HC Deb 13 October 1976 vol 917 cc439-59

Which amendment was: No. 1, in page 1, line 10, leave out 'five' and insert 'seven'.

Mr. Speaker

I remind the House that with this we may take the following amendments: @No. 67, in Schedule 1, page 25, line 14, at end insert— '(d) two other persons representing the interests of patients who wish to undergo medical treatment privately.' No. 68, in page 25, line 21, leave out: 'one or other of the national health services'. No. 69, in page 25, line 23, at end insert— '(3) In appointing all the members of the Board the Secretary of State shall, so far as is practicable, ensure that they will have as their sole concern the interests of hospital patients generally, and not the interests of any other group or class of persons.'

4.1 p.m.

Mrs. Jill Knight (Birmingham, Edgbaston)

When the guillotine fell last night, I was in the process of moving an amendment concerning the composition of the Health Services Board. The composition of the board is extremely important. It is not going too far to say that the success or otherwise of the arrangements made will depend upon the right, just and good composition of the board.

Last night I explained the vast number of functions which the board will have. I said that there was a real need to have seven instead of five members, not least because the board will cover seven major areas of responsibility. It is absurd to suggest that a tiny committee of five will be able properly to cope with all those areas. Five members might be able to do the job by skimping, but they will be unable to do it properly. The board's duties will be immense, and if it has seven members it will have a better chance of doing the job adequately. A membership of seven is neither large nor unwieldy.

Last night I also dealt with the representatives who will be on the board. There will be the chairman, two medical practitioners and two others. Of these last two the Secretary of State may recognise one as being representative either of the doctors or the dentists. The second will represent one of the trade unions whose members work in NHS hospitals.

It is extremely unfair that no one will be appointed to look after the interests of private patients. It is wholly and completely wrong to set up a board which will so greatly affect the ability of persons to have private medical care but to leave those persons unrepresented upon it. Last May the then Minister of State said in Standing Committee: the hon. Lady seemed to imply that doctors were not the sole representatives of the interests of private patients."—[Official Report, Standing Committee D. 18th May 1976; c. 53.] I do not even say that. I say that doctors will have quite enough to do under the Bill looking after their own interests without extending their activities to safeguarding the interests of private patients.

Doctors will have difficult decisions to make under the Bill. They will have to deal with the whole question of how far they will have to extend their hours to take account of travelling between their private patients and their other patients in National Health Service hospitals. They will have to decide what sacrifices to make in order to provide that time.

There is also the question of remuneration, and many other questions. There is the problem of the common waiting list, with all that that implies in terms of the duties it will put upon the doctors on the board. It is totally wrong to imagine that the doctors can look after the private patients' interests in these circumstances. It is totally unjust to deny a place on the board to those persons who will be most affected by the Bill.

The third amendment of the group sets out to overcome what appears to be very odd verbiage. I have explained why this phraseology is divisive. I am not against National Health Service patients being represented on the board and their interests being catered for. I cannot see, however, how a continuing interest will be maintained when and if no private patients remain in NHS hospitals. Why in that situation is there a need for one member of the board to deal with the interests of NHS patients?

Perhaps the Secretary of State envisages that the very presence of private patients in any hospital will have some sinister and detrimental effect on patients in NHS hospitals. The case for that, however, has not been made out. The private patients and the private insurance companies, therefore, have a much better case for representation on the board than have the NHS patients.

Unless the Secretary of State envisages direction of labour in the medical profession, I cannot see how a representative of the NHS side is to remain on the board at all. Surely the time will come when he will not be involved. Hospital patients generally will be and must be the main concern of the board. While the vast majority of the trade unionists working in the two main trade unions concerned are sensible, moderate and reasonable people, there is no doubt that a vicious minority have set out in the past to harm the interests of patients. They must not be allowed to do that. We want no more cases like that of the hospital porter in Manchester who took upon himself the duty of deciding whether patients could be admitted to the hospital. Some of the patients involved were cancer patients. That person was acting completely beyond his responsibilities.

I seek to ensure that the board acts in the interests of patients. I had hoped for unanimity in the House on that issue. People such as the hospital porter I have described are anathema to the sensible trade unionists who would be more than glad to see them sent packing.

Mr. David Crouch (Canterbury)

I wish to support my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) in her argument about the advisability of increasing the membership of the board to seven. I find it difficult, however, to suggest to the Government from where these two members might be recruited.

The Bill provides that the membership should consist of a chairman, two medical practitioners and two other persons who will be selected after consultation with certain bodies. The bodies are those which the Secretary of State might recognise as being representatives of persons employed in one of the health services, or concerned with the interests of patients at NHS hospitals. But if there is to be a chairman, two medical practitioners and two persons concerned with the bodies described in the Bill there will still be no one on the board, which will be so important to the decisions which have to be made on the phasing out of pay beds and the control of the private sector, distinctly representing the interests of the patients.

It is difficult to know where to find such representatives or how to define in a schedule a person who could be seen independently to represent those interests. But I think that there is a case here for increasing the number to seven, which is not an unwieldy composition for such an important body.

The Secretary of State and his predecessor increased the size of the regional health authorities in order to widen the responsibilities they carried on behalf of the public, the patients and those who work within the NHSS for its administration. In setting up this new board, which has a transitional role to perform, it is important that the Government should, as it were, fall over backwards to see that the patients are in some way represented distinctly and independently—independent of the medical practitioners and all those other persons in the NHSS who are very important and work within it. It should not be beyond the right hon. Gentleman's wit to be able to find persons who can be seen to be clearly outside the working of the NHS and holding an independent view in representing the patients. My hon. Friend has made a valuable contribution in suggesting this improvement to the Bill.

Mrs. Barbara Castle (Blackburn)

This group of amendments forms yet another example of the Opposition's desire in all these discussions to have the best of both worlds—in other words, to argue, as they have done throughout our debates, that the Government are bound by the Goodman proposals—but they are not. The first simple answer to the hon. Lady the Member for Birmingham, Edgbaston (Mrs. Knight) is that her proposals conflict with the Goodman proposals.

The proposals of the Goodman compromise were the result of many hours of detailed negotiation and balancing of argument. They resulted in an agreement on the exact composition of the board. Indeed, paragraph 3 of the Goodman proposals spelt out the membership of the board, in that it should consist of an independent chairman and four other members appointed by the Government. It went on to define how they should be chosen. It said that two would be members of the medical profession, adding that it would be the Government's intention to ensure that those members were acceptable to the profession, while the remaining two would be appointed after consultation with other NHS staff and interested parties.

In drafting the Bill, we sought in this provision, as we did throughout, adhere rigidly to the compromise which had been reached. But now the hon. Lady wants to go much further in differing from the spirit which underlay the compromise. One could well argue that the figure of five laid down in the statement I made to the House on 15th December is not sacrosanct and could be raised to seven, but the hon. Lady's real purpose is revealed by Amendment No. 67. All this chatter about the large range of functions which will fall to the board is irrelevant. Also irrelevant is the talk about the need to think of the patients first, because Amendment No. 67 gives the game away.

What the hon. Lady and her hon. Friends propose is to add … two other persons representing the interests of patients … —it does not stop there— who wish to undergo medical treatment privately. That is the kernel of the change that the hon. Lady is trying to bring about, and in doing so she is trying to put a gloss on the Goodman proposals which would never have led to the agreement that was reached.

4.15 p.m.

What does this mean in practice? The hon. Member for Canterbury (Mr. Crouch) more or less admitted that one cannot conjure representatives of patients out of the air, that one cannot have a ballot of NHS patients asking them to elect two members of the board. Therefore, this aspect would be difficult to define. What kind of board does the hon. Lady want?

The hon. Lady wants a board consisting of two representatives of doctors, two representatives of BUPA and two representatives of the health service unions, which would, with the independent chairman, give the board a membership of seven and also give her a massive majority against any phasing out of private beds from NHS hospitals. The hon. Lady should not be so blatant in her manoeuvres.

Mrs. Knight

Will the right hon. Lady be good enough to confine herself to telling us what she wants and stop telling us what she thinks I want?

Mrs. Castle

I am going on to tell the House what I want. I want the Goodman compromise, for all its faults. Despite the fact that I like it much less than the consultative document, I am standing by it absolutely consistently. As the Minister who negotiated it, I ought to know the nature of the compromise. It was that there should be an even balance between the medical profession, which does not want phasing out, and the health unions, which do, under an independent chairman. In that balance, the board, working to the overriding principle that pay beds should be separated from NHS hospitals, taking into account the criteria laid down, will proceed to phase out pay beds in a way which gives the medical profession a greater sense of security about the speed and so on at which it will be done. It is as simple as that.

That was the nature of the compromise. To inject into that compromise now two members of the board representative of people who presumably do not want pay beds phased out at all would make a ludicrous nonsense of the whole compromise, and hon. Members opposite know it perfectly well. They may be devious but they are not daft and they know what they are up to. It is all part of their attempt to distort the Goodman compromise in their own way.

Underlying the Bill and the proposals on which it is based is an undertaking that the right to private practice should be maintained—again, Lord Goodman spelled it out by repeating the pledge which Aneurin Bevan gave, that no one working in the NHS would be compelled to work full time. That, too, is built into the Bill. Otherwise, the sole aim is to separate private practice from the NHS, but the Government take on no obligation under the agreement to ensure that private practice flourishes or even survives outside. That is the responsibility of those who want to get their medicine commercially. If they can do it, let them get on with it. It is no part of the Government's responsibility to ensure that, whatever happens, somehow private practice in itself, as against the right to it, shall survive.

Therefore, the board will not be concerned with the sort of responsibility which the hon. Lady has in mind. It is a nonsense to argue, on a Bill the overriding principle of which is that pay beds should be separated from the NHS, that the board's membership should include two people who object to that principle. That is a nonsense.

Mr. Crouch

I am grateful to the right hon. Lady for giving way. Cannot she see the point of the argument, even if she feels that it has been put forward perhaps too passionately for her? All we are saying is that the patients' interests should be represented on the board. The medical profession is to be represented by two practitioners, or perhaps by the medical unions. What about the patients? There is to be an impartial chairman. Why should the right hon. Lady not agree to the patients' interests being represented? It might well be that the patients' representatives would support her view. Surely they should be represented.

Mrs. Castle

The hon. Gentleman has not read the Bill. Schedule I says that the two practitioners are to be appointed after consultation with such bodies as the Secretary of State may recognise as being representative of medical practitioners or dental practitioners". There are also to be two other persons appointed after consultation with such bodies not falling within paragraph (a) above as the Secretary of State may recognise as being representative of persons employed in one or other of the national health services or concerned with the interests of patients at NHS hospitals. We have been generous enough to include in relation to the two non-medical profession representatives a reference to "the interests of patients". The medical profession did not assume that that reference should also go into the guidance as to the choice of its two representatives. But there is a reference in Schedule 1 to the interests of patients at NHS hospitals". The hon. Member for Edgbaston wants to have two people on the board representing the interests of those who wish to undergo medical treatment privately inside the National Health Service. That is absurd, because it would put completely out of balance a board which is supposed to be handling the delicate relationships between the two views. It is a jolly good try-on, but I know that my right hon. Friend the Secretary of State is not fooled by it.

Mr. Eddie Loyden (Liverpool, Garston)

The points made very lucidly by my right hon. Friend the Member for Blackburn (Mrs. Castle) have exposed the real intention behind this group of amendments. This is not the first occasion on which the Conservative Party, after having opposed measures taken by the Government, have then attempted to fight a rearguard action. They are attempting to dig their last trench in order to continue to fight against the principles established by legislation.

A good example of this was the Conservative Party's action in relation to the Dock Work Regulation Bill. Conservative Members opposed this measure violently, but when they saw that it was going steadily through the various stages they decided in the end to concentrate on the body that would be responsible for running the industry after the legislation had gone through Parliament. They sought then to draw into the areas of influence and decision-making the so-called apolitical independent people. At that time the Conservatives referred to them as consumers. Today, in the Health Services Bill, they refer to patients.

Most of the patients in any hospital are from the working population of this country, who are dependent on the National Health Service. Therefore, we should have on the board people who are committed to the idea of the complete withdrawal of pay beds from the NHS. That is a prerequisite to having health services that will provide properly for patients in the future and have a proper concern for them.

My right hon. Friend has already indicated the real intention of the amendments. Conservative Members have the audacity to argue that those representing private medicine should be on the board.

It is a pity that the amendment in the name of my hon. Friends and myself has not been selected, because we would have gone further in advancing the argument that there should be a total commitment by those who serve on the board to carry out the spirit and intention of NHS legislation.

My right hon. Friend has completely demolished the argument that this is an innocent amendment designed to broaden the basis of the board. She has shown that it is intended to introduce into the board people who would be completely opposed to the real interests of the NHS.

Mr. Robert Boscawen (Wells)

The hon. Member for Liverpool, Garston (Mr. Loyden) complained that we have the audacity to advance the argument that the board should have upon it representatives of private medicine. I remind the hon. Gentleman that the whole basis of the Goodman proposals was that these arguments should be continued in Parliament. It was on that basis that industrial action was withdrawn. The proposals were accepted by the profession—the right hon. Member for Blackburn (Mrs. Castle) has stated it many times—and the industrial action was withdrawn because of the Goodman compromise, on the ground that the argument could continue through the normal parliamentary process. I hope that the hon. Gentleman will consider withdrawing his remark that we have the audacity to propose that representatives of private medicine should be on the board.

The Secretary of State for Social Services (Mr. David Ennals)

I am grateful to the hon. Gentleman for giving way. I hope he will accept that the bargain contained in the proposals put forward by Lord Goodman, and presented to the consultants, was that industrial action would end if the consultants and the profession accepted that the Goodman proposals would be the basis of legislation—not that they would be the beginning of a debate on the basis of the legislation. That is what my right hon. Friend the Member for Blackburn (Mrs. Castle) has been standing by, and that is what I have been standing by.

Mrs. Castle

That is right.

Mr. Boscawen

If these words mean anything, surely they mean that the basis can be contested in Parliament. The ultimate intention to replace pay beds by alternative facilities is not in question, but I still feel that we have a perfect right to put forward suggestions and proposals to improve the board's representation.

The right hon. Member for Blackburn would have had a better case if the board were to be phasing out the first thousand beds. It is the Secretary of State who will be responsible for doing that.

We have heard from the Secretary of State many times that the first priority of the board, which very much affects the patients, is to work out a system of common waiting lists. That is very difficult to do but it is a task of considerable value. The only thing of value that will come out of the Bill will be that an independent board will look at this terribly difficult problem of common waiting lists.

The board will have to take some very difficult policy decisions early in its life. What will be the basis of the common waiting lists? Will it be the single hospital? Will it be a single specialty? Will it be on an area board basis? These are very difficult questions and it will be very difficult to produce the right answer to them.

There are other difficult problems that the Board will have to face, such as the balance between the medical specialties and the surgical specialties within the hospital. There have always been grounds for very considerable discussion and, indeed, argument in this respect. These are all difficult matters which affect patients. If it had been suggested that one of the representatives of the patients should be from the NHS and the other from private practice, I should not have objected. That would have been perfectly fair and reasonable. But let us have the patients' views on this board, because they are not the same as those of the professions and those of the unions.

I feel that my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) has done the House a great service even at this late stage of the Bill by moving her amendment.

4.30 p.m.

Mr. Ennals

My task has been made much easier by the speech of my right hon. Friend the Member for Blackburn (Mrs. Castle). I do not think that I disagreed with anything that she said except her reference to whether the Opposition were devious. I do not think that there is any deviousness about the amendment. What the hon. Member for Birmingham, Edgbaston (Mrs. Knight) proposes is completely open. She wants a board which is not balanced, as was proposed by Lord Goodman. I am not certain about the hon. Member for Canterbury (Mr. Crouch). Perhaps he is confused, or it may be that he simply does not agree with this amendment.

The amendment is quite clear. The wish of the hon. Member for Edgbaston is for two other persons representing the patients who wish to undergo medical treatment privately—

Mrs. Knight


Mr. Ennals

Two other persons. The hon. Lady must have read her amendment. It refers to two other persons representing the patients who wish to undergo medical treatment privately.

The hon. Member for Canterbury was arguing the case of other patients, presumably the vast majority of patients in the National Health Service, who do not want or do not have the opportunity to undergo treatment privately. So I must accept that the hon. Gentleman does not agree with the amendment, as he did not last night.

Mrs. Knight

Surely the Bill says … representing the interests of patients in the National Health Service. I am merely arguing, because there are union representatives as well, that the one person who will be most affected should also have representation. I do not want an unbalanced board. I want fairness.

Mr. Ennals

In that case, when I have completed my answer, no doubt the hon. Lady will be happy to withdraw her amendment. I shall be saying how the procedure is working as it was laid down and accepted in Standing Committee for the establishment of the members of the board.

I hardly need add to what my right hon. Friend the Member for Blackburn said. I said yesterday that a contract was a contract and that it would be stood by. My right hon. Friend read the appropriate paragraph from the Goodman agreement. It was that there was to be a board of five members—a chairman and four other members—and that it would be an evenly balanced one. If we add to that board the two who represent the interests of those patients who wish to undergo private treatment, we shall have an unbalanced board and, if I accept the amendment, we shall destroy the basis on which this legislation has come forward.

I must say also that, listening to the hon. Member for Edgbaston outlining the role of the board, one might have been forgiven for thinking that we were setting up a board to take over the role of the Secretary of State in his responsibilities for the running of the NHS. I accept that the board has an important task. Its two main functions are progressively to withdraw facilities and accommodation for the treatment of private patients in NHS hospitals and to consider whether the development of a relatively large private nursing home or hospital is likely to operate to a significant extent to the disadvantage of the NHS. The suggestion that those tasks and the preparation of a policy on common waiting lists will be more easily done by seven than by five is one which the hon. Lady has not proved.

I think that it would be helpful if I indicated the nature of the consultations, because I agree with the hon. Lady that the interests of National Health Service patients, who basically are us, are those of people who will go into hospital, especially those who have not a special interest in private treatment. So the consultation has proceeded.

As regards the agreed methods for the two medical members, the Government are following the method by which medical members of the Medical Practices Committee and the General Practice Finance Corporation are chosen. The bodies to be consulted have been invited to send to me six to eight names of people all of whom they would find acceptable. They have now supplied those names. I am considering them and, in due course, I shall choose two.

As for the non-medical members, again I have accepted and carried out what was agreed in Standing Committee. I have formally consulted the Staff Side of the General Whitley Council on which all staff who work in the NHS are represented. I have asked that body for from six to eight names. I have also consulted the TUC and also the Patients' Association which is set up specifically for the purpose of taking an interest in the welfare of patients in the NHS. I mentioned the TUC. It represents 8 million members and their families—a high proportion of the working population—and it may well be an important body to be consulted in looking at patients' interests. The names have now been submitted by the Staff Side of the General Whitley Council, and they are being considered. Once the Patients' Association has made its views known, I shall be in a position to choose two members from among the suggested names.

Mr. Patrick Jenkin (Wanstead and Woodford)

Is the right hon. Gentleman yet able to say anything about the chairman of the board?

Mr. Ennals

I am not yet in a position to make any announcement about the chairman. I shall go through the process which was accepted in Committee which is to discuss the nominations for the chairmanship with the interests concerned which are set out in the Bill. I cannot yet make an announcement, but I have every confidence that we shall be able to see the board established with its chairman and its other members in time to proceed with its task without delay.

Mr. Crouch

One of the last things that I like in this House is having words and thoughts attributed to me which are untrue. It misleads the House. I am sure that the Secretary of State, in his generous way, will agree that in my short intervention supporting my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) I was supporting Amendment No. 1 and Amendment No. 69. I was not so much supporting Amendment No. 67, which specifies the type of membership. I was talking about patients. A patient can be a person who wants to be served by the National Health Service and nothing else or one who wants to be served by a National Health Service and a private service. But I was talking about patients. The right hon. Gentleman suggested that I was perhaps solely interested in the aspect of patient representation to deal with a private health service. That is quite wrong.

Mr. Ennals

I may have misunderstood what the hon. Gentleman said. I thought that he was saying that basically patients in the National Health Service should be represented and that in so doing he must have been disagreeing with Amendment No. 67 which refers to two other persons representing the interests of patients who wish to undergo medical treatment privately. I was attributing to the hon. Gentleman a point of view which was accepted by Government supporters and with which I thought he was in agreement. But I am glad that he has made himself clear. He having done so, I am sure that he will not now suggest that we should undergo an operation to change the basis of compromise which has been an integral part of the whole of this legislation.

Mr. Patrick Jenkin

What the Secretary of State said about the procedures for choosing the two medical members and the non-medical members has been noted with interest. However, the key difficulty will be the chairman, and I have no doubt that the right hon. Gentleman will be making his decision in due course. We shall watch that with great interest.

My hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) is right to say that the people who are the most affected by the process of this legislation are the private patients who will no longer be able to have their treatment by the consultant of their choice at a National Health Service hospital and will have to go somewhere else. Therefore, at first sight, it seems not unreasonable that that category of patients should have special representation. The vast majority of NHS patients will never know the difference.

I see the strength of the point made by the right hon. Member for Blackburn (Mrs. Castle) that if we went down that road it would upset the balance of Goodman. However I ask the Government to bear in mind that we are here debating a Report stage with a whole series of amendments on which there were tied votes in Committee. The advice that we received was that an amendment on which the vote was tied would be almost bound to be selected for debate on Report, whereas if we put down a different amendment it would be within the discretion of Mr. Speaker whether to select it. We wanted a debate on patients, and we have had a debate.

I would particularly commend Amendment No. 69 to the House, but there is no prospect of our reaching it. If we were not suffering under the guillotine I would advise my hon. Friend not to press her Amendment No. 1 and tell the House that we should vote on Amendment No. 69, which contains a proposition that it would be very difficult for the Government to vote against: In appointing all the members of the Board the Secretary of State shall, so far as is practicable, ensure that they will have as their sole concern the interests of hospital patients generally, and not the interests of any other group or class of persons. We seem to be getting a board which will be something of a battleground for those representing the interests of the medical profession and those representing the interests of others employed in the National Health Service. The board is being appointed not to have regard to the interests of patients generally but to pursue the policy which has been introduced by the Labour Party for phasing out and for licensing. Therefore, if we had been able to do it, we would have voted on Amendment No. 69. I would have been interested to see Government Members trooping through the Lobbies to vote against a proposal that the board should have regard to the interests of patients.

That vote will be denied us, but I do not think that we should revert to voting on Amendment No. 1. I hope that my hon. Friend will feel it right in the light of the debate to ask to withdraw her amendment. No doubt, note will be taken in another place of what has been said on Amendment No. 69.

Mrs. Knight

In the light of the advice given by my right hon. Friend the Member for Wanstead and Woodford (Mr. Jenkin) on the Front Bench, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Minister of State, Department of Health and Social Security (Mr. Roland Moyle)

I beg to move Amendment No. 2, in page 2, line 7, leave out or a certificate under section 14 below". This amendment is consequential on the acceptance of an amendment to Clause 14 in Committee. That amendment removed the necessity for certifying the smaller private hospital developments outside the National Health Service and substituted a process of notification.

Mrs. Castle

I fully recognise that the amendment is merely consequential on other matters and cannot therefore be sensibly resisted, but in Committee I expressed some regret at the change in procedure from certification to notification. I do not think that my hon. Friend was able to attend the Committee that morning, but I would just draw his attention to my continuing anxieties about this. I ask him to watch very closely to make sure that the simplication of procedure which he has introduced does not lead to abuses, and to take the necessary steps to amend the legislation if it does.

Mr. Moyle

I undertake to do so.

Amendment agreed to.

4.45 p.m.

Mr. Ennals

I beg to move Amendment No. 3, in page 2, line 16 leave out "Part IV" and insert "Parts IV to VI".

Mr. Deputy Speaker (Mr. Oscar Murton)

With this we are to take Government Amendments Nos. 71 and 113.

Mr. Ennals

Amendment No. 113 is consequential on Amendment No. 3. The effect of Amendment No. 71 is to make the Health Services Board and the Scottish and Welsh Committees subject to investigation by the Health Service Commissioners for England, Scotland and Wales respectively.

In Committee, my right hon. Friend the Member for Plymouth, Devonport (Dr. Owen) undertook to consider whether the Health Service Commissioners should be empowered to investigate allegations of maladministration by the Board on its Welsh and Scottish Committees. We consulted the Commissioner, Sir Idwal Pugh, who expressed the opinion that the Health Services Board and its committees were bodies which could properly be made subject to his investigations. The Government accepts the Commissioner's view and seek to give effect to it by introducing this series of amendments.

The scope of the Commissioners' investigations is laid down in Section 34(3) of the National Health Service Reorganisation Act 1973. The Commissioners may investigate:

  1. "(a) an alleged failure in a service provided by a relevant body; or
  2. (b) an alleged failure of a relevant body to provide a service which it was a function of the body to provide; or
  3. (c) any other action taken by or on behalf of a relevant body,
in a case where a complaint is duly made by or on behalf of any person that he has sustained injustice or hardship in consequence of the failure or in consequence of maladministration connected with the other action."

The Commissioners will therefore not be empowered to express an opinion on the merits of—for example—proposals for phasing out pay beds. Nor will they be able to investigate an allegation that an incorrect decision was given by the board on an application for authorisation of new hospital premises. The Commissioners will be empowered to investigate allegations that someone has suffered injustice or hardship because the board had not considered observations that had been submitted to it about phasing-out proposals, or because an application for an authorisation was not dealt with within a reasonable period of time.

The Secretary of State does not have a power of direction over the board and the amendment takes account of this by requiring that reports of the results of the Commissioners' investigations should he sent to the person who made the complaint, to the Health Services Board or to the Scottish or Welsh Committee and to the person who is alleged to have taken or authorised the action complained of, but not to the Secretary of State. Similarly, the annual report of the Commissioners upon their functions relating to the board and the committees, and any special reports they decide to make on instances of hardship or maladministration suffered as a consequence of maladministration by the board or either of the committees, will be laid before both Houses of Parliament and not submitted to the Secretary of State.

I hope that with this explanation the House will accept the amendments. They are again a reflection of points made in Committee, and a further indication of ways in which we have sought to improve the Bill as a result of consultation in Standing Committee.

Sir George Young (Ealing, Acton)

When the Bill was published it did not permit the Health Service Commissioner to investigate complaints against the proposed board or its committees. The Government's original intention was that this important constitutional redress should not be extended to those who might suffer as a result of maladministration by the board. The argument for bringing the Health Services Commissioner into the picture was movingly made on 27th May, as reported at columns 195–202 of the Official Report of the Committee proceedings, and I do not propose to regurgitate it. But one does not see the proposals purely as negative. I see them as a positive step, giving the board the benefit of the fund of wisdom which the Health Service Commissioner now has about how the NHS is run. I hope reinforcing rather than reducing public confidence in the board.

The Commissioner refers in his reports to a number of cases in which he has invited authorities to review their administrative practices and procedures. It might be a good idea if the Commissioner made informal contact with the board before it started work to give its members some advice which might help them in dealing with maladministration later.

I have a number of points on Amendment No. 71. The original amendment, I think No. 264, was brevity and clarity itself: The Health Service Commissioner shall be empowered to investigate allegations of maladministration by the board. In 15 succinct words it said it all. Since then the parliamentary draftsman has spent the Summer Recess translating that into 70 lines of incomprehensible legal prose which one cannot understand without three other Acts of Parliament and a trained barrister at one's elbow.

I refer to the point raised in Amendment No. 71 which sets out who shall receive the reports compiled by the Health Services Commissioners. As I understand the application of Section 37 of Part III of the National Health Service (Reorganisation) Act 1973 to this Bill, the person who made the complaint and the Health Service Board or the Committees will get a copy of the Commissioners' reports. No one else will receive a copy unless the Commissioners so decide. Sub-paragraph (i) of the amendment relieves the Commissioner of the obligation to send the report to the Secretary of State, and as far as I can see he is not obliged to do so by any other part of Section 37. Under subparagraph (ii) each House of Parliament will get a copy of special reports only when the injustice or hardship has not been and will not be remedied. This seems to exclude a number of other reports which no one will read about unless the Health Service Commissioner decides to send a report.

Then there is the question of staff. I assume that there wilt be sufficient spare capacity in the Health Service Commissioner's office to take on this extra task without the need to employ any more people.

I cannot help wondering whether we have got the right Commissioner. The Health Services Board is a new constitutional animal and its functions under Part II are purely administrative. Under Part III its functions are quasi-judicial when it comes to licensing. Ministers have said time and time again that the Health Service Board is an independent body. But independent of whom? Schedule 1, paragraph 6, says The Board shall not be regarded as the servant or agent of the Crown … Presumably it is independent of the Secretary of State, his Department and of central Government generally. But it is also intended to be independent of the area health authorities, the regional health authorities and other bodies within the National Health Service administration. The Parliamentary Commissioner has jurisdiction over central Government departments and the Health Service Commissioners have jurisdiction over the administration of the NHS. If the board is to be independent of both administrations, strictly speaking it should be neither the Parliamentary Commissioner nor the Health Services Commissioners involved here. Therefore, who is the right ombudsman? When we originally debated this matter both the Minister of State and I were somewhat confused about this matter.

The Government have plumped for the Health Services Commissioner but that indicates that the board will form part of the administration of the National Health Service and therefore may not be seen to be independent of that administration. Perhaps this is an area which could be debated in the Lords where they will have more time to devote to it. Perhaps the issue could go to the Select Committee for the Parliamentary Commissioner, which has an interest in his work.

However, having said that we welcome the inclusion in the Bill of the Health Service Commissioners in response to our amendment in Committee, it would be churlish of me not to thank the Government for their response.

Mr. Laurie Pavitt (Brent, South)

I think that the hon. Member for Ealing, Acton (Sir George Young) can take a considerable amount of credit for the way in which he put this argument forward in Standing Committee. He had done his homework on this issue and as a result I think that he has been instrumental in improving the Bill, and all sides of the House will recognise that.

In his submission he said that there was a wealth of information with the Health Service Commissioners because they look at a whole range of events which take place within the National Health Service administration. He then queried the fact that the Health Service Commissioners should be involved because the Health Service Board is an independent body. He wondered whether it would not be more appropriate for the Parliamentary Commissioner to have these duties. But his first point was far more relevant than his second. The Health Service Commissioner looks at things with a considerable amount of knowledge of the background and the kind of representations which are being made to him. So I hope that my right hon. Friend will stick to the provisions he has made and leave the Health Service Commissioners in the Bill.

Mr. Ennals

I agree with my hon. Friend the Member for Brent, South (Mr. Pavitt). Perhaps I could have been more fulsome in my appreciation of the efforts of the hon. Member for Ealing, Acton (Sir George Young) and I will not be done down by my hon. Friend on this issue.

One of the advantages of a substantial Committee stage is that we are able to treat seriously proposals for strengthening the Bill. The reason we did not include this provision in the original Bill was that the board is an independent body and not a servant of the Crown or the Secretary of State. If it had been the servant of either it would have been obvious and sensible to make it subject to one of the two Commissioners.

I agree that it is more appropriate to include provision for the Health Service Commissioner. I am prepared to discuss the matter with Sir Idwal wearing his other hat, but he accepts that this is a sensible proposal and I am glad that the hon. Member for Ealing, Acton, supports it.

I explained earlier the reasons why the reports would not be sent to the Secretary of State. That indicates that I am not responsible for the operation of an independent board. The board will have been established by Parliament although I may have made appointments to it. Although there is no statutory obligation for reports to be submitted to me, I do not think it will be difficult for me to see copies of such reports. The annual reports of the Commissioners and their functions, and any special reports on hardship or maladministration, will be laid before both Houses of Parliament and it will be very surprising if copies do not reach me in the process.

Amendment agreed to.

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