§ Consideration of amendments on Report resumed on Clause 6.
§ Lord Hunt of Kings Heath moved Amendment No. 18:
§ Page 6, leave out line 38 and insert— ("amount, by an amount not exceeding that sum". ")
§ The noble Lord said: My Lords, I wish to speak to a rather large group of amendments. However, I can assure the House that I shall be brief.
§ The amendments repair some typing and drafting errors which managed to creep into the Bill and were not spotted prior to its introduction. I beg to move.
§ On Question, amendment agreed to.
§ Lord Hunt of Kings Heath moved Amendment No. 19:
§
After Clause 6, insert the following new clause—
Indemnity cover for Part II services (". —(1)
Before section 44 of the 1977 Act there is inserted—
549
"Indemnity cover
Indemnity cover.
43C. —
is to be treated as holding approved indemnity cover for the purposes of the regulations. "
§ The noble Lord said: My Lords, I suspect that this amendment will take a little longer. The amendment makes an important contribution to help patients on the fortunately rare occasions when something goes wrong. It will ensure that GPs, dentists, pharmacists and optometrists practising in the family health services are able to meet any damages that might be awarded against them in cases of death or personal injury caused to their patients.
§ At the moment neither doctors nor dentists are required legally to maintain professional indemnity cover. Although those employed in the NHS, for example in an NHS trust, are covered by NHS indemnity for general medical practitioners and high street dentists, we rely on the guidance of the regulatory bodies and the professional organisations. We consider that to be unsatisfactory.
§ In September 1996 there was considerable interest in a case which involved a dentist in Lancashire who was continuing to practise without professional indemnity. A patient who suffered at his hands began legal proceedings to prove negligence, but at the assessment hearing the judge established that the dentist was not in benefit of professional indemnity cover at the material time. Since he had no assets, he was unable to meet the £23, 000 damages awarded; and unfortunately there have been other similar cases. To suffer harm as a result of a visit to your doctor or dentist is bad enough; to then find that you are unable to receive the compensation you deserve is of great concern. I believe that in the interests of patients clinicians should not practise on the NHS without proper professional indemnity cover.
§ This amendment would allow the Secretary of State to require Part II family health service practitioners— those are the professions providing general medical services, general dental services, general ophthalmic services, or pharmaceutical services—to hold indemnity cover. I should say that the vast majority of those practitioners already act responsibly by arranging suitable indemnity cover for their work. By covering all, this amendment seeks to address the small minority who are not so responsible.
§ The Secretary of State would be able to enforce the requirement in either or both of two ways. Regulations could specify that having approved indemnity cover is a requirement to joining a health authority list for a Part II service. Noble Lords will be aware that practitioners must be on such a list in order to provide those services on the NHS. This requirement would also specify that practitioners on the list must hold approved indemnity in order to remain on the list.
§ The second way the requirement could be made is that the regulations under this amendment could allow the Secretary of State to specify that the holding of 551 approved indemnity cover be set out in the terms of service for any or all of the Part II services. This would mean that, if approved cover was not held, the practitioner required to hold it would be subject to the established health authority service disciplinary committees, and ultimately to the NHS tribunal which could strike them from the health authority list in a sufficiently serious case.
§ The two approaches allow flexibility. The four different family health services are different from each other and also different in their relationships with the health authority under the 1977 Act. Both approaches give proper protection to patients, but would allow the Secretary of State to apply the appropriate mechanism to the circumstances.
§ The amendment states that the indemnity cover which must be held is to be approved indemnity cover. This is to ensure that cover is adequate to meet the anticipated level of claims and remains contemporaneous with the event giving rise to the claim. For example, we might want to ensure that adequate cover remained in place after a practitioner had ceased clinical practice to meet a claim should an adverse event come to light some years later. Approval would be given by the Secretary of State, although this could be delegated to, for example, a small representative group of interested parties set up under the regulations to carry out this function on behalf of the Secretary of State. In the interests of probity such a group would of course exclude any potential providers of indemnity cover. In forming decisions on approval of indemnity, we envisage there being consultation with the provider bodies concerned.
§ To provide full protection for patients, the amendment provides for the approved practitioners to hold indemnity cover which covers not just themselves—the practitioners on the health authority's list—but which also provides indemnity against claims for their assistants, deputies, employees and for any auxiliary whose work they may direct. We will also be able to ensure that health authorities review the indemnity cover held by Part II practitioners at regular intervals. Where the requirement was that indemnity must be held to remain on the health authority list, the result of failure to comply would mean removal from the list, subject to a short period of grace allowing practitioners time to put their house in order. The length of that period of grace could be specified in the regulations. As I said a moment ago, staff employed by NHS bodies, when providing services under the NHS, are covered by the present NHS indemnity scheme. The amendment does not alter or interfere with those arrangements.
§ We have consulted widely on these proposals among patient groups, professional bodies, and with the providers of indemnity cover. I am pleased to say that our proposals have been supported. This amendment will enable patients to be protected, and properly compensated on those rare occasions when something goes wrong. Where a patient is deserving of compensation, we believe that they should be able to receive it. I commend this amendment to the House. I beg to move.
552§ 8.45 p. m.
§ Lord Clement-JonesMy Lords, I thank the Minister for that very clear introduction to this amendment. In principle, we firmly support the terms of the amendment. It is clearly crucial that the practitioner is covered "at the material time"—the phrase used by the Minister in his introduction—because otherwise great unfairness and injustice ensues if, having had the trauma of an injury or a failure of treatment, the patient is subsequently unable to obtain compensation in the way described by the Minister.
The vast majority of Part II practitioners do hold indemnity insurance but it is important that there is this safety net. In some ways it is highly surprising that we have not had this on the statute book before. Speaking as a solicitor, I have to hold indemnity insurance and that is true also for other professions.
It would be helpful if the Minister could deal with some points of clarification. The definition of approved indemnity cover includes cover made on prescribed terms. The Minister referred to a body which might be delegated to discuss this question. Is the Secretary of State expecting to lay down requirements which would mean GPs having to increase or to change their current level of cover? Is that in prospect or is this simply a mechanism for future change? It would be important that the consultations described by the Minister included no change to the regime currently practised by those practitioners who do have insurance.
Secondly, will there be different levels of cover for different types of practitioners? It is difficult to give a blanket definition of the level of cover that GPs in particular may need. Some of them provide only core general medical services, while others will be undertaking obstetric or child surveillance work, for instance, both of which would cover much greater liability risks. Flexibility in that prescription, so to speak, would be important.
The amendment relates only to Part II practitioners. That of course is the vast majority of practitioners, dentists and so on who provide those services. But why does it relate only to them? For instance, there are GPs working in pilot schemes who are Part I practitioners. It would be important to make sure that they too were covered by this type of indemnity insurance.
I have referred throughout to the phrase "indemnity insurance". There is the feeling, particularly among members of the medical profession, that their type of cover is not described as indemnity insurance. The kind of mutual cover which is provided by their medical defence organisations technically is described as something else: it is membership rather than indemnity insurance. That may be a technical phrase. I do not know whether it has some significance, but perhaps the Minister will be able to answer that.
§ Baroness Gardner of ParkesMy Lords, as I understand it this indemnity is just for professional negligence or failure to treat the patient correctly. It in no way indemnifies the general practitioners who will be left with all these debts after 1st April. I had a dinner-time conversation with a practitioner from 553 Slough who is very disturbed at Berkshire Health Authority pushing all the debts on to the GPs' budget on 1 st April.
When I first arrived in the UK and wanted to register as a dentist, the first thing I was told I must do was to join one of the protection societies—either the Medical Protection Society or the Medical Defence Union. Towards the end of my time in practice those bodies changed and, under one of the Finance Acts, had to become insurers. Their status changed, and unfortunately the premiums went up a great deal. As I understand it, they then became insurers in the same way as any other insurer. What control do the Government have over what such bodies charge practitioners? There has been a great increase in the cost of "membership", but it is indemnity insurance. We hear that in the United States, the indemnity cover of obstetricians is exceptionally high. In this country, certain practices may become high risk and insurers may ask more from them. Will the Government decide what the limits should be and how the system should be operated?
The Minister answered that everyone in a practice would be covered. Does that mean that no one practitioner in a GP group will be responsible for himself? Is it to be a joint practice insurance which will be taken out by individuals and will cover the people working for them? Can the Minister clarify that the care assistants, physiotherapists, counsellors and so forth who GPs are concerned about losing, will also be covered by the practitioners' insurance? I support the general principle of the amendment.
§ Lord ColwynMy Lords, I, too, support the amendment. I must declare several interests: I am a dentist; I have indemnity cover; and I am a council member of the Medical Protection Society. I hate to answer on behalf of the Minister, but I can assure the noble Lord, Lord Clement-Jones, that there are different levels of indemnity for different risks in medicine and dentistry. My noble friend Lady Gardner does not have insurance, but is a member of a society which provides indemnity. It is not an insurance; one is a member of a society which takes care of its members if anything goes wrong.
The introduction of compulsory indemnity cover for doctors and dentists, providing NHS general practitioner services, is long overdue. It is an essential element in the protection of patients. Although the overwhelming majority of GPs subscribe to a medical protection organisation, the irresponsible few who do not must be made to comply. The definition of "approved indemnity cover"' in the amendment is cast in broad terms. I venture to suggest that in order to maximise patients' protection, requirements should specify the need for occurrence-based indemnity cover, which I mentioned on Second Reading. Occurrence-based cover simply means that the doctor or dentist will be indemnified provided that he or she was in benefit at the time of the incident giving rise to the claim, no matter when the claim materialises. That may of course be years after the events in question.
554 In medical cases, a claim usually occurs between three and five years after the event and in dentistry one or two years later. This cover should be compared with the usual insurance claims-made model in which both the events and claim must take place within the insurance period. Indemnity cover on a claims-made basis can, through administrative oversight or simple misunderstanding of the principle, result in patients being denied the compensation they deserve. At least one other country, Israel, is contemplating introducing a requirement for occurrence-based indemnity cover. I hope that the Minister and her advisers might consider a form of words which specified a type of cover. The mutual societies are occurrence-based, but if cover is provided by an insurance company, it is important to ensure that indemnity includes claims which have not yet been reported or claims which can arise when, for example, a GP has retired and is no longer paying a premium. I support the amendment.
§ Baroness Masham of IltonMy Lords, what is the time in which patients or their relatives have to make a claim and who will adjudicate?
§ Baroness Carnegy of LourMy Lords, the noble Lord, Lord Clement-Jones, covered all the points about which the British Medical Association wrote to me, so I will not reiterate them. However, I wish to ask the Minister a narrow question. Have the Government taken into account those who are not employees of the National Health Service or the universities, but who by virtue of their medical schools have employees working within the health service?
I ask that question because when I was asked by the local health authority and university to be chairman of the medical research ethics committee, I was tipped the wink by a friend to ask whether I would be indemnified if the ethics committee should make a decision which ultimately resulted in liability for damages. I made the inquiry and discovered that I would not be indemnified, nor would the other lay members of the committee. Therefore, I asked to receive assurance in writing that it would be the case and I did so. However, had I not been tipped the wink I would have run considerable risk during the four years of tenure. Can the Minister reassure us that people who are not employed by the National Health Service or by a university are indemnified?
§ Lord NunburnholmeMy Lords, will the Minister answer the question posed by the noble Baroness, Lady Masham?
§ Lord BlackwellMy Lords, it is difficult to disagree with the principle of the amendment, but I worry about the risk of escalating costs. If indemnity insurance is known to be available on these terms, that may encourage the escalation of the compensation paid. One then fears that such an escalation will lead to higher 555 insurance premiums. Have the Government considered whether in making indemnity insurance compulsory they can prevent the escalation of large claims?
§ Lord Hunt of Kings HeathMy Lords, this has been an interesting debate. I will endeavour to answer all the questions that have been asked, but if not I shall write to noble Lords.
The noble Baroness, Lady Masham, asked how long patients have in which to make a claim. I understand that, generally, one has three years in which to make a claim for personal injury, but that can be extended in cases where the injury comes to light only at a later date. Then it would be three years from the time the injury became apparent.
A number of noble Lords asked about the potential liability outwith those employed in the NHS. The professional regulatory bodies— for example, the General Medical Council and the General Dental Practitioners Association— currently recommend that all practitioners should hold professional indemnity cover. If holding such cover were to be made mandatory for all dentists, the route to achieving that would not be through NHS legislation but through legislation concerning the dental profession. If the regulatory bodies concerned wish to take such a step, the order-making power under Clause 47 of the Bill would enable such provision to be made.
A number of questions were asked about funding. First, the charges made for indemnity cover are for market forces, but the number of practitioners who do not have indemnity cover is very small. Therefore, the additional cost to the NHS of that provision should be negligible. It is worth making the point that the cost of that cover falls to the NHS and not the practitioners personally. The cost of indemnity cover is a legitimate practitioner expense and so would fall to be reimbursed within the overall contract arrangements for GPs and dentists, as the existing arrangements made by the great majority already are. We believe that the cost will be marginal and certainly worth paying.
Perhaps I may deal with the point raised by the noble Baroness, Lady Gardner. To provide full protection for patients, the amendment provides for approved practitioners to hold indemnity cover which covers not just themselves— that is, the practitioners on the health authority list— but also claims made in relation to their assistants, deputies, employees and any auxiliary whose work they may direct.
The noble Lord, Lord Clement-Jones, raised the issue of primary care Act pilots. Those are covered by the National Health Service (Primary Care) Act 1997 and I can confirm that they are a Part I service. Health authorities are required by the direction of my right honourable friend the Secretary of State to contract only with providers who undertake to ensure that all their performers have indemnity against claims for negligence.
In dealing with the issue raised by the noble Lord, Lord Colwyn, perhaps I may refer to the issue of occurrence-based cover, which is a term used by
556 providers of cover to indicate that they will still meet claims which arise from events when the clinician was covered that only came to light later, perhaps after the period of cover has ceased. Other forms of cover could be claim-based, whereby the claim must be made during the period of cover. Under the amendment, regulations would allow the Secretary of State to specify the type of indemnity cover which would be approved.
§ 9 p. m.
§ Baroness Carnegy of LourMy Lords, the Minister has not answered my question about people who are not employed by the health service or the universities and who are lay members. That may be, as in the example I gave, members of ethics committees and other bodies connected with the health service.
§ Lord Clement-JonesMy Lords, will there be different levels of cover for different types of practitioner?
§ Lord Hunt of Kings HeathMy Lords, the intention is to be flexible in the arrangements to reflect the situation as it is on the ground.
I should prefer to write to the noble Baroness, Lady Carnegy, on the matter which she raised.
§ Lord ColwynMy Lords, before the noble Lord sits down, I believe that I heard him say that the indemnity of dental surgeons is paid for by the NHS. I believe that he will find that all general practitioners have to pay their own indemnity, whether they are working for one day or five days per week. It is not paid for by the NHS. It may well be covered indirectly by the fee structure, but they have to pay their own indemnity, whether they work for the NHS or privately.
§ Baroness Gardner of ParkesMy Lords, in answer to the noble Lord, Lord Clement-Jones, the Minister said that there would be flexibility. Is he suggesting that there may be a possibility of a no-claims bonus?
§ Lord Hunt of Kings HeathMy Lords, no. I was not suggesting that. The arrangements which are brought into play will need to reflect the points which the noble Lord made about the differing circumstances. I commend the amendment to the House.
§ On Question, amendment agreed to.
§ Clause 7 [Directions]:
§ Baroness Masham of Ilton moved Amendment No. 20:
§
Page 7, line 17, at end insert—
("( ) The power conferred by subsection (1) 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 that area where appropriate for the purpose of receiving specialist hospital treatment and after-care. ").
§ The noble Baroness said: My Lords, I apologise to the Committee for not being present throughout the Committee stage of the Bill. The reason is that my noble kinsman, my husband, was not well and with the very 557 serious medical conditions he has, I did not have carers who were adequately trained to deal with the situation. Therefore, I had to go back to Yorkshire.
§ That is the reason I now bring to your Lordships on Report what I consider to be most important amendments. Amendment No. 20 deals with the general powers of the Secretary of State to issue directions to NHS bodies. The intention of the amendment is to require the Secretary of State to issue directions to achieve out-of-area treatments where appropriate.
§ Amendment No. 48 provides that the duty of co-operation should extend to OATs, making sure that they are covered in the Bill. People are often suspicious of change. We have before us a Bill which deals with the new National Health Service. It has many changes within it. The National Health Service is something from which every family in the country benefits at some time in their lives.
§ I have had my life saved by the expertise provided at a centre of excellence which dealt with spinal injuries. I was transferred from an accident and emergency department of a general hospital to a spinal unit attached to a general hospital out of the area in which I was living. Because of that, I declare a personal interest in these amendments.
§ I founded the Spinal Injuries Association and I can tell your Lordships from first-hand experience that I have seen some terrible cases of patients who have not been transferred to a spinal unit and have been treated in a general ward of a general hospital. After many months, some of them have at last been transferred, looking like a person from Belsen—emaciated, with sepsis, pressure sores, urinary infections, contractions of the limbs and suffering from depression.
§ There are many supra-regional specialties which these amendments would cover such as those dealing with liver disease, cancers, HIV/AIDS, skin diseases, head and spinal injuries, special eye surgery and complicated fertility problems, to mention but a few. It is cost-effective for patients to receive correct treatment from experts who know what they are doing.
§ Nobody seems to know exactly who will be responsible for OATs. Will it be health authorities, primary care trusts or NHS trusts? Many doctors and patients do not trust those trusts. The Minister, the noble Baroness, Lady Hayman, has worked for the NHS as a hospital trust chairperson. The Minister knows how important it is for an individual patient to receive the correct treatment. My amendment refers to patients to be transferred only where appropriate.
§ Last Friday I had a most interesting visit to the vascular unit of St James's Hospital in Leeds. The expertise of the doctors and nurses at that specialising unit was excellent. The benefit to the patients was obvious. Very difficult conditions were being treated and the patients felt confident. The expert advice given to patients makes all the difference to them and their families. The benefit to teaching and research was also obvious. We live in a fast-developing technological age. Expensive medical equipment cannot be made available in every hospital. It is from such specialised units that the patients, universities and students can benefit.
558§ We must keep up with the advancement of medical expertise. We must keep up the morale of staff and patients. These amendments will help to recognise the wonderful work of the experts. I hope that the Government and your Lordships will accept them. 1 beg to move.
§ Lord McColl of DulwichMy Lords, I rise to support the two amendments. I cannot imagine for one moment that the Government will not support them. As noble Lords will be aware, it is not just the medical personnel at the specialist centres who make the difference; it is the whole team, including the nurses, the physiotherapists and the much-maligned management. The whole atmosphere of such places is geared to providing a superb service. Of course, they treat a sufficient number of these injuries to be expert in them. If a clinician has only one such case a year at his hospital, there is no way that he can acquire the expertise that obtains in the specialist hospitals.
There are also many other problems, perhaps less acute, which nevertheless are so rare and difficult to treat that they need to be concentrated in a specialist unit. Everyone in London used to send cases of a tumour, chorionepifhelioma—cancer of the womb>—to the Charing Cross Hospital because the best person worked there. Ewing's tumour of bone is another rarity and such cases tend to congregate in the Middlesex Hospital where again there is the expertise.
It is essential that that practice is allowed to continue and is encouraged under the new arrangements. We believe that it is important to have a provision on the face of the Bill so that there is absolutely no doubt that the arrangements can operate when required.
§ Lord Clement-JonesMy Lords, I rise to support strongly the amendment in the name of the noble Baroness, Lady Masham. She brings a particular understanding and expertise to this area. She has cogently put the case for this provision to be cm the face of the Bill.
We have had a discussion already in Committee on the question of out-of-area treatments and the way in which extra-contractual referrals move towards OATs. If we genuinely are to have a situation where referrals can continue to be made to specialist hospitals, that is a test as to whether or not the internal market is being done away with.
In her previous replies—if I did not misunderstand her—the Minister made it fairly clear that, although generally the commissioning contracts of P'CTs and PCGs were to cover tertiary care and specialist care, where it was necessary and where it was in the. patient's interest and at no cost to the PCT or the PCG, such a referral would take place. It is important that we have absolute confirmation of that as that is precisely the kind of treatment that the noble Baroness was talking about in terms not only of spinal injuries but also liver disease, cancer, head injuries, plastic surgery and so on, where tertiary referral will be vital.
We hope that the Government will support the spirit of the amendment, if not necessarily the precise wording. It is a litmus test. It is extremely important that 559 the new system of commissioning does not confine GPs to taking services only from within their own area. It is vital that patients have full access to expertise of the highest order outside their particular area.
Lord RentonMy Lords, I apologise to the noble Baroness, Lady Masham. I did not hear the first two minutes of her speech but I have managed to pick up the threads. I am interested in this matter because I speak from personal experience. What is aimed at in these two amendments is already in operation in the area of England in which I live. I live five miles from Huntingdon, where there is a general hospital with a certain amount of specialist treatment available.
I now draw on experience within my family. One member of my family had to go to Addenbrooke's Hospital in Cambridge where she needed particular specialist treatment. She was operated on there and received that treatment there, but she could not have had that treatment in Huntingdon. Another member of my family, alas, had to go to a specialist unit in a hospital in Peterborough. Out-of-area treatments already take place. Under the new arrangements which the Government have in mind, I hope that that flexibility will be maintained.
§ 9.15 p. m.
§ Lord WinstonMy Lords, this is a matter about which I feel absolutely passionately and on which I have spoken in your Lordships' House in the past. Sadly, I fear that the noble Lord, Lord Renton, is not entirely correct when he says that this practice invariably goes on. It does not. It happens in some areas of the country but not, unfortunately and regrettably, in all areas.
There is growing concern, especially in the teaching and specialised hospitals, that there is an increasing problem with the reorganisation of the health service. Although I do not want to talk about different governments and their different reforms, I do think that this started in some way with the internal market and it is still causing increasing nervousness. Many specialists have seen a falling off in out-of-area transfers. I am sorry to return to reproductive services, but my hospital in Hammersmith has seen an astonishing fall in referral practice, so much so that we now have empty operating theatres, fully staffed, waiting for patients who are not there. I was talking this week to the director of leukaemia services there and he has found similarly that patients are now not so easily able to attend his expert unit for leukaemia treatment because they are not being referred.
I believe that that is completely counter-productive to the health service. First, it reduces the research base. When I first used to lecture in the United States about what we were doing at Hammersmith Hospital, the Americans were amazed at the wealth of clinical material which an individual clinician could build up. Whereas we were building up literally thousands of cases, American doctors would see tens or perhaps hundreds of cases. We were able to do that because of 560 the remarkable pattern of referral across the nation inside the National Health Service.
Secondly, out-of-area transfers present great benefits in terms of teaching and training. That in turn allows the dissemination of excellent practice, which is very important for the training of specialists.
Above all, I hope that the Government will recognise that sensible out-of-area transfers can save money. There is no question in my mind but that at the moment we are spending more than we need. In my own area of reproductive medicine, for example, I am convinced that if we sensibly concentrated services in certain areas to which patients could easily travel, there would be a great benefit to the patients, a benefit in terms of training and research, and a saving of money. I feel strongly that there is sense behind the amendment and I hope that the Government will be able to give some kind of assurance—
Lord RentonMy Lords, before the noble Lord sits down, perhaps I may say how grateful I am to him for putting me right. What the noble Lord has said supports the amendment and what I said about what can be done in one particular area also supports the amendment because it shows that such transfers take place elsewhere.
§ Lord WinstonMy Lords, I feel that I hardly need to answer that point.
§ Baroness FookesMy Lords, I feel equally strongly about this. At different times, both my parents benefited from being referred to a specialist service outside the area in which they were living, so I have some personal reason to be grateful for that.
More recently, I intervened, if that is the right word, on behalf of a lady of my acquaintance who I felt needed specialist treatment which she was not receiving in her local area. However, it proved quite difficult. Her GP was not anxious to refer her. She was not the kind of lady who was in a position to make herself felt. That was partly because of the illness from which she had suffered, which was a massive stroke. I tried to make representations to the doctor myself and in the end, very successfully, the case was referred to a specialist unit. That was to her great benefit because after a considerable number of tests something was discovered to be wrong which had not been discovered at the local level.
However, such problems should not arise. I would like an assurance from whoever answers on behalf of the Government tonight that, where a patient is anxious to have treatment out of area, no undue blocks will be placed in his or her way. Indeed, not everyone has someone to speak up for them. If there is to be equality of provision, which this Government set great store by, then it is most important that people should have equal access to the very best specialist treatment that is available.
§ Baroness Sharp of GuildfordMy Lords, I, too, should like to express my support for the amendment. 561 In my own district health authority, which is struggling at present with a large deficit, there is considerable pressure to limit the number of extra-contractual referrals. Therefore, what the noble Lord, Lord Winston, has said is totally true.
When we discussed another amendment earlier, we talked about the position of research and development in this country. The expertise that we have in our teaching hospitals is amazing. It is ludicrous that we are not making use of such expertise at present. If we are to maintain state-of-the-art capabilities in medicine, it is essential that we maintain the expertise here. We must make use of these out-of-area referrals. Indeed, we have centres of excellence and we must build upon them.
§ Lord SkelmersdaleMy Lords, as someone who might have died had I not had an out-of-area referral, I was horrified by the speech made by the noble Lord, Lord Winston. The idea that specialist units are under employed in the health service when there is so much need out there in the country fills me not only with horror but also with dismay and disquietude. The nub of this debate is to ask the Minister what provision will continue to be made—if necessary, a new provision— to ensure that the description provided by the noble Lord, Lord Winston, will no longer pertain. It is absolutely disgraceful.
§ Baroness BernersMy Lords, I support the amendment moved by the noble Baroness, Lady Masham. I strongly agree with referrals to specialist hospitals. Indeed, it makes very good sense. I hope that the Government feel able to consider the amendment.
§ Baroness Gardner of ParkesMy Lords, I support the principle of being able to refer people to specialist hospitals. That is absolutely right. However, I draw the line when it comes to the speech made by the noble Lord, Lord Winston. For years everyone was referred to hospitals in London. It would be a great pity if there was in any way a feeling that we were making a special plea for people to come back to London. I say that because it has been beneficial for people to have centres of excellence in many different parts of the country. I hope that that will continue. Of course I would be delighted if the noble Lord, Lord Winston, were to have full occupation all the time in his hospital, but not if that disadvantaged some other equally good centre of excellence in another part of the country.
§ Lord WinstonMy Lords, I should point out to the noble Baroness that what I said would apply equally if I were living in Leeds. It is a pure accident that I happen to work at Hammersmith Hospital. Nevertheless, the principle of what I said pertains across the country and it is true in different parts of the country. It is ludicrous to suggest that I am special pleading for London; indeed, I am certainly not.
§ Lord Hunt of Kings HeathMy Lords, the noble Baroness, Lady Masham, has raised a very important matter. I certainly understand the concerns that lie behind her amendments. Indeed, other noble Lords who 562 have spoken in this debate have experienced problems which some specialist units have encountered with the operation of the internal market. I hope that I can convince the House that the arrangements which the Government are now putting in place will meet some of the concerns expressed. Of course, one needs to start by saying that it is absolutely essential that all patients have ready access to specialised treatment and care.
We are committed to promoting fair access both to NHS services generally and in particular to specialised services. In The new NHS White Paper we said explicitly that an aim of our new arrangements for planning and commissioning specialised services was to develop the more systematic approach needed if fair access is to be guaranteed.
It may be helpful if I explain in a little more detail how the new arrangements will work. Each health authority, and increasingly, each primary care group and primary care trust, will be responsible for commissioning services for their population. There is of course nothing to restrict them to commissioning services from hospitals in their own immediate area. Many will have service agreements with hospitals in neighbouring health authorities to reflect established flows of patient referrals, and many more will also enter into agreements with more distant hospitals, for example to reflect patterns of treatment for cardiac or cancer patients.
As regards specialist centres, I make it clear that funding for those services will come through long-term service agreements. The main funding route will be through the specialised commissioning arrangements. NHS Executive regional offices will be responsible for ensuring that health authorities and their primary care groups and primary care trusts come together with the clinical units concerned to agree the future pattern of services. As we said in The new NHS, the intention is to balance the population perspective of health a uthorities, primary care groups and primary care trusts as regards addressing questions of fair access with the need to support clinical units and their staff in developing the most suitable and effective care.
In their health improvement programmes, health authorities and their partners will set specialised commissioning issues alongside their local priorities. They will need, as ever, to form a balanced judgment about areas for development along a number of broad fronts. One of the criticisms of the internal market was that fragmentation of responsibility made it difficult to ensure co-ordinated planning and commissioning of specialised services. The comments of a number of noble Lords in this debate have reflected this problem of fragmentation. The noble Lord, Lord Walton, is not present at the moment, but as he pointed out earlier this evening, in some instances specialist units were uncertain as to the future flow of patients and, consequently, their future funding arrangements. The new specialised commissioning arrangements we are putting into place will offer a much more coherent and purposeful way forward. We are giving regional offices clear responsibility for ensuring proper arrangements are 563 in place, and will require all health authorities and all primary care groups and primary care trusts to participate in that.
Having said that, I cannot, of course, go so far as to say that every specialist centre will receive the funding it would like as a result. I do not think any system in the NHS has, or could, ensure that. There will still be a need for difficult judgments to be made and difficult priorities to be set, but in future there will be a clear and ordered system for ensuring that the concerns that are expressed are properly and collectively addressed by all the partners in a health region or in smaller areas respectively.
To complete the picture, the new arrangements for out-of-area treatments will cover cases which cannot readily be brought within a primary care group or trust's planned service agreements, for example, emergency admissions away from home or a rare case needing specialised treatment. Where a hospital receives referrals of this kind, that pattern will be reflected in the allocation of the health authority which is its main local commissioner. That health authority will build this funding into its own service agreements with the hospital to cover these ad hoc cases. There is no constraint here on the freedom of a GP to refer a patient in such circumstances.
I believe that these arrangements should, between them, meet the concerns of the noble Baroness. I can also confirm that the powers of direction in Clause 7 are wide enough to enable directions to be issued on this point. The scope and duty of partnership in Clause 19 is similarly broad enough to cover these arrangements. As I said in Committee, the co-operation in the commissioning and provision of specialist services is precisely the kind of issue that we see coming within the scope of that duty. In the light of my explanation and assurances I hope that the noble Baroness will consider withdrawing her amendment.
§ 9.30 p. m.
§ Baroness Masham of IItonMy Lords, I wish to thank all the supporters of the amendment. I believe it is necessary to have the out-of-area treatments written on the face of the Bill. It does not matter where they may be—Leeds, London, Liverpool, Glasgow, Belfast, Middlesbrough or anywhere else—but if the specialised services are not written on the face of the Bill, which is, after all, a health service Bill, a strong emphasis is put on primary health care in the Bill, and secondary healthcare—tertiary healthcare—will seem to be forgotten.
I think that I speak for many outside the Chamber who would like our National Health Service to be the best in the world. We cannot be the best in the world unless, as the noble Lord, Lord Winston, said, there is the clinical material necessary to carry out research and to advance in treatments. We live in a fast-advancing world. I shall read very carefully what has been said. I will go back to the supporters of the amendment and we will wait for Third Reading. The Government should 564 take this matter seriously. I consider it to be the most important matter for the advancement of our medical service. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord McColl of Dulwich moved Amendment No. 21:
§
Page 7, line 28, at end insert—
("(4) The Secretary of State may direct NHS Trusts to establish that number of consultant posts recommended centrally in order to deliver a consultant-based service.
(5) In pursuance of subsection (4) the Secretary of State shall establish the appropriate mechanism to ensure that agreement is reached centrally on the relationship between the number of junior staff in training and the number of consultants required. ").
§ The noble Lord said: My Lords, as usual I declare my interest. I have a score of relatives who have been involved in the health service in this country, some of whom are still in training. In addition, I have trained hundreds of members of junior staff in hospitals, many of whom face a fairly bleak future as they seek consultant posts under the current chaotic system. The amendment is designed to help solve what must be one of the most serious manpower crises in the NHS.
§ First, I wish again to draw attention to the fact that there are fewer consultants per head of population in this country than any other western country with the exception of Portugal. Everyone who knows anything about this subject agrees that we desperately need more consultants in order to have a consultant-based service. That is the only way to improve the quality of care, especially as there has recently been such a large reduction in the number of hours worked by the junior staff. Secondly, there are far too many junior staff being trained for the consultant vacancies currently available. Thirdly, what makes this even more unacceptable is that at the end of their training, which takes a total of 20 years, doctors are now being sacked without, of course, redundancy payments. The NHS is a monopoly employer and there is nowhere else for them to go. When one considers the millions of pounds that have been spent on training them and the demoralisation experienced by these sacked trainees, noble Lords will realise that we have a major crisis on our hands.
§ If that scenario is not bad enough, noble Lords will find it difficult to believe that the NHS continues to recruit new, and therefore less experienced, trainees to fill the posts vacated by those who have just been made unemployed. Specific instructions have been given by the Department of Health to the postgraduate deans who are in charge of the employment of these trainees not to renew their contracts but instead to go on recruiting more trainees. I am not complaining; I am offering solutions. One immediate solution to the problem is to stop recruiting more trainees until this totally unacceptable situation has been sorted out.
§ Some senior people in the NHS maintain that we must go on recruiting junior staff to ensure that we have continuing recruitment into each specialty. We have been here before. At the end of the war and at the inception of the NHS, the number of junior staff was doubled in order to provide an opportunity for those returning from the war to specialise in hospital 565 medicine. At the same time, with the inception of the NHS, the retirement age for consultants was raised from 60 to 65. So there was a great increase in junior staff and virtually no vacancies for five years. That created enormous problems. However, the problems were eased by keeping the trainees employed. They were not sacked when they came to the end of their allotted training period, and we never had any problems of recruitment.
§ As the noble Lord, Lord Winston, pointed out, the problems in obstetrics are probably worse at present than in any of the other specialties. Last year, there was a 33 per cent. cut in the number of consultant posts advertised. It has been estimated that at the end of this year there will be 150 fully trained obstetricians without a job and that within two years that figure will double.
§
In an earlier debate I drew attention to the fact that 65 per cent. of all the medical legal cases involve obstetrics and gynaecology. The British Medical Association has pointed out that the confidential inquiry into stillbirths and deaths in infancy and the confidential inquiry into maternal deaths have raised questions about the lack of consultant input into these problem cases. The BMA also points out that both the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives have recommended that a consultant should be on the labour ward throughout the normal working week to supervise care. Several hundred new posts will be needed to reach that standard. But. as I have mentioned, last year there was a 33 per cent. cut in the number of consultant posts advertised. Doctor Ian Bogle, chairman of the BMA Council, said recently:
This is a human tragedy for trained experienced doctors who are being put on the scrap heap in their thirties and for the women and children who are dying because of lack of care".
When one attempts to find out who is responsible for this state of affairs, everyone points an accusing finger at someone else. The postgraduate deans say that it is the NHS Executive; the NHS Executive says that it is up to the NHS trusts; and so it goes on. It must be written on the face of the Bill who is responsible and who should correct this state of affairs. These amendments go some way towards doing that by providing on the face of the Bill that it is the Secretary of State who is responsible.
§ I should emphasise that we are not asking that everyone recruited into training should be given a consultant post. No one has ever suggested that. But clearly, if there are only 50 consultant vacancies a year in a particular specialty, it would be unreasonable to recruit 10 times that number of junior staff every year. There must be a sensible relationship between the number who are trained and the number who are needed. As the president of one of the Royal Colleges said today, the number of trainees should be more closely matched to the number of potential consultant appointments. I beg to move.
§ Lord Clement-JonesMy Lords, I strongly support the spirit of the amendment. The noble Lord, Lord McColl, has cogently described the unsatisfactory situation with regard to workforce planning. We had considerable debate on this issue in Committee. Since 566 then we have had the report from the Health Select Committee, which highlighted the situation in technicolour. I had not realised before I saw that report just what kind of alphabet soup we had in terms of the bodies responsible for workforce planning. We have the MWSAC, the SWAG, the MPC, LMWAGs and REDGs. We have a host of bodies, none of which, on their records so far, seem to be very effective in getting things right in terms of the number of consultants we need or the number of trainees who can go through the pipeline to become consultants.
The Health Select Committee said:
In the longer term we recommend a major review of current planning procedures which should pay particular regard to their rationalisation and eventual replacement by an integrated planning system".What better integrated planning system could there be than placing the responsibility where it belongs, with the Secretary of State? The amendment has considerable merits in doing just that. The result of the current planning system is headlines such as the following in The Times:No jobs for 400 doctors trained at a cost of £40m".I thought that that was pretty hair-raising. Obviously the BMA is highlighting this as a campaign. Two relatives of mine are obstetricians. They are registrars and hope to become consultants in due course. The situation is worse in the area of obstetrics than in many others. However, the BMA highlights the fact that, before long, ear, nose and throat specialists, as well as cardiothoracic and renal surgeons, will face a similar problem. The situation is not satisfactory. Someone must take responsibility for making sure that we have the right numbers coming in for training and the tight numbers of jobs available when training is finished.There are other considerations which can be added to the mix. There is the EU Working Time Directive, the impact of Caiman, training reforms and the New Deal. In addition, more doctors wish to work part-time. There are also considerations of how doctors wish to balance their family lives and their work lives. If our planning system cannot get it right, then we shall have a lot of extremely unhappy trainees and a lot of overworked consultants. I suggest that the department should look at its planning system and take on board the spirit of this amendment.
§ Lord PatelMy Lords, I am unaccustomed to speaking in your Lordships' House and noble Lords will therefore forgive me if I am a little slow. Certain facts need to be clarified. It is correct that a major problem has developed in the specialty of obstetrics. I declare my interest here: I am an obstetrician and until the end of September 1998 I was president of the Royal College of Obstetrics and Gynaecology. To that extent, I presided over the problem that has arisen.
There are several factors which led to the problem, and they apply to all specialties. I am currently chairman of the Specialists' Training Authority and therefore sign every certificate in every specialty when a trainee completes the specialist training, and I know how many 567 certificates I have signed. There are more than we originally thought there would be. The problem will occur in other specialties.
The problem has come about because some four-and-a-half years ago we changed our way of training in post-graduate medicine and made it more structured than it was before. The noble Lord, Lord McColl of Dulwich, referred to that. It meant that when a trainee completed the training he or she was issued with a certificate of completion of specialist training, which identified that trainee and enabled him or her to apply for a consultant post in the NHS. The numbers of trainees entering the programme are controlled by a complicated formula worked out by the Specialist Workforce Advisory Group every year for every specialty.
Four-and-a-half years ago, when so-called Calman training was introduced, the contention was that the NHS would move towards a more consultant-based service. What is a consultant-based service as opposed to a consultant-led service? It is a service whereby most if not all treatment is provided by fully trained specialists. We are moving more and more towards a service provided by non-consultants. That is the third problem. Trusts are appointing more non-consultant career grades on short-term contracts rather than longer-term consultant contracts. There are many issues to be teased out.
After the reforms in training, the question arises of how we want to man the medical workforce in the NHS. The public want treatment by fully trained people and those who are not trained or who are in training to be supervised. If that is the intention, many issues must be addressed.
The amendments highlight the problem but I am not sure that they go far enough. A complete review is needed of medical workforce planning. Another problem is that in general practice recruitment is poor, while in specialist services overall, it is good.
§ Lord WinstonMy Lords, the hour is late and I do not want to detain the House but I am absolutely obliged to speak briefly to the amendment because it concerns another area about which I feel passionately. I will tell my noble friend the Minister a brief story about one of the people on my own unit to highlight the seriousness of the problem. She has completed her training. She got an excellent degree at Cambridge and has three higher degrees, including a doctorate and a distinction. In September, she will be redundant. She is one of the most deft surgeons we have trained and she is excellent with patients.
It seems extraordinary that such people can be on the scrap heap of their speciality. That applies to obstetrics at the moment but, as the noble Lords, Lord McColl and Lord Patel, said, it will apply to other specialities. I agree that this may not be precisely the right amendment but it is a critical issue for the health service. Given that there is growing public expectation of a consultant-led service and growing risks of litigation, particularly in obstetrics and gynaecology— 568 with the need for consultants to be on the labour ward— I beg the Government to examine the issue closely and with a degree of urgency.
§ Lord SkelmersdaleMy Lords, this bullet must clearly be bitten by the Government and I hope the Minister will say that it is being bitten. Whether the type of biting will be acceptable to your Lordships remains to be seen.
The nub of the new amendment is in new subsection (5). As I read the Bill, subsection (4) is not necessary. Under Clause 7(1) and (2), the Secretary of State may give directions to health authorities and NHS trusts on virtually anything. In my book, the nub of all this and arguably the solution—I should like to hear what the Minister has to say—is new subsection (5) of the amendment, rather than the two together.
§ Lord Hunt of Kings HeathMy Lords, the noble Lord, Lord McColl, has returned to the very important issue of consultant and medical workforce planning. I do not believe that there is any doubt that anyone who has lived and worked within the NHS for many years would acknowledge that this is a matter that we have struggled with to get right. We still have difficulty in meeting some of the points raised tonight by noble Lords. To get the right balance between national strategy and the issues that face those who run the health service locally is very difficult. I am not convinced that to take a directional approach from the centre is the right way forward.
Clearly, we must ensure that medical and other workforce planning reflects forecast service needs and available resources. It is in the interests of both the NHS and those in training that we get this right. But the amendment goes on to specify a power to require that local posts be created to match a central forecast or recommendation. That surely goes too far. The noble Lord, Lord McColl, himself acknowledged this evening that no one suggested for a moment that all those trained in a specialty should be guaranteed jobs. As my noble friend the Minister said when the noble Lord raised similar matters in relation to Clause 8 during Committee stage, the Government reject as a matter of principle that direction should play a part in medical workforce planning. We prefer to work in co-operation with NHS trusts.
The whole experience of the NHS shows that unless one balances out national medical workforce planning and the needs of local NHS services one will never be able to deal with the problem successfully. NHS trusts are themselves in the best position to judge the staffing and grade mix required to deliver high quality patient services within the framework of their local health improvement programme and service agreements with local health authorities and primary care groups and trusts. In making those judgments they will also be guided by the requirements of clinical governance.
The noble Lord, Lord Patel, spoke about responsibility; and the noble Earl, Lord Howe, spoke about a circle of responsibility. Noble Lords will be aware that in terms of the relationship between the number of junior doctors in training and the number of 569 consultants the Speciality Workforce Advisory Group and its associated processes already exist to provide a central assessment both of likely future service needs for consultants and the number of staff in training needed to supply them. Both NHS management and the main professional interests are directly represented on this group. That is of crucial importance because, almost for the first time, it has brought together those people concerned with workforce planning at national level and those concerned with managing services at local level.
Every year this group agrees its recommendation to Ministers about the number of higher specialist training places needed to fill consultant posts in the future on the basis of input from the colleges, NHS management, educationists and other interested bodies. We believe that these arrangements ensure that national workforce planning is properly informed by the local NHS perspective. This should mean in turn that NHS trusts' local workforce decisions are informed by the national planning to which they have contributed. But to go beyond this and pre-empt individual local decisions would go far too far. For that reason I cannot therefore support the amendments.
I stress that while the Government do not believe that these amendments are the right way forward, they nonetheless recognise the real issues to be addressed. Matching forecast demand with planned supply is a complex issue, especially for a multi-disciplinary service like the NHS, with a long period involved in completing full medical training.
§ Lord Clement-JonesMy Lords, perhaps I may put one point to the Minister. The tone of his response is variable, which I find interesting. He said that he did not believe that a directional approach was the right one. When I read these amendments I cannot see such an approach. It is a matter of establishing the appropriate mechanisms at the centre rather than a directional approach.
In the Minister's response, I did not hear him say that the current system is not working well. Clearly there is a crisis. SWAG may have brought people together but, having brought them together, is it effective? We may be living on past rather than current methods of planning.
I am sorry to ask the Minister a rather long question. However, from the tone of his response it does not sound as though there is a great sense that the current system is inadequate.
§ Lord Hunt of Kings HeathMy Lords, I did not mean to give the impression that I am complacent about the issues which noble Lords have raised. Indeed, my experience in the NHS is that medical workforce planning and the tying of it into service needs has been one of the most difficult issues faced by the NHS. Simply taking directional powers to specify the number of consultants posts centrally is not necessarily the most appropriate and practical way forward.
One of the problems that we have had over many years is that the needs of the service have not been matched sufficiently with medical workforce planning 570 decisions made at the centre. That is why it is so important that in this SWAG group, almost for the first time, people managing the service in the field are working and meeting face to face with the people concerned with the number of doctors and specialists who are to be trained in the future. I believe that is a significant advance.
But we are talking about long lead times. I do not think that one will ever get the situation exactly right. Of course it takes time for improvements to come through. I believe that I made that clear in my remarks. I believe that one can point to some improvements in addressing shortages in specialties such as anaesthetics and accident and emergency. Nevertheless, I believe that minimizing shortages or oversupply remains a difficult balancing act.
I accept, as the noble Lord, Lord Patel, suggested, that many issues remain to be sorted out. Improving the way in which national and local planning mesh together is important. Our intention is that the health improvement programme process will ensure better local links between service planning and identification of the workforce consequences both for medical posts and other professional groups. At the same time we are looking at ways of improving the linkages between local planning and the way in which the picture is drawn together at regional and national level. We recognise and are committed to the need to strengthen those arrangements.
We have discussed the particular concerns over obstetrics and gynaecology. I do not think that I can add a great deal to what my noble friend said in Committee on those issues. We recognise the concerns about job prospects for those completing higher specialist training in that specialty. That is why arrangements were made for postgraduate deans to give one-off extensions to specialist registrar contracts for 18 months to allow more time for those involved to seek posts. Postgraduate deans will be keeping closely in touch with those concerned as the period comes to an end for the first group, to offer advice about job and other opportunities. In parallel we have already reduced the number of higher specialist trainees in obstetrics and gynaecology so as to try to bring supply and demand back into balance.
I listened again to the prescription of the noble Lord, Lord McColl, that no new trainees should be taken on until all who have completed training have consultant posts. But that would have a negative effect. It would effectively close down the specialty for at least two years, making it difficult to generate recruitment after that time.
§ Lord McColl of DulwichMy Lords, I have not suggested that we stop all training in obstetrics; what I suggested was whether, as we are making 100 redundant every year, it is sensible to recruit more. The plans are to recruit 65 starting in April of this year and that has been agreed at the Department of Health. Why?
I suggest that we do not recruit 65 this year. How on earth can that possibly be disruptive to the service, when all these people are there? I suggest that we do what we 571 used to do in the old days: do not sack them; keep them on, but stop bringing in more trainees who are less experienced. Why do we not do that?
The junior staff in this country will be in utter despair when they read what the noble Lord has just said. They will realise that he gives the impression that he does not understand what he is talking about. Could I have an answer to the question why we do not stop the recruitment of trainees for just one year? That would do something, though I think that it should be done for several years.
Could I also ask the noble Lord about the £5.4 million which has been taken out of the obstetrics training budget this year and given to another specialty? Why could not that be used to create more consultant posts?
§ Baroness Ramsay of CartvaleMy Lords, I must remind the House that this is Report stage and the Minister is winding up on an amendment. It would be very useful if noble Lords refreshed themselves from the Companion for guidance on procedure in relation to the Report stage of this Bill.
§ 10 p. m.
§ Lord Hunt of Kings HeathMy Lords, I am grateful for the clarification by the noble Lord, Lord McColl, of the point he is raising. He is presumably suggesting that the recruitment of trainees be stopped for a certain period. I believe that that would have a negative effect on future recruitment to the specialty overall.
Nevertheless, we have reduced the number of higher specialist trainees in obstetrics and gynaecology in order to try to bring supply and demand back into balance. As my noble friend explained at Committee stage, a working group with membership drawn from the medical and midwifery professions and from NHS management has been exploring every angle to improve the staffing position in this specialty. A way forward has now been agreed. We shall launch a series of local workshops, including NHS trusts, health authorities, the professions and others to take the agenda forward.
There clearly can be no complacency about the matters which have been raised by noble Lords in this debate. I do not believe that the amendment itself offers the appropriate way forward but the comments which have been made have been extremely valuable and I will ensure that those are communicated to the people most concerned with these issues.
We are dealing with difficult issues to which, to my certain knowledge, the NHS has not found a solution in the 50 years or more of its existence. I believe that the only sensible and proper way forward is by a continuing dialogue between those responsible for setting targets and dealing with medical workforce issues at a national level and those responsible for managing the National Health Service at a local level. I believe that we have the machinery to enable that to happen. It will not be easy and it will take time; nonetheless, I think that we 572 have the right mechanism with which to deal with the issue. On that basis, I ask the noble Lord to withdraw his amendment.
§ Lord McColl of DulwichMy Lords, I apologise for speaking in an intervention; I thought that I was responding to the amendment. The Minister's reply was disappointing, and a large number of junior staff will be utterly dismayed. Indeed, patients will become more apprehensive as they see their services deteriorating. I cannot for the life of me imagine why the Government cannot stop training this year and possibly next. There is no way in which that will make a hole in the service. We have been there before, we did that years ago, and there was no lack of recruitment or continuity in the service when trainees were retained instead of being sacked. It is a myth and I do not understand how it was perpetuated. And it will be seen as a myth by the vast number of trainees who are looking forward to a solution to the problem.
The Minister today and the noble Baroness, Lady Hayman, previously said that the Government did not believe in diktat. It was not so long ago that the Secretary of State threatened to sack all the chief executives of the trusts if they did not reduce the number of people on the waiting lists. We all know that the number is irrelevant; what matters is how long they wait. If he can do that with something as irrelevant as the number of people on the waiting list, why can he not say to the NHS trusts, "We have a problem. We would like you to restore the 33 per cent. cut made last year in the number of new consultant obstetric posts"? The problem is so serious that I wish to test the opinion of the House.
§ 10.7 p. m.
§ On Question, Whether the said amendment (No. 21) shall be agreed to?
§ Their Lordships divided: Contents, 30; Not-Contents, 71.
573| Division No. 2 | |
| CONTENTS | |
| Annaly, L. | HolmPatrick, L. |
| Astor of Hever, L. | Howe, E. |
| Belstead, L. | Hunt of Wirral, L. |
| Berners, B. | Inglewood, L. |
| Blackwell, L. | Kingsland, L. |
| Burnham, L. [Teller.] | Lyell, L. |
| Butterworth, L. | McColl of Dulwich, L |
| Coleraine, L. | Masham of Ilton, B. |
| Colwyn, L. | Oxfuird, V. |
| Cox, B. | Pilkington of Oxenford, L. |
| Dundonald, E. | Renton, L. |
| Fookes, B. | Skelmersdale, L. |
| Fraser of Carmyllie, L. | Stockton, E. |
| Gardner of Parkes, B. | Wise, L. |
| Henley, L. [Teller.] | Wynford, L. |
| NOT-CONTENTS | |
| Acton, L. | Archer of Sandwell, L. |
| Ahmed, L. | Bach, L. |
| Alli, L. | Bassam of Brighton, L. |
| Amos, B. | Berkeley, L. |
| Bragg, L. | Judd, L. |
| Burlison, L. | Kennedy of The Shaws, B. |
| Carter, L. [Teller.] | Lockwood, B. |
| Clarke of Hampstead, L. | Lofthouse of Pontefract, L. |
| Clinton-Davis, L. | Macdonald of Tradeston, L. |
| Crawley, B. | Mackenzie of Framwellgate, L |
| Davies of Oldham, L. | McIntosh of Haringey, L. |
| Dean of Thornton-le-Fylde, B. | [Teller.] |
| Desai, L. | Milner of Leeds, L. |
| Dixon, L. | Monkswell, L. |
| Donoughue, L. | Montague of Oxford, L. |
| Dubs, L. | Morris of Castle Morris, L. |
| Evans of Parkside, L. | Murray of Epping Forest, L. |
| Falconer of Thoroton, L. | Pitkeathley, B. |
| Famington of Ribbleton, B. | Ponsonby of Shulbrede, L. |
| Gould of Potternewton, B. | Ramsay of Cartvale, B. |
| Grenfell, L. | Randall of St. Budeaux, L. |
| Hacking, L. | Renwick of Clifton, L. |
| Hardie, L. | Sainsbury of Turville, L. |
| Hardy of Wath, L. | Sawyer, L. |
| Harris of Haringey, L. | Sefton of Garston, L. |
| Hayman B. | Simon, V. |
| Hogg of Cumbernauld, L. | Simon of Highbury, L. |
| Hollis of Heigham. B. | Stone of Blackheath, L. |
| Howie of Troon, L. | Symons of Vernham Dean, B. |
| Hoyle, L. | Taylor of Blackburn, L. |
| Hughes, L. | Thomas of Macclesfield, L. |
| Hughes of Woodside, L. | Thornton, B. |
| Hunt of Kings Heath, L. | Uddin, B. |
| Irvine of Lairg, L. [Lord Chancellor.] | Varley, L. |
| Warner, L. | |
| Islwyn, L. | Watson of Invergowrie, L. |
| Winston, L. |
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 10.15 p. m.
§ [Amendment No. 22 not moved.]
§ Clause 8 [Establishment orders]:
§ Earl Howe moved Amendment No. 23:
§
Page 9, line 2, at end insert—
("( ) The functions which shall be specified in an order under subsection (1) above include a duty to comply with any direction the Secretary of State may make in respect of the establishment of an occupational health service. ").
§ The noble Earl said: My Lords, this is an important amendment, but it is an amendment not without some irony. Last week the Minister for Public Health, Tessa Jowell, launched the healthy workplace initiative, which is designed to encourage employers to commit themselves to improve health in the workplace. Better health in the workplace leads to better productivity, fewer accidents and less absence through sickness. That is all extremely worthwhile.
§ Unfortunately, there is one organisation in which health, safety and welfare are not universally guaranteed, and that is the NHS. Access to occupational health services in the NHS throughout the UK is patchy, particularly in the primary care sector. It is true that there exists guidance from the NHS Executive on occupational health policy, but that guidance is only "commended"; it is not monitored, nor enforced. Meanwhile, prosecutions of health authorities and trusts for breaches of health and safety legislation are on the increase. That is bad for staff and bad for patients.
574§ The NHS should have an across-the-board facility to provide occupational health services for members of the NHS workforce. Those services could be organised and co-ordinated regionally. Within a district the organisation could be undertaken by an occupational health doctor and a senior occupational health nurse, alongside a human resources officer. That team would share accountability with the health authority. The responsibility should not stop at that level. The NHS Executive should take the ultimate responsibility for monitoring the availability of occupational health services across the NHS. One million people work within the National Health Service. At a time when patient demand is increasing and staff numbers are low, it is all the more important that there should be proper professional structures in place, designed to help reduce work stress, eliminate hazards in the workplace, ensure the provision of lifting and handling equipment and carry out those matters identified in the Green Paper, Our Healthier Nation, aimed at raising standards of health. I beg to move.
§ Lord Clement-JonesMy Lords, I rise briefly to support the amendment. As the noble Earl said, of course, it is good to see the launch of the Department of Health and the Health and Safety Executive sign-up campaign. That must be translated into action within the health service. There are certainly a number of particular cases where occupational health services are badly needed and one only needs to read representations made in connection with the amendment, particularly from the Royal College of Nursing, to understand the need for occupational health services. There are areas where, because of the independent contractual status of GPs, GP practice nurses—there are 18, 000 such nurses—have no access to occupational health services. Research by the University of Sheffield found that nurses in general are 40 per cent. more likely to suffer stress than are other groups of professional and technical workers. One could relate this to a whole range of professionals working in the health service. It is clearly important that all should have a high level of occupational health service available to them. I support the noble Earl in his amendment.
§ Lord Hunt of Kings HeathMy Lords, the noble Earl has raised a very important issue. In the past, perhaps the NHS has not done as well as it ought with regard to occupational health.
Legislation already exists in relation to the: provision of occupational health services for employees. Section 2(1) of the Health and Safety at Work etc. Act 1974 lays a duty on every employer,
to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees".This is viewed by the Department of Health and the Health and Safety Executive, in their capacity as inspecting authority, as placing upon NHS management a duty to provide comprehensive occupational health services for their staff. This provision forms part of all inspections by health and safety inspectors and failure 575 to provide an adequate service can result in the issuing of an improvement notice or result, where necessary, in prosecution.The NHS Executive has further strengthened this line by including the provision of quality occupational health services for all staff as an objective in the new framework for managing human resources—Working Together, Securing a quality workforce for the NHS. This document sets out the framework for improving the health, welfare and working conditions of all NHS staff and raises these issues to the top of the management agenda where they should be.
Research carried out for the NHS Executive in March 1998 suggests that all NHS employees have access to occupational health services provided by their employers. The quality of provision varies and this is being addressed as part of the human resources strategic framework, Working Together.
The NHS Executive issued The Management of Health, Safety and Welfare Issues for NHS Staff in the spring of 1998 setting out details of what constitutes a comprehensive occupational health service and encouraging NHS employers to work towards this for their staff. This has been extremely well received by the field and is being widely used as the standard for negotiating provision by outside contractors.
I very much take the noble Earl's point about the importance of occupational health services in the NHS. I believe that that is a shared aim. I hope that I have explained that the Health and Safety at Work etc. Act 1974 lays down the duties that the NHS is already required to undertake. Taking that and the management action which I have described into account, I hope that the noble Earl will find this reassuring and will feel able to withdraw the amendment.
Earl HoweMy Lords, I am grateful to the Minister. I do find it reassuring, at least in part. By the noble Lord's own admission, the system across the country has been patchy: in some places it has worked reasonably well, although in others it has not. Clearly, there is work to be done. I worry that although, as the Minister rightly pointed out, duties are enshrined in law, there is not a tight enough system to enable shortcomings to be identified and corrected, as they should be. However, with those words, and in view of the hour, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13 [Duty of quality]:
§ Earl Howe moved Amendment No. 24:
§ Page 11, line 8, after ("arrangements") insert (", including identifying adequate resources, ").
§ The noble Earl said: My Lords, this amendment is designed to highlight one of life's simple truths—that in healthcare, as in any other area, you get what you pay for. If you believe in a quality agenda—clearly, we all do although we may disagree about the means to that end—you have to invest the money and the support staff to ensure that you achieve it. The commission for health improvement needs to do its job properly and it has a wide remit. I do not know—perhaps the Minister can 576 tell us—what it will cost to set up and run the commission and how many employees the Government expect it to have; nor do I know what kind of additional funding will be made available to trusts to enable them to put the necessary systems in place to implement the new statutory requirements. Where is the money to be found and how much money will be needed?
§ I very much hope that the Minister will not say that each trust will need to find the necessary money from within existing budgets. That implies a knock-on effect to other parts of the service. We hear a great deal about the additional resources that the Government have committed to the NHS over the rest of this Parliament. If they mean business on delivering quality, I should have thought that this is one area that ought to have a call on that additional pool of resources.
§ The way that the quality agenda is supported centrally will have a very big impact on the degree of credibility carried by the policy as a whole once it is put into practice. Trying to implement the quality agenda on the cheap simply will not work because no one will have confidence in the results. The results will depend on assessments that have an objective basis to them. As I said in Committee, to judge the performance of a surgeon or of a specialist you need a reliable series of bench-marks which are themselves compiled from representative data on outcomes. It is a fact that at present very few specialist disciplines have such information available. Therefore, does the Minister agree that a great deal of data collection and analysis will need to be done in the first instance to enable the commission to do its work? If so, how is that to be funded and in what way will it be done?
§ My second quite separate question relates to the revalidation of GPs. The proposals for revalidation are not yet fully worked out, but it is already clear that testing the competence of a GP to continue practising will not be a cheap exercise. Revalidation is a concept which brings together two of the big issues in the Bill; namely, the quality agenda and the self-regulation of the medical profession. To what extent are the Government prepared to consider helping with the costs that this will inevitably entail? I beg to move.
§ Baroness Sharp of GuildfordMy Lords, I rise to express my support for the amendment. As we on these Benches have made clear, we support the establishment of the commission for health improvement. As in education, we recognise that there are many ways in which the quality of service provision can be raised. Just as Ofsted in education is a mechanism for stimulating and monitoring improvements, so we see the new commission as having that responsibility in health.
However, as in education, the new quality framework is not costless, as the noble Earl made clear. Anyone present in the Chamber who has been a school governor will know the time and energy required from all teachers, especially the top management team, to prepare the necessary documentation for a full inspection. Exactly the same will be true of CHIMP. Sufficient time, money and, indeed, support must be 577 invested to make it work properly. This amendment looks to the Secretary of State to allocate sufficient funding to meet these requirements. We fully support it.
§ Baroness Gardner of ParkesMy Lords, I, too, strongly support the amendment. I do so because I believe that resources are absolutely essential. I mentioned earlier tonight—and I repeat it now—that even at this stage when we are just getting to primary care groups, let alone to other issues with which we shall deal later, the resources are not there. I have in mind, for example, the Berkshire health authority. I mentioned Slough, which is an area with a great many single-handed practitioners and quite a deprived population. There is no communication between practices and many people have to work on their own. Others do not have a computer; indeed, some of them have non-matching computers. The debts being passed on from Berkshire health authority are enormous.
If things are so bad, and if something does not happen on 1st April, how will we know the outcome? Unless we can be confident that there is adequate resourcing for the next much more important stage after the PCGs, I believe that we need this amendment. It crystallises the whole issue as regards these necessary resources. I support it.
§ 10.30 p. m.
§ Baroness HaymanMy Lords, we have had a brief but interesting debate on the link between resources and service quality. However, I should point out to the House that the amendment as it stands does not deal with the commission for health improvement; indeed, it deals with the duty of quality which is to be placed on primary care trusts. However, I would not wish that to stand in the way of debate on how quality is resourced.
As I say, I recognise that there are important links between resources and service quality, although perhaps a recurrent theme that I have been trying to put forward in looking at quality is that high quality services sometimes are also cost-effective services, and sometimes improvement and investment in quality lead to longer term savings. I believe that that was the point that the noble Lord, Lord McColl, made earlier; namely, that it may be more cost effective to employ highly qualified staff than to pay the costs of litigation that may arise if one does not employ them. That leads me to say that special funding for quality cannot be ring-fenced or handled through a separate stream of funds. The whole quality agenda of the Government is concerned with the way we use all resources, not just some resources that are earmarked for improving quality.
As regards revalidation, it is premature to consider the costing of that. The GMC has only recently taken a view on that issue. There is a great deal to do. It has not made any attempt to assess the financial implications of the proposals. Even if the individual clinician bore the costs of any assessment requirements, there would be implications for NHS employers in terms of providing locum cover and possible remedial training costs. We would not wish to attribute the ongoing costs of CPD, 578 which would of course underpin the success of any revalidation system. There are important issues to be explored there.
As I say, this amendment is concerned with putting a duty on primary care trusts and NHS trusts to put in place arrangements to monitor and improve the quality of healthcare they provide to individuals. The amendment would require them also to identify adequate resources for this. It is, of course, important that the arrangements which trusts put in place are backed up by the appropriate resources. As I say, in some instances investment in quality may lead to a longer term saving.
However, in placing a duty on NHS trusts and primary care trusts to identify adequate resources, the amendment would appear to be giving them some responsibility for the size of the total sum of resources available to them. That would be to impose on them a responsibility which they could not reasonably discharge. It is, and has always been, the proper responsibility of government to determine the appropriate level of resources for the NHS. It is likewise the responsibility of government to make arrangements to promote the fair distribution of resources to health authorities and now for health authorities to arrange allocation to their primary care groups and their primary care trusts.
The roles which can properly be discharged locally include decisions through the health improvement programme process on how the resources available to the local healthcare system can best be deployed to respond to national and local priorities and needs. Our forthcoming guidance on clinical governance will make clear that if issues with significant resource implications emerge from that process, they should be explored in the context of the health improvement programme. In addition, NHS trusts and those primary care trusts with direct responsibility for providing services will, of course, need to have regard to the implications for service quality in deciding how best to deploy their own resources. That is already encompassed within the duty as drafted,
to put and keep in place arrangements for … improving the quality of health care".We believe these proper local responsibilities in the matter of deploying resources to maintain and improve service quality are already properly covered. So far as responsibility for securing resources is concerned, the Government have no intention of trying to confer their own proper role on others. Our recognition of the challenges facing the NHS informed the results of our comprehensive spending review when we committed an extra £18 billion to the NHS in England over three years. Noble Lords who can remember as far back as seven o'clock this evening will remember that I announced the investment this coming year of an extra £100 million into modernising A&E departments and improving rapid access to professional advice and help for patients. All those things are about improving quality within the NHS and providing the resources so to do. This time of night is perhaps not the best time for an extended debate on expenditure records or the pressures and opportunities facing the NHS. However, I suggest 579 to the House that an amendment to this clause to confer on NHS trusts and primary care trusts a responsibility that they are simply not in a position to discharge is not the best way forward.
§ 10.30 p. m.
Earl HoweMy Lords, I am grateful to the Minister for her comments on the amendment. I take her point that I am guilty of going wide of the amendment in addressing the issue of resources for the quality agenda generally, including the commission for health improvement. But the point that the amendment seeks to bring out is that, with a duty placed upon them to improve the quality of healthcare as the clause demands of them, primary care trusts and NHS trusts cannot just shrug off the issue of how that will be paid for. While they may not have a responsibility to provide those resources, they must address those issues. However, I shall read carefully what the Minister said and reflect further. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Clement-Jones moved Amendment No. 25:
§ Page 11, line 17, at end insert ("including, without prejudice to the generality of this section, general clinical care as well as medical treatment, and the promotion of health, ").
§
The noble Lord said: My Lords, perhaps I may remind your Lordships of the definition in the Bill of health care:
health care' means services for or in connection with the prevention, diagnosis or treatment of illness".
Amendment No. 25 is designed to ensure that the definition is rather wider. It seeks to add the words,
"including, without prejudice to the generality of this section, general clinical care as well as medical treatment, and the promotion of health".
That is similar to, but significantly different in one respect from the amendment which we put forward from these Benches in Committee. The difference is that we seek to include the words "and the promotion of health".
§
In Committee the Minister's case was that the existing definition was wide enough and would cover many of the points on general clinical care raised in our amendment. In Committee the noble Baroness said:
The duty, we believe, is broad enough to cover not only medical interventions but certainly nursing care". —[Official Report, 1/3/99; col. 1384.]
At face value, that is a perfectly fair statement. But the more one looks at that definition, the more one sees that it does not cover all the cases it should cover if the duty of quality is to mean anything. In particular, let us consider the reception of pregnant women or the position of women immediately after childbirth. That surely is not covered by "illness". I cannot believe that that is the case. The termination of pregnancy is not "illness". I could cite a number of other aspects; for example, the carrying out of surgical procedures under anaesthesia. That is not always a question of illness. They are procedures often carried out on perfectly well people. This means that the definition is certainly faulty in that respect.
§ The second respect in which it is faulty is that it refers to the prevention of illness. Surely that is not the same as the promotion of health. The prevention of illness is much narrower in scope. The promotion of health is, as the Minister said, very much something for which the PCTs will be responsible in their new incarnations. Having wrestled with this point since the Committee stage, I believe that there is a case for the department to consider the definition and come back with something rather wider. Otherwise, the duty of quality will not carry the weight that is being placed on it in the Bill. I beg to move.
Earl HoweMy Lords, I support this amendment. It is phrased in a different way from the similar amendment that was moved in Committee. The Minister argued in Committee that it was unnecessary to expand the definition of health care in the way proposed. I, too, have re-read her remarks. I confess that I am still uncertain about the matter. In particular, like the noble Lord, Lord Clement-Jones, I wonder whether the prevention of illness is the same as the promotion of health. It does not seem to me to be the same. Nor am I certain whether the treatment of illness includes the kinds of nursing activity referred to so powerfully by Christine Hancock at last week's RCN congress: an end to mixed sex wards; the privacy and dignity of the patient; emotional support; the absence of noise on a ward, and so on.
If a nurse is instrumental in planning the discharge of a patient successfully from hospital and providing information to the patient, is that really part of the patient's treatment? Similarly, if a nurse with expertise in pain control alleviates a patient's physical distress, is that necessarily part of the treatment of an illness, or is it rather an example of a much broader type of care? I do not know the answer to that. But if there is any doubt about it, some words, such as those in the amendment, should be included in the Bill. General clinical care is too important a part of the quality agenda to be left to argument in court as to what is meant by treatment of an illness.
§ Baroness HaymanMy Lords, I do not have any quarrel whatsoever with the general thrust of argument used in support of this amendment. I hope that I signalled that when we had a similar debate in Committee. However, we return to matters of drafting. Perhaps I may try to clarify further why we believe that these amendments are not necessary to encompass exactly the kinds of activity mentioned.
We define "health care" in the duty in Clause 13(4)as,
services for or in connection with the prevention, diagnosis or treatment of illness".I draw the attention of the House to the words, "or in connection with", which significantly broaden the scope of the definition."Illness" as defined at Section 128(1) of the 1977 Act explicitly includes,
any injury or disability requiring medical or dental treatment or nursing".581 Again, I draw the attention of the House explicitly to the inclusion of nursing care. It is clear, when one examines the Bill carefully—although I am the first to concede that one needs to look below the surface—that there is no question of the definition of health care equating solely with medical care.It is our belief and intention that the duty covers all those basic aspects of patient care which impact in one way or another on an individual's health and recovery. So far as a hospital is concerned, I see those as including cleanliness and hygiene, nutrition, and so forth. The HAS 2000 Report highlighted concerns that elderly patients in particular should be confident of basic care and nutrition as part of their hospital treatment and care. I am sure that none of us would dissent from that.
I do not believe that the addition of "general clinical care" on the face of the Bill would add to what is already there. One would then have to define that in a more precise way, and I cannot immediately think how that might be done in a way that addresses areas not already covered by the existing definition of health care.
I suggest that we also need to think very carefully about what would in practice be added to the duty if we were to add "promotion of health" to "prevention of illness". It is important to remember that we are dealing with a duty of quality related to the role of NHS trusts and primary care trusts in providing services. I can see that one might argue for a broader view of health-promoting activity in connection with the role of health authorities and primary care trusts in working with local government to promote the health of local communities in a wider sense. But I suggest that that is the territory of the duty of partnership. So far as the provision of health care by NHS bodies to individuals is concerned—that is what the duty of quality is all about—activities related to the prevention of illness will surely also have a health promoting effect and vice versa. One can think of examples of activities such as immunisation, smoking cessation support, healthy eating advice, and all kinds of things that noble Lords were stretching to ensure would be covered in the definition. They all relate to both the promotion of good health and the prevention of illness and are therefore encompassed by the duty as currently drafted. Indeed, the very act of providing high quality treatment and care plays its part, one might argue, in promoting better health.
I certainly share the view that the NHS should be just that: a health service, not merely a sickness service. But I believe that, for the purposes of the duty of quality, "prevention of illness" is a broad enough term to cover all that is intended. However, in the spirit of reading through the entrails after our previous debate, as noble Lords have done, I shall be happy, in the light of the specific points that have been raised in the debate, to check once again that nothing which has been pinpointed as essential in the contributions that noble Lords have made tonight is beyond the scope of the present definition. I hope that, with that assurance, the noble Lord will feel able to withdraw the amendment.
§ Lord Clement-JonesI thank the noble Baroness for that response, particularly the latter part of it. I was becoming worried towards the end that pride of 582 authorship was so strong that there was no way that there was going to be any improvement on that definition of "health care". Clearly I think that there should be. It is a genuine concern. One wants to make sure that the services that the noble Earl and I mentioned are covered. I thank the noble Barones;s for her undertaking to look again to see whether the definition can be improved. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 14 [The Commission for Health Improvement]:
§ Lord Clement-Jones moved Amendment No. 26:
§
Page 11, line 20, at end insert—
("( ) The Commission for Health Improvement shall, except in exceptional circumstances, be guided by the relevant national service frameworks, the standards set by the National Institute for Clinical Excellence and other relevant national standards as regards best practice in clinical care and treatment. ").
§ The noble Lord said: My Lords, the hour is late and I think that it would probably be more suitable to have a debate on this important aspect at a later stage of the Bill. We had some debate on the matter in Committee. It relates to the important area of postcode prescribing and the way in which many groups feel that there is no rhyme or reason for the way in which certain health authorities allow prescribing of certain drugs. I have particularly in mind beta-interferon for MS sufferers and Aricept for those who suffer from Alzheimer's disease, but I could cite many other examples. The concern is that the commission, which is a potentially powerful new body, should be guided by national standards in order to ensure that there is not a continuation of that postcode prescribing.
§
At Committee stage the Minister rather chided me for proposing too limited an amendment in that the only national standards and guidelines referred to were those produced by NICE. Of course, there were national service frameworks. I have attempted to cure that in this amendment by including the important national service frameworks. The Minister said in Committee:
As I say, I think it important that the commission is guided not only by NICE but that it considers best practice in clinical care and treatment, and particularly national service frameworks. I do not wish to specify only NICE guidance as that which the commission should take on board and which it should ensure is being implemented". —[Official Report, 1/3/99; col. 1389.]
Neither do I. I am perfectly happy to bring in the national standards. There were other national standards, and the noble Earl introduced an interesting amendment on those in Committee. It is, however, extremely important that NICE's standards are enforced by CHIMP. If that is not the case, what is NICE there for? Is everything purely voluntary within the health service?
§ The noble Baroness said that the Government would be concerned if there were an unacceptable delay in the implementation of guidance. She acknowledged that the Secretary of State for Health had the power to enforce compliance with NICE guidance under the terms of the National Health Service Act 1977. But she gave no commitment that the Government would use those powers to enforce the guidance. For instance, if CHIMP spotted in its reviews that a particular trust was not 583 observing the national service framework, what would be the consequence of that? What is a reasonable delay to expect an NHS trust to encounter before putting the national service framework into practice?
§ All in all, it is extremely important that the standards of NICE and those of the national service framework are enforced by the commission. There is a suspicion among many of the bodies that have promoted the amendment that the reason for not making NICE or national framework standards enforceable is cost—that automatically central funding will be required to ensure that local health authorities and trusts act on the recommendation, for example, to introduce a new drug. When the noble Baroness, Lady Jay, was Minister of State, she told an all-party group on MS in April 1998 that the Treasury was resistant to making NICE guidance mandatory for precisely that reason. If that is the case, it is worrying.
§ It is notable that in the case of the notorious 1995 beta-interferon circular to which I referred in Committee, the department did not provide extra money to assist the introduction of the new drug, even though that was national policy. There are issues here. The amendment is based on somewhat unhappy experience as a result of that circular and continuing forms of postcode prescribing. I hope that the Minister will be able to give extra comfort in that respect.
§ Of course one does not want national standards to be enforced in an over-prescriptive way. We had that debate in Committee. Nobody believes that is the best way forward. There has to be flexibility and understanding of the fact that different trusts operate in different ways. The broad principle that the national standards should be enforceable is one that a great many people support. I commend the amendment to the House. I beg to move.
Earl HoweMy Lords, I have a little difficulty with this amendment. If one takes, for the sake of argument, a benign view of NICE's role and the way that the commission will operate, we are back to the point made by my noble friend Lord Renton the other day in another context, which was,
Expressio unius est exclusio alterius".In other words, if one mentions one thing on the face of the Bill, one is by implication excluding other things.I agreed with the Minister when she said in Committee that it is not only the guidance from NICE and relevant national standards that the commission will want to take account of but a broader range of issues— especially those relevant to particular circumstances.
With great respect to the noble Lord, Lord Clement-Jones, the phrase "except in exceptional circumstances" is most unsatisfactory. We are talking here about guidance, not rigid adherence to a rule book. If it is said that the commission ought to be guided by the standards set by NICE, that implies that the system will allow some discretion and latitude. If one qualifies that by citing "exceptional circumstances", the messages that go out will be rather more confused. I return to the point that we do not want and cannot have the word 584
guidance" used as a synonym for direction, yet there are overtones of just that in the amendment by virtue of the phrase "except in exceptional circumstances".Clinical governance will only work and be acceptable to the medical profession if it is administered with a light touch and there is built-in flexibility. I am uneasy about the amendment for those reasons.
§ Lord PatelMy Lords, I agree with the noble Earl, Lord Howe. It would be difficult if the commission were only to take guidance from NICE and national service frameworks. As I understand it, NICE will not only advise about the appropriate use of drugs, but issue guidelines, and that is what they are—guidelines. Local hospitals and clinicians will develop appropriate protocols. Other organisations, not least the colleges, produce guidelines. It is inappropriate if the only standards to be used are those of NICE.
§ Baroness HaymanMy Lords, we have returned briefly to a subject that evoked strong feelings in our debates at Committee stage. I have no quarrel with the broad objectives of the noble Lord, Lord Clement-Jones, in moving this amendment. The setting of national standards will play a key part in delivering a truly national health services and ensuring that patients receive the best care. Our intention is clear. We want an NHS that offers dependable, high standards of care and treatment everywhere. The problems and distrust created by completely unacceptable variations in access to services and prescribing that have been echoed tonight are clear. The care provided should be appropriate to people's needs and effective in drawing on the best available clinical evidence and maximising health gain for the population. That is what drives our quality programme. At other points in the debates I have said that I believe that to be a comprehensive and coherent approach.
We take seriously the business of raising standards and promoting the consistent application of the best evidence. There is no difference between us as to that aim. But I share with the noble Earl, Lord Howe, concerns about the exact strength of the touch and how dirigiste we are about the way in which the commission goes about its work. I chided the noble Lord, Lord Clement-Jones, about his failure to give a definition that was not wider than NICE. He has come back with a definition of other relevant national standards. The world being as it is, he will not be surprised if I now criticise that particular definition in this amendment. Because we do not have a definition of it, it does not suggest who should make the judgment of what is relevant in this instance. I was very interested to hear the noble Lord, Lord Patel, put in a bid for Royal College standards not to be omitted from the list of possible standards to be taken into account.
If the judgment as to what is a relevant national standard is for the commission itself, it is not clear what is to be gained by putting this on the face of the Bill. As the noble Earl, Lord Howe, said, there is no indication of what the exceptional circumstances may be in which the commission is not to be guided by—that is another phrase that will be difficult to define—relevant 585 standards. We are all clear about the underlying intent, but there are considerable stumbling blocks as between this and sorting out legal definitions on the face of the Bill.
In connection with the duty of quality, we discussed in Committee the difficulty in foreseeing and defining now what national guidance or standards it might be appropriate to take into account in future. In the light of this amendment, I do not believe that we are any closer now than we were then to an answer that we can safely prescribe on the face of the Bill. I suggest that the difficulty in drafting appropriate provisions on points of this kind should cause us to ask whether it is right to attempt it in the first place. If we intend the commission to be guided, may we not be better advised to stick to guidance in this area?
In practice, I believe it is inconceivable that the commission would not be guided by national service frameworks, the work of NICE or other appropriate guidance. National service frameworks and the national institute will in particular be key points of reference and will be for guidance. There is a danger in having too tight a hold on both individual local decision-making about priorities and circumstances and individual clinical decisions as between patients and clinicians.
I hope that the noble Lord will forgive my saying that I cannot accept this amendment any more than the earlier one, although I do not wish to deny the importance of the issue he raises.
§ 11 p. m.
§ Lord Clement-JonesMy Lords, I thank the Minister for that reply. Several different and interesting arguments have been used against the amendment. It was intended to be a light touch guidance; but clearly it has not been taken as such. The phrase "except in exceptional circumstances" was intended to do precisely that. However, it seems to have fallen foul of both the Minister and the noble Earl.
We are concerned that NICE has been set up but there is no real nexus with CHIMP as regards the legislation. We are worried that CHIMP is set up under the Bill but without standards to which it can refer. I am reassured by the noble Baroness's statement that it is inconceivable that CHIMP would not take on board the standards advocated by NICE and the national service frameworks. That may well be so. I hope that it is true. But time will tell.
We shall ponder on the points the Minister made in her response and perhaps return to the issue at another time. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 27 not moved.]
§ Schedule 2 [The Commission for Health Improvement]:
§ Baroness Hayman moved Amendment No. 28:
§ Page 49, line 29, leave out ("he") and insert ("it").
§ On Question, amendment agreed to.
§ Baroness Hayman moved Amendment No. 29:
586§ Page 49, line 35, leave out ("(2)") and insert ("(3)").
§ On Question, amendment agreed to.
§ Baroness Hayman moved Amendment No. 30:
§ Page 49, line 37, leave out ("(3)") and insert ("(2)").
§ On Question, amendment agreed to.
§ Clause 15 [Functions of the Commission]:
§ [Amendment No. 31 not moved.]
§ Baroness Sharp of Guildford moved Amendment No. 32:
§ Page 12, line 10, leave out from beginning to ("and") in line 12.
§ The noble Baroness said: My Lords, the purpose of this amendment which we tabled at Committee stage as a probing amendment is to prevent the commission for health improvement from charging for its services. In the lengthy discussion at Committee stage, the Minister used the analogy of the work undertaken by the Audit Commission, including its value for money services, when NHS trusts pay individually for the work undertaken even when that work is part of a nationally commissioned study rather than being individually commissioned.
§ Our concern—as we made clear at Committee stage—is that such costs will inevitably come from hospital budgets and mean less money for patient care. The Minister made it clear that costs would come from that part of the budget allocated to administrative costs and that there need be no cost on patient care. But as we heard earlier, administrative costs in the NHS are not themselves excessive. We are not convinced by any of those arguments.
§ As I made clear in an earlier amendment, we see CHIMP as analogous not to the Audit Commission but to Ofsted: that it will be a regular inspection force concerned to maintain standards. As with Ofsted and unlike the Audit Commission's value for money studies, it will be part of a continuing series of inspections required by the Secretary of State as part of a programme of quality improvement. The trusts will not invite the CHIMP inspectors in; rather the inspection will be imposed upon the trusts. As with school inspections, there will be substantial costs incurred in preparing the necessary paper work for inspection which will fall on the administrative budget of the trust. That it should also then have to bear the commission's costs seems quite outrageous. It could not possibly be done without a special allocation that year to the administrative budget, which in effect means taking that year from the patient care budget. Unless there are allocations to the NHS budget from the Secretary of State to meet the costs of CHIMP, there is no way that its costs can be met without taking money out of the patient care budget.
§ In this case we take the view that the costs should be met from central funds and not from trust funds, which is the purpose of the amendment. The Minister replied that, if this were the case, the costs would be top-sliced from the sums already allocated to trusts. So be it, but this would have the advantage of making open and 587 transparent how much CHIMP is costing and, in so far as it hit trust allocations, that it was marginally at the cost of patient care.
§ The costs and benefits need to be weighed up at the national level by the Secretary of State, because he is the person who is imposing the inspection. It would be quite different if, as my noble friend Lord Clement-Jones suggested at Committee stage, it were a matter of management consultancy, where the trust called the commission in to advise it. In such a case it is quite fair that the costs be met by the local trust, for it is up to the trust to weigh the costs and benefits of the exercise and to judge whether it is worth while; but this, as I have made clear, is not what is being proposed.
§ What we have here is a regular inspection required by the Secretary of State. As such, we believe that this should be seen as a mechanism used by the Secretary of State to improve and maintain standards in the provision of healthcare, just as Ofsted is there to improve and maintain standards in education, and that its direct costs—like Ofsted's direct costs—should be met from the central health service's budget, preferably by an allocation of new money.
§ If successful, then over time its costs would be recouped by the extra efficiency it engenders within the service as a whole. If this is the case, then it should be viewed by the Secretary of State, and indeed by the Chancellor of the Exchequer, as an investment. The initial costs which would have to be borne now would over time be offset by a stream of benefits. But the cost benefit analysis must be for the Secretary of State, not for the local primary care or hospital trust. If Ofsted is the appropriate model, any inspection will impose enough costs in terms of preparation and paperwork. It adds insult to injury to suggest that the local trust should also pay for the direct costs of the inspection team.
§ I beg to move.
Earl HoweMy Lords, I too remain uneasy after our debate on this subject in Committee. We are back to the territory of a previous amendment which focused on resources to implement the quality agenda, and this is yet another example.
I do not know what the annual operating budget of the Commission will be in future years, but it would be interesting if the Minister could give us an approximation. If in a few years' time that budget is charged out to trusts and health authorities, I cannot see how this could fail but to have an impact on the funds available for other areas of patient care. In many instances it would be an unbudgeted outlay. One can easily imagine cases where the commission is sent in to investigate a hospital on a false alarm, does a great deal of work and ends up by giving the hospital a clean bill of health. A fat bill at the end of that would be particularly galling to the hospital management.
I sense that there is a balance to be struck on this question, setting aside for a moment extreme examples like the one I have just given. There has to be a sense of ownership by a trust of whatever the commission recommends, and that is a point which the noble 588 Baroness made in Committee. The bill for achieving it, however, should not be so great as to place the hospital in graver difficulties than it was before. It means that the monitoring and policing of the quality agenda should, in large measure but perhaps not completely, be funded centrally.
§ Baroness HaymanMy Lords, like the noble Lords who have spoken, I too have been reflecting on the debate we had at Committee stage. I drew attention then, and do so now, to the fact that charging is in itself not an unusual arrangement in the NHS. In this way, for example, the Audit Commission supports its statutory duties with regard to financial audit and its value for money studies. Audited bodies fund this work through fees paid to local auditors appointed by the Audit Commission. So NHS bodies are perfectly familiar with this approach and accustomed to the need to budget for this kind of activity. This approach to charging encourages greater local involvement and ownership and provides a greater incentive to ensure that prompt action is taken in following up advice and recommendations.
We have every reason to expect that the NHS locally will value the commission's input. The commission will have a clear role in providing advice and independent expertise. In its local reviews it will identify good practice and areas for improvement. Similarly, where the commission investigates local clinical problems, it will provide external advice and support to identify and address the root causes. In this way, the commission will help strengthen an organisation's capacity to assure and improve the quality of services it provides.
I made clear in Committee that, in the first instance, we intend to finance the commission centrally. But it remains the Government's view that, once the commission has demonstrated its effectiveness in helping the NHS improve quality and tackle service problems, there is merit in moving towards a system where more of its work is directly funded locally. However, I accept the noble Earl's argument that it is perhaps a matter of balance.
It may help if I address some of the concerns that have been raised about how future arrangements may work. The starting point is that arrangements for the recovery of costs must be fair, flexible and reasonable. The commission will recover expenditure only where it has properly incurred costs in carrying out its own functions. And it will be held properly to account for undertaking these effectively, efficiently and economically.
In that respect, I differ from the noble Baroness, Lady Sharp. I see no reason why in the commission's rolling programme of reviews, given reasonable notice, we should not expect local NHS bodies to plan and budget for this activity in the same way as they do now for Audit Commission activity. However, I accept that we need to think carefully about the rather different circumstances where a local NHS organisation decides it needs to call in the commission "off-cycle", as it were, to help investigate or pre-empt a potential problem; or where, exceptionally, the Secretary of State decides to send in the commission to investigate a serious problem. 589 I recognise and understand the concern over the possibility of perhaps heavy extra costs falling on an organisation already in some difficulty, and I would certainly want to avoid deterrents to a body inviting early help rather than allowing a potential problem to fester.
I suggest that now is not the time to determine the detailed charging policy for the future, but I hope it will be helpful if I say that these are the kind of considerations we should weigh carefully when we come to do so. We need arrangements to ensure that the commission's role is valued and that its help is brought to bear promptly where it is needed, and this will inform any future plans in this respect.
In summary, our aim will be to ensure flexibility and fairness in charges made by the commission. There will be additional safeguards in that the Bill provides for the Secretary of State to determine the charges that may be made by the commission.
Important issues have been raised and what has been said today is valuable. We can take it into account in due course in developing our thinking on how charging arrangements will operate. I hope that in the light of the undertaking to take those considerations into account and the reassurances I have given, the noble Baroness will feel able to withdraw the amendment.
§ 11.15 p. m.
§ Baroness Sharp of GuildfordMy Lords, I thank the Minister for her reply, although we are not totally satisfied with it. The words "fair", "flexible" and "reasonable" are easily said. It is also fair to say that it is reasonable for the trusts to plan and budget for those costs. But they are real costs and all local health authorities are under very tight budget constraints. However, I shall study the Minister's answer and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Hayman moved Amendment No. 33:
§ Page 12, line 16, leave out subsection (3).
§ The noble Baroness said: My Lords, I hope that I can be both brief and satisfy the concerns of the House on this issue. In Committee it was suggested that qualified privilege would be more appropriate than the absolute privilege which was written into the Bill for the purpose of the commission for health improvement reports. Considerable concerns were raised and I agreed to take them away for further consideration. This amendment is the result of that consideration. We believe that it is important that the commission is able to be frank and open in identifying areas for improvement, and we will wish the commission to be able to make clear where NHS organisations are falling below the expected standards.
§ In doing so, however, we should not wish the commission to become involved in unnecessary litigation which could delay the publication of reports and otherwise disrupt its important work. Nevertheless, I recognise the concerns which were expressed in Committee about conferring absolute privilege on the commission. That may well be an excessive provision. 590 In the light of those concerns, we have reconsidered the position and have brought forward this amendment. Instead of absolute privilege, qualified privilege will protect the commission's reports against defamation unless it could be proved that the comments had been made with malice.
§ It is worth stating that we expect the commission to act fairly in producing its reports. It will need to do so if it is to be successful in winning the trust and respect of NHS patients and the healthcare professions. After the comments which were made in Committee and further reflection, we now believe that giving the commission qualified privilege is appropriate. It is not necessary to have explicit provision on the face of the Bill because under common law the commission's reports will be subject to that qualified privilege. Therefore, I hope that this amendment will address the concerns which have been expressed. I beg to move.
Earl HoweMy Lords, perhaps I may say how immensely grateful I am to the Minister for bringing forward this amendment and for taking on board so carefully the points raised in Committee from all sides of the Chamber.
I am convinced that this is the right way forward, not only as a means of leaving open the possibility of legal redress in very isolated cases but, much more important, as a means of ensuring that the culture of the commission will foster co-operation and trust. Removing the right of absolute privilege will go a long way towards doing that. I do not believe that there is any need to fear that without such a right the work of the commission will be in any way frustrated.
It is a highly satisfactory outcome for all concerned. I thank the Minister warmly for the trouble she has taken to bring it about.
§ Lord Clement-JonesMy Lords, I too thank the Minister. This is a very elegant solution. It is so nice to see the complete deletion of a subsection from the Bill, even at this time of night.
§ On Question, amendment agreed to.
§ Baroness Hayman moved Amendment No. 34:
§ Page 12, line 34, leave out ("13") and insert ("13(4)").
§ On Question, amendment agreed to.
§ Clause 16 [Obtaining information etc.]:
§ Lord McColl of Dulwich moved Amendment No. 35:
§ Page 13, line 22, after ("individual") insert ("or a deceased person").
§ The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 36 to 38 and 41 to 45. Noble Lords will remember that when this was discussed on previous occasions a plea was made that when it comes to confidentiality we really should have the same high standards on the face of the Bill as have been adopted by the General Medical Council. Why should the Bill have inferior standards of confidentiality?
591§ Noble Lords may think that the medical profession is being over-fussy about the whole subject of confidentiality, but to us and to the patients it is of great importance. I am sure that noble Lords are aware that doctors are obliged to adhere strictly to confidentiality and can break that obligation only under exceptional circumstances, for instance, where a failure to disclose information may expose a patient or others to the risk of death or serious harm.
§
When the amendments were discussed before, the Minister agreed that they highlighted the important issue of confidentiality of information relating to individuals, and went on to say:
We intend and expect that information that is produced by the commission should, wherever possible, be in a form that protects the identity of the individual". —[Official Report, 1/3/99; col. 1434.]
We are concerned with absolutes, not "whenever possibles". The Minister went on to say,
The intention is that the circumstances in which information that identifies an individual is obtained without consent are kept to the absolute minimum necessary to ensure that the commission is able to fulfil its functions".
In other words, she seemed to be saying that the means justifies the end. I am not sure that that is acceptable.
§ Amendments Nos. 35, 41 and 42 try to make sure that the same rights of confidentiality over medical records apply to deceased persons and patients no longer in contact with their doctor. In Amendment No. 37, we again emphasise that if an individual cannot be traced, confidentiality should, nevertheless, be protected. The Minister's answer to that was that the Government expect there to be "confidentiality wherever possible". However, I would suggest that confidentiality wherever possible and confidentiality unless it interferes with the work of the commission, are not tight enough provisions. In col. 1435, she expressed the concern that the provisions of Amendments Nos. 36 and 38 will impose too heavy a burden on the holders of confidential documents as they will require them to make a difficult judgment about what might be ascertained from their information when placed together with material outside their control. As far as concerns confidentiality, I believe that there should be a heavy burden on those who hold confidential documents. The Minister went on to say in col. 1437 that she would be happy to consider what further guidance or secondary legislation might be framed to cover what she described as "rare eventualities". It will be interesting to know whether she has had further thoughts about that.
§ Later on the Minister went on to say that she thought it would be wrong to prohibit the commission assessing information about deceased patients. We have no wish to do that. Our wish is to maintain confidentiality. I beg to move.
§ Lord Clement-JonesMy Lords, I rise to speak briefly to Amendment No. 43 in this group of amendments. The noble Lord, Lord Walton of Detchant, in the debate in Committee cogently noted that it was important that such duties should be aligned with the general duties of confidentiality of the medical profession as generally understood. In the context of this 592 amendment, which inserts the word "serious" before "criminal offence" in line 13 on page 15, I note that the General Medical Council's recently issued guidance, Confidentiality: Providing and Protecting Information, says that disclosure of information may be justified,
where a serious crime which would be likely to involve the risk of serious harm or death could be prevented or detected. Serious crimes will usually be crimes against the person, including abuse of children".That is clear. Of course, it is not a precise legal definition, but it is clearly what the medical profession is bound by and understands to be the duty of confidentiality. One does not have to look far for a legal definition. The Police Act 1997 contains provisions on entry, and interference with property and wireless telegraphy in the course of the prevention or detection of crime. Section 63 of the Police Act 1997 defines serious crime as conduct which constitutes one or more offences if, and only if: it involves the use of violence or if one of the offences is an offence to which a person who has attained the age of 21 and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more. That is a fairly clear definition. There was general agreement by both government and opposition when that provision was passed that that was a perfectly proper definition of "serious crime".One could perhaps use the definition of "serious arrestable offence", if that was thought preferable, as defined in Section 116 of the Police and Criminal Evidence Act 1984. Your Lordships may be relieved to hear that I shall not cite the full definition! However, that shows that the definitions are available. It is important that the Bill is aligned to the duty of confidentiality, as generally understood currently by the medical profession.
§ Baroness HaymanMy Lords, the hour is late, but these are important issues and I hope that the House will forgive me if I deal with them in some detail. I admire the brevity and lucidity of both noble Lords. I fear that I shall not be able to emulate it, but I shall do my best.
In Committee, a number of issues were raised, many of which have been repeated this evening. With the Committee's agreement, I agreed to take away those concerns and look again to see whether we could further strengthen the safeguards on confidential information, whether through the Bill or through secondary legislation or guidance. We have given this area considerable further thought. We have also had the advantage of further useful discussions with representatives of the medical profession, and have been able to explore their concerns in some depth. I hope that I may be able to help clarify the issues and to offer some important safeguards.
The overall context is that, in carrying out the majority of its functions, we expect the commission to work with anonymised data. Cases where the commission needs to look at confidential information that identifies individuals will be rare. They will usually occur only when it is conducting an investigation when there is a particular cause for concern. Our aim has been both to set proper constraints around the commission's 593 access to confidential information, and to ensure that when it does have such access the information is treated with due care and confidence. That is why Clause 16 sets out the circumstances under which the commission can obtain information and Clause 17 sets tight conditions on disclosure of information.
It may be helpful if I explain now the purpose of government Amendment No. 39. It aims to ensure that the definition of confidential information in Clause 16(6) is sufficiently broad to cover all information held subject to a duty of confidence. In reviewing these provisions in the light of the Committee stage debate, we concluded that there was a potential ambiguity in the original draft: it could be argued that in defining confidential information according to the terms in which it is held, the original definition did not cover information that should be held in confidence by virtue of the circumstances in which it is obtained. The amendment ensures that both sets of circumstances are now covered. It strengthens the protection offered by the provision and I hope that it will command the support of the House.
Before I turn to the other amendments it may help if I refer to a number of other safeguards on the commission's handling of confidential information, some of which go beyond what is on the face of the Bill. For example, only clinical members of the commission's review teams will be expected to access confidential patient information. They will be subject to the codes of confidentiality of their regulatory bodies and be under a duty of confidentiality. They would owe this duty to the individual concerned, and to the commission.
In addition, we expect that the contracts of employment of the commission's staff, both professional and lay, will contain provisions dealing with the issue of confidentiality. If it were necessary to enforce this, the Secretary of State would be able, under paragraph 7(6) of Schedule 2 of the Bill, to direct that contracts of employment contain such provisions. Knowing or reckless disclosure of confidential information without lawful consent is subject to a criminal offence under Clause 17. When we turn to the discussion of specific points of concern covered by the amendments, it is in the context that the commission will access confidential information only by exception and under carefully controlled circumstances.
Perhaps I may turn specifically to the first of the areas that I have highlighted. I refer to confidential information relating to deceased individuals or those who cannot be traced. I fully recognise that inappropriately obtaining or disclosing such information could, for example, cause grave and unnecessary distress to relatives. None the less, there are exceptional circumstances in which the commission would need to have access to information about such patients. We need to ensure that the scope of these clauses allows appropriate, but only appropriate, access.
There may be cases where the commission has concerns about a service where it suspects that there might be a risk to the health and safety of patients, but it would need to be able to access more records before 594 it could prove the risk. It would of course be able to ask for the consent of living people, but there would be difficulties in a case where a number of patient deaths had occurred which the commission wished to investigate. I am sure that the House will appreciate that it would be particularly unfortunate if we were to put obstacles in the way of what might be a most pressing case for investigation.
I do not pretend that there is a straightforward way through this process. As I explained in Committee, there are problems in placing the same protection for the living and the dead on the face of the Bill, as proposed in the first set of amendments. One particular problem is that, generally speaking, no one has a legal authority to give consent on behalf of a deceased individual for the access or disclosure of confidential information about him or her. That means that if the safeguards in Clauses 16 and 17 were extended to cover deceased people, as proposed in the amendment, the commission would have more limited ability to obtain or disclose information relating to deceased individuals than was the case with living individuals.
The lack of legal clarity here also gives rise to other issues. While I recognise the ethical obligation healthcare professionals have to respect the confidentiality of individuals after their death, it is unclear in legal terms how far the duty of confidentiality extends beyond a person's death, if at all. It is therefore unclear whether information on a specific deceased individual is held subject to a duty of confidence. The constraints in Clause 16(2) only concern information which is held subject to such a duty. We are continuing to give this particular matter close consideration.
It is a difficult issue to balance. The Government share the concern expressed to ensure that the confidentiality of information relating to deceased individuals is properly respected. However, we would not wish unduly to restrict the operations of the commission in its work. I believe that there is general agreement that the commission should work within a clear and enforceable set of parameters when handling confidential information relating to deceased patients.
The real issue here is whether the best place for those parameters is the face of the legislation. I hope that I have explained why I consider the amendment moved by noble Lords to be too restrictive; indeed, it could jeopardise the effectiveness of the commission in what might be some of the most serious investigations with which it is faced. Nor is there an alternative appropriate approach as far as concerns the Bill. Nevertheless, we do take the issue very seriously. I have already explained the way in which the commission and its staff would safeguard any confidential information they need to handle. Over and above this, we propose to draw up guidance in consultation with the professions to cover the circumstances in which the commission would be able to obtain confidential information about the deceased. We would then propose that the Secretary of State would direct the commission through his power in Clause 15(4) to adhere to this guidance in the course of its work. I believe that these arrangements would ensure the right balance, allowing the commission necessary 595 access to information in exceptional circumstances while ensuring any such information was handled with the greatest care.
I turn now to the disclosure of confidential information on the deceased. Again, the Government consider it very important that such information should be treated with the greatest respect. The amendments before us seek to apply Clause 17 to the deceased in the same way as to the living. The difficulty we face is that of all the circumstances in which Clause 17 provides that the commission may disclose information "with lawful authority", the most commonly used is likely to be where the individual concerned has given consent— under Clause 17(5)(a). We need to consider further to what extent the lack of consent available with regard to deceased individuals may pose difficulty in allowing the commission to act in the interests of the public.
It is important that we reach the right solution in the matter. If noble Lords will agree to withdraw Amendments Nos. 41 and 42, I shall undertake to continue to consider the matter. I hope to bring forward a proper resolution to what is, for the reasons that I have outlined, a difficult issue.
I now turn to the matter of untraceable individuals. The same general principles apply here. The amendment on this point would again bar the commission from obtaining confidential information in circumstances where it suspected there was a risk to the health and safety of patients but would need to be able to access more records before it could prove the risk. If it was not possible to trace the individual and obtain consent to access to the information, the commission would simply be unable to obtain this information, although it could be in the public interest that it should do so. Again I would argue that we should not put an absolute bar on access to information in such circumstances but should look instead to the safeguards I have outlined in terms of the arrangements for the commission's handling of confidential information.
In Committee concerns were raised that information should not be made available in a form which, in combination with other information, would enable the identity of an individual to be discovered. Two amendments in this group reflect this continued concern. There are practical difficulties surrounding this. As drafted, the provisions would tighten the duty on the body (for example, a hospital) making information available to the commission. While it is right and proper that we should expect such bodies to ensure they do not hand over data from which the identity of an individual can be deduced, it is simply not appropriate or reasonable to expect them to make an informed judgment about how this relates to information already in the hands of the commission or to assess with certainty what information the commission is likely to obtain in the future. I believe the test in the Bill on this point goes as far as is appropriate. However, we are considering the formulation of the provisions relating to information which identifies an individual and seeing if we can improve the clarity of the provision. I hope that this goes some way to meeting your Lordships' concerns.
596 Finally, concern was raised in Committee about some of the provisions in the Bill dealing with disclosure of information. The amendment of the noble Lord, Lord Clement-Jones, deals with Clause 17(5)(e); that is, disclosure in connection with the investigation of any criminal offence triable in the UK. It has been suggested that this sets a lower threshold for disclosure than applies in primary legislation at other points of interface between the NHS and the criminal justice system. I have reflected on this provision and have some sympathy with it. I would, if I may, like to take a little longer to ensure we select the most appropriate precedent, but with your Lordships' consent I should like to take this point away and bring forward a suitable amendment at a later stage.
The final amendments deal with Clause 17(5)(h) which allows disclosure of confidential information where an individual is seen as a threat to the health and safety of other individuals. The amendments seek to substitute a test of, "risk of death or serious harm".
In this instance I have more difficulty with the proposed amendment. I believe that the precedent here argues more strongly for the form of words currently on the face of the Bill. In drafting these provisions we, of course, had close regard to the provisions in the ECHR. We are satisfied that this provision is compatible with the convention which your Lordships' House helped to give effect to through the Human Rights Act 1998. I believe that Clause 17(5)(h) is currently of adequate strength to prevent inappropriate disclosure of confidential information. It mirrors the wording under which the Health Service Commissioner operates. To restrict the provision in this Bill further would place the commission in the position that if it discovers information showing that a person presents a risk to patients, it may not be able to protect patients because of the strictness of the provision. In this instance, I believe further safeguard should be by way of guidance rather than primary legislation.
This has been an important debate, reflecting what I believe is a shared concern to strike the right balance between protecting patient safety and enabling the commission, where necessary, to act in the wider interests of the public. I apologise for the length of my remarks but I hope that I have been able to offer reassurances about the safeguards that will be in place to protect confidential information, to propose some respects in which I believe in the light of these debates we can improve the drafting of the Bill and to explain why other points are best handled other than through primary legislation. I invite the House to accept government Amendment No. 39, but I hope that the others will be withdrawn.
§ Lord McColl of DulwichMy Lords, I thank the Minister for that thoughtful and careful reply. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 36 to 38 not moved.]
§ Baroness Hayman moved Amendment No. 39:
597§ Page 14, line 16, leave out ("in circumstances importing") and insert ("subject to").
§ On Question, amendment agreed to.
§ Clause 17 [Restrictions on disclosure of information]:
§ Baroness Hayman moved Amendment No. 40:
§ Page 14, line 27, leave out ("15") and insert ("16").
§ On Question, amendment agreed to.
§ [Amendments Nos. 41 to 45 not moved.]
§ Earl Howe moved Amendment No. 46:
§ After Clause 18, insert the following new clause—
§
NOTICE OF AND ADMISSION TO MEETINGS ETC
(". —
§ The noble Earl said: My Lords, in Committee my noble friend Lord Lucas made what I felt was a powerful case for removing from the Bill the blanket ability of primary care trusts and the commission for health improvement to exclude the public from their meetings. He suggested that there was absolutely no good reason why the arrangements for PCTs and the commission should be any different from those which apply to local authorities, which are allowed to close meetings to the public only in particular circumstances as specified in the Local Government Act 1972. My noble friend has now tabled a differently worded amendment to advance the same idea. This time though he has extended his proposal to health authorities and special health authorities as well as PCTs and the commission. The amendment takes as its starting point that there should be a presumption in favour of public access to meetings and formal arrangements to supply 598 all those who wish to attend with agendas and briefing papers. Subsection (7) then deals with the exceptions by allowing the Secretary of State to make regulations specifying those circumstances where it is appropriate for the public to be excluded and for the relevant papers to be kept confidential. I think that this represents a much more satisfactory formulation than that laid down in the Bill which allows PCTs and the commission virtual carte blanche to close their doors whenever they choose. So, on behalf of my noble friend, I beg to move.
§ Lord Clement-JonesMy Lords, I rise to support this very well drafted amendment. We on these Benches are strongly prejudiced in favour of bodies which are open to the public unless there are extremely good reasons for closing their proceedings. The amendment takes on board all the principles that we would support. I urge the Minister to give as favourable a reply to the amendment as she can.
§ Baroness HaymanMy Lords, I would do anything to try to be helpful to the House at this time of night, even if I did not have sympathy, which I do have, with the intention behind the amendment. The noble Lord, Lord Lucas, in Committee and the noble Earl, Lord Howe, today, together with the noble Lord, Lord Clement-Jones, have made clear their concern that public bodies should be accessible and responsive to the people they serve. Like the noble Lord, Lord Lucas, we are committed to the principles of openness and transparency of process and the need to build on these to ensure that the public are involved and informed and have an opportunity to see decision-making in action.
We have already taken action on that commitment. We have followed up the provisions in the Public Bodies (Admission to Meetings) Act 1960 with guidance to NHS boards on how best to open up meetings to the public. We have made clear to NHS boards that open board meetings are not a cosmetic exercise. They are not to be orchestrated events with decisions taken in closed session. Meetings must be used as an important and proper part of local accountability, demonstrating how and why decisions are made about local health services.
Perhaps I may turn to the circumstances in which the public may be excluded from meetings. Provision under Section 1(3) of the Public Bodies (Admission to Meetings) Act 1960 allows for the public; to be requested to withdraw where it is resolved by the body that,
publicity would be prejudicial to the public interest by reason of the confidential nature of the business to be transacted".I know that the noble Lord, Lord Lucas, had a particular concern that that goes on to allow for a request for the public to withdraw,for other special reasons stated in the resolution".The amendment substitutes a power to make regulations providing for the public to be excluded from meetings in specified circumstances. It is worth bearing in mind that the clause as a whole is drawn up to cover meetings of committees and sub-committees as well as the main authority or board meetings. Any regulations would 599 need to cover all those circumstances, and we need to consider carefully what impact such provisions might have.The current position is that guidance to NHS boards makes clear that any resolution to exclude members of the public must be taken in public and the outcome recorded in the minutes of the meeting. Such a resolution should state in broad terms the nature of the business to be discussed without breaching the confidentiality of the matter concerned. A statement made during the meeting provides immediacy and allows for the flexibility that may not result from specifying in regulations all the circumstances in which members of the public are to be excluded or documents withheld. I am unconvinced that this amendment offers a better course.
On the question of committees, I have already explained that NHS boards and the commission for health improvement are unlike local government, where there is a statutory provision for committees to conduct the business of the main body. NHS boards conduct the vast majority of business in their main meetings and the commission is likely to have similar arrangements. Again, existing guidance states that, where items of business are discussed in committees, that does not preclude an invitation for the public to attend those meetings. Neither should they be used as a means of diverting business which is rightly a matter for 600 discussion by the main board. Again, I am unconvinced that the approach of the amendment to committees and sub-committees is best suited to NHS circumstances.
I hope that I have conveyed the importance that the Government attach to openness and transparency in the conduct of NHS and related bodies. I have outlined the practical steps that we are already taking to strengthen these arrangements and which are very much in keeping with the spirit of the amendment. However, there are important respects—the handling of decisions on exclusion from meetings and the approach to committee and sub-committee meetings—in relation to which I am not convinced that the complex amendment tabled by the noble Lord, Lord Lucas, is better suited to the NHS and its public than our existing arrangements. Therefore, I hope that the noble Earl will feel able to withdraw the amendment.
Earl HoweMy Lords, I am grateful to the Minister for her full and helpful comments, which clearly merit careful study and reflection. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Hunt of Kings HeathMy Lords, I beg to move that further consideration on Report be now adjourned.
§ Moved accordingly and, on Question, Motion agreed to.
§ House adjourned at fourteen minutes before midnight.