§ That this House do disagree with the Commons in their Amendment No. 18.
§ 4.30 p.m.
§ Baroness Masham of Ilton
My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 18. As your Lordships will remember, the House agreed two amendments referring to out-of-area treatments where appropriate for the purpose of receiving specialist hospital treatment and after-care. The second amendment stressed the need for co-operation over this matter. There was a great deal of support for OATs to be written on the face of the Bill in another place, but the Government want them taken out.
I thank the Minister for her communication. The noble Baroness knows so well the need to be able to access the correct medical treatment when illness strikes. In the past few days I have been implored by patient organisations to table a Motion disagreeing with the Commons amendment. On Wednesday 9th June in your Lordships' House there was an Unstarred Question on the subject of artificial limbs. There is a great need for improvement in many National Health Service specialised services.
In the past few days every time I open a newspaper I read of some avoidable health disaster. The case of the Treasury official who was refused admission to a psychiatric hospital and then killed his wife illustrates the need for better communication between junior doctor and consultant and, with the shortage of beds, between health authorities. If there is not a bed in one area there should be easy access out of a person's home area so that he gets the correct treatment quickly. The Government will realise that serious illness can come to anyone at any time. I believe that the general public regard access to correct health treatment as a top priority.
Referring to the bottom of page 11 of the Notes on Commons Amendments to the Health Bill, perhaps the Minister can explain the following statement:adding wording of that sort … may have the unfortunate and unintended consequence of being construed as limiting the scope of the power".Having discussed this matter with expert advice from your Lordships' House, the matter needs clarification.
In the modern world people who suspect complicated medical conditions turn to the Internet to see what treatments exist. The Patients Forum believes that longer-term service agreements replacing ECRs (extra contractual referrals), based on past referral patterns, will reinforce existing inequalities. Some areas will not plan to provide services at all. The transition from ECRs to the out-of-area treatments (OATs) is confusing users and practitioners.
The lack of clarity and poor communication run counter to the NHS code of openness, which emphasises the importance of users,having access to available information about the services provided by the National Health Service. The cost of these services, quality, standards and performance against targets … authorities must ensure that people know whom to ask for information".438 There seems to be no clear accountability.
Denying access to specialist services, through limiting OATs referrals, risks denying access to greater independence and other opportunities such as Welfare to Work and the New Deal. Referrals out of area should be made on clinical need. Refusals of OATs referrals must be monitored to ensure that they are not based on non-clinical factors such as PCG, PCT or health authority pressure.
Can the Minister give an assurance that rural health authorities, which often do not have many of the specialised hospital units within their local hospitals, will not be at a disadvantage when they have to send patients out of their local areas? The cost-inefficiency of losing specialist centres of excellence must be avoided.
Disability organisations, the College of Health and the National Consumer Council all support this matter and know the importance of getting expert treatment when needed and will continue to press the government on behalf of patients. To have OATs written into the Bill is a very reasonable request and I believe that it is the Government who are being unreasonable over this matter. I beg to move.
§ Moved, That the House do disagree with the Commons in their Amendment No. 18.—(Baroness Masham of Ilton.)
§ Lord Ashley of Stoke
My Lords, I speak in support of the noble Baroness, Lady Masham, and about genuine miracles. My concern is about the future of specialist services for deaf people. I wish to speak also about the provision of cochlear implants.
I declare a personal interest, but that does not mean that anything in the Bill will affect me because I already have a cochlear implant. A person with such an implant knows that it miraculously transforms his or her life if they have been, as I was, totally deaf. I am in no doubt that anyone who could benefit should get one. That is a very simple proposition, but it is one which is impeded and sometimes obstructed by health authorities. Cochlear implants are still relatively new and rare. Many people, including health professionals, simply do not appreciate that they are medical miracles.
Any loss of hearing can be a problem as many noble Lords in this House will know, but the complete loss of hearing is of a very different order. To hear nothing is a terrible deprivation because it ends easy conversation. It means that there is no music, no meaningful television, no radio, no birdsong and no children's laughter. It means exclusion and isolation.
To a large extent a cochlear implant remedies much of that. It is not perfect, but it returns a deafened person to near normal social living. The number of implants being carried out now is falling especially for adults. In 1997 there were 180, and 155 in 1998. The number of refusals is rising. For adults there were 27 refusals in 1997 and 65 in 1998.
Health authorities have discovered a shabby trick. If they refuse an initial assessment, that can stop a deaf person protesting, and that is being done. Out of 65 adults, 41 were refused assessments in 1998. That is the 439 kind of shabby behaviour of some of our health authorities. That is a depressing and deplorable outlook facing people deprived of a major sense.
The first cochlear implants were funded by charities. Then came three-year central NHS funding, coupled with Medical Research Council research, which established that they are safe and cost effective. Then funding became a health authority responsibility and the problem started. I did a personal survey of all health authorities in January 1997. It showed a great variation in understanding of total deafness and willingness to relieve it. Since then I have received countless letters from deaf people despairing of ever getting an implant. Many health authorities have responded to my letters about this medical miracle and some have now agreed to fund. Even the most rigid health authority in Britain, which is Oxfordshire, was refusing to implant adults in the foreseeable future, but it has now relented. I congratulate that authority on its change of mind.
But it is still guerrilla warfare. Many health authorities are good; some are slow but tolerable; and others are deplorable. That is no way to treat the hearing needs of totally deaf people. As my noble friend the Minister knows, there were high hopes that we would get regional commissioning. Cochlear implants fulfil all the conditions in Annexe A of the HSC circular Commissioning Services, but they are not named in Annexe B, as are bone-anchored hearing aids. There is only a reference to "communication aids". Not naming cochlear implants gives scope for argument and disagreement and deaf people want and need certainty.
The new procedures of out-of-area treatment mentioned by the noble Baroness, Lady Masham, and service agreements may sound sensible to my noble friend and other Ministers and civil servants. All of them are trying to be helpful. But they are linked—at least initially—to previous levels of referrals. That is the weak element which needs to be remedied. There is a strong smack of lip service backed up only by promises that remedial action will be taken if necessary. That is a "wait and see" strategy when we can already see a highly visible problem for deaf people. I urge the Government to think again. I know that my noble friend will do what she can to ensure that cochlear implants are firmly based on the regional commissioning list. If they are not, the funding bodies will be able to duck, weave and swerve, and some deaf people will be left knowing that help is possible, but they cannot have it. If my noble friend can meet this provision she will have struck a major blow for the totally deaf. I support my noble friend.
My Lords, I supported the noble Baroness, Lady Masham, when she moved that the words the Government intend to leave out should in fact be inserted in the Bill. When we were asked not to accept this amendment I read the notes and I am grateful for having received them.
In the notes, the Government suggest that the words are unnecessary. On page 11 the notes state,The Government considers the words which have been removed to be unnecessary".440 At the beginning of the next paragraph, they add:Nothing in this Bill cuts across GPs' existing freedom to refer their patients for whatever treatment is in their best interests, whether locally or at a specialist centre".I believe that there is a doubt about this. The noble Lord referred to one, as did the noble Baroness, Lady Masham. When there is a doubt, it is best to remove it when legislating, especially when people's lives may be at stake.
In one or two cases in these amendments, the Government have been wonderfully overzealous. In Commons Amendment No. 2, the word "Act" is to include "this section". Every Act includes every section. Yet the Government use the specific wards saying that in that case, and in one or two others, the word "Act" includes a specific section of the Act. If the Government are willing to be so overzealous in such a small drafting matter—perhaps I may have the attention of the Minister; I know that the Chief Whip may have something very important to say—I suggest that it is a good thing for them to be overzealous about the removal of doubt in this important matter of specialist services. Specialist services these days are essentially localised. They are not in every health authority area, as we all know from personal experience. I think that in this important Bill, which the noble Baroness, Lady Hayman, has been so careful to explain to us in great detail, it would be regrettable if on this important matter there was the slightest doubt left.
I believe that the noble Baroness, Lady Masham, is doing a service in inviting the Government to remove a doubt.
§ Baroness Carnegy of Lour
My Lords, I shall listen carefully to what the Minister says about whether the House should accept Commons Amendment No. 18. I, too, read the Notes on Commons Amendments. I note that the Government consider the amendment unnecessary and that it might limit the powers of the Bill.
I shall listen carefully to the Minister. It is crucial that people should, as far as humanly possible, have access to the specialist services they need. I want to hear from the Minister what the Secretary of State will have power to direct. The notes state that the powers,are amply broad enough to enable the Secretary of State to issue directions to ensure appropriate access to specialist service".That will depend whether the specialist services are available; whether the cost of getting the patient there can be paid; and whether it will be possible to fund the patient's treatment. If it is possible for the Minister to describe that which the Bill allows, it will be important to the House. That is what matters to patients, as I am sure the noble Baroness, Lady Masham, will agree. That is what she and the whole House will listen to.
As the noble Baroness also said, we all wish to know what the notes mean when they state that this amendment may have the unfortunate and unintended consequence of being construed as limiting the scope of the power. We want to know whether the amendment would be counter-productive. But we also need to know precisely what the Bill will allow to happen and how 441 the Secretary of State can intervene. He cannot intervene about every patient. So we need to know the precise procedure.
§ 4.45 p.m.
§ Baroness Berners
My Lords, I support the Motion tabled by the noble Baroness, Lady Masham. There should be more readiness to make other specialist options available to desperate patients. I hope that the Government will reconsider the Motion and agree to it.
§ Lord Patel
My Lords, I speak as a clinician. In the past a clinician had to fulfil the requirement to meet the extra-contractual referrals. That made out-of-area referrals difficult. Therefore, it is important that the Bill enables easier out-of-area referrals. I believe that the co-operation encouraged and enshrined in the Bill allows for that.
As a clinician, the other aspect I look for is the freedom and ability to persuade the trust—I work in a hospital—to develop specialised services. Therefore, I hope that the Minister can reassure the House that measures will be in place to ensure local monitoring of out-of-area referrals. That will help the development of new services.
I do not believe that the amendment is necessary because of the encouragement to co-operate. As a clinician, I have to tell noble Lords that in the past we were discouraged from referring patients out of area because funding issues were involved. We do not have that situation now. I do not want to see any restrictive measures in legislation acting as a disincentive for a trust to develop specialised services.
My Lords, I add my support to the noble Baroness, Lady Masham, on these issues which she highlighted so ably. I do not want to repeat the points she made. However, some fundamental unanswered questions remain.
The first relates to doctors' clinical freedom. I refer to the section of the Notes on Commons Amendments picked up by my noble friend Lord Renton. At page 11 the assurance is given that,Nothing in this Bill cuts across GPs' existing freedom to refer their patients for whatever treatment is in their best interests, whether locally or at a specialist centre".There is a touch of disingenuousness about that statement. There may be nothing on the face of the Bill which discourages out-of-area referrals. But we know the Government's intentions. The intention is that most specialist tertiary services should be funded through long-term service agreements between health authorities and PCGs or PCTs and an appropriate NHS trust. Sometimes an agreement will cover a number of health authorities and their PCGs and PCTs. There will be a move to establish agreements of three to five years' duration. That scheme of things may well assist planning and budgeting, but where does it leave the doctor who may not want to refer a patient to the hospital chosen by his or her health authority? As I understand the proposals, the long-term service 442 agreement will govern his decision on where his patient is seen and treated. How is that not a diminution or fettering of a doctor's clinical freedom?
My second question relates to those 10 per cent of conditions which under the Department of Health's own estimate will not be subject to long-term service agreements. Ten per cent may be a minority proportion but it will not be an insignificant number of cases. If 10 per cent of services previously funded by extra-contractual referrals are now to be accounted for by out-of-area referrals, we need to be sure that the mechanisms to fund them are adequate.
In her helpful letter to me of 22nd March, the noble Baroness explained how a health authority, acting as the main commissioner of a specialist centre, will have funding added to its own service agreement with the trust to reflect past patterns of one-off referrals. My question to the noble Baroness is: how will this work in practice? If there is a service agreement between a health authority and a specialist centre and the margin built into that contract is exceeded as a result of a higher volume of referrals from out of the area, how is the centre supposed to cope with that? Under the duty of partnership it will be bound to accept those referrals, yet it will have no money to pay for them.
I understood Ministers in another place to say that money will not follow the patient. Indeed, that sort of arrangement is what the Government say they want to get away from in abolishing the internal market. An upwards adjustment in a trust's budget for the following year will not pay for the unfunded cases it has already dealt with. Can the noble Baroness shed further light on that conundrum?
§ Lord Clement-Jones
My Lords, having heard the debate so far, and in particular the speeches of the noble Lord, Lord Ashley, and the noble Baroness, Lady Masham, no one can doubt the importance of the points that have been made. There is also no doubt about the absolute importance of OATs working much better than extra-contractual referrals. The funding and the clinical freedom must be there in the future. We must have thriving centres of excellence and we have heard throughout our debates when the original amendment was before the House at Report stage and again today, problematic stories about how the centres of excellence are not thriving. It is our view that the working of OATs is of crucial importance. That has also been emphasised throughout the debate.
The noble Lord, Lord Patel, put his finger on one point. We are not persuaded on these Benches that the best way forward is necessarily by means of primary legislation. It is a matter of ends and means. What is the best means of achieving a system of well-managed OATs, a system that works where the funding is in place and where clinical freedom is important? I look forward very much to hearing from the Minister with assurances that perhaps go further than some of the points made in the notes about the working of OATs; and then of course we will take a view.
§ Baroness Hayman
My Lords, I am extremely grateful to the noble Baroness, Lady Masham, for once 443 again making the House concentrate on an immensely important area. It has been echoed all round the House, particularly by my noble friend Lord Ashley, that patients should have access to appropriate services, particularly to appropriate specialised services, and the difficulties that might be inherent when those services are not available for very obvious reasons—because of their very specialised nature—at primary or even local secondary care level.
I have to say to the House that some of the anxieties mentioned spring from the very unfortunate experiences around extra-contractual referrals to which the noble Lord, Lord Clement-Jones, referred. I believe that the new arrangements actually provide a great deal more reassurance to patients in terms of how they can be referred, and to doctors about their clinical freedom to refer. I will deal with those matters in a moment.
I hope I shall be able to reassure the House that the amendment is unnecessary in terms of the need to give extra powers to the Secretary of State. Also and, I believe, more importantly, I want to assure your Lordships that we are taking appropriate action to see that specialised commissioning is available for out-of-area treatment, with the freedom to refer in order to ensure high quality services for patients. The point about mechanisms was made by the noble Lords, Lord Patel and Lord Clement-Jones. I will say a little more about the changes that we have already put in place and I hope to be able to give assurances about further steps in a moment.
One thing is very clear: there is still uncertainty as to the nature of the new arrangements we are introducing and how they will work in practice, together with the need for better communication. As well as the debates in your Lordships' House, ministerial colleagues and I have had the opportunity to hear directly the views of patient groups and, most recently, there was a very constructive meeting between my right honourable friend the Minister of Health and representatives of the Carers National Association and the Patients Forum last week.
Important issues were raised in the House and elsewhere, and I should like to respond to them. However, returning to the technicalities of this particular amendment, I should explain why it remains the Government's clear view that the amendments introduced by your Lordships' House on Third Reading, for which the noble Baroness has again argued today, are not necessary; nor are they the right way forward.
Those amendments amplify the wording of the general powers of direction and the duty of co-operation between NHS bodies to specify that they apply in particular to arrangements for referrals for specialised treatment. The key point is that the Secretary of State's general powers of direction, as originally set out in Clause 10 of the Bill, and the duty of co-operation between NHS bodies in Clause 23 are both wide enough to contain the arrangements needed for commissioning specialist services and for the so-called "out-of-area" treatments. Indeed, it is precisely because the Government attach such importance to partnership working between NHS bodies to ensure that all service 444 are properly responsive to patients' needs that we have for the first time introduced the statutory duty of co-operation.
I can confirm that nothing further is needed on the face of the Bill to ensure that those provisions are indeed as wide as the noble Baroness intends them to be. Again, I should like to confirm, as has been pointed out in the notes dealing with the amendments, that nothing in the Bill restricts a GP's freedom of referral or stands in the way of commissioning services from whatever centre may be appropriate. I want to make that quite clear for the record.
I am also happy to give the commitment that, should it prove necessary, the Government would not hesitate to use the powers of direction and ensure that the duty of co-operation is complied with in order to ensure that arrangements in this area work as intended. The noble Baroness, Lady Carnegy, asked precisely what those powers were. The Secretary of State is able, under Clause 10(17) of the 1977 Act, as amended, to direct all NHS bodies—health authorities, SHAs, PCTs and NHS trusts—about their exercise of any functions. So this is comprehensive; it covers commissioning and funding arrangements should it be necessary to make directions on those. Therefore we believe that it is comprehensive enough.
We believe that reinstating the wording proposed by the noble Baroness would in practice add nothing to what the Bill already allows. The noble Lord, Lord Renton, to whom the whole House listens with great respect in these matters, suggested that it would remove doubt. I have to say to him that I do not believe there is doubt to remove, because of the breadth of the Secretary of State's general powers of direction. I believe in fact that it would create doubt in another area. That is because there is a danger that by introducing provisions regarding particular applications of a general power or duty—such as those in Clauses 10 and 23—we risk the unfortunate, and I am sure, absolutely unintended consequence of it being construed as limiting the scope of these general provisions.
I remind the House of a few of the other important purposes for which the powers may be used. For example, Clause 10 would enable the Secretary of State to issue directions, if necessary, to ensure an NHS body followed through speedily on the recommendations of the commission for health improvement. Clause 23 would cover local NHS bodies working together on the agreed priorities for local health improvement.
We must not run the risk of limiting the scope of the powers of direction and the duty of co-operation in respect of all matters that will advance patient care, given their intended breadth. This Motion is not the way forward. The noble Lord, Lord Renton, rightly said that it was important to get the legal framework right. But in this area it is essential to get more than the legal framework right. We must have the resources in place and smooth arrangements operating. We must ensure equal access for patients and remove some of the existing inequalities. That will entail a huge and comprehensive programme of work which we have already begun to undertake. For example, in the area of 445 mental health, to which the noble Baroness, Lady Masham, referred, the national service framework will be the way forward in ensuring that there is greater consistency and better access to services for patients across the board.
My Lords, I thank the noble Baroness for giving way. That is a very important point and I am anxious to help to make it clear. A difficulty arises under Clause 10 which states,The Secretary of State may",I underline the word "may",give directions to any of the bodies mentioned in subsection (2) below about their exercise of any functions".The authorities are then set out. But subsection (3), which the Government propose to leave out, says,The power conferred by subsection (I) shall be exercised so as to enable patients resident in an area, covered by a body referred to in that subsection to be referred out of their area"."May" and "shall" are the operative words. It is the mere existence of "may" which raises a doubt, and the existence of "shall" which removes that doubt. That is what we must be careful about.
§ Baroness Hayman
My Lords, I understand absolutely the point to which the noble Lord refers. There is an issue in the drafting of legislation in these areas regarding putting "shall" into legislation where it may not be necessary for the Secretary of State to use the powers of direction. I hope that the noble Lord will accept from me that the power of direction means that the Secretary of State is able to follow through if necessary. I have today made a commitment that, should it prove necessary, the Government will not hesitate to use the powers of direction and ensure that the duty of co-operation is complied with in order to make sure that the arrangements work as intended.
Perhaps I may turn to the action we propose to take. I hope to reassure the House of the importance we attach to trying to improve the situation. Action continues on the specialised commissioning arrangements. National priorities for attention have been identified for attention in 1999–2000. We have already issued guidance on the commissioning of cleft lip and palate services. Guidance on medium and high secure psychiatric services will follow shortly. The two national service frameworks on coronary heart disease and mental health will include guidance on commissioning specialist services in those fields. So the rolling programme is under way as we promised.
At the same time, a process of peer review is under way across regions to ensure consistency of approach and to share best practice. My noble friend Lord Ashley spoke powerfully from his personal experience about arrangements for the provision of cochlear implants. He argued that they should be specifically included in the list of specialised services that had been issued in previous guidance. I should explain that this list is a working brief for the NHS Executive regional offices to use in reviewing current service arrangements over time. It has been deliberately framed so as to contain a 446 measure of detail where necessary, but also to retain sufficient flexibility to be used in differing regional or local circumstances.
I hope that my noble friend will be reassured to know that the list is not set in stone. It will be refined as it is used, in discussion with the NHS. In the light of today's debate, I shall draw the attention of my ministerial colleagues to the importance which my noble friend attaches to this issue although I do not think that they are in any doubt as to that already. I shall ask my colleagues to ensure that the issue of cochlear implants is carefully considered as the list is developed. I say to my noble friend that we would expect an area which identified a particular problem over access to cochlear implants, or indeed to any other service, to follow that up, whether or not the service was on the list as a specialised service. I know that he is concerned about the number of implants that are taking place, particularly among people in middle years. Our figures show that the number of operations for cochlear implants in children under four and people over 75 has increased, but I accept absolutely the importance of keeping the figures under review so that the appropriate services for patients who would benefit from cochlear implants remain in place.
The noble Lord, Lord Renton, referred to the importance of getting the legal framework right. I accept that. But the issue raised by my noble friend Lord Ashley concerned an annexe to a circular which was issued before the Bill was introduced and which is still in force now. That reflects the need to get the arrangements right. The remedy to that does not necessarily lie on the face of this particular Bill.
Debates in this House and elsewhere have confirmed the need for better understanding of the new arrangements for out-of-area treatments. I am glad to say that since we last debated those issues in this House the department has issued further guidance on the arrangements under the cover of HSC99 171. Copies are in the Library. Regional offices of the NHS Executive continue to keep the arrangements under close review to ensure that any problems which emerge can be nipped in the bud.
The guidance also draws attention to the need for new or developing services to be identified and explicitly planned for. That point was made by my noble friend Lord Ashley and I think that the noble Lord, Lord Patel, would also welcome that provision. However, management guidance alone is not enough. We acknowledge the need to do more to ensure that local clinicians, patient groups and others understand and have confidence in all aspects of the new arrangements. Therefore, the department will be exploring with patient groups, managers and clinicians what sort of information will be helpful and how it can best be made available. It is especially important that those who depend on specialised services, whether for treatment for life-threatening conditions or for rare continuing illnesses, have confidence in the new arrangements. That is why I wish to confirm today that the Government welcome and accept the proposal that has come forward from user and carer groups in particular that we should arrange for annual reports to be 447 published locally on the new regional specialised commissioning arrangements. We shall want those reports to explain which services are being commissioned through collective arrangements; to outline possible priorities for future in-depth review; and in due course to report on the operations already in place.
§ Baroness Masham of Ilton
My Lords, before the Minister leaves that point, will she say whether there will be a right to appeal for patients if they are not sent to the appropriate place of treatment?
§ Baroness Hayman
My Lords, perhaps I may deal with that issue in a moment. The way in which the right of appeal is defined and implemented in terms of clinical judgments about what is an appropriate referral is a difficult issue. However, we want the new regional reports to cover the interface between specialised commissioning arrangements and the arrangements for ad hoc, out-of-area treatment. In that respect, patients could consider that they fall between two stools.
The report will identify, for example, where an increase in the number of ad hoc referrals suggests the need to move to a planned long-term service agreement within the specialised commissioning arrangements. This will enable all concerned to reach clear understandings about the pace at which the service will develop and the types of case that it will treat.
Each annual report will of course be available to health authorities, primary care groups and trusts, NHS trusts and patient groups in the region concerned. But, recognising the interest in your Lordships' House, I can confirm that we shall ensure that a full set of these regional reports is available in the Library. The year 1999–2000 is the first for the development of the new arrangements and we therefore anticipate the first reports being available next summer.
It will also be important to take stock of national lessons emerging from these regional arrangements and ensure that good practice is shared; and we wish to ensure that the interface between the national and regional commissioning arrangements is working smoothly. The National Specialised Commissioning Advisory Group, which deals nationally with some of the most specialised services of all—for example, specialised psychiatric services for the deaf—already produces an annual report. We believe that the right way forward is likely to be to ask this group to extend its annual report to cover national lessons emerging from the regional arrangements so that there is a comprehensive and readily accessible account available. Again, copies will be placed in the Library.
Finally, I should like to reaffirm the importance we attach to ensuring that the users of these services are involved in the development of the new arrangements and have confidence in them.
Our debates have highlighted the need to look at strengthening user and carer involvement, not just in local commissioning arrangements, but in the new regional arrangements and indeed in the arrangements for the National Specialised Commissioning Advisory 448 Group. In the light of our debates, I shall want the department to explore with patient groups and the NHS how best to secure greater user and carer input into the new arrangements; for example, through involvement in service reviews.
I return to the issue of a patient being unhappy with the decision not to refer. Of course, all patients can discuss with their GP a decision not to refer where the GP considers it clinically appropriate. If a patient is not happy, the GP can arrange a second opinion and the GMC guidance is very clear that it is good professional practice to arrange for that second opinion if the patient asks. However, in response to the issue raised by the noble Earl, Lord Howe, the principle that GPs have the clinical freedom to refer in the best interests of their patients remains. There is now greater scope than ever before for PCGs to align the available resources with those GP judgments. They are now involved explicitly through their PCGs in discussions about priorities and cost effectiveness to ensure that they achieve the best for their patients with the total resources available.
The basic principle for all the new commissioning arrangements is to promote the development of services that best match the needs of patients as identified by their GPs. As regards referrals where, for other reasons, patients are not met by the PCGs' service agreements, general practitioners can use the out-of-area treatment mechanism. Unlike the previous arrangements. there is no formal prior approval mechanism for out-of-area treatments, so we have a simplification of the situation rather than making it more difficult. There is nothing to stop a PCG, for example, making a service agreement to refer patients outside their own areas where that makes sense.
The noble Earl, Lord Howe, asked about the funding arrangements. They are designed to ensure that the issues are resolved while ensuring that patients receive the treatment they need. Clearly, it is key that over-performance within service agreements for more specialised services should not prejudice the delivery of more routine and locally based services. In managing their portfolio agreements, NHS trusts, health authorities and PCGs should ensure that that does not happen. Additional work is in hand in some areas to develop risk pools to which health authorities and PCGs will contribute to help manage in-year fluctuations under the OAT arrangements. Clinical units under short-term pressure could have access to cash brokerage in the usual way. That helps trusts both with their financial management and in imposing a measure of financial discipline as regards commissioners. The guidance we are issuing on those will encourage such pooling developments.
If there were a significant increase in referrals, the units concerned would need to explore with the referring PCG whether this trend was likely to continue In that case, it would be better handled through a planned service agreement using the usual specialised arrangements if appropriate rather than continued use of out-of-area treatment and having to deal with the financial consequences.
449 In our earlier debates, including our debate at Third Reading when the House voted through amendments moved eloquently then, as again today, by the noble Baroness, Lady Masham, my sense was that the House wished to register the importance it attached to ensuring proper access to high quality specialised services for those who need them. That, rather than the specific terms of the amendments, formed the substance of our debate. Perhaps I may repeat that the Government share the views of the House and that the arrangements we will put in place are designed to achieve that end. I cannot pretend that they will be achieved overnight because we start from a position in which there is unequal access to some services.
I believe that the right response to the view your Lordships have expressed so strongly today is not to be found in fine-tuning the drafting of the Bill. I have explained that it already contains the necessary powers and duties and that there are no legal obstacles to referrals to specialist centres. I believe that in legislative terms there are dangers in leaving the Bill as it is and not agreeing with another place in their amendments. I believe that the right way forward is to ensure that the new arrangements fulfil their potential and that they command the confidence of the patients who depend on these services and the clinicians who provide them.
I pay tribute to the noble Baroness, Lady Masham, for the way in which she has kept our attention focused on these important matters as the Bill has proceeded. I believe that together the developments I have described represent a serious and constructive response to the debates we have held. I hope that the House will understand why the Government do not consider that the amendments passed in your Lordships' House at Third Reading offer the right way forward. But I hope that the noble Baroness and other noble Lords who have spoken, and those who have listened, will accept that the Government have listened and responded and that we intend to continue to listen and respond to the views of patients and clinicians as the arrangements develop further and that the commissioning of specialised services will be better as a result.
§ Baroness Masham of Ilton
My Lords, I thank all noble Lords who have supported the Motion and I thank the Minister for her full answer. However, I am concerned because often the tertiary referrals are from hospital to hospital and the GP is not even involved. I hope that that aspect is included.
We have had a useful debate. It was well worthwhile tabling the Motion because we have prised more information out of the Government. We will keep watching carefully, as will the bodies outside your Lordships' House and another place. I know that Members of Parliament are under pressure from their constituents over this matter.
It would not be right to divide the House on this issue. We have been able to put our views forward and to say how strongly we feel over this matter. We will go on feeling strongly. With that, I beg leave to withdraw the Motion.
§ Motion, by leave, withdrawn.
§ Baroness Hayman
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 18.
§ Moved, That the House do agree with the Commons in their Amendment No. 18.—[Baroness Hayman.]
§ On Question, Motion agreed to.