HC Deb 15 June 1999 vol 333 cc234-42

'.—(1) The Secretary of State shall appoint an independent review to assess the extent of, and make recommendations to end, discrimination by the NHS on the grounds of age, disability, race, sex and sexual orientation in its capacity as—

  1. (a) an employer, and;
  2. (b) a provider of health services.

(2) In subsection (1) "independent" means having a majority of members not employed by the NHS or under the control of the Secretary of State.'.—[Mr. Simon Hughes.]

Brought up, and read the First time.

Mr. Simon Hughes

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No. 78, in clause 2, page 2, line 20, at end insert— '(1A) Appropriate arrangements shall be made with a view to securing that a Primary Care Trust's functions are exercised with due regard to the principle that there should be no discrimination on the basis of age, race, sex and sexual orientation, except where clinically justifiable.'.

No. 83, in clause 18, page 23, line 23, at end insert 'with due regard to the principle that there should be no discrimination on the basis of age, race, sex and sexual orientation, except where clinically justified.'.

No. 80, in page 23, line 23, at end insert— '(1A) The reference in subsection (1) to monitoring includes the monitoring by ethnic origin of individuals receiving health care.'.

No. 172, in clause 20, page 24, line 6, at end insert— '(c) the function of assessing equality of access to treatment within the NHS of persons of different race, gender and age, of reporting on any such inequalities which it considers inappropriate and of making recommendations for their elimination.'.

No. 81, in page 24, line 18, at end insert— '(1A) Appropriate arrangements shall be made with a view to securing that the functions of the Commission for Health Improvement are exercised with due regard to the principle that there should be equal opportunity for all people.'.

No. 79, in schedule 1, page 78, line 22, after 'effectiveness', insert 'and equal opportunities'.

No. 82, in schedule 2, page 84, line 5, after 'year', insert ', and such a report shall include an assessment of performance in relation to equality of opportunity'.

Mr. Hughes

Just so you, Mr. Deputy Speaker, and colleagues know, our plan is that, because we are now subject to the guillotine, we have literally just over an hour, and there are 22 groups of amendments that we would have liked to have got through. The first seven are led by new clauses that have been tabled by my hon. Friends and me. We hope to take a few minutes at most on any of the amendments, allowing time for a ministerial reply and for participation by our Conservative colleagues. We will divide on the important ones if ministerial replies are not adequate.

The issue is to do with discrimination in the health service. The straightforward proposition in new clause 7 is that there should be a review to examine and to make recommendations about ending such discrimination. All sorts of discrimination exist. Age discrimination is a recurrent issue and, until recently, people have been turned down for treatment because of their old age. My hon. Friend the Member for Twickenham (Dr. Cable) has persistently raised that issue in the House. Disability, race, sex and sexual orientation discrimination impact in two respects—on treatment and on staffing.

We have health inequality in Britain. It is often the people at the lowest end of the income scale—the poorest people in our society—who include those from minority ethnic communities, who do not receive as good health treatment as others. In relation to staff, persistent problems relate to the fact that some people—again, often from minority communities—find they do not get the same opportunities for promotion or for advancement in the health service as others.

At the top end of the staffing complement, the problem of discrimination relates to consultants. There is plenty of evidence to suggest that people who are black or Asian—often it is black people—have difficulty in getting senior posts. At the bottom end, that discrimination affects other posts.

The new clause and amendments simply follow up the debate in the Lords, which was led by my noble Friend Lord Clement-Jones, and the debate in the Standing Committee in the House, which was led by my hon. Friends. On both occasions the Government supported the principle behind our argument, but said, "Hang on. We need to look into things." We have tried to be constructive in response to that because we accept that there may be a need for information. The new clause simply says that if the Government are not willing to include a non-discrimination clause, they should at least set up an independent review. We need that because it is not provided in current NHS legislation or legislation dating back to the 1940s. There is regular Government resistance to placing non-discrimination provisions in legislation. It happened on the Greater London Authority Bill and it has happened again now.

The insertion of our new clause would bite on clause 2, which is about discrimination in primary care trusts. We believe that the primary care trusts now being set up should exercise their function with an explicit duty of non-discrimination. They will be a formal part of the health service and that duty should be written into their constitution. Amendment No. 79 to schedule I would have the primary care trusts report on their non-discrimination policy. Amendment No. 80 to clause 18 would provide a duty on the health service to monitor quality by ethnic origin. It is important to ensure that all ethnic groups receive equally good health care.

Amendment No. 83, also to clause 18, seeks to ensure non-discrimination in the exercise of the duty of quality. Amendments Nos. 81 and 82 relate to the Commission for Health Improvement—CHIMP—which is a body being set up by the Government and which we welcome in general terms. A mechanism for health improvement should function according to the principle of nondiscrimination and there should be a report back on that.

8.30 pm

It is an issue of concern to the Commission for Racial Equality and bodies such as Age Concern. We hope that the Government will see our new clause 7 as a compromise. It says that we should have an independent review so that we can all have the facts and that it should be conducted in the context of the Bill. If the Government are not willing to do that and leave us with the promise of some inquiry at some time, with no certain date to report back and no absolute commitment in the Bill, we shall seek to press new clause 7 to a Division.

Mr. Hammond

The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) has referred to problems of discrimination in the national health service in terms of employment and treatment. I intend to address the issue of discrimination in treatment because I believe that there is adequate legislation in place and adequate institutions in this country to deal with discrimination in employment. That does not mean that I am complacent about the effectiveness of those institutions in relation to the national health service, but my hon. Friends and I do not feel that the issue is necessarily appropriate for primary legislation. The Minister has an arsenal of weaponry at his disposal and the Secretary of State has already made it clear that he considers this to be an important issue and we support him in that.

As I understand its wording, new clause 7 offers a one-off approach to discrimination. It requires an independent review and a single report of its recommendations. It is a rather indiscriminate approach to the problem of discrimination. Unlike amendments Nos. 78 and 83, also tabled by the Liberal Democrats, there is no concept in new clause 7 of distinguishing between discrimination which is clinically justified and pejorative discrimination which is not and cannot be justified.

The Conservative party's approach to the problem of discrimination in treatment is enshrined in amendment No. 178. Rather than tabling a new clause, for tactical reasons we have sought to address the problem by amending the Bill. That seems a better way of dealing with an issue if it is possible to do so. Our amendment would make it one of the functions of CHIMP to assess equality of access. It would place a duty on it to make recommendations. That would be a permanent duty—a continuing process. Amendment No. 172 clearly acknowledges the distinction between appropriate and inappropriate discrimination.

Equality of access to treatment, at least in theory, is or was—until the Secretary of State's recent decision on Viagra—one of the fundamental principles of our national health service. I said last night in the debate that I believe strongly that the Government have crossed the Rubicon with the proposed rationing arrangements—or limitation on availability, as the Minister would prefer to call it—for Viagra.

As the hon. Member for Southwark, North and Bermondsey said, the issue was debated in another place, and Baroness Hayman said that she would give further consideration to the amendments tabled in the other place. She also said that the Government would investigate the best way of taking "the points forward". Although I accept that the Government may determine that the best way of taking those points forward is not in primary legislation, as far as I am aware we have not yet heard anything from them about the outcome of their deliberations after that commitment was made by Baroness Hayman. Perhaps the Minister will tell us the current state of the Government's thinking on the matter.

It seems to us that discrimination in itself presents a problem for the Government, because of the inevitable link to the problem of rationing—the taboo word. Clearly, there should be no discrimination on the grounds of a patient's race, for example, when there is no clinically justifiable reason for such discrimination. It is equally obvious that there will be occasions when it would be absurd not to discriminate on grounds of gender or race in seeking to design appropriate screening programmes, for example, in which one should consider groups at risk and, inevitably, exercise some form of discrimination. We must be careful, therefore, not to fall into the trap of thinking of discrimination only in its pejorative sense.

In considering the problem, and in the context of the overall limits on resources available for health care delivery, I wonder what it means to say, "There should be no discrimination on the grounds of sex unless it is clinically justifiable." The point is directly connected to the question that I asked the Minister in the previous debate on the cost-effectiveness of treatments for a single condition, the cost-effectiveness of treatments for different conditions, and on a comparison of the two. What would a direction against discrimination on grounds of sex tell us, for example, about the allocation of resources to the diagnosis of breast cancer or of prostate cancer?

Within an overall resource constraint, enhancing a service provided to one person inevitably will involve curtailing a service provided to another. We seek, and have always sought, to ensure that that should be done by a rational process, eliminating discrimination in its pejorative sense—as irrational and unjustified discrimination—and ensuring that there is transparency in prioritisation and resource allocation.

If the Government were to admit both the existence of and continuing need for rationing in the national health service—so that we could have a mature debate about the criteria by which resources should be allocated, and the proper discrimination that should be introduced, when appropriate, in allocating health care resources—we should be able to evaluate objectively the competing claims of different treatments and of people with different conditions for limited health care resources. We might then have a clinically credible system for prioritising access to health care.

I tell the hon. Member for Southwark, North and Bermondsey and some other Liberal Democrats Members—such as the hon. Member for Twickenham (Dr. Cable), who has been very concerned about the issue of age discrimination—that I believe that it is perfectly possible that a clinically credible system for prioritising access to health care would prioritise treatment for an otherwise healthy 30-year-old above the same treatment for an 80-year-old who was in generally poor health. In other words, I suspect that any clinically credible system would, or might, include an element of discrimination on age grounds. However, such discrimination would have to be clinically justified and justifiable, and I should like it to be done transparently and openly.

Sir Robert Smith (West Aberdeenshire and Kincardine)

I caution the hon. Gentleman against being trapped into stereotypes. Research has shown that those beyond a certain age have a statistically greater ability to survive some treatments than younger people, who have yet to be hit by a range of illnesses. People who do not survive those illnesses will not reach an older age. It is important that there is no prejudice in that clinical judgment.

Mr. Hammond

I accept the hon. Gentleman's words of caution. The issue is not just the ability to survive a treatment. When considering the allocation of health care resources to different priorities, Ministers, the National Institute for Clinical Excellence or whoever is responsible will want to consider what benefit the patient will accrue from the treatment as well as the cost. Such a consideration may introduce legitimate and clinically justifiable discrimination on the grounds of age in certain circumstances. I raise that issue to distinguish between discrimination in the pejorative, everyday sense and discrimination that is backed by clinically justifiable reasoning.

If the Government overcame their taboo on talking about rationing we could address the issues. We would find that part of the debate about discrimination, particularly age discrimination, merged into the debate on rationing. We would then be able to identify the discrimination in the system—I accept that there is some unjustifiable discrimination—and focus on tackling it. We could do that within the health service structure that the Minister and his colleagues have put in place by imposing a further permanent duty on CHIMP, as proposed in amendment No. 172. I acknowledge that new clause 7 is well meaning, but amendment No. 172 would be a better way to address the problem if primary legislation was considered necessary.

Mr. Denham

Equal opportunities for those who work in the NHS and for those who need its services has been an important and recurring theme in our debates on the Bill in Committee and in another place.

The new clause and amendments pursue that theme in the context of some of the new developments in the Bill: primary care trusts in amendments Nos. 78 and 79; the duty of quality in amendments Nos. 83 and 80; and CHIMP in the other amendments. I have explained why that piecemeal approach to legislation, bolting specific provisions about aspects of equal opportunities on to some parts of the NHS framework, is not the best way forward.

If we are to legislate, we should address the NHS in the round. However, such an approach requires careful consideration and would need to look beyond the NHS, taking account of developments across Government and the importance of a consistent approach across the range of public services. For example, we are working closely with the Home Office on planning the way forward on race equality in the light of the recommendations of the Macpherson report on the Stephen Lawrence inquiry. On that front, the Race Relations Act 1976 would provide the route for legislative change. Such issues must be taken seriously.

I am happy to reaffirm our commitment that there must be no place in the NHS for discrimination on grounds of age, gender, race, religion, sexual orientation, or disability. That is more than just a statement. We shall continue to scrutinise the NHS's performance against that commitment as an employer and in the service that it offers to patients. I shall set out in a moment the areas in which there has been activity. Looking back over the debates in another place and especially in Committee, it seems that there has been a tendency for the suggestion that we are doing nothing to go unchallenged—that would be my fault—whereas that is clearly not the case.

8.45 pm

The new clause proposes an independent review to consider these issues. I am not sure that such a review is the right next step; indeed, there is a real risk of putting practical action on hold while efforts are diverted to support what would inevitably be a massive and all-embracing review. Equal opportunities and work against discrimination must be embedded in our total way of working, rather than being treated as a separate and one-off activity. What matters is that our total programme for the national health service should reflect the drive to eliminate discrimination and promote equal opportunities that has been the theme of this short debate.

Let me outline some of the steps that we are taking. On employment, our human resources framework for the national health service, known as "Working Together", sets action on equality in the workplace as a priority. By April 2000, all local employers will need to have policies and procedures in place to tackle harassment by staff and service users and they must also make progress on family-friendly policies.

We are carefully considering our whole approach to equality following the Macpherson report. We are working with the Home Office and other Departments to ensure a systematic response across Government. Last year we commissioned and published a survey of all national health service trusts in England to examine progress in equal opportunities so that we could establish a base-line against which to measure progress and set targets to raise standards.

Since coming to power, we have launched an NHS-wide development programme, known as "Positively Diverse", which is encouraging recruitment and development of staff from local communities. That has been underpinned by an audit covering about 76,000 staff from the organisations concerned, to provide valuable information about their experience and to help to inform local action plans.

We have signed up the national health service to the Commission for Racial Equality's leadership challenge programme. Forthcoming guidance will cover positive approaches to the employment of disabled people. The national health service is a member of the Employers Forum on Age and two thirds of national health service trusts specifically include age in their equal opportunities policy statement. We intend to publish an equalities framework document later this year to ensure that equality and diversity are mainstream issues for the national health service. That will be supported by equality indicators so that the activities of the national health service as an employer can be kept under constant review.

Both the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) and the hon. Member for Runnymede and Weybridge (Mr. Hammond) spoke about access to health care. Action on inequalities is a central theme. We are facing up to inequalities in health. We are the first Government to do so in a long time. We launched the Acheson inquiry on health inequalities, which we shall draw on in the public health White Paper, "Our Healthier Nation", which we shall publish shortly.

We are committed to ensuring fair access to consistently high standards of service, in accordance with need. As part of the comprehensive spending review, we commissioned a systematic review of the research into equality of access in the national health service. That research concluded that evidence of systematic discrimination is relatively limited, but that there are some areas of health care in which access has not been equal.

It will not surprise a well-informed gathering this evening that those areas include primary care services in the inner city; mental health services, in which there is evidence of particular problems for black and Asian people with mental health needs; and coronary revascularisation, in which people were less likely to be referred for treatment if they were poorer, older, female, or black or Asian. That work is further evidence of our commitment to understanding the problem and taking action.

Tackling such inequalities is a key issue for the new health action zones, for health improvement programmes and for primary care groups and, in future, trusts, as they begin to look in depth at the needs of their populations and better align their resources with those needs. The first national service frameworks will set national standards for coronary heart disease and mental health and will enable a rigorous approach to tackling inequalities. The next national service framework will cover older people and will of course need to tackle the important question of access to services.

The Commission for Health Improvement will look carefully at the issue of access to health care, within its overall remit for monitoring and supporting the NHS's progress in improving quality of care. I would expect that to be an important theme as the commission reviews action on the national service frameworks, for example, and the development of clinical governance. One issue would be whether groups within the population are receiving the sorts of treatment that the evidence suggests they should. That is an important issue, because fair access is one of the six themes of the NHS performance assessment framework. The framework recognises that the NHS's contribution must begin by offering fair access to health services in relation to people's need, irrespective of geography, socio-economic group, ethnicity, age or sex". That is one of the six criteria by which the NHS's performance will be assessed in future.

Mr. Hammond

Given what the Minister has just said, would not accepting amendment No. 172, and thus including a specific duty for CHIMP, send an important and valuable signal?

Mr. Denham

I have considered the amendment carefully, but I concluded that it was not necessary. As I have said, several of the normal aspects of the commission's work in reviewing the development of clinical governance will require to consider issues of access. That will apply especially to its consideration of the national service frameworks. It would be within the power of the Secretary of State to request the commission to carry out a specific study of access issues, should that be necessary. However, to introduce a standing requirement would be unnecessary in the context of the way in which the commission will work.

We are committed to implementing section 21 of the Disability Discrimination Act 1995 in the NHS and will shortly issue to the NHS a report on that by Disability Matters, including a proposed action programme for the NHS that will be informed by the views of service users as to priorities. We shall also issue a template to help the NHS audit its premises for their accessibility for disabled people. A range of development work is also under way to assist the NHS in making fair access a reality.

I have listed just some of the wide range of action under way. As I have explained, much has already been done to improve our information and understanding about how the NHS treats its staff and about the experience of patients. Equal opportunities is integral to our programmes of modernisation. With equality indicators and the performance assessment framework, we shall be able to track progress more systematically than in the past.

I believe that it is right to concentrate efforts on seeing through that substantial programme of change. In response to the debates in the other place and in Committee we reconsidered the question of legislation as proposed in some of the amendments. I set out earlier why I do not believe that a piecemeal approach to the introduction of legislation is the right approach. A more fundamental approach would need to take into account more important considerations across Government.

Mr. Simon Hughes

I am listening carefully to the Minister's speech. Is he willing to consider making a start by introducing legislation that would cover all NHS activity? I understand his point about the considerations across Government, but will he consider introducing legislation in the next parliamentary year to ensure that those who felt that they were being discriminated against in NHS treatment would be able to raise that under legislative provision?

Mr. Denham

I always wish to be helpful, but I do not believe that I can make a commitment to bring forward, in the next parliamentary year, legislation such as the hon. Gentleman seeks. As the House will understand, I fear that I could get into deep trouble for making a commitment to introduce any legislation in the next parliamentary year.

At the beginning of my remarks I was careful to set out the difficulty. Use of the Race Relations Act 1976 may be the right response to the Macpherson report, but we need to ensure consistency across Government. We must choose the right legislative approach in connection with other areas of discrimination, and to deal with the NHS specifically would contradict that.

Although a specific review would not be the right way forward, I assure the hon. Gentleman that we shall continue to keep the performance of the NHS under close review, in the way that I have described. We shall listen carefully both to those who work in it and those who receive our services.

Mr. Hughes

The NHS is the largest organisation in the country. I do not dispute that the Government's intentions are good, and the Minister has set out their programme of work. Whether that will guarantee sufficiently soon that complaints about unfair treatment can be taken up with some prospect of success remains to be seen. I accept that that is more important in connection with the service provided by the NHS than with the employment that it provides, as other provisions are more effective in that regard.

Because so little time is left, and although I am seriously not happy, I hope that I will be able to speak to the Minister when this debate is out of the way. I shall also ask those of my colleagues who deal with Home Office affairs to meet the Minister's colleagues in the Home Office. I believe that a way forward exists, and that a provision governing the whole of the NHS would be better than one that covers only part of the organisation.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Forward to