§ House again in Committee.
§ Clause 10 [Application to City of London]:
Lord Hunt of Kings Heath moved Amendment No. 66:
Page 8, line 41, leave out "(6)" and insert "(5)
§ On Question, amendment agreed to.
§ Clause 10, as amended, agreed to.
§ Clause 11 [Public involvement and consultation]:
Lord Clement-Jones moved Amendment No. 67:
Page 9, line 18, after "representatives" insert "including Patients' Councils, patients' and carers' organisations, ILAFs, Patients' Forums, overview and scrutiny committees and the wider community
§ The noble Lord said: I shall speak also to Amendments Nos. 69, 72 and 73. Clause 11 provides for health service bodies to involve and consult the public in the planning and development of their services. The amendments are straightforward. Amendment No. 67 is intended to clarify what is meant by "representatives" in subsection (1) so that it includes the new ILAFs, which are not specified elsewhere in the Bill, patients' forums, patients' councils, overview and scrutiny committees and the wider community. I am not a great fan of lists, but that seems reasonably short and to the point. There is currently a lack of clarity about whom the health service bodies should consult in the performance of their duties. It is not possible formally to consult everybody who may have an interest in health services, but one should have a pretty good idea of the principal players. The amendment carries out that purpose admirably.
§ The second main purpose is carried out by Amendment No. 72, which would add special health authorities, the NHS Executive—by that we mean the regional offices of the NHS Executive, which have an important planning and development function—and care trusts, which are set up by the Bill and will have an increasing importance over the years. It is important that those bodies should be included and should have consultation duties. I do not understand why they were not included originally. It may have been an oversight by the draftsman. The amendment fills a gap. It would be inappropriate for special health authorities and care trusts not to be subject to the same requirement as other health authorities to consult persons to whom their services are provided. The regional offices of the NHS Executive are responsible 1245 for many decisions that impact on service delivery. Amendment No. 72 would open up those regional offices. That is long overdue.
§ Amendment No. 73 relates to annual reporting. I note that the noble Earl, Lord Howe, has tabled a very similar amendment. This is an important issue. The bodies concerned should state publicly how they have consulted and in what form. The purpose of the first part of the amendment is to require health service bodies to explain in their annual report how they have involved and consulted patients, carers and the wider community and what they have done about what they have learned as a result. The second part of the amendment would provide for an appeals and referral procedure by which contested decisions would be scrutinised and adjudicated on. That would enable patients and local communities to express their concerns about contested decisions and have those concerns considered by the Secretary of State. I beg to move.
§ Earl Howe
I shall speak to Amendments Nos. 68, 72 and 74A. Clause 11 gives effect to one of the Government's main aims in this part of the Bill—to enable patients and the public to contribute in an appropriate fashion to the planning and decision-making of health authorities, PCTs and trusts. We fully share that aim. Patients and the public generally will be able to have their say in a reactive sense through a variety of different channels. The combination of patients' forums, patients' councils, advocacy services, ILAFs and, to an extent, overview and scrutiny committees will provide a conduit for the views of patients on the standard of services delivered locally and problems that may arise. However, equally important will be the ability of the local community to have a voice in the big decisions on issues such as the planning of new services or major changes in service provision.
The clause is not specific about who will be accorded the right of consultation and involvement in those decision-making processes. At some point in every Bill we reach what my noble friend Lord Skelmersdale has in the past described as a shopping list. Amendment No. 68 is framed as a catch-all shopping list, but its main purpose is to act as a probe. If it is a sin to try to insinuate a shopping list into a Bill, it is equally sinful to go to the other extreme and fail to give any indication of who is being referred to. There is a genuine risk that the Bill will fail to be clear about who the consultees are meant to be.
It is impossible formally to consult everyone who may have an interest in health services. At present, the statutory duty to consult is limited to consulting CHCs. However, unless the clause is fleshed out, I fear that legal challenges could be mounted by individual patients and groups who were not specifically consulted but who consider that they should have been. One can well imagine threats of legal action being directed at health bodies carrying out the consultation. CHCs have found themselves on the receiving end of complaints and solicitors' letters from community groups who believe, fairly or unfairly, that 1246 their views have not been reflected in the CHC's recommendations or responses. I shall be interested to hear how the Minister proposes to square that circle and to find out who will be included in the consultation process that the clause proposes.
As I said, the purpose of the clause is to place a duty on health authorities, PCTs and trusts to involve patients and the public in planning and decision— making. Amendment No. 72 would add to the list of health service bodies on which that duty was conferred. It would provide for special health authorities and care trusts to consult the public. It would also ensure that if proposals for changes in health services were under consideration by the NHS Executive, it, too, would be obliged to consult before reaching final decisions that may impact on service provision.
When a similar amendment was debated in another place, the Minister, Mr Denham, rejected the inclusion of special health authorities on the ground that by 2002 no special health authority would be providing services directly to patients. I ask the Minister to think again on that. The issue should not be whether services are provided directly. What matters is that the decisions of the authorities—for example, the National Institute for Clinical Excellence, which is a special health authority—can have a real and discernible impact on health service delivery.
In the case of care trusts, Mr Denham's argument stands up to even less scrutiny because it is clear that a care trust will provide services directly to patients in as full a sense as will an acute hospital trust. There may be a legal objection to that. The Minister may say that a care trust is simply an NHS trust or a PCT in a different guise. However, I am not sure whether I consider that to be a strong enough argument and I shall be interested to hear what the Minister has to say.
That brings me to the NHS Executive, to which the noble Lord, Lord Clement-Jones, referred. Again, I recognise fully that the NHS Executive does not provide services directly to patients. However, in indirect terms, its role is of course extremely important. Regional offices of the NHS Executive are responsible for a number of decisions which impact on service delivery. Those range from resource allocation to decisions about reconfiguration of health bodies and supra-regional services. Regional offices are often the place where final decisions rest. Therefore, one could argue—and I do—that any process of consultation that confines itself to the bodies which merely implement regional office decisions is a fairly worthless exercise.
Finally, one theme to have emerged from our debates on the Bill thus far is the need for transparency. With the exception of one or two notable provisions, there is precious little on the face of the Bill in the way of transparency. The purpose of Amendment No. 74A is to apply, as it were, a little more window-cleaning fluid to the procedures to which the legislation gives rise. Its simple purpose is to require health service bodies to explain in their annual 1247 report how they have involved and consulted patients. carers and the wider community. In my view, it is important not only that such consultation takes place but that everyone should be made aware that it has taken place and in what way. I hope that that idea will commend itself to the Minister.
The other amendment in this group provides for an appeal for referral procedure whereby decisions that are controversial can be scrutinised and adjudicated upon by the local OSC. In that way, patients and the local community will be able to express their concerns about contested decisions and, where necessary, have their decisions considered by the Secretary of State. A provision of this kind would mirror Regulation 18.5 of the CHC Regulations 1996 under which CHCs have the statutory right to refer contested decisions to the Secretary of State. At present, the Bill does not provide for any type of appeals or referral procedure. I believe that that is an omission which should be rectified.
§ 8.45 p.m.
§ Lord Hunt of Kings Heath
This has been an interesting debate, and I believe it is worth acknowledging that this is a very important clause. It sets out the responsibilities of the NHS in fulfilling its duties to involve and consult the public. However, I have reservations about the amendments that have been put forward.
Clearly, our intention is that comprehensive patient and public involvement will take place at all levels of the NHS. Clause 11 is explicit about that. However, I do not believe that it is necessary to list on the face of the Bill all the bodies that we would expect to be consulted, as is suggested by Amendments Nos. 67 and 68. I believe that the list is too prescriptive and it runs the risk run by all lists—by naming some, almost inevitably others are excluded.
The important point is the intent. The intent is quite clear. I believe that it would be fairly obvious to every NHS organisation that patients' councils, patients' forums, OSCs and patient and carer organisations would be critical of the delivery of the duty set out in that clause. The NHS has had extensive experience in consultative processes. We want to make that bite still further. I believe that this general duty does so effectively without the need to list a particular organisation which specifically should be consulted.
Nor do I believe that it is necessary to specify in the clause that patients' councils should monitor the implementation of Clause 11, as is suggested by Amendment No. 69. One of the duties of the patients' forum will be to prepare annual reports that will be submitted to health authorities and, indeed, to the Secretary of State. Those reports will include an assessment of how local trusts consulted and involved the public in their decisions. I believe that that will also be a powerful tool in the armoury of those who, quite understandably, wish to hold the local NHS to account in ensuring that the clause is put into effect properly.
1248 I turn to the comments made by the noble Earl, Lord Howe, in relation to special health authorities, care trusts and the NHS Executive. He seems to have anticipated my answer, which is always rather disturbing. With regard to SHAs, my right honourable friend Mr John Denham was right. We do not envisage that any of the SHAs which currently provide health services will be special health authorities by April 2002. At present, Rampton, Ashworth and Broadmoor are covered by the terms of the clause as special health authorities. However, by the time that Clause 11 comes into force, they will have been made into trusts.
The noble Earl believed that some of the remaining SHAs which provide a service to the NHS may be covered by the proposal. It is worth recalling that the current SHAs include the Prescription Pricing Authority, the National Blood Authority and NICE. Although I accept that it is important that those organisations always focus their services on the impact on the public and patients, I am not at all convinced that the mechanism that we have set out here, which essentially concerns the provision of local NHS services, is the path down which one should go in relation to such institutions as NICE or the National Blood Authority.
It is also worth making the point that, for example, the Secretary of State has required NICE to set up a 50-strong Partners Council, made up of members representing the health professions and patient and carer interests, which it consults on a regular basis. In addition, a new citizens' council will be established to advise NICE on its clinical assessments.
So far as concerns the NHS Executive, I do not agree with the points that have been put forward. It is worth stating that the NHS Executive is part of the Department of Health. Therefore, the question of scrutiny and accountability must rest on Ministers' accountability to Parliament for the performance of their responsibilities, including the performance of the NHS Executive.
I turn to the question of care trusts. Perhaps I may explain in fairly outline terms that a care trust will be either an NHS trust or a primary care trust. If, for example, a care trust was formed out of a primary care trust and services were delegated to it by the local authority, in statutory terms it would be a primary care trust. Another example might be an acute mental health trust to which the local authority delegated services. That would be a care trust, but in statutory terms it would be an NHS trust. Therefore, I am convinced that care trusts will be covered by the terms of the Bill as it now stands.
So far as concerns Amendments Nos. 74 and 74A, I am not persuaded by the arguments put forward. Our proposal for a patient prospectus will require all trusts to say how they have taken into account the views of patients.
In addition, Clause 12 refers to the reports which patients' forums will be making to trusts and health authorities. Of course, those forums will also be able to make reports to the overview and scrutiny committees 1249 and, indeed, to the Secretary of State, if they are so minded. I do not believe for one moment that patients' forums will be inhibited from making their views known to anyone in the system whom they think is relevant.
The system that we are creating has any number of safeguards to ensure that as many people as possible are involved and consulted by the NHS. We do not need to go further. The clause as it stands is a very powerful guarantee of the way in which the NHS will behave in the future.
§ Lord Clement-Jones
I thank the Minister for that response. It was admirable in the way that it dealt with all the issues raised. There is considerable food for thought in what the Minister said. I believe that he has answered the point raised in relation to care trusts.
One always has those philosophical debates about lists, prescription and so on. I should not wish to set a precedent by having the Minister accept any amendment in that respect. I shall consider what the Minister said and meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 68 to 74A not moved.]
§ Clause 11 agreed to.
Baroness Northover moved Amendment No. 75:
After Clause 11, insert the following new clause—
"LOCAL MEDIATION SCHEME
(1) The Secretary of State shall, by regulation, set up a local mediation scheme to be operated by Patients' Councils.
(2) Regulations under subsection (1) shall provide for
(3) Before making regulations under this section, the Secretary of State shall consult Community Health Councils, Patients' Councils, Patients' Forums and such bodies currently providing mediation schemes and the wider community, as the Secretary of State shall consider appropriate.
§ The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 98 and Amendment No. 98A which stands in the name of the noble Earl, Lord Howe. These amendments are designed to introduce a local mediation service operated by patients' councils. The purpose of that arrangement is to make provision for the local resolution of problems concerning the planning and delivery of local services.
§ The resolution of problems at an early stage locally would reduce the need for problems to be directed through the courts or referred to the Secretary of State. The amendment ensures that the results of such 1250 mediation are to be reported to the Commission for Health Improvement, the Commission for Mental Health and the Secretary of State so that any lessons that can be learned from that particular conflict can be picked up by those bodies and good practice disseminated elsewhere in the service.
§ This provision ensures also that there is an accountable and transparent system in place and seen to be in place. That seems to us a very sensible provision with which I hope the Minister will sympathise. I beg to move.
§ Lord Hunt of Kings Heath
I was interested in the speech of the noble Baroness. I have severe doubts about the amendment because, in a sense, she is proposing that patients' councils act as a mediator between different NHS organisations within a particular locality.
There is a fundamental problem of principle in that regard in that we see patients' councils as having a specific focus based on patients. Their role, alongside the patients' forums, is surely to represent the interests and views of patients as regards local services.
In view of that, one wonders to what extent they could then act as a neutral observer in being able to mediate between the different interests of the health service or, indeed, between the health service, local government and voluntary bodies.
It seems to me that if there is a dispute, there are two ways in which it can be dealt with. First, if it is a concern about major service changes, it must be the role of the overview and scrutiny committee of the relevant local authority to scrutinise the proposals and, if it disagrees with them, it can refer the matter to the independent reconfiguration panel which we shall establish to advise the Secretary of State. If it is not so much a question of a major service change but is in a sense a spat between different NHS bodies and organisations, it is for the NHS regional office to sort that out.
I understand what the noble Baroness seeks to achieve but I have reservations about giving patients' councils a role which in some ways may detract from their focus on patients and their interests.
§ Baroness Northover
I listened with interest to what the Minister said. It rather illustrates the problems which we are having, in the sense that on this side of the Committee we are looking for a unified approach to those matters, whereas it seems from the list which the Minister has just given that the Government are looking for a diverse and varied approach to all the different parts. That is reflected in the amendment In looking for a unified, independent and informed overview of what is happening, we are seeking to tie together the different parts, and that does not seem to be the Government's approach.
However, I shall wait with interest to see what follows on from these debates and where we can move to. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1251
§ Clause 12 [Patients' Forums]:
Earl Howe moved Amendment No. 76:
Page 9. line 40, at beginning insert "Before the commencement of section 18,
§ The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 11 and 138. I need not tell the Minister that there is a fundamental difference of view between the Government and ourselves on the future of community health councils. I want to raise an issue which relates to the implementation of the Government's proposal to abolish CHCs.
§ If the Government have their way, Royal Assent for the Bill will be granted some time in advance of 1st April 2002 when the new bodies proposed in the Bill become fully operational. During Standing Committee in another place, the Minister, Mr Denham, indicated that the Government would continue to fund CHCs and ACHCEW until 2002. That assurance, although welcome, leaves open the question of exactly when CHCs will be abolished. To my mind, we need to make absolutely certain that, as far as possible, there is a smooth transition between the existing regime and the new one. That can happen only if the new systems are fully operational and bedded down before CHCs cease to exist. That in turn means that the statutory powers and responsibilities of CHCs should continue in being alongside the new structures for a period of time.
There is uncertainty about the Government's intentions as a result of a letter circulated recently to CHCs by the Chief Nursing Officer, Sarah Mullally, in which she said:
CHCs will remain in each area until the new system is in place".
Taking those words literally, that could mean that different abolition dates will be set for different CHCs according to how well advanced the implementation of the new systems is in each area. On the other hand, it could mean that there will be one cut-off date for all CHCs, regardless of how firmly established or not the new arrangements may be.
§ The fact is that that uncertainty exists and it reflects quite badly on the Government. As I said before, there was a total absence of consultation on those proposals when they were announced originally. Even if I accepted, which I do not, the view expressed by Ministers that ACHCEW had no legitimate expectation of being consulted, it seems to me a matter of courtesy to keep ACHCEW informed of the timetable for the demise of the CHCs and to give some indication of how plans should be made for that.
§ The way in which ACHCEW has been treated by Ministers is highly regrettable. I hasten to add that I have received no whinging from ACHCEW in relation to this at all. That is purely my own view and, therefore, I would be grateful for reassurance from the Minister. How do the Government see the transition process working? Will they undertake to keep all parties properly informed of the timetable? Above all, will they ensure that as far as possible the transition to the new regime will be a seamless one?1252
§ It would also be helpful to have clarification on what will happen to the employees of CHCs. Will they be offered the opportunity of applying for positions in, say, patients' councils and, if so, will their terms and conditions of employment be protected? Can the Minister tell the Committee what will happen to the records maintained by CHCs? The records represent a valuable resource, but issues of confidentiality will need to be considered. It would be helpful if the Minister could provide clarification on those concerns. I beg to move.
§ 9 p.m.
§ Lord Rea
Amendment No. 138, in this group, stands in my name. I can do no worse than remind my noble friend of a paragraph in my Second Reading speech to which he did not have time to reply. I expressed more or less the same sentiments as those produced by the noble Earl, Lord Howe, although perhaps not in as elegant a fashion. I said:Can we be assured that the new organisations will be up and running before the community health councils are abolished? If, as I hope, many of the community health councils' paid and voluntary staff are transferred to one or other of the new bodies, can they continue to function under the aegis of the CHCs while the new arrangements are being brought into being? How are the phasing out and phasing in to be managed so that the experience of the CHCs' staff and volunteers is not lost?".—[Official Report, 26/2/01, col. 1022].)There is already much disquiet among CHC and ACHCEW staff about the future and I believe that some of them have already taken other jobs. Perhaps my noble friend can tell the Committee what the Government's thinking is on this matter.
§ Lord Clement-Jones
I support what has been said by the noble Earl, Lord Howe, and the noble Lord, Lord Rea. Clearly, we need to inject some certainty into the situation. It would be grossly unsatisfactory if any gap were allowed to develop between the passing of the Bill and the appointed day for the relevant clauses, and indeed the setting up not only of scrutiny committees but also of patients' forums and patients' councils. I hope that the Minister can accept the amendments or dispel any uncertainty about the way in which the transition will take place, so that those who are employed and those who have a considerable interest in the effective development of patient representation at heart will be able to understand what the future holds.
§ The Earl of Listowel
On the continuity between the two services, can the Minister make an apology to the 5,000 volunteers of the community health councils for the handling of the CHCs and a statement to the effect that the new arrangements, if they are to be up and running quickly and effectively, will greatly benefit from the experience that the volunteers in the previous organisation have to offer? That would be most welcome.
§ Lord Hunt of Kings Heath
I hope that I can reassure noble Lords that I accept the point that we should have no intention of abolishing CHCs before the new 1253 arrangements are up and running. We intend there to be a well-managed transition between the existing system and the new system. The NHS has experience of restructuring so we understand how the process operates. We would seek to ensure that good, administered principles operate in relation to the phasing out of CHCs and the introduction of the new arrangements. Our intention is that the bulk of the new arrangements will have to be up and running before the existing arrangements are taken out of play.
The Secretary of State has a commitment to provide alternative services to those of CHCs before they are abolished. CHCs in an area will not be abolished until all the following arrangements are established: the OSCs, the patients' forums and patients' councils, which we intend should be established from April 2002. We want to ensure that PALS are established in every trust and primary care trust by April 2002. We also intend that the transition should be handled effectively so that there is no gap in relation to support for patients who need it from CHCs as of now and in the future from the new arrangements.
The noble Earl, Lord Howe, raised the matter of records. We shall need to consider carefully what should happen to those records. Clearly, it is important that the valuable work that has been undertaken should be passed on to successor organisations. We shall also have to reflect on how to deal with the paperwork in relation to individual members of the public who have raised issues with the CHC and which the CHC is pursuing so that such matters can be handed over in an orderly fashion. Support given now by CHCs would be given in the future through the new arrangements one way or another.
In relation to the members of the CHCs, I pay tribute to their voluntary and dedicated work. From personal experience I know how hard CHC members have worked over the years. I am anxious that we should be able to use that commitment and talent in the future. I have no doubt that when it comes to the appointment of patients' forums we shall look closely at the contribution that CHC members may have to make. It is also worth making the point that many of our current non-executive directors on the boards of health authorities and trusts have undertaken service with CHCs, which has proved to be valuable.
Employees of CHCs will be dealt with in a similar way to NHS staff who are the subject of a reorganisation or restructuring. However, I believe that the bulk of CHC staff will find that there are greatly increased opportunities for their expertise in the new arrangements. One has only to think of the possibilities in relation to PALS, to the secretariat which will support the patient forums and patient councils, to the establishment of independent advocacy services and to the servicing role of the local authorities' overview and scrutiny committees in order to recognise that there will be many opportunities for the highly skilled staff of CHCs. They will also find that there is a more effective career pattern for them. In the past, on becoming a chief officer of a CHC one reached a glass ceiling unless one moved into a 1254 different part of the NHS. The new arrangements will bring many more opportunities to move into different jobs in the area of patient and user involvement. Some Members of the Committee will be aware that a trust in Southampton has already advertised for the chief of its PALS at a salary of around £40,000, which is considerably more than chief officers earn.
§ Baroness Cumberlege
Will the Minister reply to the question asked by the noble Earl, Lord Listowel? There are many bruised people who feel they have been treated most shabbily.
§ Lord Hunt of Kings Heath
I paid tribute to the work of CHC members. However, the Government have decided that CHCs should be replaced by the new arrangements. I do not believe that in reaching that decision and making these proposals we are causing offence to the current members of CHCs. I believe that we shall use many of their skills in future. Equally, government have the right to make such decisions.
§ Baroness Cumberlege
I accept that. However, it is a tradition within the health service that on the whole one consults with people before one goes forward with a scheme. Problems have been caused because, although the proposal appeared in the NHS Plan, there had been no consultation as there had been with other measures. The element of surprise hurt people, so perhaps the matter could have been dealt with a little more graciously.
§ Earl Howe
In supporting the comments made by my noble friend Lady Cumberlege, perhaps I may add another dimension. CHCs and ACHCEW are still in being and they need to know what is happening. I am conscious that they feel that they do not know what is happening and it would be advisable for the department to institute a little more regular communication so that they know how to plan for the exit.
Nevertheless, I am grateful to the Minister for his comments, which were largely reassuring. They filled in a number of important gaps. The fear expressed to me was that CHCs might be left nominally in being but with none of their statutory powers. That would be a waste of time for all concerned and, more to the point, detrimental to the public interest.
I shall read carefully what the Minister said but I believe that it largely dispelled the doubts. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 77 not moved.]
Earl Howe moved Amendment No. 78:
Page 10, line 6, after "carers" insert "and such other organisations as the Secretary of State considers appropriate
§ The noble Earl said: In moving Amendment No. 78, I shall speak also to Amendments Nos. 79 and 83. They are designed to replicate one element of the status quo with regard to community health councils; that is, their duty to represent not only patients but also the 1255 wider community. I believe that patients' forums should be required to canvas the views not only of patients and their carers, although those groups must be a prime focus, but also potential patients; in other words, the community generally.
§ It is a matter not only of breadth of vision but of balance. The perspective of patients and carers is vital, but it is inevitably confined to a subjective viewpoint. Others who are not so closely bound up with local health services but who could be have an equal claim to be heard. I hope that if nothing else the Minister will recognise that there is an important point of principle at issue; that is, whether the remit and purview of patients' forums should be relatively narrow or a broad one like that of the CHCs. I beg to move.
§ The Earl of Listowel
I raised this point earlier. I remind the Committee of the past work of the Community Health Council for the City, East London and Hackney with groups dealing with the homeless, sufferers of sickle cell disease and members of ethnic minorities who have difficulties with English. That work is perhaps not concerned with particular complaints but the requirement for special services which the CHC has helped to obtain.
§ Baroness Barker
I add my support to the noble Earl, Lord Howe. I listened with interest to the Minister's words about CHCs a few moments ago. From conversations that I have had, perhaps the greatest blow suffered by people in CHCs is the devaluing of their strategic work on health, which is extremely important to the remainder of the Government's plans to make sure that health and social services become integrated. This is a forum in which one is not just talking about patients. Therefore, I echo the comments of the noble Earl about community involvement, which is very important.
§ 9.15 p.m.
§ Lord Hunt of Kings Heath
Surely the point here is that much of the wider community role passes to the local authority in terms of the overview and scrutiny committee. That is the whole point of the changes that we are making. In gaining a wider community perspective, what better vehicle is there than the democratically elected local authority? That is the whole point of setting up the arrangement. As the noble Baroness, Lady Cumberlege, said earlier, we are dealing with the problem of the democratic deficit which has affected the health service for so long. That does not mean that the forums will not bring to the table at trust level concern for patients and the public. I believe that that will be a very forceful vehicle to take those views right to the heart of trust board decision-making machinery.
But there must be a focus on the patients and public who are served by that trust, informed by the very membership of the patients' forum itself, which will include representatives of local voluntary and patients' organisations. That will ensure that the forum activities are informed by the wider view to which the 1256 noble Earl referred. But it is very important to focus on the prime purpose of the patients' forum, which is concerned about the activities of the trust. At the same time, we must not discount the major leadership role which the local authority will play in future in the arrangements for the NHS.
§ The Earl of Listowel
I see great value in the Minister's emphasis on focusing on the patient and his or her experience, but something is being lost. Here one has an institution with a shop front in the community that processes complaints but also can take a broader view of strategy and thinking and the needs of the community. I do not believe that that asset is being replaced by the oversight and scrutiny committee. I do not have experience of local government, but I have worked with socially excluded people. It is easy to lose touch with that experience. When one deals with people who do not speak English, or perhaps are illiterate, or have difficulty connecting with the system, they are more likely to fall between those patients who are recruited to the new forum and council and the local authority group. I should be very grateful if the Minister could reassure me on that matter.
§ Earl Howe
I am grateful to all noble Lords who have taken part in this short debate. The difference of view between us underscores what I see as one of the shortcomings of the network of structures created by the Bill; namely, its fragmentation. Overview and scrutiny committees are designed to fill a democratic deficit, which I thoroughly applaud, but their remit is not the same as that of patients' forums. I believe that the latter have their own roles to play in reflecting the views of the locality and trying to represent them on a day-to-day basis in the health service. Not to have a broader compass, as my amendments suggest they should, would be a shame. It may be that, in practice, their role will broaden out because people inevitably come to talk to you if your door is open. I am sorry not to see something more formally reflected in the wording of the Bill. But I am, as ever, grateful to the Minister for the trouble that he has taken to answer my points, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 79 to 81 not moved.]
§ The Deputy Chairman of Committees (Viscount Simon)
Before calling Amendment No. 82, I must advise Members of the Committee that, if it is agreed to, I cannot call Amendment No. 83 due to pre-emption.
Lord Rea moved Amendment No. 82:
Page 10, line 32. at end insert "and shall act independently, so far as practical, from each establishing NHS trust or Primary Care Trust as the case may be
§ The noble Lord said: This amendment is conveniently tabled at this point because we are considering in this clause the general functions of patients' forums.1257
§ One of the main worries about the new arrangements is that the independent status of the CHCs will be lost. The patients' fora will be set up in association with one NHS or primary care trust. Therefore, it already appears that they will not have the independence of the CHCs. My noble friend may differ. He may say that they will operate under a different structure and will be able to take a completely independent position. I am not so sure about that; nor are many people who are rather critical of the whole thrust of the Government's reforms. Perhaps my noble friend will clarify how far the patients' fora will be removed from their parallel trusts, and the mechanisms by which they will be seen to be independent. I beg to move.
§ Lord Hunt of Kings Heath
In response to my noble friend. I say that there will be no point in having patients' forums unless they are to be effective; and, to be effective, they need to be independent. I restate to the Committee that the intention is that patients' forums will be provided with the independence required to fulfil their functions. They will be independent from the trusts for which they have responsibility—just as independent as community health councils are from the health authorities with which they have a relationship.
Forums will be established by the Secretary of State, not by trusts. The trusts will have no power to control how a forum carries out its functions. Members of the forums will be appointed independently through the auspices of the NHS appointments commission, which comes into operation on 1st April this year. Regulations will determine the criteria under which those appointments are made. Forums will be not be based in the trust, as in the case of the patient advocacy liaison service (PALS), but will be supported by a common secretariat shared with other local forums and the patients' council to whom they appoint representatives. Funding will be determined in regulations but will be received independently of the forum's trust.
I wish to state to my noble friend that the link between forums and their trust is central to making these new arrangements work effectively. To ensure that their views are effective, forums will appoint a non-executive director to the trust board. The forum will have the opportunity to build in the patient view at an early stage of the trust decision-making process. To make sure that all are aware of the forum's activities and the trust response, a patient prospectus will be published each year, detailing what patients think of services and how the trust is addressing those issues.
The patients' forum will sign off the patient prospectus as well as publishing its own annual report. I believe that these arrangements ensure that the forum will be independent of the trust and will prove to be a robust ally of the patients and the public concerned with that trust.
§ Lord Rea
I thank my noble friend for those reassuring words. I have a certain sympathy with him 1258 in that these words will now be in Hansard; they will be read countrywide and studied in considerable depth. The Government will be held to them. With those remarks, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 83 not moved.]
§ Clause 12 agreed to.
§ 9.30 p.m.
Lord Clement-Jones moved Amendment No. 84:
After Clause 12, insert the following new clause—
"ASSOCIATION OF PATIENTS' FORUMS
(1) The Secretary of State shall establish an independent national body, known as the Association of Patients' Forums. with a duty to provide a national overview of the patient experience to the Secretary of State and National Health Service bodies, on a regional and national level.
(2) The Secretary of State shall make regulations for the purposes of subsection (1) above.
(3) Before making regulations for the purposes of subsection (1) above, the Secretary of State shall consult such bodies as represent the interests of persons likely to be affected by the regulations.
§ The noble Lord said: In moving Amendment No. 84 I shall speak also to Amendments Nos. 134A and 145. It is common ground on all sides in the Committee that ACHCEW has played an extremely valuable role over the years, not only in co-ordinating the activities of CHCs nationally and in spreading best practice, but in giving information to members of this House and the other place; for example, its snapshot surveys of accident and emergency departments. They have played a valuable role in keeping us abreast of what is happening in our hospitals.
The major gap in the Bill is the failure either to retain ACHCEW or to put another body in its place. A letter from the National Consumer Council is typical of many representations made to me and my colleagues on these Benches and no doubt to many other noble Lords. The NCC stated:
Despite the various local structures, the Bill still leaves a gaping hole, in that it omits a national body for patient and public representation".
§ One hopeful development was that the Government in another place recognised the case for a national body to bring together the various patient representation bodies, the forums and councils. The Department of Health proceeded to fund a short feasibility study to explore how such a body could work in practice. I understand that the results of the study will be produced by 31st March.
§ There is general consensus about the likely functions of such a body. First, it would bring together the evidence from the patient forums and councils about the general issues arising for patients at the local level and ensure that it is used to influence future policy developments at a national level; secondly, it would provide support training and development for the patient and public representatives; thirdly, it would ensure quality by monitoring that all the patients' councils and forums' services are delivered to agreed standards; and, fourthly, it would shape best practice on a national basis. That is an extremely important 1259 agenda for such a body. However, by the time the conclusions of that feasibility study might be published, the Bill could have finished its parliamentary journey through this House or a general election might have been declared. Therefore, it is important that we put down a marker and, if possible, come to an agreement on an amendment while the Bill is in Committee.
§ It is important that the national body should be statutory and not simply one set up through cooperation between the councils. We believe that it should be a body corporate with powers defined in the Bill. It may be that one should not be over-prescriptive, but certainly the broad outline of the powers and duties of the body should be included.
§ There are various different ways of achieving what we seek. The noble Lord, Lord Harris, will notice that we are back to an A. la carte process with a series of amendments that have different impacts and may have different fan clubs in the ways they operate. Amendment No. 84 contains a fairly broad power to enable regulations to be made, but it sketches out only the broad outline of the kinds of duties that such a national body would have. Amendment No. 134A sets out considerably more of the powers and duties of such a body. It does not go into as much detail as many would like. For instance, it does not state that the new body will be responsible, in the same way as ACHCEW is, for funding patients' councils or patients' forums or that it should be a conduit for such funding. However, it allows regulations to be made that may or may not provide for that in the future.
§ Amendment No. 145 is perhaps the most comprehensive of all the amendments. It provides not only for a national body but also for regional patients' councils. That is certainly a preference of many in the CHC movement who would like to see the creation of those forms of regional councils. It would also have a resonance with regional government to be set up in the future.
§ I hope that one of the amendments will commend itself to the Government. I suspect that Amendment No. 134A is probably most to their taste. All the amendments would allow for developments to take place in the future. We need to have a provision that gives reassurance that this body will be set up. Therefore, the word "shall" in the first line of Amendment No. 134A is extremely important; otherwise, there might be a feeling that this would be nice to have—an optional extra—but might not happen once the Bill is enacted.
§ I trust that the Minister will be able to give a fairly good indication as to exactly what is acceptable in this collection of amendments and certainly give hope that we can start planning for the future and that a national body will indeed be set up. I beg to move.
§ Lord Astor of Hever
I rise to support Amendment No. 145, which was spoken to so eloquently by the noble Lord, Lord Clement-Jones, and to support the spirit of Amendment No. 134A. If I were dining a la carte, I would definitely go for Amendment No. 145.
1260 Although my noble friend Lord Howe has put his name to Amendment No. 134A, we on these Benches feel that it is not yet perfect. Further drafting is needed in order to ensure that the views of bodies representing a wider group than just patients and carers are taken into account and also to consider how the body should be linked to advocacy service providers.
At Second Reading in the other place, the Secretary of State announced that the department would be funding work to look at the feasibility of establishing a national patients' organisation to act as an umbrella body for NHS patients. However, as the noble Lord, Lord Clement-Jones, pointed out, that study has not been completed. Can the Minister tell the Committee what is the progress to date on that initiative?
We agree with the noble Lord, Lord Clement-Jones, that the national patients' council should be put on a statutory basis to ensure its independence and protection from changing opinion within the Department of Health, otherwise it will be liable to abolition or loss of funding without parliamentary debate. The political debate that has taken place over the past few months with regard to the abolition of CHCs shows how statutory status ensures that governments have to account to both Houses of Parliament when seeking to abolish bodies that represent the public interest.
The group overseeing the scoping study passed a statement on 7th March which stated:The advisory panel agreed, after consideration of the interim findings, based on consultation with a wide range of patient bodies and detailed feedback from over 60 organisations, that a national statutory body is needed to fulfil the key functions identified".We hope, therefore, that the Government will now make a commitment on the face of the Bill that they will introduce a national body. If they do not do so, we feel that they will be riding roughshod over the wishes of the scoping study that they themselves established.
§ Lord Harris of Haringey
I rise to speak briefly in support of Amendment No. 144. Since tabling the amendment, I realise that, given the propensity of the NHS to use acronyms, this body might find itself being called "NATPUC" which is not the most appropriate name for a health service body.
It is worth noting the wide degree of consensus expressed on all sides of the Committee on the principle that some form of statutory status is needed here. So wide is that consensus that I note that the noble Lord, Lord Clement-Jones, has put his name to four different versions of the body. No doubt this develops the style that is typical of the Liberal Democrats in the run-up to elections: they are all things to all people. However, perhaps that is a cheap jibe which I shall withdraw instantly.
The importance of statutory status should not be underestimated. I know that government thinking appears to have moved on this, in that the principle of any reference on the face of the Bill was one that was rejected in another place. However, I understand that this concept may now be acceptable.
1261 I shall draw on my experience of serving as the director of the Association of Community Health Councils for almost 12 years. During that period, I gathered together a fat file of denunciations of my actions and those of the association by successive Secretaries of State, some of whom are now Members of your Lordships' House, although thankfully they are not present tonight. It is the function of consumer bodies and bodies representing the public interest in many spheres to make waves and to cause difficulties. On occasion, that goes against what Ministers wish to hear. Indeed, my file of denunciations concludes with what is probably the most vitriolic attack of all; it came from my right honourable friend Frank Dobson, who was then Secretary of State for Health. It was clear that he believed that anyone associated with the Labour Party, like myself, should not have been making the kind of comments we were issuing when a Labour Secretary of State was in office.
However, the point here is that every organisation along the lines of a CHC will, on occasion, need to be critical of government Ministers. If it is made too easy for governments of either complexion to say, "Let us abolish this organisation by removing its funding stream", then that is an extremely unsatisfactory situation. Statutory status matters a great deal and would be appropriate on the face of the Bill.
I still believe that, with one exception, my amendment is the best of the bunch. I take the point made 'by the noble Lord, Lord Clement-Jones, that it would have been better had the proposed new clause stated,The Secretary of State shall by regulations provide".rather than,may by regulations provide".There are a number of elements in my amendment which I hope, even at this late stage, the Government will consider. The first element concerns the question of whether or not the new national body should have explicit responsibility for dividing and allocating funds and resources to patients' councils around the country. My noble friend the Minister suggested earlier that the proposal was that funding would come through the regional offices of the NHS. That is the arrangement that currently applies to CHCs.
However, it is not always a happy relationship. The regional office of the NHS is there to ensure that the NHS region functions as it thinks appropriate, and there are sometimes stresses and strains between the regional office and CHCs, particularly those CHCs which are the more effective and perhaps create more waves on the issues which need to be addressed by the local health service. A system whereby the funding stream came through a body which was clearly established for the purpose of representing the patients' and users' interests at a national level would be an appropriate way to handle that issue.
Similarly, issues arise about who employs the staff—again a point referred to earlier. I think that the current arrangement—which is very complicated—whereby staff of CHCs are employed by health authorities, paid through a trust and managed by and accountable to 1262 the regional office is a very messy one. There have certainly been instances where perhaps inappropriate pressure has been applied to staff of CHCs by regional offices. There has also been ambiguity caused by the question of who is the employer and who pays the salaries. Again, arranging for staff to be managed and appointed through a national organisation would provide arm's length support for the principle of independence, which I believe is extremely important.
The final point that I consider critical is that the national body should have responsibility for quality control and performance management of patients' councils. That is something that has been lacking in the past. On occasion, regional offices have taken on that responsibility and, again, it has not always been a happy arrangement. Under such a system it would be clear that all patients' councils across the country were being performance managed by the national body.
That leads on to the question of what will be the governance arrangements for this national body. The current Association of CHCs is, of course, run by a standing committee which is elected from CHCs. That cannot be the appropriate way of doing things if the organisation is responsible for the performance management of individual CHCs and for some of the funding issues. It would be much better if the governance body contained representatives of patients' councils and various bodies around the country but also other people with an interest and belief in representing the interests of health service users and carers. By having that balance between people who are involved in patients' councils and those who are involved in representing the interests of health service users and carers through other mechanisms, you provide, if you like, a non-executive function which ensures that the performance management of local patients' councils is done in an effective and fair fashion and in a way which is not seen externally as self-serving.
The balance of membership is extremely important. and that is why I have reservations about Amendment No. 134A—which, rumour has it, is the favoured amendment today. The reason for this is that there is no reference at all within that amendment to the questions of staffing and funding. There are provisions in it which may allow staffing and funding to pass through the national patients' body, but it is not specifically prescribed.
There is nothing said in Amendment No. 134A about what are the Government's arrangements for the national patients' body. That could lead to all kinds of problems. You could end up with a national patients' body, the membership of which consisted entirely of hand-picked cronies—after an appropriate "Nolanesque" process—who would simply be there to ensure that what the Minister wanted to happen would happen in respect of patient representation. I am sure that that is not the intention of the Government. But it would be helpful if they made it clear that it is far removed from their intentions. It would be helpful to make clear on the face of the Bill the arrangements for the governance of the organisation, how it will be run and how it will relate to patients' councils.
1263 A further point which is omitted from the proposed new clause in Amendment No. 134A is any reference to the new body's relationship with independent advocacy services. That is not a problem if the view that I expressed earlier prevails; namely, that patients' councils are responsible for organising or making sure that arrangements are made for independent advocacy services in their area. If that is the case, it does not matter that no reference is made to independent advocacy services in respect of the national patients' body.
However, if the view expressed by my noble friend the Minister prevails—namely, that there will not necessarily be any prescribed form for the provision of independent advocacy services—it is important that there is a clear linkage between the independent advocacy services and the national patients' body, however that body is constructed.
I hope that we shall receive a clear signal from my noble friend the Minister that the principle of statutory provision for a national patients' body is accepted but that the specific reservations expressed in relation to Amendment No. 134A have also been taken on board by the Government.
§ 9.45 p.m.
§ Lord Hunt of Kings Heath
This has been an extremely interesting debate. I was particularly interested in my noble friend's fat folder of anguish expressed by Ministers at his activities and those of his organisation. I am not sure that my file is quite so fat as his; however, I recall being called in by a deputy secretary some years ago to be told that if I did not stop criticising the Government they would instruct health authorities not to pay any further subscriptions to the NHS Confederation, its predecessor organisations—a point to which I may return in relation to devolution in future discussions in Committee.
This is an important issue. The Government are sympathetic to the concept of a national body. We are backing a study by patient organisations into the feasibility of a national body to represent patient interests at national level. We have seen an early draft of the recommendations and we feel that Amendment No. 134A goes a long way to meeting the broad thrust of those recommendations. It is our intention to accept the new clause proposed in Amendment No. 134A.
In accepting the amendment, we shall be creating a new independent statutory body to advise the Government on the effectiveness of the new arrangements for patient and public involvement. What is significant in relation to a number of the questions raised regarding how the new national body will operate—particularly those raised by my noble friend—is that the new clause will place a duty on the Secretary of State to consult on all the regulations made in regard to the new national body.
I want to make it clear that the Government are committed to wide consultation on how exactly the body should operate. This will include some of the issues raised by my noble friend, including the 1264 appointment of members—we shall want to see a rigorous, high-quality membership—the funding of the body and the provision of information to it. We shall have the final benefit of the recommendations resulting from the feasibility study soon. We shall examine them closely, together with any other suggestions put to us, before framing the regulations.
It is worth discussing briefly the kind of role that the new national body might occupy—first, importantly, in providing advice to government and NHS bodies on the arrangements for patient and public involvement in the health service. No doubt it will fulfil that role by gathering information from the NHS and the public about the development of these arrangements, by obtaining the views of staff involved in the patient advocacy liaison services and of members of patients' forums and patients' councils. Once these arrangements are fully in place, the body will then be able to advise the Government on the future development of processes for involving patients and the public. The body will have a duty to advise the Government through publishing an annual report, and to report to Ministers separately on its operations and its view on the effectiveness of the arrangements in the NHS.
The body will also be able to represent to the Secretary of State the views of patients, carers, and patients' forums and councils. In doing so, it will provide the opportunity for collaboration between the different patient organisations. It is to be hoped that that will allow for the co-ordination of patients' views from different organisations. I believe that it will also lead to somewhat more cohesive arrangements than are currently in place. Most importantly, the body will be able to support and advise patients' forums and councils. I am sure that that will be enormously effective in spreading good practice and in encouraging those bodies to be as effective as possible. I can give the Committee an example of how that might work. The body might draft a code of conduct for members of patients' forums, suggest service standards for the provision of advocacy services and provide advice on how the forums should relate to the board of the NHS trust, or the primary care trust, to which it relates.
I was interested in the comments made by the noble Lord, Lord Clement-Jones, and by my noble friend Lord Harris about some of the roles of a national organisation in relation to the funding and staffing of local patients' forums and councils. It is worth pointing out that, at present, CHCs are funded by the Secretary of State via a lead health authority in each region, whereas the Association of Community Health Councils is funded by CHC subscription, and also, I guess, by some income revenue raising activities.
I turn to the question of whether or not those arrangements should be replicated. I have great reservations about pulling the funding of the forums and councils up to the centre and using this proposed national body as a way of allocating those moneys. I do so for two reasons. First, if resources were allocated from this central body, and if staff were employed by it, I suspect the people working at local 1265 level would inevitably look to the national body as a fount of wisdom and accountability to the detriment of their work at local level.
Secondly, if this national body were concerned with the allocation of resources to patients' forums and councils, I suggest that it would be sucked into enormously difficult arguments about the formula to be adopted to ensure that it reached a fair-share position. The one issue that I always avoided at the NHS Confederation was any debate about RAWP, and any other allocated process that followed. I did so because I knew that we could never win. If the new patients' body were to employ all the staff and allocate all the money, I cannot help but wonder whether it would become sucked in by such difficult details to the detriment of its over-riding power.
I can assure my noble friend that we shall listen most carefully to what he and other noble Lords have to say about the proposed new patients' body. However, I believe that Amendment No. 134A most closely fits the Bill. That is why I urge Members of the Committee to accept it.
§ Lord Harris of Haringey
I understand what my noble friend said about the complications of resource allocation. It will no doubt be an interesting exercise for whoever has to undertake that task. In the future, the Secretary of State will undoubtedly have to explain the position that has been taken, rather than just saying that it was an historical accident arising from the original allocations to CHCs back in the 1970s.
However, I am not sure that I fully understand my noble friend's arguments about staff being employed by the nation al body and the concern that they would look to the national body rather than to the local body for guidance. The corollary of that argument is that if in effect staff are employed by the Secretary of State through a health authority or regional office, they will look to the Secretary of State for guidance and direction. Surely that is even less satisfactory in terms of independent effectiveness at local level than their looking to a national body which seeks to protect the interests of patients and health service users.
§ Lord Hunt of Kings Heath
I am not sure that I agree with that. I know that my noble friend can point to some areas where there have been problems with the current arrangements where he feels that some CHC staff have not been accorded the degree of independence by the employing authority which he considers they should be accorded. However, I believe that overall the system has worked well. It has comprised an employing organisation for staff which is reasonably removed from their work locality. I consider that if we were to have a national patients' body, as is suggested in the proposed new clause, and if it were to hold all the money and to employ all the staff, it would simply become a national service. I believe that that could detract from the essential element of all this work at the local level.
§ Baroness Noakes
Will the Minister consider funding and the employment of staff as separate 1266 issues? One could free staff from any residual concerns about who the paymaster is by having the direct contractual nexus with the new national body, but by having funding dealt with separately if issues of resource allocation are deemed to be too difficult, as my past experience indicates that they may well be. I believe that we can treat those two matters as quite separate issues. There is a serious issue as regards creating sufficient independence from the rest of the NHS for staff who are allocated to these functions.
§ Lord Hunt of Kings Heath
I accept that point. However, we intend that there should be an independent secretariat which supports both patients' forums and patients' councils. But because the forums and councils will not employ bodies in their own right we have to find another vehicle to do so. Inevitably there will be debate as to whether that is entirely satisfactory. As my noble friend has pointed out, there have been some problems in that area. I believe that on balance it is better that the secretariat, which will be independent, has an employer which is situated as close as possible to the relevant locality. A national organisation with a national employer would remove many decisions away from the locality where people work.
§ Lord Clement-Jones
We have had a significant debate in the past half hour. It is significant that the Minister has accepted an important principle tonight. It is welcome that he has accepted an amendment, although I realise that many Members of the Committee consider that it needs further development. I also welcome the fact that the Minister said that there will be consultation on how the body will operate.
Although one amendment has been accepted, in a sense we are still subject to work in progress. I say to the noble Lord, Lord Harris of Haringey, that he can make as many cheap jibes as he likes when he makes the good points that he does. I believe that he made four criticisms of Amendment No. 134A which I hope that the Minister will take on board as the Bill progresses. It is possible to correct by regulation the perceived holes in the amendment. For instance, a great deal was made, I think validly, of funding, employment of staff, responsibility for quality control and the nexus with the independent advocacy service. The noble Lord, Lord Harris, raised those points, rightly I believe. Despite the fact that the Minister is somewhat sceptical about how the funding may operate, in particular as regards membership and staffing, I hope that as the consultations progress, it may be possible for the various interested parties to come to an accommodation.
I believe that Amendment No. 134A has the flexibility for appropriate regulation to be made in due course. I shall move the amendment when we reach that point. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 85 to 95 not moved.]1267
§ 10 p.m.
Baroness Northover moved Amendment No. 96:
Page 11, line 27, at end insert—
( ) The Secretary of State shall by regulations make provision for a unified health and community care complaints procedure.
( ) Before making regulations under this section the Secretary of State shall consult Community Health Councils, Patients' Councils, Patients' Forums, patients' organisations and the wider community.
§ The noble Baroness said: In moving the amendment, I speak also to Amendments Nos. 126, 129 and 133. I may earlier have inadvertently encroached on an amendment of the noble Earl, Lord Howe; I shall try not to do so again.
§ Underlying these amendments is the determination on our part that there should be a unified, effective and independent complaints procedure. That theme came out strongly at Second Reading and earlier today. Patients and the public have always deserved the best from the NHS. Today, unlike in 1948, they also expect the best. They understand if resources are limited but they do not accept that access to high quality provision depends on where they live, to whom they are referred and what arrangements have been made locally to facilitate or otherwise a good service.
§ When things go wrong, most patients are savvy enough to know when they are being fobbed off, whether the body to whom they complain has an interest in simply muzzling them, or they have a suspicion that that is so, and some will simply never find their way through the Byzantine system that awaits their complaints. It is no doubt clear that we on these Benches are not optimistic that the Bill will achieve improvements in this area. The amendment seeks to do just that.
§ Amendment No. 96 states that the Secretary of State must provide for a unified health and community care complaints procedure, given that the two arms are being brought closer together. We would like the term "unified" to run throughout the complaints procedure. It is plainly ridiculous that one patient suffering from different problems at different stages of his treatment should need to find out about, and proceed to, complaints systems in bits and pieces. As we have heard, that is looking at complaints from the service's point of view, not the patient's.
§ Amendment No. 129 seeks to include independent hospitals, clinics, medical agencies, care homes and domiciliary care under the umbrella of what we are discussing here. Across all the amendments, we are discussing a unified, independent, transparent and easy to use approach. No part of the complaints procedures should be, or be seen to be, answerable to trusts. Those procedures have to be, and have to be seen to be, independent. They must not depend on the whim of the Secretary of State. They must be seen to be robust. As litigation in medicine increases, this is the time not to weaken and fragment, but to anticipate, strengthen, unify and make more independent the complaint and advocacy procedures so that when something seems to go wrong, the cause can be quickly 1268 and easily established with the full confidence of the patient in how they are being treated in the system. I beg to move.
§ Earl Howe
I shall speak to Amendments Nos. 125, 127, 128, 130, 131, 132 and 134. When speaking to my amendments to Clause 13 on patients' councils, I explained my view that advocacy services would sit most logically as an integral function of a patients' council. That view met with some agreement around the Committee. I shall not rehearse those arguments, but I should like to raise some issues surrounding the provisions of Clause 17.
Amendment No. 125 would remove the words,to such extent as he considers necessaryfrom new Section 19A(1). There is too great an overtone of subjectivity and discretion in Clause 17 on what the Secretary of State is enjoined to do. If he were so minded, the Secretary of State could set up a minimalist advocacy service, perhaps even as an adjunct to PALS based in NHS trusts. That would not do. The clause would be strengthened by the removal of those qualifying words.
Perhaps less provocatively, I have suggested in Amendment No. 127 that the remit of advocacy services should be extended to assisting individuals who wish to make a complaint under a procedure operated by a social services authority. At the moment some CHCs support such complaints. There is often an overlap between health service and social service complaints. If we are trying to break down the barriers between the NHS and social services, it makes sense to remove those barriers to help people find their way round the system.
In the same vein, I have suggested in Amendment No. 128 that apart from complaints made to the two health service commissioners, it should be possible for advocacy services to help someone whose complaint is directed towards the local government commissioner. Again, I am uneasy about the words, "so far as practicable" in subsection (5) on page 14. Perhaps the Minister would care to comment on them. Once one accepts that advocacy services need to be independent—I welcome that provision—it ought to follow that the arrangements are established as an independent service for all. I do not understand what is meant by practicability in that context. The subsection merely requires the Secretary of State to have regard to the principle of independence. It does not seem to fetter or compromise him in any way to insist that the arrangements have to be made everywhere or that they should be made in the form of an independent service.
Following on from that, the Bill should specify that, apart from being independent of the person complained of, the advocacy service should also be separate from any NHS or other body that may be involved in the complaint or that may have an interest in its outcome. That is the purport of Amendment No. 132. Amendment No. 130 continues that theme. If the advocacy service is to be truly independent, the way in which it is resourced should match that principle. There should also be some means of ensuring that the 1269 output of any given advocacy service is of an acceptable minimum standard and that the data gathered as a result of complaints work should be made available by way of anonymised reports to inform the work of other health bodies. Once again, we ought to ensure that there is information transfer if we wish the new bodies to perform a watchdog function.
Subsection (6) deals with the consultation process that would precede the setting up of an independent advocacy service. The noble Baroness, Lady Northover, has spoken to Amendment No. 133. I agree with her that consultation should take place with all bodies and groups which may be expected to make a contribution to the debate prior to the drafting of regulations.
§ Baroness Hanham
I apologise for intervening rather late in the process of this Committee. As I do so, perhaps I may remind Members of the Committee that I am the chairman of a National Health Service trust. I rise to speak on the question of consultation, to which my noble friend has just referred. I note that all the way through the debate on the amendments reference has been made to this clause, which recommends that regulations should be consulted upon with the community health councils and patients' councils. I have absolutely no objection to that; it is perfectly proper.
However, the organisations that will be the subject of the proposals are not being mentioned. Therefore, I should like to put down a marker that presumably the National Health Service trusts, care trusts and primary care trusts will be involved in such consultation, as well as the wider community.
§ Earl Howe
I realise that I failed to speak fully to my Amendment No. 134. Perhaps I may do so quickly. It is an amendment which I drafted as a clause on its own and it concerns complaints. Its purpose is to unify the complaints procedures for health and social services. Increasingly, complaints are made about issues that involve both health and social care provision. That trend is likely to continue because health bodies and local authorities are working together more closely, as has been said throughout today's proceedings. Indeed, they are being encouraged to do so.
It would be easier for complainants if their complaints could be investigated by a single body. That would save them having to disaggregate what may often be complex components of a complaint in order to lodge them with the appropriate bodies.
§ 10.15 p.m.
§ Lord Hunt of Kings Heath
Clearly these amendments concern the arrangements for independent advocacy under Clause 17 and the complaints process for the NHS. The Bill places a new duty on the Secretary of State to arrange for independent advocacy services to be made available specifically to support people who wish to pursue a complaint against the NHS under the NHS complaints procedure. It is the first time that such a duty has been placed on the Secretary of State and I believe that it is a 1270 very welcome development. It means that patients who wish to complain will receive the support that they need both to understand the complaints process and to resolve the complaint itself. I believe that it represents a significant improvement over the current arrangements.
Having said that, I have concerns about the amendments that have been spoken to in this debate. Perhaps I may turn to Amendment No 125, which seeks to leave out,to such extent as he considers necessary".Clearly, that would take away the Secretary of State's discretion over funding the new independent advocacy service. I cannot agree to that because, finally, it is a matter which I believe must fall to the Secretary of State.
However, what is not in doubt is that the new service must be resourced appropriately to enable it to respond to the demands placed upon it. It is certainly in everyone's interests to ensure that the independent advocacy service is as effective and efficient as possible.
Amendment No. 126 relates to the question of medical practitioners. I do not agree with the aim of the amendment. Medical practitioners have access to support through their professional bodies. I believe that those bodies are particularly effective in representing the views of medical practitioners. I do not believe that it would be appropriate to make independent advocacy available to them.
Amendments Nos. 127 and 128 aim to extend the Secretary of State's duty to arrange independent advocacy services to people who wish to complain about the services provided by a local authority. I understand the reasons for that proposal but there are genuine difficulties with it. The purpose of the new independent advocacy services is to assist complainants against the NHS. We have a different statutory arrangement and framework which applies to local authority services. It would be very difficult to extend the scope of an NHS independent advocacy service in that way.
However, I accept that similar issues arise as to how to help service users take up concerns about the services that they receive. We know that there are already many examples of advocacy in social services and particularly in relation to social services for children. We debated that matter in particular in our discussions on the Children (Leaving Care) Bill. I can tell the noble Earl that, following a recent consultation exercise on social services complaints procedures, we are looking at the possibility of a statutory right of access to advocacy as part of those procedures.
Amendment No. 129 seeks to extend the provision of independent advocacy services to those making complaints against independent providers, including independent hospitals, medical agencies and care homes.
Again, I see difficulties in that. The independent advocacy service is there to support those making complaints under the NHS complaints procedure. While that will apply to independent providers who 1271 are contracted by the NHS to provide health services to NHS patients, it will not extend to services provided by independent hospitals. Those organisations should make their own arrangements as they see appropriate to provide advocacy for patients who complain about their services.
The Government intend that independent advocacy should be just that, as set out in detail in subsection (5). That subsection already requires the Secretary of State to have regard to the principle that the provision of services should be independent from the person against whom the complaint is made, or who is investigating or adjudicating on the complaint.
Independence arises from a number of different factors. Clearly, funding is one such factor. If the service were resourced by the person making the complaint, that provision would not be independent and the principle set out in the clause would have been breached. We intend to respect the independence of funding already provided in the clause, and so separate provision is not required.
We have said also, in subsection (6), that we shall consult the relevant patients' council about the arrangements for providing the independent advocacy service. That will ensure the relevant local element of independence which the amendment seeks to enforce. For that reason, it is not necessary to legislate for a monitoring and accreditation scheme.
On Amendment No. 131, it is the Government's intention that independent advocacy services should be provided by a source entirely independent of any person or body that is the subject of or involved in the complaint. We shall seek to ensure that as far as possible.
Amendment No. 132 would have no effect because a reference in an Act to a person also includes a body. That is a reference to the Interpretation Act 1978.
Amendment No. 133 demonstrates the risk associated with lists. The amendment would limit whom the Secretary of State could consult about arrangements for independent advocacy. By listing the relevant patients' councils, community health councils and national bodies involved in advocacy, it confines the persons to be consulted to those organisations. It would have the effect of narrowing the scope of the clause. Of course, we wish to have the widest possible involvement by organisations from whom we shall seek and welcome views. I should say to the noble Baroness, Lady Hanham—and she would certainly expect me to say it—that the views of trusts and health authorities will be especially welcome, as will the views of the NHS Confederation.
On Amendments Nos. 96 and 134, I return to the issue of a unified complaints procedure covering both the NHS and social services. Last year we consulted on social service complaints procedures and we intend to propose changes to them in due course. Noble Lords will probably be aware that we also funded a two-year UK-wide evaluation study of the NHS complaints procedure. Now is not the time to discuss or to legislate for a unified NHS and social services complaints 1272 procedure ahead of those particular activities, but I certainly accept that to ensure—particularly in relation to services that are to be run together—that there is an easy way for the public to make complaints about those services is a challenge to the NHS and to social services.
§ Baroness Cumberlege
I support the Minister on the matter of lists. I believe that they are a snare and a delusion, except when my husband goes to the supermarket and then they are absolutely essential!
On the matter of the independent advocacy service, the Minister said that it is a significant improvement, which I would endorse. I believe that it is a great move forward. If it works really well, it will reduce litigation towards which we should all work. However, there is some timidity in terms of the unified advocacy service. Earlier today my noble friend Lord Howe described some of the approaches of the Government to this Bill in terms of looking at the functions and then looking at the structures to support those functions. This is another part of that. If we were to put patients first we would not worry about this. We would ensure that we worked out the structures to enable the patients to use a unified service. I am afraid that we have shades of Mrs Archibald back again because we know that many patients become trapped between the social services element, the care element and the National Health Service element. Of course, later we shall go into that in relation to nursing services and care services.
In relation to Amendments Nos. 127, 128 and 134, proposed by my noble friend Lord Howe, I urge the Minister to meet with his colleagues. I know some work has taken place, but the role of government is to ensure that such structures are set up so that patients are aided in what can be a stressful, difficult time when they are often fobbed off by one agency or another.
§ Lord Hunt of Kings Heath
From what I have said I believe that the noble Baroness will understand that I am fully sympathetic to the need to ensure that there is a consistency of approach between the NHS and social services, particularly where joint services are provided. However, I cannot go any further tonight in terms of what I have said. There are some genuine difficulties in taking the independent advocacy service that we suggest for the NHS and saying that it should apply to social services. I understand that the noble Baroness is saying that we should be brave and that we should knock away the statutory barriers, but some issues would have to be confronted. Also in relation to complaints, we should see the outcome of the work that is being undertaken at the moment.
The noble Earl, Lord Howe, asked about the issue of independence as far as is practical in relation to advocacy services. That rests on the possibility that patients' councils could provide independent advocacy services. As such a council would be formed of representatives of the patients' forum, it may be argued that it has a relationship with a trust in the area from which a complaint has come. We would not want to rule that out as being insufficiently independent. In those circumstances, we would want to have some room for manoeuvre.
§ Baroness Northover
After six hours of sustained battering, perhaps the Minister might like an advocate or perhaps a CHC or two to assist his case. I was comforted by some of his comments and would welcome the movement that has been suggested. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 97 not moved.]
§ Clause 13 agreed to.
§ [Amendments Nos. 98 and 98A not moved.]
Earl Howe moved Amendment No. 99:
After Clause 13, insert the following new clause—
"EXTENSION OF OBSERVER STATUS
( ) Health Authorities shall extend observer status, with voice but no vote, to representatives of Patients' Forums, Patients' Councils and overview and scrutiny committees for its area.
§ The noble Earl said: This is a short, simple amendment. Its purpose is to give the patient involvement bodies which are to be established the right to observer status at health authority meetings. I find it odd that the Bill does not make provision for patient representation at health authority meetings. At meetings of health authorities, CHCs currently have observer status with a voice but no vote. It would therefore seem to be logical to extend that right to the new patient representative bodies. I beg to move.
§ Lord Hunt of Kings Heath
There is a simple answer. Health authorities, like trusts, are obliged to conduct their meetings in public. At present, health authorities and trusts are encouraged to extend speaking rights to CHC members. That is very much down to local arrangement. We believe that it works well in practice and believe that there is no reason to assume that the best practice will not continue in respect of members of patients' forums and patients' councils.
I do not believe that it is necessary to enshrine the procedure in legislation. I believe that health authorities will do the sensible thing and that in the spirit of decentralisation we should allow them to do that.
§ Amendment, by leave, withdrawn.
§ Clause 14 [Entry and inspection of premises]:
Earl Howe moved Amendment No. 100:
Page 11, line 29, leave out subsection (1) and insert—
(1) Authorised members of a Patients' Forum shall be permitted (subject to subsection (2) below) to enter and inspect for the purposes of any of the Patients' Forum's functions, premises owned or controlled by—
§ The noble Earl said: In moving Amendment No. 100, I shall speak also to Amendments Nos. 101 to 106. This group of amendments is designed to effect some subtle changes to Clause 14, which relates to the powers of entry granted to members of patients' forums into NHS premises. Instead of permitting the Secretary of State to make regulations with regard to rights of entry, the amendments would place that right on the face of the Bill and require the Secretary of State to make regulations governing the way in which the powers could be exercised.
§ My reason for proposing this buttressing is simple. I believe that the right of patients' forums to enter the premises of NHS trusts, PCTs and so forth is essential to the proper performance of their functions. For that reason it needs to be enshrined in primary legislation rather than relegated to a statutory instrument.
§ It is then important to ensure that the regulations pursuant to those powers are framed correctly. Perhaps the key issue, which we debated during the passage of the Care Standards Bill, is the extent to which the powers should be exercisable without prior warning.
§ Unannounced visits, as CHCs have often found, are an excellent way of uncovering a picture of how the NHS is really performing. However, it must be said that even where there is prior warning, such as happens with casualty watch, what emerges can be immensely revealing. I should be glad of the Minister's confirmation that, subject to there being no risk to the clinical effectiveness of the premises being visited, unannounced visits by patients' forums will be possible.
§ I want to raise another issue. When the matters were debated in another place, the Minister, Mr Hutton, resisted the suggestion that powers of entry into GPs' premises, as something which might appear on the face of the Bill, would pose human rights difficulties. I should like to ask the Minister why that should be when under the Care Standards Act the right of the National Care Standards Commission to enter freely any care home in the middle of the day or night did not pose any human rights problem. In any case, my amendment explicitly leaves it to regulations to determine the precise rule which would govern the powers of entry. I shall be interested to receive a rather clearer explanation from the Minister as to why this particular part of my proposal does not find favour with him or the Government's lawyers, if that is the case. I believe that the NHS should be subject to no less stringent requirements for inspection than private sector care homes. I beg to move.
§ 10.30 p.m.
§ Lord Hunt of Kings Heath
Amendments Nos. 100, 101, 103 and 104 would confer a right of access directly on authorised members of patients' forums rather than leave it to regulations. I start by assuring the Committee that the Government fully intend to make such regulations as are provided for within Clause 14. We are determined that wherever NHS patients go there should be a means by which those services may 1275 be monitored and reviewed by patients. It was made clear in the NHS plan that patients' forums should be able to visit and inspect any aspect of care provided to patients, and this clause is a vital part of the framework which enables us to meet that commitment. Health services will be placed under an obligation to allow patients' forums to visit their premises and, in the case of GPs, right of access will be made a term of service.
I believe that the issue whether these matters should be on the face of the Bill or in regulations is a clear one. The noble Earl, Lord Howe, said in his introductory remarks that we needed to ensure that we had got it right. Access arrangements are surely best left to regulations so that we can be as flexible as possible and learn from experience in relation to the issue of unannounced visits. I agree that that is something which must be allowed to happen under the new arrangements. In relation to GPs, we wish to have satisfactory agreed arrangements under which, as far as possible, such visits, unannounced as they may be, may take place. But that will have to be agreed with general practitioners.
We envisage that protocols will be produced for access arrangements which patients' forums may agree with health providers locally. Where access is denied, the forum would report that refusal to the relevant body. The regulations will set out the exact conditions and circumstances under which access will be permitted. They will include notice of a visit and a requirement to provide identification and the number of members who may participate. These matters were debated during the passage of the Care Standards Bill. The intention is not to create an adversarial system. Clearly, we want this to work in a constructive way. We must also ensure that the dignity and privacy of patients would not be overlooked in the arrangements. Hence the need for a protocol under which these visits would take place.
Amendments Nos. 105 and 106 would require the Secretary of State to make regulations requiring patients' forums to publish reports of inspections. I believe that these amendments are unnecessary. Provisions for regulations for the publication and distribution of reports by patients' forums are made in Clause 16 of the Bill. The forum has a duty to make reports and recommendations to its trusts and health authority and to make information on its activities available to the public and other organisations. In doing so, it clearly will be informed by the finding that it makes during inspections.
The response from the body inspected will be contained in the patient prospectus, which trusts will publish each year, detailing what patients think of their services and how the trusts are addressing those issues. The forum will be required to sign off the patient prospectus as well as publish its own report. Under Clause 16, the Secretary of State may already make regulations regarding patients' forums to prepare and publish reports.
I turn to Amendment No. 102, which I shall move in due course. This is a minor amendment to ensure that patients' forums have access to all family health 1276 services by extending their remit, as presently described in the Bill, to local pharmaceutical services as well. I suspect that we shall be debating local pharmaceutical services tomorrow. We want patients' forums to have the facility of scrutinising and inspecting any service used by patients. It is important that the forums should be able to scrutinise local pharmaceutical services as well as any other services. I hope that the Committee will agree to this amendment when I come to move it.
§ Earl Howe
I am grateful to the Minister for those very useful observations. I take the point about unannounced visits and the need to have flexibility through regulations, rather than tying ourselves down to the wording on the face of the Bill. Nevertheless, I am a little frustrated that we cannot find a way of doing both: guaranteeing a satisfactory assurance about the right of entry and leaving the way open for the modus operandi to be set down in regulations. However, I accept the Minister's assurances in the spirit in which they were given. I shall reflect carefully on what he has said. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 101 not moved.]
Lord Hunt of Kings Heath moved Amendment No. 102:
Page 11, line 34, at end insert ", or
(e) persons providing services under arrangements made under Schedule 8A to the 1977 Act or section 35,
§ On Question, amendment agreed to.
§ [Amendments Nos. 103 to 106 not moved.]
§ Clause 14, as amended, agreed to.
Lord Astor of Hever moved Amendment No. 107:
After Clause 14, insert the following new clause—
"INDEPENDENT LOCAL ADVISORY FORUM
The Secretary of State shall establish for each Health Authority a body to be known as an Independent Local Advisory Forum.
The noble Lord said: This amendment establishes a framework within which the Secretary of State may set up an independent local advisory forum for every health authority. On page 94, the NHS plan states:
Patients and citizens have had too little influence at every level of the NHS. As a result of this plan, each health authority area will be required to establish an independent local advisory forum, chosen from residents of the area, to provide a sounding board for determining health priorities and policies, including the health improvement programme".
§ Those independent local advisory forums are conspicuous by their absence.
At Second Reading the Minister said:
the most important barrier which the Bill seeks to address is that between patients and the health service. The radical changes in this Bill will underpin the involvement of the patient and the wider public in the NHS, will give patients real influence in the way that the NHS is run, and ensure that there is independent support available when they need it".—[Official Report, 26/2/01; col. 988.]
Independent local advisory forums were to be the conduit for this wider involvement in the NHS. They, we believed, were to be the body to represent the wider community. Why, unlike patients' councils, patients' forums, PALS and all the other bodies feeding into the health service provisions established within the statutory framework, have these forums not been included? Without a statutory framework it is not certain that they will be established. Moreover, they may be established only sporadically and may operate to varying standards and responsibilities. I beg to move.
§ Lord Clement-Jones
I rise to support the amendment of the noble Lord, Lord Astor. In the Bill we have had to get used to a whole range of new creatures—ILAFs, PALS, patients' councils and patients' forums, and the list goes on. Some are statutory and some are not. Therefore, some are susceptible to abolition at the will of the Secretary of State and others are not.
The noble Lord, Lord Harris, said earlier how awkward CHCs could and indeed should be on occasion. I am sure that the temptation to abolish one's CHC may have been fairly strong in some health authorities, if only they were able to do so. Therefore, I should very much like to hear from the Minister why the interesting distinction has been drawn between ILAFs and, for example, patients' forums and why ILAFs do not appear on the face of the Bill. Certainly Amendment No. 107 is designed to elicit that response.
§ The Earl of Listowel
Perhaps the Minister in his response will elaborate on how these ILAFs will work; what their membership will be; how they will be facilitated; and, what is their agenda?
§ Lord Hunt of Kings Heath
ILAFs are a useful mechanism far helping health authorities obtain views from citizens about strategic decisions that they have to make. The reason that ILAFs are not on the face of the Bill is simply that they do not have to be because they can be set up through guidance that we can give to the health service. Secondly, we very much want ILAFs to evolve and develop locally. We do not want to be too prescriptive about how they should develop.
1278 Their function will be to help with the HImP and strategic planning process. The intent is that they might have a core panel of patients and citizens. some representatives of the patients' forums and, perhaps, a wider group of people from the locality involved. We know that some health authorities have developed citizens' juries as a way of getting public involvement and views about the overall strategic direction of the local health service. That technique could be used by ILAFs. Many health authorities have developed well-planned techniques for involving the public. They are not called ILAFs, but we can certainly build on that. We will certainly encourage health authorities to share and develop best practice.
I can reassure the noble Lord, Lord Clement-Jones, that the Secretary of State will be issuing directions to each health authority requiring the establishment of ILAFs and ensuring that appropriate mechanisms are in place to ensure effective and meaningful public involvement. We do not believe that we need to be prescriptive about how that should happen.
§ Lord Astor of Hever
I am grateful for the Minister's response, and even more grateful for the support from the noble Lord, Lord Clement-Jones. We are disappointed that the Minister is not prepared to put ILAFs on the face of the Bill. We feel that would have ensured that all health authorities would have them. Placing responsibility for establishing them with the Secretary of State means that health authorities will not be able to decide how effective they want the voice of the local community to be in this matter. However, I shall read carefully Hansard. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Burlison
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at fourteen minutes before eleven o'clock.