HL Deb 07 June 1990 vol 519 cc1574-658

Consideration of amendments on Report resumed.

The Deputy Speaker (Lord Murton of Lindisfarne)

My Lords, I have to announce to the House that the figures given for the last Division, as Division No. 4 on the National Health Service and Community Care Bill, were incorrect. The correct figures were: Contents, 48; Not-Contents, 86.

Clause 3 [Primary and other functions of health authorities etc. and exercise of functions]:

Lord Ennals moved Amendment No. 28: Page 3, line 17, at end insert: ("( ) It shall be a primary function of a District Health Authority to ensure there is continuity of care for patients discharged from hospital accommodation into the community.").

The noble Lord said: My Lords, one of the Government's stated aims of the changes to the National Health Service is to make the health service more responsive to the needs of patients. It is an admirable objective. It is recognised by all of us that good continuity of care after a period in hospital is a vital aid to a successful recovery.

I suppose that one of the major success stories of the National Health Service has been the creation of this complete system of care extending from the GP to the hospital and to the community. It is a circle of continuity of care. The local nature of the health service has enabled the communication links to develop between the hospital and the community services. In other parts of the Bill we are extending programmes of care in the community and, if patients are to receive the ongoing care that they need, those programmes make the link between the hospital and the community services all the more important.

It could be argued—and perhaps the Minister will do so—that this amendment is a statement of the obvious. In fact, it is designed to meet some very genuine fears. First, it is possible that the internal market may result in patients having to travel further for treatment if the district health authority has placed a contract outside their district of residence. Secondly, the results of placing contracts with specific health providers may also dislocate the management link between hospitals and the providers of community-based services.

Thirdly, self-governing hospitals may decide to reduce the after-care services that they offer. They could do so if they felt that they were too costly, and this could be especially damaging to the elderly and the chronically ill. It would result in them becoming distant from the local community services. Fourthly, there is a fear that self-governing hospitals cannot produce objective, verifiable financial information unless they are required to make their returns on the basis of an integrated community health structure, since outcomes, and thus the cost effectiveness of the services, must be monitored once the patient has returned to the community.

This simple amendment seeks to ensure that it is a primary function of a district health authority to provide continuing care for patients discharged from hospital, whether or not it concerns someone being discharged from a self-governing trust hospital. It is not designed in any way to relieve local authority social service departments of any responsibility or to offload any responsibility. It was the feeling of many of us—and there has been a good deal of consultation, especially with the Royal College of Nursing, in preparing this amendment—that the National Health Service's responsibility should not end when patients leave the hospital. I beg to move.

Baroness Robson of Kiddington

My Lords, I supported this amendment in Committee and I should like to do so again. The noble Lord, Lord Ennals, poined out that the changes in the health service with self-governing hospital trusts and district health authorities would mean that health authorities would conceivably make quite a number of contracts with hospitals outside their own districts. In my view that makes it essential for us to have an amendment of the kind which is now before the House.

When we discussed this amendment in Committee, the noble Lord, Lord Jenkin of Roding said: I believe that it would be unwise if one were to have an amendment which appears to put the primary duty on the health authorities … If one puts a statutory duty on one group of people, it becomes all too easy for everyone else to say, 'it is not my responsibility' ".—[Official Report, 24/4/90; col. 501.] I suggest that if one reads the amendment it will be seen that it does not put a statutory duty on the district health authority to do what the noble Lord, Lord Jenkin of Roding, suggested; it just provides that the district health authority should, ensure there is continuity of care for patients". I think that that is a perfectly right and proper way to deal with the situation, because the DHA is finally responsible for all the people within its district. It does not say that the district health authority should do it all; it says that the authority should ensure that it happens.

During the same debate the noble Lord, Lord Henley, in his reply at col. 505 of Hansard, said: Operating Contracts emphasised the need for discharge policies and for ensuring continuity of care by saying that providers should consider offering specifications of the admission and discharge procedures which they will follow". He added that DHAs would obviously wish to ensure that the process was monitored.

It is not enough to say that the providers should consider offering specifications. What we want to ensure by means of this amendment is that in the last analysis the district health authority is responsible for ensuring that continuing community care is provided for all the people within its district.

Lord Pitt of Hampstead

My Lords, there is much substance in this amendment. We are moving towards a stage where hospitalisation will possibly be for very much shorter periods of time than at present, after which the patient will leave hospital and go home. We should ensure that when this happens there is some responsibility for seeing to it that the patient continues to have the appropriate after-care. That is what the amendment seeks to achieve. In my view it is a sound amendment and I hope that the Government will consider accepting it.

After a couple of days in hospital the patient is better to the extent that he no longer needs hospital care and can go home. But he is not completely better. He may need additional care—a matter, we accept, for the patient's GP. On the other hand, the patient may need a measure of community support. The Minister may say that that is for the local authority. However, it is possible for the patient to fall between two stools. If we say, as the amendment does, that the district health authority has the responsibility of ensuring that the patient receives appropriate treatment, we shall be doing something wise. I hope that the Government will accept the amendment.

Lord Henley

My Lords, as has been said, we considered a similar amendment in Committee. I hope again to show that the amendment is unnecessary, although obviously I understand the fears of the noble Lord, Lord Ennals.

As I have said, from 1st April 1991 district health authorities will continue to be subject to the requirements set out in health circular (89)5 and its accompanying booklet The Discharge of Patients from Hospital. The circular outlines the necessary arrangements DHAs should make for patients discharged into the community to ensure the appropriate continuity of care. Similarly, Operating Contracts published on 1st March emphasised that both DHAs and provider units will want to specify quality requirements such as admission and discharge criteria in contracts. DHAs' new roles as purchasers will make them better able to focus on ensuring that all their residents' health needs are covered.

The noble Lord, Lord Carter, has referred to the possibility of people in community care being shifted from a health authority budget to a local authority budget depending on where money happened to be. I assume he had in mind a person having to spend a period in hospital because the local authority could not go on paying for a home care aide or someone sometimes attending a day hospital but being switched to a local authority day centre because the money for the day hospital had run out. It would clearly be highly undesirable for care provision to be switched about in that way primarily for financial reasons. The new community care arrangements embodied in Part III of the Bill should help to ensure that there will be no need for it to happen.

Under our proposals service provision will have to be tackled at two levels. At the level of the authority there will be community care plans. Those will be prepared by local social service departments. A government amendment was introduced on Report in another place requiring consultation on plans with health and housing authorities. Plans should include planning agreements with other authorities where appropriate. An agreement with the health authority over discharge procedures is an obvious case in point. Account should be taken of the resource implications of community care plans through the authority's financial planning cycle. Similar arrangements already apply on the NHS side. Local authorities will thus be able to decide how they will address the overall community care needs of their areas within the resources available to do that. In later years, as the planning process gets under way, unmet need will also be fed in.

At the individual level, local authorities will have to access needs for community care services. Again, a government amendment in Committee required social service departments to bring apparent health or housing needs to the attention of the appropriate authorities. We hope that all authorities concerned will work closely together both in assessing needs and in deciding what services to provide. If an authority agrees to provide a service, it would normally be expected to continue to do so until the needs of the person concerned for community care were reviewed. The timing of the review would be considered as part of the original assessment.

I submit that the key to the provision of continuing care for people leaving hospital lies in planning and collaboration between authorities. That will be secured by the new community care arrangements.

I hope that the House will accept that the amendment is unnecessary. It is not by so general a provision in statute that continuity of care will be secured, but through the detailed specification of contracts, and collaboration with local authorities at the local level. This is already provided for either within existing circulars, or in the provisions of the Bill. I hope therefore that the noble Lord will feel able to withdraw the amendment.

Lord Pitt of Hampstead

My Lords, I do not want to be difficult but, before the noble Lord sits down, let us assume that the patient is in hospital for three days and then comes out. He is not too well but does not need hospitalisation. What happens at that stage? Who is responsible for ensuring that the patient is looked after? As I see it, the amendment means that the district health authority will have some responsibility for ensuring that the patient is looked after.

I listened carefully to the Minister. At no stage did he say who would be responsible for ensuring that the patient is looked after. That is the point that I am trying to establish.

Lord Henley

My Lords, with the leave of the House I thought that I made it clear that circular 89(5) and its accompanying booklet The Discharge of Patients from Hospital will continue to operate after April 1991. District health authorities will continue to be subject to their requirements. The documents outline the necessary arrangements that districts should make for patients discharged into the community to ensure that there is the appropriate continuity of care.

8.15 p.m.

Lord Ennals

My Lords, it never occurred to me when I moved the amendment that it would bring down the House. It seemed such a modest little amendment. I never thought that it would have such a reaction from above. Whether it was the Almighty giving support to my amendment or trying to bomb the Minister during his response, I do not know! I hope that all Cross-Benchers are safe from whatever was being thrown down.

I appreciate everything that the Minister has said. There is a debate as to whether certain issues are so important that they should be in the Bill or whether it is sufficient for them to be in circulars. It seemed to me, which is why the original amendment was proposed by my noble friend Lord Carter in Committee and why we have both moved one today, that the statement was so important that it should be on the face of the Bill and not merely in a health circular. I am not running down the importance of health circulars; but statements such as this are fundamental to the health service responsibility, and particularly to the function of a district health authority. I shall not press the amendment to a Division. I shall withdraw it, but my feelings about it are in no way changed as a result of the Minister's courteous and helpful reply.

Amendment, by leave, withdrawn.

Lord Ennals moved Amendment No. 29: Page 3, line 17, at end insert: ("(1A) It shall be the duty of each Regional Health Authority to publish a statement of health targets on such matters as it deems appropriate for the purposes of securing improvements in the standards of health of its resident population.").

The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendments Nos. 39 and 40. The amendments would place a duty on regional health authorities to publish targets for improving standards of health in their locality. The DHAs and other purchasers of health care would take account of the targets as they place contracts and would have to report annually the progress that they had made towards meeting those targets.

The amendments flow from, and were inspired by, the results of the simulation exercise to which I have twice referred in your Lordships' House: once in Committee and once earlier today. The rubber windmill exercise was carried out in East Anglia and the results subsequently published in an article in the Health Service Journal and more fully in Managing Better Health published by the East Anglian Regional Health Authority.

The exercise, carried out over three days in April this year, provided a dry run for the proposed internal market with senior NHS managers playing out the purchaser and provider roles which the Government want to see operational by 1st April next year. Their simulation found that the market crashed after three years of operation. The regional general manager of the East Anglian authority subsequently wrote up his experiences during the workshop and published them in the Health Service Journal. Perhaps I may quote from that article written by Alasdair Liddell and Greg Parston. It stated: The workshop [gave] rise to many important lessons for managers and healthcare professionals, but the most important was that without an overall framework of health quality and outcomes to guide purchasing, benefits to patients could not be guaranteed in the new market".

In the statement that was published by the East Anglian Regional Health Authority, there was a statement from Alasdair Liddell himself as regional general manager. I read from a copy of a letter to Christine Hancock, general secretary of the RCN, in which Liddell says that chief among the conclusions were the following: the need for a clear framework of health and quality outcomes to guide purchasing, negotiated and agreed between DHAs, GPs and local authorities; greater recognition of the central role of GPs, both as providers of primary care and as purchasers of secondary care".

These amendments put on the face of the Bill one of the key recommendations if the internal market is to have any chance of success. The exercise found that pressures within the market exerted a downward force on the quality of care. The East Anglian Regional Health Authority stated: Purchasers actually pressed providers to lower quality in order to meet contracted caseloads and stay within their budget".

This is something that we have always feared might happen. I believe that if we do not have evaluation, at least we should learn the lessons of the simulation exercise. This scenario could be prevented if purchasers had to meet long-term health targets determined objectively by regional health authorities. The targets would deal with general issues such as reducing the number of avoidable deaths or might include the levels of perinatal mortality: the length or time of waiting lists; targets for cervical cancer screening. One can think of a whole range of targets that might be established.

These targets would act as long-term goals for district health authorities, counterbalancing the short-term pressures they face within a market. The amendments seek to establish such targets for the overall improvement of health care and to provide a mechanism for monitoring DHA's progress towards these targets.

I have pleasure in moving the amendment and I wish that we could spend three hours debating some of these extremely important matters. I should have liked to be able to raise them at Committee stage when we had more time, but the report of the East Anglian conference has only just been published, so that was impossible. However I believe that the issue is extremely important. I beg to move.

Baroness Hooper

My Lords, the overriding objective of the proposals in this Bill is to improve services throughout the National Health Service; to improve the quality of clinical care; and to improve the delivery of care. The establishment of the clinical standards advisory group, which we shall come to later in our discussions, will be a major step towards ensuring that this objective is achieved. However even a body like the clinical standards advisory group can only assist and encourage work at local level, which is where the essential tasks of improving standards will be carried out.

It would not therefore, I believe, be helpful to introduce the statutory requirements proposed by the amendments. They would impose a rigid top-down approach which could well divert local effort from where it is really needed and discourage innovation and enthusiasm on the ground, which is what we wish to see moving forward.

The noble Lord, Lord Ennals, referred again to the East Anglia Rubber Windmill experiment. I repeat that that project was in a sense self-destructive, in that it was intentionally pushed to breaking point in order to learn all the lessons. In making this reference again, the noble Lord emphasised the value of doing this because it has given us material on which to build suitable safeguards. It is very much in line with the evolutionary approach which we are taking in terms of implementing the proposals.

There is no doubt that the contractual process will focus attention on quality of care, on areas where improvements in health standards are needed and on outcome measures and objectives. The new structure contains the necessary conditions and incentives for this. As has been stressed before, district health authorities will have a new responsibility to assess the specific health needs of their population and to ensure that the most appropriate pattern of services is provided. They will work closely with GPs who are best placed to know patients' needs and preferences. They will place contracts with those providers of services who offer the most effective and highest quality services. Contracts will specify the nature and quality of care required. The provider's performance will be monitored to ensure that what has been contracted for is delivered.

This process could only be encumbered and distorted by the general issuing of targets and objectives by regional health authorities in the manner suggested by the amendment. Certainly, regions and, beyond them, the National Health Service management executive will have an important role in setting targets and monitoring performance. But this involvement needs to be selective and strategic. It must not pre-empt the identification of local needs and solutions.

Our expectations of the pace of change must be as realistic as possible. District health authorities need time to settle into their new role and to build up expertise in identifying health needs. Similarly the development of quality measures and outcome objectives will be evolutionary.

Sudden change should not be expected, therefore, and—and we have maintained this all along—things will not change overnight just before 1st April 1991. The important point is to establish the appropriate structure which will enable these developments to take place in response to local requirements. That is what we expect the Bill's proposals to achieve. For these reasons I cannot accept the amendments and I hope that the noble Lord will feel able to withdraw them.

Lord Ennals

My Lords, I did not quite see the logic of the Minister's thoughtful reply. She said that health authorities will have objectives and will produce targets. If this is to be so, of course they must be locally produced and locally worked out. I cannot imagine that a regional health authority would publish a statement of health needs without consultation with the district health authorities.

I suppose that in drafting the amendment I should have said, "It shall be the duty of each regional health authority, in consultation with the district health authorities, working within its region, to publish a statement of health targets". However, in the general operation of business and organisation, to set targets—whether of membership levels, of profitability or turnover or, in this case, health objectives—seems to me to be good. I do not believe that it imposes new worries or new problems. To set targets gives a greater sense of participation, and perhaps sometimes excitement, in trying to move towards those targets. I do not know why the Minister seems to feel that there is something rather damaging and dangerous about this. I should have thought it would be extremely good for the health service that we should look at the particular targets that we need to achieve. As the Minister rightly said, it is not enough merely to do this at a national level. We used to do it at a national level in publications that were prepared every year. However, I am proposing that it should be done at a regional and local level. However, regional targets would only be set after consultation upon district targets. I do not understand why the Minister is opposed to this measure and why she feels it would be damaging.

I wish to make a few comments on the rubber windmill. I am full of admiration for the initiative of the East Anglian region. I am a former soldier and we used to do this kind of thing in terms of simulated military exercises. I thought that idea was brilliantly planned. I do not believe it was intentionally pushed to breaking point. I do not know what the grounds are for saying that. The initiative was pushed to find out the consequences of that pressure. Everyone was playing a realistic role and in the course of time things were being done in a day which might otherwise have taken a year. However, that is often the case in simulated exercises. The intention was not to reach a breaking point. Those who participated in the exercise began to see problems that had to be faced. That was the whole purpose of doing it. I thought it was an imaginative, constructive and well conceived exercise. I do not share what I sense was a criticism of an admirable initiative. Neither do I accept the criticism of the amendment. I shall not press it to a Division, but the Minister has not convinced me that this measure would not be innovative for the National Health Service. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

Lord Clifford of Chudleigh moved Amendment No. 30: Page 3, line 17, at end insert: ("( ) It shall be a primary function of a District Health Authority to ensure that budgetary provision allows for an integrated, comprehensive child health service which links effectively with services delivered by the local authority.").

The noble Lord said: My Lords, were we to pass Clause 3 of this Bill unamended we all, whichever party we belong to, would earn a new title. We would be accused of being careless, that is to say heedless, thoughtless and regardless. Although Clauses 11, 13, 14 and 15 of the Bill refer to the financing of the family health services, Clause 15(3)(a) states: by making payments on account of the allotted sum at such times and in such manner as the Secretary of State may direct".

At present the "allotted sum" to a practice must cover drugs, medicines, listed appliances and child health care. The latter covers the extensive and very expensive comprehensive so disabled child. That health care may well be overshadowed by the requirements of the majority which comprises those who are not congenitally afflicted or have not suffered at birth or in infancy and who might bear their malady throughout life. The Government's paper states that a district health authority will meet any outstanding financial burden. But what a severe burden this will be for certain health authorities, especially those whose responsibilities include inner city precincts.

I wish to support what the noble Baroness, Lady Masham, said in Committee when she feared for the future of a comprehensive child health service which related to severely disabled, mentally retarded or abused children. She feared such a service could become fragmented and thereby force families, perhaps in the lower income bracket, to move to a different district in order to obtain the correct care facilities. They are then faced with another cost. The health care of the nation's children who will form the next generation is not just important when they are born when paediatric care is on hand. Of equal importance is continuing care and support outside the place of birth when paediatric attention—this is specialist care—is constantly needed and vital to the future of a growing individual.

The Court Report was produced in 1976 and was commissioned by the Labour Government. It made many valuable points relevant to family health care. It emphasised the financial and medical benefits of preventive services including immunisation. Noble Lords have heard me talk previously of prevention rather than cure. The report urged the major responsible body—the Government—to ensure that child health cards which are vital for the monitoring of health progress should be in the possession of the family and should be regularly checked, up to the age of 15 years.

At present the director of public health for each district health authority oversees the needs of a district's population. That includes all age groups. The Court Report, among many other valid and worthy pieces of advice, suggested that a district consultant community paediatrician would be of enormous value to the health and welfare of the nation's children and youth and an invaluable aid to the district director of public health. How much did that Court Report cost to produce? What happened to it? It lies among the civil service "forthcoming events files" gathering, sadly, the dust of complacency with financial consequences and at the expense of the state of health of this country's younger generation.

During the earlier stages of the Bill we repeatedly referred to child health. Section 22 of the 1977 National Health Service Act stipulated the link between a local district authority and a health authority to ensure that an executive body monitored care for children with special needs. That infrastructure ought to be strengthened and it must be strengthened. I pray that the consciences of noble Lords will persuade them to emphasise to Her Majesty's Government the need for more specific funding and more attention to child health care. I beg to move.

Baroness Faithfull

My Lords, I rise to support the noble Lord, Lord Clifford, in his recommendation for an integrated, comprehensive child health care service which would deal with prevention, treatment and rehabilitation. But, in practical terms, how should this be done? Such a service is recommended by the British Paediatric Association, the family practitioner committees, the Health Visitors' Association, the National Association of Health Authorities in England and Wales, the National Children's Bureau which has affiliated to it 70 child care organisations including the Children's Society, the National Association for the Welfare of Children in Hospital, the Voluntary Council for Handicapped Children and the British Medical Association. It is, therefore, not only doctors but also health visitors, social workers and all those dealing with children who support this amendment.

How is this measure to be achieved? We recommend that a doctor-manager with responsibility for child health care in a district should be appointed at district level. This doctor-manager would be responsible for linking the health of children with the social and environmental factors that affect the health of children. If such a post had existed, would we have been in quite such a mess as we are at present with regard to our housing policies? Would not such a doctor-manager with responsibility for child health care have made representations to housing departments so that people did not live in bed and breakfast accommodation? Could he not take note of such matters as accidents in the home and in children's playgrounds? He would be responsible for preventive care services such as immunisation and vaccination, and for the fields of diabetes, cystic fibrosis, multiple sclerosis and spina bifida.

Having myself dealt with many such cases, I know that often a child goes into hospital too late because it has not been recognised what is wrong with the child. The child receives the most wonderful care in hospital but once out of hospital, although the doctor gives advice to the parents as to what care the child should receive the parents do not know where to go for the practical help and advice which lies in the community.

I should like to cite one or two areas of deep concern, for example, dyslexia. We have had debates on dyslexia. Many of us know of parents who have been told by doctors that their child is dyslexic but who have been unable to obtain the facilities and education required for their children. A doctor-manager with responsibility for child health would be able to give help and advice in such cases. I could go on for some time on the subject. Such a post could provide co-ordination between those dealing with health and environmental problems. I believe I am right in saying that such a post already exists in Hackney, and I am grateful to see the noble Lord, Lord McColl, in his place because I believe that at Guy's Hospital, where he works, there is also an integrated child health care service.

Those of us proposing the amendment recognise that we have not given my noble friend the Minister much time to consider the argument and that it is a very big subject. We also recognise and are worried that while a GP service receives £5,000 per patient, spina bifida cases, for example, cost a great deal more to look after. If those patients cost £4,500 will the GPs feel able to take on such cases?

As the noble Lord, Lord Clifford, has said, the Court Report made such a recommendation as long ago as 1976. I submit that if there were to be such a post, if there were to be such an integrated service, it would save the National Health Service much in that we would have much healthier adults, and therefore I support the amendment.

Lord Ennals

My Lords, I should like very much to thank the noble Lord, Lord Clifford of Chudleigh, for having brought the amendment before us. When he made his maiden speech several of us said that we hoped to hear more from him. It is good to hear more from him in such a constructive way.

I was glad that noble Lord referred to the Court Report. I was Secretary of State at the time. The report aroused a great deal of interest, and a great deal was done. I am sure that the noble Lord would say that not enough was done and that a number of new appointments might well have been made. I expect that those who were members of the Court Committee were dissatisfied; nevertheless a great deal was done. The situation regarding children has improved not only as a result of that report. The infant mortality rate has fallen from 34 deaths per 1,000 live births in 1948 to 9.1 per 1,000 in 1987. Childhood mortality rates have likewise declined. There has been an enormous improvement. However, we have seen new problems arise. Although more children's lives are saved there is nevertheless increasing survival of children with mental, physical or sensory disabilities or a combination of disabilities.

Modern health care for children requires a service with closely related community and hospital elements. That must be taken into account when planning facilities for children. It is right that at the time when we are looking at changes in the National Health Service we should see this as being a field in which we should now seek to make more progress than has been made in the past. An integrated, comprehensive child health service brings together the health care services needed by children. It provides an acute service able to respond immediately to the needs of the acutely ill or injured child, services for the chronically disabled or ill child, and services for the prevention of illness such as immunisation, vaccination and child care surveillance programmes.

This is a very important amendment. We have said that about all the amendments that we have put forward, and our hope is that at some moment the Government will agree that the amendments that we seek are very important. I want to add such weight as I have—and there is not much left of it—to this amendment in the name of the noble Lord, Lord Clifford of Chudleigh.

Baroness Masham of Ilton

My Lords, I, too, should like to support the amendment.

Lord Mottistone

My Lords, I too, support the principle of the amendment, but I am not quite sure about the wording.

8.45 p.m.

Baroness Blatch

My Lords, there is no question but that it will be the duty of district health authorities to promote comprehensive health services for children as the amendment proposes. The Secretary of State already has a clear duty to provide a comprehensive range of health services under Section 1 of the 1977 Act. That duty will be delegated to health authorities through the definition of their primary functions. The definition must include services for children. District health authorities will have a central task of assessing the health needs of their resident population and arranging the placement of contracts for services accordingly.

There is no doubt about the priority we attach to the development of child health services. Children are the key to our future and the true wealth of a nation. It has been the policy of successive governments since publication of the Court Report in 1976 to encourage the integration of hospital and community health services for children, with close links to local authority children's services, to ensure continuity in the care and support given to families with children. My right honourable friend the Secretary of State has restated our commitment to the integration of services. In a letter to the president of the British Paediatric Association on 3rd August 1989 he set out some of those points in detail. He indicated how there will be greater scope for flexibility and innovation under the new arrangements to secure swifter progress towards effective integration than has been achieved so far.

However, I do not see this primarily as a financial issue. I expect district health authorities, when they are negotiating contracts, to specify that they require an integrated children's health service. It will then be for the providers to take the necessary organisational and management measures to deliver an integrated service. They will also need to demonstrate that they have effective liaison arrangements with local authority staff working in social services and education departments to implement provisions for the planning and assessment of need under Clauses 42 and 43 of this Bill and Part III of the Children Act. By definition, health authorities will need to secure adequate financial provision to secure these services, as they do now.

I have referred to the Secretary of State's letter; I shall read one paragraph from it. It is a very comprehensive letter and I can make sure that it is placed in the Library if Members of the House would like to see it. The paragraph reads: Implementation of the White Paper should not impede progress towards the integration of comprehensive hospital and community services for children. I am aware that successive expert studies—the Court Report, the Maternity Services Advisory Committee reports—have described the need for integration and I have no doubt that this is necessary for the effective delivery of services. I expect districts to share this view and to seek to contract for integrated children's services. This will create a demand which, under the new arrangements, providers will have greater incentive and organisational flexibility to meet. I hope, therefore, to see innovation in the delivery of children's services and swifter progress towards effective integration than has been achieved so far". I advise noble Lords to read the letter fully.

Reference was made by my noble friend Lady Faithfull to some authorities having a specific post. I believe that she mentioned Guy's Hospital and Hackney. I am not arguing about the objectives of the amendment. We are talking about means to an end and the way in which authorities set up the services. It seems to me that the two examples mentioned show the way in which those authorities meet that objective. We are arguing for managerial freedom to meet those objectives.

My noble friend Lady Faithfull also referred to a genuine anxiety shared by many people about fund-holding practices running out of money over and above the £5,000 which is allocated for each patient. No patient in a fund-holding practice will go without treatment. The first £5,000 of an individual patient's hospital treatment costs will be met in full by the practice, but any additional treatment costs—reference was made to spina bifida cases—will be met by the relevant district health authority.

My noble friend Lord Mottistone ended by saying that he was concerned about the objectives.

Lord Mottistone

My Lords, I said that I approved of the principle of the amendment, but that I was not sure about the wording. That was my only criticism.

Baroness Blatch

My Lords, perhaps I was reading too much into what my noble friend said. We—I include myself and the Government—support the principle. I thought that my noble friend was saying that he was not certain whether that was the way to achieve it. That is what I should prefer to leave it at. I hope for that reason the amendment will be withdrawn.

Lord Peston

My Lords, before the noble Baroness sits down, perhaps I may say that she has somewhat avoided the primary question; namely, what would happen if appropriate budgetary provision was not made? As I understand it, it is all very well for the Secretary of State to say that he would like it to happen and to write some letters. However, if it does not happen, there is nothing in the Bill to enable him to ensure that it happens. Therefore, setting aside wording, which never bothers us—we can always get that right—surely the point of the amendment is this: if the Government are serious about the matter—I understand that they are strongly committed to it—they should either accept the amendment or rewrite it in a form which meets those aims. I believe that I am right in saying that the Secretary of State has no powers to insist that an integrated, comprehensive child health service should be appropriately financed. At present, all he can do is to encourage and advise. The amendment is at least important enough for the noble Baroness to take it away and see what she can do with it.

Baroness Blatch

My Lords, as I read the amendment, there will be a requirement to provide an integrated, comprehensive child health service to meet the needs of children within the area. It will make demands on the education services, on the social services departments of councils and on the medical services. There must be a strategy to meet those needs across the board. We all agree with that.

However, I must depart with the noble Lord when he pleads with me to agree with him. The amendment pre-empts a call on the budget. That need will have to satisfied, but many other needs will have to be met and it will be for individual authorities to allocate their budgets, taking into account all the needs that will have to be met. The proposal specifically meets the needs without any quantification.

Lord Peston

My Lords, with the permission of your Lordships, perhaps I may rise again. I have checked with the Clerks that I am able to rise so long as the noble Lord does not object to me doing so, which I hope that he does not.

Lord Mottistone

My Lords, the noble Lord must ask a question.

Lord Peston

My Lords, I shall ask a question; namely, will the noble Baroness address herself to the point that she raised? The point of the amendment is to give priority to such matters. As I understand it, the amendment seeks to achieve precisely the point that she makes. It does not regard those matters as on a par with all the other objectives. Does she not agree that such matters should have priority?

Baroness Blatch

My Lords, with the leave of the House, I shall reply. The House is being patient on this issue. The overriding objective of the amendment is to ensure that there is an integrated approach to meeting the needs of children which will be variable and will call on the services of local authorities, health services and the education service. There is an obligation to meet those needs. If those needs are not met, they will be picked up through management accountability. There are powers in the Bill which are more than sufficient to back up matters and ensure that thsoe needs are met.

Baroness Faithfull

My Lords, before my noble friend sits down, perhaps I may ask for a little enlightenment. She said that an integrated comprehensive child health care service would be implemented; but where in the Bill does it say that it should be? I am not clear about that.

Baroness Blatch

My Lords, it will be for the authorities to pre-empt the needs of all the client groups within their areas which will include children, elderly people and people with medical needs. By and large, we are talking about medical needs because some of the educational needs are also medical needs; for example, young children with dyslexia. There will be some quantification of those needs and they will have to be met. Under the community care parts of the Bill, those needs will be met, sometimes by the health authority, sometimes by the education authority and sometimes by the social services department. I suspect that the powers are peppered throughout the Bill. I am not being very specific, and if that answer is incomplete I shall write to noble Lords.

Lord Clifford of Chudleigh

My Lords, I should like to thank the Minister for her reply. She will understand that it is not to the total satisfaction of all the listeners here tonight. It is a sensitive subject. Most of us have had children and some of us have had experience of those who suffer, either in infancy or at birth. It would probably be a good idea if a meeting were held with the Minister so that a select body of people can look into the business a little more prior to the Third Reading when another amendment to the clause will probably be tabled. That being the case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Masham moved Amendment No. 31: Page 3, line 24, at end insert: ("(2A) In carrying out its primary functions a District Health Authority shall provide a district-wide incontinence service and shall identify a continence advisor and a consultant to take a special interest in incontinence.").

The noble Baroness said: My Lords, I bring back this amendment because the organisations supporting it were most disappointed by the reply given by the Minister in Committee.

It is most important that district health authorities provide a service to those people who need advice and help over the problems of incontinence. I shall not go ever all the difficulties and dangers with which people have to contend due to incontinence, as that subject was well covered by many of your Lordships in Committee. The Minister's reply failed to address the issue. The Minister referred to government health notice 88/26 which, she said, had been placed in the Library. That circular is what the Government recommend. It is from that circular that the wording of the amendment comes. It is what the Government want, but the Minister went on to say that district health authorities should be left to decide on their own priorities.

The situation has continued to deteriorate since the health notice went out. That shows how ineffective notices without legislation can be. At present, there is no means of ensuring an improvement in services. There is therefore a need for an amendment such as this so that provision is guaranteed under legislation. We badly need some minimum standards covering incontinence needs. Otherwise, there is a strong feeling that some districts will neglect that service. It would be interesting to know what the plans of health authorities will be. We are told that they will be public documents. The Minister said that they would help to ensure that services were provided to meet the needs of the people in the districts. How can we be sure that incontinence provision will be included in those plans?

Many of the senior managerial nursing positions are now filled by men. Incontinence may not come very high on their list of priorities. Incontinence provision can make all the difference to the quality of life for people. It is one of a number of areas of service provision where there is considerable overlap between health and social service departments. That could be problematical. How will the mechanics of the overlap work? For instance, will a person living in the community who is in need of incontinence pads be able to obtain them easily, or will he or she have to be referred to a nurse? Will arrangements vary from one district to another? Many health district areas are different from social service boundaries. Many disabled people and their families are worried since so much change is planned in the Bill with no safeguards for the most vulnerable patients.

The Government are full of rhetoric on how the situation will be improved after the Bill is enacted. But very often in practice what is meant to happen does not come about, and the opposite occurs. One factor will be the need to employ many more accountants and a new tier of expensive administration.

Incontinence is a subject that is often hushed up through embarrassment on the part of an individual person needing help. The amendment simply aims to ensure that people needing help and advice over incontinence problems will receive it. I hope that your Lordships will support it. I beg to move.

9 p.m.

Baroness Cox

My Lords, I speak briefly in support of this important amendment. It might affect over 2 million people. Incontinence can affect a wide range of all age groups. A survey a few years ago indicated that a third of the people who replied were aged between 25 and 40. Incontinence may also be associated with accidents, which often affect young people. It is also one of the problems associated with some of the tragedies than can come with increasing age, especially cerebrovascular accidents.

The problems associated with incontinence are legion. They are physical, psychological and social. Apart from the discomfort of incontinence, it may, if not treated properly, contribute to the development of pressure sores and the infection of those sores. It may also be associated with psychological distress and embarrassment, leading sometimes to social withdrawal and isolation.

In 1977 the Department of Health and Social Security (as it then was) recommended that a specialist nurse for the care of incontinence should be appointed for every district health authority. The amendment is entirely consistent with the intentions of that suggestion, although it provides for a more comprehensive service.

In conclusion, given the enormous cost in human terms of the failure to provide for adequate incontinence care, and the transfer—as will occur when the Bill comes into effect—of many people with incontinence problems into community care, with responsibility for care residing primarily in staff who are not clinically trained, I suggest that it is of the greatest importance that a comprehensive, readily available incontinence service should be ensured in every district health authority.

I very much hope, therefore, that this provision will be assured and that support of the amendment which would provide that assurance will be forthcoming.

Lord Rea

My Lords, on listening to the noble Baroness, Lady Masham, moving the amendment, I recalled my Amendment No. 21. It called for legislation to regulate the hours of duty of junior hospital doctors. If one substitutes "junior hospital doctors' hours" for "incontinence service" the arguments are similar.

As the noble Baroness, Lady Masham, said, a ministry circular has gone out to all health authorities suggesting that such a service should be provided. Unfortunately, the implementation of that circular has been very patchy throughout the country. That is precisely what has happened with regard to junior doctors' hours. The department is very sympathetic to the idea. It has set up a working party and asked for matters to be improved throughout the country. It has asked health authorities to work hard on the matter. But progress is slow and patchy.

That is why I support the suggestion that the idea should be incorporated in legislation rather than simply being a part of a department circular, however laudable.

As a general practitioner in the National Health Service, I can testify how useful incontinence services can be when they are introduced, having not been in place previously. I have numerous patients suffering from incontinence who are both middle aged and elderly, although, luckily, not many young such patients, whose situation is even more poignant. But the service is enormously beneficial. It is difficult for people who do not have this problem to realise what a difference such a service makes.

I fully support the amendment. Every health authority should provide the service. The personnel are there. If they are not, they can be trained relatively easily. It is not a terribly expensive service. The benefit obtained compared with the cost is very great. I strongly support the amendment.

Baroness Darcy (de Knayth)

My Lords, I support the amendment. I support what my noble friend said about the disappointment of the disability organisations at the Minister's reply in Committee and the fact that the situation has been deteriorating since the issue of the health notice.

I hope that the Minister will have been convinced by my noble friend and others who have argued so cogently that the incontinence provision needs to be guaranteed by being written into the Bill. Will the Minister also indicate how she views the idea of ensuring through guidance—I am glad to see the noble Lord, Lord Peston in his seat; he is a firm supporter of guidance, which is strong, as opposed to guidelines—that health authorities make a clear and positive statement about their plans for incontinence provision? That would be a minimum requirement. I should much prefer some provision in the Bill. That is why I support the amendment. Perhaps the noble Baroness will indicate how she considers providing such guidance.

Lord Swinfen

My Lords, I too support the amendment. In a reply given on 24th April to the noble Baroness, Lady Masham, my noble friend Lady Blatch said: the Government believe that … district health authorities should be left free to determine the pattern and level of service in their districts in the light of local needs and circumstances".—[Official Report, 24/4/90; col. 550]. I see no way in which they can accurately determine the local needs unless this amendment is agreed and a proper incontinence adviser and consultant is appointed. There will then be someone in the district health authority with that expert knowledge and he can advise the authority accordingly.

In supporting the need for good incontinence advice I wish to tell your Lordships a little about a man in Essex who is disabled and in a wheelchair. If he had received proper incontinence advice he would not have cost the National Health Service tens of thousands of pounds. Due to the incontinence he developed severe pressure sores which were further aggravated by the incontinence. He was admitted into hospital where he stayed for at least six weeks and was finally given a skin graft. All that could have been avoided if he had received proper incontinence advice at the beginning. The advice would have cost a maximum of £100 but because it was not given he probably cost the National Health Service tens of thousands of pounds.

Lord Ennals

My Lords, there has been support for the amendment from Members on all sides of the House. Some noble Lords have spoken with a great deal of experience about the subject. I do not wish to be unkind to the Minister—I like her very much and she is always helpful. However, I sense that her reply will be the same despite whatever any of us say or how many of us say it. Let us suppose that everyone now sitting in your Lordships' House spoke on the subject and that the debate took another 45 minutes with short speeches such as those made by the noble Lord, Lord Mottistone. I believe that the Minister would still give the same reply. I find that most unsatisfactory not only in Committee—we heard it then—but on Report.

The Government are good on generalisations but poor on specifics. What is legislation for if not sometimes to set priorities? It is not merely to create structures but to say that in our health service certain things must be done. We have tried to say that in relation to children and the elderly, and now we are trying to do so for the incontinent. I do not know what the Minister will say but I guess that it will be, "Don't worry. It is the responsibility of the district health authority; it is not for us nationally to intervene".

I believe that the noble Lord, Lord Swinfen, is right in saying that unless provision is made in the Bill the health authorities will have only guidance to respond to. Is guidance as important as legislation? Are we satisfied that everything can be achieved by guidance? I hope that there will be an answer to the question put by the noble Baroness, Lady Darcy (de Knayth). What is the guidance? Shall we be able to see it and consult about it? It appears to me as though the guidance will be more important than the legislation. Will the guidance be a code of practice and presented in a document? Or is it an easy way of getting out of making provisions in the Bill?

As I have said in respect of a number of other issues, I believe that the provision should be put on the face of the Bill. We are trying to shape legislation in an unsatisfactory way. Noble Lords come to this House with great experience and do not expect that the answers from Ministers will be the same regardless of what is said. So, Minister, dear—dear Minister—we look forward to your response!

Baroness Blatch

My Lords, the noble Lord will forgive me if I am suspicious of his flattery. Of course, I am totally seized of the sensitivity. I hope that he will not, as I believe he did, cast doubts on my sensitivity in the answer that I shall give. Once again the noble Baroness has raised this important issue and has done so in a most sensitive way. It is a difficult issue to talk about in isolation and one that she strongly feels has been neglected under the present system.

As I said in Committee, the Government fully accept the importance of these services for the people in all age groups who are incontinent; the disabled people mentioned by the noble Baroness, some elderly people, and others, including many young people. I am grateful for this further opportunity to provide some reassurance about the future of incontinence services.

As the noble Baroness, Lady Masham, said, we have already issued guidance to health authorities along the lines of the amendment. Health Notice (88) 26, which is in the Library, asked health authorities to consider the provision of a district-wide incontinence service. It further stated that: Good Practice would include a Continence Advisor acting as a focal point, provision for regular and adequate supply of incontinence aids and reasonable access to a urodynamic clinic. Authorities should identify a consultant and physiotherapist to take a special interest in incontinence". We are therefore clear that we wish to see health authorities move in the direction indicated by the amendment.

Where we differ from the noble Baroness is as to how to achieve the objective of high quality, easily accessible incontinence services for people who need them. In general, we do not believe that it is helpful for the department to try to tell health authorities that they must provide a particular pattern or level of service. We do not have access to the detailed informal ion about local needs and competing priorities to enable us to do this.

In incontinence, as in other areas of health care, health authorities must determine what is an appropriate and affordable level of service at any given time. Health authorities know from our guidance that we wish to see incontinence services developed and they will continue to be responsible for this development when the changes in the Bill come into force. The performance of health authorities will continue to be monitored through the review processes. If we find evidence that incontinence services are not developing as we would hope in some places, it will be possible to use the review mechanism to ask health authorities to account for this.

Under the new arrangements the responsibility of health authorities for meeting the health care needs of their resident population will also become much clearer. That is an important point to make. I take the point made by the noble Baroness that we keep saying that matters will improve when this Bill is on the statute book and the system is up and running. With a note of cynicism she said that that is all very well but. in practice, things do not always work out in that way. All noble Lords have described the present system with all its faults. Under the new system, there must be plans and those plans have to be made: public. People will know that those needs are identified. If they are not met, the situation will be much more exposed under the new system than at present. Because that will be much clearer, it will be possible for people such as the noble Baroness to do something about ensuring that that accountability is properly met.

There will be a requirement for health authorities to publish plans setting out their community care policies and the arrangements which they propose for securing community services and community care. That will ensure that health authority plans for the development of incontinence services which, as the noble Baroness said, are crucial to community care can be scrutinised by those who require these services. In those circumstances, health authorities will have every incentive to ensure that incontinence services are adequately resourced.

My noble friend Lord Swinfen told us a very distressing story about a patient who had not received the proper advice. Therefore, thousands of pounds were spent quite unnecessarily and, also, considerable distress was caused to that patient. The hope is that two lessons will be learned from that. First, it is a scandalous waste of public money not to have provided a proper service in the first place. Under the new system one hopes that that situation will be exposed. Secondly, that need was clearly not being met and a new mechanism is provided so that something can be done about it.

I understand what the noble Lord, Lord Ennals, said; namely, that he wants this matter to be written on the face of the Bill. However, if we put on the face of the Bill the creation of a particular post dealing with incontinence, however important that is—and I agree that that is a very important part of the service—there are thousands of aspects of the service for which it would be very tempting to say that there should be a consultant or adviser. I hope that the noble Lord will understand the sincerity of the point which I make; that is, that it must be a management decision. Authorities must be made accountable for services to make sure that they meet them in the way which is most appropriate in those areas.

I question the need for statutory backing. Those are management and service delivery questions and should not be dealt with by legislators. We do not set out how other community based health services should be managed. I believe quite sincerely that those matters can only sensibly be decided at local level based on clear objectives.

9.15 p.m.

Baroness Seear

My Lords, I have not intervened in the debate so far. As I understood it, the noble Baroness said that the circular would advise the districts to consider that something should be done. That is not a very strong indication that the Government want something to be done.

The Minister also said that we do not want to prescribe in legislation how things should be done. That is something with which some of us may agree. Before Third Reading perhaps the noble Baroness will consider the possibility—the House has made it quite clear—that a service of this kind should exist in every district. If we stopped at, shall provide a district-wide incontinence service", and left it for them to decide whether they needed an adviser and consultant, it would make clear that that should be done. It would leave it to the districts to decide how it should be done.

Surely there is a case for arguing that, if it is felt that that particularly service needs to be provided, it is not enough to say that a circular should advise people to consider it. One can do damn all in response to that kind of instruction. If we say, "There must be a district-wide incontinence service: get on with it", we shall get what the House wants. Perhaps the noble Baroness will consider that before Third Reading.

Baroness Blatch

My Lords, I believe the noble Baroness is making the same point made by the noble Lord, Lord Ennals. One very small part of the service has been identified and it is desired to deal with it in detail on the face of the Bill. I suspect that there is not a health authority in the country that does not have to deal with problems of incontinence in the community, and therefore that subject must be addressed by health authorities.

I am grateful for the suggestion that we should look again at the guidance. Clearly, I can take that back to the department and give the noble Baroness an assurance that we shall look carefully at strengthening the guidance. I repeat that Notice (88)26 said that good practice would include an incontinence adviser acting as a focal point and provision for regular and adequate supply of incontinence aids and reasonable access to urodynamics clinics, and that authorities should identify a consultant and physiotherapist to take a special interest in the subject of incontinence. That is very important and we shall look again at strengthening of guidance.

There is no disagreement between the noble Baroness and the Government on the importance of the subject of incontinence. However, I feel strongly on behalf of Government that it would be wrong to limit local decision making in the manner proposed in the amendment. I hope that the assurances I have given will be accepted. We will certainly do all we can to strengthen the guidance and ensure that the accountability links are such that, if there is any shortfall in the service, there will be mechanisms for ensuring that something is done about it.

Baroness Darcy (de Knayth)

My Lords, before the Minister sits down and with the leave of the House, perhaps I may ask her to define guidance. She referred to Health Notice (88)26 as "guidance". I hope that I was suggesting something stronger. As the health notice does not seem to have had much effect I totally withdraw my suggestion regarding guidance. Are there two kinds of "guidance"? There is appealable guidance in law—is there not?—which is very strong. Is that what the health notice is?

Baroness Blatch

My Lords, the House has been very tolerant. With the leave of the House, perhaps I may say that the distinction we made in the past on that issue was the distinction between guidance and guidelines. "Guidance" is by far the stronger of the two. I was referring to guidance. I should also say that with guidance and the combination of the new reforms there is a much better opportunity to, first, identify the needs and publish plans; secondly, ensure that that service is properly delivered and, where it is not delivered, ensure that there is a mechanism to see that something is done about it.

Baroness Masham of Ilton

My Lords, I thank all noble Lords who have spoken. I should like to say that I am still worried. Universities are places that can look after themselves. We are talking of people who cannot look after themselves, the very vulnerable; those people who cannot speak of their problems because they are embarrassed about them. We also have the carers to consider. They give up a tremendous amount of time and need guidance and help from people who are experts in the district.

I had a letter today from the noble Baroness, Lady Hooper. At the end came a small paragraph referring to the subject of incontinence and saying that the Government would still be looking at it. I must ask the House to decide this point. We must do our best. If we lose the amendment we lose it. But at least we have tried our best. I therefore ask your Lordships to divide.

9.25 p.m.

On Question, Whether the said amendment (No. 31) shall be agreed to?

Their Lordships divided: Contents, 21; Not-Contents, 48.

Addington, L. Masham of Ilton, B. [Teller.]
Allenby of Megiddo, V. Peston, L. [Teller.]
Carter, L. Pitt of Hampstead, L.
Clifford of Chudleigh, L. Rea, L.
Cox, B. Robson of Kiddington, B.
Darcy (de Knayth), B. Russell, E.
Elliot of Harwood, B. Seear, B.
Ennals, L. Swinfen, L.
Hatch of Lusby, L. Turner of Camden, B.
Kilbracken, L. Wilson of Rievaulx, L.
Kilmarnock, L.
Arran, E. Henley, L.
Beaverbrook, L. Hesketh, L.
Belstead, L. Hives, L.
Blatch, B. Hooper, B.
Brabazon of Tara, L. Howe, E.
Brougham and Vaux, L. Hunter of Newington, L.
Caithness, E. Lindsay, E.
Camegy of Lour, B. Long, V. [Teller.]
Carnock, L. Lyell, L.
Carr of Hadley, L. McColl of Dulwich, L.
Cavendish of Furness, L. McFarlane of Llandaff, B.
Coleraine, L. Macleod of Borve, B.
Colnbrook, L. Monteagle of Brandon, L.
Craigmyle, L. Morris, L.
Cumberlege, B. Oxfuird, V.
Davidson, V. [Teller.] Reay, L.
Denman, L. Strathclyde, L.
Eccles, V. Strathmore and Kinghorne, E.
Eccles of Moulton, B.
Eden of Winton, L. Trumpington, B.
Elliott of Morpeth, L. Ullswater, V.
Elton, L. Wade of Chorlton, L.
Fraser of Carmyllie, L. Wynford, L.
Glenarthur, L. Young, B.
Grantchester, L.

Resolved in the negative, and amendment disagreed to accordingly.

9.33 p.m.

Lord Ennals moved Amendment No. 32: Page 3, line 38, at end insert: ("(4A) In giving directions with respect to the exercise of function; by District or Special Health Authorities or Family Health Services Authorities, no direction shall act so as to restrict a general practitioner's right to refer patients for investigation, diagnosis or treatment to Health Authorities or NHS trusts acting other than pursuant to NHS contracts.").

The noble Lord said: My Lords, this amendment stands in my name and in the name of the noble Lord, Lord Winstanley. Unfortunately, he is unable to be here and so the burden falls on me to explain the amendment. It concerns an extremely important issue for general practitioners and for their patients. It is an issue quite different from those previously discussed.

There is a fear among doctors and their patients that, far from increasing patient choice, the Bill as it stands may have the opposite effect and reduce patient choice. There is a concern that people will not be able to have the same range of opportunity. Currently, GPs are able to refer their patients to consultants that they think are the most appropriate, having regard to their clinical needs, their convenience, the length of waiting lists and other considerations. This may sometimes include the patient's views on the choice of consultant as the patient may have seen a certain consultant before. It would seem that financial considerations will now enter into these decisions for health authorities and for GP fund holders, who would shop around for the most economic contract with a hospital.

Until now it has been the right of every patient to receive all necessary and appropriate treatment from his general practitioner. It is also the right of every patient to be referred to the consultant most suited to his or her needs. This amendment seeks to write into the Bill the right of every general practitioner to be able to refer the patient to any hospital even if a contract is not held with the hospital. That means it gives to the GP the choice to say, for a whole range of reasons, who is the most appropriate consultant for a patient with a particular condition.

The clause as it stands can only work against patient choice because GPs who are not budget holders—that will be the majority of them—will be restricted, except in exceptional circumstances, to referring their patients to only those hospitals where their district health authorities have placed contracts. That underlines the disparity between the services that budget-holding GPs and non-budget-holding GPS can offer to patients. Much as district health authorities might try to accommodate the wishes of doctors and patients, the size of the budget at DHA level will compel them in the direction of the cheapest option.

The Department of Health document Contracts for Health Services: Operational Principles states: A presumpton of the right to make an extra contractual referral cannot therefore be a guarantee that the DHA would in all cases agree to meet the cost".

I find that unacceptable. I know also that most general practitioners find unacceptable that such a change should be made in the opportunity for choice which they and their patients have had. That power alone is enough justification for the amendment. The plans for change in the hospital service could reduce patient choice by restricting the freedom of the general practitioner to refer patients to the consultants and hospitals which, in the doctor's opinion, provide the most appropriate clinical care.

In cases of emergency if a bed is unavailable in the contracted hospital, or the GP decides that the patient should be sent elsewhere for clinical or social reasons, GPs will be able to refer outside the contract and the cost will be met by the district health authority. But that would need prior clearance between the doctor and the DHA. It is certainly not clear to me how that procedure would work.

Therefore we must preserve the right of the GP to refer a patient to the consultant whom the GP thinks is most appropriate for that patient regardless of a contractual arrangement that may have already been made. I beg to move.

Lord McColl of Dulwich

My Lords, perhaps I may draw attention to the present situation. Psychiatric patients cannot be referred outside their districts now. Therefore, there is no choice right now for psychiatric patients. The present situation for other patients is that most general practitioners will refer a patient to a particular hospital. There are many places in the country where there is only one hospital, anyway.

The noble Lord, Lord Ennals, has spoken repeatedly about the cheapest option. However, he has also advocated evolutionary change based on existing practices. I believe in that, too. He has also supported the principle of the money following the patient, so that if a patient is referred to a particular hospital then money will eventually follow. How can we combine those principles to give us the best answer? In fact, the Bill proposes that general practitioners will continue to refer their patients to the same hospital on an agreement which will last for a year. In other words, the Bill is simply continuing the present practice.

However, in order for us to be able to try out other evolutionary changes, we have these pilot studies where those with a GP budget will be able to refer their patients to any hospital they like. Clearly there would be chaos—as the noble Lord, Lord Ennals, keeps telling us—if every general practitioner in the land was able to refer his patients to whatever hospital he liked and money was to follow the patients. In that case we would need hundreds of thousands of accountants to get it right. Clearly we could not introduce such a radical change. Therefore, we are building upon existing practices—that is, what is actually taking place at present—and we are trying out in certain areas the concept that a general practitioner can refer his patient to any hospital he likes.

I understand the feeling of general practitioners that their freedom will be curtailed. However, let us suppose, for example, that a patient was suffering from a particular type of cancer. Let us confine this to women and suppose that it is a particularly rare form of cancer. The expert for that condition in London would be Professor Bagshawe at the Charing Cross Hospital. General practitioners would want to refer such a patient to that particular person. Let us further suppose that the patient with this particular form of cancer is referred to a hospital which does not have this expertise. Clearly that hospital would refer to the specialist at Charing Cross Hospital. I do not see any problem in that process. Therefore, I do not think that the noble Lord, Lord Ennals, is right when he says that this will be an enormous change. It is really based upon existing practices and, in addition, we have these pilot studies where we shall find out the problems and difficulties of a general practitioner with his own budget referring his patients to any hospital he likes.

Lord Ennals

My Lords, is the noble Lord saying that he is dissatisfied with the present situation in which GPs have the right to refer patients wherever they wish and to inquire about the length of waiting lists and so on, and whether a patient is prepared to go to Birmingham or elsewhere? Does he believe that the current situation is so unsatisfactory that the present rights of GPs to do this should now be taken from them and should be restricted?

Lord McColl of Dulwich

My Lords, the current situation is entirely unsatisfactory because the GPs do not refer their patients to hospitals where the waiting lists are shorter. One of the strange facts in the National Health Service is that general practitioners will not refer their patients to a hospital 20 miles away where the waiting list is shorter. I do not blame them. There are many reasons why they do not do so. Tradition is one of them. They may say "We have always sent our patients to Hospital X and we shall continue to do so". They have been very reluctant to consider sending their patients further afield.

General practitioners will say that the patients do not want to travel. It is true that sometimes they are not asked; but sometimes the patients are not prepared to travel because they want their relatives to visit them, even though they may only be in hospital for a few days. However, they go to Paris for the weekend without their relatives—

Lord Ennals

That is patients' choice; that is what it is all about!

Lord McColl of Dulwich


9.45 p.m.

Lord Pitt of Hampstead

My Lords, I was quite interested to hear the remarks made by the noble Lord, Lord McColl. I practised medicine in the National Health Service until 31st March 1985. I practised medicine in Euston. I lived first in Willesden Green and latterly in Hampstead. I used University College Hospital, Middlesex Hospital, the Royal Free Hospital, the Central Middlesex Hospital and St. Mary's Hospital. I used the hospitals with consultants in whom I had confidence. I was not an atypical GP. I am sure that I was a typical GP. A GP sends his patients to the consultants in whom he has confidence. He expects the consultants to treat his patients as he would wish. If they do not, he does not send patients to them again.

That has been the situation until now for every GP. After the Bill is enacted there will be two types of GP, because there will be GPs who are budget holders. If the GP is a budget holder, he will be able to do what I have been doing for all these years with the additional advantage of being able to send the patient to a private hospital. The advantage of being a budget holder is that the patient can be sent anywhere. The GP balances his budget as best he can.

If the GP is not a budget holder, he will have to send the patient to the hospital with whom the DHA has contracts. It is no use the noble Lord, Lord McColl, or anyone else, trying to suggest that that does not restrict the GP. The GP is restricted to the hospitals with which the DHA has contracts.

At our meetings with him, the Minister pointed out that the way in which the contracts will be arranged leaves a large contingency fund which will allow GPs to send patients to places other than those with which the DHA has a contract. I accept that, but the contingency fund will need to be large if GPs are not to be restricted. There is no sense in pretending that in this measure we are not restricting the GP's choice in terms of his patients. The noble Lord says that we are building upon existing practices. I do not agree. While most doctors will send their patients to hospitals which are convenient to the patient—it is usually more that than anything else—there is always the relationship between the consultant and the GP. Consultants build up their practices in that way. The noble Lord is a consultant, and he will have built up his practice in the usual way, which is through the relationship that consultants have with the GPs who trust them.

It is essential that the GP should be free to send his patient not just to the consultant with whom the patient feels happy—that is also important—but to the consultant with whom the GP feels happy. It is that relationship which is being undermined, except, I admit, for the budget holders. Budget holders are not undermined by this measure. However, GPs who are not budget holders are undermined because the DHA will have made contracts with hospitals.

Noble Lords will be aware how Ministers answer when they are asked whether there will ever be an occasion when a patient cannot obtain the drug he requires. The Minister says that that position will never arise, but noble Lords will remember what happened in March when DHAs overran their budgets and had to close wards and so on. When that is charged to the budget holder, the GP, he will be in the same position as the DHAs today. In March he will probably run out of his budget. There will then be the same difficulties unless the Government are prepared to put additional finance into the service.

So far, there is no way that we have been told of in which the finance which is lacking will be put into the service. Up to now we have not been told that the service will no longer be underfunded. Everyone who has studied the National Health Service and its situation knows that the reason why we are in that state is because the service is underfunded. We know how it is underfunded. Every year the Government say that inflation is lower than it really is. They allow for five patients when there are eight. However that is not the only way in which they do it. They accept payment for the staff when the doctors', dentists' or the nurses' review bodies accept it. Then they pay part of it and therefore the health authority has to find the other part.

This combination of not making a full allowance for inflation and not paying the full costs of wage increases has caused people to lose treatment because hospital beds are regularly closed. That is the situation. We have not yet been told that this will cease. It may well do so. I admit that if the Government change their ways then this will work. However so would the present service. With the present service the GP has the right to send his patient to the hospital and consultant of his choice. In the new arrangement he will not have that choice unless he is a budget holder. There is no point in anyone saying in this House or anywhere else that that is not so, because that is the situation.

The amendment merely says that we commit the Government to not putting general practitioners into a position where they cannot send patients to the consultant of their choice. I hope that the Government will accept the amendment. The consequences of doing so would be that the Government must be willing to ensure that the service is properly funded. There is no other solution. There must be proper funding of the service.

As long as we go on pretending that we are funding the service, whereas we are underfunding it, we shall be in the same position as we are today. Whether we create an internal market—because that is what we shall have—what will happen is not the ward closures that we have now, but hospitals that will do well and hospitals that will not do so well. There will be GPs who find themselves in a difficult position because they are unable to organise their budgets, which are not up to scratch. They will be in the same position as the district health authorities are in now.

Basic to all this is a decision which we have not heard from anyone—a decision that the service will be properly funded. Unless it is properly funded it is nice to have cosmetic treatment, but that is all it will be.

Lord Rea

As a fellow general practitioner I too worked for a number of years in Bloomsbury health authority. There is little more that I can add to the remarks of my noble friend. I have enjoyed over approximately 30 years the right to refer my patients to any consultant within reason, and almost without reason, throughout the country. However, I wish to ask the Minister who is to reply how many patients in non-budget holding practices are likely, as the situation is now, to be referred to hospitals outside those which will have contracts. The noble Lord, Lord McColl, said that current practices will be largely embodied in the new contracts that are to be drawn up.

In my case it is perfectly true that the great majority of patients that I and my partners refer go to the three nearest hospitals, two of which are teaching hospitals and one of which is the Whittington Hospital. They are all equally distant from the practice. However, occasionally, we wish to refer patients to hospitals outside that group. I consider that the new contracts will allow us to refer patients to the three hospitals that we now refer them to, but they may restrict us as regards sending patients to other hospitals which are usually specifically requested by a small number of patients because they or their relatives have had previous experience of going to that hospital or they know a doctor at the hospital.

As the noble Lord, Lord McColl, hinted, we may know someone at a hospital outside our normal run of hospitals who is specifically skilled in a particular condition. I believe the noble Lord will find that the number of patients who wish to go to those hospitals outside the normal run of hospitals represents a pretty small proportion of the total number of patients who are referred to hospitals. I believe it would be easy for the Government to accept this amendment. It would allow what the White Paper suggested was the object of the reforms, which is to increase patient choice. This amendment would be useful for the Government because it would make some patients and some GPs feel slightly warmer towards the reforms. I shall be interested to hear what the Government have to say about this.

Baroness Masham of Ilton

My Lords, if a GP cannot send a patient to the consultant of that patient's choice and the patient goes to the consultant and hospital that the district says he must go to, what happens if an operation goes wrong? Can the GP and the patient sue the district health authority?

10 p.m.

Lord Henley

My Lords, it seems rather late at night to have to refute yet again the allegations of underfunding that the noble Lord, Lord Pitt, put to us. However, I have a duty to do so and I shall do so. I shall repeat what 1, my noble friend Lady Hooper and Ministers in the Department of Health have said before, which is that there is no underfunding. We have increased spending in real terms by some 45 per cent, in the 10 years or more that we have been in office.

I accept that, whatever level of funding we arrive at, there will still be allegations of underfunding. However, an increase in spending in real terms of 45 per cent, is a figure we can be proud of. Some 1-5 million more patients are treated in hospital each year than in 1978. There are also more doctors and more nurses. I could go on, but I shall not do so. I totally refute—

Lord Pitt of Hampstead

My Lords, will the Minister give way?

Lord Henley

No, my Lords. I shall not give way. I now wish to return to the amendment moved by the noble Lord, Lord Ennals, some time ago. As my noble friend Lady Hooper said in Committee, the Bill's proposals are designed to assist GPs to obtain the best available services for their patients. Contracts will be particularly helpful in this respect because they will allow resources to move more freely to the hospitals that are most popular with GPs and their patients. At the present time GPs' choices may in practice be restricted if their preferred hospital is unable to take on additional work within the budget allocated to it at the start of the financial year. The new arrangements will therefore bring greater flexibility and choice. Contracts will also give all providers an incentive to improve, and they will specify the standards of care that can be expected.

I know that some GPs continue to express concern that the district health authority contracts will restrict their freedom of referral, and that point was put admirably by the noble Lords, Lord Pitt and Lord Rea. Such fears are groundless. We have made it absolutely clear that the districts must consult their local GPs closely on contract placements with the object of securing the referral patterns which local GPs wish to see put in place. I hope that that deals with the point made by the noble Lord, Lord Rea. The regions will be responsible for ensuring that the districts achieve that objective and that any differences between the districts and GPs are resolved. GPs will therefore have a much more direct influence over the hospital services available to their patients than now.

There has also been much misunderstanding about the arrangements for referrals to non-contract hospitals. Obviously the need for these will to an extent depend on how successful the district has been in matching the contract placements to GPs' referral patterns. In any event, districts will maintain contingency reserves to enable GPs to refer patients to non-contract hospitals when they judge it necessary to do so, whether on clinical, social or other grounds. We have made it clear that the arrangements for administering the contingency reserve must be simple, quick, non-bureaucratic, and designed in discussion with local GPs. In non-urgent cases GPs will be encouraged to consult their district health authority if in doubt—but they will not be obliged to do this.

Contracts for Health Services: Operating Contracts states that: Districts will not challenge the GP's choice of provider unless it can be shown that the proposed referral is wholly unjustified on clinical grounds or where an alternative referral would be equally efficacious for the patient, taking into account the patient's wishes.

Lord Ennals

My Lords, who decides? Is it the health authority or the GP who decides what is in the best interests of the patient?

Lord Henley

My Lords, I repeat that the district will not challenge the GP's choice unless it can be proven that the proposed referral by the GP was not wholly justified. It is a matter of proving that the GP has not chosen correctly.

In emergencies GPs will always be able to refer to non-contract hospitals in the confidence that the cost will be met.

The noble Baroness, Lady Masham, asked about the legal liability—the noble Baroness will correct me if I am wrong—if the patient suffered some injury in that hospital as a result of an operation and the hospital was one with which there was a contract.

Perhaps the noble Baroness could repeat her question.

Baroness Masham of Ilton

My Lords, the question was, if the GP has to send the patient to a hospital which is not the hospital of his choice or of the patient's choice but is the choice of the district and something goes wrong, have the GP and the patient i the right to sue the district for making the wrong decision?

Lord Henley

My Lords, I think that the legal liability in that case would rest with the person who had committed the tort, in other words the doctor or with the health authority which is responsible for that hospital. However, that is a legal point and I had better come back to the noble Baroness on that matter.

I believe that a major benefit of the new contractual system will be improved co-operation and better understanding between the districts and GPs. I believe that there is a real and exciting prospect of achieving a new partnership between the districts and GPs for the benefit of patients. Many health service managers share that view. However, that partnership will not be achieved if GPs are encouraged by this amendment to see contracts as something they can ignore rather than as a means of securing the services they think best for their patients.

Lord Ennals

My Lords, I am grateful to the noble Lord, Lord Henley, for his reply. The case has been powerfully made. I made it only in a modest way. It was greatly strengthened by two general practitioners who know far more about the matter than I do. And it has been overwhelmingly supported in the country by GPs through their national representatives. For good reasons or bad, depending on which way you look at the matter, patients seem to agree with the general practitioners. So the Government find themselves unable to persuade most people that they are trying to achieve what they say they wish to achieve.

As my noble friend Lord Rea said, the amendment is directly in line with what the Government claim to be their objective; namely, to widen patient choice. Yet everything that the Minister said would limit, not widen, patient choice. He said that choice would be there and that GPs could do what they wanted unless the district health authority sought to prove that their action was unjustified. I do not know how a district health authority will prove that a GP's judgment is wrong. A GP is far more likely to know what is in the best interests of his patients than some bureaucrat in the district health authority.

Lord Henley

My Lords, perhaps I may intervene briefly because I should have dealt with that point more fully. It will be a matter for the independent clinicians at the regional health authority if there is a dispute.

Lord Ennals

My Lords, that will mean more staff with more independent inquiries, challenges and questions from GPs about their rights. Why not allow them to have the rights that they now have? Why are we determined to go down a route to restrict the rights of general practitioners?

Lord McColl of Dulwich

My Lords, I think that I can answer the noble Lord, Lord Ennals. Let us suppose that a general practitioner in Southend insists on sending his patients to the London Hospital for an ingrowing toenail. That would be deemed an extravagant use of resources when surgeons in Southend are perfectly able to treat the condition. It is an extreme example, but it is valid.

Let me take a much more common condition such as a hernia in the groin. Why should general practitioners in Southend send their patients up to London when the surgeons in Southend are perfectly adequate and extremely good surgeons? That is the kind of thing that we are trying to avoid.

Perhaps I may give another example. When patients are sent to me from Greece for treatment for common conditions, I try to persuade them that there arc: many able surgeons in Greece who could perform the operation there, saving the patient a great deal of money.

Lord Ennals

My Lords, most doctors would say that it was a matter of their clinical judgment. Since the health service was created in 1948, great emphasis has been laid on the clinical judgment of doctors as to what is in the best interests of their patients. A new system is being imposed here in which other people decide what is in the best interests of patients. Inquiries will take place, people will hear evidence and presumably litigation will follow as to whether the health authority or the general practitioner is right. That is grossly unsatisfactory. The Minister pretends that that is broadening choice. Of course it is not; it is limiting choice for reasons which the noble Lord, Lord McColl, and the Minister must think satisfactory.

I am unimpressed by any of the arguments that I have heard against the case. I realise that the Minister was provoked by my noble friend. I agree with my noble friend Lord Pitt about underfunding. I did not mention underfunding when I moved the amendment. The amendment was not related to underfunding, but I certainly understand my noble friend's concerns as he suffers from underfunding. It is not a question of whether more money is provided every year. The Minister must know that in all the 45 years—or however many years it is—since the National Health Service came into existence, governments every year have provided more money than the previous year. Sometimes they provide little more than the previous year. As regards underfunding, the question is whether the National Health Service is able to do its job on the amount that is made available. We know that in relation to other countries, this country makes available a much smaller percentage of the national gross product.

I did not wish to enter this argument but if the Minister comes up with those figures I shall respond to him. I cannot agree with anyone who says that the National Health Service is not underfunded. They may be doctors, nurses, those on district health authorities or regional health authorities. I am replying to the Minister's response to the debate. It is my amendment. I really must do so. I beg leave to withdraw the amendment.

Noble Lords: No, Divide!

Lord Ennals

My Lords, I am being encouraged to divide, but I shall not do so. I shall withdraw the amendment. I know that I shall lose a Division. Everyone knows how we stand on this. I totally disagree with the Government. I shall beg leave to withdraw the amendment because I know that a Division is pointless at this stage.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Kilmarnock moved Amendment No. 33: Page 3, line 49, at end insert: ("or; (c) the condition of the individual is such that he requires open access to genito-urinary medicine; drug dependency units and family planning services.").

The noble Lord said: My Lords, after that rather dramatic debate, I wish to draw your Lordships' attention to an important question of public health. Your Lordships will have to be patient with me for perhaps four minutes.

In its current form, the Bill recognises and makes provision for only three broad types of situation whereby a health authority will provide goods and services for the benefit of the individual. Those are, first, where it is within the primary function of the authority—that is, the individual is a resident of that authority; secondly, where there is an appropriate NHS contract with another authority; and, thirdly, where the needs are such that the urgency of care required by the individual precludes the possibility of negotiating a contract first.

Omitted from those contractual arrangements is a category of services where there is not necessarily urgent individual need but where encouraging early contact with the service is in the interests of wider public health. For this group the open access or self-referral services include in particular the clinics for genito-urinary medicine and sexually transmitted diseases, drug dependency and family planning.

In each case the open access nature of the service has developed for very good reasons. Widespread provision of open access—confidential, self-referral clinics for sexually transmitted diseases—has been the cornerstone of public health control since the 1916 Veneral Diseases Regulations. It is only by encouraging individuals to seek treatment on their earliest suspicions that they may have contracted an infection that we can prevent such diseases as gonorrhoea, syphilis and herpes from being passed on to subsequent partners.

The epidemics of viral illnesses such as hepatitis, HIV and AIDS are not at present so amenable to treatment. However, the clinics for genito-urinary medicine and drug dependency, while attracting self-referral on the basis of personal need, allow also the high risk users to be brought into contact with the health promotion and disease prevention services.

One to one health education sessions and counselling, and provision of material such as condoms and clean needles, are the main strategies for containment of epidemics of HIV and hepatitis B. The prime consideration contributing to the success or otherwise of the strategy are, first, convenience of access to the clinics and, second, confidentiality. They are of course linked. Many clients might delay their contact with services if it would mean explaining time off work to an employer. However, unrestricted, open access services allow even commuters to attend clinics in working hours close to the place of work. Similarly the opportunity to self-refer to distant sites removes the potential barrier of embarrassment at the possibility of being recognised while attending a local clinic. The desire for anonymity extends to confidentiality of information. Many clients, at least initially, are unwilling to allow information about their condition to get back even to their family practitioner. Rightly or wrongly, they often assume that that is less likely to happen if their contact is with services outside their home locality.

The third main self-referral service is family planning. That differs slightly from those that I have already mentioned, although it has many similarities. Once again the possibility of being able to preserve anonymity by contacting services distant from the home locality is an important factor in increasing uptake, particularly by the young.

It should be clear that, if the Bill in any way reduces the access to clinics or threatens patient confidentiality, it will have an adverse effect on public health as well as on the personal health of the users. Unfortunately, as currently worded, the Bill threatens both those aspects of service. First, it does not make clear that current open access services should continue to see patients for whom there is no contract provision in their district of residence. Although a statute exists for genito-urinary clinics in the sexually transmitted disease regulations, which require that all patients presenting must be seen, that must be confirmed by the present Bill if there is to be no conflict or confusion in the new environment. As regards drug dependency and family planning services, there are not even any separate statutes to provide a safety net under the loophole in the Bill.

While representing a free market more than most, self-referral services do not lend themselves well to the contracting process. Clients will not be respecters of contracts and will continue to present at their clinic of choice, whatever the contractual arrangements made by their purchasing district of residence. At present district residents represent only 15 to 20 per cent, of users of the large inner-city clinics, the remainder coming from a wide catchment area. Thus much of the cost of recovery of the clinics would depend on retrospective billing on a cost per case basis. With little money coming in up front to run the service, authorities or provider units may opt to abandon such troublesome resources, thereby reducing the access of even their own residents.

The best way round the problem, as suggested in the first of the group of amendments, is to support those services to which I have referred by block funding for open access, thus ensuring that money is available in advance to maintain the service. Such contracts could either be held directly with the region or with local district authorities. They would be provided with funding above capitation to allow for cross-boundary flows.

The block contracting system would also reduce concerns about confidentiality. If retrospective billing or even cost and volume contracts were necessary for cost recovery after self-referral, they would require provision of a data set about patients receiving treatment to be sent to districts of residence. Many patients would regard that as a breach of confidentiality. With block contracts, such data transfer would not be necessary.

It is apparent that the Department of Health recognises the problem that self-referral services pose for the new contracting process. As we all know, several working papers followed the White Paper Working for Patients. In Contracts for Health Services: Operating Contracts it is recognised that different arrangements need to be made for such services. The need to allow patients to continue to self-refer is stressed. For genito-urinary services in particular, the confidentiality issue is recognised as being particularly important.

I wish to quote from the working paper on self-referral services. Paragraph 4.24 states: Slightly different arrangements are needed for self-referral services because there is no-one between the patient and the provider with whom the DHA can discuss contract placements. The essential objective here is to guarantee choice for patients, particularly where services are provided on a walk-in basis. However, no single model for contractual funding of self-referral services is likely to suffice, because of local factors such as the use of services by commuters and tourists. RHAs will be expected to ensure that relevant units are funded in a way that allows patients to self-refer".

I shall repeat that sentence. RHAs will be expected to ensure that relevant units are funded in a way that allows patients to self-refer".

However, there is no guarantee of that in the Bill.

At Paragraph 4.25 it is recognised that for genito-urinary medicine, confidentiality is particularly important. That point is addressed in the second of these two amendments. The paper goes on to say: Where this is the case the need to preserve confidentiality may require districts to accept responsibility on the basis of anonymised or aggregate data. The A and E model may well prove suitable for other common self-referral services".

Those problems are recognised and half addressed in this working paper, which followed the White Paper. It seems a pity that the Bill does not pursue and give effect to those important insights by the authors of the White Paper.

Therefore, in my view and certainly in the view of all the professionals concerned, there is an important lacuna in public health legislation which these amendments seek to remedy. I revert to my starting point. These are public health issues of great importance and it would be less than responsible of the Government to leave them in this limbo. I beg to move.

Baroness Cox

My Lords, the noble Lord has made the case so comprehensively that I shall spend only a few moments highlighting my reasons for supporting these amendments by reinforcing the principles which underpin them. They are the key principles of the possibility of self referrals, confidentiality and ease of access.

In areas of genito-urinary medicine, particularly those relating to sexually transmitted diseases, drug dependency and family planning, there may be many understandable reasons for people wishing to attend the facilities outside their own locality, where they have no personal contracts and are assured of anonymity and confidentiality.

As the noble Lord, Lord Kilmarnock, indicated, at present in large inner city clinics about 80 per cent, of those who attend them come from areas outside the immediate catchment area of the clinics. Unless there are provisions such as those stipulated in the amendments, it may be difficult to ensure continuation of funding for those special facilities and the implications in terms of both individual and public health could be very serious indeed.

Lord Rea

My Lords, as a GP, I am happy to support this amendment. I know that a number of my patients suffering from such conditions would be embarrassed to visit me or my partner as a general practitioner. They would rather go directly, as the noble Baroness said, perhaps to a facility outside the immediate neighbourhood, although a number will use the facilities within their own neighbourhood without having been referred by their local GP.

I suspect that the noble Lord will say that a provision in the Bill covers those eventualities. He will say that the paragraph previously mentioned can be construed as including those services. However, I do not believe that that is sufficient and, as on several other amendments which have already been discussed, the words of the amendment should be written into the Bill.

Lord Hunter of Newington

My Lords, I support these amendments as probing amendments in the confident hope that the Minister can satisfy the anxieties expressed.

Baroness Masham of Ilton

My Lords, I too support this amendment. I should like to mention the difficulties of STD clinics. It is not just a question of the patients who go there but is also a question of the follow-up of contracts of infected people, counselling and the work which must be very confidentially carried out. How will that be done? Is it to be done by numbers or initials if the billing is to go to the districts? Perhaps patients will not want their districts to know about attendance at clinics. That is why it is important that we consider the confidentiality aspect.

Lord Henley

My Lords, I hope that I can answer the arguments on the amendment briefly. I thank the noble Lord, Lord Kilmarnock, for reading out most of paragraphs 4.24 and 4.25 of Operating Contracts. That saves me doing much the same.

The Government fully accept the importance of open access to services like genito-urinary medicine, drug dependency and family planning services. We also recognise the particular need for confidentiality in such cases. However, there is no need to include specific provisions in the Bill.

Guidance on contractual funding has already stressed the need for health authorities to give particular consideration to services which patients use on a self-referral basis. That is not because there is a risk of such services being overlooked. As has been stressed many times, district health authorities will have a duty to ensure that their residents have access to a comprehensive range of services. Nor is it any less appropriate to fund genito-urinary clinics or other self-referral units through contracts. As with other services their patients can only benefit from the specification of quality in contracts and a closer link between workload and resources.

It is therefore simply a matter of ensuring that the contractual arrangements for self-referral services secure open access and confidentiality. The Government have taken a rather different approach to this from that proposed in the amendment. In the case of genito-urinary medicine, Contracts for Health Services: Operating Contracts made it clear that, unless alternative arrangements are agreed with RHAs, DHAs, will be expected to provide funding in the same way as for accident and emergency services; that is, by placing contracts which cover all patients who present themselves for the service regardless of district of residence. The guidance has also suggested that this may be an appropriate model for other self-referral services since it avoids the need for a contract or exchange of information with the patient's own DHA. However, different considerations may apply to different services in different districts and we believe it is important to allow proper scope for local decision-making. Generally, therefore, we expect DHAs to decide themselves the most appropriate arrangements for funding self-referral services used by their residents. In view of the particular importance of these services, however, Operating Contracts places a specific responsibility on the regions for ensuring that satisfactory arrangements for both confidentiality and access are made.

I hope the House will accept that the Government have taken adequate steps to ensure that open access and confidentiality are secured in these cases. I hope that they will also accept that our approach, which aims to be flexible and not over prescriptive, is preferable to the proposal for regional contracts contained in the amendment. I trust therefore that the noble Lord will feel able to withdraw the amendment.

Lord Kilmarnock

My Lords, I feel a little less grateful to the Minister than I frequently do for his replies, which are always lucid and often helpful. First, it must be recognised that the genito-urinary clinics play a very important role in the reduction of venereal disease and particulary in the relatively successful containment of the AIDS HIV epidemic in this country which has commanded admiration from many countries abroad. Anything which militates against the continuance and the confidentiality of the service in terms of that epidemic would be disastrous. I hope that the Government will take that point on board.

Secondly, the Minister said that self-referral services should be treated by districts on the same basis as accident and emergency services. However, there is a considerable difference. In an accident or emergency one can in most cases eventually trace the point of origin of the patient. When the patient regains consciousness one can find out where he came from and a costing and billing system can follow on. That is not the case where there are anonymous self-referrals which are so important in the containment of disease.

As I said at the beginning of my remarks when introducing the amendment, this is a crucial public health issue. Therefore, I am slightly less than satisfied with what the noble Lord said, because, if the DHA for some reason or other, cannot afford to keep these clinics going, then it is up to the RHA, and that is what is said in this working paper. But we do not have anything more than that. We simply have the statement that RHAs will be expected to ensure that relevant units are funded in a way that allows patients to self-refer.

I shall not press this amendment at this time of night, but I may want to come back at a later stage. But can the noble Lord tell me that there will be some direction or guidance—we have had a lot of guidance this evening—to RHAs making it clear that they will be expected to keep up this absolutely vital service, if it shows signs of faltering, in the interests of public health. That would go some way to reassuring those of us who are worried about this matter. If the noble Lord cannot give me an assurance of that sort. I shall have to read the report of what he says and possibly come back at a later stage. But I want to stress the crucial importance of this matter for the maintenance of public health in this country. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

10.30 p.m.

Lord Ennals moved Amendment No. 35: After Clause 3, insert the following new clause— ("Community Health Councils Authority .—(1) The Secretary of State shall by regulation set up an independent establishing authority for Community Health Councils in England and Wales, whose duty will be to represent the public's interests in the health service, and to provide resources to manage, monitor and assist Community Health Councils in the performance of their functions. The Secretary of State shall by regulation transfer the existing responsibilities of Regional Health Authorities with respect to Community Health Councils to the new independent establishing authority, and provide for the expenses of that body. (2) The Secretary of State shall by regulation provide Community Health Councils with the power to—

  1. (a) nominate one representative in each district to attend meetings of the relevant District Health Authority as an observer;
  2. (b) nominate one representative to attend meetings of each NHS Trust Board within the relevant district as an observer, if such Trusts exist; and
  3. 1612
  4. (c) nominate one representative between them in each region to attend meetings of the relevant Regional Health Authority as an observer.
(3) The Secretary of State shall by regulation extend the existing rights of Community Health Councils with regard to entering and inspecting premises controlled by a relevant district health authority, to include all private hospitals and nursing homes within the relevant district with which any health authority has entered into a contract to treat patients.").

The noble Lord said: My Lords, there is a temptation at bedtime—this used to be thought of as bedtime—to try to reduce the presentation and not to deal seriously with issues. We are now coming onto the role of community health councils. We have not had at Committee stage any debate on the role of community health councils and, although I shall try to be brief, their case has to be set out.

The community health councils were established in 1974 with the clear purpose of being a community watchdog and, on the whole, they have done a very good job. It is our responsibility to see that we make adjustments to their role as we are making adjustments to the health service's structure. So I beg to move Amendment No. 35, standing in my name, which seeks in summary to improve the involvement of CHCs as user representatives in the health service by, first, setting up an independent establishing body for CHCs; secondly, allowing CHCs to take part in regional health authority and NHS trust meetings, as well as DHA meetings; and, thirdly, allowing CHCs to inspect private hospitals where NHS patients are treated.

Virtually all aspects of this Bill impinge in some way or other on the work of community health councils. Some of the key effects are the creation of a market system which may lead to more complex, short-term and unstable relationships between hospitals and health authorities which will require closer monitoring, partly because these arrangements are new and we must see that they work properly if they are to be established.

NHS trusts need hold only one public meeting a year and thus community health councils are effectively excluded from their decision-making process. There was a Department of Health document reported in the Guardian, I hope correctly, on 17th April 1990, which clearly states that trusts will not need to consult CHCs about service changes in the same way as DHAs at present do. I hope that that is not true and that we shall hear an answer to it. More use will be made, inevitably, of the private sector as health authorities contract out services to private hospitals and nursing homes.

There was also a Department of Health report in November 1989 which stated that whether or not CHCs can inspect private hospitals in such cases will depend on the contract that the DHA negotiates and that there will be no automatic right to inspect. This would be deliberately to downgrade CHCs, and the purpose of this amendment is to set out clearly the role of CHCs in the future.

Subsection (1) of the amendment sets up an independent national establishing body for CHCs and aims to allow the development of a clearer and more independent voice to express the anxieties of users at national level. That is essential. In all the debates about membership of authorities, no assurances have been given about the extent to which any of them will be able to represent the interests of users.

Secondly, it seeks to ensure that CHCs generally have a clearer and more consistent set of policies and priorities and a stronger sense of direction. Thirdly, it seeks to ensure that the activities, the level of resources and the staff of CHCs are more consistently and equitably spread across the regions. Fourthly, it seeks to provide better and more professional support and training for CHC members and staff across the country in order to allow a clearer relationship between CHCs and RHAs in order that users' representatives can express their views to RHAs without at the same time being dependent upon them for resources. That is a very important point. It is the whole argument behind the setting up of a national establishing body. Community health councils should not be beholden to those who fund them.

Subsection (2) will enable CHCs to attend both RHA and NHS trust meetings as well as those of DHAs. It aims to give user representatives a say in important regional meetings which shape the general strategy of health policy and co-ordinate health services and which will have a role in regulating the market. It gives to CHCs a say in trusts. Otherwise the trust boards may be able to develop or reduce services. especially non-designated services, according to contracts with the private sector and other DHAs without reference to local people. This may in turn affect what services are available in the future for local residents. The CHC observer seat—I emphasise "observer seat"—on the board would help to ensure that patients' views are taken into account.

Finally, subsection (3) gives to CHCs the right to enter and inspect private hospitals and nursing homes which are under contract to treat NHS patients I would not have said that if it were private hospitals which were not treating or under contract to treat NHS patients. It aims to ensure that as more and more patients are treated under contract in private hospitals, if that be the fact, they enjoy the same rights and level of representation as patients in NHS hospitals. It aims to ensure that experienced lay representatives are able to compare standards of care in private and NHS hospitals and ensure that those are adequate. It aims to ensure that the terms of DHA contracts with private hospitals do not mean that patients are discharged too quickly or that continuity of care with the NHS is impaired.

The amendment has been drawn up in consultation with the community health councils which take their responsibilities very seriously indeed. I hope that the House will give serious consideration to the future role of community health councils as we move into a differently structured NHS. I beg to move.

Baroness Blatch

My Lords, the first paragraph of the amendment puts on the Secretary of State the duty of setting up an authority to establish and fund community health councils. The National Health Service Act 1977 does much the same in Section 20 and the Secretary of State in the Community Health Councils Regulations 1985 delegates that duty to regional health authorities. Wherein therefore lies the difference between the RHA and the new body that the noble Lord seeks? It must be in the description of the new body as "independent". But the amendment does not seek to change the 1977 Act and leaves the Secretary of State responsible for setting up the new body, as he is for RHAs now.

The body that the noble Lord proposes will therefore be only as independent as regional health authorities are now. They already do what the amendment wants the new body to do. The second subsection of the amendment is looking to achieve for community health councils three legal rights which the Government agree should remain denied to them. Community health councils already have the right by agreement to send a representative to district health authority meetings as an observer. The amendment seeks to make that right statutory. But what is the purpose when the arrangement works well without statute? Is it really necessary to bring the law into areas of life which work adequately without it?

The second subsection would also give CHCs a statutory right to send observers to meetings of both National Health Service trusts and regional health authorities. But the relationship of the CHC has always been to its DHA and each DHA district has its own CHC. That relationship will be enhanced when district health authorities become purchasers rather than providers of health services as the Government lay great emphasis on DHAs seeking the views of all consumer groups on services provided. The local population's concern about services which regional health authorities or NHSTs provide will be passed to their DHA which contracted for the services. I see no need for a statutory relationship between the CHC and any body other than its DHA. I can assure noble Lords that community health councils will have visiting rights in National Health Service trusts.

The last subsection of the amendment would set in law arrangements which work perfectly well without. Most community health councils will tell you that an important part of their work is the right to inspect premises controlled by the district health authority. That right is enshrined in regulations as part of the philosophy of relating the CHC to its own DHA. Many CHCs, aware of the need for good relations with other providers of health services to NHS patients, have made arrangements with the owners or managers of private hospitals and nursing homes which take in NHS patients. They allow CHCs to enter and inspect much the same as DHAs do by statute. Those arrangements work without the law intervening. What would be the point of statutory provision? Laws which are clearly unnecessary have no place in the statute book. I urge noble Lords to resist them.

Lord Ennals

My Lords, I thank the Minister. Can she say what consultation the department and Ministers have had with community health councils and their national organisation before that reply was given? I shall speak long enough for an answer to be given. I do not believe that it would be right for the Government to give an answer on a major amendment like this without consulting the community health councils. What is their role? If it transpires that the Government have not consulted the councils about that reply then I believe, as I have said, that there is some attempt to denigrate, lower the status and undermine the role of the councils at a time when I believe that that role needs to be enhanced.

The Minister referred to the three subsections. I thought I had made it clear why I and the community health councils think that it is important that they should not be dependent on the regional health authorities. I recognise that that is now the case. There is something very unsatisfactory about being dependent on a regional health authority which is providing the resources for their work. I said that there should be allowed a clearer relationship between community health councils and regional health authorities in order that representatives can express their views to the regional health authorities without at the same time being dependent on them for resources.

That is a very good reason for change and for some independence. If such community health councils are not to be independent then who is? They are the watchdogs of the community. If we say that they must be dependent on authorities that makes for a very difficult situation. It has always been the case that they will be dependent financially. They have been financially dependent since they were established in 1974.

The Minister also referred to the second subsection of the amendment which enables CHCs to attend RHA and NHS trust meetings as well as those of DHAs. She said, "Why change what is working well?" The reason is partly because there have never been NHS trusts before. If we are to create such trusts, as she well knows—because we have debated the matter often enough—one of the principles of an NHS trust is that it is independent of the health authority. As it is independent of the health authority and as the Government place great emphasis on the importance of these independent trusts, then as they have in a sense opted out of the district health authority—not the National Health Service; and I shall not go into that argument—and opted out of responsibility to the district health authority, we need to opt in the role of community health councils as the community watchdog.

I did not, perhaps, fully understand all that the Minister said in relation to subsection (3), but that was my fault and not hers. That subsection concerns the right to enter and inspect private hospitals and nursing homes which are under contract to treat NHS patients. I know that they have rights, but I do not know whether such rights cover all private hospitals where NHS patients are being treated. If I can get reassurance on that aspect, perhaps we may look again at that subsection. However, none of the Minister's answers about it satisfied me. But, since I have raised a number of important issues, it is only fair to give her the opportunity to reply. Moreover, even if no one else reads the report of this debate, it is also only fair to give the community health councils the opportunity to study what was said from both sides of the House. I am sure that the Government would want their case to be fairly stated. That is why I give the Minister another opportunity to respond.

10.45 p.m.

Baroness Blatch

My Lords, the noble Lord has made a number of accusations; indeed, he has certainly done so during the course of the evening. I think that he referred to the fact that we were denigrating the role of CHCs. I give him an absolute assurance that that is not what we have sought to do. My honourable friend the Parliamentary Under-Secretary made clear only two days ago that the Government have no plans for changing the role of community health councils, let alone denigrating them.

The noble Lord also asked whether we have had consultations with CHCs. The councils have made all the points which he has made to the Government. We have listened to them and the noble Lord has had the benefit of a detailed response. He also quoted back to me the reference that I made of, "Why change the rules when they are working well—and why was it necessary to put it on the statute book?" However, he applied that remark to National Health Service trusts. I made that remark in relation to observer status at district health authority meetings which I understand is working well. The comment I made was: Why do we need statutory provision when the observer status at district health authority level is working well? Regarding National Health Service trusts, I said that the CHCs will continue to have visiting rights when they are up and running. In my view that is important. It means that they will be able to go on to the premises and visit the establishments. I am not sure whether I have a specific answer to the noble Lord's final question. However, if I have not satisfied him in this respect I shall write to him on the matter.

Lord Ennals

My Lords, before the Minister sits down I must say that I did not fully understand the position with regard to visiting rights. I take it that this means that they can go on the premises. However, does that mean that they have observer status at annual meetings? Does it mean that they can visit any premises for which an NHS trust is responsible?

I return now to the point about district health authorities. I was not implying that there was something new in this respect. However, if we are establishing a new pattern, I think that it would be absurd not to include those things which are already happening. With this amendment I was trying to set up a pattern which, of course, includes aspects of the process which are working well; that is, in the relationship between CHCs and DHAs.

In relation to the Minister's first response, I was glad that the Government had considered the representations made by CHCs. Clearly, what I was saying was in line with what CHCs feel. The Government presumably disagree with the representations that have been made by CHCs at district regional and national level. That is serious. The views of CHCs as the consumers' watchdog should not just be taken seriously; some action should follow.

The Government seem to think that they are right about everything and that it is enough to say, "We have heard the views, and we disagree with them". I have heard the Minister's views, and I disagree with them. Again, I am not going to press the amendment to a Division. There is no point at this stage. I have stated my case. I disagree with the answer but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [NHS contracts]:

Baroness Masham of Ilton moved Amendment No. 36 Page 4, line 29, at end insert: ("It shall be the duty of every health service body to ensure that such services include those considered to be regional and supra regional specialties.")

The noble Baroness said: My Lords, this is an important amendment. When the Secretary of State spoke to your Lordships before the Committee stage of the Bill I asked him about the machinery for the transfer of patients from district general hospitals to specialising units beyond regional boundaries and even to regional units within the region. He seemed to think that there might be a few difficulties.

When people are transferred to specialising units, they are generally seriously ill or in need of expert opinion and treatment. There should be no delay. There is a genuine fear that some districts, as has been the problem in the past, sometimes with disastrous results, will try to hold on to a patient. That can be a case of a little knowledge being a dangerous thing.

Some districts can be parochial. Patients often have faith in their local hospital and do not want to go far away. I can assure your Lordships that if one has a serious condition, it is far better treated by experts who know for what to look and what to expect.

Over the years I have been involved with many people who have been treated in hospitals without having the expert knowledge and equipment needed. Months and often years have been wasted when people have contracted severe problems such as pressure sores and urinary tract infections which could have been avoided.

The amendment covers all types of specialised units. Had the late Lady Lane-Fox been here she would have supported the amendment. There is only one unit which serves former polio patients and others with high respiratory problems. That unit is a lifeline to many people. We have many hospitals with specialised units of which we should be proud. It would be terrible if patients who need such units were not sent for the treatment they need because of local bias.

As president of the Spinal Injuries Association, I shall give its views of why it considers the amendment to be necessary although it covers all types of specialties. The purpose of the amendment is to ensure that every health service body has a contract with the regional and supraregional specialties so that there is the option of referring patients to them should that be required.

The Spinal Injuries Association has a number of worries which lead it to fear that regional and supraregional specialties may not fall into the category of core services in which case DHAs need not have contracts with them. So the amendment is vital to ensure future access to such services.

In Committee the Minister said that specialist units offer the higher quality service that people want, and that DHAs will have to respond to the wishes of patients and GPs by placing contracts with them. We ask the Government to accept the amendment to ensure that all 11 district health authorities have contracts with such units. The amendment does no more than write into legislation a practice that the Government believe will and presumably should be carried out.

A fundamental point is whether spinal units will be considered to be core services. One of the key criteria for core services is that demand must be of a sufficient minimum level to be a cost effective viability. Another is that a service provides timely intervention crucial to determining outcome at a local level. Spinal injury units do not fit into either of these categories. Will the Minister confirm categorically that spinal injury units will be considered to be core services?

A second area of concern is the contracts. There are a number of different ways in which contracts may be drawn up with different implications in each case. There is the block contract or a fee for service contract. Research shows that district health authorities are likely to prefer the fee for service contract, and this is the more likely scenario.

Under this system, the following perverse incentives may arise. District health authorities will be reluctant to refer patients to a specialist unit as the fee per person would be high and there would be an attempt to minimise referrals with particularly high costs. District health authorities would attempt to minimise the stay of a patient in an extensive specialised unit and arrange premature transfer of the patient back to the local hospital. From the point of view of the spinal injury units, the perverse incentive will be to keep patients in the unit as long as possible by concurring with, rather than pushing against delays by the housing and social service agencies providing care after a stay in hospital.

These problems can be resolved, but until we know the future funding arrangements for specialised services, the position is worrying for users of these services. The progress of the Bill also means that it will not be possible to legislate against problems arising. The Spinal Injuries Association has been told that the supra-regional services advisory group is looking at the future of all supra-regional services and the Minister will look at the recommendations.

The recommendations will come too late to do anything to amend the legislation and this is regrettable. This is a serious matter and I hope that the Government will accept the amendment. I beg to move.

Lord Peston

My Lords, perhaps I may return the compliment to the noble Baroness, Lady Masham, who was good enough to support an earlier amendment of mine. She has argued the case totally successfully and I wish to emphasise, how much I support what she had to say.

Lord Henley

My Lords, I explained in Committee that no special legislation is needed to secure the position of regional and supra-regional services. In a legal sense this is simply because district health authorities will have a clear duty to ensure that a comprehensive range of services is available to their residents. This must include services which need to be provided on a regional or supra-regional basis.

I also explained in Committee that there is a further reason for confidence in the future of specialist services. This is that the Bill's provisions will strengthen patient choice and reward units which provide the services that patients want. I have no doubt that specialist units with their high quality services will benefit greatly from this. District health authorities will have to respond to the wishes of patients and GPs by placing contracts with them.

The noble Baroness Lady Masham was concerned that the new funding arrangements for supra-regional services have not yet been finalised. The principle is clear—that there should be a mixture of national and local funding. The precise arrangements are however currently being considered by the supra-regional services advisory group. This is the body, representing both the medical profession and National Health Service management, which advises Ministers on the services which are designated as supra-regional, the units that are to be designated as centres for their provision and the level of funding to be allocated to each. I am sure noble Lords will agree that the advisory group is best placed to consider the issue of future funding. We expect to receive its advice shortly. I am sure that that will not satisfy the noble Baroness, but I can only say that until we have received that report I can go no further on future funding. I think there is some confusion on the part of the noble Baroness as regards core or designated services. Core or designated services are those services for which local access is essential and there is only one possible supplier—that is, a National Health Service trust. Supra-regional services stand apart from this but, as I have explained, our proposals for their funding will give them equal funding. I hope that, with that assurance, the noble Baroness will feel able to withdraw her amendment.

11 p.m.

Baroness Masham of Ilton

My Lords, I thank the Minister for that reply. I think he realises there is concern about this matter because the report has not been made yet. Therefore something needs to be written into the Bill. I can assure the House that I am not going to divide it at this moment. The subject will be taken away and we shall discuss it. It is an enormously important subject. It may come back at what I imagine may be a rather long Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kilmarnock moved Amendment No. 37: Page 4, line 29, at end insert: ("( ) A patient of a health service body shall have the right to treatment within a period of time equal to the average waiting time in a particular speciality (as determined by the Secretary of State) in the best 20 per cent, of District Health Authorities. ( ) If suitable treatment is not received during such period he shall have the right to seek treatment from another health service ("the provider") and in such cases the health service body of origin ("the acquirer") shall have a legal obligation to meet both the costs of treatment and any necessary travelling costs.").

The noble Lord said: My Lords, this amendment is intended to strike an overdue blow for the patient. Despite the rhetoric of the title of the White Paper Working for Patients, there is nothing in the Bill that enhances patients' rights. I am probably less ideologically opposed to the idea of the internal market than most noble Lords on this side of the House. I have accepted the crucial division, which is essential to the Bill, between the purchaser and the provider. However, we should recall—I do constantly—all those fine words about patients' choice to which the noble Lord, Lord Rea, referred on a previous amendment, and about money following the patient. There is no guarantee that it will follow him or her where he or she wants to go within a reasonable time span and there is no guarantee that waiting lists will magically be reduced. On the contrary the evidence of the Government's waiting list initiative is that, when extra money was put in under the current system, waiting lists rose to accommodate unmet need.

The Government will no doubt say that this will no longer happen because hospitals will be able to take as many as they can accommodate and for whom they can secure payment. However, in some parts of the country waiting lists may well increase. My guess is that the overall level of waiting lists in the country will stay fairly static, with significant bulges in some areas and reductions in others. That would not be a satisfactory outcome for all this upheaval, and the simple idea embodied in the amendment of giving the patient a statutory right to treatment within a period of time equal to the average waiting time in the best 20 or perhaps 25 per cent, of district health authorities would, I suggest, have two important results. It would stimulate local purchasers to get the best possible deals for their populations, otherwise the population would fly elsewhere. Thus it would oil the wheels of the market. But, equally important, linking the internal market to a statutory limit on time spent waiting for treatment would bring about a steady improvement in the quality of service available to the patient. Writing the hitherto rhetorical declaration that money will follow the patient if the district health contract fails to deliver the goods within a reasonable time on to the face of the Bill would bring about an important transfer of power in favour of patients. It is high time that we addressed ourselves more directly than we have hitherto in this Bill, which is essentially concerned with reorganisation, to their immediate and pressing needs. I believe that my proposal would go a long way to turning public mistrust and misunderstanding of the Bill into positive enthusiasm for it. I beg to move.

Lord Peston

My Lords, in speaking to the amendment I bitterly regret that we should be discussing it at 11 o'clock at night because the topic of National Health Service waiting times is one of the most interesting and one of the most difficult to account for.

I have never denied that during the period of this Government, resources, measured in the way that they are measured, have increased. Nevertheless one of the simplest measures of performance does not seem to have improved at all. It is a measure of performance which, although simple, is intuitively relevant. If we have a National Health Service the very least it should do is to provide most treatments within a reasonable amount of time. It is not only this Government which can be criticised on that score, but regrettably, they are the Government at the moment and therefore the one which must be criticised. They particularly have to be criticised for it because they also want to claim the credit for anything good that happens.

The amendment seeks to achieve two objectives. One is to raise the question of what is a reasonable waiting time and on that basis, one would hope, generate policies that would do something about the problem. I accept what noble Lords opposite often say; namely, that simply throwing money at it does not necessarily solve the problem, although one cannot solve it without resources. Clearly that is something that needs to be looked into, and, as the noble Lord, Lord Kilmarnock, has said very clearly, the amendment at least provides a baseline for looking at the matter.

The second point is extremely interesting to me as an economist. The rhetoric of the Bill states that this is a Bill which is concerned with patient choice, yet when I scrutinise any part of the Bill I see that it is about limiting patient choice. It is about what you cannot have rather than what you can have. Again, the second part of the amendment at least gives back some rights to the patient in terms of what he or she can legitimately do in order to obtain treatment.

This is an important amendment. It is one which in better circumstances, if your Lordships were more efficient, we should debate at great length. I believe that it is a subject which is worth discussing. At the very least I hope that we can have a response from the noble Baroness that will enlighten us as to the Government's thinking about these matters.

I accept the lateness of the hour and that we cannot go on endlessly, although there are many other aspects of the subject that I should have liked to raise. I shall leave it at that for the moment.

Lord McColl of Dulwich

My Lords, the amendment as it stands has one great defect. If one works it out mathematically the waiting lists will eventually be measured in hours because, of necessity as it is written in the amendment, waiting lists will have to become shorter and shorter. I do not believe that that is what the noble Lords, Lord Peston and Kilmarnock, have in mind.

Leaving that aside, the amendment ignores the important fact that time is a great healer. People are healed on waiting lists. The noble Lord, Lord Ennals, has interrupted and said that they die. That point needs to be clarified. An article appeared in a very reputable newspaper which said just that: that patients are dying on waiting lists. I asked the gentleman who wrote the article if he could give me some evidence. He said that he did not have any evidence; it was more a matter of polemics than of fact. It is very important that we state clearly that if allegations are made that people are dying on waiting lists we want the details. It is very important that we have that information.

Having dealt with that interruption perhaps I may also point out that some patients do not want their operations until next year. They have a choice. They do not all want their operations next week. Returning to the original point, the wording would have to be changed; otherwise it would not make sense in terms of the eventual time.

Lord Peston

My Lords, perhaps I may interrupt the noble Lord to clarify a point. I am asking a question. I must tell the noble Lord, Lord Morris, that the rules of procedure allow me to ask a question. The noble Lord has been jumping up and down for the past two hours, implying that we cannot ask questions. I have consulted the Clerks on this matter and I assure him that I am allowed to ask a question. He may not want me to ask a question. He may feel that it is rather late. I too feel that it is rather late and I wish that the Government would organise the business so that I was not obliged to discuss serious matters of this kind at such a late hour. However, if the noble Lord insists on interrupting me, I shall deal with his point, but I shall waste a great deal more time. I should be most obliged if he would allow me to ask my question. I should also be obliged if he would not interrupt me every time I ask a question.

Does the noble Lord, Lord McColl, accept that I am aware of the mathematics of the question? However, is he not aware that the point of the question is to bring the worst in the direction of the best? I am perfectly aware of the nature of the logical problem. But does he not at least agree with me that the objective, whether or not we achieve it, is worthwhile?

Lord McColl of Dulwich

My Lords, I am not sure whether I am allowed to answer the question.

The Lord Privy Seal (Lord Belstead)

My Lords, by leave.

Lord McColl of Dulwich

My Lords, I entirely agree with what the noble Lord is trying to do. It is just that the mathematics does not make sense.

Baroness Hooper

My Lords, I endorse the intentions behind the amendment of the noble Lord, Lord Kilmarnock. A key aim of the reforms is to improve waiting times by enabling health authorities to place contracts with units where waits are short. The need to attract funding through contracts will in itself encourge all hospitals to become more efficient and to keep their waiting times down, but, in addition, we are looking at best practice, as in other areas, with a view to disseminating good practice.

That meets one of the points raised by the noble Lord, Lord Peston.

However, the amendment creates some difficulties to which my noble friend Lord McColl referred. Furthermore, how would the average waiting time in the best 20 per cent, be determined and by whom? It would have to be based on the level achieved at some time in the past. So, by definition, the worst 80 per cent, can never catch up with the best 20 per cent. Moreover, no allowance is made for the relative urgency of cases within a specialty. Clinical priorities would be distorted. Doctors would be under pressure to treat non-urgent cases at the expense of urgent cases just to keep their health authority from having to pay for treatment elsewhere.

Those are some of the difficulties. The proposal would be costly and awkward to administer and would not be effective in tackling the underlying problems as we seek to tackle them. I hope that, on that basis, the noble Lord will consider withdrawing his amendment.

Lord Kilmarnock

My Lords, we shall see where we all are a year after the implementation of the Bill. We shall see whether waiting lists are much as they are at present, as I suspect they will be.

The point made by the noble Lord, Lord McColl, that waiting lists would mathematically eventually have to be reduced is a witticism which I enjoyed, but it is essentially a reductive and absurd argument. Clearly, waiting lists would not disappear, but they would be reduced because they would be more widely spread.

The noble Baroness cast doubt on the possibility of measuring such things. Perfectly efficient measurements are already made annually, if not by the Government then by voluntary bodies such as the College of Health, so the information is certainly available.

Patients and their organisations still look slightly suspiciously at the Bill and say, "What is there in it for us?". I do not say that there is nothing in it for them, but it is not particularly clear to them. A provision of this kind would have greatly increased their enthusiasm for the Bill. We shall have to wait upon events to see what happens. We may return to these issues at a later stage when we have seen the Bill in operation when it becomes an Act. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.15 p.m.

Lord Morris moved Amendment No. 38: Page 4, line 29, at end insert: ("( ) Notwithstanding this section any person may access local speech therapy services through self-referral or through referral from any appropriate health or local authority representative.").

The noble Lord said: My Lords, at the outset I must apologise profusely to your Lordships for bringing back a matter that was raised by me at Committee. I apologise because I abhor the practice. However, the matter was not raised properly, directly as a result of my own shortcomings. I did not make myself clear. As a result, there was a certain ambiguity in the response.

As noble Lords are aware, under present arrangements the district health authority acts as the provider of services. The district health authority holds the budget for the district and various health services receive their individual budgets directly from the authority. The speech therapy budget is agreed by the district or unit in discussion with the district speech therapist and is then managed by the district speech therapist.

The Bill now provides that the district health authority becomes the purchaser of services and will perform this function by means of contracts with the various units and with individual health services.

I ask my noble friend: will the district health authority be consulting with the speech therapist profession prior to the drafting and engrossing of the contracts? The Government have previously emphasised their commitment to maintaining the principle of open access, most recently at a meeting on 21st May between inter alia the College of Speech Therapists and my right honourable friend the Minister of State for Health. The Minister stated on that occasion that when contracts were introduced they would be established in accordance with current referral patterns. Will my noble friend confirm that that is still Her Majesty's Government's intention?

I suffer from a niggling doubt as to whether legislative expression is absolutely necessary in order to address these fears. It may well be that directions to the district health authority from the Department of Health not to restrict or proscribe the current referral pattern by means of contract would suffice. If that is the case, then I shall be most happy to withdraw my amendment. I beg to move.

Baroness Turner of Camden

My Lords, I support the amendment. As everyone in this House knows, because we have discussed it on numerous occasions, the speech therapy service is extremely important. As perhaps have other noble Lords, I have been approached by the College of Speech Therapists on this question. Speech therapists are a very committed group of people. They are most concerned about the service that they provide and its availability.

At present patients are referred to speech therapy services from a wide range of sources. According to Government figures, referrals which do not come from medical sources constitute 58 per cent, of speech therapists' work. Of the total figure, 9 per cent, are self referrals—namely, patient, guardian or carer directly contacting their local speech therapy department and requesting an appointment. That practice enables easy access for people with communication difficulties. As a group, speech therapists regard that as very important. They believe that the right of direct self referral should be retained irrespective of the organisation of NHS budgetary systems. The existing potential purchasers—that is GPs, consultants, health authorities and local authorities—do not as a group have an acceptable knowledge base from which to evaluate the specialised needs of the communication handicapped population.

Direct self referral enables a clearer identification of levels and type of need and allows subsequent prioritisation by both providers and acquirers of services on the basis of sound clinical evaluation. That is surely the most appropriate and acceptable way to ensure the effective use of limited resources. The system remains cash limited by the number of therapists available and the budgets allocated. It does, however, enable a clear comparison of need and supply of resources.

I am also aware that the College of Speech Therapists has had a meeting with the Minister of State in the other place. The impression that it received is that the Government acknowledge the need for direct access. However, the college remains anxious that, without specific reference in the Bill, there will be no protection of the direct access which is currently available. In those circumstances, the amendment should commend itself to your Lordships. I hope that it will be acceptable to the Government and I support it.

Baroness Masham of Ilton

My Lords, a few weeks ago I was invited to open a splendid new rehabilitation unit at a hospital in Swansea. I saw self-referral speech therapy in action and thought it a good idea. It saves time and the patient does not have to go through a doctor. It worked well and if one can save time one is saving money.

Lord Ennals

My Lords, the principle set out in the amendment tabled by the noble Lord, Lord Morris, applies to other professions allied to medicine. It applies to physiotherapists, in some cases to occupational therapists, and perhaps to chiropodists. Indeed, one could go through the list. It is an important principle and perhaps if we had thought about it we may have tabled an amendment which comprehensively dealt with that whole range of services. I wish to have my name associated with the amendment in view of the contact that I have had with speech therapists and my great respect for their work.

Baroness Hooper

My Lords, I can again assure my noble friend that the Government fully recognise the importance of speech therapy services. Nothing in this; Bill will prevent those who need speech therapy from obtaining it. District health authorities will have a clear duty to ensure that their residents have access to a comprehensive range of services. That will include speech therapy. The only difference will be that in future speech therapy services will be placed on a contractual basis in the same way as all other health care services.

I know that concern has been expressed, and not only in this context, that the introduction of contracts may affect the existing pattern of services. Such concern is unfounded. Any changes will take place gradually in response to the needs and wishes of those who use services. Plans prepared in the first year can and no doubt will be modified on an annual basis.

Your Lordships will recall that the aim is to help authorities obtain the services they consider best for their patients through consultation., the effective placing of contracts and the maintenance of contingency reserves to provide for flexibility outside contracts. Guidance already issued made it absolutely clear that the same approach applies to other health care professionals whose referrals will be covered by contracts. Close co-operation will also be needed with local authorities and other agencies through whom patients obtain access to services. The ability of patients to self-refer, which is essential for a number of services besides speech therapy, must also be secured.

I appreciate the anxieties. I have met representatives of speech therapists, as has my honourable friend. We are well aware of their views. I hope that in the light of the assurances which I have given my noble friend will withdraw his amendment. The fact is that speech therapy services are not at risk from the Bill. Indeed, they can only benefit from it.

Lord Morris

My Lords, I am most grateful to my noble friend. I know that she and her department will look with care at the questions that I asked but which I shall not repeat. I am grateful for her assurances. She has suggested that I might withdraw my amendment as a result of those assurances. All I can say is, you bet! I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 and 40 not moved.]

Lord Carter moved Amendment No. 41: Page 4, line 40, at end insert: ("( ) Except in such circumstances as may be determined by order by the Secretary of State, a health service body shall take all reasonable steps to consult any relevant community health council before entering into an NHS contract.").

The noble Lord said: This amendment ensures that the acquirers of health care consult local community health councils before entering into contracts while making allowances for emergencies where such consultation may not be possible.

As we know, all the Government's proposed reforms rest on the contracting system. Therefore, we feel that it is rather surprising that there is no formal consultation procedure in the Bill regarding the placing of contracts. As we also know, there is no statutory role for the consumer. In passing, one notes that it is a curious marketplace which excludes the ultimate consumer.

We feel that it is crucial that proper consultation is built into the contracting process to ensure that patient choice as envisaged in the White Paper is truly exercised. This amendment is intended to ensure that consumer input is built into the contracting process by ensuring that there is proper consultation with community health councils. I beg to move.

Lord Henley

My Lords, establishing close links with the community they serve will be a key aspect of the DHA's new role. However this does not mean that bodies like CHCs should play a part in the day to day details of contracting.

CHCs are essentially local bodies whose task is to represent the interests of their local population in the health service. Under the new arrangements a CHCs remit will relate to all services purchased by its DHA for that district's resident population, regardless of whether the services are provided by a district managed unit, an NHS trust, or the private sector.

The Government expect that NHS management will take account of the consumers' interest in all its activities, and the views of CHCs should be sought, along with those of other interested parties, on the strategic provision of services which districts are required to commission for their residents, especially taking account of such factors as the accessibility and convenience of services being commissioned by the DHA. This means that CHCs may require information about a district's objectives and be able to express views as DHAs formulate plans to meet priority needs or consider what might be done to meet these needs more economically and effectively. They may also have views to offer on standards and quality.

We agree therefore that CHCs should expect to be consulted along with other interested parties on the strategic provision of services which districts are required to meet in response to their agreed objectives. We do not agree however that CHCs should be involved in the day to day details of contracting. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Carter

My Lords, I thank the Minister for that disappointing but revealing answer. We felt that it was important that there should be a formal procedure built into the Bill. We hope that the Government's expectations regarding the role of community health councils are fulfilled. The answer was disappointing but, at this hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved.]

Lord Peston moved Amendment No. 43: Page 5, line 26, after ("payment") insert ("which may include payment by way of compensation").

The noble Lord said: My Lords, this amendment is to look further at the nature of NHS contracts. When we started our proceedings today I hoped that we should reach this matter at a time when we could really look into it because, as a result of your Lordships' deliberations in Committee and letters which I have received from the noble Baroness, I have learned quite a lot about the nature of the NHS contract as it is emerging.

It is apparent that it is not a contract in the legal sense of the law of contract. I now understand that very clearly indeed. However, we sometimes drift away from that because the noble Baroness, Lady Masham, earlier asked, apropos of the contract, who was legally liable when she quoted what I thought was an extremely interesting case in which, because of the contract, both the patient and the GP agreed that the treatment given was not the best available or the most appropriate but because of the nature of the contract, that was the only treatment allowed to be given.

Similarly the noble Lord, Lord McColl, put his finger on an interesting aspect of the matter when he referred to the GP choosing what he thought was an absurd provision of treatment for ingrowing toenails. The key point is that if the general practitioner's judgment is that that is the right place to go, then under contract in the correct legal sense of what one can claim damages for—the noble Lord, Lord Henley, referred to a tort—that issue will arise.

I hoped that in the course of discussing this amendment we could begin to explore the relationship between contracts as they occur in the proper legal sense and contracts as they occur in the NHS. As I said, even if the noble Baroness or the noble Lord is able to explain, at 11.30 at night I am not sure that I shall be able to follow the arguments. I feel obliged to emphasise, however, that that is the important matter.

Subsection (3) of Clause 4 says, it shall not be regarded for any purpose as giving rise to contractual rights or liabilities".

That is referring to the NHS contract. It immediately comes to a point at which anybody who knows anything about contracts in the real sense would see that if any dispute arises, the matter has to be resolved.

The Bill says that the matter will be referred, "to the Secretary of State for determination".

I am not clear what "determination" means; whether the Secretary of State will take the decision as to who is liable, but not legally liable, and who will then do whatever has to be done. The whole matter seems to be rather messy. I do not say that as a criticism. It is the kind of mess that arises when one attempts to enter new fields and do new things.

The essence of the amendment seeks to focus partly on how the Secretary of State will determine the contract which is alleged to be in default. If he determines it one way or another, will he be able—will he in any sense be obliged—to intervene using funds to compensate one side or the other for default?

It may be that the Government do not know the answer to those questions. It would not surprise me if they did not know the answer because in my view they are technically extremely difficult questions. It may be that we shall only arrive at the answer when we have to deal with the problem. When one enters this field and recognises the nature of the problem in the Bill, as it is recognised in subsection (3), one is under a further obligation to indicate that one has started to consider these matters and has the beginnings of a solution to them.

Again, I make the point that there is a great deal more in my brief that I should like to explore. I am not concerned about imposing pain upon the Government at this hour, but I am concerned about imposing pain upon myself, so at this point I shall stop.

11.30 p.m.

Lord Henley

My Lords, I am grateful that the noble Lord does not wish to engage in a long discussion on contract law. It is a long time since I took my Bar exams and my memory of contract law is somewhat hazy. Can I stress again that, as the noble Lord knows well, NHS contracts are not the same as contracts in contract law.

I should expect disputes over NHS contracts to require determination by the Secretary of State, or an appointed person, only rarely. It is in the interests of all parties to work together for the benefit of patients. If there are disputes, I should expect RHAs to act as conciliators. Good management should mean that recourse to the procedures laid down in this clause is not often necessary.

However, if it does become necessary for the Secretary of State or his appointee to resolve a dispute, we have ensured that there are sufficient powers in the Bill for a fair determination to be reached which takes into account all relevant circumstances. The intention is not that dispute resolution should be a legalistic process; rather it should seek to promote the basic objective of the Secretary of State, which is better health for the people of this country. I must confess that I do not at present see how any NHS body may need to be compensated over and above the terms of any NHS contract. But I hope that I have sufficiently reassured the noble Lord and that he will feel able to withdraw his amendment.

The noble Lord referred to the noble Baroness, Lady Masham. My response was quite simply that the person who committed the tort would be liable, and I confirm that that is the case. If someone suffers accident or injury as a result of an operation or whatever, it is a matter for the courts to decide on compensation if a wrong has been committed.

Lord Peston

My Lords, I thank the noble Lord for his answer. I wish that we had time to pursue the matter further still; in particular, the point arising from the question of the noble Baroness, Lady Masham. The real point is that there is, as it were, tort and tort. If an operation goes wrong, one can see the nature of the problem arising with respect to the operation. But if a person wished to argue that he did not want the operation done in that hospital in the first place, he would be seeking damages from the district that produced the contract. That seems to be something that requires more thinking about.

I am not pressing the noble Lord. I think he said that he took his Bar examinations. I only went to a single year's course on law. I think I passed at the time, but I cannot remember. But I remember that the law of contract is incredibly difficult. We are probably a little naive in assuming that these contracts that are not contracts will work out as easily as that. We have set up here a basis for continuous disputes, continuous arguments and a lot of work for the Secretary of State.

I have made my points in such a way that, when in future years people ask why we got into such a mess, I can at least say that I tried not to get into this mess in the first place. So, having thanked the noble Lord for his helpful attempt to clarify some aspects of the matter, for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ennals moved Amendment No. 44: Page 6, line 4, at end insert— ("(10) No National Health Service contract shall be valid unless it requires the acquirer to provide appropriate hospital transport to, or to reimburse the travel costs incurred by, such categories of patients as the Secretary of State may by regulations prescribe. (11) Before bringing forward regulations under subsection (10) above the Secretary of State shall take into account the views of organisations representing the interests of disabled and elderly people.")

The noble Lord said: My Lords, I beg to move the amendment standing in the name of the noble Lord, Lord Winstanley, and myself. I explained earlier that the noble Lord was unable to be here and had asked me whether I would move the amendment in his stead.

The amendment seeks to ensure that certain categories of patient will be protected from the additional costs of travel to and from hospital which are likely to arise from proposals in the Bill to open up the possibilities for non-local treatment and for care of people in the community wherever possible and desirable.

So the amendment is, in a sense, a trigger measure which will allow the Secretary of State, after due consultation, to bring forward regulations defining the patients who are eligible for assistance as and when it becomes apparent that increased travel or decreased hospital transport services are creating difficulties.

Surveys carried out by local community health councils in a number of areas show that elderly people are very heavy users of hospital transport provision. The Milton Keynes community health council found in 1988 that 93 per cent, of patients using non-emergency transport were aged 71 or over, and there have been other surveys which have given similar results.

There are a number of reasons for this greater dependency on hospital transport services. There is a low level of car ownership among elderly people. The general household survey in 1986 found that only 12 per cent, of elderly people living alone owned a car. The prevalence of disability, which may make it more difficult for people to negotiate public transport, increases among the older age group; and the OPCS survey to which I made reference earlier found that 73 per cent, of people aged 60 to 74 living in private households, and 82 per cent, of those aged 75 and over, had some difficulty with mobility. Almost 70 per cent, of disabled adults are aged 60 or over and nearly half are aged 70 or over.

The National Health Service and Community Care Bill is likely to lead to an increase in the number and length of journeys being taken to hospital as more people are cared for in the community and a greater number of cross-boundary contracts are used. In the Department of Health publication entitled Contracts for Health Services: Operating Contracts 1990, the Government concluded that it "would not be sensible" for contract prices to be adjusted for the hospital travel cost scheme. They recommended instead that providers should bill health authorities separately for any payments they make. The travel costs incurred are part of the costs incurred by providers that it is possible to identify in advance. Age Concern finds the government's view difficult to understand in this respect.

If the amendment were accepted, NHS bodies would be required to consider the travel cost implications of placing contracts and to bear the costs for certain groups of patients either directly, by footing the bill, or indirectly, by providing appropriate transport. The amendment would clearly benefit patients and ensure that any additional costs which arise from proposals in the Bill are not passed on to those who are unable to meet them. That is perhaps the most important statement of the case. It would minimise the number of inconvenient and uncomfortable journeys which patients are required to make under their own steam. By making it a requirement for contracts to take account of costs for those patients who qualify for help, the amendment would also allow a more accurate comparison to be made between competing providers, facilitating a more accurate assessment of the efficiency of different providers. I beg to move.

Earl Russell

My Lords, I support my noble friend's amendment. I speak with a certain amount of feeling on this subject, having once lived in a place in Cornwall 60 miles away from the nearest hospital. I remember visiting that hospital on the day of the Lynmouth floods. It was in a place named Swilly, which seemed on that day quite peculiarly appropriate. It has always been a real problem. It is likely to become a much more real problem under the Bill.

It is envisaged in the Bill that it should be possible to seek out the cheapest or most treatment in another area, which may give rise to a considerable amount of travelling. This concerns patients' relatives as well as the patients themselves. Visits are capable of having a therapeutic value. As the noble Lord, Lord Ennals, pointed out, this is part of the true cost. Treatment in a different district is only cheaper if when the transport costs have been taken into account, it still remains cheaper.

The point about the importance of the amendment to the elderly is of some substance. Car ownership among the elderly is a good deal lower than among the rest of the population and very often there is less willingness to drive. The hesitation of people to go on driving is sometimes misplaced but I think it would be an unwise exercise of public policy to force people to use cars when they have some distrust of their safety in doing so. Such a measure could result in additional costs to the health service.

This is arguably not a new provision. On 7th May 1974 in another place my noble friend Lord Winstanley asked a question of Dr. David Owen, then Minister of State at the Department of Health, who undertook to issue a leaflet, which was printed and then lost. Two million copies of that leaflet were subsequently discovered in a warehouse in Blackpool. I am curious to know its present legal status and whether there is the possibility of resurrecting an old regulation and simply bringing it back into force. If that is possible it might solve the problem in a comparatively painless way.

11.45 p.m.

Baroness Masham of Ilton

My Lords, I wish to refer to the problems of disabled people. There is a scheme called Dial-a-Ride which disabled people can use. However, they are not allowed to use it for attending appointments at hospital. The reason is that if they did that there would be no Dial-a-Ride provision for other purposes. I am fortunate enough to have a car.

Not long ago I visited Guy's Hospital in order to attend a conference. Even if you have a car it is almost impossible to find a parking space for it. It was only because I was one of the speakers at the conference that a parking place was arranged for my car. If one travels as a patient to Guy's Hospital it is very difficult to park a car. It is very important to look at this matter. Vulnerable elderly and disabled people often need hospital treatment. Hospitals have become so large; and many community hospitals have closed. This issue is becoming a greater problem for the future.

Lord Henley

My Lords, this amendment cuts across the arrangements that exist already to help people travel to hospital. The scope and extent of these arrangements are not affected in any way by this Bill. Ambulances or other forms of hospital transport will continue to be provided free of charge for all patients for whom this is medically necessary. Guidance has already been issued on the way in which these transport services will fit into the contractual system. The most appropriate approach is likely to be for health care providers to arrange transport in support of their services. This will make it easier to integrate transport services into the overall package of patient care.

Help with travelling expenses will also continue to be provided through the hospital travel costs scheme. I say in passing that we hope to republicise the hospital travel costs scheme. As regards the document that my noble kinsman mentioned, we are not in the business of republicising 14 year-old documents. As I said, we intend to re-advertise the hospital travel cost scheme under which people on low incomes may be entitled to have their travel costs met in whole or in part.

This is a statutory scheme and is not affected by the present Bill. All NHS hospitals, including NHS trusts, will continue to meet the travel costs of those eligible, in advance where necessary. The arrangements I have described already meet the needs of those who require help in travelling to hospital whether on medical or financial grounds. They do not need amending in any way. I should also like to quash the notion that the new contractual arrangements will force people to travel more than they do now. That is simply not the case. The object is simply to improve choice and access to the best available services.

The fact that contracts will be placed in line with GPs' referral patterns will itself ensure that patients only travel for treatment if that means they get a better service. Clinical considerations and the convenience of patients and their relatives will also dictate that many services should be provided locally. Where, however, there is an opportunity to obtain a better quality of treatment—for example, a shorter waiting time by going to a hospital some distance away—patients should be given the choice to do so.

I end by quoting one part of Operating Contracts, 427. The last sentence states: If DHAs wish to place contracts with more distant providers they should consider whether in some cases the benefits to be obtained might not be outweighed by the expense and inconvenience to patients. Convenience for relatives visiting patients should also be considered". In the light of that, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Ennals

My Lords, I am grateful to the Minister, and particularly for the last part of his response. I thought that his disrespect for 14 year-old documents was out of place. Those documents are of some historic interest. They should be preserved, embossed, reproduced, published and sold widely. They may never appear again.

Secondly, only time will tell whether the fears upon which this amendment is based are true. We shall have to see whether people are prepared to travel further. I do not know the answer. One has to anticipate what might happen. This amendment sought to do so. However, I thought that the Minister went out of his way to be reassuring in terms of the Government's intentions regarding the provision and reimbursement of travel costs. In view of the spirit in which he responded, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Coleraine moved Amendment No. 45: After Clause 4, insert the following new clause: ("Application of Local Government Act 1972 to Health Authorities —(1) Sections 100A to 100C of the Local Government Act 1972 (access to meeting and documents of certain authorities) shall apply to a Health Authority established in accordance with section 8 of the principal Act as they apply to a principal council within the meaning of Part VA of that Act, but the references in sections 100B and 100C to the proper officer in relation to a principal council shall be construed as references to the person appointed for the purpose by the Health Authority. (2) In section 100H of that Act (supplemental provisions and offences)—

  1. (a) any reference to any provision of Part VA of that Act or to any right conferred by that Part includes a reference to any such provision as it applies by virtue of this section or, as the case may be, to any right conferred by that Part as it so applies, except that references to section 100D shall not apply,
  2. (b) in subsection (3) as it so applies the reference to a Principal council shall be construed as a reference to a Health Authority and
  3. (c) subsection (5) shall apply to any meeting of a Health Authority.
(3) the power conferred on the Secretary of State by section 1001(2) of that Act to vary schedule I2a to that Act (exempt information) shall include power to vary that schedule as it applies by virtue of this section. (4) In that Schedule, as it so applies— (a) Part I shall have effect with the insertion after paragraph 6 of the following paragraphs— 6A. Information relating to the physical or mental health of any particular person. 6B. Information relating to— (a) any particular person who is or was formerly included in a list of persons undertaking to provide services under Part II of the principal Act or is an applicant for inclusion in such a list; or (b) any particular employee of such a person."; (b) paragraph 1 of Part II shall have the effect with the insertion after the words "paragraph 1 to 5" of the words "or 6B"; and (c) any reference to "the authority" shall be construed as a reference to the Health Authority. (5) In this section references to a Health Authority include references to a committee or sub-committee of a Health Authority where that authority has delegated to such a committee or sub-committee the power to discharge functions of the authority. (6) In the Public Bodies (Admission to Meetings) Act 1960 (which makes similar provision to that made by sections 100A and 100B of that Act of 1972), paragraph 1(f) of the schedule shall be deleted. (7) A Health Authority shall maintain a register stating— (a) the name and address of every member of the Authority and (b) the name and address of every member of each committee or sub-committee of the authority for the time being. (8) A Health Authority shall maintain a list— (a) specifying those powers of the authority which, for the time being are exercisable from time to time by officers of the authority in pursuance of arrangements made under this Act or any other enactment for their discharge by those officers; and (b) stating the title of the officer by whom each of the powers so specified is for the time being so exercisable; but this subsection does not require a power to be specified in the list if the arrangements for its discharge by the officer are made for a specified period not exceeding six months. (9) The register maintained under subsection (7) above and the list maintained under subsection (8) above: shall be open to inspection by the public at all reasonable hours and without payment at the offices of each Health Authority and any person may, on payment of such reasonable fee as the Authority may determine— (a) make copies of or extracts from any such register, list of summary kept by it; and (b) require the Authority to supply him with a photographic copy of or extracts from any such register, list or summary.").

The noble Lord said: My Lords, in Committee I moved an amendment to extend to the public rights of access to information about health authorities, which they have enjoyed for five years now under the local Government (Access to Information) Act 1985 in relation to local authorities. The amendment was moved at some time after midnight, so I am achieving a slight improvement in that respect tonight. Despite the lateness of the hour on that occasion, it received widespread support in the Chamber. My noble friend Lady Blatch pointed out in reply that health authorities are already subject to the Public Bodies (Admission to Meetings) Act 1960. She said that failure to comply with that Act was unacceptable.

I do not propose to follow the line of argument which would ensue from that point tonight, but my noble friend also urged—and it is to this aspect of her reply that I should like to address your Lordships—that because the new health authorities are to be essentially managerial and not representative bodies, they should not be subjected to excessive red tape and that they should be left free to get on with their business.

There was also the question of expense to be considered in complying with the requirements which my amendment would have introduced. I withdrew my amendment in Committee in order to consider the Government's view on the matter. Subsequently, I, and a representative of the community rights project who had been advising me, attended a meeting at the department with my noble friends Lady Blatch and Lady Hooper where we discussed the matter. I should like to express my appreciation for that meeting.

The amendment I have put forward this evening identifies two areas where I feel that it might be appropriate not to seek to apply to health authorities access to information rights which are applied to local authorities. I do so in order to take account of government feeling on the question of excessive red tape and expense. First, the revised amendment would no longer extend public rights of access to committees of health authorities, except to committees which have powers to take decisions on behlf of the health authority concerned. I submit that if it is appropriate for the public to have access to the health authority, it is equally appropriate for the public to have access to the committee when the committee is taking active decisions.

The advice I have received is that by comparison with local authorities, health authorities are less likely to create a structure of decision-making committees. There will be many committees under various guises and names which will talk about and solve problems but then refer the matter to the health authority concerned for a decision. I should like to stress the fact that the amendment is not in any way designed to give public access to these committees.

The second principal change introduced by the new amendment is that health authorities would not be required to throw open their background papers to the public, nor to keep them for a specified number of years just in case someone came along and wanted to see them at some time in the future. I believe that that would mean a very substantial lessening of the burden in respect of red tape and expense.

In view of the lateness of the hour, I do not propose to say any more about this matter tonight. I hope that the amendment will prove more acceptable to the Government than the one I moved in Committee. With a view to probing the Government on this matter, I beg to move.

Baroness Blatch: My Lords, your Lordships will be aware that a similar amendment was debated at some length in Committee and my noble friend acknowledged that the issues were discussed in some detail with my noble friend the Minister Lady Hooper and officials of the Department of Health.

I note that in framing the current amendment my noble friend has endeavoured to meet some of the Government's concerns about imposing additional burdens on health authorities. As I understand the current amendment, there would not be a requirement on health authorities to have background papers available for inspection, nor would a health authority be obliged to maintain a written summary of rights regarding access to meetings and documents. However, as I have explained previously the Government are opposed in principle to further legislation being placed on the statute book which lays down detailed rules as to how health authorities conduct their business and establishes bureaucratic procedures with regard to the details of which aspects of their business should be open to the public.

Much has been made of the comparison between local authorities (to whom these provisions apply) and health authorities. Your Lordships will be aware that they are different types of body and indeed will be more different following our reforms in health authority membership. Local authorities are elected representative bodies, with members appointed through the party political system. They raise revenue directly from their local population. It is right and proper that the provisions of the Local Government Act apply to them. Health authorities are funded by central government and act as agents of the Secretary of State in providing a comprehensive national health service. Through the NHS management executive they are accountable to the Secretary of State who is in turn accountable to Parliament for their activities. Following our reforms they will be run by small but effective management bodies at local level comprising members drawn primarily from the local area who have been appointed solely on the basis of the personal skills and experience which they can bring to the work of the authority.

All that is not to say that their meetings should not be open to the public, as has been acknowledged. Listening to the debate one might form the impression that health authorities conduct all their business in secret behind closed doors. That is not the case. As I explained in Committee all regional and district health authorities are now, and will continue in the future to be, subject to the Public Bodies (Admission to Meetings) Act 1960, which incidentally was placed on the statute book as a Private Member's measure by my right honourable friend the Prime Minister.

The 1960 Act requires regional and district health authorities to give public notice of the time and place of their meetings, to supply copies of their agenda to any newspaper that requests it, to provide reasonable reporting facilities and to open their meetings to the public unless resolving that it should be excluded because of the confidential nature of the business to be transacted. In addition, the department's guidance to health authorities on the implementation of the 1960 Act contained in circular HC(81)6 makes it clear that there is a presumption in favour of open and public discussion wherever possible.

It has been alleged that health authorities flout both the 1960 Act and the department's guidance about its implementation. It bears repeating in the House today that if my noble friend Lord Coleraine or the Community Rights Project provide us with evidence of where that is taking place we shall take action to rectify it. There is another important difference between health authorities and local authorities here. Because of their accountability to the Secretary of State, if health authorities are flouting the law there is a direct line of accountability which means that we can ensure that they put the matter right.

Following Royal Assent for this Bill, the department will be issuing guidance to health authorities on their new membership and the basic procedures they will need to follow in conducting their meetings. As I have explained to the noble Lord, Lord Coleraine, we shall consider including in our guidance some of the points made in this amendment which are clearly good practice. But to impose them lock, stock and barrel through legislation on the reformed regional and district health authorities simply would not be appropriate, or in keeping with the changes that we are making.

To sum up, the Government are opposed to this amendment for three reasons: first, it is unnecessary. The Public Bodies (Admission to Meetings) Act 1960 makes adequate provision for openness of health authority meetings. Secondly, although difficult to quantify, it would inevitably mean and impose some additional administrative and financial burdens on health authorities. Thirdly, and most important, its provisions are incompatible with the reforms in health authority membership and our aim to make health authorities into more effective management bodies.

If, as it is alleged, there are problems we would be grateful to receive more detailed information about them from the community rights project. We will then take action to sort out any problems. The current system is a good one in that it provides for openness, without a surfeit of bureaucratic legislation. The answer is to make it work properly. In the light of that explanation, I ask the noble Lord to withdraw his amendment.

Lord Coleraine

My Lords, I shall do exactly that. However, I must tell the House that I find all that my noble friend has said extremely unsatisfactory. I say that principally because the objections to the present situation arise not so much because health authorities are failing to comply with the requirements of the 1960 Act as because the requirements of that Act as to when a health authority may go into closed session are so unclear as to make it a matter for a fleet of lawyers to determine whether the circumstances apply and the authority can properly exclude the public.

It is principally with that in mind that I take this amendment away now with the intention of bringing it back at Third Reading. For tonight, I beg to withdraw my amendment.

Amendment, by leave, withdrawn.

12 midnight

Lord Hunter of Newington had given notice of his intention to move Amendment No. 46: After Clause 4, insert the following new clause: ("NHS contracts: quality assurance The Health Services Management Board shall be responsible for maintaining and improving standards of organisation and delivery in respect of goods and services purchased or provided by any Health Service (or private sector body) under an NHS contract.").

The noble Lord said: My Lords, this was put down as a probing amendment to give the Minister the opportunity to tell the House more about the role and function of the management board. Under the circumstances, and because of the lateness of the hour, I shall not move the amendment.

[Amendment No. 46 not moved.]

Clause 29 [NHS contracts]:

Baroness Blatch moved Amendment No. 47: Page 29, line 9, leave out ("any hospital provided by the Secretary of State under section 90") and insert ("a State Hospital Management Committee under section 91").

The noble Baroness said: My Lords, this is a minor drafting amendment. The description of the state hospital in Clause 29 uses different words from the description elsewhere in the Bill, for instance, in Clause 61 on page 65. The amendment brings the wording of Clause 29 into line. It makes no change to the effect of the Bill. I beg to move

On Question, amendment agreed to.

Clause 5 [NHS trusts]:

Baroness Hooper moved Amendment No. 48: Page 6, line 6, at beginning insert ("Subject to subsection (1A) or, as the case may be, subsection (1B) below").

The noble Baroness said: My Lords, in moving Amendment No. 48 I speak also to Amendments Nos. 49, 50, 51, 80 and 81. The Government have always been committed to full and proper consultation on proposals to establish National Health Service trusts and our plans were set out clearly in Self-Governing Hospitals: An Initial Guide.

We believe that it is critically important that those with an interest in such proposals should have the opportunity to make their views known and that the Secretary of State should be able to take account of those views in considering an application for trust status. We have, as your Lordships will know, hitherto taken, the view that it was not necessary to write the provisions for consultation into primary legislation.

However, since our discussions on this matter in Committee, we have given further consideration to the matter in the light of the arguments which were put forward. We have concluded that there would be merit in making statutory provision for consultation on the establishment of trusts. The amendments which stand in my name and that of my noble friend Lord Sanderson therefore place a statutory duty on the regional health authority to consult with the relevant community health council and such other bodies and persons as it is either directed to consult or considers it appropriate to consult on proposals for establishing a trust and to report the results of that consultation to the Secretary of State. In Wales, where there are, of course, no regional health authorities, it will be the duty of the Secretary of State to undertake the consultation.

These amendments will enshrine in legislation the proposals for consultation which the Government have previously set out. They would, as we have always proposed, make the relevant RHA in England responsible for carrying out the consultation. We believe that this is right because the RHAs, rather that the Secretary of State as proposed in Amendment No. 49, will be best placed to determine the appropriate range of interests to be consulted on a particular application. They do, however, provide specifically for the relevant community health council to be consulted—something which I hope will be widely welcomed. As I indicated earlier, in the case of Wales, it will be the Secretary of State.

The amendments also give the RHA the duty to consult such other persons and bodies as it considers appropriate. We have always been clear that we want wide consultation but that there should be flexibility to allow the consultation to be tailored to the circumstances of the individual application. The range of interests to be consulted on an application from a major teaching hospital, for example, may be very different from that concerned with an application from a community unit or an ambulance service. We do not therefore think it would be helpful to spell out a list of groups which have to be consulted for two reasons. First, there is a real risk of lengthy arguments and legal challenges as to whether particular groups should be consulted. For instance, how is the local community to be defined? How are GPs or CHCs with an interest to be determined? Would any GP who may want to send a patient to the trust be seen as having an interest? What would be the position of any CHC whose residents have been, or may be, treated at the unit?

Secondly, defining those groups which have to be consulted in this way may lead to a failure to consult with other groups and organisations with a legitimate interest. The amendment which the Government are proposing leaves it to the RHA to determine which groups have an interest, and it will no doubt wish to consult the applicants on this, but with the safeguard that the Secretary of State may direct regions to consult particular bodies or persons if, for instance, he is not satisfied that the region has consulted appropriately.

Thirdly, these amendments require the region to report the results of consultation to the Secretary of State. This is clearly necessary to ensure that the Secretary of State has the benefit of the comments of those consulted when considering an application.

I shall now turn to Amendment No. 51, which concerns the publication of the criteria for consultation. We believe that this is unnecessary because, as I said, we have already made clear in the White Paper and subsequent published documents the criteria that applications for trust status will have to satisfy. First, management must be able to demonstrate the skills and capacity to run the unit, including strong and effective leadership, sufficient financial and personnel management expertise and adequate information systems.

Secondly, senior professional staff, especially consultants, must be involved in the management of the unit. Thirdly, we shall want potential trusts to demonstrate the benefits which trust status will bring to patients and to demonstrate their financial viability. The amendment would therefore require the Secretary of State to issue guidance which would duplicate what already exists. With those comments, I beg to move.

Baroness Seear

My Lords, on behalf of my noble friend Lady Robson, whose name is down to Amendments Nos. 49 to 52, which I gather from the groupings are to be taken in conjunction with the amendment which the noble Baroness has just moved, I should like to say that the amendment is an improvement. However, it would have been so much better in our view if at any rate some of the prescribed groups which appear in Amendment No. 52 had been incorporated.

To leave the decision as to who is to be consulted to the regional health authority and the community health councils is to make them too much judge in their own cause. It is surely highly desirable that the people who are likely to be dissatisfied should have a right to be consulted. That includes the staff, the local community and the general practitioners.

The noble Baroness has said that it will be difficult to define who those people are, but it should not be beyond the wit of the authorities to find a way in which they can be so consulted. I believe that, if there was a role to consult, that could most certainly be done.

The Government show a marked reluctance to consult and a marked reluctance to recognise that, if changes are to be acceptable and to work thoroughly and satisfactorily, they require the consent of the people involved. Not to incorporate in this proposed change the right for them to be consulted seems to us to be a very regrettable omission.

Lord Ennals

My Lords, I am grateful to the noble Baroness for what she has said. I endorse all the points that she made. I, too, am grateful to the Minister for introducing the amendment. It is definitely better that there should be a responsibility on the regional health authority to consult rather than that there should not be a responsibility to consult. I am grateful for small mercies—those are all the mercies that we have and we must be grateful for them.

On the question of who will be consulted, like the noble Baroness, Lady Seear, I did not understand why that is difficult to prescribe. It is not difficult to prescribe because we have done so in Amendment No. 52, which stands in the name of myself and the noble Baroness, Lady Robson. That requires the Secretary of State to: seek the views of those with an interest, particularly health authorities"— that is clear; "staff at the hospital"—that is clear; "general practitioners"—that is clear; "community health councils" are already included. I agree that "the local community" leaves some range for consultation—the wider the better, I suggest.

I wonder whether there will be some guidance. It may be that the new streamlined and efficient regional health authorities will not be much in the business of consulting. Often managers do not go around consulting; they know what is best. They will not have a long list of bodies to consult. Even if they do, what notice will be taken of the views of those consulted?

I was grateful to the noble Baroness when she answered a question that I asked on Monday of this week, when she told us: Staff and the local community will … have an opportunity to express their views on individual proposals to the region concerned before any formal applications are made. We are nevertheless aware that ballots canvassing the views of various interests have taken place, but we have consistently made clear that it would not be appropriate for changes in management of NHS services to be subject to such ballots".—[Official Report, 4/6/90; col. 1075.] I do not know whether she meant such ballots which carry wording which implies that they are canvassing one point of view or another. That has been the case with some ballots. However, there could be a properly supervised ballot, carried out by a health authority and supervised by the Electoral Reform Society or some other appropriate body. I do not understand why the noble Baroness thinks that there is something wrong about a ballot, particularly if it is properly organised.

As I asked earlier, what notice do the Government take of the views? If they find after the consultation that 80 per cent, of the staff or the community or community health councils do not want what is proposed, will the Government go ahead? What will be the criteria for determining whether the result of the consultation will lead to one decision or another?

I must ask specifically: will the reports referred to by the noble Baroness in her amendment be published? The amendment states: within such period (if any) as the Secretary of State may determine, the relevant Regional Health Authority shall report the results of those consultations to the Secretary of State". I hope that the Minister will say that the results of those consultations will be made public. If they are not made public and are just for the benefit of the private eye of the Secretary of State, they are not of much value. It is important that the public should know what the Secretary of State thinks that the public is saying. The noble Baroness gave me a helpful reply on Monday. She pointed out that at present any ballots or forms of consultation concern only whether a hospital or another unit should apply or show an interest. Eventually we shall have to move on from that position.

Paragraph 5.3 of Working Paper 1 produced by the BMA states: It will be for Regional Health Authorities to give all proposals to seek self-governing status local publicity". That is good. I imagine that the Minister will confirm that that position still stands. The working paper goes on to state: They [the regional health authorities] will seek the view of those with an interest, particularly the health authorities concerned, staff at the hospital, general practitioners, CHCs, and the local community'. I drafted the amendment based on the wording in the consultative document. I was surprised that the Minister did not think it was appropriate. The wording was taken almost directly from that working paper. Amendment No. 52 seeks to write that commitment into the Bill.

The Government claim that the proposers for self-government would have to demonstrate that they carry "a substantial commitment" of those likely to be involved in the new management. That was an important statement made some weeks ago. The word "demonstrate" presumably means that they will have to publish, so that the results of the consultations will be made known to the public as well as to the Secretary of State who ultimately takes the decision. It is only right that staff in the hospital, the local community that it serves and local general practitioners should all have a say in the future of their hospital. They look upon it as their hospital.

According to an article in the Guardian of 3rd June, it appears from a leaked Department of Health document that suggestions are being made that managers should conceal the business plans, even suggesting that: If the Trust does not wish to make the business plan public, the application should avoid referring to it in any way which implies that a document will be publicly available". One of the regional health authorities, Trent, suggests that the NHS trust sponsors should prepare a summary of the application document to be published in leaflet form.

We must know what mechanism there will be for regional health authorities to take account of the views which they are now required to seek in the amendment tabled by the noble Baroness. She must recognise that at present almost all ballots show strong opposition to the proposals. I saw that Mr. Paddy Ross made a speech yesterday evening in which he said: We [the BMA] have now collated the results of ballots that are available relating to those hospitals with more than 250 beds that appear on the lastest list of so called front runners for self-governing status. In the vast majority of cases where ballots have been held these results show that the consultant staff, other members of staff and the local population are opposed to their—and I stress "their"—local hospital becoming a self-governing trust". Those views have been strongly expressed. I believe that we have made a little move forward with the amendment but it does not go far enough.

The Government must say that the results of the consultation will be made public. If they do not, there will be suspicion that the Secretary of State will go ahead and approve the establishment of trusts, asked for by perhaps a limited number of consultants and others who may not necessarily be representative. I hope that the Minister can tell us a little more about the Government's intentions while we debate this group of amendments.

Baroness Hooper

My Lords, I believe that I dealt fully with the matter when moving the amendment. In response to the point raised by the noble Baroness, Lady Seear, about the regional health authority being in effect a judge in its own court, the decision is for the Secretary of State. The regional health authority simply acts as his agent in carrying out the consultation. I can categorically assure your Lordships that every response to consultation will be considered.

There will be further guidance on consultation on the applications that are being made. In response to the question of the noble Lord, Lord Ennals, earlier this week, I listed the various ways in which guidance has already been issued and referred to the fact that in the autumn a compendium guide was likely to be issued.

I can also give categoric assurance to the noble Lord that the comments of those who have been consulted will be put in the public domain.

On Question, amendment agreed to.

[Amendment No. 49 not moved.]

Baroness Hooper moved Amendment No. 50: Page 6, line 14, at end insert: ("(1 A) In any case where the Secretary of State is considering whether to make an order under subsection (1) above establishing an NHS trust and the hospital, establishment or facility concerned is or is to be situated in England, he shall direct the relevant Regional Health Authority to consult, with respect to the proposal to establish the trust,— (a) the relevant Community Health Council and such other persons or bodies as may be specified in the direction; and (b) such other persons or bodies as the Authority considers appropriate; and, within such period (if any) as the Secretary of State may determine, the relevant Regional Health Authority shall report the results of those consultations to the Secretary of State. (1B) In any case where the Secretary of State is considering whether to make an order under subsection (1) above establising an NHS trust and the hospital, establishment or facility concerned is or is to be situated in Wales, he shall consult the relevant Community Health Council and such other persons and bodies as he considers appropriate. (1C) In subsections (1A) and (1B) above— (a) any reference to the relevant Regional Health Authority is a reference to that Authority in whose region the hospital, establishment or other facility concerned is, or is to be, situated; and (b) any reference to the relevant Community Health Council is a reference to the Council for the district, or part of the district, in which that hospital, establishment or other facility is, or is to be, situated.")

On Question, amendment agreed to.

[Amendments Nos. 51 and 52 not moved.]

Baroness Hooper moved Amendment No. 53: Page 6, line 19, after ("who") insert ("subject to subsection (4) below").

The noble Baroness said: My Lords, I beg to move Amendment No. 53 and speak to Amendments Nos. 55, 82 and 84. Our proposals for National Health Service trusts aim to give units the scope to manage better, and so to care better for patients. The drive for better management will be led by the boards of National Health Service trusts, with their membership of executives closely involved in the day to day management of the trust, and non-executives appointed for the particular skills and expertise that they can bring.

It is clearly important that National Health Service trusts' boards should consist of people with the right qualifications and experience for that particular trust. That is what the amendment is designed to achieve. It may be that a trust will in future have a chief officer or other senior manager who is a secondee from another organisation—for instance, from the Department of Health—and is therefore not an employee of the trust. Similarly, in a teaching hospital which becomes a trust, the medical director may well be a university employee with an honorary contract with the hospital which does not legally constitute a contract of employment. The amendment ensures that such key staff should be able to be executive members of the boards of the trust where they serve despite the fact that they are not its employees.

These provisions will ensure that no officers of trusts—whether managers or senior clinicians—are excluded from executive membership of National Health Service trusts on a technicality. I beg to move.

On Question, amendment agreed to.

Baroness Hooper moved Amendments Nos. 54 and 55: Page 6, line 31, after ("office") insert ("or may be suspended from performing the functions of the office"). Page 6, line 34, at end insert— ("(cc) the circumstances in which a person who is not an employee of the trust is nevertheless, on appointment as a director, to be regarded as an executive rather than a non-executive director").

On Question, amendments agreed to.

[Amendment No. 56 not moved.]

Lord Hunter of Newington moved Amendment No. 57: After Clause 5, insert the following new clause—("Hospital Incentive Fund —(1) The Secretary of State shall establish a fund to be known as the Hospital Incentive Fund ("the Fund"). (2) The purpose of the Fund shall be to provide loans to encourage hospitals to develop new approaches to more effective management of hospital resources and to provide enhanced care for patients. (3) The resources of the Fund shall come partly from hospitals and partly from the Secretary of State who shall contribute an amount equal to that contributed by hospitals up to a limit of £250,000 in each case. (4) The provisions of this section shall apply to all hospitals including those falling within NHS trusts and authorised to hold a budget. (5) The Secretary of State shall define the conditions under which the loans from central Governmental are repaid.")

The noble Lord said: My Lords, considerable anxiety has been expressed in this House and elsewhere about the financial proposals underlining the new health service Bill. Those in the lives of many are tied up with the financial provisions relating to NHS trusts and the conditions under which they operate. Schedule 7B states: an NHS trust may borrow (both temporarily, by way of overdraft, and longer term) from the Secretary of State or from other persons".

It also provides that: Interest on any sums borrowed from the Secretary of State by an NHS trust shall be paid at such variable or fixed rates and at such times as the Treasury may determine".

In relation to the guarantees of borrowing it states that: The Secretary of State may guarantee, in such manner and on such conditions as, with the approval of the Treasury, he considers appropriate, the repayments of the principal of and the payment of interest on any sums which an NHS trust borrows from a person other than the Secretary of State".

I understand that none of those possibilities is open to the remainder of the National Health Service, except in a somewhat clumsy way for regional health authorities, to top-slice their grants and then form such a fund. I believe that at least serious consideration must be given to an alternative way of making some resources available to National Health Service hospitals and other units; otherwise the Government will truly have created a two-tier health service.

For those reasons I propose that there should be a hospital incentive fund open to all hospitals and designed to encourage them to develop new approaches and more effective management of resources and provide enhanced care for patients. I propose that hospitals should finds sums sometimes from private sources and that the Secretary of State should be prepared to offer equal amounts.

To my mind that encourages initiative in a community and for it not to be rewarded for that appears to be wrong. We do not as yet know the standards which will be applied by the Secretary of State in agreeing National Health Service trusts. There appears to be a grave weakness before that stage is reached. Unless opportunity is offered to those who are prepared to use their own initiatives, something of the spirit of the National Health Service will be irretrievably lost. I beg to move.

Baroness Hooper

My Lords, I have listened with great interest to the noble Lord's remarks about the proposed hospital incentive fund and agree with much of what he said about the need to support innovative work at local level. I can certainly assure the noble Lord, Lord Hunter, that sufficient statutory power exists at present to allow such schemes as he has described to operate at a national or regional level. Of course, a management judgment must be made about the desirability of channelling resources into such incentive funds as opposed to going into the main allocations to health authorities. However, the option is always there. I hope that the noble Lord finds that reassuring.

However, I cannot follow the noble Lord in his belief that every hospital should have the financial freedoms given to National Health Service trusts. Trusts will have those freedoms only because they will have demonstrated the capability to manage them. That is what the whole application and consultation process which we have discussed is all about. If a candidate for trust status, however enthusiastic, does not meet that criterion, then that will not be approved. Much can be done to delegate greater financial control and autonomy to all units, of course, and the proposals in the Bill will give further impetus to the major steps we are already taking to encourage that development. The possibility of trust status will give an added spur to many units to develop their systems and expertise further. Competence and enthusiasm have to go hand in hand.

The White Paper made clear that we would look at our general guidance about the use of private sector finance by the NHS, and that we have done. Of course, there are important points to be borne in mind which apply to all public sector finance to ensure that due probity is observed and best value for money obtained. But the use of funds from the private sector is not totally precluded. With those assurances, I trust that the noble Lord will not press his amendment.

Lord Hunter of Newington

My Lords, I thank the Minister for that encouraging reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.30 a.m.

Schedule 2 [National Health Service trusts]:

Lord Dainton moved Amendment No. 58: Page 71, line 41, leave out ("whether") and insert ("where").

The noble Lord said: My Lords, unfortunately the noble Baroness, Lady Young, cannot be here this evening and she has asked me if I will move this amendment in her stead, which I gladly do.

Amendments Nos. 58 to 62 are replicated as Amendments Nos. 89 to 93 so as to apply to the situation in Scotland. In other respects they are identical.

Your Lordships will remember that Amendments Nos. 4, 6, 9, 11 and 14 to Schedule 1, which the Government accepted earlier, will ensure that regional health authorities and, where appropriate, district health authorities have a member drawn from a university. The Bill already provides for a NHS trust which has teaching responsibilities to have a non-executive director or, in certain very special circumstances, to have an executive director, as was explained a few moments ago by the noble Baroness. Perhaps I may say how grateful I am for that concession by the Government which will add greatly to the work of any trust set up which has teaching responsibilities. That executor may be drawn from a university.

However, the Bill does not require that a NHS trust with such a responsibility must make proper provision of resources for the discharge of the teaching and research functions, although, of course, the university may well have a voice in the management of the trust through a special non-executive directorship. However, at present there is nothing in the Bill which requires such a trust to make resources available for medical education and research if, when it has been designated by the Secretary of State, he does not specifically indicate that it has significant teaching and research duties. It is a matter solely for the Secretary of State's judgment as to whether he chooses to designate a trust which incorporates a hospital which already has those responsibilities as having significant teaching and research commitments.

From what the Secretary of State has already said, those of us who propose the amendment have little doubt that this Secretary of State will give the right decision in those matters. However, we hope that he has recognised also that the matter is of sufficient importance that every Secretary of State should be placed under a duty to include teaching and research as a function of a NHS trust of the kind which I have described.

For my own part, I am sure that modification of the Bill is not only desirable, but essential, not just to the efficient functioning of the hospital, but also to the proper functioning of other bodies like the Universities Funding Council and the Medical Research Council. In the course of exercising their own responsibilities, they place considerable funds in such hospitals, and must be assured that those hospitals are capable of making, and are willing to make, the necessary provisions.

I could speak at greater length on this matter, partly from experience not of trusts but of health authorities. However, I shall stop at this point because I think the logic of the argument is impeccable. I beg to move.

Baroness Hooper

My Lords, the Government recognise and fully share the commitment of your Lordships' House to the highest possible standards of medical education and research. The amendment provides reassurance to the academic community and properly enshrines the Government's intended commitments in the law. I therefore urge your Lordships to accept the amendment.

On Question, amendment agreed to.

Lord Dainton moved Amendments Nos. 59 to 62: Page 71, line 42, leave out ("and, if so"). Page 71, line 44, leave out the first ("or") and insert ("with"). Page 72, line 2, at end insert— ("(1A) For the purposes of sub-paragraph (l)(d) above, an NHS trust is to be regarded as having a significant teaching commitment in the following cases— (a) if the trust is established to assume responsibility for the ownership and management of a hospital or other establishment or facility which, in the opinion of the Secretary of State, has a significant teaching and research commitment; and (b) in any other case, if the Secretary of State so provides in the order."). Page 72, line 6, leave out ("or medical or dental school").

On Question, amendments agreed to.

[Amendment No. 63 not moved.]

Lord Walton of Detchant moved Amendment No. 64: Page 73, line 44, at beginning insert— ("Subject to paragraph 10A below").

The noble Lord said: My Lords, the noble Baroness, Lady Cox, cannot be present; she has to travel abroad very early in the morning and therefore asked me to move Amendment No. 64. Paragraph 19 in Schedule 6 of the National Health Service Act 1977 placed upon health authorities the duty to consult the professional advisory committees on their provision of services. It is also the duty of health authorities to consult the committees on such matters.

There is no move in the Bill at present to extend that duty to NHS trusts. When a similar amendment was proposed in Committee there was considerable discussion, and that amendment required health authorities to consult professional advisory committees before entering into a contract. The noble Lord, Lord Henley, replied to that amendment in committee that he has a good deal of sympathy with the point underlying the amendment. The planning and provision of patient services needs to be informed by the judgment and expertise of health care professionals. That is an argument which he at that time appeared to accept. He replied by saying that the future role of those committees in relation to NHS trusts was being carefully considered.

The purpose of tabling this group of amendments was to probe the intentions of the Government in relation to the role of the advisory committees in the NHS trusts. I beg to move.

Lord Ennals

My Lords, my name is associated with this amendment and I shall do no more than say that I support it.

Lord Henley

My Lords, let me first say that I fully accept the need for National Health Service trusts to have proper professional, and particularly medical, advice in order to manage and develop their services. We have, as the House will know, already made clear that most trusts will have medical and nursing directors on their boards which will ensure that there is proper input at the very highest level of management. But clearly that will need to be supplemented by advice at other levels in the trust. Where I differ from the noble Lord moving the amendment is in respect of the way in which trusts should obtain such advice.

The amendment would require trusts to consult with any recognised local advisory committee—and, as well as medical committees, there could be dental, nursing, optical and pharmaceutical committees—before placing contracts. I see three difficulties. First, it would take away from trusts the freedom to determine for themselves how best to obtain professional input to decisions on contracting. It seems to me important that trusts should be able to choose for themselves the extent to which they wish to seek advice from outside the unit in this area. Trusts may well feel that the advice they have available from their own clinicians is the advice on which they wish to reply, especially as more clinicians, and other professionals, have become involved in management.

Secondly, I am not convinced that the existing local advisory committees are necessarily the bodies best placed to provide advice to trusts in this area. Where such committees have been established and are recognised their duty is to advise the health authority on its provision of services, and I think it would be difficult for the same body to advise both the district health authority and a trust on service provision. There needs, I believe, to be clearly separate advice to districts in their commissioning role and to trusts as providers, and giving local advisory committees the sort of dual role which the amendment proposes is a recipe for confusion.

Finally, not all districts, as I understand it, have formally recognised advisory committees. It would seem unreasonable to place a requirement for consultation on trusts which only some of them would be able to fulfil. Furthermore, to the extent that different districts have recognised local advisory committees for different professional groups, the burden of consultation could differ significantly from trust to trust and could, in some cases, be quite onerous.

The noble Lord says that this is merely a probing amendment. I hope that I have been able to satisfy him as to the Government's thinking on the matter, and that lie will feel able to withdraw his amendment.

Lord Walton of Detchant

My Lords, I am grateful to the Minister for that reply. I believe I can take it from his response that, for the reasons he gave, the existing established advisory machinery is not likely in all cases to be appropriate for the advising of NHS trusts in future. It will nevertheless be the Government's intention to see that such NHS trusts establish a formal professional advisory machinery to advise them in the pursuit of the functions under the Bill. In receiving that assurance—and I see the Minister nodding his head—I believe it appropriate at this hour to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 65 and 66 not moved.]

12.45 a.m.

Lord Butterfield moved Amendment No. 67: Page 74, line 30, after ("employ") insert ("non-clinical")

The noble Lord said: My Lords, I thank your Lordships very much for the opportunity to speak on this matter. As the Bill stands, it states, under the duties, powers and status of the trusts: An NHS trust shall comply with any directions given to it by the Secretary of State with respect to all or any of the following matters".

Among those, the Bill lists: compliance with guidance or directions given (by circular or otherwise) to health authorities, or particular descriptions of health authorities; and the implementation of awards relating to the distinction or merit of medical practitioners or dental practitioners".

I must confess that I assumed that that meant that there was a blanket understanding that the trust hospitals would be dealing with their medical practitioners, their professional people, under the usual regulations put out by the Department of Health. But, coming to the point where I am concerned to make an amendment of the general powers, the Bill states under paragraph 16(l)(d), to employ staff on such terms as the trust thinks fit.

That would appear to make it possible for the trust to employ clinical staff outside the terms of usual circulars and regulations. That is the concern which lies behind the amendment.

I believe that it would be to the detriment of the health service as a whole if some doctors, dentists, nurses and professional people working in hospitals which we are assured are part of the NHS were to receive different remuneration. Under this clause officers of trust hospitals could offer considerably higher salaries to professional people. I do not like that and I am pleading with your Lordships at this very late hour not to let it happen.

Since 1971 in the case of doctors and dentists, and since 1983 in the case of nurses, midwives and the other professions there have been special pay review bodies. They consist of about seven or eight distinguished men who give up their time to try to work out what they regard as fair remuneration for doctors and dentists in relation to the other professional people up and down the country. I know that some doctors in the health service would not be in a position to command high "private patient" salaries because of the very nature of their work in the health service. In particular, I think of those men and women who work in the laboratory services. I am very anxious that they should not be allowed to think, because of anything the trusts can do to increase the salaries of some of the people working for them as is implied in the Bill, that they are—I do not want to use the phrase "second class citizens"—ordinary troops rather than special troops. It seems inevitable that that will happen.

I give as an example a blood transfusion consultant. He will not have much opportunity to have new patients. One does not find very many blood transfusion consultants in private practice. I realise that commercial market forces will not be involved in the planning of the coming health service but it seems highly likely that groups working in laboratories such as blood transfusion consultants, clinical immunologists and those concerned with viral diseases will not have the same kind of power to command high salaries and will not have to be drawn to the trust hospitals by high salaries.

The wonderful thing about the health service is that for 40 years we have gradually achieved a more even distribution of medical services around the country. No one can say that ill health can be attributable to maladministration by the Department of Health. There has been a constant effort to achieve this distribution. General practitioners were not allowed to practise in certain parts of the country and medical schools were set up in areas that needed them.

We have been very much concerned with trying to achieve a uniform distribution. I am anxious that directors, managers, general managers and the people running the trust hospitals should not be in a position to start disturbing that achievement. I know that some people will say—I have had it said to me—"I don't understand why you are worring about this. You know as well as I do that there are people in the health service at the moment who are on standard salaries but who in their spare time make very high incomes. Why are you concerned that the trust hospitals may be offering higher incomes to some of the men?" My reply to that is very simple: if it is possible for men to make very high salaries while they are inside the health service, why change it? Why start the possibility that we shall see a disturbance of this even-handedness and even distribution as between different parts of the country and different consultants?

I have been trying to think of a suitable idea to give noble Lords. This occurred to me though it may or may not move your hearts. The guardsmen who walk down The Mall and the officers who command them are on the same pay as the men in the ordinary line regiments up and down the country. All those men are loyal soldiers of the Queen. I am very anxious that we do not get into a situation where some professional men inside the health service working in the trust hospitals begin to feel that they are not quite as equal as some other people in the service.

I have absolutely no objection to the trust hospitals finding ways of getting very able men to work with them. At Committee stage I said that as far as I was concerned they could be given company motor cars; they could be given the resources to see patients privately. If necessary, they could rent accommodation to have private clinics inside the main hospital. They could rent the operating theatres. In those ways they could augment their incomes.

Most people will be able to walk away from this problem. Those of us who are concerned with recruiting the kind of people whom we want in the medical, nursing and other professions are likely to be left with a recruitment situation where financial objectives are in people's minds from the moment they start medical or nursing school or wherever.

There is a famous Chinese proverb which says "Find the key link". That means that when you are about to cast a fishing net there is one link in the net which, if you use it to cast the net, will spread the net evenly over the surface of the river. I believe that ensuring standard, uniform salaries for the professionals inside all parts of the health service—we must bear in mind that we have been reassured and I believe that the trust hospitals will be inside the health service—is very important to the even distribution of the health services. That is why I see this situation rather like the key link in the Chinese fishing net. I beg to move.

Lord Ennals: My Lords, I am extremely grateful (and I hope the House will be) to the noble Lord, Lord Butterfield, for raising this issue. One of the great charms of the noble Lord is that he combines both outstanding intellectual abilities and a simple naivety, which we all love. We are talking about something which the Government have planned and intend to do quite consciously—that is, to ensure that the NHS trusts are enabled to do just what the noble Lord fears that by accident they will do. I am referring to their ability to attract the best people; to have pay levels which are designed to suck in the best doctors, nurses, occupational therapists and the rest, and to create a two-tier health service. That is one of the great problems.

I was very sad that the noble Lord, Lord Pitt, was unable to be here to move his amendment, which clearly raises a central issue to which we shall have to return at Third Reading.

I agree with the noble Lord, Lord Butterfield, in that what is proposed in the Bill is very dangerous. I am aware of the extent of the concern among the medical profession—the British Medical Association, and especially the Royal College of Nursing—that what is proposed will cause great damage. It will be very damaging to the service to move way from national terms and conditions of service. It means a break-up of the principles upon which the review bodies were based. It means that we shall have two classes of nurses and of everyone else—that is, those who will be able to compete for the top jobs in the NHS trusts, and those who work in the common second-class hospitals and health service units across the country.

I admit that on some issues we have made some progress here in your Lordships' House. I pay tribute to the Government for the improvements which we have been able to achieve. However, somehow or other we have to achieve parity; we have to ensure that the NHS trusts are not given special privileges. I say that because if some hospitals and units have special privileges, then other hospitals and units will have reduced privileges. Therefore, there will be a two-tier system. I am grateful to the noble Lord for raising the issue in his gentle and courteous manner, and I am sorry that I have done so in my blunt and political way.

Baroness Seear

My Lords, due to the lateness of the hour, I shall be extremely brief in what I have to say. I very much support the remarks made by the noble Lord, Lord Butterfield. However, I have one caveat. I was amazed to hear him say that while he wanted to keep the basic pay the same, he was quite happy if these hospitals could offer Rolls-Royces to the people who went to work for them. On the basis of 13 years on the Top Salaries Review Body, I must say that if there is one really dangerous thing to do, it is to introduce benefits of that kind. It distorts the situation in a far worse way than salary differentials.

Lord Walton of Detchant

My Lords, I have no wish to delay the House for more than a moment at this late hour of the night. However, I should like to say that one of the things which concerns the medical profession most is the problem that will arise in relation to the employment of university clinical staff in NHS trusts. They are employed by the university, they have complete parity of their salary scales with those in the NHS, and as they are paid by the university and not therefore employed by the trust, a very serious situation could arise if there is a differential between the salaries of those paid by the NHS and those paid by the universities.

A problem is also likely to arise in relation to the transfer of trainees, registrars and senior registrars from trust hospitals to other hospitals. This could be a serious problem. I do not share the view of the noble Lord, Lord Butterfield, about company cars. But having accepted—as I hope the Government will—the principle of parity of salary scales on the national basis, I see no objection to the payment of weighting, such as London weighting, in special circumstances to assist in the recruitment of staff, provided that the basic salary scales are the same.

Lord Peston

My Lords, before the Minister replies, perhaps I may supplement what my noble friend Lord Ennals said so that we are all clear about what we are debating. I must point out to the noble Lords, Lord Walton and Lord Butterfield, that these are not problems that can arise; these are the intentions of the Government. If one does not see that their purpose in the area of salaries is to free these people to choose the salaries they wish, one does not understand the nature of the reform.

We on these Benches are totally opposed to the Government in this matter. But to regard this as an unforeseen or unfortunate consequence is a misunderstanding, just as is any other notion of parity to do with availability of funds; it is their intention that this change should take place. There is no parity left. Some people will be awash with money—that is, those who win the game—while others will be perpetually broke.

It must be realised that if at any stage you have supported the Government on this Bill, that is what you are supporting. That is the essence of the Bill. It is not an unforeseen consequence; that is what the Bill is all about. Moreover, that is why we have opposed it from the beginning. There is no way back now. This is what the Government are determined to do.

1 a.m.

Lord McColl of Dulwich

My Lords, I am sorry to take a view opposite to that of the noble Lord, Lord Butterfield, because one of the reasons why I went back to Guy's to be Professor of Surgery was that he was Professor of Medicine. When he heard that I was coming he promptly left for Nottingham, but I can forgive him for that.

One of the problems that worries me is the business of parity between the university side and the NHS side. That was a mistake from the beginning. We should never have gone for parity; we were worth more than that. Who needs life-long contracts? They are a great mistake because life-long contracts are merely an excuse for not paying people the proper rate. No one worth his salt needs a life-long contract. Self-governing hospitals will not be able to price themselves out of the market because they will have to compete on equal terms with the directly managed hospitals. If they pay their staff inflated rates, they will not win the contracts. The amendment is contrary to the whole spirit of what we are trying to do in the Bill.

Lord Ennals

Of course it is. That is what my noble friend Lord Peston and I have been saying.

Baroness Hooper

My Lords, we discussed similar amendments in Committee and the Committee divided on an amendment moved by the noble Lord, Lord Walton, which was lost.

The amendment explained by the noble Lord, Lord Butterfield, is aimed at exempting clinical staff from the general freedom which trusts will have to set their own terms and conditions of service for staff, although I fear that it could have the effect of preventing them from employing such staff, since it effectively excludes them.

We have it made clear that staff, including clinical staff, will transfer to trust employment on existing contracts and it will then be open to trusts to negotiate changes to those contracts. It will be for trusts to determine the terms and conditions of service lor new employees. We do not believe that any special provision is necessary to exclude clinical staff from those arrangements. Teamwork is at the heart of medical practice and leads to the high standards of care on which we pride ourselves in this country. The amendment would be detrimental to such teamwork and would lead to accusations of there being double standards for clinical and non-clinical staff. That cannot be to the benefit of the trust as a whole. Furthermore, it would seem perverse for clinical staff to be unable to benefit from any improved terms and conditions of service which a trust might wish to make available to its staff. It must be for the trusts themselves to determine the most appropriate terms and conditions for all their employees.

The fear has been expressed that trusts will offer high salaries to clinical staff and therefore affect the standard of service offered in other units. However, I do not believe that to allow trusts to determine their own terms and conditions will necessarily lead to that, unlike noble Lords immediately opposite me, who believe that that is our express intention.

We are gradually introducing pay flexibility in all parts of the NHS to ease recruitment problems and reward skills and performance. I am confident that trusts will use their greater freedoms wisely and in a way which will benefit patients. Furthermore, we have made it clear that trusts will have to live within their income, and, like other units, will have to contain their costs if they are to remain competitive.

Conversely, I am sure that trusts will be conscious that if their terms and conditions of service are perceived to be undesirable or unfavourable they will have difficulty in recruiting staff and in delivering high quality services.

I hope that, in the light of what I have said, the noble Lord will not press his amendment.

Lord Butterfield

My Lords, I thank the noble Baroness for her remarks. I do not wish to press the amendment at the moment. I shall read carefully what she has said, but I am not completely convinced by some of the logic she produced when she averred that the trusts would not disturb the smooth distribution.

Having been a medical student in America, I know that there the prospects of what one can earn are important. One reason is to pay off the loan one has had to raise to become a doctor. I found that there was a, to me, rather unethical attitude towards possible financial gains. One of the great points in my working career under the National Health Service has been that, just as when working in the Army Medical Corps, we did not have to worry about money, somebody else had more or less decided what we should make. Unless we needed money to educate children, by and large people concentrated on the job, as did the noble Lord, Lord McColl. We spotted him as the obvious man to make into our professor of surgery. However, with the permission of the House, I shall withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

Baroness Hooper moved Amendment No. 69: Page 76, line 93, at end insert: ("Compulsory acquisition 25A.—(1) An NHS trust may be authorised to purchase land compulsorily for the purposes of its functions by means of an order made by the trust and confirmed by the Secretary of State. (2) Subject to sub-paragraph (3) below, the Acquisition of Land Act 1981 shall apply to the compulsory purchase of land under this paragraph. (3) No order shall be made by an NHS trust under Part II of the Acquisition of Land Act 1981 with respect to any land unless the proposal to acquire the land compulsorily— (a) has been submitted to the Secretary of State in such form and together with such information as he may require; and (b) has been approved by him.").

The noble Baroness said: My Lords, in moving Amendment No. 69, I shall speak also to Amendment No. 208. Amendment No. 69 would give National Health Service trusts, subject to safeguards, the power to purchase land compulsorily. Amendment No. 208 is a purely technical change to Section 17 of the Acquisition of Land Act 1981. I beg to move.

On Question, amendment agreed to.

Lord Ennals moved Amendment No. 70: Page 77, line 16, at end insert: ("(aa) on the application of a majority of the officers of the National Health Service trust concerned, or").

The noble Lord said: My Lords, I beg to move this amendment, which stands in my name and that of the noble Lord, Lord Hunter of Newington. My remarks will be simple because the amendment is simple. There is nothing like licking one's chops at the thought of the dissolution of the NHS trusts that have not been established! However, there is a real point here. On page 77 of the Bill we see the circumstances in which the Secretary of State may make an order by statutory instrument to dissolve an NHS trust. There are two sets of circumstances: on the application of the NHS trusts concerned;

or if the Secretary of State considers it appropriate in the interests of the health service".

It may be that one of the reasons why the trust is being dissolved is that it has fallen apart and there is no trust left. It seems sensible to have a form of words which refers to the majority of the officers of the National Health Service trust. Then it would be clear that if the trust had fallen apart, there would still be ways in which the Secretary of State could receive an application for a dissolution. I beg to move.

Lord Hunter of Newington

My Lords, I support what the noble Lord, Lord Ennals, said.

Baroness Hooper

My Lords, Amendment No. 70 brings us back in essence to the question of ballots, because it will presumably need a ballot of staff to determine if a majority would wish the trust to be dissolved. The decision to apply for dissolution of the trust is not one to be taken lightly, and I do not believe that it is a suitable issue to be decided by a ballot. In addition, the proposed amendment would discriminate against other interested parties who would not be given the right to ballot on applying for the dissolution of the trust. Furthermore, the amendment would mean that the majority view of the staff of the trust would itself be grounds for dissolving the trust, however small the majority and even if such a vote went against the view of the board of directors appointed to manage the trust, who are the appropriate people to take the decision as to whether to apply for a dissolution.

Finally I have to say that there must be a risk that such a power would be used frivolously or as a weapon against trust management. For instance, if there were industrial relation problems it would be possible for trust employees to be balloted on a proposal for the dissolution of a trust even though the trust itself was thriving and successful. As I have said earlier, I do not believe that decisions on applying for a trust to be dissolved should be taken lightly and I do not believe that the Bill should permit this to happen.

Lord Ennals

My Lords, it was certainly not my intention nor, I believe, that of the noble Lord, Lord Hunter, that such a decision should be considered as something to be taken lightly. The words, a majority of the officers of the National Health Service trust would make that clear. However, there is some merit in what the noble Baroness has said. I suppose the measure could be used as a form of threat. Someone could say that one-third of the officers were in favour of a trust being abolished and if he had another two in favour he would have a majority in favour of abolition. I can see that there is some strength to the argument of the noble Baroness.

I may have misheard the noble Baroness but I thought she mentioned some doubt. If she did, I hope she will explain that. I thought the noble Baroness was very much opposed to ballots in these circumstances. Perhaps I misheard. I hope the noble Baroness can reply to that point before I finally beg leave to withdraw the amendment.

Baroness Hooper

My Lords, I rather assumed that the effect of the amendment of the noble Lord would be to bring us back to the question of ballots, whereas we have placed a duty on the Secretary of State to consult if dissolution appears necessary. He would therefore wish to take account of the views of all staff before making a decision as part of that consultation process. We would not wish to follow the course suggested by the amendment of the noble Lord.

Lord Ennals

My Lords, I do not think this brings us back to the question of ballots. I hope the Minister will consider that there is a problem here. She said the measure could represent a form of threat. However, it could also work the other way for a group which wanted to retain a trust. It is the basis of what might be an unfortunate argument. This is an issue which could be dealt with in some form of guidance. I hope the Minister will get the department to give some thought to this question. There is a problem here and I know that my noble friend Lord Hunter feels so too. Perhaps the Minister agrees with us. In any case I shall withdraw the amendment.

Baroness Hooper

My Lords, with the leave of the House, I should say that precisely how the views of staff were obtained for the purposes of dissolution of a trust could be specified, for example, in regulations.

Lord Ennals

My Lords, I thank the Minister for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly and, on Question, Motion agreed to.