Health and Social Care Bill

HL Deb 26 April 2001 vol 625 cc339-418

4.35 p.m.

Lord Hunt of Kings Heath

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

Schedule 3 [LPS Schemes]:

[Amendments Nos. 34 and 35 not moved.]

Clause 53 [Care Trusts where voluntary partnership arrangements]:

Lord Clement-Jones moved Amendment No. 36: Page 57, line 20, at end insert ", and such designation shall require the Care Trust to exercise any prescribed health-related functions of the local authority to which the application relates in the manner set out in the application

The noble Lord said: My Lords, in moving Amendment No. 36, I shall speak also to Amendments Nos. 37 and 38. I shall not be speaking to Amendment No. 40 which I would like to degroup, speak to and move after this group of amendments.

When dealing with this group of amendments, I want to emphasise from the outset that on these Benches we broadly welcome voluntary care trusts being set up under Clause 53. Our amendments are about the governance of care trusts along with many other organisations such as the Local Government Association and voluntary organisations. We believe that care trusts properly constituted to reflect their joint nature between the NHS and local government could add to the existing Health Act 1999 flexibilities and create another option for developing and delivering integrated services.

However, the accountability arrangements for these organisations remain an area of major concern. The discussion of these matters in Committee raised a number of issues, particularly of the selection of elected representatives on to care trust boards and the accountability arrangements for the delegated services.

Amendment No. 36 makes clear that the care trust will be required to operate within clearly specified boundaries agreed by both the local authority and the NHS body. At the moment the proposals for care trusts are set out in very broad terms and do not make clear how these organisations will build on the strengths and different approaches of both partners. It will be important to ensure that when a care trust is established there is a clear understanding of the parameters under which its parent organisation will expect it to operate.

That should include clear agreement from the outset about the local authority policies and statutory duties that the care trust will be expected to follow; for example, will the duty of best value continue to apply to local authority services provided by a care trust? Of course it should. Therefore, arrangements need to be in place to ensure that the care trust will implement the outcome of a best value review.

With regard to Amendment No. 37, voluntary care trust arrangements will involve local authorities delegating part of their functions to another body. However, as we understand the intention, the local authority will remain ultimately responsible for those functions and for ensuring their proper discharge. That means that it is essential that the lines of accountability for these functions are properly represented in the structures and governance of care trusts. The special role of councillors as members of both the care trust board and of the parent authority needs to be particularly carefully addressed.

Local authorities should have the option to devise locally agreed accountability arrangements for any delegated functions within an agreed national framework. However, all local arrangements must involve the care trust board being clearly accountable to the local authority for the delegated functions, just as board members will have accountability to the Secretary of State for the NHS functions.

The issues covered by these amendments need to be fully addressed in the detailed work on regulations and guidance, but it is important that the principles underpinning these concerns are recognised during the passage of the Bill. On these Benches we are seeking clear reassurances that, first, arrangements for accountability are recognised as a centrally important issue; secondly, that care trusts will have an accountability to both parent organisations for any functions they are delegated; and, thirdly, that very careful consideration will be given during the preparation of regulations and guidance as to how those accountabilities shape the role of elected members on care trust boards.

Finally, as regards Amendment No. 38, if care trusts are to be genuinely joint bodies and a partnership of equals, the board of the care trust must have strong local government representation. Governance arrangements must reflect the different status of elected members, with their dual accountability to the local authority and to the Secretary of State for Health as corporate members of the care trust board.

The selection of these members is equally critical. Elected members have already been through a process of democratic selection and must therefore he appointed by the local authority to the board, subject only to the minimum of the Independent Appointments Commission probity checks. I beg to move.

Earl Howe

My Lords, I rise to support the noble Lord, Lord Clement-Jones, in this group of amendments, especially Amendment No. 37. I shall be surprised if the Minister, with his knowledge of both the health service and local government, does not understand the anxiety that currently exists, particularly in local government circles, about the proposals for care trusts and their governance arrangements. In Committee, the Minister went to great lengths to stress that care trusts would be a partnership of equals. However, I have considerable fears that it may not work out like that in practice.

From the point of view of local authorities, we are looking at a weakening of the chain of democratic accountability and the removal from them of hands-on responsibility for social care services. At the same time, the local authority would be expected to delegate a large slice of its income and assets to a body over which it had no direct control. It is hard for me to see why that combination of features should appeal to a local authority. Certainly, I wonder how many will regard the advantages of moving to care trust status as being more compelling than the advantages associated with other types of partnership arrangement.

As we established in Committee, a care trust remains in legal terms a PCT or an NHS trust. To talk about local government retaining accountability for social services is, if we are honest about it, moonshine. The accountability of a PCT or an NHS trust is to the Secretary of State. That situation will not and cannot change when it becomes a care trust. To that the Minister may well say that local councillors will serve on the boards of care trusts. But the councillors appointed to care trust boards will not be there strictly as representatives of their council. They will be there as appointees of the new NHS national appointments body. That, I suggest, is an ambiguous position for them to be in because, as NHS appointees, they, too, no less than any other board member, will be obliged to look to the Secretary of State as the person ultimately answerable for what the trust does.

Where does that leave local authorities? If they really are to remain ultimately accountable for the services they have delegated, I suggest that that is an invidious position for them. In effect, they will have the responsibility for the services without the influence to go with it. I wonder where that will leave the voluntary sector, which currently works so closely with local government. That relationship, which depends on a shared understanding and approach to the delivery of care, could well be jeopardised once the care trust assumes the responsibility for that delivery. I do not think we can take it at all as read that a voluntary body will be able to slot into the culture and processes of care trusts, which are bound to take their lead from the culture and processes of the NHS.

These are large and substantive issues. I can see the Minister thinks that I am off-beam. I look forward to hearing what he has to say on this point. We all want to see the NHS and local government working more closely together. That is not what the debate is about. But it begs the question whether this form of collaboration has much to recommend it.

4.45 p.m.

Baroness Carnegy of Lour

My Lords, I should like to amplify a little on what my noble friend Lord Howe said because he has raised a genuine problem which the Government must consider. Although I support the spirit of what the noble Lord, Lord Clement-Jones, is trying to achieve, I am not quite sure whether putting the amendments on the face of the Bill will solve the problem.

A willing partnership will be difficult enough for local government, with its accountability to its electors. But an unwilling partnership will be even more difficult. One can think of numerous occasions when there will be a conflict of interest. The local government representatives may well say that they have consulted on the matter with their councillor colleagues back at the shop and they do not like the idea at all. What will happen then? Will nothing happen, or will the NHS representatives prevail because of the ultimate accountability to the Secretary of State? There could be real trouble. These are not party political points at all. They are pragmatic points about the difference between being an elected councillor and someone appointed by the Secretary of State.

On the question of equitable numbers, I wonder whether the noble Lord, Lord Clement-Jones, can tell us what he means by that. We need to be clear if we are to support him. Does he mean numbers in proportion to the responsibilities of the local authority and what proportion they add up to in relation to the National Health Service responsibilities; or does he mean 50:50? I do not think that that will go down very well with the elected members if it is not seen by them to reflect the extent of their accountability. Unless something can be done about it, I do not like the feeling of what it will be like to be in the shoes of local government representatives in those circumstances. But I do not quite see what can be done.

I wonder whether these forced partnerships are a viable proposition. I know that the noble Lord is seeking to make them better. Local government councillors feel very strongly about this issue. They have written to us to say so.

Baroness Barker

My Lords, I wish to support my noble friend Lord Clement-Jones on this series of amendments and to raise one or two new issues and one or two on which we touched during previous debates. One of my main reasons for wishing to do so is the lead story yesterday in the Guardian. It came as a big surprise to some of us to see the proposals coming down the line for PCTs and regional health authorities. By the response that the Minister gave to the noble Earl, Lord Howe, on Tuesday, I take it that it might have been something of a surprise to him as well. That leads me conveniently to a question—

Lord Hunt of Kings Heath

My Lords, if the noble Baroness reads carefully in Hansard what I said on that very issue, she will see that I pointed out to the noble Earl that there had been a continual process of reducing the number of health authorities and that that would have to be taken into account if one wanted to make the patient council, which is at the level of the health authority, the prime body to take account of the public interest. Unfortunately, it was far too subtle for the House to understand what I was saying.

Baroness Barker

My Lords, I thank the noble Lord for his remarks about our subtlety and for that clarification. I shall read again with greater care what he said on Tuesday. However, I do not think that I am entirely wrong in my view.

The issue I want to raise has been lurking throughout our debates. Given that Section 31 partnerships exist and, as the Minister said during our discussions in Committee, are beginning to work well, why is this legislation necessary? Why are care trusts necessary? I raise that question in the context of the article printed yesterday because those of us who study these matters closely are asking a further legitimate question here: if these structures are not necessary now, why are they being put in place and what is coming down the line that we do not yet know about—although perhaps the Guardian does?

I shall put forward a second reason for supporting and promoting these amendments—the National Service Framework for Older People. The Minister knows only too well how anxious I was to be able to read that document. It was a most enjoyable read over the Easter holiday. As I said during our debates in Committee, a substantial feeling persists that what is in this Bill represents a significant shift in emphasis from social care to healthcare. Although the National Service Framework for Older People, seeks to produce a service framework for both medical and social care, it is a heavily medical document. I am sure that the Minister will respond by using his favourite word: balance. I anticipate that he may say that fairer sister care services may well redress the balance here. However, in Committee we discussed the fact that the Government's health and social care programme is a jigsaw and only piece by piece is the picture being made known. At the moment, there appears to be a very considerable shift towards a medical model of old age. That is why some of us are particularly interested in the tight question of governance arrangements.

To put this in a slightly different way, a great many people quite rightly believe that we should take a holistic view of health. When such a view is taken, issues such as housing and transport become extremely important. Concerns have been expressed that, as we move more and more towards care trusts based in medical establishments, the more we shall move away from the expertise which already exists in local government of taking a holistic approach to health issues. It is with those concerns in mind that the amendments have been tabled.

Perhaps I may respond to the point made by the noble Baroness, Lady Carnegy of Lour. She is quite correct to point out that the English is perhaps not absolutely right. What we mean is that we seek here a 50/50 split because we regard that as a fair distribution in terms of governance and responsibility. That may not reflect the distribution of work in terms of what a care trust will have to do, but in terms of strict responsibility it seems to me that that is the basis on which partnerships should be built. I therefore support the amendments.

Lord Hunt of Kings Heath

My Lords, this has been an interesting debate, but I was a little disappointed by some of the negative remarks that have been made about a move that I believe to be enormously progressive and one that will undoubtedly help the developing partnership between the NHS and local government. It is worth making the point that the Health Act partnership arrangements themselves were a good step down the road towards real partnership. We believe that care trusts will enable a corporate board to take charge of these activities, albeit that they will be duly accountable both to the Secretary of State and to the local authority. That is a way of ensuring good leadership, ownership and the capability to drive forward many of these partnership arrangements.

Although the noble Earl, Lord Howe, made what I might call an uncharacteristically bleak analysis of care trusts, the significant fact is that already we have received 20 expressions of interest. He will recall the remarks made by my noble friend Lord Smith, who is the leader of a local authority, putting forward the reasons why local authorities are enthusiastic about taking part in the development of care trusts.

However, I wish to make it clear that the clause before us is not concerned only with ensuring that social services are brought into an NHS orbit. That is not what this is about; it concerns equally the drive to bring the influence of social services into the National Health Service. To that end, I say to the noble Baroness, Lady Barker, that it is not a back-door attempt, as I think she implied, to submerge a social model with a medical care model. This is a genuine partnership.

One way in which we shall ensure that that is what happens was the decision reached by the newly installed chief executive of the National Health Service. That ensures that the boundaries of social services inspectorate regional offices are brought together with the regional offices of the NHS Executive to allow the Executive to benefit from the experience of social services officers at a senior level.

So far as concerns the issue of the voluntary sector, perhaps I may say to the noble Earl, Lord Howe, that I believe that if he had raised that matter some 10 to 15 years ago, I would have understood why he had done so. At that stage, aside from the enormous amount of voluntary activity that takes place-within the NHS, relationships with voluntary organisations were under-developed. However, since then we have seen a great deal of development in this area. Health authorities are thoroughly used to working with and relating to voluntary organisations. I have no doubt whatever that care trusts in particular will put in place mechanisms that will ensure that voluntary organisations are fully involved and taken on board. I have no hesitation in saying that.

I should like to make a final point before I turn to the detail of the amendments. I stress that these are voluntary partnerships. Other than the directed partnerships, which we shall address in later amendments, they will come about only when local authorities and the NHS wish them to do so. I believe that a voluntary partnership means that consent will be gladly given both by a local authority and by the NHS. Surely those partners will not give their consent and support to a care trust unless it can help them to deliver better services.

I agree absolutely that the key to securing confidence will be local agreement on the governance and accountability arrangements for the care trust. It would be hard for me to disagree with what was said by the noble Lord, Lord Clement-Jones, in his introduction to this debate. Of course complex issues are involved here, but we are working closely with the LGA and other stakeholders on the details and we wish to continue to work with them to develop the guidance and the regulations that will be needed to flesh out the provisions of the Bill.

I have already said—indeed, other noble Lords have remarked on this—that the care trust will be accountable both to the Secretary of State for its health functions and to the local authority for the delivery of those local authority functions delegated to it. That has to be meaningful accountability and thus robust arrangements will need to be agreed between the local partners for the discharge of this accountability. Local agreements will need to cover the extent to which the care trust board can make policy decisions when, for example, it needs to seek the local authority's consent and how the ongoing performance monitoring arrangements will be handled. Some decisions will remain with the local authority, such as charging policy and local authority budget setting, and the care trust will need some way of feeding in its views on these issues to the authority.

Clearly the governance arrangements are crucial to securing the confidence of the local partners. It is acknowledged that care trusts will be health bodies, but local authorities will nominate members for the board. Those local authority-nominated members will be full board members of the care trust and, for that reason, will be subject to appropriate probity checks by the NHS Appointments Commission. If a nominee fails those checks, the local authority will be expected to put forward an alternative candidate.

The question of numbers was originally raised by the noble Lord, Lord Clement-Jones, and I took to heart the point raised by the noble Baroness, Lady Carnegy. The number of local authority nominees on a care trust board should reflect the services that the care trust will deliver. This will be for local agreement. We want to see arrangements developed that match the needs of the organisation and the local community. We are not looking for a "one size fits all" care trust; we are looking for a framework within which local partners can agree and propose locally negotiated arrangements, with the numbers of non-executive and executive officers being determined within the context of that framework.

Many of these matters are, of course, detailed and complex. I believe that they are best dealt with in regulations and directions. Much will be for local agreement, and, of course, we have a great deal of experience from the 45 partnerships already in existence.

The overriding principle is clear within the legislation. Care trusts will be voluntary partnerships and will simply not go ahead unless accountability and governance arrangements are right. Where it is right, I believe that care trusts, with the corporate leadership that they will be able to give, will make an impressive impact on the development of partnerships in the future.

It is worth while restating what I have said at every stage during the progress of the Bill: the relationship between the NHS and local government has improved enormously in recent years. The development of care trusts is surely a visible indication of our confidence in ensuring that that partnership goes further still.

5 p.m.

Lord Clement-Jones

My Lords, I thank the Minister for that very up-beat presentation. I introduced the amendments in a positive spirit, and I must confess that I feel rather more positive about the approach to governance than I did before the Minister stood up. The detailed assurances that we on these Benches anticipated are not quite there in their full glory, but there is quite a lot in what the Minister said.

The Minister gave assurances that this is not simply a way of imposing a medical care model to override a social care model; that it is a genuine partnership; and that there will be good working relationships with voluntary organisations and the voluntary sector. The Minister said that competence in the governance of care trusts will clearly be vital, and gave an assurance that on-going work is taking place with the LG.A and other stakeholders in terms of ensuring that there is meaningful accountability. He gave assurances about the robust arrangements for when decisions can be made by the care trust itself and when the consent of the partner bodies will be needed. In particular, his assurance about charging policy remaining with the local authority is very valuable.

As to the way in which nominations are made and the probity checks by the appointments commission, I very much hope that the Minister was saying that it is the intention that the local authority will nominate the members it believes to be appropriate and that the appointments commission will vet them purely as probity checks; that there will not be an issue of rejection on any ground other than probity.

What the Minister said about the number of local authority nominees was valuable. He said that this is not a "one size fits all" issue but is very much a matter of negotiation. He also said, essentially, that the establishment of care trusts would not go ahead until the governance arrangements were right.

There was clearly a lot in what the Minister said. We shall examine the record very carefully to make sure that we do have the assurances that we feel are appropriate. If not, we shall return to this matter at a future stage of the Bill. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 37 and 38 not moved.]

[Amendment No. 39 had been withdrawn from the Marshalled List.]

[Amendment No. 40 not moved.]

Clause 54 [Care Trusts where directed partnership arrangements]:

Earl Howe moved Amendment No. 41: Page 59, line 14, leave out "is not exercising any of its functions adequately" and insert "has failed significantly in the exercise of any of its functions

The noble Earl said: My Lords, I do not believe that I was alone in being at least as disquieted by this clause following our Committee debates as I was before they began. For that reason, I rise to move Amendment No. 41 and to speak also to Amendments Nos. 42 and 42A.

In doing so, I return to the worries that I expressed in Committee about the language of this clause and the procedural looseness that it allows. I was grateful for the Minister's assurance on that occasion that there was no intention on his part or that of his ministerial colleagues to use the powers in this clause lightly or frequently. However, if that is to be so—as we sincerely trust it is—we are left, nevertheless, with some unanswered questions. Why does the wording of the clause specifically allow for, what I interpret as, a low threshold of failure as the entree to the exercise of the power?

Subsection (1)(a) repeats the wording in Clause 21, to which I drew the attention of the House on Tuesday. It states that one of the prior conditions for the use of the power of direction is that the relevant authority must be of the opinion that an NHS trust, a PCT or a local authority, is not exercising any of its functions adequately".

On the previous occasion, I challenged the Minister on the meaning of the word "adequately". He replied that, in his judgment, the word "inadequate" represented a fairly serious allegation and meant that services are failing. My view is that that interpretation is not self-evident. The kind of failure we are talking about could be no more than a difficulty over a single aspect of an individual service.

More tellingly though, the judgment of inadequacy need rest only on the subjective opinion of the Secretary of State which, as the clause stands, he does not have to justify to anyone. Once again, I return to a point I made earlier about intervention from Whitehall. Forced intervention from the centre is, by its nature, draconian. In this case it would constitute a direct interference not only in local NHS management but also in local democracy.

Ministers are right not to want to use such a power lightly. I question whether the power should be at their disposal in the first place. But, if it is, then, at the very least, let us be clear on the face of the Bill about the circumstances of its use. Let us say unequivocally that there must be significant failure in the way that services are being delivered; that those who may be affected by the exercise of the power of direction should have an opportunity to make their views known in advance and should be fully consulted. It should not be enough for a Secretary of State to rely on a one-sided view of a few departmental officials, however conscientious those officials may be.

I retain the vestige of a hope that the Minister will prefer the wording of my Amendment No. 41 to the wording contained in the Bill, not only for the reasons I have given but also because I believe that it more faithfully reflects what Ministers have said is their intention. I beg to move.

Lord Clement-Jones

My Lords, I rise, briefly, to support the amendments standing in the name of the noble Earl, Lord Howe. He has put the pertinent points very succinctly. I may well wish to develop the points he has made on clause stand part, but I certainly believe that these amendments, if agreed to, would be a major improvement to the clause, which is, by its very nature, unsatisfactory because of the compulsion inherent in it. If there was a threshold such as the one proposed by the noble Earl, that would have a major impact on improving it.

Baroness Carnegy of Lour

My Lords, we return to the point that the situation is different when one is dealing with people who have been elected. The clause is vaguely worded. The opinion of the Secretary of State will be just that—an opinion; that is stated on the face of the Bill. It needs to be clear what is causing the Secretary of State to punish elected people by making them change the way in which they are working. They will see it like that. I do not believe that the noble Lord has ever been an elected person. He may not realise quite how hot the blood is, how heated people become, when they are told what to do by other elected people, albeit members of the government of the day. That point should be taken to heart.

My concern is that this provision simply will not work. On occasions people will take a matter to court. What will the court do? It will have great difficulty in sorting this out. The wording proposed by my noble friend would make the matter clear and lay down the criteria. Was the body failing, or was it not? The Government ought to listen to this proposal. They do not seem to be listening at all during the passage of this Bill. This is one point that they might listen to.

Baroness Cumberlege

My Lords, I was interested in the Minister's earlier remarks on the whole question of care trusts: he said that they needed to be voluntary; there needed to be enormous commitment; there needed to be joint views on the culture of both organisations; and there had to be joint funding. For those marriages to work, there has to be a good deal of love between the two organisations. Here, the situation is completely different.

The Minister will know of the huge success of the PMS pilots. They have been successful because they were voluntary; people wanted to take part. We should learn lessons from that. As the Minister is aware, I have been in all tiers of the health service, and I have been an elected member of a local authority in all tiers. Indeed, some of my experiences brought some tears! I am very conscious of the fact that, as my noble friend said, it does not matter how conscientious Whitehall officials are, they are a long way away from the patch. Regional offices are quite a long way away from the patch. Health authorities can be somewhat remote—and given the Secretary of State's plans for merging health authorities, they will become even more remote. If these proposals go through, there will be an enormous opportunity for a great deal of rumour and misrepresentation of what is going on—with disastrous results.

I strongly support the views of my noble friends Lady Carnegy and Lord Howe on the question of democracy. The care trusts will not be operated on a shoestring; they will cost money. As a council tax payer, I vote for members of local government and I expect them to carry out to some extent the wishes I have expressed on the ballot paper. As a council tax payer, I may be landed with quite a large bill; and those wishes can then be overridden by some transient Secretary of State introducing proposals that I know my local councillors feel are unworkable. This is dangerous territory. I should like the Government at least to accept the amendments, or to consider some of this aspect of care trusts. But, as the noble Lord knows, I strongly support the principle of care trusts.

5.15 p.m.

Lord Hunt of Kings Heath

My Lords, this proposal takes us back in part to our debates on Clause 21. I want to make it clear that we are not talking about a low threshold of failure; nor would there be any intent to use this power lightly or frequently.

The noble Baroness, Lady Carnegy, was a little unfair when she said that the Government had not been listening throughout the stages of the Bill either in this House or in another place. Judging by the number of amendments that have been made to the Bill, we have done a great deal of listening.

Baroness Carnegy of Lour

My Lords, I note that after all the discussion we have had the Marshalled List does not contain a single government amendment.

Lord Hunt of Kings Heath

My Lords, usually one is applauded for not bringing government amendments to this House. Having brought forward about 150 during the passage of the previous NHS Bill, I should have thought that your Lordships might commend me on not doing so now. There has been a good deal of discussion between noble Lords. In Committee there were at least two amendments moved by the noble Lord, Lord Clement-Jones, and the noble Lord, Lord Rix, which the Government were happy to accept. I believe that we have shown flexibility.

On the point made by the noble Baroness, Lady Cumberlege, of course, love is a factor in the voluntary care trust and partnership arrangements. I agree that they will work best when people really want them to happen and want to make them work. However, it is important that there is what may be described as a reserve power for situations where partnership arrangements are not working well and where the sufferers are the people who are receiving those services.

The question is what we mean by "inadequate". "Inadequate" means that services are failing. Such failure will be identified through the normal mechanisms that we already have in place to identify this: inspections, reviews, joint reviews, as well as the normal monitoring and performance management processes in local government and in the NHS. We have in place agreements about how to act when an inspection or a review has identified weaknesses in services. Once the view of the inspection report has been confirmed, an action plan is agreed, and then appropriate monitoring processes are put in place which can measure whether improvements are being made. If they are not, in the case of social services a direction can be made on an authority, identifying the statutory duties to be met. In the case of the NHS, although the trigger mechanisms may be different, the response—the production of a recovery plan—is similar.

The Bill provides, in what I believe will be infrequent cases, a separate opportunity to try to put right problems where there are shortcomings because there is a failure to make partnership work. Perhaps I may give examples of the kind of situations in which the Secretary of State might consider using this power. It will be considered, first, where inspection of a local authority has demonstrated an inadequate service with very poor responses to requests for assessment; where there is a poor link between cost and the quality of services commissioned; where case files indicate a lack of good communication or agreement reached with the user; where there is little or no risk assessment of people being maintained in the community; where there is a lack of choice in services and an inappropriate use of residential services. This could lead to a directed partnership of integrated provision and lead commissioning.

Another example might be in relation to the NHS, where there has been continuing failure by an NHS trust to develop appropriate services for client groups, which leads to poor access, limited user availability, poor quality in terms of waiting times and standards of services. Another example might be services which are at the interface between health and social care and where separate funding for the range of services constantly creates blockages in the system; so users might receive an unco-ordinated service and be either left at risk in their own home without sufficient support or be unable to be discharged from hospital. The situation might be resolved by having a pooled fund hosted by one of the agencies to ensure the appropriate flexibility.

I want to make it clear that we are not using the word "inadequate" lightly; nor do I believe that we should have a culture either in the NHS or in social services where the word "inadequate" is excused or is taken lightly. We should not have inadequate services.

I give the assurance again that the powers in this clause will not be used lightly or frequently. I see this as a power of last resort, to be used where delegating a function to another body would make a positive change and allow staff and management to start again on a new lease of life. Although noble Lords have used the example of a local authority having to delegate services into a directed partnership, I should stress that this applies as much to the NHS as it does to local government.

I turn to the amendments regarding the consultation arrangements. Of course I agree that that is a most important point. If we are to achieve the kinds of benefits that can deliver for service users, it is obvious that we need robust and inclusive consultation arrangements. In fact, I suggest that that is particularly important where we are talking about services that have been shown to be inadequate. I should like to assure noble Lords that consultation arrangements will be developed that provide an opportunity for all stakeholders to take part in such proposals.

Where services are clearly failing, action might have to be taken swiftly, but that must not be at the expense of proper consultation. However, in those circumstances, it might have to be streamlined. I expect the number and range of stakeholders with an interest in care trusts to be significant. In addition to statutory and voluntary bodies, patients' councils and patients' forums, we must also listen to the views of healthcare professionals, social care professionals, employees, carers, patients and other providers. In the Bill, we have put in place a regulatory power that will cover a number of issues, ensuring that there is flexibility in the way that such matters are managed in response to local situations, and allowing regulations and guidance to be both specific and illustrative.

In conclusion, I should point out that we are very keen on the voluntary approach, which will apply to most of the Government's care trust partnership arrangements. Such a power will be a measure of last resort in relation to a directed partnership. However, it is important for us to have this as a reserve power. At the end of the day, I believe that the word "inadequate" is sufficient for our purposes.

Earl Howe

My Lords, I thank the Minister for his well-considered reply. I am also grateful to all noble Lords who have taken part in this short debate. The Minister reiterated his undertakings that these powers will not be used lightly. Obviously, that is welcome news. However, we differ over the semantics and the interpretation of the language. The noble Lord said that "inadequate" meant that services are failing, but he did not say to what extent and for how long. He quoted some helpful examples of what he envisaged in this context, but it seems to me that there is too much latitude for a future Secretary of State to interpret the wording as he or she might wish. I am disappointed that I have not persuaded the Minister on that point.

However, on a brighter note, I turn to the issue of consultation. I am grateful to my noble friend Lady Cumberlege for her comments. I was also pleased to hear from the Minister that he understands the importance of consultation where there is any question of a directed partnership arrangement being considered. That is most welcome. We have had a useful exchange of views on these matters. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 42 and 42A not moved.]

Lord Clement-Jones moved Amendment No. 43: Leave out Clause 54.

The noble Lord said: My Lords, it is clear from our debates on this clause, both in Committee and today, that there are many misgivings about the circumstances in which a directed care trust may be formed. Despite the debates, we still do not know precisely what the conditions are under which the Secretary of State would make an intervention. On these Benches we believe most strongly that it is important for those who will try to make a success of care trusts to have a clear understanding of the position right from the beginning.

In Committee on 22nd March (at col. 1606 of the Official Report), the Minister talked of the power being an even-handed one. He said: This is an even-handed power. It is not simply a question of saying to local government, 'We want to take part of your service and put it into a care trust'". So this is very much an even-handed approach: one that recognises that, when there is a problem, there is very often a failure on both sides, but that, occasionally, it can be on one side. Those are very good sentiments.

The Minister indicated both today and in Committee that such powers will not be used extensively and that they are powers of last resort; in other words, that the clause is one tool in the general armoury which will be used sparingly. Indeed, the noble Lord also confirmed that he would not be using the word "inadequate" lightly. There are quite a few phrases in this context designed to give assurance.

Similarly, both in Committee and today, the Minister described when intervention would take place: when a care trust was not delivering to a particular client group, when agencies were not working together, and so on. He also gave a number of other illustrations in that respect and told us that all would be revealed through the performance management system. But why not put some of those elements in the Bill? Compulsion is clearly not ideal in any circumstances. Voluntary arrangements work best, while compulsory arrangements start off on completely the wrong footing. The noble Baroness, Lady Cumberlege, has been convincing to that effect throughout our debates. At the very least, we could have the exercise of a compulsory provision within very clear parameters.

At the end of the day, despite the reassurances given by the Minister, a great deal of the detail about exactly how care trusts will work and what powers and duties they will take over is still missing. It is extremely difficult to form a complete picture. How will this enforced relationship between health and social services work? What powers and duties will be involved? As currently constituted, the clause is enormously wide in its scope. Under its provisions, which delegate powers compulsorily, care trusts will exercise social services functions. One obvious example of the kind of function that they may take over as a result is that of setting discretionary charges for homecare services. That is an extraordinarily delicate matter; yet those issues will arise under a compulsory direction and the care trust may well be entitled to make far-reaching decisions in the area. Even more important is the extent to which the NHS and local government can effectively work together as a result of a direction coming down from on high. That puts the situation in even greater doubt.

In Committee, the Minister said: There is no suggestion whatsoever that this is about the taking over by the NHS of a local government service. It is about enhancing co-operation and partnership".—[Official Report, 22/3/01; col. 1607.] That may be so, but how can a good working relationship be built by compulsion? There is nothing in the clause that gives any assurance in that respect.

As I said in Committee, I am sure that we can all accept the Minister's good intentions; but the Bill is designed to last for a considerable period of time, beyond the span of a single Minister. In practical terms, and in principle, the clause is seriously flawed. It should not remain part of the Bill. I beg to move.

Earl Howe

My Lords, the noble Lord, Lord Clement-Jones, has put his finger on the weaknesses of this clause which are intrinsic and, in my view, ultimately irredeemable. How can you force two parties to co-operate when not only one or both of them are failing to perform their functions properly, but also when one or both are unwilling to be brought together? How can that possibly represent a recipe for success?

My noble friend Lady Noakes put it so well in Committee: if partnerships are to work at all, they need shared vision, a shared commitment and, above all, mutual trust. The noble Lord, Lord Clement-Jones, also made the same point. I have yet to hear from any Minister how the Government believe that success can spring from a situation where those prerequisites are known to be absent. If we allow the clause to remain in the Bill, we are, as my noble friend said, legislating for failure. We should not do so.

Curiously enough, it was the Government who saw the folly of trying to enforce partnership arrangements on the NHS and local authorities during the passage of the Health Act 1999. That legislation introduced the concept of "partnership" and the pooling of budgets. Ministers were quite clear then that there was no question of trying to dragoon anyone into entering such an arrangement. What has changed? We have not been informed.

In Committee I pointed out that there was an inherent contradiction in the Government's position on care trusts. We have been told that Ministers see care trusts as part of a system that they like to call "earned autonomy"; in other words, care trusts are seen as constituting a reward for behaviour of which Ministers approve. Yet at the same time in Clause 54 they are seen as constituting a punishment for behaviour of which Ministers do not approve. To my mind that absurdity blows the logic of this clause out of the water.

But apart from the logic, we need to remind ourselves of what the clause would lead to. Despite what the Minister said in Committee, it gives Ministers a power to interfere with local democracy. It is in effect a power to remove a function of a democratically elected local body, take control of part of that body's budget and allocate the money in a manner that directly conflicts with the wishes of the body concerned. It is not even as if the money being allocated in this way is Department of Health money; much of it will be money generated from council tax receipts locally. I find the whole idea of this intervention offensive. It is on a different scale altogether from the normal kind of policy guidance or direction-making that the NHS has experienced in the past. In other words, we are not talking about tweaking the balance between central direction and local autonomy in the way that the Minister and I have often debated. We are talking about a step change in government centralism. The Minister needs to answer that charge before he attempts to justify the clause in any practical sense. It is not just that the case for these powers has not been made; the case against them is overwhelming.

5.30 p.m.

Baroness Noakes

My Lords, the Minister described this measure as a reserve power in the event of partnerships not working. However, the measure appears to prescribe more partnerships. As my noble friend has just explained and as I said in Committee, partnerships work only when many pre-conditions are set. Almost by definition if one or more bodies are deemed to be failing and partnerships are not working, a successful partnership cannot exist. The clause prescribes a solution which has no relevance to the problems. There may well be problems in terms of how services work as between the NHS and local authorities, but the solution cannot be to prescribe more partnerships or to prescribe a care trust because neither of those solutions can possibly work in failure situations. The clause will simply be unworkable in practice.

Lord Hunt of Kings Heath

My Lords, I have listened with much interest to what has been said. Of course I agree that voluntary arrangements work best. That is the key thrust of what we are trying to do in the Bill, particularly in relation to care trusts. We want to provide opportunities for health and local government to do everything they can to improve their working relationships to ensure that integrated and high quality services are delivered to the public. However, for the sake of the public, where a partnership is not working and where the NHS and local government are not getting their act together, we must have a mechanism to enable us to do something about that. I believe that the clause allows us to do that effectively, but, as I said earlier, to do it as a last resort.

I also want to make clear that this is an even-handed power. It is not an attack on local government or social services; it is a power to direct the use of partnership arrangements. Indeed, the solution to failing services might be to direct the use of a pooled fund, to be hosted by a local authority. It might constitute some integrated provision commissioning led from a primary care trust or an NHS trust using a range of providers, but being able to bring together all the requirements of the local area, and commissioned from one point. Lead commissioning can be led by both local authorities and NHS bodies, just as the other partnership arrangements can be. There is no need for me to describe again what we mean by inadequate services and the way in which the power would be used. Even though we disagree on language, I hope that I have reassured noble Lords that the power would not be undertaken lightly.

I turn to the points raised by the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Howe, on the impact of care trusts on democratically elected local authorities. Care trusts have been only one of a number of intervention options that we have wanted to be available to us. We have not regarded them as the default mechanism; they have been one of the options for directed partnership arrangements.

I shall reflect on the points that have been made tonight on care trusts as opposed to other partnership arrangements. I am prepared to consider the merits of retaining the powers to require the use of Health Act flexibilities but without the ability to compel local authorities to take the next step and enter into a care trust. I propose to return at Third Reading with proposals that take account of some of the issues that have been raised tonight.

Lord Clement-Jones

My Lords, I believe that the Minister's reply contains a significant element of concession. When I read Hansard I may discover that it has a substantial element of concession. As regards compulsion relating only to Health Act flexibilities, I suspect that that could constitute a substantial change to the clause. We shall want to reflect on the points the Minister made in his helpful response. To restrict the compulsory powers to Health Act flexibilities would certainly limit the ambit of the clause in a helpful way and would make clear what is intended, as opposed to the current rather wide clause. It would make clear that the power is an option of last resort. We welcome the Minister's comments on the use of pooled funds, directed commissioning and so on. As I say, I shall consider what the Minister has said. Therefore, I do not propose to press the amendment. We shall consider the position carefully before Third Reading and perhaps have further discussions with the Minister on the subject. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 [Exclusion of nursing care from community care services]:

Earl Howe moved Amendment No. 44: Page 62, line 14, leave out ''by a registered nurse

The noble Earl said: My Lords, in moving Amendment No. 44, I wish to speak also to Amendment No. 46. We return to one of the key issues of contention in the Bill, the definition of nursing care as it applies to residents of nursing homes who will be eligible to receive such care free of charge on the NHS.

In response to the recommendations of the Royal Commission on Long-Term Care of the Elderly the Government made the announcement, which was widely welcomed, that they would end the anomaly under which nursing care for people in nursing homes is means tested when to people in hospitals and in any other setting it is provided free on the NHS. However, that welcome shared on all sides of the political spectrum turned to disappointment and concern in the light of the exceedingly narrow definition of nursing care that the Government intend to adopt.

The Government's proposals as set out in this clause mean that the only nursing care that will be funded free by the NHS in a nursing home will be either nursing care that is provided directly by a registered nurse or the time that a registered nurse spends in planning, delegating and supervising care. The worry that many of us have is that this definition will be both unfair and unworkable: unfair, because what counts to most right-thinking people as nursing for many frail and elderly patients will suddenly no longer count as such; and unworkable because it ignores the way in which nursing care is delivered to people in nursing homes. In practice, much essential care which can only reasonably be described as nursing care is delivered by healthcare assistants working under the supervision and delegation of a registered nurse.

The Bill would mean that nursing would no longer be defined in terms of the care given but of the care giver. I suggest that that approach will lead to consequences which by any standards are perverse. No registered nurse in a nursing home will wish to delegate a task to a healthcare assistant knowing that this will involve the patient paying for the care that he or she receives. Yet without such delegation life will become impossible. Nurses will be placed under huge pressure trying to allocate their time in a way that will do least financial damage. As I said in Committee, the effect will be to place a cap on the amount of nursing care that can be delivered—a cap based not on people's needs but on the availability of registered nurses.

In Committee, the Minister sought to assure us that it will not be like this. I hope that I paraphrase the noble Lord accurately. He said that once a person has been assessed as needing the care of a registered nurse, the NHS would arrange for the registered nursing input to be provided in the nursing home. Furthermore, there would be a contract between the NHS and the nursing home under which the level of nursing care received would be monitored. The Minister sought to stress that the definition of nursing needed to be clear-cut, as the Government have made it, because any other definitions leaves blurred edges. Indeed, he went so far as to say that the Government's definition is the only definition that will be capable of practical implementation.

The only problem with the Minister's position is that he is wrong on the practicalities. As he rightly said, the amount of nursing care that a person requires will be determined by a formal assessment. But the decision as to which of a patient's care needs must be provided by a registered nurse and which by other staff will depend often not on a clear-cut, tick-in-the-box approach but on a wide range of factors, including the overall skill mix of the team, the stability and predictability of the patient's condition and, not least, the patient's psychological and emotional state. Those can vary from day to day and even from hour to hour. What is important is that the patient's needs are adequately identified and met.

The Royal College of Nursing helpfully produced a number of case studies of real people to illustrate the difficulty of going down the Government's line. One concerns Mrs A, who is 74 years old and in the advanced stages of motor neurone disease. She has poor mobility and is fed through a tube. She is frequently mentally distressed and withdrawn. She cannot communicate by speaking. She finds decision making difficult. She is dependent on others to meet her hygiene needs. The RCN says that much of Mrs A's care, which is round the clock, is currently delivered by the team as a whole. It is extremely hard to distinguish the care which needs to be delivered by a registered nurse from the care which can safely and sensibly be delivered by a healthcare assistant acting alone. Many aspects of the care can be delivered by healthcare assistants, but only with supervisory assistance or under directed assistance from registered nurses.

The example of Mrs A is not unusual. Other case studies show that when a patient's condition varies daily, as many do, the key factor is whether in the particular circumstances of the day the registered nurse can have complete confidence that the healthcare assistant knows how to carry out the task in hand. The level of registered nursing input will vary. Ultimately, it is the registered nurse who is accountable not only for the care plans but also for all the care given, including that delivered by the healthcare assistant.

This is not a matter—as the Minister suggested in Committee—of opening the floodgates so as to make all personal care as well as nursing care free of charge in nursing homes. Nor, I believe, do the amendments I have tabled have that effect. Their purpose is to widen to a relatively modest extent the definition of nursing care in a way that will obviate the vast bulk of the practical difficulties to which I believe the Government's definition will give rise. They are intended to address the situation in the real world. Indeed, there has to be the blurring at the edges to which the Minister referred if we are to achieve something that is workable.

I agree with the Minister that this is a genuine debate involving difficult decisions. I agree that there is no perfect answer. I acknowledge to the noble Lord. Lord Lipsey, that there will be problems of definition wherever the line is eventually drawn. But the question is: what should come first? Should we base our approach on the way that nursing care is delivered to real individuals; or should we sign up to a definition that is essentially artificial in that it owes its origins to budgetary limitations in the Department of Health? I know which I choose. I beg to move.

5.45 p.m.

Baroness Barker

My Lords, I support the eloquent summary by the noble Earl of the many debates on the issue. I focus on two issues: first, why we need a definition of nursing care; and, secondly, why an amendment is needed to the clause.

In Committee, noble Lords pointed out that the clause as drafted merely removes the responsibility of the social services department to purchase from the NHS nursing care for people in nursing homes. The Minister did not like the amendment to buy nursing care moved by these Benches, saying, It does not define the care which the NHS will arrange as that is already provided for in the NHS Act 1977 which imposes on the Secretary of State a duty to provide health services including nursing". He continued: We shall set out in directions how the NHS would fulfil its duty in respect of nursing home residents". Tellingly, he said: The NHS has a duty to provide healthcare to any member of the public as is reasonably required".—[Official Report, 23/3/01: cols. 1644–47.] If there is already a requirement to provide nursing care, why is this clause needed?

Many noble Lords have concerns about how the provision will be implemented and the division of responsibilities between local authorities and the NHS. The whole debate is about trying to establish who is responsible for what in the long-term care of older people. The debate has to result in a definition that will enable individuals to know where they stand. Those in care trusts, in different parts of the NHS and in local authorities also need to understand fully what is and is not their responsibility.

If that clarity is not provided, many of the reforms in the Bill, such as those for intermediate care, which have been welcomed, will do nothing to overcome the problems that people currently experience. When an older person has a problem such as a stroke, there are four immediate questions to which they need an answer: What do I need? What sources of help are available? Where do I find them? What has to be paid for? Those are not new questions. The Royal Commission on Long-Term Care of the Elderly set out to answer them and the Bill is supposed to deal with them.

Throughout our debates we have returned time and again to the definition of nursing care. A definition is essential, not just for this part of the Bill, but for all the other structures that the Government are proposing. In another place, Mr Hutton, the Minister, asked who could define what is nursing care other than a nurse. The amendments would provide a definition of nursing care. I take the point made by the noble Earl, Lord Howe, about what is nursing and what is nursing care for older people. Much of nursing care in the medicine of old age is not high-tech, acute intervention, which is increasingly the focus of nurses and nurse practitioners. It is the repetition of well documented tasks that need to be performed over and over again. That is not personal care, but nursing care as we all understand it.

I have said in previous debates not only that we need a definition of nursing care, but that there will be one. Whether we provide it or the Law Lords provide it, there will eventually be a definition of nursing care. Clarity about what nursing care is will be vital not just for the care of older people, but to support many of the progressive policies elsewhere in the Bill and to make the partnerships that the Minister talked about work in innovative ways. I hope that your Lordships will support the amendments.

Baroness Masham of Ilton

My Lords, I shall speak to my Amendment No. 45, which is grouped with Amendments Nos. 44 and 46. Currently, although the National Health Service should provide services to residential care homes in the same way as it would to a person living in their own home, that is not always the case. The guidance for nursing homes specifies only that, specialist medical or nursing equipment should be provided and specifically states that incontinence supplies are not included and should be included in the fees of the nursing home. Thus there is an anomaly that incontinence pads, which are free in other settings, have to be paid for if the user is in a nursing home. That raises a number of issues about continence supplies.

If continence supplies are added to the general fee level of the home, residents who do not have any incontinence problems will have to meet the costs of those who do. Occasionally—although less frequently now—homes charge individuals separately, which can considerably increase the costs for those funding themselves. Local authorities are purchasing items that are provided by the National Health Service in other settings. It is not unknown for residents to be charged for their incontinence pads from their personal expenses allowance if they are funded by the local authority. Those in receipt of preserved rights in particular more frequently pay for their own incontinence pads using money for personal expenses. Because the nursing home does not purchase supplies for individuals, VAT is charged, whereas there is no longer VAT for those supplies in other settings. That extra cost is borne either by the local authority or by the individual resident.

Although incontinence pads are the most frequent example of equipment not supplied in nursing homes, Age Concern England has come across other equipment that has not been supplied by the National Health Service on the grounds that the nursing home should supply it as part of their general nursing responsibilities. That includes equipment such as special beds for pressure sores and feeding tubes. Age Concern England believes that any equipment that would normally be available via the National Health Service should be provided in all settings.

It is often the small things in life that cause the greatest concern and frustration to the individual. For the many people who have to contend with double incontinence, having an adequate supply of paper sheets and pads makes life easier for the individual and the carers and helps to prevent pressure sores. It is also cost-effective to the National Health Service in the long run.

I discussed the amendment with someone I met at a dinner yesterday, who said, "Lord Hunt should be understanding and helpful over this problem". I look forward to the Minister's reply. If it is not satisfactory, I shall bring Amendment No. 45 back on Third Reading.

Amendments Nos. 44 and 46, which are also in this group, are also very important. There will be confusion and fear in nursing homes, with staff not knowing who should do what to which patients.

Baroness McFarlane of Llandaff

My Lords, I support Amendments Nos. 44 and 46. I apologise to the House for the fact that, for personal reasons, I have not been present for the Bill's previous stages, but I have read the Hansard reports and noted the eloquence with which reservations about the Government's definition of nursing care have been made. After listening to the noble Earl, Lord Howe, today, I felt that there was no need for anyone to say anything more. However, I believe that the Government's definition of nursing care is too narrow by half. I adhere to the views expressed by the Royal Commission on Long-Term Care of the Elderly.

It is very difficult to find an adequate definition of nursing care. When I was Professor of Nursing at the University of Manchester, our introductory undergraduate programme included a series called, "The Nature of Nursing", in which we considered various definitions of nursing care given in different cultures. In our masters degree programme, we spent a whole year looking at theories and models of clinical nursing and tried to test out in clinical practice how effective different definitions and models of nursing care were and how they affected the quality of care.

Defining nursing care by the person who gives it is inadequate. One patient may receive nursing care from a registered nurse, but exactly the same kind of nursing care can be given by a care assistant. I know of no definition of "nursing" that would exclude such basic, essential nursing care tasks as bathing, feeding, dressing, toileting, comforting and communicating, changing dressings, changing incontinence pads, checking for pressure sores and assisting with moving.

In future, if the Bill goes through as it stands, for some people some of those things will be free; other patients will be charged for them. That brings me to my main question of disquiet. How we define "nursing care" involves a matter of social justice. I believe that the present definition is inequitable and militates against the adequate care of frail, elderly, physically and mentally disabled people.

6 p.m.

Lord Lipsey

My Lords, perhaps I may begin, unusually, on a consensual point. I am sure that the whole House will welcome the news today that Sir Stewart Sutherland, the chairman of the Royal Commission, whose report has been so central to our debate this afternoon, is to join the House. We shall be glad of his wise contributions on subjects such as higher education on which he has great expertise and shall miss the fact that he has not been present for all the debates on which he could have contributed so much.

Had I been Sir Stewart Sutherland—thank God I was not!—and had I shared his views, which, as noble Lords know, I do not, what would I have put in the recommendations of the Royal Commission? I would not have recommended free personal care. It is rather easy to show free care for all—as I like to call it, and rightly so—to be extraordinarily generous. I would have recommended free nursing care, such as the Government are introducing. I would then have built on that notion by extending the definition of "nursing care" so that more and more people were covered by it.

I heard the noble Earl, Lord Howe, say that he was not opening the floodgates. However, having examined this definition carefully, I have no doubt that it is opening the floodgates and that, under that definition, practically everything that in the Royal Commission's recommendations would have been called "free personal care" would end up as free nursing care. First, it would be introduced in nursing homes. The glaring anomaly would then arise that the same services were not being provided for people in residential homes, and, as a matter of inexorable knowledge, it would have to be extended to them. We would then find ourselves returning to the problem that has always existed in relation to free nursing care—that is, a huge addition to public expenditure.

Today, we have heard the most articulate, moving and brilliant speeches in favour of free nursing care. But no one has put a cost on it. No one has said what the opportunity costs would be. We would all rather have a Rolls-Royce than a Mini, but there is not much point in having a Rolls-Royce rather than a Mini if one has no petrol to put in it.

The truth is that this definition, as moved by the noble Earl, Lord Howe, would rapidly build up to the same cost as would be incurred under the Royal Commission's recommendation. We are talking of £1.2 billion at the least in year one, rising inexorably to between 12 and 20 times that amount—that is, approaching half the current National Health Service budget—by the middle of the next century. Every penny of that money would go to better-off people, or, rather, their heirs, and not one penny would go towards increasing services.

I do not often think of a new argument in this field because I have been spouting about it for so long. However, I want to bring in one new point. Let us consider the practical consequence of the amendment being accepted. As I have argued, and as I have found through attending conferences around the country, this is the matter that most strikes a chord. The most urgent need for more spending in this field is in the area of improving the status, training and wages of care assistants. They do the bulk of the caring. They are grossly inadequately paid, and often they are the wrong kind of people doing the wrong kind of job. If there were more money available, that is where I would put it.

However, if care assistants are now to be allocated the tasks carried out by registered nurses, and if that then qualifies their work as being provided free, as recommended by the noble Earl, Lord Howe, then every pound, and not perhaps 35p to 40p as is now the case, added to the wage of a registered care worker will fall fully on to the Exchequer. Therefore, as a consequence of this amendment, we shall continue to have bad care assistants and bad care. The amendment is conceived to be helpful. In practice, its effect would be malign in the most important sense of all— it would lead to worse and not better care for elderly people. That is why I strongly oppose it.

Lord Morris of Manchester

My Lords, I rise briefly to support the amendment spoken to so ably by my good and longstanding friend, the noble Baroness, Lady Masham, to which I very much hope there will be a helpful ministerial response.

Like the noble Baroness, what I find especially disturbing about present arrangements is that many residents in nursing homes are now charged for their incontinence pads, if they are funded by the local authority, from their personal expenses allowance, as if they were opting for luxury goods.

Incontinence pads are crucially important to those who need and have to use them. So, too, are gastro-nasal feed tubes and special beds for the avoidance of pressure sores; and it is surely wrong that needful people should be made to pay for medical necessities simply because they are in a nursing or care home. This effectively takes the "N" out of NHS, and the noble Baroness's initiative in tabling her amendment will very likely be supported by people of all political persuasions outside this House.

I pay tribute also this evening to Age Concern for its humane endeavours in promoting this important amendment.

Baroness Cumberlege

My Lords, I want to highlight briefly just one aspect of this matter because I believe that I covered the whole issue very fully in Committee. I start by thanking the Royal College of Nursing for its six case studies. I found them most illuminating. This is not a matter of theory; it concerns real people receiving real care. I believe that those studies came over extremely well.

In Committee, the noble Lord, Lord Lipsey, put forward a reservation. He believed that, because of the proposals put forward by the Government in their definition of nursing, there was a danger that a perverse incentive would arise and that people would choose to use qualified registered nurses rather than healthcare assistants because they would receive their nursing for free. That worries me considerably and I believe that it is a very strong argument.

We have approximately 630,000 registered nurses and 22,000 vacancies. Approximately 30,000 foreign nurses are believed to work in the NHS. However, I consider it to be an even more shattering statistic that those nurses make up one-quarter of the working population of London nurses. Therefore, we have the vision of nurse managers circling the world trying to recruit nurses to come and work here.

Of course, to some extent there has been a tradition of Australian and New Zealand nurses coming to work here. They come for a year or two and, hopefully, they return enriched by their British experiences. However, what worries me terribly is the fact that we recruit nurses from third world countries. I have been to South Africa and have seen the state of their health services. I know how very short they are of clinical staff. They have to recruit their doctors from Cuba. They need nurses and midwives. At present, we employ approximately 1,460 nurses from South Africa alone, together with those from the Philippines and all the other countries.

Therefore, we are very short of nurses, and we should use them appropriately. I believe that the definition that the Government are putting forward does produce a perverse incentive, and that concerns me very much. It will not only be unfair, as my noble friend Lord Howe said; it will affect the quality of nursing throughout the service. We have a duty in this country to use this scarce resource to the best of our ability. The Government's definition works against that.

I do not underestimate the difficulties. Successive governments have tried to manage this difficult issue of who pays for what in long-term care. We got round the matter by muddling through and obfuscating some of the issues. I commend the Government for at least attempting to introduce some clarity. However, I agree with the comments of the noble Baroness, Lady McFarlane, who was the first nurse to occupy a chair of nursing in this country—she did so in Manchester. The legacy of her tenure there still shows through. She has made an amazing contribution. We should listen to people such as the noble Baroness—she really knows the subject.

The noble Baroness, Lady Barker, was absolutely right to say that if we do not define the matter, the Law Lords will do so. We in this House have to be very respectful of the Law Lords but it would be better if those with knowledge of the subject made the definition. That would prevent us from having to go through the formality of court cases.

Finally, I turn to the perverse incentive argument. When I was much more closely involved with the health service than I am now, I had to go through complaints about all sorts of different matters in hospitals and in the community. I noticed that those complaints always ended with the sentence, "And the nurses were wonderful". I have to say that today that phrase is less commonly used. That is not the fault of the staff—they are under huge pressure. I have seen them working on wards when they should have been away from the wards enjoying their free time. They looked tired, exhausted and fed up. They were fed up not because of the hard work that they have to do but because they were not doing the job for which they were trained. They are very frustrated and cannot do good-quality work. If we use them inappropriately, that situation will become even worse.

I say to the Minister, "Good try, but try again". We must ensure that the perverse incentive does not appear in the Bill.

Baroness Greengross

My Lords, I had considered tabling an amendment on this issue. I support Amendment No. 45, which was tabled by my noble friend Lady Masham and to which I added my name, and I remain sympathetic to Amendments Nos. 44 and 46, which were tabled by the noble Earl, Lord Howe.

As the noble Baroness, Lady Barker, said, nurses can best define what nurses do. I am unhappy about the position that the Government have adopted towards older people. Many noble Lords, including the Minister, will be aware that older people who need long-term care tend to suffer from multiple pathologies. They therefore have varied and multiple healthcare needs.

Many registered nurses fulfil increasing numbers of roles that were once the prerogative of doctors. The fact that some of the caring tasks that they used to provide will now be provided by other care staff is surely irrelevant if they are meeting a healthcare need.

The Bill's provisions on nursing care do not currently go far enough. The noble Lord, Lord Lipsey, said in Committee that perhaps we could improve the Bill after Royal Assent. I should prefer to have clarity now. I am concerned that the Bill is so tightly defined that it will not take into account the work that nurses and care staff who work under nurses already do and will inevitably continue to do. It will not allow any flexibility. That is extremely worrying because we know that it is essential for the NHS to fulfil its duties to provide healthcare as reasonably required for any individual, wherever he or she is. The Minister confirmed that in Committee, which very much encouraged me.

This subject goes wider than the nursing provisions that are encompassed in the Bill. The provision must include services such as physiotherapy and chiropody and, as the noble Baroness, Lady Masham, said, it must involve incontinence pads, which are central to the dignity of older people. I do not understand why the Government are not prepared to make it clear that such obvious health equipment must be paid for and supplied to everyone who needs it, wherever they are. The NHS must fulfil its duty to older people and others who need its services, wherever they are. We must ensure that the Bill takes their needs fully into account.

6.15 p.m.

Baroness Turner of Camden

My Lords, I make a plea from these Benches to the Minister to look sympathetically at these amendments. As my noble friend Lord Lipsey knows, I disagree profoundly with his comments on personal care and nursing care. The amendments have moved beyond simply the provision of personal care and attempt to define what can be given under the supervision of a registered nurse.

Several noble Lords who have spoken in this debate know a great deal more about the services than I do. I am not a nurse, although my step-daughter is—she is currently a health visitor. Most of the nurses whom I know strongly agree with the views of the noble Baroness, Lady McFarlane. We should listen to the voices of experience in this regard. The proposal is to an extent an attempt to come to terms with the Government's position. The proposal with regard to full personal care attempts to define what can be given under the supervision of a registered nurse.

The importance of free care has been stressed in this debate. Elderly people who have paid tax and national insurance all their working life do not regard the services that are provided as being free; they believe that they have paid all of their working lives for their care. They believe that when they need help and care—when they are old and disabled—it should be provided. All care is really a contract between the generations.

There is a strong case for supporting the amendments. If the wording is not acceptable to the Minister, he should listen carefully to what has been said and perhaps present alternative wording on Third Reading. The amendments should not be rejected out of hand and I hope that the Minister will given them sympathetic consideration.

Lord Williamson of Horton

My Lords, we discussed this matter at some length in Committee—the definition of nursing care is important. We are now considering amendments whose terms are specific. Although we are considering a group of amendments, those amendments are quite different. The amendment in the name of the noble Earl, Lord Howe, deals with the definition of nursing care. Amendment No. 45, which appears in the name of the noble Baroness, Lady Masham, raises a specific point.

I shall be brief but I want to separate out the issues. In our early discussions on the definition of nursing care, there was dispute about whether we had a good definition. We had a simple definition but the question was whether it was good. Amendment No. 46 attempts to make a clear definition, particularly in its reference to care that is provided, delegated or supervised by a registered nurse. That is clear, but that definition is wider than that in the Bill. It would include most of the activities that most normal people would consider to be integral to nursing care. That is what we discussed on earlier occasions.

The amendments represent a good attempt to avoid problems of definition. I am sympathetic to that approach. I am, however, aware of our earlier debates on this matter. I wrote a summary of the Minister's contribution in Committee. That summary was very brief—it read: "Nurse—Pandora's box". We need to know whether or not the Government still take that view in relation to these amendments. I hope they do not. I hope that they will feel that it is sufficiently clear and, to that degree, likely to be acceptable.

I turn now to the amendment in the name of my noble friend Lady Masham. That is not of the same order at all. It is a specific point and deals with what at the moment appears to be a complete anomaly. I cannot believe that that much money is at issue in this matter. However it seems to me to be curious that people can be charged for certain equipment—for example, incontinence pads—simply because they happen to be in a residential or nursing home. It may be that if they gave a different address—perhaps that of a hospital—they would be given the equipment free of charge.

But in any event, the principle that any equipment which would normally be available under the National Health Service should be provided by the National Health Service in all settings seems to be sound. I hope that the amendment in the name of my noble friend Lady Masham can be accepted and I strongly support it.

Baroness Ashton of Upholland

My Lords, I confine my brief remarks to Amendments Nos. 44 and 46. In doing that, I note, as the noble Earl, Lord Howe, said at the beginning, that there is a great desire to do something about the anomaly. There is universal support for that and that is to be welcomed.

Therefore, I am concerned that as a result of our deliberations we should neither lose nor delay an important positive change for elderly people—those who are, by definition, the most frail and vulnerable.

I understand completely the points of principle behind the amendments and the strength of view which underlies them. As chairman of Hertfordshire Health Authority, I am very well aware of the practical issues, especially as regards defining what is almost indefinable. But I recognise that however we address the matter, there are resource implications in any changes which are put forward by amendments. Whatever changes are made and whatever resources we suggest need to be added, those need to be looked at in the context of a broader debate about the range of services we provide for elderly people.

Noble Lords may recall that in Committee I mentioned that I was reviewing elderly care services in Hertfordshire. I pointed to the underdevelopment that I saw there in a range of services. For example, if more resources were available, some of the priorities in which I should be interested are preventing elderly people ending up in A&E departments because they have fallen at home; having the facilities to send out nurses and doctors, where necessary to people's homes to care for them there; to have better respite care available to elderly people so that if they need a few days before going home it is available to them; extending intermediate care facilities so that elderly people can eventually go back home; making sure that we have the right level of occupational therapy and physiotherapy services for elderly people; and a higher quality of continuing care for those within the NHS.

Noble Lords will know that across the country those words will be echoed, I suspect, in all health authorities. And so my interest is in ensuring that the debate we have is not held in isolation. That is my greatest fear. I hope that rather than preventing these measures going forward by voting against them and, therefore, the Government dismissing them for the time being, we should have a broader debate in this House about what the next priorities should be for elderly care services and have as part of that this extension.

Lord Walton of Detchant

My Lords, I wish to speak briefly. My intervention on this group of amendments will be brief because I simply wish to talk about personal experience.

After my elderly mother had her first stroke, she was cared for in our home by my wife and myself. But after her second stroke, when she was no longer capable of recognising us, we were perforce required to admit her to a nursing home in Newcastle upon Tyne, a splendid nursing home where there were on the staff of that nursing home only two registered nurses—one at night and one during the day. But there were eight splendid care assistants who gave her the most dedicated and wonderful service for the last two years of her life until she died at the age of 93.

Therefore, I strongly support the amendments tabled by the noble Earl, Lord Howe, because I believe that it is important to broaden this clause in the Bill to recognise the crucial importance which, under the supervision of registered nurses, care assistants make to the care of people in such nursing homes.

Baroness Carnegy of Lour

My Lords, the noble Lord, Lord Lipsey, suggested that my noble friend's amendment would be hugely expensive and would greatly extend what the Government intended to do. I am not sure whether or not that is the case. I have not discussed the amendment with my noble friend. The noble Baroness, Lady Ashton, suggested that we might hold up this measure. That is the last thing I want to do. She is right that it should not be taken out of context and all sorts of other things can be done to help in this field. But this measure is extremely important.

I believe that all noble Lords are saying that they want a clearer definition. It may be very difficult on the ground, in the nursing home, to operate the provisions of the Bill when it becomes legislation. Will it be necessary to go round with Hansard to see what the noble Lord said the Government meant by this? Even the legislation itself will not be easy to understand for the people who do the planning for patients.

Therefore, I believe that the Government must try to improve and sharpen the definition so that what they intend can be done in practice. Just to defend the wording of the Bill will not be sufficient. We are absolutely delighted that the noble Lord has seen the light on a previous amendment. That was really encouraging and we felt our lives were being made worth while. And I should like to think that our lives might be made worth while as regards this amendment.

Baroness Darcy de Knayth

My Lords, I give my warm support to these amendments, particularly Amendment No. 45 in the name of my noble friend Lady Masham which relates, as my noble friend Lord Williamson made so clear, only to equipment which would be supplied by the NHS if you were in the community.

As a paraplegic, I know only too well that you cannot skimp and save on personal care, medical supplies and, for example, incontinence equipment. I know that everyone has talked about incontinence pads but that equipment is extremely important. We know about the problems which arose when there was a hiccup or a cut-back in the community in relation to the incontinence service. People were reusing paper sheets, drying them on radiators. You end up with infections; your skin breaks down; and you may get pressure sores. If that happens, you then have to go into hospital because you cannot be looked after in a care home. Pressure sores cost the NHS millions of pounds per year.

Therefore, it is very important. Skimping on care or equipment leads to a need for real nursing care and much personal cost and at huge financial cost to the NHS. I hope that the Minister will have a very good think about this one.

Lord MacKenzie of Culkein

My Lords, I come to this debate as a nurse rather than with any experience of economics. There is much in this Bill which I welcome but, like the noble Baroness, Lady McFarlane, I find it very difficult to reconcile the concept of nursing care with the proposal that care is only nursing care when it is delivered by a registered nurse.

That stands on its head everything that I have ever understood about the nature of nursing. Indeed, if that definition were to apply in the National Health Service, I fear what would become of it. Even in the so-called good old days, when I practised nursing, a great deal of nursing care was delivered by nurses in training or by auxiliaries, albeit under the supervision or delegation of registered nurses.

The noble Earl, Lord Howe, referred to a number of case studies and gave details of case study A. That saves me going through similar illustrations which bring out the complexities of the nature of care and which show that nursing is delivered by a team and not by individuals.

I cannot, as a nurse, agree with the definition which is proposed in this part of the Bill. I hope that the Minister will, as has already been suggested by other noble Lords, feel able to take this away and bring back something else for Third Reading. I have spoken to a number of nurses about this definition and I do not know of any of them who would accept for one moment that this is a reasonable and proper definition of nursing care, even applied in a social care setting. Therefore, I hope that the Minister can convince me that I am wrong or, better still, that he will take this away and bring back something else on Third Reading.

6.30 p.m.

Lord Hunt of Kings Heath

My Lords, this has been an intense and well intentioned debate. However, at the end of the day this is a question of priorities and of where we should best spend the extra resources to ensure that we can provide effective services to the care groups covered by this clause and the amendments.

At times in this debate it has been hard to recognise from comments made that the Bill before us is a substantial step forward. Our proposals for free nursing care will benefit about 30,000 people and remove one of the worst inequities in the current funding system.

In Committee we debated and rejected the idea of providing free personal care. Surely that was the right decision. The question is where best we should spend our resources. The Government are convinced that we can achieve more by investing resources in other services, including the development of intermediate care. I know that many noble Lords feel that the definition of nursing care on which the Government have decided is unsatisfactory. Over the weeks in which we have debated this matter I have given it careful consideration. However, I believe that this approach, based on the services of a registered nurse, is the only workable approach. I do not believe that there is the holy grail of another definition which will give us a workable approach.

I am aware that Amendments Nos. 44 and 46 have considerable support and have been developed by the Royal College of Nursing, which has always argued for free personal care. I understand those who have argued that the amendments are a compromise, a small extension to the Government's definition that will be fairer and more workable. However, having analysed the matter carefully, I do not believe that that will be the effect. Indeed, the amendments would lead to significant additional spending, which we estimate at between £250 million and £300 million per year; introduce free personal care in some settings and not others; increase inequities in the system and, indeed, place more pressure on nurses carrying out their assessment.

Furthermore, I believe that serious problems are created by the drafting of the amendment. Noble Lords have already mentioned the courts. The acceptance of the amendment is guaranteed to ensure that many of the issues would end up being decided by the courts. I say that because the aim of the amendment is to define nursing care as the services provided, delegated or supervised by a registered nurse following a nursing assessment, regardless of who delivers the care and for the NHS to take on those services.

That is no small step. To include all the care supervised or delegated by a nurse is likely to include much of the care at present provided by social services. The RCN briefing on the amendment makes it clear that it expects bathing, toileting, dressing and other daily care tasks to fall within its definition of nursing care. The amendment seeks to transfer a great deal of responsibility for care from social services to the NHS. The clearest example is care provided in a nursing home. People are placed in a nursing home because they require the supervision of a registered nurse on the premises 24 hours a day.

Therefore, on the definition in the amendment, all care in a nursing home could be considered to be under the supervision of a registered nurse. Thus the amendment would seek to transfer the responsibility to the NHS, effectively introducing free personal care in nursing homes but not in any other setting. Such a situation would be unfair. A person assessed as needing a residential care home place but with some nursing care needs met by the district nurse would face means-tested charges for personal care, but if assessed as needing a nursing home place would receive free personal care. That would certainly not be the right incentive to add to the system. It would drive people towards the most institutionalised care and place intolerable pressures on nurses carrying out the assessment as the financial interests of their employer and their client would be clearly opposed. All would hang on the decision for a nursing or residential care home.

I also believe that the amendment would impact on the way in which residential care is funded. Care assistants in care homes assist district nurses in many of their tasks as a matter of course. Turning residents to prevent bed sores, or changing dressings between district nurse visits, might be examples, but under the terms of the amendment, those tasks may be seen as being under the supervision of or delegated by a registered nurse. Care homes may therefore expect an additional payment to cover those costs or expect the NHS to provide the staff needed to perform them. Clearly, that would add to the costs and the need to determine who was responsible for which "supervised" or "delegated" service, which would certainly add much bureaucracy.

However, there are also problems with the approach taken by the amendment which would, in my view, make it unworkable. Until this point I have based my remarks on the premise that the amendment achieves its aims. Indeed, that is the basis on which we should debate such issues. But the technical flaws in the amendment are so great that I should like to draw them to the attention of noble Lords.

The amendments do not require the NHS to provide nursing care as defined by the amendment. Instead, they prevent local authorities providing those services. The NHS would have to be directed to provide nursing care as defined by the amendment. Although the NHS can provide services ancillary to NHS services when there is a need for a high level of health or nursing care, it is not obliged to provide such services where there is no need for high levels of NHS care. It is therefore questionable whether directions can be used to require the NHS to provide all the care covered by the amendment as much of the care is currently regarded as social care. If the amendment prevents local authorities providing such services, and there is no firm duty on the NHS, we run the risk of gaps appearing and the near certainty of the whole move being brought before the courts.

The amendment could paralyse local planning for the provision of care. Local authorities would have no basis on which to plan their services or any control over the services they would provide to an individual. In effect, the local authorities' responsibility would be determined on a case-by-case basis by a third party nursing assessment. That would create huge uncertainty and additional bureaucracy and could increase the level of unfair variations.

The amendments do not deal effectively with the complex interaction between healthcare and the benefits system. For example, if the NHS provided nursing care in nursing homes, there would be the knock-on effect of disentitling residents to DSS attendance allowances, thus reducing the financial benefits they receive. Changing the definition in that way could even leave some people worse off.

The definition of care which a council cannot provide is unworkable. It removes a duty from local authorities without ensuring that the NHS can pick up that duty. Even if the NHS could provide the additional services, the amendment would make the division of care to be provided by each agency determined on a case-by-case assessment with no clear legal foundation or guarantee of fairness and consistency.

Clause 57 as drafted introduces a level playing field for the provision of the services of a registered nurse. The aim, stated in the Government's response to the Royal Commission on long-term care, is to remove the anomaly that some people in nursing homes have to pay for the services they need from a registered nurse, when this is free on every other setting. I have looked very carefully at the whole question of definitions. I believe that we have in the Bill as it stands the only workable definition.

I want now to deal with Amendment No. 45 which seeks to add medical equipment and personal aids to the care which local authorities cannot provide or arrange to be provided. It would be helpful if I described what equipment the NHS currently provides for people in care homes and how it is putting increased investment into equipment services.

The NHS already provides specialist medical and nursing equipment not available on prescription and normally available only through hospitals; for example, specialist feeding equipment, ventilators, diagnostic equipment and oxygen therapy services. These are provided to people in nursing homes, residential care homes or their own homes. Where equipment or aids are available on prescription, individuals can access them through prescription. When the NHS becomes responsible for providing care from a registered nurse in all settings, this will include the equipment used by those nurses.

I agree that equipment is extremely important in enabling people to stay independent and stay in their own homes for longer. That is why in 2001–02 we expect the NHS to be spending an additional £11.7 million on community equipment services compared with last year, with increasing expenditure to a total increase of £105 million over the three years to 2004. This will mean a 50 per cent increase in the number of people receiving community equipment services.

The additional investment will not only buy more equipment and ensure that people can access up-to-date equipment with new technology, including equipment which enhances residual senses of sight and hearing and communication aids for people with speech impairments. It will also be used to streamline services, to improve information and assessment, so that people can receive the right equipment without delay.

The amendment as it stands would not change the position for the NHS providing any of this equipment. It is already empowered to do so. And it does not strengthen responsibility to do so as the NHS Act 1977 already makes it a duty to provide a service to meet all reasonable requirements.

We have made it clear in the National Minimum Standards for Care Homes for Older People that homes must install equipment such as aids and hoists for mobility and access. The provision of this basic equipment will be covered within the home's fees for accommodation and personal care.

As regards incontinent supplies, current guidance to the NHS makes it clear that the equipment provided by the NHS for nursing home residents does not cover basics such as incontinent supplies, which should be included in the basic price charged by the home to the local authority or the person. There is no intention to change that position.

I want to make one other point about the amendment. It is not clear what is meant by medical, surgical or nursing equipment". Local authorities provide a great deal of equipment, such as bathroom and mobility equipment, and adaptations such as ramps, rails and lifts to people's own homes. As it stands, the amendment might prevent them from doing so. It could also leave a gap between the service which the local authority could not provide and the service which the NHS regards as reasonably required. Just as with the previous two amendments, there is a danger that people will be left unsure who should provide equipment and there could be delays while those disputes were resolved.

In conclusion, I return to Amendments Nos. 44 and 45. We are all aware of the intensity of the debate. However, it is not simply a matter of trying to fine-tune the definition of "nursing care" and suddenly producing a definition which noble Lords believe will meet all the points they raise. I really believe that the definition we have in the Bill is the only practical one possible which produces a level playing field between all sectors of care.

6.45 p.m.

Lord Clement-Jones

My Lords, before the Minister sits down, in order to establish his position beyond peradventure, can he say that he has absolutely no intention of reconsidering the definition of "nursing care" and bringing back any form of amendment on Third Reading?

Lord Hunt of Kings Heath

My Lords, I believe that I have been consistent throughout our debates. I believe that the definition on the face of the Bill is the right one. It will bring many advantages to many people. It will get rid of the present anomaly and it will allow us to ensure that resources can best be spent on intermediate care. Surely, we should invest our additional resources where there is the potential of helping people to be more independent.

Earl Howe

My Lords, this has been an important debate and one of high quality. I want to thank all noble Lords from all sides of the House who have spoken in support of my amendments. I want also to thank the noble Baroness, Lady Masham, who moved her amendment so well and powerfully.

I am grateful to the noble Lord, Lord Lipsey. He spoke of my amendments as opening the floodgates. I greatly respect his views and he knows that, like the Government, I and my party do not favour the provision of free personal care across the board in nursing homes. I repeat that the purpose of the amendments is not to provide for universal free personal care; they have been carefully worded with a view to avoiding that.

The Minister indicated that it would be difficult if not impossible to draw a line between nursing care and care provided by other support workers. I believe that it is difficult but not impossible. Given that the assessment will govern what is and what is not funded free by the NHS, I confess that I do not see the difficulty in saying that, provided a registered nurse carries out the assessment and is content to accept responsibility for the actions of healthcare assistants to whom she directly delegates that work, the system is fair and tightly controlled.

The Minister may have ignored, or at least passed over, the significance in my amendment of one word. It is the word "and" at the end of subsection (2)(a). I suggest that the definition of nursing should not depend simply on the work that is provided, delegated or supervised by a registered nurse", but that it should be work that has previously been planned for that patient by a registered nurse after assessing need. I thought that that phrasing would sufficiently tighten the definition so as to avoid the kind of problems to which the Minister referred. I believe that the Government's definition, for all the Minister's defence of it, is artificial and will not be readily understood. In the end, the needs of the patient should come first, as I have said. Furthermore, as many noble Lords said, who delivers the care should be immaterial, provided that it is delivered properly. I was also sorry that the Minister said nothing about the perverse incentives to which I referred and which I believe will arise from the Government's definition.

Before I go further, perhaps the Minister would be good enough to say whether he agrees with his noble friend Lord Lipsey that in his assessment my amendment as it stands would effectively provide free personal care across the board; and, if so, whether the noble Lord's implied estimate of the order of expense that the amendment would involve is accurate. I must take that fully on board in deciding what to do with the amendment. With the leave of the House, can the noble Lord give any further indication of the cost of my amendment?

Lord Hunt of Kings Heath

My Lords, that rather puts me on the spot. I must be careful about how I respond. I estimate that the cost of the noble Earl's amendment would be £250 million to £300 million. I believe that his amendment would introduce enormous anomalies between nursing homes and residential care homes. Free personal care would he introduced in a nursing home but would not be available in a residential care home. I believe that that is likely to be unsustainable. Therefore, I believe that his amendment leads to free personal care by the backdoor. I cannot speak on behalf of my noble friend, but I believe he suggests that if that logic is followed, one ends up with a large bill for free personal care which one might then have to extend to people's homes as well if one wanted to remove all the inconsistencies.

Earl Howe

My Lords, I am grateful to the Minister, who, I believe, makes an extremely important point. I am not so pigheaded as to believe that the wording of these amendments is necessarily perfect. Both the noble Lord, Lord Lipsey, and the Minister have told me that they do not have the effect that I intend. I do not believe that they are right but I must consider that they may be. I take seriously the Minister's statement that the amendment as worded could lead to people being worse off than they are at present and to gaps in service provision. I also must take seriously that there will be a substantial cost attached to this amendment. It was clear to me that there would be a cost attached to it, but I did not believe that it would be of the order suggested, or anything like it.

However clear I may be in my mind that this is an issue of both fairness and practicality, in this House we have a duty to think carefully before pressing amendments which have a major financial impact. I have no wish to make the Government's life easier in any way, but I speak about the role and functions of this House. I do not, therefore, propose to press the amendment today. Between now and Third Reading I shall consider what the Minister has said and look afresh at the wording of the amendment. I reserve the right to return to the issue at Third Reading. In the meantime, I beg leave to withdraw the amendment.

The Deputy Speaker (The Viscount of Oxfuird)

My Lords, is it your Lordships' pleasure that the amendment be withdrawn?

Noble Lords

Not Content!

6.53 p.m.

On Question, Whether the said amendment (No. 44) shall be agreed to?

Their Lordships divided: Contents, 38; Not-Contents, 81.

Division No. 1
CONTENTS
Alderdice, L.	Hamwee, B.
Barker, B. [Teller]	Harris of Richmond, B.
Beaumont of Whitley, L.	Lucas, L.
Blackwell, L.	McFarlane of Llandaff, B.
Bradshaw, L.	Maddock, B.
Cumberlege, B.	Masham of Ilton, B.
Darcy de Knayth, B.	Methuen, L.
Dholakia, L.[Teller]	Northover, B.
Falkland, V.	Oakeshott of Seagrove Bay, L
Geraint, L.	Phillips of Sudbury, L.
Goodhart, L.	Razzall, L.
Greaves, L.	Rennard, L.
Greengross, B.	Renton, L.

Rodgers of Quarry Bank, L.	Wallace of Saltaire, L.
Russell, E.	Walmsley, B.
Sharp of Guildford, B.	Walton of Detchant, L.
Skelmersdale, L.	Wigoder, L.
Thomas of Walliswood, B.	Williams of Crosby, B.
Tope, L.	Williamson of Horton, L

NOT-CONTENTS
Ahmed, L.	Hunt of Kings Heath, L.
Alli, L.	Irvine of Lairg, L. (Lord Chancellor)
Amos, B.
Archer of Sandwell, L.	Jenkins of Putney, L.
Ashton of Upholland, B.	Lea of Crondall, L.
Bach, L.	Lipsey, L.
Bassam of Brighton, L.	Macdonald of Tradeston, L.
Berkeley, L.	McIntosh of Hudnall, B.
Blackstone, B.	Mackenzie of Framwellgate, L
Borrie, L.	Mallalieu, B.
Brooke of Alverthorpe, L.	Massey of Darwen, B.
Brookman, L.	Merlyn-Rees, L.
Burlison, L. [Teller]	Milner of Leeds, L.
Carter, L.	Molloy, L.
Chandos, V.	Nicol, B.
Cohen of Pimlico, B.	O'Neill of Bengarve, B.
Crawley, B.	Patel, L.
Currie of Marylebone, L.	Plant of Highfield, L.
David, B.	Puttnam, L.
Davies of Coity, L.	Rendell of Babergh, B.
Davies of Oldham, L. [Teller]	Renwick of Clifton, L.
Dean of Thornton-le-Fylde, B.	Rogers of Riverside, L.
Desai, L.	Sainsbury of Turville, L.
Dormand of Easington, L.	Sawyer, L.
Dubs, L.	Scotland of Asthal, B.
Evans of Temple Guiting, L.	Serota, B.
Farrington of Ribbleton, B.	Simon, V.
Faulkner of Worcester, L.	Smith of Gilmorehill, B.
Filkin, L.	Stone of Blackheath, L.
Gale, B.	Symons of Vernham Dean, B.
Gibson of Market Rasen, B.	Taylor of Blackburn, L.
Gilbert, L.	Thornton, B.
Gladwin of Clee, L.	Turnberg, L.
Goldsmith, L.	Uddin, B.
Grenfell, L.	Warner, L.
Harris of Haringey, L.	Whitaker, B.
Harrison, L.	Whitty, L.
Hayman, B.	Wilkins, B.
Hilton of Eggardon, B.	Williams of Mostyn, L.
Hollis of Heigham, B.	Woolmer of Leeds, L.
Howells of St. Davids, B.
Hughes of Woodside. L.

Resolved in the negative, and amendment disagreed to accordingly.

7.4 p.m.

[Amendments Nos. 45 and 46 not moved.]

Baroness Greengross moved Amendment No. 47: After Clause 60, insert the following new clause—

"LIABILITY OF RELATIVES

1. (1) The National Assistance Act 1948 (c. 29) shall be amended as follows.
2. (2) Sections 42 (Liability to maintain wife, husband or children) and 43 (Recovery of cost of assistance from persons liable for maintenance) shall cease to have effect.
3. (3) In section 48(3) (Duty of councils to provide temporary protection for property of persons admitted to hospital etc) omit the words "or from any person who for the purposes of this Act is liable to maintain him".
4. (4) In section 51(1) (Failure to maintain) omit the words "or any person whom he is liable to maintain for the purposes of this Act".
377
5. (5) In section 56(1) (Legal proceedings) omit the words "other than a sum due under an order made under section 43 of this Act".
6. (6) In Schedule 6 (Transitional provisions) omit paragraph 19.
7. (7) The Public Health (Control of Disease) Act 1984 (c. 22) shall he amended as follows.
8. (8) In section 46(5) (Burial and cremation) omit the words "or from any person who for the purposes of the National Assistance Act 1948 was liable to maintain the deceased person immediately before his death".
9. (9) The Local Authority Social Services Act 1970 (c. 42) shall be amended as follows.
10. (10) In Schedule I (Enactments Conferring Functions Assigned to Social Services committees) for the words "Sections 43 to 45 in column 1" substitute "Section 45"."

The noble Baroness said: My Lords, I am retabling the amendment because I feel that an important improvement for spouses, which I thought had the support of the Minister and his colleagues in another place, is being lost, partly, it would seem, because of the concerns of other departments of state. I pay tribute to the tenacity of my colleagues at Age Concern and in particular Pauline Thompson who has worked very hard on this issue.

In Committee, because it was so late, I was not able to explain as fully as I should have liked why the amendment is so important. It affects few spouses, but it is important to them. In Committee the Minister in his response said that there is a need to look at the links with similar rules in other government departments. He specifically mentioned that there could be significant implications for public spending with a read across to wider social security issues. I do not believe that to be the case. I shall explain why.

The amendment in no way seeks to remove the liability of spouses to maintain each other, or, even more importantly from the point of view of social security spending, to have any impact on the liability of parents to maintain their children. The DSS will still be able to request payment from spouses to contribute to the expenditure that would otherwise be made by that department in the form of income support. I understand that Age Concern has sought an urgent meeting with the Secretary of State for Social Security to clarify that matter.

The word "maintain" generally in people's minds means the everyday things. Indeed, the Shorter Oxford English Dictionary states that "maintain" means to, provide … with means of subsistence or the necessities of life", and to keep in clothing. Indeed, when the DSS seeks maintenance payments, that is what the money covers. It is of a different order when the local authorities ask spouses to pay for what are essentially the care costs of a resident. That is significantly different from paying ordinary maintenance. Many spouses have to pay for clothes and other necessities because the personal expenses allowance does not adequately cover items needed by a resident.

The Minister also talked about situations where the spouse is well off, and said that in those cases the spouse should look to his partner as well as to the state. It is a difficult line to draw. However, I would submit that in most cases where spouses are well off, the person does not approach the state in the first place, but quite happily makes his own arrangements.

The kind of cases that Age Concern came across in its research involved spouses who had modest savings, and in some cases were living on savings and, indeed, needed to do so. Perhaps I may give the House one sadly typical example of what can happen. It is the case of a gentleman in his 80s. When his wife was in hospital, he was told that the local authority would meet the funding for her nursing home care. In addition to suffering from Alzheimer's disease, she has had several strokes and a number of other medical conditions. The gentleman cared for his wife for about three years before a further stroke last year meant that he could no longer manage.

The local authority is sending him hills of over £100 per week, saying that he must make a contribution to his wife's care. His son reports that the gentleman is very worried and extremely upset. He is not well off. He has a small amount of capital, but it happens to be above the limit at which his local authority starts charging liable relatives. He has saved this money throughout his long working life and needs it to supplement his basic state pension.

His wife is so ill that he cannot see why her care is not being funded by the NHS. Then, to add insult to injury, he is expected to make a very substantial contribution to her care costs. He is still to all intents and purposes a carer of his wife. He visits her every day for at least three hours without fail, he helps with feeding and he gives her drinks to make sure that she does not become dehydrated. Above all, he talks to her about their life together to make her feel reassured and help to keep her mentally alert; as otherwise she would have very little conversation with anyone.

I should like also to clear up a little confusion in my mind caused by the debate in Committee. It may have been because of the time of night! In his response to the amendment tabled by the noble Lord, Lord Rix, about mandatory disregards for carers, the Minister mentioned that he would issue more guidance to local authorities about how to deal with spouses who care. He specifically mentioned respite care, which of course is anyway a service that should not be charged for carers under the Carers and Disabled Children Act. I would argue—and did so in Committee—that spouses whose partners are in long-term care retain a significant caring role, often at considerable physical and emotional expense to themselves.

It is worth remembering that only 10 per cent of those in residential care even have a spouse at all, so 90 per cent are unaffected by the amendment; and that of that 10 per cent a tiny fraction are pursued by local authorities. Age Concern estimates the number at just 300, with varying amounts from £3 a week to, in one case, more than £400 a week. Can the Minister confirm how much he thinks the amendment would cost local authorities? I think that it will be no more than six figures. Only one-third of local authorities—about 30—even have a policy to pursue liable spouses; therefore, two-thirds do not. Of the one-third that do, only 17 currently seek a contribution from a spouse.

If most local authorities do not even pursue liable spouses, let us stop the few that do go on, as the Minister said in Committee, "fishing expeditions", particularly as it will not cost much—well under £1 million—but will end considerable individual distress for those who are affected. I do not believe that there is a read-across to social security spending and so I hope that the Minister can now accept the amendment. I beg to move.

Baroness Barker

My Lords, I rise briefly to support the noble Baroness, Lady Greengross. This is a matter of injustice, albeit to a small number of people. Not only do different local authorities make different decisions on whether to pursue the policy, but the way in which they pursue the policy differs as well.

As I said in our previous debate, if all the reforms being brought forward by the Government are to work, they will have to be built on a basis of clarity. The Minister took me to task earlier today for being unduly unfair on the NHS. I should like to redress the balance by having a good old go at local authorities. The serious point that has run through all of our discussions today is the need to have absolute clarity about charges; about what is charged for; who receives those charges; and what happens to the income from those charges. We hear more and more about pooled budgets and more and more about integration between the NHS, which is not allowed to make charges, and social services departments, which are. We must do all we can to ensure that the financing of social care becomes more transparent and is not a matter of educated guesswork. In this instance, only a small minority of people are affected, but as a general principle we should support the amendment.

7.15 p.m.

Lord Williamson of Horton

My Lords, I rise to support the noble Baroness, Lady Greengross. This is a fairly small point in money terms but it is none the less one which responds to known distress. We know that there is a good deal of distress among those who have to decide that their spouse should go into care. That is exacerbated not only by a possible charge but by not knowing clearly whether they will have to pay for care. Many of us have experienced that feature. It is reasonable to sort out this question now because the evidence shows that at the present time the application is close to a lottery. Seventeen out of 91 authorities asked spouses for payment. Some were following it up; others were not following it up. Whether one is subject to a potential or actual bill depends on where one happens to live.

It is interesting that the majority of authorities were flouting the Government's published guidelines on a number of issues, such as how they obtained the information on finance. I mention that point because in the House we are frequently told that government guidelines are the answer to many issues. However, we sometimes find that people do not take any notice of them. Let us hope that the Government will at least take notice of the amendment proposed by the noble Baroness, Lady Greengross.

Earl Howe

My Lords, I rise to support the noble Baroness, Lady Greengross, in the arguments that she has so clearly articulated. I have read the background brief from Age Concern. It has left me in no doubt that for some elderly people whose spouses have been admitted into care homes the burden of having to pay what is quite often a substantial proportion of their limited income or capital towards the cost of the spouse's care is very considerable indeed. As the noble Lord, Lord Williamson, said, the distress caused is often enormous.

I understand the problem. I hope that the Government will be more sympathetic on this occasion than on the previous one. I have only two hesitations over the amendment. The first relates to the question of read-across. When we debated the issue in Committee, the Minister indicated that he had sympathy with the principle of the amendment but that there was in his judgment a problem of read-across to wider social security issues. I should like the Minister to comment further on that point if he can, if necessary by writing to me and to the noble Baroness.

In my experience, read-across tends to be a favoured argument deployed by officials when they are confronted by a proposal that they do not like. I should like to be absolutely clear about the extent and nature of the read-across. Is the noble Lord saying that it is unavoidable? If it is avoidable, we come to my second hesitation. What assessment have the Government made of the cost of the amendment as a stand-alone measure? Age Concern has told me that the cost would be minimal, by which I mean a few hundred thousand pounds in total. It would be difficult not to be sympathetic to the points made by the noble Baroness, but before I make up my mind finally I should like to hear from the Minister what its financial implications are. I hope that at the very least the Minister and his colleagues will take the amendment away and look afresh at the whole issue before Third Reading.

Lord Hunt of Kings Heath

My Lords, I think that I made it clear in Committee that I am not unsympathetic to the principles and philosophy espoused by the noble Baroness, Lady Greengross. I pay tribute to the work of Age Concern in highlighting these problems. However, I have to say that the issue of read-across is a substantial one and causes us some difficulty.

Noble Lords will know that under Sections 42 and 43 of the National Assistance Act 1948 councils can ask married partners to contribute to the residential care costs of their spouses where the spouse's contribution from their own income or assets, as determined by the means test for residential care, is not sufficient to cover care home fees. The amendment would stop councils seeking such contributions. It would also apply similarly to other services provided under the National Assistance Act 1948.

I am aware of some of the difficulties, highlighted by Age Concern, caused by the operation of the liable relatives rule with respect to residential care. I understand the distress that can be caused to a small number of residents and their husbands or wives at what is already a difficult time. The report from Age Concern (England) was important. It commented that some social services departments can bring considerable pressure to bear on spouses to make a contribution and may cause considerable distress as they do so. It is also worth remarking that the report made it clear that only a small number of spouses are being pursued for payments by councils and that the majority are not being asked. That provides evidence of the patchy application of the rule.

It is right and proper that councils are able, where appropriate, to seek contributions to care costs where the resident has relatively meagre resources, while the partner at home is comparatively well off. In those circumstances, it is right that residents should look not only to the state for support, but also to their partners. Indeed, many older people realise this and would wish to support their loved ones without even being asked, notwithstanding the fair application of the means test.

I am happy to respond to the noble Earl, Lord Howe, on the issue of read-across. However, given the intrinsic difficulties of describing DSS matters in great detail, I shall write to him. Essentially, the read-across we identify is that if the council stops seeking liable relatives contributions for spouses in care homes, the DSS would seek contributions where residents rely on income support. If councils did not have to seek liable relative contributions, there would then be pressure on the DSS to follow suit in regard to income support and child support. We estimate that, for example, if the DSS repealed its liable relative legislation, the costs would amount to over £350 million.

I recognise that the noble Earl asked me about the specific costs in this case. If one was able completely to ring-fence the liable relatives rule in relation to the amendment moved by the noble Baroness, the best estimate I have for that is £10 million. Again, however, I am happy to write to both the noble Baroness and the noble Earl 'with further details on this.

It is worth making the point that many councils apply current guidance and common sense and, as I have already indicated, only a few seek liable relative contributions from spouses. I listened with great care to the noble Baroness, Lady Barker, in relation to the issue of local authority performance and guidance. I believe that the current guidance should be adequate to smooth out the problems. It is our intention to remind councils of current guidance rather than repealing this fundamental rule. When residential care charging guidance is reissued in September this year, I reiterate that we shall remind councils that, when deciding on the level of contribution they wish to seek from a liable relative, they need to take account of the relevant financial circumstances and normal standard of living. They then need to discuss and negotiate a mutually acceptable amount. I believe that that is the best way forward.

Baroness Greengross

My Lords, I have to say that I remain bitterly disappointed with the Minister's reply. I do not believe that such a level of read-across would apply and I am anxious to see the evidence that the Minister has agreed to forward of why that should be so. I believe that both the noble Earl, Lord Howe, and I would be glad if we could see that evidence before we reach Third Reading.

Something about the matter of liable relatives is reminiscent of the 1930s, given the small sums involved here. I am deeply upset to hear such arguments being put forward now. This concerns very few people, but so much distress is caused. I do not wish to test the opinion of the House, but I reserve the right to do so at Third Reading if that is necessary. However, by that time I hope that it will not be necessary because the Minister may have reconsidered his position. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Clause 63 [Power for local authorities to take charges on land instead of contributions]:

Lord Lipsey moved Amendment No. 49: Page 66, line 45, at end insert ", or (c) at the discretion of the authority, on such later date as it may deem appropriate in order to protect a carer or close relative of the resident from homelessness. (4A) The Secretary of State shall provide guidance to local authorities as to how they should exercise their discretion under subsection (4).

The noble Lord said: My Lords, perhaps I may offer the apologies of the noble Lord, Lord Joffe, who supports this amendment but who has had to attend a vital meeting this evening. He is sorry to miss the debate.

I am tempted to open my remarks by saying, "If not £350 million, Minister, or even £10 million, what about almost nothing for this amendment?" The amendment seeks to deal with a new situation that will arise from the Bill. We are all concerned about those circumstances where someone is being looked after at home by a carer. The person then goes into a home and, because of the need to meet the care home fees, the carer then has to leave that home. I know that the Minister is also concerned about this. Free nursing care, as is proposed in the Bill, will help to make this happen less often.

However, under the Bill as it is likely to be passed, another situation will arise: when someone goes into a home, leaving behind a carer in their residence, that carer may not have been disregarded for the means test because they are not a sufficiently close relative or because the local authority has not used its discretion to disregard. The carer continues to live in the person's home. Charges are then taken by the local authority against that home in lieu of contributions under the means test. The person in care then dies. Under the terms of the Bill, within 56 days the home must be put up for sale and the charges discharged. I am afraid that that will mean that the poor old carer may find themselves being evicted.

I seek here to give the local authority a discretion—admittedly a discretion under ministerial guidance—to say, "Yes, you can stay on here and when you are ready to move, to go into a home, or you die, you can then pay us back". The money will still be paid. Public expenditure may be shifted, but it will not be lost as a consequence of such an arrangement. This would cost nothing. Indeed, it is so cheap that even the noble Earl, Lord Howe, to whom I pay tribute because he has been so responsible this evening, would surely support the proposal.

When I raised this matter in Committee I accused the Minister of giving me a disappointing and dusty reply. However, since then he and his officials have been most helpful in discussing it with me. I do not think that we have quite concluded those discussions, but I ask him to consider the proposal. It would cost nothing and would do quite a lot of good. I beg to move.

Baroness Barker

My Lords, I am tempted to observe that if the noble Lord, Lord Lipsey, is seeking the support of the rest of the House in his amendment, then that may not happen without question—given the hard time that he has given noble Lords during the passage of the Bill.

I should like to put a question to the noble Lord. He said that a house would need to be put on the market within 56 days. I believe that the Bill states that charges will be made against someone who remains in a house after 56 days, whether or not the house has been sold. I have some difficulty with that, as noble Lords will know from the points that I made in Committee. People may need to meet substantial costs for properties which they have not been able to sell for reasons that are not their fault. I raise that point again simply as a means of moving the argument forward.

The point I should like to make as regards this proposal concerns the discretionary powers of local authorities to disregard. Concerns have been expressed about the extent to which those will be used, especially as regards the extent to which those discretionary powers will be used once the deferred payments scheme comes into effect, and their inter-relationship.

In his response to the amendment, will the Minister indicate whether or not he agrees that there should be safeguards to ensure that local authorities do not use the deferred payment scheme agreement rather than their discretion to disregard property in which a carer remains?

In our previous discussions in Committee, the noble Lord, Lord Lipsey, and I, in slightly different ways, referred to the fact that family relationships—or what are considered to be family relationships—are becoming much broader and more loosely defined these days, perhaps more broadly and loosely defined than even the DSS has yet caught up with. We are specifically concerned about people who are, in effect, carers but who may not be regarded as being carers under some of the DSS legislation.

I simply raise those points in order to give the Minister an opportunity to explain, in some detail, the way in which the disregards will work.

7.30 p.m.

Lord Hunt of Kings Heath

My Lords, my noble friend Lord Lipsey has come to my aid on a number of occasions during the passage of the Bill. I feel a little churlish in having potentially to disappoint him yet again. I took note of the comments that he made in Committee and certainly I hope that we can eventually find a way forward in this area.

As noble Lords will know, the deferred payment scheme applies only to people with property, the value of which is taken into account for the purposes of the means test for residential accommodation. Where property owned by residents continues to be occupied by certain third parties, its value is already disregarded from the means test. This is set out in regulations. So where a property is occupied by one of the listed people—which includes the resident's spouse or partner, relatives who are 60 or over or relatives who are incapacitated—the value of it is disregarded under the means test. In addition, councils have discretion to disregard property where it continues to be occupied by a third party not covered by the mandatory disregards.

The Department of Health already provides guidance to councils on the application of mandatory and discretionary property disregards. The guidance particularly reminds councils of their discretionary powers where a former carer not covered by the mandatory disregards continues to live in a resident's property. Many councils exercise their discretion in this area and disregard property where it is occupied by a former carer who does not fall under the mandatory disregards.

Despite this, we are aware that some carers may be required to find alternative accommodation when the person they have cared for enters residential care, and we are aware of the distress and hardship that that can cause. I am not in a position to say that we can alter the regulations to include regular and substantial carers among those situations where the mandatory property disregard applies because of resource consequences, but I can assure noble Lords that we will keep the matter under review and, should resources become available, we will consider further whether to amend regulations.

My noble friend's amendment would give councils the discretion to extend the exempt period of a deferred payment arrangement to allow former carers or other relatives of the resident to remain living in the property or to allow them time to make other arrangements. The amendment appears to assume that were councils not to have this discretion, such carers and relatives would either have to find the funds to pay the debt—including any interest that accrues—or find alternative accommodation. However, as I have described, the value of a resident's property which continues to be occupied by a carer or close relative of the resident will in most cases be disregarded under the existing mandatory or discretionary property disregards.

We are minded to extend the mandatory disregards to all caring situations in the future should resources become available. Where the value of a resident's property is disregarded, there will be no need for the resident to enter into a deferred payment agreement secured on the disregarded property. So the scenario the amendment addresses is unlikely to occur.

As to the points raised by the noble Baroness, Lady Barker, the deferred payment scheme is not to replace disregards, either mandatory or discretionary. It will be an option only once the disregard is referred. Guidance will cover when it is appropriate to use deferred payments, including not replacing disregards. I shall be happy to write to the noble Baroness with more details about that, but it is certainly not intended to work in the way that she fears it may do. On that basis, I hope that my noble friend will withdraw his amendment.

Lord Lipsey

My Lords, I thank the Minister for that helpful reply, which I look forward to studying. I am not in the least disappointed by it, although that does not mean I am necessarily yet fully satisfied. On that basis, I beg leave to withdraw the amendment—for the time being, at any rate.

Amendment, by leave, withdrawn.

Clause 64 [Cross-border placements]:

Earl Howe moved Amendment No. 50: Page 67, line 37, at end insert— (3) Regulations under this section may not treat any person differently from any other person by virtue of his place of birth or his place of residence prior to the time when he became subject to arrangements made under section 21 of the 1948 Act.

The noble Earl said: My Lords, Amendment No. 50 brings us to the interesting issues raised in Clause 64 relating to cross-border placements. I shall be quite brief, but the matters I wish to highlight are important.

Noble Lords will be aware of the possibility that the Scottish Parliament may decide to head in a different direction from the Government in England and Wales and make personal care, as well as nursing care, in nursing homes free on the NHS. If it does so, that will be its prerogative and I have no wish to interfere or criticise it in so doing. However, should we find at some point in the future that a more generous regime operates north of the Border than south of it, the consequences could be far reaching.

It might be tempting for some people in England to apply for a placement in Scotland in the knowledge that their personal care needs would not be means tested. The temptation for the Government in such a situation might be to seek to disbar people who would normally be resident in England from availing themselves of the more generous Scottish arrangements.

I think back to the debate in the House on higher education in the context of the Scottish devolution Bill, in which my late noble friend Lord Mackay of Ardbrecknish played such a distinguished part. With university tuition fees north of the Border, we have a situation where students from Scotland and students from other EU member states get free tuition but students normally resident in England do not. That discrimination against students from one part of the UK is, I believe, anomalous and unfair and causes great resentment. Furthermore, it is entirely as a result of a conscious choice made by the Government.

The proposal that I am putting to the Government in the amendment is that they should not go down the same road with personal care charges if at some stage we find different policies operating on either side of the Border. If someone normally resident in England goes to live in a Scottish care home, that person should be able to avail himself or herself of the more generous charging regime, if such a regime exists.

I say this as a matter of principle. Health spending in Scotland is 20 per cent higher per capita than it is in England. That, indeed, is why some members of the Scottish Executive are so clear that free personal care in care homes is an affordable option. But the reason that health spending is 20 per cent higher in Scotland than in England is that the block grant made to Scotland under the Barnett formula makes this possible. It is the fiscal transfers from the UK Exchequer, comprised of money raised from general taxation, that enables the Scottish Executive to operate a more generous health policy than we do in England.

That is why I maintain that the issue raised by my amendment is a matter of principle and why it would be wrong to deprive people ordinarily resident in England of free personal care in a Scottish care home. I look forward with interest to hearing what the Minister has to say about this. I beg to move.

Baroness Carnegy of Lour

My Lords, I look forward with avid anticipation to hearing what the Minister has to say about this. It occurs to me that, should we legislate in this way at Westminster, the Scottish Parliament might do something back from the other side and legislate in another way to frustrate it. I do not know.

I say to my noble friend that I believe that it is very dangerous—I have had this pointed out to me by German friends—to include in legislation anything differentiating people by their place of birth. I rather wish that he had not done that. Differentiation on the basis of residence is the right way to do it. I am not sure that my noble friend will press the amendment, but that is an important point.

When the Minister replies, will he tell the House where the Scots Parliament is with its proposal? My understanding is that it does not yet have a Bill; or, if it does have a Bill, that it has not begun to process it. I am not sure. I know that the Minister spent Easter not far from where I live and perhaps he heard the gossip when he was in Glen Prosen. If not, perhaps he knows through official channels what is happening.

Lord Hunt of Kings Heath

My Lords, this debate brings back happy memories of the Scottish devolution Bill as it went through this House. The noble Baroness is right to stress the word "residence". That is important. My understanding is that the Scottish Executive is still considering the detailed application of the proposals in relation to personal care. We shall look with great interest to see how the proposal is developed in the future.

I shall not be drawn by the noble Earl to comment on the Barnett formula. I suspect that that would not be wise on my part.

It is clear, if we are looking at the principle behind the amendment, that we want people in care homes to be able to exercise a genuine choice as to where they want to live. Clearly, they should live in a care home with which they are comfortable. That will often mean a home near their families and friends. That is why we want to give local authorities this new power to make placements in care homes in Scotland, Northern Ireland, the Channel Isles and the Isle of Man. It is also why the arrangements provided for in the direction on choice—which give individuals the right to choose where they receive residential care—exist.

Local authorities must not be allowed to discriminate on any grounds when deciding whether to make use of the new power this clause will give them. The basis on which we shall expect them to make decisions about care home placements of this kind is the need for the individual concerned to be near members of his or her family or near friends. Such placements will also be subject to the principles set out in the direction on choice, which we shall consider updating in the light of the power that local authorities will have to make care home placements in Scotland, Northern Ireland, the Channel Isles and the Isle of Man. In other words, the preferred accommodation must be suitable in relation to the individual's assessed needs; it must be available; and the cost to the local authority must not be more than the authority would expect to pay for such a place having regard to the individual's assessed needs and the location of the home.

Under existing legislation, once a person with assessed care needs is ordinarily resident in a local authority area, that authority has an obligation to provide for any residential accommodation needs he or she has, including a care home place in a different local authority if necessary. This principle will continue to apply to cross-border placements. The authority responsible for the person cannot refuse to help on the basis of where the person was born and will not be able to do so when using this new power; the person's place of residence prior to the time he or she needed publicly funded care is the basis on which the local authority responsible for meeting his or her care needs is determined. After consultation with interested parties, we intend to issue guidance to local authorities that will explain the factors that they need to take into account.

The situation as regards Scotland is this, assuming the introduction of free personal care. If a person is ordinarily resident in Scotland, the appropriate Scottish council will be responsible for placing him or her in a care home, if that is the level of care appropriate to his or her needs. The place where he or she was born makes no difference to this. If the Scottish council decides, in conjunction with the person concerned and the relatives, that a home in England best meets those needs, it would need to decide on what basis to contract with the home. Community care for Scottish residents is a devolved matter and the placement would therefore be made in accordance with the Scottish Executive's policy on the funding of personal care. As I have said, the Scottish Executive has yet to finalise its proposals.

If, in reverse, someone is ordinarily resident in England, the English local council is responsible for assessing his or her care needs and would, under Clause 64, be able to place him or her in a care home anywhere in the UK. Again, the place where the person was born makes no difference to this. If the person's needs call for him to be placed in a home outside the council's area, the council will have to pay the appropriate cost, which it will negotiate with the home in the usual manner. If the person is placed outside England—for example, in Scotland—the key is that the English council will buy the services that it would buy were the home in England. It will charge the person for the care home place, on a means-tested basis, as if he or she were resident in a home in England. In those circumstances, that person would not receive free personal care. I hope that that clarifies the point for the noble Earl.

7.45 p.m.

Earl Howe

Yes, my Lords, it does—although not in the way that I had expected. I am glad that I tabled the amendment. In Committee, when the noble Baroness, Lady Barker, raised an amendment on this topic, it appeared to me that the Minister, while reassuring the noble Baroness, chose his words with some care. His reassurance was given explicitly within the context of existing legislation. He ended by saying: I do not believe that there is an issue here with the current legislation".—[Official Report, 22/3/01; col. 1678.] It was precisely to address that point that I tabled the amendment: to obtain, if possible, clearer reassurance. I am afraid that the reassurance has not been forthcoming, or at least not in the form in which I thought it may come.

Nevertheless, I am grateful to the Minister. I shall study his comments with care and no doubt, if I need to, follow up the matter in correspondence. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 [Control of patient information]:

Earl Howe moved Amendment No. 51: Page 70, line 41, leave out subsections (1) and (2).

The noble Earl said: My Lords, we come now to Clause 68. As noble Lords will be aware, it has caused considerable dismay and alarm among doctors, patients, the pharmaceutical industry and in many other quarters in the health community. To assist noble Lords, the amendments have been divided up to reflect the two separate and distinct strands of the clause. The first group deals with the issue of anonymised patient data. In moving this amendment, I shall speak also to Amendments Nos. 52, 53, 55, 56 and 57.

The pharmaceutical industry depends on a flow of detailed, accurate and regularly updated information about the patterns of drug use and drug prescribing in the NHS. It needs the information for commercial purposes, including the surveillance of drug safety. The information is gathered and processed by commercial data-gathering companies. It takes the form of wholly anonymised statistics and analyses. The data are also used by universities and other non-commercial research bodies to address a whole range of health-related matters; for example, drug safety, drug interactions, antibiotic resistance and basic research into many types of serious disease. In addition, it is supplied to the NHS, thereby enabling it to plan and budget more effectively.

In Clause 68 the Government seek to take powers to restrict or prohibit the flow of this type of information when it is being used for the purposes of marketing or promotion which, in the opinion of the Secretary of State, is contrary to the economic or financial interests of the health service.

What lies behind this, in a nutshell, is the Department of Health's perception that pharmaceutical companies, in marketing their products to doctors, ratchet up the NHS drugs bill. Perhaps I may explain why in my opinion this perception is ill founded and wrong. The pharmaceutical industry, which is one of the most successful industries in this country, is characterised by two main features: first, its record of innovation and, secondly, its intense competitiveness. In recent years, alongside the introduction of hundreds of new drug treatments, there has been a consistent reduction in the price of medicines supplied to the NHS.

The cost of NHS medicines is now 14 per cent lower in real terms than 10 years ago. The pace of competition in medicines over this period has meant that a new product is now almost invariably brought to the NHS at a price lower than its competitors in the market. Indeed, for a pharmaceutical company to make inroads into the market with a new product, it must typically demonstrate to doctors that the product can equal or better its rivals on two counts: efficacy and price. There is no reason whatever to believe that that trend will do anything other than continue. Prices will carry on falling.

The potential for cost savings in the NHS, brought about by switching patterns of prescribing, is great. However, in the end what matters most is what is best for patients. Collecting data in order to bring the best treatments to patients is not something to be deplored; it should be positively encouraged. Some new treatments have a higher than average cost to the NHS—often, but not necessarily, treatments that have no direct rival in the marketplace. But the beneficial impact of medicines should not be measured simply against their cost to the NHS. Reduced ill health enables people to return to work more quickly and lessens the burden on other public sector budgets. We can say it simply: cheap prescribing does not equate to good prescribing.

How can the use of anonymised data to monitor prescribing patterns across the country possibly he against the best interests of patients, doctors or the NHS? It is a wholly legitimate objective of the pharmaceutical industry to wish to share knowledge with doctors about advances in treatment. Indeed, that process is essential if doctors are to keep abreast of the latest medical developments for the benefit of their patients. The fact is that the fear expressed by the Government as to the misuse of data by pharmaceutical companies is not supported by any evidence whatever.

Let us consider what would happen if the Government were to get their way. As the noble Lord, Lord Walton, so rightly said in Committee, these commercial databases are expensive to develop and to maintain. Once you remove their commercial funding, there is absolutely no one else who would maintain them. The NHS would certainly not be in a position to do so. The Government say that nothing in this part of the clause would inhibit research. It is perfectly true that the powers in the Bill would not prohibit the use of anonymised data for medical research or the safety monitoring of medicines. But the point that seems to have escaped the Government is that if you prevent pharmaceutical companies from using data for marketing purposes, the data will not be gathered. If that happens, all the other consequent activities will also cease. It is only because data are collected for commercial purposes in the first instance that universities and other non-profit-making bodies, can take advantage of them in such ways.

However, there are other dangers. I have spoken about the message that a policy of this kind sends out to a pharmaceutical industry that sees this Government erecting more and more barriers in its path. The Government have made great play of wishing to enter a partnership with industry. The Prime Minister recently said as much. That is a fine aim, but this is a funny way to go about it. More to the point, the consequences could be damaging to the national interest. Up till now the UK has been a favoured destination for inward pharmaceutical investment. Sour the industrial climate here and you put that investment seriously at risk.

The disturbing aspect of these powers is that the language used to describe them is vague. The meaning of the terms is not at all clear: there is huge scope for subjective interpretation by the Secretary of State. Nor are there any firm or clear proposals on exactly what regulations the Government intend to introduce; indeed, I am not even sure that they know. Contrary to the recommendation of your Lordships' Select Committee on Delegated Powers and Deregulation, no draft regulations have been published. For a matter such as this, that is quite extraordinary. However, I have to say that it is all of a piece with the way that the Government have behaved over this matter.

When the Bill was first published there had been absolutely no prior consultation on the issue. Given all that, the question that springs to mind is this: why cannot the Government take a step backwards, withdraw subsections (1) and (2) and take time to consult properly before introducing legislation with which all sides are content? Amendments have been tabled to the clause that would have the effect of ameliorating considerably the adverse impact of these provisions. I very much hope that the Minister will accept those amendments. Alternatively, perhaps he can tell me that there is a dialogue under way with the industry that shows signs of bearing fruit during the next few days. If the noble Lord cannot address either of those requests, I may well seek to press the amendment. I beg to move.

The Deputy Speaker (Lord Lyell)

My Lords, I should advise the House that if Amendment No. 51 is agreed to I shall not be able to call Amendments Nos. 52 and 53 in this group.

Lord Jenkin of Roding

My Lords, I attached my name to Amendment No. 51 and should like to say a few words in that respect. Noble Lords will remember that discussion on this clause took place extremely late at night in Committee; indeed, I had been advised to go home—I am most grateful to the noble Lord, Lord Walton. I read the Hansard report of the Committee proceedings carefully. However, at the time, noble Lords did not have the benefit of the report of the Select Committee on Science and Technology on human genetic databases, which was chaired by the noble Lord, Lord Oxburgh. It had been completed but it had not been published. I note that a number of members of that committee are present in the Chamber. No doubt they are hoping to take part in this debate. I should add that the Minister was also not able to take account of the report. Having studied it—I am sure those in his department have done so—I trust that he will now recognise that part of the problem may perhaps be solved along the lines that the Select Committee recommended.

There is an entire chapter on the subject of ethics, privacy and consent in the report. I am tempted to read a large part of that to your Lordships but I have to remember that we are discussing a particular clause of the Bill. This is not a debate on the Select Committee's report. Nevertheless, what we had to say in that committee was entirely relevant to the issues that my noble friend Lord Howe outlined when opening the debate.

I should point out straightaway that we supported the need to safeguard the flow of information from patients to enable the disease registries to continue to function. A powerful case was made for that by way of the evidence that was placed before us. I have since read the briefing provided by the Association of Medical Research Charities. I believe that there is a need for subsections (3) and (4) onwards to remain in the Bill—I should add that I did not attach my name to the amendment that seeks to remove the entire clause from the Bill. That is necessary because the recommendations of the GMC appeared at first blush to make that extremely difficult: it was going to require written consent from all the people whose information would be supplied, for example, to the cancer registries. The council told us that that was not actually its intention. It has now said that it will not introduce this requirement until the autumn. Therefore, there is time for the GMC to amend its recommendations. It is right that this information should be safeguarded. However, I do not agree with those who seek to put new obstacles in the way of patient information being supplied to the registries and being supplied for similar purposes.

Like my noble friend, my complaint concerns subsections (1) and (2) of Clause 68. I believe that they are wholly misconceived. They were clearly drawn up before the Select Committee report was published. The evidence that was given to the Select Committee suggests that they will seriously interfere with medical research and with the work that is done particularly by the pharmaceutical industry, but not only by that industry, in producing new treatments, therapies and drugs.

We on the committee were concerned with human genetic databases. As the human genome becomes annotated and as we move into the abstruse sciences of proteonics, genomics and pharmacogenomics, we were told of the opportunities for much more specific targeting of therapies, particularly of drugs, to reflect and react to the individual genetic make-up of patients. That has enormous potential and in the long term will result in enormous savings for the National Health Service. I recite the figures from memory but we were told that in any average treatment, some 40 per cent of patients derive benefit as planned, it has absolutely no effect on a further 40 per cent, perhaps 10 per cent show minor adverse effects and the remaining 10 per cent show quite serious adverse effects. Such results can be extremely costly for the National Health Service. We heard evidence from some of the leading researchers in the field. If one administers the drug only to the 40 per cent who will benefit from it due to their genetic make-up, one will achieve a far more effective use of resources, avoid all the problems associated with adverse drug reactions and advance the science of medicine.

People involved in the industry are frightened of the effect the regulations may have. As my noble friend said, we have been given no indication of what the regulations will comprise. We have been given hints as to why they are being introduced. I refer to the phrase "the ultimate marketing tool" in that regard. However, we are talking about anonymised information here; no patients' names are involved. I shall return to that matter in a moment. The department seems to be frightened that the information may help the drugs companies to make more money. As my noble friend said, that has not been the trend in recent years. I presided over what was called the voluntary price regulation scheme. However, those involved in the industry said that there was nothing voluntary about it at all. It became the prescription price regulation scheme. It has exercised an effective downward pressure on the price of drugs.

What really gets my goat is the way that the measure is presented as necessary to safeguard the privacy and confidentiality of patients. There is nothing in the use of anonymised databases—with many of these databases patients cannot be traced—which could conceivably threaten the privacy or confidentiality of patient information. The Select Committee devoted particular attention to that point. There may well be cases where information has been given and tissues have been provided with consent for particular research purposes and subsequently—what we termed "secondary use"—new information comes to light to suggest useful ways to use the tissues or the data that have been provided. In such cases it is impossible to obtain consent from perhaps half a million people 10 years later. We recommended the establishment of a medical panel, a trusted third party, to form a link between patients and researchers who wished to use the information. That system exists in Denmark. A number of people told us that it works extremely well. The trusted third party is the right way to deal with that matter.

What alarms me is the sheer inconsistency of the Government's view that somehow the flow of anonymised data is detrimental to the National Health Service. That view contrasts with what they said to members of the Pharmaceutical Industry Competitiveness Task Force. I shall quote the whole of paragraph 6.11 of the task force report headed, Potential for greater use by industry of NHS information". Therefore, we start from the proposition that NHS information will be jolly useful to the industry. The paragraph states Given the necessary safeguards on security and confidentiality of patient data, there is potential for the NHS and industry to work together to develop data sources that will significantly improve the quality of information available for research into medicines. This potential applies across the whole range of pharmaceutical issues: health economics and outcomes research, clinical trials evaluation, epidemiology, safety, education and concordance. Developing this potential is to the mutual benefit of the NHS as it facilitates the better clinical and cost-effective use of medicines and to the industry in its search for improved use of medicines and the development of new medicines. That in turn benefits both public health and industry competitiveness". I shall not bore the House by quoting at greater length.

Those words will, of course, be familiar to the Minister as he was the joint chairman of the committee that produced the report. His smiling face appears in a photograph at the beginning of it. He is accompanied by the chairman of the ABPI, Dr Tom McKillip. As my noble friend has said, the report was introduced by the Prime Minister. Security and confidentiality of patient data were the only qualifications mentioned in the paragraph I have quoted which otherwise meets exactly what the amendments seek.

Nothing in anonymised data threatens the security and confidentiality of patient data. If the medical panel that we suggested is established to tackle secondary uses of information, I believe that the case can be met. The idea that we should give the Government the power to introduce the blanket regulations mentioned in subsections (1) and (2) fills me with horror. We must not allow those two subsections to become law before the election. I hope very much that the Minister will recognise that in the final few days before an election is called his bargaining position is weak. He would be wise to indicate to the House this evening that he will withdraw the subsections. They are a monstrosity and have aroused huge concern not just within the industry but among many other people and they have no place in the Bill.

8 p.m.

Lord Walton of Detchant

My Lords, in speaking to Clause 68, much of what I was going to say has already been said by the noble Lord, Lord Jenkin of Roding. However, I refer the Minister to what the Prime Minister stated in the report: The UK's pharmaceutical industry has an outstanding tradition and has contributed very substantially to our economy and to the welfare of our citizens … A key feature in maintaining the UK's attractiveness will be effective partnership at the highest levels between Government and industry". In Committee, I declared an interest as a very occasional adviser to a pharmaceutical company on neuroscience, but that interest is hardly relevant to the issues we are discussing today.

It is the universal opinion of the pharmaceutical industry and its representative body, the ABPI, that the powers provided by Clause 68(1) will undermine the objective clearly set out in the pharmaceutical industry task force report which is the joint government/industry initiative referred to by the noble Lord, Lord Jenkin. There is already tight control of the marketing of medicines under EC directives, the UK Medicines Act and the industry's own code of practice. The industry has a legitimate need to communicate knowledge of such advances to the medical profession. The use of anonymised prescribing data has been common practice for many years; and not a shred of evidence has been produced to identify a wrongdoing by industry.

The Government suggest that the continuation of the programme of collecting such databases will he contrary to the financial interests of the NHS. The industry is satisfied that the reverse is the case because the evaluation of such data is in the health interest of patients and, if anything, is likely to bring down the costs of such medicines available in the NHS.

The Minister will be fully aware that this issue has been fully considered in the cases in the High Court: The NHS v. Source Informatics and subsequently in the Appeal Court. The judgment of Lord Justice Simon Brown eventually came clearly to the conclusion that the use of such anonymised databases were in the interests of the NHS, and not to the contrary. Admittedly, that judgment stated at the end that if the Government wished to overturn that appeal judgment they must take powers to do so—which apparently they seek to do in this Bill.

It is important to reiterate that many of the databases used by patient groups, medical charities, universities and others exist only because of commercial funding derived from marketing or similar activities. The Government do not collect, and are in no position to collect, the same quality or quantity of data as does the private sector. I have been assured by the company which succeeded Source Informatics—the body involved in that court case—that the fact that such information is used by patients' groups and research and regulatory bodies helps to improve and scrutinise prescribing and drug safety, such as Paracetomol availability and suicide inquiries. It includes information about what is done in the NHS that is not collected by the NHS—prescribing in hospital. The fact that it is provided to the NHS itself enables the NHS to plan services, the likely impact of drugs on budgets and patients' needs.

With that in mind, I am entirely convinced that the most appropriate and consensual way to proceed would be for the Government to withdraw Clause 68(1) while simultaneously launching a public consultation exercise to review all the issues in detail over the summer months. The outcome—I hope that it could be underpinned by agreement between the industry, the medical research community, patients' organisations and the Government—could, if necessary, be cemented by subsequent legislation. I believe that the commercial organisations involved in this situation would be willing and constructive participants in any such consultation. I do not comment at this moment on Clause 68(2) although I share the anxieties expressed by the noble Lord, Lord Jenkin of Roding.

If Ministers refuse to withdraw Clause 68(1), they should at least be prepared to amend it. At the very least, they should omit the words "marketing or other", leaving simply the question of promotional activities. However, I believe that that would be unsatisfactory. It is important that that part of the clause should be deleted from the Bill. If the noble Earl, Lord Howe, had intended—I believe that he does not so intend—to divide the House, I should have supported such a proposal.

It is a serious matter. It is one about which many people in the pharmaceutical industry, the jewel in Britain's industrial crown, are deeply concerned.

8.15 p.m.

Lord Winston

My Lords, I have the strongest sympathy with much that the noble Earl, Lord Howe, said; and with the remarks of the noble Lord with whom I sat on the Select Committee which considered genetic databases.

I believe that in principle we should seek to encourage the pharmaceutical industry, not inhibit it. There are many ways in which the Government could promote co-operation with the pharmaceutical industry which could be of enormous benefit to us in this country. It co-operates to some extent, in particular with universities and PhD training programmes. But if we had the right relationship with the pharmaceutical industry, we might possibly persuade it to do some of the jobs currently needed with regard to science in schools, and a range of other areas.

I want to draw the Minister's attention to one specific area. I am sure he will be sympathetic. I declare an interest. I am R&D director for the National Health Service Trust at the Hammersmith Hospitals. I think that it is the largest slice of the NHS R&D budget. There is a real problem. The Department of Health asks us actively to indulge and engage in intellectual property: to ensure that intellectual property is exploited within the National Health Service. In my trust we have recently conducted a thorough IPR audit. It stands to reason that some of the data that we collect will be in partnership with pharmaceutical companies.

If this provision is brought on to the statute book, the Government will shoot themselves in the foot. We should not be able to capitalise on the commercial value of some of the information that we jointly share with pharmaceutical and other interests. The Government need to reconsider exactly how that is done. There is a real risk of brinkmanship between Government and the pharmaceutical industry, with the pharmaceutical companies threatening to leave the country, and the Government saying, "We can go a little further". It is an unhealthy state of affairs with regard to good promotion of some of the best examples of science in our society which are clearly of benefit in the long term to the National Health Service.

I give an illustration to the Minister. I am one of the authors of a little paper which will be published tomorrow in the Lancet. My group has demonstrated a genetic polymorphism which seems to be associated with failure of in vitro fertilisation. If you have this polymorphism it seems that your embryos are unlikely to implant. We need to carry out larger studies to confirm it, but the finding was sufficient for the peer reviewers to grant it at least a preliminary paper in the Lancet. It is of immense commercial importance. Clearly, if you have this genetic polymorphism there is no point in going through repeated IVF cycles. You will be wasting money. Moreover, we might be able to treat this without gene therapy because you need to get the protein in the uterus for a very short period of time.

The obvious people to develop this protein must be the pharmaceutical industry because it will have the proteinomics at hand. Undoubtedly, if we are to look for a therapy we shall want to go into partnership with it. Where would be the intellectual property? What would happen if, in order to gain a bigger database, we want next year to look at the samples harvested from the 10,000 IVF patients whom we have treated in the past? The fact is that we should not be able to use that information; and that would be detrimental to patients who are infertile. Exactly the same argument pertains in relation to any other disease—heart disease, cancer, or whatever it may be.

I urge the Minister to reconsider the matter. I feel so strongly about the issue that, were the noble Earl to divide the House, while I am not sure that I would go through the Lobby with him, I would find it difficult to support the Government on this issue.

Baroness Northover

My Lords, I shall speak to Amendment No. 54A. Although the Minister narrowed down subsections (1) and (2) at an earlier stage, they still give him or any or his successors very wide powers. Subsection (1) refers to, prohibiting or restricting … NHS patient information for the purposes of … marketing or other promotional activities which he considers" — not which some independent authority considers— to be contrary to the economic or financial interests of the health service". The Bill does not say so, but those provisions relate to the relatively new strategy adopted by drug companies of using data collected from pharmacists to micro-target doctors who are not using their drugs. The Department of Health fears that that may drive up costs in the health service. A priori, that may seem to have some logic, but it is too early to tell and the Department of Health seems to have made no attempt to quantify or to prove its case

Given that the NHS devotes less than £5 million a year to informing doctors about what they should prescribe, while the pharmaceutical industry spends £270 million on promoting its products, the department may well have a point. However, the power taken is a very large nutcracker to crack what may well be a rather small nut. No Secretary of State should be given such an implement. If the department is concerned about the potential costs to the health service of such micro-targeting, it can take other measures to encourage doctors to prescribe effectively. An example might be the Prodigy system, in which computerised advice is available on the best course of action in any particular case.

To change my metaphor, we have a problem of babies and bathwater. My amendment addresses that. As we have heard, the information collected from pharmacists can be put to positive use, such as to identify where doctors need to update their prescribing habits. Because that information is collected, it is then also available to researchers for the benefit of the wider community. Our amendment would provide that any such regulation must not inhibit research for medical purposes or the publication and dissemination of the results of such research. We have serious doubts about that part of the clause. At the least, the provisions must in no way restrict such analysis and its publication.

Lord Turnberg

My Lords, I do not wish to comment directly on the amendments of the noble Earl, Lord Howe. Others have spoken eloquently about this part of the Bill. I have some sympathy with the view that subsections (1) and (2) are probably unnecessary. I remain to be convinced that the financial costs to the NHS of omitting them would be significant.

Amendment No. 54A, tabled by the noble Baroness, Lady Northover, has application not only to subsections (1) and (2), but also to the provisions dealing with the powers of the Secretary of State to allow research to be pursued even on identifiable data. I shall return to that when we consider later amendments.

Baroness Masham of Ilton

My Lords, the pharmaceutical industry has been caused serious difficulties by vandalism to its property and to its workforce. It does not need more difficulties caused by the Bill. Current and future patients need new drugs to fight diseases and medical conditions. It will not be of benefit to this country if the pharmaceutical industry moves to countries with fewer problems.

Lord Patel

My Lords, my comments do not relate specifically to subsection (1), although they have some bearing on it. I shall speak to Amendment No. 54A and some of the other issues in the Bill.

As many have said, the powers given in the clause and the ways in which they are interpreted and used will be of enormous importance for medical research in the UK. At the risk of repeating what has been said in earlier debates, despite the wise exemptions for some types of research and statistics in the Data Protection Act 1998, medical research involving personal data has always raised special problems. Uncertainty over the law on confidence has left doctors, nurses and researchers unsure about the acceptability of what they need to do, and important research has been delayed or limited in its scope as various NHS bodies and individual doctors try to work out for themselves what should and should not he done.

The medical research community welcomes the clause as a way of putting medical research and statistics on a proper footing. Any responsible researcher would agree that more needs to be done to make the public aware of how medical information is used and to obtain people's express consent when feasible. However, as has been mentioned, in some cases that is not possible, such as in large surveys involving thousands of people. GPs often need the support of specially recruited research nurses to identify and help to contact people to ask whether they agree to participate. The legality of that has been questioned.

Another often cited example is cancer registries. In this country we need better information about the prevalence of cancer and survival rates across different districts and socio-economic and ethnic groups and to monitor the effectiveness of new measures against cancer. Where it is vital to be able to detect a 5 per cent change in cancer rates, the provision of information has to be obligatory. If statistics were recorded only after doctors sought permission, the difficulty of comparing between regions and groups would make it impossible to establish how healthcare could be improved. We would have good records of cancer among those cared for by well organised, diligent doctors—and blind spots where health professionals were overstretched.

I realise that the Government intend to provide better public information. Once a better IT system is developed for the NHS, that will be less of a problem, but it will be some time before that happens.

It wrong to believe that making the regulatory process as restrictive and strict as possible is in the patients' interests. Patients want good use to be made of NHS data to improve treatment and for confidentiality and consent to be given a high priority. The Government's task is to balance both those demands.

The body advising on regulation needs not only to take account of the arguments of legal and ethical principles, but to be well advised on the practicalities of communication and information management in day-to-day NHS practice. The process by which regulations will be made has not been properly dealt with. It is not clear whether the regulations will specify the circumstances, safeguards and checks that will govern each type of data processing or individual research projects. The latter seems to invite more bureaucracy than is needed to ensure that the public interest is protected, as individual projects will already have been scrutinised by an ethics committee.

As the House of Commons Science and Technology Committee report on cancer research noted, the time needed to secure approval for a study from several different bodies is already a real barrier for those developing new studies into the causes and treatment of cancer. We should take care not to create new barriers.

The clause has the potential to reduce delays and wasted time by making absolutely clear what is and is not acceptable. Perhaps the Minister could reassure us that the regulatory process will reduce, or at least not increase, the time and bureaucracy involved in properly assessing and supervising research.

The Government have already agreed the need for expert, representative advice on the regulations that should be drawn up. If this body had a wider remit of issuing advice on the detail of how information should be used or on specific issues in individual projects, it could play a valuable role in raising standards and strengthening accountability. In supporting the clause, I urge the Minister to consider the principles of the amendment. I look forward to his response.

8.30 p.m.

Lord Blackwell

My Lords, although I am new to these issues, I should like to intervene briefly in relation to the arguments made by my noble friends Lord Howe and Lord Jenkin of Roding. I shall not attempt to repeat the arguments that they and others have put so forcefully tonight. However, I want to ask the Minister whether he can explain the anomaly which I believe the power to make regulations would introduce between the NHS and the private practice of medicine.

I cannot quite see what is the advantage of preventing drug companies and others gaining information from the NHS that they would still be able to obtain, as I understand it, from private hospitals or private patients. The only consequence of that would be to drive the introduction and innovation of new medicines away from healthcare under the NHS and into the private sector.

If the Government are driven by ethical considerations about the use of patient information, why would not those apply as equally to the private sector as they do to the NHS? Would not it be anomalous for the regulations to be restricted to one sector only? However, as I am not sure that the ethical arguments are the overwhelming ones in this respect, I believe that that is not a strong argument to use against the arguments put forward by my noble friends.

Equally, if the argument concerns the driving up of costs in the NHS because of the supposition of targeted marketing, it is rather difficult to understand that the best way to reduce the cost of drugs in the NHS is by preventing drug companies carrying out effective research and marketing their products to consultants. There must be far better ways to ensure that consultants have effective information about the relative cost-effectiveness of different drugs that do not involve the damage that would be done to the industry by restricting access to that information and, indeed, by restricting the free marketing of information about new drugs to consultants.

Therefore, I am at a loss to understand, in a way that can be defended, what the motivation is and why it would be beneficial to treat the NHS in a different way from private practice. I wonder whether, in his reply, the Minister can respond to those points.

Baroness Carnegy of Lour

My Lords, this clause was discussed very fully in Committee. I was not able to be present on that occasion as I was not well. However, I believe that the Government's position was virtually destroyed then by a number of noble Lords who knew from their own direct experience and expertise how wrong it was. To that has now been added what my noble friend Lord Jenkin and the noble Lord, Lord Winston, said about the report of the committee which, I understand, has been published.

The report of the Delegated Powers and Deregulation Select Committee, also referred to in Committee, was the most significant matter. It was hugely damaging. It said that the clause should be removed. In spite of the fact that that was the view of that very important committee, which your Lordships set up in order to assist the Government in appreciating what could and could not be done, the Minister said in Committee that he would say to the noble Earl, Lord Howe, that it was essential for the clause to be accepted and enacted into law. I hope that he will not reiterate that sentiment this evening. There have been an extraordinary number of wise contributions which should put the Government on the spot on this matter.

I know that the Prime Minister believes that Parliament does not matter very much and that strong government means deciding what one is going to do and then doing it. However, I believe that we are talking about clear threats—factual threats and not threats that are a matter of opinion. They are threats to the liberty of the individual, to the health of individuals, to the doctor/patient relationship, to an industry that is the jewel in the crown of this country, and to research in industry and in our universities, which are renowned for their research all over the world.

In a humble way, for some years I chaired the local research ethics committee in the hospital where the noble Lord, Lord Patel, operates. I learned then from experience how much the universities and industry depend in their research on anonymised information. It is crucial to them.

My noble friend Lord Howe has again set out the problems very succinctly. I believe that if the Government do not remove this clause from the Bill, it will be of extreme importance that during the election campaign the public become aware of what is happening. I am sure that a number of people will make the matter plain. At present, the public do not appreciate the issues because the matter was not discussed properly in the Commons and, during the previous stage of the Bill, it was arranged that we would discuss it here at midnight. For the sake of their own skin, quite apart from the benefit to the whole nation, it is important that the Government pay attention to this matter.

Lord Hunt of Kings Heath

My Lords, as noble Lords have indicated, Amendment No. 51 seeks to delete subsections (1) and (2) from the clause. I have, of course, listened with a great deal of interest to the views expressed by noble Lords on this very important part of the Bill.

One matter which perhaps has not been mentioned is that in the course of debate both here and in another place the Government introduced a number of amendments in order to deal with various fears expressed about the scope of this part of the clause and to introduce additional safeguards. I want to return to that point in a moment.

Clearly, it is important that I set out the reasons why the Government have introduced this clause and this particular part of Clause 68 into the Bill. It arose as a result of a judicial review brought against the department by a company called Source Informatics. The company was subsequently taken over by a company called IMS. In 1997, both Source and IMS began to collect information from GPs and pharmacies about doctors' prescribing in order to build up databases. As Source said in its evidence, the intention was that the database would be used primarily by pharmaceutical companies to allow them to target more precisely promotions and communications concerning their products.

The department was concerned on two counts: first, that targeted marketing would increase the pressure on GPs to prescribe higher cost medicines unnecessarily; and, secondly, that passing on information about the medicines prescribed to a patient, even though the patient was not identified, was a breach of confidence. The department sent the document to GPs and pharmacies, warning of the legal risks and strongly discouraging disclosures on policy grounds. Source sought judicial review of that document.

Although the department's case was initially upheld, the Court of Appeal decided that no breach of confidence, or, indeed, breach of the Data Protection Act, was involved. The court commented that, if the department continued to view such schemes as operating against the public interest, it must take further powers in what the court described as, this already heavily regulated area", to control or limit their effect.

The department remained concerned. Discussions were held with the Association of the British Pharmaceutical Industry and IMS to explore those concerns in more detail. From those discussions it became clear that there was a significant gap between the department's views and those of the ABPI about what was acceptable. IMS was reluctant to enter into any kind of agreement with the department for what I would say was an entirely understandable reason—that it could find itself disadvantaged in relation to any competitors who were not bound by such an agreement.

We decided to take powers in primary legislation. We took the view that it was important that nothing should be done without proper consultation. It was particularly important that, while enabling the Government to deal with activities that were not in the interests of the NHS, we should not inadvertently restrict activities that were—I stress this—innocuous or beneficial. We therefore included in the Bill a broad enabling power to prohibit or restrict the processing of information about patients or derived from information about patients. However, that was subject to the important safeguard that before any regulations were made the Secretary of State would have to consult bodies representing the interests of those who were affected. As an enabling power, that provision in the clause would have no effect in itself and no new restrictions on the use of information could exist until regulations were made.

I understand that the breadth of the clause's powers caused concern. In Committee in another place we responded to the concern of those who thought that the powers might be used, for example, to prevent independent scrutiny of the NHS by restricting the power to the use of patient information for commercial purposes.

In response to continued expressions of concern about the range of activities that might be covered by the phrase "commercial purposes" and—I say this to the noble Baroness, Lady Carnegy—taking into account suggestions from the Delegated Powers and Deregulation Committee, we introduced further amendments in Committee in this House. They made it clear that the power could be used only in relation to patient information arising from services provided by or under the NHS and only where the use of such information is for marketing and other promotional activity that the Secretary of State considers to be contrary to the economic or financial interests of the NHS. We also accepted the Select Committee's recommendation that regulations under Clause 68(1) should be subject to the affirmative resolution procedure. The Select Committee has stated that those changes, fully meet the Committee's recommendations". I am aware of the ABPI's concerns on this matter. While it continues to comment on the clause's drafting, I am satisfied that there are no amendments that would satisfy the ABPI and provide the powers that we believe are needed. We do not believe that it is right that information that has been obtained in the course of the provision of NHS services should be used against the economic or financial interests of the NHS. That is why I say to the noble Lord, Lord Blackwell, that that provision is confined to NHS information. We believe that the NHS has a right to reserve the most detailed information about doctors' prescribing habits, for example, for the use of its own professional advisers, who can provide independent and impartial advice. That is better than enabling the pharmaceutical industry to target its considerable marketing resources on those GPs whose particular prescribing patterns appear to the industry to be the most likely to lead to increased sales of its products. In short, we do not think that it is right that the NHS should hand to the industry what some companies have described as, "the ultimate marketing tool".

I turn to the joint working group. The use of NHS information by the pharmaceutical industry is not all bad; quite the contrary. We have been working with the industry in the context of the task force that was set up last year by my right honourable friend the Prime Minister, and which I chaired jointly with Tom McKillop. Part of that discussion was about how the industry could secure better access to NHS data for pharmaceutical research and development purposes. We believe that there is significant further potential for the NHS and the industry to work together to develop data sources that will significantly improve the quality of data that will be available for research into medicines across the whole range of pharmaceutical issues—health economics and outcome research, clinical trials evaluation, epidemiology, safety, education and concordance. Developing that potential will benefit the NHS because it will facilitate the better clinical and cost-effective use of medicines and the industry in its search for improved use of medicines and the development of new medicines.

We have recently had considerable discussions with the ABPI about the clause's intent. We have been able to clear up a number of misconceptions. I confirm that the clause relates only to the data used to support marketing and promotional activity, not to marketing and promotional activity per se, which are already the subject of separate regulation and codes of practice.

I also make it clear that the clause does not extend to information that does not derive from health service activity. In particular, it does not extend to information about the medicines that pharmacies purchase from wholesalers, which is one of the two main sources of data for marketing purposes to the industry. The other main source is data from a sample of GP practices, such as the general practice research database, which give indications of national and sometimes regional trends. Those data are also used for other purposes, such as health economics and epidemiological studies. Those databases are longstanding—we have no quarrel with them and do not wish to stop them. We do not intend or wish to use the powers in subsection (1) to control the use of that kind of sample data to inform marketing and promotional purposes.

The activities of Source Informatics brought a new dimension to the data being obtained. That is what we wish to address. I am as committed as any noble Lord to the value of the research-based industry to the United Kingdom. That is why I chaired the joint task force. I recognise the value of the industry's contribution in terms of employment and the huge investment that it makes to this country. It is responsible for 23 per cent of all commercial R&D investment in the United Kingdom.

I am also pleased to say that, in line with the spirit that we established working together in the task force—I believe that that was given a huge boost by the work that we did together—we are committed to working with the industry to see whether we can reach agreement on what use can be made of NHS information for marketing purposes. I give an undertaking to noble Lords that, subject to there being no area other than the use of medicines which was causing concern—there is none at the moment—we will not commence Clause 67(1) unless and until discussions with the industry have either reached a conclusion or it has become clear that, within a reasonable period, no agreement is likely to be possible.

Earl Russell

My Lords, when the Minister referred to Clause 67(1), did he mean to refer to what is now Clause 68(1)?

Lord Hunt of Kings Heath

My Lords, the noble Earl pulls me up and, as ever, he is quite right to do so. However, that makes no difference to the point that I was making.

The industry understands our concerns even if it does not agree with them. I am willing to work together with it to seek a mutually acceptable arrangement which will, if necessary, be underpinned by regulations made under this clause. I should, of course, bring the results of those discussions and other consultations to the House when bringing forward any regulations.

I turn to Amendment No. 54A. This amendment would add to the requirement to consult before making regulations under this clause a requirement for the Secretary of State to be satisfied that the effect of the proposed regulations would not inhibit medical research or the publication or dissemination of the results of such research.

I turn first to the effect of this amendment on the regulation-making power under subsection (1). As is clear from the wording of this part of the clause, no regulations could be made under subsection (l) which would directly inhibit medical research or the publication or dissemination of the results of such research. The power is clearly focused on the use of information for marketing or other promotional activities which would be contrary to the economic or financial interests of the NHS.

I have seen it argued that use of the power could affect medical research indirectly. That has been suggested in your Lordships' House this evening. The argument seems to be that some information is collected for both marketing and research purposes and that, if it were not collected for marketing purposes, it would not he collected at all. In considering any regulations which might be made under subsection (1), we should certainly want to take into account any arguments which might be presented along those lines. But I cannot accept that we should be barred from making any regulations that might have the effect of inhibiting medical research. If I were to do that, I would have to accept that economic or financial damage could be done to the interests of the NHS without let or hindrance, provided only that the information was also used for research purposes.

The early part of this clause is not nearly as wide ranging as some noble Lords have contended. It applies only to NHS information. There can be no restriction on the use of information which is not derived from NHS activity. Secondly, it applies only to the uses of information and cannot be used to restrict marketing or other promotional activities as such, only the use of NHS information in connection with such activity. Thirdly, any marketing or other promotional activities must be contrary to the economic or financial interests of the NHS before the powers can be used.

The powers are also surrounded by safeguards: the requirement to consult bodies representing those likely to be affected; and a requirement that the regulations will be subject to the affirmative resolution procedure. I hope that noble Lords will take note of what I have said and that the amendments will not be pressed.

Baroness Cumberlege

My Lords, before the noble Lord sits down, perhaps he will clarify one matter for me. As I understand it, this evening has been the first time that we have learnt that the underlying fear that the Government have had is the increased GP costs in prescribing. That is the essence of why the clause has been drawn up.

Is the pharmaceutical industry not able at the moment to target GPs? I do not believe that is the case. Will the noble Lord confirm also that generic prescribing has increased at the most phenomenal rate when the pharmaceutical industry has already been able to target GPs? The line that the Government are taking diminishes the intelligence and professionalism of GPs in supposing that they cannot resist those overtures.

Lord Hunt of Kings Heath

My Lords, there are a number of issues there. First, there is no question that the cost of drugs over the years has risen in the NHS. Generally, we should welcome it because that is a reflection of the power of medicines and drugs to do good.

Baroness Cumberlege

My Lords, yes, but the Minister will agree that it is the percentage of generic drugs that has increased much more than the total budget.

Lord Hunt of Kings Heath

My Lords, I am being reminded that this is Report stage. I should simply say to the noble Baroness that there was a problem two years ago with a huge rise in generic costs. That was partly due to the closure of one generic manufacturer and then a shock was caused throughout the supply chain. As a result of that, we introduced a maximum price scheme, which I am glad to say has pulled back that cost. We are committed to having discussions about the long-term future of the generic industry.

The point that I was going to make to the noble Baroness, Lady Cumberlege, is that per se, where it is justified, there cannot be an objection to rising drug costs to the NHS because per se, that will often be doing good, and we have said as much to the research-based industry. The concern here is about the use of that aggregated data from GPs then to influence their prescribing patterns and for themunnecessarily to prescribe more expensive drugs. That is what we are aiming to deal with.

Earl Howe

My Lords, I thank all noble Lords who have taken part in this debate. I am grateful for the powerful contributions made in support of my amendment.

The noble Baroness, Lady Northover, had it right. Even if we were to imagine, for the sake of argument, that there is some substance to the position that the Minister has just outlined—although I repeat, I do not believe there is—the provisions in this clause represent a huge sledgehammer to crack a very small nut. The damage that would be done would be out of all proportion to any possible costs to the NHS arising from inappropriate pharmaceutical promotion. I agree with my noble friend that 100 per cent of these are very dangerous provisions.

The Minister mentioned Source Informatics and IMS. Perhaps I may put the record straight in relation to that case. The Minister indicated that he had been unable to enter into any kind of agreement with IMS. My understanding is that discussions held by the Department of Health with IMS prior to December 2000 were not consultations either about a possible agreement or about possible legislation. They were about the department's withdrawal of its Petition to the House of Lords against the Appeal Court decision in the judicial review and about the IMS's prescription data services and data collection methodology.

Even so, at the time that Clause 68 was introduced without warning into the health Bill, IMS had already indicated its willingness to review its procedures further in the light of the Department of Health's concerns and understood that discussions were still continuing on that basis.

Department of Health officials visited IMS's offices on 19th March 2001 when IMS briefed them on its services and their use by the industry, by medical researchers, patient groups and other bodies. That visit was not part of the consultation process between IMS and the department but an information-gathering exercise for the department.

As regards the Source Informatics case itself, the argument used in the Court of Appeal was to try to depict the statistical data collected as a breach of patient confidentiality. That points up how utterly disingenuous the department's position was.

The Minister said that in his view information obtained in the course of NHS services should not be used against the economic or financial interests of the NHS. I say again to the Minister that that approach is wholly misconceived. First, the NHS itself benefits from the data that are produced by commercial means. Secondly, I believe that the marketing of products by pharmaceutical companies is an entirely legitimate activity. Thirdly, doctors tend to be highly cost conscious, and increasingly so. But, in any event, as I said earlier, cheap prescribing should not ever be equated with good prescribing.

I note the Minister's assurances. They are welcome as far as they go. I do not think they go far enough. At this hour, I shall not press this amendment. However, this is such an important matter that I shall certainly wish to return to it at Third Reading. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 52 and 53 not moved.]

The Deputy Speaker (Lord Geddes)

My Lords, before calling Amendment No. 54, I must inform the House that if it is agreed to, I cannot call Amendment No. 54A which stands in the names of the noble Baronesses, Lady Northover and Lady Barker.

Baroness Northover moved Amendment No. 54: Page 72, line 25, leave out subsection (9) and insert— (9) There shall be a committee to be known as the Disclosure of Patient Information Advisory Committee (and referred to in this section as "the Committee") to give advice and assistance to the Secretary of State in connection with the discharge of his function under this section. (9A) Schedule (Disclosure of Patient Inhumation Advisory Committee) to this Act shall have effect with respectto the constitution of the Committee and the other matters there mentioned. (9B) Where the Secretary of State proposes to make regulations pursuant to this section or is considering existing regulations in accordance with subsection (6)(a), he shall refer to the Committee the proposals (in the form of draft regulations or otherwise) or, in the case of his carrying out his function pursuant to subsection (6)(a), any proposed revocation of. or changes to, existing regulations, and at the same time he shall furnish the Committee with such information as it may reasonably require for the proper discharge of its function pursuant to subsection (9C) below. (9C) That Committee shall consider any matters referred to it by the Secretary of State under subsection (9B) above, and shall make a report to the Secretary of State containing such recommendations with regard to the subject matter of the proposals as the Committee thinks appropriate. (9D) If after receiving a report of the Committee, the Secretary of State lays before Parliament any regulations or draft regulations which comprise the whole or any part of the subject matter of the proposals referred to the Committee, he shall lay with the regulations or draft regulations a copy of the Committee's report and a statement showing—

1. (a) the extent (if any) to which he has, in framing the regulations, given effect to the Committee's recommendations; and
2. (b) in so far as effect has not been given to them, his reasons why not.

(9E) In the case of any regulations laid before Parliament at a time when Parliament is not sitting, the requirements of subsection (9D) above shall be satisfied as respects either House of Parliament if a copy of the report and statement there referred to are laid before that House not later than the second day on which the House sits after the laying of the regulations. (9F) Nothing in this section shall require any proposals in respect of regulations to be referred to the Committee if—

1. (a) it appears to the Secretary of State that by reason of urgency of the matter it is inexpedient so to refer them; or
2. (b) the Committee has agreed that they shall not be so referred.

(9G) Where by virtue only of subsection (9F)(a) above the Secretary of State makes regulations without proposals in respect of them having been referred, then, unless the Committee agrees that this subsection shall not apply, he shall refer the regulations to the Committee as soon as practicable after making them. (9H) Where the Secretary of State has referred proposals to the Committee, he may make the proposed regulations before the Committee has made its report only ifafter the reference it appears to him that by reason of the urgency of the matter it is expedient to do so. (9I) Where regulations are made before a report of the Committee has been made, the Committee shall consider them and make a report to the Secretary of State containing such recommendations with regard to the regulations as the Committee thinks appropriate; and a copy of any report made to the Secretary of State on the regulations shall be laid by him before each House of Parliament together, if the report contains recommendations, with a statement—

1. (a) of the extent (if any) to which the Secretary of State proposes to give effect to the recommendations; and
2. (b) in so far as he does not propose to give effect to them, of his reasons why not."

The noble Baroness said: My Lords, in moving Amendment No. 54, I shall speak also to Amendments Nos. 54 and 59, tabled in my name.

This part of the clause is not about anonymised data but the much more problematic and far-reaching issue of the use of confidential patient information. It is about the rights of an individual to confidentiality as against the public interest need for health data to be collected and analysed, sometimes without the explicit consent of the patient.

This is a developing area in which we are moving from a period in which there is what has been described as "imputed consent", whereby it was assumed that patients were happy for their information to be thus collected, to a system that must be more consensual, transparent and open. We accept that action needs to be taken now. The Data Protection Act comes into full force in this area in October. In any event it is clear that under common law, action could be taken by patients against doctors at any time. The fact that that is the case clearly prompted the GMC to warn doctors of this situation, with the result that information to the disease registries started to dry up. This is clearly an area which must be clarified.

There is still much debate on how we best strike a balance between individual rights and the public interest in this area. I have no doubt that this is an area in which we shall see significant changes over the next few years. However, I am certain that no instant solution would emerge next month if we were to knock out this clause now, to bring back another after the election. I am equally certain that this is not an issue, not least because of its fundamental importance, that we could possibly place simply in the hands of any Secretary of State. Indeed, it is a complex matter. At the very least, he or she will need help. We need to know that he or she will not act in a way that we might not see as being in the public interest.

This is simply not an area in which it could ever be appropriate to give such wide powers to the Secretary of State. That is why we propose in the amendment to establish a statutory advisory committee to advise and assist the Secretary of State in this matter. We are certain that this must be on the face of the Bill. We are pleased that our proposal has met wide support from those who are concerned about this clause, whether their concerns were for the rights of the patient or among others who felt that it potentially restricted research. I pay tribute to the King's Fund for its enormous assistance to me in this matter.

We propose the establishment of a statutory advisory committee which does not have to sit muzzled in the background as an earlier incarnation, proposed in the other place, just might have done. It consists of representatives of patients' groups, clinicians, medical researchers, health service researchers and others. The Secretary of State must refer any proposed regulations to the committee and the committee must make recommendations on them. If, after receiving the report of the committee, the Secretary of State lays before Parliament any regulations, he must accompany them with a copy of the committee's report and a statement showing the extent to which he has given effect to the committee's recommendations. If in any respect he has not given effect to its recommendations, he must give his reasons for his actions. The model for this committee is the statutory Social Security Advisory Committee.

There is much to be done to reform the way that patient information is handled in the NHS and to promote wide public debate on the use of such information. In the mean time, action needs to be taken now to ensure that progress is made in this area, but not at the expense of giving the Secretary of State powers that are simply not appropriate. The amendment is designed to help to move things along. I therefore commend it to the House. I beg to move.

9 p.m.

Earl Russell

My Lords, I rise with two purposes, which are probably rather more closely connected than may appear at first sight: first, to offer my warm support to the amendment tabled in the name of my noble friend Lady Northover; and, secondly, to express further misgivings about Clause 68 as a whole. In the negotiations which might accompany a hypothetical end of the Parliament, those two concerns might possibly become linked.

My noble friends have had a very good Bill. On anything to do with health they have hit the nail on the head, and I follow that. But where we deal with the drafting of legislation, we deal with the relationship between the executive and the courts, and the implications stretch far wider than the field of health. It is a matter in which I have taken a fairly longstanding interest. The Delegated Powers and Deregulation Committee of this House has illustrated that, to an extent, this is a House matter. I therefore want to express a few thoughts on that theme as well as on my noble friend's amendment.

As she said, my noble friend based her amendment on the model of the Social Security Advisory Committee, about which I know. It is an extremely valuable committee. First, it ensures that when regulations are placed before this House, we have before us an intelligible account of their exact meaning. That is a far greater blessing than those who do not deal regularly with regulation can appreciate. Secondly, we also have a full brief of the implications and what the case for and against them may be, which is a great asset. We also have a clear explanation which can be, and regularly is, picked up in the press. When something particularly controversial is done by regulation in the field of social security, the press get to know about it. If there deserves to be a public debate, that public debate begins. It is that, rather than any particular pursuit of power by the Department of Social Security, which means that the debate on the regulation-making power has become so concentrated in the field of social security.

That means that anything done by means of regulation with this sort of committee in the background is, as the phrase goes, "Not a thing done in a corner". I should say that the original context of that phrase was that it was applied to the execution of King Charles I.

The downside of this is that it does not stop the raw exercise of power by a government with a disciplined whipped majority, no matter what their political colour may be. In fact, it is the classic political half loaf and as such it probably has a great deal to commend it. But it does not deal with the wider context which, as the Minister clearly illustrated in reply to the previous amendment, begins with the case of Source Informatics. The clause is introduced in response to the Government's defeat in a judicial review case.

When I was new to this House 12 or 13 years ago, there was a pamphlet around in Whitehall circles bearing the title The Judge Over Your Shoulder. That perception has not altogether disappeared from Whitehall. In this case, the judge has been over the shoulder of the Department of Health and the drafting of the clause is clearly a reaction to having lost a judicial case. In those circumstances, it is natural that there should be a desire to fireproof legislation; to draft it in such a way that it shall not be vulnerable to judicial review.

According to the department's evidence to the Delegated Powers and Deregulation Select Committee, that is the way in which the department was approaching the clause. In Question 30, the chairman asked its representative whether he thought the powers should be more clearly defined by reference to criteria on the face of the Bill. He received the reply: The point that the Minister made then [in Committee] was that the more one attempted to define on the face of the Bill the circumstances in which the power could be used, the more likely it was that the commercial interests who would be affected by any regulations made under the power would seek to challenge the interpretation of the statute in the courts and to challenge whether the regulations actually fell within the scope of the power … that the more one attempted to define things, the greater the risk of judicial review". In fact, it is dangerous to define the limits of the Executive's powers because someone might argue about them in court. That is a reaction which I regard as natural but I do not regard it as one of those things which is natural and therefore good.

Professor Sir William Wade, the leading expert on judicial review, has comments to make on this approach to legislation. Sir William states: If merely because an act says that a minister may 'make such order as he sees fit', or may do something 'if he is satisfied' as to some fact, the court were to allow him to do as he liked, a wide door would be opened to the abuse of power and the rule of law would cease to operate. It is a cardinal axiom, accordingly, that every power has legal limits, however wide the language of the empowering act … Although lawyers appearing for government departments often argue that some act confers unfettered discretion, they are guilty of constitutional blasphemy. Unfettered discretion cannot exist where the rule of law reigns". I have slight reservations about the concept of constitutional blasphemy but I can understand what Sir William is getting at: power to be controlled must be defined.

The Minister is trying to argue that power is defined as to its field. I take its point, though the definition is not necessarily as tight as it might be. The way in which it is not defined is in relation to its purpose. The purposes of the power are not entirely clear; in fact, they may be used more or less in any way the Minister likes to do pretty well anything the Minister likes. The desire is to have vires so general that no power can be ultra vires. If the power is to do anything you like, nothing done under that power can possibly be ultra vires. I can understand the temptation, but departments in Whitehall which can resist anything except temptation need a little learning.

The matter was raised again at question 72 of the report of the Delegated Powers and Deregulation Select Committee. The department's representative was asked whether anything that might be done under the clause might possibly he contrary to the Human Rights Act. It received the reply: My difficulty is that I am not sure yet whether there is a policy to set out any criteria. Obviously in the light of whatever information is given on that, I can address the Human Rights Act issue". In other words, "We do not know what we want to do but it will be legal anyway".

I have reservations about that as an approach to the rule of law. This is what I describe as a Cambyses clause. Cambyses, King of Persia, had a law which allowed him to do whatever he liked. He took advantage of it to allow himself to marry his sister. I believe that this is a Cambyses power. I shall not take your Lordships through the wording of the clause, but it is in every part of it. For example, take the power in subsection (4)(a)(iii) which provides for the disclosure of patient information, to a prescribed person on behalf of any such person as is mentioned in sub-paragraph (i) or (ii)". Those of your Lordships who remember the debates on the morning after pill may wonder whether that power could be used under a government of a different political colour to give information to parents about their children's contraceptive habits. That is a hundred miles from the intention of the clause, but I wonder whether it is within the wording. It tends to show how much danger there is in wording which is as open as this.

There is a power to create criminal offences by regulation in subsection (2)(c). That is something that we set our faces against in the Criminal Justice and Court Services Bill. The noble and learned Lord the Attorney-General—all honour to him for it—joined us and upheld what we did, and I am most grateful to him for that.

The Delegated Powers and Deregulation Committee in paragraph 25 of its report remarks: The Committee suggested that criteria by reference to which this power should be used should be stated on the face of the Bill so that the House could have the opportunity of debating whether they are right criteria and whether this power should be granted. The Department responded that the more one attempted to define on the face of the Bill the circumstances in which the power could be used, the more likely it was that the commercial interests who would be affected by any regulations made under the power would seek to challenge the interpretation of the statute in the courts and to challenge whether the regulations actually fell within the scope of the power, as distinct from any challenge that they might make as to reasonableness". The committee concluded: We do not find this argument convincing as justification for an over-wide enabling power". I have considerable sympathy with the committee in its conclusion. Ministers regularly try to present the conflict as one between Parliament and the courts, but it need not always be like that. We need not always be gamekeepers; Parliament has a poaching power as well. Sometimes we should consider whether it is Parliament and the courts versus the executive. It has been so in the past, and on occasion it could be so again. The courts can look after themselves most of the time. But, if one remembers the question, "How many divisions has the Pope?", every now and then the courts need the help of the parliamentary arm. I wonder whether this is such an occasion.

9.15 p.m.

Lord Turnberg

My Lords, I rise with some trepidation after that tour de force by the noble Earl, Lord Russell. I should like to take us back to the second part of the clause. If your Lordships believe that the first part is contentious, the second part raises all kinds of anxieties among patient groups, researchers and professional organisations. I shall not repeat the reasons why I believe that it is important to retain Clause 68 if we are not seriously to damage certain forms of research, particularly so-called secondary research in which data about patients obtained some time in the past can be used to test new research ideas today.

I should express my interest both as vice-president of the Academy of Medical Sciences, which has an interest in the research which can be pursued, and also as scientific adviser to the Association of Medical Research Charities, whose membership includes bodies concerned with Parkinson's disease, Alzheimer's disease and cystic fibrosis and the cancer charities. They are keenly interested in promoting all research which can bring them relief. Clause 68 will help, in that it provides a mechanism for such proper and necessary research to be pursued, while at the same time ensuring that patients are respected and their trust maintained.

Striking a balance between the necessary respect for patients' rights and the need for research which will benefit future patients and the wider public is not easy, and perhaps that is the reason why this debate is so important. However, the clause as it stands is far from perfect. Therefore I should like to speak in favour of the principles raised by the noble Baroness, Lady Northover, and outlined in Amendments 54 and 54A. That is because of a number of fears that I and others have in the way in which the clause could operate. Here I seek reassurance from the Minister on a number of matters which I have raised with him.

There is no doubt that a strict interpretation of the Data Protection Act and the fears of medical researchers about how the General Medical Council's guidance might affect them will drive out research from which we could all potentially gain. If that research is prohibited by the application of what is in effect a legal sledgehammer—we have heard a great deal about sledgehammers today—all of us will lose out in the long run. Of course we must have safeguards and we must not allow the Alder Hey type of activity to happen. But equally, we must not prevent perfectly respectable, highly desirable—indeed, essential—research which no one in their right mind would find objectionable from being pursued.

Will Clause 68 provide the safeguards while allowing the research to go on? I have some anxiety about that, because although the clause is designed for that purpose I fear that it may perversely inhibit the very research it is designed to permit. Imagine a researcher wishing to investigate, for example, whether cancer of the bladder or prostate is triggered by certain infections. Indeed, that has recently been hinted at. That can be tested by searching for traces of the infection in blood samples taken over many years from patients with those diseases, many of whom may have died or be untraceable. So consent to do the research is impossible. That is a catch-22 situation: the research cannot be done without consent but consent cannot be obtained.

Therefore application will have to be made to the Secretary of State through this clause. He will then seek the advice of his expert committee. There will be a period of public consultation. If that is accepted it will have to be approved by both Houses of Parliament. I would be surprised if the whole process could be achieved in under 12 months.

If one couples that with the fact that the Medical Research Council reckons that it may have 500 or so research projects of this type which will need to be processed in the first few months, your Lordships will easily see how the committee could become bogged down, research would grind to a halt and researchers would lose any desire to continue their research. So can this clause be made to work for the good of everyone? I believe that there are ways. I have had the opportunities of discussing these with my noble friend.

The GMC has recently provided some helpful criteria by which judgments could be made about the acceptability of research proposals. The MRC have accepted certain categories of non-contentious research which could be grouped. Using those, and taking advantage of the opinions of research ethics committees on the research should allow some faster tracking while maintaining the interests of patients.

I hope that the Minister will be able to say clearly that these types of arrangements will be incorporated into the regulations. This is what I believe is intended by the wording of Amendment No. 54A. We would benefit from having such a provision in the Bill. If it is not in the Bill then we need the reassurances that we have sought.

Furthermore, I hope that my noble friend will be able to say what the composition of the advisory committee will be and whether it will reflect a broadly-based representation, not only from the patients and their carers but also from across the research community. I hope he will give us these reassurances because without them I very much fear that some important research will not get off the ground.

Earl Howe

My Lords, looking at the amendment on its own merits I am happy to add my support to it. I say that even though, as I shall explain more fully when we debate Amendment No. 58, I am deeply opposed to the clause in principle. The amendment makes a bad clause slightly better. I hope that the Government will agree to it. If the clause is enacted, I take some comfort from the knowledge that there will be a statutory advisory committee standing between the Secretary of State on one side and patients and doctors on the other.

The Government have already committed themselves to establishing such a committee. However, I should like to hear from the Minister on three counts. First, can he tell us anything about the composition of the committee? Secondly, what involvement will the committee have in the framing of regulations? Lastly, what reassurance can the Minister give that, notwithstanding the advisory nature of the committee, Ministers will in practice follow its recommendations?

Lord Hunt of Kings Heath

My Lords, Amendment No. 54 and the consequential amendment, Amendment No. 59, have two important aims. The first is to ensure that the Government receive authoritative and representative advice on any proposed use of the powers provided by Clause 68. The second is to ensure that the reasons for using those powers are documented and readily understood by Parliament. Those are clearly important aims and ones that we share. Although I have some reservations about the detail of the amendments, I accept the principle behind them.

The establishment of an expert group is something that the Government have already committed to in respect of the power provided by subsection (3) of the clause. We have continued to listen to arguments in favour of placing the body on a statutory footing and have concluded that that would appropriately reflect the significance of the clause and provide a clear signal of the importance we place on ensuring that the power it provides is used appropriately. It is therefore our intent to bring forward an amendment at Third Reading to set up a statutory advisory committee.

It may be helpful if I say why I have some concerns about the amendment before us. First, the amendment removes the existing requirement to consult. We wish to ensure that all those who may be affected by regulations have an opportunity to voice any concerns. A single body will not be able to reflect the interests of all who may be affected. The requirement to consult already provided by subsection (9) is important and should not be lost.

Secondly, the amendment as written applies to all of Clause 68. As we well know, the clause has two distinct parts—subsection (1), which allows the use of patient information in limited circumstances to be regulated, and subsection (3), which allows the use of such information to be mandated in different, but still limited, circumstances. Subsection (1) is about the use of information for marketing and promotional purposes and whether any such activity would be contrary to the economic or financial interests of the NHS. The Government do not consider an advisory committee to be necessary when the issue there is one of regulating information use where the interests of the NHS are at stake. It is the power provided by subsection (3) that the Government believe warrants the creation of a statutory advisory body and, as I have already indicated, that should sit alongside, not replace, the existing requirement to consult.

The third unwanted effect of the amendments might be to deprive an advisory body of the flexibility it will need to adapt its role as circumstances and requirements change. As we have explained at some length during the progress of the Bill, the power provided by subsection (3) is intended largely to provide transitional support for important activity until, and not beyond, the time when there is a reasonably practicable alternative way of sustaining the activity. While the advisory body will, in its first year, undoubtedly spend its time considering how the power provided should be used in subsequent years, the focus will need to be on the process of annual review required by the clause and the body will almost certainly develop a wider advisory role on confidentiality issues.

The amendment lists the bodies that should be represented on the committee. I think that that is a little restrictive. We would anticipate that all the bodies listed, and more—not least the Royal College of Nursing and the research community—would be involved on the committee and we would certainly expect the membership to be flexible. Finally, the detail relating to salaries and pensions set out in the schedule provided by Amendment No. 59 is probably unnecessary for an advisory body of this kind. As I have said, we have some problems with the detail of the amendment, but we intend to produce a government amendment at Third Reading that will create a statutory advisory body.

Both my noble friend Lord Turnberg and the noble Earl, Lord Howe, asked me for more detailed information on how that body will be formed and how it will operate. Perhaps I may say to both noble Lords that we shall work with the General Medical Council and other interested groups to ensure that the body we create is well suited to its tasks. Its role will be to advise the Secretary of State on any proposed regulations. It will focus on the areas of most concern. It will have the flexibility to adapt to changing circumstances to enhance rather than diminish the requirement to consult and the results of that consultation and advice will be made public.

I have held discussions with my noble friend Lord Turnberg about his particular concerns. I am happy to continue those discussions and I expect that the work of developing our ideas as regards consulting on the proposed regulations will pick up some of those concerns. However, it seems that we wish to see an advisory body that will strike the right balance—I do not hesitate to use that word—between the issues of patient consent and confidentiality on the one hand and the ever-present needs of the research community. That will not be an easy task, but it will be a very important one. As I have said, we shall want to work with the GMC and other interested groups to ensure that we establish a body that is well suited to its tasks.

The role of the GMC has been frequently commented on as the Bill has passed through this House. I should say that I am particularly grateful to the GMC for its assistance in helping us to reach what I believe to be a solid position on this part of the clause. We certainly look forward to working with the council in the light of our eventual decisions.

The noble Earl, Lord Russell, in his formidable tour de force, raised certain issues of general principle which, as he said, go a little beyond the issues that we usually discuss in health debates. Perhaps I may make a few comments to the noble Earl. First, he mentioned the role of the court. It is fair to say that the court did comment that if the department continued to view such schemes as operating against the public interest, it should or it might take further powers. I think that that is a fair point.

Secondly, the noble Earl helpfully gave notice of the points he wished to raise in relation to the Select Committee on Delegated Powers and Deregulation. The Government did respond to the points made by the committee. They responded by defining more narrowly the circumstances in which the first two parts of this clause can be used. Furthermore, they responded to the recommendation that the affirmative resolution procedure could be used. I think that we have taken close notice of what was said by the Select Committee.

So far as concerns the point made by Sir William, I do not think that there was any intent as regards denial of the issue of reasonableness. If one looks at the comment made in answer to question 30, to which the noble Earl referred, those comments were made as distinct from any challenge that might be made as regards reasonableness.

9.30 p.m.

Earl Russell

My Lords, I am grateful to the Minister. Sir William conceded that point in his initial remarks as a general point. His point was about the definition of the vires.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Earl for clarifying that point.

This clause is clearly very important. It is controversial; it has caused concern and divisions of view within the health community; it is a difficult issue. If one takes the issue of consent balanced against research and the GMC guidelines, it has been very difficult indeed to come to a sensible conclusion and a sensible way forward. I believe that we have done that. In bringing forward an amendment at Third Reading, I hope that we shall introduce an additional safeguard which will provide noble Lords with an assurance that this will be operated properly and effectively.

Lord Jenkin of Roding

My Lords, before the noble Lord sits down, the report of the Select Committee on human genetic databases has now been in the Minister's possession for five weeks. Can he give an assurance that, in formulating the amendment that he is going to bring forward in response to the amendment tabled by the noble Baroness today, he will take account of the very considerable advice which that, if I may say so—and excluding myself entirely from this very—expert committee has given on the whole question of patient consent, patient in formation and the needs of research?

Lord Hunt of Kings Heath

My Lords, I am very happy to give that assurance.

Baroness Northover

My Lords, I thank all noble Lords who have taken part in the debate. I am very pleased to hear the positive reply of the Minister. I look forward to seeing the precise wording of his proposals in the next few days. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 54A not moved.]

The Deputy Speaker

My Lords, I must advise the House that if Amendment No. 55 is agreed to, I cannot call Amendments Nos. 56 and 57 due to pre-emption.

[Amendments Nos. 55 to 59 not moved.]