Agenda item

Mr Roger Gough, Cabinet Member for Corporate Support Services and Performance Management, Ms Katherine Kerswell, Group Managing Director and Mr Martyn Ayre, Senior Policy Manager have been invited to attend the meeting between 10.45am and 11.30am to answer Members’ questions on this item.

Mr R Gough, Cabinet Member for Corporate Support Services And Performance Management, Ms K Kerswell, Group Managing Director, Mr O Mills, Managing Director, Kent Adult Social Services and Mr M Ayre Senior Policy Manager were present for this item.

(1) In response to a request from the Chairman for an overview of what local authority responsibilities would be expected to be, Mr Mills set out the details and implications of the proposals in the White Paper, ‘Equity and excellence: Liberating the NHS’. These included:

o         The proposals were in line with the Government’s approach to localism, which is a different way of approaching how local services support local communities.

o         There would be a much stronger role for Councils than currently within the NHS.

o         The creation of GP Consortia, which would commission most health services, and the NHS commissioning board

o         Local Health and Wellbeing Boards, which would mean that Councils would be overseeing the health improvement agenda.

o         A closer alignment of Health and Social Care

o         The role of Local Improvement Networks (LINks) being undertaken by Healthwatch (inspired by an existing model in Kent) which would present opportunities for user voice to be brought together at the local level and for Healthwatch to be shaped beyond the way LINKs was operating.

o         A change to the role of the Health Overview and Scrutiny Committee. It was not clear what the scrutiny arrangements would be, but Councils would be likely to have a role. 

(2) Mr Christie raised the point that the outline of the response was discussed at the Adult Social Services Policy Overview and Scrutiny Committee and Members were told that it would be presented at County Council on 14 October. He went on to ask why this had not happened, given the importance of the subject, and Mr Manning asked if there would be another opportunity for Members to comment on the Government proposals. Mr Gough responded that County Council was after the submission and the agenda was extremely full, but given the importance of the topic there would be a Member seminar on 8 November which would provide an opportunity to debate the issues. There were still significant uncertainties, and the publication of the Bill would present additional opportunities for the Council to feed back on the proposals. Mr Ayre added that there would be a Government response to the feedback received during the formal consultation process, and that when the Bill was presented the Council would be briefing whichever organisation had the ear of those debating the issues (for example the Local Government Association, the Society of Local Authority Chief Executives or the Association of Directors of Adult Social Services). This would be particularly important at the committee stage, when most changes that may be required to legislation were carried out.

(3) Assurances were sought that a subject of paramount importance to the people of Kent was being dealt with appropriately, rather than as part of another agenda, with input from the best people from across the Council. Mr Gough reassured the Committee that this was already being done, and that he was drawing together the work at Cabinet level, with involvement from the Cabinet Members for Public Health, Children, Families and Education and Adult Social Services, and a bespoke event had been put together as the start of that process. His role was also to ensure the subject had an agenda of its own, since it was the biggest change to the NHS since it had been created. Ms Kerswell added that at officer level the subject also cut across multiple directorates, and that Mr Mills was leading on behalf of CMT to bring together colleagues across the piece. It was not being tucked into a box under another label, but instead was a significant agenda, as evidenced by the work of the Joint Transition Board, which would be comprised of people across the directorates and PCTs. In the same way that the NHS would have internal transition arrangements, conversations would need to take place about how this would be managed within the Council.

(4) Referring to previous Council responses to Government consultations, the Chairman accepted that the consultations were being released rapidly and might not fit with the timetable of committees, but expressed a view that there should always be an opportunity for Members to access and have input into responses before they were submitted. Mr Gough acknowledged this and made clear that he was conscious of the collective expertise of Members, many of who had worked within PCTs or served on HOSC, and stated that he would be trying to make use of the expertise of Members in working on the NHS proposals.

(5) The Chairman asked how the public would be able to keep up with the changes to the NHS if Members were having difficulty doing so. In particular, if the proposals were too complicated and jargonistic to understand this would be at odds with Government aspirations for there to be a louder patient voice. She asked if there would be a role for KCC to engage with the people of Kent as interpreter, to ensure there was a reasoned public debate, rather than it being driven by headlines. Mr Gough responded that this was an interesting point that he would take on board. Mr Ayre added that the need for a communications strategy had been acknowledged in the draft transition plan, and that everything henceforth would need to have an outward facing aspect to ensure the public remained engaged.

(6) Mr Mills stated that there was always a tension between putting momentum behind far-reaching changes without overtaking where the legislation lies; there was not yet a statutory basis for GP consortia or other elements of the proposals. He agreed that there was a need for the right kind of communication to ensure that the public would have the opportunity to be engaged and shape and influence the NHS, but it would be important not to second guess the legislation.

(7) In response to a question why, since the consultation response repeatedly spoke of lack of clarity, it did not suggest that the Government’s proposals be presented in a Green Paper, Mr Gough responded that Green Papers are options papers, whereas the NHS White Paper sets out a clear policy direction. Although there were areas in the White Paper that were not clear, it was common for certain aspects of White Papers and Bills to lack detail. Mr Ayre added, on the subject of lack of clarity, that measuring outcomes in Health was a very technical area, and in his opinion the supplementary paper on Outcomes showed signs of being rushed and that although there had been a sea change in the performance management regime, the NHS were uncertain what it would be replaced with.

(8) In relation to a question in the consultation about the role of statute, Kent responded that it would be happy with a degree of statutory obligation, but would want flexibility about how they operated within it. However, it also stated that legislation should cover the role of scrutiny and referral. The Chairman asked what the thinking was behind a request for legislation around scrutiny but less legislation about the pattern that the organisation should take. Mr Ayre stated that the response asked that the Bill set out some minimum standards in terms of powers of referral about meeting in public, but that the process for the Health and Wellbeing Board and scrutiny function be left to local determination, and that the Bill set out minimum standards around this.

(9) There were a number of questions about the role of scrutiny, external audit, and how those with new responsibilities would be held to account, particularly as Councils would have new scrutiny and commissioning responsibilities and this might cause a conflict of interest. In response to a question from the Chairman about whether there was an emerging view about how scrutiny would be managed, Mr Gough agreed it was an emerging topic and drew the Committee’s attention to the Council response to question 14 of the consultation. Whilst it was clear that Health and Wellbeing Boards would take on specific roles, HOSC, or its local equivalent, would need to fulfil a robust, independent scrutiny role and there would also need to be measures to carry out public engagement, which might be fulfilled by Healthwatch. The response had highlighted that there was an issue about independent scrutiny outside the Health and Wellbeing Board, since it would be implicated in many of the key decisions. Mr Ayre added that there was no consensus about the future role of scrutiny, but he thought it inevitable that scrutiny would have to be done internally and commissioned externally.

(10) Mr Christie asked why, since the number of PCTs had caused a variation in service across the country and the move from five to two PCTs locally had been welcomed because of improvements in consistency and working relationships, the response appeared to welcome the number of organisations Kent would have to deal with in future. He also made the point that the central administration of the NHS was due to the need to standardise services, and that many people were concerned about the potential for a ‘postcode lottery’ within the NHS. It was his view that this was a direct result of localism, and that the creation of multiple consortia with various flexibilities and freedoms would exacerbate this. Mr Ayre responded that there was likely to be an evolving number of consortia and that there would be provisions for consortia to federate, in order to act as lead commissioners on behalf of each other.  Mr Gough added that GP commissioning fitted the overall Government philosophy of localism and that significant elements of the support structure might be on a wider scale than individual consortia, but agreed that there was a tension because one person’s localism was another person’s postcode lottery.

(11) Members expressed a range of views about public perception of the NHS, perceived inefficiencies and the adequacy of access arrangements, but there was consensus that the services were universally valued. Concern was expressed about the potential for disparity between the services provided by different consortia, and there was a feeling that disparity already existed between East and West Kent PCTs. Mr Mills responded that concerns about disparity echoed those expressed by LINks, and those of patients more generally.  The Chairman suggested that there would be benefits to working with the consortia to ensure a degree of coterminosity with Council boundaries, and that other Councils were looking into this, and went on to ask whether Kent were doing the same. Mr Gough responded that he agreed in principle and would be keen to ensure that this happened as much as possible, particularly given the agenda of localism and area based commissioning and the role of District Councils in the public health agenda, although it might not be wholly within the Council’s gift.

(12) Mr Christie asked that if the intention was to extend Direct Payments from social care to health, whether this would mean that the needs of an individual would be evaluated, money allocated to those needs and then the individual would be expected to purchase the required services from the market. Mr Mills responded that there was a Personal Health Budgets (PHB) pilot taking place with East Kent and Coastal PCT, where 18 people were using the Kent Card to purchase services. He commented that PHBs could not be used to purchase acute care, but they were a step towards personalisation and an excellent way of pulling together health and social care. The Government were behind extending personalisation into health in a gradual manner, and would be evaluating the 15 PHB pilots across the country. The Kent Card put KCC in a strong position to extend this further.

(13) Mr Christie questioned where in the Kent response the potential weaknesses of GP commissioning were addressed and made reference to the response of LINks. Their response suggested there was strong opposition to the GP commissioning of health care services, with concerns that patient care would suffer from GPs taking on work outside of their expertise. Mr Ayre responded that there were already 14 Practice Based Commissioning (PBC) groups operating in Kent. Not every GP would need to be involved in commissioning; instead it was important to establish whether there was a sufficient critical mass of GPs with the commitment to achieve it, and until discussions had taken place with GPs in Kent it would be difficult to know whether the capacity or ability was there. He added that if the Government were intending to put GP commissioning at the heart of the NHS, they were likely to ensure it was sufficiently resourced and able to happen. It would also be important to ascertain the legal status of GPs and their liabilities once the Bill had been introduced. The Chairman asked if there was any feedback from patients with experience of the PBC pilots, to which Mr Ayre responded that there was no formal feedback but he would make inquiries.

(14) Referring to the Council responses to questions 1 and 20 in the Regulating Health Care Providers paper, Mr Christie raised concerns about the removal of a cap of what private patients could be charged and the abolition of central targets to treat patients within a certain time. He asked why the response did not comment about the possible consequence that without targets for treatment, Trusts might allow private patients to be treated ahead of those without the means to pay and that this may prevent the aspiration of care free at the point of use. Mr Ayre responded that the current cap is arbitrary, and if it was removed there would need to be checks and balances, which would be best fulfilled by local scrutiny functions. In relation to the waiting times, he responded that whether or not there were national targets, it would be likely that local contracts would address such things as waiting times and lengths of stay, although this had not been covered in the Kent response. Mr Gough stated that, although it was not clear how the commissioning relationship between GP consortia and Councils would work, since both parties would be locally accountable they would have reason to be responsive.

(15) The response to a question in the consultation about whether proposals should include provisions to prevent anti-competitive behaviour suggested that Kent did not support this. Mr Christie expressed a concern that in the Cabinet debate, the free market approach within the NHS was mentioned on a number of occasions.  Mr Gough explained that the response did in fact cover the subject of others who might play a role in policing anti-competitive behaviour (e.g. the Office of Fair Trading), but the specific point made by Kent was about the potential for mission creep of Monitor and that the policing of anti-competitive behaviour could be addressed without the need for Monitor to expand and take on that role. He said that diversity of provision would be a positive, but that was a different issue from universal care, free at the point of use. Mr Ayre added that the question of anti-competitive behaviour had never arisen in relation to the NHS but that regulation of competition could be more efficiently handled within the Care Quality Commission.

(16) Responding to a question about the role of Councils in managing cost pressures on Health budgets, Mr Ayre stated that the consultation documents made it clear that it would be the ultimate responsibility of GP consortia to manage any pressures on NHS funds and that there was no clear expectation for Councils to do this. However, there might be opportunities for Councils and consortia to identify efficiencies, such as redesigning care pathways. However, the situation would become clearer when the Bill was presented to Parliament. Ms Kerswell stated that the demographic predictions for Kent, of a growing population of older people, and the associated increase in care costs would need to be managed. Referring to a meeting between herself, the Leader and the Chief Executive of the NHS, Sir David Nicholson, Ms Kerswell stated that there was acknowledgment that both the Council and NHS would need to look at how increased demands and costs could be jointly managed. She suggested that there might be a role for Members in overseeing how those pressures would be handled, due the Council’s future commissioning responsibilities.

(17) Concern was also expressed about the risks associated with the transition, access to services and understanding patient needs in the future and it was asked whether a risk register was being formulated, or whether this would happen when the Government had responded to the feedback. Mr Mills stated that Kent had been working very closely with the three Kent PCTs and Kent and Medway Partnership Trust (KMPT) to develop a transition plan which would ensure all responsibilities would be passed over to the consortia, the NHS commissioning body and the Council before 2013. There was a myriad of risks both countywide and more locally, including the transfer of existing arrangements such as Section 75 agreements, and these would be contained in the transition plan, which would include a risk register.

(18) Mr Mills also commented that in the past the Government had put in place a framework for delivery of services, but the proposals set forth outcomes that would be delivered. The role of Healthwatch would be pivotal to ensure this happened, and other authorities were looking to Kent to see how this would be implemented, since Kent were in a strong position, having already made a good start through their local Healthwatch. The Council would be looking at reducing its expenditure as much as possible and although the NHS budget was protected, there was increasing demand and the rising costs of drugs and technology presented further pressures.

(19) A question was posed about the possibility of staff being transferred from the NHS to the Council under Transfer of Undertakings (Protection of Employment) Regulations. Mr Ayre stated that this had been considered by the Council, and although no formal legal advice had been sought, he and Mr Mills would be discussing the matter when they met with the Chief Executives of the Primary Care Trusts that evening. Mr Gough added that PCTs would be expected to reduce their management costs by 50%, and that the number of staff who were involved in commissioning were surprisingly small. Instead, there had been an increase in the number of NHS staff as a result of fulfilling reporting requirements and targets set by Government, and these requirements would soon be removed.

(20) Responding to a comment that the NHS was often seen as a top heavy, process-driven bureaucracy, Mr Gough made the point that the White Paper proposals would rectify this, by inverting the existing direction of travel from the centre, through Strategic Health Authorities (SHAs) to PCTs. Mr Manning expressed concerns that Kent’s response had not been sufficiently robust, particularly in relation to the general comments which had been made by the Council. Mr Gough responded that the executive summary set out the Council’s wider thinking and that it supported the policy direction of the White Paper but that the response also made clear where the Council disagreed, such as the role of Monitor. He also reassured the Committee that terminology such as ‘unclear’ would be perceived by civil servants as quite forceful.

(21) The Chairman asked if the proposals would produce a more understandable process and set of managerial responsibilities within the NHS than existed currently, and a Member also asked about how NHS management would be slimmed down.  Mr Gough responded that he hoped that the proposals would result in a simpler and more embedded Health organisation, but it would remain to be seen if it would be more comprehensible. Mr Ayre commented that the task had been set to extract £15-20 billion in efficiencies over the following four years.  The White Paper referred to a fixed management fee from which GP consortia would purchase all their support and ancillary services.

RESOLVED that the Cabinet Scrutiny Committee:

(22) Thank Mr Gough, Ms Kerswell, Mr Mills and Mr Ayre for attending the meeting and answering Members’ questions.

(23) Ask the Group Managing Director to ensure that the protocol for responding to consultation documents is either amended or (if considered satisfactory) adhered to, so that responses to Government consultations are made available before submission to enable Members to have the opportunity to have input into the final response.

(24) Ask that the Cabinet Member for Corporate Services and Performance Management ensure the concerns of the Cabinet Scrutiny Committee are incorporated into the discussions scheduled to take place on 10 November and responded to in full in due course, as follows:

a)           The lack of clarity of proposals made responding to the consultation very difficult.

b)           That there is no funding identified for any staff subject to Transfer of Undertakings (Protection of Employment)

c)            It is not clear how scrutiny may work, particularly as there may be a conflict of interest between the scrutiny and commissioning functions.

d)           Behaviour of the Council in relation to some of its potential functions under the proposals might be construed as anti-competitive.

e)           That the feedback from the 14 Personal Health Budgets pilots be taken into account during the move to the personalisation model in health.

f)              That there needs to be an assessment and mitigation of risks of the proposals.

g)           That there needs to be a clear transition plan.

h)            That there should be a clear approach to ensure the patient voice is better heard.

i)              That there needs to be an attempt to facilitate coterminosity between GP consortia and Local Authorities where possible.