Health and Social Care Bill

HL Deb 15 March 2001 vol 623 cc1024-56

5.41 p.m.

Lord Hunt of Kings Heath

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Serota) in the Chair.]

Lord Clement-Jones moved Amendment No. 1: Before Clause 1, insert the following new clause—

"PURPOSES

The purposes of this Act are, inter alia, to—

1. (a) institute reforms relating to the National Health Service (including in health service funding, employment, public and patient involvement, scrutiny, consultation, independent advocacy, intervention powers and regulation, recruitment and discipline of general practitioners and dentists),
2. (b) provide authority for local pharmaceutical services' pilot schemes,
3. (c) extend prescribing rights,
4. (d) introduce provisions relating to Care Trusts and partnership arrangements,
5. (e) introduce free personal care (including nursing care) after an assessment of need for those in receipt of community care services, and
6. (f) introduce provisions relating to the control of patient information."

The noble Lord said: Given the number of amendments that have been tabled, we are in for a number of fairly long sittings in Committee. However, I make no apology for placing the issue of personal care right at the forefront of our Committee stage deliberations.

The issue of personal care draws a clear line between the approach of these Benches and, as I understand it, that of both the Conservative Party and the Labour Party. Regrettably, the Bill promises to be a missed opportunity in that respect.

We on these Benches have strong support for our approach from a considerable number of sources—not least the Royal Commission on Long-Term Care of the Elderly, which originally highlighted the inequity in the current system whereby a patient receives free nursing care in hospital but is means-tested for that same nursing care in a residential home.

The Government's plans set up an artificial distinction between nursing and personal care. This will mean that many people in nursing homes, or at home, will still be means-tested for care such as being dressed, bathed or washed, which they would certainly not pay for in an NHS hospital. The classic example used by many correspondents is that of the dementia sufferer based in a residential home who requires a high level of care but who receives little medical intervention. In those circumstances such people will be paying for their personal care.

We on these Benches believe it right that all nursing and personal care should be paid for, whether in a care home or in people's own homes, according to an assessment of need. We believe, as did the Royal Commission, and as do a number of Members on the Government Back Benches who spoke in the debate initiated by the noble Lord, Lord Ashley, that this is the only long-term, principled and practical solution. We believe that the risk of needing long-term care should be spread across the whole population and over the life-time of that population as the most efficient way of addressing both the risk and the cost of ensuring against it. There should be a shared responsibility between the individual and society to meet the cost of old age. At the same time, the guiding principle of policy should be to make appropriate early interventions to support people in independent living.

My party found the key recommendations of majority view set out in the report of the Royal Commission that personal care should be free, subject to an assessment of need, persuasive and we regard this as a key priority for future expenditure.

Living and housing costs are legitimate items which people should expect to meet themselves. The straightforward living costs of staying in residential care should remain the responsibility of the individual, subject to means-testing. However, personal care costs fall heavily and unexpectedly, and are beyond the control of the individual. For this reason, we believe that personal care costs should be exempted from means-testing in all settings and that they should, instead, be based on an assessment of need. These are defined by the Royal Commission as the care needs that give rise to major additional costs of frailty or disability associated with old age.

The Royal Commission went on to say: Personal care is care that directly involves touching a person's body (and therefore incorporates issues of intimacy, personal dignity and confidentiality), and is distinct both front treatment/ therapy (a procedure deliberately intended to cure or ameliorate a pathological condition) and from indirect care such as home-help or the provision of meals". Between 100,000 and 125,000 people in residential settings would benefit from excluding personal care costs from the means test, as compared to the 35,000 who would benefit from free nursing care alone.

Personal care costs at home should also be exempt from charging. The Government's recent consultation paper on charging policies for home care is a profoundly depressing document. Location should not matter when people need intimate care such as bathing, dressing or feeding. It is a disgrace that in this country debt collectors are chasing after dementia sufferers for money to pay for their care. If the Bill is passed in its present form, they will simply be chasing the sons and daughters of dementia sufferers instead.

As regards the arguments advanced by the Government regarding the fact that some of the better-off may benefit, the health service is not there to redistribute wealth from the rich to the poor, but rather to redistribute resources from the healthy to the sick. There is clear evidence from recent research carried out by the King's Fund that most people will struggle to pay for both long-term care—or long-term care insurance—and a second pension, as envisaged by the Government.

The proposed definition of "nursing care" which we shall debate later in Committee will leave care home residents unclear about what they will actually have to pay for. Indeed, it is our view that it is virtually impossible to devise a watertight definition of nursing care which will avoid disputes.

Over 15 voluntary organisations involved in the care and representation of older people have condemned the Government's plans as set out in the Bill, including Methodist Homes for the Aged, Age Concern and the Royal College of Nursing. The Scottish Executive is now moving down the path proposed by my party in the coalition. I very much hope that the Government will have the sense to do the same in England and Wales. I beg to move.

5.45 p.m.

Lord Morris of Manchester moved, as an amendment to Amendment No. 1, Amendment No. 2: In subsection (e), after "nursing care)" insert "and care by professionals supplementary to medicine

The noble Lord said: In moving this amendment to the proposed new clause, I shall speak briefly also to my Amendments Nos. 265, 268 and 269 to Clause 56 of the Bill to which it relates.

All these amendments have the same goal; namely, to ensure that healthcare provided by any health professional— not just that provided by a nurse or a doctor—is made available to people in long-term care without charge.

Before setting out the case for the amendments, I have a non-pecuniary interest to declare. As some Members of the Committee will know, I have the honour to be president of the Society of Chiropodists and Podiatrists, and it is my work in that capacity which, for me, makes self-evident the need to make the Bill less restrictive in defining healthcare. As well as being a trade union, the society is the professional organisation of state registered chiropodists in this country. It works both assiduously and with success on their behalf as the providers of more than 8 million appointments for patients each year. Here I pay special tribute to Pam Sabine and Hilary De Lyon, the chairman and chief executive of the society, and to their fellow officers past and present.

Much of the debate about the Bill has so far, rightly, focused on whether only care by nurses and doctors should be free, or whether personal care more generally should be provided on the same basis for everyone in long-term care. The purpose of my amendments is to face the reality that essential healthcare in the UK is provided not only by doctors and nurses, but also by other health professionals.

The professions supplementary to medicine are 12 highly important and quite distinct professions. They include, as well as chiropodists and podiatrists, speech therapists and physiotherapists among other essential health professionals, all of whom have one thing in common: they provide real, measurable, tangible, clinical, healthcare benefits.

One striking example is that the clinical skills of chiropodists and podiatrists, when properly integrated into diabetic care, can now reduce—and demonstrably have reduced—amputations among patients with diabetes by 50 per cent, while their treatment of other disabling foot pathologies helps to increase the mobility and reduce the dependency of patients more generally. This explains the Health Minister's comment on the, excellent contribution of podiatric surgeons to foot health", in a recent answer to a parliamentary Question in another place.

Yet currently, where chiropody and podiatry services are provided for people in long-term care, the cost to the patient depends—strangely and illogically—not on their medical needs, or even on their financial means, but on the employment status of the chiropodist or podiatrist. If she or he is employed by the NHS the service will be free. If the chiropodist or podiatrist is self-employed and has a private contract with the long-term care institution, then a charge has to be levied by the practitioner. This is clearly anomalous. I cannot believe that Ministers are content to leave the position as it now stands.

It may be argued that provision for people in long-term care is no different from that for other patients. Widely variable standards of NHS provision now mean that patients in some areas receive free NHS care, while elsewhere they have to pay. But that is plainly unsatisfactory and unjust, and the Society of Chiropodists and Podiatrists will go on campaigning to improve the general level of NHS provision to that of the existing best.

This is why the society now argues with such conviction for services to be provided free of charge and regardless of age. Keeping older people mobile can prevent many other ailments occurring. For example, older people who cannot walk are liable to become increasingly inactive, exposing them both to respiratory problems and depression, often resulting in complete dependency on care. Timely care from a chiropodist or podiatrist can prevent this happening and avoid unnecessary further costs to the NHS.

It was widely hoped that the Government's review of the Feet First report, which was concluded last year but has not so far been published, would by now have provided consistent and clear guidelines on the proper provision of NHS chiropody and podiatry by all health authorities and other commissioners within the service. There is still time for a rethink and, as the Minister is aware, the Society of Chiropodists and Podiatrists is seeking another meeting with him on this important issue.

Meanwhile, let us be clear about the here and now. Chiropody/podiatry is not personal care; but nor is it nursing care. It not only protects mobility and improves quality of life, but also specifically and undoubtedly treats medical conditions and alleviates clinical pain. Why then should healthcare be defined so narrowly as to deny patients the often vitally important help that chiropodists and podiatrists, like the other professions supplementary to medicine, can provide? What possible defence is there for treating their help as an optional extra—as the "a" in et cetera, as it were, of British healthcare?

The Health Minister also said in another place: Our definition [of nursing care] is not task based".

That is why I have framed my amendments—both here and again at Clause 56—as generically as possible; and I look forward to a positive response from my noble friend Lord Hunt when he replies to the debate. In particular, I hope for his assurance today that all chiropody/podiatry provided for a person who is in long-term care and clinical need will automatically be available without charge.

I ask for that assurance all the more urgently since, under the Care Standards Act 2000, care homes must now include foot care in their residents' needs assessment. They must also ensure that residents' NHS entitlements are upheld and promoted. Thus all that I am seeking is consistency in legislative provision. This means ensuring that state registered chiropodists, along with others in the professions supplementary to medicine, are recognised within the Health and Social Care Bill as providers of essential care without charging.

Although I have set out the case for the amendments mainly by reference to chiropody and podiatry, of course it can be argued just as strongly in terms of the essential role of other professions supplementary to medicine in providing healthcare. For a person stricken by a stroke, the work of a speech therapist is often critically important and, if provided in a longterm care setting, there should be no doubt but that it will be free. Likewise, when a frail elderly person falls and fractures a limb, the work of a physiotherapist can be hugely beneficial to her or his healthcare. So here again there should be no doubt but that it will be free in the case of long-term care.

Many other examples could be given of the case for inserting, after nursing care in the clause, care provided by the other professions supplementary to medicine. As I said earlier, they demonstrate that healthcare is not just about doctors and nurses. Ask any self-respecting doctor or trained nurse and they will tell you that to say otherwise is now barbarously old fashioned. Healthcare is also very much about chiropodists and podiatrists and all their fellow professionals in the professions supplementary to medicine. Ask any diabetic, any stroke victim, or any frail elderly person who has suffered a serious fall. That is the case for my amendments and I beg to move.

Baroness Carnegy of Lour

Perhaps I may suggest that noble Lords cut short the discussion on the amendment. It proposes a purpose clause. Such clauses have their uses, but they should at least amplify the Long Title of a Bill. I do not believe that this purpose clause does so, for starters. Subsection (c), which refers to extending prescribing rights, says less than the Long Title, as does subsection (f). Subsection (e), which the noble Lord, Lord Morris, seeks to amend, talks about something that does not even feature in the Bill.

The noble Lord, Lord Clement-Jones, has made all this in order by grouping it with Amendment No. 260, which proposes that there should be free nursing care. I suggest that it is quite wrong to discuss this in isolation from all the other amendments, many of which are most important and very much to the point; and. indeed, to which I believe the Government will listen. I do not know how recently he discussed the matter of free personal care with his Scottish colleagues in the Scots Parliament. However, I met a few of them last night and I gather that the whole matter is up in the air because no one knows who will pay for it. I do not honestly believe that we should spend much time on the matter. I personally could not support the amendment. I do not know what my noble friend, or the Government, will do in this respect. I think that we should move on.

Lord Lipsey

I am tempted to follow the noble Baroness because we have many more detailed amendments to the Government's proposals on which we could more profitably spend the bulk of our time. I shall not detain the Committee for long. The noble Lord, Lord Clement-Jones, made his case, and I believe that we should consider briefly one or two arguments on the other side.

The noble Lord gave the game away to quite a considerable extent right at the beginning of his remarks. He began by saying that you get your bathing free in a hospital, but that if you are in a home you may have to pay for it if you are better off. That is quite true. It is also true that you get your food free in a hospital, while you do not get it free in a residential home: you have to pay for it, if you are well off enough to be able to afford to do so.

However, the noble Lord, is not proposing that food should be free in residential homes; just personal care. Whatever solution you come to, wherever you draw the line when you look at the difference between what is paid for and what is free, you will find that there are anomalies. There simply is not a clear-cut guillotine which makes clear what should be one side of it and what should be the other. We shall pursue a chimera if we try to find such a dividing line. We should judge these matters on their merits.

New Members of this Chamber may be astonished to discover that they often hear the same speeches four times: on Second Reading, in Committee, on Report and on Third Reading. One can hear the same speeches six times on this issue because we had a pre-run round the course on the debate initiated by the noble Lord, Lord Ashley, on 17th January. We shall have two "goes" at discussing issues surrounding the provision of free personal care.

I do not want to repeat my Second Reading Speech when I argued—I did not hear the noble Lord, Lord Clement-Jones, refute this—that the cost of free personal care (which is already very high at more than £1.2 billion even on the wholly inadequate calculation of the Royal Commission) will go up not by five times, as estimated by the majority of members of the Royal Commission, but by between 12 and 20 times by the middle of the next century. Free personal care would be the cuckoo in the nest and if we provided it, we would have to sacrifice services to older people—care assistants, care homes, clothes and the care provided to keep people in their own homes. Those items would be sacrificed to pay for services for the most well-off 25 per cent of the population. I do not want to go over that argument again.

I wish to address three points to those on the crowded Benches opposite who have clearly decided to adopt this issue as the kernel of their election appeal. My first point is a kind of constitutional point. Really big spending is a matter for the other place according to the rules of privilege. We are talking about a huge expenditure commitment. I would find it strange if this Chamber felt that it could override the judgment of elected Members. The other place was in favour of free nursing care but not in favour of free personal care.

Secondly, it is terribly important that we do not delay the Bill. There is a large number of amendments. We had a debate on Second Reading when points were made about the broad question we are discussing. However, there is much detail to be discussed on the issue of free nursing care. If the Bill is lost because we examine it for too long, the consequences will be serious as the provision of free nursing care is supposed to start on 1st October. In the case of most Bills, it does not much matter if they are passed this year or next year. We shall get them eventually and not much is lost by delay. However, this Bill concerns people who, on average, spend only 18 months or so in nursing homes. If their free nursing care is postponed for a year, during that year they will fail to get the benefits to which they are entitled and which the Government propose to give them. Therefore, we should be careful not to delay the Bill.

Thirdly, I hope that the noble Lord, Lord Clement-Jones, the noble Baroness, Lady Barker, and my many friends on the Liberal Democrat Benches who know that I am close to them on many issues will accept my next point. I spend much of my life campaigning for electoral reform. It is a great cause but not much loved by many on this side of the Chamber. Why is it that it is always so difficult to persuade the Prime Minister to go the full hog on that? He thinks that the Liberal Democrats are decent people. If they would have me, I sometimes think that I should like to join them; they are so decent.

However, at the end of the day, the Liberal Democrat Party is not serious as it will not face up to the kind of decisions that have to be taken in government regarding how scarce resources are best deployed for the maximum good. That is the fundamental issue here. If money grew on trees—as the majority of the members of the Royal Commission seemed to think that it did—of course it would be acceptable to provide free personal care. However, money does not grow on trees but has to be raised painfully from taxpayers. One has to take painful decisions as regards allocating it between competing priorities such as education, health, transport and the rest. To make a snap judgment to provide free personal care and let everything else go hang is to my mind not a serious approach to policy making and makes it difficult to achieve the truly plural politics that I should like to see.

6 p.m.

Lord Beaumont of Whitley

On behalf of my party, I support the amendment and the amendment to the amendment, which I imagine is accepted by the noble Lord, Lord Clement-Jones. They should both be supported. The arguments which have been deployed against them are not effective. We are told that we should not override the Commons. There is a perfectly good procedure between the two Houses whereby we try to reach agreement. We have not yet reached the stage of trying to override the Commons. However, we are entitled to ask the Commons to think again. We have a perfectly worthwhile reason for asking the Commons to think again.

The argument which the noble Lord deployed as regards delaying the Bill does not hold water either. I have never considered that a good argument. It is used time and time again at various points of the parliamentary year or the parliamentary Session. As the noble Lord has just said, in the end what is wanted and what is necessary and what is right usually can be accepted. I do not attempt to deny that people will suffer a sad loss if there is delay. I should be sorry if that occurred, but it is much better to put in place correct provisions that will last through to the next century than to worry oneself sick about people experiencing problems over the next 18 months. As I say, I do not think that that argument holds water.

Nor do I think the argument valid that the Liberal Democrat Party is not serious about these matters because it does not have to face up to allocating scarce resources. The Liberal Democrat Party, of which I used to be a member, has thought the matter through. It has established its priorities. I speak from experience of preparing for general elections on behalf of that party. If it is to include the measure in its election manifesto—as the other side of the Chamber seems to think that it will—no doubt it has already been costed extremely carefully. The party has faced up to priorities and has made a judgment. In my view, it is the right judgment and my party certainly will support it.

Lord Rix

My head having been chopped off by the guillotine of the noble Lord, Lord Lipsey, I hope that the Committee will forgive me if I take my head out of the basket, tuck it under my arm and support Amendments Nos. 1, 262 and 260.

I must confess that I have been outflanked. When I tabled my own amendment, I seemed likely to have the honour of firing the first shots over Clause 56. But the ingenuity of Amendments Nos. 1 and 260 let the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Barker, in first, followed closely by the noble Lord, Lord Morris of Manchester, with Amendment No. 2. But no doubt my time will come in due course!

The argument against a broad definition of personal care and exemption from charges, and matching that broad definition, is essentially one of cost and priorities. Less income from charges means greater cost for providing services, and costs incurred in one direction cannot, unless resources are increased accordingly, be incurred on other things. But we are not discussing whether the state rather than the individual should pay for very rich people, or even rich people, to have their flowers arranged or their nails manicured; we are talking about basic disability needs. I doubt whether anyone reading this draft clause (Amendment No. 260) would regard the services listed there as anything other than basic. As a civilised society, we ought to ensure that these basic services are free wherever they are provided and by whoever they are provided, including the care proposed by the noble Lord, Lord Morris of Manchester, in regard to supplementary medical practitioners.

I have no objection to people who are financially well off or reasonably well off being required to pay for board and lodging and the frills of care—all the grapes they wish to consume. But no one should be asked to pay for the disability care basics. On behalf of Mencap and numerous other disability and older people's charities, I support Amendments Nos. 1, 2 and 260 accordingly.

Lord Williamson of Horton

I heard the words of the noble Lord, Lord Lipsey, and I made the simple resolution that my own intervention would be shorter than his. The grouping of the proposed purpose clause, the amendment of the noble Lord, Lord Morris of Manchester, and the proposed new clause in Amendment No. 260 brings us to the difficult but important issue of the definition of nursing care and what we do about other forms of personal care. We greatly welcome the Government's commitment to fund free NHS nursing care for all who need it. If we were wholly satisfied with the definition in the Bill as it stands, we could say thank you. I advise the Minister that I sometimes do say thank you to the Government; it is not very common, but I sometimes do it.

Clause 56, to which we are coming, refers only to nursing care by a registered nurse covering the provision of care itself and the planning, supervision and delegation of the provision of care but excluding services which do not need to be provided by a registered nurse. This would exclude services provided by health care assistants who carry out a lot of essential tasks. On the other hand, Amendment No. 1 refers much more widely to free personal care which is evidently wider than services provided by a registered nurse. Amendment No. 260 is even more specific with a list of seven types of personal care services.

Experience in your Lordships' House has taught me that although many parliamentarians like purpose clauses, legal eagles do not and they are unlikely to be converted on the road to Damascus or Westminster. Therefore, in relation to personal care and assessment of need, we are dealing with a paving amendment. I do not think that we shall get anything more than that. I like to treat my intervention in the same way as a paving intervention, if there is such a thing. While there is a huge difficulty about definition and the risk of putting into legislation lists of services that may become outdated if there was a policy decision, it is none the less true that the current definition of nursing care in Clause 56 should be looked at again. That would be the consequence of the amendments; there would be a change. We need to recognise that we should include some other services which most people would consider to be an integral part of personal and nursing care. They would think it was one sole type of care and would not make a great distinction between them.

Baroness Masham of Ilton

It is very difficult to separate personal and nursing care. If a person is turned at night to prevent pressure sores, is that considered to be personal care or nursing care? If a person develops pressure sores, nursing care becomes necessary, and that can cost an immense amount. In the end, the patient can land up in hospital. The turning of a patient can be undertaken by an assistant or a nurse. This is vitally important because pressure sores are costing the country millions of pounds.

6.15 p.m.

Baroness Ashton of Upholland

I am conscious of the comments made about procedure so I am not sure whether I should be speaking. I remind the House that I am chair of a health authority. I want to make an administrative point, and a moral one from a personal view. The administrative point is that I have asked my health authority, if we were implementing this legislation today, how we might go about it. I recognise that we will receive fantastic guidance from the department—as always; and, as always, the department is glad to have views fed back to it in advance. I shall take the liberty of doing that via this statement.

From our point of view, it is simple. At present when persons are assessed to go into residential nursing care, we have an inspection registration unit responsible for ensuring that the appropriate standards of nursing and care are available for those patients. A typical percentage ratio would be 65 per cent of services provided by carers and 35 per cent provided by registered nurses. We do not investigate precisely what the registered nurses do; I do not believe that that is our job. They may decide to brush a patient's hair as a beneficial treatment for the scalp or because they are trying to develop a relationship with that patient. Were this Bill enacted now, we would pick up the bill for the 35 per cent that is currently paid by the residents of that nursing home. We have a clear administrative way of dealing with this that does not get us into the list of what is personal care. We should be cautious of doing anything other than leaving that in the hands of nurses who know perfectly well what they are doing and when they need to intervene with particular patients and not others.

We reassess patients every three months. We look carefully at patients who become more ill with regard to whether to move them. Currently, we have eight patients in my health authority who would have gone into NHS continuing care, but we feel that it is wrong to move them and we have paid for the additional nursing care.

On the ground this feels a lot easier from a health authority perspective than it feels in your Lordships' House. I would argue strongly that we should not include in this legislation lists which would tie the hands of nurses with regard to what they can do and which would create a division in the seamless care we wish to see in our nursing homes.

The second point I make relates to costs. I am conducting a review of elderly care in Hertfordshire. If I had the money that I believe is quoted in the documents and by the Royal Commission, I would not spend it in the way proposed in this amendment. That is because I have looked at all our care for the elderly. I would spend the money first on ensuring that elderly people at home who fall do not end up on trolleys in A & E departments. Currently, that is what happens because we do not have the capacity for teams of doctors and nurses to go out from intermediate or continuing care facilities to help them at home or to take them directly into a facility that would give them respite care. Secondly, I would look carefully at intermediate care where we have very little, if any, physiotherapy or occupational therapy—and I would invest in that. Thirdly, I would invest in ripping down some of the buildings we laughingly call NHS continuing care facilities and build purpose-built ones appropriate to the needs of our elderly population.

This does not mean that in an ideal world I would not want personal care; but I ask that we think carefully about the moneys we have available and could have available. This is not where I would put the money. There is a lot more to be done for elderly people. There are priorities that must come ahead of this.

Baroness Barker

Some months ago the noble Lord, Lord Lipsey, wrote an article in one of the broadsheet newspapers in which he gave six reasons why he was not a Liberal. I read that article and agreed with him on all six counts. I want to make it clear that, having listened to the arguments of the noble Lord on these matters over the past few months and watched him bravely go into the lion's den at pensioners' meetings, I am convinced that he is as passionate about the needs of older people as I am. We have different conclusions and priorities, but I do not doubt his sincerity.

The noble Lord referred to previous discussions on the subject in the House. I had hoped that he would rehearse some of the arguments which are germane to this issue. One of his most powerful arguments is that if something is free demand for it will inevitably increase. That argument was put forward by those who opposed the creation of the NHS in 1948. It was resisted at that time and the NHS was created. On the morning that the NHS came into being, healthcare workers in Birmingham went to work early, barricaded themselves in their offices and waited for the hordes to descend. At nine o'clock a short and orderly British queue formed.

It was right to resist such an argument in 1948; it is right to resist it today. From my experience, the idea that older people will ask for help to go to the toilet or to eat when they do not need it does not ring true. Older people value highly their personal independence.

The noble Baroness, Lady Carnegy of Lour, asked a valid question: why are we discussing this issue now? One reason is that the Government have put forward a number of different proposals emanating from the NHS Plan but without sufficient transparency to enable us to understand the future of healthcare. I refer in particular to the intermediate care guidance. The noble Lord, Lord Lipsey, states that £1.2 billion is too much to spend on personal care. We know—the Government have told us several times over—that £900 million will be made available for intermediate care. But we do not know how that will be made available. Because of the lack of transparency on the definition of nursing care we must now concentrate our minds on personal care.

Opponents of the measure argue that 70 per cent of people already in residential care have all their personal care paid for and that the measure will subsidise those who are well off. Many people in nursing residential care already have to pay a considerable amount for their personal care. An individual with an income of approximately £185 per week may spend a third of his income on personal care.

The Government will say that things will change in the future because people will not have to sell their house. Those people may not have to sell their house immediately but the proceeds from the eventual sale will go towards the cost of their care. Although at a deferred stage, people with low incomes will still have to sell their house.

The noble Baroness, Lady Ashton of Upholland, argued for priorities. We shall discuss those in depth. Some of us cannot yet see the funding priorities in the detail of the Bill: we do not know from where the new money, as opposed to the recycled money, will come. We are told that there will be regulation and guidance. Until they are in place we must ensure that those who are in greatest need have those needs met.

The creation of the welfare state in 1948 was referred to as a settlement with the British people. At the heart of that settlement was an understanding that those most in need would have those needs provided for through taxation. The noble Lord, Lord Lipsey, may agree that the heart of the issue relates to taxation and priorities. On these Benches, we are not satisfied that the Government have made clear with sufficient transparency and clarity which needs of older people will be met. The measure appears to be a tax on age and vulnerability. That is not acceptable to Members on these Benches.

Lord Hunt of Kings Heath

In a sense we are having another Second Reading debate. I shall try to be brief in my response because in essence the Government's answer is the same as that given at Second Reading and in the debate initiated by my noble friend Lord Ashley a few weeks ago.

Of course, we are determined to ensure that we do everything we can to improve health and social care for older people. That is why the NHS Plan set out how we would invest £1 billion a year in new services for older people by 2003–04 and a further £360 million in easing the personal costs faced by people entering long-term residential care.

This is a substantial investment of public money. It is also a major step forward in terms of fairness, equity and better care. Clearly, the Government have had to face difficult decisions on where to spend that additional resource. In rejecting, as we have done, the Royal Commission's recommendation on personal care we have taken a deliberate decision to spend the resources available to us on improving the quality and range of services provided for older people and those with disabilities with particular emphasis on services which will help those older people regain as much independence as possible—services which will support them in their own homes, and services tailored to their individual needs.

As noble Lords well know, personal care is currently provided on a means-tested basis. As the noble Baroness, Lady Barker, pointed out, that means that seven out of 10 people in residential accommodation receive free some or all of their personal care. I understand the point she made. Nevertheless, it is a fact that is often lost in debate on these issues.

It is also wrong to ignore the other changes we are making which I believe are substantial improvements: raising the capital limits at which people become eligible for the means test; and disregarding the value of a person's home for the first three months in residential accommodation which will mean that the moderately well off will have more of their care paid for from the public purse.

I agree with the noble Lord, Lord Rix, that it is a question of cost and priorities. Making personal care free, I believe, would in effect lock in place the inadequate services which older people currently receive. Not one extra person would be helped to stay in his or her own home, or to receive a piece of equipment which would transform their ability to cope at home. The services would not be extended so that more people could benefit from a greater range of better services.

It is a difficult choice but I believe that the Government are right to choose to invest those available resources in changing fundamentally the way that our care system supports older people. I believe that investment in personal care would very much inhibit that.

The noble Baroness, Lady Barker, frequently cast doubt on intermediate care. She asked for transparency. I believe that we have been transparent about our aim: to spend £900 million by the year 2003–04; and, as part of that programme, to enable us to have 5,000 extra intermediate care beds, and 1,700 supported care places enabling around 150,000 more people a year to regain their independence or avoid going into hospital—services which would be provided free. We have a target for the NHS of 1,500 more intermediate care beds in 2001–02 compared with 1999–2000, with an extra 60,000 then receiving intermediate care services.

Health authorities are also planning to provide intermediate care services for an additional 42,000 people in the coming year. We already have examples of imaginative schemes being put into place. They include short-term programmes of intensive therapy and rehabilitation in a residential setting such as a community hospital to enable people to regain the physical functioning and confidence to return safely to their own home. My noble friend Lord Morris may be interested to know that the schemes involve not just nurses, but physiotherapists, occupational therapists, speech and language therapists and members of other professions allied to medicine helping patients regain or maximise their ability for independent living. There are also hospital at home schemes, which provide intensive support in the patient's home and avoid the need for admission to hospital.

I could quote many examples of schemes that are helping people regain their independence and maintain it for as long as possible. We will build on that, because we are committed to improving services for older people. The National Service Framework for Older People will include setting standards for care. All older people, including those with dementia, can expect improved services.

I listened with great interest to the noble Lord, Lord Clement-Jones. I do not remember him saying anything about money. Although the noble Lord, Lord Beaumont, postulated that the Liberal Democrats had carefully costed their proposals. I have my doubts. If we add up all the Liberal Democrat spending commitments that have been announced in the past few days, it is very difficult to square them with proposals to raise income tax by 1p. It would have been helpful if the noble Lord had come to the debate with some concept of how those extra resources could be raised.

In conclusion on the key debate, we believe that investing in the new, improved services is the right choice. It would be wrong to ignore the extraordinary advance that is being made by ending the anomaly that only people in nursing homes can be charged for the care that they receive from a registered nurse. That care would be free through the NHS in any other setting. That will help 35,000 people at any one time who currently have to pay for their nursing care. They could save up to £5,000 a year during a stay in a nursing home.

I suspect that we shall debate the definition of nursing care at some length in Committee. All that I would say at this stage is that through the definition that we have used in the Bill the Government are simply seeking to create a level playing field. That definition most closely resembles the extra care that a person would expect to receive in a nursing home as opposed to residential care. Of course we shall come back to that.

On the point raised by the noble Baroness, Lady Masham, there are always risks involved in listing the functions of nurses and care assistants or picking a particular illness or the issues that a person is suffering from and asking that question. The appropriate person to carry out that task will depend on the clinical assessment. In a sense, that is entirely consistent with the Bill's proposal on the role of registered nurses in nursing homes.

I was delighted that my noble friend Lord Morris referred to the role of professions supplementary or allied to medicine. I strongly agree that it is not simply an issue of doctors and nurses. The NHS Plan makes it abundantly clear that we see an important role for all the professions involved in wider health care. I have already mentioned the intermediate care role played by many therapists and professionals. I shall be happy to meet with the Society of Chiropodists and Podiatrists to discuss the issues further, particularly the point that he raised about Feet First.

The NHS has a duty to provide healthcare to any member of the public as reasonably required. If the NHS has assessed a health need, residents of care homes should already receive NHS services direct from the NHS in the same way as any of us would receive services from a GP, a physiotherapist or other members of the health professions under the responsibility of the National Health Service.

This is a straight issue of priorities. I think that the Government have taken the right decision. It has been a difficult decision, but I am convinced that the change in relation to nursing care provided by a registered nurse, other changes that we have made on the disregard and the massive spending on intermediate care are the best use of the additional resources that we have made available and will achieve much more for the people of this country than simply bowing to the altar of free personal care.

6.30 p.m.

Lord Rix

May I ask the Minister a question for clarification? Let us consider the case of someone who has invested £100,000 in a pension fund and is receiving that pension and their old age pension, but they live in rented accommodation and have £2,000 in their current account and no other liquid assets. How would the £18,500 disregard be calculated in that case?

Lord Hunt of Kings Heath

My assumption is that the calculation is based on the income that is received rather than a grossed up pension, which I think the noble Lord is referring to. I shall write to him if I have got that wrong.

Lord Clement-Jones

I thank the Minister for his reply. I greatly value the support of a number of noble Lords for Amendments Nos. 1 and 260, particularly those on the Cross Benches. I hope that the points made in the debate have helped to overcome the qualms of the noble Baroness, Lady Carnegy, on whether we should be debating the issue at this time of day. I hope that she will join us when we are engaged in happy debate at 2 a.m. on the definition of nursing care.

Baroness Carnegy of Lour

My objection is that any party could table such a clause at any time and include a later clause in the same grouping so that we discussed a clause out of order. If we did that all the time, we should make a tossed green salad of the Order Paper. That is my only point.

Lord Clement-Jones

I hear what the noble Baroness says, but paving amendments are well known and well established as a device for having debate at points convenient to the House.

I shall not run through the contrary arguments to the points put by some noble Lords. The noble Lord, Lord Lipsey, rehearsed a number of arguments that he has used before, including the doomsday scenario on cost and the constitutional case, which the noble Lord, Lord Beaumont, dealt with successfully. If we were never able to override the Commons on a matter of cost, there would be very few things that we could debate without being in fear and trepidation of the Treasury. The timetable for debate is largely controlled by the Government. The debate in the Commons was truncated by a new procedure in Committee. Only this House will be able to debate the issues in a proper fashion.

I do not normally accuse the noble Lord, Lord Lipsey, of polemic, but he almost suggested that the Royal Commission was not serious in its conclusions. I found the Royal Commission extremely serious in its conclusions. It determined the priorities and did an extremely effective job; but, of course, the noble Lord, Lord Lipsey, was a dissentient. I do not believe that it can be concluded from the report that Sir Stewart Sutherland thought that money grew on trees. That is a rather dismissive way of considering the report. As regards Sir Stewart's intentions in terms of his party allegiance, we shall no doubt have many happy discussions about that in the future.

The noble Baroness, Lady Ashton, made a much more serious intervention in terms of priorities, and a number of her points need to be answered. If "nursing care" is defined in the same way as the Government have defined it, there are major anomalies because healthcare assistants are not included in that definition. I believe that our proposals will help elderly people at home. They will allow them greater independence.

The Minister's point that our proposals provide no further assistance to older people is totally incorrect. I believe that the provision of free personal care, particularly in a domiciliary setting, will have a major impact on older people. The Minister said that not one extra person would be enabled to stay in his or her own home; that is not the case. We need to ground our case in the preventative value, which we believe is extremely substantial, of having free personal care available.

I accept the Minister's case on intermediate care. As my noble friend Lady Barker said, it is still insufficiently clear exactly what it constitutes or how it will be delivered. But the Government have chosen to use it as their flagship, on which they are spending £900 million. That is a priority that they have set themselves. We have decided to set ourselves an additional priority. We do not decry intermediate care and rehabilitation and everything that goes with it—it is very important—but personal care is also a high priority.

Finally, I cannot expect the Minister to conduct his research into our alternative budget, published only two weeks ago, or to read the very clear statement in it about how we would pay for personal care out of a 50 per cent tax rate on those earning over £100,000, or about the cost, which we estimate will be £750 million per year in the early stages. However, I do not believe that we should be accused of having failed to consider the cost and the tax-raising implications of personal care. We realise that it amounts to a massive commitment, not lightly undertaken. The importance of the issue is one of the reasons that we thought it right to hold this debate in prime time in this Chamber.

I do not believe that the Government's proposals create a level playing field. On the contrary, they create an extremely rutted pitch. The personal care which we envisage would level that playing field and deliver the outcome that the Minister believes his commitment to nursing care would deliver. This is a very important issue, especially for all the organisations that have contacted us over the months since the Royal Commission reported its conclusions. There is a huge sense of disappointment in the country about the Government's proposals.

Lord Morris of Manchester

My Lords, I am grateful to my noble friend Lord Hunt for his reply and for referring so warmly to the importance of the work of chiropodists and podiatrists and the other professions supplementary to medicine.

I am also grateful to my noble friend Lord Lipsey for condemning the practice of making the same speech in one debate after another. Well said. But not every participant in this debate is a serious offender. My speech today, like that of my good and longstanding friend, the noble Lord, Lord Williamson, was my first on this Bill and, like him, I have no intention of competing with the serial offenders in our midst. Naturally, I should like to discuss the Minister's response to my amendments with the Society of Chiropodists and Podiatrists, not least in fairness to my noble friend— before deciding whether to return to the fray—and thus I reserve my position with regard to the later stages of your Lordships' consideration of the Bill. Meanwhile, I beg leave to withdraw the amendment.

Amendment No. 2, as an amendment to Amendment No. 1, by leave, withdrawn.

Lord Clement-Jones

My Lords, I should like to test the opinion of the House on Amendment No. 1.

6.46 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 38; Not-Contents, 88.

Division No. 1
CONTENTS
Addington, L.	Oakeshott of Seagrove Bay, L.
Avebury, L.	Park of Monmouth, B.
Barker, B. [Teller]	Razzall, L.
Beaumont of Whitley, L. [Teller]	Redesdale, L.
Bradshaw, L.	Rennard, L
Clement-Jones, L.	Rix, L.
Dholakia, L.	Rodgers of Quarry Bank, L.
Ezra, L.	Roper, L.
Falkland, V.	Russell, E.
Goodhart, L.	Scott of Needham Market, B.
Hamwee, B.	Sharp of Guildford, B.
Harris of Greenwich, L.	Shutt of Greetland, L
Jacobs, L.	Thomas of Gresford, L.
Lester of Heme Hill, L.	Thomson of Monifieth, L.
Maddock, B.	Tope, L.
Mar and Kellie, E,	Wallace of Saltaire, L.
Methuen, L.	Walmsley, B.
Newby, L.	Watson of Richmond, L.
Northover, B.	Williams of Crosby, B.

NOT-CONTENTS
Acton, L.	Hoyle, L.
Ahmed, L.	Hughes of Woodside, L.
Amos, B.	Hunt of Kings Heath, L.
Archer of Sandwell, L.	Irvine of Lairg, L. (Lord
Ashton of Upholland, B.	Chancellor)
Bach, L.	Jay of Paddington, B. (Lord
Bassam of Brighton, L.	Privy Seal)
Berkeley, L.	Jeger, B.
Brabazon of Tara, L.	Jenkins of Putney, L.
Bragg, L.	King of West Bromwich, L.
Brennan, L.	Lea of Crondall, L.
Brooke of Alverthorpe, L.	Lipsey, L.
Brookman, L.	Macdonald of Tradeston, L.
Burlison, L.	McIntosh of Haringey, L.
Burnham, L.	[Teller]
Carter, L.[Teller]	MacKenzie of Culkein, L
Chandos, V.	Mallalieu, B.
Clarke of Hampstead, L.	Merlyn-Rees, L.
Clinton-Davis, L.	Milner of Leeds, L.
Cocks of Hartcliffe, L.	Morris of Manchester, L.
	Nicol, B.
Davies of Coity, L.	Plant of Highfield, L.
Davies of Oldham, L.	Ponsonby of Shulbrede, L.
Desai, L.	Ramsay of Cartvale, B.
Donoughue, L.	Rendell of Babergh, B.
Dubs, L.	Richard, L.
Eatwell, L.	Rogers of Riverside, L.
Elder, L.	Sainsbury of Turville, L.
Elis-Thomas, L.	Sawyer, L.
Evans of Parkside, L.	Serota, B.
Falconer of Thoroton, L.	Sewel, L.
Farrington of Ribbleton, B.	Simon, V.
Faulkner of Worcester, L.	Smith of Leigh, L.
Filkin, L.	Stewartby, L.
Gale, B.	Symons of Vernham Dean, B.
Gilbert, L.	Tomlinson, L.
Gladwin of Clee, L.	Thornton, B.
Goudie, B.	Turnberg, L.
Graham of Edmonton, L.	Walker of Doncaster, L
Grenfell, L.	Warner, L.
Harris of Haringey, L.	Whitaker, B.
Haskel, L.	Whitty, L.
Hilton of Eggardon, B.	Williams of Elvel, L.
Hollis of Heigham, B.	Williams of Mostyn, L.
Howells of St Davids, B.	Winston, L.
Howie of Troon, L.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.56 p.m.

Lord Clement-Jones moved Amendment No. 3: Before Clause 1, insert the following new clause—

"DUTY TO PREVENT DISCRIMINATION

(1) It shall be the duty of any person or body exercising functions or otherwise providing services under this Act to prevent discrimination against any class of persons receiving services under this Act, including discrimination by reason of age.

(2) It shall be the duty of any relevant authority and any other body exercising functions under this Act to publish an annual statement of the measures they have taken to prevent discrimination against any class of persons receiving services under this Act, including discrimination by reason of age."

The noble Lord said: In moving Amendment No. 3, I shall speak also to Amendment No. 4, which relates to age discrimination. Despite constant urging, this Government's failure to outlaw age discrimination during their term of office is a massive disappointment to all those involved in the care and representation of older people.

The Secretary of State was quoted in the not too dim and distant past as saying: I will not tolerate anything which smacks of age discrimination in the NHS". Yet, the fact is that this Government have not done nearly enough to prevent it. They did not agree to an investigation into age discrimination in the NHS which, pre-election, they pledged to do. The national confidential inquiry into perioptic deaths in November 1999 referred to staff shortages and lack of experience leading directly to the deaths of older people. There have been restrictions on heart bypass operations, heart transplants and cardiac rehabilitation for older people. Kidney dialysis and transplants have been refused to patients over the age of 70. There are no public health fitness targets for those over the age of 65 in Our Healthier Nation. We all know of the stories of delays in older people being seen by doctors when admitted to hospital. However, the fact is that two out of three acute beds in the NHS are occupied by people over the age of 75. Therefore, this is a major issue.

We know of the scandals that have taken place. In one case, "Not for resuscitation" was written across a patient's toes. Diamorphine has been administered without medical justification and without consultation with relatives. We have heard of cases of denial of food and drink or food supplements to patients, and the denial of hip operations for older people.

Throughout, the principle seems to have been forgotten that we all have a right to treatment based on clinical need and not age. Age Concern's report on discrimination in the NHS, Turning Your Back on Us, was published in 1999. It put the case very cogently for a duty not to discriminate within the NHS. An Age Concern survey of 1,000 patients at the end of 1999 found that health was, of course, a key concern of older people. However, its survey of GPs found that 77 per cent said that rationing on the basis of age takes place in the NHS.

The most recent report by Age Concern, Speaking Out, which was published in November last year, showed that ill treatment and discrimination against the elderly is still rife. A report published last year by the Association of Community Health Councils on accident and emergency departments demonstrates horrendous discrimination against the elderly. Elderly patients are rushed to hospital but are then sometimes left to die on trolleys. One in five of us is aged 55 or over, and 42 per cent of NHS resources is devoted to the elderly. If we do not get the matter right in relation to the elderly, we are failing horribly.

I know that the National Service Framework for Older People is due to be published shortly. But that, by itself, is not enough. We need to create a positive legal duty and a positive culture of care. It is not only a matter of resources; above all, it is a matter of respect. That should be enshrined in legislation.

We on these Benches argued on previous occasions in relation to both the Care Standards Bill and the Health Bill that there should be such a duty in legislation. This Bill presents another opportunity for the Government to accept the need for a clear duty not to discriminate. We shall press hard for that throughout the passage of the Bill. I beg to move.

Earl Howe

We are fully in accord with the spirit of the amendment, as, I believe, are the Government. I cannot express the case any more cogently than the noble Lord, Lord Clement-Jones. I look forward to the Minister's reply.

7 p.m.

Lord Harris of Haringey

I wish to speak to Amendment No. 3, which the noble Lord, Lord Clement-Jones, has introduced. I am not sure what response my noble friend the Minister will give, but there are two possibilities. My noble friend may say that it is unnecessary because it is already enshrined in guidance, or he may say that unfortunately it brings within its ambit all sorts of other things that were not intended by the noble Lord, Lord Clement-Jones.

Discrimination by reason of age is not just about being old. For example, there are a number of thresholds at which point it is assumed that certain treatments will not be available. The standard protocols on breast cancer screening make assumptions about appropriate age ranges for screening to take place. Noble Lords want to adopt the principle that an assessment is done on the basis of an individual's needs and requirements, not on the basis of the standard application of protocols.

The amendment refers to "any class of persons", and I hope that that is not so widely defined as to make it impossible for there to be protocols on treatment. It is important to have clear guidelines on the provision of treatment by the medical profession which are capable of interpretation in the light of individual needs.

While I embrace the spirit of the amendment, I hope that a way can be found to achieve its objectives rather than bringing in all sorts of other factors, which would be unhelpful.

Lord Hunt of Kings Heath

I welcome the opportunity to debate this important subject, which has been debated frequently in your Lordships' Chamber in the past two years, for reasons that are entirely understandable.

My first response to the noble Lord, Lord Clement-Jones, as my noble friend Lord Harris foreshadowed, must be that the matter is enshrined in legislation. The whole ethos of the NHS must be to ensure fair and equal treatment to all. I refer the noble Lord to Section 1 of the NHS Act 1977, which places a duty on the NHS to provide a comprehensive health service for all. That is the starting point and the framework under which the health service must operate in providing a service to all citizens in this country.

I can go further and say that the Government have consistently stated that discrimination on grounds of gender, race, religion, sexual orientation, disability or age is wholly unacceptable. I very much reject the charge made by the noble Lord, Lord Clement-Jones, that the Government have not taken action to ensure that that is carried out in practice.

The NHS Plan sets out our vision for healthcare services in this country, which must be built around the needs and preferences of individual patients, their families and carers. The NHS of the 21st century must respond to the needs of different groups in society, whatever their age, gender, ethnicity, religion, disability or sexuality. We are committed to ensuring that the NHS will treat patients as individuals and with respect for their dignity.

I shall give some examples of the action we have taken. I firmly believe that unless we have the right approach to staffing in terms of equal opportunity, we shall not be providing services to the whole population in the way in which the noble Lord, Lord Clement-Jones wishes.

The NHS Plan introduces a standard to improve working lives and makes clear that every member of staff in the NHS is entitled to work in an organisation that can prove that it is investing in improving diversity and tackling discrimination and harassment. We are tackling harassment of staff, including racial harassment.

The "positively diverse" initiative brings together a service-wide consortium of healthcare and other partners to improve access and participation for all sections of local communities in the healthcare work force. We have set targets to increase minority ethnic representation in executive posts at board level to 7 per cent by the end of March 2004.

It is extremely important to set the foundation in which to eliminate discrimination in service delivery. We are facing up to inequalities in health, and launched the Acheson inquiry into health inequalities. We published the White Paper, Our Healthier Nation, and announced new health inequalities targets. Tackling inequalities is a key issue for health action zones.

The noble Lord, Lord Clement-Jones, referred to national service frameworks, and said that they were not sufficient. I believe that such frameworks are the ideal vehicle to ensure high quality and consistent provision of services throughout the country. We know that it has been a persistent sin of the NHS to have an inconsistent and patchy service. The national service framework for older people will be the ideal vehicle to raise standards in the way in which the noble Lord, Lord Clement-Jones, has rightly suggested. The Commission for Health Improvement is designed to allow us to examine the progress of the NHS and to address issues of access to healthcare.

I am not persuaded that defining legislation is the way forward. The fundamental duty of the NHS is laid down in the 1977 Act. The issue is not about adding to that legislation, but ensuring that we implement its provisions effectively in the National Health Service. I hope that the noble Lord, Lord Clement-Jones, will understand that the arrangements that we are putting in place, the targets in the NHS Plan and the national service framework for older people, which will be published shortly, will enable the NHS to tackle the issues, which the noble Lord has rightly raised, more effectively.

With regard to clinical treatments for older people, I can tell the noble Lord that I would deplore any such arbitrary age limit to which he referred. The treatment of older people must be based on clinical assessment alone.

Baroness Barker

I can tell from the Minister's face that he thinks that I am about to ask about the national service frameworks, but I am not. I want to ask him to pick up the point made by the noble Lord, Lord Harris, about protocols for treatment having to be based on factors other than age.

Lord Hunt of Kings Heath

Whether we are talking about protocol for treatment, or the clinical policies adopted in individual hospitals, the Government have said consistently that arbitrary age limits are not supported. The issue in the end is about an individual's clinical assessment made by a doctor.

Lord Clement-Jones

I entirely recognise the Minister's sincerity and genuine belief that new legislation is not the way forward. I am delighted to have elicited from him that he regards Section 1 of the 1977 Act as being as good as the amendment that I am proposing today, although I find that a little difficult to believe. As far as I know, no one has ever sued under Section 1 of the 1977 Act. I do not believe that medical negligence lawyers are lining up behind ambulances to use that Act, but I may be entirely mistaken.

I recognise that there is a litigation-averse feeling both in the NHS and more widely in the department itself. But that should not stop us considering the most effective way of preventing discrimination in the future. Time will tell. The Minister clearly believes that a national service framework is the ideal method of improving standards. I find that a little bit tall. They are relatively new instruments and we have the Commission for Health Improvement to help enforce them.

Lord Hunt of Kings Heath

Perhaps I can intervene and explain to the noble Lord, Lord Clement-Jones, why national service frameworks offer the best vehicle for taking forward these issues.

If we look back at the history of the NHS we can see, and my office contains, many reports which have been produced and designed to improve the provision of a specific service. The problem with that is that reports are produced without any connection to implementation, particularly in relation to resources.

The whole point of national service frameworks is to come forward with realistic plans for the implementation of changes in the health service which can reasonably be expected to be implemented because of the resources available and the robust performance management system that is adopted. That is why national service frameworks represent a much more effective way of ensuring changes in services than has been the case historically in the NHS.

Lord Clement-Jones

I thank the Minister for that intervention. I am a fairly rusty lawyer and am certainly not about to give a lecture on the law of tort. But lawyers are used to having a set of standards by which they judge whether or not somebody is guilty of malpractice, negligence or maladministration. Of course the national service frameworks are an extremely good method of testing the general level of standards that should be applicable. But it is rather like the Human Rights Act. That was an extremely valuable piece of legislation. It means that there are tests and that the whole system in government and the way we treat people has been tightened up. Why should it be any different in terms of adopting a clause of this nature within the NHS? Of course there will be cost implications and administrative tightening-up that will need to be carried out.

We are clearly going to return to this subject, no doubt on this Bill and in the future. There is a difference in relation to means; I do not believe there is any difference as to ends. Time will tell whether the Minister's optimism in national service frameworks is justified. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

7. 15 p.m.

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

Earl Howe moved Amendment No. 5: Page 1, line 12, leave out "(in whatever way he thinks appropriate)

The noble Earl said: My Lords, I do not suppose that I am alone in finding Clause 1 of the Bill quite a complicated piece of drafting. At the best of times NHS finance is an extremely difficult and specialist science and I do not pretend to be an expert in it. However, I feel that, as far as possible, what happens to taxpayers' money and who receives it should be clear and transparent.

The element lacking in Clause 1 is any acknowledgement of the importance of the transparency principle and the purpose of Amendments Nos. 5,7, 9, 10 and 13 is to try to rectify that omission.

The Minister will know that, for many years, allocations to health authorities have been based broadly on resource allocation principles. At the moment we have the Advisory Committee on Resource Allocation which advises Ministers on these issues. But inevitably, as each new version or refinement of these principles is adopted, some authorities find that they are above the target or below the target. The annual allocation process therefore has to try to make adjustments to shrink the gaps in both directions.

During the 1990s, under the last government, considerable progress was made in doing just that. In 1992 the gap—that is to say, the gap measured as the distance between the authority with the highest percentage above target and the authority with the lowest percentage below target—was around 34 per cent. By 1998–99 it had fallen to around 14 per cent. However, since then the trend has been reversed. I have not been able to lay my hands on precise figures, but my understanding is that very little of the total allocations during the past two or three years have been used to redistribute money between over and under- target authorities. That process of strategic shift in resources ought to be clearly in the public domain. At the moment it is not.

Ideally, the Government should publish the allocation target and the distance from target of each body. We should also ideally be able to see what amounts have been top-sliced from the budgets, such as the amounts in the NHS performance fund. However, it would be a welcome first step if a statement was laid before Parliament which set out the principles on which allocations are made and the amounts of money being parcelled out. That is what Amendment No. 9 seeks to do.

The Government indicated that the purpose of Clause 1 is to get fair shares for GP services. I do not suggest that there is anything wrong with that aim. However, it is patently obvious that another valuable by-product of that clause—that is, valuable to the Department of Health and the Treasury—is that it enables Ministers to obtain control of non cash-limited GP spending.

For example, if a southern health authority has had historically high levels of GP services and an average level of secondary care services, then its overall level of spending will have been above average. Clause 1 will empower the Secretary of State to cut allocations to the authority in order to level down the effect of apparently high GP spending. But it is worth saying that high spending is not in itself a good indicator of over-provision. Some costs associated with Part II services will inevitably be higher in areas where property prices and wages are higher than they are in other areas.

I understand about the new unified formula referred to in the Explanatory Notes. Paragraph 23 of the notes says that this formula should not lead to the cash limiting of Part II expenditure. That is an example of economy with the truth. It is clear that, as a result of the unified formula, some cash limits will bite on the allocations that are made by health authorities to PCTs; in other words, cash limiting by the back door.

The notes say that those authorities that are over target under the new rules will receive lower funding growth than those under target. Can the Minister confirm that there will at least be no reduction in allocation, certainly in cash terms, as a result of the new powers?

Let me revert briefly to where I started; that is, to the issue of transparency. The powers conferred by Clause 1 are incredibly widely drawn. It says that the Secretary of State may take into account a health authority's Part II expenditure, in whatever way he thinks appropriate".

That is a recipe for completely subjective decision making. If one takes the wording literally, the Secretary of State could abandon all pretence of following a laid-down resource allocation formula and do exactly as he likes without disclosing why he is doing it. To take that to an extreme, although the idea is admittedly fanciful, it would not do for the powers to be used to redistribute money into, for example, favoured marginal constituencies. What statutory safeguards are there to prevent that happening? What is to stop the Secretary of State taking into account one authority's general Part II expenditure in a certain way and yet take into account another authority's Part II expenditure in a completely different way or, indeed, not at all?

It does not seem to me to be right to depart from the principle which says that money should be allocated around the health service only by means of objective and fairly applied formulae. However, to the extent that formulae sometimes need to be refined and tweaked, I believe that it is of fundamental importance that there should be maximum transparency in the way that that is done. I beg to move.

Baroness Cumberlege

My Lords, I rise to support my noble friend. This is the first time I have taken part in debate on the Bill because I was not able to attend Second Reading. I have spoken to Members of your Lordships' House who have agreed that I should take part in debate in Committee.

As I have the generosity of the House and am able to do that, I start by declaring interests. I am a non-executive director of Huntsworth plc; executive director of MJM Healthcare Solutions and a council member of the ICRF. I chair St George's Medical School council. I am a vice-president of the Royal College of Nursing, a senior associate of the King's Fund, and it is time I got a life!

I support the amendment because I like the way that the clause is related to primary care. I have spent a lifetime working in primary care and feel strongly about it. The device which is being promoted here is to try to address the long-standing problem which was identified decades ago by Dr Tudor Hart and became known as "the inverse care law". However, like my noble friend, I have problems with the clause and much of the Bill because of its lack of transparency.

As my noble friend said, increasingly we have seen resource allocation shrouded in mystery. It is almost impossible now to see who is getting what because of the top-sliced money. Recently we have seen the introduction of the performance fund. That is a misnomer. It is not so much a fund as a convenient way of withholding money from general allocation. We shall see the fund grow and grow.

It is impossible now to tell whether health authorities are receiving their fair shares or getting allocations of anorexic proportions. Added to that, the recent figures are not comprehensively on the public record. Even without the performance fund, if one takes into account health action zones, grants for inequalities, the New Opportunities Fund, and so on, it is hard to tell.

I shall be deeply boring and give a list of some of the top-sliced money: £7 billion for new capital investment; £31 million to improve hospital cleaning; £10 million for improvements to hospital food; £9 million for practical improvements in the working environment—I am not sure what that means—£250 million for information technology; £570 million for cancer; £230 million a year for chronic heart disease; £120 million of capital funding for the Treasury capital modernisation fund; £300 million in equipment for cancer, renal and heart disease; £300 million for the mental health national service framework; £140 million for professional staff to keep their skills up to date; £8 million for GPs and their staff (occupational health); £30 million for childcare arrangements; £50 million for special services to reward joint working with social services and £10 million for NHS-wide patient advocate and liaison service (PALS), a friend of ours, to which we shall come later.

I could go on. That is not even a comprehensive list. That illustrates how much money is being siphoned off and how little we are able to track it. I strongly support my noble friend's amendment in terms of transparency. He is right that ideally one would want to see the distance from target for each body made explicit. However, I recognise that that will be difficult. We should like to see the targets specified in legislation. Again, that is difficult. However, surely the least the Minister should give us tonight is transparency and agree to the amendments tabled by my noble friend.

I have given notice to the Minister that I should like to have a whole range of information about the Advisory Committee on Resource Allocation. I worked on this late at night. Looking at it in the morning, perhaps it is not so appropriate.

I should like to know who these people are; how they are appointed; the committee's terms of reference; whether it takes evidence; whether it meets in public; and how its decisions are disseminated. As regards this clause, will the committee take into account other community services such as nurse-led primary care centres? Does that come into the equation? Will it take a strategic view of the workforce, which in this case is GPs, or will it consider only financial issues?

I welcome any attempts to attract bright, young, newly-qualified doctors into general practice. I understand that, if enacted, the clause will strengthen primary care. However, can the Minister tell us whether it provides incentives for GPs to work in the wilderness areas? Will the measures in any way attract GPs, and will they address Tudor Hart's inverse care law? Will they bring in flexibility in terms of employment? I imagine that with the GP contracts that is not possible. However, will the measures enhance GPs' pay if they are part of a salaried service?

I do not believe that GPs take on general practice to seek money. I know that the Secretary of State has recently introduced incentives in terms of their pay. I believe that GPs are altruistic. They want to treat, heal and care for the sick. The ethic of most GPs is that they love their neighbour and feel that each should be done by according to his needs. That is a Christian ethic and one which many GPs carry out to the full.

However the way in which we employ such people is strange. We give them little opportunity to change their jobs. We expect a GP to arrive in a practice at the age of 28 and to spend the rest of his or her working life in that community. By the time GPs are 40, they are probably fed up. Their hopes have either been fulfilled or they recognise that such hopes are unrealistic. Are there incentives in the system being introduced to ensure that GPs are attracted to such areas, or will the system be mechanical?

The other question I want to ask the Minister reflects the comments of my noble friend. Let us suppose that a vacancy occurs in a health authority area and the health authority decide not to fill it but to use the savings to address, say, a recurring deficit in acute services. Are there safeguards in the clause to ensure that that will not happen? I want to ensure that there is such a safeguard and that transparency exists. I strongly support my noble friend.

Baroness Northover

I want to address the specific issue in Amendments Nos. 5, 7, 10 and 13 to a clause which allows the Secretary of State and, in one case, health authorities to act, in whatever way he thinks appropriate across a wide range of areas concerned with how the resources in the NHS are to be allocated.

There are many areas in the Bill where the Secretary of State apparently seeks wide powers. I gather from debates in the other place that the Government intend to introduce a formula for the use of such powers, when they have worked it out.

Like other provisions in the Bill, that formula has yet to be spelt out and we may come back to this in the next group of amendments. We should not leave this clause as it is, open to abuse. I am sure that this is very far from the Minister's mind. In the interests of transparency and accountability, Amendment No. 9 is the right approach.

7.30 p.m.

Lord Hunt of Kings Heath

My Lords, I am glad about the general welcome given to the intent behind this clause in relation to ensuring that there is a better distribution of GPs in the first instance throughout the country. I particularly welcome the penetrating questions of the noble Baroness, Lady Cumberlege, which I shall do my best to answer. She certainly showed that there is life after being a health Minister! Essentially, what we are attempting to do here is to use a formula for determining fair shares for health authority and primary care trust allocations, which brings both parts of the funding regime together. As the noble Baroness, Lady Cumberlege, suggested, this has been a big problem in the past. Even where you had the previous resource allocation funding assistance, there was a limit to what could be done, because it bore no reference to what could be spent under Part II.

Essentially, the clause allows the Secretary of State to take account of the distribution of spending on the non-cash delimited primary care services when he makes cash-limited allocations to health authorities, and then allows health authorities to take account of the distribution of spending on non-cash-limited primary care services when they make cash-limited allocations to a primary care trust.

The intention in the first instance is to develop a single-funding formula which will extend the existing unified budget formula which covers the old hospital health services budget, prescribing and general medical service infrastructure costs, to cover all GMS costs. The clause allows us to bring other Part II services, such as dentists and pharmacists, within the ambit of the formula in future.

We are starting with GMS because the relationship between population needs and the number of doctors is best understood in this area. However, as the dental strategy makes clear, we anticipate that health authorities will play a much more pro-active role in dentistry and indeed actually put their hands into their own pockets to ensure that it is given a boost. Initially we are focusing on personal dental service schemes to achieve this, but as preventative service becomes better understood on a population level we would, using this clause, have the opportunity to bring these services too into the fair shares allocation system, delivered through the single-funding formula.

Various speakers referred to the Advisory Committee on Resource Allocation, ACRA, regarding the development of the non-GMS non-cash-limited element of the new formula. It will be building on earlier work undertaken with the Medical Practices Committee, which developed a formula setting fair shares of unrestricted GP principals at health authority level. Essentially, we have asked ACRA to advise whether, and how, the formula needs modifying to operate in cash terms for the whole GMS non-cash-limited budget at both health authority and primary care trust levels.

Turning to the point made by both the noble Baroness, Lady Cumberlege, and the noble Earl, Lord Howe, the noble Earl referred to the 1997–98 range of distance from target, which was around 15 per cent. For 2001–02, the figure is 18.6 per cent but there is an explanation. While the range has increased as a result of one or two outlyers, I can confirm that more health authorities are nearer to their target. For instance, in 1997–98 93 per cent of health authorities were within plus or minus 5 per cent of their target, but by 2001–02 96 per cent will have reached that figure, being plus or minus 5 per cent. I would also say that the 2001–02 figures of the unified allocations covering HCHS prescribing and GMS cash limited are not comparable with those for 1997–98, which cover HCHS only.

It is quite difficult, but my own conclusion is that progress is being made to try to reduce the gap between the health authorities in relation to the target. The intent, when we implement the new system, is that we will arrive at a single funding formula that will set a target, or fair share, for each health authority and primary care trust, covering GMS non-cash-limited expenditure as well as a unified allocation. I want to stress that when we allocate the extra resources for unified allocations in future our change-of-pace policy will apply to these new targets. I hope I can reassure the noble Earl, Lord Howe, that this works on extra resources being made available.

Essentially, those who are spending less than their fair share on GMS non-cash-limited services can be given a larger increase for their other services, and if they are spending more than their fair share they may get a smaller increase. The intent is to do that by a process of levelling up so that no area will have its existing level of resources reduced.

Of course, this clause does not stand on its own. It is clearly linked with the abolition of the Medical Practices Committee, as set out in Clause 21. We shall debate that later, but the important point is that in a sense we have anticipated the debate we had on Second Reading, in that it is really pushing responsibility down to the health authority level to try to tackle some of the very difficult problems in relation to GP distribution.

In answer to the noble Baroness, Lady Cumberlege, of course we want health authorities, and particularly primary care trusts, to use new flexibility to attract doctors to areas or localities where primary care services are poorly developed or over-stretched. We are looking particularly at GMS local development schemes or NHS walk-in centres. Those services are funded from cash-limited money and the new formula will mean that under-doctored areas will receive a proportionately greater share of increase in the unified budget, which they can use to fund these initiatives. Also, I am sure many of your Lordships will be pleased to recognise that some of them, like NHS walk-in centres, offer the possibility of using the skills of nurses to develop services to complement those of traditional general practice.

I would also say that in relation to issues such as the procedures that health authorities will need to go through they will have to work through a process of consultation at local level, particularly where they need to declare a GP vacancy, thereby taking over the role of the Medical Practices Committee. The essential point of all this is that we are giving much more leverage and responsibility to health authorities at local level.

Turning specifically to the amendments, in answer to the transparency point, only the provisions for funding health authorities under Section 97 of the 1977 Act, the formula process or mechanism by which the Secretary of State determines the allocation of each health authority, is left to his discretion. It has always been left to the Secretary of State to decide what each health authority should receive and how that is determined, subject to the usual accountability to Parliament. The funding process is monitored by the National Audit Office, and powers must be exercised in accordance with the principles of administrative law. It cannot be exercised in a way in which no reasonable Secretary of State would exercise the power. That allows for the allocation process to evolve over time in line with policy changes. We have simply adopted the same approach in the clause.

The alternative to a general power, which is in there to put beyond any doubt that the Secretary of State has the responsibility to decide these matters, would in fact take a very much narrower power to allow the Secretary of State to introduce a scheme for taking into account an authority's non-cash-limited expenditure when determining its cash limited allocation. I believe that such an approach might limit the ability to modify our approach over time; for example, as new information or research becomes available. The whole history of resource allocation formulae in the health service over what must now be 20 years suggests that new information becomes available and one needs a flexible approach to deal with it.

The words which Amendments Nos. 5, 7, 10 and 13 seek to remove simply make it clear that it is the Secretary of State who exercises this power and that he has a wide discretion to determine precisely how the health authority's non-cash-limited expenditure is to be taken into account.

I turn to Amendment No. 9. That takes us to the transparency issue in the allocations process. I accept the principle behind the amendment. However, I believe that the current allocations process is already transparent.

We already publish details of the current allocation formula. Every year we publish details of each health authority's target, the underlying calculations, and its distance from target and allocation. I can assure noble Lords that we will continue to do this for the new arrangements proposed in the clause.

The noble Baroness, Lady Cumberlege, has been assiduous in charting all the new initiatives that we have centrally funded and one way or another handed out to the NHS. All those initiatives have been publicly announced. The tables for central budgets are included in the allocation publication. Although the list of announcements was impressive—it was certainly an impressive sum—it was nevertheless relatively small compared to the total allocation.

The effect of the amendment would be to require us to publish details of the basis of the calculation of any variation in initial allocations. At the start of each year we divide the money available for the NHS between initial allocations to health authorities and budgets held centrally. As the noble Baroness has suggested, some of these central budgets are then allocated to health authorities for a number of different programmes. It would be bureaucratic to have to publish the details of these calculations. We shall publish the Part I and Part II allocations and the targets. The pace of change policy will be in the public domain, as will ACRA's work on the formula.

We are committed to transparency. I believe that the arrangements I have set out show that that is so.

Baroness Carnegy of Lour

Before the Minister sits down, I presume a doctor might want to understand the clause. I am not as clever as a doctor. I have tried to understand it but I cannot. I was refreshed by the clear explanation of the amendments given by my noble friend Lord Howe. I could follow that. I know that the Minister is deep in the system and that he is in a government who are extremely good at inventing complicated systems. The trouble is that doctors will find either that they will have to move or be out of a job because of the amount of money that the Secretary of State allocates to their health authority. They will not know why that is.

My noble friend Lady Cumberlege asked what was being done to motivate doctors, to make them happier in their work. I do not think that finding out that these allocations have happened, as it were, completely over their heads by means of a clause which they cannot possibly understand will help most state doctors. As a simple soul who sometimes needs a doctor, I am extremely interested that there should be enough doctors in the area where I live. At the end of the day, that is what the allocation of doctors is about. Perhaps the Minister should consider whether something can be done to the clause to clarify, particularly for doctors and other people in the health service, how many doctors there are. It is a simple request, but one worth thinking about.

7.45 p.m.

Lord Hunt of Kings Heath

I accept that, when the new arrangements are put into practice, we shall have to explain them to the health service, and particularly to general practitioners. This is a sensible way to go forward. Essentially it is combining two separate funding mechanisms around one formula to enable us to have a much fairer system of financial allocation in the future.

We will continue to protect the non-cash-limited Part II budget for the general medical service. We will use the formulae to enable a shift of resources from the growth money. That will give more resources to those authorities which, under the formulae, are more distant from target. They will be able to use that to enhance primary care services. The existing system in relation to the distribution of GPs, despite the valiant efforts of the Medical Practices Committee, has not been very effective. By putting responsibility at the health authority level, we shall have a better chance of dealing with the matter.

I agree with the noble Baroness that one should provide the right incentives to GPs so that they will feel that they are being adequately supported.

Earl Howe

I am most grateful to the Minister for his full and considered response to the points made by noble Lords who spoke to the amendments. I am grateful to him for clarifying the situation with regard to the progress being made in reducing the gaps that local authorities experience against their funding targets.

I also thank him for explaining that, despite appearances, these provisions do not enable the Secretary of State to make judgments that might be considered purely subjective in exercising his discretion, and that there is a test of reasonableness which goes with that matter. The single funding formula sounds as if it will make life delightfully simpler and clearer. I may be an old cynic, but somehow I doubt it. Nothing the Minister said has dispelled my view that this amounts to cash limiting by the back door, at least that is one of the by-products of it.

The Minister did not specifically say that there would be no reductions in allocations—at least in cash terms—to any health authorities. I hope that that is the case. In theory, reading this provision (if I do so correctly), that could happen.

I was grateful for what the Minister said on the issue of transparency. I am sure that he shares the views that I expressed. But this is, by any standards, an arcane and abstruse area, certainly for the general public, also even for Parliament. I am sorry that the department cannot see a way around this matter. It should be possible to present something to Parliament in language that is clear and that we all understand. I know that the figures are available if one digs hard enough, and of course Written Questions can be tabled and so on. Nevertheless, many of us are operating in the dark and that is not as it should be.

I am still concerned about differential costs in different areas of the country and how those are to be allowed for in the allocations. How can the Secretary of State tell what is the real level of services provided for patients in a given area? What indicators and mechanisms are in place to enable him to do that? The concept of "fair shares" sounds delightfully easy, but clearly it is not. How is the Secretary of State to arrive at a judgment on fair shares when costs around the country differ as they do? For example, is there a linear correlation between the level of general Part II expenditure and, say, the number of GPs in practice? I would be interested to know the answer.

These are matters to which doubtless we shall be able to return during later stages in the Bill. I am grateful to the Minister for the light that he has been able to shed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Burlison

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before ten minutes to nine.

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

House resumed.