Health and Social Care Bill

HL Deb 24 April 2001 vol 625 cc90-169

3.6 p.m.

Report received.

Clause 1 [Determination of allotments to and resource limits for Health Authorities and Primary Care Trusts]:

Earl Howe moved Amendment No. 1:

Page 2, line 28, at end insert—

"(1B) The Secretary of State shall in directions under subsection (1A) have regard to the need to ensure and maintain an adequate distribution throughout England and Wales of medical practitioners providing general medical services under arrangements made under section 10 of the 1977 Act, or providing personal medical services under section 28C of that Act.""

The noble Earl said: My Lords, in moving the amendment, I speak also to Amendments Nos. 2 and 29. In doing so, I return to a matter we debated in Committee: how the Secretary of State will use the powers in the Bill to ensure that there is an adequate distribution of GPs throughout England and Wales.

I shall not reiterate at any length the points I made in Committee about the proposed abolition of the Medical Practices Committee. I simply say that, notwithstanding its limited powers, over the years the MPC has done a remarkable job in ironing out what were, at the time the NHS came into being, serious imbalances in the spread of GPs nationally. The secret of the MPC's continuing success throughout the past 50 years has been the development of a body of knowledge and expertise which has enabled it to maintain a close watching brief on regional and national requirements and to co-ordinate and balance out the way in which those requirements are met.

The Government propose to adopt what many see as a bold alternative to the MPC without acknowledging the importance of the central coordinating role that the MPC has played. Despite the Minister's detailed reply to me in Committee, I still do not see how a combination of a regional funding formula and what is termed a performance management framework can possibly deliver the same results as or better results than those we have had from the MPC. We are told that there will be a workforce mechanism at national level, but it is far from clear how this will interrelate with the regional initiatives or how the regions will interrelate with each other as surely they must.

There will be market mechanisms in place. But with a national shortage of GPs health authorities will in practice be competing with one another by means of incentives which would not be necessary under the current system. How will the unsuccessful health authorities make up for their lack of success? The proposed machine looks enormously bureaucratic and difficult compared with what we have currently.

I hope that the Minister will forgive me for taking a second bite at the issue. However, I should be grateful if he will take this opportunity to give us fuller and better particulars of how the new system is meant to deliver the result that we all want to see.

For example, what will happen if there turns out to be a maldistribution of some kind? What powers will the Secretary of State have in those circumstances? What will happen if the health authorities with an overworked GP contingent are tempted not to fill posts and so save resources? I bemoan the loss, once the body has been abolished, of the MPC's expertise and the element of central guidance that it has given. The amendments are designed to retain what many people see as the key element of the current system in the sense that I have described. I should like nothing better than to be persuaded that they are unnecessary, but for now I beg to move.

Baroness Carnegy of Lour

My Lords, I support my noble friend on the amendments. He should not apologise for taking a second bite at the cherry, because this is an important subject. The amendments would restore to an extent the influence that general practitioners currently have on how and where their practice operates.

Since they came to office four years ago, the Government appear to have been determined that family doctors should lose ever more of their influence over how the National Health Service works. The recent Health Act removed the right to become a fundholding practice—a right that general practices were increasingly taking up—as well as the other mechanisms that went with that system, which involved the money following the patient rather than it being in the hands of hospitals.

The effect has been an almost total loss of clout by general practitioners in getting their patients into hospitals. The Minister must know that. I know the desperation on that point among doctors at the practice where I go.

That is water under the bridge. However, Clause 22 will abolish the Medical Practices Committee, which has been the mechanism by which doctors can influence where practices should operate—where their place of work is. Presumably, the Government are convinced that a more centralised form of management is the way forward for greater efficiency and success in the National Health Service. They want the Secretary of State to have more power. The Minister said at an earlier stage that the Secretary of State needed that power. The Bill will enable him to manipulate the distribution of practices through the way in which funding is allocated to health authorities. The Bill does not even require him to ensure a reasonably equal distribution across the country.

That is very threatening to already desperate general practitioners. They are demonstrating how desperately they feel about a number of matters by threatening to strike on 1st May and probably having a ballot on resigning from the health service. They feel powerless. This is an important issue for them. In one small way, the amendments would alleviate their sense of powerlessness.

The advisory body would help. It is a small point, but it would address concerns about how general practitioners can speak to the Government and the authorities. They would also be comforted if the Bill specified that the distribution of practices had to be reasonably equal across the country. The Minister should take the amendments seriously in the spirit in which they have been moved. They represent small ways in which the Government could improve the Bill.

3.15 p.m.

Lord Clement-Jones

My Lords, I support the amendments, particularly Amendment No. 1. As a result of our debates in Committee, many of us are more doubtful about the new scheme proposed in the Bill than we were before. The Minister's comments in Committee make the new proposals even more of an act of faith or a leap in the dark—or any other metaphor that I can think of—than we might have thought before.

The Minister paid tribute to the Medical Practices Committee, saying: Our proposals detract not a jot from the hard work that the MPC' has undertaken over the years". He paid particular tribute to the current chair of the committee. However, he then said: After many years, the MPC has had some success"— and this is the key passage— but it has not been as successful as one would want in ensuring a much fairer distribution of GPs throughout the National Health Service".—[Official Report, 15/3/01; col. 1074.] He is not proposing a more effective central system of overview, oversight, data collection and control. Instead, he is splitting those responsibilities between the health authorities. Despite the tributes that he paid to the MPC, he believes that it has not been as effective as it should have been and has decided to split its functions and responsibilities up among all the different health authorities. That is how the Government propose to get a more equitable distribution of GPs across the country.

That seems paradoxical. In the new scheme of things, each health authority will determine for itself the appropriate number of GPs and practices in its area. Health authorities will be subject to constraints in other ways, as they always are. They will have to make decisions about whether to recruit additional GPs. depending on the resources that they have available. I do not deny that the Government's motives are entirely correct, but how will they ensure that their national priorities and the importance that they attach to having a proper distribution of GPs across the country will be met by that fragmented approach of giving health authorities sole responsibility? That is not a sensible approach to workforce planning.

Funnily enough, in other respects the Government have moved in the other direction on workforce planning. One does not need a long memory to remember our debates on the recent Health Act. The Government were initially determined to retain workforce planning at local and regional level, but they then sensibly shifted towards more central planning to consider how many consultants we need in particular specialties. We appear to be reversing that process here. There will be a better, more centralised system of workforce planning for acute care, but for GPs and primary care there will be a much more fragmented approach.

There are an enormous number of questions that one could ask to test the Government's faith in their new scheme. How will inequity in GP distribution be assessed? Will health authorities have to make a return to the Secretary of State? Will be have the power to insist on recruitment and the use of particular resources in a particular direction? What measures will be in place to ensure consistency and fairness in decision-making between one health authority and another? What transitional arrangements will be in place and what safeguards will be contained in the Secretary of State's directions to health authorities to ensure and maintain an adequate distribution throughout England and Wales?

The current system is tried and tested and has worked, although it may not have worked totally to the Government's satisfaction over a period of years. However, the alternative that we are offered is no more than the Government's belief that a system operated through health authorities will ensure a better distribution. The jury is out. I very much look forward to what the Minister has to say.

Lord Peyton of Yeovil

My Lords, I wonder whether the word "new" is becoming a bit of a plague. Everything has to be changed every now and again. Ministers get apprehensive that even those committees that show signs of working well and being useful—I admit that there are some, even though I am not a lover of committees—might become a source of embarrassment, so they charge in with a wish to change them.

I wish to look at the words in new subsection (2A) under Clause 1(5) of the Bill. The subsection is not one of great charm or clarity, but I do not suppose that that is regarded as a defect by Ministers. However, I believe that the wording to which I refer in particular is designed to make the throne of the health authority more comfortable and better protected than it is at present. I do not believe that such a reform is in any way necessary.

I believe that health authorities should be open to criticism and to advice as to how they might improve matters. But here they are given a vast discretion. The Bill states that, the Health Authority may take into account, in whatever way they think appropriate, but subject to any directions"— that certainly lets the Minister in— the distribution within their area of", certain things, during any period they think appropriate (or such elements of such uses of resources as they think appropriate"). That is a ghastly piece of legislation. There is nothing to be said for it at all. I certainly applaud my noble friend's desire to amend it, but I slightly doubt whether the particular cure that he has chosen would prove effective. However, I certainly join him in believing that this type of verbiage, and the intention behind it in so far as it is clear, is greatly to be regretted. One is always grateful to the Minister for the attention that he pays to arguments in your Lordships' House. I believe that he will have difficulty in convincing noble Lords that this subsection is anything but vulnerable.

Lord Rea

My Lords, as a former general practitioner who has a continuing interest in reversing the inverse care law, which was first enunciated by my friend Dr Julian Tudor Hart approximately 30 years ago—unfortunately, it still applies—I find myself very much in agreement with the spirit of these amendments. They seek to take account of the abolition of the Medical Practices Committee as set out in the Bill.

I do not believe that because a certain institution is not functioning perfectly it is appropriate simply to abolish it. One should look at the problems that it has experienced and examine how its work can be improved. As noble Lords have said, the Medical Practices Committee has carried out some extremely useful work in evening out the distribution of general practitioners throughout the country. I believe that leaving it to individual health authorities to work out what is best within their areas is, again, asking for a possible increase of inequalities because health authorities may have varying powers of persuasion. In addition, the doctors within their catchment areas will have varying strengths in the case that they can put forward for their need of greater expenditure and more personnel.

I believe that the amendments will make the Bill less harmful in abolishing the Medical Practices Committee. The committee has a considerable archive of information. It has such a large amount of work to do that it meets once a week. I believe that the store of information that it has should be preserved and could well be used by a medical practice advisory body, as the amendment suggests. I hope that my noble friend can move some way towards meeting these amendments.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)

My Lords, I have listened with great interest to the remarks of noble Lords. One thing is clear: we all share a desire to ensure a proper and fair distribution of general practitioners throughout the National Health Service.

However, I believe that the context in which we must consider the matter is, first, the NHS Plan. In the plan we announced our intention to introduce a new way of distributing resources in order to address some of the undoubted inequities that exist in primary care services. Historically, those have been excluded from the weighted capitation formula, which has been used to ensure a fair distribution of funding for other NHS services.

As I said in Committee, I pay tribute to the hard work undertaken by the Medical Practices Committee. I also pay tribute to the leadership of Ro Day, who chairs the committee. I believe that, after many years of hard work, we are faced with a situation in which the distribution of GPs across the whole of the National Health Service is not fair. I believe that unless we take the action that we intend to take, there is absolutely no assurance that, if the MPC were to continue under its current arrangements, it would be able to improve the situation.

Before I turn to the details of the debate, perhaps I may make two general comments. The first is to respond to the noble Baroness, Lady Carnegy, who said that GPs have been losing influence. I do not believe that to be the case. The whole thrust of our aim is to push greater responsibility on to the primary care level. We established primary care groups and then primary care trusts because we believe that the closer the decision-making is to the primary care level, the more effective we are likely to be in achieving right and proper decisions.

I also say to the noble Baroness that, in relation to the development of national service frameworks, which describe how we wish to see different services develop in the future, the role of primary care is given a great deal of prominence.

So far as concerns the noble Baroness's comment about the referral of patients from GPs to hospitals, I have been encouraged by the efforts of consultants and GPs to agree protocols for those referrals. I am sure that the right way to progress is with agreement between consultants and GPs about which services should be provided in hospital and which should be provided in primary care, and agreement on the circumstances under which patients are referred to hospitals by GPs.

The noble Baroness referred to the current actions of the BMA. No doubt we shall debate that matter later. I understand that one complaint made by GPs is that we are pushing too much on to them. I accept that an issue exists in relation to workload pressure. However, what I do not believe to be in doubt is our record in ensuring that GPs have a pivotal role to play in the future provision and planning of services.

My second point by way of general introduction concerns the role of health authorities. I was interested in the remarks of the noble Lord, Lord Peyton. Indeed, I believe that the Medical Practices Committee is the first committee to which I have ever heard him pay tribute. So far as health authorities—

Lord Peyton of Yeovil

My Lords, there are not many committees of which I wholly approve. However, I believe that this one deserves some commendation, and I am sorry that it should be so roughly and ungratefully handled by the Government.

3.30 p.m.

Lord Hunt of Kings Heath

My Lords, I am happy to pass the noble Lord's commendation to the MPC. He may acknowledge that I have paid tribute to it for its work. The point is simply that we feel that its time has usefully come to an end. There is no intent to disparage its work.

We want to give local health authorities a much more proactive role. That role, combined with a national mechanism for examining workforce issues, will give us the best balance from which to sort out the difficult problem of ensuring that we have enough GPs throughout the country.

On the financial formula, we have commissioned the Advisory Committee on Resource Allocation to develop a formula for the GMS non-cash-limited element. When that is implemented there will be a single funding formula, which will set a target or a fair share for each health authority and primary care trust. That will cover the GMS non-cash-limited expenditure—that arrangement is new—as well as a unified allocation. When we allocate the extra resources for unified allocations in future, our pace-of-change policy will apply to those new targets. Those who are spending less than their fair share on GMS non-cash-limited services can be given a larger increase for their other services. If they are spending more than their fair share, they may get a smaller increase. We shall do that through a process of levelling up so that no area will have its existing level of resources reduced. That will have the effect of providing a financial incentive and support for those health authorities that need to increase the number of GPs in "under-doctored" areas.

We do not believe that a separate framework is needed to oversee national GP distribution, as Amendments Nos. 1 and 2 envisage. Health authorities need to consider GP numbers as part of their whole NHS workforce planning strategy.

The new formula is intended to improve the equity in the distribution of primary care services, including GP distribution. However, it is clearly important that that takes place within a national framework, and we are therefore setting up at national level the national workforce development board, which will advise the Secretary of State on GP numbers and on the whole range of workforce issues that are faced by the NHS nationally. I assure noble Lords that within that board an overview will be taken of the whole of the primary care workforce, including, but not limited to, GPs. Through that development board, the Secretary of State will set a national strategic direction for the NHS workforce. Within that, health authorities will produce integrated plans for the workforce who are needed to deliver services locally. The determination of need for GPs will form part of that local strategic planning role.

We are seeking to give health authorities a financial incentive and a much greater freedom to be proactive but—here I come to the point raised by the noble Earl, Lord Howe—we shall have a robust performance management framework. Targets for GPs will be agreed between the health authority and the regional office. That will be based in the context of the national strategy that is agreed through the national workforce development board. That is surely the right approach.

Health authorities will be given the freedom to manage the development of their local services across primary and secondary care. They will have the financial arrangements that will enable that to happen. Our new structures for workforce planning and regional office performance management will provide the national framework and the necessary safeguards within which health authorities will make decisions about the distribution of GPs.

We are not simply leaving GP distribution to health authorities; we are giving health authorities a leadership role but we are doing so firmly within a national framework and a performance management culture. I am convinced that that is the best way to achieve a fair distribution of all GPs, which all noble Lords wish to secure.

Lord Peyton of Yeovil

My Lords, does the Minister think that that provision will do anything to help the relationship between health authorities and GPs and, if so, why? I feel that it will do the reverse.

Lord Hunt of Kings Heath

My Lords, I do. Under the current arrangement for the replacement of GPs, many decisions have to be referred to the MPC at national level. A health authority does all of the legwork and arranges the discussions with GPs and it refers that to the MPC. Under our provisions, a health authority will seem to be much more proactive and to have a leadership role. GPs will welcome that. They will know that the key discussions will take place not in London but at local level between local GPs and the health authority. I expect that that will improve relationships.

Earl Howe

My Lords, I am grateful to the Minister for his reply and to all noble Lords who have taken part in this debate. Much of what he said was of great help but I confess that his response leaves me with several questions.

The Minister spoke of the wish to allocate fair shares in terms of resources for each area of the country. That relies on having an understanding of what "a fair share" is. He spoke of the role of the national workforce development board. As I understand its role, it will be responsible for overseeing the workforce development of all NHS clinical staff. However, it is not clear how it will operate—no details are yet available on its constitution or remit.

GP workforce planning is an extremely complex science. It needs expertise to interpret and act on workforce data. It is not clear whether the national workforce development board will have that expertise or on what it will base its decisions. The Government's intention is to transfer funding to areas in which there are insufficient numbers of doctors. That could run the risk of weakening the infrastructure in areas in which there are currently sufficient numbers of GPs and it could involve levelling down, which could damage patient care.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Earl for allowing me to intervene—I realise that we are on Report. I pick up on the issue of expertise. Expertise is obviously held by the MPC at national level. We expect the new workforce board to ensure that it has the right professional staff to provide the capacity and expertise in workforce planning. I agree with the noble Earl that that is a challenging art. Much of the legwork of the MPC is already undertaken by health authorities, which have to put together the submission and collect all of the details. Much of the expertise in the present arrangement lies at the health authority level. That will be available under the new arrangements.

Earl Howe

My Lords, I am again grateful to the Minister. Unless health authorities speak to one another in this context, no single health authority will have a view of the picture outside its region. That role, I take it, will be undertaken at national level. It still seems to involve quite a lot of bureaucracy and has more difficulties than the current system. Nevertheless, I do not wish to labour these issues any longer. The Minister has been helpful and I am grateful to him for his comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 2 [Payments relating to past performance]:

Earl Howe moved Amendment No. 3:

Page 3, line 6, leave out from first "objectives" to end of line 11 and insert "set by the Authority as objectives to be met in performing their functions and approved by the Secretary of State, or

(b) they met the performance criteria set by the Authority and approved by the Secretary of State as criteria relevant to the satisfactory performance of their functions (judged by the method of measuring their performance against those criteria set by the Authority and approved by the Secretary of State), and the Secretary of State shall publish details of such objectives, performance criteria and method of measuring performance within 28 days of approving the same."

The noble Earl said: My Lords, with Amendment No. 3, I return to an issue which we debated at some length in Committee, which was the way in which targets should best be set as the basis of payments from the NHS performance fund. Once again, I do not intend to repeat all the arguments that I set out in Committee as to why the Government's approach seems to be misconceived.

The central point that I sought to make was that, when such targets are agreed, it is important that they relate closely to the needs of the particular area and that local managers feel a real sense of ownership of them. The only way to be certain of achieving that is to involve management in defining what the targets should be. I do not suggest that managers should be given carte blanche to rig the system in their favour or that we should open the way to creating perverse incentives that would allow health authorities to choose only those objectives that they knew they could achieve, as that would be equally foolhardy.

Any targets proposed should be subject to approval and agreement by Ministers. I have no difficulty with that. As the noble Lord, Lord Clement-Jones, said so eloquently in Committee, the setting of objectives should be a mutual process. That is a basic principle of good business practice and it is the basis of this amendment.

The Minister's reply to me in Committee suggested that I was in some sense chasing windmills because he emphasised that the whole process of NHS planning involves officials negotiating individual targets with health bodies. He thereby sought to repudiate any suggestion that the Government were pursuing an overly prescriptive top-down approach.

Perhaps I may take him up briefly on that point. The consultation document issued by the Department of Health on 18th January explained the traffic light scheme in the context of nationally set objectives and earned autonomy. The problem that I have with that much-used phrase "earned autonomy" is that the autonomy which it posits is in reality no such thing. As I understand the word, autonomy carries a connotation of independence and freedom. No such independence or freedom will exist, even for health bodies with green light status. I accept that there must be a number of nationally set priorities. In the main, those should relate to health outcomes. But the whole flavour of the consultation document is of a prescriptive process involving a range of politically driven objectives which health authorities and trusts will have to achieve if they are to be given favoured status.

Top of the list in the "must do" box is the achievement of nationally set reductions of waiting list numbers. The next target is the elimination of 18-month waits. The one after that is the reduction in patients waiting longer than 13 weeks. Looking down the list, we see a target relating to delayed discharges and another relating to the Government's cancer referral pledge. Altogether, there are 10 targets in the must-do category and a further 77 in the priority category.

Apart from the fact that that is a huge list of objectives, it is quite clear that it is not a list which takes account of local needs and priorities. It is a list drawn up by officials from the Department of Health. It may be that that list will now be modified in the light of consultation but it is a top-down approach writ large.

The Minister expressed the view that my amendment risked creating perverse incentives. I can only say to him that the more targets that are imposed by Ministers that serve to distort clinical priorities, the more perverse incentives will be built in to fiddle the figures. There is a must-do target for health authorities to reduce the number of emergency admissions of older people. What is that target but a perverse incentive to set practices which may work directly against patients' interests?

But the waiting list initiative is the classic example of clinical priorities being distorted in order to meet political targets. We know of regrettable examples around the country of those figures being manipulated by trusts, out of sheer desperation. But even without such manipulation, those must-do targets encourage doctors to depart from the normal clinical principle that the sickest patients should be treated first.

I am afraid that the same is true of the cancer pledge. The Government's pledge that suspected cancer patients should be seen by a specialist within two weeks of an urgent GP referral has resulted in a spectacular misallocation of resources. Recently, Dr Joan Austoker, of the Cancer Research Campaign, said: The two week rule has completely backfired. It has led to a waste of resources and a waste of specialists' time". The cancer target may spring from the best of intentions but, ironically, it works directly to the detriment of many patients.

So, far from creating local autonomy and independence, the process appears to move in quite the opposite direction. I find it both sad and laughable that just about the only section of the consultation document which tried to address the need for local involvement was a brief question and answer. Question 7 asked: How can we ensure that the process is locally driven and has local ownership? How can we encourage and support the local development of suitable incentive schemes? The answer was: It is intended that there will be continuous learning by encouraging the NHS to share examples of good practice on the NHS learning zone".

The paragraph then goes on to talk about championing innovative schemes on the national website, giving an award for the best scheme from each region and so on. I have to say that I find it difficult to see what that has to do with local ownership of targets.

I think back to the words of my noble friend Lady Cumberlege in Committee when she spoke about giving local people the opportunity to be creative, to use their imagination, to take risks and to be forgiven when things go wrong. She asked what it is about the great Modernisation Agency that ensures that it always knows better than the people on the ground. I do not believe that we have yet had an answer to that question.

Perhaps the strangest feature of this clause emerged right at the end of the Minister's remarks in Committee. After the fairly detailed exchanges about the traffic light system, he disclosed that Clause 2 is not needed to implement the traffic light system at all. We understand now that that can be done using current powers. This clause is there to enable Ministers to move on from the traffic light system at some undefined stage in the future and to make additional payments to green-light organisations as an extra incentive.

I confess that that was news to me. But if it is the case, then it seems to me that there is all the more reason to take the greatest care in setting appropriate targets, and by that I mean targets which most closely reflect local priorities, where extra money is spent to best effect. I beg to move.

3.45 p.m.

Lord Peyton of Yeovil

My Lords, my noble friend deserves some support. In particular I echo what he said about targets, which are artificial things, dreamt up by Ministers and their officials. They are really nothing to do with what is happening on the ground. Again and again, targets are designed to increase the comfort of Ministers when they face a television interview on a sensitive subject. Such targets are useful then but they are certainly not useful in the hospitals themselves where targets become a source of total confusion. It becomes a matter of people meeting their targets either by fudging or otherwise distorting the situation to the great disadvantage of the patients. I entirely agree with my noble friend and I hope that the noble Lord will give very careful consideration to the amendment.

Baroness Ashton of Upholland

My Lords, as chair of a local health authority, I should like to say a few words in favour of targets. I am subject to them constantly. I have two red-lighters, an amber and two greens in my health authority area.

It is quite important that we do not lose sight of the purpose of targets for the health economy.

I chair the waiting list initiative in my health authority, and I know that it has led to a huge amount of work for GPs and clinicians from the acute trusts in trying to identify what is happening in terms of the waiting lists, which patients have been waiting the longest, what level of pain a patient may be suffering, and how best we can address such matters.

In our discussions, which can reflect a rather straightforward view that waiting list initiatives may be wrong, I do not want to lose sight of the important work that takes place because we have targets. I should like to have fewer targets than I have currently, but they mean that we look carefully at the services that we offer our population to ensure that they are provided to the best of our abilities.

In my view the distortion that has been described is something that has been created by the media. Such a distortion does not happen in my health authority. We carefully look at which patients are treated, and we are required to identify which patients are treated by the different specialties so that we do not distort the figures. We should not lose sight of the need for targets to ensure that health authorities, trusts, GPs and all the professions allied to medicine work together to provide the best possible healthcare.

Baroness Carnegy of Lour

My Lords, I am sure that all noble Lords admire the fact that the noble Baroness is extremely good at her job. However, I do not believe that the evidence from various health authorities shows that targets never cause distortion; they appear to cause a lot of distortion and the wrong people are treated in the wrong order. The noble Baroness knows more about that than I do. The system is operated by human beings; it is not just a theory or a bureaucratic structure. Health authorities comprise human beings.

I am sure that the Minister would agree that my noble friend Lord Howe made an extremely thoughtful speech. He examined the system carefully and pointed out some of the dangers. I agree with what he said. I simply add that I can think of nothing more foolishly demotivating of people than for the Secretary of State to tell them their objectives and that their money will be topped up only if they do exactly what they are told in following those objectives. How much more sensible it would be—I should have thought that any sociological advice would say this—to allow the authority to consider what its objectives and criteria should be, to agree them with the Secretary of State, and then to try to implement them and thus get extra financial help.

These provisions are obviously the wrong way round. I honestly believe that the Secretary of State must have lost his head if he considers that it should be done this way round. I should not want to serve on a health authority that was told its objectives and then bribed into implementing them. That is not the right way round. I should want to convince the Secretary of State of what we felt was right for our authority and to get his agreement before the money might be forthcoming. I should have thought that that was obvious.

The noble Baroness appears to accept this bossy approach from above. Probably her inbuilt niceness allows her to do that. Presumably she turns it around into whatever she wants, which shows her good feminine instinct. I am sure she does a good job, but it is not the way in which Parliament should legislate.

Baroness Ashton of Upholland

My Lords, perhaps I may respond to that. Do not be too sure about my inbuilt niceness!

Lord Hunt of Kings Heath

My Lords, we have had an interesting debate. It goes to the heart of the question of how best one manages a national service where the key decisions and key services are provided at local level. The truth of the matter is that that debate first started in the post-war Attlee government when decisions were made about how the NHS should be formed and there was a fierce debate about whether the NHS should come within local government or whether it should be a national service. Ultimately, the decision was made that it should be a national service, but the first Minister for Health, Bevan, made it clear that as much as possible decision-making should be devolved to local committees of locally appointed people.

Essentially we have retained that model through many structural reorganisations over 52 years. We have also retained a debate between various governments about the balance between national direction and local autonomy. I tease the noble Earl, Lord Howe, that through the many years of their stewardship of the NHS his government were responsible for many centralising approaches and the production of many varied priorities. Indeed, one regional health authority added up 57 different priorities set by the Conservative government on which health authorities should deliver. Clearly, there is a big problem if central Government set far too many targets for local health services to deliver, because ultimately a confusing picture is presented to people who manage at a local level and they do not know which are the priorities.

I believe that it is absolutely right that government at national level should set targets and priorities. The service is a national one in which Ministers are accountable to Parliament for its effectiveness and quality. Over the years problems have been caused in the national service and there have been enormous variations in the quality and quantity of services provided at local level. That is not tenable within a national health service.

In our first debate noble Lords opposite were exercised by the new arrangements that they feared may take us away from national targets in relation to general practitioners. In our many debates on the NHS it is rare that a noble Lord asks the Government to devolve more power to the local level. The argument from all sides of the House is always, "Please give instructions to the NHS about this, that or the other important issue".

It is difficult for governments to achieve the correct balance between what should be left to local autonomy and what should be decided nationally. We believe that earned autonomy is the best approach because essentially that says to the NHS at local level, "If you can deliver on those matters that we believe are core to the delivery of a good standard, consistent health service, we are talking turkey in terms of giving you much greater autonomy than you have had in the past".

I know that the noble Earl, Lord Howe, has carefully gone through the consultation document that implements the performance improvement agenda setting out the ideas for the use of the performance fund and the earned autonomy package. That is a consultation document which we are discussing with people within the National Health Service. I make it clear that local health authorities can choose from the list of "must dos" in the consultation document from which he quoted rather than every item having to be delivered by the NHS locally. Of course, the end-product of that process will be fewer targets than are listed and we shall listen carefully to the arguments and views put forward by local health authorities and NHS trusts.

I also say to the noble Earl that targets for individual NHS bodies that contribute to national priorities will be agreed locally.

We are talking about a national health service which is accountable to Parliament. I believe that it is right that Ministers should set the key priorities and targets which the service rightly expects its agents at local level to deliver.

4 p.m.

Earl Howe

My Lords, I am grateful to the Minister and to noble Lords who joined in the debate. I am grateful in particular to the noble Baroness, Lady Ashton, for what she said and I respond by saying that I am not against targets. I am sure that we need them—some being set centrally. I found it baffling to hear the Minister disclose that some of the "must do" targets about which I read in the consultation document do not have to be achieved. I had not realised that on first reading and perhaps I may be forgiven. The noble Baroness, Lady Ashton, spoke about plans to deal with the local waiting list situation. It was an example of responsible local management dealing with a local priority, which is the way it should be done.

I do not believe that I can be the only person who found the consultation document a fairly dismaying example of pressures being exerted on health service bodies from the centre. Of course I take on board everything the Minister said but I wonder how, when such pressure builds up, we will avoid serious strains emerging in the operation of the whole system. I strongly believe in the principle of business management which states that those who have executive responsibility work best if they are working to objectives in which they really believe.

The Minister indicated that he agrees with that overall principle and I am sure that he does. However, I hope that he will follow his convictions in the fullest possible way when the proposals are worked through and put into practice. In my judgment, a great deal will depend on it. However, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Supplementary payments to NHS trusts and Primary Care Trusts]:

[Amendments Nos. 4 and 5 not moved.]

Clause 7 [Functions of overview and scrutiny committees]:

Earl Howe moved Amendment No. 6:

Page 6, line 40, at end insert—

"() as to the provisions of resources to an authority to which this section applies to enable effective review and scrutiny"

The noble Earl said: My Lords, Amendment No. 6 brings us back to a concern I raised in Committee about the ability of local authority overview and scrutiny committees properly to carry out the responsibilities which the clause places on their shoulders.

In Committee, I expressed the concern that even as things stand local councils are overstretched not simply in terms of finance but also in terms of workload. The noble Lord, Lord Harris of Haringey, took me somewhat to task for what he understood to be my suggestion that local councillors do not have the time to devote to the work of OSCs. The noble Lord reminded us that in recent months the nature of local government work has changed.

All that is right, but I sought to make the point that at officer level, which is where most of the spade work for OSCs will be done, resources are already stretched to the limit. I am a bit of an agnostic about the benefits which are likely to flow from local government supervision of the health service, but, if we are to have it, for goodness' sake let us have something which does a proper job and whose work commands respect.

If overview and scrutiny committees are to exist, they must count for something. There is a huge risk that through lack of financial resources some local authorities may exercise their scrutiny role in a tokenistic, bargain-basement way. In the poorest areas, where the health scrutiny function is perhaps needed most, hard-pressed local authorities may be tempted to reduce their levels of scrutiny.

Rightly or wrongly, I see OSCs as being part of the quality agenda in the health service. The Government have chosen to create these new statutory functions to ensure better local accountability for services in an area and to monitor the standards of those services. If they are serious about those aims, they should have a clearer idea than appears to be the case of how local authorities are supposed to cope with the workload not only as regards OSCs but also in connection with their many other health-related functions. Issues such as care trusts, Section 31 arrangements, child protection, care leavers, adoption services and preserved rights for those in care homes will increasingly occupy the time of local authority officers. All are worthy activities in themselves but the same group of people cannot work more than a certain number of hours in a day.

I agree with the point made by the noble Lord, Lord Harris, in Committee that we want to avoid the process of overview and scrutiny becoming antagonistic. One feature I have found in my business and parliamentary life is that when people are not properly informed about a subject they tend to become aggressive rather than be shown up to be ignoramuses. They tend to nit-pick rather than look at the wider picture. A little knowledge is a dangerous thing, so when we talk about the provision of proper resources to support the work of overview and scrutiny committees, we are talking about ensuring that a satisfactory flow of information and balanced argument goes to scrutiny councillors to enable them to do justice to their job.

Part of that flow of information will originate with patients' councils, as I shall argue when we debate a later amendment. However, like Ministers in government, local councillors are entitled to expect that they will be sufficiently well briefed by officials to be able to understand, first, how the system works and, secondly, to ask the right questions of NHS chief executives. I felt that the Minister, in Committee, had not taken those concerns sufficiently on board. I hope that he will be able to reassure us about them in more detail today. I beg to move.

Baroness Carnegy of Lour

My Lords, as my noble friend suggested, this is one of a number of amendments which relate to the effect of local government involvement in the NHS. Anyone who has been a local government councillor is strongly aware that councillors feel they cannot spend the money they have raised from the council tax or the balance of their expenditure, for which they depend on government, without a degree of answerability to their electors. We do not know what it will cost local government to be involved in the overview and scrutiny committees but inevitably the cost will vary. Some of it will be available from the NHS and some will not.

No doubt the councillors who undertake the work will become increasingly interested and enthusiastic. Whether the effect of that will be good or bad for the NHS as a whole I questioned at an earlier stage. However, such local government involvement is a big move and it is inevitable that councillors will want to comment on whether they have enough money. The amendment merely suggests that they should be able to make such comment to the overview and scrutiny committee.

Those are inevitable results and when we deal with later amendments we shall see that there will be others. The Local Government Association feels strongly about the matter, and I can understand that.

Lord Smith of Leigh

My Lords, as someone who comes from an under-funded local authority it may seem odd that I should question the noble Earl's comments. The noble Earl painted almost a doomsday scenario, in the sense that without resources things would not happen. We need to view this in the context of the Local Government Act and the power of wellbeing that local authorities now have. They will not review simply health bodies but other bodies which affect the lives of citizens within their areas. There will be a cost in time rather than extra cash, and it will be for local authorities to consider priorities. However, as the noble Baroness said, at this stage it is very difficult to know how much one should give a local authority.

In this as in other areas performance will be variable, but I believe that this is one of the most exciting developments. The hope is that this will be driven by members who have time rather than officers. My authority has a system which parallels the Select Committees in Parliament. Back-bench members who have more time and effort to devote to this will be able to get the information themselves, with the support of local authority officers and, presumably, the health bodies themselves and patients' councils. It will not always be one way. We must learn from experience.

We need to get the system up and running and then see how well it works. In those local authorities which approach it with enthusiasm it will work well; in other cases we may need to give them a little more encouragement. While there is a question as to resources, it is too difficult to define it at this stage. We do not know how much to put into each local authority to make sure it is done well.

Baroness Carnegy of Lour

My Lords, I realise that we are at Report stage, but I believe that I am in order. Before the noble Lord sits down, can he say whether he supports the amendment which proposes that in the committee a local authority should be able to comment on whether it has enough money to do the job?

Lord Smith of Leigh

My Lords, I believe that it is too early to say how much money a local authority will need to do the job of scrutiny properly. Performance will be variable, and I do not believe that in this case money will necessarily deliver good performance. One may well put money into some local authorities which do not necessarily do the best job.

Baroness Masham of Ilton

My Lords, following the observation of the noble Lord, can the Minister say what will be done in the case of those local authorities which do not do a good job of scrutiny?

4.15 p.m.

Lord Hunt of Kings Heath

My Lords, I am slightly disappointed by the tone of the debate because I believe that in future the role of the overview and scrutiny committee will be very important and will bring local authorities to the table in terms of decisions about the development and monitoring of services at local level. I agree with the noble Earl that a little knowledge is a dangerous thing. If we look back at the record of local government we see the product of that little knowledge in terms of its reaction to necessary changes and developments in services proposed by the NHS. I believe that one reason a number of local authorities adopted an unhelpful attitude was that they were not sufficiently engaged with the NHS and knowledgeable about health service matters at local or national level.

In the past three years there has been a great turnaround in the relationship between local authorities and the NHS. To start with, many more councillors are now non-executive members of the boards of NHS authorities and trusts. The partnership powers are being used in a number of imaginative ways, but I believe that there is also a much more serious approach to discussing problems together. Last winter I was very impressed by the fact that the planning teams involved local authorities very much as partners and took part in detailed discussions about how the NHS and social care would meet the challenges that winter always brings in terms of the demand on services. That excellent foundation, on which we shall build, will give local authorities much more influence in the NHS in future. From the point of view of the NHS, I believe that decisions that are made will give it more local democratic legitimacy which in the past has been very much lacking.

As my noble friend Lord Smith said, local authorities are developing a very different approach to government with the use of overview and scrutiny committees, which is proving to be extremely successful. I do not believe there is any evidence that local authorities will not wish to embrace with enthusiasm this role in relation to the National Health Service. I say to the noble Baroness, Lady Masham, that if ultimately a local authority, which is a democratic body, does not prove to be good at carrying out that responsibility, the answer must lie in the ballot box. I believe that at the end of the day very few local authorities will not wish to take this matter seriously.

The Department of the Environment, Transport and the Regions is the lead government department for local authority activity. I can assure the House that officials of both my department and the DETR are working together on some of the issues that impact on the role of local authority committees in undertaking NHS scrutiny. We are considering whether to include in regulations the potential, for example, for the joint secretariat for patients' forums and councils also to support local authority overview and scrutiny committees. That may be one answer to the question raised by the noble Earl about the availability of expertise within local government. For a number of years some local authorities have had health committees 'with responsibility for liaison with the NHS, and I am sure that the officers who have worked with those committees will provide a wealth of experience which can be made available to the OSCs.

We are also considering the potential for regional government offices to work with NHS executive regional offices to provide training on NHS structures and operations so that we can develop the expertise of local authority councillors to enable their overview and scrutiny role to be as effective as possible.

As to funding arrangements, surely that must be a matter for the local authority concerned. My noble friend Lord Smith referred to the overriding responsibility in relation to the well-being of a particular locality covered by a local authority. I would have thought that local authorities would see the National Health Service as such an important part of what happens at local level that they would have no hesitation in ensuring that overview and scrutiny committees received support in terms of both funding and the expertise of staff to make sure that they operated effectively.

Earl Howe

My Lords, I am grateful to the Minister. I have no doubt that the noble Lord is right when he says that many local authorities welcome the proposed new role that is to be conferred on them by the Bill. At the same time, there is considerable worry in local authorities about how they are to do justice to that role within existing budgets. I do not believe that it is enough to say that local authorities must simply work within the envelope of existing resources. That answer begs all the questions that I sought to raise in my remarks. As I tried to explain to the House, OSCs are but one element of a range of local authority responsibilities in the health arena, all of which are of increasing significance and must be tackled simultaneously.

I am grateful to the noble Lord, Lord Smith, for his wise remarks. I did not suggest that we should try to define the level of extra resources required. The noble Lord is quite right: it is the responsibility of government to ensure that the system that they are now creating works in practice, and, to the extent that it is not working, to consider whether lack of resources is an issue.

A Minister in another place said that because these powers are essentially permissive, the exact cost of implementing them will be up to local decision making. I found that statement very worrying because it suggests that central government are not in the end concerned about how local authorities actually undertake their overview and scrutiny role, or how well they do it, just so long as the mechanisms are in place. If that is the attitude of government then we can be sure that many local authorities will pay only lip service to the whole process. That would benefit no one.

Nevertheless, the Minister has clarified a number of uncertainties in my mind. He has added some flesh to the bones. I am grateful to him for that. We must all wish overview and scrutiny committees the best of good fortune in the work that they do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Earl Howe moved Amendment No. 8:

Before Clause 12, insert the following new clause—

"REFORM OF COMMUNITY HEALTH COUNCILS

(1) The Secretary of State shall by regulations provide for the reform of Community Health Councils established for districts in England under section 20 of the 1977 Act. (2) The regulations shall provide for—

1. (a) renaming Community Health Councils as Patients' Councils (referred to in this section as "Councils");
2. (b) the information which local National Health Service bodies must provide to Councils;
3. (c) the funding of Councils and the provision of premises and other facilities by the Secretary of State;
4. (d) the membership of Councils.

(3) The functions of a Council are—

1. (a) to establish sub-committees for each National Health Service trust and Primary Care Trust in the district of the Council, to be known as Patients' Forums (referred to in this section as "Forums");
2. (b) to facilitate the co-ordination by Forums of their activities;
3. (c) to make reports and submit recommendations to Health Authorities, local authorities and their committees. National Health Service trusts, Primary Care Trusts, the national patients' body for England and to the Secretary of State in accordance with the regulations;
4. (d) to carry out such arrangements as may be made with the Council under section 19A of the 1977 Act (independent advocacy services);
5. (e) to appoint, for each Forum within its district, one member as a non-executive director to the board of the trust to which the Forum relates;
6. (f) to appoint a representative, having such functions as may be prescribed, to attend meetings of each relevant health authority;
7. (g) to arrange for functions of Forums to be performed under joint arrangements between Councils, where such arrangements are appropriate to meet the needs of their communities;
8. (h) to receive and respond to disclosures under the Public Interest Disclosure Act 1998 (c. 23) where such disclosures reveal matters of concern for patients in the health service or for the wider community;
9. (i) to refer issues of concern to patients to health authorities, local authorities and such national quality assurance bodies as the regulations may prescribe and to the Secretary of State;
10. (j) such other functions as the regulations may prescribe.

(4) The functions of a Forum are to—

1. (a) monitor and review the operation of services provided by, or under arrangements made by, the trust to which it relates;
2. (b) obtain the views of patients, carers and the wider community about those services and report on those views to the Council and to the trust;
3. (c) having regard to the views obtained in accordance with subsection (4)(b), provide advice and make reports and recommendations about matters relating to those services to the Council, the relevant Health Authority, and the trust;
111
4. (d) make available to patients and their carers advice and information about those services;
5. (e) carry out such functions in relation to primary care services as may be prescribed by regulations made by the Secretary of State;
6. (f) in prescribed circumstances, to perform any prescribed function of the trust with respect to the provision of a service affording assistance to patients and their families and carers;
7. (g) carry out such other functions as may be prescribed.

(5) Regulations shall provide for the membership of a Forum, which shall comprise—

1. (a) as to at least a quarter of its membership, members or representatives of voluntary organisations whose members or client groups have an interest in the health service;
2. (b) as to at least a quarter of its membership, patients;
3. (c) as to at least a quarter of its membership, carers;
4. (d) such other persons as may be prescribed.

(6) References in subsection (4) to "services" are references to—

1. (a) services provided as part of the health service (within the meaning of the 1977 Act) in England,
2. (b) services provided in England in pursuance of section 31 arrangements in relation to the exercise of health-related functions of a local authority, and
3. (c) services provided elsewhere (and not part of the health service in England) in pursuance of section 31 arrangements with a local authority in England.

(7) In this section—

1. (a) "relevant Health Authority" in subsection (4)(c) in relation to a Forum for a Primary Care Trust, means the Health Authority whose area is, or includes, the area for which the trust is established:
2. (b) "prescribed" means prescribed by regulations made by the Secretary of State;
3. (c) "section 31 arrangements" means arrangements under regulations under section 31 of the Health Act 1999 (c. 8) (arrangements between NHS bodies and local authorities);
4. (d) "carer", in relation to a patient, means a person who provides care for the patient, but who is not employed to do so by any body in the exercise of its functions under any enactment;
5. (e) "the health service" has the same meaning as in the 1977 Act;
6. (f)"patient" includes (as well as a patient within the meaning of that Act) a person who receives services provided in pursuance of section 31 arrangements in relation to the exercise of health related functions of a local authority."

The noble Earl said: This is an issue that, perhaps more than any other in the Bill, divides the Government from the two opposition parties; namely, the proposal to abolish community health councils. In moving Amendment No. 8, I shall speak also to Amendments Nos. 9, 10, 12, 14 and 15. Ever since these proposals were announced last year, many of us have been unable to fathom what is really at the back of the Government's mind.

Both the Minister and myself believe that CHCs in their present form suffer from deficiencies. In many cases CHCs do not deliver what patients now want and expect. They are under-resourced and, in general, they are ripe for review. Where the noble Lord and I differ is in our conclusions. The Minister believes that we should go back to the drawing board and has done so. I believe that the ideas and principles that underlay the creation of CHCs are as valid today as they were when CHCs first came into being. I believe that many CHCs do a first-class job. Some of them make life awkward for Ministers. I sympathise with the noble Lord, Lord Hunt, if he has found them to be a nuisance, but even he will recognise that that is what CHCs are there for. They are all about accountability and communication and the voice of ordinary people. No government department should be free of such influences; and no government department is.

If I do not misrepresent him, the Minister's view is that, taken overall, CHCs have proved a disappointment. According to him they have not made the impact on the NHS that once we thought they might. We could all wish that some CHCs had been able to do more. However, I take issue with the suggestion that CHCs as a whole have been ineffectual creatures. The document published in 1997 called CHCs Making a Difference catalogued a wealth of examples of CHCs bringing about improvements across the whole range of health services, from hospitals, to dentists, to ambulances and GPs. Some of these improvements are relatively minor; others are very significant.

Their watchdog role has been particularly notable in recent years when one thinks of Bristol, Rodney Ledward, Shipman and Alder Hey. Thirty thousand patients a year turn to CHCs for help with making a complaint. Despite under-resourcing, or perhaps because of it, the truth is that CHCs are highly cost-effective bodies. But matters could be a great deal better. While a great deal has happened to the NHS since 1974, CHCs have seen very little change in their statutory powers and functions. Patients have become more aware of their right to complain. Yet CHCs have no statutory duty to assist complainants or act as advocates, even though many of them actually do.

When NHS trusts were created, they were not required to be accountable to CHCs as tightly as perhaps they might have been. Neither the advent of community care nor the more recent reforms to primary care brought about the kinds of changes to the powers of CHCs that might have been appropriate. In the wake of those reforms there are noticeable fault lines in the right of CHCs to be consulted about major changes in the NHS. That suggests to me that CHCs should not be done away with but should be reformed. Deficiencies in their powers should be put right. Any scope for improvement in professionalism and training of staff and in meeting proper performance standards should be tackled. Gaps in accountability to local people should be filled. But the key features of CHCs should not be lost. Those features are independence from the NHS; being a one-stop shop for patients; and the right to be consulted at local and national levels.

What is sad about the Government's proposals is that the multi-faceted role of CHCs is to be divided up and fragmented between a whole lot of new bodies. That fragmentation brings with it a great many disadvantages. One of them is that the route open to an aggrieved patient is much less clear. For those noble Lords who were not present in Committee to listen to my noble friend Lady Cumberlege, who is in her place, let me give a simple example. Imagine that someone is taken ill in the night at home. He rings NHS Direct. He is told to ring his GP. The GP is not there. Later on in the night the symptoms, whatever they are, become worse. The patient phones an ambulance. The ambulance takes its time in arriving. When the patient gets to hospital he is unconscious and needs intensive care. A bed is not available. The patient dies.

That sequence of events is not altogether fanciful. But consider the course of action that the patient's family may wish to take if they believe that somewhere along the line there has been incompetence or negligence. To whom do they complain? Do they complain to NHS Direct; to the GP; to the PALS of the ambulance trust; to the PALS of the hospital; or to one or other of the patients' forums? If they go to any of those there is all manner of scope built into the system for them to be shunted about as each body blames the other for what has happened.

A properly resourced complaints service in a community council would cut through all that. I said in Committee that what we are presented with in the NHS Plan and the Bill is a pile of structures. But it is worse than that; not simply for the reasons I have just given, but also inbuilt into the very fabric of the new system there is an absence of communication between all the bodies and committees that are supposed to be taking on the various CHC functions.

The Government may well say that communication will be vital. But one reason why a one-stop shop is good for patients is that it acts automatically as the single repository and processor of information from every corner of the NHS in its area—not just one hospital or one trust, but the entire local health service. The best watchdog is the well-informed watchdog; the watchdog that knows what to look out for. The best advocate is the one that knows exactly how each part of the system fits together and where its weak points are. With the best will in the world, how will we get this kind of synergy for the patient when scrutiny is separated from complaints work; when there is ambiguity on the degree of real independence in both PALS and patients' forums; and when the proactive strategic role played by CHCs is in danger of disappearing between the cracks? The short answer is that we will not.

I readily concede that the Government have listened to the views put to them. Much has changed since the proposals first emerged. Amendments tabled in another place brought us patients' councils and the independent advocacy service. But the impression given is that the Government are making things up almost as they go along. These proposals are not well thought through. They are woolly, loose and ill-formed. Even the Prime Minister is confused about what exactly they involve. Setting aside the perils of any transition process—they are likely to be considerable in this case—one really has to doubt whether it is worth the risk and expense of even embarking on this course.

Now that the Government, one way or another, have attempted to make up for many of the things that we might have lost with the demise of community health councils, I ask them: why get rid of CHCs at all? I do not believe that there is a sensible answer to that question and I am disappointed that so far Ministers have refused to recognise the fact.

The underlying premise of the amendment standing in my name is quite simple. I wish to ensure the continued existence of community health councils and to build on some of the ideas contained in the Bill in order to reform and strengthen them. I am looking for change, but with continuity. The amendment does not simply dismiss what the Government are proposing. Far from it. It takes as its starting point the fragmented structures currently proposed in the Bill and attempts to rationalise them. It seeks to bring patients' forums and advocacy services within the embrace of patients' councils; it seeks to ensure that some of the essential statutory functions and features of CHCs are preserved, such as the power to refer contested decisions and the power to whistle blow; and it seeks to ensure that, reborn as patients' councils, CHCs retain that vital characteristic of operational independence. I genuinely believe that that is the way we should proceed for the good of patient representation and patient empowerment in the health service. I beg to move.

4.30 p.m

Lord Clement-Jones

My Lords, I rise to speak in favour of Amendment No. 8 to which I have attached my name. The amendment is strongly supported by noble Lords on the Liberal Democrat Benches. I do not propose to elaborate at great length. The noble Earl, Lord Howe, cogently put the case for Amendment No. 8 and the related amendments.

We have had several debates on CHCs. Many of us have picked apart what is still an unsatisfactory set of proposals. This has been an unhappy episode in legislating. It started with the NHS Plan, which, in terms of these proposals, was very much constructed on the hoof. The Bill contained some very fragmented proposals, improved to some degree during its passage through the Commons by the creation of patients' councils and by putting on the face of the Bill the requirement to establish a national body for patients. However, the Bill remains deeply flawed, principally because it does not build on the good work done by CHCs.

The noble Earl, Lord Howe, was quite frank—I very much share his view—that CHCs have not all been wonderful in their operations. However, by and large, with rather limited resources, they have provided a fairly effective service over the years. For the Government simply to decide to abolish them outright and put in their place some rather unsatisfactory structures is an extremely cavalier way of proceeding. In addition, it is not as though the Government's proposals are so clearly worked out that we can all understand exactly what is proposed. After all, in Committee the Minister said: It is very difficult at this stage to say what will happen in practice.—[Official Report. 19/3/01; col. 1199.] In the circumstances, that is something of an admission. Indeed, with his pedigree in this area, if the Minister were in opposition I believe that he would be supporting Amendment No. 8 and the associated amendments.

The new clause is an attempt to pull together a satisfactory outcome. It is not an attempt completely to reinvent CHCs as they currently exist. It seeks to provide a scheme by which we can build on the experience of the past while providing a blueprint for the future. The new clause provides for the reforming of CHCs and their renaming as patients' councils. It makes patients' councils broader based, more integrated bodies. They will be the main building blocks of the new structures rather than the patients' forums, which, as they currently exist in the Bill, are narrowly focused structures and rather disparate in terms of the sheer number of trusts that must be mirrored by patients' forums.

The new clause creates patients' forums as subcommittees of patients' councils. It provides more detail on the face of the Bill for patients' forums and councils, so that their functions are broader, clearer and more consistent across the country. It is more desirable that the powers of patients' councils and patients' forums should be set out on the face of the Bill. In particular, the new clause provides a prescribed role for patients' councils with regard to health authorities.

One of the key areas is the referral of issues to health authorities. Nowhere on the face of the Bill are patients' councils or patients' forums given that right. A letter to the Minister of Health, Mr Denham, from London Health Link, the Regional Association of London CHCs, states that, we were perplexed to note that the Health and Social Care Bill does not reproduce the statutory power to refer and there is no intention on the face of the Bill to do so by regulation. A dilution of powers will surely lead to a dilution of accountability on an issue that is often enormously sensitive. We understand that it is proposed that the referral of the decision from local to national level be provided in Directions to health authorities. Health authorities have no incentive to refer decisions that may reflect badly on them". That is one of the essences of the case and the reason why we need the additional powers for patients' councils.

Furthermore, the new clause ensures a broader membership for patients' councils. The Bill restricts involvement in statutory bodies to recent service users and members of local voluntary organisations. The new clause seeks to involve local citizens. The experience of CHCs is that it has often been the people who are neither recent patients nor members of voluntary organisations who have had the most to give in terms of time and breadth of experience. It is vital that the broader citizen perspective is incorporated into the new arrangements. That is building on the experience of CHCs.

The new clause, if carried, would provide for a smooth transition from the old structures to the new. It would enable the Government to introduce the reforms they are committed to, such as patients' forums and independent advocacy, in a way that would ensure a seamless move for the benefit of patients and the public. It would ensure that the skills, commitment and experience—this is extremely important—of CHC staff and members were utilised as effectively as possible. This form of transition would also ensure that both the drawing up of regulations consequent on the passing of the Bill and the local implementation of the new structures would be able to draw on the full range of skills and experience of CHCs.

The proposed abolition of CHCs has caused deep concern in local communities. The new clause preserves the Government's reforms while addressing the concerns expressed about the proposed abolition of CHCs. I very much hope that the scheme commends itself to the House.

Baroness Cumberlege

My Lords, I should like to make a short contribution to this debate. At one point I thought that Mrs Archibald had passed away, but now I think that perhaps my noble friend shot her and resurrected Mr Archibald. I am concerned about what is in the Government's mind as regards what lies behind these proposals. If I were less generous of spirit, I might think that there really was a sinister intention to fragment the service so much that it becomes unworkable from the point of view of the complainant—the patient with a problem.

In this House, we have a great deal of expertise. On the whole, Members try to work together to achieve solutions that will be workable and constructive, not only as regards the National Health Service, but also in all the other work undertaken in the House. In that spirit, I visited Brighton to look at the patient advocacy and liaison service offered there. I have to say that I was extremely impressed. At that level it is working well, but it fulfils a different role from that performed by community health councils. The patient advocacy and liaison service is staffed with people employed by the trust and thus performs the role of what would be the customer relations department in a commercial organisation. No doubt every organisation needs that kind of service. When speaking to the person who has been in post for some years, it appeared that the work she has been undertaking prevents issues inappropriately moving up the chain and thus reaching a court of law. That element of the Government's proposals is constructive and good. However, I am extremely concerned about the balance of the proposals.

My noble friend Lord Howe has pointed out that it is the managers who resent criticism. Throughout the debate on these proposals I have been enormously impressed by the number of medics who have expressed their deep concern about the abolition of the CHCs. As clinicians, they understand the service in a slightly different way from managers who are professionals but who do not perform a clinical role. We know that managers have been very strictly controlled by the Government and many of them fear losing their jobs if they do not perform as expected. People can have "off" days when they do not work as efficiently and thoughtfully as on other days, but managers know that, if they make a serious mistake, it will be "off with their heads". Clinicians are in a much more protected position and understand well the contribution that an independent body can make—not only through criticism but also in a constructive manner—towards improving the service. Many clinicians have said to me that they do not agree at all with the Government's proposals to abolish the CHCs, as they see that independent force performing an extremely important role to the good of the NHS.

In Committee, the Minister said that if CHCs had performed better, the entire service would have been better. I think that that was an unfair criticism because CHCs have been working on a shoestring. Under-investment in the councils has led to low levels of stalling and limited resources with which to carry out their work. To think that they, alone, should improve the service is, I think, totally unrealistic. For that reason, I believe that the Minister's criticisms were not well founded.

My noble friend Lord Howe put the question: why get rid of the CHCs? It seems that that is the question which needs to be answered. I do not believe that we have yet received a response to it. Many noble Lords believe that the Government have their reasons, but those reasons—my noble friend pointed this out—turn on the fact that they do not want to be criticised. That is not a view which could be described as adult. Every organisation expects some kind of criticism because that leads to improvements in service provision. I believe that it would be a retrograde step to get rid of the CHCs, albeit that from time to time they embarrass the service and the Government.

I hope that, in the spirit of this House, the Minister will make some concession to the enormous amount of concern that has been expressed on this issue—certainly among community health council members themselves. I am surprised that a government who have set out to be so populist should have aggravated, annoyed and caused such a degree of disillusion among so many people who voluntarily give their time to the service.

No doubt the Minister will take note that the amendments tabled on this matter are cross-party. My noble friend's amendment is well thought out and coherent. It builds on the strengths of the CHCs. It is now up to the Government to study it carefully and see whether something more constructive could be brought forward at Third Reading.

4.45 p.m.

The Lord Bishop of Hereford

My Lords, I should like to express my strong support for what has been said from the Benches opposite. I am sorry that I have not been able to take part in the earlier stages of this Bill in your Lordships' House—indeed, it may be a little rash to contribute at this late stage. I agree entirely with all that was said by the noble Earl, Lord Howe: CHCs are in the business of accountability and communication; they represent the voices of ordinary people. They are not always as good as they should be and if they had been better, the service would have been better. To that extent, I can agree with the Minister. However, I believe that the CHCs have done an extremely useful job and I strongly support their continuation. Failing that, I support the imaginative and intelligent way in which the amendment before us seeks to perpetuate the best of CHCs within the context set out by the Government in the Bill.

I have been vicariously involved with these issues over many years from both sides, through my wife's membership, over a period of some 30 years, as successively chairman and vice-chairman of two CHCs, as a member of a health authority and as a non-executive director of an acute hospital trust. Through that connection, I have heard a great deal about the issue. Perhaps, through my wife, my experience of CHCs has been unduly good—one might expect that if she has been involved in their leadership—but, to my knowledge, they have done good work. I refer to CHCs both in the areas in which we have lived and those on which my wife has served.

It is extremely desirable to retain the independent functions of the CHCs. The relationship between the CHC and the health service provider does not need to be confrontational. Occasionally it will be, but generally there is a complementarity of purpose. It is very much in the best interests of patients that a body should quite clearly and unambiguously represent their concerns, and is able to negotiate and, if necessary, to campaign on their behalf. The new patients' councils must retain that independent role.

Health service providers stand to benefit from the retention of the clearly defined independent role. At present, if a complaint is brought by the CHC, is thoroughly investigated and proved to be groundless or if a perfectly reasonable explanation is given, the CHC can report back, with a considerable degree of authority, to the complainant and the service provider can be exonerated. The patient will believe that justice has been done as far as is possible in a way which would not be the case if there were the damaging possibility of divided loyalties, which I believe would be the case with the Government's proposals.

Health service providers do not have the time or the resources to follow up complaints in detail. They have a strong vested interest in suppressing them or fobbing off those who believe that they have a grievance. Only a fully independent body can properly safeguard patients' interests and allow health service providers to get on with the real job of maintaining and raising standards—something we all want to see—while effectively being brought to book over serious lapses which, sadly, occasionally do occur.

In the past, as the non-executive director of a trust, my wife performed the role of "complaints convenor" and had to deal with a number of these issues. In that role on behalf of the trust, she found that it was extremely useful to be able to negotiate with the CHC. That was the best way of handling the problems which arose. If that is to be muddied by the Government's proposals, as I believe it would be, we shall be less well served in the future. Reform: yes, certainly; abolition or fragmentation: I hope not. I strongly support this amendment and I hope very much that the Minister will accept it.

Baroness Hanham

My Lords, I, too, rise to support the amendment moved by my noble friend Lord Howe. This is a neat amendment because it takes account of the best of what we have in place in the community health councils and prevents the baby being thrown out with the bath water, which so often happens with reform. We then start again from the base and everyone makes up the rules precisely from where we should not, which is usually in the middle.

The advantage of the amendment is that the community health council base and structure would be retained. It would be possible to build on that rather than starting again with new patients' councils and forums, which would have to be set up from scratch. I agree that there is a lamentable lack of coherent detail within the Bill, particularly in regard to the patients' councils and patients' forums.

The amendment gives me an opportunity to raise again a problem and anxiety that I have had from the outset. Perhaps I may remind the House that, as chairman of an NHS trust, I have a vested interest in what comes before us. My noble friend Lord Howe has included within his amendment a proposal that the community health councils should be responsible for appointing patients' forum's non-executive directors to the boards. Your Lordships may recall that I have made at least two speeches on this subject and indicated my anxiety about the proposal contained within the Bill that the patients' forum should itself appoint one of its members to be the representative non-executive director. I have concerns about the independence of such a person and about the scrutiny of that non-executive director as a member.

At the moment, all non-executive directors are put forward by the regional health office—or, indeed, in the case of the chairman, by the Secretary of State—and are subject to independent scrutiny. When I last spoke on this issue, I was challenged, to some extent, by the Minister, who cited to me that the Dean's representatives were appointed directly by the Dean. That is correct, but such an appointment is sometimes challenged by there being two nominations and goes through the regional health authority scrutiny process.

I am anxious that there should be within the Bill provision for the proper overview of the person being appointed to a trust as a non-executive member. If the patients' council or the community health council were part of that process, we could build in the nomination from the community health council or patients' council to the appointments commission, which is to be set up, and establish a proper route.

Such a person will have to accept corporate responsibility. If the regulations come forward, he will, through the patients' forum, have the right and, indeed, the responsibility, to inspect—I put it in those terms—the trust. As he will be a part of the patients' forum which will have the right to inspect, I believe that his independence will be seriously in jeopardy within the terms of the corporate structure.

The Minister has responded to me on at least two occasions on this subject and I have not moved him very far. However, if the amendment were accepted, I can see a way in which a structure can be built to give comfort, not to the patients' forum which will be appointing such a member, but to the trust which will have that member appointed to its board. Indeed, as the Minister described on the previous occasion, he will ultimately replace one of the non-executive directors who has already been appointed.

It is terribly important that the trust's board has confidence in the person being appointed and do not see him as a stool pigeon of the patients' forum. It is important from that person's point of view that he is not seen as a stool pigeon but as an accepted member of the board. I believe that, in order to achieve that, he must be appointed independently, and my noble friend's amendment provides a structure for that.

Before I sit down, perhaps I may refer to Clause 5(d) in the amendment, which states: such other persons as may be prescribed". as members of a forum. It is very important that there should be an opportunity for people other than those connected with voluntary organisations for patients and carers to be members of a forum. It is inevitable that such people have a vested interest. We need a wide view of what is wrong; we need people to come into a trust or into a hospital who have not necessarily had anything to do with such an organisation before, either in an adverse or good way. In much the same way as having non-executive members on any other kind of body, it is very good to have as members of forums people from the community who do not necessarily have much of a view on what they are coming into. The category of member outlined by my noble friend would enable that to happen. It would strengthen very much the work of the forum and how it will be seen by its host trust.

I hope, first, that the amendment will be agreed to; and, secondly, that when it has been agreed to, the Minister will take into account what I have said about the absolute necessity for the patients' forum's appointee—if that is to happen—to be seen as coming on to the board by a clear, independent route, without baggage, to enable him to fulfil all the roles of a non-executive director during the time that he is on the board.

Lord Rea

My Lords, my noble friend knows that I have been a critic of the Government's intention to abolish the community health councils rather than to reform and strengthen them. I readily admit that they are far from perfect as they are, being so under-resourced, as the noble Baroness, Lady Cumberlege, pointed out.

The amendments seek the recreation and reform of the CHCs, retaining their independent status but using the nomenclature of the new bodies in the Bill. They do so rather ingeniously. Almost certainly, my noble friend will not be able to accept the amendments as they stand, but I recommend him to take them away and undertake to come back with a government amendment at Third Reading which includes most of the features incorporated in these amendments. Otherwise, I feel that the Government will be in danger of having to reject these amendments in another place, with the likelihood of losing the entire Bill because of the short time that will be available.

Baroness Masham of Ilton

My Lords, "patients' councils", I feel, is a much better name than "CHCs". I suggested this at Second Reading. Having several bodies will confuse the very people who need them most. Fragmentation is the very worst solution when dealing with distressed people who need help, advice and information quickly.

At the moment, many people do not know who to go to when they have a complaint. I have a letter in my bag which I am waiting to copy to the Minister. It asks for my help on a complaint. People do not know who to turn to. Something must be done to improve this situation.

I know that we need an efficient, independent body for patients. Patients, who are in the front line of the NHS, must have help with which they feel safe and confident. If such help is not independent, people will not speak out in order to obtain better services for patients. People who are involved with a trust will certainly not speak out if their jobs are involved.

I am interested in good standards for all patients. I hope that your Lordships seek the same goal. The amendment is important and I hope that all Members of the House will give it serious consideration.

5 p.m.

Lord Peyton of Yeovil

My Lords, perhaps I may begin by echoing the delicate compliment paid to the Minister by the noble Lord, Lord Clement-Jones. I share the noble Lord's respect for the Minister; therefore, I am certain, as was the noble Lord, that were the Minister sitting on this side of the House faced with these proposals, he would be expressing a very similar point of view to that which was wisely espoused by my noble friend Lord Howe. I simply cannot believe that he would be standing at the Dispatch Box, apparently with every sign of enthusiasm, advocating the setting up of these two bodies, crammed as they will be with the Secretary of State's creatures. We have no evidence that that will not be the case.

I shall not rehearse the whole argument. As I see it, it relates to whether it would be better to build on the experience of community health councils and to improve matters, or to utter the famous, dreadful words, "Back to the drawing-board", on which so many hopeless governments have previously been willing to unite. Those words are so easy to say. They give the impression that those who say them are quite broad-minded and know what they are talking about. But such people have very little idea of the chaos that is caused. It is rather like saying to an army on the march in a whisper at the front, "Halt". Everyone at the back just goes on marching, and there is chaos. I cannot think that the Government's present proposals, if they come to fruition, will have anything but a similar chaotic result.

Parliament is being asked to give the Secretary of State the skeletal instructions that he himself wants and has asked for in order to carry out a purpose which he has not yet had the time or the skill to define. We have no details whatever of the numbers of people who will serve on the patients' forums; nor do we know the numbers who will serve on the patients' councils. We have nothing more than a very hazy idea of who will man the two important bodies that are to be assembled in the place of community health councils—about which we did know something, and which would have provided a basis on which to build.

This is a piece of casual, sloppy, slovenly legislation—the kind in which governments rejoice when they do not know exactly what to do. It offers a broad-brush effect. The Government can claim that they are acting to cope with a very serious problem, and they are either unaware of or unconcerned about the reactions of those on the ground who are trying to cope with the mammoth problems of the health service.

One of our troubles has always been that the health service and all appertaining to it has become such a political icon for the party opposite that the patients, the interesting people about whom speeches should be made, the real architects of the services, and the medical professions, including nurses, feel themselves to be at low level in the councils of this huge organisation. I am not an expert, but again and again I hear complaints from qualified consultants and physicians that their plans, indeed their business plans, are to be made for, and reviewed by, people many of whom know very little of what it is all about.

Baroness Ashton of Upholland

My Lords, the noble Earl, Lord Howe, was correct when he said that the issue relates to "reform of the old" versus "creation of the new". It is important that we explore that point as a matter of principle.

The three aspects of the changes that have particular resonance for me are, first, that they are about putting patients to the fore in the health service. As a health authority chairman, I am amazed that patients do not have a voice in individual hospitals, GP surgeries and so on. It is vital to find ways in which these "consumers" have as much say in the health service as they expect to have in other aspects of life. That is increasingly important—indeed vital. After all, they are the means by which we shall review, inform and develop our services, not just clinically but in terms of how we treat people. It is an issue that is raised by more and more patients.

The second aspect is the insistence on better communication. I was particularly pleased with the idea that PALS would be developed in each NHS trust. The constant lesson that I learn when I talk to individuals and organisations is how difficult it is to know where to go if one has a problem—not necessarily a complaint, but a problem. The problems set out in most of the letters I receive could have been dealt with at the time had someone been available to do so. Insisting on such communication being available to people is a vital and crucial part of the changes.

The third aspect is the involvement of democracy and scrutiny. It is a difficult subject. Not only is the health service a political icon; it is a political football. The appointment and role of non-executives is constantly under scrutiny and review, particularly as elections approach. It is crucial to understand that democratically elected bodies should play a far greater role in deciding how services develop. After all, they are answerable in a way in which I, as chairman of a health authority, am not—I am answerable in a different way, as an accountable person.

I do not say that the Bill as it stands could not be improved. The noble Lord, Lord Clement-Jones, talked about the role of health authorities. I am currently having meetings with individual patients who have made complaints and with organisations to examine the role of the health authority in terms of accessibility to people who need information or who need to complain and who feel that they do not know where to go. I have no easy answer. I wonder whether the Minister might address health authorities in his response.

I am concerned also that we should further develop the independent advocacy service. It is true that Mrs Archibald is alive and well and living in Hertfordshire, where she has played a major role in every example that I have given to the group working on these proposals. Mrs Archibald has to be dealt with at every step of the way; otherwise, our proposals are inadequate. I am grateful to the noble Baroness, Lady Cumberlege, for introducing Mrs Archibald to the debate. But many of Mrs Archibald's problems, when they become as acute as those described by the noble Baroness in previous debates, need to be dealt with by independent advocacy. We have been looking at how the sign-posting to such services can be better developed. One of the great criticisms of CHCs is that people do not know that they exist. That was certainly my experience as a patient. It was not until I became a health authority chairman that I heard of CHCs. Such experience is not uncommon. That is not a criticism of the councils; it is a fact and needs to be addressed.

I think it is true to say that we are already developing the new ideas. The process has begun. I have fears, if we press this matter to a vote, as to how the vote will go, and as to the impact that it will have on those who are trying to develop the new services. There is a great deal of enthusiasm on the part of community councils. They have said that they would like to see most of the Bill's proposals developed for the future.

I am also pragmatic about the transformation. I know that individuals who are currently involved in community health councils will indeed transform themselves; and part of the building block of CHCs will be transformed into the new bodies. It is precisely by building on experience, not by returning to the drawing-board, that we shall create something even better than the councils. That is the crucial point. However, the changes are too far-reaching for us simply to reform what currently exists. We need to build on what we have done and introduce the new model in order to make sure that patients are better served.

Baroness Carnegy of Lour

My Lords, if I may say so, the speech just made by the noble Baroness was most interesting. The moves that she advocates could actually be brought into being through the amendment proposed by the noble friend Lord Howe; indeed, they would not be precluded. However, the noble Baroness was defending the Bill, which is doubtless her duty, and she did so very well. A number of points that she put would not be impossible to achieve if the Government were to accept the amendment.

Several interesting speeches have been made during the debate. I have in mind the right reverend Prelate's clearly detailed knowledge, gained by the fireside while listening to the adventures of his wife. He seems to think that the amendment is a good idea, although, as he said, it might have to be redrafted by the Government in the event of it being accepted. The noble Lord, Lord Rea, with all his experience as a practising doctor, feels the same way. I think he was suggesting that the Government should look very carefully at the proposal.

Having listened to all the speeches, I am confirmed in my mystification of what the Government propose in the Bill as regards doing away with the community health councils if they are not, as my noble friend Lord Peyton suggested, trying to change things for the sake of change. We are told that the CHCs have not worked as well as they might have done. I accept that, although I am not in a position to know whether that is so. It is possible that certain changes that are needed are not included in my noble friend's amendment. But I suspect that they are, because he incorporates most of what the Government are suggesting under the umbrella of a body that would build on the existing CHCs. That seems to me a very sensible way of trying to assist the Government in getting the Bill right.

The Minister spoke with great conviction about the importance of central leadership by the Secretary of State because of his accountability to the public in this huge operation, and argued that that was the right way forward. I am driven to the conclusion that the noble Lord really believes that; indeed, I am sure that he does. However, it terrifies me. The facts do not bear out the possibility of someone running an organisation of such a size from the centre. It is just not possible. One wonders whether that is the motivation behind the proposal.

If CHCs were reformed so as to ensure that they operated more successfully than they do perhaps at present, they would be very strong bodies. It would also be very tricky for Ministers to deal with them and to stand up to them; indeed, it would be very difficult for authorities to do so. The public would also have a very strong voice; perhaps the Government are afraid of that possibility. It is interesting to note how few Back-Benchers opposite have contributed to the debate. I do not know, but one wonders whether they agree with what I have just said.

I accept that bringing local government into the system is a very interesting move. The noble Baroness, Lady Ashton, explained that the concept is that local government should have a wider responsibility than it currently has in statute. Of course, we must bear in mind that local government only operates under statute; in other words, it can only do what the law says it can do. In the long run, the widening of what local government does may be right. It would fit in with what I hope some government will do before long; namely, pull local government out of running schools directly and give it a more advisory overseeing role. That would leave a great gap for local government. It is so important for our country that local government should be strong and that it should have the right things to do. Involvement in this sort of way in the health service and in other areas of life, as the noble Baroness said, would fill that gap. That is possibly what lies within the glass ball into which we are looking at present.

If the new system is to work, it seems to me that the contribution to the health service must go much wider than that to patients. As a rule, people are only patients for a short time: you are ill, you go into hospital and then you have to see your GP, whom you may not have seen for quite a long time. In relation to hospitals, patients are short-term people. But the public have an interest the whole time in the working of hospitals. Any of us may need to go into hospital at any time, and that may apply to our relations, our children and our parents. Indeed, some will already be in hospital. There needs to be a large local public input into the health service.

I know that the Bill relates only to small parts of Scotland, but there is a huge row going on at present in the area where I live. The public are holding up the implementation of very unpopular decisions. I see the noble Lord, Lord Patel, is smiling; he knows all about the matter. People are making a big fuss and holding up what in my part of the world we would regard as very damaging decisions in the health service. I should like to see that possibility in the future in England and Wales. I believe that community health councils could do that if they were strengthened in the way suggested by my noble friend. I strongly support his amendment.

5.15 p.m.

Baroness Gibson of Market Rasen

My Lords, I should declare an interest because, before entering your Lordships' House, I was a national official of the Manufacturing Science and Finance Union. As such, I worked with many employees in community health councils who are members of MSF. I should stress that they were from CHCs throughout the country, so I am not talking about just one area. Those employees recognise that CHCs need changing. Any body established since 1974—nearly 30 years ago—would need some kind of change.

The employees to whom I have spoken agree, first, that there is a need for change in the CHCs, and, secondly, that, by and large, they support the Bill now before us and most of its proposals. However, they are genuinely worried about the proposals for the abolition of CHCs because they believe that these councils could be revitalised, with their role being changed to enable them to continue. Part of that feeling is due to the fact that they, above all others, recognise the danger of losing the expertise and the knowledge of the CHC staff both as regards the local health service and the difficulties that patients face when dealing with the NHS. I do not believe that that should be underestimated.

The staff of community health councils actually chose to work in CHCs because they were independent organisations. Many of them believe that they cannot transfer easily to—and, indeed, are not attracted by—the proposals regarding the new structures. Because of the uncertainty about their future, there are already cases of CHC staff taking early retirement or seeking secondments. This means that some CHCs are having to cut their advisory services to patients. Due to the deadline of March 2002, CHCs do not wish to take on new cases because they fear that they may not be able to see those cases through to their conclusion. In a sense, it is the worst of all worlds—a situation that will worsen as we approach the year 2002.

I am advised that the society of CHC staff has indicated that some of its staff will try to work within the new structures. However, I know that that by no means represents the views of all those working in community health councils. I remain concerned that as drafted the measure will not give the best deal to patients. To give them the best deal must be the key purpose of the legislation. Therefore, I support the proposal of my noble friend Lord Rea that the Government should look again at the issue.

Baroness Noakes

My Lords, I support the amendment of my noble friend Lord Howe. I should say at the outset that I have not in the past been a fan of CHCs. When I worked at the centre in the NHS they were seen by many as a source of irritation. They were often inconsistent in what they said and in how they behaved and operated. They seemed to many to stand in the way of progress. If they irritated some at the centre, I assure the House that they irritated people at many other levels in the NHS although it may not now be fashionable to say so.

I say that to show that I understand what led the Government to the conclusion that they should abolish CHCs. I can quite see how that could have developed into a reaction of, "Off with their heads". However, I suggest to the Minister that if the Government had counted to 10 before saying, "Off with their heads", a better solution could have been arrived at and the form of vandalism which is proposed in the Bill could have been avoided.

If one looks at CHCs through the other end of the telescope, not from the perspective of the centre or other levels of NHS management, one sees a success story from the perspective of patients and carers. CHCs are well known in local communities and are trusted by patients and carers. It does not seem to me to make any sense whatever to throw away those virtues. As many have said, CHCs are not perfect and have not operated perfectly. However, if they are worth developing as they have some value and some virtues, they should be subjected to a programme of reform, as proposed in my noble friend's amendment.

Given that CHCs have a strong brand name, it may be unnecessary to change that to patients' councils. However, I accept that the latter is a much more modern formulation and potentially more accessible. The important point is that we should allow the NHS to build on the success of CHCs, whatever their name may be. That is the most secure way to protect the interests of patients and of carers in the long term. I support the amendment.

Lord Hoyle

My Lords, like my noble friend Lady Gibson, I declare an interest. I am a past president of the Manufacturing Science and Finance Union. However, my involvement in the health service is not just confined to representing the interests of members. Prior to entering the other place I was a member of regional health authorities for a number of years. I have taken a keen interest in the health service of which I have always been extremely proud. I was involved with the Warrington CHC which is one of the most progressive and has done much good work.

Although some CHCs are better than others and some have not done a good job, we must bear in mind that under successive governments their budgets have been peanuts compared with that of the health service as a whole. Considered from that perspective they have done a good job with limited funds. However, I shall not argue for the retention of CHCs as such. They ought to move forward, adopt a wider base and become more involved with patients.

However, I am concerned—this has been mentioned on all sides of the House—about the retention of independence. As has been said, CHCs may have been a thorn in the side of the health service but they are independent. My noble friend the Minister has worked hard on the Bill and I thank him for all that he has done. He has listened to our comments, thought them through and considered how the Bill might be improved. However, I believe that people may find it extremely difficult to know which body to address if we do not tackle this issue carefully.

Recently in Warrington someone required emergency helicopter transport. It was blocked, and, unfortunately, the person died shortly after arriving in hospital. The relatives must wonder whether that person's life could have been saved. It is right that people should be able to investigate such cases. In future will an independent mind be able to investigate such cases or will that be blocked? Those are matters that concern us.

If a Division is called, I shall not support the Opposition. However, I hope that my noble friend will reassure me that the Government are considering this important matter. The new bodies which we all welcome must respect patients' views and must be properly funded. People must know which body to address in order to seek help. The new bodies must be independent if people are not to be afraid to speak out. I do not want people to be suspicious that the new bodies may not be fully independent when investigating complaints. That is my concern. However, I am sure that my noble friend will be able to reassure us on these matters.

Baroness Barker

My Lords, I have taken part in the many debates that have taken place in your Lordships' House on this subject since last autumn. I point out the somewhat delicious irony of the noble Baroness, Lady Gibson, suggesting that CHCs have been in existence for some 34 years and therefore need to be reformed.

It seems to me that what the noble Earl, Lord Howe, has done is what we have sought to do throughout the passage of the Bill; that is, to find a means to give coherence to patient involvement through the new structures that are proposed. I congratulate him on his efforts.

In the debate last autumn instigated by the noble Lord, Lord Harris of Haringey, I pointed out the distinct difference between three things which patients need: information, advocacy to tackle immediate problems and support in tackling the wider NHS. In all the debates we have had and the suggestions that people have made with regard to the functions of the CHCs, those three elements have been confused time and time again. The noble Earl, Lord Howe, has separated out the three elements but has recognised that each of them is an important constituent part of full patient involvement in the National Health Service, as is the stated aim of the NHS Plan.

Like the noble Earl, Lord Howe, I remain concerned about the potential loss of a strategic view of the health and health needs of a community. That is what the best CHCs have hitherto provided. I still think that that is in danger of being lost. I rather think that those in the NHS who are often wont to dismiss CHCs as simply a collection of people with their own vested interests will come to regret that. In so far as it is possible to safeguard a strategic view of the health and health needs of a community, I believe that the amendment of the noble Earl, Lord Howe, achieves that.

Throughout our discussions the noble Baroness, Lady Cumberlege, has supported the rights of Mrs Archibald whom some of us have come to know and love during the many hours of debate. I remain concerned about the rights of Mrs Patel. Mrs Patel does not speak English as a first language but Sylheti—a language which is not written.

Some of the best CHCs have reflected the diversity of their communities. They have formed a bridge between the skills and expertise of our NHS, of which we are proud, and those people who have some of the hardest-to-reach needs. The measure before us is not necessarily the best that we could have achieved for Mrs Patel. With the noble Earl's amendment, she might have a better than even chance of having her problems addressed. Therefore I support the amendment.

5.30 p.m.

Lord Lea of Crondall

My Lords, we seem to be having two debates, one about functions and the other about nomenclature. I seek clarification and reassurance on a point about which I have given the Minister notice.

A concern about the abolition of community health councils is whether the new patients' forums will be able to carry out all their functions as effectively as CHCs. I give an example. At present, if a GP practice is under threat through property development, problems of planning, or a lease running out, a CHC can intervene to maintain the status quo while a satisfactory solution is found. For this purpose, CHCs are aligned with the local government unit—that is helpful—and the new patients' forums with the NHS trusts although local government will come in in a different way.

Assuming that I have stated the position accurately, is not the CHC prima facie a more effective instrument in dealing with such an example? I put the question in a form to which the Minister can respond. How will the new structure provide for the kind of example I have given? In describing these new functions in a way that would be difficult to achieve on the face of the Bill, it may help some of us to make up our minds.

Lord Hunt of Kings Heath

My Lords, this has been an extremely interesting debate. It is abundantly clear that nothing separates noble Lords on all sides of the House in seeking the most effective way to involve patients and the public in decisions about the NHS, and putting in place responsive systems which are able to deal with complaints and concerns as speedily as possible.

Perhaps I may start by responding to the charge, I think from the noble Baroness, Lady Cumberlege, that these arrangements are being put into place because we find CHCs a bit of a nuisance. The noble Baroness, Lady Noakes, underpinned that from her experience as a senior executive of the NHS. I want to state clearly that that is simply not the case. I expect robustly independent patients' forums and patients' councils to provide plenty of nuisance, robustness and noise in the future and to be a jolly sight more effective than the current arrangements. That has to be the test on which these proposals are judged. We bring them forward in order to produce a more effective patient and public voice in the NHS. We bring them forward in order to produce a more effective mechanism to deal with patients' concerns. It is on that basis that we want these proposals judged.

Often, despite outstanding work by many in the service, we know that the public find the system difficult to manoeuvre. They experience problems. They often find it difficult to have those resolved quickly and effectively. Of course, since 1974 community health councils have played a valuable role in seeking to help members of the public and individual patients. But they have not been perfect. I think that most noble Lords who have addressed this issue have acknowledged that. Nor, I suggest" have they been particularly visible to members of the public or individual patients. I agree with the noble Baroness, Lady Masham, and my noble friend Lady Ashton, that patients do not know that CHCs exist.

I detract nothing from the work of CHCs and the contribution by staff over the years. However, when considering some of the problems that we face in the NHS, the experience of patients and problems in relation to food and cleaning—one could quote many other examples where the patient experience has not been what it should be—I do not seek to pin responsibility on to CHCs. But I do not believe that they have been effective in persuading, encouraging and cajoling the health service to make improvements and changes in those services.

Because of that, we have decided not to reform CHCs, as we might have done. We have decided to go for a wholesale overhaul of the way in which we engage with patients. By doing so, we are responding to what hundreds of thousands of patients told us in the consultation over the NHS Plan. They wanted help in dealing with complaints when they arose, not after the event. They wanted to be able to influence services locally. They wanted a voice. That is what we propose. We believe that a fresh start is the best way.

As the Bill has made its way through Parliament in another place and in your Lordships' House its contents have been much improved. The amendment proposed by the noble Lord, Lord Clement-Jones, in Committee for a national body is an example of that improvement. In another place we were able to accept amendments about patients' councils and independent advocacy. The combination of the Bill as drafted, and the improvements, mean that the new system will deliver all the functions of CHCs and much more.

Noble Lords may compare the present system and the system to which we aspire. I stress that we are not seeking a like-for-like change. We have considered the functions needed to give patients the support they require and the influence they want. They are complex tasks. The tailor-made solutions we propose are more complex than community health councils. But, most importantly, they will be more effective. This has to be the key test. We are adding completely new services such as patient advocacy and liaison services. Unlike CHCs, they will be trust based. They will be front-of-house customer services for patients. They will be on hand either to deal with complaints on the spot or to point people in the direction of independent advocacy services if that is more appropriate. They will be accessible and visible services.

I was glad that the noble Baroness, Lady Cumberlege, visited the Brighton service. In many ways that must be seen as a forerunner. The noble Baroness will know that I was involved in its establishment. I believe that it points the way to enabling issues and concerns—at present they are often allowed to fester—to be dealt with immediately, much to the patient's benefit.

Alongside that, independent patients' forums will also relate to NHS trusts. I stress the word "independent" because a number of noble Lords have suggested that the new arrangements will not be independent. Patients' forums will be robustly independent. They will have a critical role in monitoring services and reporting to the management in trusts. They will have a real influence on how those services are delivered.

We are talking not just about services provided by hospitals; patients' forums will inspect services provided by GPs, nursing homes and private healthcare providers. We are giving the Secretary of State a new duty to make arrangements for independent advocacy. Some CHCs currently provide advocacy and we want to make that service universal for patients who want to make complaints against the NHS.

We also want to make the most of existing advocacy arrangements by not tying down any particular body to provide that service. Of course I accept that some CHCs have excellent translating services, as the noble Baroness, Lady Barker, said, but CHCs are not the only ones with that expertise. We are introducing some flexibility to ensure that the independent advocacy service at local level provides the services that she wishes to see.

We also cannot ignore the role of the local authority in the new arrangements. The overview and scrutiny committees will have a major role to play. I am aware of the service changes in Scotland to which the noble Baroness, Lady Carnegy, referred, although I could not possibly comment on them. However, the involvement of local government in England through the new committees will lead to much more constructive engagement between the local authority and the health service and will allow changes to be made where there is local ownership and agreement.

The national patients' body will be a new national voice for patients. It will have a role in overseeing and facilitating the implementation of the new system and will be a brand new way in which patients can have their say about the NHS and influence its policy. It will build on the role that the ACHCEW has with CHCs and become more substantial. All the components of the new system have clear roles. The arrangements comprehensively cover everything that CHCs do and much more.

The noble Earl, Lord Howe, argued that the new arrangements were fragmented, but there are connections between them all. One example is the shared secretariat between a patients' council and a patients' forum. All the different parts of the mechanism will have clear and distinct jobs. Patients' forums relate to trusts. Patients' councils take a wider view of health authority services and pick up on the issue of strategy to which the noble Baroness, Lady Barker, referred. Patients' forums and patients' councils will focus on patients' concerns, while the local authority overview and scrutiny committee will be concerned with the wider public view.

I doubt that I shall ever persuade the noble Baroness, Lady Hanham, but I believe that the NHS has experience of people being appointed to boards through different routes. The case of a dean nominated by a university and appointed by the Secretary of State is a good example of how that can work. The patients' forum nominee will be appointed to the board of the trust through arrangements agreed with the independent appointments commission. That provides the safeguards that we require.

Independence is guaranteed by the process of appointments. Some 50 per cent of the members of a patients' forum will come from local voluntary sector and patients' groups. The remainder will be, or have been, patients or the carers of patients of the trust. As I have said, the NHS appointments commission will ensure that those members arc appointed through a fair and open process. I believe that those bodies will be robust and independent. I was responsible for appointing the review to look into the case that my noble friend Lord Hoyle mentioned. I assure him that such a case could be taken up under the new arrangements.

I have been asked about staff. I recognise that that is an important issue. We have made commitments to build on best practice from CHCs and others and to put that learning to good effect in the new system. To do so, we shall look to retain the skills and experience of CHC staff and members in the new structures and the wider NHS by encouraging them to seek new opportunities. I have no doubt that the new structure will provide wonderful opportunities for many CHC staff, whom my noble friend Lady Gibson mentioned. Those opportunities will be not just in patients' forums and patients' councils, but in independent advocacy services and the patient advocacy and liaison services. There will be a much better career structure for staff, who often hit a glass ceiling once they become a CHC chief officer.

The amendments embrace both patients' councils and patients' forums with virtually identical functions to those suggested in the Bill. The real difference between us on the amendments is the relationship between patients' councils and patients' forums. My disagreement with the amendments is that they would place patients' councils at the forefront of the new arrangement at local level, whereas the Government believe that the focus and emphasis must be on the forums, based in each individual NHS trust, if we are to ensure a real impact and change patients' perception at that level.

I do not disagree that patients' councils have an important role in facilitating the activity of groups of forums, but I have great concerns that the amendment would result in the patients' council becoming the primary body for dealing with patients' issues.

The rationale behind our proposals is that patients' forums are the key agents of change and patient representation. There will be one for every trust and they will be close to the patients and the services that they use. They will also be close to the doctors and managers so that they can have a real, everyday impact on changing services to meet patients' needs. We want the patients' forums to be the main representatives of patients' views at local level. We see them as the most effective organisations for securing improvements.

We have talked consistently today about the balance between centralisation and decentralisation in the NHS. Surely we want the patient's view to be heard at its strongest at the point at which the patient receives everyday services from the NHS. That must surely be at the patients' forum level.

Of course, we recognise the need to co-ordinate the actions of the different forums and to ensure that they do not become isolated. That is why we introduced the concept of patients' councils. However, the councils should not dictate to the forums. That would simply, using the service, move power away from the patients to a more remote representative body.

As I reach my conclusion, perhaps I may point out that there has been a steady decrease in the number of health authorities in this country. At the same time, they have served a greater population. Are we really saying that, if that trend continues, the patients' council should be the primary body at that level? Surely we should ensure that the real authority of the patient lies at trust level.

I accept the real and necessary role of the patients' council. I also understand the concerns that have been expressed about its role, and I understand why noble Lords do not wish to lose any of the positive functions of CHCs. Between now and Third Reading I shall be happy—particularly if the noble Earl does not press the vote—to engage in further discussions about the role of patients' councils. However, I believe that the arrangements that we have put forward will provide a much more effective way for both the public and the patients to become involved in the service to the benefit of us all.

5.45 p.m.

Lord Clement-Jones

My Lords, before the noble Lord sits down, I want to raise one issue with him. He said that the functions of the patients' councils and patients' forums as set out in the amendment are almost identical to those set out in the Bill. I am sure that if the Minister looks at subsection (3) of Amendment No. 8 he will note in particular that the right, to appoint a representative, having such functions as may be prescribed, to attend meetings of each relevant health authority"; the right, to receive and respond to disclosures under the Public Interest Disclosure Act"; and the right, to refer issues of concern to patients to health authorities", are all additional powers. What is the Minister's view on those additional powers? If he believes that they are virtually identical, does he believe that they are desirable and should be incorporated into patients' councils?

Lord Hunt of Kings Heath

My Lords, as I said, I am very happy to discuss that matter further with the noble Lord. I certainly believe that the amendment addresses the fundamental issues of the patients' council and the patients' forum and the key functions that we believe they should undertake.

However, I pull the noble Lord back to the core argument. He seeks to make the patients' council, which will cover a very large population, the prime agency. Surely he can see that there is a fundamental difference at the patients' forum level, where the patient receives services and where the management of the service is most closely attuned to patient services. We are concerned that, if the amendment is accepted, we shall take away from that crucial patient service level the impact of the new arrangements that we seek to put into place.

Earl Howe

My Lords, I am very grateful to all noble Lords who have taken part in the debate. To my mind, the debate has been remarkable for the very few voices that have been raised wholly and unequivocally in favour of the Government's proposals. Many noble Lords favour aspects of those proposals, but I have not heard anyone, even from the government Benches, roundly endorse the central plank of the Government's plans—namely, the abolition of community health councils. That is the main point at issue.

By contrast, I have heard many noble Lords express gratifying support for the amendments that I have tabled. I thank in particular my noble friend Lady Hanham for her helpful remarks and especially for highlighting two features of this amendment. The first is the element of continuity for which it provides. The second is the fact that it opens the way to resolving the concern about which I know she feels strongly—that is, offering safeguards in the appointment of non-executive directors to trust boards.

I was grateful, too, to the right reverend Prelate the Bishop of Hereford for what he said with regard to his experience, or, at least in part, that of his wife. I was grateful for his support for the principles of the amendment. I also appreciated the speech of the noble Baroness, Lady Masham. How well she highlighted two of the key points of this issue in particular: the need to preserve independence and the avoidance of fragmentation.

My noble friend Lady Noakes, in her characteristically succinct way, emphasised the importance of building on the success of community health councils. Indeed, that point was taken up by the noble Lord, Lord Hoyle. I quite understand that he is probably not wholly of my persuasion on this matter. However, he was right to say that community health councils have done a good job on the resources given to them. Once again, he was right to emphasise the importance of retaining the vital independent role that CHCs possess. As I know he realises, my amendment seeks to do just that.

My noble friend Lord Peyton reminded us of the importance of maintaining morale and expertise in the NHS in its widest sense. He rightly pointed out the gaps in our knowledge of who will be appointed to those new bodies as proposed by the Government. The Minister helpfully clarified some of those areas but, inevitably, not all because I do not believe that the plans had been fully worked out.

On the government Benches, I was grateful to the noble Lord, Lord Rea, for what he said, with all his personal experience in the health service. Once again, I thank the noble Baroness, Lady Ashton, who stressed the importance of communication, including the role of the PALS in trusts, and the importance of enhancing local democracy. I have no problem with those sentiments, nor, indeed, with her wish to see the proposals in the Bill developed. That will happen under my amendment. My proposals have no effect whatever on either PALS or overview and scrutiny committees, which, of course, reflect the Government's wish to bring into the workings of the health service a better element of local democracy.

In my submission, the merit of my amendments is that they allow for both continuity and change. My noble friend Lady Carnegy was right in all that she said. Perhaps I may repeat that it is not part of my intention to knock down everything that the Government have proposed in the Bill. I have deliberately not done so.

I am grateful to the noble Baroness, Lady Barker, for her endorsement of the approach that I have adopted—that is, to confer greater coherence on the Government's proposals and to safeguard the strategic view of health services in the locality that she rightly emphasised.

The Minister was right to say that there is a difference between us concerning the proposed relationship between patients' councils and patients' forums. He was also right to say that he regarded the role of patients' forums as being close to patients and ensuring that the patient's view is heard at the level of the NHS trust, and that there should be one forum per trust. I simply say to him that under my amendment none of that would change.

The tenor of his reply was not altogether unexpected. He has made clear on numerous occasions that he is not prepared to think again about the essence of the proposals. I believe that that is a great pity. I am grateful for the measured way in which he tried to put the Government's case. He has not answered all of my questions in a way that I find convincing.

There are overriding arguments, which I set out at the beginning of this debate, that clearly favour maintaining the essence of the current structures and building on their strengths. In the end our debate is not primarily about saving CHCs; it is about doing the best that we can for patients. I believe that my amendment would do that. I thank noble Lords who have taken part in this debate. Enough has been said to convince me that I should test the opinion of the House.

6 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 162; Not-Contents, 121.

Division No. 1
CONTENTS
Ackner, L.	Dixon-Smith, L.
Addington, L.	Eccles of Moulton, B.
Ampthill, L.	Eden of Winton, L.
Anelay of St Johns, B.	Elliott of Morpeth, L.
Astor of Hever, L.	Elton, L.
Attlee, E.	Ezra, L.
Avebury, L.	Falkland, V.
Barker, B.	Feldman, L.
Beaumont of Whitley, L.	Ferrers, E.
Bell, L.	Fookes, B.
Biffen, L.	Freeman, L.
Blaker, L.	Gardner of Parkes, B.
Blatch, B.	Garel-Jones, L.
Boardman, L.	Geddes, L.
Bowness, L.	Geraint, L.
Bradshaw, L.	Gilmour of Craigmillar, L.
Bridgeman, V.	Glentoran, L.
Brightman, L.	Goodhart, L.
Brittan of Spennithorne, L.	Greenway, L.
Burnham, L.	Griffiths of Fforestfach, L.
Buscombe, B.	Hamwee, B.
Byford, B.	Hanham, B.
Caithness, E.	Hanningfield, L.
Campbell of Alloway, L.	Harris of Peckham, L.
Carnegy of Lour, B.	Harris of Richmond, B.
Carr of Hadley, L.	Henley, L. [Teller]
Carrington, L.	Hereford, Bp.
Clement-Jones, L.	Hodgson of Astley Abbotts, L
Coe, L.	Hogg, B.
Colwyn, L.	Home, E.
Cope of Berkeley, L.	Hooper, B.
Craig of Radley, L.	Howe, E.
Craigavon, V.	Howe of Aberavon, L.
Cranborne, V.	Howell of Guildford, L.
Crathorne, L.	Hurd of Westwell, L.
Crickhowell, L.	Jopling, L.
Cumberlege, B.	Kimball, L.
Darcy de Knayth, B.	Laing of Dunphail, L.
Dean of Harptree, L.	Lamont of Lerwick, L.
Deedes, L.	Lane of Horsell, L.
Denham, L.	Linklater of Butterstone, B.
Dholakia, L.	Listowel, E.

Liverpool, E.	Rawlings, B.
Lucas, L.	Razzall, L.
Luke, L.	Redesdale, L.
Lyell, L.	Rennard, L.
Mackie of Benshie, L.	Renton, L.
McNally, L.	Roberts of Conwy, L.
Maddock, B.	Rodgers of Quarry Bank, L.
Mancroft, L.	Roper, L. [Teller]
Mar and Kellie, E.	Russell, E.
Marlesford, L.	Ryder of Wensum, L.
Masham of Ilton, B.	St John of Fawsley, L.
Mayhew of Twysden, L.	Scott of Needham Market, B.
Miller of Hendon, B.	Seccombe, B.
Monro of Langholm, L.	Selborne, E.
Monson, L.	Selsdon, L.
Montrose, D.	Sharp of Guildford, B.
Mowbray and Stourton, L.	Sharples, B.
Murton of Lindisfarne, L.	Shaw of Northstead, L.
Naseby, L.	Shutt of Greetland, L.
Newby, L.	Strathclyde, L.
Newton of Braintree, L.	Swinfen, L.
Noakes, B.	Tebbit, L.
Northbrook, L.	Thomas of Gwydir, L.
Northover, B.	Thomas of Swynnerton, L.
O'Cathain, B.	Thomas of Walliswood, B.
Oakeshott of Seagrove Bay, L.	Tope, L,
Onslow, E.	Trefgarne, L.
Oxfuird, V.	Trumpington, B.
Palmer, L.	Tugendhat, L.
Palumbo, L.	Vivian, L.
Park of Monmouth. B.	Waddington, L.
Patten, L.	Wade of Chorlton, L.
Pearson of Rannoch, L.	Wallace of Saltaire, L.
Peyton of Yeovil, L.	Walmsley, B.
Phillips of Sudbury, L.	Watson of Richmond, L.
Plumb, L.	Weatherill, L.
Plummer of St. Marylebone, L.	Wilberforce, L.
Prior, L.	Wilcox, B.
Pym, L.	Williams of Crosby, B.

NOT-CONTENTS
Acton, L.	Dormand of Easington, L.
Ahmed, L.	Dubs, L.
Alli, L.	Eatwell, L.
Andrews, B.	Elder, L.
Archer of Sandwell, L.	Evans of Parkside, L.
Ashton of Upholland, B.	Evans of Watford, L.
Bach, L.	Falconer of Thoroton, L.
Barnett, L.	Farrington of Ribbleton, B.
Bassam of Brighton, L.	Faulkner of Worcester, L.
Bath and Wells, Bp.	Filkin, L.
Berkeley, L.	Fyfe of Fairfield, L.
Bernstein of Craigweil, L.	Gale, B.
Billingham, B.	Gibson of Market Rasen, B.
Blackstone, B.	Gilbert, L.
Blease, L.	Gladwin of Clee, L.
Borrie, L.	Goldsmith, L.
Brennan, L.	Gould of Potternewton, B.
Brett, L.	Greengross, B.
Brooke of Alverthorpe, L.	Grenfell, L.
Brookman, L.	Hardy of Wath, L.
Brooks of Tremorfa, L.	Harrison, L.
Bruce of Donington, L.	Hayman, B.
Burlison, L.	Hilton of Eggardon, B.
Carter, L.[Teller]	Hollis of Heigham, B.
Christopher, L.	Howells of St. Davids, B.
Clarke of Hampstead, L.	Howie of Troon, L.
Cohen of Pimlico, B.	Hoyle, L.
Crawley, B.	Hughes of Woodside, L.
Currie of Marylebone, L.	Hunt of Chesterton, L.
David, B.	Hunt of Kings Heath, L.
Davies of Coity, L.	Irvine of Lairg, L. (Lord Chancellor)
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.	Islwyn, L.
Desai, L.	Janner of Braunstone, L.

Jay of Paddington, B. (Lord Privy Seal)	Ramsay of Cartvale, B.
	Rendell of Babergh, B.
Jenkins of Putney, L.	Scotland of Asthal, B.
Laming, L.	Serota, B.
Lea of Crondall, L.	Simon, V.
Lipsey, L.	Simon of Glaisdale, L.
Lockwood, B.	Smith of Gilmorehill, B.
Lofthouse of Pontefract, L.	Smith of Leigh, L.
Macdonald of Tradeston, L.	Stoddart of Swindon, L.
McIntosh of Haringey, L.	Stone of Blackheath, L.
[Teller]	Strabolgi, L.
McIntosh of Hudnall, B.	Symons of Vernham Dean, B.
MacKenzie of Culkein, L.	Taylor of Blackburn, L.
Mackenzie of Framwellgate, L.	Thornton, B.
Mason of Barnsley, L.	Tomlinson, L.
Massey of Darwen, B.	Turnberg, L.
Merlyn-Rees, L.	Turner of Camden, B.
Milner of Leeds, L.	Uddin, B.
Mitchell, L.	Varley, L.
Molloy, L.	Walker of Doncaster, L.
Morris of Castle Morris, L.	Walpole, L.
Morris of Manchester, L.	Warner, L.
Nicol, B.	Whitaker, B.
Orme, L.	Whitty, L.
Parekh, L.	Williams of Elvel, L.
Patel of Blackburn, L.	Williams of Mostyn, L.
Plant of Highfield, L.	Williamson of Horton, L.
Prys-Davies, L.	Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

6.11 p.m.

Clause 12 [Patients' Forums]:

Earl Howe moved Amendment No. 9: Leave out Clause 12.

On Question, amendment agreed to.

Clause 13 [Patients' Councils]:

Earl Howe moved Amendment No. 10: Leave out Clause 13.

On Question, amendment agreed to.

Clause 17 [Independent advocacy services]:

[Amendment No. 11 not moved.]

Earl Howe moved Amendment No. 12:

Page 13, line 29, at end insert "through each Patients' Council"

On Question, amendment agreed to.

Clause 18 [National patients' body for England]:

[Amendment No. 13 not moved.]

Clause 19 [Abolition of Community Health Councils in England]:

Earl Howe moved Amendment No. 14: Leave out Clause 19.

On Question, amendment agreed to.

Clause 20 [Power to abolish Community Health Councils in Wales]:

Earl Howe moved Amendment No. 15: Leave out Clause 20.

On Question, amendment agreed to.

6.15 p.m.

Clause 21 [Intervention orders]:

Earl Howe moved Amendment No. 16:

Page 17, line 6, leave out from second "is" to third "or" in line 7 and insert "failing significantly in the performance of one or more of its functions,"

The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 17 and 18.With Amendment No. 16, we return to one of the hardy perennial issues of this Bill; namely, the Government's interventionist tendencies. I make no apology for doing so because, as the Minister said both today and in Committee, the balance between national direction and local autonomy has been a subject for discussion and debate ever since the creation of the NHS. Where, as here, it is proposed that the balance be altered, and altered quite substantially, it is right that we should put those proposals under a microscope.

In Clause 21, the Government are seeking to create new powers to enable the Secretary of State to intervene in failing NHS bodies. The interventions could take the form of removing or suspending the board of that body and replacing its members with other people nominated by him; or it could take the form of requiring the NHS body to contract out to a third party the function that is assessed as failing. It could also take the form of a combination of both those measures.

By any standards, those are drastic steps. We have been assured by the Minister that they would not be taken lightly. In Committee, he gave us various examples of circumstances when it might be appropriate to use the powers. In each case he made clear that exercising the powers would be a last resort when other actions had failed or were inappropriate.

It is natural for anyone in the Minister's position to defend the creation of powers of this kind, believing, as I have no doubt the Minister does, that they would always be used responsibly and out of absolute necessity. The task of this House, however, is to scrutinise the language of the Bill and to decide whether that language is appropriate to the purposes that Ministers have set out.

As I said in Committee, I have great difficulty with the language of Clause 21. It says nothing about last resorts. It is far from clear as to the gravity of the test for triggering an intervention order; and it allows such an order to be made without any requirement for openness or transparency. It seems to me that all that is dangerous. It should not be acceptable for us to allow through Parliament a power to Ministers that runs far wider than the sorts of exceptional and serious circumstances that Ministers have quoted; nor should it be acceptable for us to do so on the basis of assurances from Ministers that we should trust them to use the powers responsibly.

We hear rather a lot of pleas of that kind and they are to be resisted. We may place our trust in the assurances given by Ministers. We may hold the Ministers themselves in the highest esteem. That is not the issue. If the wording in the legislation permits future Ministers to exploit the power more frequently and more freely than we are told is now required, we should question its validity.

One very real risk in that context is that a diagnosis of failure in an NHS body might rest not on some clinical disaster, professional malpractice or financial mismanagement, but on a failure by the body to fulfil an objective set by Ministers that has nothing to do with any of those matters. The waiting list initiative is a classic example of a ministerial directive that can play havoc with clinical priorities. As I said earlier today, it has resulted in sicker patients waiting longer; resources being wrongly targeted; and the covert manipulation of waiting lists. Where there is that sort of political interference, a situation may easily occur in which a hospital may be treating patients according to clinical need, yet be seen to be failing when they do not meet waiting list targets. To punish hospitals which are so brazen as to act in the best interests of their patients is, in my view, a travesty of what the NHS is about.

The Minister in another place said in Committee that this clause would allow appropriate action to be taken if an NHS organisation was acting outside the policy statements in the NHS Plan. That is right and that is why the clause as it stands should be resisted.

Local autonomy in the health service does not exist merely as a matter of political or administrative convenience. It is there to ensure that those in charge of the NHS at a local level feel a sense of ownership of it and thereby do a better job. It is there because we need high calibre professional people to take responsibility for one of the most demanding managerial tasks that the country has to offer. It is simply not acceptable to play fast and loose with that autonomy by overriding it from Whitehall other than in the most exceptional circumstances.

Morale, motivation and creativity depend on people feeling that they are trusted and not threatened. That is why I suggest, through these amendments, that we should hold the Government to their word. We should make it explicit on the face of the Bill that an intervention order should be triggered only when no other action will do. We should make it explicit that the test to be passed for such an order is a situation in which the NHS body is failing significantly in the performance of one or more of its functions. We should seek to ensure that whatever the Secretary of State chooses to do when using those powers, it is subject to public scrutiny. I commend the amendments to the House and I beg to move.

Baroness Noakes

My Lords, I support the amendments standing in the name of my noble friend Lord Howe. The original clause produces a significant change in the way that the NHS is run. An intervention order introduces a significant effect. It allows the replacement of a board and it allows the functions of a trust to be completely taken over by another body. The consequences of such an order strike at the heart of the way in which an NHS trust operates. We are not talking about a marginal intervention, but about turning around what is happening.

There may be circumstances where that is necessary, but I have doubts about the need for an extensive legislative provision to allow for that. In the past, when there is significant failure in the NHS, the service has always coped largely by informal means. Where there is manifest failure in the NHS, it is not usually difficult to achieve the results that Ministers and those in the NHS executive require.

If we are to have legislative rules, we must look carefully at the test. The Bill as drafted contains the low hurdle of failing to perform, one or more of its functions adequately". The word "adequately" does not produce a high test. My dictionary says that "adequately" means sufficiently or "equivalent". In considering that test one could conclude that practically every NHS body in this country would not meet it. It would be remarkable to find any NHS body that has not failed in one or more of its functions according to that low test.

Such a power would create the ability for the Secretary of State to interfere with an NHS body. The board of directors of such a body would have its targets and the whole panoply of overview and yet on top of that we are creating a power that means that the Secretary of State can move in. For that reason I support the amendment tabled by my noble friend which would create a higher hurdle before quite draconian powers could come into play.

We must also remember that NHS managers already manage largely by looking over their shoulders. Many requirements are placed on them; they have to juggle many often conflicting priorities; and they have to manage within difficult resource situations. This provision creates another shadow that will hang over NHS managers. It is something else with which to beat them. If we create this power for circumstances other than the most extreme, the stability of NHS management will be undermined further. I believe that that is an issue of significant concern.

On Amendment No. 18, transparency is an extremely important requirement and full publication of such an intervention must be an absolute necessity. It should not take place only behind closed doors.

Baroness Carnegy of Lour

My Lords, Secretaries of State usually give Ministers in this House room to accept an amendment here and there, if only to please noble Lords. I hope that this amendment may be one that the Minister has been told he could accept. For the reasons that my noble friends have given, it is important that the reason for allowing an intervention should be very clear. An intervention should not be worded in the way in which such difficult subjects are worded in discussion, when someone is trying to sell an idea. These phrases may have to be discussed in the courts and it is important that they should be sharp and that the people who run the service locally and who will be affected should know precisely what the statute states. It is also important that Parliament and the body concerned should know the reasons for such an intervention. These are important amendments and I shall be surprised if the Minister does not accept them.

Lord Hunt of Kings Heath

My Lords, I hope I can reassure noble Lords that the power will be used in a sensible and important way, ensuring that ultimately the Secretary of State can discharge his responsibilities to Parliament for the performance of the National Health Service.

The Secretary of State can intervene using this power as set out in subsection (1) only if he is satisfied that an NHS body is not performing one or more of its functions adequately, or that there are significant failings in the way that the body is being run. In addition, the Secretary of State must also be satisfied that it is appropriate for him to intervene.

The clause would permit intervention in cases where there has been a serious one-off incident, or where there has been failure to provide a satisfactory service to patients over a period of time. In the second of those situations it would clearly be inappropriate to use intervention powers at the first sign of merely "inadequate" services being delivered. I can reassure the House that that would not be our intention.

The kind of situations in which the Secretary of State may use that power could include a failure of trust management to address serious malpractice—for instance, carrying out procedures without informed consent; a continuing failure of a trust board to take the necessary action to ensure that the trust was in financial balance; or a continuing failure to provide services to an adequate standard. We envisage that the use of those powers of intervention would, generally speaking, be a last resort when other actions had failed or were deemed inappropriate because of the seriousness of an incident.

When an NHS body was first identified as providing inadequate services we would not ordinarily look to use the intervention power. Other possible actions to improve the performance of failing NHS bodies are already set out in the NHS Plan. They do not require legislation. It could take the form of a recovery plan agreed between the NHS body and the Department of Health; it could include monitoring of the body by the regional office; and it could include more frequent inspections by the Commission for Health Improvement.

Those wider messages and the powers included in this clause have to be seen as part of a much wider package of performance improvement initiatives that we outlined in the NHS Plan. Again, I stress that we are committed to developing within the NHS a system of earned autonomy that removes the burden of bureaucracy and allows greater operational freedom to those parts of the NHS that are performing well. The other side of the coin is the need for us to take action where there are NHS bodies that are not up to the task and are not providing adequate services.

Amendment No. 16 would alter the first element of the test for intervention so that the Secretary of State would have to demonstrate that an NHS body was, failing significantly in the performance of one or more of its functions", rather than, as the Bill now states, failing to perform "adequately".

I do not believe that such a change is necessary. The test of whether the body is performing adequately is not intended as a low test. Indeed, I have already outlined the sort of circumstances in which we may use the power and that we envisage such intervention being taken only after other steps have been taken. However, we should not accept inadequate services. It is right that the Secretary of State should be able to intervene where adequate services are not being provided. To suggest otherwise is to accept very low ambitions for the NHS and the services that it delivers.

Amendment No. 17 stipulates that the Secretary of State should make an intervention order only when all other appropriate remedial action has been taken. I have no disagreement whatever with the principle put forward here. As I said, we see the measures in the clause as being taken as a last resort or at the end of a series of other measures, except in the event of an immediate or catastrophic failure when urgent action must be taken.

However, it is important to remember that if an example of performance failure were particularly serious, such as one which posed a real or potential threat to patient safety, and it was clear that other measures would be insufficient, an intervention would be appropriate as it would enable quick and decisive action. I do not believe it would be helpful to impose on the Secretary of State a duty to ensure that he had exhausted all other appropriate action in those circumstances.

Amendment No. 18 relates to making available to Parliament details of the reasons for intervention. It would be unusual to make it a statutory duty to lay copies of an intervention order before both Houses as the order is not astatutory instrument. That is because intervention will by its nature be particular to the individual body rather than general in application, and particular account will need to be taken of local circumstances. Our view is that these orders largely concern operational detail. They are concerned with how an individual NHS body is performing its functions or being run. Although an intervention order may remove or suspend the individuals involved in managing the body, it will not fundamentally alter the body's constitution or remove or alter any of its powers or duties.

In our view, given the nature of the order, it is not then necessary to subject them to the parliamentary procedure. The Select Committee on Delegated Powers and Deregulation agreed that it was appropriate to disapply the negative procedure. I reassure the House that that does not mean that the Government would not seek to be fully open about the reasons for intervention and what was expected of the NHS body in terms of performance improvement. The key document that would set that out for the NHS body would be the recovery plan agreed with the regional office and normally the Modernisation Agency.

I believe that, given that reassurance and the fact that the plan will be in the public domain, there is no need to go down the route set by the noble Earl. I envisage the intervention order being used very sparingly and I hope that I have reassured your Lordships on that point.

6.30 p.m.

Earl Howe

My Lords, the Minister certainly reassured me that the present Government have no intention of using these powers lightly or wantonly. I fully accept that. However, I sought to make the point that once the power is on the statute book, a future government can use it to the full extent that the law permits. I found his answers unsatisfactory in that regard particularly.

My noble friend Lady Noakes was right to say that by any standards we have here a fundamental intervention in the operation of the NHS. She was also right to say that the NHS has typically in the past coped with catastrophic failures that reflect badly on management. There are ways of doing that without resorting to an intervention order. Furthermore, I agree with my noble friend that in the wording of the clause, particularly the word "adequate", we have potentially a low threshold of failure, even if current Ministers do not view the terminology in that way.

Alarmingly, the Minister said that generally speaking the power in the clause would be a last resort and that the Government would not ordinarily look to use the power when other actions are open to the Department of Health. If anything, those words are less strong that those which the Minister deployed in Committee. But even if they are intended to represent an equal measure of reassurance to me, I return to my earlier point: we are talking about putting on to the statute book a draconian power which is capable of being used in a way which runs counter to the intentions of the present Government. I am not in the least comfortable with that.

The Minister said that there was no need to go down the route that I propose. I am certain that on the principle of my proposal he has no objection, other than the principle of Amendment No. 18, in respect of which he believes that there are problems. But as regards Amendment No. 16, if he feels that there is no need to go down my proposed route—clearly, he has no fundamental objection to it—I should like to take the opinion of the House.

6.35 p.m.

On Question, Whether the said amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 95; Not-Contents, 115.

Division No. 2
CONTENTS
Alexander of Weedon, L.	Hurd of Westwell, L.
Astor of Hever, L.	Jopling, L.
Attlee, E.	Kimball, L.
Baker of Dorking, L.	Kingsland, L.
Beaumont of Whitley, L.	Lamont of Lerwick, L.
Biffen, L.	Lane of Horsell, L.
Blatch, B.	Lucas, L.
Boardman, L.	Luke, L. [Teller]
Bowness, L.	Lyell, L.
Bridgeman, V.	Mancroft, L.
Brittan of Spennithorne, L.	Marlesford, L.
Burnham, L. [Teller]	Mayhew of Twysden, L.
Buscombe, B.	Monro of Langholm, L.
Byford, B.	Monson, L.
Caithness, E.	Montrose, D.
Carnegy of Lour, B	Murton of Lindisfarne, L.
Carr of Hadley, L.	Newton of Braintree, L.
Coe, L	Noakes, B.
Colwyn, L.	Northbrook, L.
Craig of Radley, L.	Norton of Louth, L.
Cranborne, V.	O'Cathain, B.
Darcy de Knayth, B.	Onslow, E.
Darcy of Harptree, L	Oxfuird, V.
Denham, L.	Palmer, L.
Dixon-Smith, L.	Palumbo, L.
Eccles of Moulton, B.	Park of Monmouth, B.
Elliott of Morpeth, L.	Patten, L.
Elton, L.	Pearson of Rannoch, L.
Feldman, L.	Plumb, L.
Ferrers, E.	Prior, L.
Fookes, B.	Rawlings, B.
Fraser of Carmyllie, L.	Renton, L.
Freeman, L.	Roberts of Conwy, L.
Gardner of Parkes, B.	Ryder of Wensum, L.
Geddes, L.	St John of Fawsley, L.
Gilmour of Craigmillar, L.	Seccombe, B.
Glenarthur, L.	Selsdon, L.
Glentoran, L.	Sharples, B.
Griffiths of Fforestfach, L.	Shaw of Northstead, L.
Hanham, B.	Strathclyde, L.
Hanningfield, L.	Taylor of Warwick, L.
Harris of Peckham, L.	Tebbit, L.
Hodgson of Astley Abbotts, L.	Thomas of Gwydir, L.
Hogg, B.	Thomas of Swynnerton, L
Howe, E.	Tugendhat, L.
Howe of Aberavon, L.	Vivian, L.
Howell of Guildford, L.	Waddington, L.
	Wade of Chorlton, L.

NOT-CONTENTS
Acton, L.	Brooks of Tremorfa, L.
Ahmed, L.	Burlison, L.
Alli,L.	Carter, L.[Teller]
Andrews, B.	Clarke of Hampstead, L.
Archer of Sandwell, L.	Cohen of Pimlico, B.
Ashton of Upholland, B.	Crawley, B.
Bach, L.	Currie of Marylebone, L.
Barnett, L.	David, B.
Bassam of Brighton, L.	Davies of Coity, L.
Bath and Wells, Bp.	Davies of Oldham, L.
Berkeley, L.	Dean of Thornton-le-Fylde, B
Bernstein of Craigweil, L.	Desai, L.
Billingham, B.	Dixon, L.
Blackstone, B.	Dormand of Easington, L.
Blease, L.	Elder, L.
Borrie, L.	Evans of Parkside, L.
Brennan, L.	Farrington of Ribbleton, B.
Brett, L.	Faulkner of Worcester, L.
Brooke of Alverthorpe, L.	Filkin, L.
Brookman, L.	Fyfe of Fairfield, L.

Gale, B.	Massey of Darwen, B.
Gibson of Market Rasen, B.	Merlyn-Rees, L.
Gilbert, L.	Milner of Leeds, L.
Gladwin of Clee, L.	Mitchell, L.
Goldsmith, L.	Molloy, L.
Gould of Potternewton, B.	Morris of Castle Morris, L.
Grenfell, L.	Nicol, B.
Hardy of Wath, L.	Orme, L.
Harris of Haringey, L.	Parekh, L.
Harrison, L.	Patel, L.
Hayman, B.	Patel of Blackburn, L.
Hilton of Eggardon, B.	Plant of Highfield, L.
Hollis of Heigham, B.	Prys-Davies, L.
Howells of St. Davids, B.	Ramsay of Cartvale, B.
Howie of Troon, L.	Rendell of Babergh, B.
Hoyle, L.	St. John of Bletso, L.
Hughes of Woodside, L.	Scotland of Asthal, B.
Hunt of Chesterton, L.	Serota, B.
Hunt of Kings Heath, L.	Simon, V.
Irvine of Lairg, L. (Lord Chancellor)	Smith of Leigh, L.
	Stoddart of Swindon, L
Islwyn, L.	Stone of Blackheath, L.
Janner of Braunstone, L.	Symons of Vernham Dean. B
Jay of Paddington, B. (Lord Privy Seal)	Taylor of Blackburn, L.
	Thornton, B.
Jenkins of Putney, L.	Tomlinson, L.
Laird, L.	Turner of Camden, B.
Lea of Crondall, L.	Varley, L.
Lipsey. L.	Walker of Doncaster, L
Lockwood, B.	Walpole, L.
Lofthouse of Pontefract, L.	Warner, L.
McCarthy, L.	Weidenfeld, L.
Macdonald of Tradeston, L.	Whitaker, B.
McIntosh of Haringey, L.	Whitty, L.
[Teller]	Wilkins, B.
McIntosh of Hudnall, B.	Williams of Elvel, L.
MacKenzie of Culkein, L.	Williams of Mostyn, L.
Mackenzie of Framwellgate, L.	Williamson of Horton, L.
Masham of Ilton, B.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.45 p.m.

[Amendments Nos. 17 and 18 not moved.]

Clause 23 [Vacancies for medical practitioners]:

Earl Howe moved Amendment No. 19:

Page 19, line 29, after "consultation" insert ", including consultation with the local medical committee for its area."'

The noble Earl said: My Lords, under Clause 23 decisions to determine the existence and filling of vacancies for GPs will be devolved from the medical practices committee to each health authority. Amendment No. 19 is extremely important to GPs in that it requires a health authority to consult the local medical committee for its area when decisions are taken on recruiting additional or replacement GPs in that locality. I believe that LMCs have the requisite local understanding to promote the delivery of high standards through their professional contacts with all GPs. Potentially, decisions on whether to replace a GP could be made in accordance with local rather than national priorities.

As the House debated earlier, each health authority will determine for itself the appropriate number of GPs and practices in its area. No doubt financial resources will feature largely when decisions are taken on whether to recruit additional or replacement GPs in a health authority area. As I indicated earlier, health authorities may be tempted not to fill posts and thereby save resources. I believe that health authorities should be obliged to consult their local medical committees at various stages of the decision-making process in the same way that the MPC is currently required to consult, for example on whether there should be an additional or replacement GP in the locality, what conditions should be imposed on the vacancy—perhaps the size of the list—and whether the additional GP should be a member of a partnership or sole practitioner. The criteria for choosing a practice to which a vacancy is to be allocated, or the GP to fill a vacancy, should also be subject to the same consultation as nominating or approving a GP.

Consultation with the LMC is necessary to ensure fairness to GPs in practising their livelihood in the area. It is necessary to provide a check and balance on rash and uninformed decision-making and to ensure a fair distribution of GPs locally which results in an equitable service provision to patients. I beg to move.

Lord Clement-Jones

My Lords, I rise very briefly to support the amendment. I believe Amendment No. 19 to be very important, particularly in view of the fact that the Minister was unhappy with Amendment No. I moved earlier by the noble Earl, Lord Howe, which we also supported. I ask the Minister to consider the situation carefully. This amendment is very similar to one tabled in Committee by the noble Lord, Lord Rea. At that time the Minister said: I accept the principle behind my noble friend's remarks on local medical committees. It is not a matter for the Bill, but I assure him that the regulations will require health authorities to consult with local medical committees before making any determination on whether there is or will be a vacancy for a general practitioner in their area".—[Official Report, 20/3/01; col. 1416.] The essence of the matter is to put as much flesh as possible on the bones to assure those concerned with the appointment of general practitioners that there will be local input and that, even if this matter does not culminate in primary legislation, the regulations themselves will have very strong force.

Lord Hunt of Kings Heath

My Lords, I hope that I can reassure the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Howe. The noble Lord, Lord Clement-Jones, is right to say that in Committee I said that I fully accepted the principle behind the amendment but did not consider that it was a matter for the Bill because we will commit ourselves, and I do so again, to ensuring that regulations will require health authorities to consult with local medical committees prior to making any determination on whether there is or will be a vacancy for a general practitioner in its area.

The current regulations require health authorities to consult the local medical committee before any reference is made to the Medical Practice Committee concerning declarations of vacancies. Our intention is to change the regulations and to place a requirement on health authorities to consult the LMC before making vacancy decisions.

It is also our intention to enhance the consultation process by regulations requiring health authorities to consult with local primary care trusts and all neighbouring health authorities. The additional requirement will ensure that health authorities take account of the needs of neighbouring health authorities and that in the future, because one may not have taken account of it, pockets of recruitment difficulties do not arise. Having said that, I hope that I have provided the reassurances required.

Earl Howe

My Lords, that is a very helpful reply. My only hope is that practice and custom will take root. The Minister's reassurance that it is the Government's intention to require that health authorities should consult with local medical committees before determining the vacancy for a GP in the area is good news. Again I come back to my previous point that, given the transient nature of Ministers and government, it would be much more satisfactory to me to have the requirement placed on the face of the Bill. Nevertheless, what the Minister has said is helpful. I thank him for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Remuneration of general medical practitioners]:

Earl Howe moved Amendment No. 20:

Page 19, line 41, leave out from "services)" to end of line 2 on page 20 and insert "in subsection (4), for the words "not, except in special circumstances," there is substituted "have regard to the quality and outcome of the services provided and shall not ordinarily""

The noble Earl said: My Lords, Amendment No. 20 raises an issue which we debated in Committee about the payment system for general medical services. In Committee the Minister said that he agreed with the thrust of the amendment, the effect of which is to ensure that the payment system for General Medical Services' practitioners appropriately rewards quality and service outcome. I was pleased to hear that is precisely the emphasis that the Government want to see in the revised national GP contract currently under negotiation.

Nevertheless, as the clause reads now it would be possible for the Government to pay GPs in any way they wanted. There is almost no case at all for failing to recognise explicitly in legislation what both the Government and we wish to see, which is that GPs should be paid in a way that has regard to quality and outcome. Indeed, that is a stated aim of the NHS Plan. It should be made easier for GPs to reduce their list size. That would not be so straightforward for them if their remuneration was based on capitation. GPs who through no fault of their own have a low list size, such as those working in rural areas, should not be penalised unfairly.

What the Government seek to do in Clause 25 is to delete Section 29(4) of the 1977 Act so that no restrictions apply to how remuneration is paid and by what criteria. That effectively means that the Government would be able to pay GPs in any way they wished—for example, by a fixed salary; by the number of patients on their list; the number of smear tests they carry out or the number of other targets reached; or however else they decide. That undoubtedly gives them flexibility, but there is no guarantee that remuneration will reflect the quality and outcomes of services that GPs provide to patients.

The Minister's reasons for rejecting the amendment were that it would constrain the current negotiations between the Government and the BMA. I am at a loss to follow that argument. If it is agreed that the thrust of the amendment is sound, why not accept it? The only reason I can think of—I stand to be corrected and hope I will be—is that the wording of the clause as it stands suits the Government very well because they must perceive it as leaving them with room to manoeuvre even after the negotiations with the BMA have been concluded. I wonder whether at the present time that is the right message to send out to doctors. I beg to move.

Lord Clement-Jones

My Lords, I rise to ask a couple of questions. I am, in spirit, in favour of the amendment. The climate of the negotiations with the BMA, and in particular with its GP committees, has changed considerably since we last debated the Bill. In Committee the Minister said: There is the prospect of significant progress on the way in which GPs work for the NHS. Initial discussions have begun with the BMA to scope the work. Those discussions have been constructive and there has been an encouraging start in addressing a major challenge for both parties".—[Official Report, 22/03/01; col. 1540.] In a sense, one could say, "Oh yes, well that is a very nice scenario. There is a great green field of opportunity there. This is going to be very much an even-handed discussion between the Government and the medical profession" and so on. However, if one looks at the way in which the Bill operates—the noble Earl, Lord Howe, has put the matter entirely correctly in the way that it impacts on the 1977 Act—the reality is that the cards are then all placed in the hands of the Government. The Government are negotiating by legislation. A better way would be for a genuinely consensual outcome to the matter rather than giving the Government all the cards. There appears to be an underlying agenda for the Government to have a completely free hand to determine, if they so choose, the outcome. That would be extremely unfortunate.

Morale in the medical profession is clearly not as good as it should be. Over the past few weeks, indeed since our Committee stage discussions, we have seen some activity bubbling up from under the surface. The opening up of the provisions of the 1977 Act is making those of us who in normal times would have been content with the matter rather more suspicious than we otherwise would be.

Lord Hunt of Kings Heath

My Lords, I am intrigued by the suggestion that the Government hold all the cards in their negotiations with the BMA. I shall certainly take that thought back to the department's negotiators. I am sure that they will be delighted to hear that. Particularly at the present time it is useful for me to re-state our intention of working with the professions and their representatives to revise the national GP contract to provide a greater emphasis on quality of work and improve patients' outcomes inherent in the PMS approach to the delivery of primary care.

I am aware that the BMA is to ballot its members asking if they are prepared to resign from the NHS in one year's time if a new GP contract and GPC negotiation rights for all family doctors cannot be agreed in the next 12 months. Obviously I am concerned about that development. But the Government are aware of the pressures under which GPs work and have acknowledged that matter on a number of recent occasions. We have launched the PM's commitment to GPs to reduce the bureaucratic burden on them, and our intention in relation to the contract is to develop proposals for a new GP contract. That was set out in the NHS Plan. Work has begun on that internally within the Department of Health. Our aim is to share our early thoughts with the GPC as soon as possible. The GPC's aims and objectives in this respect seem to be very close to those of the Government.

The clause supports the revision of the GP contract in that it removes an unnecessary statutory impediment to progress. However, I am reluctant to go further and accept the noble Earl's amendment because that takes us forward another step. In essence, it would impose a legal constraint around the process of discussion and negotiation. I do not believe that that would be helpful to the current process of negotiation and discussion with the representatives of the profession.

We all accept the principle of linking GPs' pay more closely to improved quality and outcomes. I believe that we shall have the support of the profession in that. We look forward to our discussions with the profession, but I do not believe that imposing legal constraints in the manner suggested would be helpful in that regard.

7 p.m.

Earl Howe

My Lords, although the Minister made some helpful comments, I am disappointed with his reply. The BMA will be particularly disappointed. The noble Lord said that the amendment would have the effect of placing a legal constraint around the process of negotiation. But if it is what everyone wants, I do not see what the argument is. The noble Lord, Lord Clement-Jones, was right to say that what we appear to have is negotiation by legislation. I am disappointed by that. It seems extraordinary to me that the Government should resist the amendment when the Minister and I both agree that GPs ought to be rewarded for good practice. What we propose would provide an incentive to them to improve the quality of their services to patients. The doctors themselves are happy with that. Nevertheless, it is not an issue I propose to press to a Division today. I may wish to revisit it at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Out of hours medical services]:

Earl Howe moved Amendment No. 21:

Page 20, line 43, leave out from "provider"" to end of line 45 and insert "means a person or persons who provide deputies to doctors and includes a body which— (a) consists only of—

1. (i) doctors whose names are included in the list, the supplementary list or the services list of a Health Authority, and who arrange to act as deputies to each other, or
2. (ii) pilot doctors and doctors whose names are included in the list of a Health Authority who co-operate in such a way that one doctor will cover for another to secure the performance of personal medical services or, as the case may be, the provision of general medical services for their patients; and

(b) keeps separate accounts in relation to such arrangements

The noble Earl said: My Lords, Amendment No. 21 is a technical amendment. I assure the Minister that it is designed to be helpful to the Government and I hope that it will be taken in that spirit.

Clause 26(3) defines a "service provider" as a GP principal acting as a deputy for one of his or her patients or a non-principal providing locum cover. I am advised that that is wrong. My amendment defines "service provider" as a co-operative or commercial deputising service. The wording of the amendment is taken from paragraph 22(1) of Schedule 1 of the General Medical Service Regulations. As far as I am aware, the wording in those regulations has proved reasonably satisfactory. For that reason, I hope that the Government will feel disposed to accept the amendment. I beg to move.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Earl for raising this matter. It was my understanding that discussions took place some months ago between the GPC and officials of the department and that agreement was reached that this issue would best be addressed in regulations. That is our intent. I certainly accept the principle behind the suggested amendment and am sympathetic to its aim. I certainly acknowledge that the existing draft of the clause leaves the definition open. However, I believe that the detail of the definition should be dealt with in regulations and I therefore think that it would be inappropriate to accept the amendment.

My reason for saying that is related to handling rather than to any substantive difference. Including a definition on the face of the Bill does not seem the best way to future-proof the legislation because experience shows that out of hours services have been and are characterised by, innovation and variety in their delivery. We are reluctant to be too prescriptive on the face of the Bill. Our preferred approach is therefore to consider a definition on the lines suggested as part of regulations, which will set out the service providers of a specified description who will require approval. I can assure the noble Earl that we shall consult the GPC on those draft regulations.

Earl Howe

My Lords, I have to accept the validity of what the Minister has said. No doubt the BMA will take note. I understand the necessity for retaining flexibility in the legislation and future-proofing it. I look forward to reading the regulations when they are published. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 [Medical, dental, ophthalmic and pharmaceutical etc. lists]:

Earl Howe moved Amendment No. 22:

Page 25, line 40, at end insert—

"() In sections 29B, 36, 39, 42, and 43, the expression "grounds of unsuitability" means, in relation to each such person. grounds as would enable the Health Authority (or on appeal the FHSAA) to be satisfied that it is necessary for the protection of members of the public, or is otherwise in the public interest, or is in the interest of such person, that such person is unsuitable for inclusion in the respective list; and elsewhere in this Act the word "unsuitability" shall be construed accordingly."

The noble Earl said: My Lords, in moving this amendment, I return us to an issue that first arose in Committee in another place. As I mentioned in our Committee stage, the Minister in another place said that, when we discuss clause 26 we shall propose to adopt the wording of the amendment as the basis for a Government amendment to be tabled on Report, which will set out the circumstances in which a health authority may suspend a practitioner".—[Official Report, Commons Standing Committee E, 25,1/01; col. 153.] It did not seem to me that that undertaking had been fulfilled in the changes that the Government made to the Bill at Report stage in another place. However, when I introduced a similar amendment in Committee, the Minister referred to that government amendment and made it clear that he favoured maintaining a distinction between grounds for suspension and grounds for removal. I take note of those points, but to suggest that the government amendment had delivered the commitment made in another place is wrong. That amendment related only to GP suspensions. My amendment is more comprehensive in that it also covers the definition of "unsuitability" referred to in earlier provisions, such as the inclusion or non-inclusion of a GP on a medical list, and removals from the list.

I have proposed the amendment on the advice of the BMA, which believes that it is essential that the term "unsuitability" be defined in relation to all its uses. The wording of the amendment reflects that contained in new Section 41A of the Medical Act 1983, which governs the work of the GMC's interim orders committee for the protection of the public, in the public interest or in the interest of the GP deemed to be unsuitable. That definition of "unsuitability" would help to ensure that health authorities do not remove or suspend a GP or refuse to include a GP on a medical list for spurious reasons. I beg to move.

Lord Hunt of Kings Heath

My Lords, although a health authority is accountable for the availability and quality of family health services, it has very limited powers at the moment to refuse a practitioner entry on to its list. More importantly, it has even less power to remove such a practitioner once he is on the list. We are seeking to address the imbalance between accountability and the ability to act decisively to safeguard the quality of family health services authorities.

Our view remains that "unsuitability" is properly capable of a wide interpretation and should be left so. That approach is precedented in other legislation, such as employment rights legislation, and any definition that was set out on the face of the Bill might constrain health authorities' considerations inappropriately. The approach that we have favoured and shall adopt is to set out in regulations the criteria which health authorities must consider without preventing them applying other criteria that they regard and can demonstrate as relevant.

The structure being promulgated by this Bill is not dissimilar to the model used within the GMC's disciplinary process. We are seeking to put in place the ability to react quickly to a situation by issuing a suspension against a practitioner. In such cases we define the health authority's power to act in the same way as the GMC limits its interim orders committee. The suspension is permissible only on the grounds of protecting the public or otherwise in the public interest. The correlation of those words with those put forward in the amendment is no coincidence and reflects our commitment made in another place to align the two suspension regimes in this way.

Once suspension has been considered then, for example, the GMC professional conduct committee considers farther action against the practitioner under the broad heading of "serious professional misconduct". Within our model, after the suspension had been considered, the health authority would judge under the similarly broad heading of "unsuitability". This, we believe, is a balanced and appropriate mechanism, but the amendment seeks to fetter the health authority's ability to act to safeguard the quality of the services it provides to the public by linking them to a definition that is directly comparable to that applied to an interim GMC committee. I do not believe that limiting the action taken by a health authority in this way is appropriate.

In Committee, the noble Earl was concerned that there were different levels of unsuitability: at one level, someone who is dangerous to patients or themselves; and, at the other, someone who does not reach the standards that the health authority might like. I recognise the logic of that statement, but I believe that refusing admission to, or removing a practitioner from, a list is not concerned only with whether a health authority can establish that the practitioner is an immediate danger to patients. I believe that it needs to go wider. It is right and proper that the health authority should also consider whether there is anything in the practitioner's record or behaviour that would cast doubt on his fitness to work within and on behalf of a publicly funded health service.

There are those who argue that seeking to consider, for example, all criminal convictions is an unwarranted intrusion into private life. I disagree with that. To characterise lesser offences and instances of misconduct as being entirely within the private sphere of individual practitioners is to presuppose that such instances can never have any bearing on the efficacy of the doctor/patient relationship.

I acknowledge that there is a risk that a health authority could impose unreasonable conditions on a practitioner when considering suitability and that such an action would not be acceptable. Clearly, we return here to the tension between local decision making and the need for a level and fair playing field. Our guidance to health authorities will spell out the need for their decisions to be proportionate. Furthermore, regulations will provide that health authorities must consider certain issues when reaching a decision. I can assure the House that one of those will he the relevance of the facts to the provision by the individual practitioner of family health services and the likely risk to patients.

I hope that the noble Earl will recognise the similarity between our thinking and that set out in his amendment. However, I think that it would be inappropriate to draft the legislation in such a way that it would prevent the health authority from considering other relevant issues.

As I have indicated, in addition to the regulatory framework and associated guidance under which the health authority will operate we have provided for an independent appeal body, the FHSAA. It will act as an effective check against bad decision making. Appeals to the authority will not be restricted to points of law, but will allow the FHSAA to consider the decision anew. In time, it will also provide a body of case law to which health authorities will need to have regard. We see that as a significant safeguard.

As regards the delivery of a commitment made to the noble Earl's right honourable friend, that commitment was to adopt the wording of the opposition amendment as the basis of a government amendment specifying grounds for suspension. We believe that we have delivered that.

Earl Howe

My Lords, I shall not be unduly difficult over this matter. However, I beg to differ with the Minister that the commitment has been delivered. Nevertheless, I believe that he has replied thoughtfully and in detail to the points that I made, both today and in Committee. I am grateful to him for that.

Clearly, there is a great deal for me to digest. I should like to read Hansardcarefully, but I understand the thrust of the points that the Minister has made. In large part, I am reassured by what he has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

Clause 31 [Declaration of financial interests, gifts, etc.]

Earl Howe moved Amendment No. 23:

Page 28, line 13, at end insert "and personal medical services under section 28C arrangements"

The noble Earl said: My Lords, I beg to move Amendment No. 23 and, with the leave of the House, I shall speak also to the amendments in the next grouping, Amendments Nos. 24, 26 and 27, because many of the issues run into each other. I hope that this will not inconvenience noble Lords.

These amendments seek an unequivocal commitment from the Government that consultation and negotiation with the BMA's General Practitioners Committee over PMS regulations should take place on the same basis as they do currently for general medical services issues. I believe that it is essential for GPs in personal medical services schemes to have confidence in the system. They should enjoy the same protection at national level as is provided for colleagues providing general medical services.

The amendments provide for the GPC and other bodies representing relevant health professionals to be consulted when regulations are made relating to national issues. They have been prepared to meet two concerns expressed by the Minister at an earlier stage. The first concern was that the general practitioners committee should not be consulted on regulations which relate to locally negotiated criteria. Amendment No. 23 relates to the regulations as regards the declaration of financial interests, gifts and so forth. The second amendment covers regulations that apply to the preparation of services lists.

The second concern expressed by the Minister was that PMS pilots do not include only GPs. However, I have to say to the Minister that his honourable colleague's portrayal of PMS as locally negotiated, at col. 191 of the Commons Committee stage, appeared to be seriously misleading. The national framework for PMS contracts is set by nationally determined implementation directions and a core contractual framework. Additionally, the NHS Plan states that, from 2004 onwards, there will be an overarching national framework for both PMS and GMS contracts. Thus there is a strong national context for PMS contracts on which national consultation and negotiation with the BMA's GP committee should be required.

Clause 34 provides for new arrangements extending the health authority list system to GPs providing personal medical services. I understand that the BMA supports these provisions which mirror the arrangements to be put in place for GPs providing general medical services. However, there is a serious omission in Clause 34. For GPs providing general medical services, the Secretary of State, before making regulations, is required to, consult such organisations as he thinks fit appearing to him to represent medical practitioners providing general medical services". In practice, this means the BMA's general practitioners committee. There is no equivalent provision in Clause 34 to require the Secretary of State to consult with the BMA's GP committee before making regulations relating to GPs providing personal medical services.

The GP committee's sole negotiating rights on behalf of GPs are not conditional on contractual status. I believe, therefore, that it is untenable to argue that a credible distinction can be made between the two in terms of national bargaining arrangements. Changes to either PMS or GMS at national level will have a direct bearing on the other contractual option. Personally, I am fully persuaded that the existing consultation arrangements with the BMA's GP committee on general medical services issues must apply equally to PMS issues. This is a matter of fundamental importance to the BMA. The BMA views GMS and PMS as two sides of the same coin. What happens on one side has an obvious—usually direct—bearing on the other. This interdependence will increase in the future given the Government's intention that PMS and GMS contracts should converge by 2004.

The Department of Health's recognition of the BMA as having sole bargaining rights predates GPs working in personal medical services schemes. For many GPs, not having similar rights to national consultation will cause alarm and may well influence their personal stance towards PMS. At a time when constructive and co-operative dialogue is undoubtedly in the interests of all, it is essential to minimise the sense of suspicion—and even threat—with which some regard the introduction of PMS. I beg to move.

Lord Clement-Jones

My Lords, I rise, very briefly, to support the noble Earl, Lord Howe, in this group of amendments. The Minister dealt with some aspects of this issue in Committee but a fundamental question remained. Having read Hansard again, it still remains.

The main question is: why does the department believe that it is appropriate to deal differently as between GMS and PMS? After all, in the NHS Plan the Government referred to creating a single contractual framework covering both GMS and PMS. On reading Hansard we find that in Committee the Minister talked about the fact that the Secretary of State has to approve a PMS scheme and significant variations to the PMS contract, and that in the last resort the Secretary of State has the right to terminate a PMS scheme. All of that seems to be a very good reason for accepting these amendments. If the Secretary of State has such powers in relation to PMS schemes, all the more reason for the statutory right of consultation to be enshrined in the primary legislation.

There are some unanswered questions. I look forward to hearing whether the Minister has a better answer than he had on the previous occasion.

Lord Rea

My Lords, in speaking to the amendment, I should declare an interest. I am a former general practitioner providing not PMS but general medical services, and so, in a sense, it is not my former interest that I shall support.

My noble friend made the point in Committee that PMS pilots and/or schemes which are more than just pilots do not simply include general practitioners; nursing and paramedical personnel are also involved. In answer to that, I should point out that this group of amendments does not in any way stop those health professionals seeking to be represented by their own professional bodies. It refers only to general practitioners who have agreed to provide personal medical services.

To augment some of the remarks made by the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Howe, in order to be able to provide personal medical services you already have to be on a medical list providing general medical services; you are very much the same animal except that the contract is slightly different. However, the basic protection needed is exactly the same for a doctor providing either kind of service.

As the noble Lord, Lord Clement-Jones, mentioned, a single contractual framework is the aim, so it is hard to understand how the Government sustain different consultation arrangements with the profession over PMS and GMS when it is so clearly the case that changes to PMS arrangements will impact directly on GMS arrangements and vice versa. These amendments are reasonable and I hope that my noble friend will be able to agree to them.

Lord Hunt of Kings Heath

My Lords, the simple answer is that there are differences between the two contracting systems. The approach that we have taken rests very much on that principle.

Perhaps I may deal first with Amendment No. 23. It relates to Clause 31, which provides for the declaration of financial interests and gifts by the four family health services contractor professions delivering Part II services under the 1977 Act. The part of Clause 31 to which the noble Earl refers provides for amending the part of the 1977 Act which deals specifically and solely with GMS practitioners.

In effect, Clause 31(2) provides a requirement on the Secretary of State to consult the general practitioners committee before making regulations which apply to GMS doctors about the declaration of financial interests and gifts. Personal medical services are covered by Part I of the 1977 Act. They are subject to different contractual arrangements, including different financial arrangements between the health authority and the particular service provider. The noble Earl's amendment would extend the requirement to consult before making the GMS regulations to organisations which represent PMS doctors. This is surely inappropriate because the regulations made by virtue of Clause 31 will have absolutely no legal impact on PMS doctors.

There are powers in Clause 34 for the Secretary of State to make regulations which will require PMS doctors to declare financial interests and gifts. I can assure your Lordships that for consistency—as far as different contractual arrangements allow—we intend to mirror within PMS and PDS the rules which will be applied in GMS and GDS for declaring gifts and financial interests.

For PMS we shall need to cover providers (the PMS contractor) as well as the PMS doctors (the GPs who perform PMS and whose names will be held on the health authority's list). The declaration of financial interests or gifts by PMS providers will be covered by regulations under Part I or Part II of the National Health Service (Primary Care) Act 1997, as appropriate. The 1997 Act does not include a statutory requirement to consult before making regulations, but I can assure the House that before making regulations concerning the financial interests of PMS providers or performers we shall consult interested parties.

Amendments Nos. 24, 26 and 27, which the noble Earl has now grouped with Amendment No. 23, would require in some measure consultation with national organisations representing medical or dent al practitioners working in personal medical or dental services about arrangements for the provision of these services under either piloted or permanent arrangements.

I should stress that, crucial to all PMS and PDS schemes, is the scope and flexibility to negotiate individual local contracts tailored specifically to meet local needs. I should also stress that medical and dental practitioners enter into these contracts voluntarily. On this local level, GP and dental practitioner interests are surely more appropriately represented by the relevant local medical or local dental committees, which are able to focus on particular local issues which more directly affect the local contract development and negotiation.

So far as concerns the impact this will have on the development of LMC and LDC schemes, it is worth recognising that it was the Government's amendments to the Health Act 1999 that ensured that LMCs and LDCs could be recognised as representing those doctors and dentists in PMS or PDS who wished for such representation. This movement to a local level of representation is surely consistent with the desire of many noble Lords to see devolution of power from the centre to a more local level.

The standard national contract between the Secretary of State and general medical practitioners is concerned with the provision of general medical services and remuneration for all those practitioners providing such services. We know—indeed, it has been implied in previous debates—that that contract can prove very blunt in addressing the needs of many communities. That is why we are committed to modernising it.

PMS and PDS contracts are different. The health authority or PCT, whichever is the commissioner, and the PMS or PDS providers individually tailor them. They deal with the particular range of services to be delivered locally and focus on, among other things, the particular negotiated payment or payments for the delivery of these particular services. There is here a significant emphasis on the need for a more flexible and wider approach to consultation that embraces and reflects the range of stakeholders over the whole local health economy to be consulted over proposals to provide PMS. That is not the case when a doctor applies to provide GMS.

The noble Earl has referred to the point, as did the noble Lord, Lord Clement-Jones, that PMS is also different from GMS in that GPs are not the only key stakeholders. A PMS provider may be an organisation such as a primary care trust or an NHS trust, or indeed a group of nurses. For that reason we have to involve all organisations representing key professional groups, whether providing or performing PMS and whether under piloting or future permanent arrangements, in ensuring the successful development of PMS. That is why we have set up the PMS implementation group. The GPC has membership of the group, and rightly so; but its membership is set alongside the other key stakeholders.

It would not be right for us to agree a framework in which the GPC could determine nationally the contract that someone could enter into at a local level through its formal negotiating rights. The proper locus for BMA representation of its members in PMS is locally through the LMC. It is also worth pointing out that it is a voluntary option for PMS GPs. Each is free to opt to be represented by the LMC. Surely that is right and it is consistent with the position of PMS as a local voluntary option.

The noble Lord, Lord Clement-Jones, felt that the arrangements would prejudice the future of PMS. All I can say is that the evidence is that PMS has been outstandingly successful. I believe that a thousand new pilot schemes will be joining in the third wave. I do not believe that the arrangements that we are setting up will inhibit that process. I believe that the ability of the LMC to act on behalf of PMS GPs at local level provides the required degree of protection for individual GPs.

7.30 p.m.

Earl Howe

My Lords, I am disappointed by that answer. The Minister was right to say that there are differences between the two contracting systems. However, the principle that the GPC should be consulted regardless of the nature of the contractual relationship is a matter of fundamental equity.

As the Minister said, PMS involves GPs providing their services under Part 1 of the regulations; and those arrangements have flexibilities which allow GPs to become salaried doctors, paid by a local health authority or primary care trust in England. It is also possible to retain independent contractor status under PMS, and most doctors have chosen to do so. The crucial difference is that PMS doctors have individual local contracts even though there is, as I emphasised earlier, a strong national framework for those local contracts.

Again, the Minister is right to say that this is a voluntary option. No one is forcing a doctor to undertake PMS status. But given that the aim of the NHS Plan is to create a single contractual framework—pragraph 8.9 of the NHS Plan refers to "a single contractual framework" covering both GMS and PMS—I fail to see how the Government can sustain different consultation arrangements with the profession over PMS and GMS when it is clearly the case that changes to PMS arrangements will impact directly on GMS arrangements, and vice versa.

Nevertheless, I am once again grateful to the Minister for the clarification that he was able to offer of the Government's perspective on these issues. He went further than he did in Committee and I shall read his response carefully. I reserve the right to return to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 [PMS and PDS lists]:

[Amendment No. 24 not moved.]

Earl Howe moved Amendment No. 25:

Page 40, line 34, at end insert—

"() In this section "perform" includes "provide"."

The noble Earl said: My Lords, I return in this amendment to a technical issue that I raised in Committee on behalf of the BMA. The issue is indeed technical, but the BMA continues to feel strongly about it.

The clause refers to health authorities preparing lists of, medical practitioners who perform personal medical services".

The BMA's contention is that the term "perform" is too narrow and that there ought to be a specific reference to the "providing" of services, which is genuinely distinct. The distinction is recognised in the National Health Service (Primary Care) Act 1997. Part I of the Act consistently uses the word "provide" where reference is made to a pilot scheme agreement.

I drew the Minister's attention particularly to Section 11(1), where the distinction between "provide" and "perform" is clearly drawn. A provider is defined as a PMS contract holder; a performer is a, medical practitioner who performs personal medical services",

and who may or may not be the contract holder.

In Committee, the Minister suggested that the amendment was unnecessary and pointed out that the term "providers" included NHS trusts and PCTs. He also said that there are adequate mechanisms in place to regulate the performance of the providers.

The Minister's answer has not satisfied the BMA, which believes that the Minister has failed to address himself to the points that I made in Committee and again today. I hope that he will have had an opportunity to reflect further on those points since we last debated them and that he will now be able to give me a more encouraging answer. I beg to move.

Lord Hunt of Kings Heath

My Lords, I have, as the noble Earl requested, reflected on my response to the points he raised in Committee. However, reconsideration has not persuaded me to revise my approach. Perhaps I may spell out why that is.

The NHS Plan that we published set out our proposals for new mechanisms as part of a package of measures designed to protect patients and help doctors to deliver consistently high quality services. The arrangements are not just about GMS GPs or even other family health service providers. At present, health authority lists regulate only the work of principal FAS practitioners. Our proposals in the Bill are to extend health authority lists to cover practitioners or others who assist in the provision of Part 2 family health services. Clause 32 provides for that. We also propose in Clause 34 to extend health authority lists to cover those practitioners who work under Part 1 arrangements; that is, practitioners working in PMS and PDS.

As we know, the legal framework for PMS differs from that for GMS. Whereas in GMS there is a distinction between the principal GP and those doctors who assist him to deliver GMS, there is no such distinction in PMS. All doctors who work in PMS are performers. Therefore, we need only one list to regulate those doctors who perform personal medical services.

The provisions of the current clause apply to PMS performers—those doctors who deliver personal medical services to their patients. As the noble Earl suggested, the amendment would extend the services list to include PMS providers. Providers are the persons who contract with a health authority or a primary care trust to provide personal medical services. In the main, they are GP practices but they need not be. PMS may be provided by a primary care trust but only, I stress, in contract with its health authority and not with itself. It may be provided by a community trust or by a nurse-led provider organisation. Some of these are NHS bodies. We think it would be inappropriate for such organisations as NHS trusts and PCTs to be required to be included on health authority service lists.

As the noble Earl said, we need to regulate and performance manage PMS providers. But surely we already have such mechanisms and the ability to regulate providers and their performance to an extent which would, I suggest, meet the intention of the noble Earl and make this amendment unnecessary. For a start, the Secretary of State has to approve a pilot scheme. This can only follow a transparent local consultation exercise, which will test whether the potential provider and proposals for delivering the services command local support.

Similarly, the Secretary of State has to approve significant variations to the PMS contract. He also has the ability to initiate variations to the terms of a contract. Additionally, the commissioner has a role as regards its overall contract negotiation and performance management and functions. In the final resort, the Secretary of State has the right to terminate a pilot scheme. I can tell noble Lords that we intend to put in place similar arrangements and provisions for PMS/PDS under permanence.

Additionally, there would be an unintentional but unfortunate outcome if the amendment were to be adopted. Subsection (1) of Section 28DA of the 1977 Act limits the persons to be included in the services list to medical and dental practitioners. As a result of the interaction between that subsection and Section 28DA, PMS and PDS providers would be restricted to only practitioners. That, of course, cuts directly across the intentions and provisions in the primary care Act, which would be extremely regrettable.

Earl Howe

My Lords, I am grateful to the Minister for that very full reply. Perhaps some of us on these Benches suffer from finding this an extremely technical subject; indeed, it is very obstruse. Once again, I shall have to take the matter away and consider most carefully what the Minister said. However, I am grateful to the noble Lord for taking such trouble in answering the points that I made. I am still troubled because of the BMA's insistence that there is a real point at issue here. In the past, I have found the BMA a pretty reliable barometer of legal points. Nevertheless, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 and 27 not moved.]

Clause 35 [The Family Health Services Appeal Authority]

[Amendments Nos. 28 and 29 not moved.]

Clause 36 [Pilot schemes]:

[Amendments Nos. 30 and 31 not moved.]

7.45 p.m.

Clause 39 [Reviews of pilot schemes]:

Earl Howe moved Amendment No. 32:

Page 49, line 14, at end insert—

"(5) The review referred to in this section must include a review of—

1. (a) the impact of the pilot scheme on patient services;
2. (b) the cost effectiveness to the NHS of the pilot scheme; and
3. (c) the impact of the pilot scheme on retail competition.

(6) The relevant authority shall publish a report detailing the conclusions of each review under this section."

The noble Earl said: My Lords, when we reached the end of the Committee proceedings I was conscious that we had done less than full justice to some of the more detailed aspects of the provisions for LIPS pilots, which, although a relatively uncontentious element in the Bill, nevertheless points the NHS towards some uncharted waters. This amendment relates to an important aspect of those pilot schemes; namely, the need to review the way that they have operated in practice and to draw the appropriate lessons therefrom.

Clause 39 provides for a mandatory review of each pilot scheme within three years of its commencement date. That is a welcome provision. But the clause is largely silent about what form the review should take. It seems to me that the clause leaves it open to the Secretary of State to adopt a fairly narrow approach and assess a pilot scheme purely in terms of its effectiveness in delivering a dispensing service to patients. Of course, that would be an important aspect of any review, as would an assessment of how cost effective the pilot scheme had been for the NHS. However, there are surely wider dimensions that should also be taken into account. One of these is the effect that a pilot scheme may have had on retail competition.

However much we may welcome the idea of these pilot schemes in principle, the fact remains that they could interfere quite seriously in certain circumstances with commercial freedoms. For example, they could easily impair the commercial viability of village pharmacies. The closure of a village pharmacy as a result of the removal of a slice of its turnover by an LPS pilot would no doubt be felt acutely by the local community. Similarly, the whole concept of allowing exclusive arrangements to be established with a particular provider and the designation of priority neighbourhoods under Clause 38 means that, inevitably, other legitimate businesses will be debarred from setting up shop in that area for as long as the designation lasts.

The fact that there may be benefits flowing from an LPS pilot should not obscure the fact that it also has the potential to distort markets and inhibit normal business freedoms. My amendment is intended purely to probe the Minister's thinking. I am sure that he will tell me that the amendment is defective. I readily acknowledge that it really should contain the words "in particular" or "inter alia", if it is not to be read as excluding all other sorts of consideration from the scope of a review, apart from the three headings that are already listed. My main wish is to hear from the Minister that the review process will be a thorough and comprehensive one. It needs to look not simply at the NHS and at cost effectiveness in a narrow sense; it needs also to look at all the identifiable consequences of a pilot scheme.

It is also important that the conclusions of each and every review should be placed in the public domain. We have seen with NHS Direct what can happen when a pilot scheme is rolled out nationwide before its strengths and weaknesses have been properly evaluated. Lessons could, and should, have been learnt from the initial wave of NHS Direct. We are now living with the consequences of implementation being hurried.

Clause 39 specifies who must be allowed to feed in their views to the review process, but the list is a short one. It does not include any person outside the narrow loop of the health authority and the service provider. For example, there is no mention of patients, of businesses or of ordinary members of the public. It would be helpful to have some reassurance from the Minister that there is no intention to exclude the views of interested parties from the evidence that is collated. I beg to move.

Lord Hunt of Kings Heath

My Lords, I am most grateful to the noble Earl, Lord Howe, for allowing us to debate a little more fully tonight the parts of the Bill that relate to local pharmaceutical services. I believe that they are most important parts of the Bill, and that the potential of community pharmacists to offer more services to the public is at least near to being realised. Over the past 20 years, community pharmacists as a profession have argued long and hard that there is more that they could do to serve the public. It seems to me that that message is hitting home.

The noble Earl mentioned NHS Direct. There are currently pilot schemes in place through which people can be referred to a community pharmacist in cases where that advice would be appropriate. I believe that those pilots have shown encouraging results and will be applied nationally within a fairly short period of time. They will send a powerful message to the public about the role and value of the advice and services which pharmacists can provide. Local pharmaceutical services underpin all of that. They enable local contracts to be developed, which will act as an incentive for community pharmacies to offer a greater quality and range of services which undoubtedly will be in the interests of the public.

I very much agree with the noble Earl that thoroughly reviewing and evaluating pilot schemes is of great importance. I assure him that we intend to put in place an overall evaluation programme, blending both national and local elements, to ensure that we learn as much as we can about how LPS can best be used to improve services for local people. Reviews of individual schemes will form a key part of that overall programme as well as providing an opportunity to take stock of each scheme.

Naturally I fully accept that those reviews will need to be thorough. However, although I agree with the noble Earl about the importance of thoroughness, I am not convinced that primary legislation is the best place for a list of the topics to be covered. The words we already have in the clause are taken directly from the existing provision for personal medical and dental services in the 1997 Act. They deliberately provide flexibility so that the procedure can be determined in the light of experience rather than having to operate within a predetermined format.

I do not need to point out to the noble Earl the risk of including too much detail in primary legislation. As ever, once you start to list things, you leave out other important issues which ought to be considered. The amendment mentions the impact on patient services, for example, but not the impact on patient health. It mentions cost-effectiveness for the National Health Service, but not accessibility for patients, although, of course, I understand that it is a probing amendment.

I turn to the issue of the impact of LPS on the retail market and on the businesses of community pharmacists. The noble Earl mentioned rural pharmacists in particular. I expect that patient services reviews of LPS schemes will have to take into account the retail market, to the extent that it is relevant to the provision of health and healthcare—through the availability of over-the-counter medicines, for example.

However, I do not think that it would be appropriate for reviews of individual pilot schemes to attempt a detailed analysis of changes in retail competition more generally. The Secretary of State's prime concern must surely be with the services available for NHS patients, but clearly if the retail environment has an impact on that it will have to be considered.

Of course I recognise the commercial environment in which community pharmacists have to operate. In the NHS pharmacy plan we have sought to steer a careful balance between seeking to ensure that the integrity of community pharmacies is maintained—for the very reasons the noble Earl, Lord Howe, has suggested—and introducing innovation. The retail environment is tough and competitive for retail pharmacies. That is not a matter for government, but it is my firm belief that those community pharmacists who respond positively to the enormous opportunities available to increase their services have nothing to fear either from the pharmacy plan or from the LPS pilots. Having said that, I hope that the noble Earl will accept that we are committed to a proper evaluation of the pilots and that we take on board the points he has made.

Earl Howe

My Lords, I thank the Minister for that helpful reply. I agree with him that pharmacists are an under-utilised resource in primary care. The development that the Government propose is thoroughly welcome.

As regards the reviews of the pilot schemes, I applaud the fact that the review process will be thorough. As the Minister indicated, it will also be a cumulative process in the sense that lessons will be learned from each review and applied more widely. I regret that the Minister could not have said a little more about the transparency of the review process although I dare say that that omission was not deliberate. I understand that the review process cannot be defined in any detail in advance. There will be an element of "suck it and see".

Lord Hunt of Kings Heath

My Lords, I apologise to the noble Earl for not addressing the issue of publication. I do not think that it is appropriate to dot the "i"s and cross the "t"s at this stage. We shall want to disseminate the lessons learned from pilots. We shall want to share good practice and learn from what works and what does not. However, it would be premature at this stage to decide whether we should publish in full the detail of every individual review, some of which, as the noble Earl implied, may be commercially sensitive or relate to individual pharmacies. However, as the noble Earl said, this is a continuing process and we are committed to ensuring that lessons are learned as quickly as possible in order to inform other LPS pilots.

Earl Howe

My Lords, that is a helpful intervention for which I am grateful. It is useful to be given those reassurances. I recognise the deficiencies in any list system. The Minister is right to say that the amendment is probing only. However, I am glad that there is no intention on the Government's part to establish narrow terms of reference for each review that might exclude certain kinds of consideration a priori. That does not appear to be the case in any way. This has been a helpful albeit short debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 [NHS contracts]:

Earl Howe moved Amendment No. 33: Leave out Clause 41.

The noble Earl said: My Lords, I have tabled this amendment once again as a means of probing the Minister on a number of issues relating to LPS pilots. My first question is a simple one and relates to the total sum available to implement LPS pilots. How will that sum be distributed? What order of money will it comprise? Can the resources provided from the central health service budget be augmented in any way at local level? If so, what discretion will health authorities have to do that?

In the Explanatory Notes to Clause 41 there is the interesting statement in paragraph 201 that, NHS contracts are not normally enforceable in the Courts". I am sure that there is a good reason for that and it is obviously something that has persisted for many years. Nevertheless, it raises all kinds of questions when one looks at the matter from the point of view of, let us say, a company that wishes to enter a pilot scheme. A company entering a pilot scheme will usually find that it needs to invest substantial capital in terms of premises, facilities and people to deliver the pharmaceutical services that the NHS requires. However, in order to do that it will have to go through a number of hoops, or at least that is certainly one of the options. The hoop that I am particularly thinking of is that of turning itself into a health service body for the purposes of the scheme. As the Explanatory Notes explain, the contract that it enters will not be a legally binding contract in the normally accepted sense of the term. It will be an arrangement with the Secretary of State as defined in the 1990 legislation.

If I were standing in the shoes of a pharmacist contemplating making such an arrangement, I would stop to reflect. If I am aware that the contract on offer cannot be legally enforced, and if, furthermore, as we see from Clause 40, it is a contract that can be brought to an end at the behest of the Secretary of State acting alone, I should seriously question the wisdom of going any further. The Minister does not need reminding that one of the main hurdles which had to be jumped with regard to the PFI was the need to give the private sector the confidence that any contract into which it entered with an NHS trust could be treated as a contract with the Secretary of State; and that the Secretary of State would be strictly bound by law by that contract. In the absence of such an assurance, the PFI would not have got off the ground.

I cannot help being worried that LPS pilots may stumble at that same hurdle. What confidence can a pharmacist have when investing his capital that the Secretary of State will not revoke the contract at some unspecified date in the future, leaving him high and dry? Without cancellation penalties built into the contract, the whole arrangement looks extremely one sided in terms of risk taking. All the risk lies with the private sector operator. But even cancellation penalties would be of little use because, as the Explanatory Notes make clear, the provisions of the contract cannot be enforced in the courts.

Can the Minister shed some light on these issues? We all want LPS pilots to be given the fairest possible wind. But can the noble Lord say what reassurance a private sector provider of pharmaceutical services will ultimately have that the arrangement he enters into will not be revoked prematurely, and will have what he would regard as a first-class covenant at the other end of it? I beg to move.

8 p.m.

Lord Hunt of Kings Heath

My Lords, I hope that I can reassure the noble Earl. Perhaps I may refer, first, to the global sum. The details have not been fully worked out so I cannot give the noble Earl details. However, we would expect that moneys from the global sum would be used for the funding of local pharmaceutical services. That is entirely appropriate because, under LPS schemes agreed, where there will be dispensing, it is entirely appropriate that the remuneration of community pharmacists should come from that sum. Equally, I fully accept that there may well be LPS schemes where services are being developed and some of the funding will come out of health authorities' own budgets. I cannot go into further details but we expect to see some flexibility here.

The noble Earl raised the concept of the NHS contract. I think that he should turn to his noble friend behind him, who was largely responsible for this concept. It is a technical term covering arrangements between health service bodies. It was originally designed for contracts between health authorities and NHS trusts within the internal market, although since then the use of NHS contracts has been extended to other circumstances, including personal medical service pilots. The contracts which NHS bodies make with other people, and the employment contracts of their staff, are legal contracts in the normal way.

Having given that background in reassuring the noble Earl, I must stress that the LPS is an entirely voluntary system. The clause sets out a system which is entirely voluntary. Nothing in the Bill requires participants in local pharmaceutical services pilot schemes to apply to become health service bodies. It gives them that option. The effect of becoming a Health service body is that providers will be able to base their arrangements with health authorities on an NHS contract rather than on an ordinary legal contract. That means that in—it is to be hoped they will be rare—cases of dispute the issues will be put for resolution to the Secretary of State or the National Assembly for Wales rather than being fought out in the courts. This should be a help to some of the small community pharmacists to whom the noble Earl referred in our previous debate. It could avoid costly and time-consuming legal proceedings although the outcome of the dispute resolution process will be enforceable by the courts.

I fully accept that this option may not appeal to all potential participants in pilot schemes. That is why it is voluntary. But others may prefer the less legalistic option offered by an NHS contract. It is perhaps worth bearing in mind that pharmacists at present do not have a legal contract with the NHS. Instead, they sign up to a statutory scheme of terms of service and remuneration. The use of NHS contracts is already common for personal medical services and there does not seem any reason why we should deny participants in LPS the same choice. Of course, because the option is voluntary, it seems to me that it provides the safeguards the noble Earl requires.

Baroness Noakes

My Lords, before the Minister sits down, as my name has been blackened as the architect of NHS contracts, which I freely admit, it is as well to put it in the context of designing the reforms of the early 1990s. At that stage, we contemplated only arrangements between different parts of the NHS. By making them have no legal effect, we avoided significant costs, time, and the unnecessary diversion of energy in resorting to legal process for what were to be wholly internal matters.

I think that that underlines the point raised by the noble Earl. That concept was designed for wholly intra-NHS arrangements. It was not contemplated that it would be used outside that area. I share the concerns expressed by my noble friend Lord Howe that those from the commercial sector will not wish to enter into contracts which are not real contracts, and put themselves at the mercy of the Secretary of State rather than the due legal process.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Baroness for that helpful explanation. All I say is that this option is voluntary. If commercial organisations do not wish to take advantage of it they are completely free not to do so. But some community pharmacists may wish to do so. I think that we should give them the option.

Earl Howe

My Lords, it has been a useful exchange. I am grateful to my noble friend for her contribution.

The Minister is right that the option is voluntary. However, I do not believe that we should do anything to put people off. There are advantages to the private sector operator of becoming a health service body. I should have thought that there were also advantages for the NHS in having private sector operators opt for that route. It would be unfortunate if this feature of the scheme discouraged them.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Earl for allowing me to respond. It is not intended in any way to inhibit LPS schemes. If a commercial operator wishes to go down the route of a normal legal contract, he will be able to do so. But we are offering greater flexibility. I can envisage circumstances in which the local small rural community pharmacist might think that the NHS contract would be a better option for him or her.

Earl Howe

My Lords, again, I am grateful to the Minister. He did not comment on the provisions relating to termination of contract. I find it somewhat unsettling that the Secretary of State acting alone could bring contracts to an end. I hope that there might be provision, at least in legally enforceable contracts, for a cancellation penalty or perhaps even a guaranteed return ticket for the operators, enabling them to provide Part 2 services under the 1977 Act once the pilot is at an end. I should like some reassurance that they will not be left stranded.

Those matters will need to be worked out. I am sure that there is still some work to do in that regard. I am grateful to the Minister for what he has said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Burlison

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

Moved accordingly, and, on Question, Motion agreed to.