and the integration of services. How can we make it effective? It is not unreasonable actually to give the health and wellbeing board some right of veto over the commissioning plan of CCGs within the local authority area to ensure the two come together.

Amendment 216ZB is consequential to 216ZBA. My Amendment 220 concerns performance assessment. Currently, on page 44, line 38, the Bill says that the board must publish a summary of performance assessment of CCGs. I wonder why the board would not publish the whole assessment: again, there seems to be a disparity of treatment. The way the Department of Health is working is that it has very tight control of all elements of the health service, but suddenly GPs within CCGs are going to have this light-touch mechanism. It is a continuing puzzle to me what it is about GPs that they suddenly deserve such special treatment. Unless we sort out the issues to do with conflict of interest, I can assure the noble Earl that there is going to be trouble ahead. With all our experience of allowing great power to individuals without proper and effective corporate governance, we know that this is going to end up in big trouble.

Finally, I come to my Amendment 245A, which is of interest to the pharmaceutical profession. In the Bill, there is a reference on page 289, line 30, to a substitution of Section 2 of the NHS Act 2006 to say:

"The Secretary of State, the Board or a clinical commissioning group may do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any function conferred on that person by this Act".

This is a substitute for the general power in the current 2006 legislation, which says:

"(1) The Secretary of State may-

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(a) provide such services as he considers appropriate for the purpose of discharging any duty imposed on him by this Act, and

(b) do anything else which is calculated to facilitate, or is conducive or incidental to, the discharge of such a duty.

(2) Subsection (1) does not affect-

(a) the Secretary of State's powers apart from this section, and

(b) Chapter 1 of Part 7 (pharmaceutical services)".

In the course of substituting Section 2, the safeguarding of pharmaceutical services in Chapter 1 of Part 7 of the NHS Act is removed by virtue of the removal of 2(2)(b). Perhaps the noble Earl would like to write to me about that, but there certainly seems to be a concern among the pharmaceutical service negotiating committee that a point may have been missed there. I beg to move.

Baroness Hollins: My Lords, I shall speak to three amendments in this group. The purpose of Amendment 203B is to ensure that any healthcare provider to which a commissioning group gives a contract allows its clinicians enough time to work for the benefit of the NHS and its patients. The work to improve patient care does not just take place in a clinician's own place of work. A great deal of background planning and preparation must be done in order for patients to see improvements in their care. Developments in service improvement, clinical standards, research, education and training only happen because clinicians and others are able to contribute their time and expertise to work outside their own organisations for the benefit of the wider NHS. There is always an understandable pressure to make service delivery the priority, but clinicians are increasingly finding it difficult to find the time from their employers to participate in activity outside their own organisation. This includes work such as developing clinical guidelines, setting standards, ensuring research ethics, developing and providing educational curricula and assessments, and providing expert clinical advice for a range of regional or national bodies, including the Department of Health itself. Most national bodies now report that they find it increasingly hard to secure clinician input to their work. Given the importance of their contribution, I do not think it unreasonable to ask all healthcare providers, including private providers who have won contracts with commissioning groups, to allow their clinicians reasonable time to help the NHS and its patients in this way.

The active engagement and leadership of clinicians underpins the Government's reforms. New structures, such as clinical senates and clinical commissioning groups, require the active involvement of clinicians, but this will not happen unless clinicians are supported and given the time to participate in this work for the benefit of the wider NHS. This is work to improve patient care, and patient care will suffer if it cannot be provided. The Academy of Medical Royal Colleges, of which I am a past member, would like to see the Bill contain a duty on employers to facilitate staff involvement in defined work on behalf of the wider NHS outside their own organisations.

I will now speak to Amendments 210 and 217. The purpose of Amendment 210 is to place on the NHS Commissioning Board a specific duty to issue guidance on the production of joint strategic needs assessments. Should that amendment be accepted, Amendment 217

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places upon clinical commissioning groups a specific duty to demonstrate ways in which they have taken into account such guidance on production of JSNAs when presenting their commissioning plans. The Bill in its current form places a duty on the NHS Commissioning Board to publish guidance for commissioning consortia on the discharge of their commissioning functions. This is inadequate since it does not place upon the board a specific duty to produce guidance on the production of JSNAs. The transfer of commissioning from PCTs to clinical commissioning groups is arguably the most fundamental change in the Bill. Commissioning carried out by clinical commissioning groups must accurately identify and meet the needs of patients with mental illness and their carers. It is vital that the JSNAs that inform their commissioning decisions are of a high quality and capture as well as practically possible the prevalence of mental health problems within populations and the needs of people with mental health problems within those populations.

JSNAs are currently carried out by local authorities. Many local authorities acknowledge a lack of data available to them regarding the prevalence of mental health problems and learning disability in the populations they serve. For example, in 2008 the Cambridgeshire Joint Strategic Needs Assessment for mental health reported:

"There is a lack of good-quality local data on mental health prevalence and national data is used to calculate the estimated prevalence of mental ill health in the local population using the population statistics".

Or take Barking in Dagenham in 2010-11:

"The next JSNA needs to explore more specific data and actions for people with learning disabilities and people with autism. A recent self-assessment carried out by the trust highlighted this as a major gap".

Or take Southwark:

"There are limited data available about the prevalence of mental illness and the demographic profile of sufferers in Southwark".

Often, particularly in relation to moderate mental illness, there are little-if any-locally collected data, and estimates have to be used.

In Part 5, the Bill outlines the framework for joint strategic needs assessments and sets out a joint responsibility between local authorities and clinical commissioning groups. Commissioning plans are formulated on the basis of joint strategic needs assessments, and if we look at the organisations that will be involved with drawing up the commissioning plans, the problems are clear. Many local authorities acknowledge their difficulties with obtaining adequate and robust prevalence data on mental health issues and learning disability, while clinical commissioning groups will lack any experience of carrying out this kind of audit. As a result, patients with mental health problems and their carers may have little confidence that the commissioning plans produced with local authorities, under the Bill's provision as it currently stands, will reflect the true prevalence of mental health problems and learning disability in the population of which they form part.

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There is some existing guidance on the construction of joint strategic needs assessments, produced in 2009 by the National Mental Health Development Unit. It said that,

The toolkit was designed to,

should be addressed. It went on to say that it would hope to,

However, this organisation no longer exists and I do not think the Department of Health currently has any such guidance. It is dangerous to expect that clinical commissioning groups, which have no prior expertise in this area, will, in undertaking joint strategic needs assessments, stop the problems which local authorities have already encountered.

10.30 pm

Amendment 210 would ensure that the NHS Commissioning Board is required to produce annually revised, up-to-date guidance for clinical commissioning groups, including examples of good practice on how to conduct a JSNA so that it best captures the current and future needs of their entire population. Amendment 217 would ensure that clinical commissioning groups are required to demonstrate that they had taken this guidance into account when conducting their joint strategic needs assessments.

Lord Patel of Bradford: I shall speak in support of Amendments 210 and 217 which, as the noble Baroness, Lady Hollins, has just said, concern the quality and use of joint strategic needs assessments. These assessments are potentially vital to the work of CCGs and, more importantly, for the benefit of the populations they serve. The joint assessment is designed to lead to stronger partnership between communities, local government and the health service by providing a firm foundation for commissioning. This not only leads to improvements in health and social care provision, but also reduces health inequalities. It is an essential tool in the development of a truly integrated service across health and social care, which is why it is so important that the CCGs have adequate guidance on how to ensure that high-quality needs assessment is undertaken and used.

The benefits are clear-helping commissioners, especially CCGs, to specify the outcomes that they want to see, including those that encourage local innovation and, in so doing, helping providers to better shape services that address needs fully. However, the experience of joint assessments has not been uniform across the country and there are challenges in making these assessments as effective as they can be. A joint assessment inevitably involves complex sets of information and data from a wide range of sources, and this brings challenges in analysis and presentation which allow data to be intelligible and used for the intended purposes.

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Joint needs assessments are a lot more than a technical exercise in data management. The most effective assessments involve local communities and use direct feedback and knowledge from those communities. I saw the power of this kind of assessment at first hand when I was fortunate enough to lead the Department of Health's black and minority-ethnic needs assessment programme on drug use across England. The strength and success of the approach undertaken in this programme was that local people were integral to its work. When it comes to identifying needs, there can be no greater source of information than that which comes directly from the people who are most affected by the issue. For example, in the case of drug use, it was important to recognise the experiences of a wide range of people who were affected, including women, young people, older people, people with disabilities, families, carers, and particularly drug users. The Department of Health programme demonstrated, however, that it is not an easy or simple process. It does not just happen, and it is vital to distinguish real engagement from mere consultative involvement.

Here in London, I have recently seen further evidence of the significance and impact of such effective community engagement in identifying and addressing needs. The Well London project, which is funded through the Big Lottery Fund, is an exciting £9.6 million programme that has been working with local people in 20 of the most deprived boroughs across the capital. Speaking about Well London, following a recent award for the project from the Royal Society of Public Health, Professor Sir Michael Marmot, director of the UCL Institute of Health Equity, said:

"If we are to reduce health inequities it is essential to take action on the social determinants of health-the 'causes of the causes' of ill health. That means working in partnership at local level to improve the social conditions in which we are born, live, grow, work and age. The Well London Alliance Partnership does just that. Empowering individuals and communities, and giving people a voice is integral to addressing health inequalities. I am delighted the Partnership has achieved well-deserved recognition for its work".

Running over the past three years, Well London has transformed health through promoting health and well-being, improving healthy eating choices, promoting access to open spaces and increasing physical activity. The University of East London, which is a lead partner in the research phase of the project, is revealing some absolutely fascinating results and I will share a few of its findings with the House.

Results show that from a total of 10,843 participants, 8,400 reported an increase in healthy eating, 7,800 reported increased access to healthy food, 9,400 reported an increase in physical activity, 8,900 reported feeling more positive and 8,500 reported an increase in the understanding of mental well-being. The real key to success is having community engagement at heart. Professor Adrian Renton, the director of the Institute for Health and Human Development at UEL, said of this work:

"When we designed the project, we took account of the evidence that local social economic and physical environments provide strong barriers which prevent people from adopting healthier lifestyles and leading happier lives".

This is an excellent example of how to undertake a strategic needs assessment across health and social

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care that is driven by local communities and brings together commissioners, providers and the university sector to work alongside those communities in making a real difference to health and well-being. This is why it is essential to have adequate guidance on how to conduct such assessments, and that clinical commissioning groups should be required to demonstrate how they use such guidance. I hope that the noble Earl will see the benefit of these amendments and lend his support to making joint strategic needs assessments truly effective tools in health improvement and service planning.

Baroness Whitaker: My Lords, I, too, support Amendments 210 and 217, for the reasons which the two noble Lords who have just spoken have given in respect of mental health and learning disabilities. There is another vulnerable group that I would like to draw attention to. The Minister told me in his extremely helpful answer to my Written Question:

"The Government are developing statutory guidance ... to support health and well-being boards in undertaking joint strategic needs assessments ... including the need to take full account of the needs of vulnerable groups".-[Official Report, 17/10/11; col. WA 16.]

This is excellent. Will this be published for consultation and, if so, when? Commissioning boards also need guidance and I cannot see why, if it is statutory guidance, it is not in the Bill? There is one further reason why it should be. I shall briefly cite one of my colleagues who works with Gypsies and Travellers. She points out that currently, most local authorities and PCTs take their data about the ethnic breakdown of their population from health records. We know that not only are Travellers not included as a category in many of these data collecting tools, but many Gypsies and Travellers do not want to disclose their ethnicity for fear of discrimination, so they are wholly underestimated and consequently, based on the inadequate data they have, PCTs and local authorities do not see the need to do a thorough needs assessment. That is why there has to be an explicit provision in the Bill, so that authorities will look for the information. It is not going to be there to hand; they will have to look for it. Guidance is essential if we are to have the full picture.

Baroness Jolly: My Lords, I shall speak to Amendments 203D, 216ZAZA, and 216ZAZB. This is all about strengthening the relationship between health and well-being boards and clinical commissioning groups. These relationships will be key. Unless they are right and work properly, we will not get the system that patients deserve.

Partnership is key. Amendment 203D puts a new duty on clinical commissioning groups to ensure that their communication plans address the priorities of health and well-being board strategies. Amendments 216ZAZA and 216ZAZB work together, and are about strengthening language. We go from a fairly weak,

"The clinical commissioning group must involve each relevant Health and Wellbeing Board in preparing or revising the plan."

to a stronger,

"Clinical commissioning groups must ensure each relevant Health and Wellbeing Board is a key partner in preparing or revising the plan."

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It puts the onus on clinical commissioning groups to ensure that health and well-being board plans are involved. The aim of the amendments is to give health and well-being boards more teeth in expecting commissioners, including councils, to do their bit to deliver the agreed priorities of the health and well-being board as expressed in the joint strategy.

Health and well-being boards are intended to bring a strong sense of place, local priorities, and democratic accountability. Advised by the director of public health, they will have population accountability for the whole area, and this is likely to be expressed as local priorities for action to address inequalities of outcome or access within the area.

As the Bill stands, the onus is on the commissioners to have regard to population outcomes and local priorities, consider joint commissioning, and to involve health and well-being boards throughout the preparation of their commissioning plans. This will, at best, create locally flavoured service accountability. There is no weight in the legislation.

Lord Hunt of Kings Heath: I am grateful to the noble Baroness for giving way, but I am very puzzled. I thought that Liberal Democrat policy was to give local authorities much greater involvement. Why does she not support my amendment, which would give much greater teeth to local authorities by giving them veto power over the commissioning plan? I fail to see why the Liberal Democrats are not supporting local government. In their manifesto they talked about much greater local government involvement. Why will they not support my amendment?

Baroness Jolly: I will explain to the noble Lord where this amendment came from. Certainly, as a group we were concerned that the relationship between health and well-being boards and clinical commissioning groups should be strengthened, so we spoke to the LGA. The LGA worked with us in producing these amendments. I would expect that the LGA, which clearly has a view about localism, would have given that priority.

Lord Hunt of Kings Heath: My Lords, we are not here merely to express the views of pressure groups.

Baroness Jolly: It is not a view of pressure groups. It was the view of our group when we were discussing what we wanted to pursue. We decided we wanted to look at how these links could be strengthened. Without the expertise among ourselves, we consulted with the LGA.

No weight is given in the Bill to the health and well-being boards' whole population planning for its area, and to the jointly agreed local priorities. If the health and well-being board judges them not to be adequately addressed in service commissioning plans, it should have the power to refer them back. This may be particularly important in relation to the NHS Commissioning Board and Public Health England's plans for the area.

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I hope that the Minister would agree that the need for these two organisations to work closely together, delivering local plans for local authorities, is taken as read. I wonder whether he would feel minded to make this more explicit at Report.

Baroness Finlay of Llandaff: My Lords, I shall speak to several amendments in this group. Some have already been spoken to. Some that have been led by my noble friend Baroness Hollins have already been addressed. I emphasise the importance of their benefit to the NHS as a whole-in fact, the whole of healthcare-by professionals being able to participate in the broader standard-setting and educational functions that she outlined in her speech.

It is also important that those from further afield are able to participate. It is quite easy for employees in the south-east to get to educational committees or colleges and participate in developing NICE guidance, but for those in rural areas, it may take hours to come down to committee. Even if they try to do video, links they do not necessarily work well. Those are the clinicians who will be the local leaders driving up the quality of services in their areas, so there is a direct benefit to the services in which they work, as well as to the broader NHS. However, their time has to be accounted for and unless it is recognised this is important national work, there is a real danger that some of these standards driven will be by those who happen to live and work in the London or Greater London area.

I turn to Amendments 208, 209, 212, and 214, which concern the importance of commissioning for less common conditions. Earlier this evening the noble Lord, Lord McKenzie of Culkein, already addressed the different population sizes that are ideal for different groups for commissioning. I emphasise that a lot of people in the country have rare and complex conditions, rare to the GP, but not rare in secondary care. Take, for example, cystic fibrosis, or patients with neurological disease who will need non-invasive positive pressure ventilation. This will be completely outside a GP's competence to establish and maintain. They need a highly specialized service within an area that they can access from where they live. Similarly with genetic services, the importance of good genetic advice at all stages, particularly when genetic conditions are diagnosed, is important. Sadly, many in primary care do not yet have a full understanding of the importance of such advice. Children with conditions such as diabetes may be seen quite commonly in a paediatric clinic, but insulin-dependent diabetic children under five will be a rarity for a GP who is likely to have one on their list at any time. It will also be important that guidance is developed as to how commissioning for this broad range of conditions will occur. Otherwise we will have an increasing number of patients who cannot access the excellence that they know that they could-or even worse, they may just be excluded from it. It is not until they are running into major complications that they become aware of a service that they should have had for many years.

These are all probing amendments. I draw the Minister's attention to Amendment 211, where we are trying to require an audit of the decisions taken and linking

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back to HealthWatch England and the CQC itself to see whether the guidance is being followed and implemented in practice.

I hope that, when the Minister responds to this group of amendments, he will outline what will happen to the patient whose clinical commissioning group does not commission a service that that patient needs. I have already given the example of end-of-life care for patients in Southampton with motorneurone disease. Currently, those patients are moving house to go to Gloucester or they are just dying badly, never accessing the specialist care that they ought to get. Will the Minister respond by saying that it is up to the clinical commissioning group and therefore that this inequity will continue, or is there a way that patients will be able to bypass their clinical commissioning groups and have a central point of appeal? Will it be through the Commissioning Board that they genuinely access the core clinical care that they should have? We have the skills in the country; we can provide it for people.

The same sort of situation arises for children with diabetes accessing insulin pumps. We know that they are under-utilised at the moment. There are a lot of children whose diabetes could be better controlled if they were accessing insulin pumps earlier and if the support services were in place for it. If the clinical commissioning group does not commission them because it does not understand that, in the very long-term, to avoid complications much later, it is a priority in this child's life, how will those people access the service? I look forward to the Minister's reply.

Baroness Masham of Ilton: My Lords, I have put my name to Amendment 209. Many GPs do not know about many less common conditions. Many surgeons do not know either. To give myself as an example, on several occasions when I have had a disaster I have had to explain that I do not feel from my lesion down, with all the dangers that that involves. Most of them cannot take it in. Amendment 209, to give guidance, might prevent mistakes. The expert patient has become useful with many conditions in helping in these matters.

Lord Patel: My Lords, I rise to speak to one amendment in particular. I will be very brief. I support some of the comments made by the noble Baronesses, Lady Hollins and Lady Finlay, about the clinicians' need to have time where they can contribute to the work of the wider NHS. I strongly support Amendment 210. The noble Lord, Lord Patel of Bradford, gave an excellent example of the value of the JSNA. I wish we could have a similar kind of needs assessment in the community for the care of people with chronic diseases. It might be good to use it to do so.

I speak briefly to Amendment 219 about the performance assessment of the clinical commissioning groups. Quite rightly it says that the local health and wellbeing board should be consulted. My amendment asked the question: why not go wider than that? Although I used only the provider as an example of going wider to consult the performance of CCGs, it equally applies to consulting Monitor or even the CQC. I look forward to a reply from the Minister as to why it should not be wider than just the health and wellbeing board.

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Lord MacKenzie of Culkein: My Lords, I rise to speak to Amendments 209 and 212, to which I have put my name. I spoke earlier about the issue of commissioning for less common conditions when I expressed my concern that CCGs governing small populations would not be able to deliver a service to patients in these categories. We heard from my noble friend Lord Warner earlier today and in earlier debates about the reduction of PCTs from 302 to something like 51. This would cover enough of the population to ensure effective commissioning. However, despite all his best efforts, many long-term conditions are still falling between all stools. We heard from the noble Baroness, Lady Finlay, about the difficulties in different parts of the country. She referred to Southampton, for example.

Those with an interest in this matter will have been briefed by the neurological alliance about the paucity of the present Lincolnshire service. The PCT there has never implemented its own plan to address the problems for patients with less common conditions. A Lincolnshire neurological alliance tried to get the prototype CCGs engaged with that issue, but so far to no avail. When they called a meeting to try to bring the matter forward, not one of the CCGs sent anyone to the meeting. This is what many of us feared and why we need these amendments or something like them on the face of the Bill. If we will deliver a better, more coherent and joined-up service, we cannot just rely on the promise that all will be all right when the Bill becomes law. The Commissioning Board must have the ability to see how CCGs plan to commission services for people with less common conditions, and be able to take a country-wide view of what is going on.

Services for patients are patchy in many parts of the country, and if this Bill becomes an Act there will need to be considerable improvement on that. I hope that the Minister can tell us tonight that the necessary steps will be taken to ensure that that patchiness will end, and that guidance is developed as set out in Amendment 209.

Earl Howe: My Lords, the broad theme of these amendments is to ensure the effectiveness of the commissioning process and the competence of commissioners, which includes the engagement with local authorities, patients and experts to ensure that clinical commissioning meets patient needs. Of course, that theme is entirely to the point.

In support of this, there is an extensive framework in the Bill to encourage CCGs to work with health and wellbeing boards in the exercise of their commissioning functions, and to seek expert advice. To my mind though, it is important that requirements in this regard remain proportionate and do not encumber CCGs with a duty to consult-as, for example, Amendment 197C would require-on the exercise of all of their functions. The health and wellbeing board is the forum for ensuring democratic legitimacy in the commissioning process.

Indeed, the health and wellbeing board is very much a key partner of the CCG, to use the good phrase used in Amendments 216ZAZA and 216ZAZB, but the partnership takes physical form in the jointly

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agreed health and wellbeing strategy, which is based on the JSNA. It is a joint production, it captures an agreed outlook for commissioning, and it should inform the commissioning decisions of the local authority, and indeed the CCG.

I listened with care to the noble Lord, Lord Patel of Bradford, in this context. He spoke very convincingly about the need for evidence to support commissioning, but also, most importantly, that such evidence is used. We completely agree with him on that, and that is why we have created that link between the JSNA and the joint health and wellbeing strategy. The strategy here will play a key role in shaping service commissioning across the area.

Clause 189 of the Bill specifically refers to the "partner" CCGs of the health and wellbeing board. However, the CCG has to retain ultimate responsibility for the commissioning and spending decisions of the commissioning plan. That is important. The health and wellbeing board is not accountable for those decisions, and, of course, it does not have the same statutory responsibilities as CCGs, so we would not want to suggest that the plan is a joint one. It remains the CCG's plan.

Noble Lords will find quite detailed procedures in the Bill in Sections 14Z9 to 14Z12 in Clause 23, on the process of drafting and revising commissioning plans. These include requirements in relation to consultation.

There are also direct requirements in the Bill in relation to ensuring that CCGs secure appropriate advice. We have also signalled the intention to facilitate the development of clinical senates and networks in order to provide a supportive matrix of expert opinion. However, I would not point to the particular duties or powers within the Bill or to contractual obligations in order to reassure noble Lords, or indeed to reassure the Royal College of Physicians, in relation to Amendment 203B. Rather, I would point to the tremendous potential in the new arrangements for bringing about a cultural change, and above all, to the key principle of clinicians leading the whole process of commissioning, from the assessment of need to the management of contracts. I believe that the system we are aiming to put in place will provide the right elements to stimulate the involvement of clinicians across sectors and organisations, with everything focused on that specific goal of delivering improved outcomes for patients.

The Bill institutes a framework for ensuring that clinicians are fully involved and supportive of commissioning, either as commissioners, or providing expert advice. Again, this is a duty that should not be amended so as to become a burden.

11 pm

I should like to highlight some of the ways in which we can ensure the competence of commissioners in relation to the amendments tabled by the noble Baroness, Lady Finlay. They aim to ensure the effectiveness of CCGs in commissioning for low-volume specialised conditions. I should like to reassure the noble Baroness that everything these amendments aim to achieve can be done within the existing provisions of the Bill. The board's guidance on commissioning, which it must produce under new Section 14Z6, can cover

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commissioning for less common conditions, and the board must be satisfied, before it establishes a CCG, that the area it would cover is appropriate to undertake effective commissioning and that the CCG has appropriate systems in place to do this.

The board possesses, under new Section 14Z19, the ability to intervene in a CCG where it considers that there is a significant risk that the CCG will fail to exercise a function. That would include commissioning effectively to meet the needs of its population. The actions that the board could require would include directing another CCG to undertake a function of a CCG, and CCG commissioning plans could cover arrangements for commissioning for less common conditions, but this should be something which CCGs have the flexibility and autonomy to approach as they see fit. In terms of recourse for the patient in the circumstances that the noble Baroness outlined, the patient could speak to a range of bodies such as the Commissioning Board in an extreme case, or they could go to judicial review. But I think a patient's first port of call, if they get no joy from the CCG, is the board. I can give a reassurance that CCGs will be under a statutory obligation to arrange for provision of care to meet the reasonable requirements of the people for whom they have responsibility, and the board must oversee that.

Baroness Finlay of Llandaff: Can the Minister define "reasonable requirements"? What is "reasonable" and in whose mind would something be reasonable or unreasonable? Some of us would say that the discrepancies we see emerging now are not reasonable, but they are decisions that are already being made in commissioning. This will become very important because of the financial climate in which the commissioning groups will operate. I would also appreciate knowing who the patient can actually appeal to. The noble Earl has just said in his response that patients can go to judicial review, but the terms of such reviews are tightly drawn and it is a difficult, adversarial process. You have to be a very motivated person to pursue it. But we are talking about patients who are ill, who often are vulnerable and do not have the financial resources needed to undertake such an activity.

Earl Howe: I appreciate what the noble Baroness says about judicial review, and of course she is right that it is a daunting process for the average citizen. As to her question of what is reasonable, I am sure she knows that that is not a question I can answer in general terms. It will depend on specific circumstances. I can only say that the board will have a duty to perform an annual assessment of how well each CCG has fulfilled its duties in the previous financial year. During the course of a year, matters may be drawn to its attention which it will take a view on, either that the CCG has taken a reasonable stance or an unreasonable one. I would have thought that if a patient insists on having a treatment that NICE has said is not cost-effective, that is not a reasonable request for an NHS patient. However, that is only one example, and it is not one that the noble Baroness cited. I had better write to the noble Baroness to set out further and better particulars on this issue, if that would be helpful to her.

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We fully recognise the importance to effective commissioning of ensuring that allocations give CCGs the resources to meet the distinctive needs of their local population, and clearly we would expect the board to ensure that their methodology of allocation takes into account local factors, and inequalities would be one of those factors. Our preference, however, is not to place particular weight on one factor or a set of factors, however meritorious they may be, to which the board would be tied, but to give the board a free hand in setting the methodology for its allocations and the scope of its analysis of the needs of a CCG's population. I am really addressing Amendment 220 in that context.

In resisting the proposals that CCGs should be under a duty to agree their commissioning plans with the relevant health and well-being boards or an absolute requirement for plans to address the priorities of the health and well-being strategy, we are actually following the advice of the Future Forum. It said that to give health and well-being boards powers to sign off commissioning plans would create an unworkable dual accountability as boards could oppose decisions by Cogs which would have, after all, the statutory responsibility to arrange services to meet the needs of patients and responsibility for the budgets with which to do this. Commissioning competence will also be assured through the board's annual performance assessment of each CCG, which I referred to a minute ago and in which the board must have regard to commissioning guidance that it has published under new Section 14Z6. Clearly, the board would be exercising its function of assessment and report only if it provided all relevant information at its disposal. Giving the board the role of determining how it presents this information is a proportionate and appropriate level of responsibility. The Secretary of State may issue advice on annual performance assessments under the provision in new Section 14Z14(5)(a).

Amendment 245A places a limit on the general power of the Secretary of State, the NHS Commissioning Board and Cogs to take action to discharge their functions. While the amendment is no doubt well intentioned, it is unnecessary and would have the unintended consequence of preventing the NHS Commissioning Board from using its general power to support it in commissioning pharmaceutical services.

The only amendment that I have not specifically addressed is Amendment 176B, from the noble Lord, Lord Hunt of Kings Heath, which is about the NHS constitution. It would expand the duty in new Section 14O to promote the NHS constitution to require Cogs to promote awareness of the constitution among providers of primary medical services. Cogs are already under a duty to promote awareness of the constitution among patients, staff and members of the public, which would not exclude staff in primary care providers. CCG membership would have to be aware of the constitution to promote awareness of it among others.

I am conscious that I have not answered the question from the noble Baroness, Lady Whitaker, and I hope that she will allow me to write to her.

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Lord Patel:My Lords, I do not think that the Minister answered the question that I asked about the performance assessment of Cogs-that it is to be done only by health and well-being boards and not by wider groups such as the providers, Monitor or the CQC.

Earl Howe: Well, my Lords, again that is a matter on which I will have to write to the noble Lord. The thinking is evolving on this-that is the truth of it-and it is probably best if I set out in a letter where our thoughts have reached.

Lord Patel: If the thinking is evolving, I hope that my question is helpful.

Lord Hunt of Kings Heath: My Lords, I am grateful to the Minister for that very comprehensive response. There are just two points to make. First, I thought that the noble Baroness, Lady Finlay, raised a very interesting question about the test of reasonableness. I come back to the issue of PCTs delaying treatment but keeping it within the 18-week wait, which the Secretary of State intervened on. CCGs may well do the same because it is a way of saving money but keeping within the target set, which no doubt will be reinforced by the mandate. I am not expecting him to answer, but it is an interesting question of whether that is reasonable or not.

On the question of the relationship between the health and well-being board and CCGs on their clinical commissioning plans, I realise that I caused great offence to the noble Baroness, Lady Eaton, and my noble friend Lord Beecham by describing the esteemed Local Government Association as a pressure group. I meant it in the context of tabling amendments here; although we are often helped by groups outside, we none the less stand on our own two feet. Now that my noble friend has given me the LGA evidence, I have to say that it was pretty weak and woeful stuff in relation to health and well-being boards. I have another document here from the Association of North East Councils which has produced an excellent paper on health and well-being boards that really gets to the heart of how these could be the engine room of change, collaboration and co-operation across public health, health and social care.

I understand the point the noble Earl has made about CCGs being accountable-I am not sure who they are accountable to, but they are accountable-for the commissioning plans, but my amendment allows for that. Essentially it says that the health and well-being board has the leverage to be able to call in the commissioning plans. In the end, if there is no agreement, although I suspect that normally there would be agreement, it will be up to the board to decide how to go forward, so there is a kind of mechanism for dealing with that. However, we underestimate the potential of health and well-being boards at our peril. I hope that I can persuade the Liberal Democrat Benches to have the courage of their convictions and support giving local authorities, through the health and well-being boards, much greater clout in this in the future. I beg leave to withdraw my amendment.

Amendment 176B withdrawn.

Amendments 177 to 178A not moved.

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Amendment 178B had been withdrawn from the Marshalled List.

Amendments 179 to 184B not moved.

Amendment 185

Moved by Lord Kakkar

185: Clause 23, page 36, line 23, at end insert-

"( ) In particular, each clinical commissioning group must monitor the performance of primary care practitioners within its area and report its findings to the Board."

Lord Kakkar: My Lords, Amendment 185, tabled in my name and that of my noble friend Lord Patel, proposes that each clinical commissioning group must monitor the performance of primary care practitioners within its area and report its findings to the NHS Commissioning Board. The purpose of this amendment is to try to explore with Her Majesty's Government their approach towards performance management and the assessment of outcomes in primary care.

In hospital practice we are all obliged to subject ourselves to very careful performance assessment. There is careful collection of data on clinical outcomes, patient safety and patient experience. Indeed, with the adoption of service line reporting in many acute trusts, there is also meaningful information on the utilisation of resources to be able to determine whether those resources are being appropriately used to achieve the best clinical outcomes for our patients. The availability of the collection of these data and their reporting is having an important impact on transforming clinical care in the acute secondary sector. For instance, only this week the report on data analysed by the Dr Foster organisation has demonstrated that in certain acute trusts at weekends, where staffing levels are potentially not appropriate, particularly for senior clinical staff, the management of acute stroke, myocardial infarction and other acute emergencies is associated with a less good clinical outcome.

To date, a similar approach to the collection of outcome data in primary care has not been achieved. As a result, it is not possible to speak with the same certainty about the performance of individual practitioners in primary care or indeed the performance and outcomes of primary care teams. This is a particularly important issue in the Bill. Rightly, the Bill recognises the importance of trying to change patterns and pathways of care to ensure that those with chronic conditions are more routinely managed in the primary care environment rather than being referred to the secondary care environment. However, if appropriate arrangements are not in place for the assessment of outcomes and performance in primary care, the transformation of clinical pathways of care to the primary care environment could result in a deterioration of standards and poorer outcomes for those patients because there will be no routine collection and reporting of the data on performance.

11.15 pm

It is argued that there will be certain measures and safeguards in place. For instance, all clinical practitioners will be subject to revalidation on a five-yearly basis.

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The regulator-in this case the General Medical Council-will have responsibility for that. However, as things stand, the responsible officers who will have the obligation of supervising the revalidation process for primary care practitioners are based in PCTs. I would be interested to know what arrangements have been made with regard to describing the role and establishing the function of responsible officers with regard to future clinical commissioning groups.

Another issue is the current system of the quality outcomes framework and the additional points and therefore additional payments that can be achieved in primary care through meeting certain process measures that speak to quality in general practice. It is well recognised that the quality outcomes framework does not provide sufficient granularity to speak with the same confidence about the achievement of good clinical outcomes and the performance of primary care practitioners and groups. More needs to be done, potentially, with regard to the mandate that will be passed to the NHS Commissioning Board, and subsequently there must be instruction from the Commissioning Board to clinical commissioning groups on setting appropriate standards and ensuring that data are collected in a systematic and comprehensive fashion so as to be able to speak to performance in primary care.

Is any work ongoing in the department with regard to the development of potential standards, and objective and validated outcome measures that might be applied by clinical commissioning groups to the management and measurement of performance in primary care? I would like to understand the view of Her Majesty's Government with regard to this area, how it might be developed going forward and if any thought has been given to how or whether clinical commissioning groups need to report back information on outcomes in primary care to the NHS Commissioning Board. This is an important issue because it will be the Commissioning Board that holds contracts for individual primary care practices.

Perhaps I may remind the Minister of the interesting and informative report published by the King's Fund in March this year, entitled Quality Improvement in General Practice, which at the time the noble Earl warmly welcomed. I note a quotation from the Health Service Journal in March 2011 in which the noble Earl said:

"Practices will be monitored, supported and held to account by the consortia"-

now the clinical commissioning groups.

How should noble Lords interpret that statement by the Minister with regard to the importance of assessing outcomes in primary care? I beg to move.

Lord Patel: My Lords, I support my noble friend Lord Kakkar's amendment on the performance of general practice and primary care physicians. I am a fellow of the Royal College of General Practitioners, although after I have said what I am going to say, maybe I will not be any more. I hope that that not will happen, because I say this wishing to help my primary care colleagues.

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The noble Lord referred to the King's Fund report, published in April 2011, which was an inquiry into the quality of general practice. The inquiry was conducted by an independent panel of experts, chaired by Sir Ian Kennedy, and represents the most extensive review of quality across general practice undertaken in recent years, bringing together a wide range of evidence for the first time. The inquiry concluded that, while the majority of care provided in general practice is good-I emphasise that-there are widespread variations in performance and gaps in the quality of care delivered by some general practices. There are variations in the quality of diagnosis, particularly for cancers. There are disparities in the rate of referrals; for example, there is an eightfold variation in the rate at which practices urgently refer patients with suspected symptoms of cancer to a specialist. There is variation in the quality of prescribing. It is estimated that the NHS could save at least £200 million a year through more efficient prescribing of drugs such as statins.

The report also highlighted concerns that continuity of care is worsening, despite the evidence that this is what patients prefer and that they prefer to see the same general practitioner. Variations in the experience of patients and co-ordination of care highlighted by the report also included wide variations in admission rates for patients with conditions that could be treated outside the hospital. While we are promoting fewer patients going into the hospital, that is an important point. Only one in 10 patients with long-term conditions reports being told that they have a care plan, despite a policy commitment that all of them should have one.

There are a number of challenges facing general practitioners: demographic change, higher patient expectations, new technology and medicine, and the changing environment in which they operate. The challenges are therefore accelerating the trend for practices to work as multi-professional teams, with GPs working closely with specialists and other professionals within and outside their practice, delivering a new deal for patients that involves them much more closely in decisions about their care. GPs are moving from being gatekeepers-usually keeping the gate closed-to navigators, co-ordinating care for people with complex needs and helping and guiding patients to other public services, and being held accountable for the quality of care provided, which is accelerating the shift away from small practices working in isolation towards a more federated network of practices working more closely with one another and other professionals. Practices are looking beyond their surgery door by focusing on prevention and taking a more active role in public health issues such as obesity and reaching out to deprived communities.

CCGs will have a critical role to play in supporting quality improvement in general practice, monitoring the quality of individual practices and sharing their knowledge of this with the NHS Commissioning Board, which will hold the contracts of nearly 2,000 practice groups, and with the Care Quality Commission, which will be responsible for registering practices. It will also be important that the national contracts, the commissioning outcomes framework and the quality premium-no doubt we will discuss that in another group of amendments-are aligned to improve patient

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outcomes. The experience of the quality outcome framework, QOF, has been that it is too narrowly focused. Research has shown that it has not actually delivered in improving outcomes and is insufficiently ambitious in the performance benchmarks that it has used. With most practices scoring over 90 per cent against QOF measures, the National Quality Board concluded that it,

In terms of measuring performance in primary care, and particularly in terms of measuring performance in relation to chronic diseases, the experience from the United States is quite interesting, and I shall quote it so that we can learn from it:

"All of the US groups in this study aimed to performance manage their doctors"-

this is in California-

The document also says:

"It was common for data to be reported back to individual physicians, usually with names attached"-

a practice that is carried out in some specialities in the United Kingdom-

It states further,

"It is notable that the US medical group leaders were clear that the financial interests should never interfere with decisions about what was best for individual patients. In containing utilisation, they attempted to appeal primarily to doctors' clinical professionalism",

and that CCGs and the NHS Commissioning Board will,

My noble friend Lord Kakkar quoted the noble Earl being reported in the Health Service Journal. If I might tease him a bit more, he also said that CCGs and the NHS Commissioning Board would be better able to tackle performance than PCTs, and that the report that he approved of,

He might, then, be able to say what the thinking is towards achieving this.

Baroness Finlay of Llandaff: My Lords, this group of amendments is complex. I declare an interest as I chaired the commission on medical generalism, whose report is currently being consulted across the general practice community in the UK. I am also a fellow of the Royal College of General Practitioners, having worked as a GP myself. Having said that, our report highlighted the wide variation in training of general practitioners, and the need for general practitioners to develop new pathways of working with secondary care, to be gate-openers at appropriate times, and not to keep the gate closed inappropriately.

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I would also draw your Lordships' attention to an article in this week's British Medical Journal which asked whether general practitioners are being adequately monitored, and quotes a senior general practitioner as saying:

"If you asked me, 'Do you know how safe general practice is?', I would say, 'I have no idea'".

The article, sadly, highlights the fact that, in a snapshot of GPs referred to and subsequently disciplined by the General Medical Council, GPs are overrepresented in comparison to hospital doctors. That is partly because hospital doctors are employed in NHS trusts, working in teams where they are overseen by other people, whereas GPs are, typically, independent contractors, sometimes working in isolation, despite the recommendations from people like Dame Janet Smith. That makes it harder for those with responsibility for primary care to access the information that could alert them to poorly performing doctors.

That was the background to my amendment about NICE, which I unfortunately missed in the order-I realise that I can do nothing about that now; it was, anyway, a probing amendment-but it came out of evidence given to us in the commission. One of the pathfinder groups was clear that it did not feel under any obligation to adhere to or observe NICE guidance in the way in which it commissions services.

11.30 pm

I suggest that it will be very important to put in place adequate monitoring systems. It will be impossible for the Commissioning Board, at such a distance from individual general practitioners, to develop the intelligence to know what quality of care is being provided and how they are behaving and being monitored, given that the current structures will be disbanded. Against that background I suggest that the amendments around standards of primary care are particularly important.

It was also against that background that I tabled Amendment 248B in the group. It is intended to ensure that there is an overview of general practice. Again, it is a probing amendment that will apply to Part 4 of the Bill on medical services. I look forward to the Minister's reply on how the quality of general practice will be driven up under the new arrangements.

Baroness Jolly: My Lords, I will speak to Amendments 213A and 213B, which are both probing amendments that concern the powers of the board with respect to clinical commissioning groups, and the all-round capacity-building of the clinical commissioning groups. Clearly, in their emerging, embryonic state they will need guidance, support and assistance. We hope that as they grow and improve, the need will decrease with time. However, when the need for growth and nurturing ends, the needs will change, new challenges will come along and there will be a constant need to ensure that clinical commissioning groups are able to draw on expertise in capacity-building. The amendments call on the board to offer this.

Proposed new Section 14Z8(2) states:

"The assistance that may be provided includes ... financial assistance".

That is already there. We propose to add,

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We anticipate that the board will do this, perhaps through the local field forces that will be best placed.

When the Bill was published, there was no provision. There was financial assistance and an undertaking to make available the services of the board to clinical commissioning groups, but it was not made absolutely clear what that meant and there was nothing specific about providing capacity-building. The amendment fills that gap. Will the Minister explain how it is anticipated that this could be provided? Is it expected that this should be commissioned by CCGs from the private sector?

Lord Hunt of Kings Heath: My Lords, the preceding speakers put their finger on a big issue-namely, the quality of primary medical services and GPs. As noble Lords tactfully put it, the Government propose to give enormous power to GPs when the quality of their provision is variable, as we know. There is a fundamental question about why the Government consider that GPs are so well placed to exercise this huge commissioning responsibility. All Governments have struggled with this area. Out-of-hours services is an example of where GPs should have been in the driving seat, but it was not a great advert for their commissioning abilities. There is a genuine question, although it is probably a bit late for the noble Earl to answer it in depth, about the great ability that GPs are supposed to have in relation to commissioning. I am extremely puzzled by the logic of the government reforms. We have never been given an answer about why so much power will be given to general practitioners. It is extraordinary.

My Amendment 213 in this group concerns the power conferred in new Section 14Z7 on the board to exercise the functions of the clinical commissioning group at the request of a clinical commissioning group. I also have another probing amendment, Amendment 213ZA, concerning the power conferred in new Section 14Z8 for the board to "provide assistance or support" to clinical commissioning groups. Can the noble Earl clarify the kind of circumstances in which those powers can be used? Could he also say how this relates to the failure regime for clinical commissioning groups?

On a somewhat different tack, Amendment 220C concerns new Section 223G with regard to the financial allocations to clinical commissioning groups. The amendment requires the board to publish each year details of the methodology used to determine allocations to clinical commissioning groups. It is important that there is transparency in the allocation process, and the best way to ensure that is to publish full details of the methodology behind the allocation. For instance, will socio-economic factors influence the allocation? How much will health inequalities be taken into account? It would be helpful if the noble Earl could give an indication at some stage of the methodology and how transparent it will be.

Baroness Wilkins: My Lords, I speak to Amendment 239A tabled in my name. The Minister will remember the protracted debates surrounding the drug tariff and

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the concerns of the thousands of people who use a wide range of incontinence products and services. As anyone who knows what life is like if you have to depend on the reliability of a stoma bag or a catheter, these products and services provide the bedrock of our dignity. Soiling ourselves in public is one of the deepest fears we all share, and despite the dry sound of the wording-I forgive the unintended pun there-this is what the amendment is about.

The months and years of negotiation around the drug tariff were finally resolved, but concerns have now been renewed with this Bill. Currently, it is the Secretary of State's duty to set the drug tariff's national framework. This sets the price and standards of prescription products such as stoma appliances, and the fees that pharmacies and appliance contractors can charge for their services, such as a home delivery service. But now the Explanatory Notes to the Bill suggest that, in the future, the drug tariff will be split. The NHS Commissioning Board will determine the level of fees and allowances paid for pharmaceutical services, while the Secretary of State will determine the reimbursement price for actual products. This amendment would require the NHS Commissioning Board to consult with appropriate representatives of patient groups and the industry before determining the payments. It is a probing amendment to get clarity on the relationship between the Secretary of State's powers to set national frameworks and those of the NHS Commissioning Board in relation to pharmaceutical expenditure. There are concerns that changes to this system and any reduction in the Secretary of State's powers to set national pharmaceutical reimbursement and remuneration will lead to the potential fragmentation of services across the country and deteriorating quality of care, with patients unable to get the products they need to ensure their well-being and independence.

There is particular concern about the implications for the services that pharmaceutical contractors provide to patients. These should be determined separately from the products that patients use. Obviously, being taught how to use an appliance properly is essential for its effective and safe use, but without that support in the community, there is a much greater likelihood of inappropriate usage, the increased risk of infection and higher rates of device wastage, which will result in greater costs for the NHS and much more risk for patients. There is a need for greater clarity about what the changes to the Secretary of State's powers would mean in practice and what the impact of these changes will be on the future stable supply of these products and services.

There are around 400,000 people in the UK who use urology and stoma products on a long-term or lifelong basis and, of these, around 150,000 who use a dispensing appliance contractor to deliver their products rather than a pharmacy. It is important that a wide range of products is available as people's needs vary so much. It is essential that someone can continue to receive a product in which they have confidence. What is more, these are invasive products, so the clinical services offered by pharmacies and dispensing and compliance contractors are also critically important to being able to steer clear of hospital and maintain your ordinary life and work. At present, the existing

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pharmaceutical service regulations provide patients with choice: choice of a clinically appropriate product and a delivery method that suits their needs as long-term users. It is vitally important that this security is protected in the new NHS architecture.

There are already concerns about the fragmentation of arrangements. Some PCTs have introduced restrictive formularies in an attempt to limit patient product choice, while others have tried to restrict choice of supplier by introducing a preferred provider. There is concern that the number of such developments could expand once the number of commissioning organisations increases, creating more and more postcode lotteries.

I would ask the Minister four questions about what is an essential service, despite the amount of talking that goes on in the Chamber. First of all, what powers will the Secretary of State have to determine reimbursement prices for products and remuneration fees and allowances for pharmaceutical contractors? Secondly, how will the changes to the Secretary of State's duty to determine pharmaceutical remuneration affect the drug tariff? Thirdly, what is the Government's position on the future of the drug tariff? Finally, how will the Government ensure that patients and industry are consulted before the NHS Commissioning Board and/or the Secretary of State determine pharmaceutical remuneration? I beg to move.

Baroness Masham of Ilton: My Lords, I want to support my noble friend. All I want to say is that these products are absolutely vital for people with long-term conditions. Will the Minister say why there is a split between remuneration and reimbursement? We would really like the answer to that question. It is even more worrying if the Minister does not know that there is a split, since that will cause fragmentation.

Baroness Finlay of Llandaff: My Lords, if I might intervene briefly, I think that this short debate has just illustrated that some people in our community are extremely vulnerable to small changes in commissioning, which may deny them a product that they need to maintain their independence and dignity and to be able to function fully in life and feel like a whole person. It is not appropriate for us to look only at some of the things that are easy to count-such as hip operations, major heart disease or whatever. Issues such as continence devices are difficult for people to talk about. It takes a lot of courage to raise them in a debate, as the noble Baronesses have done today, but they are incredibly important and there is a real concern out there that people will not get what they need to carry on functioning in the society in which we live.

Baroness Williams of Crosby: The point that I will raise with the Minister is far less important than the one just raised by the noble Baroness, Lady Finlay. I merely point to new Section 14Z19. Simply, I am puzzled about its heading, which refers to the "Power to give directions". My understanding was that we had already discussed at great length the fact that the only powers to give direction depended on the existence of a failure. Whether there is a mistake in the text, I do not know. Perhaps the Minister can explain why the power to intervene relating to the Secretary of State

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suddenly creeps back into the Bill when I thought that we had established that it was elicited only by a significant failure.

11.45 pm

Earl Howe: My Lords, in responding to these amendments, I begin by highlighting one basic point. Our intention is that the relationship between the NHS Commissioning Board and CCGs should be mutually supportive. Of course, the board will have responsibility for overseeing the system of CCGs, authorising them and making any subsequent changes to their constitution, as well as for assessing their performance each year. In addition, the Bill gives the board clear powers of intervention. We should recognise, without the need to change the heading of new Section 14Z19, as Amendment 220ZA would do, that the intervention powers of the board are expressly designed for circumstances in which the CCG is at significant risk of failing, is failing, or has failed, to exercise its functions.

However, the board is also there to provide effective support to CCGs beyond the allocation to them of commissioning budgets. On this topic, while supportive of the principle behind Amendment 220C concerning transparency in how the board determines its allocations to CCGs, we should be cautious in our consideration of amendments on the specifics of how the board performs its functions, which would be better suited to the Secretary of State's mandate.

The Bill contains provisions to equip the board to act as a supportive partner to CCGs in the exercise of their functions. These provisions are flexible and proportionate, and I would urge that they stand unchanged. The board has the power to provide direct support to a CCG if it requests it, by taking on the specific commissioning function of a group. That is to say, if a CCG needed support in exercising its ability to commission care to meet the needs of its population, as set out in these proposed new sections, the board could, at its request, step in and undertake the commissioning function on a temporary basis. This is a sensible power to give to the board and CCGs, and it would be unwise to remove it. CCGs would only make such requests where they felt they needed the support of the board-that is obvious-and the use of this power would prevent deterioration in a CCG's ability to exercise a commissioning function, with its attendant threat to patient outcomes. It might be valuable, in particular, where a CCG or CCGs were finding it difficult to effectively commission for more specialised services across a much wider area than that covered by individual, or small groups of, CCGs.

There is no question of CCGs using this power to delegate their legal responsibilities for their patients. Even where the CCG requested that the board should support it by exercising a function on its behalf, the CCG would retain legal responsibility for the exercise of the function. That could not be delegated. The board, similarly, could not arrogate CCG functions. A CCG must expressly request that the board undertakes a function on its behalf. Noble Lords should also note that the power in new Section 14Z7 may be limited by the Secretary of State in regulations so as to ensure, should it be necessary, that certain functions of the CCG cannot be so delegated to the board.

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Likewise, Amendment 213B is not necessary. I emphasise that the support or assistance that the board can supply would be in order to build CCG capability. This is unequivocally one of the reasons why the board would provide resources, or employees, or financial assistance to a CCG, so I fully support it. The amendment is slightly out of place as it adds to the list of ways in which the board would provide support, but is in fact an outcome of those inputs. I worry that it may lead the board to give undue weight to that outcome when we do not want to imply that board support should be limited to that objective. Clearly, without this amendment, the board has perfect freedom within the provisions of this section to support CCGs in building their capacity and capability. I hope, therefore, that this will be sufficient for the noble Baroness.

Some of these amendments would change the relationship between CCGs and providers of primary medical services and pharmaceutical services. CCGs must support the board in discharging its duty under Section 13E in relation to securing continuous improvement in the quality of primary medical services. It is right that this duty is expressed in terms of quality improvement. Amendment 185 would place a duty on CCGs to support the NHS Commissioning Board in securing continuous improvement in primary medical services by monitoring the performance of individual primary care practitioners in their area and reporting their findings to the board.

I support the concern of the noble Lord, Lord Kakkar, to ensure that CCGs are effective in supporting the board on the quality of primary care. As the noble Lord rightly said, quality in primary care is absolutely key to the success of the NHS, not least in managing chronic conditions. A great deal of work is currently going on in the Department of Health to construct meaningful quality metrics for primary care, including patient-reported outcomes, combined with plans to ensure the transparency of general practice performance. Our information strategy, which we will publish in a few months, will say a lot more about that. However, I fear that stipulating what activity CCGs should undertake in exercising this function would be to impose too specific a requirement on them in the performance of their duty under new Section 14R. The philosophy of the Bill is very much to limit processes and instead focus on outcomes.

The Commissioning Board will performance-manage contracts with providers of primary medical services, although it may ask CCGs to carry out on its behalf some aspects of the work involved. That could include promoting reviewing practice performance and ensuring clinical governance. However, it must be the board's decision as to how it wishes to performance-manage its contracts with providers, and how it should be supported in that by CCGs. The CCG will similarly want flexibility in its approach to how, as a peer group, it ensures the quality of the care provided by individual practitioners and practices. In this regard, the experiences of GPs as commissioners under practice-based commissioning will be invaluable in identifying ways to strengthen the relationship between practice

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and commissioner. There have been a lot of very useful lessons learnt from practice-based commissioning, which must not go by the board.

In general, clinical commissioning groups will play a systematic role in helping to monitor, benchmark and improve the quality of primary medical services for the practices within their membership. This will include the use of clinical governance and clinical audit. Armed with the right information systems, clinical commissioning groups will be well placed to spot potential issues of poor performance at an early stage, to identify the root causes of the problems and to work with the board or the Care Quality Commission and other agencies as necessary to support practices and practitioners in improving performance. I see it as a mutually supportive arrangement. We have already had proof of this, as I say, in many practice-based commissioning consortia.

Local medical committees will also have a role to play here. I very much recognise the important role played by LMCs in relation to the local provision of primary medical services. We want this to continue, which is why the Health and Social Care Bill continues to provide a legal framework within which local medical committees may operate. The proposed amendments to Section 97 of the NHS Act 2006, which are set out in paragraph 42 of Schedule 4 to the Health and Social Care Bill, fully preserve the existing primary legislative provisions, with references to primary care trusts being replaced by references to the NHS Commissioning Board. This is a straightforward consequence of the proposal that the NHS Commissioning Board should take on statutory responsibility for the commissioning of primary medical services from PCTs.

Under the Bill, the NHS Commissioning Board will be able to arrange for clinical commissioning groups to undertake some of the board's functions relating to primary medical services. Where these functions include a duty on the board to take certain actions with regard to LMCs, the delegation of a function will not alter this duty. As well as protecting the existing legislative framework, I very much wish to encourage both the board and emerging clinical commissioning groups to identify ways in which they can work with LMCs for the greater good. I believe that this important task will be more successful if it is not constrained by further primary legislation. After all, local relationships have been shown to flourish within the existing primary legislative framework, which we are maintaining.

The noble Lord, Lord Hunt, asked, "Why GPs?", and contended that the Government had never explained why GPs should be given the responsibility for commissioning. I found that a rather extraordinary statement. He may recall that his right honourable friend Andy Burnham was very keen on GP commissioning-and I hope still is. In May 2006 in another place he said:

"We are introducing practice-based commissioning. That change will put power in the hands of local GPs to drive improvements in their area, so it should give more power to their elbow than they have at present".-[Official Report, Commons, 16/5/06; cols. 861-2.]

That is an endorsement of the principle if ever there was one.

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Lord Hunt of Kings Heath: My Lords, I cannot let that pass. Of course, but that was within the context of a statutory framework that was a delegation from primary care trusts. The problem with the new system is that there is no accountability for what GPs do. There is simply no accountability whatever for GPs' commissioning decisions to the public and patients.

Earl Howe: I totally and utterly disagree. There is bags of accountability in the form of accountability to patients in the local area, accountability to the health and well-being board, and to the NHS Commissioning Board which we have debated at length. I do not understand why the noble Lord should doubt this. It permeates the Bill. Indeed, the whole thrust of our policy has been around two words: "autonomy" and "accountability". They are two sides of the same coin. You cannot have responsible autonomy without accountability, and we believe that we have built it into the system. The noble Lord may not have been in the Chamber when I answered my noble friend Lady Tonge a while ago, who asked me a similar question: why on earth are we doing this? We have published a White Paper and numerous documents to explain why we think this is the way to go and the philosophy behind what we are doing is that clinical commissioning about placing the financial power to change health services in the hands of those NHS professionals whom the public trust most. We know that the public trust them most and we believe that they are up to the task, and so do they.

The noble Baroness, Lady Wilkins, asked me about the drug tariff and appliances. I am the first to recognise how important this is. I myself, when in opposition, lobbied the department rather hard on the subject on a number of occasions because I well recognise all the issues to which she referred. Appliance contractors will be consulted about appliance services and remuneration, as they are now. As now, a full range of pharmaceutical services are expected to be commissioned in the future, including appliance services, but in view of the hour the best thing for me to do is to write her a letter. She raised a number of issues and it is probably appropriate that I should write to her and copy the letter to noble Lords.

I hope that I have at least illuminated these areas helpfully for noble Lords and that the amendment will be withdrawn.


Lord Kakkar: I thank the Minister for his detailed and helpful response to Amendment 185 and to the amendments tabled by other noble Lords in this group. With regard to the question of securing the information and proceeding with some certainty on being able to understand that there will be an appropriate assessment of outcomes and performance in primary care, I think that more work needs to be done. It is clearly a very important area and this debate has highlighted ongoing concerns and anxieties; not so much about the principle-I think that all noble Lords have accepted the principle that it is important that there is appropriate assessment of outcomes and performance in primary care-but that mechanisms are going to be in place to ensure

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that those data are collected, are made publicly available and can be acted upon to ensure that the very best healthcare is provided for the patients of our country. Recognising that there is more work to be done, I beg leave to withdraw the amendment.

Amendment 185 withdrawn.

Amendments 186 to 199ZA not moved.

Amendment 199ZB had been withdrawn from the Marshalled List.

Amendments 199A to 202 not moved.

Amendment 203

Moved by The Earl of Sandwich

203: Clause 23, page 38, line 2, at end insert-

"14Y1 Duty as to addiction to prescribed drugs

(1) Each clinical commissioning group shall have a duty to provide services to those suffering from addiction and withdrawal from prescribed drugs.

(2) In fulfilling this duty, clinical commissioning groups must co-operate with and take account of the work of non-governmental organisations."

The Earl of Sandwich: My Lords, the Minister already knows that, in moving the amendment, I use the example of the dangers of prescribed drugs and the urgent need to commission services for those suffering from addiction and withdrawal. This amendment follows the interesting amendment of the noble Lord, Lord Rooker, on Monday. I am sorry that I could not support him in his attempt at a Division because he said a lot of interesting things, although I know that this has become an historic occasion. That amendment pointed to the advantages of building on the work of voluntary organisations, especially those in the vanguard of meeting a particular need, as they are in this case. I know that the Minister has given an answer, that the board and clinical commissioning may want to find work that will assist in the effective commissioning of services:

"For instance, the board may provide funding to voluntary organisations with particular expertise in the provision of support to people with rare specialist conditions".-[Official Report, 28/11/2011; col. 119].

I have some experience of voluntary organisations, and I know that, on the whole, they provide a cost-effective service; the argument has already been well made in the debate. Using the example of prescribed drugs, research into current services has shown that, in a few cases, the NHS is already working alongside very frail NGOs. In some cases, the relationship is symbiotic. For example, in Belfast a very skilled NHS worker is leading the team. In Bristol, Oldham and Newcastle the PCTs are part-funding local services and providing care workers. However, in most areas of the UK PCTs are woefully unaware of the problem and the department is woefully unaware that the PCTs are unaware, and therefore no-one is able to provide the necessary training and meet the need. The noble Lord, Lord Warner, spoke earlier about the shortcomings of PCTs as commissioning groups in certain situations.

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My first question is already answered: can the Minister assure me that he will do everything to support good practice in the voluntary sector for victims of prescribed drugs or for any other deserving category of patients? It would help if there was a duty to support NGOs in the Bill. I know that cannot be the case, and, as I say, the Minister has answered this.

Coming specifically to Amendment 203, I will briefly repeat my interest, because, as the Minister already knows, a relative of mine has been confined to his room for over a year in almost constant pain, unable to take part in everyday life or even in family life. I do not wish to ask for special pleading, because he is one of perhaps 1.5 million people who have taken sleeping pills or other benzodiazepines who are now at risk from drug addiction which in some cases is worse than illegal drug addiction. Most of this is at the hands of doctors. As I said at Second Reading, the NHS has created a problem and it is up to the NHS to solve it.

My research tells me that the Government are not solving it. They are confusing illegal with legal drugs and they are making polite noises about what they might do, but they are not doing it. They are making claims at a high level about services which are clearly not being provided at a lower level. While the voluntary sector is being forced to act on its own, the Government show little sign of supporting it and in the present climate are likely to resist anything new.

My amendment is about the CCGs commissioning services themselves. I know that we are going through a period of change and it is very hard to see what is now a PCT or an emerging CCG. I do know that a service confronting benzo-addiction withdrawal is not an easy service to set up. Voluntary activity so often stems from the experience of individuals who have had such experiences. Up and down the country, there are some people of high quality who have either been through the perils of addiction themselves or have been very close to someone who has been addicted. They are the people who can do the job. They are remarkable not only because they are able to apply their experience as carers and therapists without training, but because they have also had to teach themselves management, the ability to start an office, to raise funds, to advertise a service and most of all to balance time and money when there are so many other things to think about. It is like a health service in miniature. These are the people whom this Bill should support and to whom the CCGs should have a duty. I beg to move.

Baroness Masham of Ilton: My Lords, I support my noble friend's amendments. Addiction to over-the-counter drugs is an important issue. It can cause suicide. It ruins families. People cannot work. It needs all our support and I hope that the Minister will do something about this.

Lord Alderdice: My Lords, I support the noble Earl. He initiated a debate on this question some time ago. As I said at the time, one has to be careful. There are many patients who benefit considerably from some of these medications, when they are given responsibly

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and monitored responsibly, but that does not always happen. One has to take this particularly seriously because, while those with alcohol and drug addiction often come to the health service for treatment-although perhaps they should come more often-this kind of addiction to prescribed drugs is effectively an iatrogenic disorder. Patients have come to have these medications, and they are not all over-the-counter medications. They are available properly only through doctors, so doctors and the health service have to take a particular responsibility. In that regard, I support the noble Earl in his concerns and I hope my noble friend the Minister will be able to give some reassurance that this is regarded seriously as an iatrogenic disorder that the health service is in some cases responsible for bringing into play through absence of proper monitoring and, in some cases, errant prescribing.

However, there is a second component, which is the involvement of NGOs and charities in treatment. When I was a young psychiatrist, I was very interested in alcohol and drug addiction and I worked in a unit. We did not have a specialised unit in Northern Ireland at that time to deal with drug addiction. I looked around in Ireland, North and South, and on this side of the water to find a service that would work. I found a voluntary organisation for addicts. I had myself admitted and went through the whole process as though I was an addict, removing myself from any contact with family and all my worldly goods, as it were, engaging in all the groups and the responsibilities that people undertook, the therapy sessions and so on. It was a very important experience for me because, like some other things that I did, it helped me to see things from the point of view of the patient and the kind of things that we were expecting patients to undertake.

However, I was doing it not only for my own interest, but to try to see what services would be possible in Northern Ireland. It became clear to me that, for all sorts of reasons, it was extremely difficult-well nigh impossible-to implement a service of that kind within the NHS, because we put all sorts of restrictions on the NHS. For example, one of the things that was very important was to go and do the washing and the cooking and be involved together in those kinds of things. If you tried to do that in the NHS, you immediately ran into all sorts of regulations, which we frequently discuss in a place like this. So it is not always that easy to do.

In a more general sense, sometimes charities and voluntary organisations can bring special things to services that it is very difficult to provide in the context of the NHS. Some of these are experimental and we should wait to see whether they are successful before the NHS takes them on board. That is very appropriate, but the burden of my plea in support of what the noble Earl says is that we should try to ensure that the contribution that is made by charities, particularly smaller charities, and voluntary organisations, which can experiment in these ways, continues to be valued. I have received a number of reports of some of the smaller charitable organisations, in the current climate-not after changes in legislation-finding it increasingly difficult to survive, because they only provide limited services. We have to take this seriously. I do not necessarily say that it has to go in the Bill, but even at

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this late stage in the evening, the noble Earl deserves credit for raising this question, and I hope my noble friend can give some comfort on it.

Baroness Finlay of Llandaff: My Lords, I also support my noble friend Lord Sandwich on this terribly important topic. It links back to standards of primary care, which we have spoken about earlier this evening. I know that it is very late, but I hope that the Minister might take this away and consider it in terms of the standards of monitoring of primary and secondary care-as has been said, this is an iatrogenic disease for many people-and the importance that the third sector can play and fill a major gap that is not filled by any services that are formally commissioned. Without the third sector, these people will end up becoming ever-more needing of NHS services, but sadly they often get services that are not appropriate to their needs.

12.15 am

Baroness Hollins: My Lords, may I briefly speak in support of the amendment? I suggest that the duty to provide services to those suffering from addiction and withdrawal should also be a duty to ensure prevention of inappropriate prescription, which I think was implicit in what the noble Earl was saying. There are some very good NICE guidelines available. That refers back to an amendment of my noble friend Lady Finlay. It is important that commissioning groups require clinicians to take note of NICE guidelines, which might assist in preventing this kind of problem developing in the future.

Baroness Thornton: My Lords, I was very pleased to put my name to the amendment tabled by the noble Earl, Lord Sandwich. He and I have been discussing this for several years from various vantage points of my own, as a Minister and then supporting him in debates in the House. In a way, we lose sight of patients with conditions when we discuss this Bill. We talk about the theories of the clinical commissioning groups and how the relationships will work, the coterminosity of things and all of that, but at the end of the day it is about people who are ill, who have conditions or who are in very grave need of support. That is this group of people-those who have been prescribed drugs in a perfectly normal way by doctors and who then become addicted to them.

Several things happen here, which the noble Earl has very eloquently described. One of them is that the NHS seems to find it difficult to distinguish between the addiction of these people and drug addiction for illegal substances. That means that the treatment that is offered is often inappropriate.

In a way, this amendment is a test of the efficacy of the Bill. Can this new architecture deal with the problem that is being posed by this group of patients? In a way, I am looking for an answer from the Minister to address that. There is no question that some small progress has been made in support of voluntary organisations and in a few parts of the National Health Service through PCTs, which are of course being abolished, to address this issue, but it is not sufficient. I am worried that that progress is in jeopardy in the transition.

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How will the transition ensure that what already exists is supported? This particular issue is a special and important one. It is not a huge issue in the framework of billions of pounds being spent by the NHS, but it is very important for those patients for whom it matters and for those in the future. So who will have responsibility for it? At what level will it be addressed? And how will the transition protect what exists at the moment?

Baroness Williams of Crosby: My Lords, the point raised by the noble Earl, Lord Sandwich, who has worked very closely in this field, should disturb all of us. It is a very late hour and I do not wish to detain the Committee any longer, except to say that one of the parts of the answer to this problem could be a much closer involvement of pharmacists in the whole issue of the drug regulation of individual patients. I know that my noble friend Lord Clement-Jones has raised before the question of how far qualified pharmacists can be brought more closely into very integrated working with CCGs. I simply suggest that this may be one of the ways to limit the terrible plight that the noble Earl, Lord Sandwich, was talking about-an individual pharmacist related directly to somebody who was closely dependent on a drug regime and the misuse of that drug regime in a way that leads to addiction.

Earl Howe: My Lords, I add my thanks to the noble Earl for his continued commitment to highlighting the needs of those suffering from addiction to prescribed drugs. It is one of the virtues of our House that it allows scope for noble Lords to highlight these issues in this kind of context. I am the first to recognise the pain and the plight of those whose lives have often been seriously damaged by such addiction, not to mention the damage done to families.

There are clear national guidelines for the usage of and withdrawal from prescribed drugs such as benzodiazepines, and GPs, pharmacists and specialist prescribers have those guidelines, but we know that what the noble Earl said is correct. There is access to support and treatment services for addiction to medicines in most local areas but some local areas are woefully short of such services. My department has commissioned evidence-gathering reports looking at the problem of addiction to prescription and over-the-counter medicines. We published a report on that in May which found that support is provided from a variety of services across primary care, community care and the voluntary sector. However, it also found such patchiness of provision.

I am sorry that the noble Earl said that he felt the Government showed little sign of supporting this group of patients or indeed taking the cause seriously. The national drugs strategy sets out an ambition to tackle all drugs of dependence, including dependence on prescription and over-the-counter medicines. My honourable friend the Minister for Public Health, Anne Milton, convened a round-table meeting of experts to discuss the future action required to prevent addiction to medicines and to improve support for people who develop problems. It included consideration of specific actions to support the commissioning services to respond to addiction to medicines, and a draft note of the

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actions agreed at the meeting has been published. We will be convening that round-table meeting in four to six months to review the progress against the action points. I hope that the noble Earl will accept that this is an indication not only of good faith on the part of the Government but of our appreciation that this is a problem that we have to tackle.

We believe that local bodies, with their greater knowledge and understanding of local health needs, are best placed to assess the needs for services in general. That includes rehabilitation and support services. Under the arrangements set out in Healthy Lives, Healthy People, local public health bodies will be responsible for the commissioning of services in line with local need to support people recovering from dependence. This will provide local areas with an opportunity to better integrate the commissioning of drug and alcohol intervention and recovery services. Services will be contracted from a wide range of providers including the voluntary and community sectors.

We think that local areas have a wealth of data at their disposal and the ability to consider this group of people within their local commissioning plans. The noble Earl, both implicitly and explicitly, cast doubt on the ability of local health bodies to tackle this problem. I have to concede that in many areas, or at least in some, the local structures have not been fit for purpose, but I highlight my belief that those local structures are being immensely strengthened by the arrangements that we are putting in place. Here I have in mind the health and well-being boards, which will be a local hub in which the health needs of an area and the priorities for healthcare can be defined and built in to the joint health and well-being strategies on which commissioning decisions should be based. The whole idea of that is that no group should fall through the cracks. If there is a need for a service, it should be identified through that process.

We do think that the outcomes framework, which does not appear in this Bill but overarches everything that we are doing, will expose poor practice. It will expose those groups of the population that are not being well served, and the commissioners will be called to account for their actions or lack of actions. So I cannot promise jam tomorrow, but I do, I hope, hold out the prospect of significant improvement in this area. I would just emphasise to the noble Earl that, in the mean time, the Government are not going to take their foot off the accelerator. We do intend that his concerns should be addressed, and I hope that what I have said is of some help and comfort to him.

The Earl of Sandwich: Well, I certainly am not going to pick a quarrel with the Minister after midnight. I do not accept everything that he said. I do not think that I have convinced him, but at the same time I have heard some very encouraging sounds, and he is quite right that I have followed what the Minister's personal interest has produced so far, because that is important. His colleague, Anne Milton, is certainly seized of the problem. The question is: where do we go from here? I certainly will not prolong the discussion now, but I am grateful to have had the opportunity to raise it and thank everybody who took part in the short debate. I beg leave to withdraw the amendment.

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Amendment 203 withdrawn.

Amendments 203A to 215A not moved.

Amendments 215B to 215D had been withdrawn from the Marshalled List.

Amendments 216 to 216ZAZB not moved.

Amendment 216ZAA had been withdrawn from the Marshalled List.

Amendments 216ZB and 216ZBA not moved.

Amendment 216ZBB had been withdrawn from the Marshalled List.

Amendments 216A to 220A not moved.

Clause 23 agreed.

Clause 24 : Financial arrangements for clinical commissioning groups

Amendments 220B and 220C not moved.

12.30 am

Amendment 221

Moved by Lord Hunt of Kings Heath

221: Clause 24, page 52, line 20, leave out from beginning to end of line 21 on page 53

Lord Hunt of Kings Heath: My Lords, as we come to our final group tonight, I shall be brief. This amendment relates to payments to clinical commissioning groups in respect of quality. Noble Lords may speak to other amendments in the group which focus on payments for improving health outcomes and the use of payments made to clinical commissioning groups. It would be helpful if the Minister could briefly explain the rationale for the payments, the potential size of the payments and the factors that will be taken into account. Can he provide reassurance that the payments will be used by clinical commissioning groups for commissioning services and not to make payments to general practitioners that they can then treat as personal income?

Will the Minister also comment on the potential for perverse incentives? The factors in new Section 22K(2) are very broadly defined. Could they be used in relation to a scheme to discourage patients from being treated? We know that the architecture of the Bill is built round the supposition that, as GPs are responsible for so much expenditure, if you give them the budget they will have an incentive to contain that expenditure, and I understand that. However, that might lead to commissioning groups seeking inappropriately to lessen the availability of treatment because of budgetary considerations. If there are quality incentives that could be interpreted as "demand management"-which is the term used in the health service-that is entirely understandable, but there could be concerns vis-à-vis the GP-patient relationship if patients felt that their GP was receiving personal payments in order to discourage treatment, and that that was inappropriate.

We have not yet discussed the impact on the doctor-patient relationship of these arrangements. This could be quite damaging and unless there are very strict safeguards about these quality payments there may be a lot of suspicion that essentially GPs are being given

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money to put in their own pockets in order to reduce availability of services to patients. Some clarification on this would be appreciated. I beg to move.

Baroness Williams of Crosby: My Lords, the noble Lord, Lord Hunt, has raised an issue that has created concern in a great many quarters. The idea that an outstanding clinical group should be able to gain as a result of its outstanding performance but should then plough the money that came from that back into further improvements of the CCG is, I think, is broadly acceptable to the House. On the other hand, the possibility of such quality payments being used to benefit individual persons who are members of or partners in that CCG raises very large questions, not least about the relationship between patients and their providers within a CCG.

This issue deserves much longer consideration. It has caused quite a lot of concern in a number of quarters, some of which has been made available to us through e-mails and letters. I will not pursue the detail of the matter this late at night-I would be very unpopular if I did so-but this is not a trivial issue; it is a substantial issue and one that I hope that the Minister will feel able to answer briefly tonight, but, if not, perhaps he could return to it at a later stage.

Lord Patel: My Lords, my name is on Amendments 222, 223 and 223A, which relate to the same issue that both the noble Lord, Lord Hunt, and the noble Baroness, Lady Williams, have covered about the quality payments. It would be wrong if these quality payments were going to any persons, whether they be GPs or employees of the commissioning groups. If they are, my amendment says states we should specify in the Bill what they can be used for. It would be perfectly appropriate if they were used for improving patient care and better outcomes for patients-that is what they ought to be about.

Baroness Finlay of Llandaff: My Lords, this highlights clearly the difficulty we face when GPs are independent contractors. Improvements in patient care may result in increased capital investment, which is to the benefit of patients, but the capital investment is also essentially their practice pot, in some areas. If they then move on, we get into complicated areas as to what, at the end of the day, is the GP's personal funding and what is ploughed back into improvements. It is a major incentive to improve the premises in which you work, and everybody benefits from it. Systems have been in place until now for GPs to access funding to improve their premises. That has been necessary to drive up standards in primary care. When we are looking at this issue, the way that the Government tackle will to set a very important foundation for the whole direction of primary and community care services.

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