Happy New Year

Was playing this last night with my friends at a New Year party. I like the song and who it is about; Calum McLeod of Raasay who built a road by himself from Arnish to Brochel Castle, because the council wouldn't do it. He got a B.E.M for it, which just goes to show that if you want a knighthood, don't do honest work and don't upset the council. The tune is by Capercaillie. A Happy New Year to you all..

The Health and Social Care Bill - Unhealthy Consequences

Do read Jim and Margaret Cuthbert's excellent article 'Unhealthy Consequences' on how the Health and Social Care bill could affect public expenditure, the Barnett Formula and the budget of Scotland.

Happy Christmas

Wishing everyone a very Happy Christmas and a Guid New Year..

Don't Fare Dodge in Scotland..

I do not condone violence and I do not mean to emphasise the Scottish stereotype of the tough man, but simply wish to give a salutary warning to those who are unaware of our culture and customs; don't dodge your fare up here. Or we'll set aboot ye..

No Comment

An interesting blog article that I came across today.

Trump Card

Who's Responsible? CCGs and the 'Choice' Boomerang

Have just been on Jonathon Tomlinson's blog reading the latest briefing paper on the Health and Social Care Bill. Several amendments are being discussed tomorrow and Wednesday and you can read the briefing here,but the basic theme is about clinical commissioning groups and whether or not they are going to be responsible for a geographic area. This is the boomerang from allowing GP boundaries to be abolished and choice to reign. Of course, everyone thinks of this in terms of patient choice, but what is seldom discussed is that it also means that the GP practice has a choice about what patients it takes on and leaves out. Lord Newton of Braintree posed this question in the debate on the bill last week as follows;

Lord Newton of Braintree: My Lords, your Lordships will have realised by now that I am basically a simple-minded soul. I am struggling to discover what this issue is but it seems to come down to one specific point: do clinical commissioning groups have the same responsibilities as primary care trusts for planning services for all the people that they think live in their area? That is the core question. Do they have an area base—I dare to risk upsetting my noble friend—for their activities? I understand that it has been decreed that no practice can be part of two clinical commissioning groups; they cannot overlap and have to be distinct and separate. In a sense they are the same as primary care trusts. Do they have a responsibility to plan and provide services for all the people known to be in that area? The rest of this is all peripheral. I require services from the NHS both in London and at home in Essex, and I normally get them. But people in Westminster, where my flat is, know perfectly well that there are lots of second homes in Westminster, and presumably the health authorities and primary care trusts know that as well and plan on that basis. It is a simple question: does somebody have a responsibility to plan and provide services for all the people in their area? Yes or no?

Noble Lords: No.

And Here's One You Might Have Missed - The NHS as Kitemark

Here is a debate that happened mere minutes before the main debate on the Health and Social Care Bill. Blink and you would have missed it. I reproduce it in full.

NHS: Private Healthcare

Question

3.22 pm

Asked By Lord Collins of Highbury

To ask Her Majesty’s Government whether general practitioner practices are permitted to advertise their own private healthcare services using the NHS logo.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the Department of Health does not permit organisations, including general practitioner practices, to use the NHS logo to promote their non-NHS services, including private healthcare services.

Lord Collins of Highbury: I thank the noble Earl for his response, but of course most of us in the Chamber have read in the newspapers recently about the case of a GP practice writing to its patients. I believe that what happened there goes straight to the heart of general practice; that is, the relationship between the doctor and the patient. It is a relationship that I fear the Government show no sign of understanding. Will he give an assurance that the proposed form of commissioning in the health Bill will not result in the nightmare possibility of the doctor changing from the person who decides the best medical treatment for the patient to the person who decides what can be afforded?

Earl Howe: My Lords, I can give that broad assurance, but the noble Lord will know that it is already within the GMC code that doctors have to consider the totality of the resources available to them and take account of the needs of all their patients. With that qualification, of course our reforms are designed to ensure that the highest quality care is delivered to every patient according to his or her needs.

Lord Walton of Detchant: My Lords, is the noble Earl aware that in the 1980s, when I was president of the General Medical Council, it was unethical for doctors to advertise and those who did could be disciplined? However, I and a number of other members of the council were summoned before the Office of Fair Trading and were accused of restraint of trade. After a lengthy hearing, it was agreed that GPs should be allowed to advertise, but that consultants should not in order to preserve the gatekeeper function of a GP for access to special services. Has the situation changed?

Earl Howe: My Lords, the issue of advertisements is slightly different from the issue surrounding logos, in particular the NHS logo. What I can tell the noble Lord is that where independent providers have their own logo and wish to use it, they can within the specifications outlined in the NHS guidelines. In cases where organisations are providing both NHS and private services, and those could include a general practitioner, then the information relating to the private services must not carry the NHS brand or logo type, and information relating to the private services must be kept separate from the NHS ones.

Baroness Gardner of Parkes: I have been a national health dentist. Surely the national health logo could be in the premises without necessarily being on the advertisement. It is important that practitioners should be clear on these matters. Patients want to know what services are available, whether they are national health or private and what the choices are, and it would be a deficiency on the part of a national health practitioner not to at least have information available. How can you differentiate so that it is not claimed that the NHS logo has been involved when you are basically a national health practice?

Earl Howe: My Lords, other than for GPs, dentists and pharmacists, where use of the logo is voluntary—although it is very widely used—providers of NHS services are required to display the NHS logo as a sign of their commitment to the NHS patients that they treat. That is fine as far as it goes. However, where private services are also being delivered from the same premises, there are clear rules laid down that the NHS logo must be nowhere near any information about those services and that patients have to be absolutely clear what service they are receiving, whether it is NHS or private.

Lord Harris of Haringey: On the basis of that answer, does the noble Earl accept that it is inappropriate for an NHS general practitioner, during an NHS consultation with a patient, to offer their own private, non-evidence based-services instead of an NHS service—in other words, to offer their own private services in the context of an NHS consultation? I speak from personal experience.

Earl Howe: My Lords, except in limited circumstances, which must be set out in their contract, primary medical service contractors—GPs, in other words—cannot directly or indirectly seek or accept from any of their patients a payment or other remuneration for any treatment. The prohibition not only relates to treatment provided under the primary medical services contract but extends to any treatment that may be provided to the patient.

Baroness Jolly: My Lords, we all agree that the NHS logo must be one of the most trusted brands in the UK. It is currently outside diagnostic and treatment centres which are privately run, so can the noble Earl tell the House whether the Government will issue guidance to any qualified private providers about the use of the logo?

Earl Howe: The rules as regards any qualified private providers will remain exactly as they are now. There must be absolute clarity as to when services are being provided by the NHS and when they are not.

Baroness Thornton: My Lords, perhaps I may press the Minister, following on from the question of the noble Baroness, Lady Jolly. I looked at the NHS brand guidelines website and it is most specific about the colours, size, margins, borders and even communication principles. It is silent, however, about who cannot use the NHS logo. It has a list of organisations which can use it but is silent about who cannot. Given that we may be heading towards a world with a multiplicity of providers, will the Minister undertake to look at the NHS brand guidelines with a view to making it clear under what circumstances the brand may or may not be used?

Earl Howe: I will, of course, look at that point. However, the NHS logo is considered to be the cornerstone of the NHS brand identity. The letters NHS and the logo type are trademarks managed by the branding team at the Department of Health on behalf of the Secretary of State for Health, who technically holds the trademark. They are extremely well recognised and trusted, and use of them is very carefully controlled indeed.

Baroness Finlay of Llandaff: Are the Government satisfied that the general practitioners in the focus of this Question were not subject to double payment—first, paid under the terms of their GMS contract for general medical services to patients on their list, and, secondly, then receiving private payments for giving the service that had already been paid for under the GMS contract?

Earl Howe: My Lords, I have already indicated that there must be a clear separation between NHS services provided by a general practitioner and its private services—or indeed services for which it is entitled to charge that fall outside its contract. The rule is that patients should be left in no doubt about which service they receive.

Hmmm... Do We Have a Duty or Not?

Right, I admit it. I'm thoroughly confused. The Health and Social Care Bill is being picked through just now, clause by painful clause and today the most important clause; clause one which determines the duty of the Health Secretary to provide healthcare was being gone through. Two amendments in particular were locking horns and were as follows;

Amendment 3 (Baroness Williams)

2)‘The Secretary of State must for that purpose provide or secure the provision of services according to this Act.’

Amendment 4 (Lord Mackay of Clashfern)

2 For that purpose, the Secretary of State –

a) Retains ultimate responsibility to Parliament for the provision of the health service in England, and

b) Must exercise the intervention and other functions of the Secretary of State in relation to that health service so as to secure that services are provided in accordance with this Act.

Shirley Williams withdrew her amendment and allowed Lord Mackay's to go forward instead. I wasn't particularly happy about this, because it seemed to me that Amendment 3 was a) shorter and b) clearer. There was also an argument about whether 'ultimate responsibility' had a meaning in legal terms. Shirley Williams said that the reason she withdrew her amendment was because if it was voted on at that point and rejected, the house could not return to it, so maybe the Lords are going to play with Amendment 4 and if they can't make it work, go back to Amendment 3. But I'm still uneasy about it.

After that, I decided to read the bill in its present form. To my surprise I found this;

“1 Secretary of State’s duty to promote comprehensive health service

(1) The Secretary of State must continue the promotion in England of a comprehensive health service designed to secure improvement—

(a) in the physical and mental health of the people of England, and

(b) in the prevention, diagnosis and treatment of illness.

(2) For that purpose, the Secretary of State must exercise the functions conferred by this Act so as to secure that services are provided in accordance with this Act.'

Now, this is different to what we were all objecting about. The weasel phrase 'act with a view' has disappeared and although the phrase 'provide or secure' has also gone and replaced with 'so as to secure that services are provided' this isn't half bad. So when did this happen? And is that now going to be replaced with Lord Mackay's amendment?

If anyone can help with this, let me know. In the meantime, here's Shirley William's opening speech in full. I'm still doubtful about this. I keep getting a picture of a nice washed woolley sheep on a string, leading all the other sheep into the slaughter pen. I really hope I'm wrong.

Baroness Williams of Crosby: I apologise for the slight delay in rising to my feet—my understanding was that the Minister was proposing to start the debate by making a statement. I apologise for delaying the House. Let me say right away that I do not resile in any way from the amendment which the noble Baronesses, Lady Jay and Lady Thornton, the noble Lord, Lord Patel, and I have put down. We believe that it is important to have an absolutely solid basis by which the whole of the House and the public can understand exactly the accountabilities and responsibilities of the Secretary of State. It is therefore of great importance that this House, in this crucial Committee sitting, is able to reach a clear understanding of what those responsibilities and accountabilities are.

I very much hope that that will be possible as there are still legal questions about the particular meaning of both the amendment put forward by the noble and learned Lord, Lord Mackay of Clashfern, and the amendment put forward in the names of the noble Baroness, Lady Jay, myself and others. There are still difficulties and differences of opinion between legal voices about exactly what the forethought of those amendments is and just how clearly they lay out the responsibilities and accountability of the Secretary of State. Some Members of this House will recognise that one difficulty is that the Secretary of State is extremely anxious to avoid any further micromanagement of the health services because he believes that it would reduce professional discretion. I think that many of us sympathise with that argument.

The difficulty is that many of us also believe that the Secretary of State should have clear accountability for the very large sums involved in financing the NHS at present. We also have regard to the fact that there are certain crucial responsibilities revolving around things such as national emergencies for which we believe the public would expect the Secretary of State to be the person responsible. So on constitutional grounds, and on grounds of financial accountability and clear responsibility in certain areas of national concern, we are anxious to see that the Secretary of State retains those responsibilities. However, the possibility of drafting legislation which comprises both the issue of having no micromanagement and the issue of the crucial ultimate responsibilities of the Secretary of State has proved somewhat elusive. In that situation, I hope very much that the Government will consider pressing ahead with trying to draft acceptable legislation for Report stage, when I hope there can be broad agreement about what the responsibilities are. I cannot answer for my noble friend the Minister, of course, but I hope that he will give consideration to that request.

Perhaps I may quickly add three other considerations. The first, which I have mentioned already, is the area of legal ambiguity. I think that all Members of this House will have heard clashes of opinion about the precise meaning of the amendment before us. I regret that, and I hope the legal profession will forgive me for saying that when there is more than one lawyer in a room there is very often more than one opinion. That is exactly the situation in which we find ourselves. Secondly, many of us feel—I would certainly speak for myself and my party, and this point was raised by the noble Baroness, Lady Jay—that it is absolutely critical to look at Clauses 4 and 10 together with Clause 1, rather than trying to take them separately. They are intimately interrelated. Many of us recognise that to make a change in Clause 1 without taking on board the implications of Clauses 4 and 10 would leave us in a world of deep twilight uncertainty.

The third issue is perhaps a bigger one; perhaps it constitutes a vision that I profoundly hold. I think we all recognise that the NHS is deeply cherished in this country. It is something to which people cling, as they find themselves facing financial hardship, as one of the few certainties and areas of trust that they can rely on. However, we also know without any doubt of the essential need for change in the NHS—my noble friend the Minister and others have made this absolutely clear—if we are to be able to finance an aging population, and not least, although we often neglect this, the very welcome survival of far more people with chronic sicknesses than used to be the case even 20 years ago, all of which lays heavy responsibilities on the health service. Because of that, I for one feel strongly that the greatest prize that this House could give to the future of health services in this country would be to reach a broad political consensus on the issue, so that the NHS and other health services, as they go forward, find that they are based on a solid rock of acceptance and consensus that will carry us through many of the ups and downs that we are bound to face in the next few years.

3.45 pm

Therefore, I ask the Minister of State whether he will consider asking those of us who have put down amendments—I am one of them—to withdraw them in light of the need for further discussion. That would allow us to bring forward, I hope, a very broadly agreed proposal at Report stage in this House, when we have also considered the issues around the autonomy clause.

Finally, I add one more thing, for which I hope I will be forgiven. I know that those who have been in the House for a long time are fully aware of this, but it may be helpful for those relatively new Peers who are not fully aware of it. If an issue is brought up in Committee and then voted on and voted down, it cannot come back again on Report or at any other stage of the proceedings on the Bill. That would be disastrous. It would mean that if any vote were carried, we could not then go back to trying to get broader and stronger agreement on Report. It would simply mean that the whole issue disappeared. This is far too important an issue to be allowed to disappear. Therefore, I plead with those who I fully understand passionately support my amendment or that of the noble and learned Lord, Lord Mackay of Clashfern, to allow their passions to be put to one side, temporarily at least, while we contemplate the absolute necessity of debating this more fully, trying to draw a consensus from it and accepting that we can go back to these matters on Report, when a vote would be appropriate, right and timely.

Make of that what you will. And for those who followed the link on the amendments, here's what happened to them. There's some important stuff in here, but I'll cover more of it in another post.

Amendment 3 withdrawn.

Amendments 4 moved.

Amendments 4A (to Amendment 4) not moved.

Amendments 5 and 6 moved.

Amendment 7 withdrawn.

Amendments 8 to 8A not moved.

Amendment 8B had been withdrawn from the Marshalled List.

Amendment 9 withdrawn.

Amendments 10 to 11A not moved.

Amendment 11 withdrawn.

Amendment 11A not moved.