Health Bill [H.L.]

HL Deb 25 March 1999 vol 598 cc1425-75

3.40 p.m.

Read a third time.

Clause 1 [Repeal of law about fund-holding practices]:

The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman) moved Amendment No. 1:

Page 1, line 9, leave out from beginning to ("sections").

The noble Baroness said: My Lords, this large group of amendments make minor drafting and consequential amendments to the Bill. However, it is perhaps worth my spending a few moments explaining a number of them.

The changes and additions to the "Repeals" schedule (Amendments Nos. 87, 88, 92 and 93) reflect repeals made by the provisions debated and agreed at Report stage on unified budgets, the penalty charge and the repeal of the Nurses, Midwives and Health Visitors Act.

The PPRS applies to England, Wales and Scotland. Amendments Nos. 21 and 22 therefore extend the provisions in Clause 34, subsections (5) and (6) to Scotland.

Amendments Nos. 65 and 66 remove a provision in the Bill that would allow the commission to appoint its own auditors. The provisions as drafted allow for a two-tier auditing process for the commission's accounts—the first by auditors appointed by the commission and the second by the National Audit Office. These amendments remove the provision for the commission to appoint its own auditors so that the commission's accounts will be solely audited by the National Audit Office. This will bring the accounting and auditing arrangements for the commission into line with those for other Department of Health NDPBs. I beg to move.

On Question, amendment agreed to.

Clause 2 [Primary Care Trusts]:

Baroness Hayman moved Amendment No. 2:

Page 1, line 12, leave out from ("1977") to ("there") in line 13.

On Question, amendment agreed to.

Lord Clement-Jones moved Amendment No. 3:

Page 2, line 19, at end insert— ("( ) No regulations are to be made under subsection (5) unless a draft has been laid before and approved by resolution of each House of Parliament. ").

The noble Lord said: My Lords, before launching on any lengthy debate—I do not plan to do that on this amendment which has been before the House in various guises at both Committee and Report stages—and because the Procedure Committee effectively disbarred us from making comment on the passing of the Bill at the end of Third Reading, I wish to say from these Benches how much we appreciate the flexibility that the Minister has shown throughout the passage of the Bill. There were a number of instances, which I do not propose to adumbrate, where that has clearly been the case—primary care trusts, the statutory and voluntary pricing scheme to pharmaceuticals and, above all, the Clause 47 provisions regulating the professions. I should like to take this opportunity to thank the Minister for making this Bill considerably better than when it started on its course through this House.

I know the Minister and her team have tried extremely hard to fulfil all the commitments that the Minister made during the passage of the Bill through this House and it is therefore with a tinge of disappointment that I find she was unable to come back to us on Third Reading with a proposal for an equality of opportunity provision, both for primary care trusts and for the commission for health improvement. As noble Lords will know, and the Minister is only too well aware, this has strong backing—perhaps not in this precise formulation—from a wide range of sources. Noble Lords have spoken in support throughout the passage of the Bill. Also, I have before me a letter commending the provisions of this amendment to the Minister, again not in precise terms but that is the spirit in which it was written, particularly in the context of the aftermath of the Lawrence Inquiry and the fact that the Home Secretary has accepted the provisions of that inquiry.

This amendment is a further probing amendment designed to elicit from the Minister a progress report. Whether to give a specific or a general duty is not entirely clear, and that information would be extremely helpful. But it would also be useful to hear from the Minister what progress the department is making in formulating a suitable duty on primary care trusts and the commission for health improvement to ensure that there is a quality of access particularly to healthcare across the range of health services.

Lord Hunt of Kings Heath

My Lords, is the noble Lord speaking to Amendment No. 3 or No. 4? I rather suspect he is addressing Amendment No. 4.

Lord Clement-Jones

My Lords, I apologise to the House and am grateful to the Minister for that intervention. I do not know whether it is possible to treat this as a speech on Amendment No. 4. If your Lordships give me assent to that I shall not need to rewind the tape and we can simply re-marshal the amendments to take Amendment No. 3 after Amendment No. 4. I do not know whether the procedure of the House makes that possible. If it does, I ask your Lordships' indulgence.

Lord Renton

My Lords, perhaps I can ask the noble Lord to clarify one matter. He said that this was a probing amendment when he was speaking to Amendment No. 4. Is Amendment No. 3 also intended to be a probing amendment or an operative one?

Lord Clement-Jones

My Lords, Amendment No. 4 and its counterpart in Clause 15 are both designed to be probing amendments.

The Chairman of Committees (Lord Boston of Faversham)

My Lords, intervening in the form of a Speaker of your Lordships' House, which we do not have for these purposes, perhaps I should indicate that, although the noble Lord, Lord Clement-Jones, is attempting to be helpful to your Lordships, I must call the amendments in the order in which they appear on the Marshalled List. The way in which he can continue his helpful stance, however—if I might provide a further moment of guidance—is that when Amendment No. 4 is called, he might not need to "rewind the tape".

Lord Clement-Jones

My Lords, I thank the Chairman for that helpful intervention which has got me out of a complete fix. I move therefore to Amendment No. 3, which is also designed as a probing amendment.

At both Committee and Report stages we had a discussion about consultation arrangements which would be appropriate on moving from PCGs to PCTs. The Minister said that she would carefully consider the consultation arrangements and regulations will be made setting those out. One of the problems we have had throughout Committee and Report stages is the "list" question. The noble Lord, Lord Skelmersdale, was zealous in ensuring that we did not "truck" with any lists. But the problem with that is that we cannot extensively set out on the face of the Bill those with whom it is appropriate to consult. In those circumstances, regulations are appropriate.

The Minister gave us assurances on Report, and it would be helpful to hear from her now, that she would inform us of the progress being made in terms of publishing draft regulations which would allow us, as the Bill passes through the other place, to consider whether they are appropriate. It is of course possible for the regulations to be approved only by affirmative resolution. I do not necessarily consider that to be appropriate. This is a way of eliciting a reply from the Minister in those circumstances. I beg to move.

Lord Skelmersdale

My Lords, for the avoidance of doubt, I should point out to the House that I am speaking very firmly to Amendment No. 3. I shall have more to say about Amendment No. 4 a little later, assuming that it is moved. The noble Lord, Lord Clement-Jones, referred to my "anathema" of lists. But of course the corollary of that is that Parliament should know whether the Government have consulted appropriate people. Indeed, the Bill talks about "appropriate people" in various places.

However, that can be done only if there is an opportunity to question the Government. It is very difficult to do so by the negative resolution procedure. So I have a great affinity with the noble Lord in his request for having the regulations under affirmative instrument as opposed to negative instrument, the reason being that it makes life very much easier for Back-Benchers. If the affirmative resolution is used and has to be debated, it is debated; whereas, if it is by negative resolution procedure, you have to notice it and then table a Prayer within 40 sitting days, which adds to the burden on Back-Benchers. Governments always love this, but it is not necessarily right for Parliament as a whole. I support the noble Lord.

Lord Renton

My Lords, as some of your Lordships may remember, I am one of those who is always anxious that we should manage to have Acts of Parliament drafted without constant reference to amplification by regulations. Here we have regulations about consultation requirements. With deep respect to the Government, especially the noble Baroness who has always done her work so splendidly for us, I wonder why we need regulations at all in order to amplify the consultation requirements. Those requirements will vary among the number of people to be consulted.

As time goes on, the nature of the consultation on somewhat technical matters will vary. It surprises me that the matter should have to be stultified at one moment by being put into regulations. If there are to be regulations, I suppose that the Houses of Parliament should be told about them and given a chance to discuss them and approve them, or otherwise. However, my doubt here is whether, in these unusual circumstances, regulations are really necessary.

Baroness Carnegy of Lour

My Lords, I may be misunderstanding this, but I do not know why the noble Lord has stated in his amendment that no regulations are to be made, unless a draft has been laid before and approved by resolution of each House of Parliament". Surely it is the regulations that will be laid before Parliament, not the draft. I do not know why the word "draft" has been used in the amendment.

Baroness Hayman

My Lords, in responding to this amendment I think that we have had two different sets of criticisms, so to speak. As I understood him, the suggestion made by the noble Lord, Lord Renton, was that after the outline for consultation had been made clear, the arrangements for consultation would basically be a matter for the discretion of the Secretary of State. The import of the amendment is that there should actually be a level of parliamentary scrutiny higher than use of the negative resolution procedure. Indeed, that was the point endorsed by the noble Lord, Lord Skelmersdale. My own view is that it is important that there should be some element of parliamentary scrutiny of the laying of regulations about consultation requirements prior to the establishment of a PCT.

Existing provisions in the Bill provide for any regulations made by the Secretary of State to be exercisable by statutory instrument subject to negative resolution procedure. As we know, this amendment would mean that consultation regulations would be subject to affirmative resolution procedures whereby a draft has to be laid before both Houses and approved by resolution. I believe that the formulation is a draft rather than the regulations in those circumstances.

In looking at the level of parliamentary scrutiny, or considering whether any such scrutiny is appropriate for consultation regulations, we sought to follow established practice. The Delegated Powers and Deregulation Committee considered that the broad approach adopted by the department in relation to the powers in the part of the Bill dealing with primary care trusts was appropriate. The committee did not suggest in its report that the affirmative resolution procedure was a more suitable approach for these regulations. It did not raise the level of scrutiny of regulations under Section 16A(5) as an issue for the House to consider. In the context of the NHS, regulations relating to NHS trusts were and are laid before Parliament using negative resolution procedures.

Affirmative resolution procedures are considered to be necessary only in exceptional circumstances. The affirmative procedure is normally appropriate for powers affecting provision of Acts of Parliament. Such an example is Clause 52 of the Bill which deals with the regulation of health care and associated professions. It is normally appropriate for powers to impose or increase taxation or other financial burdens or to raise statutory limits on the amounts which may be borrowed by or lent or granted to public bodies. Alternatively, there are powers involving other considerations of special or exceptional importance. An example would be the powers to create new varieties of criminal offence of a serious nature.

The Government do not accept that regulations setting out the requirements for consultation are matters which fall within this category and are of such exceptional importance as to merit affirmative procedures. However, we do feel that it is appropriate to follow the precedent adopted for NHS trusts and to have some scrutiny by the negative procedure, although I obviously understand the concerns expressed by the noble Lord, Lord Skelmersdale, that the balance, therefore, goes towards the Executive rather than towards Back-Benchers. I do not believe that we are out of line with practice in this respect. Perhaps I may reassure the noble Lord that the consultation has taken place. We intend to consult widely with key stakeholders, including national professional and patient representative bodies on the contents of these regulations.

The noble Lord, Lord Clement-Jones, asked questions in relation to the timetable for publishing regulations setting out the requirements on consultation. We are concerned to take note of the views and comments both of this House and additionally of those in another place. Therefore, I do not believe that we can sensibly formulate a draft of these regulations at this early stage. However, I can assure the House that we do intend to bring forward draft regulations as soon as possible after the enactment of the Bill. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Clement-Jones

My Lords, I thank the Minister for that helpful reply. Indeed, it is the most extended response that she has given on this particular subject to date. However, I am somewhat disappointed that consultation will not take place while the Bill is still going through Parliament. In a sense, that seems to me to be a little like buying a pig in a poke because consultation as regards moving from PCGs to PCTs is an important part of the whole process. Nevertheless, the Minister has indicated the extent of the consultation which will take place over the regulations and that clearly will be very wide. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones moved Amendment No. 4:

Page 2, line 38, at end insert— ("( ) Appropriate arrangements shall be made with a view to securing that a Primary Care Trust's functions are exercised with due regard to the principle that every individual has a right to treatment according to individual need free of discrimination as to access to or the quality of service. ").

The noble Lord said: My Lords, I mistakenly had a crack at this a short while ago. I should like essentially to move the amendment formally, as I have already made my speech on it. However, in the spirit of flexibility which the Minister has displayed in other parts of the Bill, and also in the interests of drafting speed, I should like to reiterate that I very much hope that that will be mirrored in subsequent stages of the Bill. I hope that the department will bring forward some robust amendments to the Bill which will ensure equal opportunities for those who have primary care treatment at PCT level, and that it will lay down those duties for the commission for health improvement. I beg to move.

4 p.m.

Lord Renton

My Lords, the noble Lord will have the right to reply to a debate on this amendment so that he can decide whether to withdraw the amendment or to ask the opinion of the House. When he replies I wonder whether he could amplify the concept that he has in mind as to the expression, free of discrimination as to access". Does that mean free of discrimination as to access to a particular hospital, or form of treatment, or what?

Lord Skelmersdale

My Lords, I threatened to speak to this amendment, and so I shall. In his primary crack at this amendment, as I think he would describe it, the noble Lord, Lord Clement-Jones, referred to feeling a tinge of disappointment that nothing further had come from the Government on this extremely important matter which has run through all our debates on this Bill; namely, that, every individual has a right to treatment according to individual need free of discrimination as to access to or the quality of service". To answer my noble friend Lord Renton—of course, the noble Lord, Lord Clement-Jones, will be able to answer for himself—that means the individual has a right to treatment and to access to an appropriate hospital.

That causes me to don my hat as a PMM—as I described it on Report—that is, a parliamentary moaning minnie, in that I am surprised indeed that this amendment has not been grouped with that of the noble Baroness, Lady Masham. The words that I have just read out—I shall not repeat them—refer not only to local treatment but to treatment elsewhere. We all know that there are occasions when it is necessary to have out of area treatment. I shall not discuss that because no doubt we shall debate it a little later. However, I regard this amendment as taking precedence over those of the noble Baroness. I am more than a little surprised—in fact, I am slightly miffed—that the Minister has not done what I understood her to promise to do at Report stage; namely, to put similar words in the Bill by means of an amendment.

Baroness Carnegy of Lour

My Lords, I hope I am not quite as far off the mark as I was when I intervened on the previous amendment. I apologise to the House for wasting a moment of our time. The wording of this amendment worries me because I do not see how every individual can have the right to treatment in the way that is described. For example, one hospital may have a far more up-to-date scanner than another hospital. Therefore the kind of scans that can be carried out in a particular hospital are more limited, perhaps because it has an older scanner. I speak of the situation in my own area but I am sure that scanners vary across the country.

In some hospitals one has to pay for assisted pregnancy whereas in others that is free. In some areas and in some hospitals that provision is not available. That may impinge on the amendment of the noble Baroness, Lady Masham, but I am not sure that one can ask for the right that is described in the amendment. I do not know whether the Minister intends to put something in the Bill, and if so she will probably be able to meet this problem. It is not just a matter of rationing, but different hospitals have different abilities to carry out particular treatments.

Lord Walton of Detchant

My Lords, the intention underlying this amendment is totally praiseworthy but I share the anxieties that have just been expressed by the noble Baroness, Lady Carnegy of Lour, because it seems to me that as the amendment is framed at the moment it would give carte blanche to any individual in any situation to be able to demand any form of treatment, however difficult and however expensive. In a National Health Service where—whatever one's good will towards the care of the individual—resources are ultimately finite, it would be dangerous to put so clear a recommendation, or in fact so clear a statute, on the face of the Bill. I am wholly in favour of the principle that individuals should have access to healthcare irrespective of age, sex, or other forms of discrimination on political, ethnic or other grounds. That is an important principle, but as it is framed I believe this amendment would be impossible to implement in a health service which has finite resources.

Baroness Masham of Ilton

My Lords, I point out that my two amendments use the term "where appropriate".

Baroness Hayman

My Lords, the brief debate we have had on these issues is an illustration of some of the difficulties in drafting appropriate legislation in this area. First, I shall deal with the point made by the noble Lord, Lord Skelmersdale, when he suggested that I had not fulfilled my promise to the House. I refer the noble Lord to the record of our debates at Report stage where I stated, At this stage it would be premature of me to give an absolute commitment to bring forward such an amendment because I do not yet have before me advice on whether we can properly legislate as the noble Lord would wish. However, I give the commitment that during the course of the Bill we shall return to the subject and report progress". —[Official Report, 15/3/99; col. 496.] That is the commitment I intend to fulfil this afternoon. Therefore, I do not believe that I misled the House in suggesting that we would be able to bring forward amendments at this stage.

Lord Skelmersdale

My Lords, I would not dream of suggesting that the noble Baroness had misled the House. I merely gave my interpretation of what she said, which I must admit was from memory because I have been away for the past three days.

Baroness Hayman

My Lords, I am grateful to the noble Lord for those comments. We discussed similar points both in Committee and at Report stage when I made clear the importance the Government attach to achieving fairer access to high quality healthcare. I welcome the opportunity now to restate the Government's commitment that access to the National Health Service should be on the basis of need and need alone, with no place for discrimination on grounds of gender, age, disability or ethnicity. Although I accept the points that have been made in debate, we are not at that point yet in that we have varying levels of provision and access to services in various parts of the health service. A major part of the Government's proposals and work programme concerns reducing inequalities in access to services. However, that is an ongoing process. It is not something that can be delivered overnight in terms of an absolute diktat.

I also stated at Report that this was one of the areas on which we had not yet managed to reach a conclusion on the best way forward in legislation, but that it was important that we came back with appropriate solutions for the NHS as a whole and not simply for primary care trusts and the commission, which are the two areas to which the amendments of the noble Lord, Lord Clement-Jones, apply. I believe that was the spirit of the comments made by the noble Lord, Lord Skelmersdale; namely, that the provision should cover out of area treatments, which will not necessarily be offered by primary care trusts, but are most likely to be offered in specialist hospitals. This is still the case. I reassure the House that we are still considering the points that have been made. However, I believe it would be wrong to lay an amendment before the House before we have made a searching examination of the issues facing the NHS both as an employer and as a provider of services. The amendment is very wide and there are varying aspects to equal opportunity issues and to planning for change where necessary. That is particularly so in the light of the Macpherson report which has posed sharp challenges to the whole range of public services. We need to explore those in a thorough way. Any legislation should flow from rather than precede such consideration. I am sure that in that context the noble Lord, Lord Clement-Jones, will welcome the fact that your Lordships' House will have an opportunity to debate the Macpherson report immediately after the Easter Recess. At that point the issues of equality of access to public services will, I am sure, be debated at some length.

I hope that the noble Lord and others who have spoken will accept my assurance that, in saying that I cannot yet offer a substantive reply, I do not intend in any way to underplay the seriousness of the issues. I would suggest that not having an instant answer reflects the importance we attach to having a coherent and comprehensive approach to issues which deserve serious and careful attention. The noble Lord, Lord Clement-Jones, referred to the spirit of the amendments. I can assure him that we embrace the spirit of the amendments. I am certain that we will return to these matters during the passage of the Bill, although, in all likelihood, in another place. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Clement-Jones

My Lords, I thank the Minister for her reply and particularly for her clear demonstration of support for the spirit of the amendment. Other noble Lords have commented on the drafting of the amendment. Having made three attempts at the drafting during the passage of the Bill, I know only too well how difficult it is to draft an appropriate amendment which reflects not only the difficulty of practical implementation but the desire to make a commitment. As noble Lords will know, the CRE has asked bodies and figureheads in various areas of public life to make a public commitment to their leadership challenge. I believe the NHS should make that commitment even though it may be difficult to do so. I recognise that it must form part of a wider examination and consideration of the whole area of public services. For that reason, when I introduced the amendment, I very much welcomed the fact that the Home Secretary had accepted the 70 or so recommendations of the Macpherson report. However, I look forward to action in the short term, not the long term.

I hope that the difficulty of the issue will not be treated as an excuse. I am sure that the Minister did not reflect that. I hope that this issue will not be treated as so difficult that it cannot be legislated for. I am sure that back in 1968 with the Race Relations Act and then with the Sex Discrimination Act, these were considered very difficult issues to draft. I am sure the drafting will be difficult but I very much hope that a formula will be found that will lay this kind of duty in the health service. In all of our debates, throughout the Committee stage and on Report, the whole question of discrimination— not only in terms of ethnicity but particularly in terms of age—came through very strongly as a matter of concern for your Lordships. I look forward optimistically to a time in the not too distant future when the Government will feel able to legislate on this matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Baroness Hayman moved Amendment No. 5:

After Clause 8, insert the following new clause—

REMUNERATION FOR PART II SERVICES

(". —(1) For sections 43A and 43B of the 1977 Act (regulations as to Part II remuneration) there is substituted— Remuneration for Part II services.

43A. —(1) The remuneration to be paid to persons who provide general medical services, general dental services, general ophthalmic services or pharmaceutical services under this Part of this Act shall be determined by determining authorities (and they may also determine the remuneration to be paid to persons providing those services in respect of the instruction of any person in matters relating to those services).

(2) For the purposes of this section and section 43B below determining authorities are—

1. (a) the Secretary of State, and
2. (b) so far as authorised by him to exercise the functions of determining authorities, any Health Authority or other person appointed by him in an instrument (referred to in this section and section 43B below as an instrument of appointment).

(3) An instrument of appointment—

1. (a) may contain requirements with which a determining authority appointed by that instrument must comply in making determinations, and
2. (b) may be contained in regulations.

(4) Subject to this section and section 43B below, regulations may make provision about determining remuneration under subsection (1) above and may in particular impose requirements with which determining authorities must comply in making, or in connection with, determinations (including requirements as to consultation and publication).

(5) Regulations may provide—

1. (a) that determinations may be made by reference to any of the following—
   1. (i) rates or conditions of remuneration of any persons or any descriptions of persons which are fixed or determined, or to be fixed or determined, otherwise than by way of a determination under subsection (1) above,
   2. (ii) scales, indices or other data of any description specified in the regulations,
2. (b) that any determination which in accordance with regulations made by virtue of paragraph (a)(ii) above falls to be made by reference to a scale or an index or to any other data may be made not only by reference to that scale or index or those data in the form current at the time of the determination but also by reference to the scale, index or data in any subsequent form attributable to amendment or revision taking effect after that time or to any other cause.

(6) Regulations may—

1. (a) provide that determining authorities may make determinations which have effect in relation to remuneration in respect of a period beginning on or after a date specified in the determination, which may be the date of the determination or an earlier or later date, but may be an earlier date only if, taking the determination as a whole, it is not detrimental to the persons to whose remuneration it relates,
2. (b) provide that any determination which does not specify such a date shall have effect in relation to remuneration in respect of a period beginning—
1. (i) if it is required to be published, on the date of publication,
2. (ii) if it is not so required, on the date on which it is made.

(7) A reference in this section or section 43B below to a determination is to a determination of remuneration under subsection (1) of this section.

Part II remuneration: supplementary.

43B. —(1) Before a determination is made by the Secretary of State which relates to all persons who provide services of, or of a category falling within, one of the descriptions of services mentioned in section 43A(1) above, he shall consult at least one of the following bodies—

1. (a) a body one of whose functions is to provide advice in connection with the matters to be determined,
2. (b) a body appearing to him to be representative of persons to whose remuneration the determination would relate.

(2) Determinations may make different provision for different cases including different provision for any particular case, class of case or area.

(3) Determinations may—

1. (a) be made in more than one stage,
2. (b) be made by more than one determining authority,
3. (c) be varied or revoked by subsequent determinations.

(4) A determination may be revised—

1. (a) to correct an error, or
1436
2. (b) where it appears to the determining authority that it was made in ignorance of or under a mistake as to a relevant fact.

(5) Determinations may, in particular, provide that the whole or any part of the remuneration—

1. (a) is payable only if the determining authority is satisfied as to certain conditions, or
2. (b) is to be applied for certain purposes or is otherwise subject to certain conditions.

(6) Subject to sections 29(4) and 35(2) above, remuneration under section 43A above may consist of payments by way of—

1. (a) salary,
2. (b) fees,
3. (c) allowances,
4. (d) reimbursement (in full or in part) of expenses incurred or expected to be incurred in connection with the provision of the services or instruction,

and may be determined from time to time.

(7) At the time a determination is made or varied, certain matters which require determining may be reserved to be decided at a later time.

(8) The matters which may be reserved include in particular—

1. (a) the amount of remuneration to be paid in particular cases,
2. (b) whether any remuneration is to be paid in particular cases.

(9) Any determination shall be made after taking into account all the matters which are considered to be relevant by the determining authority and such matters may include in particular—

1. (a) the amount or estimated amount of expenses (taking into account any discounts) incurred in the past or likely to be incurred in the future (whether or not by persons to whose remuneration the determination will relate) in connection with the provision of services of the description in section 43A(1) above to which the determination will relate or of any category falling within that description,
2. (b) the amount or estimated amount of any remuneration paid or likely to be paid to persons providing such services,
3. (c) the amount or estimated amount of any other payments or repayments or other benefits received or likely to be received by any such persons,
4. (d) the extent to which it is desirable to encourage the provision, either generally or in particular places, of the description or category of services to which the determination will relate,
5. (e) the desirability of promoting services which are—
   1. (i) economic and efficient, and
   2. (ii) of an appropriate standard.

(10) If the determination is of remuneration for a category of services falling within one of the descriptions of services mentioned in section 43A(1) above, the reference in subsection (9)(a) above to a category of services is a reference to the same category of services or to any other category of services falling within the same description".

(2) Sections 43A and 43B of the 1977 Act, as substituted by this section, have effect in relation to—

1. (a) the making of determinations on or after the commencement of this section, and
2. (b) the variation, revocation or revision on or after the commencement of this section of determinations whenever made,

and in this subsection "determinations" means determinations under Part II of the 1977 Act of the remuneration to be paid to persons who provide services mentioned in section 43A(1).

(3) Section 7(4) of the Health and Social Security Act 1984 and section 15(3) of the Health and Medicines Act 1988 (determinations of remuneration for services under Part II of 1977 Act deemed to be valid) have effect in relation to England and Wales as if—

1. (a) after "inserted by this section" in section 7(4)(b) of the 1984 Act, and
2. (b) after "section 7 of the Health and Social Security Act 1984" in section 15(3) of the 1988 Act,

there were inserted "and before the coming into force of section (Remuneration for Part II services) of the Health Act 1999".

(4) The reference in section 43B(6) of the 1977 Act, as substituted by this section, to section 29(4) of that Act is to be read on and after the commencement of section 10 of the National Health Service Act 1966 as a reference to that section. ").

The noble Baroness said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 37, which makes similar provision for Scotland and replaces the current Sections 28A and 28B of the 1978 Act.

The purpose of these amendments, which would replace the present Sections 43A and 43B of the 1977 Act, is to make new provision for determining the remuneration of the family health service practitioners; that is, those providing general medical services, general dental services, pharmaceutical services and general ophthalmic services. The intention is, in effect, to legitimise the current practice in relation to these determinations and, in particular, to ensure that the existing basis by which health authorities are appointed as determining authorities is put on a firmer footing. This is largely a technical issue which, I am told, accounts for the length and the complexity of the amendments.

The Explanatory Notes to the Health Bill make clear in paragraph 106 the Government's intention to give primary care trusts the function of determining cash-limited payments to GPs. We see the development of primary care as an important part of a primary care trust's role. The ability to determine cash-limited payments to GPs to support general medical services is central to this. It will allow primary care trusts to make decisions about the deployment of resources to develop general practice premises and computing and to help practices with the costs of employing staff. These are key levers in improving primary care. Part of this function currently rests with health authorities.

We want to enable primary care trusts to assume the function of determining remuneration in respect of cash-limited payments to GPs through the delegation of the function in accordance with the general provisions about delegation contained in Clause 9.

Sections 43A and 43B of the 1977 Act provide a mechanism for appointment of determining authorities by the Secretary of State. In looking at how we might use this provision, it has become clear that the existing legal basis by which health authorities themselves are appointed as determining authorities is unsatisfactory. Determinations of remunerations are presently, in effect, governed by Sections 43A and 43B of the 1977 Act, but these provisions are not yet in force and, consequently, no regulations can be made under them. Meanwhile determinations are validated by Section 7(4) of the Health and Social Security Act 1984. Although this has been the position since 1984, over time this arrangement has become increasingly unsatisfactory. To ensure that the function of health authorities as determining authorities in respect of cash-limited payments to GPs and the subsequent delegation of that function by health authorities to primary care trusts is securely based, this legal deficiency now needs to be put right.

Additionally, Sections 43A and 43B also concern the remuneration of other family health service practitioners. We need therefore to take the opportunity to tidy up the legal basis for determinations of remuneration for all the family health services professions.

Much of the existing structure and present provisions will be retained. In particular, they provide for the Secretary of State to make regulations setting out requirements concerning consultation and publishing determinations. It is not intended either to extend or to reduce the current practice in terms of who is consulted or when, nor in terms of which determinations are published.

In essence, these changes are a tidying up exercise that will reflect and validate current practices. For example, the Secretary of State will continue to be required, through regulations made under these provisions, to consult the national representative bodies of each of the family health service professions before making changes to payments that affect that group. These changes are ones to the GPs' Statement of Fees and Allowances, commonly referred to as the "Red Book", or the equivalent for the other family health service practitioners. Primary care trusts' discretion in respect of cash-limited payments to GPs will be circumscribed in the same way as health authorities' discretion currently is; that is, it will be subject to the provisions set out in the GPs' Statement of Fees and Allowances. Where the Red Book dictates, for example, that health authorities must consult local medical committees, the same requirement will apply to primary care trusts.

The amendment also puts on a firm legal footing the basis for remunerating other FHS practitioners—dentists, community pharmacists and optometrists. However, primary care trusts will not be appointed as determining authorities for non-GMS Part II matters. The Bill explicitly and deliberately precludes primary care trusts having any functions in respect of these.

I acknowledge that these provisions are lengthy and technically complex, although no more so than those they replace. The reason for this is that the remuneration systems which they underpin are themselves complex. I hope that I have given adequate justification for the amendments we are proposing. I beg to move.

Earl Howe

My Lords, the House will be grateful to the Minister for her explanation of these amendments. I have one brief question to ask on Amendment No. 37. In the amendment, under subsection (2) of new Clause 28A, I see that the determining authorities are defined. The Secretary of State is one of the determining authorities. Since health is a devolved matter, can we take it that the role of the Secretary of State will be assumed by the First Minister for Scotland, and that therefore we may, in due course, see different fees and allowances north of the Border from those that are in operation south of the Border?

The Earl of Mar and Kellie

My Lords, I wish to ask about Amendment No. 37. Looking at subsection (5) of new Section 28A and subsection (2) of new Section 28B, I see that the Bill seems to be introducing the idea of variable remuneration being permissible to enable services to be procured in difficult localities. Is that a new principle? If it is, is it intended to secure such services in, let us say, urban areas of deprivation, or is it aimed more at remote rural areas and the three island groups? Or is the intention to unleash a complete free-for-all in remuneration within the 15 health board areas, which, I confess, I do not see as being very helpful?

Baroness Carnegy of Lour

My Lords, my noble friend Lord Howe asked a question that is extremely important to people in Scotland. If "the Secretary of State" referred to in the Scottish amendment is the Secretary of State for Scotland, or a Minister of the Scottish Parliament—I imagine it means the latter—there is no reason at all why doctors and nurses, pharmacists, dentists and so on should not gradually receive salaries that diverge considerably from those south of the Border.

If the Minister will confirm that, it will help Members in another place when they come to study the Bill to know exactly what the implications are. Taking this legislation at Westminster will not enable the Scottish Parliament to examine this arrangement at all. It may or may not suit the Scottish Parliament.

Can the Minister confirm that the two amendments are virtually identical apart from the cross-references to the legislation that they amend? I cannot find any differences, but I may not have spotted them and it would be helpful to know.

Lord Clement-Jones

My Lords, I thank the noble Baroness for attempting to clarify what is obviously the Schleswig-Holstein question for the Department of Health. To mix metaphors further, I suspect that it is a kind of Bermuda triangle for politicians to get into in the first place. A number of issues arise from the clause. Perhaps the Minister will forgive me if I re-tread some of the ground that she covered in her introduction.

We assume that the department has now obtained independent legal advice and in a sense this provision cures the issues that it was designed to cure and we shall not be faced with a re-run of this matter at a future date in relation to another health Bill. Further to that, will the powers in the new clause be used only to allow PCTs to deal with the cash-limited payments made to GPs for their staff, premises and computers? Will the Minister give a reassurance that when a PCT takes over any of the powers of a health authority relating to the remuneration of GPs, the PCT will be under the same duty as a health authority is currently to abide by the rules in the Red Book? For example, when the Red Book requires a health authority to consult the LMC, will a PCT also be required to consult that body? Will the Minister give examples of how a PCT might use its powers as a determining authority. Subsection (5)(a) of new Section 43B states that: Determinations may, in particular, provide that the whole or any part of the remuneration … is payable only if the determining authority is satisfied as to certain conditions". What will those conditions be? Will they be decided by the Secretary of State, or locally?

Finally, will the Minister give an assurance that PCTs will not be allowed to use their status as determining authorities to allow local variations from a national contract for GP remuneration?

Lord Colwyn

My Lords, this is a long new clause. I have seen it for the first time this afternoon. Will the Minister say when this amendment was published and whether she has had a chance to receive representations from the professional bodies referred to in new Section 43A. It is the first time that I have heard about it and I do not know, for instance, what the British Dental Association feels about it.

Baroness Hayman

Yes, my Lords, the amendment is complex. It is my understanding, which perhaps I may confirm at a later point to the noble Lord, that there have been discussions with the professional bodies on this area and that they understand the reason for bringing forward these amendments. It was very much an issue of the previous arrangements being on the basis of legislation built on legislation, on powers that have never formally been brought into force, and therefore not providing a secure legal framework. There was an anxiety not to put in place an additional layer of reliance on provisions that were not themselves fundamentally secure. Therefore the opportunity has been taken to tidy up the general basis for the determination of remuneration. I am clear that that will not come as a surprise to the professional bodies concerned.

On the issue of the Scottish provisions, I understand that the amendments for Scotland, England and Wales are fundamentally the same. I also understand that this will be a devolved matter and therefore it will be possible for different decisions to be taken north and south of the Border—although, to respond to the point made by the noble Earl, Lord Mar and Kellie, the provision is certainly not intended to allow for a free-for-all, but to allow local flexibility where it is required. That might be in a variety of different circumstances. Both the rural and the inner-city example could have relevance. The provision is based very much on flexibilities which are already in place and are used, rather than introducing a novel concept in this area.

On the specific questions raised by the noble Lord, Lord Clement-Jones, the purpose of the amendment so far as PCTs are concerned is to allow them to take on the function of determining cash-limited payments to GPs for those purposes. It also allows PCTs to set up and make payments in respect of general medical services local development schemes. That is a new flexibility that we have recently introduced to enable health authorities to establish what are in effect local incentive schemes to improve the standard and range of services provided within GMS.

The noble Lord asked for a reassurance about consultation. When the PCT takes on the function from the health authority of making cash-limited payments to GPs under the Red Book arrangements, it will also inherit any duty to abide by the Red Book which applies to the health authority. The point of delegating that function to PCTs is not to change Red Book arrangements but to give PCTS the ability to deploy resources into general medical services in support of those services.

The noble Lord asked for examples of how PCTs might use their powers as determining authorities. It would be broadly in one of two ways: first, to deploy resources into general practice under the existing national GP contract or Red Book arrangements to support the cost of employing practice staff or to support the cost of premises development or practice computers; or to set up with GMS local development schemes with the agreement of local GPs, in the same way as health authorities now can. This might involve, for example, funding of practices to provide chronic disease management programmes not covered by the Red Book or local incentives to improve coverage of immunisation programmes.

The noble Lord, Lord Clement-Jones asked about certain conditions which would have to be fulfilled if determinations were to take place. For payments made under the Red Book, the Secretary of State will, as now, continue to set down any conditions for those payments and will define, again as now, any discretion that health authorities and PCTs may exercise.

Health authorities and PCTs will have the same degree of discretion and duties under the Red Book. For GMS local development schemes which are outside the Red Book arrangements, the Secretary of State has set the parameters for the operations of those schemes in regulations. The regulations will apply to health authorities and PCTs. Within that framework, PCTs, like health authorities, will be able to determine the conditions that will apply to local development schemes. I am happy to give the assurance that the status of PCTs as determining authorities will not allow local variations from the national contract. PCTs will be required to comply with the national contract in the same way as health authorities.

I hope that I have covered the points that were raised in the debate. I shall write to noble Lords if I have missed any points.

On Question, amendment agreed to.

4.30 p.m.

Clause 9 [Directions]:

Baroness Hayman moved Amendment No. 6:

Page 12, line 10, leave out ("16C") and insert ("16D").

The noble Baroness said: My Lords, in moving Amendment No. 6, I wish to speak also to Amendments Nos. 10, 11, 12, 63, 64, 72 to 74, 79, 82 to 85 and 91. Although it is a large group of amendments, I shall try to be brief. They bring forward provisions in relation to two issues which we discussed at Committee and Report stages: the "may or must" point, if I may characterise it as that, about publicising PCTs' audited accounts, annual reports and other documents; and a requirement on PCTs to secure appropriate professional advice.

On the first point, at Report stage I undertook to bring forward appropriate amendments on Third Reading that would have the effect of placing on PCTs an express duty to publicise the specified accounts and reports in accordance with requirements set out in regulations.

Amendments Nos. 63 and 64 meet that commitment. They require the Secretary of State to make provision in regulations requiring PCTs to publicise the relevant document. The regulations will set out what steps to publicise must be taken by the PCT. The Secretary of State, however, retains his discretion to determine in the regulations exactly what those steps should be. For example, the regulations may specify when the accounts and reports must be published and whether the list of documents that must be publicised should be extended to those other than accounts, annual reports and auditors' reports on matters of public interest. That arrangement will have the added benefit of retaining flexibility, to cater for future changes in circumstances.

On the second point, I said on Report that I intended to bring forward a government amendment so that PCTs, as well as health authorities, have a duty to make arrangements to secure appropriate professional advice. This is in response to a specific proposal during Committee from the noble Lord, Lord McColl, for which I am grateful. It also reflects a view which I think commands a good deal of support in the House—and which the Government certainly share—namely, that PCTs should secure sound professional advice from a wide range of groups in carrying out their functions.

There will, of course, need to be strong professional input into the way that PCTs are governed. But we also want PCTs to have arrangements for involving health professionals which extend beyond the "members" of the PCT. PCTs also need to engage with the broad mass of local GPs and community health service professionals, who are not PCT members. In developing local commissioning strategies and service agreements they need to involve, for example, acute sector clinicians, those engaged in NHS education research, Professions Allied to Medicine and the family health service professions. The importance of all those groups has cropped up at various points in our debates.

The amendment we have brought forward effectively mirrors the existing duty which Section 12 of the 1977 Act places on health authorities but also extends it to PCTs. When we looked at Section 12 we found that it referred specifically to some professions—namely, medical practitioners, nurses and midwives—but not to others. We think this distinction is unhelpful. It could be interpreted as implying that the contribution of other professions is somehow less important.

I turn to Professions Allied to Medicine, which I know has had particular concerns on this matter. A key point about our proposed provision is to ensure that groups like the PAMs are involved in shaping and delivering PCT plans. We want to remove the specific reference to doctors, nurses and midwives in the existing duty in order to reinforce the message that these are not the only groups that must be consulted. We are, in effect, putting PAMs on an equal footing with these groups in terms of PCTs' duty to secure professional advice. Perhaps I could also make clear that there must be flexibility in the precise balance of professional members at level 4 to reflect local circumstances, and in some cases it may be sensible and helpful to have PAMs on the PCT executive. I should add that PAMs could also of course be invited to take part in board discussions at level 3 on matters where they have a particularly important contribution to make.

To return to the amendment, we have opted for a duty to consult which is couched in a way which does not give special status to any professional group. But otherwise the new duty is essentially the same as that in Section 12 with the key difference that it applies to PCTs as well as health authorities. The amendment requires both these bodies to make arrangements to seek advice from healthcare professions in carrying out their functions. This is an important provision which further bolsters the role of professionals in PCTs.

The amendment inserts this new provision as Section 16C. Consequently the original Section 16C in Clause 9 has been re-numbered as Section 16D. The remaining amendments in this group are to reflect that re-numbering and to pick up on a number of references to the old Section 13 which is replaced by the new Section 16D. I beg to move.

Earl Howe

My Lords, once again, on this side of the House, we are grateful to the Minister for an extremely helpful set of amendments and for the way in which she has spoken to them. I do not believe that at the outset of her remarks she mentioned Amendment No. 73, but it is one of the key amendments in the group. For the sake of clarity, perhaps I should ask her to confirm that she was speaking to it.

Baroness Hayman

My Lords, I specified Amendments Nos. 72 to 74 which I took to include Amendment No. 73. I am glad to clarify the point.

Earl Howe

My Lords, I am grateful.

Lord Clement-Jones

My Lords, I also thank the Minister for what I agree is a helpful set of amendments. That refers particularly to resolving the "may or must" issue throughout all stages of the Bill. I thank her also for dealing with a problem which the Professions Allied to Medicine was keen to see cured. It is grateful to have its best, most optimistic hopes being realised in terms of the way that section has now been changed in the 1977 Act. That is extremely helpful.

The only remaining aspect on which the Minister could be even more helpful—and this is somewhat of a side wind in the context of level 4 PCTs—is that the department definitely expects the PCT executives at level 4 to involve and, in some cases, consist of Professions Allied to Medicine. That would be a positive sign to those professions that their involvement would be actively supported. In the meantime, we very much welcome the set of amendments.

Lord Skelmersdale

My Lords, I add my thanks to the noble Baroness for this comprehensive set of amendments, especially Amendment No. 73 which I am delighted to see is list-free.

On Question, amendment agreed to.

Baroness Masham of Ilton moved Amendment No. 7:

Page 12, line 24, 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 was most encouraged at Report stage by the support which your Lordships gave for my amendment on out-of-area treatment. For that reason I move Amendments Nos. 7 and 18 today. The Minister said that the fragmentation of responsibility in the past made it difficult to ensure co-ordinated planning and commissioning of specialised services. The Minister also said that the Government were giving regional offices clear responsibilities for ensuring that proper arrangements were in place and would require all health authorities, primary care groups and primary care trusts to participate in that.

Many bodies are involved. The noble Lord, Lord Walton of Detchant, said during Report stage that in some instances specialist units were uncertain as to the future flow of patients and consequently their future funding arrangements. To have these amendments written into the Bill places emphasis on the importance of out-of-area treatments. Amendment No. 7 deals with the general powers of the Secretary of State to issue directions to National Health Service 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. 18 provides that the duty of co-operation should extend to OATs, making sure that they are covered in the Bill. Specialised medical conditions do not always fit into the flow patterns that health authorities might have arranged. Sometimes there are very difficult and complicated cases. Flow patterns might have been arranged with a hospital, such as the one at Bristol, where doctors and parents had lost confidence in the clinical results. I am pleased to hear that with a new surgeon Bristol has now improved, but that is an example of how matters can change. There should be flexibility and choice for patients, carers and doctors.

It is cost-effective in the long run to provide the correct diagnosis and treatment quickly with a fully trained medical team who have knowledge and expertise and who can solve difficult problems. Sometimes sophisticated and expensive equipment is needed for difficult diagnoses. Often it is found only in select hospitals that deal with complicated conditions. To advance in medical research and development patients need to be treated in units that have an interest in and are motivated by their conditions and, ideally, have links with universities.

We live in a fast-changing world and must not fall behind. In last Saturday's Daily Express the case of Helen Smith, aged 24, was highlighted. She had her arms and legs amputated after contracting meningitis. So far officials at Addenbrooke Hospital in Cambridge will not pay for bionic hands and lightweight artificial legs to help her walk properly. On her arms she has a stump and a claw. I gave the Minister notice that I may bring up this case. This young woman has a university degree in molecular and cellular biology and wants to return to independent living and work. She needs the expertise of an orthopaedic limb-fitting centre. Why do severely disabled people have to fight so hard for what should happen smoothly and efficiently through the NHS so that they can get on with their lives and overcome human tragedies with help and support rather than bureaucratic injustice?

The British Medical Association says that there is lack of clarity and detail in the Bill about the way in which health services will work at district and regional levels and how services commissioned by primary care trusts will fit into this process. The Bill does not make clear how the formal mechanisms for joint working will be achieved and how the existing procedures for commissioning, which are now not working adequately, can be improved. What mechanisms will be in place to achieve an overview of the planning at regional level of services commissioned by primary care trusts? What mechanisms will there be to involve hospital consultants in the decision-making process of PCTs?

Although the Bill makes provision for the functions of primary care trusts, there is no clear direction for joint working between all relevant local health and social service agencies. I believe that Amendment No. 18 will help to achieve this. Currently, some services are commissioned by a lead health authority on behalf of the other health authorities in the region. Some services are provided on a regional or supra-regional basis. What will be the effect of the Health Bill on those services? What reassurances can the Minister give that those services will be protected? This service includes many vital specialties.

The College of Health, which is a body dedicated to patient-centred care, is also concerned about these issues. On "Newsnight" on Tuesday night the need for out-of-area treatment was highlighted. It showed adolescent and young adult patients who needed vital heart treatment at Brompton Hospital. Some patients said that if they had not received the treatment with the help of GUCH (Grown-Up Children's Heart Charity) they would have died. Dr. June Sommerville, a world-renowned heart specialist, said that because some young people had not been transferred they had died.

I thank both the noble Baroness, Lady Hayman, and the noble Lord, Lord Hunt of Kings Heath, for their communications. Both Ministers have great knowledge of the National Health Service, but this is a new Bill. I believe that out-of-area transfers should be on the face of the Bill. I hope your Lordships will agree that this is a matter of life and death for many people. I beg to move.

4.45 p.m.

Earl Howe

My Lords, I rise to support these amendments, to which I have added my name. The Minister was kind enough to write to me earlier this week following our debates at Report stage. I am grateful for her explanation in that letter of how out-of-area treatments are to be commissioned and funded. However, I share the perception of the noble Baroness, Lady Masham, that there is still a good deal of uncertainty within the health service as to how these commissioning arrangements will work and, in particular, what mechanisms will operate at district and regional levels to enable a proper strategic view of specialisms, such as cardiac and renal services, to be taken and to ensure that the advice of the specialists themselves is taken into account. What joint working arrangements will there be between all those who have a professional interest in the planning of services?

I should like to ask the Minister about the range of specialisms that health authorities and PCTs will be expected to commission under long-term service agreements. How many specialisms typically will these agreements cover? What will happen when there is a need for a certain specialist service for which there is no agreement in place? The worry that has been expressed to me is that none of this bodes very well for patients because the decisions of regional specialist commissioning groups will be binding. Yet there will be no patient or carer involvement in those decisions, as there will be for public health and health authority managers.

Nor are there any structures in place for the views of patients and carers to be heard and acted on at regional level. Even more importantly there is no provision for an appeals mechanism against refusals to fund out of area treatments. CHCs have no rights of representation at regional level. There is no provision for patient and carer feedback into the commissioning process and the subsequent monitoring and evaluation of provision. Nor does there appear to be any mechanism for patients to find out what specialised commissioning arrangements apply to their areas.

I turn to a different aspect of the issue. I wonder why it is that when waiting lists are so long, as they are at present, limits are now being imposed on the referral of patients from overstretched hospitals to those which may have spare capacity. There is a need for greater flexibility, not less, in the way the system operates. The Government need to explain more fully how the proposed arrangements will not work in practice to the detriment of patients.

I share the view of the noble Baroness, Lady Masham, that these are important questions. I look forward to hearing what the Minister has to say.

Lord Walton of Detchant

My Lords, I support the amendments. I wish to take this opportunity to express my sincere thanks—other noble Lords have also expressed their thanks—for the way in which the Minister has met so many of the concerns expressed throughout the Bill's passage. I know that I speak on behalf of noble Lords on these Benches. The pharmaceutical industry and the professional regulatory authorities also feel that virtually all their concerns have been met.

I support the views expressed by the noble Baroness, Lady Masham. I do not propose to redeploy the arguments I expressed at Second Reading and Committee and Report stages about the crucial importance of out of area referrals not only for those patients suffering from rare conditions but also those who suffer from common conditions. There is clear evidence that in the treatment, for instance, of diabetes a referral to a highly specialised centre brings greatly improved outcomes in relation to patient care. One could redeploy the arguments relating to the specialised treatment of cancer, to the highly specialised specialties such as cardiac surgery, cardiology, neurology and many more.

One of the great strengths of the old NHS—if I may speak about it in that way—was that regional planning made it possible to define those hospitals in which regional services would be provided. Primary care was provided by the general practitioners. Secondary care was provided in virtually every district hospital. But the more difficult problems were referred to regional or sub-regional centres which were carefully planned. One of the unexpected and unforeseen effects of the internal market introduced by the former government was that extra-contractual referrals diminished sharply. That meant that many patients deserving of highly specialised care were not referred to those specialised centres. Not only did that have a detrimental effect on the care of many individuals, it had a devastating effect on clinical academic medicine, which often depends on such referrals for its very existence.

For that reason alone, and for many of the others expressed by the noble Baroness, I strongly support the amendments. From what the Minister said when debating the last group of amendments, I understand that hospital consultants among others will be consulted about the activities of primary care trusts. That will greatly reassure the BMA. When the noble Baroness answered some of our questions on the topic in Committee and on Report she was able to give many reassurances. But the future of specialised patient care in the NHS and the future of clinical academic medicine depend upon having effective answers to the problems posed in the amendments.

Baroness Sharp of Guildford

My Lords, I support the amendment and endorse the reservations expressed from other Benches.

As the Minister said at Report stage, health authorities and their partners will still need to set specialised commissioning issues alongside their local priorities. We accept that the new spirit of co-operation which will pervade the National Health Service in future means that the new arrangements can or may be more coherent and purposeful. But the fact remains that health authorities and primary care trusts will still be constrained by their budgets and will be under constant pressure to buy the cheaper local services rather than to go elsewhere for more expensive services. Therefore there is the tendency to ration by postcode.

My attention was brought last weekend to a patient who urgently needed a heart bypass operation. His cardiologist reckoned that he had only a week to live if he did not have one. However, it was January and his health authority had exhausted the quota of bypass operations that it had bought from a specialist hospital outside the area, and there was no way round that. That was despite the fact that the cardiologist estimated that he had only one week to live without the operation. The specialist hospital concerned had excess capacity; namely, both its operating theatres and its specialist staff were not being used at that time.

That picks up the problem raised at Report stage by the noble Lord, Lord Winston. The noble Lord, Lord Walton, reiterated it. He spoke about unused specialist facilities and specialist staff being laid off. Yet I confess that I see little in the proposals at present to alleviate the problem. We shall still be confronted by constrained budgets and the purchaser provider provisions which are at the centre of the internal market. As my noble friend Lord Clement-Jones said at Report stage, these are the litmus test of whether the internal market continues.

It is vital for patients in this country to have access to the most appropriate and best possible care, even if it is not available within their area. We should be glad to have assurances from the Minister that I have interpreted the matter wrongly and that those facilities will be available.

Baroness Fookes

My Lords, I warmly support the amendments in the name of the noble Baroness. I prefer not to rely on some nebulous spirit of co-operation, but to have a provision written firmly on the face of the Bill. I do not believe that there ever was a golden age in the NHS when it was easy to send people out of area. As a constituency MP, I recall having the greatest difficulty under previous reforms when trying to help someone who needed that out of area support. I therefore take a rather jaundiced view as to whether the concept will work if it does not get a good shove on the face of the Bill. I am sure the Minister will give us some reassuring words about what is planned. But I should still like to see the provision on the face of the Bill. In the absence of any proposal from the Minister, I warmly support the amendments in the name of the noble Baroness.

Lord Renton

My Lords, I, too, support the amendments. I revert to Report stage, when some of us mentioned specialised services that were already available. At first I doubted whether the amendment was necessary because I wrongly assumed that those services would be avilable throughout the country. However, in a powerful speech, the noble Lord, Lord Winston, put me right. He mentioned that the situation varies a great deal. We know that the Government have the good intention of wanting to make the services readily available everywhere—involving travelling, of course; that cannot be avoided.

I remind your Lordships of what the noble Lord, Lord Winston, said. The noble Baroness, Lady Sharp, referred to it. He stated: 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 terras of training and research, and a saving of money". —[Official Report, 15/3/99; col. 560.] He then said that he strongly supported the amendments.

It is arguable that under the Bill there is power to provide these services, but there does not seem to be an obligation to do so. We know the Government want that to be done but surely it would be better to make it clear in the Bill that there is an obligation on the part of the Secretary of State and the various bodies which will be helping him in providing health care in the future. We should make it clear that there is an obligation to extend specialist services so that they are available all over the country. For that reason no harm could be done by accepting the amendments; indeed there would be a very great advantage.

5 p.m.

Lord Skelmersdale

My Lords, as I understand the position the proposed new arrangements for regional specialised commissioning centre upon an indicative list of specialised services. Health authorities will, as I understand it, only be expected to make arrangements for a limited number of specialisms each year. This is bound to continue the unfairness that has already been referred to at Report stage as treatment by postcode. For example, patients needing access— and here I declare an interest as chairman of the Stroke Association—to specialist stroke units will be able to have that if they are in the right area, otherwise not. Patients with rare diseases or complicated illnesses will find it much more difficult to have access to centres of expertise or specialist consultants.

Like my noble friend Lord Howe, I can find no provision for appeal against refusal to fund out-of-area treatments and community health councils have no rights of representation at regional level. All this leads me to conclude, like my noble friend Lady Fookes, that we need to refer to what my noble friend Lord Renton calls "this obligation" on the face of the Bill.

Lord Hunt of Kings Heath

My Lords, this has been a most important and interesting debate. I am most grateful to the noble Baroness, Lady Masham, for once again allowing us to discuss these important issues. I am very well aware of the concerns that many members of your Lordships' House have about the proper availability of specialist services within the National Health Service. It is a fact, as the noble Baroness, Lady Fookes, said, that there has never been a golden age. There has always been a tension between the proper provision of specialist services and the appropriate provision of local services. My own view is that the internal market added to the problems. No one should underestimate the challenge that the NHS faces in ensuring that we reach the right solutions in terms of a balance between specialist services and the services that one would expect to be provided in one's local area.

I believe that the action which the Government are taking in this area will enable us to meet many of the concerns that noble Lords have. Notwithstanding the ever present tension that I have already described, I believe that the arrangements that applied under the internal market were responsible for many of the problems that have been discussed.

It was certainly the case that fragmentation of responsibility within the internal market made it more difficult for specialised units to work together with all those who referred to their services, so as to agree how the service should develop, and how it could best be dovetailed with local services to ensure that there was a proper continuum of care that patients require. There was no mechanism for agreeing priorities for investment, so as to offer specialised centres a proper context in which to plan, to devise research programmes, and so forth. There was too much dependence on the system of "extra contractual referrals"—ECRs as they came to be known—which was designed for one-off cases, not to support the development of complex services. And for the patient and their clinician, the ECR system meant a bureaucratic obstacle, in the form of requirement to obtain "prior approval" from the health authority before referral to the specialist centre went ahead. So patients, clinicians and specialist units all had real cause for concern about the impact of these arrangements. I understand the anxiety of noble Lords to ensure that the arrangements we are putting in place will be better. I want to reassure the House on this point. There are two important strands to the action we are taking: first, that there are new, coherent arrangements to plan and commission specialised services; and secondly, new, less bureaucratic arrangements are being put in place to cover the small minority of cases where it is not possible to plan ahead.

The arrangements for specialised services commissioning recognise that these services form much too important an element of the NHS to allow their development to be left to chance, or to the goodwill of individual clinicians, units, or individual commissioning bodies or indeed to the urgings of patient groups. That is why we have charged NHS executive regional offices with ensuring there are proper, coherent arrangements in place to plan, commission and (through long-term service agreements) fund specialised services. This is essential both to ensure patients have fair and appropriate access to specialised services when they need them, and to enable the units concerned to plan ahead with confidence and, if I may say so, to provide the flexibility which the noble Baroness, Lady Masham, requested in what she aptly described as a "fast changing world".

As a first step, regional offices have been working with local NHS bodies to identify those collective arrangements to commission specialised services that already exist, and ensure that all health authorities and primary care groups are covered by these. There will then be a rolling programme of reviews to tackle national priorities and the priorities for attention identified in each region, and ensure that robust arrangements are in place. The result will be agreements between a group of health authorities and their primary care groups and a specialist centre, covering the service to be provided, the flow of funds, the quality standards to be expected, the intended outcomes of treatment, and other important aspects of the service. All GPs in the area covered will be free to refer patients to such a centre in line with the agreement concerned. I believe this is the best course wherever a pattern of need and referrals can be identified. But the Government also recognise that there will be a minority of cases which do not fit these arrangements, and for which provision must also be made; for example when a serious illness or injury occurs away from home, or where a patient has a rare condition and the health authority or primary care group's service agreements do not cover the specialist centre best equipped to help.

This is where the arrangements for out-of-area treatments (OATs) come in. The principle of out-of-area treatments is to make proper and non-bureaucratic provision for these unpredictable but pressing cases. Where a specialist centre can identify a pattern of receiving "one-off referrals from outside their area in circumstances such as these, the arrangement is that the funding allocation to its "main commissioner" (usually the health authority in which it is located) will be increased to reflect this pattern of referrals. The main commissioner will then add this funding to its own service agreement with the trust. This will become an agreement against which "all comers" can be treated, admitted according to clinical priority by the specialist unit.

I believe that together, the arrangements for commissioning specialised services, and for out-of-area treatments, offer a secure framework within which specialist centres will be able to make their proper contribution to the NHS. It happens that this is an area where we can proceed without primary legislation. That is the reason that it does not appear on the face of the Bill, not because we attach any less importance to specialist services than to those matters where legislation is required.

The noble Baroness, Lady Masham, referred to the case of Helen Smith. I am most grateful to her for giving me advance notice of that. The clinicians in that case have offered what they consider to be the best possible artificial limbs for her condition, which they believe will be most comfortable and at the same time provide her with the greatest flexibility. Experts at Addenbrooke's Hospital which is a regional disablement centre, have suggested the coverings in the bionic-electric hands which would best suit her, but she has declined them. They have also offered the possibility of referral to another NHS specialist centre, the Royal National Orthopaedic Centre at Stanmore.

The noble Baroness, Lady Masham, also referred to a story in yesterday's "Newsnight" programme about the Brompton Hospital. Like other specialist services, those services should benefit from the systematic approach for the review and commissioning of specialist services to which I have referred. I cannot give a definitive answer today in relation to the specific issue she raised, but I can say that one of the national priorities we have identified for action during 1999–2000 on specialist service commissioning is a specialist cardiac service. I hope that that will ensure that some of the issues raised will be met.

The noble Earl, Lord Howe, referred to the definition of specialist services. There is no fixed definition and as the noble Baroness, Lady Masham, suggested, there needs to be flexibility, given the fast changing circumstances with which the NHS is often faced. In a circular issued by the Department of Health, a list of potential specialist services was set out, but it highlighted the difficulty in attempting to produce something definitive. I should be happy to send the list to the noble Earl because it offers a starting point that is being worked on by every regional office.

We are asking the regions and the NHS to concentrate, first, on some selected national specialties—for example, cancer and paediatric intensive care units—and during 1999–2000, medium-secure psychiatric services, cleft lip and palate services and issues of particular priority within each region, as each region faces different circumstances and different priorities. There will then be a rolling programme for examining other services.

That is practical because these matters require careful attention. It is sensible to take them through a rolling programme. The funding of specialist services not yet covered by such an approach will be covered by service agreements.

An important question was raised about the relationship between primary care groups and trusts and clinicians. We are stressing to those concerned that long-term service agreements must be based upon dialogue between clinicians in primary and secondary care. That same approach will inform the commission of specialist services, with input from those specialist commissions, which will be critical to effective discussions.

We recognise that it is important to get these mechanisms right. Regional offices will soon be reviewing the existing collective agreements and identifying the sharing of best practice. Issues of how best to assure the proper arrangements for input from clinicians, particularly in specialist services, will be covered in that review.

In relation to the important question of user and carer input, we are stressing to the service that this must be a feature of the new arrangements. Moving to a three-to five-year time scale in relation to service agreements will allow much more opportunity for the in-depth involvement of users and carers.

I noted with a great deal of interest the point made by the noble Lord, Lord Walton, about diabetes. That is identified as a future national service framework topic.

The noble Baroness, Lady Sharp, asked about resources. I can confirm that we must work within available resources, but I believe that moving to a stronger role for primary care groups and trusts in commissioning means that the balance must be struck between specialist and local services. It will be struck sensitively and appropriately and in an atmosphere in which the clinicians closest to the patients are very much involved in making those decisions.

The noble Lord, Lord Renton, referred to the variations in service availability throughout the NHS. I believe that the impact of the specialised commissioning arrangements to which I have referred—the development of service frameworks— will help to ensure a broad pattern of provision throughout the country. Of course, when one is dealing with specialist services at a regional level, one must reflect on the different priorities which will be set in different regions.

I wish to assure noble Lords that we are taking proper and careful account of these very important debates. We plan to issue guidance soon to the NHS setting out further details on the out-of-area treatment arrangements. We will ensure that it stresses the importance of pro-active planning around the development of new services, reserving the use of out-of-area treatment for those instances where a pre-arranged service agreement is impracticable. In commissioning guidance later this Spring—and I hope that this answers the point made by the noble Earl, Lord Howe, about the preparedness and awareness of the NHS—and in the light of debates in your Lordships' House, we shall pay careful attention to the proper balance between the different forms of commissioning, local service agreements, arrangements for specialised services and for out-of-area treatments so that together they best provide for the full range of patient needs.

I believe that those arrangements, combined with a duty of partnership, the crucial importance of the health improvement programmes which we developed within each area, the monitoring role of regional offices, and the close involvement of clinicians at all levels will ensure that we deal with these important matters in the appropriate way.

Finally, I assure the House that the new provisions in the Bill—the Secretary of State's powers of direction—will extend to specialised services. I hope that the House will feel reassured by my response and that the noble Baroness will feel able to withdraw her amendment.

Baroness Masham of Ilton

My Lords, I thank the Minister for that full reply, but something he said at the end of his speech worries me a great deal; namely that different regions might do different things. I also believe that the comments of the noble Earl, Lord Howe, about the right of appeal are very important.

I thank all noble Lords who have supported me because I believe that they want the provision to appear on the face of the Bill. I know that the noble Baroness, Lady Hayman, knows in her heart that if she were sitting on the other side of the House she would be campaigning with me. I remember very well that she and I campaigned about MRSA and pressure sores, but I understand her position.

I believe that we should have a go and see what the House thinks. Therefore, I wish to divide the House.

5.19 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 113; Not-Contents, 86.

Division No. 1
CONTENTS
Ailsa, M.	Kintore, E.
Ampthill, L.	Kitchener, E.
Anelay of St. Johns, B.	Lamont of Lerwick, L.
Astor of Hever, L.	Lauderdale, E.
Attlee, E.	Leigh, L.
Berners, B.	Lindsey and Abingdon, E.
Blaker, L.	Liverpool, E.
Bledisloe, V.	Long, V.
Bridgeman, V.	Lucas of Chilworth, L.
Byford, B.	Lyell, L.
Caithness, E.	McColl of Dulwich, L.
Campbell of Alloway, L.	McConnell, L.
Carnegy of Lour, B.	Marlesford, L.
Carrington, L.	Masham of Ilton, B.
Charteris of Amisfield, L.	Mayhew of Twysden. L.
Chesham, L.	Milverton, L.
Clanwilliam, E.	Molyneaux of Killead, L.
Clark of Kempston, L.	Monson, L.
Coleridge, L.	Morris, L.
Colwyn, L.	Mountevans, L.
Cope of Berkeley, L.	Moynihan, L.
Cork and Orrery, E.	Munster, E.
Courtown, E.	Murton of Lindisfarne, L.
Craig of Radley, L.	Napier and Ettrick, L.
Craigavon, V.	Naseby, L.
Crickhowell, L.	Newall, L.
Cross, V.	Noel-Buxton, L.
Cuckney, L.	Northesk, E.
Darcy de Knayth, B. [Teller.]	O'Cathain, B.
Davidson, V.	O'Neill of Bengarve, B.
Dixon-Smith, L.	Oxfuird, V.
Donegall, M.	Palmer, L.
Eames, L.	Pearson of Rannoch, L.
Ellenborough, L.	Pender, L.
Elton, L.	Rankeillour, L.
Fookes, B.	Renton, L.
Garel-Jones, L.	Renwick, L.
Gray, L.	Roll of Ipsden, L.
Hanningfield, L.	Romney, E.
Hayhoe, L.	Rotherwick, L.
Higgins, L.	Sandwich, E.
Holderness, L.	Selborne, E.
Home, E.	Simon of Glaisdale, L.
Hooper, B.	Skelmersdale, L. [Teller.]
Howe, E.	Soulsby of Swaffham Prior, L.
Hylton-Foster, B.	Stewartby, L.
Jopling, L.	Stockton, E.

Strafford, E.	Trefgarne, L.
Strange, B.	Trenchard, V.
Sudeley, L.	Tugendhat, L.
Swansea, L.	Vivian, L.
Swinfen, L.	Walpole, L.
Taylor of Warwick, L.	Walton of Detchant, L.
Tenby, V.	Weatherill, L.
Thurlow, L.	Wharton, B.
Torrington, V.	Wynford, L.
	Young, B.
NOT-CONTENTS
Acton, L.	Hunt of Kings Heath, L.
Alli, L.	Irvine of Lairg, L. [Lord Chancellor.]
Amos, B.
Archer of Sandwell, L.	Janner of Braunstone, L.
Ashley of Stoke, L.	Jay of Paddington, B. [Lord Privy Seal.]
Bach, L.
Bassam of Brighton, L.	Jeger, B.
Berkeley, L.	Judd, L.
Borrie, L.	Kennet, L.
Brooke of Alverthorpe, L.	Laming, L.
Burlison, L.	Levy, L.
Carter, L. [Teller.]	Lincoln, Bp.
Castle of Blackburn, B.	Longford, E.
Christopher, L.	Lovell-Davis, L.
Clarke of Hampstead, L.	Macdonald of Tradeston, L.
Clinton-Davis, L.	McFarlane of Llandaff, B.
Cocks of Hartcliffe, L.	McIntosh of Haringey, L. [Teller.]
Crawley, B.	Mallalieu, B.
Currie of Marylebone, L.	Milner of Leeds, L.
David, B.	Molloy, L.
Davies of Oldham, L.	Monkswell, L.
Donoughue, L.	Morris of Castle Morris, L.
Dormand of Easington, L.	Morris of Manchester, L.
Emerton, B.	Nicol, B.
Farrington of Ribbleton, B.	Peston, L.
Gainsborough, E.	Ponsonby of Shulbrede, L.
Gilbert, L.	Ramsay of Cartvale, B.
Goudie, B.	Richard, L.
Gould of Potternewton, B.	Rogers of Riverside, L.
Graham of Edmonton, L.	Sainsbury of Turville, L.
Grenfell, L.	Scotland of Asthal, B.
Hacking, L.	Shore of Stepney, L.
Hanworth, V.	Simon, V.
Hardie, L.	Simon of Highbury, L.
Hardy of Wath, L.	Stoddart of Swindon, L.
Harris of Haringey, L.	Strabolgi, L.
Haskel, L.	Turner of Camden, B.
Hayman, B.	Walker of Doncaster, L.
Hilton of Eggardon, B.	Warner, L.
Hollis of Heigham, B.	Wedderburn of Charlton, L.
Howie of Troon, L.	Whitty, L.
Hoyle, L.	Williams of Elvel, L.
Hughes, L.	Williams of Mostyn, L.
Hughes of Woodside, L.	Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

5.28 p.m.

Baroness Hayman moved Amendments Nos. 8 to 12:

Page 12, line 28, after ("28A") insert ("41A").

Page 13, line 24, at end insert— ("( ) Subsection (3) of section 17 of the 1977 Act applies in relation to the powers to give directions conferred by sections 4, 6 and 8 of the National Health Service (Primary Care) Act 1997 (proposals for, and making, variation and termination of, pilot schemes) as it applies in relation to the powers conferred by any of the provisions mentioned in paragraphs (a) to (c) of that subsection. ").

Page 13, line 29, leave out ("16C") and insert ("16D").

Page 13, line 32, leave out ("16C") and insert ("16D").

Page 13, line 36, leave out ("16C") and insert ("16D").

The noble Baroness said: My Lords, these amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

Clause 15 [Duty of quality]:

Lord Clement-Jones moved Amendment No. 13:

Page 16, line 30, 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, on Report the Minister said: 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 ". —[Official Report, 15/3/99; col. 581].

We debated the definition of "healthcare" in what was then Clause 13 both on Report and in Committee. I make no apology for returning to this to ask the Minister whether she finds that definition in good or bad health after her examination of the "entrails", which I thought was a particularly apt expression to come from a Minister responsible for health.

Many issues are involved in this matter, which we have debated at some length. However, it still seems to us on these Benches that that definition is defective. I cannot see how the delivery of babies is an illness, yet the Bill purports, in terms of quality, to regulate that. Also, it is still not clear that public health promotion is covered by the definition in terms of the duty of quality. This is crucial. If noble Lords consider the Minister's assurance in Committee that local authorities cannot charge for healthcare, they will recognise that the definition of "healthcare" is absolutely pivotal when it comes to the distinction as to whether or not a means-tested charge applies or whether the service is free at the point of delivery, as in the NHS. Those distinctions will become more and more important. That is why we must get the definition of "healthcare" right. Has the Minister had time to reflect on that? It will be a very important definition in the years to come. I beg to move.

5.30 p.m.

Baroness Hayman

My Lords, I have indeed reflected further, read the "entrails" and tested the issue, as I undertook to do at various points in our earlier debates. I have checked whether or not the present definition misses anything essential. I can advise the noble Lord and the House that I remain convinced that the duty covers all that it needs to.

One example cited by the noble Lord, Lord Clement-Jones, as a service which the duty must cover—he repeated it today—was that of the treatment of pregnant women and their care immediately after childbirth. I agree it would be quite wrong if such a significant area of NHS provision were to be excluded from the duty, but in fact this example demonstrates quite well the intentional breadth of the drafting as it stands. The noble Lord is quite right to say that pregnancy is not an illness; it is a perfectly natural and, by and large, healthy state. But the NHS has an important preventive role in normal childbirth: it is on hand to help make sure that nothing goes wrong, and that avoidable harm befalls neither mother nor baby before, during or immediately after labour. This is quite clearly within the scope of the Bill's definition.

The noble Lord referred to public health provision. Smoking cessation services and screening services would equally be covered by the definition and therefore by the duty of quality. Similarly, I remain of the view that the duty adequately covers nursing care—I referred on Report to the explicit reference to nursing in the part of the 1977 Act on which this definition draws. I think that what I said on Report about health promotion activity also holds true. As far as NHS trust and PCT provision is concerned, activities which promote health will also prevent illness, and vice versa.

In case your Lordships are still unconvinced, and perhaps fear that some services somehow will be "missed" by clinical governance as a consequence of the way the duty is worded, I should emphasise that clinical governance in NHS trusts and PCTs will be implemented on an organisation-wide basis. It will apply as much to trust-wide activities such as complaints, ensuring that staff are up to date with best practice, and detecting and tackling poor performance as it will to specific service areas. As a result, it is very difficult to see how any areas of clinically-related activity could in practice escape its impact.

I hope that the noble Lord will accept that my opposition to his amendment is not because of "pride of authorship", to quote what he said earlier. I share his concern that the duty should cover as full a range of provision as is practicable, but I also take the view that we should expand on the present form of words only if there are important gaps to fill. I have given this matter careful consideration and I believe that the duty as drafted is wide enough to cover the areas which the noble Lord has highlighted. In the light of that, I hope that he will feel able to withdraw his amendment.

Lord Clement-Jones

My Lords, I thank the Minister for that reply and am grateful to her for re-examining both the definition and the "entrails". The Minister's more comprehensive reply this time round and the previous absolute assurance that local authorities will not be able to charge for healthcare will be of considerable reassurance once the Bill has passed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 [The Commission for Health Improvement]:

Baroness Hayman moved Amendment No. 14:

Page 16, line 33, leave out from ("Improvement") to end of line.

On Question, amendment agreed to.

Clause 17 [Functions of the Commission]:

[Amendment No. 15 not moved]

Clause 19 [Restrictions on disclosure of information]:

Baroness Hayman moved Amendment No. 16:

Page 20, line 30, leave out from ("of') to end of line 31 and insert ("a serious arrestable offence, ").

The noble Baroness said: My Lords, in moving Amendment No. 16, I should like to speak also to Amendment No. 17. In previous debates, considerable concern was raised about this provision, which is Clause 19(5)(e). I have listened to mis concern, and am grateful for the comments on how we might amend the provision. As I indicated earlier, we have been reflecting on the most appropriate precedent to use to allow the commission to disclose confidential information only in connection with the investigation of a serious criminal offence. I hope these amendments will satisfy your Lordships' concerns.

The amendments have been drafted to allow disclosure of confidential information only in connection with a serious arrestable offence. Such offences would include murder, manslaughter and rape. For England and Wales, a "serious arrestable" offence is defined in accordance with Section 116 of the Police and Criminal Evidence Act 1984. That Act applies only to England and Wales, so a reference to it will not be sufficient to cover the investigation of serious arrestable offences in other parts of the UK. Therefore, we have also used the definition of "serious arrestable offence" in Article 87 of the Police and Criminal Evidence (Northern Ireland) Order 1989, to cover offences in Northern Ireland. I am informed that in Scotland there is no direct equivalent to the term "serious arrestable offence", but that the nearest equivalent term for an offence triable in Scotland would be an "offence triable on indictment". These definitions, we feel, capture those crimes which are of a sufficiently serious or grave nature to warrant the commission being allowed to disclose confidential information to the police for the purposes of an investigation.

I hope that noble Lords will feel that we are therefore meeting the concerns raised about the commission's lawful authority to disclose confidential information.

While on the general subject, perhaps I may take this opportunity to report back on the other matters; relating to confidentiality to which I undertook to pay further attention. In addition to the issue which I hope is resolved by this amendment, I undertook to look again at two further areas. They are, first, the safeguards on disclosure of information about the deceased and, secondly, safeguards regarding information which identifies an individual or enables that individual to be identified.

In these areas we have undertaken further discussion with the professions. It is important that we get this right From previous debates noble Lords will know that the question of handling information about the deceased is difficult Nevertheless, we wish to find a way forward which will properly safeguard the confidentiality of information relating to the deceased.

Noble Lords are aware that the extent to which the legal duty of confidentiality extends beyond death is unclear, and that, generally speaking, no one has a legal authority to give consent on behalf of a deceased individual for access to or disclosure of confidential information.

In the light of these significant legal uncertainties and complexities, we intend to issue guidance to the commission. We will look to further our helpful discussions with the professions on how such guidance might be drawn up; for example, how it might reflect the ethical duty of confidentiality that all health professionals have to their patients, living or dead, and how it might provide clarity on the circumstances under which information about the deceased might be disclosed where this is justified only on reasonable grounds. Any such guidance would also need to make clear the contractual duty of confidentiality that the commission's staff will have with regard to access to and disclosure of confidential information about individuals. We are considering whether there is an appropriate way of including a provision in the Bill relating to such guidance.

As regards the second point, we share the concern expressed by several Members of your Lordships' House that in some circumstances the identity of an individual may be ascertained from anonymised information where this is combined with other information.

We propose to bring forward amendments to the Bill at a later date which we hope will address these concerns. These will aim to tighten up the provisions in the Bill to protect the confidentiality of information about individuals. I hope that today I have been able to provide some clarity on our intentions in some areas relating to confidentiality and to bring forward specific amendments which deal with the seriousness of the offence for which the commission will have the authority to disclose confidential information. I beg to move.

Lord Clement-Jones

My Lords, I thank the Minister for bringing forward this amendment which conforms very closely to the suggestion I made at Report stage as regards the definition of a serious arrestable offence. I am quite sure that the medical profession will be very reassured that it now aligns the duties in the Bill very closely with its commonly accepted professional standards and duties.

On Question, amendment agreed to.

Baroness Hayman moved Amendment No. 17:

Page 20, line 45, at end insert—

('"'serious arrestable offence"—

1. (a) in relation to England and Wales, is to be construed in accordance with section 116 of the Police and Criminal Evidence Act 1984,
2. (b) in relation to Scotland, means an offence which is triable on indictment,
3. (c) in relation to Northern Ireland, is to be construed in accordance with Article 87 of the Police and Criminal Evidence (Northern Ireland) Order 1989. ").

On Question, amendment agreed to.

Clause 22 [Co-operation between NHS bodies]:

Baroness Masham of Ilton moved Amendment No. 18:

Page 22, line 4, at end insert—

("(2) The duty in subsection (1) applies in particular to co-operation in enabling 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, this amendment covers the same principle as that in Amendment No. 7, which has been agreed to. The amendment has been spoken to and I hope that it will be agreed. I beg to move.

On Question, amendment agreed to.

Clause 34 [Controls: supplementary]:

Baroness Hayman moved Amendments Nos. 19 to 22:

Page 30, line 37, leave out (" 29(2)(a), (7) and") and insert (" 29(6) to").

Page 31, line 10, leave out ("and") and insert— ("(4A)").

Page 31, line 15, after ("Act") insert ("and section 49 of, and Schedule 10 to, the 1978 Act").

Page 31, line 22, at end insert ("or, as the case may be, the 1978 Act").

On Question, amendments agreed to.

5.45 p.m.

Clause 36 [Disqualification etc. of Part II practitioners]:

Lord Hunt of Kings Heath moved Amendment No. 23:

Page 37, line 40, leave out from ("to") to ("when") in line 41 and insert ("disqualify, or conditionally disqualify, him").

The noble Lord said: My Lords, in moving Amendment No. 23, I shall also speak to Amendments Nos. 24 to 34, Amendments Nos. 75 and 76 and Amendment No. 86 regarding the NHS tribunal in England and Wales and Amendments Nos. 38 to 61, 80, 81 and 90 which affect the provisions for the NHS tribunal in Scotland.

It may be easier if I speak first to the amendments for Part I of the Bill for England and Wales. These amendments attempt to clarify the provisions in Clause 36 of the Bill governing the NHS tribunal in England and Wales. There are also minor consequential amendments to Schedule 4 and Schedule 5.

The NHS tribunal is the ultimate disciplinary body for family health service practitioners. Clause 36 provides new powers for the tribunal to disqualify practitioners who commit fraud against the NHS. Noble Lords will know from previous debates that the tribunal currently only investigates cases where it is alleged that the continued inclusion of a practitioner on a health authority's list for that service would be prejudicial to the efficiency of that service. It is a small minority of practitioners who commit fraud against the NHS, but it is a minority which needs to be tackled.

The majority of the amendments introduce minor textual changes such as the introduction of the terms "local disqualification" and "national disqualification" which attempt to make the clause clearer for the reader. In particular I draw the attention of the House to Amendments Nos. 33 and 34 which, in the main, make drafting changes to clarify the action that the tribunal may take on review of a fraud case. As your Lordships will be aware, Clause 36 introduces several new sections into the 1977 Act. In order to aid understanding, Amendment No. 34 also introduces two new provisions into one of these new sections, the new Section 47, so that fewer provisions will need to be read in conjunction with the others. These are, first, that the tribunal shall not impose any disqualification on review where it would be unjust to do so and, secondly, to clarify when a determination on review would have effect.

As regards Amendments Nos. 38 to 61, 80, 81 and 90 affecting the NHS tribunal in Scotland, the Scottish tribunal is essentially similar to the tribunal for England and Wales. It draws its powers from the 1978 Act to which Clause 50 and these amendments seek to make changes. Noble Lords will recall that I introduced a number of amendments at Report stage which added some important new provisions to those already in the Bill. At that time I informed your Lordships' House that my noble friend Lord Macdonald of Tradeston was looking to bring forward similar amendments to those I had brought forward at that stage.

I shall not go over all the same ground that I covered rather extensively on Report. However, I shall briefly mention that they cover a range of areas including allowing the NHS tribunal in Scotland to disqualify bodies corporate which commit fraud from providing ophthalmic and pharmaceutical services in the family health services. There is an amendment to the definition of fraudulent conduct to provide a clearer definition against which the NHS tribunal would test the conduct of practitioners. It will ensure that decisions of the tribunals in England and Wales and Northern Ireland are applied similarly to Scotland. These amendments for the Scottish tribunal also incorporate equivalent amendments to those I am speaking to for England and Wales today.

As regards England and Wales, these amendments do not change the fundamental purpose or impact of the existing tribunal provisions in the Bill, but they are needed for clarity and to ensure that the NHS tribunal can work as intended. These provisions are part of our comprehensive strategy for countering fraud in the National Health Service. I beg to move.

Baroness Carnegy of Lour

My Lords, it is difficult to follow what has happened to the Bill as a result of these amendments. I am grateful to the noble Lord, Lord Macdonald, who wrote to me saying that he has asked the Scottish Office officials to compile an updated consolidated version of provisions in the Bill resulting from these amendments. That is a great help.

I hope the Government have taken on board the fact that things have been difficult for us and to require a consolidated version in order to understand the Bill is obviously not good enough. I hope that both the Government and the future Ministers of the Scottish Parliament will read the tea leaves here and try and prepare legislation which is easier for Members of both Houses to understand. I am grateful for this and I am sure that Members in another place will be grateful also because they will have the benefit of it before they look at the changes. They will be able to see whether the tribunals in Scotland seem to them to be adequately provided for.

The Earl of Mar and Kellie

My Lords, I suspect I should know this, but will the Minister clarify for me whether the NHS tribunal is a UK-wide body or whether there is a separate NHS tribunal in Scotland? I believe he said that there was, but that was not my understanding.

Lord Hunt of Kings Heath

My Lords, it is my understanding that they are separate tribunals but I shall be happy to send further details of the composition and make-up to the noble Earl if he wishes.

Perhaps I may say to the noble Baroness, Lady Carnegy, that I took careful note of the comments on these matters made by noble Lords during Report stage, particularly those of the noble Lord, Lord Renton. I have ensured that those comments were brought to the attention of the appropriate people.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 24 to 34:

Page 37, line 43, leave out ("exercise that power") and insert ("disqualify, or conditionally disqualify, him").

Page 37, line 46, leave out ("exercise that power") and insert ("disqualify, or conditionally disqualify, him").

Page 38, line 12, after ("shall") insert ("make a local disqualification, that is").

Page 38, line 14, after ("may") insert ("also make a national disqualification, that is").

Page 38, line 17, leave out from ('Tribunal") to ("they") in line 18 and insert ("make a national disqualification").

Page 38, line 31, leave out ("power to disqualify") and insert ("functions of making Disqualifications").

Page 38, line 32, leave out ("includes power to make") and insert ("include making").

Page 38, line 37, leave out ("under") and insert ("by virtue of").

Page 39, line 7, leave out ("under") and insert ("by virtue of").

Page 39, leave out lines 25 to 35 and insert— ("and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate. ").

Page 40, leave out lines 10 to 17 and insert—

("and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate.

( ) If, on a review under this section of a fraud case—

1. (a) there is a national disqualification which the Tribunal do not remove or make conditional,
2. (b) there is a national disqualification which is conditional and which the Tribunal make unconditional, or
3. (c) the Tribunal make a national disqualification,

they may also make a declaration of unfitness.

( ) The Tribunal shall not under this section—

1. (a) in the case of a conditional disqualification, make it unconditional or vary the conditions.
2. (b) make any further disqualification or conditional disqualification, or
3. (c) make a declaration of unfitness,

if they are of the opinion that it would be unjust to do so.

( ) A determination of the Tribunal under this section shall have effect—

1. (a) if no appeal is brought against it, at the end of the period for bringing an appeal,
2. (b) if an appeal is brought against it, when the appeal process is exhausted. ").

The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 24 to 34 en bloc. I beg to move.

On Question, amendments agreed to.

Clause 39 [Repeal of law about fund-holding practices]:

Lord Hunt of Kings Heath moved Amendment No. 35:

Page 41, line 26, leave out from ("1978") to ("sections") in line 27.

On Question, amendment agreed to.

Clause 45 [Expenditure of Health Boards and other bodies]:

Lord Hunt of Kings Heath moved Amendment No. 36:

Page 43, line 28, leave out ("(d)") and insert ("(e)").

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendment No. 37:

After Clause 49, insert the following new clause—

REMUNERATION FOR PART II SERVICES: SCOTLAND

(". —(1) For sections 28A and 28B of the 1978 Act (regulations as to remuneration) there is substituted—

"Remuneration for Part II services.

28A. —(1) The remuneration to be paid to persons who provide general medical services, general dental services, general ophthalmic services or pharmaceutical services under this Part of this Act shall be determined by determining authorities (and they may also determine the remuneration to be paid to persons providing those services in respect of the instruction of any person in matters relating to those services).

(2) For the purposes of this section and section 28B, determining authorities are—

1. (a) the Secretary of State; and
2. (b) so far as authorised by him to exercise the functions of determining authorities, any Health Board or other person appointed by him in an instrument (referred to in this section and section 28B as an instrument of appointment).

(3) An instrument of appointment—

1. (a) may contain requirements with which a determining authority appointed by that instrument must comply in making determinations; and
2. (b) may be contained in regulations.

(4) Subject to this section and section 28B, regulations may make provision about determining remuneration under subsection (1) and may in particular impose requirements with which determining authorities must comply in making, or in connection with, determinations (including requirements as to consultation and publication).

(5) Regulations may provide—

1. (a) that determinations may be made by reference to any of the following—
   1. (i) rates or conditions of remuneration of any persons or any descriptions of persons which are fixed or determined, or to be fixed or determined, otherwise than by way of a determination under subsection (1);
   2. (ii) scales, indices or other data of any description specified in the regulations;
2. (b) that any determination which in accordance with regulations made by virtue of paragraph (a)(ii) falls to be made by reference to a scale or an index or to any other data may be made not only by reference to that scale or index or those data in the form current at the time of the determination but also by reference to the scale, index or data in any subsequent form attributable to amendment or revision taking effect after that time or to any other cause.

(6) Regulations may—

1. (a) provide that determining authorities may make determinations which have effect in relation to remuneration in respect of a period beginning on or after a date specified in the determination, which may be the date of the determination or an earlier or later date, but may be an earlier date only if, taking the determination as a whole, it is not detrimental to the persons to whose remuneration it relates;
2. (b) provide that any such determination which does not specify such a date shall have effect in relation to remuneration in respect of a period beginning—
   1. (i) if it is required to be published, on the date of publication;
   2. (ii) if it is not so required, on the date on which it is made.

(7) A reference in this section or section 28B to a determination is a reference to a determination of remuneration under subsection (1) of this section.

Part II remuneration: supplementary.

28B. —(1) Before a determination is made by the Secretary of State which relates to all persons who provide services of, or of a category falling within, one of the descriptions of services mentioned in section 28A(1), he shall consult at least one of the following bodies—

1. (a) a body one of whose functions is to provide advice in connection with the matters to be determined; or
1464
2. (b) a body appearing to him to be representative of persons to whose remuneration the determination would relate.

(2) Determinations may make different provision for different cases including different provision for any particular case, class of case or area.

(3) Determinations may—

1. (a) be made in more than one stage;
2. (b) be made by more than one determining authority;
3. (c) be varied or revoked by subsequent determinations.

(4) A determination may be revised—

1. (a) to correct an error, or
2. (b) where it appears to the determining authority that it was made in ignorance of or under a mistake as to a relevant fact.

(5) Determinations may, in particular, provide that the whole or any part of the remuneration—

1. (a) is payable only if the determining authority is satisfied as to certain conditions; or
2. (b) is to be applied for certain purposes or is otherwise subject to certain conditions.

(6) Subject to sections 19(3) and 25(3), remuneration under section 28A may consist of payments by way of—

1. (a) salary;
2. (b) fees;
3. (c) allowances;
4. (d) reimbursement (in full or in part) of expenses incurred or expected to be incurred in connection with the provision of the services or instruction,

and may be determined from time to time.

(7) At the time a determination is made or varied, certain matters which require determining may be reserved to be decided at a later date.

(8) The matters which may be reserved include in particular—

1. (a) the amount of remuneration to be paid in particular cases;
2. (b) whether any remuneration is to be paid in particular cases.

(9) Any determination shall be made after taking into account all the matters which are considered to be relevant by the determining authority and such matters may include in particular—

1. (a) the amount or estimated amount of expenses (taking into account any discounts) incurred in the past or likely to be incurred in the future (whether or not by persons to whose remuneration the determination will relate) in connection with the provision of services of the description in section 28A(1) to which the determination will relate or of any category falling within that description;
2. (b) the amount or estimated amount of any remuneration paid or likely to be paid to persons providing such services;
3. (c) the amount or estimated amount of any other payments or repayments or other benefits received or likely to be received by any such persons;
1465
4. (d) the extent to which it is desirable to encourage the provision, either generally or in particular places, of the description or category of services to which the determination will relate;
5. (e) the desirability of promoting services which are—
   1. (i) economic and efficient; and
   2. (ii) of an appropriate standard.

(10) If the determination is of remuneration for a category of services falling within one of the descriptions of services mentioned in section 28A(1), the reference in subsection (9)(a) to a category of services is a reference to the same category of services or to any other category of services falling within the same description."

(2) Sections 28A and 28B of the 1978 Act as substituted by this section have effect in relation to—

1. (a) the making of determinations on or after the commencement of this section; and
2. (b) the variation, revocation or revision on or after the commencement of this section of determinations whenever made,

and in this subsection "determinations" means determinations under Part II of the 1978 Act of the remuneration to be paid to persons who provide services mentioned in section 28A(1).

(3) Section 7(4) of the Health and Social Security Act 1984 and section 15(3) of the Health and Medicines Act 1988 (determinations of remuneration for services under Part II of the 1978 Act deemed to be valid) have effect in relation to Scotland as if—

1. (a) after "inserted by this section" in section 7(4)(b) of the 1984 Act; and
2. (b) after "section 7 of the Health and Social Security Act 1984" in section 15(3) of the 1988 Act,

there were inserted "and before the coming into force of section (Remuneration for Part II services: Scotland) of the Health Act 1999".

(4) The reference in section 28B(6) of the 1978 Act (as substituted by this section) to section 19(3) of that Act is to be read on and after the commencement of section 10 of the National Health Service Act 1966 as a reference to that section. ").

On Question, amendment agreed to.

Clause 50 [Disqualification of Part II practitioners]:

Lord Hunt of Kings Heath moved Amendments Nos. 38 to 61:

Page 49, line 1, leave out from ("receive") to end of line 9 and insert ("from a Health Board representations that—

1. (a) a person who is included in any list meets either of the conditions for disqualification, or
2. (b) a person who has applied to be included in any list meets the second condition for disqualification, ").

Page 49, line 11, leave out ("representations within subsection (2)(a)") and insert ("such representations").

Page 49, line 16, leave out from beginning to ("a") in line 21 and insert—

("(b) where the representations are that the second condition for disqualification is met and regulations prescribe the time within which such representations are to be made, within that time.

(4A) Subsectioas (4B) to (5C) apply for the purposes of this group of sections.

(4B) The first condition for disqualification is that the continued inclusion of the person concerned in the list would be prejudicial to the efficiency of the services which those included in the list undertake to provide.

(4C) The second condition for disqualification is that the person concerned—

1. (a) has (whether on his own or together with another) by an act or omission caused, or risked causing, detriment to any health scheme by securing or trying to secure for himself or another any financial or other benefit; and
2. (b) knew that he or (as the case may be) the other was not entitled to the benefit.

(5)").

Page 49, line 32, at end insert — ("(5A) "Health scheme" means—

1. (a) any of the health services under section 1(1) or any corresponding enactment extending to England and Wales or Northern Ireland; and
2. (b) any prescribed scheme;

and regulations may prescribe any scheme for the purposes of this subsection which appears to the Secretary of State to be a health or medical scheme paid for out of public funds.

(5B) Detriment to a health scheme includes detriment to any patient of, or person working in, that scheme or any person liable to pay charges for services provided under that scheme.

(5C) Cases in which representations are made that the first condition for disqualification is met are referred to below as efficiency cases; and cases in which representations are made that the second condition for disqualification is met are referred to below as fraud cases. ").

Page 49, line 35, after ("sections") insert ("and Schedule 8").

Page 49, line 37, leave out from beginning to end of line 28 on page 50 and insert—

("The NHS Tribunal: supplementary.

29A. —(1) Where an ophthalmic optician is a body corporate, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any director meets that condition (whether or not he first met that condition when he was a director).

(2) Where a body corporate Games on a retail pharmacy business, the body corporate is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if any one of the body of persons controlling the body corporate meets that condition (whether or not he first met that condition when he was one of them).

(3) A person who is included in any list ("the practitioner") is to be treated for the purposes of this group of sections as meeting the second condition for disqualification if—

1. (a) another person, because of an act or omission of his occurring in the course of providing any services mentioned in section 29(5) on the practitioner's behalf, meets that condition; and
2. (b) the practitioner failed to take all such steps as were reasonable to prevent acts or omissions within section 29(4C)(a) occurring in the course of the provision of those services on his behalf.

(4) The Tribunal is not requited to inquire into a fraud case if they have previously inquired into representations in respect of the person concerned and the same acts or omissions.

(5) In a fraud case, regulations may make provision (including provision modifying the effect of this Part) for the purpose of securing that the person subject to the inquiry is not added to any list until proceedings in that case are finally concluded.

(6) For the purposes of this group of sections, in a fraud or efficiency case proceedings are finally concluded—

1. (a) if the Tribunal determine not to disqualify or conditionally disqualify him when they make that determination;
2. (b) if they determine to disqualify or conditionally disqualify him and no appeal is brought against the determination, at the end of the period for bringing an appeal;
1467
3. (c) if they determine to disqualify or conditionally disqualify him and an appeal is brought against the determination, when the appeal process is exhausted.

(7) An inquiry under section 29 is not affected by the person subject to the inquiry withdrawing from, withdrawing any application to be included in or being removed from the list to which the case relates.

Powers of NHS Tribunal.

29B. —(1) Subsection (2) applies where the Tribunal are of the opinion—

1. (a) on inquiring into an efficiency case, that the person meets the first condition for disqualification;
2. (b) on inquiring into a fraud case, that the person meets the second condition for disqualification.

(2) The Tribunal—

1. (a) shall make a local disqualification, that is disqualify him for inclusion in the list to which the case relates; and
2. (b) may also make a national disqualification, that is disqualify him for inclusion in all lists within the same paragraph of section 29(5) as that list. ").

Page 50, line 29, leave out from ('Tribunal") to ("they") in line 30 and insert ("make a national disqualification").

Page 50, line 32, leave out ("in question") and insert ("to which the lists in question relate").

Page 50, line 37, leave out from ("section") to end of line 44 and insert ("shall have effect when the case is finally concluded. ").

Page 50, line 45, leave out from ("disqualified") to end of line and insert ("for").

Page 51, line 1, leave out from ("The") to ("that") in line 2 and insert ("functions of making disqualifications under section 29B include making a conditional disqualification, ").

Page 51, line 3, leave out ("they") and insert ("the Tribunal").

Page 51, line 7, leave out ("under") and insert ("by virtue of").

Page 51, line 11, leave out from ("any") to end of line 12 and insert ("acts or omissions within section 29(4C)(a), ").

Page 51, line 13, at end insert—

("(2A) Conditions so imposed shall have effect when proceedings in the case are finally concluded.

(2B) Section 29B(5) applies to a conditional disqualification as it applies to a disqualification. ").

Page 51, line 14, leave out ("in writing").

Page 51, line 17, leave out ("or").

Page 51, line 20, leave out ("under") and insert ("by virtue of").

Page 51, line 21, leave out from ("References") to ("do") in line 22 and insert ("in any enactment to a disqualification by the Tribunal").

Page 51, line 27, leave out ("(whether or not conditional)") and insert (", conditional disqualification").

Page 51, line 28, after ("disqualified") insert ("or conditionally disqualified").

Page 51, leave out lines 37 to 45 and insert— ("and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate").

Page 51, leave out lines 46 and 47 and insert—

("(3) If any Health Board request a review of a conditional disqualification on the ground that—

1. (a) there has been a change in the circumstances by reference to which the conditions were imposed;
2. (b) the person concerned has failed to comply with the conditions; or
1468
3. (c) in a fraud case, the person concerned has since the Tribunal imposed the conditions (or made the disqualification conditional) again satisfied the second condition for disqualification,

the Tribunal shall review the conditional disqualification.

(3A) In the case of a person who is providing services in England and Wales or Northern Ireland, the reference in subsection (3) to a Health Board includes any corresponding authority under the provisions in force in England and Wales or Northern Ireland corresponding to this Part. ").

Page 52, leave out lines 5 to 12 and insert— ("and, on a review of a fraud case, may make any further disqualification or conditional disqualification which they consider appropriate.

( ) If, on a review under this section of a fraud case—

1. (a) there is a national disqualification which the Tribunal do not remove or make conditional;
2. (b) there is a national disqualification which is conditional and which the Tribunal make unconditional; or
3. (c) the Tribunal make a national disqualification,

they may also make a declaration of unfitness.

( )The Tribunal shall not under this section—

1. (a)in the case of a conditional disqualification, make it unconditional or vary the conditions; or
2. (b) make any further disqualification or conditional disqualification;
3. (c) make a declaration of unfitness,

if they are of the opinion that it would be unjust to do so.

( ) A determination by the Tribunal under this section shall have effect—

1. (a) if no appeal is brought against it, at the end of the period for bringing an appeal;
2. (b) if an appeal is brought against it, when the appeal process is exhausted. ").

The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 38 to 61 en bloc. I beg to move.

On Question, amendments agreed to.

Clause 55 [Interpretation]:

Lord Hunt of Kings Heath moved Amendment No. 62:

Page 56, line 23, at end insert— (""the 1978 Act" means the National Health Service (Scotland) Act 1978, ").

On Question, amendment agreed to.

Schedule 1 [Primary Care Trusts]:

Lord Hunt of Kings Heath moved Amendments Nos. 63 and 64:

Page 61, line 32, leave out from beginning to ("to") in line 33 and insert ("Provision must be made by regulations requiring Primary Care Trusts").

Page 61, line 39, at end insert— ("by taking such steps as may be specified in the regulations. ").

The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 63 and 64 en bloc. I beg to move.

On Question, amendments agreed to.

Schedule 2 [The Commission for Health Improvement]:

Lord Hunt of Kings Heath moved Amendments Nos. 65 and 66:

Page 67, line 1, leave out sub-paragraph (3).

Page 67, line 3, leave out (", together with copies of the auditors' report, ").

The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 65 and 66 en bloc.

On Question, amendments agreed to.

Schedule 3 [Regulation of health care and associated professions]:

Baroness Hayman moved Amendment No. 67:

Page 69, leave out lines 26 and 27 and insert— ("(b) invite representations to be made to him about the draft by persons appearing to him appropriate to represent the profession to be regulated, persons appearing to him appropriate to represent those provided with services by the profession and any other persons appearing to him appropriate to consult about the draft. ").

The noble Baroness said: My Lords, this is another issue with which we dealt at both Committee and Report stages. I am pleased to be able to bring forward an amendment which I hope meets the wishes of the House.

We discussed at previous stages the need, in bringing forward an order on professional self-regulation, for proper consultation before the order-making power is used. As I explained, it has always been our intention that consultation on any proposals to use the order-making power should be wide. The views of a number of interests will need to be taken into account, including the professions, the NHS, patients, service users and the wider public. This amendment reflects that intention by broadening the Secretary of State's duty to consult about the draft. At this late stage in our deliberations I would not wish to create a precedent by involving the imposition of a list of those to be consulted on the face of the Bill. We have discussed at length the dangers of that. But we want to make quite clear that the Secretary of State's consultation must not just be with the profession affected by the proposed order.

We have all agreed that the primary purpose of professional self-regulation is the protection of the public and it is right that the responsibility towards consultation with the public, patients and carers should be on the face of the Bill. The Secretary of State will want to consult representatives of the interests of patients and other service users, as well as other interested parties such as the Scottish Parliament and the Welsh and Northern Ireland Assemblies.

Although this amendment varies in drafting terms from those tabled by the noble Baroness, Lady Wilcox, who I know had to go abroad and is therefore not able to be in your Lordships' House today, I hope noble Lords will agree that this amendment meets the objectives she had in mind when arguing on previous amendments before the House. I beg to move.

Lord Morris of Manchester

My Lords, I intervene only briefly. This is an important amendment that I welcome. It provides an opportunity to emphasise again today how essential it is for Ministers to ensure that the profession to be regulated is fully and meaningfully consulted. The amendment also enables those of us who have debated Schedule 3 with her to thank my noble friend, both for her stamina and her abiding readiness to listen.

The Committee and Report stages of the Bill led to positive developments that include commitments from the Government on the protection of title, on continuing the role of the Privy Council in relation to the professions, and on additional safeguards covering future use of order-making powers. There was some progress also in relation to protecting professional self-regulation.

I hope very much that in the spirit of this amendment the Government will go on listening to the professions, especially where demonstrably their principal concern is for high professional standards and protecting the public interest. As the Minister knows, I speak as President of the Society of Chiropodists and Podiatrists and I spelt out their concerns. But the more I speak to representatives of other professions, the clearer it becomes that our concerns are very widely shared.

My noble friend told your Lordships' House that she was sure that her objectives would soon be shown to be the same as those of the society. She also made it clear that she would welcome further dialogue with us and the society looks forward very much to a further meeting with her. Meanwhile, I hope her amendment will be quickly approved.

Baroness McFarlane of Llandaff

My Lords I, too, add my thanks to those of my noble friend Lord Walton of Detchant and the noble Lord, Lord Morris of Manchester, for the great care that the Minister has shown in meeting our concerns about professional self-regulation and building in so many safeguards for both the public and the professions. I know that the Royal College of Nursing and the UKCC are now happy with the Bill and this schedule as it stands printed. I am delighted to support this amendment.

Lord Clement-Jones

My Lords, I rise briefly to add my thanks to the Minister for her flexibility in the course of the passage of the Bill in this particular respect, and to make one short point on behalf of some of the professions allied to medicine.

The Minister made it clear throughout the course of the Bill what the process of consultation going forward now is in terms of the new council. Many of those professions have been reassured by the safeguards now in place. But then: is still some concern about the elements that will be brought within a uni-professional majority and the noble Lord, Lord Morris, expressed some of those concerns on behalf of the Society of Chiropodists and Podiatrists. Others, such as the physiotherapists, have similar concerns, and are concerned about whether it is possible—they believe it is not—to split the fitness to practise aspects between different types of case. That seemed to be the implication of some of the responses by the Minister at Report stage.

Clearly these consultations will be carried forward, but I urge the Minister, in the course of those consultations, to be aware that a number of the professions wish to see education, training and fitness to practise all brought within that uni-professional majority.

6 p.m.

Baroness Hayman

My Lords, I am most grateful to noble Lords for the generosity of their response. I believe that we have actually improved the Bill as regards Schedule 3 and that we have managed to meet the legitimate concerns of the professions that there should be sufficient safeguards in the future. I was personally pleased that we were also able with that amendment to put clearly on the face of the Bill the interests of the users of health services. I believe that the right balance has been struck in that respect.

I have suggested to the House that it would be inappropriate to talk about the detailed content of proposals upon which we will be consulting at a future date in terms of this Bill. The Bill allows us to have those debates and I fully take on board those points made by my noble friend Lord Morris and the noble Lord, Lord Clement-Jones. I understand the concerns regarding the need to have very detailed consultation to ensure that we get it right in terms of improving professional self-regulation for all the professions, but obviously the professions allied to medicine have particular concerns in this respect. I look forward to conducting those debates with the hope and expectation that we will be able to effect change thanks to the provisions of this Bill.

On Question, amendment agreed to.

Baroness Hayman moved Amendments Nos. 68 to 71:

Page 70, line 11, leave out ("references") and insert ("the reference").

Page 70, line 12, leave out ("include") and insert ("includes").

Page 70, line 12, leave out ("references") and insert ("the reference").

Page 70, line 13, leave out ("include") and insert ("includes").

On Question, amendments agreed to.

Schedule 4 [Amendments of enactments]:

Baroness Hayman moved Amendments Nos. 72 to 84:

Page 71, line 8, at end insert— (". In section 12 (supplementary provisions for sections 8 and 11), subsection (1) is omitted. ").

Page 71, line 15, at end insert— (". After section 16B (exercise of functions by Primary Care Trusts) there is inserted— "Advice for Health Authorities and Primary Care Trusts.

16C. —(1) Every Health Authority shall make arrangements with a view to securing that they receive advice appropriate for enabling them effectively to exercise the functions exercisable by them from persons with professional expertise relating to the physical or mental health of individuals.

(2) This section applies to Primary Care Trusts as it applies to Health Authorities. "").

Page 72, line 6, at end insert— (". In section 28C(4) (personal medical or dental services), for "13" there is substituted "16D". ").

Page 73, line 39, leave out from ('Tribunal") to ("they") in line 40 and insert ("make a national disqualification, ").

Page 73, line 48, leave out from ("substituted") to ("and") in line 49 and insert (""national disqualification"").

Page 75, line 42, at end insert— ("( ) In subsection (4), after "to make such" there is inserted "transitional, saving". ").

Page 76, line 5, leave out ("in") and insert ("by").

Page 76, line 27, leave out ("16C(1)") and insert ("16D(1)").

Page 77, line 37, at end insert— (". In section 19A(3)(b) (medical lists), for the words from first "disqualified" to "29" there is substituted "disqualified for inclusion in the list by, or by virtue of a direction of, the NHS Tribunal".

.Section 31 (disqualification provisions in England and Wales or Northern Ireland) is renumbered as subsection (1) of that section and—

1. (a) in paragraph (a), for the words from "services" to "29(1)" there is substituted "any of the services mentioned in one of the paragraphs of section 29(5)";
2. (b) in paragraph (b), at the beginning, there is inserted "in relation to the services in question" and for the words from "a list" to the end there is substituted "any list and (if also the subject of such a declaration under those provisions corresponding to a declaration of unfitness) be treated as if a declaration of unfitness had been made in respect of him";
3. (c) after that subsection there is inserted—

"(2) Where under the conditional disqualification provisions in England and Wales or Northern Ireland—

1. (a) any conditions are imposed in relation to the provision by any person of any of the services mentioned in section 29(5); or
2. (b) any conditions so imposed are varied,

the Secretary of State may, by a notice in writing given to each Health Board and to the person in question, impose those conditions in relation to the provision by that person of those services under this Part.

(3) A notice under subsection (2) may make such modifications of the conditions as the Secretary of State considers necessary for them to have the like effect in relation to Scotland as they have in relation to England and Wales or (as the case may be) Northern Ireland, but only if the Secretary of State has previously given the person concerned written notice of the proposed modifications and an opportunity (in accordance with such requirements, if any, as may be prescribed) to make representations about them.

(4) Conditions imposed by a notice under subsection (2) shall cease to have effect if the Secretary of State withdraws the notice by giving written notice to the person concerned.

(5) In this section, "the conditional disqualification provisions in England and Wales or Northern Ireland" means any provisions in force in England and Wales or Northern Ireland corresponding to sections 29C and (so far as relating to conditional disqualifications) 30. "

. Section 32 (regulations as to sections 29 to 31) is renumbered as subsection (1) of that section and—

1. (a) in paragraph (c) after "disqualification" in both places where it occurs there is inserted "or condition";
2. (b) after that subsection there is inserted—

"(2) Regulations under subsection (l)(a) above may in particular provide that, where (apart from the regulations) it would be the duty of the Tribunal to inquire into both an efficiency case and a fraud case in respect of the same person, they may inquire into one case before inquiring into the other and, after proceedings in the first case are finally disposed of, may if they think it appropriate adjourn the other case indefinitely. "

. In section 32A (applications for interim suspension)— (a) after subsection (1) there is inserted—

"(1A) A Health Board may, if they have requested a review of a conditional disqualification on the ground mentioned in section 30(3)(b) or (c), at any time before the review is concluded apply to the Tribunal for a direction to be made under subsection (2) in relation to the person to whom the review relates. "; (b) in subsection (2), for the words from "it" to "patients" there is substituted "either of the conditions for doing so is satisfied" and after "in question" there is inserted "or the case to which the review in question"; (c) after that subsection there is inserted—

"(2A) The conditions for giving such a direction are—

1. (a) that it is necessary to do so in order to protect persons who are, or may be, provided with services under this Part to which the case in question, or the case to which the review in question, relates;
2. (b) in, or in the case of a review relating to, a fraud case, that unless they do so there is a significant risk that—
   1. (i) an act or omission within section 29(4C)(a) will occur; or
   2. (ii) the investigation of the case or the review will be prejudiced";

(d) in subsection (3)(c), for the words from "under" to "engaged in" there is substituted "of unfitness in relation to";

(e) in subsection (4), after "case" there is inserted "or review";

(f) subsection (5) is omitted;

(g) in subsection (6)(a), "prepared under this Part of this Act" is omitted.

In section 32B (continuation of suspension pending appeal)—

(a) for subsection (1) and the preceding sidenote there is substituted—

"Suspension pending appeal.

32B. —(1) Where, on disposing of a case under section 29B, the Tribunal make a national disqualification, they may, if they consider that either of the conditions mentioned in section 32A(2A) is satisfied, direct that section 32A(3) shall apply or, if a direction has been given under section 32A(2), shall continue to apply to him as respects services of the kind to which the disqualification relates. ";

1. (b) in subsection (2), in paragraph (a), for "direction under section 29(2)(b)" there is substituted "national disqualification" and, in paragraph (b), for "that direction" there is substituted "the disqualification";
2. (c) in subsection (3), for the words from "direction" to "section 29(3)(c)" there is substituted "disqualification which is not coupled with a declaration of unfitness";
3. (d) subsection (4) is omitted.

. In section 32D (suspension provisions in England and Wales or Northern Ireland), for "29(1)" there is substituted "29(5)". ").

Page 78, line 43, at end insert—

(". In Schedule 8 (the Tribunal), in paragraph 8—

1. (a) in sub-paragraph (2)(a), for "section 29" there is substituted "sections 29 to 29C";
2. (b) in sub-paragraph (2)(b), after "disqualification" there is inserted "conditional disqualification or declaration of unfitness";
3. (c) in sub-paragraph (2)(d), for the words from "the application" to the end there is substituted "section 32A(3) may be made to apply or continue to apply". ").

Page 80, line 25, leave out (""16C"") and insert (""16D"").

Page 83, line 7, after ("Act)") insert—

("(a) in subsection (1), for "13" there is substituted "16D" and").

Page 83, line 8, at end insert—

("(b) in subsection (2)(b), for "13" there is substituted "16D". ").

On Question, amendments agreed to.

Schedule 5 [Repeals]:

Baroness Hayman moved Amendments Nos. 85 to 93:

Page 83, line 22, column 3, at end insert— ("Section 12(1). ")

Page 83, line 27, column 3, at end insert—

"In section 49A, subsection (5) and, in subsection (6)(a), "prepared under this Part of this Act". Section 49B(4). ")

Page 83, line 35, column 3, after ("section 97, ") insert ("subsection (2), ").

Page 83, line 40, column 3, at end insert—

("In section 122(2), "as a simple contract debt". ")

Page 84, line 5, column 3, leave out ("(2)(j)") and insert ("(2)(d) and (j)").

Page 84, line 8, column 3, at end insert—

("In section 32A, subsection (5) and, in subsection (6)(a), "prepared under this Part of this Act".

In section 32B, subsection (4). ").

Page 85, line 11, column 3, after ("paragraphs") insert ("3(a), ").

Page 85, line 15, at end insert—

(" 1997 c. 24.

The Nurses, Midwives and Health Visitors Act 1997.

The whole Act. ")

Page 85, line 19, at end insert—

("The repeal of section 97(2) of the 1977 Act has effect for the financial year 1999–2000 and subsequent financial years. ").

On Question, amendments agreed to.

In the Title

Earl Howe moved Amendment No. 94:

Line 4, after ("functions;") insert ("make provision in relation to monitoring and improving the quality of health care in independent hospitals;").

The noble Earl said: My Lords, this amendment is consequential upon the one agreed by your Lordships on Report which gives the Secretary of State a power to extend by order the duty of quality in Clause 13 and part or all of the remit of the commission for health improvement on to independent hospitals. It is technical amendment. I beg to move.

Lord Clement-Jones

My Lords, I rise briefly to express my support for the amendment which clearly is consequential. However, on consideration of it, I hope that the Government will not attempt to reverse the amendment made in another place. This is a very important aspect of the Bill for many of us. We believe that the standard of quality should apply right across healthcare in this country and not just in the NHS.

Baroness Hayman

My Lords, the noble Earl rightly said that this was a technical amendment which is consequential upon the amendment that we made on Report. We debated the issue of substance at that point and I do not intend to reopen that debate now. Erskine May makes it absolutely clear that debate on an amendment of the Title should be limited to the question of whether the alteration is necessary to bring the Title into conformity with the Bill. I am happy to accept the amendment on that basis.

On Question, amendment agreed to.

An amendment (privilege) made.

Baroness Hayman

My Lords, I beg to move that this Bill do now pass.

Earl Howe

My Lords, despite the general admonition from your Lordships' Procedure Committee, I hope that I may be permitted a very brief moment in which to draw together a few concluding thoughts. This has been a fascinating and rewarding Bill to debate. That has been due in part to the contributions of noble Lords from all sides of the House which have enabled us to achieve what I hoped on Second Reading we would achieve; namely, to correct the Bill's more glaring shortcomings. However, there was one indispensable ingredient in that process without which those corrective measures would have been well nigh unobtainable; that is, the contribution of the Minister.

In one of our recent exchanges the noble Baroness remarked that it "takes two to tango". It is her consistently receptive and constructive approach to our debates which I believe merits recognition and for which from these Benches I should like to thank her. If one disregards for a moment the amendments which have been agreed to against the Government's recommendation, I trust that the noble Baroness will agree that what we now have, especially in relation to pharmaceutical pricing and professional self-regulation, is a distinctly better Bill than the one initially set before us.

Lord Clement-Jones

My Lords, in the spirit of the admonitions of the Procedure Committee, I should just like to associate myself with the noble Earl's comments.

Baroness Hayman

My Lords, it would be churlish of me not to respond with a few words of thanks to both the noble Lord and the noble Earl, although I shall maintain the basis of having our debates as list-free zones and shall not, therefore, mention everyone who ought to be thanked in terms of our proceedings. However, I should say that the officials who have supported me so well have also been most helpful as regards the assistance that they have offered to all sides of the House. I believe that that has enabled some of the improvements that we have managed to make to the Bill, and I agree with the noble Earl in that respect. I believe that we have managed to achieve that because of the spirit in which these debates have been conducted, although, after some of our late nights, I am not sure whether I have had my dancing shoes on.

We have had very constructive debates. Even on those issues where amendments have been passed against the advice of the Government, it really has been an issue of the manner of implementation of shared objectives rather than any deep divide as to what those objectives were. I believe that the Bill will help us to improve the NHS and the service that it gives to patients in this country. I am extremely grateful to all noble Lords who have contributed to our debates and who have helped to make the Bill's passage through your Lordships' House very productive.

On Question, Bill passed, and sent to the Commons.