Health and Social Care Bill

HL Deb 22 March 2001 vol 623 cc1539-607

3.31 p.m.

Lord Hunt of Kings Heath

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]

Clause 24 [Remuneration of general medical practitioners]:

The Deputy Chairman of Committees

In calling Amendment No. 161, I point out to the Committee that if it is agreed to I cannot call Amendment No. 162.

Earl Howe moved Amendment No. 161: Page 18, line 16, leave out from "services)," to end of line 18 and insert "in subsection (4), for the words "not, except in special circumstances," there is substituted "have regard to the quality and outcome of the services provided and shall not ordinarily"

The noble Earl said: The amendment is grouped with Amendment No. 162. The amendments are necessary to ensure that the general medical services payment system appropriately rewards quality and service outcomes. Clause 24 ends the requirement that the majority of a GP's remuneration should be linked to the number of patients on his list. At present there is a provision that ordinarily GPs will be paid for the number of patients on their list. The clause removes that provision and changes the criteria on which they are paid to the quality and outcome of the services that they provide.

It may be of help to the Committee to know that the British Medical Association's General Practitioners Committee supports the move away from the majority of GP remuneration being capitation based. That move weakens the dependency on list size. The emphasis of the amendment is on GPs being paid for their work rather than being paid a fixed monthly salary. Clearly, their workload varies with the number of patients on their list. It is appropriate that the amount that doctors are paid should continue to reflect their workload as well as the quality of the services that they deliver. I beg to move.

Lord Hunt of Kings Heath

I understand and sympathise with the thrust of the noble Earl's comments. The Committee will know from my remarks during earlier Committee days that we are working with the profession and its representatives to produce a revised national GP contract. We want to reflect the emphasis on quality and improved outcomes, which form a key feature of the locally agreed personal medical services contracts. Our aim is to secure greater convergence between the two contractual frameworks, which will build on the best of both approaches.

There is the prospect of significant progress on the way in which GPs work for the NHS. Initial discussions have begun with the BMA to scope the work. Those discussions have been constructive and there has been an encouraging start in addressing a major challenge for both parties.

Clause 24 contributes modestly to that task by removing an unnecessary statutory impediment to progress. That makes me reluctant to accept the amendments, which would impose constraints, specifically by providing that the remuneration of GMS GPs should be linked to quality and outcomes of service and should not consist wholly or mainly of a fixed salary. While that is in line with the aim in the NHS Plan to link GPs' remuneration more closely to improved quality and outcomes—I very much agree with the noble Earl on that—my worry is that using legislation would create a constraint that might be unhelpful in discussions and negotiations. We want to work with GPs and their representatives to revise the national contract. That is the best approach.

Amendment No. 161 would also require that if a fixed salary was paid, it should be referenced to the number of patients. Amendment No. 162 would ordinarily prevent wholly or mainly fixed salary payments. It is true that no GPs in the GMS are on a fixed salary and we have no plans to introduce such a category, but we do not want to rule out that possibility for all time. We are concerned about the constraints that the amendment would put in place.

I hope that the noble Earl recognises that we strongly agree with the thrust of what he said.

Earl Howe

I entirely accept the Minister's point. The BMA's attitude to the general direction in which the Government are moving is based on the belief that it is helpful to make GPs' contracts more dependent on quality by making it easier to reduce list size. That is also fairer to GPs who necessarily have a low list size, such as those in rural areas. The Minister has given a useful answer and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 162 not moved.]

Clause 24 agreed to.

Clauses 25 and 26 agreed to.

Clause 27 [Medical, dental, ophthalmic and pharmaceutical etc. lists]:

Earl Howe moved Amendment No. 163: Page 24, line 5, at end insert— (2BC) Regulations made by virtue of subsection (2BA) shall not have effect unless the Secretary of State has consulted any person appearing to him appropriate to consult as representing the profession subject to the regulation."

The noble Earl said: In moving the amendment, I shall speak also to Amendment No. 164. The amendments were suggested to me by the Royal Pharmaceutical Society. As the Committee will know, among the many responsibilities of the RPS is the maintenance of the register of pharmaceutical chemists for Great Britain. I understand that the society supports the intention of the proposals in the Bill to enhance scrutiny of the profession.

I understand from my discussions with the society that it is concerned to ensure that any lists established by health authorities are transparent and practical. It is therefore of critical importance that criteria, particularly for exclusion from such lists, should be developed in partnership with the relevant professional regulatory body or bodies.

I have been in touch recently with the RPS. It was surprised to hear that, according to health Minister Mr Denham, the list of criteria to be considered before determining unsuitability—and therefore exclusion from a list—may include such matters as the impact on the National Health Service of a practitioner's action. That sounds somewhat open-ended and unclear. That leads me to ask whether the clause sufficiently differentiates between practitioners who operate single-handed and those who practise through companies. I am sure that the Government have every intention of consulting all the professional bodies concerned, but the amendment would make such consultation obligatory. Such a safeguard seems entirely appropriate and I would be a little disappointed if the Government were inclined to resist the suggestion.

I further understand that the society is concerned that the criteria, which will be listed in the statutory instrument, may not be exhaustive, again, as the Minister, Mr Denham, said, in order to allow health authorities to apply other criteria that are relevant to each case.

By allowing local discretion, which may have some arguments in its favour, the very real possibility will arise that local variations in eligibility criteria for practitioner lists will develop; for example, a pharmacist could be eligible for employment in one health authority but not in another. I wonder whether the Government want such a situation to develop, not least because it militates against the development of clear and consistent national standards. My amendment to Clause 28 would prevent such variability, and I should be interested to hear what the Minister has to say about it.

Perhaps I may add a quick comment on the Government's statement made in Committee in another place that there will be an independent appeal process. I believe that that is absolutely essential. However, I believe that it will also be important to ensure that any such appeal system is consistent with the existing professional regulatory framework. I hope that the Minister will be able to reassure me that that is so. I beg to move.

Lord Hunt of Kings Heath

I certainly take the point that consultation with the appropriate groups would normally be expected to take place. I can assure the noble Earl that we shall consult as necessary. I do not believe that it is necessary to set that out on the face of the Bill, but I can assure him that, so far as concerns the Department of Health, consultation is the name of the game. With regard to many of the matters that we are discussing in the Bill, it is essential to implement ownership among all the people involved.

I also understand the point that the noble Earl raises in relation to variability between different health authorities. I understand why his amendment requires that the imposition of conditions by health authorities—for example, when conditionally including a practitioner in a list—must be carried out with a view to preventing local variability in criteria for inclusion in the list.

I want to make it clear that it is the responsibility of health authorities to make decisions conditionally to include a practitioner in a list. It is absolutely right that that responsibility is placed at health authority level. I can assure the noble Earl that the department will issue guidance to all health authorities in order to facilitate consistency in their decision-making. Again, I very much accept that point. The FHS Appeals Authority will also have a role in ensuring consistency of decisions between health authorities.

As with all the issues that we have discussed so far, clearly a tension exists between the aims of devolving responsibility and ensuring consistency. Both are important. Sometimes the noble Earl, Lord Howe, wishes us to decentralise; perhaps more than occasionally he wishes us to centralise. A problem arises when we become over-centralist and over-prescriptive. I hope that the Committee will consider that we probably have the balance right in relation to this matter, particularly in view of the safeguard that we shall give guidance to health authorities and in view of the fact that the FHSAA, through its judgments over the months and years, will itself clearly ensure consistency.

Earl Howe

The Minister must have his little jibe. I take the point. Nevertheless, he has given a helpful answer, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clause 28 [Conditional inclusion in medical, dental, ophthalmic and pharmaceutical lists]:

[Amendment No. 164 not moved.]

3.45 p.m.

Lord Hunt of Kings Heath moved Amendment No. 165: Page 24, line 36, at end insert— ( ) If regulations provide for a practitioner's removal from the list for breach of condition—

1. (a) the regulations may provide that he may not withdraw from the list while the Health Authority are investigating whether there are grounds for exercising their power to remove him, or after the Health Authority have decided to remove him but before they have given effect to that decision; and
2. (b) the regulations must include provision—
1. (i) requiring the practitioner to be given notice of any allegation against him,
2. (ii) giving him the opportunity of putting his case at a hearing before the Health Authority make any decision as to his removal from the list, and
3. (iii) requiring him to be given notice of the Health Authority's decision and the reasons for it and of his right of appeal under subsection (4)."

The noble Lord said: In moving Amendment No. 165, I shall speak also to Amendments Nos. 166, 184, 204 and 210. Through these amendments we are seeking to be explicit in ensuring a consistent approach across the administration of the main, supplementary and services lists maintained by the health authority.

Paragraph (a) of Amendment No. 165 relates to limiting the circumstances under which a person can withdraw from the health authority main lists while he is under investigation by that authority. That ensures that the same limitations apply to any person whose continued presence on a list is subject to the completion of a health authority investigation and the implementation of any subsequent decision, whatever the reasons for that investigation and whatever the list. Similar provisions are made in relation to the supplementary, main and services lists respectively.

At paragraph (b), the amendment sets out certain mandatory processes that must be followed by the health authority in reaching a decision to remove a person from its list for breach of a condition imposed on that person's inclusion in the list. Again, we are ensuring consistency on the face of the Bill rather than merely in regulations by spelling out the same mandatory processes that must be followed in relation to those decisions as are already prescribed for removal, suspension and conditional inclusion decisions in relation to the supplementary, main and services lists.

Amendment No. 166 is technical and ensures that the appeal provisions in new subsection 43ZA(4) are accurately cross-referenced to subsection 43ZA(1), which sets out the range of decisions available to the health authority.

Amendments Nos. 184, 204 and 210 relate to certain mandatory processes that must be followed by the health authority in reaching decisions to suspend, remove or conditionally include a person on its supplementary or services lists. Again, by spelling out the same mandatory processes that must be followed in relation to these lists as are already prescribed for the main lists at Clauses 28 and 32, we are placing a consistency of approach on the face of the Bill rather than simply in the regulations. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendment No. 166: Page 24, line 37, leave out "do so provide" and insert "provide as mentioned in subsection (1)".

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendment No. 167: Page 24, line 42, at end insert (ca) on any review of an earlier such decision of theirs,".

The noble Lord said: In moving Amendment No. 167, I shall speak also to Amendments Nos. 168 and 169. This group of government amendments concerns Clause 28. This clause further modernises the management of the primary care list system by providing a new power for health authorities conditionally to accept a practitioner on its medical, dental, ophthalmic, pharmaceutical or dispensing doctor lists. That will be in similar circumstances to those in Clause 32, which allow the health authority contingently to remove a person from a list.

This new power will apply only in fraud and efficiency cases. It does not extend to suitability cases on the basis that an individual is either suitable or unsuitable for inclusion on a health authority list.

In some circumstances, a health authority may conclude that the risk posed by a practitioner is not so great that his application to the list should be refused. The person's clinical practice may not be in question, but it would be inappropriate to allow him to practise without additional restrictions or closer monitoring by the health authority.

In such a case, a health authority will be able to impose conditions on that person to ensure that the identified risks of prejudice to the efficiency of the service or to the prevention of further fraud are eliminated. If a practitioner subsequently fails to meet such conditions, a health authority will be able to vary them, impose new ones or remove the person from the list.

The amendments are all aimed at delivering a consistent approach to the administration of the three lists. Our aim is that, so far as the different contractual positions allow, the lists should operate in a consistent manner.

Amendment No. 167 corrects an oversight in the provisions for appeals connected with conditional inclusion in the main health authority list. It introduces at new Section 43ZA(4) a right of appeal against the decision of the health authority following a review of the conditions imposed upon a practitioner.

Amendment No. 168 makes explicit on the face of the Bill that a decision to remove a practitioner for breaching a condition imposed on his inclusion in the health authority list cannot be implemented until, the practitioner having appealed against that decision, the FHSAA reaches a determination in respect of that appeal.

Amendment No. 169 deals with the sharing of information about conditional inclusion decisions. It is vital to the operation of those new list systems, and to the associated health authority powers to admit, conditionally admit, remove, contingently remove or suspend, that information on such decisions is shared. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 168 and 169: Page 25, line 2, at end insert ", and must so provide in relation to a decision referred to in subsection (4)(d)". Page 25, line 2, at end insert— ( ) Regulations under this section may provide for the disclosure by a Health Authority, to prescribed persons or persons of prescribed descriptions, of information of a prescribed description about persons whose inclusion in the lists referred to in subsection (3) is subject to conditions imposed under this section, and about the removal of such persons from such lists for breach of condition.

On Question, amendments agreed to.

Clause 28, as amended, agreed to.

Clause 29 [Dental corporations]:

Lord Hunt of Kings Heath moved Amendment No.170: Page 25, line 12, after "practitioner" insert "who".

The noble Lord said: This is a technical amendment. It simply corrects a typographical error. I beg to move.

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clause 30 [Declaration of financial interests, gifts, etc.]:

The Deputy Chairman of Committees

I point out to the Committee that, if Amendment No. 171 is agreed to, I cannot call Amendment No. 172.

Lord Hunt of Kings Heath moved Amendment No. 171: Page 25, line 43, leave out from "about" to end of line and insert—

1. "(a) financial interests;
2. (b) gifts above a prescribed value; and
3. (c) other benefits received."

The noble Lord said: It may be helpful if I speak to Amendment No. 171 and allow the noble Lord, Lord Astor of Hever, to speak to opposition Amendment No. 172. After that, I could respond to that amendment.

I begin with a few general remarks. This group of amendments concerns Clause 30. The provisions in that clause seek to apply more consistent rules across the NHS on the declaration of financial matters and in doing so will create a system in which financial benefits or potential financial benefits that are available to a practitioner are handled in an open and honest way. We are attempting to apply consistent standards of conduct right across the NHS. Such standards should apply to a hospital doctor as much to a general practitioner and to a pharmacist as much to a dentist.

The guidance that we published recently, entitled Commercial Sponsorship—Ethical Standards for the NHS, requires, among other things, that gifts and other forms of sponsorship that are valued at more than £25 should be declared. Under that provision, for example, it is clear that gifts from pharmaceutical companies must be declared. I understand that we have the support of the BMA in that regard. It said: the vast majority of GPs would be more than willing to comply with the code of conduct".

The guidance complements the existing guidance that is issued to the NHS, which is entitled, Standards of Business for NHS Staff. That document addressed in particular what can be the difficult issue of receiving gifts from patients and it makes it clear that NHS staff should decline gifts from patients unless those gifts are of low intrinsic value.

Our intention is to bring the contractor professions into the same general regime as that which applies to the rest of NHS. They will be required to declare sponsorship, such as gifts from pharmaceutical companies, and they will be required to declare ownership of a pharmacy or a nursing home. Given that fundamental drive towards a consistent but fair scheme, it is clearly inconsistent when we have a situation where a doctor in a hospital has to refuse gifts from patients or where a GP has to declare a gift from a drug representative, but if we do not address the question of GPs receiving gifts from their patients, there would be no requirement for them to declare a gift from a patient.

We recognise the powerful and special doctor-patient relationship that exists in primary care. It is a force for good but there can be misunderstandings and difficulties. There should be no problem about patients providing tokens of gratitude to a GP but we need transparent procedures to prevent that from being abused. For that reason, we concluded that it would not be appropriate to ignore, within those new procedures, the declaration of gifts from patients to general practitioners and therefore for completeness we have included such a provision in the clause.

My dilemma in speaking to Amendment No. 171 is that it is in a sense a response to opposition Amendment No. 172. Perhaps it would be best if the noble Lord, Lord Astor of Hever, spoke to Amendment No. 172 and, if it would be helpful, I could respond to his comments. I beg to move.

Lord Astor of Hever

I am grateful to the Minister for explaining the amendment. To speed things along, I shall ask him three quick questions. I also want to make it clear that we agree with his comments on transparency, as long as that system is not too bureaucratic—that is very important. What are the Government's intentions in relation to the recording procedure and the level of gift that has to be declared? Is it £125? What are their intentions in relation to the level of bequests that have to be declared? Does the Minister intend that the identity of the donor should be revealed to the health authority? If so, what steps does the Minister intend should be taken in order to seek the consent of patients before disclosure takes place? Some patients may not wish such information to be conveyed to third parties.

Lord Hunt of Kings Heath

I accept the spirit of the noble Lord's amendment. Our legal advice is that the amendment is ambiguous about whether the financial interests mentioned in Clause 30 are also, as well as being gifts, to be subject to the phrase, above a specified value". In order to give effect to the noble Lord's amendment, we have tabled four amendments—Amendments Nos. 171, 177, 179 and 180—to achieve what he intended and to extend the provision to the other three practitioner professions.

Opposition Amendment No. 176 repeats the question that was raised by the noble Lord about the figure that will be agreed. The suggestion is that it should be £140, in order to be consistent with the ministerial code. We are not going to go down that route because we believe that it is better for doctors to be treated in a manner that is consistent with that which applies to other NHS employees.

The guidance to which I referred in relation to commercial sponsorship provides that all gifts over £25 must be declared and that below that level, if gifts from a similar source aggregate to a value of more than £100 in a year, they should be declared. We are also looking at existing NHS guidance in relation to patient gifts. It is well known that in that context the figure of £25 has been mentioned in discussions with the BMA in recent months. However, the figure has not been finalised so I cannot give a definitive response to the noble Lord.

I understand the noble Lord's point on reporting and bureaucracy. We want the system to be as unbureaucratic as possible. It is not my understanding that that information would be published in the public domain, but a report would be submitted to the health authority. A balance is needed in that context. I understand that no one wants to inhibit the giving of small gifts as a token of appreciation. Equally, we have to ensure that the proper procedures are in place and that they are consistent.

I understand that the question of bequests has been raised. The Bill's provisions are currently wide enough to allow the regulations to deal with that issue. We assume that the level of bequests should be the same as that for gifts.

On Question, amendment agreed to.

[Amendments Nos. 172 and 173 not moved.]

Earl Howe moved Amendment No. 174: Page 26, line 3, at end insert "or personal medical services

The noble Earl said: This is a small, probing amendment. Proposed new subsection (5B) requires the Secretary of State to consult the profession before finalising the regulations, but it omits to mention personal medical services doctors. I do not understand that, given that the purpose of the clause is to require all doctors working in general practice to declare financial interests and gifts. My amendment merely seeks to probe that point. I beg to move.

4 p.m.

Lord Hunt of Kings Heath

The part of the 1977 Act to which the amendment relates deals specifically and only with the declaration of financial interests and gifts by general medical services practitioners. That is why clause 30 provides for General Practice Committee consultation rights with respect to declarations about financial interests and gifts. We have every intention of mirroring for personal medical services and personal dental services the regulations on financial interests and gifts, as they apply to general medical services.

A PMS implementation group has recently been established, which represents all the professions involved in PMS. The GPC has membership of this group.

Earl Howe

I am most grateful to the noble Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 175 and 176 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 177: Page 26. line 7, leave out from "about" to end of line and insert—

1. "(a) financial interests;
2. (b) gifts above a prescribed value; and
3. (c) other benefits received.

On Question, amendment agreed to.

[Amendment No. 178 not moved.]

Lord Hunt of Kings Heath moved Amendments Nos. 179 and 180: Page 26, line 15, leave out from "about" to end of line and insert—

1. "(a) financial interests;
2. (b) gifts above a prescribed value; and
3. (c) other benefits received."

Page 26, line 22, leave out from "about" to ", and" in line 23 and insert—

1. "(i) financial interests;
2. (ii) gifts above a prescribed value; and
3. (iii) other benefits received.""

On Question, amendments agreed to.

Clause 30, as amended, agreed to.

Clause 31 [Supplementary lists]:

Earl Howe moved Amendment No. 181: Page 26, line 35, after "services," insert "personal medical services,

The noble Earl said: Clause 31 seeks to make regulations for the publication of lists of professionals who can assist in the provision of various aspects of community health services. Subsection (1) lists the services concerned. This point is related to the point I made about gifts.

My amendment would clarify that "personal medical services" are either general medical services or personal medical services, as the medical skills and experience of the practitioners is the same. Patients should be assured of exactly the same protection, whatever administrative arrangement their doctor has signed up to. I beg to move.

Lord Hunt of Kings Heath

I am grateful to the noble Earl, Lord Howe. His amendment is well-intentioned, but unnecessary. We have made it clear that supplementary lists are needed to ensure that all practitioners in the family health service professions are included on lists, so that they can be properly regulated. This is important because existing health authority lists apply only to those principal practitioners approved to provide and perform their respective services—general medical services, in other words. Practitioners who assist these GP principals are therefore included in the supplementary list.

The approach in personal medical services is different. All doctors who work in PMS are regarded as PMS performers, so, consequently, one list is sufficient for all practitioners who work in and perform PMS.

In the context of other health care professionals, such as nurses, who assist in the provision of PMS, we believe that 'there are adequate mechanisms in place to regulate the performance of such persons, in addition to their own regulatory arrangements. The Secretary of State has to approve a PMS scheme and significant variations to the PMS contract. In addition, the commissioner, whether dealing with a health authority or a primary care trust, has a role in overseeing performance in the overall contract negotiation and performance management of a PMS scheme.

In the last resort, the Secretary of State has the right to terminate a PMS scheme. We intend to put in place similar approval and contractual arrangements and provisions for permanent schemes.

Earl Howe

I thank the Minister for his answer and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 182: Page 27. line 31, at end insert— ( ) Where a person employs a relevant practitioner who is included in the relevant supplementary list, that person may be confident of the suitability of the practitioner without making further enquiry. ( ) Exclusion from one Health Authority supplementary list does not automatically imply exclusion from all Health Authorities' supplementary lists. ( ) Under exceptional circumstances a practitioner may be allowed to practise whilst his application is being processed.

The noble Earl said: I shall speak to Amendment No. 182 as briefly as I can. This part of proposed new Clause 43D sets out provisions that may be included in the regulations on supplementary lists.

I shall speak to each subsection of my amendment in turn. The first is best illustrated by way of an example. Let us suppose that a GP needs to employ a locum so that he can attend court or have a holiday. At present, locums may be recommended by colleagues or perhaps found through a locum agency. It is then the practitioner's responsibility to satisfy himself that the locum is suitably registered, qualified, indemnified and experienced. If the locum is subject to a complaint while he is employed by the GP, the practitioner will he liable if the locum is found to be unsuitable.

The purpose of a supplementary list system is to ensure that practitioners assisting in general medical services are assessed as suitable to provide patient care. The responsibility of assessing and maintaining that suitability is transferred from the practitioner to the health authority. The amendment would clarify that the person employing a practitioner who is included in the supplementary list can be confident of the employee's suitability without making further inquiries. If the locum proves to be unsuitable, responsibility for mistakes would rest with the health authority.

The second paragraph of my amendment refers to supplementary lists, which are to be held and published by health authorities. Each health authority will rightly have local discretion when deciding who to include, or exclude from the list. They will doubtless share their information about applicants—indeed, that would seem to be one of the main purposes of such lists. It is easy to imagine that exclusion from one health authority's supplementary list would lead to national exclusion. The amendment would provide health authorities with discretion, in perhaps rare circumstances, to consider an applicant who may not be suitable elsewhere.

I turn now to the third part of my amendment. The supplementary list system will protect patients from unsuitable practitioners. Nevertheless, one can imagine exceptional circumstances when it may deny patients adequate care because there is no one available on the list. In some parts of the country, it is difficult to recruit healthcare staff. There are simply not enough people with the right qualifications available. The checks required to assess a practitioner's suitability must be rigorous, and they therefore take time to complete. During a major flu epidemic, for example, more practitioners may be needed to cover sickness and to cope with the extra workload. Why prevent perfectly capable practitioners from working in a time of need, simply because they are not on the relevant list? I beg to move.

Lord Hunt of Kings Heath

I am grateful to the noble Earl, Lord Howe. He has raised some practical issues, which it is important to clarify. It is accepted practice that when engaging a deputy or an assistant, the principal practitioner is responsible for ensuring that the person engaged is suitably experienced and qualified to undertake the tasks for which he is engaged. In applying to join a health authority supplementary list, a person's suitability and qualifications will be tested against a number of criteria. As the Committee would expect, those are factual issues such as the person's registration with the appropriate professional body, a criminal record check and a check on necessary qualifications. But I must stress that it is not a check on clinical performance or whether the person will be a good addition to the practice team. In the end, it will be for the principal practitioner to test those matters.

Not only is the test limited to factual issues, they are issues which are tested once on application. As a person moves between geographical locations, he may remain on the list for a number of years. So reliance on tests carried out on admission, even if they were widened to take account of clinical performance, might become unreliable.

I believe that the supplementary lists will ease some of the burdens of employment but they cannot take away all the responsibilities which rest with a practitioner engaging in the system.

We very much share the noble Earl's aim in relation to the second proposed subsection but we believe that the amendment is unnecessary. A decision by any health authority applies only to lists maintained by that health authority, whether it be a principal, supplementary or services list. Such a decision does not prevent an application to another health authority. We should expect the second health authority to consider the circumstances of the original removal in reaching its decision. But the second authority would be free to reach its own decision. So a national disqualification—that is, one which applies to all health authorities—can be applied only by the FHSAA. I believe that that meets the noble Earl's concern.

The third proposed subsection is very much a practical issue. I am sure that the noble Earl is right to say that many of those registered on a supplementary list will move from position to position across health authority boundaries—the point the noble Earl made. It would not be in anyone's interest to be unable to take up a position for which he was otherwise suitable because of some bureaucratic delay in the NHS or elsewhere. We recognise that and want to make the process as straightforward as possible. To work as an assistant in one GMS, a doctor will have to register on only one health authority list. That will qualify him to work across health authority boundaries in England. We believe that that better addresses the needs of a person who needs to move quickly to fill a position. However, it ensures that we continue to protect the public by ensuring that a person is properly registered on the supplementary list before he begins to treat patients.

We recognise also that some of the health authority checks before admitting a person to the list rely on third parties. For example, if a person declares an overseas regulatory body to the health authority but through no fault of that individual, the health authority has difficulty in obtaining confirmation, we shall seek to provide provisions which allow the person to be placed on the list while the confirmation is being actively sought. The individual would, however, still need to be on a supplementary list to provide family health services and we intend that the regulations will provide for that.

4.15 p.m.

Earl Howe

I am grateful to the Minister for that helpful reply, particularly as regards the second and third parts of my amendment. His answer on the first part took me rather by surprise. What he said was extremely interesting and certainly expanded my understanding of what is intended here. I shall read very carefully what he said and perhaps return to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath moved Amendment No. 183: Page 27, line 40, at end insert— ( ) The imposition of such conditions must be with a view to—

1. (a) preventing any prejudice to the efficiency of the services to which the supplementary list relates; or
2. (b) preventing any acts or omissions of the type described in section 49F(3)(a) below."

The noble Lord said: This is another set of amendments which concerns consistency in the administration by health authorities of their main, supplementary and service lists. It should mean that health authorities will have a robust system in relation to conditional inclusion to protect the interests of patients and of the NHS.

It is important that each health authority administers each of its lists in a similar way to ensure that there are no loopholes. In that way, patients will be assured that their interests are being safeguarded. Clause 28 provides for conditional inclusion in the main lists. This clause also contains express provisions at subsection 43ZA(2) limiting the circumstances in which those provisions can be used to considerations, as I said in an earlier debate, which involve fraud or matters which are prejudicial to the efficiency of the service.

Amendment Nos. 183, 203 and 209 make the same express provision in relation to the supplementary and service lists. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendment No. 184: Page 27, line 43, at end insert— ( ) If the regulations provide under subsection (3)(e) or (4) that a Health Authority may suspend or remove a person from a supplementary list, they must include provision—

1. (a) requiring him to be given notice of any allegation against him;
2. (b) giving him the opportunity of putting his case at a hearing before the Health Authority make any decision as to his suspension or removal: and
1553
3. (c) requiring him to be given notice of the Health Authority's decision and the reasons for it and of any right of appeal under subsection (6) or (7)."

On Question, amendment agreed to.

Earl Howe moved Amendment No. 185: Page 28, line 28, at end insert— (10) Before making regulations under this section, the Secretary of State must consult such bodies as he may recognise as representing persons who, in his opinion, are likely to be included in supplementary lists."

The noble Earl said: Clause 31 seeks to make regulations for the publication of lists of professionals who can assist in the provision of community health services.

While the clause details the regulations for supplementary lists, it makes no specific mention of which professionals are to be included. Perhaps I may raise one specific example which is that of practice nurses. It is now universally accepted that we do not have enough GPs in the country to satisfy the demands of the NHS Plan, a deficit made more apparent by the publication of the national service framework for coronary heart disease.

A sensible solution would be for doctors to delegate responsibility for chronic disease management to practice nurses through a protocol. To my mind, that is a perfect example of, assisting in the provision of general medical services".

Unfortunately, there is no accepted definition of a practice nurse nor is there a recognised qualification, although that has never prevented a large number of excellent nurses from working efficiently in general practice. The post of nurse practitioner is often quoted but there, too, there is no definition.

In this particular example, if the Secretary of State consulted the Royal College of Nursing, then he could save the health authorities considerable time and, dare I say, raise still further his stature in community services by helping to clarify exactly what is meant by practice nursing and who should be qualified to undertake it. I beg to move.

Lord Hunt of Kings Heath

I am happy to pay tribute to the role of practice nurses. It has been very pleasing to see how their professionalism has developed. Perhaps the noble Earl will clarify for me that his amendment deals with whether nurses can be placed on these lists.

Earl Howe

That was by way of an example. The purpose of the amendment is to require the Secretary of State to consult the relevant professional representative body, the problem being that the clause makes no specific mention of which professionals will be included. I was really probing the Government as to whether, for example, practice nurses might be included in the regulations.

Lord Hunt of Kings Heath

I am grateful to the noble Earl. The position is that practice nurses do come within the ambit of this clause but at the moment, we have no proposals to list nurses or nurse practitioners.

As regards the specific issue of consultation, the noble Earl will know that I am very reluctant to be drawn to lists or to be too specific. But I assure the noble Earl that we should be committed to very detailed consultation with the appropriate bodies. I have made that clear throughout the passage of the Bill.

Earl Howe

I am grateful for that explanation and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31, as amended, agreed to.

Clause 32 [Suspension and disqualification of practitioners]:

Earl Howe moved Amendment No. 186: Page 28, line 45, at end insert— ( ) a supplementary list, or ( ) a services list,

The noble Earl said: The clause seeking to establish supplementary lists and the clause seeking to establish services lists make specific mention of disqualification but states that those grounds may not be necessarily those stated under the clause. I do not understand why not. If new regulations for suspension and disqualification of practitioners are required, surely patients deserve the protection of all practitioners being treated equally. The practitioners, too, deserve that clarity. The amendment adds to the list those practitioners named on lists created under the Bill. In doing so, it seeks to ensure that all practitioners working in the community are subject to the same disqualification conditions. I beg to move.

Lord Hunt of Kings Heath

I hope that I can reassure the noble Earl. The problem arises because we are seeking to amend the 1977 Act and on occasion the different lists appear to be treated in a different way. The words in parenthesis "but need not" are only included in the subsection in a technical capacity to amplify the word "may" which precedes them. The words are necessary to emphasise the fact that it may not be possible to duplicate exactly for supplementary and services lists every aspect of the removal and suspension regime that applies to main contractors under Clause 32. That is due to the fact that there are different contractual arrangements inherent in the various lists and that certain parts are not applicable. For example, Section 49H will not apply to persons on the supplementary list who will all be individuals.

As the Bill already makes provision for the removal and suspension regime in Clause 32 to apply to doctors on supplementary and services lists, I hope that the noble Earl will feel that the position is covered.

Earl Howe

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 187: Page 29, line 19, at end insert— ( ) In sections 29B, 36, 39, 42 and 43 the expression "grounds of unsuitability" means, in relation to each such person, grounds as would enable the Health Authority, or on appeal the FHSAA, to be satisfied that it is necessary for the protection of members of the public, is otherwise in the public interest, or is in the interest of such person, that such person is unsuitable for inclusion in the respective list, and elsewhere in this Act the word "unsuitability" shall be construed accordingly.

The noble Earl said: During the Commons Committee stage on 25th January, the Minister, Mr Denham, undertook to introduce an amendment on Report setting out the circumstances in which a health authority may suspend a practitioner. An amendment to Clause 33 was introduced. However, I thought that it was the aim of the Government to define the term "unsuitability" on the face of the Bill. They do not appear to have done so.

The wording of the amendment reflects that in new Section 41A of the Medical Act 1983, which governs the work of the GMC's Interim Orders Committee: for the protection of members of the public, in the public interest or in the interest of the GP deemed to be unsuitable. Such a definition of "unsuitability" would help to ensure that health authorities do not remove or suspend a GP or refuse to include a GP on the medial list for spurious reasons. I would be grateful if the Minister would clarify the Government's position and explain why they are not willing to be as specific with the definition as I had understood they intended to be. I beg to move.

Lord Hunt of Kings Heath

The Government's view remains as it was in the other place; that is, that "unsuitability" is properly capable of a wide interpretation and should be left so. We believe that there are precedents in other legislation—for example, in employment rights—and that any definition set out on the face of the legislation might constrain the consideration of health authorities inappropriately. The approach that we favour, and which we shall seek to adopt, is to set out in regulations the criteria which health authorities must consider, without preventing them from applying other criteria where the particular case warrants it.

I know that the BMA's GPC has been pressing for a definition of "unsuitability" on the face of the Bill. I am not unsympathetic to the thrust behind that. However, we believe that this is the wrong approach. Amendment No. 187 draws on wording from the order last year—the Medical Act 1983 (Amendment) Order 2000—which established the GMC's Interim Orders Committee with the power to make interim suspension orders and the circumstances in which a medical practitioner may be suspended and not disqualified. The definition which the amendment borrows defines the circumstances in which the GMC committee may suspend a doctor, not disqualify.

The substantive point I want to make is to distinguish carefully between the grounds for removal and those for suspension. Grounds for removal need to be broad enough to capture all the potential risks to patients or the NHS that might arise. The grounds for suspension need to be drawn more narrowly to protect the practitioner from inappropriate action by the health authority—at suspension, no case against him or her has been proven—but to allow the health authority to act quickly where it considers that there is a serious and immediate risk to patients or to the NHS.

In the context of suspension, the drafting of Amendment No. 187 is helpful in assisting to define the circumstances in which suspension may be appropriate. The drafting captures both the notion of risk to the patient and the wider risk to the NHS or the public good. The noble Earl is right to say that in Committee in the other place we promised to bring forward on Report an amendment based on the wording of a similar opposition amendment. That would set out the circumstances in which a health authority may suspend a practitioner. We made that amendment on Report. It appears at lines 32 to 35 of page 28, or as new Section 49F(1) of the 1977 Act as inserted by Clause 32.

I hope that I have answered the points raised. I believe that, in general, "unsuitability" is capable of a wide interpretation. But that relates to a system in which there are appeals to the FHSAA. I believe that there are sufficient safeguards alongside the advice and guidance we shall give in relation to the criteria to be issued to health authorities.

Earl Howe

I am not entirely satisfied with that answer. It seems to me that there are two degrees of unsuitability. There is unsuitability because somebody is dangerous, either to himself or to patients, and unsuitability because the person is not up to the standard that the health authority might like. I believe that the issues need to be addressed separately, whether in the context of suspension or disqualification. My amendment would cover the situation on page 29, line 17 of the Bill, for example, which as I read it is not covered in the amendment tabled in another place on Report.

I do not want to detain the Committee on a matter of this kind. I shall read carefully what the Minister said and reserve the right to come back to this at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath moved Amendment No. 188: Page 31, line 35. leave out from beginning to end of line 40 and insert— (9) The Secretary of State may make regulations providing for payments to practitioners who are suspended. (10) Those regulations may include provision for the amount of the payments. or the method of calculating the amount, to be determined by the Secretary of State or by another person appointed for the purpose by the Secretary of State.

The noble Lord said: Amendment No. 188 deals with payments to suspended practitioners under Clause 32, to mirror the wording in similar provisions in Clauses 31 and 32 relating to supplementary and services lists. Amendments Nos. 189, 190, 196, 197 and 200 are minor, technical and of a clarificatory nature. They are necessary to ensure that the provisions for suspension and removal are consistent and coherent.

Amendment No. 189 clarifies that suspension of a practitioner has effect until its revocation by the health authority or the FHSAA. Amendment No. 190 extends the health authority decisions which may not be subject to review to include continued suspension pending an appeal against removal. Amendment No. 196 is a minor technical amendment necessary to substitute the reference to "practitioners" in Section 49R with "persons". Use of the term "persons" ensures that non-practitioners, such as corporate bodies, are also covered by the provisions in these sections.

Amendment No. 197 clarifies that national disqualification by the FHSAA prevents any health authority including that person in any of the lists from which he or she has been disqualified. Amendment No. 200 extends the circumstances in which practitioners may not withdraw from a list to persons awaiting removal after breaking conditions of their contingent removal. That closes a loophole.

Amendments Nos. 198 and 199 are more substantive. They both concern the time limit before a practitioner can request a review of the FHSAA's decision nationally to disqualify him or her from health authority lists. Clause 32 currently provides that, except in prescribed circumstances, a person may not request a review of FHSAA's national disqualification decision before the end of certain time limits. That is two years from the date on which the national disqualification was imposed or one year from the date of the last decision.

These amendments ensure that, in prescribed circumstances, the right to request a review will be either less than two years or one year—for example, where a relevant decision of a court or a regulatory body is changed or is overturned—or greater than those periods.

Amendments Nos. 198 and 199 provide for the right to request a review to arise either earlier or later than the periods specified in the Bill. That provision is along the same lines as that operated by the General Medical Council. In summary, doctors removed by the GMC may not apply for reinstatement for five years from the date of disqualification or for 12 months from the date of the last application.

The Bill adopts the principle of the GMC approach but specifies different time limits to recognise the different circumstances of GMC and FHSAA cases. The FHSAA, like health authorities, may remove a practitioner on grounds of fraud or inefficiency as well as their unsuitability. In some such cases a five-year prohibition on application for review may be excessive and the Bill recognises that.

Amendments Nos. 198 and 199 will permit a review of a national disqualification imposed by the FHSAA to be requested after either a longer or shorter period than that specified in the Bill in prescribed circumstances.

In essence, the amendments provide flexibility to ensure that practitioners who are considered suitable to work in the NHS are given the opportunity to do so as soon as possible, at the same time as providing better safeguards for the public in the most serious cases. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments 189 and 190: Page 32, line 6, leave out "or" and insert "under subsection (5) or (6) or, if later, Page 32, line 26, after "FHSAA" insert ", or a suspension imposed under section 49J above

On Question, amendments agreed to.

4.30 p.m.

Lord Hunt of Kings Heath moved Amendment No. 191: Page 33, line 5, after "49G(3)" insert "or under subsection (5)(b) of this section

The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 192 and 193. A practitioner has a right of appeal to the FHSAA against a health authority decision to remove or contingently move them from a health authority list. In determining such an appeal the authority may uphold the health authority decision, impose different conditions or overturn the decision.

These amendments deal with minor and technical amendments to the appeals procedure under the suspension and removal regime. Section 49M of the 1977 Act in Clause 32 of the Bill provides that the FHSAA may decide to remove a person contingently following an appeal against a health authority decision. The clause does not currently provide for the removal of that person if they fail to comply with the contingent removal conditions imposed by the FHSAA.

Amendments Nos. 192 and 193 therefore provide for a health authority to remove that person from a list if they breach the conditions of their contingent removal. Amendment No. 191 provides an appeal to the authority against that health authority action. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 192 and 193: Page 33, line 17, after "contingently," insert— (a) Page 33, line 20, at end insert "and (b) the Health Authority may remove him from their list if they determine that he has failed to comply with a condition.

On Question, amendments agreed to.

Lord Hunt of Kings Heath moved Amendment No. 194: Page 33, line 36, leave out from "lists" to "prepared" in line 37.

The noble Lord said: Clause 32 includes provision for the FHSAA to remove a practitioner from all health authority lists. That is known as national disqualification. That could be principal lists, supplementary lists, services lists or any combination of the three. That will include any practitioner—and in the case of dental lists, corporate bodies—with whom the health authority has arranged to provide general or personal medical or dental services or general ophthalmic or pharmaceutical services in their area.

Amendments Nos. 194 and 195 deal with minor technical amendments which are necessary to remove references to individual practitioners within health authority lists. Clause 29 enables health authorities to make arrangements with dental corporate bodies to provide general dental services as well, with individual dental practitioners. In doing so a dental corporate body may be included in a health authority list. But it is inaccurate to refer to lists of individuals. Amendments Nos. 201 and 202 substitute the reference to "practitioners" in Section 49(3) of the Act with "persons". The use of that term ensures that non-practitioners such as corporate bodies are also covered by the provisions in the section. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 195 to 202: Page 33, line 39, leave out "of individuals of the practitioner's description Page 34, line 11, after "(1)" insert "(a) to (c) Page 34, line 18, leave out "referred to in subsection (1)" and insert "from which he has been disqualified from inclusion Page 34, line 24, leave out "Except in prescribed circumstances" and insert "Subject to subsection (9) Page 34, line 29, at end insert— (9) The Secretary of State may provide in regulations for subsection (8) to have effect in prescribed circumstances as if the reference there to "two years" or "one year" were a reference to a different period specified in the regulations. Page 34, line 42, after "49F" insert "or 49G, Page 35, line 20, leave out "corresponding to a practitioner Page 35, line 21, leave out "practitioner" and insert "person

On Question, amendments agreed to.

Clause 32, as amended, agreed to.

Clause 33 [PMS and PDS lists]:

Lord Hunt of Kings Heath moved Amendments Nos. 203 and 204: Page 36, line 49, at end insert— ( ) The imposition of such conditions must be with a view to—

1. (a) preventing any prejudice to the efficiency of the services to which the services list relates; or
2. (b) preventing any acts or omissions of the type described in section 49F(3)(a) below."

Page 37, line 11, at end insert— ( ) If the regulations provide under subsection (3)(e) or (4) that a Health Authority may suspend or remove a person from a services list, they must include provision—

1. (a) requiring him to be given notice of any allegation against him;
2. (b) giving him the opportunity of putting his case at a hearing before the Health Authority make any decision as to his suspension or removal; and
1560
3. (c) requiring him to be given notice of the Health Authority's decision and the reasons for it and of any right of appeal under subsection (7) or (8)."

On Question, amendments agreed to.

[Amendment No. 205 not moved.]

Earl Howe moved Amendment No. 206: Page 37, line 23, at end insert— ( ) In this section "perform" includes "provide".

The noble Earl said: Clause 33 refers to health authorities preparing lists of medical practitioners who perform personal medical services (PMS). However, my suggestion to the Committee is that the term "perform" is too narrow. That is a point raised by the BMA, which believes that there is a genuine distinction between providing personal medical services and performing them. The amendment ensures that both providers and performers are covered in this section of the Act. The National Health Service (Primary Care) Act 1997 makes that distinction. The use of the word "provide" is consistent throughout Part I of the Act where reference is made to a person with whom a pilot scheme agreement may be made.

The distinction between a provider and a performer can be seen clearly in Section 11(1). Under the 1997 Act a provider is defined as a PMS contract holder and a performer is a medical practitioner who performs PMS work and who may or may not be the contract holder. I hope that the Minister will accept the amendment or at the very least agree to reflect carefully on it. I beg to move.

Lord Hunt of Kings Heath

I have given consideration to what I agree is a well-intentioned amendment to extend the services list to include also providers of PMS and PDS as well as performers. The provisions of the current clause prevent that because subsection (1) of Section 28DA limits the persons to be included in the services list to medical and dental practitioners. Providers of PMS and PDS might be included by being on a medical or a supplementary list. However, it is inappropriate for providers, which include organisations such as NHS trusts and primary care trusts, to be included in such lists. For that reason I consider the amendment unnecessary.

There are adequate mechanisms in place to regulate the performance of the providers. I believe that I went through them previously. The Secretary of State has to approve a pilot scheme and significant variations of the PMS contract. Similarly, the Secretary of State has the ability to vary a term of a contract and the commissioner has a role in the overall contract negotiations and performance management functions. In the final resort the Secretary of State has the right to terminate a pilot scheme.

Earl Howe

I am grateful for that answer. It is a fairly technical point and I would not want to press it. No doubt the BMA will find the Minister's comments helpful. I shall take its advice and, if necessary, return to the matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rea moved Amendment No. 207: Page 37, line 23, at end insert— ( ) After section 6(1) of the National Health Service (Primary Care) Act 1997 (making of pilot schemes) there shall be inserted— (1A) The Secretary of State shall, in making directions applicable throughout England regarding the implementation of proposals for plot schemes, consult such organisations as he may recognise as representing persons with whom arrangements for the provision of personal medical or dental services may be made."

The noble Lord said: Amendment No. 207 concerns the terms and conditions of service of doctors providing personal medical services, rather than those contracted to provide general medical services. Clause 33 concerns those doctors who provide PMS— personal medical services. Practitioners providing PMS are classified under a different category from GPs who provide general medical services, although they do the same work: some individuals may work part-time in both categories.

The British Medical Association therefore feels that matters relating to conditions of employment with the health service—remuneration and so on—should be negotiated with the same body as GMS practitioners. That is the General Practitioners Committee of the British Medical Association. By an agreed terminology, the Secretary of State should consult, such organisations as he may recognise as representing persons with whom arrangements for the provision of personal medical or dental services may be made".

That means the BMA's General Practitioners Committee. It is a formula that is understood between the BMA and the Government.

The negotiations to achieve this uniform status for both categories of doctors providing general practitioner services are in progress between the department and the British Medical Association. So far these negotiations have been inconclusive.

Perhaps my noble friend can outline the reasons why the BMA General Practitioners Committee cannot negotiate a settlement with Ministers so that its members who have chosen the PMS option have their conditions negotiated by the same body as other GPs. Even if my noble friend cannot accept the amendment, his words will be extremely helpful in taking the negotiations forward. I beg to move.

Lord Clement-Jones

I rise to break my vow of silence and to support the amendment of the noble Lord, Lord Rea. The Minister in the Commons Committee stage said that the reason there could not be the same kind of consultation with the GPC over PMS was that, because of the voluntary nature of the contract, it would not be right for us to agree a framework in which the general practitioners committee nationally could determine the contract that someone could enter into at local level through his formal negotiating rights".—[Official Report, Commons, Standing Committee E, 25/1/01; col. 191.] It has been put to me—I am sure that the noble Lord, Lord Rea, knows the position—that this is a rather misleading portrayal of the situation. The national framework of PMS contracts is set by nationally determined implementation directions and a core contractual framework. Therefore, there is a strong national context. It would be perfectly right and feasible for the General Practitioners Committee to be consulted. So the questionmarks remain despite the Commons Committee stage. I look forward to hearing what the Minister has to say on the matter

4.45 p.m.

Lord Hunt of Kings Heath

I found my right honourable friend's arguments wholly persuasive. I recognise the issue. I know that the GPC is exercised about the matter.

It is important to remember that the key element of PMS and PDS schemes are their scope and flexibility to negotiate individual local contracts tailored specifically to meet local needs. On a local level the appropriate way for that to be done is through the relevant medical or dental committees. Indeed, government amendments to the Health Act 1999 ensured that LMCs and LDCs could be recognised as representing doctors in PMS and dentists in PDS who so wished. I cite that as a movement to a local level of representation in line with many of the provisions of the Bill, which sees a devolution of power from the centre to the locality. The PMS or PDS contract is therefore individually tailored between the commissioner and the PMS or PDS provider.

Furthermore, there is the standard national contract between the Secretary of State with all GMS GPs and general dental practitioners. That is concerned with the remuneration and provision of general medical services and general dental services. It is an inherently different concept from PMS and PDS contracts. That is why the emphasis must be on local development and negotiation. The consultation process for those matters needs to be more flexible and wider. For example, key stakeholders in PMS arrangements are not exclusively general practitioners. They can include a range of primary care professionals and organisations such as primary care trusts, NHS trusts and nurses.

We have established an implementation group for personal medical services to replace the present national consultative group. That group will be the key forum for consulting and advising on arrangements for PMS. The knowledge and experience of its members will be drawn on to provide advice and better inform PMS developments. The GPC has membership of the group.

That is the most appropriate approach to consulting on the overall development of PMS. It is not through a duty on the Secretary of State to consult a single stakeholder group over a particular aspect of PMS. The BMA is an organisation with influence and the ability to make its views known. We have very well established consultation procedures with the medical and dental professions. There is no intention to weaken those arrangements in any way.

It is not right to go down the route of the GPC for this particular development of LMS and PDS in relation to dentists.

Lord Clement-Jones

Perhaps I may ask the Minister a question. Many of the new developments will be taking place through PMS. Is that not really just a rather crude attempt to marginalise the GPC in the process?

Lord Hunt of Kings Heath

I cannot see any reason why we should want to marginalise the GPC. It is an important body which represents a large number of general practitioners. It is worth making the point that its core responsibility is to cover pay and terms and conditions. PMS goes much wider than that and covers the quality of service and so on. A PMS core contract, which the noble Lord mentioned, sets out the minimum requirements as to quality. I believe that our approach is the right one. There is certainly no slight intended towards the GPC.

Lord Rea

I do not think that the British Medical Association will be terribly pleased with my noble friend's answer. Although the type of contract that PMS doctors have throughout the country will differ, there is a basic level of remuneration and terms and conditions of service which cover them all. As circumstances will differ, there can be local variations. But it is very important for a national body to continue to be able to negotiate with the Government for PMS practitioners as a whole.

Lord Hunt of Kings Heath

I am sorry if I have to disappoint the BMA, which I hold in the highest respect. However, just occasionally it is one's duty to disappoint it. All I can do is to reiterate my previous remarks. We need to reflect on the fact that we are considering here a very much more flexible approach at the local level. For that reason, the arrangements for discussions at the national level need to reflect the differences encompassed within PMS. Furthermore, it should be recognised that, through this approach, the role of the local medical committee will assume more importance because it will have the capacity to discuss PMS schemes locally with the local health authority. Surely that is the right approach; namely, to push those discussions down to the local level.

Lord Rea

I do not think that we shall reach agreement on this. However, my noble friend's words will prove extremely useful when carrying this discussion further, either once the Bill has been passed or, possibly, at a later stage in our deliberations. However, in order to speed matters along, I shall withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 208 not moved.]

Lord Hunt of Kings Heath moved Amendments Nos. 209 and 210: Page 38. line 38, at end insert— ( ) The imposition of such conditions must be with a view to—

1. (a) preventing any prejudice to the efficiency of the services to which the services list relates; or
2. (b) preventing any acts or omissions of the type described in section 49F(3)(a) below of the 1977 Act."

Page 38, line 49, at end insert— ( ) If the regulations provide under subsection (3)(e) or (4) that a Health Authority may suspend or remove a person from a services list, they must include provision—

1. (a) requiring him to be given notice of any allegation against him;
2. (b) giving him the opportunity of putting his case at a hearing before the Health Authority make any decision as to his suspension or removal; and
3. (c) requiring him to be given notice of the Health Authority's decision and the reasons for it and of any right of appeal under subsection (7) or (8)."

On Question, amendments agreed to.

[Amendments Nos. 211 to 213 not moved.]

Clause 33, as amended, agreed to.

Clause 34 [The Family Health Services Appeal Authority]:

Lord Hunt of Kings Heath moved Amendment No. 214: Page 39, line 37, leave out "facilities and persons" and insert "the services of persons employed by a Special Health Authority and

The noble Lord said: This important clause provides contractors with an independent body to whom they can appeal against health authority decisions. We have encountered it before in earlier amendments. It reconstitutes the Family Health Service Appeals Authority, which is currently a special health authority, into an independent appeals body. The members of this reconstituted authority will be appointed by the Lord Chancellor. Membership will include people with a lay background, those with legal expertise, and members with relevant professional expertise. As well as performing its existing functions, the reconstituted authority will have adjudicative powers to hear appeals from contractors removed by health authorities. The FHSAA will come under the supervision of the Council on Tribunals.

Amendments Nos. 214, 215 and 216 deal with the provision of administrative staff and premises to the authority. Amendment No. 216 allows the Secretary of State to make the staff and facilities of a special health authority or NHS trust available to the FHSAA, even though he does not employ them. Amendments Nos. 214 and 215 make technical corrections to Section 49S(7), which imposes a duty on the Secretary of State to consult the staff affected.

In order to protect the existing staff of the authority, they will be transferred to an SHA or NHS trust and arrangements will be made for that body to make them available to the reconstituted FHSAA. Not only will this allow them to retain their Whitley terms of service and entitlement to participate in the NHS pension scheme, but also to retain their expertise in handling appeals. That will be invaluable to the newly appointed president and members.

Amendment No. 217 provides for the Lord Chancellor to be responsible for also determining the terms of their appointment. Amendment No. 218 is consequential and deletes the reference which allows the Lord Chancellor to set the terms of appointment for the members only. Amendment No. 219 is also consequential. It provides for the Lord Chancellor to determine the qualifications which members, other than the president and any deputy president, must have in order to be eligible for membership of the FHSAA.

Amendment No. 223 is a technical amendment which allows time limits on appeals to the existing FHSAA to continue to apply when the determination of those appeals is transferred to the reconstituted authority. Amendment No. 224 provides for regulations to be made providing for a minimum period to elapse before an application or further application can be made for a condition to be varied, replaced or revoked. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendments Nos. 215 to 219: Page 39. line 38, leave out "to facilities and persons" and insert "in relation to the services of officers of Special Health Authorities to be Page 39, line 39, at end insert— ( ) For the purposes of subsection (6)—

1. (a) the Secretary of State may give directions to an NHS trust requiring it to make facilities or the services of persons available as mentioned there; but
2. (b) subsections (1) and (2) of section 27 above apply in relation to the services of such persons as they apply in relation to the services of officers to be made available by virtue of section 26 above by a Health Authority, Special Health Authority or Primary Care Trust."

Page 40, line 16, at end insert "on terms to be determined by him Page 40, line 19, leave out "The terms of appointment of the other members, and Page 40, line 20, leave out "they" and insert "the other members

On Question, amendments agreed to.

Earl Howe moved Amendment No. 220: Page 40, line 32, leave out from "services" to end of line 34 and insert— (aa) medical practitioner performing personal medical services under section 28C arrangements;

The noble Earl said: As introduced in the other place, paragraph 6(a) of Schedule 9A, which deals with the constitution of the FHSAA, read that the members must include at least one, medical practitioner providing general medical services".

An amendment was tabled in Committee that GPs providing personal medical services should also be represented on the new appeals authority. That was accepted by the Minister. However, when tabled at the remaining stages in the Commons, the government amendment made the situation worse. I believe strongly that the two categories of GPs—namely, those providing general medical services and those providing personal medical services—should both have representation on the appeals authority. The 'way that the paragraph now reads, it will be either one or the other category. We could end up with a situation where a GP providing personal medical services is represented, while a GP providing general medical services—that is, someone who would be representing the majority of GPs—is not represented. I believe that there is an urgent need to correct this anomaly. I beg to move.

Lord Clement-Jones

I should like to speak briefly to Amendments Nos. 221 and 222 in this grouping. Paragraph 6 of Schedule 9A does not specify the precise intention so far as concerns lay representation Amendment No. 221 proposes that that representation should be equivalent to at least 50 per cent of the total membership of the FHSAA. I do not know why the Government have chosen such a terrible acronym; it is very difficult to pronounce. In our view, the right level of lay representation would be a t least 50 per cent. I shall be interested to learn the Minister's view on that.

As regards the annual report of the FHSAA, the Bill currently specifies that the body is entitled to publish only some of its cases. We, along with others, would prefer the FHSAA to publish all its case reports in an anonymous form. Amendment No. 222 is designed to achieve that.

Lord Hunt of Kings Heath

I appreciate the aims of each of the amendments in this group, certainly so far as concerns Amendment No. 220. I understand clearly what the noble Earl seeks to achieve here. However, I want to make the point that the FHSAA will not be a representative body. What we are trying to achieve is to ensure that its members and panels have the expertise and experience relevant to the profession of the person who is making the appeal. I think that it is right that we should refer to PMS and GMS general practitioners alongside each other, but I do not believe that, ultimately, it matters one jot whether medical practitioners serving on the authority or the panels are GMS or PMS doctors. The fact is that they will be doctors with good experience of medical practice.

I can assure the noble Earl that we shall want to ensure that there is a good balance of professional members of the authority, including a mix of both GMS and PMS GPs. However, we are reluctant to go down the path of specifying each and every potential variation of primary healthcare worker.

I am sympathetic to the noble Lord's intention in tabling Amendment No. 221. The problem is that each additional separate category of professional member would require a corresponding increase in lay members. I believe that if we were to accept the amendment it would cause practical difficulties for my noble and learned friend the Lord Chancellor. In practice, even counting legal lay members as lay members, we expect that a majority of the authority's members will need to be professional. That is because the members represent the pool from which panels will be drawn to hear individual cases.

There are four categories of professions within the purview of the authority. Because of that, it seems inevitable that the pool of authority members from whom panels will be drawn will have to include a majority of professionals. But the point is that the authority will not be professionally dominated, because professional membership of each panel will be limited to one.

Amendment No. 222 relates to the requirements in paragraphs 12 and 13 of new Schedule 9A to publish decisions on national disqualification or removal or contingent removal from a health authority list and such other decisions as may be prescribed. I should have thought that that covered the point raised by the noble Lord. I believe that it is an appropriate way for the authority to report its decisions as part of its report on its activities over the year, which will be set out in its annual report. That is provided for in paragraph 19. Sub-paragraph (1) in particular provides for the Secretary of State to specify the topics to be covered in the report. I can confirm that we intend to require the details specified in the noble Lord's amendment to be among the matters on which the authority will report. We simply believe that it is more appropriate to leave such matters to directions rather than place them on the face of the Bill.

Lord Clement-Jones

Perhaps I may reply briefly to the Minister's helpful statement on Amendment No. 222. I thank him for a very useful response. As regards Amendment No. 221, we should hate to cause difficulties for the noble and learned Lord the Lord Chancellor—even though they are only mild difficulties.

As I understand the Minister, he is saying that although he cannot quite comply with the requirements set out in the amendment for lay representation of 50 per cent or over on the authority, the panel will have an overwhelming proportion of lay members. Am I correct?

Lord Hunt of Kings Heath

I refer the noble Lord to paragraph 10 on page 41 of the Bill, which relates to panels which hear appeals or national disqualifications. The panel will be split into three: one lawyer, one professional and one lay member.

Lord Clement-Jones

I thank the Minister. I am somewhat horrified, speaking as a lawyer, that the FHSAA will be stacked with legal members, and that the panels will also have a very high legal preponderance. I dare say that is the way of the world and one has to accept it. However, I urge the Minister to seek to provide the maximum lay representation both on the authority and on the panels.

Earl Howe

I must say that that was one of the Minister's less convincing answers, however emollient he contrived to sound in delivering it. The FHSAA may not be a completely representative body; however, I do not think that what he said accords with the undertaking given in another place. Although this is a point of detail, it is a point of principle too, because it concerns a miniterial undertaking. I should like to test the opinion of the Committee.

5.4 p.m.

On Question, Whether the said amendment (No. 220) shall be agreed to?

Their Lordships divided: Contents, 79, Not-Contents, 104

Division No. 2
CONTENTS
Anelay of St Johns, B.	McColl of Dulwich, L.
Astor of Hever, L.	Mancroft, L.
Biffen, L.	Marlesford, L.
Blaker. L.	Monro of Langholm, L.
Blatch, B.	Mowbray and Stourton, L.
Boardman, L.	Moynihan, L.
Brabazon of Tara, L.	Murton of Lindisfarne, L.
Burnham, L. [Teller]	Naseby, L.
Byford, B.	Noakes, B.
Caithness, E.	Norton of Louth, L.
Campbell of Alloway, L.	O'Cathain, B.
Colwyn, L.	Onslow, E.
Cope of Berkeley. L.	Park of Monmouth, B.
Cranborne, V.	Perry of Southwark, B.
Crickhowell, L.	Prior, L.
Cumberlege, B.	Rawlings, B.
Dixon-Smith, L.	Reay, L.
Elliott of Morpeth, L.	Rees, L.
Elton, L.	Renton, L.
Flather, B.	Roberts of Conwy, L.
Gardner of Parkes, B.	Selsdon, L.
Geddes, L.	Shaw of Northstead, L.
Glentoran, L.	Skelmersdale, L.
Hanham, B.	Strathclyde, L.
Hayhoe. L.	Swinfen, L.
Henley, L. [Teller]	Taylor of Warwick, L.
Higgins, L.	Tebbit, L.
Hodgson of Astley Abbotts, L.	Thomas of Gwydir, L.
Hooper, B.	Trefgarne, L.
Howe, E.	Trumpington, B.
Jenkin of Roding, L.	Tugendhat, L.
Kingsland, L.	Vivian, L.
Laing of Dunphail, L.	Walton of Detchant, L.
Lyell, L.	Young, B.

NOT-CONTENTS
Acton, L	Currie of Marylebone, L.
Ahmed. L.	David, B.
Alli, L.	Davies of Coity, L.
Amos, B.	Davies of Oldham, L.
Andrews, B.	Desai, L.
Archer of Sandwell, L.	Dormand of Easington, L.
Ashton of Upholland, B.	Dubs, L.
Bach, L.	Eatwell, L.
Bassam of Brighton, L.	Elder, L.
Berkeley, L.	Erroll, E.
Billingham, B.	Evans of Watford, L.
Borrie, L.	Farrington of Ribbleton, B.
Brooke of Alverthorpe, L.	Faulkner of Worcester, L.
Brookman, L.	Filkin, L.
Brooks of Tremorfa, L.	Gale, B.
Burlison, L.	Gibson of Market Rasen, B.
Carter. L. [Teller]	Gilbert, L.
Castle of Blackburn, B.	Goldsmith, L.
Christopher, L.	Grabiner, L.
Clarke of Hampstead, L.	Graham of Edmonton, L.
Clinton-Davis, L.	Grenfell, L.
Colville of Culross, V.	Hardy of Wath.L.

Haskel, L.	Mishcon, L.
Healey, L.	Molloy, L.
Hilton of Eggardon, B.	Morris of Manchester, L.
Hollis of Heigham, B.	Northfield, L.
Howells of St. Davids, B.	Paul, L.
Howie of Troon, L.	Prys-Davies, L.
Hughes of Woodside, L.	Puttnam, L.
Hunt of Chesterton, L.	Ramsay of Cartvale, B.
Hunt of Kings Heath, L.	Rea, L.
Irvine of Lairg, L. (Lord Chancellor)	Richard, L.
	Rix, L.
Janner of Braunstone, L.	Sawyer, L.
Jay of Paddington, B. (Lord Privy Seal)	Scotland of Asthal.B.
	Shepherd, L.
Jeger, B.	Simon, V.
Jenkins of Putney, L.	Smith of Leigh, L.
Lea of Crondall, L.	Symons of Vernham Dean, B
Levy, L.	Tordoff, L.
Lipsey, L.	Turnberg, L.
Longford, E.	Turner of Camden, B.
Macdonald of Tradeston, L	Warner, L.
McIntosh of Haringey, L. [Teller].	Warwick of Undercliffe, B.
	Weatherill, L.
MacKenzie of Culkein, L.	Whitaker.B.
Mackenzie of Framwellgate, L.	Whitty, L.
Mallalieu, B.	Wilkins, B
Masham of Ilton, B.	Williams of Elvel, L.
Massey of Darwen, B.	Williams of Mostyn, L.
Milner of Leeds, L.	Woolmer of Leeds, L.

On Question, amendments agreed to.

Resolved in the negative, and amendment disagreed to accordingly.

5.15 p.m.

[Amendments Nos. 221 and 222 not moved.]

Lord Hunt of Kings Heath moved Amendments Nos. 223 and 224: Page 42, line 29, after "in" insert "or by virtue of Page 42, line 30, at end insert— ( ) for a period which must elapse before an application, or a further application, may be made under section 49M(5) (a)above:".

On Question, amendments agreed to.

Clause 34, as amended, agreed to.

[Amendment No. 225 not moved.]

Clause 35 [Pilot schemes]:

Earl Howe moved Amendment No. 226: Page 44, line 26, leave out "(other than practitioner dispensing services)".

The noble Earl said: In moving the amendment, I speak also to Amendments Nos. 227 and 227AA, which follow it. Clause 35 deals generally with local pharmaceutical services pilot schemes. Clause 35(8) seeks to describe the terms "pharmaceutical services" and "local pharmaceutical services".

The amendment seeks to clarify that dispensing doctors' administrative arrangements for prescription dispensing may also be included in the consideration of local pharmaceutical services. Local pharmaceutical services pilots are an experiment to investigate more efficient contractual arrangements for dispensing prescriptions. There will be an opportunity to diversify beyond pure dispensing. Health authorities have a duty to make arrangements for prescriptions to be dispensed. In rural areas a retail pharmacy business tends to be unprofitable, so the duty to dispense prescriptions falls on the GP's surgery. In fact all GPs can provide personally administered items such as injectables to patients.

There are approximately 4,300 dispensing doctors in the United Kingdom, serving some 3.5 million patients from around 1,100 mainly rural practices. Dispensing doctors make profits from their dispensing in a slightly different way from pharmacies. These profits are essential in ensuring the provision of GPs in rural areas. I believe that dispensing doctors and their patients should be allowed the same choice of contractual arrangements. It would be a shame if sensible co-operation between dispensing doctors and their neighbouring pharmacies were specifically prohibited.

This amendment would allow for that co-operation in providing local pharmaceutical services. Excluding dispensing doctors from local pharmaceutical services pilots may cause unfair competition in the rural pharmacy market, with the resulting loss of much-needed medical services to the rural community. It could also result in the closure of small independent pharmacies which are so valued for the personal service that they provide. As I understand them, local pharmaceutical services pilot schemes are not intended to open up the market for existing business. If that is the unintended result, then dispensing doctors should be allowed to compete.

On Amendment No. 227AA, in Committee in another place the Government introduced an amendment to Schedule 2, which is now paragraph 5(1). This means that proposals for a pilot scheme must, quite rightly, include an assessment by the health authority of the likely effect of the pilot on existing services.

My suggested amendment—suggested to me in fact by the BMA—takes the process a little further. I believe that the pilot should not be given approval if it prejudices existing arrangements, be they in respect of an existing community pharmacy or a GP dispensing arrangement. I beg to move.

Lord Hunt of Kings Heath

These clauses are very important. They will allow us to use community pharmacists in a more effective way than we have done in the past. I have always believed that they have been an under-used profession. In order to help us to do that, we need to look closely at improving the current contractual framework for community pharmacy.

At present we have a national framework which provides insufficient incentives for good quality and service performance. We are committed to reforming that national framework, but we also want a more flexible alternative. We want to build on what I think has been a really successful programme in the personal dental service and the personal medical service. The intention of local pharmaceutical service pilots is to allow local authorities to agree innovative local contracts for pharmacy services tailored to specific local needs.

Participation in those schemes will be voluntary and discretionary. We hope that there will be very exciting proposals from pharmacies not only supplying medicines but managing them, working with local GPs to make sure patients receive the right medicines and the help they need to make the best use out of the medicines which is a big problem at the moment. There are many examples of local schemes involving pharmacists in providing enhanced services. Local pharmaceutical services will help us to develop those services.

I do not agree with the noble Earl, Lord Howe, in terms of the amendment and the effect it would have to allow dispensing doctors' services to fall within the scope of local pharmaceutical service pilot schemes. The development of LPS does not in any way signal a change in our approach to dispensing by doctors. As a general rule, it is best for patients to have access to the skill and expertise of both GPs and pharmacists. It has long been recognised that in some rural areas community pharmacists are unlikely to be viable. Dispensing doctors' services provide an important service in such areas, and we know that that is highly valued by patients.

I can assure the noble Earl that the introduction of LPS and the decision to keep dispensing doctors' services separate are not an indication that the Government take a negative view towards dispensing doctors. The point is that dispensing doctors who wish to take part in an innovative local contract can already do so through personal medical services. There are already a number of dispensing practices involved in the PMS pilot. PMS is clearly based on family doctor services and LPS is largely about community pharmacy services. We think that it would create a muddle to allow dispensing doctors services to be provided through PMS and LPS.

In terms of the general relationship between community pharmacists and rural dispensing doctors, agreement has been reached between the PSNC and the General Practitioners Committee about the regulations governing rural dispensing; this was announced only last week. I believe that it will go a very long way to getting rid of some of the disturbing disputes between doctors and pharmacists about dispensing rights in rural areas. I believe that in that spirit it would be wrong to include dispensing doctors within LPS schemes but right to acknowledge that they can take part in PMS schemes.

I turn to Amendment No. 227A. Under the existing national contract health authorities are obliged to consider applications from people wishing to provide pharmaceutical services in their area. In practice, providing those applications satisfy certain tests health authorities have no choice but to grant them. Essentially, this current system is reactive. Local pharmaceutical services is a two-way process. We want something much more pro-active. On the one hand, existing contractors and other prospective pilot scheme participants will come forward with ideas they want to discuss with health authorities. At the same time health authorities will be looking for opportunities of their own, stimulating places and situations where an LPS pilot scheme may be the best way to expand and improve local services.

I believe that it will be wasteful if health authorities work out possible LPS pilot schemes and at the same time have to deal with applications to open pharmacies in the same place under national arrangements. It would put unreasonable pressure on the health authority and its prospective partners. My real concern is that it could open the way for blocking applications from people who have no interest in better services. For that reason we want health authorities to be able to designate places as being ones in which LPS is temporarily to have priority. Once they have made the designation they will be able to defer applications under national arrangements. It will give health authorities and their prospective partners in the LPS pilot schemes time to develop proposals and establish schemes which offer the greater benefit to prospective participants and patients.

The effect of the amendment by the noble Earl will be to prevent health authorities deferring applications and rendering much of the clause purposeless. I believe that it would present a significant stumbling block to the development of the LPS. A pharmacist or a company keen to open a new pharmacy in an area which currently lacks a proper service would think twice about proposing an LPS pilot scheme if they knew that their discussions with the health authority would always be under threat from an application from someone else under the national arrangements. I hope that I have answered that point for the noble Earl.

Earl Howe

The Minister's reply to Amendment No. 227AA gives me pause for thought. I will consider what the Minister has said.

I am far from happy with his reply to my other two amendments. The main point I sought to make was that under the situation envisaged there could be unfair competition. I do not see that there is any reason to create a differential between those two types of practitioner—GPs on GMS and GPs who have signed up for PMS. It seems perverse that the opportunity is going to be made available to one group of GPs and not the vast majority. It will be possible in an LPS scheme to provide additional services such as diagnostic testing and investigative procedures. A GP may wish to apply to provide these services, and it is important that the patient's care is properly coordinated and integrated.

The Minister said that the opportunity to take part in pilot schemes already exists within personal medical services and it would create a muddle to include them in local pharmaceutical services as well. I do not think that is true. I believe that GPs who wish to remain in general medical service schemes should have the same opportunity. I should like to take the opinion of the Committee.

5.28 p.m.

On Question, Whether the said amendment (No. 226) shall be agreed to?

Their Lordships divided: Contents, 68; Not-Con tents, 99.

5.37 p.m.

[Amendment No. 227 not moved.]

Clause 35 agreed to.

Clause 36 [Making pilot schemes]:

[Amendment No. 227A A not moved.]

Clause 36 agreed to.

Schedule 2 agreed to.

Clause 37 [Designation of priority neighbourhoods or premises]:

[Amendment No. 227A not moved.]

Clause 37 agreed to.

Clause 38 [Reviews of pilot schemes]:

Earl Howe moved Amendment No. 228: Page 45, line 21, at end insert "and (c) any provider of pharmaceutical services locally,'

The noble Earl said: Clause 38 sets out conditions for the review of "each pilot scheme" established for local pharmaceutical services. Such a review is necessary to ensure that the pilot scheme is achieving its objectives. The results of all reviews of pilot schemes will, presumably, be collated in a way that ensures that permanent arrangements for local pharmaceutical services will follow.

Clause 38(3) seeks to describe the persons who must be consulted when reviewing the pilot scheme. The intention behind the amendment is to give an opportunity for those persons providing pharmaceutical services locally to contribute to the review. Local pharmaceutical services pilots are an experiment to simplify contractual arrangements for dispensing medicines. However, what they should not do—indeed, are not intended to do—is to provide a mechanism for predatory chemists to take over existing business. Small, local pharmaceutical businesses are already being taken over by larger companies in a fiercely competitive market. The local chemist, or dispensing doctor, may be less able to take part in a pilot scheme, but he provides a valued local service and should be allowed to comment if he sees his business being unfairly taken away. I beg to move.

Lord Hunt of Kings Heath

The noble Earl referred to predatory chemists. The whole approach that we have taken in the pharmacy strategy is to draw a careful balance. There is no doubt that the community pharmacy environment is highly competitive and very much reflects the intensely commercial environment for retail trade generally.

It would have been possible for the Government to have opted for a wholesale deregulation and, for instance, to have removed control of entry rules completely to allow for ever more competition. However, we decided not to do that. We decided to adopt a middle way which recognises the important network of community pharmacies that we have but also, through mechanisms such as local pharmacy services, develops some incentives to help focus attention on improving quality.

No one can say that every current community pharmacist will thrive and prosper in the future. But what we can say is that those who are up to the challenge of providing higher quality services will be in the best position to ensure their future prosperity. The noble Earl said he thought that LPS might not relate to very small community pharmacies. I see no reason why that should be the case. I assure him that we shall look for imaginative proposals from community pharmacies of all sizes. I believe that that is relevant to the question of review. It is important that we have inclusive and thorough reviews. However, I am not convinced that the noble Earl's amendment is the right approach to securing such thoroughness.

The review and evaluation of a pilot scheme will involve seeking the views of people well beyond the scheme itself. That will include other local pharmacies. Having required health authorities to assess the likely effects of pilot schemes on local services before they put them forward for approval in the first place, it naturally follows that our reviewers of schemes will also be interested in what those effects have been in practice. However, I do not believe that putting on the face of primary legislation the detail of who would be involved in those reviews is the best way forward.

I also believe that there is a danger of giving an impression that these reviews concern primarily the health authority and the provider, the LPS, lobbying to keep the scheme going, with, on the other hand, the scheme's commercial competitors arguing for it to cease. Clearly we need to go beyond that to provide rounded reviews which give a much more impartial and sensible summary of the effectiveness of the scheme, its impact and how well the public interest has been served. I hope that the noble Earl will accept that I recognise the competitive environment in which community pharmacists operate, but we cannot put a ring fence round that. The environment is competitive. LPS is an important way of investing in higher quality services. However, I believe that we have adopted the right balance between leaving the control of entry regulations as they are—apart from some specific areas where we want to see flexibility—and encouraging new investment and innovation.

5.45 p.m.

Earl Howe

I did not in the least mean to suggest that there should be a protectionist flavour to this part of the Bill. The Minister is right to suggest that no one has an automatic right to be in business and it is a competitive world out there. However, he said earlier that consultation was part and parcel of the department's way of proceeding. That was the only suggestion behind the amendment. Nevertheless I take comfort from what he said about wishing to conduct rounded reviews. I am sure that what he said will be reassuring in that context. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 agreed to.

Clauses 39 to 47 agreed to.

Schedule 3 [LPS Schemes]:

Baroness Northover moved Amendment No. 228A: Page 82, line 6, at end insert— ( ) The regulations shall provide for setting service standards, imposing conditions (including conditions as to qualifications, training and experience) to be satisfied by persons providing LP services, and for National Health Service redress mechanisms to be available in relation to the provision of LP services.

The noble Baroness said: In moving Amendment No. 228A, I wish to speak also to Amendment No. 229A and to the section more generally in the interests of time. We welcome much that we see here, especially the extension of prescribing rights. We hope that there will be flexibility in the way that that is implemented in terms of any lists to be used. However, we are concerned to ensure that in any new arrangements high standards will apply and that there is full professional accountability.

Where pilots are concerned, we are anxious to see the same standards apply that we see elsewhere in the National Health Service, for example as regards the rights of patients to redress should things go wrong. In addition, where online services are concerned, it is vital that information on patients is secure and that a high standard of service is offered. How is that system to be policed? I beg to move.

Lord Hunt of Kings Heath

We shall certainly expect contracts for local pharmaceutical services to include service standards. We shall also expect them to reflect specific local needs and circumstances, but also national priorities and standards.

On training, qualifications and expertise, we shall expect local contracts to make clear what is expected of the people taking part. Similarly, on what the amendment calls "redress mechanisms", we intend that local pharmaceutical services will fall within the ambit of NHS complaints mechanisms. Where I disagree with the noble Baroness is on the question of how much detail should be included on the face of the Bill. In this schedule we are dealing with the substantive arrangements for LPS, which will follow the pilot stage, if—as I am confident it will—piloting shows that the continuation of LPS is in the best interests of the National Health Service. It will be at least two years—and it could be more—before those powers are used. By then we shall have learned much more from pilot schemes. For that reason we have made the regulation-making powers in the schedule deliberately wide. I believe that that is the best approach.

Amendment No. 229A concerns the provision of pharmaceutical services by remote means. Clause 50 provides substantive new powers. In particular, subsection (4) confers an explicit reserve power to require providers' mail order or e-pharmacy services to be accredited for that purpose. Some of the other changes are rather more technical. For example, subsection (6) would allow local pharmaceutical committees to continue to represent pharmacists based in their area, even if they provide services to people in another area.

I believe that subsection (3), to which the noble Baroness's amendment relates, falls into the latter category of essentially technical changes. Its effect is to allow us to exempt from control of entry rules those who intend to supply services exclusively by remote means. I stress that they would not have to show that their service was necessary or desirable to secure adequate pharmaceutical services in the neighbourhood in question, which is part of the criteria in relation to control of entry. I stress that it does not mean that such providers will have an advantage over other pharmacies. Their business will not be dependent on the local population. People would always be able to find a location where their application would be granted. They would merely have to find somewhere where there was no local pharmacy. Because they are not primarily serving the local population, we think that it is rather odd to judge their application by reference to the needs of the population. The general thrust of control of entry rules is to limit the number of pharmacies serving any given neighbourhood. That concept is obviously not relevant to services being provided mainly by remote means.. That is why we have taken a power to exempt from the rules, if that seems appropriate.

I should add that that new power applies only to people who provide all their services by remote means. Furthermore, in an attempt to avoid that system becoming a way of evading control of entry rules, we are taking an explicit power by which we would require health authorities to make the grant of such applications subject to conditions; and I emphasise that the health authorities would be responsible for overseeing that. One condition for a health authority may be to ensure that the service did not subsequently change to a more traditional service in which patients would visit the premises. We want to make sure that this would not be a back-door way of evading the control of entry rules.

Baroness Northover

I am very reassured by what the Minister has said on Amendment No. 228A. Although Amendment No. 229A is more specific than the issue that I addressed, I hope that the system of which the Minister speaks in terms of health authorities does work satisfactorily. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 agreed to.

Clause 48 [Corresponding provision and application of enactments]:

[Amendment No. 229 not moved.]

Clause 48 agreed to.

Clause 49 agreed to.

Clause 50 [Remote provision of pharmaceutical, etc. services.]

[Amendment No. 229A not moved.]

On Question, whether Clause 50 shall stand part of the Bill?

Earl Howe

I trust that the Committee will forgive me if I initiate a very short debate on Clause 50. In doing so, I make it clear at the outset that I harbour no desire whatever to frustrate its very positive proposals.

My concern arises because I believe that the concept of remote dispensing raises a number of fundamental issues relating to patient care. If one asks a pharmacist what his role is in dispensing a prescription, he will always say that it is primarily a checking role. He would include in that definition the role of making sure that patients understood how to take their medicine, the purpose of it, and the instructions relating to the dosage.

During that process, a pharmacist occasionally will discover a doctor's prescribing error. Doctors' errors of that sort are rare; I do not want to suggest otherwise. These days computer systems in GPs' surgeries are very sophisticated. At the time of prescribing, the computer checks the compatibility of the medicine with the patient's medical condition and any other medicines being prescribed. Despite that, however, a computer will never provide a pharmacist's full service.

My concern—a nagging worry more than anything else—is that when remote dispensing gets under way, it will turn into a van-delivery service, perhaps run by a large national pharmacy chain, with electronic transfer of prescriptions. We need to look carefully at what we shall gain and what we shall lose by that sort of streamlining. We will obviously gain convenience and speed. What we may lose will emerge only over time—perhaps the livelihood of the local chemist, or even that of the local dispensing doctor, and the sort of face-to-face professional advice that a pharmacist is able to give. In that regard, there is a risk, however small, to patient safety. Beyond a certain point, that would be an unacceptable price to pay for progress. I would welcome any comments that the Minister has to make.

Baroness Northover

I should very much like to associate these Benches with the concerns expressed by the noble Earl, Lord Howe.

Lord Hunt of Kings Heath

I understand the concerns, which are well expressed. Although I do not believe that mail order or on-line pharmacies will suddenly sweep away traditional community pharmacy services, they can provide a useful service and an extra option for some people. Ideally, the choice should be made by patients themselves. Equally, I accept that the public must be assured that mail order and on-line pharmacies meet the same legal and professional standards as any other pharmacy. Legally, that means that all pharmacy and prescription-only medicines must be supplied only from registered retail pharmacy premises. Those premises are regularly inspected by the Royal Pharmaceutical Society of Great Britain, which I have always found to be a particularly rigorous regulating authority.

In addition, pharmacy and prescription-only medicines may be supplied only by or under the supervision of a registered pharmacist. For prescription-only medicines, there must also be a prescription. A breach of any of those conditions would amount to a criminal offence. On-line pharmacies must also meet the standards expected of the profession as a whole, as well as the particular standards set by the Royal Pharmaceutical Society in relation to Internet-based services.

Given those standards, the Government's view is that if legal and ethical safeguards are met, there is no reason at all why on-line pharmacies should not be safe and provide patients with new choices when obtaining their medicines. However, we have made it clear that if additional safeguards prove to be necessary, or if providers of on-line services cannot demonstrate their own quality and security of service, we shall work with the professions and patient groups to introduce further controls. We have not taken any decision as to whether such further controls will be needed. We shall have to assess that in the light of our experience, following discussion with patient and professional groups.

In conclusion, we believe that on-line pharmacy services would be useful to a number of people, but we accept that we must ensure that they are provided professionally and safely.

Earl Howe

I thank the Minister for that very fair reply. I particularly endorse the sentiments expressed at the end of his reply. This is obviously an experiment which needs to be kept under review. From what the Minister has said, I am confident that the department will do that. I also share his view that the Royal Pharmaceutical Society will play its part in ensuring that the experiment works as well as we all hope.

Clause 50 agreed to.

Clause 51 agreed to.

Clause 68 [Extension o f prescribing rights]:

Lord Astor of Hever moved Amendment No. 230: Page 71, line 17, at end insert— (9) Before making any order under this section, the Secretary of State shall, after a period of three months beginning with the publication of the draft—

1. (a) consult persons appearing to him appropriate to consult as representing the professions listed in subsection (3)(1A)(a) to (h), and
2. (b) publish a report detailing the results of such consultations and advice given by the relevant Committee of the Medicines Control Agency,

and may lay the draft as published, or with any modifications he considers appropriate, before both Houses of Parliament.

The noble Lord said: This amendment is designed to reassure those organisations which, as a consequence of this Bill, will be provided with prescribing rights. There is no doubt that the extension of prescribing rights to a wide range of health professionals will free up medical practitioners' time, allowing them to deal with other cases and reduce costs in the NHS; and we very much welcome that.

However, some of the relevant health professionals are concerned that the measures, when introduced, may not be appropriate for their specific organisation. Clause 68 only enables legislation. We understand that the Government will not introduce any secondary legislation until an advisory group has been set up under the remit of the Medicines Control Agency.

Before that committee is set up, the importance of reporting and proper consultation with all the health professionals affected, including ensuring that they are fairly represented on the committee, cannot be overstated. I beg to move.

Lord Clement-Jones

The noble Lord has tabled an interesting amendment, particularly in view of the fact that some quite important decisions will have to be made under Clause 68, which we very strongly support. It has long been awaited and represents a very positive move forward. But questions are raised by the professions in this context, and I suspect that consultation will be more than usually important in relation to who will retain clinical responsibility; the independence of prescribing rights; whether those rights are dependent on an existing prescriber or are truly independent; and appropriate safeguards. Strong professional views will be expressed during the process. The noble Lord, Lord Astor of Hever, has raised an important issue in that respect.

6 p.m.

Lord Walton of Detchant

On the face of it, the amendment is very reasonable. I would welcome the opportunity for professionals such as osteopaths, chiropractors, chiropodists, podiatrists and others to be able to prescribe under appropriate circumstances. However, as the noble Lord, Lord Clement-Jones, said, the question of ultimate clinical responsibility is important, as is the definition of the range of drugs that can be prescribed by such individuals. For that reason, the amendment would be a useful addition to the clause and it should be generally welcomed.

Lord Hunt of Kings Heath

I am grateful for the general welcome that has been given to Clause 68. I am sure that Members of the Committee all recognise the work of the noble Baroness, Lady Cumberlege, in developing nurse prescribing some years ago. We are building on that remarkable development.

The amendment is linked to the Government's plans to enable Ministers by order to grant prescribing rights to additional groups of health professionals and to designate new categories of prescriber and the conditions that may be applied to their prescribing. I understand the sentiments that underlie the amendment, but there is already a legal requirement under Section 129(6) of the Medicines Act 1968 to consult organisations that are representative of interests likely to be substantially affected by an order under the Act. In practice, the department and the Medicines Control Agency already consult widely with professional bodies, pharmaceutical organisations, patient groups and NHS organisations. Consultation letters are also routinely published on the Department of Health and MCA websites.

I understand the purpose of the amendment, but I feel that the arrangements that are already in place will be sufficient for consultation. I also have one concern about the amendment, because it would appear to require a three-month standstill period before consultation. I suspect that that would result in an overly long period between the preparation of the draft order and the making of the order.

More generally, my experience is that all the professions and public interest groups involved take an intense interest in extending prescribing rights. There will be no problem in ensuring that we get the views of all the relevant professions.

Lord Clement-Jones

Will the issues that the noble Lord, Lord Walton, and I have raised be the subject of consultation under the duties that the Minister has mentioned?

Lord Hunt of Kings Heath

I expect the consultation to be wide and to encompass a number of issues along the lines that have been raised in the Chamber tonight.

Lord Astor of Hever

I am grateful to the Minister for his response to the amendment and I am comforted by it. We have been contacted by a number of professional organisations. The Minister's point about the legal requirement and the availability of information on the Internet will give them some comfort. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 agreed to.

Clause 52 [Care Trusts where voluntary partnership arrangements]:

The Deputy Chairman of Committees (Lord Geddes)

Before I call Amendment No. 231, I advise the Committee that if it is agreed to, I shall be unable to call Amendments Nos. 232 to 236 because of preemption.

Baroness Barkermoved. Amendment No. 231: Page 53, line 22, leave out subsection (1) and insert— (1) Where

1. (a) one or more Primary Care Trusts, NHS trusts or local authorities are, or are to be, party to any existing or proposed delegation arrangements, and
2. (b) the relevant authority is of the opinion that the establishment of a new body would be likely to promote the proper integration of prescribed health-related functions of a local authority in conjunction with prescribed NHS functions of a Primary Care Trust or NHS trust (in accordance with the arrangements),

the relevant authority may establish a Care Trust.

The noble Baroness said: We now move on to one of the most fascinating aspects of our consideration in Committee—the rather curious beasts called care trusts. Much has been said about them in the NHS Plan. Everybody welcomes the principle behind them, which is that there should be much closer co-operation between health and social services, but nobody knows exactly what they are going to do or how they are going to do it.

When I read the report of the debates in another place, I was struck by the fact that it did not become apparent even to some seasoned Members until half way through the Standing Committee stage that the care trusts would be built on primary care trusts. Many issues need to be brought out in our discussions today. The amendment, together with Amendments Nos. 232 and 234, starts that process.

The Explanatory Notes say that care trusts will be partnerships between local authorities and the NTIS. The purpose of the amendments is to establish whether it would be possible for a local authority rather than an NHS body to become a care trust. The thrust of most of the rest of the Bill appears to be that only NHS bodies can do so.

A number of very good partnerships have been developed under Section 31 of the Health Act 1999, featuring voluntary arrangements with pooled budgets, lead commissioning and integrated delivery, particularly on developing services for learning disabilities. The amendments would extend the opportunities for that work. A number of local authorities have developed very high standards of practice for dealing with social care. It would seem wrong not to enable such arrangements to go forward under the new designation of care trusts. I should like to hear the Minister's comments on that interesting proposal. I beg to move.

Lord Hunt of Kings Heath

I thank the noble Baroness for her remarks about partnership arrangements. I agree that they have been very successful. I was interested that she mentioned learning disabilities, because that issue is apposite to the White Paper that we published on Tuesday and some good partnership arrangements are being developed around the country. Care trusts are all about building on that success and ensuring that when arrangements are not so successful, we have avenues to ensure that partnerships get off the ground. I am sure that we shall deal with that later in our debates on care trusts.

The trusts are about partnership and ensuring that it happens in the context of an NHS body. The clauses have been written so that we can make that possible for NHS trusts and primary care trusts, although the new organisations will have a new name—care trusts—to demonstrate their integration. They are mainly about voluntary agreements made locally. They will be set up through those means and, where necessary, dissolved by local agreement.

The aim is to develop new organisations without proliferation, building on what we already have. Most importantly, they build on joint working and flexibility. The department has been notified of more than 40 schemes, with £300 million allocated to them. I believe that that provides a sense of the impact that it is already having.

We want to continue to encourage the use of partnership agreements. We accept that the lead will be taken by different agencies—both local authorities and NHS bodies—in different parts of the country. Care trusts are not the only route that we envisage for the development of the scheme in the future. They are but one option. That is why I have reservations about the amendments that have been put forward tonight. Amendment No. 231 would also require that we establish entirely new and additional stand-alone organisations into which services would be delegated from NHS bodies and local authorities.

We have made it clear that the key building block for care trusts will be NHS bodies formed out of NHS trusts and primary care trusts. However, where appropriate NHS bodies can delegate more services to local authorities using existing Health Act flexibilities, we shall be entirely happy and shall wish to see that take place. Therefore, care trusts do not provide the only route, and it is not the case that the only route down which one can go is an NHS-type body. We are also anxious to encourage local authority leadership through existing partnership arrangements.

I turn to Amendments Nos. 232 and 234. So far as concerns local government, the governance arrangements are already in place with the statutory responsibility of the local authority. The problem is that, if the Health Act partnership arrangement is led from an NHS body, it cannot alter its governance to take account of the additional services. Therefore, appointments from local government cannot be made in the way that we would wish.

The Bill enables us to provide proper governance for partnership arrangements where the NHS is the lead body. In relation to local government, where, as I said, we are anxious to encourage more partnership schemes led by local government, a similar issue concerning governance arrangements does not arise.

That is why we are following this route and why I do not believe that the amendments suggested by the noble Baroness are necessary.

Lord Clement-Jones

Perhaps I may ask the Minister a quick question. Personally, I was heartened by the points that he made in relation to the lead that will be taken by different agencies and the fact that care trusts are not the only route. However, in that case, why follow the compulsion route in Clause 53?

Lord Hunt of Kings Heath

Compulsion does not apply only to care trusts; it applies to the whole partnership arrangement. The compulsion, as the noble Lord rather graphically describes it, in Clause 53 is for the—I am sure, rare—occurrences where it is apparent that partnership is simply not taking place and where, as a result, poor quality services are being provided. In certain circumstances, the Secretary of State will wish to have the opportunity to direct partnership act arrangements. However, they do not have to be trusts.

Lord Clement-Jones

I thank the Minister for that reply, which was helpful. However, the other question which arises is: will not care trusts inevitably be the model on which the delivery of services ultimately is based? In a sense, the use of the mechanism will become a pattern. I understand that the Minister says that, by definition, because of the way in which the department conceives of the scheme, they are NHS-founded bodies because they are based on primary care trusts.

However, would it not be better to conceive of something that effectively was the essence of partnership? One could give that label to partnership and that, therefore, could give rise to a care trust through a joint initiative. Thus, there would be joint governance. It seems that the department is missing a trick by defining care trusts as, in a sense, the sole NHS creature and by then bringing on board local government services. That does not seem to be in the spirit of partnership, which otherwise it could have been.

6.15 p.m.

Lord Hunt of Kings Heath

I believe that two points arise here. First, by making it clear that there are different options and that care trusts are not the only option to be used, I believe that we are showing that we are not seeking to force a particular path on to local government. Secondly—I do not know whether I can tempt my noble friend to join in on this point—it is clear that a number of local authorities are attracted by the care trust mechanism. However, at the end of the day, it is a voluntary mechanism and the arrangements will need to be worked out locally. If local authorities do not consider that it is appropriate, they do not have to go down that route.

Baroness Barker

I did not find the Minister's argument terribly convincing. I still do not see why these have to be primarily NHS bodies and why their governance must be within the NHS. The Minister said that care trusts are not the only option. In approximately five years' time, I shall look again at that statement in the light of what takes place. I shall be very surprised if other arrangements are still in existence.

The Minister makes a good point in relation to local authorities being attracted by the proposal. I believe that they are attracted by the potential for getting their hands near resources which currently are limited to the NHS. I am not so sure that they are attracted by the Government's arrangements. I understand that the Government—

Lord Smith of Leigh

Resources are always attractive to local authorities. However, essentially local authorities are attracted by achieving the best for the service users. We all want to see the delivery of proper, joined-up services, and that is what will attract local authorities.

Baroness Barker

I accept the noble Lord's point. However, I remain unconvinced about governance arrangements where there is a clear potential for the NHS to be a pre-eminent partner. Therefore, with some reluctance, I beg leave to withdraw my amendment, but I thank the Minister for his answer.

Amendment, by leave, withdrawn.

[Amendment No. 232 not moved.]

Baroness Barker moved Amendment No. 233: Page 53, line 25, after "authority" insert ", after consultation with other expert health and social services bodies,".

The noble Baroness said: I spoke earlier about the degree of anticipation in relation to care trusts. I believe that the number of amendments in this grouping, and the questions that lie behind them, reflects much of the anxiety about the proposals from the Government in relation to care trusts.

The emphasis of this group of amendments concerns consultation—that is, consultation not only with local authorities but also with users and those who are likely to be service users. At present, the extent to which proposals to initiate care trusts will be subject to widespread consultation is not clear. I hesitate to say this but, given the background to this matter, where some NHS bodies do not have a great track history on consultation, particularly with voluntary groups, I believe that it is necessary to be specific about the method of consultation and about those who have the right to be involved.

I take the Minister back to the creation and reorganisation of certain NHS trusts in the past. Some did not demonstrate a great deal of involvement with those who ultimately would be users. That is the gist of the amendments. I invite Members of the Committee to go further than I have done in probing the Minister's intention about the degree of consultation and involvement of all parts of the community that will take place. I beg to move.

Lord Hunt of Kings Heath

I take it that this group of amendments has been ungrouped.

Earl Howe

I do apologise. I shall speak to those amendments in the group that appear in my name; that is, Amendments Nos. 237, 241 and 249. They are designed to achieve much the same result as those to which the noble Baroness has just spoken. I agree with her; it is disappointing that there is so little provision for consultation in the Bill and particularly disappointing that such provisions have been omitted from the clause.

One hardly needs to spell out the reasons why consultation before setting up care trusts is so important. The main and most obvious reason is that care trusts, whenever and wherever they are proposed, represent uncharted territory for participants. Parties will be in no doubt that by coming together they face formidable adjustments not simply in terms of the shift in statutory responsibilities but also logistically in terms of staff, money and information systems. There will also be adjustments in the union of two very different cultures. Those involved have to be confident that such adjustments are manageable. Everyone needs to be certain that there are clear-cut advantages in moving to care trust status.

The provisions have significant implications for local government in particular. Although Ministers speak in terms of a delegation of responsibilities, many believe that the transfer of a key set of local government functions involves a dilution of accountability to local people. Local people must feel empowered both through the ballot box and day to day as service users.

There is uncertainty surrounding the Government's arrangements for care trusts, which we shall debate later. It is not clear to me how a change in the control of a local authority will translate into a change in direction at care trust level, should such a change be sought. We debated the fragmentation of the role of CHCs when we discussed earlier amendments. I hope that the new arrangements for patient empowerment recognise the need to have clear pathways for service users who wish to make a complaint. That requires a mechanism with a public profile that does not shunt such service users from pillar to post as they try to find the responsible department.

Perhaps I should also speak briefly to those amendments of mine that relate to Clause 53 and which are in this group of amendments. As the noble Baroness said, Clause 53 will enable the Secretary of State to force a care trust into existence against the wishes of either of the parties to it. That concept immediately raises questions about the workability of such a care trust. It is hard to envisage on the one hand a partnership, which has connotations of good will and voluntary co-operation, and, on the other, an arrangement that is forced on the parties from the outside. There is something inherently contradictory about that.

One point on which we may all agree is that whatever is or is not done by the Secretary of State in this context, the aim must always be the good of the patient. Care trusts are all about delivering effective and efficient services. I go so far with the Government as to say that if it is necessary to ruffle a few feathers in the process of moving to a better delivery of service, so be it. However, if the aim is the good of the patient, it follows that patients should have the opportunity to sign up to the arrangements that Clause 53 will put in place. That is why it is essential, as Amendments Nos. 254, 257 and 258 make clear, that whichever patients' organisations are in existence when these provisions come into force, those organisations should be consulted on the proposed use of the Secretary of State's powers of direction. The Secretary of State may judge that there has been a failure to deliver adequate services locally and, on that basis, decide to force a local authority to surrender its functions to him. That would be an extremely serious matter on which patients' representative bodies should have a right to comment.

Lord Clement-Jones

I want briefly to back up the comments of my noble friend Lady Barker and the noble Earl, Lord Howe, on this group of amendments. I also want to discuss Amendment No. 233.

On the proposals relating to care trusts, I am most concerned about the provisions involving compulsion in Clause 53. That raises the issue of "failing". I cannot see a definition of that word, which is highly subjective. The intention of Amendment No. 233 is to introduce a rather less subjective provision; it involves consultation with other expert health and social services bodies. One could choose from a range of bodies in this context, including CHI, the Social Services Inspectorate, NICE and the Audit Commission. I am sure that other noble Lords could propose other bodies. All of those bodies have at least one thing in common; namely, that they would have reported on and reviewed whether a body was not performing as it should, and they would have made a clear statement to that effect. That would give some assurance that the powers would not be used arbitrarily. I am not a fan of the clause, but if it is going to operate, it needs such a safeguard.

Baroness Cumberlege

I inform the Minister that Mrs Archibald would be very pleased with the clauses—she would be delighted that there was a care trust in the offing.

All of us should agree that it is right for health and social care to be brought closer together. To digress for a moment, I chaired the Brighton health authority for five years, where we ran hospitals and community services. We were probably acting illegally—I do not think that there were any provisions at that time that enabled us to do so. We devolved our budgets to the patch teams of social workers and to the neighbourhood nursing team in a given area. It was magical—the results were absolutely amazing. We delegated revenue budgets and capital assets. The first thing that the group did was to bulldoze a residential home that was long out of date and contained 64 beds that smelt to high heaven. In its place, we built a nursing home and some housing association sheltered housing. The impact was amazing and its effect on Brighton General Hospital was incredible, in that very few people were admitted—they were contained in the local community instead. I am a strong advocate of such an approach.

I went back about 10 years after I had left Brighton and found that the whole scheme had folded and that the system had gone backwards and towards what it had been previously. I sought to find out why that had happened. The scheme folded because the champions had left and budgets had been tightly squeezed. That contains some lessons for us in this context.

I am in favour of the proposed approach but some difficult issues have to be teased out to get social services, local authorities, health authorities and NHS trusts to work together. There is a rumour in the health service—the Minister may not be aware of this—that the Government are already setting targets and that they have decided on the number of care trusts that they want by next year. The rumour is that they want at least one.

I have done much work on current developments in joint services. I have studied three areas in this country and I am enormously impressed by what is going on without care trusts and through other mechanisms, as Members of the Committee have mentioned. A plea that comes to me from the service is, "Please do not make us run before we can walk". We must assess whether we have a shared philosophy and clear principles about what we should achieve. We have to ensure that the outcomes are clear, achievable and agreed. The governance, about which I have serious reservations, needs to be clear and efficient. The finance needs to be set in a framework that is agreed by everybody. Local government is nervous that the money that is set aside for care trusts will be siphoned off to acute services. We are already seeing that happening with primary care trusts and patient care groups.

An important issue involves charges. There are free services in the NHS and charges in social services. There must be an opportunity for organisational development and training, and we must iron out, or at least understand, some of the cultural differences that exist. We are considering two organisations with different histories, different accountabilities and different cultures. Neither is right or wrong; they both have strengths. Bringing them together is a huge challenge. There need to be robust relationships, based on trust. I am sure that the Minister will know the area in the West Midlands, to which I am referring, where huge strides are being made. The schemes have been built over 10 years and there is enormous trust between both bodies. It is interesting that those who pioneered them are still there 10 years later. That is quite unusual, especially in the health service, where people gyrate round at an alarming rate.

However willing the spirit, the mechanisms are complicated. It is essential that they are worked through with clarity. I have been reading Care Trusts—emerging framework, which was produced by the Department. Interestingly, paragraph 3 states: The policy is being developed as the detailed issues emerge and are considered. I am surprised at that and find it worrying. The Government must decide their basic policy before those involved in the field can respond. Of course, it is right that the people concerned should be involved in the details about mechanisms, and so on, but it behoves the Government to decide their policy before asking Parliament to agree to legislation. It is policy being made on the hoof, which is worrying.

Paragraph 7 of the document states: Care trusts can only succeed where partners are fully committed to, and can influence the direction of the new organisation. I agree with that, which is why I am so concerned about the power being given to the Secretary of State. I have listened to the Minister, who says that there can be other mechanisms besides the care trusts. Surely we have learnt that when a scheme is voluntary, it is much more likely to succeed. I know that the present Government had reservations about GP fundholding, but it was a voluntary scheme, which had great strengths. PMS pilots, which were also introduced by the previous Government, have proved to be a success. People are building on that voluntary scheme. I do not understand how the Secretary of State can think that by forcing two bodies together and forcing a shotgun marriage to take place that will work.

The report continues: Care trusts will be a partnership between the NHS and the local council". On governance, it states: The Government is considering how the board can best be constituted given the different streams of accountability … Care trusts will also need to be accountable to the users of their services, and will have representation from the Patients' Forums and the Patients' Advisory and Liaison services. It continues: Links with user groups, citizen's panels etc will need to be made". Local authority scrutiny committees will also be involved. I wonder how that board will look—it will comprise councillors, NHS people, and so on. I am afraid that it will be not a board, but a conference. So many people will be chattering away, without decisions being made. There needs to be much more clarity about that issue. I can see the scrutiny committees being mischief makers if, for example, there are one or two disaffected councillors who think that their budgets are being eroded.

I agree with the principle, but I do not think that the Government have thought through the issue. It behoves them to set out their policy clearly before bringing it to Parliament.

6.30 p.m.

Lord Clement-Jones

I take this opportunity to inform the Minister, so that he does not have to rifle through his notes, that I was speaking earlier to Amendment No. 253, which appears in a later grouping.

Lord Hunt of Kings Heath

It is clear that we would have enjoyed a general debate about care trusts before going on to the specific amendments. I know that some of the substantive points that have been made will come up in later amendments.

I shall respond to some of the key points, especially those raised by the noble Baroness, Lady Cumberlege. I assure her that Mrs Archibald has been very much in the minds of the Department of Health since our debate on Monday. If she were living in Brighton, she could enjoy some of the services that have been developed there. As the noble Baroness knows, Brighton was the forerunner of patient advocacy and liaison services, and it deserves congratulation on having the courage to pioneer it. I agree with the noble Baroness that success in the health and social care field is dependent on having champions who have the guts and leadership to stick with it and change things.

Rumours in the health service are generally to be avoided. I agree that the policy will not work unless there is enthusiastic ownership by the health services and local government. Surely that is the answer to concerns about targets. Unless both partners are willing to go into it, it will not happen.

We shall come to issues of governance and accountability. They are important, but the parties interested in evolving into care trusts must understand the rules of the game at the start, so that arguments can be sorted out in the beginning, rather than being confronted during the process. On cultural differences, I have always accepted that the nursing and medical model and the social care model have not always coexisted effectively.

Like the noble Baroness, I am really encouraged by what has happened in the past few years on the partnership between health and local government. There have been enormous improvements. I always quote the example of our winter planning this winter. I do not believe that we would have withstood the pressures on the health service unless we had the wholehearted support of local government and social services. I am optimistic that there has been a. sea change in attitudes, which will come through in care trusts, enabling us to deal with cultural differences.

I am not sure that I agree with the noble Baroness on the need to set out the rules at the beginning. At the development stage, we need to be open to ideas, and we need to be informed by health and local authorities, so that we get it as right as we possibly can.

On the issue of the amendments before the Committee, I was disappointed by the remarks of the noble Baroness, Lady Barker, when she referred to the record on NHS consultation, particularly in relation to voluntary organisations. The NHS Confederation once produced a very good book on NHS voluntary organisation relationships which I would commend to her because, again, I believe that we need to encourage the NHS to work much more closely with voluntary organisations. One way to do that is through Clause 11, which imposes a new duty on the NHS to involve and consult patients and their representatives.

I am absolutely certain that in care trusts, with their patients' forums and representation from voluntary organisations, unlike with community health councils, there will be people from voluntary organisations who are able to have access to the leadership of that care trust. I am sure that that will be an enormous enhancement of that dialogue.

I want to assure the Committee that we shall set out consultation arrangements in regulations and directions so that all stakeholders will be able to take an active part in developing proposals for voluntary and, indeed, direct care trusts. I will come back to that when we debate it later.

Like a number of other amendments which have been tabled in relation to consultation, I never think that it is helpful to set out on the face of the Bill those organisations which must be consulted. We know that when those organisations are listed, others are bound to be missed off. It is important for me to make it absolutely clear that there will be full consultation. We propose that through the regulations under Clause 52(7) and (8) and Clause 53(7), which deal with conditions which must be satisfied before an application can be made, we shall ensure that that guarantees effective consultation.

Perhaps I may comment on the wording of some of the amendments. They have tended to focus on patients. Obviously patients' views are important but we need to go wider than that. We need to embrace professionals, employees and other private and healthcare providers.

I hope that I have assured the Committee that consultation will be an integral part of the process by which care trusts are created.

Lord Clement-Jones

Was the Minister speaking in the context of both Clauses 52 and 53?

Lord Hunt of Kings Heath

The noble Lord is constantly charging on to Clause 53 before we reach it. Obviously arrangements would be different under the directed model because there might be a need to act more quickly than in relation to arrangements under a voluntary trust. But we should not want to establish directed trusts at the expense of proper consultation.

Baroness Barker

I, too, am in something of a dilemma. I believe that we should have had a general and wide-ranging debate on care trusts. I signal my intention to raise more general questions once we have debated Clause 52. I take the point raised by the noble Baroness, Lady Cumberlege, that not only is it difficult to see what the Government's policy is but it is also very difficult to question that policy. Some of us came prepared this evening to listen to explanations from the Minister and to ask him a series of questions thereafter.

However, I take the point that the Minister made about consultation. It is quite clear that consultation and standards of consultation vary. The process of consultation has become significantly devalued in the minds of users, particularly since it first became prevalent following the passage of the National Health Service and Community Care Act. There is a real need to restore the confidence of users in consultation. That is probably the motivation behind some of the amendments which have been tabled this evening.

However, I take the Minister at his word that regulations will cover those matters. I believe that eventually we shall have a parliamentary Session which deals with nothing but regulations and there will be no Bills whatever. We shall be kept very busy just discussing regulations for about seven months. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 234 to 236 not moved.]

The Deputy Chairman of Committees

I must advise the Committee that if Amendment No. 237 is agreed to, I cannot call Amendment No. 238 because of preemption.

[Amendment No. 237 not moved.]

[Amendment No. 238 not moved.]

6.45 p.m.

Lord Smith of Leigh moved Amendment No. 239: Page 53, line 32, at end insert— ( ) Regulations issued about governance arrangements for Care Trusts shall reflect their partnership nature, as between health bodies and local authorities.

The noble Lord said: In moving this amendment, I must remind the Committee of my interest as leader of a local council. I should like to say how much I agree with what the noble Baroness, Lady Cumberlege, said about the difficulties of setting up care trusts.

However, I believe that there is a principle here, which is that patients should come first. The service should be designed to meet the interests of patients rather than the interests of the organisations. We understand the difference in culture between local authorities and health authorities, but we need to go over that, and that is what care trusts need to do.

Care trusts are bound by their nature to be complex beasts. They need to reflect local circumstances and, indeed, local needs. They may involve primary care trusts, singly or severally, acute hospital trusts as well as local authorities. The degree of involvement may vary according to the nature of the service going into the care trust. So if it is a care trust which deals largely with services for the elderly, it would be a somewhat different configuration from that which deals with people with mental health problems, and so on.

Therefore, the arrangements need a certain amount of flexibility, and in this case I believe that the Government are right not to try to put on the face of the Bill the detail of the arrangements because there will be different solutions to meet those particular circumstances. In other words, I believe that we can be too prescriptive. I understand and share some of the concerns raised by the later amendments, in particular Amendment No. 247. However, I do not think that we should, for example, stipulate that 50 per cent of the appointments must be local authority members. That may not be appropriate if a particular service was not provided in that way in the past.

As regards governance, we were somewhat reassured by what the Minister said on Second Reading when he referred to a partnership of equals, but there remains a considerable amount of anxiety about governance in the local authority world. The Minister has received letters from the ADSS, the LGA and Unison, to name just a few. Those concerns are not just about status within the new arrangements but they are concerns about confidence and trust, as the noble Baroness, Lady Cumberlege, said, and the effectiveness of those new care trusts.

If there are to be real partnerships, there needs to be confidence on the part of all the players involved. Each of the bodies has ongoing accountability for the services which it starts to have responsibility for. Local authorities will have to have confidence in the quality and availability of the social care element going into the care trust. There is accountability to the Department of Health and, as the noble Baroness mentioned, to local service users. We need to be accountable downwards as well as upwards. That is very important.

As the noble Baroness also mentioned, we need to be concerned about the relative priority given to social care against more acute medical care, which may get priority.

Securing confidence needs to be done at two levels. The first is at board level. We need to make sure that local authority appointments to the board enjoy the confidence of the local authorities which they represent. They need to have the right both to appoint and then, for whatever reason, to change too. That is important at board level.

At operational level, there needs to be an equal contribution from professionals on both sides. I need to remind the Committee that the benefits of local authority involvement means that it is not just social services which are coming on board, although that will clearly be the main element; but there is wider access to local authority services. Those may be housing, leisure services and, if we believe in lifelong learning, it may be education too. The local authority needs to be able to manage the arrangements by which these wider services are brought in. However, perhaps I may remind my noble friend that the key issue is having the confidence of all sides to enter the partnership. I believe that such a partnership can deliver the objectives which I share with the Government. It can deliver the best quality services for patients and service users. If we are to have this partnership of equals, we need to be careful about the governance arrangements and ensure that partners feel that they are fully part of it. I beg to move.

Baroness Masham of Ilton

Can the Minister give an assurance that bringing in care trusts will not be an inroad for means-testing people who need services? Some people are suspicious because, at present, social services use means tests while health services are free. Will patients be worse off?

Baroness Barker

I should like to speak to Amendments Nos. 245, 246, and 247 in this group. I echo most of what has been said about the reasons behind the amendments. I do not believe that this is a question of status. Those who have been involved before in some of the joint working arrangements with health have a real and genuine concern that these partnerships should be partnerships of equals. That is a matter to which we need to pay particular attention.

The noble Baroness, Lady Cumberlege, talked about two different cultures coming together. However, I think that this issue involves more than that. There are two different approaches to working; two different bodies of knowledge, history and legislation are coming together. Last year I had the pleasure of working with a PCG to discuss its clinical governance arrangements for vulnerable older people. Those of us who were not from the health service spent two-and-a-half hours trying to explain to doctors that not all older people are patients; that they would not want to be called patients, and would not be overjoyed at the prospect of being put on an "at risk" register. That was a wonderful evocation of how we came from different experiences and almost spoke a different language.

I want to concentrate on some of the questions which follow from the comments of the noble Lord about social services being part of the new arrangements. As I have said, so far, legislation has been very different. We need to be concerned that care trusts will work to social services legislation, which governs a great deal of what happens to vulnerable people. I refer to matters such as the Gloucestershire case, the Sefton cases and so on. Perhaps I may ask the Minister what measures will be put in place to ensure that care trusts not only follow that but follow the guidance from case law as it develops for social services.

An interesting question is this: how will care trusts link with other services, such as those for disabled children and adults under 16? Older people do not live in isolation; they have families with whom they are in touch. How is it envisaged that the expertise of social service departments in holistic assessments, not only of users but of carers, will work their way into the care trusts? Perhaps that is more important than the governance arrangements. However, I understand the fear on the part of local government, particularly those which have not had good experiences of working with the NHS before, of how things will work out in practice.

Earl Howe

I should like to speak briefly to Amendment No. 245. The noble Lord, Lord Smith, and the noble Baroness, Lady Barker, got to the heart of a matter which continues to generate a deal of concern and uncertainty, both in local government and the NHS. I find that the same questions are being asked everywhere: to whom will care trusts be accountable; through what precise mechanisms; who will control care trusts; will each one be different in this sense or will the regulations safeguard each party from being railroaded by the other? There is a fear that however much a care trust may be the result of a voluntary arrangement, and despite the Minister's assurances at Second Reading, there is scope further down the track for a hostile take-over.

In the department's recently published document, Care Trusts—emerging framework, referred to by my noble friend Lady Cumberlege a few moments ago, the extent of the work still to be done on the question of governance is all too painfully apparent. The document states: A governance framework is being developed". It goes on, The Government is considering how the board can best be constituted". Those sentences do not exactly suggest a clear sense of direction. If the Minister is in a position to enlighten us now on the detail of the Government's arrangements, the structure of the board, its balance and functions, that would be welcome.

Like my noble friend Lady Cumberlege, I feel positive about the principle of care trusts but there are sceptics out there—not just for the reasons to which my noble friend referred but because many people wonder what extra benefits care trusts can achieve on top of what can already be done under the Health Act flexibilities.

Perhaps I may conclude by asking the Minister a question. Clauses 52(3) and 53(5) read together suggest that a care trust may also take on health-related local authority functions outside the area covered by the PCT or NHS trust which has been redesignated a care trust. Indeed, those subsections would seem to imply that a care trust designated from a PCT or NHS trust in the area of one local authority might be able to take on the health-related local authority functions of part or the whole of an adjacent local authority area. It is difficult to square that prospect with notions of local accountability for local services or the policy intention to enhance collaborative working. It would do the exact opposite. I wonder whether the Minister could comment.

Baroness Barker

Perhaps I may ask a question on the point made by the noble Earl, Lord Howe. Let us suppose that a patient is under a GP who is within a care trust area which has been agreed between the NHS body and a local authority. Let us also suppose that the patient lives in a different local authority— some PCTs cover more than one local authority area— which is not yet part of a care trust but which uses pooled budget arrangements with its own PCT. Will that person receive social care from the care trust or the local authority where he or she lives, which is out of the pooled budget area? My question concerns non-coterminous boundaries.

Lord Hunt of Kings Heath

Perhaps I may say to the noble Baroness, Lady Masham, that this is not a way of extending the means test or, indeed, of cost shift between the two parties to any care trust arrangement. We may discuss this in more detail on a later amendment.

I refer to the comments of my noble friend Lord Smith. I know that in Wigan there is a strong partnership between the NHS and local government. I believe that they are keen to take forward the concept of care trusts. That is encouraging in terms of what we are likely to achieve in future. I accept the points raised by the noble Baroness, Lady Barker. Asking two cultures to work together will not always be easy. We know that the medical model and the social care model can be different. However, we also know that there is much to be gained if this can be pulled together. If we can teach doctors to regard people as individuals and not just patients, that surely is an example. I am sure that the NHS can help to teach people in social services about some of the advantages of the way the NHS works.

The great beauty of care trusts is trying to ensure that everything is pulled together. As regards social services legislation, the care trust will have responsibilities delegated to it by the local authority. As regards performance assessment the social services inspectorate will be as involved in those services as it would be if the services were run directly by the local authority. As regards performance assessment, the social services inspectorate will be as involved in those services as though they were run directly by the local authority.

7 p.m.

Baroness Barker

Will the performance indicators used be those of the NHS or the LGA or will there be pew joint performance indicators?

Lord Hunt of Kings Heath

Some of the detail of performance management has still to be sorted out. I would consider that common sense indicates that if one is talking NHS services, one may use its performance indicators. If they are services which can be directly identified with the social services, its performance framework would be applicable. I do not believe that we should become too hung up on that. Equally, in performance management generally, we need to make sure that care trusts are not affected by too many different approaches to performance management. Given that the Department of Health is responsible for both health and social services, it should not be beyond the bounds of possibility for us to ensure that we achieve that.

I take u p the issue of boundaries which the noble Earl, Lord Howe, raised. There is no doubt that flexibility will be required to cope with different populations covered by local authorities and the NHS. For instance, care trusts may have responsibility for local authority health-related functions only for some sections of the population. We will need some flexibility in the arrangements in order to make sure that the public do not hit some kind of bureaucratic barrier which prevents them from receiving the services they need.

The noble Earl raised the issue of the department developing its policy in these areas. Given that it is a very new concept which involves different statutory organisations, there is a great deal of benefit in working through the policies in co-operation with and with co-ordination with the NHS and local government. That is what we are seeking to do.

As regards governance, we are working with the LGA to ensure that the regulations demonstrate the proper concerns that all the functions which care trusts take on are reflected in the governance arrangements. I can assure the noble Earl that we are not looking for a one-size-fits-all for care trusts. We do not want to be tied into a situation where the numbers of people for health and local government are fixed. That may look like equality but I doubt whether it would meet the needs of individual care trusts. We are looking for a framework in which local partners can agree and propose a locally-negotiated agreement, with the number of executive and non-executive officers being determined within the context of that framework.

So again taking a leaf from the noble Earl's book, we do not want to be prescriptive. We believe that it is about local ownership and negotiation. It very much fits into the voluntary nature of the great majority of the care trusts. We want it to be a partnership of equals, and that is why it is best to leave those matters to he discussed locally as far as we can.

The governance of the care trusts is very important. We want to make sure that the members of the board feel the full spirit of the corporate body. For that reason it makes sense for all non-executive members to go through a similar process of appointment. In that regard, because they are NHS bodies, that will be for the NHS appointments commission. We recognise that local authority members have already been through a selection process of their own, if I may call the ballot box that. So we shall be keen to ensure that the NHS appointments commission does at least the minimum of checks for probity.

We also have to bear in mind that as regards the chair, the Secretary of State must carry out that function in the same way as for all other NHS bodies, through the independent appointments commission, set up expressly to ensure independence. There is a problem that if the local authority is involved in that process we will effectively lose the independence we have sought to develop with the introduction of that commission on 1st April this year.

I agree with Members of the Committee that it is clear that we need a transparent and robust process. I hope that I have answered the points which have been raised. I emphasise in particular that we are keen to have local agreement within whatever kind of framework we set as regards governance arrangements.

Lord Smith of Leigh

I thank the Minister for his response. I welcome the flexibility which he said would be part of the package. He has told us about a partnership of equals. I accept that the independent appointments commission would want to see who the local authority appoints. But for political reasons or the fact the local authority members were not carrying out their duties in terms of being accountable to that authority, there would need to be some ability for the local authority to determine whether a member continues in that role, subject to the appointments commission.

Lord Hunt of Kings Heath

I understand the point that the noble Lord is making. I shall give it consideration.

Lord Smith of Leigh

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 240 to 249 not moved].

Clause 52 agreed to.

Clause 53 [Care Trusts where directed partnership arrangements]:

Earl Howe moved Amendment No. 250: Page 55, line 27, leave out "adequately" and insert "to a significant extent

The noble Earl said: In this amendment I come back to the territory that we covered when considering Clause 20. Clause 53 sets out the circumstances in which the Secretary of State or the Welsh Assembly may use powers of direction to bring about the formation of a care trust. One of the prior conditions of doing that would be that the relevant authority has to be of the opinion that an NHS trust, a PCT or a local authority is not exercising any of its functions adequately. We need a little more substance here. As the clause reads, it could mean that if a local authority failed to exercise any of its health-related social services functions or any other of its functions adequately, the Secretary of State could take the situation in hand and impose a care trust structure. The threshold of failure is not specified. Taking it to an extreme, it could result from a difficulty over a single aspect of an individual service.

The scope for a Secretary of State to impose his will on a local authority or on a NHS trust on the basis of a judgment that he appears not to have to justify seems extraordinarily wide. It cannot be right for the Secretary of State not to allow the failing body every opportunity to put its house in order. There should be a requirement for him to make representations in a conciliatory fashion before invoking his Clause 53 powers. As my amendment states, it should be a sine qua non of invoking the powers that the body was failing in its performance to a significant extent and not in a trivial sense. I very much associate myself with Amendment No. 253 tabled by the Liberal Democrat Benches. I wish I had added my name to it. I am sure that it would help the Committee if the Minister explained the circumstances in which these powers might be used. Furthermore, I hope that the noble Lord can confirm that their use is likely to be rare.

I am sorry to come back to the same theme, but it is very important for all concerned that the whole process is transparent. The reasons for an intervention should be put in the public domain. The local authority should be given a chance to respond. The Secretary of State's opinion really should be based on an independently prepared statement or report—by whom and by what means is the process triggered of assessing and deciding upon failed performance? How transparent would that all be? I beg to move.

Baroness Barker

This is an important clause. We know the disruption which can take place where a health service comes under major scrutiny. Previously in Committee the noble Baroness, Lady Cumberlege, talked about the Bedford case.

When the care trusts include social care services the potential disruption to vulnerable people will be immense. Members of the Committee on these Benches have tabled amendments to try to make sure that these measures are taken in consultation with local people. If these powers were invoked, someone would have to step in on an interim basis and provide services while matters were sorted out. For those reasons these powers should be used extremely sparingly. That is the main motivation for our amendments.

7.15 p.m.

Lord Hunt of Kings Heath

The background to the clause and the concept of a direct care trust goes back to a theme that is running throughout our debates, which is the responsibility of the Secretary of State to ensure high consistency of service. We know that the history of the NHS and social services is one of extremely patchy provision where we can identify the highest possible quality of service being provided alongside neighbouring authorities providing very poor quality services. We have no reason to apologise for trying as hard as we possibly can to iron out some of these inconsistencies. I am absolutely convinced that our approach is the right one.

I have already talked about earned autonomy— incentivising organisations to do their best. Care trusts are an example of earned autonomy. Those good effective organisations which really want to make partnerships work will probably go down the care trust route as voluntary care trusts.

The other side of the coin is that we must be prepared to intervene where it is clear that organisations are not performing satisfactorily. I see the directed care trusts being part of the philosophical approach.

What do we mean by the word "inadequate"? If one says that a person or organisation is inadequate that is a fairly serious allegation. Inadequate means that services are failing. Failure will normally be identified through the mechanisms that are in place— inspections, reviews and joint reviews, as well as the robust performance assessment process in local government and the performance management process in the NHS. We have in place agreements about when an inspection or a review has identified weaknesses in services.

Once a review of the inspection report has been confirmed, action plans are agreed and appropriate monitoring processes are put in place which can measure whether improvements are being made. If they are not, in the case of social services, a direction can be made which identifies the statutory duties to be met. Although in the NHS the triggering mechanisms may be different, the response —the production of recovery plans—is similar.

We are not using the word "inadequate" lightly. It is perfectly possible to be exercising services to a significant extent, but doing so poorly. In these circumstances we would not be able to address failure, which is an unacceptable situation.

Noble Lords are once again challenging me to describe in graphic detail where and when we might intervene. The reality is that we can all think of cases where local agencies have failed effectively to provide services which could be provided much better under one management or through one pooled budget. We know of examples where there is just poor coordination between acute, community and social service departments: for example, where an NHS body fails to provide adequate services to a client group such as older people, which then has a very difficult impact on social services authorities. One could have a situation where an NHS trust provides poor quality and inappropriate services to people with learning disabilities. There are well-documented cases of local authorities which are definitely failing where there has had to be intervention.

I want to assure noble Lords that the power in the clause will not be used lightly or frequently. However, it gives us an opportunity to act when other methods are not appropriate. This is a power of last resort, to be used where delegating a function to another body would make a positive change and allow the staff and the services to start again on a new lease of life.

The hallmark of care trusts is flexibility. I believe that the ability for the Secretary of State to direct in those cases where it is clear that partnership arrangements either will not be set up or are not working is one tool in our general armoury of improving services. But it will be used sparingly. The overall thrust of care trusts is to encourage a voluntary coming together by health and local governments.

Baroness Masham of Ilton

Perhaps I may ask the Minister who will actually do the inspections? Also, one of the problems of social services and health services working together is the problem of finding convenient times to have joint meetings.

Lord Hunt of Kings Heath

I know that in the mythology of health and social care, organizing meetings involving GPs and social workers has sometimes proved to be difficult. We need to work at that real problem.

In relation to inspections, it is fairly clear that one has inspections through the National Health Service in our performance management regime, the Commission for Health Improvement, and so on. In local government one has the Social Services Inspectorate and all its mechanisms. Clearly in a care trust one is talking about services provided both under the NHS and social service legislation. Therefore, one needs a co-ordinated approach to perform assessment and inspection.

The challenge, which I accept, is for us to ensure that that is a co-ordinated approach rather than the duplication of effort. Clearly we must avoid that.

Lord Smith of Leigh

I share the view of my noble friend that it will be unacceptable for either party to fail. Some clients may not have a second chance if they are let down by these services. For that reason, a directed care trust may be the solution.

I take the important point made by the noble Baroness, Lady Cumberlege, during her remarks. If one of the parties is not performing well, there will be an interregnum before the directed care trust can be established. During that time, services will remain inadequate. The Committee needs to be reassured that adequate support mechanisms, whether they are for a local authority or a health authority which is failing, will be in place. Thus, when the directed care trust is then set up, it will be in a position to meet the needs of service users.

Lord Hunt of Kings Heath

My noble friend has made a fair point. I agree that one cannot simply come along and say, "That one has got to become a directed care trust". Clearly, proper processes of decision-making must be followed, which would involve, in all cases bar those in which a dire situation had developed, adequate levels of consultation. Of course I accept that in the circumstances of what might be described as a shotgun marriage, it would be necessary to ensure that adequate support was made available for the staff who would have to make the new care trust operate.

Earl Howe

I welcome the Minister's assurance that this power will not be used lightly and that it is to be regarded as a power of last resort. I am interested in his interpretation of the word "adequately". He felt that the word "inadequate" meant something serious and I am glad he feels that it does carries that meaning. However, I am not sure that in everyone's eyes "inadequate" suggests a considerable degree of seriousness. Nevertheless, the noble Lord's point was reassuring, at least in part.

My difficulty here is that I do not believe that we have moved much further forward in our understanding of how these powers might be used in practice. I realise that it is difficult for the Minister simply to conjure up hypothetical examples, but it would have been helpful if the Committee had been offered a more graphic understanding of what this will involve.

Lord Hunt of Kings Heath

I am grateful to the noble Earl for giving way. It is always difficult to cite the "what ifs?". Where I would envisage this power being utilised is where there is clear evidence that a service is inadequate—I confirm that I believe that that word suggests a serious matter—and that, despite intervention and help, things are not getting any better; namely, that the nature of the difficulties make it clear that one of the problems in the service provision stems from the fact that the agencies, at the local level, are simply not working well together. In those circumstances, based on the kind of reporting mechanisms we have established, the clear failure of local leadership to be able to provide remedies would indicate the kind of conditions where one might wish to direct a care trust approach.

Earl Howe

I am grateful to the noble Lord for his helpful intervention. There are formidable problems involved in the whole idea of bringing people together who may be reluctant partners. Indeed, I shall raise this again when, with the permission of the Committee, we have a general debate on clause stand part. Nevertheless, doubtless the Department of Health and the Secretary of State will approach such an operation with their eyes open and so one hopes for the best. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 251 to 255 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 256: Page 56, line 13, at end insert "within that

The noble Lord said: This is a technical amendment which clarifies that a care trust can provide social services across a local authority area or to any part of the area covered by a local authority. I beg to move.

[Amendments Nos. 257 and 258 not moved.]

On Question, Whether Clause 53, as amended, shall stand part of the Bill?

Baroness Barker

It is evident from our debates on the amendments to this clause that there are a great many misgivings about the circumstances in which a directed care trust may be formed. I shall refer back to some of the questions put by the noble Baroness, Lady Cumberlege, on Clause 20. Exactly what are the conditions under which the Secretary of State would make an intervention? I believe that it is important for those who will try to make a success of care trusts to have a clear understanding of that right from the beginning.

Despite the reassurances given by the Minister today, a great deal of the detail of exactly how care trusts are going to work is still missing and it is extremely difficult to form a complete picture. How will the relationship between health and social services work? The Minister was not pleased when I put a number of detailed questions to him, but I shall ask him one more, because it illustrates some of the potential problems that may arise in both non-directed and directed care trusts.

Under the delegated powers, care trusts will exercise social services functions. One obvious example of the functions which they may take over is that of setting discretionary charges for home care services. I assume that a care trust would collect those charges. Will the calculation of care charges of this kind come under the remit of the care trust or would it remain with the local authority? What accountancy procedures will be put in place? Who will monitor these matters so as to ensure that NHS services are not simply redefined as social care services in order to attract charges? Those issues will come up under this direction.

I believe that insufficient thought has gone into exactly what the Secretary of State will need to deal with under these new powers. I made a point in our earlier deliberations which I believe is equally relevant here: the extent to which social services and health can work together is still of concern because it is not clear. Furthermore, the extent to which they can work together as the result of a direction coming down from above is in even greater doubt.

At this stage, it might be appropriate to paraphrase Woody Allen. He said that the lion and the lamb can lie down together, but the lamb would be well advised to stay awake. I believe that, unless and until we are given a great deal more detail on these proposals, in particular as regards how the directed care trusts are to work, we shall continue to see, not paranoia, but a genuine fear on the part of local authorities about what could be a good working relationship.

Earl Howe

There is perhaps only one point to make about Clause 53 and the noble Baroness, Lady Barker, has made it very well; namely, the idea of partnership imposed by fiat is inherently contradictory and implausible. This is the point in the Bill where the Government have to confront two irreconcilable instincts: the laudable instinct of wanting to see bridges being built and, to my mind, the far less laudable instinct of wanting to dragoon people all over the place.

My right honourable friend Sir George Young observed in another place that it is difficult to see how a care trust can be, at one and the same time, a reward for good behaviour and a punishment for bad behaviour. However, that is the logic of the Government's position. In Clause 53 they are seeking to deal with a situation in which either a health authority or a local authority, or both, does not wish voluntarily to enter into an arrangement. Furthermore, one or perhaps both parties have been failing to perform their functions adequately. That, to put it mildly, is not an auspicious beginning to a marriage.

But there is more to the issue than that. We are dealing with a power to interfere in a major way with local democracy. Clause 53 essentially provides the power to remove a function of a democratically elected body, take control of part of that body's budget, including money generated from local council tax receipts, and allocate the money elsewhere against the express wishes of the body concerned. If ever there was an example of the Government's tendency towards centralism, I put it to the Minister that this is it.

We hear a great deal from Ministers about encouraging voluntary arrangements in terms of local flexibility, devolved decision-making and so on. But. on the other hand, we hear that there are some matters that are just too important in the Government's eyes to be left to chance, and that these may need to be forced on people. Those are diametrically opposed positions, yet Ministers act as if there were no contradiction at all.

There is perhaps another contradiction lurking here. If a PCT or NHS trust is failing in some way, it is quite a leap of faith to suppose that, by becoming a care trust against its wishes, it will all of a sudden cease to fail. It is interesting to recall that during the passage of the Health Act, which introduced the concept of cooperation between health bodies and local authorities and the pooling of budgets, Ministers assured Parliament that there was no question of such cooperative arrangements being forced on either the NHS or local government by ministerial powers of direction. Yet less than two years later exactly such a power is being proposed.

Setting aside the fact that my confidence in ministerial assurances has experienced something of a jolt as a result of this, it would be helpful to know why in such a short time the Government have undergone such a change of heart. The simple truth is that shotgun marriages rarely prosper. Where there is also a blatant undermining of local democracy we need to be very cautious indeed about such a proposition. Frankly, the case for it has not been made.

7.30 p.m.

Baroness Noakes

I support what my noble friend Lord Howe said about the clause being in direct opposition to the provision in Clause 52 dealing with voluntary care trusts. The Minister spoke of an enthusiastic partnership between health and local government as an essential prerequisite. If it is an essential prerequisite for Clause 52, it seems to me that it is equally a prerequisite for Clause 53.

The NHS has had a great deal of experience of working in different kinds of partnership over a number of years. The Minister gave examples, as did my noble friend Lady Cumberlege. The private sector, too, has considerable experience of working in joint venture and partnership mode. The experience in the private sector is that the majority of partnerships and joint ventures fail. They do so for a number of reasons: lack of a shared vision; lack of leadership at the top; lack of a common philosophy; and, importantly, lack of trust. I do not know whether any studies have been done into failures in partnerships in the NHS—and there have been failures—but I should be very surprised if the results were any different.

When we come to Clause 53, we find that the Secretary of State or the relevant authority has the ability to take functions and put them into another body without looking at whether commitment, shared philosophy, joint leadership and trust are in place. If these powers are allowed to stand, we are legislating for failure. All our experience in similar situations tells us that such organisations will fail. For that reason, I do not believe that we should support the clause.

Lord Clement-Jones

I support the weight of opinion expressed so far. I shall be brief—I do not want to alienate the East Anglians among us who have gathered together, several of whom are around me.

The Minister used a variety of reassuring words when he described the way in which the powers will be used. He indicated that they will not be used lightly, that they are powers of last resort, that this clause is one tool in the general armoury and it will be used sparingly. He used metaphor on metaphor. But at the end of the day, there is nothing in the clause that gives us any assurance. I am sure that we all believe in the Minister's intentions, but the Bill is designed to last for a considerable period of time. Without the safeguard of a proper definition of "failing" and without some of the steps set out in the amendments in this group, the clause is seriously flawed. It should not remain part of the Bill unless the department can come up with a far more targeted and more exact definition of "failing".

The Minister came up with language to describe when intervention would take place: when a care trust was not delivering to a particular client group, when there was clear evidence, when agencies were not working together, and so on and so forth. He tried to be more specific. Well, let us put that in the primary legislation. That is the way to do it; then, we could have a compulsory provision, although that is not ideal in any circumstances—I agree with the noble Baroness, Lady Cumberlege, that voluntary arrangements work best, whereas, as the noble Earl, Lord Howe, illustrated, compulsory arrangements start off on completely the wrong foot. It may be necessary to have a fallback, but a fallback of this breadth cannot be acceptable.

Lord Hunt of Kings Heath

Let me say immediately that I share the thoughts of all Members of the Committee as to the desirability of a voluntary arrangement. There is no question about that, particularly if we are talking about two separate cultures, as was mentioned in the debate, coming together and dealing sometimes with intrinsically challenging and difficult problems of pulling services together in a dual accountability arrangement. That is indeed challenging.

Clearly, the great majority of care trusts will be voluntary. I accept that, to be successful, they will need to have a shared vision, trust and a real commitment to making the arrangements work. That is why we are giving as much flexibility as possible in the governance and other arrangements to allow local partners to come together to agree on what they wish to achieve and to commit themselves to making those arrangements work effectively. That is very much part of our "earned autonomy" philosophy and we shall wish to do everything that we can to support those statutory agencies that have decided to go down that path.

The point about the clause that we are debating is that situations arise where not only is there not voluntary agreement or a coming together, but where statutory agencies are simply not working well together, and where the result is a poor quality of service, a lack of co-ordination and too many organisational and cultural barriers, and the public are clearly the losers.

The Government have a number of options open to them to try to deal with those problems. We have a number of areas open to us in relation to social services, based on the assessment that the SSI will have done, performance indicators and the performance assessment framework. In the health service we have a rigorous approach to performance management, where again we can identify poor performance—we discussed the "traffic light" system earlier. It may well be that where there is a real problem, where there is a failure in partnership, one potential possibility is to create a care trust which would enable those services to start afresh and would enable people to come together. I have already said that I believe that the number of cases when that will occur will be rare, but it is important for us to have that option if it seems appropriate.

There is one other point I want to make. This is an even-handed power. It is not simply a question of saying to local government, "We want to take part of your service and put it into a care trust". If we have a problem which seems to be on the health authority's side, then in relation to services which come under the partnership arrangements, this clause can also be used to ensure that a particular service could be led by local government under the partnership arrangements.

So this is very much an even-handed approach, recognising that when there is a problem there is very often a failure on both sides but occasionally it can be on one side. This power will not be used extensively. We hope it will be used rarely but I believe, in the sense of wishing to have the strongest possible co-ordination of services across statutory boundaries, that this clause is an essential part of those arrangements.

Baroness Barker

I will not detain your Lordships very long, because I recognise that there is another debate to come. I simply want to say this. At the beginning of our debate this evening I suggested that the whole notion of care trusts was one over which there are many misgivings because of the lack of detail. One of the biggest of those misgivings is that this represents the take-over of social services by the NHS. I have listened to the discussions throughout the debate, and have to say that I have not been persuaded. I think that Clause 53 has given rise to many of the concerns that have been raised during our debate.

Lord Hunt of Kings Heath

I thank the noble Baroness for giving way. I really must respond to that. There is no suggestion whatsoever that this is about the taking over by the NHS of a local government service. It is about enhancing co-operation and partnership. That is why I expressly said in relation to Clause 53 that if the direction were used it could be used as much against the NHS to ensure that the service came under a partnership arrangement led by a local authority as it could be about creating a care trust.

Baroness Barker

I hear what the Minister says, but as I said at the beginning of our debate on this matter, I will in time look back on our debate and judge which one of us has proved to have been correct. I will leave it there for the moment.

Clause 53, as amended, agreed to.

Lord Burlison

I beg to move that the House do now resume. In doing so, I suggest that the Committee stage begin again not before 8.45 p.m.

House resumed.