Health and Care Bill

Committee (6th Day)

Clause 20: General functions

Amendment 106

106: Clause 20, page 20, leave out lines 20 to 43

My Lords, Amendment 106 is in my name and those of my noble friend Lady Walmsley and the noble Baroness, Lady Thornton. I am very grateful for their support.

Two months ago, two of our Select Committees, the DPRRC and the SLSC, published simultaneous and collaborative reports. The DPRRC report is entitled Democracy Denied? The urgent need to rebalance power between Parliament and the Executive, and the SLSC report is called Government by Diktat: A call to return power to Parliament. It would be very hard to exaggerate the importance of these reports, and I congratulate both committees on a very timely and disturbing reminder of the Government’s habit of trying to bypass Parliament and avoid effective scrutiny, as they do again in this Bill.

Both the reports focused on the long-standing abuse of the use of delegated powers legislation, and the DPRRC concluded:

“The abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy, and this report will, we hope, be a prompt to strengthen Parliament in the coming years.”

We can make a start on that hope with this Bill.

The DPRRC noted in its report of 15 December that the Bill contains 155 substantive provisions and 156 delegated powers. It concluded:

“The Health and Care Bill is a clear and disturbing illustration of how much disguised legislation a Bill can contain and offends against the democratic principles of parliamentary scrutiny.”

The report examines some of the Bill’s clauses in some detail, including the insertion via Clause 20 of a new Section 14Z48 into the National Health Service Act 2006. Essentially, the new section gives a Minister the power to make law by simply publishing “a document”. The department tries to justify the lack of any parliamentary procedure associated with the publication of a document on the grounds that the power is concerned with operational and administrative matters. However, the DPRRC goes on to say:

My Lords, the noble Baroness, Lady Brinton, is taking part remotely and I invite her to speak.

My Lords, we have just heard a very powerful contribution from my noble friend Lord Sharkey, reminding Ministers and your Lordships’ House of the importance of the problem of Ministers taking delegated powers, stopping Parliament doing its job properly. I support his amendments.

Amendments 133, 139 and 161 in this group, from the noble Baroness, Lady Greengross, are on continuing healthcare and I can think of no better person in your Lordships’ House to speak about the importance of that. I look forward to her speech. I am pleased to support her amendments and will speak to them now. The NHS definition says:

“Some people with long-term complex health needs qualify for free social care arranged and funded solely by the NHS. This is known as NHS continuing healthcare.”

The full continuing healthcare assessment and the toolkit for updating assessments are absolutely vital for any multidisciplinary team and, at least in theory, these amendments put them on a formal footing as part of the smooth package of care that individuals need. The amendments establish a duty to fund and assess continuing healthcare, which needs to be visible, not least because of the abuses in the current system.

The principles of continuing healthcare in current legislation are fine, but unfortunately, as money has got tighter, there are problems with how they work in practice. There are many reports of CCG assessors and social workers having disruptive and degrading discussions, sometimes with family members present, about whether a particular issue is a continuing healthcare or a personal care need, which would be funded by the patient or their local authority, or the NHS. I personally witnessed a debate about the percentage split of continuing care versus personal care concerning the incontinence of a family member. It was not about the patient; it was solely about money and who would pay.

On the use of the toolkit, Beacon’s website states:

“When the Decision Support Tool has been completed and considered by the Multidisciplinary Team, they should have a genuine and meaningful discussion about whether they feel the individual has a primary health need. This is a role for the entire MDT, not just the CCG’s coordinating assessor and the social worker.”

“Not just” is an interesting phrase to use. The actual power is entirely in the hands of the parties who have the funding—in this case, either the CCG or the social worker; of course, the social worker acts on behalf of either the patient or their local authority. The reality is that it becomes a negotiation about who pays and can, as I said, end up as a haggle over percentages. It can feel as though the patient’s needs were long dispensed with. That is why these amendments are so important.

Amendment 133 states that ICBs’ annual reports must cover

“all commissioned services, including NHS continuing healthcare”.

I believe that this requirement will bring more focused attention on the assessments and the negotiations. Amendment 139 would require a performance assessment of continuing healthcare assessments, their results and their consequences. Finally, Amendment 161 would ensure regular reviews and performance assessments of continuing healthcare assessments, their results and their consequences.

The Government say that this is the Bill that will transform the commissioning of health and social care. In a perfect world, they would be a seamless service, both properly funded to deliver what the patient needs. By adding continuing healthcare to the Bill, it will be strengthened, and that golden thread between the NHS and the social care sector will run all the way through it. I hope the Minister will accept these three amendments, which would help to deliver exactly the change the Government want.