§ 4.30 p.m.
§ Read a third time.
§ Clause 17 [National patients' body for England]:
§ Earl Howe moved Amendment No. 1:
§ Page 15, line 44, leave out "(Patients' Forums)" and insert "12"
§ The noble Earl said: My Lords, in moving this amendment. I shall speak also to Amendments Nos. 2, 18 and 21. The amendments can be dealt with briefly. They are purely consequential upon the amendments carried in this House last week on the reform of community health councils. They are necessary in order to ensure that the Bill as amended is internally consistent. I beg to move.
§ On Question, amendment agreed to.
§ Earl Howe moved Amendment No. 2:
§ Page 16, line 5, leave out "(Patients' Forums)" and insert "12"
§ On Question, amendment agreed to.
§ Earl Howe moved Amendment No. 3:
§ After Clause 30, insert the following new clause—
§ "CONSULTATION OF RELEVANT ORGANISATIONS BY SECRETARY OF STATE
In section 6 of the National Health Service (Primary Care) Act 1997 (c. 46), after subsection (1) there shall be inserted—
§ "(1A) Before making directions under subsection (1), the Secretary of State must consult such organisations as he may recognise as representing persons providing personal medical or dental services under section 28C arrangements.""836
§ The noble Earl said: My Lords, I make no apology for returning once again to an issue that has caused considerable concern and dismay to doctors and specifically to the BMA as their representative body. The BMA believes it to be an issue of fundamental importance that consultation and negotiation with the BMA's General Practitioners Committee on national personal medical services directions and regulations should take place on the same basis as it does currently for general medical services issues.
§ The position is simple. Matters concerning medical services in primary care affect GPs; and since the General Practitioners Committee represents all GPs, it should be consulted about changes to either the GMS or the PMS national contract elements.
§ Although individual personal medical services contracts are agreed locally, they are defined by a core national contract and national PMS regulations and directions which apply to all PMS GPs. I return to Section 6(1) of the National Health Service (Primary Care) Act 1997, which provides for the implementation directions to be made. Such directions include terms of service issues, such as defining who patients are, how doctors deal with temporary residence and so on. The amendment would require the Secretary of State, before making these directions, to consult with the organisations recognised as representing health professionals providing personal medical or dental services. In the case of GPs, this would be the BMA's General Practitioners Committee. However, the BMA recognises that, with PMS, other organisations and professions may be involved, and the amendment provides for such consultation.
§ A key point is that this provision should be on the face of the Bill. It is essential for GPs in personal medical services schemes to have confidence in the system. They should have the same protection of national representation as colleagues providing general medical services. hope that the Minister can provide me with an encouraging reply. I beg to move.
§ Lord Clement-Jones
My Lords, I support the noble Earl, Lord Howe, on this amendment. The resistance on the part of the Government to this proposal, both in Committee and on Report, seems baffling. Even in terms of the Minister's admission that these matters will need to be negotiated locally, the Bill seems to contain no such provision.
This amendment is a new one. It gives considerable flexibility to the Government in determining which bodies they would regard as properly representing general practitioners in these circumstances. We on these Benches believe that it has considerable merit. We urge the Minister to think again and to concede this point.
§ Lord Rea
My Lords, we went through the territory of this amendment both in. Committee and on Report. It is an important issue if the Government wish to see an increasing number of PMS schemes succeed. I am a great enthusiast for personal medical services pilots. 837 I believe that they can be used in many areas on an extremely useful basis and I want to see the scheme succeed.
The NHS Plan for the modernisation of the health service states, at paragraph 8.9:By 2004 both local Personal Medical Services and national arrangements are set to operate within a single contractual framework that will meet the key principles and requirements of a modern NHS".The doctors who will supply personal medical services will be GPs who have worked in the NHS providing general medical services. They will not be so happy to move out of that safe haven into new schemes if the General Practitioners Committee of the BMA is not looking out for their interests. I very much hope that my noble friend will be able to accept the amendment; or, if not, that he will at least give us an assurance that PMS practitioners will not be treated any differently from GMS practitioners.
§ The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)
My Lords, I hope that I can provide some reassurance to noble Lords on a matter that we have discussed a number of times previously. I begin by reaffirming that, of course, we want to see the closest possible working relationship with GPs and their representative organisations in modernising primary care, and in particular in developing PMS.
As the noble Earl, Lord Howe, suggested, not only would the amendment require the Secretary of State to consult with the GPC; it would also require the Government to consult other organisations which represent persons or organisations providing PMS. My understanding is that, as well as the GPC, it would therefore include the RCN, the NAPC, the NHS Alliance and the NHS Confederation which represents community trusts and primary care trusts. Indeed, as nurses can be involved, I guess that UNISON might also be an organisation that would have a right to be heard if the amendment were accepted.
The noble Earl said that the GPC represented all GPs. It would be fairer to say that the GPC represents all GMS GPs, plus those PMS GPs who choose to be represented by their local medical committee. Not all choose to be so represented.
Personal medical services pilots are an excellent opportunity for health authorities and, increasingly, primary care trusts and service providers—particularly GPs, nurses, community trusts or primary care trusts—to test different options for delivering front-line services which provide flexibility and, indeed, freedom for professionals to shape local services within a clear national framework of standards and accountability. Essentially, PMS pilots allow a GP practice or a group of practices to agree a new contract with their local health authority or primary care trust. This essentially replaces the existing contract and their payments for delivering GMS under the "Red Book". Similarly, community trusts or primary care trusts can enter these types of contracts with their health authority, and then employ 838 the doctors and nurses who treat the pilot's patients. All PMS providers also, of course, need contracts for the practice staff they employ.
I should emphasise to my noble friend Lord Rea the point that providers enter such contracts voluntarily. GPs can not only choose whether or not to enter PMS and become a PMS pilot, they also have a right to return to GMS and the national contract. I believe that the PMS pilot schemes have proved to be an enormous boon to developing primary care services locally. The Government recognise that GPs considering PMS should be properly represented by their professional body. The question, surely, is at what level. The PMS is a locally contracted system. The Government believe that representation is crucial at the local level. For GPs, this should be through the local medical committee—the LMC.
The LMC is responsible for representing NHS GPs locally in matters relating to their terms of service. We believe that it is in a better position to focus on the range of local issues that more directly affect the detail and negotiation of each particular local contract. In answer to the noble Lord, Lord Clement-Jones, I should point out that the role of the LMC was recognised by the Government two years ago in the Health Act 1999. This changed the law to allow PMS GPs to join and be represented by their LMC. As I said yesterday in the debate on morale in the NHS, although I feel it is my duty to point out the failings of the previous government, we accept that their development of PMS was a very good move and one upon which we have built. However, while I commend them for the introduction of PMS, I should stress that that government did not provide for PMS GPs to be represented by their trade union or professional body at any level. We believe that we have corrected that omission by recognising the role of local medical committees.
We believe that the amendment could seek, at national level, to restrict the range of PMS pilots into which the members of the various bodies involved could enter freely. That would be quite wrong. Given the number of organisations involved, it would surely be unworkable. Such matters should be determined locally. That is why the implementation directions, in conjunction with the model core contractual framework (the "core contract"), set the minimum requirements to ensure equity and quality for patients.
The core contract does not define PMS. It provides a platform on which the health authority or primary care trust, along with prospective PMS providers, locally negotiate the actual individually-tailored PMS contract. There is, of course, nothing to stop the national organisations giving advice to their local representatives who can, in turn, advise their members. I understand that that is what happens; indeed, I presume so.
I wish to assure noble Lords that we do seek the views of the national organisations that I mentioned on the development of PMS. For example, the core contractual framework was developed inclusively with input from the GPC, among others. We involved the 839 GPC fully in a PMS reference group. Indeed this week the GPC, the RCN and UNISON took part in the first meeting of the PMS implementation group.
I have listened most closely to the points made this afternoon, and those made both in Committee and on Report. As I said earlier, we want to see the closest possible working relationship with GPs over the development of PMS. In response to the comments that have been made, I am happy to consider, with the GPC and others, how the PMS implementation group could be strengthened and improved. Indeed, in addition, my right honourable friend Mr John Denham has also offered to meet the BMA to discuss all the issues associated with PMS. We are currently trying to find a mutually convenient date for such a meeting. With those assurances, I hope that the noble Earl., Lord Howe, will not consider it necessary to press his amendment.
§ 4.45 p.m.
§ Earl Howe
My Lords, I am grateful to the Minister for that reply. not least for the remarks that he made at the end of his answer which give me cause for some encouragement. I believe that the Minister recognises in principle the need for the PMS implementation group to be strengthened. I hope that that idea can be taken forward constructively.
However, I am a little disappointed that the Minister does not consider that a provision of the kind suggested in the amendment should be included on the face of the Bill. The noble Lord stated that a requirement to consult at national level might well inhibit the freedom of individual doctors and reduce the number of PMS contracts that were entered into. I do not see that as being a risk of consultation; indeed, consultation is merely what it says. It is a process to which the noble Lord is well accustomed. I very much doubt that it would have that negative impact.
I have no disagreement with the Minister at all that LMCs should be involved in local negotiations; that is clearly right., and a step forward. However, it seems to me to be equally appropriate that there should be a mechanism for national negotiation when national changes are being proposed. For example, in my view, the Government ought to be required to consult the GPC on changes to the national core contract which impact upon PMS GPs. That also applies to any changes to national PMS directions.
Despite the differences between us, I suspect that there is little in practice that separates us. I know that the Minister is committed to ensuring that the whole concept works properly. However, I hope that he will take on board the concerns that have been registered by noble Lords from all sides of the House. I trust that he is clear that those concerns have not been raised lightly. We look forward to seeing progress on this front. I thank the Minister again for his response, and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.840
§ Clause 51 [Care Trusts where directed partnership arrangements]:
§ Lord Clement-Jones moved Amendment No. 4:
§ Page 58, line 36, at end insert ", in line with published criteria and following a clear and transparent process"
§ The noble Lord said: My Lords, in moving Amendment No. 4, I shall anticipate Amendments Nos. 5 and 6 to some degree. I say that because Amendment No. 4 has been drafted on the basis that the Minister will be putting forward Amendments Nos. 5 and 6. However, procedurally I believe that I need to move my amendment first—
§ Lord Hunt of Kings Heath
My Lords, I risk getting into a procedural tangle at this point, but if the noble Lord would care to move Amendment No. 4 formally I could then speak to Amendments Nos. 5 and 6.
§ Lord Clement-Jones
My Lords, that seems to me to be an excellent suggestion. Therefore, I formally move Amendment No. 4. I beg to move.
§ Lord Hunt of Kings Heath
My Lords, in responding to Amendment No. 4 and speaking to Amendments Nos. 5 and 6, perhaps I may stress, first, that I have listened with great care to the debate that we have had over the issue of care trusts. To sum up that debate, I believe that I can say that most, if not all, noble Lords see the merits of voluntary care trusts. They are seen to be a significant step forward in ensuring the integration of health and social care services, which will be to the benefit of patients and the public. I acknowledge that there has been somewhat less agreement on our proposals for compulsory care trusts. At times, the concerns about compulsory care trusts have almost threatened to overshadow the debates on the positive opportunities offered by voluntary care trusts.
As I said, I have listened carefully to the debate and to the concerns that have been expressed. As I indicated on Report, we have thought again about compulsory care trusts. We have concluded that the best way to respond to those concerns is to withdraw the proposals for compulsory care trusts. That is the effect of Amendments Nos. 5 and 6. If those amendments are accepted, care trusts will be entered into only on a voluntary basis. I hope that that addresses many of the wider concerns noble Lords have raised in relation to care trusts.
My amendments seek to ensure that we do not lose the enthusiasm for developing voluntary care trusts because of a perception that compulsory care trusts will be the default mechanism where they are not being set up voluntarily. That was never our intention. but I know that there have been real anxieties about that possibility. We certainly do not want the model to be tainted; for people to hold back on the basis that they might as well, because they could be directed to form a care trust in the fullness of time.
We are anxious for the work to go forward to develop care trusts where they can make a difference to the quality of services for local people, enhance the 841 community leadership role of the local authority and ensure that their efforts to develop the well-being of the community can be pursued through this mechanism as well as through the Health Act partnership arrangements. We do not want the organisational boundaries of local government and the National Health Service to be the reason why services cannot be successfully put together. Neither do we want the fears of future direction to hang over a valuable model which we believe will foster the closest working relationships.
However, we are still concerned about our ability to tackle failure. We believe that there has to be a mechanism to be used when measures to improve services within an existing organisation have been exhausted. This is often when the whole of the corporate structure is unable to respond to the changes that need to be made to improve services for users. It can be for a whole host of reasons, and on occasion, despite the fact that all of the factors have been addressed, the improvement in services may still not be sufficient to ensure that vulnerable or ill people are not put at risk. In many cases in those circumstances partnership will be the answer.
Although the original failure may have been identified in one particular agency, not only may the problems be reflected in the other local agency, but their own work for a particular client group may be hampered by difficulties that cannot be overcome. It may well be in their best interests to be able, from one management structure, either to commission or to provide the range of services. Difficulties with hospital discharge can be caused by a number of factors—these can emerge from within the acute sector, the community health services, the local authority responsibilities. The evidence of the problem may be seen as blocked beds in the acute sector, not enough residential and nursing home places apparently available, or in sufficient resources available for them, not enough alternative, intermediate care being developed, poor equipment services and so on.
There needs to be a mechanism through which action can be taken. Although we agree that compulsory care trusts may not be the right approach, the amendments that I propose leave intact the powers to require the use of the Health Act partnership arrangements in response to service failure. Under these powers the Secretary of State could intervene in a failing service to require the local partners to enter into pooled fund arrangements or to delegate functions between the bodies.
By tying this power to the Health Act flexibilities we ensure an explicitly even-handed provision, applicable to both the NHS and local authorities. Unlike the provisions for a compulsory care trust, there would be no new body. The partners would therefore retain their original identity and responsibilities. The accountability arrangements would be similar to those established for voluntary partnership arrangements; for example, partnership boards to oversee any joint or delegated commissioning. Models for delivering such services 842 are already well established. Even so, I assure the House that I do not consider—even with the amendments that I propose—that this is a power to be taken lightly. We recognise that this is a power of last resort, and one which will be considered only when other measures have been exhausted. I believe that this is an effective compromise. It makes clear that care trusts are a purely voluntary model, but it enables the Government to use directed partnerships as a last resort.
I understand the concerns behind Amendment No. 4 moved by the noble Lord. Lord Clement-Jones. However, I hope to be able to reassure him on the approach we intend to take. We are not starting from a blank sheet of paper. The power will be used in conjunction with the existing powers of the Secretary of State and built into the existing processes. The existing processes include the Social Services Inspectorate and the detailed protocol agreed with the LGA about intervention that leads from monitoring and inspection activities. We have published performance assessment frameworks for both the NHS and social services and performance management mechanisms. We have the developing work of the Commission for Health Improvement. In this Bill we propose to take powers to manage failure within the NHS.
As I have said, the clause is designed to enable us to have a very valuable option as a last resort to direct the use of the partnership arrangements. Just as those build on existing arrangements and powers. the power of direction does the same. We shall make use of the existing powers when it is clear that action needs to be taken. The Secretary of State is required to act properly in using his powers as a fundamental principle of public law. He will exercise the power when it is clearly legitimate to do so, when he has the appropriate amount of evidence on which to make a decision and when other avenues have been tried without success. The process will be transparent, as it has to be.
The LGA has already agreed a protocol with the Social Services Inspectorate about the consequences of inspections. This will be added to to take account of these new powers. I assure the House that officials will work with the LGA and the NHS Confederation to ensure that protocols cover this as an integral part. That is the key to clarity and transparency, rather than Amendment No. 4. I hope that my comments have gone a long way to meet the concerns raised by noble Lords in previous debates.
§ Lord Clement-Jones
My Lords, I thank the Minister for that reply. His comments on government Amendments Nos. 5 and 6 and my Amendment No. 4 were extremely helpful. We believe that eliminating the concept of compulsory care trusts goes a long way towards re-establishing confidence in voluntary care trusts and in the view that voluntary relationships which are tailored to meet the needs of local communities are the best way to deliver integrated healthcare. The compulsory use of Health Act flexibilities would be absolutely a last resort.
843 In responding to Amendment No. 4, the Minister gave assurances about processes. I welcomed his statement that the Secretary of State is required to act properly and that he will exercise the power when he has the appropriate amount of evidence on which to make a decision. The Minister also referred to a protocol agreed with the SSI on the consequences of inspections, and to performance assessment frameworks. He also said that the department will work with the Local Government Association and the NHS Confederation on that matter. Those are important safeguards. Even with the amendments the Secretary of State still has considerable powers which could potentially have a major impact. It is important that these powers will be used as a last resort.
From a procedural point of view, it would be difficult for the Minister to give further assurances on one or two matters. I hope that the Minister will discuss with the NHS Confederation and the LGA an appeals process in cases where the evidence is not completely clear and where there is room for doubt. I hope that there will be an appeals process for parties who are subjected to the compulsory power. We believe that that should be agreed. We know that the LGA would welcome such a process.
The Minister has gone a long way towards addressing our concerns. I welcome his amendments. In the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5 p.m.
§ Lord Hunt of Kings Heath moved Amendment No. 5:
§ Page 59, line 1, leave out subsections (4) to (7).
§ On Question, amendment agreed to.
§ Lord Hunt of Kings Heath moved Amendment No. 6:
§ Page 59, leave out lines 40 and 41.
§ On Question, amendment agreed to.
Baroness Masham of Ilton moved Amendment No. 7:
After Clause 54, insert the following new clause—
§ "EQUIPMENT AND SUPPLIES FOR HEALTHCARE PURPOSES
§ (1) Where a person has been assessed by a National Health Service body, or any other body or suitably qualified person acting under delegation or under contract to a National Health Service body, or as part of a multi-disciplinary assessment as reasonably requiring medical, surgical or nursing equipment or supplies for health care purposes, including that provided by or in a residential or nursing home, it shall be the duty of the Secretary of State to provide such equipment or supplies.
§ (2) For the avoidance of doubt, a local authority shall not be prohibited from providing or making the arrangements for equipment or supplies under subsection (1), provided they are delivered under the delegated authority of the NHS within the provisions under section 31 of the Health Act 1999 (c. 8) (delegated NHS functions); and in such cases section 1(2) (services free of charge) of the National Health Service Act 1977 (c. 49) applies.844
§ The noble Baroness said: My Lords, I thank all noble Lords who supported the amendment on Report. I especially thank noble Lords who have put their names to this amendment which is changed to take into consideration the Minister's comments on the previous amendment. The noble Lord, Lord Morris of Manchester, who spoke on Report now has his name to the amendment. I am very grateful.
§ On Report, there was widespread disappointment when the Government stated that there was no intention that the NHS should pay for basics such as incontinence pads and sheets. It appears bizarre that this stance should be taken when the NHS provides such basics in all other settings and when it is contrary to the Government's line on nursing where the policy is to ensure that the anomaly of people having to pay for nursing care when it is free elsewhere is removed. There seems no reason not to remove this similar but much less costly anomaly.
§ It is worrying from a legal point of view. Section 1 of the NHS Act places a duty on the Secretary of State to continue to promote a "comprehensive health service" designed to secure improvement in physical and mental health and the prevention and treatment of illness and yet guidance specifically states that incontinence pads which are considered to be part of the comprehensive health service in all other settings are not covered by the NHS when the person is in a nursing home. I refer to paragraph G of Annex A HSG (95) 8. It then states that incontinence pads should be included in the price charged by the home to the local authority or the person.
§ In effect, people in nursing homes are having to pay for services which in all other settings fall under Sections 1 and 3 of the NHS Act and so, according to Section 1(2), should be free at the point of delivery.
§ The noble Baroness, Lady Barker, will deal with the issue of age discrimination.
§ The Public Health Laboratory Service published the first audit of infection control practice in nursing homes in the UK last year. It is thought that the medical and nursing resources to prevent and manage infection did not follow the patient into the community when in 1993 the community care legislation resulted in a major shift of patients from the NHS long-stay hospital beds to private, community-based nursing homes. Community infection control nurses are not obliged to visit these nursing homes. Yet it is known that the nursing homes are responsible for 78 per cent of outbreaks of infective diarrhoea in the UK and may be reservoirs of methicillin-resistant staphylococcus aureus (MRSA), with up to 27 per cent of residents being colonised.
§ I hope that your Lordships will agree that the same standards for infection control should be applicable to nursing homes. Without affording proper continence aids, corners could be cut, standards may not be 845 assured and infection can spread. This amendment has the full backing of Age Concern England. I beg to move.
§ Lord Morris of Manchester
My Lords, as in the debate on a similar amendment at this Bill's Report stage, I rise briefly to support the renewed call of my good and noble friend Lady Masham to end the cruel anomaly of charging people in nursing homes for essential medical equipment that would be paid for or loaned by the NHS if they were looked after in their own homes. The issue at stake here is that of preserving the "N" in NHS.
Gastro-nasal feeding tubes, beds especially designed to prevent pressure sores and incontinence pads were spoken of in debates at earlier stages of the Bill's consideration as if they were the optional extras of medical care, even at times as if they were luxury goods. In fact they are medical necessities for the people this amendment seeks to help; and I hope very much that the outcome today will be one that they and those who care for them can welcome unreservedly.
As of now, the legal position in relation to incontinence pads is especially worrying. Section 1 of the National Health Service Act places a duty on the Secretary of State to continue to promote a "comprehensive health service" designed to secure improvement in physical and mental health and the prevention and treatment of illness; and yet current guidance specifically states that incontinence pads, which are considered to be part of the "comprehensive health service" in all other settings, are not covered by the NHS when a person is in a nursing home.
That must be indefensible legally, just as the moral case for equal treatment is also overwhelmingly strong. For how can it possibly be right—or consistent with the founding principles of the National Health Service—for medical help to be provided not on the basis of need but on where the patient is cared for?
I am wholly satisfied that it gives my noble friend Lord Hunt no pleasure if he has to resist amendments of this merit and moral importance. Indeed I am sure that nothing would please him more than to be able to offer today to meet our case in full. I hope profoundly that he can help and I know that he will do so if he can. For certainly a Bill which offers so much that is good for the providers of medical care and patients alike would not merely be flawed but badly demeaned and disfigured without the improving effect of this amendment.
§ Baroness Barker
My Lords, perhaps one matter would please the Minister more: to start implementing the national service framework. The first and welcome standard in that framework is about outwitting age discrimination within the health service and ensuring that all people are treated on the basis of need, not age. It is an interesting document. It refers to the way in which age discrimination within the health service can be incidental and unintended. But it refers to the fact 846 that certain practices have disproportionate effects on older people who comprise the largest group of users of the NHS.
The community care statistics for the year 2000 show that of the beds in private nursing homes, hospitals and clinics, 83 per cent were occupied by people aged over 65; and that two-fifths of those individuals were people aged 85 and over. Because of the disproportionate number of older people in that situation, the denial to them of a service which would be free in any other setting in the NHS is tantamount to age discrimination.
I hope that the Minister will have listened with great care to the words of the noble Baroness, Lady Masham of Ilton. This will not be a costly exercise for the NHS but it will have a practical outcome. It will enable many older people to retain their dignity. If that one factor is achieved by this Bill, some of us will be extremely happy.
§ Baroness Greengross
My Lords, I support the amendment, to which I have added my name. Throughout the passage of the Bill, I have sought to draw attention to how the Government can best ensure that people's reasonable healthcare needs are met. I would prefer such needs to be met by the NHS in long-term care settings rather than according to the Government's definition of nursing provided by a registered nurse, which might prove rather artificial. That would cover certain equipment and services, such as continence pads and gastro-nasal tubes, and would allow flexibility for the changing role of nurses, which has been discussed during the passage of the Bill. Ever more of their work is now done by other staff under a nurse's supervision, or is not a nursing function at all. For example, we do not think of chiropody services as a nursing function.
I was also concerned that the Bill might be inflexible on the issue, although I have gathered that changes could be made through a direction to the NHS from the Secretary of State. However, I still believe that greater clarity is needed on what residents of nursing homes can expect to be charged for and how that process will work once free nursing care is implemented next October. The amendment would go some way to achieving that and would make it clear that a multi-disciplinary assessment has to take place. At this rather late stage—this is our last chance—I hope that the Minister can go some way to alleviate our concerns on how free nursing care will operate in practice and will assure us that some specific healthcare needs, such as continence equipment, will be included.
§ Baroness Darcy de Knayth
My Lords, I shall speak briefly but with huge enthusiasm in support of the amendment. My noble friend Lady Masham made a powerful case, particularly in relation to continence pads and paper sheets. As any paraplegic knows, they are vital and not to be skimped on. I hope that the Minister has engaged in helpful and productive reflection since Report.
847 Will the Minister clarify the position regarding pressure relief beds and gastro-nasal tubes, which the noble Lord, Lord Morris of Manchester, and my noble friend Lady Greengross mentioned? I am not sure whether anything can be done about that. Someone in the community would be able to hire a pressure relief bed or mattress. No one in their right mind is going to request a gastro-nasal tube for fun. I support the amendment 'wholeheartedly.
§ 5.15 p.m.
§ Lord Hunt of Kings Heath
My Lords, not for the first time, the noble Baroness, Lady Masham, has brought an important matter to the attention of the House. As always, I have listened carefully to her arguments, particularly about continence pads. While I hope that she will not press her amendment, I recognise the need to respond positively.
The amendment differs in approach but not in intent from the one that she tabled on Report last week. It would not change or strengthen the responsibility of the NHS to provide equipment. The NHS Act 1977 already imposes a duty to provide a service to meet all reasonable requirements that are appropriate as part of the health service.
This ground has been well trodden over the past few weeks. We are determined that care in nursing homes should be provided in a way that is consistent with the care provided in residential care homes and people's own homes.
I recognise the concern that the noble Baroness, Lady Greengross, expressed about the bureaucracy surrounding our definition of nursing care and the practical difficulties of ensuring that the care is provided by a nurse at all times. The essential point is that an NHS nurse will be involved in a multi-disciplinary assessment of a person's needs before they enter a nursing home. That assessment will provide the information to allow a decision to be made about the setting in which care can be provided and to develop a care plan.
If a person needs to be in a nursing home with some care provided by a registered nurse, the assessment and care plan will allow the NHS to determine the amount of care that they need to receive from a registered nurse. The NHS will then arrange and fund that level of care from a registered nurse within the nursing home. The NHS will ensure that the nursing home where the person will be living can supply the registered nurse input needed. If the person has some specialist nursing needs, the NHS may arrange for them to be provided by visits from specialist NHS nurses.
The NHS will contract with the nursing home for a certain level of service as part of the care package provided by the home. Residents who are responsible for paying their own fees will pay a sum that takes account of the NHS' financial contribution to their care. There is no intention to charge residents based on time sheets or other bureaucratic processes. The NHS will monitor the nursing care that the person receives through the contract with the nursing home. The 848 National Care Standards Commission will ensure that the home has adequately qualified staff and the correct staffing levels to deliver individuals' care plans.
Reassessment will take place three months after placement in the home and then not less than annually, although reassessment will be needed when there has been serious illness or some other change in circumstances. Those triggers for reassessment will be outlined in the guidance to the NHS. Reassessment will be needed to change the funding provided by the health service.
I recognise that, as the noble Baroness said last week, the current guidance to the NHS on the provision of incontinence supplies in nursing homes is not consistent with provision in other settings. As I said at the outset, we are determined to bring consistency to the NHS services available in nursing homes by the implementation of practical policies where responsibility is clear and not muddled.
I am pleased to be able to respond positively to the amendment by saying that the Government have decided that continence pads and other continence equipment should be made available free to those currently paying the cost of their care in nursing homes. Continence services will therefore he available on the same basis as nursing care, subject to a full assessment of the individual's needs. There will be consistency across the NHS provision for continence pads in all settings.
I stress that the provision of continence pads and other equipment in nursing homes by the NHS does not require primary legislation, but merely a direction to the NHS to take on that responsibility. I assure your Lordships that we shall issue the necessary directions. On that basis, I hope that the noble Baroness, Lady Masham, will not press her amendment.
§ Baroness Masham of Ilton
My Lords, I am pleased to be able to thank the Minister for that positive reply. Many people will be relieved by it. This may seem a small aspect of health to many, but it can become a very big one and can help with the prevention of infection, which the Minister knows that I am interested in.
I am pleased by the Minister's response. I have been campaigning on the issue for many years. The Chief Whip campaigned with me many years ago, before most of your Lordships were in the House. The Minister's answer is very satisfactory. It appears in Hansard, so we can quote it in future if nursing homes do not know about it. I hope that the Government will make their policy clear so that it goes to every health authority in the country.
Will the Minister answer the question that my noble friend Lady Darcy asked about nasal feeding tubes?
§ Lord Hunt of Kings Heath
My Lords, obviously we will be happy to discuss the direction that we give to the NHS. My understanding is that the definition of 849 continence equipment includes catheters, sheaths, leg bags, other drainage bags, re-usable seat pads and bed pads.
§ Baroness Masham of Ilton
My Lords, I thank the Minister again. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Greengross moved Amendment No. 8:
After Clause 57, insert the following new clause—
§ "LIABILITY OF RELATIVES
§ (2) Sections 42 (Liability to maintain wife, husband or children) and 43 (Recovery of cost of assistance from persons liable for maintenance) shall cease to have effect.
§ (3)In section 48(3) (Duty of councils to provide temporary protection for property of persons admitted to hospital etc) omit the words "or from any person who for the purposes of this Act is liable to maintain him".
§ (4) In section 51(1) (Failure to maintain) omit the words "or any person whom he is liable to maintain for the purposes of this Act".
§ (5) In section 56(1) (Legal proceedings) omit the words "other than a sum due under an order made under section 43 of this Act".
§ (6) In Schedule 6 (Transitional provisions) omit paragraph 19.
§ (8) In section 46(5) (Burial and cremation) omit the words "or from any person who for the purposes of the National Assistance Act 1948 was liable to maintain the deceased person immediately before his death".
§ (10) In Schedule I (Enactments Conferring Functions Assigned to Social Services committees) for the words "Sections 43 to 45 in column 1" substitute "Section 45"."
§ The noble Baroness said: My Lords, your Lodships are well aware of my desire to protect spouses at one of the most distressing times in their lives—when their partner enters care—from being landed with what can be large bills for the partner's care, even when they are not wealthy themselves.
§ I do not need to repeat the arguments that I presented at earlier stages, save to say that I do not believe that the cost would be high. It would be well under the £10 million quoted by the Minister on Report; nor do I believe that there is read-across to child support legislation. Nevertheless, I understand the Minister's concerns about the potential cost and, indeed, about the principle itself.
§ As your Lordships know, most local authorities do not pursue liable relatives. Of course, I do not want to encourage those that do not to start doing so. However, by the same token, I should like to do more to encourage local authorities that charge liable relatives to think twice about the impact of that on the spouse. After a lifetime of caring, it can be most distressing to find oneself suddenly presented with a bill for something that one was already doing free of charge and would continue to do if it were possible850
§ As I indicated on Report, I estimate that currently only some 300 spouses are affected by this rule, but it is pernicious. At this late hour, I still hope that the Minister can meet my concern, at least, part of the way.
§ Baroness Darcy de Knayth
My Lords, again, I support my noble friend enthusiastically. As the Minister listened to and reflected so well upon the views of one noble friend, I hope that he may have reflected yet again and come up trumps in respect of my other noble friend.
§ Lord Lipsey
My Lords, in the course of the debates on this Bill, many issues have involved fundamental divides. This amendment concerns the question of costs—both the immediate cost of£10 million, quoted by the Minister, and the question of whether there is a read-across.
Leaving read-across to one side, it is sad that at Third Reading we are still unclear as to the facts on this matter. The Minister gave a figure of £10 million; the noble Baroness, Lady Greengross, argued strongly that the figure was very much lower. Whatever the fate of this amendment, I hope that the factual basis for policy on this issue will be resolved through direct meetings between those who produce the Minister's costings and those who advise the noble Baroness, Lady Greengross.
I believe that the matter could be dealt with through guidance. If it should transpire there will be no cost, no change to the legislation will be required; if the cost is high, no doubt Ministers will have to take that into account in deciding future public expenditure priorities. I do not believe that the way to deal with the matter is by forcing through a vote tonight. However, I hope that a sympathetic examination of the costings will be made and that the Minister will respond accordingly if it should transpire that his fear about cost does not correspond with an objective analysis of the matter.
§ Lord Hunt of Kings Heath
My Lords, I shall try to respond positively. Under Sections 42 and 43 of the National Assistance Act 1948, councils can ask married partners to contribute to the residential care cost of their spouse where the spouse's contribution from his or her own income or assets, as determined by the means test for residential care, is not sufficient to cover care home fees. The amendment would prevent councils seeking such contributions.
In our debates in Committee and on Report, I acknowledged that we are aware of the difficulties caused by the operation of the liable relatives rule in respect of residential care and of the distress that can be caused to a small number of residents and their husbands or wives at what is already a difficult time. I certainly accept that couples may feel confused that, once their income and assets, including those held jointly, have been assessed fairly and fully by social services, they can be asked to contribute further to the costs of care.
851 I believe that the recent excellent report from Age Concern England highlighted those problems. It commented that some social service departments can bring considerable pressure to bear on spouses to make a contribution and that, in doing so, may cause considerable distress. It is also apparent that some council officials may not understand the rules of liability and may seek to apply them incorrectly or inappropriately.
However, the report also made it clear that only a small number of spouses are being pursued for payments by councils and that the majority are not being asked. That is further evidenced by the knowledge that the liable relatives rule is applied patchily over the country.
In another place the Minister for Health said that he would consider carefully the operation of the liable relatives rule. I commented on that in previous debates. The Government are not willing to accept the amendment. We believe that, where appropriate in cases where the resident has relatively meagre resources, it is right and proper for councils to seek a contribution to care costs when the partner at home is comparatively well off. We believe that residents should look not only to the state for support in those instances but also to their partners.
At present., many councils apply current guidance and common sense and, as I have already indicated, seek liable relatives contributions from spouses only in relatively few cases. However, I understand the problems that arise when councils apply the rules incorrectly or unsympathetically. I believe that, rather than get rid of the legislation, the best course of action would be to remind councils of current guidance.
However, in the light of debates in this House and in the light of helpful discussions with Age Concern over the past week, I have decided that we must go further. Therefore, the Government have now decided that new, robust and clear guidance will be developed. It will set out the ground rules covering how and when contributions will be sought. It will remind councils that, when deciding how large a contribution to seek from a liable relative, they should take account of the financial circumstances and normal standard of living involved and should discuss and negotiate a mutually acceptable amount.
In particular, when cared-for people enter respite care, we shall remind councils to consider fully all the issues before considering what contributions to care cost should be sought from spouses who are substantial and regular carers. Those carers make a terrific contribution to the lives of their loved ones and to the country. We must do everything in our power to recognise that.
Finally, the guidance will suggest that liaison with the Benefits Agency should be strengthened to ensure that in individual cases only one organisation seeks a liable relatives contribution and not both, as can happen from time to time.
In bringing assurances to the House, I want to make it clear that the purpose of the guidance will not be to encourage councils to seek more contributions from 852 more relatives; rather, it will be to set out how the rules should be operated in practice. In drafting the guidance, I shall ask my officials to work closely with Age Concern England, the Carers National Association, the Benefits Agency and other Leading organisations. I shall ensure that draft versions of the guidance are subject to wide consultation, including with organisations that represent the interests of older people and those in residential care. If all goes to plan, we shall issue the new guidance in September this year. On that basis, I hope that the noble Baroness will withdraw her amendment.
§ Baroness Greengross
My Lords, I very much welcome the Minister's response. Although I should have preferred spouses not to be charged for their partner's care in these limited situations, I am most grateful for the great care and consideration that the Minister has given to the matter. Although, in the scale of the Bill, it is a minor issue, I know that he has taken it seriously. The point is that it is not a minor issue for affected spouses. I welcome what the Minister said about stronger guidance. I also welcome his reassurance that it will not lead to more local authorities charging liable relatives. I believe that the patchy and inconsistent situation that currently exists will be improved. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 59 [Funding by resident etc. of more expensive accommodation]:
§ [Amendment No. 9 not moved.]
§ 5.30 p.m.
§ Clause 65 [Control of patient information]:
§ Earl Howe moved Amendment No. 10:
§ Page 70, line 13, leave out subsections (1) and (2).
§ The noble Earl said: My Lords, in our earlier debates on this matter, the Government's proposals to control the use of anonymised patient data by pharmaceutical companies elicited deep and abiding concerns in noble Lords on all sides of the House. I have carefully read the Minister's replies in Hansard. He was also good enough to write to me with a clear explanation of the Government's position, for which. I thank him. The Third Reading of a Bill is not the occasion on which to again go over all of the arguments in fine detail, and I shall not do so. Nevertheless, I want to pick up some points that the Minister made and set out the reasons why, regrettably, I believe that there is still a considerable distance between us.
§ The Minister has set out his stall clearly. The Government are seeking a power to restrict or prohibit the use of anonymised patient data for one principal reason—they fear that anonymised data collected from doctors and pharmacies may be used by pharmaceutical companies to target their products in a precise manner on individual doctors. They fear that such targeted marketing will lead to unnecessary prescribing by doctors and waste NHS resources. They 853 believe that detailed information about individual doctors' prescribing patterns should simply not be accessible to pharmaceutical companies, which, according to the Minister, could deploy their resources to promote medicines in a manner that is less than independent and impartial.
§ My first response to that view is to say to the Minister that despite all that he said in recent debates and in his letter, he has failed to produce a single piece of evidence to show that such targeted marketing is likely to waste NHS resources. The Government's view runs directly contrary to that of the Monopolies and Mergers Commission. The MMC concluded in its report two years ago that targeted marketing would prove to be beneficial to the NHS because it would lead to reduced costs and improved choice in medicines. It would reduce costs because targeted marketing is much cheaper than blanket sales campaigns, the costs of which would simply be passed on to the NHS through higher prices. It would improve choice because doctors who are targeted find themselves better informed about alternative treatments.
§ Nowhere have the Government come up with reasoned arguments to counter those of the MMC: they simply assert that the MMC is wrong. Their position seems to be that providing doctors with information and choice is bound to lead to an unnecessary ratcheting up of costs. In fact, a great deal of pharmaceutical promotion emphasises the benefits of using cheaper alternatives to the products that a doctor currently prescribes. That is one way in which pharmaceutical companies compete. The right kind of targeted marketing is aimed at GPs who prescribe poorly, inefficiently or wastefully and it can identify postcode rationing and over-costly prescribing. Those approaches are valuable to the NHS, so why stop them?
Not all medicines that are promoted by pharmaceutical companies are cheap. As the Minister rightly said in his letter to me, innovative medicines are almost invariably more expensive than the average. However, what should we conclude from that? Does it suggest that doctors should not be informed by manufacturers of any new products at all? Surely not. Should we be surprised that some new treatments are more expensive than average? Again, surely not. Indeed, the Minister commented in his letter on the fact that new medicines tend to be more expensive. He said:
I do not wish to imply that there is anything wrong or unexpected in this, though there is always scope for argument about just how much more it is reasonable to pay for innovation".
§ I agree that there is a legitimate debate to be had on cost-effectiveness but that is surely why the Government set up the National Institute for Clinical Excellence. The Government appear to be saying that NICE on its own is not sufficient. They appear to think that pharmaceutical companies are hell-bent on selling over-priced and expensive medicines and that doctors cannot be relied on to be discerning about the 854 marketing material that drug companies direct at them. Most doctors would be aghast at the suggestion and incredulous about it.
§ I repeat that there is no evidence for the Government's position—the evidence all points the other way. There are already powerful incentives for doctors to adhere to central prescribing advice and there are penalties for not doing so. The ability to enforce that advice has also been strengthened. The recommendations of the national service frameworks are incorporated into the core PMS contract and are to be included in the new national contract. The new £100 million incentive fund will be divided up in part according to performance against such standards. In other words, the Government are not without weapons in their armoury to deal with what they see as inappropriate prescribing. It is not necessary to force the NHS to operate inefficiently by starving it of information. If one does that, one is bound to slow down the adoption of new and cheaper competitor products, which could save the NHS money.
§ The irony of the situation is that Ministers still do not know exactly how they wish to use the power that the clause would confer on them. They do not know because officials have already admitted to the Select Committee and in correspondence that their knowledge of what pharmaceutical companies do when collecting information is limited. It is only when regulations are made that Ministers will find out whether they are inadvertently doing things that they do not want to do. To say, "We don't know what is going on but we do not like the smell of it, and we are therefore going to ban it", is no basis whatever on which to frame legislation.
§ That returns me to the points that I made on Report. Before being asked to consider such important provisions we should have the relevant draft regulations before us and the industry should be formally consulted, but neither of those steps has been taken. During the entire proceedings of the pharmaceutical industry competitiveness taskforce the clause was not once mentioned by Ministers or officials. In light of all the Government's pronouncements about undying partnership with the industry, that was an extraordinary omission. The ABPI told me that in its view it should be possible to reach an agreement with the Government. It does not like having a gun held to its head, which is what would effectively happen if the subsections were enacted.
§ I say to the Minister, as I said on Report, "Why the hurry?". We should withdraw the two subsections and use the group that has already been established to look at cost-effectiveness to sort out the issue. That body could also examine existing legislation and the codes of conduct that govern the promotion of medicines and, once agreement has been reached, come back to Parliament as necessary. That would be the proper way to proceed. I hope that the Minister will realise how seriously the industry takes the issue. I beg to move.
§ Lord Hunt of Kings Heath
My Lords, it might be helpful if I inform noble Lords that I shall not seek to resist the noble Earl's amendment.
§ Lord Jenkin of Roding
My Lords, as one of those who put my name to the amendment I say three cheers to that. Wisdom has at last prevailed, although it has taken, to put it bluntly, a hell of a lot of pushing and shoving. The Minister has seen sense at last.
§ Lord Hunt of Kings Heath
My Lords, perhaps I should make a few remarks explaining my position. I do not agree with much of the analysis made in criticism of the clause as it is currently drafted. I certainly do not agree that it would threaten any of the essential interests of the pharmaceutical industry, to which I remain as committed and supportive as ever.
I made it clear on Report that we have no intention of stopping the use of long-standing databases which are used for both marketing and research purposes. I do not believe that research interests would be threatened by these provisions. I still remain concerned about the potential effect on the NHS of the use by the pharmaceutical industry of information about prescriptions issued by a number of GPs in small, local areas or by individual GPs. I say to the noble Earl, Lord Howe, that I do not accept the MMC analysis, but I am sure that noble Lords will be grateful if I do not respond to that in ever-loving detail.
The Association of the British Pharmaceutical Industry has said that it is prepared to have serious discussions about our concerns provided these provisions are withdrawn from the Bill. I made it clear on Report that we are committed to working with the industry to see if we can reach agreement on what use may be made of NHS information for marketing purposes. It is in that context that I do not ask the House to resist the noble Earl's amendments. I do not underestimate the challenge faced in ensuring that that agreement is reached. I recall previous pharmaceutical price regulation schemes which were not backed up by powers we now have in the Health Act, where companies were prepared to disregard an agreement reached with the industry.
We face a challenge to reach an agreement which is acceptable to both sides and one which will stick. But I take notice of the assurances given by the pharmaceutical companies over the past few weeks about their future action in regard to the use of information on doctors' prescribing habits. In light of the assurances given by the companies, we are willing, in good faith, to enter into discussions. They can show in those discussions how they will act responsibly in this regard. We enter into those discussions on the understanding that we will not hesitate to take action, including legislation, should that prove necessary in the future to protect the NHS and its clinicians from unacceptable commercial pressure.
§ Lord Skelmersdale
My Lords, before the Minister sits down, I should say that it is not only the pharmaceutical angle which is involved in this wide clause. Can the Minister give a commitment that in the 856 consultations he mentioned he will include the medical charities? They use this information just as much as the pharmaceutical companies.
§ Lord Hunt of Kings Heath
My Lords, the Government stand as ready as ever to consult as widely as possible, though we disagree with the assertion that medical research would have been inhibited by the introduction of subsections (1) and (2). But if the medical research organisations feel that there are issues we should consider in relation to this matter, I shall be happy to meet with them.
§ Lord Rea
My Lords, my noble friend may well be wise to agree to these amendments, but I understood the reason for putting the provisions forward.
I was surprised by the enormous amount of briefing material I received from pharmaceutical companies on these two subsections. When I receive a large volume of briefing material I begin to think, perhaps "the lady doth protest too much"; that they have a certain axe to grind. As a former general practitioner I know only too well the pressure the pharmaceutical industry puts on doctors through their representatives—often very charming and intelligent people. That is often the only information doctors have readily available in relation to the latest drugs because they are not all avid readers of the medical journals.
I understand that this may not have been the best way of dealing with this matter. But it is reasonable to think that information gathered from pharmacists for the express purpose of marketing is something about which the Government should be legitimately concerned. I am glad that discussions with the industry will continue after the Bill is passed.
§ 5.45 p.m.
§ Earl Howe
My Lords, I am extremely grateful to the Minister for that helpful and welcome response. It comes as an enormous surprise. However, I am truly delighted that he is willing to remove these subsections from the Bill. That is a reflection not only of the Minister's ability to listen to representations made to him, but also of his close understanding of the industry and of the climate within it, not least the climate of good will that I believe exists to strive to reach agreement.
I shall spend no more time on this issue, other than to ask the Minister, with the leave of the House, one question by way of clarification. It relates to subsection (3) of Clause 65. Am I right in supposing, as I hope I am, that the regulation of the access to anonymous data by pharmaceutical companies could not be achieved by exercising the power in subsection (3) "for medical purposes", given that "medical purposes" include the management of health 'and social care services? Can the Minister put my mind at rest and confirm that that part of the clause will not be used as a substitute for the powers contained in subsections (1) and (2)?
§ Lord Hunt of Kings Heath
My Lords, that relates to the second part of the clause which we shall come on 857 to discuss later and certainly will not be used as a means of implementing the first two parts by the back door.
§ Earl Howe
My Lords, I am grateful to the Minister. That question was prompted by an outside body. It will be grateful for his answer. I thank him once again for everything he had to say. We must all now look forward to a satisfactory resolution of these issues during the weeks ahead. I commend the amendment to the House.
§ On Question, amendment agreed to.
§ Earl Howe moved Amendment No. 11:
§ Page 70, line 38, after "purposes" insert "when it is not reasonably practicable to obtain valid consent and"
§ The noble Earl said: My Lords, in anticipation of the amendments to this clause which the Minister will shortly be moving, let me acknowledge immediately that those changes, as far as they go, represent welcome progress. I am in no doubt that this clause will be strengthened by adding an explicit provision for a statutory advisory committee on the face of the Bill.
§ That said, I am equally clear that, in the context of the powers proposed under this clause, the degree of progress that we are going to make today is extremely limited. I should like to take us back, if I may, to square one. One of the fundamental principles of professional medical practice is that of patient confidentiality. That principle is enshrined in GMC guidance. It is also a legal right for patients. Common law, the Data Protection Act 1998 and the Human Rights Act 1998 all safeguard patient privacy.
§ The law means that, wherever possible, patients should have control of medical information about themselves and that doctors must respect that right. In 1998 doubts were raised on the legality of supplying named patient data to cancer registries in the light of current law. Over the next two years, following consultations and further legal advice, the Government accepted that there was a real issue to be addressed. The GMC could not advise doctors to break the law. The logical outcome was that only Parliament could decide in what circumstances patients rights to confidentiality should be breached. That is the background to the part of Clause 68 that we are now considering.
§ Let me say straightaway that I am entirely sympathetic to the objective of safeguarding both cancer registries and other research-based activities which are clearly essential for the protection of patients, and the public. I understand the Government's position on this as I understand that of the GMC. There is a legal difficulty which has to be sorted out. Where I part company with the Government is in the way that they have chosen to set about doing this.
§ In this clause we have an almost ludicrously broad permissive power which effectively transfers responsibility for healthcare privacy from doctors to the Secretary of State for Health. Ministers have 858 repeatedly assured us that they understand the need to protect patient rights and to stand by the fundamental principle of informed patient consent for any disclosures of personal medical data. However, their actions, as evidenced by this clause, are diametrically opposite.
§ Nowhere in the clause is there mention of informed consent or proportionality. The model of patients as shareholders and customers of the NHS, much espoused by this Government, is absent. Instead we have literally the language of expediency and the well-worn phrase "in the public interest". The whole starting point of the clause is therefore wrong.
§ Earlier I referred to alarm and dismay in medical circles on what this clause contains. Much of that concern could have been avoided if first there had been proper public consultation and, secondly, if the intended uses of the powers and the basis on which they would be used had been included on the face of the Bill.
§ Amendments have been made to the clause by the Government, which are undoubtedly welcome. But we are still left with a sweeping power to breach patient confidentiality; a power that depends for the circumstances of its use on the wishes of the Secretary of State. The most disturbing long-term consequence of using the powers proposed in the clause, especially subsection (4)(c), is that it will destabilise public trust in medical confidentiality. When confidentiality is compromised it has a knock-on effect on trust. A shift in the relationship of trust between patients and their doctors, nurses and therapists will lead to one thing: patients who go to their doctor will no longer be open with them. It is that openness which underpins the quality of patient care, clinical governance and, ultimately, medical research.
§ If the clause is passed into law in its present form, with or without a statutory advisory committee, it will cause irreparable damage to the relationship of trust between clinicians and their patients. Never mind that there are "ifs" and "buts" and affirmative resolution procedures. The mere existence of this power, not to mention the exercise of it, will start the rot. Once doctors and nurses have ceased to be the guardians of the most private information that any of us possess, and once that guardianship has been transferred to a politician in Whitehall, you no longer have a system that will command public trust. That is a process that we should not even countenance.
§ Why is it that the Government, with over a year of their mandate still to run, are rushing through this measure? Why is it that they are trying to pressurise us into swallowing whole this hugely significant change in the law when they have not even conducted a basic consultation exercise? I was amazed to hear the other day that the Data Protection Commissioner had not formally been consulted on these proposals. Once again we hear the cry from Ministers, "Trust us; we will not abuse these powers". I say again that that is not an argument. However much we may trust Ministers and their undertakings—I trust the Minister implicitly—these are powers which Ministers in a 859 future government could in theory exploit for their own purposes. As the noble Earl, Lord Russell, reminded us so powerfully last week, sweeping, general powers such as these make bad law.
§ Those are the reasons why I am deeply disturbed by the clause as currently drafted. We should not allow it to go through as it stands. We should say to the Government, "Withdraw it; reconsider; consult and in due course come back to Parliament with a clause that is specific and clear. But when you do that, please let us see exactly what we are signing-up to."
§ The Government have resisted all calls to do that. That is why I propose in this amendment that we should hold t hem to their word. We should ensure that this clause, and the power conferred under it, takes as its starting point the central principal of informed patient consent. We should insist that the power to transfer responsibility for patient privacy to the Secretary of State should be exercised only where it is not practicable or reasonable to obtain the consent of patients. Indeed, no regulation on the exercise of the power should be made unless the possibility of informed consent has been excluded. I believe that that is the minimum for which we should be looking as we see these worrying provisions pass into law. Not long ago, the Secretary of State for Health said that the patient is king. My reply to him now is, "Prove that you mean it". I beg to move.
§ Lord Rea
My Lords, I moved the same amendment in Committee. The noble Earl, Lord Howe, spoke extremely eloquently to it. I do not wish to say anything which would spoil the effect of his very sincere statement. I believe in his strong emphasis on valid consent being obtained wherever possible.
The amendment allows the Secretary of State to overrule that sacred trust in only very special circumstances. The amendment needs to be taken in conjunction with what comes after; that is the statutory patient information committee, which will form the main part of this debate. However, it may well be that this amendment should also be included as an extra safeguard.
§ Baroness Cumberlege
My Lords, I am anxious not to sour the good spirits which have existed throughout Third Reading. I thank the Minister for the way in which he has listened and amended parts of the Bill. However, I am totally opposed to this clause.
In the course of the Bill we have amended a great many of the proposals put forward by the Government regarding systems and delivery of care. This is the one clause that goes far beyond that. It is not about delivery; it is an ethical issue of huge importance.
It is interesting to look at the way in which the clause was introduced. Prior to Second Reading, in his usual thoughtful way, the Minister sent a letter to all Peers who he thought would be interested, which set out the different clauses of the Bill. Omitted were the last two; that is, the one we have just discussed and the one we are presently discussing. That was a signal to us that the clauses were not part of the NHS Plan but were 860 tacked on by opportunists; civil servants or Ministers who felt that here was a vehicle they could use for this purpose. As a result, as my noble friend said, we have had no consultation with the medical profession, other professions or the public. I was interested to hear him say that even the Data Protection Commissioner has not been consulted. I find that surprising. This Government have so often told us that they listen, involve patients and desire to be open and transparent. I have no doubt that it will not be long before we have a class action on this clause because it does not comply with the Data Protection Act or the Human Rights Act.
Perhaps I may refer to a survey which has been conducted since Report stage. It is an online survey commissioned by the Patients Association. I believe that it is relevant to raise this matter here as no consultation has taken place. The survey was of 646 doctors, health professionals and patients. According to the media press release, it found that:The Government's plan posed a grave danger both to medical privacy and to health research. Eighty-six per cent of those surveyed were strongly opposed to the proposals, compared with only 1 per cent who supported or strongly supported the measure".The attitudes expressed in that survey are very interesting:This is a totalitarian measure and needs opposing at all cost … This Government has done more to undermine privacy than any other non-fascist Government this century. It has to stop … This must be stopped. It represents a fundamental shift towards state control and intervention rivalling Nazi proportions … The UK is becoming a police state. Civil liberties are being eroded a t a phenomenal rate".And so it goes on.
Noble Lords will be aware of the quotation from Pastor Martin Neimoellen, who said:First they came for the Jews and I did not speak out because I was not a Jew. Then they came for the communists and I did not speak out because I was not a communist. Then they came for the trade unionists"—
§ Lord Lester of Herne Hill
My Lords, I am grateful to the noble Baroness for giving way. Will she reflect on whether remarks of that kind do not diminish the horror and evil of Nazism and the Holocaust, debasing the dignity of the individual and creates an unfair stain on a government acting in good faith?
§ Baroness Cumberlege
My Lords, in no way do I want to diminish that. In fact, I was going on to say that I was sure the Minister would say that I protest too much. I can understand that but I wanted to share with your Lordships the tremendous concern that is coming through surveys such as this.
I want to endorse what my noble friend said about the trust between doctors and patients. There have been letters in The Times only this week on that particular issue. Doctors say that they will no longer give information if they feel that a patient's consent is not sacrosanct.
861 But what is even more interesting is what was said by Sir Donald Irvine, President of the General Medical Council, in his Lloyd Roberts lecture. In his conclusion, he said:As doctors, our foremost ethical duty is to serve our patients and the community to the best of our ability. The same duty falls on politicians and managers, even if their ethical codes are a little less well defined. We have to start respecting and understanding each other's values and motivators. We may then begin to trust each other. It is trust on which so much depends".So I believe that the trust between the doctor and the patient is paramount, but so is the trust between doctors and politicians. I believe that the Minister and this Government, in taking these powers, are demeaning and reducing that trust between doctors and politicians, which is so crucial if we are to deliver a health service that is effective and valued by everyone.
§ 6 p.m.
§ Lord Monson
My Lords, perhaps I may say what a convincing and powerful case the noble Earl, Lord Howe, has made for the amendment. Judging by the enormous number of representations that have been made to me and the meeting held in the Moses Room some weeks ago, I know that he echoes public opinion.
It is a modest compromise amendment. I hope that the Government will accept it, bearing in mind in particular that the noble Lord, Lord Rea, with his great experience, supports it from his side of the House.
§ Baroness Northover
My Lords, the second half of Clause 65 is about confidential patient information. It is about the balance between the individual's right to confidentiality against the public interest and the need to collect information for public health reasons and the disease registries. We realise that this is a fast-developing area and one to which we shall need to return. We all agree that the premise from which we start must be that patient information should be confidential, as this amendment implies.
However, we are equally clear that human rights legislation does not regard this as an absolute right and the Data Protection Registrar recognises that. Precisely how the balance is to be struck will be properly explored by the statutory advisory committee which we shall discuss later. The Human Rights Act and the courts are there to defend the balance between the patient's rights and the public interest. I am frankly astonished that the debate which has developed here has been attached to an amendment the substance of which is already in the clause. Somehow we have to keep in balance the difficult issues we are addressing here but somehow that has been lost in what has been said today.
§ Lord Lester of Herne Hill
My Lords, I should declare a professional interest in that I appeared as amicus curiae instructed by the General Medical Council, in the Source Informatics case. It was a case about the balance between personal privacy and freedom of expression. Although I have appeared for 862 the GMC this very afternoon in the Privy Council, perhaps I may make it clear that what I am about to say I say for myself and not on anyone else's behalf.
I agree with what my noble friend has said. I want to spell it out in clear terms and explain exactly how this clause is to be interpreted under the Human Rights Act. First, Section 3 of the Human Rights Act would require the Secretary of State, doctors and courts where possible to read and give effect to Clause 65(3) in a way that is compatible with the basic right to personal privacy, including the doctrine of informed patient consent, of course balanced in accordance with the principle of proportionality against other facets of the public interest.
Secondly, Section 6 of the Human Rights Act imposes an obligation on all public authorities, including the Secretary of State, first, to satisfy the positive obligation on this country to protect personal privacy against abuse, including any unnecessary interference. If the regulations that are made under the clause were incompatible with Article 8 of the European Convention on Human Rights because they did not strike a fair balance between personal privacy, including the principle of informed patient consent, and other facets of the public interest, the courts could declare the regulations to be beyond the powers conferred by the clause. The Government are to be congratulated on having promoted a Human Rights Act which gives fully effective safeguards against abuse.
I am all in favour of writing specific safeguards on to the face of primary legislation if it is necessary to do so in order to avoid the necessity for litigation and for lawyers such as myself to have to bring cases in court. That is a highly desirable thing to do. But by writing in the kind of language proposed in the amendment, one is not providing a balanced safeguard. The balanced safeguard will in the end be provided by the Secretary of State, or if he or she gets it wrong it will ultimately be decided by the courts themselves.
For those reasons, as well as those given by my noble friend, I would be opposed to the amendment.
§ Lord Turnberg
My Lords, much of the debate has focused on the needs of patients and the protection of their rights and confidence against the needs of researchers. We talk of striking the right balance, as though they are at opposite poles, one versus the other.
Yet we know that that is not the case. There is a clear mutuality of interest here. If we examine who seems to speak for the patients we find that it is the media, patient representative groups, Department of Health officials, politicians and Members of your Lordships' House. But do we really know what patients want? All these groups, quite rightly, act as lightning conductors for those with concerns of one kind or another, which is a considerable virtue, but it is easy for them and us to get a very distorted view.
It may sound like anecdote if I say that over 30 or more years in clinical practice I have seen thousands of patients and I believe that I have a feel for what they want. They appear to want research done which will 863 help them, and they would be dismayed if that was inhibited. That is not just my view. If one takes virtually any category of disease, whether it be cancer, heart disease, diabetes, mental disorders or Alzheimer's, one finds patient self-help groups or fund-raising charities, most of which raise money for research. They are not small subsets of the population. If one considers all the patients who suffer from those diseases, with their families and carers, and adds them together one has almost the entire population. They are the real patient representatives—the patients themselves. It is clear that when they voice a view they favour research. It is in their, and our, interest that the type of research of which we have been speaking should be pursued. I shall not reiterate the examples that I have given in previous debates in your Lordships' House.
My reason for saying that is that there has been a flurry of publicity by way of e-mails—we have all received letters and the like—to suggest that patients will be damaged and the doctor-patient relationship destroyed by the betrayal of patient confidence which the Secretary of State will perpetuate with these new-found powers. Even if we had a Secretary of State with that evil intent and he or she wished to engage so foolishly in an obvious vote-losing exercise of that kind—I hasten to add that I do not believe we have such a person at the moment—the constraints in this Bill, the conditions which have to be fulfilled. the safeguards in place, the patient advisory committee, which is now likely to be on the face of the Bill, and the strict regulations seem to me to be not only sufficient but somewhat excessive. As I mentioned in previous debates, I am concerned that they are so robust as effectively to inhibit any research being put forward.
I am convinced that we need this clause because potentially it will allow the pursuit of the types of research which use data collected in the past which cannot possibly now harm or embarrass patients. In the absence of the clause, this type of research would not be possible. I am already aware of several examples of such research which has now been stopped, and that cannot do anyone any good. I say to the noble Earl, Lord Howe, that when I spoke to the data protection registrar she was strongly in favour of the clause.
Finally, I look forward to reassurance from the Minister that the processing of applications will not be so difficult or inhibitory as effectively to prevent the research that this clause is intended to allow.
§ 6.15 p.m.
§ Earl Russell
My Lords, I believe that my noble friend Lady Northover has hit nails on the head with a precision which I hope I may be forgiven in this company for describing as surgical. The Minister is aware that I have expressed considerable concerns about the clause. In the light of his extremely generous concession about Amendment No. 10 and Amendment No. 13 tabled in his name, the question of whether the Minister has produced for us half a loaf is one for mathematicians. I am no mathematician, but, 864 in the spirit of good will that the Minister has done so much to engender by what he has done today, I am content to take that as amounting to half a loaf.
I still have considerable concerns about the method of drafting this clause which, as the Minister knows, are very much oblique to some of the concerns expressed already but in no way incompatible with them. That question is one which stretches much wider than this Bill. Before we leave the subject, will the Minister agree to communicate to those responsible for parliamentary counsel the concern which has been expressed about this general method of drafting of clauses to give undefined and extremely open-minded vires? I believe that that is a general question. If what we have done in this Bill means that in future fewer such clauses are tabled in this House that will be a very real gain.
As to the immediate matter of the amendment, the key point is the one made by my noble friend Lady Northover; namely, that the right of confidentiality is not absolute but contingent. We have here a conflict between right and right. The need for confidentiality is real and important; the need for progress in understanding and fighting disease is also real and important. Certain cases have been mentioned in which research can be done without the use of confidential data. Take, for example, the two reports which appeared last week on alleged clusters of cancer near Oldbury and Berkeley power stations. I understand that those pieces of work are controversial. Being no expert in the subject, I express no opinion on whether they are justified, but clearly they must be checked. I do not understand how they can be checked without the ability to collect a list of all the cancer cases in those areas. I am not convinced that we have found the right way between the conflict of right and right.
I was most pleased to hear my noble friend Lady Northover say that we must, revisit this subject. I hope that the Minister can find his way to agree with that. We have here a real problem, and I am not sure that we have a solution to it. I am not sure that the amendment offers a better solution. Therefore, I should like to hear an agreement on all hands that we have to find better ways to deal with this matter and we shall continue to think about it.
§ Lord Hunt of Kings Heath
My Lords, the noble Earl, Lord Russell, really put his finger on it when he said that the debate was an argument between right and right. I very much admire the noble Baroness, Lady Cumberlege, but I believe that she got it wrong. All of those who have taken part in the debate have a genuine view to express, and the differences as to how we should proceed are evident. It has been very difficult to reach a conclusion which enables us to safeguard, as far as possible, patient interest but also allows important clinical projects and programmes to continue. I believe that everyone who has taken part in the debate has a valid point to put across, and it is in that spirit that I respond to the amendment.
I fully accept that there is genuine concern about the powers in subsection (3) of the clause. The clause will allow us to achieve two objectives: first, patients will 865 receive more information about their clinical care; and. secondly, the continued operation of essential services that currently rely upon patient-identifiable information will be safeguarded.
On the question of consent, I am sure that all noble Lords are agreed that the fundamental principle governing the use of patient information by any part of the NHS or the research community is informed consent. But we must also accept that patient information is absolutely crucial and is a precious and irreplaceable resource, for example, in the fight against cancer. Historically, for decades the NHS has enjoyed the privilege of using that resource. We have made tremendous progress because of it, particularly in support of public health and medical research. That has been done in the absence of the informed consent of patients, and it is clear that that cannot continue. It is also clear that over the years the medical professions have assumed that privilege.
With the best of intentions, the NHS has had a tradition for paternalism where much of what is done in the name of science or research relies on the implied consent of patients, but that implied consent has been pushed too far. We saw that example at Alder Hey. There the issue was human organ retention. We see it in many places where confidential patient information is currently used. The most important lesson to be learnt from Alder Hey is that patients' trust will be lost if we fail to forge new relationships based on informed consent. However, the key issue we face is that the NHS is ill equipped to deliver informed consent overnight. We need a transitional facility to enable essential work to continue as we move to informed consent. We are not supporting the status quo; nor is it intended that the power can be used whenever there are problems with obtaining consents.
The General Medical Council has recognised the magnitude of the changes needed, both in the technical systems used by the NHS and in the scale of cultural change. Again, as on Report, I pay tribute to the work of the GMC on this matter. We face an enormous task, and traditional practice must change. A detailed assessment of current use of patient information needs to be completed to confirm whether it is appropriate to rely on implied consent where we need to do far more to obtain patients' consent and where alternatives, such as the use of anonymised information, can be developed.
The fundamental principle of informed consent is right. We are taking action to deliver it. But in the meantime we have to ensure the continued flow of patient information to some critical areas to protect the interests of the public and individual patients.
During the passage of the Bill I received much correspondence about the need for this clause. Sir Richard Doll and Sir Richard Peto of the Clinical Trials Service wrote:It is, we believe, important for the future health of the people in this country that a legislative framework should exist that ensures that public health surveillance and medical research can continue".866 The breadth of the power sought has been the root of concerns expressed in this House. I fully accept that if such a power did not operate with effective safeguards the potential for misuse might well undermine the trust between patients and the NHS.
The safeguards we have put in place are robust. They have satisfied the Information Commissioner who had been a vocal critic of how the NHS handles confidential information in other contexts. Perhaps I may recall the safeguards: first, the power to set aside the need for patient consent can be used only for medical purposes that are in the interests of improving patient care or in the public interest; secondly, and crucially, the clause cannot be used to require the processing of confidential patient information if the medical purpose can be satisfied in any other reasonable practical way.
As promised to the House earlier, I have assembled a working group drawn from patient and professional representation, including the GMC, the BMA, the Academy of Royal Colleges and the Medical Research Council. I have invited them to work up proposals for an expert advisory committee whose role would be to apply the test I have described to all applications for the use of patient information where consent is to be overridden. We shall come to the statutory advisory committee in a secondary debate.
Without Clause 65 we would inhibit the ability of the NHS to continue vital work. However, an equally distressing loss, on which I have not dwelt, is the right of those patients who want it to receive important information, particularly correspondence about their treatment and care.
I recognise that in part the noble Earl, Lord Howe, in moving Amendment No. 11, has found an ingenious way to have a clause stand part debate at Third Reading. But, in responding briefly to Amendment No. 11, I say to the noble Earl that I consider that Clause 65(5) makes it clear that,Regulations under subsection (3) may not make provision requiring the process of confidential patient information for any purpose if it would be reasonably practicable to achieve that purpose otherwise than pursuant to such regulations, having regard to the cost of and the technology available for achieving that purpose".I believe that that meets the concerns of the noble Earl.
Perhaps I may finally respond to the noble Earl, Lord Russell. He often invites Ministers to take up matters with parliamentary counsel. I am happy to discuss that matter with him. I also accept his offer. In the difficult way that we have had to tackle this matter and bring this clause to the House I recognise that there is an ongoing debate. I reassure the noble Earl that we see these as transitional arrangements, but we are anxious to continue the dialogue to make sure that they are as effective as possible and overridingly serve the public interest.
§ Earl Howe:
My Lords, I thank the Minister for that reply. I am grateful to all noble Lords who have spoken. This is certainly one of the most difficult and worrying issues that the House has debated in a long time. The Minister emphasised many expected points. But he has not persuaded me that the clause is anything other than a coach and horses driving through the established order of medical ethics.
In Committee, I described these proposals as the "sovietisation of British medicine". I still believe that that is an appropriate description. The Government have already made moves to implement the provisions of the clause. Information groups in general practice and hospital trusts have been directed to work on protocols on the sharing of patients' records with social services, private sector nursing homes and even the police, without the patients' consent. The rationale is that these developments are needed in order to provide so-called seamless care.
The campaign to sell this issue to the public is to be conducted under the slogan, "You can tell your doctor anything". Yes, one can tell one's doctor anything, providing one does not mind to whom he is forced to pass it on. The fact that the medical profession, as represented by the BMA and other bodies, is deeply opposed to the clause, should highlight for us the appalling dilemma in which it will be placed when in due course it finds itself obliged to obey the law and in so doing infringes the ethical principles it holds sacred.
My noble friend Lady Cumberlege referred to the recent survey by the Patients Association and other patients' groups. It shows overwhelming opposition to the Government's proposals. Over 90 per cent of those surveyed believed that the legal powers in the Bill should not be created; and an overwhelming percentage of doctors said that they would either refuse to use any system provided by government that endangers confidentiality or intentionally reduces the amount of data they placed on such a system.
If doctors started a trend of protecting patient privacy by keeping data off government computers, in no time at all the lifeblood of the research community would be cut off. I hope the Minister is in no doubt of the anxiety felt by doctors and patient groups about the clause. My amendment was designed to highlight those concerns. Obviously, I take note of what the Minister said about the provisions in subsection (5), which appear to make the amendment unnecessary. But I make no apology for using the amendment to highlight deep concerns of principle. If I had been able to do so under the rules of Third Reading, I would have sought to persuade your Lordships that the clause should be deleted and that the Government should go back to the drawing board. Regrettably, however, that is not possible.
The noble Lord, Lord Turnberg, spoke of what patients want. I respect the wishes and needs of the research community, but I am not sure whether the inevitably subjective viewpoint of special interest groups should be allowed to obscure or override a major issue of principle. I am surprised that the noble 868 Lord should brush that point aside quite as lightly as he appeared to do. The fact is that patients still can and want to be asked—
§ Earl Russell
My Lords, the noble Earl has just described research as a special interest. Does he not agree that the better curing of disease might he better regarded as a general interest?
§ 6.30 p.m.
§ Earl Howe
My Lords, as ever, the noble Earl finds the right phrase. I have no quarrel with that. My point was a rather broader one. I did not wish in any way to disparage the needs of the research community. I wished only to point out that perhaps it is not fully representative of patients.
In my experience, patients want to be asked for their data to be put on registers, including cancer registers. I felt that the noble Lord, Lord Turnberg, did not fully make the case against asking for consent. If consent is not the principle on which we proceed, the data flow would continue and researchers would not be inhibited. As I said, I have no quarrel with the need to resolve the important difficulties that the noble Lord mentioned. Cancer registries need to operate. However, as I argued, that is not the point. The point of concern is that there is a very wide-ranging permissive power, the future use of which is unclear. I am deeply uncomfortable with that. It is neither a good model for the purpose, nor a good precedent for the future. I believe that the clause will do damage to patient trust and that the Government will have cause to regret the course that they have chosen. Nevertheless, at Third Reading, and in the light of what the Minister has said, I do not propose to press the amendment. I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Lord Hunt of Kings Heath moved Amendment No. 12:
§ Page 71, line 46, at end insert ", to such extent as he considers appropriate in the light of the requirements of section (Patient Information Advisory Group),".
§ The noble Lord said: My Lords, the amendments in this group have the effect of creating a further safeguard, a statutory advisory committee, the main function of which will be to consider whether it is appropriate to lay regulations under subsection (3) of Clause 65.
§ Following on from our previous debate, I believe that an appropriate balance is set between the duties that rightfully should apply to the Secretary of State and the flexibility that a statutory advisory body for this complex area requires in order to adapt to evolving requirements. The statutory body covered by the amendments will have an important role both in advising on which purposes satisfy those requirements and on overseeing the annual review. It will be able to advise on any obligations or restrictions that should be imposed on those who are permitted access to patient information and on the confidentiality and security standards that should apply.869
§ The body will have a broad-based membership and will reflect the interests of patients, NHS professionals and the research community. We will be seeking the advice of the General Medical Council and other key bodies on membership. The body will have a difficult job, particularly in the early stages. There is clearly a balance to be struck between the need to give detailed consideration to applications and the need, for example, to avoid a tortuous and bureaucratic process that might stifle research or other work. The body will need to advise, for example, on the groupings of similar applications or types of activity so that they can be dealt with quickly while preserving the safeguard of independent scrutiny that is desired. The Secretary of State will be required to seek and have regard to the views of the body and to publish the advice it provides where that relates to the laying or amendment of regulations. That is in addition to the wider consultation required by the clause involving those likely to be affected by any regulations.
§ Finally, draft regulations will be subject to the affirmative process. I hope that noble Lords will be reassured in the knowledge that by the time that happened the regulations would have had the benefit of scrutiny by the committee the amendment sets up. We shall of course ensure that the advice of the committee, when published, is made available in good time to inform debate on proposed regulations.
§ I hope that the House will consider that the amendment and the statutory body that will be established will help to ensure that an appropriate balance between the interests of the individual and the requirements of research and public health communities is struck and that the process of using the power operates properly and effectively. I beg to move.
§ Baroness Northover
My Lords, I wish to speak to Amendments Nos. 14, 15, 16 and 17. When I was given responsibility for this part of the Bill I could see how difficult are the issues involved—the balance between the rights of the patient and the public interest. There was no consensus on the matter and many different organisations and individuals, from medical researchers to patients and doctors, were worried about how to strike that balance. There was widespread agreement that the Secretary of State's powers were too wide in the original clause.
We put forward the proposal that there should be a statutory advisory committee based on the Social Security Advisory Committee and I am delighted that the Government have accepted the need for such a committee. I very much welcome that. However, I have some concerns about the Minister's proposal which I hope he will be able to address. What we sought to do in our original proposal was to establish an independent committee involving those who are concerned with this area and spanning the various interests in this area which would give advice to the Secretary of State before regulations were laid. All that advice, and not simply a selection of it, should be published and the Secretary of State should be obliged 870 to say where he or she did not intend to take that advice and why that was. Our amendments seek to address those areas.
Amendment No. 14 states that the Secretary of State should establish the committee,after consultation with relevant organisations".It would serve no purpose if this was simply a Department of Health committee and did not seek to reflect and embody the views of those outside government. Amendments Nos. 15 and 17 state that the Secretary of State should give his or her views on the recommendations of the advisory committee so that it can be clearly seen where its advice is not being taken. Amendment No. 16 seeks to remove a phrase about the way the advice of the advisory committee is to be published. At the moment the Bill could simply allow the Secretary of State to publish the advice in a parish newsletter—no wider than that. What remains, if we remove the phrase, makes it clearer that the Secretary of State must publish all views, and not a selection of views, from the advisory committee.
We commend the amendments to the House. In responding to those many people who felt that the Secretary of State was taking powers that were far too wide and unrestrained, we put forward our earlier amendment. We are delighted that that has in essence been accepted. Our amendments simply seek to close some of the potential loopholes in the Government's proposals. I trust that the Minister may be able to address our concerns.
§ Earl Russell
My Lords, I should like to say a few words in support of Amendments Nos. 14 to 17. I welcome the Minister's amendment, Amendment No. 13, subject to the amendments which my noble friend has proposed. My noble friend said that she has based her proposal on the model of the Social Security Advisory Committee. It is a good model. It works. The purpose of the amendments, taken individually or collectively, is to make the working of the proposal come as close as possible to that which is already used in the Social Security Advisory Committee.
The point about consultation is one on which the record of the Social Security Advisory Committee is exemplary, not only in relation to its setting up, which goes back before the beginning of my political memory, but also in relation to its consultation on every individual set of regulations that come before it. At the end of each one of its reports, there is a list of the bodies it has consulted. It has chosen those bodies itself. It has done so with very great care and a very wide range of information and has done so with very great skill. That means that its reports carry a weight greater than they otherwise would.
Amendments Nos. 15 and 17 deal with the publication of the Secretary of State's opinion. That again brings us to the Social Security Advisory Committee model where the report is published with the Secretary of State's comments on it bound within the same covers. The conjunction of those two aspects serves to focus a debate with great clarity and therefore, among other advantages which might 871 commend it to a busy government, does a great deal to save the time of the House. It narrows down the area of debate and lets us get on.
That brings me to Amendment No. 16. The new clause states that:The Secretary of State shall publish, in such manner as he considers appropriate".There is a faint whiff of Cambyses in those words. A certain amount of suspicion is held within the research community that devotion to freedom of information is not quite Whitehall's favourite cause. A great deal of debate has been held, in which I remember taking part in 1988, about the Secretary of State's right to refuse consent to publication of research material. I am delighted that that is not an issue here and I welcome that warmly in Amendment No. 13. The clause states that the Secretary of State "shall publish".
However, the middle of this argument needs to be distributed a little further before we leave it. There are cases where occasionally pressure is put on researchers to leave out individual phrases or to leave out concluding sentences or paragraphs; namely, not to give the nail the final tap on the head. On occasions, a report might not be distributed with quite the publicity which one might at other times have wished.
I recall one particular report from the 1980s on poverty and health. I was out of the country when it was published. The circumstances of its publication were hotly disputed. One of those engaged in that dispute was in the Chamber only a few minutes ago, so I shall take the matter no further, except simply to say that a great deal of dispute arose over whether adequate numbers of copies of that report were published and whether they were made available at the right time. I mention this only to say that that is a theoretical possibility. I express no opinion on what happened on that occasion.
The phrase,in such manner as he considers appropriate",makes the faintly uncomfortable suggestion of leaving that particular door open. I would be a great deal happier if it were shut. For that reason, it gives me pleasure to support all of the amendments tabled by my noble friend.
§ Lord Hunt of Kings Heath
My Lords, first, perhaps I may respond to the noble Baroness, Lady Northover. In her opening remarks she referred to "balance". In saying that, she got the sense of this debate absolutely right. I can respond very positively to the key points that she made and I acknowledge the work that she undertook in bringing forward the original amendment which, as the noble Earl, Lord Russell, implied, was based on the Social Security Advisory Committee model.
Noble Lords will recall that, while I thought that the working methods of that committee no doubt would inform the practices of the proposed advisory group under consideration today, I felt that the original amendment went into too much detail because it relied on the specific wording relevant to the Social Security 872 Advisory Committee. However, I also accept that her amendments to this new clause seek to probe and clarify what I have put before the House in my own amendment. I hope that I shall be able to satisfy noble Lords that the way in which this will operate will meet the points of concern that have been raised.
Amendment No. 14 requires relevant organisations to be consulted prior to the committee being established. I have already made it clear that we shall consult with the General Medical Council and other interested bodies such as the BMA, the Medical Research Council, patient organisations and the Association of Medical Research Charities—in deference to my noble friend Lord Turnberg. I have to say that it is difficult for me to envisage how we could possibly seek to establish an effective committee without such consultation. If the noble Lord, Lord Peyton, was in his place, no doubt he would echo my thoughts when I say to noble Lords that I think that the Department of Health has a great deal of experience in setting up committees.
Amendment No. 15 requires the publication of the committee's advice, but that is already required under the terms of subsection (5) of my amendment. It also requires the publication of the Secretary of State's opinion on the advice received. Amendment No. 17 also seeks to achieve this, so I shall deal with that amendment as well. The advice of the committee will be published and Ministers will stand before noble Lords and before Members of another place to explain why regulations are needed. Furthermore, this will have followed a period of consultation with those likely to be affected by the regulations. The views received will be reflected in the advice of the committee and will be published. We have said already that we shall publish the results of such consultation. Indeed, even if we did not, those consulted would undoubtedly do so.
Amendment No. 16 seeks to remove the discretion of the Secretary of State as regards how the advice of the committee should be published. I must say that the thought that the Department of Health would use only parish magazines to publish its future guidance, advice and general information to the public is intriguing, but I do not think that we shall be going down that path. The only effect of this amendment potentially would be to limit publication to accepted traditional methods by failing to encompass the possibility of electronic and other new mechanisms for conveying information.
I hope that I shall be able to close any remaining chinks to the satisfaction of the noble Earl, Lord Russell. The fact is that the whole debate, conducted over the past three months, has demonstrated that every detail of the operation of these new arrangements will take place in a wholly transparent fashion. That is absolutely right and the Government wish to encourage that. Furthermore, I shall say that, in terms of lessons to be learnt from the Social Security Advisory Committee model, I would be happy to ensure that, in our discussions on the establishment of the new statutory advisory committee, I shall look at the experience of the Social Security Advisory 873 Committee to see whether methods and procedures used by that committee could be usefully incorporated by the new statutory advisory committee.
On that basis, I support Amendment No. 13 and hope that the noble Baroness will feel able to withdraw her amendment.
§ On Question, amendment agreed to.
§ 6.45 p.m.
Lord Hunt of Kings Heath moved Amendment No. 13:
After Clause 65, insert the following new clause—
§ "PATIENT INFORMATION ADVISORY GROUP
§ (1) For the purposes of subsections (2) and (3), the Secretary of State shall, as soon as reasonably practicable after the passing of this Act, by regulations establish a committee to be known as the Patient Information Advisory Group ("the Advisory Group").
§ (2) Before laying before Parliament a draft of any statutory instrument containing regulations under section 65(3). or making any regulations pursuant to section 65(6)(b), the Secretary of State shall seek and have regard to the views of the Advisory Group on the proposed regulations.
§ (3) The Secretary of State may seek the views of the Advisory Group on such other matters connected with the processing of patient information or of any information (other than patient information) obtained or generated in the course of the provision of the health service as he considers appropriate.
§ (4) Regulations under subsection (1) may, in particular, make provision as to—
- (a) the persons or bodies who are to be represented by members of the Advisory Group,
- (b) the terms of appointment of members,
- (c) the proceedings of the Advisory Group, and
- (d) the payment by the Secretary of State of—
- (i) such expenses incurred by the Advisory Group, and
- (ii) such allowances in respect of expenses incurred by members of the Advisory Group, as he may determine.
§ (5) The Secretary of State shall publish, in such manner as he considers appropriate, any views which he receives from the Advisory Group pursuant to subsection (2).
§ (6) In this section "the health service", "patient information" and "processing" have the same meaning as they have for the purposes of section 65."
Baroness Northover moved, as an Amendment to Amendment No. 13, Amendment No. 14:
Line 5, after "committee" insert "after consultation with relevant organisations
§ The noble Baroness said: My Lords, I welcome the reassurances given by the Minister. I should like also to thank him for his courtesy and willingness to listen during the passage of the Bill.
§ I hope that he will accept that the Bill has been significantly improved as regards the national patients' body, care trusts and, in particular, in respect of Clause 65. I beg leave to withdraw the amendment.
§ Amendment No. 14, as an amendment to Amendment No. 13, by leave, withdrawn.
§ [Amendments Nos. 15 to 17, as amendments to Amendment No. 13, not moved.]
§ On Question, Amendment No. 13 agreed to.874
§ Clause 68 [Regulations and orders]:
§ Earl Howe moved Amendment No. 18:
§ Page 75, line 10, leave out from first "or to "regulations" in line 11.
§ On Question, amendment agreed to.
§ Clause 74 [Short title, commencement and extent]:
§ Lord Hunt of Kings Heath moved Amendments Nos. 19 and 20:
Page 77, line 25, after "(13)," insert "(Patient Information Advisory Group),"
Page 77, line 25, after "section, insert—
() Part 3 of Schedule 5,
§ On Question, amendments agreed to.
§ Schedule 5 [Minor and consequential amendments]:
§ Earl Howe moved Amendment No. 21:
§ Page 95, leave out lines 3 and 4.
§ On Question, amendment agreed to.
§ Lord Hunt of Kings Heath moved Amendment No. 22:
Page 95, line 38, at end insert—
§ "PART 3
§ PATIENT INFORMATION
§ 17 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975 (which lists bodies of which all members are disqualified for membership of the House of Commons), at the appropriate place insert—
§ "The Patient Information Advisory Group".
§ "The Patient Information Advisory Group"."
§ On Question, amendment agreed to.
§ On Question, Bill passed, and returned to the Commons with amendments.