Health Bill [HL] - Commons Second Reading, June 8 2009

ePolitix.com Stakeholders comment on the Health Bill ahead of its second reading in the House of Commons.

Stakeholder Response: British Retail Consortium

Introduction

The Second Reading of the Health Bill, which contains provisions to ban the display of tobacco products, will have its Second Reading in the House of Commons on Monday 8 June 2009.

The Association of Convenience Stores (ACS) and the British Retail Consortium (BRC), who jointly represent much of the affected retail industry, oppose the ban and ask you to consider the points made in this paper helpful as you prepare for the debate.

Background information

The ACS and BRC support the Government’s objective to reduce the prevalence of smoking in the UK and reduce the accessibility of tobacco products to young people. However we are concerned that the Government’s proposed ban on the display of tobacco products will not impact on youth smoking rates. We believe it is a costly measure that will place considerable burden on retailers at a time when they can least afford it. Small shops in particular will be heavily affected.

Both the Conservative Party and the Liberal Democrats health teams have signalled that they are unconvinced by the evidence that this will reduce smoking. Liberal Democrat Health Spokesman Norman Lamb MP has expressed concern that “you could end up with these proposals being completely counterproductive."

COST FOR RETAILERS

The Department of Health Regulatory Impact Assessment (RIA) concluded that the average cost would be £1000 per store.

The ACS and BRC are concerned that the actual cost will be considerably higher than this estimate. Whilst it is difficult to be accurate on costs given details on the type of ban are yet to be published, consultation with members has suggested the true cost could be anything from £1000 to over £10,000.

It is crucial that any estimate of costs takes into account not only the cost of equipment but also any installation and on-going costs retailers will have to pay while complying with this legislation. For example, any costing must take into account:

• The shipping and fitting costs for any display equipment.
• The sustainable disposal of current equipment
• The need for permanent and robust units
• The need for professional units in keeping with the type of retail outlet
• The significant cost for independent retailers or those with small chains, who will be unable to benefit from bulk purchase discounts.
We believe that even the Government’s estimate of £1000 per store is too much for retailers to pay at this difficult financial time and that such cost will prove harmful to our sector.

EVIDENCE

We fully oppose the proposed tobacco display ban; we do not believe there is a sufficiently strong evidence base to suggest it will impact youth smoking rates.

• In the original consultation the Government quoted a range of academic studies to support their position. However these studies were based in overseas markets with a totally different amount of tobacco advertising restriction than in the UK and can not be used as a comparison.

• The Cancer Research UK report by Gerald Hasting does look at the UK market. However on display this research looks at the role Point of Sales advertising in brand awareness among young people but does not strongly link this awareness to youth smoking rates.

• Indeed, the most recent evidence that the Department of Health commissioned on this subjects (Smee Effect of tobacco advertising on tobacco consumption) show that brand awareness was not a factor in influencing young people to smoke compared to social-economic situation and family background.

Even in other countries which have already implemented a display ban, there is no conclusive evidence that a display ban will impact on youth smoking rates.

Iceland

In Iceland though smoking rates has declined, this has been after a programme of tobacco control which extends far beyond prohibiting displays. Indeed academics have identified the in-depth work done at community level as the most crucial aspect in declining smoking rates rather than a display ban. Iceland has also seen the price of tobacco increased dramatically compared to the UK.

Canada

In Canada there is no link between the implementation of a ban and reduction in youth smoking. The States with the longest running bans, Saskatchewan and Manitoba, have both seen increases in youth smoking and Ontario, which has the best reductions, achieved these before bringing in a display ban.

New Zealand

The New Zealand Prime Minister John Key has recently rejected the introduction of a display ban because his Government did not find conclusive evidence that this is the most effective strategy for combating youth smoking. Instead the Government recognised that there are more effective ways to tackle youth smoking.

There is not the evidence base to justify burdening retailers with a significant cost at this difficult time. Please intervene and raise these concerns during Second Reading on the 8th June.

WIDER TOBACCO STRATEGY

The ACS and BRC are disappointed that the Government is pressing ahead with this display ban without considering the wider issues that arguably contribute more to the prevalence of smoking than seeing products in a shop. Currently, for example, it is not illegal for a young person to attempt to buy tobacco, nor is it illegal for a person over the age of 18 to buy tobacco for someone else that is underage. We believe that the Government should consider introducing these offences, which exist in relation to alcohol. These measures would help bring about the culture change that is required to prevent young people from smoking.

We also believe it is necessary for the Government to focus more on tackling the illicit trade of tobacco smuggling. Not only does this trade cost HMRC £3 million in lost revenue a year but clearly rogue traders have no regard for the law relating to underage sales.

We understand the Government will be publishing a wider strategy later this year. We believe that it would be more sensible for the Government to focus its attention on a comprehensive strategy, rather than imposing this display ban on the retail sector.

Should you have any questions on this Bill or issues contained within this briefing paper, please do not hesitate to contact either the ACS or the BRC.

Jenny Brown Alison Gardiner
Public Affairs Public Affairs
Association of Convenience Stores British Retail Consortium
01252 515001 020 7854 8936
jenny.brown@acs.org.ukAlison.gardiner@brc.org.uk

Association of Convenience Stores
ACS is the voice of over 33,000 local shops in the UK. Members trade in town centres, neighbourhoods and rural areas across the country, providing a local and convenient service and a focal point for the community.

British Retail Consortium
The British Retail Consortium is the lead trade association representing the whole range of retailers, from the large multiples and department stores through to independents, selling a wide selection of products through centre of town, out of town, rural and virtual stores.

Stakeholder Response: Age Concern and Help the Aged

Introduction

Age Concern and Help the Aged welcome the Health Bill. Older people are the majority adult users of NHS services and use of these services increases with proximity to death. Yet the NHS, from education and training to the organisation of care, is not currently arranged with older people’s needs at the forefront. Both direct age discrimination and underlying ageist attitudes persist. We believe that the Health Bill and the NHS Constitution, backed up by provisions in the Equality Bill could make a real difference to the lives of older people. However, parliamentarians should ensure that the needs of older people, rather than targets that fit into speciality or organisational boundaries are at the heart of the reforms.

Key Issues

Age Concern and Help the Aged welcome the broad thrust of the provisions in the Health Bill that would give access to redress for complaints by those who fund their own social care. But we remain unconvinced that the Local Government Ombudsman (LGO) is best placed to be investigating complaints against adult social care providers and ask MPs to examine closely whether the investigatory procedure set out in the Schedules of the Health Bill comply with the right to a fair trial (Article 6, ECHR). All users of health and social care services provided by independent bodies should be protected by the Human Rights Act: The Bill should be amended to reflect the serious concerns raised by the members of the Joint Committee on Human Rights in the House of Lords.

In particular, people who are subject to section 117 Mental Health Act 1983 or to an authorisation of deprivation of liberty under the Mental Capacity Act 2005 should be protected by the Human Rights Act (HRA). Residents whose accommodation is provided under section 21 of the National Assistance Act 1948 are covered by the HRA. It is essential, therefore, that the Bill is used to rectify this inequitable anomaly and provide some of the most vulnerable residents with the legal rights and protection they so badly need.

The effects of Direct Payments in healthcare on those who receive them and those who choose not to should be fully and regularly assessed. In the House of Lords, we supported an amendment to Clause 9 to guarantee a regular independent review takes place.

Direct Payments made to private bodies providing healthcare, including mental health services, could lead to more patients falling outside of the protection of the Human Rights Act and we call for the Health Bill to be clarified. We supported an amendment in the House of Lords to provide this vital clarity.

Health and Social Care Complaints

Age Concern and Help the Aged welcome the broad thrust of the provisions in the Health Bill that would give access to redress for complaints by those who fund their own social care. We have previously called for this loophole to be remedied, and are pleased that the Government has used the opportunity presented by the current Bill to address this. Clearly, it is important to ensure that this procedure complies with Article 6 of the European Convention on Human Rights (ECHR) which covers the right to a fair trial.

i) Investigation procedure

Following concerns raised by the Joint Committee on Human Rights about whether the investigation procedure proposed in the Bill would comply with Article 6, the Government stated: “The Government does not consider that Article 6 is engaged in relation to investigations by the Local Commissioner.” Age Concern and Help the Aged disagree with the Government’s position; we believe that whether or not Article 6 is engaged depends on whether a decision is determinative of a person’s civil rights, so disputes will often engage Article 6. If the Government is implying that the role of the Ombudsman does not include consideration of whether a decision is fair in human rights terms this re-enforces our concerns that there is a gap in the procedure and that it therefore does not comply with Article 6.

Age Concern and Help the Aged remain unconvinced that the Local Government Ombudsman (LGO) is best placed to be investigating complaints against adult social care providers. In particular, we are concerned that the budget of the LGO may not be increased appropriately to cover the additional work involved in handling adult social care complaints. This may lead to excessive delays in the conclusion of complaints, breaching the Article 6 right to the determination of a complaint within a reasonable time.

The LGO will also retain discretion whether to investigate complaints referred to it. Effectively, the complaint could be ‘struck out’ without the complainant's case being properly investigated. This may leave some complainants without any redress, and would be in breach of Article 6. We believe at the very least, the Government should give a clear assurance that the LGO will have adequate resources to carry out investigations and that after one year the system should be reviewed to ensure it is working well.

ii) Complaints about contracts

It is also unclear how far the LGO will deal with complaints that are about contracts. Age Concern and Help the Aged receive many complaints about the fact that ‘self-funders’ are charged considerably more for the same services than local authority funded residents. Often self-funders are told openly that because the local authority fee level is so low, homes are forced to charge a much higher price to those who fund their own care, thus bringing in an element of cross subsidy. The Commission for Social Care Inspection has not felt able to intervene in the past on what is a matter of contract, and while the Office of Fair Trading has investigated the problem, it has taken no subsequent action to address it. We hope that the Government will explore the option of the LGO having the power to investigate such complaints given that they work with local authorities and so could investigate the fees that they pay. We are concerned about several other procedural aspects of the proposed LGO investigation:

• The LGO will not have to state reasons for its decision where it completes an investigation, although it will need to publish its conclusions and, if it has any, its recommendations.

• Although an adult social care provider would be required to publish an adverse findings notice if they do not comply with recommendations made by the LGO, there is no requirement on them to follow the LGO's recommendations.

iii) Role of the Care Quality Commission (CQC)

A further and related concern is that the role of the Healthcare Commission in providing a system for the independent review of complaints has not been taken over by the CQC. The CQC simply has a role in ‘ensuring that NHS trusts deal with complaints properly’. The revised NHS complaints system is predicated on excellent local handling of complaints. However, the most recent report by the Healthcare Commission, Spotlight on Complaints, expresses disappointment that far too many complaints about the NHS do not receive an appropriate response locally and that the same issues continue to be complained about year after year. People who make complaints cannot be confident that these will be thoroughly investigated or that they will receive an appropriate response. Without a role in the independent review of complaints the CQC will not be in a position to provide effective oversight of local complaints handling and there will be a gap in the national assessment of progress. An independent review of the effectiveness and operation of this complaints procedure should be carried out within a year.

An amendment proposed by the JCHR in the House of Lords goes some way towards clarifying the investigatory powers and procedures of the Local Government Ombudsman and we believe that MPs should re-introduce it as a first step to improving the complaints system. But we believe that much stronger amendments may be needed to guarantee the fair handling of complaints.

Still vulnerable: Section 117 of the Mental Health Act and Deprivation of Liberty

Age Concern and Help the Aged remain very concerned about older people who are within the health and social care systems and who appear to remain unprotected by the Human Rights Act (HRA). One area of particular concern is the status of people who are placed in independent care homes under section 117 Mental Health Act 1983. Most people whose accommodation is provided under section 117 are funded by their local authority although some are funded jointly by the NHS and the local authority. The Health Bill would be a good opportunity to bring residents funded under section 117 under the protection of the HRA.

Similarly the Health Bill says nothing about the HRA status of a person who is funding their own care in an independent care home and is subject to an authorisation of deprivation of liberty under the Mental Capacity Act. It seems self evident that where the state is depriving someone of their liberty, the care home concerned should be considered as performing a public function, even if the individual is funding their own care.

Given the overall uncertainty about the HRA status of private healthcare providers, we believe that legislation should clarify the position, confirming that they are performing a public function under the Act. Otherwise there is a real risk that another HRA loophole will be opened up. This would create a two-tier system within the NHS and could act as a disincentive to take up direct payments. Alternatively, and perhaps more likely, people might remain in ignorance of their lack of legal protection under the HRA, meaning that when they need to seek its protection they will find they cannot engage the Act to defend themselves..

We believe that MPs should urge the Government to ensure that vulnerable groups of older people are protected by the Human Rights Act.

Human Rights in Health and Social Care

The Eleventh Report of the Joint Committee on Human Rights (2008-09, HL 69/HC 396) raises some serious concerns about the human rights implications of the Health Bill. The Committee stated they believed the courts may need further clarity from Parliament and that the Bill should “be amended to make it absolutely clear that it is intended that NHS services funded by direct payments and provided by independent bodies are functions of a public nature for the purposes of the HRA 1998.” Age Concern and Help the Aged believe that MPs should duly consider the report’s recommendations and support amendments seeking to clarify the Health Bill and adequately protect the human rights of those receiving health care.

Direct Payments and Human Rights

Age Concern and Help the Aged believe that direct payments in healthcare may in some circumstances be an appropriate way for people to personally direct their care. However, we could not support the widespread roll out of direct payments unless the evaluation of the pilots demonstrate clear benefits for older people. We also seek clarity about how they would work in practice. For example a robust safety net should be put in place to support those individuals who choose to accept a direct payment only to later find themselves without funds and unmet health needs. In the IBSEN review of individual budget pilots in social care, older people did not experience the same benefits in terms of flexibility and increased control that younger people did. It is therefore questionable whether direct payments for health services will bring benefits for older people, except in narrowly defined fields such as NHS continuing care.

Age Concern and Help the Aged are also very concerned that direct payments made to private bodies providing healthcare, including mental health services, will lead to more patients falling outside of the protection of the Human Rights Act (HRA) and we call for the legislation to be clarified.

Quality Accounts

Help the Aged and Age Concern welcome the introduction of Quality Accounts which have the potential to improve the quality of services that patients receive - providing that they focus on the aspects of care important to patients. We believe that a fundamental measure under the Patient Experience domain must focus on dignity.

The dignity of a patient is inextricably linked to the quality of care that they receive. It cannot be seen in isolation from the wider quality agenda. Currently, older people are very often forced to accept standards and behaviour which breach their fundamental dignity. Whilst the Government’s Dignity in Care Campaign has been a positive step, in order to drive up standards we must ensure that dignity forms a fundamental basis in any measures of quality, from maintaining hygiene and nutritional standards to communicating effectively with patients and ensuring privacy.

We need to move beyond the rhetoric and closely examine how dignity can be delivered and measured in practice in order to improve standards. Research demonstrates that dignity can be measured in a meaningful way. Help the Aged recently commissioned the Picker Institute Europe to develop dignity indicators. The report identifies 9 key domains of dignity in care:

• Autonomy

• Communication

• Eating and nutrition

• End of life care

• Pain control

• Personal care

• Personal hygiene

• Privacy

• Social inclusion

Older users of those services were then asked to identify what should be assessed under each domain if we are to make real progress in providing patient-centred care and monitoring and delivering dignity. A similar system of patient centred monitoring should be introduced to ensure that Quality Accounts truly deliver dignity in care for older people.

We are calling on MPs to support any moves to include dignity as a specific domain within Quality Accounts and to ensure that quality accounts report on issues that are important to patients, not just to clinicians.

For more information on this briefing please contact Richard Woodward on 020 8765 7274, Richard.Woodward@ace.org.uk or Natalie Sharples on 020 7843 1579, natalie.sharples@helptheaged.org.uk