HL Deb 26 February 2001 vol 622 cc987-1064

6.37 p.m.

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

My Lords, I beg to move that this Bill be now read a second time. Although we are starting our debate rather late in the afternoon, I am delighted that so many Members of your Lordships' House have put down their names to speak. The Bill should not be seen in isolation. It is but one piece of the jigsaw which we are putting together to modernise and reform the NHS in order to make it a world-class service fit for the 21st century and responsive to the needs of the patient.

The NHS Plan is the route map for the NHS and it explains how we will improve and increase the capacity of the NHS, how we will provide incentives for the NHS to perform well and how we will empower patients. It explains where the new money will be spent and what changes will be made, and it maps out future work programmes. It is the clearest declaration of faith by the Government in the future of the NHS and in the people who work in it.

The Bill now before your Lordships underpins those plans and is an important part of NHS modernisation. It is about breaking down barriers and building new partnerships. That is why the powers in the Bill to establish new contracts for pharmaceutical services and to extend prescribing will help to break down the barriers between staff groups and give professionals the opportunity to make the most of their skills and deliver better services to patients.

The need to break down traditional barriers also underlies the proposals for care trusts, enabling health, social services and other health-related local government functions to be delivered seamlessly. However, the most important barrier which the Bill seeks to address is that between the patients and the health service. The radical changes in this Bill will underpin the involvement of the patient and the wider public in the NHS, will give patients real influence in the way that the NHS is run, and ensure that there is independent support available when they need it.

At the same time, the Bill introduces new safeguards for the use of information about patients. The Bill is about getting the right incentives and levers into the NHS to encourage and support modernisation. The powers to make performance payments and supplementary payments direct to trusts will underpin the move towards earned autonomy. Health authorities will have the powers they need to develop the local primary care workforce, which involves managing the numbers of GPs to ensure that areas where there are too few doctors are in a position to do something about it. Health authorities will also he given much greater autonomy to tackle problem GPs.

The Bill is about fairness. While much of our discussion is likely to focus on the NHS, the Bill makes real and important changes to social care. Free nursing care and wider access to deferred payments together with the three-month capital disregard offer a fairer deal for funding long-term care.

This is a far-reaching Bill. It is about modernisation and change. Some of the proposals in the Bill are challenging and some address genuinely difficult issues but all take us forward in our ambitious plans for health and social care.

Clause 1 modifies the Secretary of State's powers to set health authority allocations so that he can take into account Part 2 expenditure on family health services when setting health authority main allocations. Currently, Part 2 expenditure, which consists of fees and allowances paid to GPs and other family health services contractors, is not taken into account when determining allocations; it is simply paid out in response to contractors' claims. We have asked the Advisory Committee on Resource Allocation to develop a new single funding formula that produces "fair shares" targets including Part 2 GMS expenditure so that it can be taken into account in the allocation process. The practical effect of that power is that it will enable additional resources to be targeted at areas with relatively few GPs.

The aim of Clause 1 is to provide a financial incentive to health authorities to manage resources across primary and secondary care. The powers provided in Clauses 21 and 22 will give health authorities new levers to manage the development of primary care. Clause 21 will abolish the Medical Practices Committee, which is currently responsible for deciding whether a vacancy for a GMS general practitioner can be created in a given area. Clause 22 will give that responsibility to health authorities. While the MPC has had some success, it has not been able to encourage GPs to work in more deprived areas. Health authorities are better placed to make local decisions about the health services for local people, and transferring the power to declare vacancies for GPs is an important new tool for them to use in managing the development of local health services.

Clauses 2 and 3 underpin our proposals for earned autonomy. Clause 2 allows for the introduction of more flexible arrangements for making performance payments to health authorities than is currently possible under the powers contained in the Health Act 1999. Clause 3 will allow the Secretary of State or health authorities to make supplementary payments to NHS trusts and primary care trusts. That new power sits outside the existing arrangements for NHS contracts and offers a less bureaucratic model for making performance payments or direct investment in the NHS infrastructure. The NHS Plan sets out proposals for a performance fund, in which all health bodies receive their fair share of the fund, but good performers will be given greater freedom over how to spend their share.

Clauses 4 and 5 are both concerned with providing new powers for the Secretary of State or the NHS to invest in companies. Clause 4 enables the Secretary of State to invest in public/private partnership schemes to provide services to the NHS. That will enable us to launch NHS LIFT, which is a public/private partnership that will raise up to £1 billion to improve primary care facilities, particularly in deprived areas.

Clause 6 reflects the Government's desire to see local freedoms on pay and to operate within a national framework, and it brings NHS trusts into line with the position for health authorities and primary care trusts.

Importantly, the Bill implements the NHS Plan proposals for strengthening public and patient representation in the NHS. Consultation before the NHS Plan revealed that patients and patients' groups wanted more say about the running of the NHS, and that they wanted more help to sort out problems when they happened, not just after they had happened. The NHS Plan puts forward radical proposals to address those concerns and fundamentally strengthens patient representation.

The first stage of the new system is to transform the support provided to the individual patient. Crucial to that effort, but not part of the Bill, are the new patient advocacy and liaison services, which will be established in every trust. They will have trust employees, be highly visible, be dedicated to resolving difficulties and complaints as they happen and provide the support that patients need in using the NHS. To ensure that they have real clout in the organisation, the services will have direct access to the chief executive. It is clear that some complaints will not be sorted out on the spot and that there is a real need to ensure that patients are properly supported when making complaints. That is why the Bill requires independent advocacy services to be established in every area—the first time that such a service has been required across the country.

To ensure that patients' voices are properly represented in the decision-making process in the NHS the Bill will establish patients' forums. There will be one for every NHS trust and primary care trust. Clauses 12 to 16 refer to that. Those fora will be made up of patients and patients' representatives and will appoint one of the non-executive directors of the trust to which they relate, which will give patients a real say in the way in which the NHS is run. The patients' forum will monitor services and seek patients' views on those services. It will be able to inspect services, including primary care services. The forum will make recommendations to the trust and the trust will be required to publish its response. To ensure that patients' forums in a local health community make best use of their knowledge of patients' views and the local health service, patients' councils will be established to help to co-ordinate the activities of all patient fora in the local area. A common secretariat will support the patients' council and the local patients' forums.

The Bill gives local authority overview and scrutiny committees the power to scrutinise the NHS, which will address the democratic deficit in the NHS and provide a powerful voice for local people. They will have the power to scrutinise the local NHS and joint work between the NHS and a local authority.

Turning to the proposals about the delivery of primary care, Clause 25 provides health authorities with new powers to accredit those organisations that provide out-of-hours GP services. That is intended to ensure that such services are delivered consistently to high-quality standards.

Clauses 26 to 33 provide new powers for health authorities to regulate GPs and other family health service practitioners. Clauses 26 to 28 will provide health authorities with robust powers to prevent practitioners from being included on a list where that would be against the interests of patients or the NHS. In addition, Clause 32 provides health authorities with powers to suspend and remove poorly performing practitioners from lists to health authorities. Decisions to refuse to admit, suspend and remove practitioners from lists will be taken on the grounds of a practitioner's unsuitability or fraudulent behaviour or because his inclusion is prejudicial to the efficiency of the service.

Alongside that, Clause 23 will abolish the NHS tribunal that currently decides whether an individual practitioner should be removed from a list. Recent cases have shown that the tribunal is unable to deal with the most serious cases with the speed that is needed to protect patients and retain public confidence.

Clauses 35 to 48 provide an alternative legal framework for the provision of pharmaceutical services under locally agreed contracts, which will be known as local pharmaceutical services. Those services are a key element of our programme for pharmacy, which is set out in Pharmacy in the Future and which we published in September last year. Those services will first be provided under pilot schemes, which are intended to develop and demonstrate innovative ways of providing high quality, cost-effective services to patients.

Clause 68 will implement the recommendations of the review of prescribing, supply and administration of medicines and makes it possible for Ministers by order to extend prescribing rights to members of any recognised and regulated health profession. Clauses 49 and 51 make provision for items prescribed by certain categories of prescriber to be dispensed as part of NHS pharmaceutical services in England, Wales and Scotland. Clause 49 also proposes changes to the arrangements for dispensing across health authority boundaries to facilitate the development of e-pharmacy.

Earlier, I talked about the need to break down organisational barriers. We know that some organisational barriers can make it harder to provide patients with integrated care and treatment. Clauses 52 to 53 address some of those obstacles, allowing for the formation of care trusts, building on the partnerships we know already exist. Care trusts will be new bodies formed out of partnerships between health and social services, providing seamless care for people with care needs that cross professional boundaries.

It is essential that the NHS and local government work together if we are to deliver seamless care. I want to stress that care trusts are not a takeover of one organisation by another but a partnership of equals. Both partners will need to apply jointly for the establishment of a care trust. We will use this process and the other regulation-making powers in the Bill to ensure that care trusts work in the best interests of service users.

While a care trust will be based on a primary care trust or NHS trust carrying out delegated local authority functions, its governance arrangements will change to reflect the new role and ensure that local authorities are appropriately represented. We want to see governance arrangements for care trusts include a minimum number of local authority members which reflect the wishes of local partners within a flexible national framework. In many ways care trusts offer a real opportunity to bring the skills and ethos developed in social care into the commissioning of health services.

Clauses 53 and 54 provide for the compulsory establishment of a care trust (or the use of the Health Act flexibilities) in response to a failure to provide adequate services. Let me stress that this is meant as a backstop measure. But the power recognises the Government's duty to intervene where the NHS or local authorities are not adequately delivering essential services.

Part 4 of this Bill concerns social care. Last July we announced our proposal to introduce free nursing care in every setting from October this year. Clause 56 will make that happen. It does so by removing the ability of a local authority to provide or arrange nursing care, thereby making it a service which the NHS has to provide or arrange in the same way as other nursing services. As an NHS service, it will be free. Nursing care is any care that is provided by, arranged, delegated by or supervised by a registered nurse except care which, although provided by a nurse, does not need to be provided by a nurse. When free nursing care comes into force, it will benefit 35,000 older people who will each save up to £5,000 a year.

Clauses 57 to 59 concern preserved rights. People who were in residential care on 31st March 1993 are not subject to the community care arrangements that came into operation in April that year. Local councils do not have funding, care assessment or care management responsibility for them. Instead, the residents concerned have had a preserved right to a special, higher rate of income support from which they can purchase their care. Clauses 57 to 59 make the local authority responsible for providing community care to people who had preserved rights: the right to higher rate benefits for those people will then cease.

Clauses 60 to 62 concern charging for residential care. Clause 60 means that a local authority cannot refuse residential care to someone with specified resources on the grounds that they have care and attention otherwise available to them. That is to ensure that a local authority cannot use the existence of a person's home as a reason for determining that someone does not need local authority assistance with accommodation. Clause 61 makes it possible for a person to use their own resources to "top up" their care home fees above the contribution the local authority makes. That will make it possible for people to go into more expensive accommodation than a person actually needs if the resident has the resources to make up the difference.

The effect of Clause 62 is to make it possible for individuals who own property to defer payment of their residential care home fees by enabling a charge to be taken over property. The fees are recouped when the property is sold, or earlier if the resident wishes. The local authority picks up the bill whilst the person is in the care home. In practice this means that more people will not have to sell their homes when they go into care.

Clause 63 makes it possible for English and Welsh local authorities to make residential care placements for their residents in Scotland, Northern Ireland, the Channel Islands and the Isle of Man. And, finally, Clauses 64 and 65 consolidate the existing legislation relating to direct payments and also extend the scope of direct payments. The regulations will increase the scope of direct payments because they will ensure that all those who are eligible and meet certain criteria, who request and consent to a direct payment, receive one. This will enable us to extend direct payments for short-term community care services, such as rehabilitation; make it easier for local authorities to make direct payment gross; and extend direct payments to disabled parents for children services.

In Clause 67 we are introducing new safeguards for the use of information about patients. There is currently much ambiguity around the use of patient information and in this Bill we clarify the legal position. The clause does not signal any change to the Government's view on the importance of patient consent.

Informed consent is crucial to the Government's view of how a modern NHS should work. We simply cannot move to a patient-centred service if patients are not informed and consenting participants in the services they receive. But, as we all know only too well, that is not the way the NHS operates at the moment. Much of what is done in the NHS relies on implied consent. In some cases that is appropriate; for example, sharing information within a hospital to ensure a patient receives appropriate care. But in other cases the definition of implied consent is pushed much too far. We are determined to address this. It is no small task, and the culture of the NHS will have to change radically as we move away from our comfortable habits and into practice based on real consent.

We are taking powers to use information without consent but only after a number of very stringent tests have been passed. First, the Bill actually says that circumstances where consent is to be overridden have to be agreed by affirmative resolution in both Houses of Parliament. But before that test is applied, the Secretary of State has to be sure that the information is essential for the benefit of the NHS and the patient. And, secondly, the Secretary of State has to consult with relevant interested parties before that happens.

Without this part of the Bill, important services such as cancer registries are at risk of collapsing as the medical professions are unsure of the legal basis which underpins the flow of patient information. I want to make clear that what this clause does not do is outlaw independent reports on NHS services or seek to restrict medical research. There would be no benefit in doing that. It provides powers to regulate the disclosure and processing of patient information, or information where it is to be used for commercial purposes. This provides a new and much needed protection from the use of patient information for purposes that run contrary to the interests of the patient and the NHS.

This Bill, if approved by Parliament, will be a landmark for the NHS and patients. We will make progress on free nursing care; progress on patient power; progress on primary care and progress on patient protection. Above all, we will make progress on implementing the NHS Plan and put the NHS on a firmer footing for future generations. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Hunt of Kings Heath.)

6.58 p.m.

Earl Howe

My Lords, I begin by thanking the Minister for his clear and concise introduction of the Bill and for the trouble he has taken to write to me and other noble Lords with a helpful background briefing paper.

Unlike other major health Bills of recent vintage, this Bill comes to the House with the benefit of a track record of debate in another place, albeit sometimes a truncated debate, and also after a certain amount of amendment—albeit amendments sometimes made in a hurried fashion. As such, it is a Bill which noble Lords can assimilate that much more easily and in which a number of rutted tracks have already been marked out.

More than that, it is a Bill which, as the Minister explained, arises largely, though not in all respects, from the aims and proposals set out in the NHS plan and from the Government's response to the Royal Commission on long-term care. It is common ground between us and the Government that those policy statements contain some wholly worthy aspirations. So it is not entirely surprising, even though it may be a cause for mild rejoicing, that several parts of the Bill include measures which we on these Benches will be happy to see enacted and implemented.

That said, whenever I sit down with a new Bill my natural tendency is to look for themes. In the case of this Bill, the Secretary of State attempted to give us some thematic pointers at Second Reading in another place when he said: the Bill is about devolving power from the centre to the local". He went on to say that the Bill, offers more support to doctors and better protection for patients", and contains, measures that will improve services for patients", as well as, Giving patients new powers".—[Official Report, Commons. 10/1/01: cols. 1083–88.] Those are noble themes. Nobody could possibly argue with them and I applaud them. However, the question is whether the play inside the theatre lives up to its billing on the noticeboard. I suggest to your Lordships that as we proceed through Committee we should ensure that we hold up the Secretary of State's themes as a benchmark for ourselves in the various aspects of the Bill which we choose to consider.

If those words sound a little portentous, let me immediately cheer the Minister by setting out some of the more important elements of the Bill which we welcome. The provision in Clause 4 which allows for private investment to improve premises for the delivery of primary care is a sensible step that follows on naturally from the private finance initiative begun under the previous government and continued under the present one. Obviously much will hinge on the way in which NHS LIFT is rolled out, but as a concept it is surely a sound one.

It is also good to see the extension of prescribing rights to a wider range of health professionals, a measure which again takes forward the initiatives begun during the previous government, notably in relation to nurse prescribing. I think we would all argue that healthcare professionals should be utilised by the NHS to the ceiling of their ability and training, for the benefit of patients. It is high time, for example, that pharmacists were allowed greater responsibilities in the supply of medicines. The same applies to the professions allied to medicines, such as chiropodists and physiotherapists. Again, the detail of those arrangements needs to be worked out. We look forward to the setting up of the advisory body whose task it will be to recommend proposals that are both practical and properly protective of patients.

There are some good and useful proposals relating to supplementary lists, under which non-principal GPs, such as locums and deputies, will need to be approved by a health authority before they can practise in the relevant area. That is an essential step, not simply for the protection of patients but also to ensure that non-principal GPs are subject to clinical governance arrangements, continuing professional development, and so forth, in line with other doctors. As an aside, can the Minister tell me whether the Government are on track for laying regulations under existing legislation prior to 1st April to enable self-employed locums to be included in the NHS pension scheme with effect from the next financial year?

Perhaps I may also renew my welcome for the provision in Part IV of the Bill that will extend free nursing care to residents of nursing homes. My noble friend Lord Astor will cover some of our concerns on the definitional and practical aspects of this issue when he comes to wind up. For now, I would simply emphasise that it is a measure which corrects a glaring anomaly in the current system. Subject to satisfactory clarification of the detail—where, unfortunately, the devil is likely to lie—it is a measure that we support.

But let me revert to Mr Milburn's key themes: devolving responsibility from the centre, giving patients new powers and creating better services. Having just commended a number of individual features of the Bill, I must now say to the Minister that it seems to me extraordinary that the Secretary of State should be making the extravagant claims that he does for the Bill's contents. The reality is to an overwhelming extent contrary to those claims. Far from devolving power downwards, there are swathes of the Bill which arrogate power to the centre and away from doctors, managers and trust boards. There are clauses which give the Secretary of State powers to dismiss boards and hand over their responsibilities to outside contractors. There are powers to force elected local authorities to subsume themselves into care trusts when they do not wish to do so.

Other clauses give the Secretary of State the power to dictate the terms and conditions upon which individual employees are hired and fired by every NHS body in the country. There are clauses which enable him to fine tune the budgets of health authorities and PCTs and to pay money direct to trusts without reference to the health authorities that are accountable for them. The traffic light system, about which we have serious worries, is based on the concept of so-called earned autonomy. What it amounts to is the direct central control of money from the NHS Performance Fund according to criteria which the Secretary of State lays down. In other words, the autonomy given to doctors will only be earned if they follow instructions from Whitehall.

Whether or not one believes that the best interests of the NHS are served by an increase in centralisation, it is a positively Orwellian use of language to describe the measures as ones that devolve power from the centre; they do no such thing. Anyone with an ounce of sense can see that the way to ensure that an organisation as huge and diverse as the NHS survives and prospers is not to try to micro-manage it from the centre; it is to enable it to be flexible in response to local needs; to devolve managerial and clinical responsibility down the chain; to devolve budgets to a point which is much nearer to the needs of patients; to motivate staff by making them feel that it is their decisions that count and not the decision of bureaucrats. The Government may say that they want to decentralise the NHS but time and again we see them heading in the opposite direction.

The Government also say that they wish to improve the protection afforded to patients. I am sure that they are sincere in that intention. But if that is so, why have they decided to abolish community health councils? CHCs, at their best, have proved themselves 'to be highly effective watchdogs for patients. 'Their successes over 25 years have been commended by none other than the Prime Minister. Certainly, CHC's are variable in the results they achieve and there is a strong argument for an element of reform which would help to bring the less good up to the standards of the best. But instead, without as far as I can see any coherent reason being advanced, they are to be done away with. In their place we are offered an array of new bodies: patient advocacy and liaison services, patients' forums, independent local advisory forums, patients' councils and local authority overview and scrutiny committees, which together are meant to perform the functions that CHCs have undertaken until now.

Why do the Government think that a fragmented system of this kind is an improvement on the single point of entry for patients and the single point of scrutiny that CHCs provide at the moment? Why do Ministers think that those arrangements will provide patients and the public with better safeguards? Why in particular do they believe that by separating the scrutiny procedure from the complaints procedure there will be better co-ordination or a better understanding of service delivery in a local area? To a cynic looking in from outside, the Government's proposals might appear to be motivated by a desire to divide and rule. I do my best not to be a cynic. To me the proposals are simply a bewildering mishmash.

The abolition of CHCs has been the subject of no public consultation whatever, despite the Prime Minister saying to the contrary at the Dispatch Box. There has been an equal absence of consultation on Clause 67 of the Bill. The proposals in Clause 67, which formed no part of the NHS plan, are deeply worrying. They drive a coach and horses through one of the fundamental principles of medical ethics: patient confidentiality. The Secretary of State is to be given sweeping powers to collect confidential data on named patients without consent. Such safeguards as have been promised are largely not on the face of the Bill. No proper explanation has been forthcoming as to how those powers would be used.

The medical profession takes the view that there may well be certain rare situations in which the overwhelming public interest demands disclosure without consent but that it is for it and Parliament to define the exceptions case by case. We all understand about disease registries, but the wording of the clause runs much wider than that. As it stands, it could force GPs to pass on identifiable patient information without consent and against what they believe to be in the patients' best interests. That cannot be right, and we shall oppose it.

We shall also oppose very strongly the other element of Clause 67 which imposes a restriction on the collection of anonymised patient data. We believe that that proposal is profoundly contrary to the public interest. Access to anonymised data is essential to the work of pharmaceutical companies in developing new drugs and monitoring the safety and effectiveness of existing drugs. To confine the restriction on data collection to "commercial purposes" as the Government have now done is no answer, as I shall argue in Committee. Again, neither the NHS Executive nor Ministers has provided a coherent explanation of why these powers are needed. There is a feeling in the pharmaceutical industry that the Department of Health simply does not understand the implications of what it seeks to do, and it is difficult not to agree with that.

My noble friend Lady Trumpington, who was a distinguished junior health Minister in the previous government, has passed me a letter that she has just received from Sir Michael Partridge, formerly Permanent Secretary in the Department of Health. Sir Michael pulls no punches on Clause 67. He condemns it on constitutional grounds as an abuse of Parliament; he condemns it on its alleged merits, in that it will not benefit the NHS one iota; and he condemns it for its wider implications, in that the powers in it are completely open-ended. He states: In my 35 years of assisting Ministers to prepare and enact Bills and regulations I never saw the like of what is now proposed …It is profoundly objectionable". In Committee we on these Benches will take our cue from Sir Michael.

With the notable exception of Clause 67, this is a Bill which for the most part is underpinned by worthy aspirations, but it has been spoilt by the almost instinctive desire of the Government to centralise and control and to impose a one-size-fits-all policy on the NHS. Amid a number of useful new measures it is shot through with proposals that will do the NHS no good at all, and that is terribly sad.

On a day when the BMA issues a press release headed "GPs' morale at rock bottom"—because of the casual and dismissive way in which they believe they have been treated by the Government—I find myself saying "if only". For if only Mr Milburn had the courage and persistence to pursue his key themes to the limit we might find very little on which we needed to disagree.

7.13 p.m.

Lord Clement-Jones

My Lords, I join with the noble Earl, Lord Howe, in thanking the Minister for his helpful and succinct introduction to the Bill and his letter to us which sets out its provisions. The Bill gives effect to many of the proposals in the NHS Plan which was published last year, and we welcome many of its provisions. However, the Bill was heavily timetabled in another place. I very much regret the fact that such an important Bill may well be caught up in the rush in the final weeks before the declaration of a general election.

We on these Benches have significant reservations, however, about a number of aspects of the Bill. First, let me say a word about what we welcome. Generally, we welcome the earned autonomy performance management scheme—the traffic-light system—but the problem is that the Government want to predetermine the proportion of trusts, primary trusts and authorities that fall into each category. That cannot be right. We also need to be assured that the criteria for the determination of each category will be both fair and achievable.

We also welcome the provisions for greater use of nationally agreed terms and conditions for NHS staff. We welcome the opportunity that the Bill provides for modernising GP contracts. We hope that agreement will be reached, but an overhaul is undoubtedly needed. We believe that the Bill provides a framework for ensuring that that happens in a constructive way.

The new powers of the Secretary of State to intervene in trusts and health authorities—here I very much disagree with the noble Earl, Lord Howe—are quite logical. As my honourable friend Mr Harvey said in the other place, it is surprising that they do not already exist, but new powers to make interventions from the centre must be exercised with great care. There is also the question, rightly raised by the Royal College of Nursing, of the nature of legal liability in an increasingly centralised NHS.

Generally, we welcome the intention to tackle the problem of areas with too few GPs. However, we regret that under the Bill the Medical Practices Committee is to be abolished. However, although it has not by any means delivered a perfectly even distribution throughout the country things are a great deal better than they would have been without it. If the new arrangements are to be based on a market in which health authorities bid in competition with each other in accordance with the resources available to them there is a serious risk of over-supply in one area and under-supply in another. There is still a great deal of uncertainty about the alternative mechanisms through health authorities for performance of the functions now exercised by the Medical Practices Committee. I hope that we shall hear more from the Minister as the Bill proceeds. We very much welcome the extension of prescribing rights, pharmaceutical pilots and the creation of the advisory body, but we shall also want to look closely at how exactly these are to be regulated and make sure that the necessary flexibility is provided.

Our first major criticism of the Bill is that it provides for free nursing care but does not take up the Royal Commission's recommendations about free personal care. We have debated this issue already in the House. A massive opportunity has been lost to improve the rights of older, disabled and mentally infirm people. Hundreds of thousands of older people will have to pay for the essential personal care that they need in their daily lives to dress, take meals and bathe. The Government's proposals to distinguish personal and nursing care are likely to be almost impossible to administer in practice. No one chooses to leave home, abandon independent living and seek long-term care in a residential setting. That choice is imposed on people by necessity, and it is unfair for the state to penalise people for it.

The Royal Commission recommended that all personal care should be provided free, whether in a domiciliary context or a residential home. The provision of both services is essential. The overriding objective in all cases should be to preserve independent living, but the provisions in the Bill mean that many anomalies will arise. Some aspects of healthcare will be paid for in one context but not in another, whether that be physiotherapy or incontinence pads, which the NHS does not currently supply to nursing homes, or the practice of GPs charging for call-outs to residential and nursing homes and those costs being passed on to residents.

The Government's desire to maintain a wholly artificial, wrong and illogical division between the two categories of patient is inconsistent with the provision in the Bill to bring together primary and community healthcare and social care. As they bring those organisations together in care trusts the Government have the opportunity to get rid of the artificial divisions and distinctions once and for all.

It is entirely reasonable that people are expected to make their own financial provision for their accommodation, food and heating, but it is wrong that people who suffer from chronic long-term conditions will have to pay for their personal care, whereas others with acute conditions or in intermediate care will enjoy a different degree of financial support and have the services that they receive paid for under the Bill. Surely, it is right for the same treatment, often given in the same establishment and by the same staff, always to be provided free. We believe that the Government should implement the Royal Commission's recommendations for free personal care on the basis of an assessment of need. In Scotland the Executive has signalled a rethink of policy and looks set to agree the provision of free personal care.

The Government make much of the fact that currently 75 per cent of those in residential care receive all or part of it free. In future, however, those figures will change drastically as the number of people with assets of more than £18,500 rises. As the BMA stated, we shall then be looking at an unfair sickness tax on older people. Already a person with an income as low as £260 per week is likely to be paying the full cost of his or her residential care. We shall argue strongly that the disregard provisions relating to the provision of care in the first three months should include all assets and not just the main residence.

Even accepting that payment of nursing care is some advance for 35,000 people—compared with 500.000 who receive personal care—in residential homes, there are major problems with the provisions of the Bill. There is little clarity about what constitutes nursing care. We have seen a speech by the Minister which appears to say that what constitutes nursing care will be determined by nurses on the ground. That will be quite impossible to administer and does not seem to accord with the provisions of the Bill. The definition in the Bill which limits nursing care to care which is actually provided by registered nurses is wholly inadequate, excluding, as it does, nursing care provided by healthcare assistants.

The management and delivery of care involves a variety of nursing and care staff. Who performs what task can vary depending on a person's state of health; nor is it clear how it will be provided as local authorities are now barred under the Bill from providing nursing care. There is no equal and opposite duty in the Bill on the NHS to provide it. What, if anything, therefore, will the duty of care trusts be?

If these limited provisions are to operate properly, a proper assessment process is required. But in the Bill there is no sign of that. The Secretary of State said that there will be constant assessment of the individual's nursing requirements. How? An initial assessment will not be adequate by itself because a person's needs may change from day to day.

The Government do not even know what the cost of their current proposal is. No effort has been made to measure the true cost of free nursing care and no assessment has been made of the level of need.

The issue of care of older people is closely linked to the question of age discrimination. On these Benches, we have long accepted the case made by Age Concern in a series of reports on the treatment of older people in the NHS, from Turning Your Back on Us in 1999 to the most recent report Speaking Out in December last year. The Bill is another opportunity for the Government to accept the need for a clear duty not to discriminate. We shall be pressing hard for that opportunity to be taken.

Secondly, I turn to care trusts. Although we welcome the fact that the Bill creates care trusts that bring together social care and primary and community healthcare, we have some misgivings how that will be achieved. Generally, the creation of these trusts is to be welcomed. The Liberal Democrats have long supported the integration of health and social care. The formation of care trusts provides a constructive way in which to do that. But care trusts must be genuine partnerships between the NHS and local government. They should share responsibility for a jointly accountable body. We have doubts, therefore, about the concept of compulsion enshrined in Clause 53.

Furthermore, the Bill leaves open the possibility that NHS services provided through a care trust could be charged for. For example, an Alzheimer's disease or dementia sufferer receives a service free in an NHS facility, but could suddenly find himself or herself in a private or local authority facility paying for the same respite service. The Bill must ensure that care trusts do not allow new charging policies which disadvantage patients, users and carers.

Thirdly, there is the question of CHCs. We are, on these Benches, extremely concerned about the abolition of Community Health Councils, and, more specifically, about the manner in which their functions will be re-distributed. We do not deny that there is a need for a major reform of the whole function. As I made clear in the debate initiated by the noble Lord, Lord Harris of Haringey, on the subject last year, we are open about the need for reform of CHCs. After all, the Association of Community Health Councils sponsored the publication of the report of the Commission on the National Health Service, chaired by Will Hutton and debated in this House last year, which recommended far-reaching reforms. That report admitted that there were a number of flaws in the operation of Community Health Councils; there were differences in availability and commitment of services from CHCs; there were variable standards; and there were limited statutory rights available to CHCs, particularly in primary care.

The CHCs have admitted that the handling of complaints has been one of the weakest areas of their performance, but there is no statutory duty on them, and there have been inadequate funds for that task. Despite having heard the Minister tonight, it is still not clear what the new system to replace CHCs will be and how it will fit together.

The first element of the jigsaw puzzle is the patient advocates—PALS. They will be within the hospitals and the trusts and are really part of a customer service function for the trusts. There will also be patient forums. These will be serviced also by the trusts. They will be consulted on local services. Scrutiny will be provided by local authorities. Now, after the Report stage in another place, we know that there will be independent advocacy services. We also know that there will now be patient councils, each a federation of patient forums, but still not guaranteed any independence.

All that is meant to link in with an independent complaints procedure. But since the report of that review has not yet been published, we do not know what shape it will take. We do not even know, because Ministers have been unable to say, what the budgets of the new bodies will be, compared with the resources currently available to the CHCs.

CHCs currently have combined budgets of £23 million. It must be said that that is not enough. But some estimates have put the total cost of the new bodies at over £100 million. What will the real cost of these reforms be? Can the Minister tonight give us an indication?

The Bill destroys the comprehensive role of the CHCs, leaving a Humpty-Dumpty arrangement in its wake. It substitutes a series of bodies that, in general, lack the teeth or the authority to act independently on behalf of patients. The fact is that the Government's reform plans to replace the CHCs do not hang together at all. After all, they were an unsatisfactory afterthought in the NHS plan.

Finally, there will be a great deal of debate on Clause 67 in the course of the passage of the Bill. My noble friend Lady Northover will deal with matters relating to the Secretary of State's powers to restrict anonymised data being released.

With regard to the release of confidential patient information, your Lordships should know that we, on these Benches, are wholly committed to ensuring that cancer and other disease registries can continue with their activities. There is a major public interest in ensuring that they have the necessary exemption fron having to seek informed consent. We welcome the assurances about that aspect of the clause that have been given by Ministers, in terms of the creation of an expert standing advisory committee and other safeguards, including the requirement for an affirmative order if regulations are to be passed. But we are very concerned to ensure that legal exemptions can be in place for these registries before the GMC guidelines on the use of confidential information take effect this October.

The GMC is promoting that issue in an entirely constructive manner. We welcome the Minister's statement as regards these cancer registries tonight. As the Commons Science and Technology Select Committee stated, high quality data on incidence and outcome of cancer is an essential tool in the study of cancer". Cancer registries are a vital instrument in collecting and providing that data. We entirely agree with the Science and Technology Select Committee when it strongly recommended the introduction of the necessary legislation to grant that exemption.

In conclusion, this is a complex Bill. While we have a number of key objections, as the Bill passes through the House we would judge each of the provisions of the Bill on their merits.

7.28 p.m.

Baroness Masham of Ilton

My Lords, I thank the Minister for his introduction of the Bill. I look forward to the Minister's answers to the many queries and questions which I am sure will be forthcoming. As there seems to be so much concern about the proposed abolition of community health councils and the fragmentation of patient support, I felt that I should add a few words to this important debate. In my view, there is nothing more vital than health, be it animal or human.

Over the years, I have served on a CHC, a regional health authority and an FHSA—Family Health Service Authority. Every time there is a change, there is disruption and insecurity and extra costs are involved, which take away from direct patient care. Over the years I have felt that the name "community health council" has been misleading. Why cannot the CHCs be renamed patient health councils or people's health councils and be built on and strengthened? If the patient's watchdog is dismantled altogether, it will be a waste of many years' work. Patients need a direct and simple access point for help when they need advice and support. This body should, above all, be independent of any health trust or health authority. The Government should have learnt about the need for independence from the Bristol cover-up, which proved to be so tragic.

A stronger role for public advocacy is envisaged, which I support, as does the BMA. But why cannot that be a section of the patient or people's health council? One of the criticisms of the CHCs has been that they did not have teeth. The Government could give them more duties and more funds. One duty, as an independent body, could be looking at the cleanliness of hospitals and the standards of patients' food. Unless an independent body does that, no one will speak out on behalf of patients.

An example of internal petty practices that occur in hospital was given to me the other day. I met the surgeon in charge of the A&E critical care unit at the London Hospital. The London Hospital is in need of rebuilding and has had great difficulty in keeping infections under control and the hospital clean. This dedicated person who had the patients' needs at heart had put a white rubber floor in the critical care department so that dirt could be shown up and it would be kept clean. But the new floor was removed. When people try to fight hospital dirt and infection, they need encouragement, not a negative destructive approach. That is why independence is so necessary. An independent free spirited committee can bring in a breath of fresh air. If the members are silenced by the hospital management, they will not be able to speak out on behalf of patients and their presence will be pointless.

I hope that the Government will think again about dismantling CHCs and will keep them as an umbrella for a strengthened user/patient council, incorporating the patients' advocacy and liaison services. The powers, membership and terms of reference of the Government's new proposed bodies are to be left to regulations. When patients should come first, this vagueness does not seem acceptable.

So many tragic cases have been highlighted by the press recently. Is it not time to build the confidence of the users of the NHS by giving them a united body that they can depend on for help and support? The professional bodies, such as the BMA, the Royal College of General Practitioners, the Royal College of Nursing, the college of physiotherapists and occupational therapists, and others have support from their colleges. Surely the patients must have an independent watchdog with a clear, strong bark that is listened to so that complaints are acted on in a quick and efficient way.

The Government should not feel threatened by patients. Everyone should be working for their overall well-being. But I hasten to add that there are some very difficult and demanding patients. An independent body should work closely with hospital trusts to help alleviate and solve such difficult matters as violence on health premises.

If there are no plans to abolish CHCs in Wales, that will lead to more confusion and fragmentation for the public. Surely we need a united National Health Service with similar bodies to help the public with their many requirements.

I hope that the Government and your Lordships will be able to find an acceptable solution to Clause 67. This relates to patient information. There is concern that the ad hoc advisory group which the Government are to set up will not report until after the Bill itself has passed through Parliament. The Bill seeks to introduce the power of the Secretary of State to make regulations in three areas: requiring the disclosure of patient information; prohibiting the disclosure of patient information—for instance, sale to commercial interests—and requiring patients to be given a copy of certain information about them. These regulations could override any common law duty of confidentiality. With an anticipated huge rise in very private genetic and other information about patients, the Catholic Union has thought that the right of access to such sensitive information should be at the discretion of that individual, with very few legal exceptions.

It is important to find the right and acceptable balance that will benefit everyone who needs information. I have found recently as an employer that it has been impossible to get any information from our doctor's surgery after a member of staff was off sick for five weeks. The member of staff signed a form to say that he was happy for the employer to have the information. There was no reply from the surgery. It transpired during investigations that an old TB lesion was found on an X-ray which he did not know he had had. As there was concern from other members of staff who had been in contact with him, we wrote again to the surgery, with his permission, to see that everything was safe. We never received a reply.

It seems that there are grey areas relating to patient information and doctors. Patients and interested people such as employers are not sure about the correct procedures. I should be grateful if the Minister could tell the House what the Government propose to do to get the balance right.

There is so much in the Bill that makes one suspicious that elderly and disabled people may be worse off with care trusts. Care trusts could mean that for the first time services provided by the NHS would no longer be free at the point of delivery. I am sure that the NHS should remain responsible for funding long-term healthcare, including both medical and nursing care, wherever that is provided. If that does not happen, then there should be an insurance scheme so that people needing care do not have to live with endless worries as their conditions worsen. Severely disabled people in some districts are now not able to have a bath as both health and social services decide that it is not their responsibility. I ask the Minister whether he thinks that care trusts would help in that kind of situation, or will it continue to become more difficult for severely disabled people to access these kinds of services?

I hope that your Lordships will continue to highlight the concerns about the Bill and will improve it as it proceeds through your Lordships' House.

7.39 p.m.

Lord Archer of Sandwell

My Lords, one important contribution that your Lordships' House brings to the constitution is the expertise that it can assemble on any specific question which falls to be debated. For that reason we tend to arrange ourselves virtually in colleges. It is possible to predict fairly accurately which noble Lords will participate in a particular debate. By that test, I am an intruder. The noble Baroness, Lady Masham, is a distinguished and well-informed member of that college. I am not. It is not often that I am emboldened to intervene on matters relating to the health service. Perhaps I may, in a single sentence, both explain my intervention and declare my interest.

I am privileged to be president of Methodist Homes. It used to be called Methodist Homes for the Aged, but we felt that the last three words were too restrictive and gave a rather misleading impression of all that we do. A few years ago we changed our name. Over the 58 years of our existence, we have acquired some expertise in care for those suffering from dementia, as I am sure that the department of my noble friend will testify.

I am aware of the calls on my noble friend's time, but may I recommend that he read the report of the Audit Commission, published in January 2000, entitled Forget Me Not: Mental Services for Older People, or at least, if he will, the section on dementia, which devotes a page and a half and a case study on the Methodist Homes special residential home at Mayfields in the Wirral.

I venture to intervene, therefore, on a narrow issue arising from Clause 56. Some may say that this is not a Second Reading speech but is virtually a point to be made in Committee. However, knowing my noble friend's readiness to listen and believing as I do that open government should evoke an open response from the Back Benches, I thought it better to make these concerns known at the first opportunity.

The Royal Commission was unanimous in its view that free nursing care should be provided for people in residential homes. The present position is indefensible; namely, that nursing care should be provided free for those in hospital or in some nursing homes but not for those in residential homes. The Government have made a generous response by moving to rectify the anomaly. They are much to be commended for that.

I understand that it does not follow that the Government should also provide free social care. We all believe in joined-up government, but inevitably distinctions arise between various needs and the responses to them. Sometimes, distinctions have to be made. I thought that the debate within the Royal Commission was well argued on both sides. I do not presume to arbitrate between them. The noble Lord, Lord Clement-Jones, who temporarily is not in his place, advanced a powerful argument. I shall not say that he did not tempt me. It requires some self-control on my part not to weigh in behind him, but I hope that he will forgive me if I confine myself to the narrow case that I have intervened in order to argue. I do not presume to intervene in the Royal Commission debate. I shall leave that to those who are better informed. Indeed, I rather feel like someone on a battlefield who crawls in between the opposing armies, not to support one side or the other but merely to carry a civilian casualty to safety.

I do not even challenge the criterion of nursing care which the Government propose to adopt. The Government have gone further than the Royal Commission recommended. Nursing care will include not only tasks carried out by a registered nurse but tasks delegated by a registered nurse. I intervene to make only the narrow point that a distinction which may make sense in one situation may not be appropriate everywhere and throughout infinity.

Dementia patients are among the most vulnerable members of the population. They may alternate between periods of clarity, what one may be tempted to call normality—although who among us is normal all the time?—and times when they slip away from the world, when they may regress to earlier periods of their lives and when they are wholly dependent on the care of others. The treatment to which they respond may vary from medication to patient conversation and stimulation which will bring them back to life. To distinguish between those two kinds of treatment is the most irrelevant of artificial distinctions.

It is certainly not a distinction between skilled and unskilled treatment. Some of the carers in our homes are highly trained and, through experience, they have acquired a way of relating to a patient which can virtually work miracles. Perhaps I may refer again to the Audit Commission report and quote one sentence from its study of Mayfields: Staff training and support are fundamental to the regime of the home in which relearning and maintaining living skills is emphasised at all times". One may see a patient who is totally switched off and totally unresponsive—verging more on the unconscious than on a person who can respond to the environment. A month later one may return to see that patient taking part in a game, enjoying a role in the community or telling someone about a treasured memory. If that is not healing, then the word has no meaning. It may entail understanding what lies behind apparently irrational conduct. For instance, one lady became restless just before four o'clock each afternoon. She would get up and wander off. It then emerged, through patient conversation, that that was the time when she used to collect her grandchildren from school.

It may be a time-consuming form of treatment, time spent on a one-to-one basis, but it may be the difference between life and death. A dementia patient is not only one more person in need of social care and the financial cost cannot simply be absorbed into the statistics about the numbers of elderly people. It is a specific need to which a distinction between treatment by a registered nurse and treatment by someone else is not meaningful. But if it becomes known that treatment for a patient in a nursing home is fully funded, whereas treatment for the same patient in a residential home is not, not only is there an anomaly, but there will be an incentive to choose the more expensive option of the nursing home.

What is done at Mayfields is as much a healing process as what is done in a hospital ward or a doctor's surgery. It is every bit as truly a treatment as giving an injection or measuring out tablets. It is as time-consuming and expensive. The cost is beyond the resources of most patients and most social care budgets. It is an appropriate concern of the health service and I hope that my noble friend will reflect on it.

7.48 p.m.

The Lord Bishop of Lichfield

My Lords, I should like to build strongly on what was said by the noble and learned Lord, Lord Archer of Sandwell, and the human realities to which he referred.

It so happens that, for the past 13 years, my family and I have been caring for my wife, who struggled with Alzheimer's disease at home. She died several months ago, but peacefully and at home. Throughout those years we were helped greatly by many people in the NHS: district nurses; GPs from the local practice; and a very good consultant who came to see us from time to time. Their help as professionals was invaluable.

However, as many noble Lords will know, a huge amount of time is taken up by that daily, hourly, grind that the Royal Commission called "personal care"—that care of a person, often through the major part of the day and night, which is what the stuff of nursing is about, so vividly described by the Royal College of Nursing. I refer to bathing, feeding, dressing, toileting, comforting, communicating, changing dressings, checking for pressure sores, assisting with lifting and so forth. It is this personal care which the Royal Commission recommended should be free, along with nursing care. In other words, in some cases we need at home what the noble and learned Lord, Lord Archer, has so movingly proposed should be available in a nursing home.

Why have the Government rejected this? It is perhaps worth recalling the Royal Commission's definition of "personal care". By 'personal care' … the Commission mean the care needs which give rise to the major additional costs of Frailty or disability associated"— but not always— with old age". This type of care may be delivered by people who are not registered nurses, in particular by family members, by care assistants and by agencies.

I share a widespread disappointment that the Government seem to have decided to reject that key proposal of the Royal Commission. Not only does this perpetuate the artificial distinction between personal care and nursing care, to which the noble Lord, Lord Clement-Jones, referred; it also runs counter to all that the Government have said elsewhere in the NHS Plan about breaking down the barriers between health and social care, which, as they have said, can often be a source of confusion to people in society.

This leads me to the final and key point of what I wish to say from my own experience. Many people in this situation simply long, if possible, to be at home. My wife longed to be in her own home. This is because, even with a person suffering from dementia, the sounds, the routine, the voices—voices that perhaps an Alzheimer patient can remember from the past—can take away, as nothing else can, the great ghosts of anxiety and confusion. Free personal care at home can foster well-being at a very deep and important level. Surely, while it can be carried out, it takes away the pressure on hospital wards and residential homes. That is why personal care is so vital.

The introduction of the Royal Commission concludes with these words: The moral test of Government is how that Government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life—the sick, the needy, and the handicapped". That kind of moral choice is, I submit, integral to what our debates and reading of the Bill are all about.

7.53 p.m.

Baroness Carnegy of Lour

My Lords, we have just heard two very moving speeches from noble Lords, based on their own experiences, on one aspect of the Bill. Perhaps I may first speak more generally about the direction in which three or four aspects of the Bill seem to be taking the National Health Service. I shall then raise one question of detail concerning Scotland.

Listening to the Minister week by week, as in his able and assiduous way he answers Questions and makes Statements on behalf of the Government and describes the system, it is not difficult to see why the National Health Service has become so impossibly difficult to manage and why the costs are so difficult to contain. Some of the obvious factors, such as the ever burgeoning possibilities of technology and medicine generally, are unstoppable by the Government and must somehow, to an extent, be accommodated, but there are two underlying, obvious and long-standing problems which can be addressed.

First, the National Health Service is far, far too big a business to manage in detail from the centre. Secondly, the system means that those who work in the National Health Service constantly have to respond to changes in the way they operate because of initiatives deriving from a political agenda. Until a government, of whatever persuasion, come to power with the courage to free the system—to free managers and health professionals to meet their local needs locally as they think best and to be judged on the outcome of their work as it affects patients rather than on their ability to conform to the system as a whole—until such extremely radical change happens, the problems, I fear, will continue to grow.

Given that perhaps somewhat unnerving context, how will the Bill affect the direction of the National Health Service? Some of its proposals go the right way and are very welcome—my noble friend Lord Howe has enumerated several, including, of course, allowing pharmacists and other professional people to prescribe; that is a decentralising, freeing-up measure—but if the overriding need is to decentralise and depoliticise the National Health Service, the Bill seems to be moving in the wrong direction, despite what the Secretary of State seemed to claim in another place.

Clause 6 is an example to which my noble friend referred. At first glance it looks good; it looks like decentralisation. National Health Service bodies will be able to employ whom they want to employ on the terms they decide. Having read that, one supposes that those terms will have been negotiated locally. But, reading on to the next part of the clause, it turns out that this must be done in accordance with the regulations and directions issued by the Secretary of State. He must have consulted nationally, which presumably means that he must have negotiated nationally. That is centralisation, not decentralisation.

Another example is the concept of "earned autonomy" for health authorities, which the noble Lord, Lord Clement-Jones, who is not in his place at the moment, seemed to favour very much. That is a system to reward success and penalise failure, as set out in Clause 2. Presumably this is an attempt to draw on how incentives work in the business world, where, in a free market, with freedom to innovate, success brings the opportunity for more success, to the benefit of all concerned. But here there is no free market, and so under Clause 2 success in the National Health Service will be measured according to how well a body has conformed to stipulated criteria, and those criteria will be set by the Secretary of State. Whatever else is the effect of earned autonomy, it will certainly discourage innovation and enterprise and will be massively centralising.

As to the need for less meddling by politicians, the Bill brings local government councils formally into the heart of the National Health Service system, I think for the first time. Clauses 8 to 10 mean that local government politicians will form a committee, under regulation, charged with scrutinising what is going on in their local National Health Service and, where they see fit, making recommendations for change. Under local government rules, most of their discussions will take place in public.

One can imagine the scene—I am an old local government girl myself—if perhaps, contrary to the view of the scrutiny committee and its parent local government councils, the Secretary of State declares their local National Health Service body as having failed and wheels in new management. An enormous balloon will go up. The local government associations are pleased at this proposal. We shall examine those clauses carefully in Committee. But for the time being we should note that there will be a whole new political dimension with which National Health Service staff will have to cope. That is inevitable.

It seems to me that there will be at least one increase in trade union and professional association politics in the National Health Service if Clause 56 is left as it stands. A number of speakers referred to the proposal that nursing care in nursing homes should be free. It is a good proposal. "Nursing care" is defined as, care provided by a registered nurse". The Minister added something extra in his introductory remarks. I shall read his remarks with interest in Hansard. I do not think it is in the Bill, although I may be wrong.

Surely there will be pressure in nursing homes to maximise what registered nurses do for patients, because it is free, and to minimise what others do because it has to be paid for. I may be reading this wrongly, but I think it could cause a great deal of political trouble. One sees old-fashioned demarcation disputes looming. The Royal College of Nursing has already started the argument in a letter which I read today. We must surely examine that matter in Committee.

That brings me finally to my specific question relating to Scotland. Clause 63 rightly proposes that there may be regulations enabling someone resident in England to be placed in a nursing home in Scotland, perhaps to be near his or her family. Should the Scots Parliament finally decide, as the Scottish Secretary seems to be proposing, to provide free personal care as well as nursing care in Scotland, who will pay for the personal care of the English resident who goes to a nursing home in Scotland—the English authority, the Scots Parliament through the Scots authority or the patient? How will that transaction be seen by the patient in the nursing home? What will happen if a Scots resident, entitled at home to free personal care, moves south, where personal care is not free? How will that look to the patient? That is a question for Committee. I flag it up as a subject that we shall need to examine in some detail. It is an important devolution issue. Noble Lords know that at present I am very keen on devolution issues. I find them in all kinds of surprising cases, and I believe that this is one such case.

No one, least of all the general public, wants the National Health Service to be more centralised, more unwieldy or, indeed, more politicised. There is a great deal of work to be done in Committee.

8.3 p.m.

Lord Smith of Leigh

My Lords, the National Health Plan on which the Bill is based at last puts the interests of patients above the interests of others. For too long, the interests of organisations and professionals have held sway against those of the patient. I hope that we can use that as a judgment when discussing the Bill's provisions.

Perhaps I may concentrate on three aspects of the Bill, two of which may be unexpected. I need to remind the House that my interest as a local government leader is in the scrutiny role of local authorities as regards the NHS and care trusts. The other one concerns the distribution of primary care.

In terms of scrutiny, local authorities are well placed to provide the role which, as other speakers have noted, CHCs have not managed to provide consistently across the country. CHCs have done well in certain places, but across the country that is not the case: they have been reliant on whichever professional was in charge of a particular CHC. Local authorities have the ability to do that, given that they carry out certain tasks: they should look to a review of health provision, and not simply concern themselves with health organisations. That is an important distinction. They need to contribute towards the future development of health services, and not merely look at what has happened in the past. They need a positive role. In terms of public involvement, I am pleased to see the provision in Clause 11; local authorities should be playing a part in that.

One of the experiences of local authorities in recent years has been in terms of "best value". They can perform a useful role in looking at the NHS in terms of what they have learnt about best value in their own organisations. They should adopt a robust and effective style; but it should not be confrontational—that will not get anyone anywhere, as I believe local authorities have learnt. The regulations regarding scrutiny will need to be as flexible as possible because of the boundary complexities of local authorities and the various health organisations. Where health authorities are concerned, the boundaries are rising upwards towards a sub-regional rather than a local basis. We need to be concerned about how we make sure that scrutiny is carried out as the work of the new health authorities that will emerge. Clause 8, dealing with the distribution between district and county councils is relevant in those areas; however, in metropolitan areas county councils do not exist, and arrangements need to be found.

One aspect of scrutiny that needs to be raised is the fact that many decisions and activities of health authorities are carried out on a regional basis rather than on a local or sub-regional basis. Who will be responsible for reviewing and scrutinising the work of the NHS at regional level? I am sure my noble friend is aware of the work of the regional assemblies and chambers which the Chancellor is entrusting with the greater scrutiny powers of the RDAs. Perhaps this is a role that they could take on.

Turning to care trusts, it is common sense that, for patients, the roles of community care and medical care need to be integrated. An elderly person who may enter the care system could be referred either through the social services system—through a social worker—through a general practitioner or, if he or she has an accident, through the accident and emergency unit of the health trust, or through a consultant in geriatrics who is called in to examine the patient.

Care needs to be provided by a number of agencies, and that needs to be done carefully and considerately. For me, this was a theoretical problem until recently, when an elderly relative began to need the support of the various agencies. The process has worked so far, but only just, and there has certainly been one weak link in the chain. It may be that I am more able to push for things to happen than other people are.

We can work through the provisions of the Health Act 1999, which provided a number of powers in relation to joint working. In many areas the provision is working well. The current Bill attempts to bring in organisational simplicity. That is greatly to be encouraged. However, we need to make sure that we work on what is happening at present and that we build on the experiences of local authorities and health organisations.

As my noble friend implied in his introductory remarks, he recognises that there are concerns, particularly on the part of local authorities, regarding the governance arrangements in the new care trusts. They appear to be NHS bodies. Although we welcome the comments regarding the involvement of local authorities, we are concerned about how they will operate. I hope that my noble friend understands that this is not merely a concern about not wishing to give up control. Anyone who becomes involved in partnership recognises that the first lesson is about giving up control. We are concerned about outcomes. NHS organisations reflect the culture within the NHS. Effectively, we can say that it is an "ill-health" service, geared to dealing with people who have medical problems and medical needs. Health prevention and community care may not stand up to the pressures of acute services within a new care trust, and that is what concerns local authorities. I can give your Lordships an example from my area. With the help of the health authority, my local authority has worked out a system of what we call, "fitness on prescription", where people who may have had a heart attack are given the ability to go to a local authority or to a gym so as to get some prescribed regime of diet and exercise to try to improve their general health.

When primary care groups were introduced in my area, the first question that those concerned raised was whether or not that was necessary expenditure. We were concerned about that development. My area is interested in setting up a care trust, but we need to ensure that we can achieve the objectives that we are set as a local authority in providing community care, and that what we propose is not considered as being just a new way of providing acute care. I believe that the general principle is that partnership cuts both ways.

I have asked my noble friend the Minister a question and have been communicating with him regarding my concern about the distribution of general practitioners across the country. I do not quite share the view of the noble Lord, Lord Clement-Jones, that the MPC has done a good job in this respect. It does not look like that from the point of view of certain areas. A study of health statistics will show that there is a very simple correlation between poor health statistics and a low number of general practitioners. Of course, there are other factors that also mesh in; for example, the social economic factors of the area are keys to health statistics. Therefore, health provision is most important.

Instead of areas of high deprivation and health need having a larger number of GPs to help to counteract the situation as one might expect, the truth is exactly the opposite. Areas of high deprivation in the North usually tend to have fewer GPs. This means that those GPs have larger practice lists in areas that already have high health need. Clearly this becomes very unattractive to them. The problem is urgent. It is not only a current problem; but also, as I have told my noble friend, the age profile of general practitioners in many areas, especially in deprived regions, needs to be considered. In my area about one-third will retire over the next five to six years—in other words, a key factor is replacing them, as well as providing for more. We need to bear that in mind.

We must ensure that we can make general practice an attractive career, not just for areas of general affluence and pleasant lifestyle in the South and other parts of the country, but also for those areas of deprivation. We need a proper package of incentives. I am pleased that part of the Bill proposes a "lift" scheme to improve premises. We also have a high number-40-odd per cent—of single-handed practices, as against the national figure of under 30 per cent. In many old premises, old terraced properties, there are inadequate facilities. This scheme will help to produce a level of general practice that is much better than has been the case in the past. I hope that my noble friend has got this right.

If the debate so far is anything to go by, I am sure that we shall have a lively and interesting debate in Committee when we explore such matters in detail. I want to test the Bill by the simple criteria of whether it puts the interests of patients first. If it does, I shall support it.

8.13 p.m.

Lord Rix

My Lords, I hope to take and comment on this Bill as a single entity, even if that is not what it looks like. The willing suspension of disbelief was, after all, an important aspect of my theatrical career. Taken in that way, and viewed from the perspective of a person with a learning disability and their family—a role, as president of Mencap, I seek to undertake—if it works, as I assume that it is intended to work, the Bill could give rise to the following 10 bullet points.

One: NHS bodies being judged and rewarded according to the extent to which they specify and provide equality of access for people with learning disabilities, with private sector finance being used to buttress what they do in this area, and not just on large buildings and high technology. Two: NHS bodies planning, in partnership, the health service contribution to fulfilling the ambitions of the forthcoming learning disability White Paper.

Three: Local authorities, which share with the NHS responsibility for learning disability services, using their new scrutiny powers to look at the discharge of shared responsibilities towards people with learning disabilities. Four: representation of people with learning disabilities and their families in the brave new plethora of consultative and advisory bodies, and the issues that concern them being taken on board by those bodies. Five: independent specialist advocacy services that at last ensure a formally recognised voice for people who are not able to speak for themselves—a point that we have been stressing for over 30 years.

Six: a place for people with learning disabilities in the new-style dental, pharmaceutical and other community services, so that special needs are better addressed in the new services than they have been in the old. Seven: care trusts, where this is the right local solution, catering for integrated learning disability services, ignoring neither health nor social care needs, and linked to housing, educational, employment, leisure and financial needs. At present, if Florence Nightingale were walking round with her candle trying to find who is responsible for learning disability health services, she might spend an extraordinarily long time in the dark.

Eight: a charging system which, when the hard work now in hand reaches its inevitable conclusion, recognises the operational impossibility of sorting out nursing from social care needs on any fair and convincing basis, especially where intellectual disability or cognitive impairment is concerned. Nine: replacement of preserved rights to social security funding by a system that guarantees realistic funding levels and personal choice. It must not deny people both of those basics in the interests of tidying up the system.

Finally, I turn to number 10: rules on patient information that recognise the problems and protect the interests of those who can neither access their own records nor authorise access by others. I apologise to noble Lords for that catalogue, or rather I justify it by the need to draw out issues inherent in the Bill but which have, as far as I can see, received no recognition in earlier debates in another place. If major social reform is to work, it has to work for everyone—not just for some people. That is what inclusion is about; and it is a great deal better than partial policies for limited groups.

Perhaps I may add another tincture to my modest rose. I should like to elaborate on a few of those points, though not, your Lordships will be relieved to know, all of them. We are offered a new structure for consumer involvement. That structure now seems more likely to incorporate the essentials of independence, cohesion and clarity of purpose. However, as other noble Lords have stressed, whether it will deliver less or more than community health councils and their national co-ordinating body have sometimes delivered is open to question. I fear that I hear the distressing sound of babies gurgling down the plug-hole. Whatever the eventual outcome, it is absolutely crucial to preserve existing expertise under any new dispensation.

It is some time since the then junior Minister for health, Mr Paul Boateng, promised people with learning disabilities—I was present at the time—seats on health authority and trust boards. I support entirely the worthy ambition in this Bill to put patients at the centre of the NHS; but that should be all patients, particularly patients whose voices are not heard by consultants and managers in the course of their normal social round. The challenge is to secure a voice for people with severe learning disabilities, or those with the physical and mental frailty of extreme old age, or severe and chronic mental health problems. That is separate from the advocacy at individual level that is needed, and which is something other than an effective customer relations department. I sense that the Government have moved on this, though every government department that gets close to saying that we need the rights to personal advocacy locked up in the disabled persons Act of 1986, draws back and acknowledges the principle without willing the means.

On care trusts, I shall repeat my call for clarity on responsibility for learning disability services as we yet again re-organise. I have some confidence in what could happen in Oxfordshire where a specialist learning disability trust with an excellent reputation for joint commissioning moves into new relationships. When I look elsewhere and see learning disability being treated like a game of pass-the-parcel with the players constantly changing, I sometimes feel despair rather than optimism.

The transfer of preserved rights funding from social security to social services has been presented as rationalisation and enhanced flexibility, and that is indeed part of the truth. The other part is that the individual brings less negotiating power to the negotiating table because the local authority is the purse bearer. The rationalisation of funding from this Bill and from the supporting people programme is fine if there is enough funding and if the choice of the individual is not sacrificed in transferring that individual's traditional benefit rights to the local authority to spend on their behalf. Where learning disability is concerned, we are trying both to double or treble the annual increase in new places for people to live away from the family home where most now live and to diversify the choices of accommodation and support available. In my view, therefore, it is essential that the increase in local authority responsibility should be matched by an increase in funding. Local authorities might be able to do different things with transferred money, I doubt that they can do additional things. Prospero had a vision and a very splendid vision, but he recognised that the "insubstantial pageant faded" and was no substitute for solid reality. To complement the Bill we also need a visionary White Paper on learning disability matched by a realistic possibility of implementing it.

Finally, I turn, as the Minister will have anticipated, and as other noble Lords have done, to Clause 56. I have cause to be grateful to the Minister for his patient and helpful responses to a series of approaches from me about the free nursing care issue. He has kindly offered me a further meeting after today's debate. At risk of stating the obvious, we have moved from charges for nursing and for social care in certain settings to the prospect of free nursing care. That must be an improvement, and it carries a cost, and I acknowledge both improvement and cost. Unfortunately this indicates that where the assessment identifies nursing needs but there is no nurse as such at all, the resident has to pay despite the nature of their assessed needs.

There are at least two other approaches which I think would make more sense. One, and much the most attractive, is the Royal Commission proposal of free personal care. The other is to look at the totality of people's needs, and for those with the highest (and, therefore, most expensive) support needs to be designated as nursing/high support cases and have their care free. I add to the most moving pleas of the noble and learned Lord, Lord Archer of Sandwell, and the right reverend Prelate the Bishop of Lichfield and say that all—I stress the word "all"—people with severe intellectual impairment, whether resulting from dementia, learning disability or progressive neurological damage, would fit this category. So would people whose severe physical disability puts them in a like position. I do not back wholeheartedly the less comprehensive approach because my heart is with the commission's option, but I air it as a distinct possibility.

We have created a more complex world of care and support in which people who would once have lived and died in hospital now live and die in residential homes, in supported accommodation or in their own homes. We have also ensured professional overlap so that allegedly nursing functions are commonly carried out by those who are not nurses, or by those who are but because they are in a residential home rather than a nursing home are not allowed to practise as a nurse. We need, I suggest, to follow through these current realities into our financial arrangements and not to plunder modest assets above an extremely low capital threshold in order to pay for what would once have been free hospital care.

I look forward to the Minister's response. There is much good in the Bill. No doubt the considered views of your Lordships will make it even better, and I trust that the Minister, unlike Horatius holding the bridge, will allow a certain degree of movement.

8.25 p.m.

Baroness Ashton of Upholland

My Lords., noble Lords may recall my interest in healthcare as the chairman of east and north Hertfordshire health authority and chairman designate of the newly created Hertfordshire-wide health authority.

In making my comments on the legislation before us I shall try to speak from the perspective of implementation—what will be the effect of the legislation on the NHS operation on the ground. Not surprisingly, I have views on all parts of the Bill but tonight I want to confine my remarks to a few aspects. I have chosen these because in the course of the past week I have had the opportunity to consider how each one might affect the work that we are undertaking.

To set the scene a little, I was surprised when I became a health authority chairman to discover the level of independent working that existed within the NHS for different bodies—GPs, ambulance services, residential care, care of the elderly, hospitals and so on. One of our greatest challenges has been to get our health system to think of itself as precisely that, a system, and for each organisation to understand the impact upon the other. That in part includes holding each other to account. It is that accountability that has had the greatest impact on the operation of our services.

The first part of the Bill I would like to comment on concerns the enhanced powers to intervene in rewarding success and dealing with failure. In my opinion this is to be wholeheartedly welcomed. In my experience, we are too slow in the NHS to recognise problems and even more so to deal with them—clinical or managerial. I have seen problems flagged up for years before being dealt with. I was particularly pleased to see in the legislation that health authorities that perform well will have the opportunity to receive enhanced resources and can also be a channel for additional resources to primary care and acute trusts. This will enable health authorities to play a stronger role in performance management and development rather than relying on a sometimes personal authority that exists within a health authority.

My only note of caution concerns how we assess performance. Noble Lords may know that I am no fan of league tables as they currently stand. They often state the blindingly obvious and demoralise people along the way. I am not in favour of their abolition; rather I should like to see greater sophistication that demonstrates true performance and true improvement. I am though a great fan of information. I have sat through meetings to be told that a managerial process or a clinical idea are carried out because they feel right. Now I have the quality of information at my disposal to find out just how right that is and to find out why.

My next point concerns the new powers for health authorities in relation to GPs and in particular to out of hours provision. Not only is this a problem for individual patients but it also has an impact on the use of nurse-led care for the elderly in particular, where the ability to call GPs and get a swift, high quality service is crucial. This matter has been raised with me during the past week in relation to NHS continuing care facilities on my patch. Under the new legislation we shall play a stronger role in ensuring consistently high standards through accreditation of out-of-hours cover and the power to suspend or remove accreditation where it has failed to supply that high quality service. This will impact directly on our confidence in the provision of what I believe is important; namely, nurse-led care backed by GP cover.

I want to touch on the setting up of care trusts. In Hertfordshire we have just established, with my noble friend the Minister's permission, the Hertfordshire Partnership Trust to provide services for people with learning disabilities and people with mental health problems. I note that the noble Lord, Lord Rix, is not present, but I should say to him that I hope Florence Nightingale will not even need to light her candle in Hertfordshire to find out how to access learning disability services and the people responsible for them. The commissioning arrangements for the trust will be carried out jointly with the county council and staff will transfer into the trust through secondment.

The setting up of care trusts is not far from where we currently are and the principles behind them are therefore to be warmly welcomed. Our ambition in setting up a partnership trust is to abolish duplication and to provide a seamless service for the people who need these services. That comes down to simple things such as how many forms they have to fill in: how many assessments they have to undergo; not worrying that funding will not be there because it falls between two different organisations; needing to get money from more than one pot and so on. Noble Lords may recall that one of my themes is joined up thinking leading to joined up implementation. This is a good example.

It would be a surprise if today I did not touch on what has become the most famous chapter in the history of the NHS, namely Chapter 10. I have a good, strong relationship with my community health councils who have served their community well. But I wholeheartedly support the proposals within the Bill.

Over the past 10 to 15 years I have observed the changing role of the consumer in corporate social responsibility. Consumers changed their purchasing habits to reflect their views on the environmental or social policies of the companies from whom they purchased their goods. That had an impact on shareholders, who also played their part.

In social policy the radical shift has been of a different nature but none the less significant. In the 1970s and 1980s the problems of many social groups in society were represented through intermediary organisations rather than through the consumers or the groups themselves. Community health councils are a classic example. In most fields, the shift has been clearly towards groups speaking for themselves. The impact is much greater, the message more vibrant and—dare I say—the effect less patronising. The changes in the Bill reflect this broader change in society. Patients' forums can provide that direct access. They can speak for themselves.

From the letters I receive and the complaints which made their way to my desk, the greatest criticism that underlies complaints made by patients of the NHS is about communication. Too often a few well-chosen words, an explanation of why someone was kept waiting or why they were given a particular treatment would have resolved the issue. Equally, if the patient had been able to object there and then to unsatisfactory food or lack of information, or to question what is happening, it would have led to a better resolution. Patient advocacy and liaison services have long been needed and it is right that they should be a function of NHS trusts. My response to their introduction is a frank, "It's about time".

I recognise the need for real scrutiny of health services on a health economy basis. I also recognise the need for democratic legitimacy in this scrutiny. Therefore. I welcome the role of county councils and the district councils—in my case the Hertfordshire County Council—where appropriate. Health services belong to the people and until we find a better option than democracy it is right and proper, as my noble friend Lord Smith of Leigh indicated, that these democratically elected bodies should hold us to account on the people's behalf.

I should like to say a few words about professional advocacy. There is no doubt that we shall continue to need strong advocacy services for patients. Things do go wrong and need to be addressed speedily and effectively. I am keen to see services developing that encompass some of the professional groups which have represented, for example, people with learning difficulties on, in my experience, a county-wide basis, building on the knowledge and expertise which undoubtedly resides within the CHCs.

My small plea is for the pressure to develop good services to be assisted by the development of better communication within the NHS as regards what works. Ideas are implemented at a local level; and down the road another organisation will struggle, using huge amounts of time and resources, to reinvent that wheel. It is a challenge to get NHS people to go to see what is happening elsewhere, but the situation is not helped when they do not know where to go. The establishment of the social care institute for excellence—I believe that it will be heralded tomorrow—is a good example. One of its aims is to create a knowledge base of best practice and social care. Systematic information, encouragement or insistence that organisations share with each other all help to make the NHS more effective.

I welcome the legislation before us for what it can do for patient care on the ground. The overriding principle of creating strong community primary care as the focus for the delivery of services is backed up by stronger voices for patients and greater powers to ensure good services delivered effectively. I wish the Bill a speedy and successful passage.

8.34 p.m.

Baroness Fookes

My Lords, the Minister spoke with enthusiasm about what he regards as a major reform of the National Health Service. I do not doubt his sincerity but for someone like me who has watched a wave of reforms over the past 30 years, I hope that I shall be forgiven for a modicum of scepticism. Surely wave after wave of reforms should have solved the problem by now. If not, I doubt the possibility of this Bill delivering where others have not done so.

My first concern is that we are too ready to throw out what we have had in the past without thinking about the disruption caused by changes. In recent years, the NHS has seen innumerable changes. One has to weigh the theoretical good that one hopes will be involved against the disruption and uncertainty of making the changes. We should be far more wary than we are of seeking to make such changes following many others in recent years. I sometimes feel that the NHS would do far better if we just left it alone for a few years to get on with the job. I realise that that is probably a futile aim.

I turn to what the Bill seeks to do. First, I regret deeply the decision to abolish the community health councils. I agree that not all of them were as effective as they could be but that does not seem a good reason for getting rid of all of them. Surely we should seek to build on those where there has been good practice, to reform where necessary and to work on something that is now widely known. Instead, we are setting them aside and turning to other means of dealing with their problems.

Only this afternoon, I was visited by three members of the Plymouth Community Health Council. They were adamant that they had done a good job; they could do a better job and would like the opportunity to do so. It is depressing for those who have given good service over many years that their efforts should now be seen to be futile and useless.

What are we getting in their place? The situation reminds me of that mythical monster the Hydra in Greek mythology. It had several heads so when you cut off a head at least three others sprang up in its place. That is what we are getting here.

Let us go through the new arrangements for dealing with patients. I refer to the patient advocacy and liaison services. It sounds slightly better when it is called PALS. The Minister explained that the Bill only involves matters which require primary legislation; and that we should consider a wider canvas. Therefore, I believe that it is fair to consider the patient advocacy and liaison services. At first sight they seem a good idea. They will be employees of the various trusts with the specific charge of overseeing patients' complaints and having direct access to the chief executive. But some patients will be put off by the term patient advocacy and liaison services. Will everyone know precisely what that means? I doubt it in some cases. If the body were called the complaints department people would get the message.

Even today when everyone complains more than they used to do, some people will be fearful of making a formal complaint, particularly if they are a patient in a hospital at the time, or are a relative and concerned that the patient might be picked on or treated more badly as a result of a formal complaint. So one must beware of assuming that this body will be the be-all and end-all for individual complaints.

Then there are the independent advocacy services, which, I gather, will deal with issues that cannot be readily resolved. I am not quite clear how a patient would check in to the independent advocacy services. Perhaps I have missed something. I hope that the Minister will explain, either this evening or at a later stage, how the system will work.

Then we have what the noble Lord, Lord Rix, rightly called a plethora of other patient fora—no, we call them forums these days. There are patients forums, patients councils and the local authority overview and scrutiny committees. I find the whole thing depressingly complex and I wonder how much good those bodies will do. Above all, who will be members of those bodies? Only a limited number of people have the will, the time, the money and the interest to staff all the various organisations. I shall be interested to know where the Minister thinks such people will come from.

If that sounds depressing, perhaps I may turn to something else that other noble Lords have mentioned that also depresses me—the distinction between what are described as nursing services, which will be free of charge to the patient, and personal care services, which will not. I shall not dwell on the issue, because others have talked about it before me and no doubt others far more knowledgeable than I will speak later in the debate. I cannot see how it will be possible to make a clear distinction in many cases. It is not easy to make a clear distinction in normal conversational terms, let alone in the precise terms that will be required to implement a system in which there is payment on one side and no payment on the other. This is one of the most worrying issues in the Bill.

At first sight, the provision seems like a good idea and a step in the right direction, but I foresee all kinds of anomalies and real senses of injustice, when people feel that they are being nursed but the authority's view is that they are receiving personal care, for which they will have to pay. I see no way out of the dilemma, given the set-up in the Bill.

Even worse, that which is described as nursing care can be given only by a registered nurse. We know that in practice, particularly in residential or nursing homes, care may be delivered by those who are not registered nurses—they may be known as healthcare assistants or by some other title. On what possible basis of justice or fairness can one ask people to pay simply because the person delivering the service does not fall into a particular category? That is a very serious defect in the Bill and I see no way out of it without radical changes.

There are also potential perverse effects. Care assistants may not be used as much, because people may then have to pay. Where will the additional nurses come from to undertake such work when they are already in desperately short supply in our main hospitals? We do not have a wonderful fund of nurses waiting to be employed. Again, I foresee real difficulties.

I wish that I could give a greater welcome to the Bill. I have dwelt on the issues that worry me, not on those that are wise and good steps in the right direction. I have described enough to make me very concerned about a number of aspects of the Bill.

8.44 p.m.

Lord Rea

My Lords, I thank my noble friend the Minister for his clear and characteristically enthusiastic explanation of the varied purposes of the Bill. As he said, some of the clauses do not relate directly to the NHS Plan and have been tagged on, perhaps to save creating additional small Bills. I am referring in particular to the abolition of the Medical Practices Committee, which was not presaged in the NHS Plan, and the disclosure of patient information, which is dealt with in Clause 67.

I shall discuss four clauses: Clause 18 and associated clauses, which abolish community health councils; Clause 21, which concerns the abolition of the Medical Practices Committee; Clause 33, which details the terms and conditions for doctors providing personal medical services; and Clause 67, which we have discussed many times already in the debate. There are many other clauses worthy of discussion, but other noble Lords have already dealt with them, particularly those relating to care trusts and social care. I hope that other noble Lords will talk about pharmaceutical services.

Clauses 7 to 19 deal with the abolition of the community health councils and the creation of their successor bodies. At the outset, before discussing these, will my noble friend the Minister comment on the proposed timing? Can we be assured that the new organisations will be up and running before the community health councils are abolished? If, as I hope, many of the community health councils' paid and voluntary staff are transferred to one or other of the new bodies, can they continue to function under the aegis of the CHCs while the new arrangements are being brought into being? How are the phasing out and phasing in to be managed so that the experience of the CHCs' staff and volunteers is not lost?

My noble friend will agree that the abolition of the CHCs was not properly discussed or consulted on before the NHS Plan was published. Of the 25 bodies whose leaders signed their approval of the NHS Plan on pages 6 and 7, at least two to my knowledge—and probably more—have said that they oppose the abolition of CHCs. Significantly, no representative of the Association of Community Health Councils for England and Wales was asked to sign the plan.

Some welcome changes have been made in another place, as other noble Lords have mentioned, but the net effect is still to remove the community health councils, which are the only reliably independent watchdog of NHS services, and replace them with a variety of other structures, not all of which are on the face of the Bill, which means that they will not have statutory powers. PALS, which the noble Baroness, Lady Fookes, was just talking about, is one example, It is good that the independent advocacy service is to be set up, under Clause 17, but I have a problem with the wording of subsection (1), which says: It is the duty of the Secretary of State to arrange, to such extent as he considers necessary to meet all reasonable requirements, for the provision of independent advocacy services". Let us suppose that some future Secretary of State does not consider such services necessary, or gives them a lower priority than do the present Government. The Bill leaves too much leeway and might allow an inadequate service. In addition, there is no mention of funding.

It is a pity that the local authority overview and scrutiny committees, which could well have a useful role, will not have the right to inspect premises. That will be the role of the patient fora—I am sorry, but I am going to continue to use that word. I got my school certificate in Latin approximately 50 years ago—actually, a little longer than that—and it grates to have to say "forums". It is planned that those bodies will take over the monitoring functions of the CHCs. There is no indication that the overview and scrutiny committees and the fora will work in a co-ordinated way. The fora are to be set up by the Secretary of State for each NHS trust, but I fear that they will be seen to be creatures of the trust rather than as having an independent status. The funding of the local authority scrutiny committees and the fora is left in the air. If the funding is not adequate, their functions will be seriously affected.

Like many others, I have not been convinced that Clause 18, which covers the abolition of the CHCs, and the other clauses which set up the successor bodies provide the right way to strengthen the voice of the patient. As many other noble Lords have mentioned, I believe that reformed and strengthened CHCs—even renamed CHCs—could have carried out all the functions of the new bodies that are to be set up if they had been given more funding, and that means more teeth.

The great advantage of that would be the retention of the independent scrutiny of the NHS that we now have. It would provide a better guarantee that patients' problems would be taken seriously if a "beefed-up" CHC, which is a statutory independent body, were able to have, for example, a counter or desk in every NHS trust, as is now proposed for the PALS. The cost would be the same. They might even be called "PALS", and in this case that would be in the true sense of the word. However, as the noble Baroness, Lady Fookes, mentioned, the name may act as a deterrent.

I turn from CHCs to Clause 21. Among others, the BMA is concerned that the abolition of the Medical Practices Committee and the handing of its functions to health authorities, as the noble Lord, Lord Clement-Jones, described fully, will jeopardise the even spread of GPs throughout the country. That is by no means perfect yet; deprived areas are still under-served.

However, the work of the MPC has ensured that equality of national coverage has greatly improved during the 52 years of the NHS. A fear exists that if decisions about GP appointments are left to health authorities, local rather than national priorities may take precedence. And there is a danger that the wealth of knowledge, experience, and data concerning the GP workforce that is held by the secretariat of the MPC will be lost.

Can my noble friend say what successor body will fulfil that national function? Would it not be appropriate if the staff and data of the existing MPC secretariat were preserved in some form, possibly inside the Department of Health, so that it may continue to act as a national co-ordinating body? I shall quote briefly the British Medical Association's views: The MPC has been remarkably successful since 1948 in redistributing the GP workforce ensuring a levelling of average GP list sizes between areas of deprivation which had fewer GPs and the more affluent areas. There are still problems in some areas but these should be addressed by enhancing the role of, rather than abolishing, a national body which in substantial measure has proven success". The BMA also asked me to mention Clause 33, which covers the lists of doctors who will undertake personal medical services. For other GPs who provide general medical services, the NHS Act states that the Secretary of State must consult, such organisations as he thinks fit". before making any regulations. In practice, that means the General Practice Committee of the BMA. However, that is not mentioned in Clause 33, which concerns the terms of employment of the personal medical service practitioners. It seems perverse that the NHS Plan—which states in paragraph 8.9 that it is, to create a single contractual framework for both GYMS and PMS doctors"— does not negotiate with a single body for all GPs in the NHS. I hope that this matter can be sorted out through direct discussions between the department and the BMA. If not, it may be necessary to return to the matter in Committee.

Finally, with regard to Clause 67, anxiety has been expressed from two opposing directions: those who are afraid that the clause gives the department too much leeway to reveal confidential patient information, and those who fear that by over-protecting patient confidentiality, vital data for compiling the data bases that have been mentioned, such as the cancer register and other disease registers used in important research, will be lost.

I believe that the means exist to satisfy both parties, provided sufficient safeguards are built in. Amendments to achieve that are being prepared by the BMA and the GMC. They involve, for example, putting on the face of the Bill precise criteria which would allow the disclosure of information. I had intended to say more on that point, but I see that time is marching on. My noble friend Lord Turnberg may well discuss this issue in a little more detail and clarity than I have done.

I hope that we can reach a satisfactory conclusion by mutual agreement because this is essentially a non-party matter. My own position is that the ability to create and maintain disease registers must not be lost, particularly the cancer register, which is a vital tool necessary to improve our not very wonderful cancer record.

8.57 p.m.

Baroness Barker

My Lords, I very much welcome the debate because it offers Members of your Lordships' House the first real opportunity to go behind the headlines and spin and to work out what the real future of health and social care will be. Recent debates in your Lordships' House on particular elements of this Bill, such as the abolition of CHCs and the refusal to fund personal care, have demonstrated widespread misgivings from all sides about the Government's proposals.

Part of the problem stems from the huge range of issues included in the Bill, many of which were not fully examined as it was fast-tracked through another place. This ambitious Bill attempts to do two things: first, to produce a response to the macro-economic issues of an ageing society; and, secondly, to bring about a detailed restructuring of health and social care.

Inevitably, at the heart of such endeavour lies the issue of resources. Although Members of your Lordships' House hold different views on the extent to which health and social care should be funded from taxation or private insurance, it is to be hoped that during our debate agreement can be reached about the basic levels of care which individuals can expect and about such principles as accountability, which should underpin the delivery of care.

When I was preparing for this debate, I turned to the source documents: the Sutherland report and the NHS Plan. On re-reading the latter, I was struck by the way in which the document is bold and descriptive about the NHS. However, it is short on both detail and resources when it comes to community services and virtually silent on voluntary and community services. If one follows the Minister's analogy of the NHS Plan as a map—the British Isles, I presume—the voluntary sector appears to be Rockall. That is a big flaw to which I hope to return.

In recent weeks, the BMA and the RCN have expressed very deep scepticism about the extent to which it will be possible to achieve the targets for increasing the numbers of doctors and nurses as funded by the amounts specified in the plan. That being so, those of us whose interest focuses primarily on community and social services should be very worried about the Bill. Within the Bill the aim of making delivery of health and social care more efficient by restructuring contains within it a danger. The Bill will give the Secretary of State greater control over primary care budgets; additionally, it proposes the amalgamation of that part of the NHS that controls demand via waiting lists with social services departments, which are not allowed to have waiting lists and therefore tend to use assessment as a means of control. Taken together, those two provisions have the potential to reduce levels of service and to distort registration of need and demand, which is a significant concern.

One of the main difficulties that is bound to hinder Members in their deliberation on the Bill involves those matters that are not in the legislation. Noble Lords have already said that much is contained in regulations and guidance that have not yet been published. The Minister referred to the Government's proposals for health and social care as a jigsaw. It is: trying to understand what those proposals are is like trying to do a jigsaw without having seen the picture on the box and knowing for certain that one has not got all of the pieces.

To give just one example, I refer to the national service framework for older people. It has been announced more times than a Virgin mainline train but it is still not published. It is impossible to make sense of the Bill without that information. Should any of your Lordships consider that to be an overstatement, I invite them to consider the curious case of intermediate care. Whenever Members of this House or another place have challenged the decision not to make personal care free, Ministers and other contributors to the debate, such as the noble Lord, Lord Lipsey, have put forward the defence that £900 million will be spent on intermediate care and other related services. The intermediate care guidance came out in January. Some of your Lordships may have blinked and missed it. It appeared on the Department of Health website without even a press release. So quiet was its emergence that for several days afterwards the DoH denied that the guidance had been issued.

Noble Lords may wonder why there is such uncharacteristic coyness on the part of the Government. A detailed reading of the guidance begins to afford an explanation. It announced an extra 500 intermediate care beds but it does not say what they are extra to. Does it include current rehab services or help-at-home hospital services? It is not clear. The guidance refers to intermediate care and related services but it does not say what those related services are. It does, however, make it clear that in order to qualify for intermediate care, people will have to meet five tightly drawn criteria, the most significant of which are that they need active therapy or treatment that will last no longer than six weeks. Many people with chronic conditions will therefore be ineligible. That hardly seems to be a substitute for free personal care.

In addition, although the guidance talks about the appointment of intermediate care co-ordinators, there is no way of telling whether the system for delivering that care will involve a reconfiguration of existing services or an additional new tier.

Perhaps the most obvious explanation for the Government's reticence on this subject involves funding. Paragraphs 28 to 30 of the circular detail a total of £504.7 million which has been earmarked for the NHS by 2003–04 for intermediate care and community equipment services. Paragraph 31 states that the general settlement for local government has taken account of the additional investment needed to promote independence. However, nowhere is that set out in detail, nor is there any indication that those moneys will be ring-fenced.

Information is integral to the debate that your Lordships will wish to have on the Bill's provisions concerning personal care. I therefore ask the Minister to provide a detailed breakdown of precisely how that £900 million has been allocated across the NHS and local authorities and in relation to the range of services that it is intended to cover. I add that the simple reiteration of the guidance is not good enough. Unless the Government give full details of investment in social community services and do so with transparency, it will not be possible to accept their decision not to fund free personal care.

Noble Lords who have spoken in this debate have already said that the current definition of nursing care in the Bill is so narrow and was heavily qualified by the Minister this evening that it cannot yet be considered to be an acceptable basis on which to build a new system of long-term care.

In debates such as these, there is a natural tendency to focus on that which is in the Bill. I want to make two points about what is omitted from it. First, transport for health is frequently overlooked and, despite being registered as a concern by those who were involved in the consultation process on the NHS plan, is barely ever mentioned. In fact, it never gets a mention anywhere. It is not unheard of for health authorities and regional NHS executives to have nobody with named responsibility for patient transport. Nevertheless, at a time when the Government are making major structural changes to the delivery of healthcare services and when transport is increasingly difficult for everyone in society, we might have expected some joined-up government in this context. However, there is none. I hope that we shall return to that matter at some stage.

The second omission is one in relation to which I declare an indirect interest. A huge amount of care, especially personal care, is provided informally by close family and friends acting on their own or with the assistance of voluntary organisations. That is one of the main reasons given by the authors of the minority report for not making personal care free. Many of those organisations are highly respected for their closeness to users and their capacity to do preventive work in a way that statutory organisations often cannot do. However, the Bill contains no recognition of those organisations or their need for core funding. Such funding should not be tied to output or involve short-term project moneys; it should cover essential running costs. Many organisations receive funding under Sections 64 and 65 of the Health Services and Public Health Act 1968. Year on year that money, particularly in local authorities, is dwindling. Without a similar provision in the Bill, it is highly likely that many organisations that make a valuable contribution to the mixed economy of care and partnership may well fold. With that in mind, initiatives such as Care Direct, involving, we are told, volunteers, looks less like an imaginative approach to social care in the 21st century and more like a partially thought-out attempt to take over the voluntary sector.

While local authorities are busy voicing their justified concerns about being the junior partners in care trusts, many voluntary organisations are wondering whether they will continue to exist. If they do not, a valuable part of community care will be lost and the whole basis of the Bill would be in doubt.

In conclusion, there is much in the Bill to support. If, at the end of our debate, it has not been possible to demonstrate that there will be adequate and transparent funding, there will not be a sustainable framework for the care of vulnerable people. At the moment, the jigsaw is incomplete. On that basis, the Government should expect some hefty challenges in the weeks to come.

9.8 p.m.

Baroness Wilkins

My Lords, I thank my noble friend the Minister for his clear introduction of this Bill. I welcome in particular the extension of and requirement to provide direct payments and the move towards more integration of health and social care for those on the receiving end.

Disabled people have long argued that the divide between health and social care can be artificial and unhelpful. But they are concerned that the current proposals for care trusts will have unwelcome outcomes. One of the biggest concerns is that the trusts may undermine the Government's progressive policies on independent living. The fear is that the care trusts will be dominated by health definitions of independence, which tend to focus on functional impairment and not on disabled people's much-prized aspirations for choice and control over their lives.

I am indebted to Frances Hasler, co-director of the National Centre for Independent Living, for her insights on these matters and should declare that I am a member of that organisation's independent living committee. I want to address two specific concerns. Those are the continuing divide between nursing and personal care, which have been discussed so eloquently by many in your Lordships' House; and the lack of awareness of independent living and user involvement issues in the health sector. Those concerns have arisen because the Bill gives the lead on assessing and commissioning long-term care services to new health bodies, with weak input from the local authority side or from user representatives. It had been hoped that any change would be based on a new form of authority, incorporating the best of both health and local authority practice.

For disabled people living independently in the community, it seems only sensible to bring different providers closer together. Recent research by the University of Manchester clearly demonstrates that disabled people do not divide up the list of their everyday needs into health, social and domestic categories, unless forced to do so for assessment reasons. As one user said, "In my mind you can't split personal care into separate compartments … It's the wellbeing of the whole person".

From that perspective, it makes sense to combine the commissioning and delivery of the services. But the same study and others like it also vividly illustrate why people prefer to use social services, and in particular why they use direct payments which give them choice and control. They have no control over care from health workers. Disabled people report waiting and waiting to get up. As one person said, "I can't make plans in the morning because the nurses come anytime between eight and eleven". Others have been patronised and bullied to go to bed early. As one said, "I've had nurses come in here at half past nine in the evening, say, 'Come, come, Mrs Jones, it's late enough".

The delivery of health services is based on clinical need. Social need, such as those two people wanting to control the times they get up and go to bed, comes a long way down the agenda. It is hardly surprising then that disabled people find health practitioners are not aware of social need and are unaware of independent living.

The National Centre for Independent Living carried out some research into the knowledge about and support for independent living in health authorities and trusts and in social services. Not surprisingly, it found that there is far greater knowledge in social services authorities. More worryingly, it found a complete indifference to the subject in some health bodies. So there is trepidation that those bodies might soon be responsible for assessing, commissioning or delivering services for disabled people who want to live independently.

NCIL shares the concern of the Local Government Association—highlighted by my noble friend Lord Smith of Leigh who is not now in his place—that care trusts, as NHS bodies, may leave councils as the junior partner. That could have major implications for the quality of care provided, as a community-based service—focused on supporting people in their own homes and communities—is brought into a service dominated by the treatment of ill health.

If care trusts are to be true joint partners between health and local authorities, they should have fundamentally different governance and management arrangements to PCTs and NHS trusts. They should have an equal balance of input from local authorities and the health service and a robust user involvement.

The other problem I want to highlight is the contradiction inherent in dividing up nursing and personal care, if I may add to the concerns already voiced by many in this debate. The help which people arrange by direct payments can include many tasks traditionally thought of as "health" care; daily human assistance to sit up, get washed, move about, communicate, take medicine or use the toilet. It can cover ventilator care, stoma care, foot care and physiotherapy exercises.

This Bill makes nursing care—that which is delivered by a nurse—free. But it leaves "personal care", including all the activities just mentioned, to be charged for. The logic of that escapes most disabled people, as it does many in your Lordships' House. For example, if you need chest suction in order to breathe properly, the nature of the task does not change, whether a qualified nurse or an unqualified personal assistant carries it out.

The arbitrary division between nursing and personal care undermines one of the aims of the Bill, which is to make services more coherent and efficient; seamless care. So one body can assess your need, one body can arrange your services and, quite possibly, one person can provide the service. But then an arbitrary amount of that service will be deemed to be social care and you may well find yourself charged for it.

We know that inequities will persist. At present in west London one health authority regards all ventilator users as clearly in health need and so contributes financially to their independent living packages. A nearby authority takes a different view, arguing that if people are being successfully maintained without health worker intervention, their need is clearly social, so contributes nothing.

It is the Government's intention to keep charging for personal care, and Section 7 guidance on this is out for consultation at present. But charging will greatly weaken the potential for joint work and pooled budgets—the aims of the Bill. It will introduce unnecessary bureaucracy to care trusts and cause huge confusion to users.

To conclude, perhaps I may ask my noble friend the Minister how the Government plan to ensure that the establishment of care trusts will be a true joint partnership. How can they ensure that they will not be dominated by health ideology and concerns and so undermine the excellent work which the Government have done to promote choice and control in independent living for disabled people? Most importantly, perhaps I may add my plea to that so eloquently voiced by so many other noble Lords tonight urging the Minister to reconsider the damaging divide between nursing and personal care.

9.16 p.m.

Baroness Greengross

My Lords, perhaps I may start by saying how much I welcome the Bill, the philosophy underlying it and its aims to provide more coordinated, joined up or seamless care.

My main remarks will be on Part 4 and I shall touch on Parts 1 and 2. I start with the issue of successor bodies to community health councils. It is essential that they have real powers to ensure equity of access. To do that they must be able to tackle implicit as well as explicit age discrimination, which is not usually recognised. It certainly is not policy but it happens. Will the new bodies be strong enough to do that?

In Clause 12 it seems that some of their powers were permissive rather than mandatory. We must make certain that those bodies can ensure ease of access and that they are seen as an integral part of an individual's care pathway. If so, they will succeed, but it is important that they have enough powers to do that.

I turn to care trusts in Part 3, Clause 52. That could be a welcome development but it is unclear how it fits in with the new joint working arrangements that have only just been implemented last year. We must protect vulnerable people from changes which could gradually eat into NHS care. Although I understand very much the fears of local government at being turned into the junior partners of health professionals, I am even more concerned at the threat to people who provide essential services such as home help, which have always been Cinderella services but back up effective community care. Community care is essential. It needs to take into account the situation of the whole family, especially if a frail person, particularly an elderly person, is a carer of a husband or wife. There is quite a lot of rigid demarcation of duties and it seems as if there will be more.

I heard today of one elderly couple of which one person was very frail and the other was the carer. A simple task of putting elasticated stockings on to one of them was made difficult because only one was allowed to be cared for by the carer looking after them. That lack of flexibility can be damaging, if we are not careful.

I turn to Part 4 and preserved rights, in Clauses 57 to 59. Their abolition is welcome, but why cannot this occur at the same time as free nursing care is due to be implemented? I seek reassurance from the Minister that, in the meantime, until April, new regulations, which are due at any time now, will include all people with preserved rights who are threatened with eviction, either from a nursing home or a residential establishment. There was recently an awful case quoted on "You and Yours" in which a 102 year-old lady was very worried about being evicted and having no money left for her funeral. I am sure the Minister agrees that such cases cannot be tolerated.

I turn to contractual arrangements, which are dealt with in Clause 60. This is a very welcome provision, but I question the position of people who perhaps have a little over £16,000—which will later be £18,500—and must themselves negotiate with care home owners. Often, if not always, they need the involvement of social services to assess their needs, because under a social services contract they know that their care is being monitored and they can complain if necessary. At the moment it appears that people who have that amount of money will be discriminated against. I hope that the Minister can reassure us on that matter.

I turn to liable relatives. In the recent survey by Age Concern, All My Worldly Goods, it was found that there were huge variations in local authority practice in the treatment of spouses and the use of discretionary powers to disregard the value of the home. I understand that in another place the Government promised, through an appropriate amendment, to end the liable relative rules. I am very disappointed that that amendment was not tabled, and I hope that the Minister can update your Lordships' House on the Government's position in that regard.

I turn to Clause 56 and the very vexed issue of nursing and personal care. I made clear my position in the debate last month initiated by the noble Lord, Lord Ashley. I very much welcome free nursing care. The limits of nursing care and the exclusion of certain essential services, which most people would define as "nursing care"—perhaps contrary to some views expressed by the Governrnent—seem to have caused a good deal of worry and anxiety. The NHS Plan published in July of last year contained the implication that a wider definition of "nursing care" would be accepted. The statement that, in future the NHS will meet the costs of registered nurse time spent on providing, delegating or supervising care in any setting", seems to make that clear. Now it seems that the care itself will not be free, only the time spent by the nurse arranging, delegating or supervising.

I spent many years as the chief executive of a fairly large organisation. To me, "delegation" meant retaining responsibility for what was being done while the work itself was carried out by someone else. I was not the only person to believe that the nursing definition would be broad enough to cover certain essential services in a very clear way. The noble Baroness, Lady Wilkins, mentioned some of those matters. For example, the use of gastro-nasal tubes and the provision of pressure sore beds, which may be an enormous cost to an individual, can be, and sometimes are, charged for. If that is done through a nursing home a broad, across-the-board charge would be made for that equipment. It is very difficult to see how that can be justified. I believe that a definition should be inserted into the Bill, and I hope that noble Lords will seek to amend it accordingly.

I am very much aware, however, that the Government are unlikely to change their mind on free personal care despite the views that have been very eloquently expressed today and in another place and by many organisations and representative bodies. I believe that we are in danger of victimising people who are very frail, particularly those who remain in their own homes, many of whom suffer from dementia.

It is also important to remember that care home fees are high. Even with free personal care, should it he introduced, some people will have to find £200 or more a week for their board and lodging. It seems that the charging policy for nursing and/or personal care will vary as people's needs change. So if one's needs for nursing care are higher at one stage, it will cost one much less than if one's needs change and are defined as personal care. I believe that there are dangers in that system. We know that whatever is covered in the board and lodging charges, which in the London area can exceed £500 per week, it still means that there is a great deal left to be paid for.

So the definition of "nursing care" needs to be carefully broadened, otherwise it looks like a tax on disability, particularly chronic disability, which penalises the most frail regardless of his or her means. Perhaps the answer might have been to define those quintessentially essential services as "nursing care". In my view they should have been defined as "nursing care" or, at least, "pant-nursing care" rather than "personal care". If that had happened I suspect that this part of the debate could have been avoided. I hope that the Minister will reassure me that some compromise on this issue might still be possible.

9.26 p.m.

Baroness Hanham

My Lords, as I rise to speak, may I initially declare my interests as chairman of a London National Health Service trust and as a member of a local authority.

The Bill has in many respects been well received. However, as always, and as has been said, the devil will lie in the detail, much of which is, as so often happens, being left to regulation and perhaps secondary legislation. Today, in consequence, I have three particular areas of detail to which I want to address my remarks and to pose questions to the Minister.

The first of these areas relates to the implementation of the proposals for patients' forums, particularly as regards those that relate to a hospital trust and the intention that one of its number should be appointed as a non-executive member of its host trust board. As Members of this House will know, directors of trusts are currently appointed by the Secretary of State on the recommendation of the regional chairman. In future that role will pass to the national appointments commission. Directors have varied responsibilities to the Secretary of State for the financial viability, management and compliance with statutory requirements and government priorities.

Of course no hospital would exist if there were not patients who required treatment and care. They are an integral aspect of the board's responsibilities. Indeed, my trust already holds two charter marks for its patients liaison arrangements. However, decisions and priorities regarding service constantly have to be made. Up to now they have been made by all the non-executive members of the board, each of whose responsibility and commitment is to that trust board. Within the delegated functions of that board, individual non-executives assume responsibility, for example, for overseeing finance, audit, clinical governance and patients' complaints. But none has any form of promotional or pressure lobby role for any of those individual functions.

Under the Bill, patients forums will have the right to inspect the premises of the hospital to which they are attached. They will be required to monitor and review the services for which the trust is responsible, represent patients' views and give advice to the trust about matters relating to its services. One has to question whether a member of that forum, appointed to the trust as a functioning director, will be able to maintain the independence necessary to see these matters are brought to the board, while inevitably having to be responsible with other board members for matters which may very well impinge on or override the views of the forum. How does the Minister envisage that such a role will be possible? Does he not have any qualms that the independent voice of the patient, which is surely the rationale behind this proposal, could be crushed and not come through with the clarity necessary? Does he really believe that a person put in such a position could wear the two hats and not be compromised or not become disengaged from the full work of the board as a result of the competing priorities? Perhaps it would be more sensible for the patients' forum representative to have a right to sit with the board—I have no difficulty about such a representative being there—but to be unencumbered by other non-executive responsibilities.

Arising from this, if the Minister is not prepared to give way to my pleas on that aspect, I want to ask about the appointment of such members. I understand that this is still a reserved matter. However, the Bill says that the make-up of forums will be of patients of the trust and unstated voluntary organisations. Is it the intention that all members of the forums will be assessed for suitability by the National Appointments Commission? If not, and the Government proceed with their intention to see one member appointed as a non-executive director, will it be the intention that the member selected will then be assessed and appointed by the commission? All non-executive directors of trusts, as I have already said, have to be appointed by the Secretary of State. It would surely be anomalous if that was not the position in all cases and such appointments were just left to the forum to make as its own choice.

Finally, as regards this matter, will the forum non-executive director be in addition to the other five—in which case, previous legislation will presumably have to be amended—or is it the intention that one of the current members of the board will have to resign in order for the forum's nominee to take his or her place? My own view is that that would be unacceptable. The Government's intentions have not, I believe, been made clear in these important matters. I hope that the Minister will be able to throw some light on them today.

I turn now to concerns that have been expressed to me about the provisions in the Bill regarding preserved rights and the changes to the funding of care, which has until now been undertaken by the DSS, for those who have been in long-term residential care since before previous reforms took place in 1993. They have been dealt with competently by other noble Lords, but I wish to make one or two additional points. Those involved since before 1993 in the main will now be quite elderly or those with learning disabilities, now mostly adults, who were placed in homes—often those provided and supported by charities. The Bill passes responsibility for their continuing financial support from the DSS to local councils. Whether this will be to the "host" authority—since many such homes will not be in the area from which the residents originate—or to the originating authority is not, I think, yet clear.

How will authorities obtain details of those for whom they will assume responsibility? Will the money to be transferred to those authorities be equal to the amount that is currently provided by the DSS? Will authorities be required to make bids; and how will the funding be identified and uprated in the future—will it be through the SSA or will be it be ring-fenced?

There are great fears among the parents and relations of people in residential care that local authorities will find that the money they receive is inadequate and that they will be tempted to break up such residential homes by repatriating and providing "community care" for those who have been in supported care for much of their lives. Will this not go against the whole principle of the Emerson report, which found that residential homes could provide good and varied care, giving valuable support and security to their residents who have made friends and formed relationships within them? They might find it very difficult to be uprooted from them and transferred to a strange community care environment. There is deep unease at these proposals and some reassurances need to be given to those who have loved ones or responsibilities for those in such care. Reassurance also needs to be given to local authorities about the level of funding, since it would be invidious if they were faced with making decisions which were inequitable with the desires both of those in care and their families.

Finally and briefly, local authorities are concerned about the manner in which appointments will be made to care trusts. This point has been touched on by many noble Lords. While there is approval for the principle of such trusts and the flexibilities they will bring to the provision of services, there is an urgency to understand the Government's arrangements, in particular about the appointment of local authority representatives and the need to ensure that these trusts are a partnership of equals between the National Health Service and the local authorities.

9.37 p.m.

Lord Beaumont of Whitley

My Lords, the noble and learned Lord, Lord Archer of Sandwell, commented on the way in which your Lordships' House divides itself into colleges on different subjects. It is true that one can often forecast who will speak in a particular debate. I have never belonged either to the health or the care colleges, but that I embark to speak on this complicated and important Bill is largely due to the fact that, as the only representative of my political party in this House, I am the spokesman on every single subject.

I give general approbation and assent to the idea behind the Bill. Over a long period of time, attempts have been made to solve problems in National Health Service provision by dealing with individual difficulties affecting individual people. Procedures have become regularised and systems are rigid. The Bill seeks to move in the opposite direction and is therefore very much to be welcomed. By pulling together the notions of health and welfare, it will bring those services offered to the ordinary citizen closer to their real life situations. Contributions made by noble Lords in the course of the debate have been in favour of that aim.

The Bill seeks to deal with people more often in their own homes, which is where they want to be. It makes provision for people to receive help from their neighbours and friends, which is also what people want. However, it seems to me that there are some provisions in the Bill which move in the wrong direction and against that tendency. Those are matters to which we must pay attention in what will quite clearly be some rather long stages of the Bill.

We are moving into an area which will become much more complicated and difficult to deal with the longer we go on. In Florida—which, admittedly, is almost an old-people's state now—some 18.5 per cent of the population are over 65. This country will reach that stage in 2016. There will be many, many more elderly people and many, many more people needing healthcare, but there will not necessarily be a great deal more money or a great deal more manpower unless we think imaginatively about what should happen. The suggestions of some noble Lords have been very imaginative and move in that direction.

When we come to the issue later in the Bill, I shall want to talk about community health councils, as will many other noble Lords. The bodies which will be produced as half-substitutes for community health councils are many things, but they are not community. It is very important that the element of community should be kept. I hope that the Government can be persuaded to think again on that subject.

Over the next 50 years, all governments of this country will have to think imaginatively about the question of funding. We may not necessarily have to deal with everything in the monetary terms that we have used in the past. Your Lordships may know—I hope that the Government do know—about some of the experiments being carried out around the world. In Japan, where there is already a very high elderly population, a pilot organisation has put forward an alternative monetary system called "caring relationship tickets". In addition to ordinary health insurance, which continues in the usual way, this is a system whereby people have tickets for an hour's worth of help of one kind or another, which they can use or exchange when they are organising health care between various people who are already known to them. It is a community effort and well worth exploration in the future.

We will obviously have to deal with a large number of matters over the coming months. Basically, it is a good Bill. I do not see how we will manage to get through it without keeping rather elderly people up later than would be advised by almost anyone we are talking about in the debate. I hope that the Government will manage to keep it under control and that we will manage to persuade the Government to loosen up the Bill a little more, because that is the direction in which it needs to move. I wish it well.

9.44 p.m.

Lord Turnberg

My Lords, I welcome the general thrust of the Bill. There is much in it which I regard as essential and valuable; it follows well on the NHS Plan. I believe, for example, that the proposals for patient forums and patient councils will go a long way to compensate for the loss of CHCs and will provide an even more valuable opportunity for patients and the public to have their views heard and acted upon. The extension of prescribing rights to a number of healthcare workers, with certain controls, is entirely appropriate.

Noble Lords have spoken eloquently about other important aspects of the Bill. I should like to say a little more about Clause 67, dealing with the use of information derived from patients and the role that the Secretary of State will have in controlling access to that information. I do so with some trepidation. This section of the Bill is written in language which, to me at least, is somewhat obscure. I am sure that that is due entirely to my own inadequacies.

Much of what is proposed is heavily dependent on what will appear in regulations yet to be written. Therefore, I am particularly keen to have some reassurance from my noble friend the Minister regarding the contents of the regulations and how they will be enacted. I found his letter, which he kindly circulated, very helpful but not entirely so.

There appear to be two main elements to the clause. The first makes it a punishable offence for anyone using information derived directly or indirectly from patients for commercial purposes. That is true whether or not the patients from whom the data has been obtained can be identified. The pharmaceutical industry has expressed the concern that its use of "anonymised" data, which cannot be conceived as harming individual patients, will be prohibited, thereby damaging the industry and thus the NHS.

I have a different concern. What is not absolutely clear from subsection (2) is whether data relating to individuals who cannot be identified or traced can be used for non-commercial reasons—for example, for research or for monitoring the incidence of disease in the population. The distinction between data from patients who can be identified and those who cannot is not absolutely clear. I hope that my noble friend will reassure us that so-called anonymised data which cannot be traced to individual patients and which, therefore, cannot possibly pose any harm or embarrassment to them, can continue to be used at least for research.

The second element of the clause provides the Secretary of State with the opportunity to approve the use of information derived from patients, whether they are identifiable or not, given certain safeguards and procedures. The GMC and the Royal College of General Practitioners have expressed anxieties that this could lead to a betrayal of trust between patients and doctors. I fully understand their concerns. After all, I know full well that effective medical practice is heavily dependent on patients believing that the private and privileged information that they give to their doctors will be treated as strictly confidential. So I am strongly in favour of the idea that careful control should be placed on the use of such confidential information. But I am afraid that I cannot agree with the idea of the GMC when it seeks to prohibit the use of patient information even where it is clear that patients and society can gain from so doing, and where harm may actually result from not so doing. I shall mention one or two examples shortly.

I therefore support the presence of subsection (3) in Clause 67, which gives those powers, under certain conditions and subject to certain safeguards, to the Secretary of State. But I have other concerns. First, it would appear that without the Secretary of State's approval no data derived from patients can be used for research. Unless I am mistaken, that seems to be the case even if the data are anonymised and thus no patient can possibly be harmed.

Perhaps I may give one or two examples. If researchers wished to examine the hypothesis that certain forms of cancer may occur more commonly than one would expect by chance in people living near, say, radio aerials or electricity pylons, or in mobile phone users, they would not be able to do so without the Secretary of State's approval. If Sir Richard Doll wished now to carry out his ground-breaking study, which revealed the relationship between smoking and lung cancer, he would need to seek the agreement of Mr Milburn. Further, if I understand the proposal correctly, he would have to seek agreement for every year that that study required.

I hope that I am wrong in my understanding of the proposals—indeed, I should be delighted to hear that that is the case—or, alternatively, that the regulations will make it clear that such a bureaucratic system can be changed before it is too late so that such research is not frustrated. However, there is another more pressing type of problem where, unlike the one that I have outlined for research, the impact will be felt in the future when new treatments or cures may be delayed, the health of the population may be damaged more immediately. This is to be found in the measures that are necessary to prevent the spread of infectious disease, where it is important to know who the persons are who have the infection. I should express an interest here because I am chairman of the board of the Public Health Laboratory Service of the Department of Health, whose responsibility it is to protect the public from communicable disease.

For the PHLS to fulfil this role it requires pathology laboratories to report to it the occurrence of infections, such as E.coli 0157, food poisoning, meningitis, hepatitis and TB. We are then in a position to set in rapid action all the activities necessary to trace the source of the outbreak and, where possible, to remove it. Of course, we do not do that alone. Local environmental health officers, consultants in communicable disease control and medical practitioners are all involved and need to know that the infection has occurred and who has it.

Some of those infections are notifiable; that is, doctors have a legal duty to report them, irrespective of patient confidentiality. But the problem is that many infections are not notifiable. The most obvious examples are those causing food poisoning—E.coli 0157, salmonellas, campylobacter, and the like. Here speed is of the essence if the disease is to be prevented from spreading. It is not always easy or quick for a laboratory detecting one of these infections to be able to contact a GP and for the GP to contact the patient to seek his or her consent to tell the PHLS, the environmental health officer and the communicable disease control doctor. Yet we must move quickly in these cases to find the source of the outbreaks, usually the food.

The GMC's current guidelines on confidentiality are already inhibiting laboratory personnel from reporting. In this light, the permission that may be granted by the Secretary of State under Clause 67 is very welcome. I hope that my noble friend the Minister will take on board this particular case when the regulations are formulated. However, if the process by which approval is granted—as surely it must be for such an obviously common-sense purpose—is prolonged and bureaucratic, it could pose considerable difficulties. I hope that this, too, will be taken into account in the regulations.

In conclusion, I should say how grateful I am to the Minister and his officials for giving me the opportunity to discuss some of these concerns and for offering at least a degree of comfort on some of them. I look forward to even more comfort.

9.53 p.m.

The Lord Bishop of St Albans

My Lords, it seems to me that this Bill is fundamentally about the way that we in Britain wish to care for the most vulnerable in society in the years to come. It is quite rightly centred on them. However, I should like to highlight those who I believe are among the most vulnerable. I shall begin, perhaps unexpectedly, with the staff of the NHS and social services departments throughout the country. They have been required over the past couple of decades to respond to unremitting and relentless change.

Systems have been altered, whole armies of technicians have scuttled from hospital to hospital rearranging the acronyms on the notepaper. I shall give your Lordships an example. It is not actually from the NHS or from social services, but it could be. I opened a page at random in the Government's document on Neighbourhood Renewal and found the following, CPRPs, Neighbourhood Wardens, Drug Action Teams, Fresh Start. Education Action Zones, Excellence in Cities Programme, School Improvement Grant, Pupil Support Allowance, Study Support, Adult Basic Skills National Strategy, Sure Start". The only one missing was Old Uncle Tom Cobbleigh and I have little doubt that he will be included under the equal opportunities programme. In two pages there are 11 initiatives.

I recognise that those initiatives are well intentioned. However, at the receiving end, whether in communities, hospitals, GP surgeries or social services, the net result is overload. A staff who by vocation and definition are desperate to do a good job are then demoralised and become punch drunk as the initiatives keep coming at them.

I do not doubt the necessity for change but if change is to be effective it must move only at that pace which good human beings can sustain and it requires at the local level effective leadership and management and local ownership of the ideas sustaining change. Among the vulnerable in our society, therefore, whose plain goodwill is being exploited, and has been exploited by all governments, are the staff who have to give effect to the changes proposed in this place.

I am sure that a dispirited and disillusioned workforce is not what any government wish. But in my experience hospital administrators, social workers, nurses, care assistants and others are grey with fatigue and aching with tiredness. That sense of demoralisation, of only existing as a human being in order to give effect to each new initiative, means that the system is close to burn out. What follows is like a smouldering bonfire; the system flares for a moment before it collapses in on itself.

The second group of vulnerable people is, of course, the elderly. I hope that noble Lords will have seen the Age Concern national opinion poll survey of GPs' views on older people's experience of the NHS. It makes desperate reading. Some 33 per cent of doctors surveyed say that older people have an inferior standard of care in the NHS. I venture to suggest that the other 66 per cent of GPs have not been to a psycho-geriatric ward recently. Why, as a nation. do we do it? Why do we treat those who have created the wealth which we now enjoy with such contempt and disdain? We have pushed them to the outer limits of care and then we leave them there in urine soaked indignity. Now, just to make them feel even more useless, we propose to take away from them as much money as we can. We are going to do that by means of a test probably drawn from one of the novels of Franz Kafka. The test is not whether someone needs a particular kind of care but who delivers the care to someone.

If you are taken to the loo by a registered nurse, you can go for free, if noble Lords will excuse the expression. If you are taken by a care assistant, it will cost you a small fortune. Why do we subject our elderly people to that kind of bizarre lottery? If we behaved like that as regards nursing children, the outcry would be enormous. But when we treat the elderly in such a way, except for groups such as Age Concern, the Abbeyfield Society and Methodist Homes, no one nationally seems to care.

I digress for a moment. In a debate in this House on 17th January on the care of the elderly I threw out a challenge to the BBC. I asked: would it not be wonderful if during the next three years the BBC ran an old people in need appeal and gave to it the kind of energy and enthusiasm they give to the children in need appeal? I predicted that the BBC would respond to my challenge with absolute silence. My prediction was 100 per cent accurate—there was not a squeak.

Changing attitudes towards the elderly is not a matter for legislation alone: it is a hearts and minds job requiring a certain kind of moral courage. I shall say no more on the subject but the implications of the silence of the media in our country about the old citizens of our country is more eloquent than any words.

Of the most vulnerable people, the third group are those who believe that human beings have pastoral and spiritual as well as physical needs. I recognise, of course, and with gratitude that within the Bill spiritual values are implicit. But there is not a single explicit mention of the spiritual needs of patients, staff or the elderly. I am not alone—am I?—in believing that one of the factors that makes life worth living is loving and being loved. I am not alone—am I?—in believing that beauty and grace are the essence of our humanity. But where any society fails to address the spiritual needs of the vulnerable, a further slide towards treating people as objects, be they staff or patients, is inevitable.

There is another major issue behind my concern about spiritual needs. The care and the energy that lead people to want to care for others emerge from the depths of our souls. It is within our souls that we find a well spring of love and compassion to care one for another. If as a nation we regularly deny the importance of the spiritual, shall we in a generation's time have any carers left?

I believe that the Bill is predicated upon the fundamental assumption that human beings matter and that we are each created in the image of God. It is that most beautiful concept which should act as the canon by which we judge our actions and the legislation before us.

10.4 p.m.

Lord Lipsey

My Lords, I went on holiday last week expecting that this debate would begin at four o'clock in the afternoon, with a list of six speakers. I find that the debate began at shortly after half-past six, with 25 speakers. It may be appreciated, therefore, if I truncate my remarks and apply myself to the theme of free personal care. I do not detract from the many moving speeches by noble Lords who favour making personal care free. I have been exposed to these arguments for three or four years since we started work on the Royal Commission. They are powerful, moving and strong arguments.

However, I did not hear any of those who made that case this evening refer to the cost. They may have felt that that was a rather sordid consideration, but resources cannot be separated from policies. It is impossible to have a policy whose implications for resources do not matter. When one policy is chosen, it means that another policy cannot be pursued, whether it is a policy for the elderly, a policy for spending money on education or a policy on taxation. They all knit together into a whole. Ignoring cost means ignoring the essence of the decisions that we as legislators and politicians have to make for our country.

Heaven knows, the proposal for free personal care put forward by the majority of the Royal Commission was expensive. It was costed at £1.3 billion at today's prices straight away, rising to five times that level by the middle of the century as the number of old people grows. Even that basic figure of £1.3 billion was a gross underestimate from day one. The right reverend Prelate the Bishop of Lichfield made a moving speech. The Royal Commission did not propose that personal care should be free to people who were living, as they should be, in their own home, with their own family at the right level of social support. It was a proposal for free personal care in residential and nursing homes only. If there was to be movement towards free personal care, that delivered to people in their own home would be my priority, which would greatly expand the initial cost.

However, I rest my case not on the initial cost but on what will happen to that cost as we move forward. Every society in the developing world is desperately anxious about how we are to provide for our ageing population, as the number of elderly people, particularly the very elderly in need of long-term care, continues to rise. Every society is wrestling with the issue, struggling to find an answer. We cannot ignore that context.

I shall briefly set out three reasons why the cost would be many times that estimated by the Royal Commission. First, at the moment, between two thirds and three quarters of the care that is given is informal care—the unpaid labour of relatives and friends to sustain people at home. If all personal care is free, it is inevitable that many who are struggling with informal care will decide that, although they would like to do the best for their mum, their dad or whoever they are caring for, it would be easier to take advantage of the free care available for them in a nursing or residential home. Whenever the price of something is reduced from quite a lot to nothing, there is a huge rise in demand. That may not happen in year one or year two, but it will come about as a new generation lays its plans knowing that care will be free in those settings. That will add greatly to the cost.

Secondly, those who have studied the Royal Commission report know that it is based on an assumption of a 1 per cent real-terms rise in the money paid for social care and a 1.5 per cent real-terms rise for healthcare. That means that the wages of care workers will rise by 1 per cent a year in real terms for those in the social sector and by 1.5 per cent for those in the health sector. These people are desperately underpaid. Care assistants, who do a sensitive and important job, are paid a disgracefully low wage, very often the minimum wage. If I had a pot of money available, one of the things that I would most quickly spend it on is more training and better wages for those who are helping to look after some of the most vulnerable in our society. They cannot go on being underpaid as they are at the moment, because the quality of the people will go down as they are told day after day that their jobs are not truly valued, and the standard of the care that they give to elderly people will not go up either.

But I am afraid that higher wages would bring a tremendous cost. The Royal Commission identified it as the single most sensitive assumption in its costings. If the increase was 2, 2½ 3 or 3½ per cent a year, the estimate of a five-fold increase would, as a result of that single factor, become a 10 or 12-fold increase over current costs.

My third point is that I hope that we shall see a rise in standards in this field. Today, none of us would conceive of treating old people in the way in which they were treated 50 years ago. Then, they were thrown into the geriatric ward or were perhaps catered for at home by people who struggled under an impossible burden. That occurred in a society in which many women did not go out to work and were prepared to dedicate themselves to such care.

We must have far higher standards to provide the dignity and life which our elderly people deserve. Several points have been mentioned in the debate, such as the need to talk to people with Alzheimer's disease at great length and sensitivity in order to bring out their human qualities. Those sentiments move me enormously, but they come at a tremendous price, such as the human labour time of people who I hope will be better paid.

If one puts together those factors, the result is not an increase from £1.3 billion to five times that amount by the middle of the next century. Making the calculation on the back of an envelope, the amount will increase by between approximately 12 and 20 times the cost of introducing free personal care now. I give way to my noble and learned friend.

Lord Archer of Sandwell

My Lords, I am most grateful to my noble friend. I hope that he appreciates that many of us who intervened in this debate were quite specifically not arguing that all personal care should be free. I argued that certain forms of treatment for specified conditions should be made free, even though they may not be administered by a registered nurse.

Lord Lipsey

My Lords, I take the point made by my noble and learned friend and by the noble Baroness, Lady Greengross. In our further debates we shall come to the point regarding the precise definition of free nursing care. I am making my case against those around the House who argue for free personal care, as do many of the lobby groups in this area. It is that which I consider to be unaffordable. I am not saying that we must stick precisely with what the Government are suggesting now, because I can see the case that is being made.

Perhaps I may develop my point as to what would happen if we adopted the proposal for free personal care. As was the case when it was put forward by the Royal Commission, that proposal has been made with the very best of motives—with the good of elderly people in mind. However, I am afraid that one of two things would occur. First, after a few years we would decide that we could not after all afford it and we would drop the idea. That can happen. It occurred in Holland, where free personal care was introduced in 1968. The cost was three times higher than had been expected and the scheme was dropped in 1982. What a cruel deceit for the hopes that had been raised by starting down that line in the first place.

However, the other alternative is worse. One would find that this cuckoo would grow in the nest and that other items would have to be thrown out in order to accommodate it. The educational group in this House would not say, "We do not need any more money for education after all. We shall leave it all for the elderly". The transport group, meeting for another debate, would not say, "We'll drop all our extra transport needs so that all the money can go on the elderly". There would be competition for the funds.

If the plan were not dropped, services would be jettisoned. Care workers would be made to work not more sensitively but harder, simply to get through the physical business. Care home fees, which at present are quite inadequate to enable businesses to keep up standards, would be further compressed. One would find home helps being sacked. There would be less intermediate care and less support for care m the community. In the end, a policy developed for the best of reasons—to help elderly people to achieve the dignity in their old age which they deserve—would have the worst of consequences: worse services and free care but terrible care.

That is why, in my view, the pleas for free personal care must be rejected. I am afraid that Scotland may be undergoing a controlled experiment in this area. If that were to happen, I should feel very sad for elderly people in Scotland. They will believe that they are receiving something great. However, in the end what they receive will not be something great but a tragedy.

Baroness Carnegy of Lour

My Lords, I intervene briefly before the noble Lord concludes his speech. As someone who lives in Scotland, I have listened to his remarks with enormous interest. Would he be prepared to send his speech and any supplementary remarks to his political colleague, Susan Deacon, who is the responsible Minister in Scotland? She would be very interested in them.

Lord Lipsey

My Lords, I have been in touch with Scottish opinion. I do not think that Susan Deacon is the person to whom my words need most closely to be addressed. She appreciates the problems quite well. However, I take the spirit of the noble Baroness's point. I assure her that I shall do everything in my power to point out to the people of Scotland that if they want the policy, they may have it, but that if they obtain it, they should do so with full knowledge of the consequences of what they are entering into. If they want it, they should have it. However, I hope that they will decide at the end of the day that that is not the best thing for their country.

10.15 p.m.

The Earl of Listowel

My Lords, I thank the Minister for his helpful opening speech and for his useful written briefing. I express my concern, which is shared by many noble Lords who have spoken this evening, including my noble friend Lady Masham of Ilion and the noble Lord, Lord Rea, about the abolition of community health councils. I note the welcome given to the Bill from all sides of the House. In the brief time that is available to me, I shall concentrate on one matter.

While the current arrangements for complaints against the NHS need improvement, there is disquiet about the fact that the new arrangements will be less independent and assertive. Community health councils sometimes work well for patients. The Office for National Statistics reports that 10 per cent of five to 15-year-olds have a diagnosable mental health problem. Other research suggests that if one includes older adolescents in that statistic, the appropriate figure is closer to 20 per cent. Parents who see their child losing interest in life, obsessively washing his hands or dieting, or becoming extraordinarily excitable can wait for a year after an initial consultation for treatment to begin. Provision for child and adolescent mental health is notoriously patchy and under-resourced in the NHS. Parents who have felt helpless in the sight of their child's deteriorating behaviour have found community health councils on occasion to be tough and effective advocates on their behalf. We need strong reassurance from the Minister that the new arrangements will be at least as aggressive or effective as the best community health councils in ensuring that patients have access to necessary services.

I look forward to hearing the Minister's response to some specific concerns; namely: that the proposed new bodies do not have the same powers that community health councils have in statute; that by seeking to abolish community health councils with immediate effect, the Bill mitigates against the smooth transition of skills and experience from one structure to another, which will be to the detriment of patients; that the Bill seeks to abolish the Association of Community Health Councils for England and Wales but puts no national body in its place—a concern allied to that expressed by the noble Lord, Lord Rea; and that the Bill leaves far too much detail to the discretion of the Secretary of State.

10.19 p.m.

Lord Harris of Haringey

My Lords, I declare an interest as a former director of the Association of Community Health Councils for England and Wales and as a current member of the Greater London Assembly, of the London ambulance trust board and of the executive of the Local Government Association.

I begin by making it clear that I am a keen supporter of the Bill. The NHS Plan has been widely welcomed in the House. It is appropriate that at the earliest opportunity the Government should seek to give legislative backing to their modernisation of the NHS. There are many matters in the Bill that I would like to raise, but your Lordships will be relieved to learn that I shall discuss only three—that may be three too many—in this speech: the arrangements for care trusts, the extension of the local authority scrutiny role to the NHS and the proposals to reconstitute the system of patient representation in the NHS.

I, of course, fully support the ambitions set out in the NHS Plan for more integrated health and social care. Service users want their care to be seamless. They are not interested in what to them are the artificial boundaries that exist between the health services and local authority social care services. And there is no doubt that care trusts could be an important way to deliver more seamless care to service users based on voluntary partnerships between health and local government. However, like others, I am concerned that as NHS bodies, care trusts will not reflect the strengths of both partners—the NHS and local government—and it is important that the governance arrangements for the new voluntary care trusts truly reflect the joint nature of the new bodies.

Those arrangements must be based on a partnership of equals. Yet the Bill makes it clear that voluntary care trusts will be NHS bodies and that implies that local councils and the social care for which they are responsible may be left as the junior partner. The need to ensure that the new bodies draw on the expertise of both local government and the NHS is demonstrated by recent research on the experience in Northern Ireland where health and social care have been merged for some time. That suggests that resources are disproportionately tied up in acute care at the expense of adequately developed services in the community.

That research also shows that the location of social care within a health bureaucracy results in the domination of the medical model of needs assessment, marginalising the consideration of other needs such as those associated with social care, housing and deprivation. That makes it imperative that the governance arrangements for care trusts reflect the need for an equal partnership, and that care trusts should have fundamentally different governance and management arrangements to PCTs and NHS trusts with elected local authority members retaining a clear accountability line back to the local authority.

Indeed, it is essential that local authority members sitting on the care trust board are selected by the local authority and are clearly seen to be representing that local authority. It is inappropriate that the new Independent Appointments Commission should be given the task of substituting its selection of elected members for those that are democratically chosen by the local authority in question. The councillors' elected status should be the crucial determinant in such matters, otherwise, we could have the absurdity of the commission appointing Labour elected members to sit on a care trust board serving an area with a predominantly Conservative local authority; or perhaps vice versa.

I should now like to turn to the new scrutiny arrangements. I am particularly pleased to see that the Bill envisages the extension of the local authority scrutiny role to the health service. This further strengthens the councils' roles as community leaders and their existing responsibility to promote the health and wellbeing of local people. My view is that that process will work even better if there is an obligation on local councils to take note of reports submitted to them by patient forums and patient councils in carrying out their scrutiny work.

However, the arrangements for London do not seem to be quite right. I would normally assume that the civil servants responsible for drafting the Bill had merely forgotten—yet again—London's specific needs. Yet this cannot be the case. Clause 10 devotes 19 lines to the specific problem of what will be the Common Council of the City of London. It would therefore seem that the omission of the London Assembly and the Greater London Authority from Clause 7(2) is a deliberate snub. Yet the London Assembly was set up as an exclusively scrutiny-oriented body.

It seems bizarre that the new arrangements for looking at the operation of the NHS in general across London, and in particular the operation of London-wide services, should not explicitly be provided for in this Bill. That potentially has enormous implications for, to take one example, the chief executive of the London Ambulance Service who will, as things stand, be required to attend 66 scrutiny meetings per year. That is two sessions with each of 32 boroughs and the common council. That would be more than one a week. If the GLA had the scrutiny function, it would not only be more appropriate, but also more efficient. I have no doubt that my noble friend the Minister will reassure us that that will be remedied by a government amendment in Committee.

At the heart of the Bill are proposals to place patients at the centre of the new NHS. It thus seems somewhat anomalous that the Bill would abolish community health councils. Last October I introduced a short debate in an Unstarred Question on this matter. At that time I expressed concern that the new arrangements would not be seen as genuinely independent of local NHS structures and that robust mechanisms are needed to be in place to ensure that various strands of work are integrated together effectively.

I am pleased that in the intervening few months the Government have listened and responded. The Bill as it emerged from another place will still abolish community health councils. However, the proposals coming forward are now very different from what was previously envisaged. Patients' forums will now be statutorily independent bodies. The issue of coordination and integration of work can now at least partially be addressed by the formation of patients' councils to co-ordinate the work of patients' forums and the Bill ensures that the Secretary of State will make provision for independent advocacy services.

That follows from the new clauses introduced in another place by my honourable friend David Hinchliffe. In doing so he made clear that they would need to be developed and built upon in your Lordships' House when he said that he makes no bones about the fact that he is proposing a framework that needs to be examined in more detail and that the amendments should be considered in your Lordships' House. It is encouraging that the Government were happy to accept David Hinchliffe's amendments, but they, together with your Lordships, now have a duty to get the details right.

Perhaps I may deal, therefore, with advocacy and independence. Ministers still seem to be confusing the role of independent advocacy and the customer relations and support provided by the new PALS service. As recently as last month, a paper issued by the NHS Executive stated that PALS should act as a gateway for people who wish to access an independent advocacy service. Complainants who have had a bad experience will be put off returning to the trust premises to access it; the very problem that the proposed access to independent advocacy is designed to avoid.

The Bill as currently drafted places a duty on the Secretary of State to arrange the provision of independent advocacy services as he considers necessary to meet all reasonable requirements. However, there are no guarantees about the funding, commissioning or provision of these services. It is essential that that be clarified on the face of the Bill. I would argue that patients' councils should provide those services, not only because they will be—I hope—truly independent of the trust concerned, but also because it will permit the councils to integrate the lessons learnt from their advocacy cases into their wider work, one of the strengths of the better CHCs in the existing system.

I am also concerned that there is too much discretion given to the Secretary of State in Clause 17 as to whether or not to arrange these services Indeed, the only safeguard of independence provides that: services … should, so far as is practicable, be independent of any person who is the subject of a relevant complaint nr who is involved in investigating or adjudicating on such a complaint". In other words, they do not have to be independent of bodies about which complaints may be made, only of the individuals who are complained of.

Patients forums and councils are intended to be independent, as are the advocacy services. However, in the Bill there is uncertainty about where their staff and secretariat support would be based, with the Department of Health suggesting that there is a strong case for them to be based with local authorities. A link with local authorities has many attractions. It would certainly improve integration with the scrutiny process. However, in my view a more logical approach would be to make the proposed national patients organisation responsible for the staffing and budgets of local patients' councils and forums.

The existing arrangements for the accountability framework and staffing and budget systems for CHCs are a mess. It would be a mistake to create something equally unsatisfactory. If I remember correctly, staff are notionally employed by a health authority, have pay and rations organised by an NHS trust, but are accountable and line managed by the NHS regional office. CHCs themselves are in practice either accountable to no one or to the NHS regional office. The role of the NHS regional office is not always benign. I am told that regional offices rang CHC staff to tell them that they would be in breach of their contracts of employment if they did anything to support ACHCEW's lobby of Parliament on the future of CHCs.

Similarly, if the regional offices performance manage either CHCs or the new structures, the question arises: what is considered to be good performance—one that makes waves for the local NHS or one that is helpful and supportive? My own strongly-held view is that the proposed national organisation should have that role. That brings me to the proposed national organisation because there is nothing in the Bill about it. The Bill proposes the abolition of my former organisation, ACHCEW, but makes no provisions for a national overview of patient representation and involvement. ACHCEW is and was the national body representing patients' interests. It plays a key role in consultation with Government and with leading health professional and regulatory bodies. It also runs high profile monitoring campaigns such as Nationwide Casualty Watch and produces a range of publications for lay representatives and patients.

There is a clear requirement for a national body to take on a range of functions, including the training of staff and volunteers, exchange of best practice, establishing performance standards and the provision of expert advice, research and publications. Without such a body there will be significant inconsistencies in the quality of patient empowerment and public involvement throughout the country. Variability is the main charge that Ministers have levelled at CHCs to justify their abolition. It is ironic that the Bill as currently drafted, which introduces a plethora of bodies but without a national co-ordinating body, has patchiness built into it. The public has a right to the same standards of representation regardless of where they live. A government that opposes postcode prescribing should not seek to introduce postcode representation. In order to get a genuine overview of problems in the NHS the public needs a national body.

In the Second Reading debate in the other place the Secretary of State announced that the department would be funding work to look at the feasibility of forming a national patients' organisation to act as an independent umbrella body for NHS patients. However, that scoping study will not be completed until the end of next month. There are no guarantees that a new body will be established. Even if the report were to recommend it, the Government have apparently ruled out statutory status. That is a wrong judgment. Statutory status is needed to ensure its independence and protection from changing opinion within the Department of Health. Without it, any national body would be liable to abolition or loss of funding without parliamentary debate.

I have always believed that CHCs need to change and be reformed; certainly, I said as much repeatedly when I was director of ACHCEW, which did not always enhance my popularity with some of the CHCs, particularly those most in need of change. But the NHS Plan as initially described was, at least as far as concerned CHCs, not about reform and could have left patients with a deeply flawed representative structure. The Bill as now amended is very different; indeed, the arrangements proposed are almost robust and make sense. It will not take much to get them right, and I hope that that happens before the Bill leaves your Lordships' House.

10.32 p.m.

Baroness Northover

My Lords, we share the Government's welcome commitment to the NHS, but we also agree that the NHS needs to change and move on. Patients have a right to expect a high quality service with equality of access to provision wherever they live. Will this Bill help to achieve that? This is a complex measure which rushes to the wire. If there is an election in April the Bill will not pass into law; even with a May election things will be very tight. There is very little time for detailed analysis of how the provisions will work, yet they may have an effect for years to come.

As my noble friend Lord Clement-Jones explained, we welcome some of the provisions of the Bill. However, there are a number of areas which concern us and, clearly, other noble Lords as well. Our concerns focus on three main areas. The first is the missed opportunity to cover personal as well as nursing care for those in residential care. The second is the astonishing abolition of community health councils without adequate, let alone improved, replacements. The third centres on the Bill's proposals for the handling of patient information. Other issues also concern us, some of which I shall mention. However, I shall focus most of my remarks on those three areas. In failing to adopt the Royal Commission's recommendations that personal as well as nursing care should be free the Government impoverish those who receive such care, cause confusion and place those who look after them in an impossible situation. The NHS was set up to help alleviate the burden of poverty on those who had the misfortune to fall ill. Surely, in the same way we should seek to help, not penalise, the most frail, as the noble Baroness, Lady Greengross, put it.

As my noble friend Lord Clement-Jones and many other noble Lords have said, it is wholly illogical to maintain a division between nursing and personal care. How invidious it will be for the poor nurse who must arbitrate here, thus undermining his or her relationship with those for whom he or she cares. If he or she changes a dressing it is free; if a care assistant does it, no doubt a form will need to be filled out so that it is paid for.

The RCN's definition of nursing quoted tonight by the right reverend Prelate the Bishop of Lichfield included bathing, feeding, toileting and comforting, which I somehow believe is not the Government's definition of "nursing care". Meanwhile, Scotland looks set to abandon the division between nursing and personal care. The Welsh Assembly, too, has signalled that it would wish to consider doing the same if only it had the power to do so. Surely that is an area, on the basis both of fairness and workability, that must be re-examined.

We do not share the Doomsday scenario of the noble Lord, Lord Lipsey. This proposal is fully costed in our alternative Budget. I would commend that to the noble Lord.

The second issue is the abolition of CHCs. Tonight there has been overwhelming opposition by noble Lords to that. On these Benches we are astonished and alarmed at the plan to abolish CHCs without adequate and more effective replacement. Surely, we all agree that the health service must work in partnership with patients and not act as a paternalistic body. The Minister said that patients must have more say. The Secretary of State made the point in another place that patients need a complaints system that is accessible, open and independent. He said that they need helping through it and they need also to be able to assess the performance of their local health service. Yes, indeed; but if that is so why propose this fragmented system? A system that the noble Earl, Lord Howe, rightly called a mishmash and the noble Baroness, Lady Fookes, described as a hydra.

I agree with the noble Baroness, Lady Ashton, that patients must be heard. But this proposal with all its different elements in different settings, semi-independent with few teeth, with no costings and with a complaints system which is waiting on a report from the department of health? Not only does the proposal destroy the watchdog role of the CHC, it removes the only real assistance there was in the complaints procedure.

A complaints procedure must be transparent, independent, simple to understand and cover all aspects of care. Above all, it has to be seen from the patient's point of view. How on earth can patients, unfamiliar with health trusts, patients' self-selecting forums, PALS, scrutiny committees and so on, possibly hope to feel that they know how to take a complaint through?

I remember when I was on a family practitioner committee how inadequate the complaints system seemed. Now we have a rising tide of legal challenges to medical practice with a huge financial price tag attached. Surely where it is possible for a patient to feel that he or she is being listened to, we should devise systems with their viewpoint in mind, not the chief executive of the trust or the Secretary of State or anyone else from within the system?

At least being pointed to a CHC for help was a step on the way. Where is the one-stop shop in this proposal? CHCs may need reform, but babies and bathwater do indeed come to mind. To be charitable, I might conclude that the Government may have plans, but that they are not ready. Otherwise, these are astonishing proposals.

The third issue is that of patient information. It has to be a cause for concern when the GMC indicates that the supply of patient information may breach patient confidentiality, while the cancer registries fear that they will not receive data that they need and medical charities and pharmaceutical companies say that data are essential to their effectiveness. All agree that the Secretary of State is taking powers that are far too wide-ranging.

There is clearly a balance to be worked out on confidential patient information between the right of the patient to confidentiality and the need for patient information by cancer registries and others to conduct research in the public interest. I have no doubt at all that the vast majority of patients are only too happy that others should benefit from their experiences. I therefore note with great concern the letter from Sir Donald Irvine, President of the GMC, and others in The Times of 7th February of this year in which they state that, any decision to override the citizen's right to privacy should be exceptional and must only be made—other than in an extreme medical emergency—after rigorous parliamentary scrutiny rather than by order of a Secretary of State". The GMC now seeks to see proposed regulations on the face of the Bill. I note what the noble Lord, Lord Rea, had to say on that.

On anonymised data, sympathise though I might with a Secretary of State who does not wish to see NHS costs driven up by the pharmaceutical industry, I am very concerned again at the powers he intends to take. Too much discretion in the Secretary of State's hands could prove a temptation in areas where there is conflict of interest; for example, in whether to allow into the public domain anonymised data that would reflect poorly on the Government's performance. That kind of decision is far better held in independent hands.

On the subject of medical research and public health, I take very seriously the fact that the noble Lord, Lord Turnberg, is not yet comfortable with this clause. I trust that when we have passed amendments he will indeed be comfortable.

Besides these three key areas, a number of issues have come up in the debate today. We give a cautious welcome to the traffic light system for hospitals, but could not the department have come up with a happier way of describing hospitals that are not coming up to scratch? What are patients to make of their hospital suddenly becoming a red light hospital?

We also give a cautious welcome to care trusts, since we have long advocated better integration between health and social services. But we note the concern expressed by various organisations about an unequal partnership. Malcolm Dean in the Guardian on 14th February described care trusts as potential "Trojan horses" unless that partnership is equal: social services must not simply see their resources drained by the acute needs of a dominant NHS.

In summary, it does seem to me that it is in those areas where the Government should be listening to patients that we have most problems with the Bill. And that is over personal care, ensuring that the patient's voice is heard, and in the use of their own information. The NHS is for patients; it is for the public.

I trust that over the next month or so the Government will address the questions that remain to be answered. As the Government try to get the Bill on the statute book before the election, I trust that we will not entrench avoidable problems in a health service that could well do without them.

10.43 p.m.

Lord Astor of Hever

My Lords, this debate has been of very high quality and characteristically well informed. That is not surprising, given the knowledge and experience of so many eminent speakers. The noble and learned Lord, Lord Archer, felt that he was intruding into health matters away from his normal subjects. I very much enjoyed his speech and hope that we will hear much more from him in the future on health matters.

The Government fought the last election on a promise to save the NHS. The health service would see dramatic improvements under their stewardship. But waiting lists are higher, the number of nurse vacancies stands at 20,000 and the NHS is in almost year-round crisis. Official Department of Health figures reveal that only 110 extra family doctors were recruited last year. The BMA has described this as a disaster and has warned that patients' lives will be put at risk unless the Government change their policy to take account of this recruitment crisis. What is the reaction of the Government? "We just do not seem able to get Ministers to listen", said the deputy chairman of the GPs' committee of the BMA. "They seem absolutely bent on ignoring everything we say".

The Government also ignored much of what honourable Members wished to say at the Report stage of the Bill in the other place. Many amendments were not debated or received only scant consideration. Some 15 pages of government amendments were tabled to what was an 80-page Bill. More to the point, the Government tabled those amendments at the last possible moment. As a result, it was virtually impossible for Members to consult with the many outside bodies interested in the Bill. Accordingly, it is the responsibility of your Lordships' House to rectify this. I trust that we shall be given sufficient time properly to scrutinise the Bill.

We on these Benches regard the Bill as something of a curate's egg, good in parts but bad in others. As my noble friend Lord Howe pointed out, there are aspects of the Bill which we very much welcome. Given the time constraints and the sheer length of the Bill, I can touch on only a few areas which are causing us, along with many organisations that have written to us, the most concern. We are concerned that the Government's policy objectives, set out in the NHS Plan, could be stifled by over-prescriptive target setting and a centralised bureaucracy within the NHS. After all, the NHS is an organisation of over 1 million people and accounts for almost 6 per cent of GDP. The Government's belief that such a vast and diverse entity can be centrally controlled and managed effectively from a single Minister's desk is dangerously misguided. My noble friend Lady Carnegy made that point very well, as did my noble friend Lady Noakes so persuasively in her contribution to the debate on the Address.

At the heart of the Bill lies the Government's proposal to abolish, arbitrarily and without any consultation, the only independent voice of patients and communities, the community health councils. This has been received with almost unanimous rightful indignation from all parts of this House tonight and the other place. My noble friend Lady Fookes and the noble Baroness, Lady Masham, spoke eloquently of the disruption that will be caused by the changes. The BMA has voiced its severe reservations, as did the National Association of Citizens Advice Bureaux, MIND, the King's Fund, the Royal College of Nursing and the Law Society. Numerous other letters of concern and critical briefings are piled high on my desk, many from within my own county. South East Kent CHC played a pivotal role in the exposure of Rodney Ledward.

Despite Clauses 13 and 17 being incorporated into the Bill in the other place, our concerns about the Government's proposals remain very strong. The Government are riding roughshod over the concerns of patients and professional bodies. While we do not expect the Government to listen, we do feel that they should be made fully aware of the strength of feeling on this matter. We hope, therefore, that the Government will now drop their plans to scrap the CHCs and will instead resource and improve them. In the meantime, I very much echo the question put by the noble Lord, Lord Clement-Jones, as to the real cost of the CHC replacement.

Many noble Lords mentioned care trusts. While a cautious welcome has been extended to voluntary establishment, organisations such as the BMA and the RCN are concerned about the compulsory creation of a care trust against the wishes of local bodies and individuals. We shall want to return to several aspects of this in Committee, in particular to the issues of by whom and by what means the process for assessing and deciding upon failed performance will be triggered; the criteria for inadequate performance; and what kind of resources and support will be available for care trusts where they are imposed as a result of a failing categorisation. We shall also wish to explore how progress will be monitored and what will happen if it is not satisfactory.

My noble friend Lord Howe welcomed the extension of prescribing rights to a wider range of health professionals. Here I pay particular tribute to my noble friend Lady Cumberlege, who is not able to speak in the debate through illness. She has long been a champion of nurse prescribing.

I should like clarification from the Minister on two points. First, there must be absolute clarity about who retains clinical responsibility. Will those with prescribing rights be independent of existing prescribers such as GPs and consultants or will they be dependent on an existing prescriber who would take ultimate responsibility for the decision? Secondly, can the Minister confirm that any advisory body created to consider and advise Ministers on the award of additional prescribing rights will include representatives of relevant professional groups, including doctors, nurses and pharmacists?

The noble Baroness, Lady Ashton, touched on performance grading for access to supplementary funding—the traffic light proposals to evaluate NHS bodies. The King's Fund, among others, has raised a series of concerns about this approach to evaluation and funding. It may make evaluation more simple but it could well lead to some bodies being unfairly treated. In particular, bodies labelled as "red" or "failing" are likely to have a severe impact on patient confidence and staff morale, which, as my noble friend Lord Howe said, is very low at the moment.

The RCN also does not believe that it is right for a quota of NHS bodies to be determined in advance. The organisations categorised as "green", "yellow" and "red", should be determined on merit, rather than having a system whereby a certain proportion of organisations would be bound to be categorised as failing each time.

Clause 20 allows the Secretary of State to intervene in poorly performing NHS organisations. These are considerable powers and the Opposition believe that they should be used only in the most serious or extreme circumstances. We shall want to question in Committee how an intervention order will be brought to an end and whether the bodies with interim control will be informed of clear targets before autonomy is returned.

Many noble Lords were worried about Clause 67, which was tacked on to the end of the Bill and is well beyond the Government's proposals outlined in the NHS Plan. This clause was rushed through the other place without consultation with any interested groups, including patients, doctors and medical researchers. Groups ranging from medical charities to professional bodies have expressed their deep concern at the sweeping powers which the Secretary of State will secure over the use of identifiable and anonymised patient data. Despite some minor amendments in the other place—albeit not on the face of the Bill—this clause is profoundly objectionable in form and substance. It would cast a very wide net over many medical, research and other currently legal activities, and I hope that the Government will think again.

Many noble Lords mentioned the extension of free nursing care to residents of nursing homes, which, as my noble friend Lord Howe said, we welcome. However, the RCN is extremely concerned at the very narrow definition of nursing care that the Government are using and propose to fund. This concerned my noble friend Lady Fookes and the noble Baroness, Lady Wilkins, among others.

The Government's definition excludes nursing care provided by healthcare assistants, but they deliver much of the nursing care received by frail older people in nursing homes, as was so eloquently portrayed by the two right reverend Prelates. I hope the Minister will address this important point in his reply.

My noble friend Lady Hanham was concerned about possible conflicts of interest when members of the patients' forums are appointed as non-executive directors of their trust board. This is an important point and I look forward to the Minister's response.

The noble Lord, Lord Rix, fresh from his valiant efforts on the Special Educational Needs and Disability Bill, made some excellent points about people with learning difficulties. As the father of an autistic daughter, I fully support the noble Lords wish for a place for them in dental, pharmaceutical and community services.

We on these Benches are adamant that proper, robust scrutiny of the Bill is essential. We share many of the varied and legitimate concerns expressed tonight and look forward to returning to them constructively in Committee.

10.56 p.m.

Lord Hunt of Kings Heath

My Lords, I agree with the noble Lord, Lord Astor, that this has been an excellent and wide-ranging debate. It has encapsulated both the ambitious nature of the Government's plans for the NHS and social care. It has also identified many of the key challenges that we face.

Many points have been raised. I shall attempt to deal with the key points; and I have no doubt that in Committee, as noble Lords have threatened, we shall deal with the others in ever-loving detail. Indeed, I noted that most noble Lords welcomed the Bill in about 10 seconds, and then proceeded to spend the rest of their speeches attempting to demolish bits of it. Although there is clearly disagreement among noble Lords over some aspects of the Bill, we start from a foundation where there is broad support for many of the aims contained in it. That is a healthy foundation on which to move.

I begin with the important issue of support and care for older people. The matter has exercised your Lordships on many occasions, and it is one in which I have a great deal of interest. Although it has been claimed in the debate that the Government's decision with regard to nursing care and personal care will lead to discrimination, the fact is that from October this year anyone who is already paying for his or her own nursing care in a nursing home or who is considering a move to a nursing home can approach their local health authority or primary care trust and ask for their nursing needs to be assessed and paid for by the NHS. That is surely a major advance and needs to be seen as such.

I have listened again, as I did some weeks ago, to the calls for personal care to be made free. The Government's position has not changed. We believe that the extra resources that we are bringing should be spent so as to benefit as many older people as possible. We are spending £1 billion on health and social services for older people across the board. We believe that the targeting of public money at a larger number of older people, preventing them from having to go into residential care in the first place and investing in intermediate care, will at the end of the day provide a more effective range of services for many more older people than free personal care would provide.

The noble Baroness, Lady Barker, made references to intermediate care. I believe that what we are proposing to undertake is providing, and will provide, an enormously wide range of care and services that will promote independence and improve the quality of care. At the end of the day, when it comes to a choice of provision of intermediate care services or free personal care, I believe that the provision of intermediate care services, with all that that means about promoting independence and the rehabilitation of people, is the right way to spend our resources.

A number of speakers, the noble Baroness, Lady Fookes, in particular, believe that it is unworkable to make a split between nursing care and personal care. I have to say that the split between NHS and personal social care provision has been a feature of our welfare services for many years. The Royal Commission believed that it is possible to distinguish between nursing care and personal care. The improved procedures that we are developing for assessing nursing requirements and the input of registered nurses are being developed with several organisations, including the RCN, Help the Aged and the Alzheimer's Disease Society.

The assessment of an individual's current and future nursing care needs will be undertaken by NHS nurses, using a standard approach as part of a single, multidisciplinary assessment. The assessment tool for this purpose will be published as part of the national service framework for older people. The aim is to ensure that nursing care is free wherever it is received. The definition that we have used clearly covers all care that requires the skills and experience of a registered nurse. Far from being discriminatory, surely that is a clear, fair and capable definition that can be applied on a consistent basis. Indeed, all the alternative definitions that have been proposed begin to break down the distinction between free nursing care and free personal care, either for care delivered by certain groups or to certain patients.

When a person's need is primarily a health need defined by continuing care criteria, all his or her care in a nursing home is funded by the NHS in the same way as applies in a hospital. However, for the vast majority of nursing home residents, where their need for nursing care is additional to their need for accommodation and personal care, the intention is to provide free nursing care in nursing homes in the same way as it would be provided in a person's own home or in a residential home where personal care is provided by carers or care assistants and the registered nurse provides nursing expertise. In those settings, bathing, feeding, dressing and toileting are provided by carers, either paid or unpaid, and, where applicable, charged for after a means test. The definition at which we have arrived most closely represents the extra care received in a nursing home compared to a residential home—that is, care provided by a registered nurse with her experience and skills.

Surrounding this debate is very much the issue of the overall care for older people. The right reverend Prelate the Bishop of Lichfield referred earlier to age discrimination, as did the noble Lord, Lord Clement-Jones. Perhaps I may make this abundantly clear, as I have done previously in this House. There is no place for age discrimination in the National Health Service. The national service framework, which I can assure the noble Baroness, Lady Barker, will be published soon, will address these issues with great care.

I have paid a great deal of attention to the issues raised by my noble and learned friend Lord Archer of Sandwell in relation to dementia and, indeed, to the points raised by the noble Lord, Lord Rix, regarding learning disabilities. I have a great deal of sympathy with the view that these are major health and social care issues which must be tackled. But what I cannot agree with is that one can decide that one can provide free personal care for some category of provision in relation to different groups such as people suffering from dementia or people suffering from learning disabilities and not for other categories. I think in the end it would prove to be very difficult to draw such a distinction.

I believe that making personal care free for everyone would not necessarily improve the quality of services; it would not help the least well off. I believe that investment in intermediate care is the most appropriate way to use the increased resources that we have available alongside what I believe to have been a very good decision in relation to free nursing care.

A number of questions were asked about preserved rights. I make it clear that £86 million extra will be available to local authorities on top of the current costs to the Department of Social Security of the preserved rights scheme. That is in recognition of the way preserved right funding has fallen behind the cost of local authority packages of care in recent years.

I turn to the issue of patient information. I assure the noble Earl, Lord Howe, and the noble Lord, Lord Astor of Hever, that the powers in the Bill to allow the use of patient confidential information without consent are intended to be used only to safeguard the continued operation of key services that are in the patient and public interest and cannot be carried out by other means. Indeed, those safeguards are built into the Bill. But, as the noble Lord, Lord Clement-Jones, pointed out, the GMC guidance which comes into operation in October would not permit the use of patient information without consent.

The proposals in the Bill are not a long-term solution to the use of patient information. We agree with the GMC that the only sustainable base for the use of patient confidential information is informed consent. As the technology becomes available to allow the use of anonymised data, we shall be able to move away from the use of confidential information in many areas. But this is not the every day experience in the NHS today. It will take time to move the culture and processes of the NHS on to a proper use of informed consent. The powers in the Bill will allow key services to continue to use patient information in the meantime, protecting the work of cancer registries and others.

I say to my noble friend Lord Rea that we do not accept that a list of all the uses of patient information without the need for consent can be drawn up in Whitehall and written into the Bill. One simple argument against this approach is that the list will change. New technology will allow some services to move to anonymised data. A central list is also bound to miss out key services. That is why we propose that individual uses of information are identified in regulations once they have been through a rigorous and transparent series of safeguards to make sure that the use of the powers in the Bill are appropriate. These safeguards include an expert advisory committee to advise the Secretary of State. A proposal will have to be in the patient or public interest. There must be no other reasonably practical alternative to using patient information without consent. The Secretary of State must consult before laying the regulations. The regulations will have to be made under the affirmative procedure, debated and voted on in both Houses. Once in place, the Secretary of State is required to review the regulations on an annual basis to ensure that they continue to meet these criteria.

This approach allows the medical community to identify the uses; disease registries, medical research, and public health, and then subject proposals to rigorous tests before the use of the power. These are clear, transparent safeguards; a process that allows the NHS the opportunity to identify the use of patient information but at the same time a process that the Data Protection Commissioner recognises as safeguarding patients' rights.

I turn to the outlawing of the use of anonymised data for commercial purposes. The powers in the Bill allow the Secretary of State to make regulations controlling the release or processing of patient or patient derived data for commercial purposes. I stress the term "commercial purposes". We believe that those powers are necessary to prevent the use of this information in ways that are to the detriment of the NHS. A prime example is the recent Source Informatics case where a data processing company was using prescribing data to target marketing efforts and drive up drugs costs—a process that would not be beneficial to patients or the NHS. The Bill provides the Secretary of State with the powers he needs to stop that kind of activity.

But we have sought to reassure the pharmaceutical industry that our concern is with the use of information for targeted marketing which would unnecessarily increase the burden of NHS finance. That would not be done without consultation. Regulations would have to be brought forward; and any action would be targeted and focused.

On the issues raised by my noble friend Lord Turnberg, anonymised data can be used for any purpose unless it is a specific purpose which the Secretary of State has prevented by regulations under Clause 67. I understand some of the concerns he raised, particularly those concerning the Public Health Laboratory Service. I understand that the definition of medical purposes is broad enough to encompass all the important public health work undertaken by the PHLS. I am happy to discuss this matter with him further between now and the next stage of the Bill.

I turn to care trusts. I believe that these are an important mechanism to bring together health and health-related local authority services to deliver integrated care to local people. I want to respond to many points raised, in particular by my noble friend Lord Harris, on whether it is a true partnership. It is a true partnership; it is not a takeover by the NHS. The importance of the local authority is protected by the process for establishing a care trust. All local partners must agree that a care trust is the right approach. Local authority members will be guaranteed representation on the care trust's board. The local authority retains overall responsibility for the functions delegated to the care trust. The care trust will be accountable to the authority. Any of the partners can apply to withdraw from the care trust.

Perhaps I may say to my noble friend Lady Wilkins that I understand the fear that a care trust would operate under the philosophy of a medical model as opposed to a social model. I believe that the involvement of local authorities in such a positive partnership way would ensure that one would involve the best of a social and medical model of care so that one was able to provide a more co-ordinated and integrated set of services. Of course, a local authority would have to give its agreement and support for a care trust to be formed. Surely that is one of the issues which a local authority would bring to the table.

On funding and payment for services, perhaps I may say to the noble Baroness, Lady Masham—I think that it is clear from what I have already said in relation to nursing and personal care—that the Government remain committed to the principle that NHS care should be free at the point of delivery. In relation to care trusts, a local authority would remain responsible for the charging policy of those services on which it has discretionary powers. When people are assessed for a range of services, they clearly will need to be informed for which of the services they would be charged. That means that clear information will need to be given to users and appropriate training to staff.

Many noble Lords raised the issue of community health councils. I have to confess that I was one of the first community health council secretaries ever appointed, back in 1975. I shall be for ever grateful for that experience. There is no doubt that CHCs were a much-needed jolt to a rather complacent National Health Service. I certainly agree with the noble Earl, Lord Listowel, that many CHCs, their staff and members, have done sterling work over those years.

The noble Earl, Lord Howe, asked about the record of CHCs. Looking back over the past 25 years, I do not believe that they have fulfilled all that was hoped for from them. The noble Baroness, Lady Fookes, raised the same question. Fifty two years after its formation, the National Health Service still exhibits too many characteristics of a producer-led philosophy. There is still too much paternalism towards the users of its services, it is still too slow to deal with patients' concerns on the spot, and it is still not open to sufficient local scrutiny on major changes of services.

That is where our proposals come in. Far from stifling or inhibiting user involvement or patient representation, we are enhancing it and giving it a much bigger punch than it has ever had before. That is the test on which our proposals must stand or fall.

I first came across the system of patient representation in the United States 15 years ago. I have always been impressed with the fact that hospitals in the US have members of staff whose job is to deal with problems for patients the moment that they arise. The patient advocacy and liaison service will be very effective in sorting out issues immediately rather than letting them gestate, ultimately forcing people to go through what we all agree can often be a very bureaucratic complaints service.

In our proposals in the Bill and the plan, we have recognised the need to ensure the independence of patient representatives, but they also reflect the important need to ensure that the patient's voice is heard in the NHS and to bring about change. We need to strike a balance between independence and influence. In some cases it is clear that independence is paramount. That is where the independent patient advocacy service comes into play, enabling support to be given to complaints, independent of the body about which the complaint is made. We have recognised the importance of requiring independent advocacy services to be established across the country for the first time. I agree that it is also important that people should not have to go through the PALS service to get access to that independent advocacy service. I assure noble Lords that approaches can be made directly. We also believe that NHS Direct will have an important role to play.

Patients' fora—if I may use the word—will have a positive role in bringing the concerns of patients to the attention of the board of NHS trusts. I listened very carefully to the questions of the noble Baroness, Lady Hanham, about the role of the non-executive director. I do not share her concerns about a person appointed through the patients' forum also serving as a corporate member of the board. The health service has a happy history of people wearing more than one hat on the boards of NHS trusts, including local authority councillors and, dare I say, doctors. It will be possible to make the arrangements work effectively.

We shall develop our ideas on the appointments process, but the independent appointments commission will have a role in overseeing the arrangements. We shall need to come to the issue that the noble Baroness has raised about the number of non-executives on the board.

The noble Earl, Lord Listowel, and my noble friend Lord Harris referred to a national patients' body. We have listened to the calls from patient groups which press the need for a national patients' body. We also recognise the need for a body to provide support, guidance, training, development and public representation in relation to patient care. Following a proposal from leading patients' organisations, we are funding a feasibility study about how such a national body would work in practice. We shall look to develop any proposals which emerge from that project.

I sense that my time is nearly up. Perhaps I may conclude by commenting on the suggestion that the Bill is rather centralist, as the noble Earl, Lord Howe, said. The debate about central and local direction in the health service has been with the NHS since its formation in 1948. The government of which the noble Earl had the honour to be a member dabbled in this matter. I remember that at one stage during their stewardship, they managed to produce 57 different priorities for the NHS. They had a record of continuous restructuring, and they gave us the internal market, which produced an enormous bureaucratic overload.

However, despite that, the NHS was left with a great deal of inconsistency, with postcode rationing and with a slow take-up of new medicines, technology and treatment. We introduced mechanisms such as NICE, the Commission for Health Improvement and National Service Frameworks in order to achieve greater consistency.

I believe that the new powers in the Bill are wholly in line with the aim for consistency; for example, Clause 6 seeks to direct trusts in relation to the terms and conditions of employment of staff. That is necessary in order to implement consistent pay modernisation across the NHS. Clause 20 seeks to create new powers which will allow the Secretary of State to replace management teams in the NHS in cases of extreme failure. Alongside the power to enforce the coming together of NHS local authorities as care trusts, both those provisions are backstop measures to be used only as a last resort. However, the NHS cannot and should not sustain failure. I believe that it would be irresponsible of us not to introduce measures to improve performance where there is clear evidence of problems.

It is important that the Bill also recognises the benefit of local leadership and ownership. That is crucially important in relation to earned autonomy. The NHS must be rewarded with few strings attached to successful organisations but with more intervention in the case of those which fail to keep up with the level of the best. Surely that is the answer to the perennial issue of striking a balance between central and local control in the National Health Service—that is, to provide the incentives for organisations that perform well to be given more freedom and to intervene more with the weaker organisations.

There are other ways in which to push down responsibility; for example, by giving health authorities more control in relation to the suspension and distribution of GPs. Local pharmaceutical services will depend on the leadership role from health authorities. At the same time, primary care trusts will take on more and more responsibility for the commissioning of services, and an independent appointments commission will take over from Ministers responsibility for appointing non-executives. I do not accept the charge that the Bill is over-centralising. I consider that it provides a sensible balance between national consistency and local ownership.

In conclusion, we have had an excellent debate which no doubt will be continued in Committee. I believe that the Bill represents an important plank in our armoury of establishing NHS and social care services as a beacon for excellence in our society today. We face enormous challenges in transforming those services, and I believe that the Bill will help us on the way.

Lord Rix

My Lords, before the noble Lord sits down, perhaps I may ask one question. Why does he find it so difficult to place those with severe mental impairment in one category and to say that they are not worthy of being deemed as in need of nursing care as opposed to other categories which are perhaps less severe? I refer to people with cognitive impairment caused by, for example, strokes, Alzheimer's, learning disability, dementia or Huntingdon's disease. Surely it would be fairly easy to deem all of those people as being in need of nursing care wherever they may be living and simple to separate them from other categories of disablement.

Lord Hunt of Kings Heath

My Lords, I was trying to make two points. First, when I discussed enabling free nursing care to be provided in nursing homes, I tried to point out that there is consistency of approach between nursing services that are provided in residential care homes, which are currently provided free by the district nursing service, and that provided in people's homes. The Government have decided that there should be complete consistency with regard to the provision of registered nursing care through all of those sectors. Secondly, in the context of today's debate—we shall doubtless discuss this further in another context—if one seeks to establish whether there are categories of people who should be given free personal care, one runs into great difficulties trying to distinguish between people with dementia or learning disabilities, for example, and the other care categories that may be involved. That is why I believe that ultimately the right distinction is that between nursing and personal care. That is the Government's approach.

Lord Archer of Sandwell

My Lords, before my noble friend concludes his remarks, and at the risk of being tiresome, does he accept that there is not only a distinction between nursing care and personal care but that other forms of treatment could be involved? Although such forms of treatment are not administered by registered nurses they are nevertheless as much treatment as nursing care.

Lord Hunt of Kings Heath

My Lords, if we are considering treatment, that would be provided by the NHS under the provisions of the National Health Service Act. However, in this context we are concerned not with care that is provided in homes—a primary health need, as that is defined by continuing care criteria—for, in that case, all such care would be funded by the NHS. Rather, we are concerned with the situation in which the need for nursing care is not continuing care but care that is additional to the need for accommodation and personal care. In that context, the Government's proposals involve a consistent approach across nursing home care, residential care and district nursing that is provided to people in their homes.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at twenty-eight minutes past eleven o'clock.