Live coverage as the Department of Health appeals against a ruling by the information commissioner that it must publish the risk register for the controversial health and social care bill
I’ll need to draw this blog to a close soon; Helene Mulholland will be filing a story on the rest of today’s evidence from the information tribunal, and our politics team will have more on the new amendments to the bill tabled by the government today.
A summary of today’s news:
• The health minister Earl Howe has tabled two new amendments to the health and social care bill ahead of debate in the Lords on Tuesday. The concessions would see Monitor, the independent regulator, retain more of its powers over foundation trusts; and place new requirements on trusts’ governors to vote on any proposal to raise a hospital’s income from private patients by more than 5% (see 3.28pm).
• The information tribunal hearing the appeal by the Department of Health against a ruling that it must publish two risk registers on the reforms has taken evidence from Una O’Brien, permanent secretary at the DoH, and Lord O’Donnell, former cabinet secretary. Both argued that publication of the registers could inhibit civil servants, who are currently encouraged to discuss possible risks “in a very forthright way”, and impede policy-making (see 2.19pm and 3.18pm).
• The Royal College of Physicians has today written to all of its members to garner their views on the bill, and whether the college should join the increasingly long list of those medical professionals calling for it to be dropped. Results will be in by March 15 (see 12.04pm).
And please do take a minute to tell us your own experiences of the NHS – and what the bill might mean to you. The link is here.
here. In it the health minister explains the two areas where the government is offering some concessions, the first on Monitor, the independent regulator:Earl Howe‘s letter to peers explaining the new amendments has been published on the Politics Home website
On Monitor’s transitional intervention powers, the amendments clarify the drafting of the clauses to make clearer which powers are in fact transitional and which are enduring. They also amend the clauses to provide that, rather than the transitional powers dropping away after the transitional period unless the secretary of state makes an order to retain them, the powers would remain until the secretary of state makes an order to remove them.
The second is on the private patient income cap – the bill proposes to allow foundation trusts to raise the proportion of their income they can earn from private patients to 49%. Howe writes:
On the private patient income cap, peers will recall that we made amendments in Lords committee to provide safeguards around the removal of the cap. In response to ongoing concerns, we have now tabled amendments, complementing our earlier ones, which provide further safeguards around transparency and around the role of governors in scrutinising plans to earn non-NHS income.
The background briefing notes and more details have been posted on the Department of Health website here: I’ll be having a look through but do let me know your thoughts below the line on the new concessions and what they amount to.
The Press Association has more detail on the new amendments proposed by the government for the bill in the Lords tomorrow. It reports:
Large increases in private work by NHS hospitals will require the approval of governing bodies, the government said in a bid to appease critics of its health reforms. In a concession aimed at securing House of Lords support for the shake-up, ministers promised a vote on any move to increase the proportion of private income by 5% or more.
Raising the cap to allow foundation trusts to raise up to 49% of funds through private work has been one of several controversial aspects of the health and social care bill. The Royal College of Nursing (RCN) warns the move will inevitably lead to longer waiting lists for NHS patients as hospitals try to take on more private work – something the government denies.
Ongoing opposition from medical professionals and the Lib Dem grassroots has prompted some concessions, it goes on:
Under the proposed amendments, planned private work and the expected income from it would need to be included in annual forward plans submitted by directors to a trust’s governors. The governors – the majority of whom are elected from within a trust’s membership – would be able to vote on any proposal which saw the proportion of income from that work rise by 5% or more.
In a letter to peers, junior health minister Earl Howe said the government had “listened and sought wherever possible to address concerns” and that the amendments provided “further safeguards”.
Lord (Gus) O’ Donnell, the former cabinet secretary, is now up at the information tribunal, reports Helene Mulholland. Speaking against the publication of the risk registers, he says they are not balanced, and overstate poor outcomes. The ability of civil servants to flag problems would be impeded by publication, he says.
O’Donnell says making docs publicwd be ‘v serious’ andadversely affect public debate.wd also change cs behaviour ‘quite radically’
— Helene Mulholland (@lnmulholland) March 5, 2012
Honestly? No one really knows, and anyone saying otherwise probably isn’t looking at the whole picture. The Bill is so huge and now so confusing due to the mass of amendments, that I find it hard to believe even the best Parliamentary Counsel (the guys who write the things!) would be able to explain the complete purpose of it in less than 15 minutes. Let alone be able to comprehensively explore all the possible outcomes. The level of discourse over the Bill, while generally being polite (at least in my experience), has been confused (on both sides), largely due to that no one really knows exactly whats in it! That alone is probably a good reason to abandon it now – how is such a Bill supposed to be realistically implemented, when it’s so huge and confusing?
On the news piece about the changes to the NHS posing greater risk to vulnerable children, there has been some interesting debate about the risks caused by the reforms.
The risk posed to children also needs to be considered in relation to the broader systematic risk that vulnerable children and families are facing. Benefit ceilings will see many vulnerable families having to move homes from the friend, families, and school etc that will make an enormous difference in protecting them. We also hear that refuges that house so many vulnerable women and children from domestic violence are having to turn people away and that charities catering to the needs of young people are under enormous strain due to cuts in local authority grants. Add this to the stress that Local Authority budgets are under then you see that vulnerable children are caught up in a storm that is the making of this coalition government. Cameron shouted long and hard about the tragedy of Baby P, I wonder if he will take responsibility for the inevitable tragic consequences of his governments policies and their impact on children.
With the strategic tiers of the NHS abolished, relaying on a patchwork of pseudo-independent comissioning consortia and isolated hospitals and facilities all competing, this will create an even worse health service lottery than we have now, and a severly disjointed and non-coordinated service, quite at odds with the sometimes imperfect but significantly coordinated, standard service you can expect today from any quarter of the NHS. This will of course affect all services for all age groups, a no-brainer.
It’s become pretty clear what (many of) the health professionals and others working within the NHS feel about the bill. But we’d like to know more about what our readers, and the public generally, think of the reforms and what their impact might be on you, as patients.
We’ve launched a call this afternoon for people’s experiences of the NHS – good or, er, ill – and how concerned (or otherwise) you are about the proposed changes. Do please nip over here to take part.
Helene Mulholland has sent more from the information tribunal over the publication of the risk registers, which is still hearing from Una O’Brien, the DoH permanent secretary.
Una O’Brien has been telling the information tribunal of her “deep concerns” that if the contents of the two risk registers are made public now, it would damage the relationship between civil servants and ministers in the future. She underlined the need for a “safe space” in which civil servants can be frank about potential risks, and said civil servants were deliberately encouraged to express themselves about potential risks in a “very forthright way” in order to grab the attention of ministers about the worst-case scenarios.
The strategic risk register and the transition programme risk register were drawn up in November 2010, three months after the white paper was published and just weeks before the framework bill was published in January 2011. She said the contents were drawn up at a “formative stage” and publication would have “distracted” the debate and misrepresented the risks, because the document was designed to highlight what could go wrong when the policy was being drawn up. She stressed that policy formulation had continued throughout the legislative debate. The risks were a snapshot at a given time and were part of the dialogue to assist policy formulation, she said: “You have to see them for what they are at a moment in time.”
You can follow Helene’s tweets from the tribunal here (@lnmulholland).
The two groups have surveyed the four strategic health authority clusters – London, North of England, Midlands and East, and South of England – about commissioning support for the new GP-led clinical commissioning groups (CCGs), of which the NAPC and NHSA have been staunch promoters.
They found that:
More than four-fifths of respondents expressed dissatisfaction with the rolling out of the programme of commissioning support, and less than a fifth said they were content … 70.7% expressed dissatisfaction with the commissioning support being offered.
Dr Charles Alessi, one of the few GPs invited to David Cameron’s recent summit on the bill, said:
This survey is just a snapshot of what is taking place locally around the country. Overall, the results do not inspire any confidence in the manner in which the clinical commissioning reform agenda is being rolled-out, nor, specifically, in the fact that CCGs are being allowed to exercise the very judgment that will be needed to meet the challenges of the NHS modernisation agenda … The health and social care bill was intended to liberate clinicians to work with their patients. But the reality, as the implementation agenda unfurls, is that what we are seeing here central control, which is incompatible with the intentions of the bill.
Clinicians must be given the scope to determine with whom they work and at what price … NAPC and NHSA will be voicing its concerns with the top of the office team at the Department of Health. Unless our concerns are addressed, the NHS will no longer be able to offer care to all free at the point of delivery across the range of services currently available and this country will regress in terms of the quality of care it offers and its status among first world Western countries.
The two organisations appear to be particularly concerned at the numbers of respondents using their local PCT for commissioning support, with their survey showing 20% had opted for this “because they were too busy to explore alternative arrangements” – although 26.7% said they had done so “because relationships with PCT support staff were good”.
News that the health minister Lord Howe has tabled some amendments ahead of the bill in the Lords tomorrow from our political editor, Patrick Wintour:
Earl Howe the health minister has sent amendments to peers today on role on Monitor, and a cap on Foundation Trust private patient income
— Patrick Wintour (@patrickwintour) March 5, 2012
More details to follow.
Tom Clark, one of the Guardian’s leader writers, has been looking ahead to the return of the health and social care bill to the Lords this week:
The great lesson of the recent welfare reform debates – in which eight splendid defeats were inflicted on the government in the Lords, but the legislation emerged more or less unscathed in the end – is that the ability of an ermine-trimmed rebellion to achieve anything solid depends upon obscure procedural rules that govern the Upper House.
In the welfare case, the rebellion ran aground on the so-called “financial privilege” conventions, which date back to the 1670s, and allow the Commons to prevail wherever serious money is involved. In the case of health, some have whispered that it is conceivable for the same trick to be pulled again – the health bill, after all, very much affects the way that public money gets spent. It would, however, be a high risk strategy. Peers (including Tories, such as Lord Lawson) have already railed against the way privilege was deployed in the welfare case, and to invoke it again against changes to an unpopular bill which will not save money could risk a constitutional crisis. It is, after all, only a convention – it regards on peers behaving “properly”, which they might be disinclined to do.
The key will be to keep an eye on what amendments are tabled today, Tom adds:
Today peers have to table any changes to the bill’s crucial competition chapter, if they want these to be debated tomorrow. Thus far the way things have worked is that peers make a complaint, and rather than risk a defeat the government then comes forward and makes changes in their own amendments. This happened, for example, on the important question of the secretary of state’s responsibilities. Nick Clegg and Shirley Williams recently wrote to colleagues proposing a small number of additional changes, touching on the private patient cap and the role of the competition commission, which they said would be enough for the Lib Dems to vote through the bill. With the deputy prime minister involved, we may be assured that these concessions are already granted, and will either be tabled by the deputy PM or instead put forward by the Lib Dems and then not contested, which might be shrewder choreography.
For Lib Dem malcontents, however, Clegg’s little list does not go far enough. They want to see the duties and powers of the health regulator Monitor being thoroughly overhauled to ensure that the bill does not force through private provision at the expense of public hospitals. They MAY lay amendments in the next few hours, and then push a vote at report tomorrow – and that really could be a crunch. The danger, however, is that if the rebels attempt this and do not pull it off – because they have not get their troops in order yet – they would lose their chance to amend further down the road. Lords rules do allow for amendments at later stages than in the Commons, but they preclude reintroducing last-gasp amendments which go over ground that has already been amended.
Therefore, I would predict, the malcontents are most likely to negotiate with the government, which will lead to a promise to go away and have a think and pull out another amendment at third reading, which really is the final stage. At that point the rebels would not be able to amend the amendment, so it really would be a case of taking it or leaving it, by voting against the bill as a whole. After Williams signed off on Clegg’s letter, my money would be on them taking it. But third reading is probably a couple of weeks away. Before then we have next week’s Lib Dem conference, which may or may not issue a demand for the bill to be entirely withdrawn. Should that happen it would, surely, stiffen a few noble spines. This outcome, however, depends not merely on the complex rules of the Lords, but also on how these interact with the equally obscure Liberal Democrat rulebook. Despite my best efforts to figure out how it will play out, I am afraid the best I can do today is conclude that we will have to wait and see. What I would say, however, is that any Liberal Democrat with hopes of putting a spanner in the works of the Lansley drive to marketise healthcare had better get on top of all this – and fast.
Sarah Boseley, our health editor, has filed a story on the latest moves by a royal college on the bill. The full story will be online shortly. Sarah writes:
The Royal College of Physicians is today sending out its survey to ballot all 26,000 members and fellows, asking whether it should formally reject the NHS bill, it announced in a statement.
The survey is the result of an impassioned and highly unusual EGM (extraordinary general meeting) of the college last week, where very strong opposition to the bill was voiced by most of the 189 attendees.
Although 89% of those present at the EGM said they believed the reforms would “damage the NHS and the health of the public in England” and 79% called on the RCP to demand its withdrawal, those votes were non-binding. The survey goes out today[mon] with a covering letter in which the college president, Sir Richard Thompson, calls for as many as possible to take part.
“The RCP urges all fellows and members to record your views on whether the RCP should formally reject the bill, and to indicate how you would like the RCP to proceed,” he says.
Our political reporter Helene Mulholland has just called from Bloomsbury, where she’s nipped out of the tribunal hearing to update me on the evidence that’s been heard so far. Una O’Brien, permanent secretary at the DoH, has been up this morning, defending the department’s decision not to publish the two registers in question: the NHS transition risk register and the NHS strategic risk register.
O’Brien insisted that the registers were often revised and the risks were “fluid”, reports Helene. The permanent secretary added:
“We deliberately encourage staff to express themselves in a very forthright way … They [the registers] are living documents. If taken out of context, my own judgment is that they would lead to a distorted and wildly speculative interpretation of risk.”
She pointed out that the legislation had changed a lot since the publication of the white paper in 2010. And interestingly, reports Helene – and contrary to much opinion elsewhere on this – O’Brien said that legislation was needed to implement all the reforms, including GP commissioning.
The chair of the tribunal has said it is not definite that there will be a decision by the end of the two-day hearing tomorrow, and that some evidence might need to be heard in closed session.
Our political reporter Helene Mulholland is at the information tribunal today. We’re expecting to hear from the following witnesses:
• John Healey MP, formerly Labour’s shadow health secretary – he made the original request to see the register under freedom of information rules in November 2010.
• Lord Gus O’Donnell, the former cabinet secretary.
• Una O’Brien, permanent secretary of the Department of Health.
• Prof Chris Ham, chief executive of the Kings Fund.
• Christopher Graham, the information commissioner.
Graham ruled in November 2011 that the DoH should publish the risk register: the ruling is here.
The ruling stated:
The commissioner finds that there is a very strong public interest in disclosure of the information, given the significant change to the structure of the health service the government’s policies on the modernisation will bring. There has also been widespread debate amongst the general public, commentators, experts and those who work in the NHS. The debate has covered the scale and pace of the changes being proposed. The commissioner notes that opposition to the reforms has been expressed by groups including the British Medical Association and the Royal College of Nursing. Disclosure would significantly aid public understanding of the risks related to the proposed reforms and it would also inform participation in the debate about the reforms. The commissioner must consider the public interest at the time the request was made.
The ruling summarised the DoH argument against publication here:
… the modernisation of the NHS is a high profile, sensitive and complex project and […] in its view officials must be afforded the freedom to use management reporting tools such as the strategic risk register without fear or concern that the information will then be placed in the public domain in an unmanaged way whilst the policy continues to be developed. This would, it suggests, hinder its ability to ensure correct and proper governance and robust management of such a policy.
Good morning and welcome to the NHS live blog at the start of another crucial week for health secretary Andrew Lansley’s reforms bill.
Today sees the start of a two-day hearing over the Department of Health’s refusal to publish the risk register for its reorganisation of the NHS. You can read more about the background to this here.
Tomorrow sees the return of the health and social care bill to the House of Lords, where it is in the report stage; there’s more again on Thursday.
On Wednesday the TUC has organised a ‘Save The NHS’ rally in Westminster.
At the end of the week, two of the remaining royal colleges not to have yet called on the government to drop the bill meet to discuss their next moves: the Royal College of Surgeons of England on Thursday, and the Royal College of Obstetricians and Gynaecologists the following day.
And then on Friday, the Liberal Democrat spring conference kicks off, with activists once again attempting to derail the bill (last year’s conference prompted the “pause” in the bill’s progress and the government’s listening exercise).