Health and Care Bill — House of Lords, 2022-01-26
Topic: Health
Syed Kamall (Conservative, Centre-right): My Lords, I thank the noble Lord, Lord Sharkey, and the noble Baronesses, Lady Finlay and Lady Greengross, for bringing this group of amendments I understand the intention behind Amendment 106, on payment to providers, which is to remove new Section 14Z48 in its entirety, but the section will allow NHS England to specify the circumstances in which an ICB is liable to make payments to a provider for services commissioned by another ICB The Government are committed to ensuring that delegated powers in the Bill use the most appropriate procedure, so that Parliament has due oversight of their use. We recognise that the Bill contains a significant number of guidance-making powers and powers to publish documents. However, we believe that they are appropriate because, as the noble Baroness, Lady Walmsley, said, they reflect the often complex operational details and the importance of ensuring that the guidance keeps up with best practice, especially as the system flexes and evolves. I understand the noble Baroness’s point about Parliament, but the issue here is whether, every time the system flexes, Parliament has to have another debate. The ICBs will be reading the guidance, not Hansard, and the guidance should reflect that Nor is it our intention to interfere unduly in the financial affairs of ICBs. Instead, the intention is to resolve specific circumstances, such as emergency services. The legislation makes it clear that each ICB has to arrange for urgent care services to be available for all people physically present in the area, not just for the people who are its core responsibility by virtue of their GP registration. I am sure noble Lords will agree that it would be neither fair nor in the best interests of promoting an efficient health service for the ICB to both arrange and cover the cost of all additional emergency treatment brought by visitors to the area, particularly in areas with high visitor numbers. A number of noble Lords referred to that principle in debates last week Instead, this provision allows NHS England to mandate a different payment rule for those services, ensuring that, where necessary, the ICB where a patient is registered will pay, rather than the ICB where they receive treatment. This ensures that the financial impact is felt in the right commissioning organisation and eliminates the risk of some ICBs having unreasonable financial demands placed on them—for example, during the holiday season The wording of this provision replicates almost exactly the National Health Service Act 2006 as amended in 2012, but it is updated to reflect the new ICB structure. As my noble friend Lord Howe mentioned to me, we had a massive debate about this 10 years ago, but the provision seems to have worked effectively in the CCGs, and we wish to continue that with the ICBs Amendments 143 and 144, in the name of the noble Baroness, Lady Finlay, are about NHS England directing ICBs. I understand the interest in ensuring that NHS England has the necessary tools to intervene in ICBs where necessary. However, we believe that NHS England already has sufficient powers to direct ICBs. NHS England already has certain powers to direct an ICB under Section 14Z59(2), and powers to intervene over ICBs in order to prevent failure and to ensure that the lines of accountability from ICBs through NHS England to Parliament are strong However, this power has a threshold in that it can be used only if NHS England deems an ICB to be failing to discharge a function or at risk of failing to do so. The threshold removes the possibility of NHS England overdirecting the system while retaining the power for use if necessary. This balances the need to prevent failure and to support accountability with allowing ICBs the autonomy they need to operate effectively Amendments 133, 139 and 161 expressly require that ICB annual reports and NHS England performance assessments of ICBs include specific consideration of commissioned services, including NHS Continuing Healthcare, which noble Lords have spoken about, and that the CQC reviews of ICSs include specific consideration of that. We agree with the principle, but we believe that it is already covered in the Bill. NHS England already has a key role in overseeing ICBs. For example, the Bill requires NHS England to assess the performance of each ICB every year, and ICBs are required to provide NHS England with their annual report. These reports will include an assessment of ICB commissioning duties, which would encompass any arrangements for NHS Continuing Healthcare In addition, as noble Lords are aware, Clause 26 gives the CQC a duty to assess integrated care systems, including the provision of relevant healthcare and adult social care within the area of each ICB. This would include the provision of NHS Continuing Healthcare. We intend the CQC to pilot and develop its approach to these reviews in collaboration with NHS England, but also with other partners in the system. This should ensure that the methodology does not duplicate or conflict with any existing system oversight roles With this in mind, we believe that these amendments are not necessary, because commissioned services, which we would expect to encompass NHS Continuing Healthcare, are already included in these clauses. I hope that I have been able to somewhat reassure your Lordships. For these reasons, I ask noble Lords not to press their amendments.