National Health Service Reform and Health Care Professions Bill

HL Deb 16 May 2002 vol 635 cc427-76

3.31 p.m.

Read a third time.

Baroness Northover moved Amendment No. 1:

After Clause 2, insert the following new clause—

"DUTY OF PRIMARY CARE TRUSTS, NHS TRUSTS AND STRATEGIC HEALTH AUTHORITIES REGARDING EDUCATION, TRAINING AND RESEARCH Primary Care Trusts, NHS trusts and Strategic Health Authorities shall have a duty to safeguard and promote education, training and research.

The noble Baroness said: My Lords, the arguments over this area of the Bill have been well rehearsed and cogently argued. That is, no doubt, why everyone is leaving the Chamber. I shall therefore be as brief as I can.

We all agree that education, training and research are vital for the future of the NHS. The Government's plans to expand the number of doctors, nurses and other staff makes that even more important. We know that all is not well at present. On Report I highlighted the fact that Guy's, King's and St Thomas' schools of medicine are now shedding clinical teaching staff on a vast scale.

However, this matter does not only concern medical schools—far from it. It concerns the whole of the health service. If it works effectively, devolution within the health service should produce a massive shift to local areas and their needs. Of course, much of that is to be welcomed.

But national standards and national needs must also be addressed. We have expressed our concerns about that elsewhere in the Bill, and we shall return to the issue when looking at specialist commissioning. Clearly, giving a high priority to education, training and research is exactly one such area. It may not seem a pressing need at local level, given all the other competing claims, but it is what will underpin the future of the health service. We all agree on that.

This debate turns on the difference between the words "may" and "must". We say that at all levels of the service, research, education and training must be supported. The Government seem to believe that "may" is enough. In Committee the Minister said that, it is in the interests of the National Health Service and the Government to ensure that we address [those areas]",—[Official Report, 18/3/02; col. 1117.]

Indeed!

At Report stage, the Minister pointed out that. primary care trusts are empowered to 'conduct, commission or assist in the conduct of research'".

and that they can, 'make officers and facilities available in connection with training'".

That is, they can, but they do not have to.

The Minister said that he accepted that, there is an issue [here] in regard to power and duty".

That is, indeed, the point. He spoke of dedicated funding streams for teaching and research, adding, I do not believe that primary care trusts will be under pressure to spend that money for other purposes".—[Official Report, 29/4/ 02; col. 507.]

I trust that noble Lords will excuse my scepticism here. On Report I quoted a case where administrators had sought to redirect money from research and teaching into a black hole by the tactic of increasing the levy charged for allowing their premises to be used. There are ways and means of tapping into such money.

I take another case in point. The Government announce increased expenditure on cancer. Does it reach the areas that it is supposed to reach? It does not—to the enormous frustration of patients and clinicians, as the Minister knows.

The Minister is, and knows that he is, overly-optimistic if he believes that permitting the support of research and teaching, as opposed to ensuring such support, will be adequate. We know how much pressure there is on administrators to ensure each year that they achieve their various targets, not least financial ones. Education, training and research must not be squeezed out by such pressures.

The amendment is very simple. It says that in the interests of the future of the health service and, therefore, of patients, trusts and strategic health authorities must have a duty to safeguard and promote education, training and research. I beg to move.

Baroness Noakes

My Lords, we on these Benches support Amendment No. 1. The issue of safeguarding and promoting education, training and research was debated thoroughly both in Committee and on Report. The noble Baroness, Lady Northover, has summarised the key concerns that were raised on all sides of the House. Those concerns were largely expressed in terms of medical education, training and research, but the amendment is rightly drawn in the widest possible terms and embraces all aspects of education, training and research relevant to the NHS.

I do not believe that there is any disagreement in this House about the importance of education, training and research, or about the fact that there are currently problems in delivery. The disagreement focuses on how big that problem is and how well the existing structures of the NHS will allow education, training and research to thrive and prosper.

At earlier stages of the Bill, the Minister referred to the powers that exist in NHS legislation. I do not believe that the existence of the powers has ever been suggested to be the issue. The issue is whether the powers are being used. That is why the amendment includes the word "duty". The Minister has never explained why he believes that there should not be a duty on the face of the legislation. He has rightly pointed out that what is important is what happens in practice, and we have heard many fine aspirations about teaching and research. I doubt that anyone in the NHS or, indeed, in your Lordships' House would not sign up to those aspirations.

However, it is plain to all those involved that teaching and research in the NHS are vulnerable and threatened. In practice, the process simply does not work well enough. There is ample anecdotal evidence that teaching and research resources are squeezed at NHS trusts. For example, lecture rooms are used for other purposes; doctors are so overwhelmed by the day-to-day demands placed on them that little or no time remains available for research; and there is a staffing crisis at universities.

The Minister has expressed considerable confidence that central earmarking of funds for teaching and research means that those funds are spent on those matters. But, as the noble Baroness, Lady Northover, said, many in the NHS do not believe that.

It is tempting to think that the extra resources being put into the NHS as a result of the recent Budget will make the problem go away. Part of the problem has, indeed, been the squeeze on NHS finances. But I do not believe that it is as simple as that. It is far from clear that any extra resources will find their way into teaching and research.

The heart of the question is whether all the bodies in the NHS with a role to play in education, training and research will, in fact, deliver. Many of us have doubts about PCTs, both in relation to their lack of preparedness for their responsibilities and their natural primary care orientation. Both those features mean that there can be no certainty that PCTs will commission in a way that promotes and safeguards education, training and research.

I have already mentioned the concerns that exist at the level of NHS trusts. That leaves strategic health authorities. On Report the Minister told the House that there would be health and education sector partnerships at the level of strategic health authorities. In Committee, he laid stress on the role of strategic health authorities in performance managing PCTs if they do not achieve what those authorities believe that they should. One must have great faith in the efficacy of loose structures and untried processes to believe that that will solve the problem. It is clear to me that the responsibility of NHS bodies for education, training and research needs to be put beyond doubt. That is why we support the amendment.

Lord Walton of Detchant

My Lords, I have had the privilege of being involved in clinical practice in the NHS since its inception. For many years I was involved in teaching medical students and in clinical research. It is generally acknowledged that the standard of medical education in this country over all those years has been second to none. It is also generally acknowledged that clinical research, much of it conducted in the National Health Service, in the hospitals and in the community, has been responsible for enormous developments in patient care.

The National Health Service Act 1946 included a requirement that teaching and research should be supported from the beginning. At the start of the health service there was a knock-for-knock agreement, by which it was agreed that clinical academics working in and employed by the universities should devote six half days a week of their time to clinical service and five half days in a week to teaching and research. The other part of that agreement required NHS staff, including consultants, to give teaching services to medical students and to other staff. Many years ago that agreement was eroded. Evidence from the heads of medical schools—the Council of Heads of Medical Schools—clearly indicates that many clinical academics are spending a minimum of 40 hours a week and some as much as 58 hours a week in clinical practice to the detriment of teaching and research.

One outcome has been that many young clinical academics, due to a lack of research productivity, have not been able to persuade the research assessment exercise of the Higher Education Funding Council that they are involved as sufficiently in research as they should he, in order to improve the funding of their particular medical schools. The consequence has been that because of cuts in funding by the Higher Education Funding Council, a considerable number of clinical academic staff in two London medical schools will be made redundant. That is happening at a time when the Government are committed to increasing medical student numbers because of the massive shortage of doctors in the National Health Service. I therefore sympathise with and support the intention underlying the amendment.

Another reason why I do so is that there is a shortage of recruits into clinical academic medicine. That is not surprising. There are 73 vacant chairs and almost 300 vacant clinical lectureships because the attractions of academic work and of teaching and research have been steadily eroded, often by pressures from managers in the NHS trying to compel members of staff to see more and more patients in order to reduce out-patients' and in-patients' waiting times and many other factors.

The Minister has been kind enough to tell me that he has had discussions with the Council of Heads of Medical Schools. I agree with what has been said already, that there is a difference between a permissive power within an Act, which gives the right or the opportunity of health service bodies to support teaching and research and a requirement that they must do so. For the life of me, I cannot see why there can be any objection to an amendment of this nature being put on the face of the Bill. I hope that the Government will use its good offices, in consultation with the universities, and with the health service bodies, to make certain that the clinical practice of clinical academics will he reduced and that their time for teaching and research will be preserved. I support the amendment.

3.45 p.m.

Baroness Cumberlege

My Lords, throughout its passage I have consistently tried to get the word "duty" on to the face of the Bill. I was delighted to hear the noble Lord, Lord Walton, say that the Minister has had talks with the heads of medical schools. I understand that the Minister may give noble Lords some words of comfort, which to some extent I welcome. Words of comfort can evaporate in the mists of time. We want the word "duty" to be incorporated into the Act so that there is a "must do", a requirement and so that there is no ambivalence.

At Report stage I gave your Lordships an example of where I felt a duty was important. I mentioned my son, who had a penchant for motorbikes. He was very reluctant to use a crash helmet. In the language of the young, he felt that it was not cool. But a law was introduced, so as a parent, I had authority to say to my son, "You are not going on that motorbike without a crash helmet". What I did not tell your Lordships on that occasion was that about two months later the splendid East Sussex Ambulance Service scraped him off the road. I and the Ambulance Service have no doubt that the crash helmet saved his life, or at least saved serious brain damage.

I am anxious to avoid serious brain damage for United Kingdom plc. Without a doubt, I agree that there is a crisis in academic chairs and young lectureships, as mentioned by the noble Lord, Lord Walton. I have heard others say that in this country we excel in the quantity and the quality of our medical research. The noble Lord said that he believed it was the best in the world; I have heard that it is the second best in the world because the United States is a little better than us. That is not surprising as the United States is very large and very rich.

Not only do we excel in quantity and in quality, but we also excel in our cost-effectiveness. We are innovative. We are good at thinking up new ways of doing things. One has only to look at the Cochrane collaboration which is now being replicated all over the world. That is one man's vision and one man's inspiration. Sir Ian Chalmers conceived that and has firmly established it.

I believe that we have real strength and more. Amazingly, we have so many opportunities: new opportunities in epidemiology, in tracking disease and in finding cures because we have a unique patient database that we can use. As primary care develops—I have much sympathy with what the Government are doing to try to strengthen primary care—we can build further on much of the research and, more importantly, on joint training in primary care and in the community. In the future, teamwork will deliver the services.

We can also involve patients more directly in understanding science and research. In that context there is a mission. It is less threatening to understand a research project in which one is invited to take part when it is explained to one in the familiarity of a GP's surgery rather than in some remote, cold, clinical hospital. In this country we have a huge communications problem in promoting the public's understanding of science and research. For decades the Royal College of General Practitioners has promoted and encouraged research in general practice. When reading the BMJ it is encouraging to see how much of that journal is dedicated to publishing peer-reviewed research carried out by GPs and occasionally by nurses and other health professionals working in community medicine.

That is a terrific picture. We really excel. Enormous achievements are being made, but I share the grave concerns of the noble Baroness, Lady Northover, and my noble friend Lady Noakes. Against the background of all that achievement, many of us fear that the enormous pressures now being exerted on primary care teams, GPs and other staff to meet targets will erode what we have achieved so far. I work intimately with primary care trusts at present, which is rewarding and interesting, but the pressures on them are huge. There are targets for waiting times in surgeries and referrals, national service frameworks, health improvement programmes, patient involvement, GP assessment, cancer plans and the need to balance the books, recruit staff and so on. Their agenda is enormous. I am sure that the Minister would agree that the new boards and professional executive committees will face a huge challenge.

I am certain that research and training is not at the top of the list—it is going continually down the list as more pressures are placed on trusts to deliver. My noble friend Lady Noakes and the noble Lord, Lord Walton, talked about commissioning, so I shall not go into that, but I point out that primary care trust boards are not only commissioners but managers. They are in fear of a visit from the Commission for Health Improvement and are having to learn about all their new work as managers as well as commissioners. That is why they should also have a duty in respect of research and development.

One of the great hallmarks of your Lordships' House has been its championing of research and scientific endeavour. I remind your Lordships that it was this House that in 1992 persuaded the government to introduce the post of Director of Research and Development in the Department of Health. That was strongly resisted at the time, but it was eventually conceded. That post, which was the result of an initiative from your Lordships' House, has made a marked difference to how the National Health Service now invests in and carries out research.

I suggest that we hold to that which we know to be true, eschew the warm words of comfort that I suspect that we shall hear from the Minister and support this cross-party amendment with some of the same determination that the House exercised 10 years ago.

Baroness Carnegy of Lour

My Lords, I shall briefly amplify what my noble friend said. For several years, I was chairman of a medical research ethics committee. We considered about 350 research projects every year. Those projects took place in our area—we were attached to a teaching hospital and to a university—because so many GPs, hospitals and other NHS people were willing to take part in research. If hospitals or GP surgeries were not prepared to take part, much of that research could not take place. The Minister well knows that there must be a constant search for new drugs, which requires new trials over a wide area of the country. It is essential that GPs and hospitals at trust level are prepared to take part in those trials.

Apart from that, the knowledge that research is taking place locally helps to recruit local people to take part in research as victims, as it were. That is important. It also makes for a lively NHS staff. Teaching and training must continue, even at cleaner level, but if research does not continue people are not aware that practices must be constantly updated—tried out, undertaken and established—in order to run a good show. There is no question but that that must be an obligation at trust level. I hope that the Minister will give in, because so far his response has been somewhat inadequate.

Baroness Emerton

My Lords, I, too, want to speak in favour of the amendment. If healthcare is to be effective and improved, we must promote and safeguard education, training and research not only in medicine but in so many other healthcare professions—in nursing, midwifery, physiotherapy and so on. That is why I welcome the breadth of the terms of the amendment.

We must bear in mind that research in some of those professions started later than in medicine. I was associated with some of the first research into clinical nursing in the 1960s, which was sponsored by the Department of Health. We therefore have a much shorter history of research into nursing than has the medical profession. That is why I support the amendment with all my heart.

Baroness Finlay of Llandaff

My Lords, I rise not only to speak to the amendment but to explain the reason for the difference between its wording and that of Amendment No. 3, which stands in my name. The push for increased learning and the culture of learning across the NHS has been widely heralded as government policy. We have clearly heard the arguments why more resources need to go into education, training and research.

Perhaps I may briefly illustrate that with an example from this morning in my hospital medical school. There were not enough tutorial rooms for one group of students to be taught, and 40 of them were trailing across the campus and looking for a room. The increased number of students coming through the system is putting an enormous pressure on teaching space. Sadly, the powers that are meant to be in place to ensure that their education and training is supported have not been implemented and have not kept pace.

There is great concern that with the new private finance initiative bills for new hospitals, finance is not being set aside to ensure adequate teaching rooms. There should be tutorial rooms on wards so that the high standard of clinical training for which this country is renowned can continue, but making a room available and ensuring that it remains available costs money. In many hospitals around the country, a teaching room was set aside but has been taken over and not replaced because of the pressure for office space.

The reason for the different wording of Amendment No. 3 is that the pattern of commissioning services in Wales will be different from that in England and has not been finally decided whether there will be three health authorities. Hence the phrase, those commissioning specialist services on behalf of the National Assembly for Wales". I understand from the Minister, Jane Hutt, that there will be three offices of the National Assembly for Wales—one in the North, one in the West and one in the South-East—which will take over many of the duties and commissioning obligations currently held by the health authorities which are in the process of being abolished. It is certain that not all of those responsibilities will be devolved to local health boards, because they are not ready to cope with complex commissioning. They will fall between the boards and the specialist commissioning body for Wales, which will deal with rare and highly specialised commissioning. So commissioning of services such as cancer services, which cut across all trusts, needs to occur at a level that is currently not clearly determined.

Hence the different wording, but the amendments are compatible in spirit and in placing a duty on those at all levels—out in the community and in hospitals—to ensure that the high standards for which Britain has been renowned do not slip. Sadly, the Research Assessment Exercise demonstrated that over the years there has been slippage in academic surgery departments. The number of them that are world-class is declining, but those arguments have already been eloquently made by other noble Lords.

4 p.m.

Lord Roberts of Conwy

My Lords, I support the amendments in the group, particularly Amendment No. 3, which applies the basic principles to Wales, where, as the noble Baroness, Lady Finlay of Llandaff, said, the organisation of the health service is to be somewhat different.

As the noble Baroness, Lady Northover, said, we covered this ground in Committee. The Minister made great play of the fact that other NHS legislation gave permissive powers to promote education, training and research. As my noble friend Lord Howe said, those permissive powers do not amount to a duty. Your Lordships generally believe that such a duty should be imposed on the authorities named in the new clauses. The need for such a duty is particularly pressing, now that the Government have admitted that more frontline staff will be required, if their ambitions for the NHS are to have the slightest chance of being achieved.

We are all aware of current staff vacancies in the medical schools. I have a report from the Council of Heads of Medical Schools that gives all the details. There are 73 unfilled professorial posts out of 1,042 full-time equivalents. There are 118 reader/senior lecturer vacancies out of 1,663 posts and 136 lecturer vacancies out of 844 posts. Those are fairly high percentages. The report says that the percentage of vacant posts is a cause for concern, especially in the context of the rapid expansion of medical education.

I suspect that the report is somewhat dated by now. If anything, the situation has worsened, since the publication of the report, as the noble Lord, Lord Walton of Detchant, intimated. The need for training, education and research is more pressing than ever. There should be a duty on the authorities to promote them.

Lord Clement-Jones

My Lords, some powerful points have already been made, and I shall speak briefly in support of the amendment in my name and the names of my noble friend Lady Northover and others.

The safeguarding of teaching, training and research at all levels is extremely important. The amendment is well designed to do that. One could go through the range of training, research and teaching, as several noble Lords have done in a cogent manner. For me, the tip of the iceberg was revealed in a report that appeared in The Times on Monday about redundancies at Guy's, King's and St Thomas's Hospitals. There have been reports about Imperial College and Queen Mary and Westfield College. I understand that further redundancies are on the way at Queen Mary and Westfield College. At a time when, as the noble Lord, Lord Walton of Detchant, said, we are meant to be increasing the number of places for medical students, such reports are symptomatic of the place of teaching and research in the Government's thinking—rather low down.

Although the same system of research assessment takes place in Scotland, it does not have, as far as I am aware—I have been there for the past few days—the same problem as we do. In England—I stress England, although it may apply to Wales too—there is a problem with joined-up government. Once the research assessment has been carried out and grades given, a funding problem arises. I suspect also that medical research carried out by clinicians is not rated as highly for the purposes of the RAE as pure science research. That is also a symptom of the problem.

It is a matter of enormous concern. We will not have the increase in the number of doctors that we need, unless we do things properly. This is a first step. Government action is needed, but a signal of this kind would go all the way through the NHS and would be extremely important.

Baroness Masham of Ilton

My Lords, at lunchtime today, one of your Lordships told me that he had to travel to South Africa every month to get treatment for leukaemia. The procedure is not undertaken in the UK. We are slipping behind in several areas of serious healthcare. In that case, the countries that can provide the treatment for the noble Lord's leukaemia are South Africa, the United States and Israel. Why is it not available in Britain? I support the amendment.

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

My Lords, it has been an interesting debate. I agree with the noble Baroness, Lady Noakes, that there is no disagreement about the importance of teaching and research in the National Health Service. The argument is about the best way to ensure that the NHS gives appropriate support to teaching and research.

Noble Lords kindly referred to the comments that I made at earlier stages of the Bill's progress. They will know that I am not convinced that the best way forward is to create a duty in the Bill, especially as the amendments do not define the words "education", "training" and "research". If the amendments were accepted, they would leave only a vague sense of what was required by NHS organisations. I must also repeat the point that I made at earlier stages, although I shall not repeat the various references to earlier legislation. Legislation already allows the Secretary of State to support teaching and research and to ensure that arrangements are made for such facilities—a subject raised by the noble Baroness, Lady Finlay of Llandaff—as he considers are reasonably required by any university for clinical teaching and research.

Notwithstanding the legislation, the real issue—and the core of the argument—is how we ensure that the NHS takes those matters seriously. I accept that that is the challenge, particularly for primary care trusts. I had a meeting this week with the Council of Heads of Medical Schools that was, in the light of our earlier debates, most useful and constructive. I had a welcome opportunity to explore with the council ways in which we could ensure that primary care trusts provided the necessary support, by which I mean engaging patients and carers in support of teaching and research; fostering the special opportunities for research available in primary care; teaching the entire range of health profession students: and taking full account of teaching and research in their commissioning of local and more distant hospital and specialist services.

I told the council that the Government expected that the primary care trusts would grasp the opportunity to ensure the long-term success of the NHS Plan and the continuing contribution of the NHS to health-related research and education. I accept the point made by the noble Baroness, Lady Cumberlege, about the extraordinary expansion of research capability among primary care workers and general practitioners.

The Government have listened carefully to the arguments made by noble Lords at each stage of the Bill's passage. I am in no doubt about the need to modernise the arrangements for liaison and partnership between the health and education sectors, in order to address some of the issues raised. The noble Lord, Lord Clement-Jones, suggested that there was some defect in the arrangements for liaison between the Department of Health and the Department for Education and Skills. While I do not necessarily accept that is so, I agree that we need to streamline the liaison arrangements between the two Departments and other organisations in the education sector. Officials in my Department and the DFES are drawing up proposals to develop a new national framework to ensure joint working, to take forward the education, research and service agendas—and to obtain an overview of the inter-relationship between them. The role of primary care trusts will of course be part of that consideration and the Permanent Secretary at the Department of Health will play a leading role.

Agreement has already been announced for a strategic alliance between my department and the Higher Education Funding Council for England. That alliance covers learning, teaching and research and builds on the earlier alliance between the Department and HEFCE on research issues. This is the ideal opportunity to pick up on some of the matters raised by your Lordships.

The noble Baroness, Lady Carnegy, mentioned her work in regard to research ethic committees—and I agree with her points. This morning, in the Ministerial high-level strategic group that my Department and others, including the DTI, have with the research-based pharmaceutical industry, agreement was reached between the industry and the Government to institute work that will look specifically at how primary care trusts can contribute more effectively to clinical research.

A number of points were made about clinical academics and that profession's relationship with the expansion in medical school places. The Department of Health and HEFCE have established a joint group to oversee the implementation of medical schools expansion. That group's membership will include the Chair of the General Medical Council's education committee. Part of the group's remit will he lo monitor recruitment to posts needed to facilitate the expansion of medical students. It will identify other issues related to that expansion and recommend appropriate action. The group's first meeting is scheduled for tomorrow. Clinical academic staffing is a key issue on the agenda.

The noble Baroness, Lady McFarlane, is right to suggest that we ought not to confine our remarks to medical teaching and research. I pay tribute to the noble Baroness's pioneering work in excellence in nursing research and teaching. My comments in terms of principles should be applied to the other health professions.

It is good to welcome back the noble Lord, Lord Walton, to our debates. He specifically mentioned issues relating to clinical scientists. Last year, I was pleased to launch a new clinical scientists scheme—which came about as a result of long-standing concerns about clinical academic career prospects. A report by the Academy of Medical Science recommended extra clinical scientific posts and we were able to build on that recommendation.

In additional to work at national level, I envisage local partnerships involving strategic health authorities, workforce development confederations, primary care trusts, NHS trusts, universities and other education establishments. Those partnerships will in the main be across the areas of strategic health authorities—which in any case have a strong performance management role in relation to PCTs and will be well able to pick up on issues of concern if they consider that the actions of PCTs are damaging the interests of teaching research in their strategic health authority areas.

It is extremely important that one of the non-executive members for each strategic health authority will be from an institution within the higher education sector responsible for the delivery of pre-registration education in medicine, dentistry, pharmacy, nursing or other allied health professions. That will enable strategic health authorities to be clear about their responsibilities in relation to teaching and research. My experience of non-executives appointed from higher education institutes is that: they are not backward at coming froward. I am sure that they will be encouraged to do so.

The noble Baronesses, Lady Northover and Lady Noakes, were concerned that central funding for research, learning and development would not be spent appropriately at local level. All the funding is allocated directly to NHS providers, including primary care organisations. Funding streams are separately accounted for while other dedicated funding streams for teaching and learning—such as the PGEA and study leave for general practitioners—are also managed separately, to ensure their protection. Those arrangements secure the teaching and research funding protection that your Lordships rightfully sought.

As to the amendments, PFI is a bit of a red herring. I invite the noble Baroness, Lady Finlay, to visit the Norwich and Norfolk NHS Trust, which only opened a few months ago. There is a new medical school across the road. The noble Baroness would see for herself that it is impossible within a PFI scheme to enhance teaching, research and clinical services.

Amendment No. 3 would confer a general power on the Welsh Assembly to establish local health boards. As to my comments about teaching research, such matters are for the Welsh Assembly. It would be inappropriate to include specific limited examples in a general permissive power, as that would frustrate the whole purpose of establishing a national assembly. I assure the noble Baroness and others that I recognise the issues that have been raised.

4.15 p.m.

Baroness Finlay of Llandaff

My Lords, it is not the intention to sabotage the role of the National Assembly for Wales. Its purpose is to ensure equal provision and that standards of educational facilities in Wales match those in England.

Lord Hunt of Kings Heath

My Lords, the noble Baroness should take up that matter with the Welsh Assembly. It is not an issue on which I, as a Department of Health Minister, can comment.

I hope that I have convinced your Lordships that I regard education, training and research as extremely important. I so agree with the noble Lord, Lord Walton, that high-quality teaching of research is crucial. It is the bedrock of the NHS and of the superb professionalism of our staff. It goes wider. It is a critical factor in the success of the UK as a nation. I understand that your Lordships are concerned not to see any dissipation—and no one should doubt my determination to enhance our teaching and research capacity. The proposed new clause is superfluous. Key is vigorous action.

Clear recognition of PCTs' responsibilities in teaching research, streamlining of the relationship between the Department of Health and the Department for Education and Skills, the strategic alliance between the Department and HEFCE, the initiation of work with the research-based pharmaceutical industry on PCT contribution to clinical research and the special group involving the Department and HEFCE to oversee the implementation of medical school expansion and pick up on points made about clinical academics is a powerful package of measures—one that will ensure that we enhance teaching research in this country.

Baroness Northover

My Lords, I thank the Minister for that reply and I thank noble Lords for their powerful contributions to the debate today and previously on the Bill. It seems as though the Government are taking some welcome measures, but it is a complex package with bits here and bits there. That underlines our belief that we need to have a duty on the face of the Bill.

We continue to believe that support for research, education and training must placed on the face of the Bill and not be allowed to become actions which "can" take place rather than "must" take place. During the passage of the Bill there have been opportunities for that change to be made but it has not happened. I therefore do not feel reassured and I wish to test the opinion of the House.

4.20 p.m.

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

Their Lordships divided: Contents, 131; Not-Contents, 108.

Division No. 1
CONTENTS
Aberdare, L.	Eden of Winton, L.
Ackner, L.	Elles, B.
Addington, L.	Elliott of Morpeth, L.
Alderdice, L.	Elton, L.
Allenby of Megiddo, V.	Ezra, L,
Alton of Liverpool, L.	Ferrers, E.
Ampthill, L.	Finlay of Llandaff, B.
Anelay of St Johns, B.	Fookes, B.
Ashcroft, L.	Fowler, L.
Astor, V.	Freeman, L.
Astor of Hever, L.[Teller]	Gardner of Parkes, B.
Barker, B.	Geddes, L.
Blaker, L.	Greenway, L.
Blatch, B.	Harris of Richmond, B.
Boardman, L.	Hayhoe, L.
Bowness, L.	Henley, L.
Bradshaw, L.	Higgins, L.
Brightman, L.	Holderness, L.
Brooke of Sutton Mandeville, L.	Hooper, B.
Burnham, L.	Howarth of Breckland, B.
Byford, B.	Howe, E.
Caithness, E.	Howell of Guildford, L.
Campbell of Alloway, L.	Hunt of Wirral, L.
Carnegy of Lour, B.	Jenkin of Roding, L.
Clement-Jones, L.	Jenkins of Hillhead, L.
Cobbold, L.	Jopling, L.
Colwyn, L.	Kimball, L.
Cope of Berkeley, L.	Lane of Horsell, L.
Cox, B.	Lyell, L.
Craigavon, V.	McColl of Dulwich, L.
Cuckney, L.	McFarlane of Llandaff, B
Cumberlege, B.	Mackay of Clashfern, L.
Darcy de Knayth, B.	Mackie of Benshie, L.
Dean of Harptree, L.	McNally, L.
Denham, L.	Mar, C.
Dholakia, L.	Marlesford, L.
Dixon-Smith, L.	Masham of Ilton, B.
Dundee, E.	Miller of Hendon, B.

Monson, L.	Rodgers of Quarry Bank, L.
Montrose, D.	Roper, L.
Mowbray and Stourton, L.	Russell, E.
Moynihan, L.	Saatchi, L.
Murton of Lindisfame, L.	Sandwich, E.
Newby, L.	Seccombe, B.
Noakes, B.	Selborne, E.
Northbrook, L.	Selsdon, L.
Northesk, E.	Soulsby of Swaffham Prior, L.
Northover, B. [Teller]	Stewartby, L.
O'Cathain, B.	Swinfen, L.
O'Neill of Bengarve, B.	Taverne, L.
Oakeshott of Seagrove Bay, L	Tenby, V.
Oppenheim-Barnes, B.	Thomas of Gresford, L.
Oxford, Bp.	Thomas of Gwydir, L.
Park of Monmouth, B.	Thomas of Walliswood, B.
	Trefgarne, L.
Patten, L.	Trumpington, B.
Perry of Southwark, B.	Vivian, L.
Platt of Writtle, B.	Waddington, L.
Plumb, L	Wallace of Saltaire, L.
Plummer of St. Marylebone, L.	Walmsley, B.
Rawlings, B.	Walpole, L.
Razzall, L.	Walton of Detchant, L.
Rees, L.	Weatherill, L.
Rennard, L.	Wigoder, L.
Renton, L.	Williams of Crosby, B.
Roberts of Conwy, L.	Williamson of Horton, L.
NOT-CONTENTS
Alli, L.	Grocott, L.
Andrews, B.	Harris of Haringey, L.
Archer of Sandwell, L.	Haskel, L.
Ashley of Stoke, L.	Hayman, B.
Ashton of Upholland, B.	Hilton of Eggardon, B.
Bassam of Brighton, L.	Hollis of Heigham, B.
Berkeley, L.	Howie of Troon, L.
Bernstein of Craigweil, L.	Hoyle, L.
Billingham, B.	Hughes of Woodside, L.
Blackstone, B.	Hunt of Chesterton, L.
Borrie, L.	Hunt of Kings Heath, L.
Bragg, L.	Irvine of Lairg, L. (Lord Chancellor)
Brett, L.
Brookman, L.	Janner of Braunstone, L.
Bruce of Donington, L.	Jones, L.
Campbell-Savours, L.	Judd, L.
Carter, L. [Teller]	Layard, L.
Christopher. L.	Lea of Crondall, L.
Clark of Windermere, L.	Lipsey, L.
Clarke of Hampstead, L.	Lofthouse of Pontefract, L.
Clinton-Davis, L.	Macdonald of Tradeston, L.
Corbett of Castle Vale, L.	McIntosh of Haringey, L. [Teller]
Crawley, B.
David, B.	McIntosh of Hudnall, B.
Davies of Coity, L.	MacKenzie of Culkein, L.
Davies of Oldham, L.	Mackenzie of Framwellgate, L.
Desai, L	Massey of Darwen, B.
Dixon, L.	Merlyn-Rees, L.
Donoughue, L.	Milner of Leeds, L.
Dormand of Easington, L.	Mishcon, L.
Dubs, L.	Mitchell, L.
Elder, L.	Morris of Aberavon, L.
Evans of Temple Guiting, L.	Morris of Manchester, L.
Farrington of Ribbleton, B.	Moser, L.
Faulkner of Worcester, L.	Nicol, B.
Filkin, L.	Pendry, L.
Fyfe of Fairfield, L.	Peston, L.
Gale, B.	Pitkeathley, B.
Gibson of Market Rasen, B	Ramsay of Cartvale, B.
Gilbert, L.	Randall of St. Budeaux, L.
Gladwin of Clee, L.	Rea, L.
Goldsmith, L.	Rendell of Babergh, B.
Grabiner, L.	Richard, L.
Graham of Edmonton, L.	Rooker, L.
Grenfell, L.	Sainsbury of Turville, L.

Sawyer, L.	Turner of Camden, B.
Scotland of Asthal, B.	Uddin, B.
Serota, B.	Walker of Doncaster, L.
Sheldon, L.	Warwick of Undercliffe, B.
Simon V	Wedderburn of Charlton, L.
Stallard, L.	Whitty, L.
	Wilkins, B,
Strabolgi, L.	Williams of Elvel, L.
Temple-Morris, L.	Williams of Mostyn. L. (Lord Privy Seal)
Thornton, B.
Tomlinson, L.	Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

4.32 p.m.

Clause 3 [Directions: distribution of functions]:

Lord Clement-Jonesmoved Amendment No. 2:

Page 4, line 9, at end insert "; or () are to be exercisable by the National Specialist Commissioning Advisory Group, The noble Lord said: My Lords, I make no apology for coming back to the issue of specialised commissioning albeit, if hope, somewhat more briefly than in our discussions on Report, but I do so in order to obtain further and better particulars from the noble Lord, Lord Filkin, if he is responding. I am glad to see that he will. I recognise that the wording of the amendment may not provide the perfect vehicle for debate.

On Report, the noble Lord, Lord Filkin, declared that the Government were adopting a pragmatic approach to commissioning for specialised services. That was welcome, as was the information given to the House that the Minister of State, Mr Hutton, had commissioned a review with the intention of issuing guidance in the autumn on arrangements relating to the period beyond 2002–03. However, the importance of the issue and the need for national and regional commissioning merits recognition in the Bill.

In its last report in 1999–2000, the national specialist commissioning advisory group was asked to look at regional specialist commissioning. A new report must be somewhat overdue. It remarked that a common characteristic of these low volume services and treatment was that they were often of high cost requiring specialist technical expertise and a concentration of clinical care.

Implementing new arrangements for such services was a key aim of the original White Paper, The New NHS: Modern, Dependable issued shortly after the Government came to power. It concluded that the internal market's fragmentation between multiple GP fundholders, as they then were, and health authorities had made it difficult to ensure properly co-ordinated commissioning arrangements for those services. A more systematic approach was needed if fair access was to be guaranteed and if clinical staff were to be supported in developing the most suitable and effective care. The new arrangements should be capable of commanding the confidence of clinical units concerned while being clearly accountable to health authorities and PCTs. I believe t hat those criteria are valid today. I do not believe that the Government's current vague expressions on the way in which those arrangements will be carried out meet those criteria.

Let me take haemophilia as an example. Some 6,000 people are affected, costing about £115 million per annum to treat. Within this total, £20 million is spent on patients with inhibitors—that is, resistance to treatment with Factor VIII or IX as appropriate—principally in relation to the 100 or so with high titres. Immune tolerance treatment for such patients typically costs at least £1 million per patient. That is a high figure. Orthopaedic procedures, such as knee or hip replacements, are also very expensive as are major spontaneous bleeds.

Currently, commissioning for haemophilia is arranged by health authorities or specialist consortia, not least to spread the risk of costly and largely unpredictable episodes affecting patients with inhibitors. These arrangements are by no means considered perfect and there is broad support for a national approach to commissioning. Conversely, delegation of responsibility to primary care trusts has been described by Dr Mark Winter, chairman of the Haemophilia Alliance which represents patients and clinicians, as "a catastrophe waiting to happen".

I have taken one example of specialised commissioning and treatment. We must not assume that the problem will be solved if we delegate specialised commissioning to consortia of PCTs. We must consider those individual areas of specialised commissioning and decide what is appropriate for them, in particular whether national and regional commissioning are appropriate. We need clarity and accountability. We need to decide what is done at the appropriate level.

In referring to regional commissioning one is in a sense referring to strategic health authorities in the context of the Bill—although I regret it—but clearly there needs to be expertise and reference at the strategic health authority level if we are satisfactorily to have the expertise to commission some of these services.

The debate is perhaps a reprise but slightly more concrete in some respects. I hope that the Minister will be able to respond.

Baroness Noakes

My Lords, in moving the amendment, the noble Lord outlined why specialised services are a matter of great concern in the NHS. These Benches support the thrust of the amendment. It ensures that the commissioning of specialised services is done at the right level in the NHS. We believe that that is the correct direction although the amendment may not be in quite the right form.

Highly developed skills for the commissioning of specialised services exist at regional level. I refer to the eight old regions, not the four virtual regions which are being created. The regional specialised commissioning groups ensure that patients have specialised services available to them and the providers of those services have the funding, security and stability which allows them to develop those services.

Pure dogma has driven the Government to propose the break up of those regional groups and to devolve commissioning responsibility to PCTs. PCTs demonstrably do not have the confidence to handle specialised commissioning even if—and it is a big "if"—they have a commitment to specialised commissioning. Only a couple of weeks ago, the Joint Consultants Committee issued a press release saying that it is very worried about specialised commissioning given the lack of readiness of PCTs. This is not a problem that will go away despite the many assurances and expressions of confidence that we have had from the Front Bench opposite.

Has the Minister ever heard of the management maxim, "If it ain't broke don't fix it"? No, the Government's approach is to break it first and then try to fix it. At a stroke the Government will smash the eight regional arrangements into 300 PCT-sized bits which do not work. They will then rearrange them into 28 strategic health authority-sized networks which might work if they are performance managed—but we have no evidence on which to be sure. If noble Lords have ever wondered what nonsense on stilts looks like, this is it.

At Report stage the Minister gave us a glimmer of hope when he referred to the possibility that regional specialised commissioning groups will continue beyond 2002–03. He said that it may well be that they will not be dismantled. We were heartened to hear both that and the review proposed by Mr Hutton. Perhaps I may put a couple of questions to the Minister about Mr Hutton's review? Will he say a little more about it, who will be involved in the review and whether it will seek out the views of the National Specialist Commissioning Advisory Group of specialised service providers throughout the country and, importantly, the view of patients? Will he commit to making public the review and the evidence obtained for it?

Lord Filkin

My Lords, in my naivety I thought that on Report I had made everyone, if not totally content, substantially satisfied, about the queries. Clearly, I was premature on that.

As we know, specialised services are those where patient numbers are small and quality can only be achieved by bringing together a critical mass of patients in each centre. This means that there will he relatively few centres offering treatment and there will not be a specialist centre in every local hospital. Therefore, PCTs acting in isolation could not deliver the quality and cost effectiveness which we all believe is essential for the future.

However, under shifting the balance of power, primary care trusts are responsible for commissioning health services for their local populations. The noble Baroness, Lady Noakes, asked whether I had ever heard of the quotation, "If it ain't broke, don't fix it". Yes, indeed. What is "broke" is the current centralisation of the NHS, on the basis that all of its functions and products can be run on the old command and control model from Whitehall. That is why we believe it is right to establish PCTs, which are much better and more in touch and have a greater understanding of the needs of the public and patients and can take a wide and long view of how best to meet those needs. That is why we believe it fundamentally right to make sure that one did not half-bake devolution to them, but gave them full budgetary responsibility as far as it is practicable and sensible to do so.

We believe that that is a much better approach— although it will require joint working between PCTs to deal with joint commissioning—than to have some rather arbitrary definition, inevitably by central government, about which functions should be dealt with at a different level from PCTs. The thrust of the Government's approach is to devolve, but to set very clear outcomes and standards to be achieved rather than to second guess the mechanisms in detail.

However, I sought to signal in the last debate that we recognise the importance of getting it and the process of development and evolution right rather than suddenly throwing it all up in the air. PCTs both now and in the future will be expected to work together on a consortium basis to secure specialised services. That will certainly be true immediately and it is likely to be true for many functions for the future. In the short term they will be expected to honour existing agreements, financial and otherwise, negotiated by regional specialist commissioning groups. Those groups will continue for at least a further year with PCTs replacing the former health authority members. RSCGs have a specific role in developing PCT capacity to commission specialised services as part of a planned transition to successor arrangements. Ensuring that enough people with the right skills continue in their roles is particularly important in the context of specialised services.

As I believe I indicated last time, there are already encouraging reports of PCTs working together to ensure that specialised services are effectively commissioned. Sometimes these consortia cover populations the size of a strategic health authority and sometime larger populations.

As noble Lords have implied already from the slightly hesitant way in which they signalled that this was a probing amendment, the role of strategic health authorities will be to oversee the consortia arrangements with regional directors of health and social care, ensuring that specialised services are delivered properly across the whole region. Strategic health authorities are not there to commission services, as the amendment suggests.

The amendment also refers to very highly specialised services which are vulnerable for some reason. They will continue to be centrally commissioned under the auspices of the National Specialist Commissioning Advisory Group. But such arrangements are only suitable for those very highly specialised services where there are a handful of providers and perhaps a couple of hundred patients across the whole country. This is not the case for most specialised services.

I also indicated that while there is a clear national list now, that will change over time as technology changes. However, that is not to imply that we see a case for a rapid expansion in any way of the list of functions currently handled by the National Specialist Commissioning Advisory Group.

The Government are adopting the pragmatic approach to commissioning and I believe that has been acknowledged. Current commissioning arrangements will be left alone where they are working well. The experience of PCTs, when they are essentially funding and supporting the new arrangements, will have to make a case both to each other and in practice to the SHA for any significant change to those commissioning arrangements. So it is not a carte blanche situation, being completely free to throw away good practice and common sense.

We have considered further the valid points made by noble Lords during the passage of the Bill. I would like to add emphasis to the review headed by my right honourable friend, John Hutton, into specialised services and the commission arrangements, in particular for the regional-type services covered by several strategic health authorities, with a view to issuing guidance in the autumn on arrangements beyond 2002/3.

The review will canvas views as to how best to integrate the current regional specialised commissioning group arrangements with the new health and social care regional boundaries in order to ensure that highly specialised services covering large geographic areas are properly planned, funded and monitored. It will be a wide review. We shall be interested to hear views from any organisation in the health service which has concerns, interests or issues relevant to the review's terms of reference. I emphasise that those views should be submitted.

The noble Lord, Lord Clement-Jones, gave a specific example of haemophiliacs. He touched on a point which we did not go into in much detail on the last occasion concerning the consortia arrangements. While they are fundamentally concerned to deal with the need to commission over larger-scale populations, they are also a means of sharing risk so that there is no postcode lottery in the future. Therefore, any PCT which might, for example, have a sudden movement into its area of a number of people unfortunate enough to be really high-cost haemophiliacs, would not thereby have its budget skewed, damaged or put at risk other patients. That was a very legitimate concern raised by the noble Lord. That is why joint arrangements will also be put in place, not just for commissioning, but to pool risk.

There is a good example already of a highly successful haemophiliac service commission consortium in south-east England covering over 80 PCTs and a population of 13 million, with financial risk-sharing arrangements. So I am not speaking just from theory, but from practice. Clearly, when one finds such examples one wants to ensure that they are assessed and the good practice is retailed to others, where appropriate.

I hope that I can reassure noble Lords that the National Specialist Commissioning Advisory Group will continue doing its valuable work in relation to the very highly specialist services. But it is right that the primary care trusts should commission other specialist services under the careful scrutiny of strategic health authorities. PCTs will have the best knowledge of the needs of their population and are best placed to provide for their needs, in some cases in isolation, but in many cases working in firm consortia arrangements with others. For these reasons we resist the amendment as we believe that it is not necessary.

4.45 p.m.

Lord Clement-Jones

My Lords, I thank the Minister for that reply. Quite clearly, from the Minister's reply I believe that further torture of him has produced results at Third Reading. I thank him in particular for the point he made about the pooling of risk in the way in which the consortia are constructed. There is a flaw, however. Only time will tell how matters work out in terms of the logic of some of the Government's proposals in this area. I refer to the blanket view that all centralisation is bad and that decentralisation is good for all purposes. That is the initial ground on which one stands.

As a federalist, I have always believed that devolution is best done to the appropriate level. It is not always a question of saying that everything must be pushed down to the lowest possible level. The appropriate level is where the expertise and resources are best deployed. That is the problem that we shall have to address in the future.

I accept the Minister's assurances about the ambit of Mr Hutton's review and in particular about the level of consultation that will be invited from all bodies in terms of the way in which the consultation is conducted. However, there is a lot more water to flow under the bridge. We very much hope—a hope shared by those on other Benches—that the regional groups will be retained as we believe that they fulfil a proper and useful function. We shall be looking at where the expertise properly resides; at the performance management and assessment carried out by the strategic health authorities; and in particular cases at whether or not a specialised piece of commissioning has been carried out at the appropriate level.

For the moment, we are content to examine the Minister's reply and to hold him to account at a future date. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Finlay of Llandaff moved Amendment No. 3:

After Clause 6, insert the following new clause— "DUTY OF LOCAL HEALTH BOARDS AND NHS TRUSTS REGARDING EDUCATION, TRAINING AND RESEARCH IN WALES Local Health Boards and NHS trusts, and those commissioning specialist services on behalf of the National Assembly for Wales, shall have a duty to safeguard and promote education, training and research.

The noble Baroness said: My Lords, this amendment appears to be consequential on Amendment No. 1. Therefore, I assume that it will be accepted in principle by the Government. I beg to move.

Lord Hunt of Kings Heath

My Lords, I am advised that the practice of the House would be for the Government not to oppose the amendment. However, I should like to place on record the fact that I regard this—particularly in relation to a matter which I believe is for the Welsh Assembly—as a substantive and different matter from the issue of teaching and research.

On Question, amendment agreed to.

Clause 14 [Commission for Health Improvement: constitution]:

Lord Hunt of Kings Heath moved Amendment No. 4:

Page 19, line 41, at end insert— () After paragraph 5 there is inserted— 5A (1) The Secretary of State may direct a Special Health Authority to exercise—

1. (a) his function of appointing the chairman and the other members referred to in paragraph 4(c), and
2. (b) any functions conferred on him by regulations under paragraph 5 in relation to the appointment or tenure of office of the chairman and those other members.

(2) The National Assembly for Wales may direct a Special Health Authority to exercise—

1. (a) its function of appointing the member referred to in paragraph 4(b), and
2. (b) any functions conferred on it by regulations under paragraph 5 in relation to the appointment or tenure of office of that member.

(3) If the Secretary of State or the Assembly gives such directions, the 1977 Act has effect as if—

1. (a) the directions were directions under section 16D of that Act, and, accordingly,
2. (b) the functions were exercisable by the Special Health Authority under section 16D.""

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 26.

Amendment No. 26 delivers the commitment that I made on Report that the NHS Appointments Commission will be responsible for appointing the chair of the Commission for Patient and Public Involvement in Health. But we go further—demonstrating that we are committed to the independence of the commission and distancing the appointments process from the Secretary of State. These amendments enable the Secretary of State to delegate to the NHS Appointments Commission such of his functions as may he appropriate in relation to the tenure of office, terms of appointment, dismissal and so on of the chair and members. The details of how such arrangements with the NHS Appointments Commission might work in practice are still subject to discussion with the chair of the commission and his team.

We have also been persuaded that similar arrangements should be made for the appointment of the chair of the Commission for Health Improvement. The Secretary of State will now have the power to direct a special health authority to appoint the chair and members of the commission. This power will extend also to the Assembly and the appointment of its member.

Dame Deirdre Hine has announced that she does not intend to seek reappointment. I should like to take this opportunity to place on record my gratitude and that of the Government for the key personal contribution that she has made to the development of the commission.

Through Amendment No. 4, the next chair will be appointed by the independent NHS Appointments Commission. This anticipates arrangements to be made for the new health inspectorate, as was recently announced by the Secretary of State. Again, my right honourable friend will be able to delegate to the NHS Appointments Commission his decision-making powers in regulations relating to the appointment and tenure of office.

I believe that these amendments follow the discussions that we had at previous stages. I very much hope that noble Lords will accept them. I beg to move.

Baroness Noakes

My Lords, we greatly appreciate the amendments that the Minister has brought forward in relation both to the CHI and to the Commission for Patient and Public Involvement in Health. We are glad that he has agreed with us.

Perhaps I may ask the Minister one question. Why are the amendments phrased in terms of directing "a special health authority" to carry out the appointments and functions of the Secretary of State? Given the wording, that could be any special health authority—for example, it could be NICE or any other NHS body; I probably do not even know the current list of bodies which are special health authorities. Why does not the Bill simply mention the NHS Appointments Commission?

Lord Hunt of Kings Heath

My Lords, I can—

Lord Clement-Jones

My Lords, if the Minister wishes to respond at the end, that would seem to be convenient. Perhaps I may just insert my twopenny-worth into the proceedings.

I welcome not only the amendments but also the assurances that the Minister gave. Otherwise, we should spend many happy hours debating "may" and "shall", as we have on other occasions. In particular, these are important for the independence of the CHI and the Commission for Patient and Public Involvement in Health. I suspect that the Minister may have set a precedent for discussion of future health Bills. But as an opening of the door to greater independence for these two bodies, this sets an excellent precedent and runs counter to previous legislation to quite a degree.

I associate myself with the Minister's warm words about Dame Deirdre Hine. She has done a splendid job. There may have been a difference of approach in the way in which the CHI has been run in terms of its developmental role. However, the Minister has explained that on a previous occasion. I believe that a rather different role is envisaged for the CHI in future but that does not detract at all from the way in which it has been a resounding success in its first period.

Baroness Carnegy of Lour

My Lords, the word "direct" is used as opposed to "delegate". Does that mean that the direction cannot be revoked afterwards without primary legislation?

Lord Hunt of Kings Heath

No, my Lords. The Secretary of State has the power of direction, and I suppose that what he directs he may "un-direct".

Baroness Finlay of Llandaff

My Lords, perhaps I may put a brief question to the Minister. Subsection (2) states that, The National Assembly for Wales may direct a Special Health Authority". I understood at an earlier stage of the Bill that the health authorities in Wales are to be called "health authorities", not "special health authorities". It is simply a matter for clarification. The intention of the amendments is most welcome.

Lord Hunt of Kings Heath

My Lords, my understanding in relation to the question asked by the noble Baroness, Lady Noakes, is that, clearly, the NHS Appointments Commission will do the appointing. But because the NHS Act itself does not provide for the National Health Service Appointments Commission we could not now place it on the face. It is a special health authority. When the Secretary of State makes a direction, clearly that responsibility will be given to the NHS Appointments Commission. But the appointments commission was set up by secondary legislation. That is why the amendment is termed in the way it is.

On Question, amendment agreed to.

Clause 15 [Establishment of Patients' Forums]:

Earl Howe moved Amendment No. 5:

Page 21, line 17, at end insert "(including services provided by an independent hospital, independent clinic, independent medical agency, or care home under arrangements made by the NHS trust, Primary Care Trust or Care Trust for which a Patients' Forum is established)

The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 6 to 9 and 11 to 15.

On Report, I suggested to the Government that if they intended to be consistent about patient and public involvement and give full recognition of the growing role of the private and voluntary sectors in delivering healthcare to NHS patients, there was one important way in which the arrangements in the Bill needed to be buttressed; namely, by ensuring that the functions of a patients forum could be extended to every location in which publicly funded care was delivered. It is no good to an NHS patient if he finds that having been moved to, say, a private care home to recuperate from an operation, he cannot then access the local patients forum if he needs to do so.

Similarly, if the acute trust looking after our old friend, Mrs Archibald, decides to send her to a local private hospital to have her operation, why should she be suddenly cut off from the trust's patients forum? When considering the provision of mental health services of the significant proportion of NHS patients who are treated in the private sector, what is the argument against making sure that such patients in privately run treatment centres have exactly the same guarantee of representation as they would have in an NHS facility?

I know that the Minister is sympathetic to that argument, but his main rejoinder last time was to say that the amendments were superfluous because when the NHS contracts with independent providers, the inspection rights of patients forums will be set out in the relevant contract. That is fine as long as the contract covers the issue. Experience of the past few years shows that it is sometimes very difficult to get health authorities to insert such arrangements into their contracts, despite departmental guidance to that effect. Even if we take it as read that visiting rights have been included in a particular contract, how can those rights be enforced? The patients forum itself will not be a party to the contract.

I agree with what the Minister said on Report, namely, that with the NHS becoming a much larger purchaser of services within the private sector, the rights of inspection should feature more prominently and perhaps more automatically in contract negotiations. But, for the reasons that I have given, I do not think that that is good enough. As I said on Report, the Bill places very specific duties on patients forums. Clause 15(2)(a) states that they must monitor and review the operation of services and Clause 15(2)(b) states that they must obtain the views of patients".

Patients forums should not have to be dependent on the vagaries of a contract to fulfil those duties.

The other matter covered by the amendments relates to overview and scrutiny committees, which ought to be able to scrutinise services delivered to NHS patients in whatever setting those patients are being looked after. The Minister helpfully said on Report that he would consider the issue. I understand his point that the remit of OSCs covers NHS bodies that may or may not agree contracts with the private sector. I am not sure that it is possible for an OSC to engage in the proper scrutiny of services unless it can call the provider of those services directly to account. That should be part and parcel of the deal that the private service provider enters into in exchange for accepting NHS patients.

I hope that the Minister will be reasonably sympathetic to these probing amendments. I beg to move.

5 p.m.

Lord Clement-Jones

My Lords, I strongly support the noble Earl, Lord Howe, on Amendments Nos. 5 to 9 and 11 to 15. To some extent, there is a sense of déjà vu about our debates. The Minister may recall that we had very similar debates when we discussed the inspection powers of CHI, which seems like a long time ago but was probably three or four years ago, during the passage of the Health Act 1999. At that time, we said that it was utterly logical for CHI, as the audit and inspection body being set up at the time, to cover not only NHS facilities but private facilities as well. The case is even stronger and more cogent now as services will be commissioned by the health service and not only private health care is involved.

We know from the stated plans of the Secretary of State that it is intended that the NHS should have flexibility to commission the NHS internally or, as seems to be more and more likely, from the private sector, and even from overseas, so flexibility is being built into the system.

The noble Earl, Lord Howe, made the case extremely well. He referred to the vagaries of contracts, and as a lawyer, I agree that that is absolutely true—indeed, more so than he can say. The contents of a contract depend on the bargaining power of the parties. If it is a distress purchase, commissioned by a health trust that has to buy care very quickly from a specialist provider, it will be in no position to insist on very much. It may have a degree of leverage on the price but I doubt that it will have much leverage on whether there should be powers of inspection for the patients forum. Leaving it to the parties to decide the contents of the contract sounds to me, as a lawyer, an extremely faulty way of going about things. The issue would be far better expressed in legislation.

Lord Rea

My Lords, my noble friend the Minister has given serious consideration to the amendments. The Secretary of State and the Prime Minister have said many times that the private sector will be brought in increasingly to provide services that were formerly provided by the National Health Service. It, therefore, seems completely logical that patients and citizens should be able to comment on such services through patients forums and scrutiny committees. If not, how will those services be monitored? Will withdrawal of the contract be the only discipline available? That is not desirable as the services will be integrated by then and will be difficult to replace. I shall be very interested to hear my noble friend's reply.

Baroness Masham of Ilton

My Lords, the noble Earl, Lord Howe, has explained very well the fragmentation that could complicate the life of patients when they are looked after in a variety of health establishments. The Minister knows the complications of hospital infections, which need all the monitoring they can get. That is only one example of the complications that could arise.

Lord Hunt of Kings Heath

My Lords, I have a great deal of sympathy with the intention behind the amendments, although I do not believe that they are necessary.

NHS patients remain NHS patients wherever they are treated and there is no question that it is extremely important that patients forums can enter premises and inspect services. That is the Bill's intention. The difference is the legal basis that underpins the arrangements.

First, I remind noble Lords that it is not necessary to list care trusts as a separate entity that must allow patients forums entry rights. Care trusts are either NHS trusts or primary care trusts that have been redesignated as care trusts under Section 45 of the Health and Social Care Act 2001. As such they are already provided for under the terms of Clause 17 of this Bill.

Secondly, Clause 15(2) covers all services arranged by the trust, including those provided in independent clinics, hospitals, medical agencies or care homes, local authority care homes or directly by the NHS. Whenever NHS care is provided the service can be reviewed by patients forums as per Clause 15(2).

Thirdly, NHS patients remain NHS patients wherever they are treated. As I said, it is important that patients forums are able to enter premises and inspect services. That has always been our intention. NHS bodies will be expected as a matter of course to set out rights for patients forums in the individual contacts that they agree with independent providers.

Both the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, referred to contracts. I am aware that the details of such contracts have been a source of some concern to community health councils in the past. That is one of the reasons why we are currently discussing with the independent sector a set of standard terms and conditions for NHS bodies to use when drawing up contracts for acute hospital care. Naturally, in such standard terms and conditions we shall include appropriate provisions to safeguard the rights of patients forums. We shall stress the importance of those provisions in the accompanying guidance.

In addition, we are considering whether the patients forums' non-executive director on the trust board should be given a specific responsibility for ensuring that contracts include details of the arrangements for patients forums to exercise their functions. We shall also consider whether they should monitor arrangements for forums to review, monitor, and inspect the services provided by the trust through arrangements with non-NHS providers.

I acknowledge the concern to inspect nursing homes and other healthcare establishments under the Care Standards Act 2000 in order to ensure that they meet appropriate standards of care. As the National Care Standards Commission has taken over the regulation and inspection of the bodies specified in these amendments from local authorities and from health authorities, such inspection will enable the closest attention to be paid to those private sector providers.

In addition, through the Commission for Patient and Public Involvement in Health, patients forums will be able to report matters of concern to the National Care Standards Commission, the Commission for Health Improvement, and any other body that they consider appropriate under Clause 20(6) of the Bill.

As regards overview and scrutiny, I make it clear, again, that the definition of "health service" will, in any case, include services provided to NHS patients under arrangements made by a trust. It is irrelevant whether the service is provided by the trust, or under an arrangement made with an independent body. The patient remains an NHS patient, and the health aspect of the service received can be scrutinised by his or her local overview and scrutiny committee. Although the pathway is somewhat different because of the different legal basis of an NHS organisation and of an independent provider, I am satisfied that patients forums will have the ability to undertake inspections within the private sector where they are dealing with NHS patients.

Earl Howe

My Lords, I thank the Minister for that helpful reply. I am also grateful to those noble Lords who took part in this debate, not least the noble Lord, Lord Clement-Jones, who was right to point out that the bargaining power of the parties to contracts in this sort of instance will vary considerably case by case. Nevertheless, it is heartening to hear that the Government are considering the possibility of a standard form of words for such contracts. It is also helpful to know that they are thinking in terms of giving a specific role to the patients forum member sitting on the trust board to ensure that contracts do include suitable provisions.

However, we return to the fundamental point; namely, that when it comes to enforcement of the contract, the patients forum is in rather a difficult position because it has no locus in that respect. I very much take on board what the Minister said about overview and scrutiny committees. Again, I found his response encouraging. I take it from his remarks that the overview and scrutiny committee will be able to look at the service actually delivered to the patient—the patient experience—wherever that service is delivered. Therefore, it will not need to confine itself to cross-questioning the trust that commissioned that service; it can question directly those who provided the service in the private facility, whether it be a hospital or a care home.

Lord Hunt of Kings Heath

My Lords, I should clarify the position. I believe that the overview and scrutiny committee would be in a position to invite a private sector provider to appear before it. Therefore, it would be for the private sector provider to decide whether or not to accept that invitation. What is not in doubt is the fact that the arrangements made by an NHS organisation for commissioning those services would be covered by the responsibility of the overview and scrutiny committee. In accordance with the legislation, the committee would be in a position to require a representative of that body to appear before it.

Earl Howe

My Lords, again, I thank the Minister for his most useful clarification.

As regards the National Care Standards Commission, it would be reassuring to know that a line of communication will be established between the commission and the relevant patients forum. Although the Minister mentioned the likelihood of the National Care Standards Commission wishing to report to the Commission for Patient and Public Involvement in Health, or possibly even the CHI, there is perhaps another line of communication available in this case—namely, the relevant patients forum. I leave that thought with the Minister. We have had a most useful debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 6 to 9 not moved.]

5.15 p.m.

Clause 16 [Establishment of Patients' Councils]:

Earl Howe moved Amendment No. 10:

Page 22, line 4, leave out "from among

The noble Earl said: My Lords, this is a technical amendment to remedy a drafting defect that crept into the Bill on Report when the amendment introducing what is now Clause 16 was accepted. I beg to move.

On Question, amendment agreed to.

Clause 17 [Entry and inspection of premises]:

[Amendments Nos. 11 to 15 not moved.]

Clause 19 [Suppkmentary]:

Earl Howemoved Amendment No. 16:

Page 25, line 17, after "Authority," insert "an overview and scrutiny committee or joint committee within the meaning of sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001 (c. 15),

The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 17, 18, 22 and 24. We debated these amendments on Report. They propose a duty of scrutiny for local authorities in substitution for the power of scrutiny conferred on them by the Health and Social Care Act 2001. This is an important issue. When confronted by a matter brought to their notice by a patients forum, my concern is that some local authorities may simply choose to ignore it and do nothing; either because they have other priorities, or because they do not have the necessary resources.

As matters stand, there is nothing in this Bill or elsewhere to ensure that patients forums will be listened to; yet scrutiny of health issues by local authorities is absolutely central to patient and public representation. It is a function currently carried out by CHCs. If nobody has a statutory duty to scrutinise health issues, and, where necessary, take action, patients forums will simply be left talking to a brick wall. In fact, except in the context of minor matters that can be sorted out within the narrow confines of a trust, forums will almost cease to have a point.

On Report, the noble Lord, Lord Filkin, argued that under the Local Government Act 2000 local authorities already have a "responsibility"—I use his word—to promote the economic, social and environmental well-being of their areas. He added: It could not be clearer that they are responsible for promoting the health and well-being of their communities".—[Official Report, 30/4/02; col. 619.]

On those grounds the noble Lord considered my amendment unnecessary.

As the noble Lord is aware, I took his statement to mean, first, that local authorities already have a duty to promote the health and well-being of their communities; and, secondly, that the provisions of the Local Government Act are directly relevant to the scrutiny of health issues. I withdrew my amendment on that basis.

Following the debate, the noble Lord was kind enough to write to me to correct my interpretation of his words. He said that when he had spoken of local authorities having a responsibility to promote the economic, social and environmental well-being of their areas, I should have understood him to mean that they had a power to do so. I do not think that I can be blamed completely for having interpreted the noble Lord's words as I did. However, that was a helpful clarification and I am grateful to him.

The other part of the noble Lord's argument was also important. I have had an opportunity to examine the Local Government Act 2000. Section 2 contains the power that I have just mentioned, and Section 4 contains a duty for a local authority to prepare a strategy for promoting or improving the economic, social and environmental well-being of their area and contributing to the achievement of sustainable development in the United Kingdom. Perhaps two questions arise from that. First, given that health is not specifically mentioned in the Local Government Act at that point, can the Minister confirm that Ministers and the Department of Health have received legal advice that,

economic, social and environmental well-being in the Local Government Act subsumes health?

Secondly, can he confirm that the power contained in Section 2 of the Local Government Act should be interpreted as implying a power of scrutiny of health issues? If the answer to both those questions is yes, I would find that encouraging. If it is yes, can the Minister say whether the Government are prepared to issue guidance to local authorities to make that matter clear, and whether they could incorporate guidance about the content of the strategy mentioned in Section 4 of the Local Government Act to the effect that the strategy should cover health issues as well as all the rest? What the Minister was essentially saying on Report was that my amendments were unnecessary for the reasons I have given. He was also arguing that the amendments, in so far as they created a duty, were undesirable, on the grounds that it is wrong, as he saw it, to impose duties on democratically elected bodies such as local authorities. I have reflected on that argument. I am not sure what I think of it, really. It was clearly Parliament's intention when it passed the Health and Social Care Act 2001 that local authority overview and scrutiny committees should have the function of scrutinising matters relating to health. In other words, it was not in Parliament's mind that local authorities should pay lip service to the function or that they should fail to perform it at all if they did not feel like it. The whole point of setting up overview and scrutiny committees was to ensure that the scrutiny function currently performed by CHCs should be safeguarded.

I believe that we should ensure that the edifice of patient and public involvement really does stand up, which is why I am proposing this amendment. In other spheres, the Government have not been averse to imposing duties on local government—witness for a start Section 4 of the Local Government Act. In a matter as important as this, I really see no reason why there should not be such a duty in order to ensure that what the Government themselves say they want really does happen. I beg to move.

Lord Clement-Jones

My Lords, I rise to give partial support to this group of amendments. In particular, I think that Amendment No. 16 has quite a lot to commend it in terms of seeking to ensure that overview and scrutiny committees are added to the list of bodies to which patients forums will provide information. We on these Benches believe that it will be essential for overview and scrutiny committees to receive information from patients forums in order to inform their scrutiny role. Patients forums will have useful information about the performance of individual NHS trusts and their patients' experience. We are not so convinced about the changing of a power to a duty, but the position is somewhat complicated by the Minister's previous statements about the duty already being contained in legislation. Indeed, I suspect that the LGA is in some confusion as to whether it is a duty or a power.

Our nervousness about the possibility of turning the power into a duty is based on whether the additional resources would be made available. We believe that local government is making efforts to ensure that there is effective overview and scrutiny. However, it is early days yet. We believe that there will be an opportunity in future health Bills—we are quite sure that the House will be considering a number of health Bills before too long—to tweak the legislation to ensure that, if local government is falling down in overview and scrutiny, we can rectify the matter. Nevertheless, there is nervousness about whether resources will be available if that power is turned into a duty.

We therefore offer partial support for Amendment No. 16. We also rather regret the way in which the groupings have been made, particularly as regards Amendment No. 24. We are therefore prepared to accept Amendment No. 16, but not the other amendments in this group.

Lord Filkin

My Lords, I shall speak first to government Amendment No. 22.

As I have previously stated, we are committed to ensuring a robust framework representing the public's concerns to government where there is inadequate consultation over major changes and where there are concerns over the merits of proposals for change. Our lawyers have confirmed that there could be some ambiguity in the provisions in the Local Government Act, as amended by the Health and Social Care Act 2001, about OSCs and their ability to refer matters to the Secretary of State for Health. In case any local authority was uncertain about whether it has the power to stick a stamp on an envelope and send its views to the Secretary of State, we think it appropriate to remove that doubt by amending the relevant provisions of the Health and Social Care Act. Amendment No. 22 does just that.

Amendment No. 22 makes it explicit that OSCs may make reports and recommendations to "the relevant authority"—the Secretary of State, in relation to England—thereby ensuring the referral framework that we think is necessary. The detail for referrals will be prescribed in regulations as is the case with the current arrangements for community health councils. I hope the House will agree that this amendment is an important one and that it is right to ensure that there is no doubt about this fundamental element of the PPI system. For OSCs to be truly powerful in delivering local accountability, they need to have the power to trigger action at Secretary of State-level if necessary. I am sure that they will do so.

I turn to Amendment No. 24. I have on a number of occasions made it clear that we think that it is not right to compel local authority overview and scrutiny committees to scrutinise health services through a statutory duty. Not only would that be completely out of kilter with the existing role of OSCs in other areas, but, more importantly and more critically, it is wrong to compel a democratically elected independent body to do something in this particular circumstance. I think that the implication of the amendment is that noble Lords have some doubts as to whether councillors would carry out one of their key roles—that of local accountability. However, the health of the population will be a key concern for overview and scrutiny committees and their constituents as decisions affecting people's health have a direct impact on the well-being of the people who elected them. As elected representatives, they will be keen to be seen to be addressing issues that matter to their electorate. If they do not, one would expect them to suffer the consequences.

For this reason, the decision whether to scrutinise the NHS must rest with local people and their representatives. Given the diversity of Britain, the breadth of health issues, and the fact that judgments will have to be made about authorities, simply imposing a duty—which is what I think the noble Earl, Lord Howe, wishes, and I respect his reasons for advocating it—would leave open massive issues about which matters the OSCs should examine at any given time. Each year they would have to decide where scrutiny was most needed. In practice, no one can do everything all at once.

I turn to some of the legal issues raised by the noble Earl, Lord Howe. I believe that I referred to both a "role" and a "responsibility". I also grant that it was not at all foolish to infer that that implied a duty rather than a power. Under Section 2 of the Local Government Act 2000, the local authority has a power to do anything it considers likely to achieve the promotion or improvement of the social, economic or environmental well-being of its area. Section 4 goes further and says that the local authority must prepare a strategy for promoting or improving the economic, social and environmental well-being of its area. There is nothing to prescribe what a local authority must consider in developing the strategy under Section 4. However, in practice and in almost all circumstances, it will develop the strategy in collaboration with others. I am sure that that has been the thrust of government advice to local authorities and to PCTs. It is therefore reasonable to expect that this will involve local authorities in considering health matters.

The noble Earl, Lord Howe, asked about government advice to local authorities on preparing the strategies. Off the cuff I cannot recollect that. I am certain that such advice has already been given. Whether it includes advice explicitly about liaison with the health service I do not know but we shall check that. In any event, were it not to do so, it is a point that we would consider for future issues of such guidance.

The Local Government Act 2000 goes further. Section 21(2) gives overview and scrutiny committees a broad advisory role in relation to functions of the whole authority and matters affecting the locality. OSCs have the power to review, scrutinise and make reports and recommendations in relation to matters set out in Section 21(2). By virtue of Section 7 of the Health and Social Care Act 2001, the power of the OSC includes a power to review, scrutinise and make reports and recommendations on matters relating to health.

The noble Lord also referred to concerns about implementation. We are currently halfway through a national consultation on the policy framework. Draft regulations and guidance will be prepared during the summer. We shall consult on those around September. It is envisaged that the new provisions will come into force in late 2002 with a full training and implementation programme to assist the roll-out. CHCs in particular are to be involved in the development of the implementation plan.

With regard to the view of local government, the noble Lord, Lord Clement-Jones, may have mentioned this matter previously but the LGA, in briefing it circulated when the Bill was in Committee, recognised the need for OSCs to carry out health scrutiny—which I hope gives some comfort to the noble Earl, Lord Howe—but did not want this power to be a duty. I believe that I signalled that issues of resources would form part of the discussions and negotiations between the LGA and central government in terms of the level of expenditure and grant that would be considered appropriate in future.

I refer to the dalliance of the noble Lord, Lord Clement-Jones, with Amendment No. 16, with regard to whether OSCs should have a duty to give information to patients forums. One hopes that they will so behave. However, if we are resistant to imposing a duty of the type that the noble Earl, Lord Howe, suggests, the logic is that we would also resist imposing a duty on them with regard to giving information to patients forums. That measure will occur in practice if local government and the health service promote it vigorously and learn from experience and try to learn from good practice in local authorities that do that well. That is what needs to happen. I do not think that changing the words in the Bill would make a fundamental difference to that. For those reasons, we resist Amendments Nos. 16, 17 and 18 while standing four square with the noble Lord and the noble Earl as regards the importance of making sure that local government seizes this significant role and tries to ensure that it is carried out to the benefit of the public.

5.30 p.m.

Earl Howe

My Lords, the noble Lord is always courteous and helpful in his responses and I am grateful to him on this occasion as on others. He made two comments that I considered particularly helpful. First, he referred to Section 21 of the Local Government Act 2000. I understood him to say that that section contains a power to scrutinise health services. I was not aware of that and it is a helpful clarification. Secondly, the noble Lord helpfully referred to guidance to local authorities. I am grateful for his undertaking to look again at what guidance has been issued.

I am sorry obviously that my arguments have not won the day. The argument with regard to imposing duties on local authorities is perhaps a stronger one than the noble Lord would have us think. It is interesting that the Greater London Authority Act 1999 has a provision at Section 34 to impose a duty on the GLA to exercise all its powers in a way best calculated to promote the health of Londoners. I am not sure why there is thought to be such a difference of principle as regards this Bill and as regards a general duty for local authorities. However, we have made progress on that issue. I am grateful for the noble Lord's comments.

I welcome government Amendment No. 22. It comes rather at the eleventh hour, but better late than never. I shall have more to say about that amendment later in today's proceedings. I am disappointed that it is framed in the way that it is as I think that it could be stronger. It seems to me that it is not the same to say that a local authority can make reports to the Secretary of State as to say that it has a right of referral. A right of referral is a much more robust and clearer arrangement. The matter remains a little wishy-washy. I accept gratefully what has been offered—I certainly do not object to what the Government propose—but I shall return to the matter later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 17 and 18 not moved.]

Clause 20 [The Commission for Patient and Public Involvement in Health]:

Earl Howemoved Amendment No. 19:

Page 26, line 15, after "bodies" insert "or persons

The noble Earl said: My Lords, at Report stage the noble Lord, Lord Clement-Jones, tabled an amendment the purpose of which was to broaden the functions of the Commission for Patient and Public Involvement in Health by giving it the unfettered role of representing the interests of patients and the wider community. It was an important amendment which went to a Division and was defeated. I have not sought to bring back those particular issues at Third Reading. I have instead tabled Amendments Nos. 19 and 20 which are narrower in scope. Specifically they are designed to extend the matters upon which the commission is permitted to make representations and to widen the audience, as it were, of those to whom it is allowed to speak.

We can see in subsection (2)(a) of Clause 20 that the commission has the function of, advising the Secretary of State, and such bodies as may be prescribed, about arrangements for public involvement in, and consultation on, matters relating to the health service in England".

In other words, the commission's functions are all about process. The rest of the clause continues in that vein. What the commission does not appear to be about is the experiences of real patients or the configuration of health services. That, for me, is a missed trick. At the moment CHCs and their national body, ACHCEW, can carry out a wide variety of activities. They can brief the press about hospital closures or policy changes affecting the health service. Another thing they can do is brief Members of both Houses of Parliament about issues relating to patient representation. It is no secret that ACHCEW has briefed me for this Bill and has done so very well. If the Government are serious about having a national body which is there to support the empowerment of patients—and that is what the commission is supposed to be about—surely to goodness it has to be allowed to do more than just comment to the Secretary of State about the arrangements in place to deliver that empowerment. This whole exercise should not just be about structures and processes; it should be about what matters to patients, and the commission should be allowed to speak out publicly on any matter if it wishes to.

The scope of these amendments is much more restricted than the one that was defeated at Report stage. I am not now proposing an unfettered power because the amendments would in fact allow the Secretary of State to decide exactly how the commission should operate. But when it comes to the matters where the commission has a legal standing, do think that we need to progress beyond the scope of subsection (2) and the relatively narrow set of issues detailed in subsection (6)—the safety and welfare of patients. We need a body that can speak out on matters that bear upon the health service more generally. Again, I think of exercises such as Casualty Watch or speaking out on a particular PFI project. Why should it not be allowed to do such things? The danger, as the noble Lord, Lord Clement-Jones, said on Report, is that once the commission's permitted activities are set in stone in the Bill, any attempt to stray beyond them will technically be ultra vires. We should build in an element of flexibility.

I hope that the Minister will treat these amendments more kindly than the amendment that we debated on Report. They are intended to be helpful. I beg to move.

Lord Clement-Jones

My Lords, like the noble Earl, Lord Howe, I regret the fact that the amendment tabled on Report was not agreed to. I assure the Minister that these amendments are not the previous amendments in a different guise. They are much more limited in their extent and would, as the noble Earl explained, simply widen the subject matter on which the commission can make representations.

Without the amendment, as the noble Earl explained, the commission would be restricted to making representations about the arrangements for patient and public involvement, as opposed to the issues that really affect people's health and health services. In view of the information that the commission will be amassing, it would be a waste to have such a body if it was not able to make representations to the Secretary of State and others on the issues that really matter. That would leave patients and the public effectively without a voice on health services at national level.

As the noble Earl explained, AC HEW is currently able to draw on the information, experience and expertise of CHCs and its own research to inform what it says or asks for—indeed, campaigns for—at the national level. Recent examples include: changes in investment in accident and emergency services, which was a result of its regular "casualty watch" survey; debates on charging for NHS services, which were stimulated by its recent report, A tax on illness; and the representations that it is currently making on patient confidentiality.

The amendments would allow the commission to take up such issues at the national level; it would otherwise be prohibited from doing that. It should be noted, however, as the noble Earl pointed out, that the commission will still be restricted to making representations to bodies and persons who are prescribed by the Secretary of State. If the Minister would state which bodies and persons he envisages the Secretary of State prescribing, we should all find that extremely useful. We are keen to ensure that the commission can make representations to the media, politicians and so on if it feels that that is appropriate.

Baroness Masham of Ilton

My Lords, I want to ask one question, which I have asked on several occasions but to which I have not received an answer. Is there going to be a body that can put forward people's views on the closure of hospitals? CHCs have been able to do that.

5.45 p.m.

Lord Hunt of Kings Heath

My Lords, I must apologise to the noble Baroness, Lady Masham; I thought that I had answered that question on several occasions. The role of the CHC in relation to significant changes of services is being transferred from appointed bodies—the CHCs—to democratic local government. The overview and scrutiny committee of the principal local authority in an area, which is democratically elected, will deal with those issues. It will have the right to call in officers of NHS bodies to examine them. If there is disagreement on a proposal, that can be referred to a national body, the Independent Reconfiguration Panel, which will advise the Secretary of State. Far from dissipating the current mechanism, we have strengthened it by linking it to locally elected councils.

I accept that the amendments are worded differently from those that we debated on Report. However, they cover much the same ground. The noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, clearly hark for some national body to focus on representing what might be the views of patients. The noble Earl referred to their attempts to speak out. That misreads the whole purpose of the commission.

Subsection (2)(a) clearly states that it will advise the Secretary of State, and such bodies as may be prescribed, about arrangements for public involvement in, and consultation on, matters relating to the health service in England". The principal aim in that regard is to ensure that we get patient and public involvement right. I do not believe that the public interest would best be served if such a commission allowed itself to go down the track of having a representative role, which we know cannot be carried out by such an appointed body. That is why I resisted the amendments on Report.

The noble Earl, Lord Howe, underestimated the commission's functions. He described that as involving a rather process-oriented set of roles. Paragraphs (a) to (h) in Clause 20(2) contain a very powerful set of responsibilities, which will ensure that we get public and patient involvement right. I draw his attention in particular to paragraph (d), which refers to, providing assistance to Patients' Forums and Patients' Councils, and facilitating the co-ordination of their activities". The commission has the potential to help local patients' forums by pulling together their activities, which will enable patients' forums to work together. When a number of patients' forums wish to come together over various issues, the commission will help and enhance that process. That is a much better approach. It involves using experience at the local level—helping patients' forums to come together to express views on patients' experience and thinking rather than seeking at a national level to carry out a role that I do not believe such bodies can be expected to carry out effectively.

I point out to the noble Earl that Clause 20(3) gives the commission the function of promoting, the involvement of members of the public in England in consultations or processes". The arrangement is not focused solely at prescribed bodies. The commission has a much wider role—to examine the way in which individuals' involvement in the National Health Service can be enhanced and developed. It is much better for the commission to focus on helping to ensure that we get effective public involvement rather than being side-tracked by attempting to have a representational role that I do not believe it could carry out effectively.

Earl Howe

My Lords, I am grateful to the Minister, although I am disappointed by what he said. I took great care to frame the amendments in such a way that they did not replicate the amendment that was defeated on Report. It would not have been proper to raise the same issues.

The whole point of these amendments is to give the Secretary of State the option of broadening the functions of the commission—the areas of activity in which it can engage. I do not belittle the functions listed in Clause 20(2). Broadly speaking, the commission is an enabler, which will assist patients' forums and communicate with the Secretary of State. I understand that that is a very important role. But for whom will it speak? I do not believe that it will speak for patients. That is the source of my disappointment. It will speak for the bodies, structures and processes that represent patients, which is at one remove from the coal face.

I understand the Minister's reluctance at this point to confer on the commission what he termed "a representative role". Again, I say that I took care not to be prescriptive in these amendments. If they were accepted, it would be entirely up to the Secretary of State to determine the extent to which the commission should widen the scope of its activities. The noble Lord, Lord Clement-Jones, listed a number of subject areas which I considered to be very relevant in that context.

I wanted to stand here with a clear conscience in speaking to the amendments and to convey to the House that I believed they were substantively different from the amendments that we debated and rejected on Report. I believe that I can do so. For that reason, I feel that I can take the opinion of the House.

5.51 p.m.

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 100; Not-Contents, 104.

Division No. 2
CONTENTS
Addington, L.	Hunt of Wirral, L.
Alderdice, L.	Jenkin of Roding, L.
Alton of Liverpool, L.	Kimball, L.
Anelay of St Johns, B.	Lane of Horsell, L.
Ashcroft, L.	Lyell, L.
Astor, V.	McColl of Dulwich, L.
Astor of Hever, L.[Teller]	Marlesford, L.
Barker, B.	Masham of Ilton, B.
Bell, L.	Monson, L.
Blackwell, L.	Montrose, D.
Blaker, L.	Mowbray and Stourton, L.
Blatch, B.	Moynihan, L.
Boardman, L.	Murton of Lindisfarne, L.
Bowness, L.	Naseby, L.
Bradshaw, L.	Newby, L.
Burnham, L.	Newton of Brain tree, L.
Buscombe, B.	Noakes, B.
Byford, B.	Northbrook, L.
Caithness, E.	Northesk, E.
Campbell of Alloway. L.	Northover, B.
Chilver, L.	O'Cathain, B.
Clark of Kempston, L.	Oakeshott of Seagrove Bay, L.
Clement-Jones, L. [Teller]	Oppenheim-Barnes, B.
Colville of Culross, V.	Park of Monmouth, B.
Colwyn, L.	Platt of Writtle, B.
Cope of Berkeley, L.	Plumb, L.
Cox, B.	Rawlings, B.
Craigavon, V.	Rees,L.
Cumberlege, B.	Renton, L.
Denham, L.	Roberts of Conwy, L.
Dholakia, L.	Rodgers of Quarry Bank, L.
Dixon-Smith, L.	Roper, L.
Eden of Winton, L.	Russell, E.
Elliott of Morpeth,L.	Saatchi, L.
Falkland, V.	Scott of Needham Market, B.
Ferrers, E.	Seccombe, B.
Finlay of Llandaff, B.	Selborne, E.
Freeman, L.	Selsdon, L.
Gardner of Parkes, B.	Skidelsky, L.
Geddes, L.	Thomas of Gwydir, L.
Glentoran, L.	Thomas of Walliswood, B.
Greaves, L.	Tope, L.
Hanningfield, L.	Trefgame, L.
Harris of Richmond, B.	Trumpington, B.
Hayhoe, L.	Vivian, L.
Higgins, L.	Walmsley, B.
Holderness, L.	Walpole, L.
Hooper, B.	Weatherill, L.
Howe, E.	Wilcox,B.
Howell of Guildford, L.	Williams of Crosby, B.
NOT-CONTENTS
Alli, L.	Carter, L. [Teller]
Andrews, B.	Chandos,V.
Archer of Sand well, L.	Christopher, L.
Ashton of Upholland, B.	Clark of Windermere, L.
Bassam of Brighton, L.	Clarke of Hampstead, L.
Berkeley, L.	Clinton-Davis, L.
Bernstein of Craigweil, L.	Cohen of Pimlico, B.
Bhatia, L.	Corbett of Castle Vale, L.
Blackstone, B.	Crawley, B.
Borrie, L.	David, B.
Bragg, L.	Davies of Coity, L.
Brennan, L.	Davies of Oldham, L.
Brett, L.	Dean of Thornton-le-Fylde, B.
Brookman, L.	Desai,L.
Campbell-Savours, L.	Donoughue, L.

Dormand of Easington, L.	Massey of Darwen, B.
Dubs, L.	Merlyn-Rees, L.
Elder, L.	Milner of Leeds, L.
Evans of Temple Guiting, L.	Mitchell, L.
Farrington of Ribbleton, B.	Morris of Aberavon, L.
Faulkner of Worcester, L.	Nicol, B.
Filkin, L.	Pendry, L.
Fyfe of Fairfield, L.	Peston, L.
Gale, B.	Pitkeathley, B.
Gibson of Market Rasen, B.	Pry s-Davies, L.
Gilbert, L.	Puttnam, L.
Goldsmith, L.	Ramsay of Cartvale, B.
Grabiner, L.	Rea, L.
Graham of Edmonton, L.	Rendell of Babergh, B.
Gregson, L.	Renwick of Clifton, L.
Grenfell, L.	Richard, L.
Grocott, L.	Rogers of Riverside, L.
Haskel, L.	Rooker, L.
Hayman, B.	Sawyer, L.
Hilton of Eggardon, B.	Scotland of Asthal, B.
Hollis of Heigham, B.	Sewel, L.
Howarth of Breckland, B.	Sheldon. L.
Howie of Troon, L.	Simon, V.
Hoyle, L.	Temple-Morris, L.
Hughes of Woodside, L.	Thornton, B.
Hunt of Kings Heath, L.	Tomlinson, L.
Irvine of Lairg, L. (Lord Chancellor)	Turnberg, L.
	Turner of Camden, B.
Janner of Braunstone, L.	Uddin, B.
Judd, L.	Walker of Doncaster, L.
Lea of Crondall, L.	Warwick of Undercliffe, B
Lipsey, L.	Wedderburn of Charlton, L
Macdonald of Tradeston, L.	Whitaker, B.
McIntosh of Haringey, L. [Teller]	Whitty, L.
	Wilkins, B.
McIntosh of Hudnall, B.	Williams of Elvel, L.
MacKenzie of Culkein, L.	Williams of Mostyn, L. (Lord Privy Seal)
Mackenzie of Framwellgate, L.
	Woolmer of Leeds, I.

Resolved in the negative, and amendment disagreed to accordingly.

[Amendment No. 20 not moved]

6.1 p.m.

Earl Howe

moved Amendment No. 21: Page 26, line 45. leave out "Primary Care Trusts" and insert "Overview and Scrutiny Committees". The noble Earl said: My Lords, this is a very straightforward amendment. It is, in a real sense, consequential upon the amendments carried on Report in relation to patients councils. In line with those amendments, I believe that it makes sense for the Commission for Patient and Public Involvement in Health to operate with reference to the boundaries of local authorities which have overview and scrutiny committees.

That will not always be possible, but if the object is for the commission to provide support to OSCs for their scrutiny function, then it must be desirable for the commission to operate on all fours with patients councils, with which it will be intimately bound up. Clearly, in an area where there is, for example, a large county overview and scrutiny committee, there may be a need, following local discussion, to operate with reference to a smaller area. My amendment allows for that. I beg to move.

Lord Hunt of Kings Heath

My Lords, I am not entirely convinced that now is the right time to debate this issue. My understanding of the amendment passed on Report establishing patients' councils was that the intention was that the councils would take over the functions of the commission at the local level. In Clause 16(4)(a) it is made clear that it will be the function of the patients' council to, facilitate the co-ordination of the activities of member Patients' Forums including by the provision of staff and services to Patients' Forums". I am not clear why the noble Earl thought it important to debate this issue at this stage. I believe that an important element of the Government's proposal is that wherever possible the focus of patient involvement should be at the local level. Surely that means, as far as the health service is concerned, that it will he most appropriately placed in the primary care trust area.

I suspect that the other place will have something to say about patients' councils and your Lordships may be able to debate this matter again fairly shortly. Perhaps we should return to this debate at that time.

Earl Howe

My Lords, I am sorry that the Minister feels that way. If we are to have patients' councils, as I hope, it no longer makes sense for the commission to operate within the relatively narrow purview of a PCT. The Minister said that his understanding was that the patients' councils would take over the functions of the CPPI. I do not completely hold with his choice of words. The commission will still have a role. Effectively, it will act as the secretariat to patients' councils, an extremely important role. Nevertheless, de facto I believe that if we have patients' councils the commission will have to operate by reference to overview and scrutiny committees because that is the way in which patients' councils, by and large, will be configured. I am sorry that the Minister does not feel that he can accept the amendment. In the circumstances I shall not press it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath

moved Amendment No. 22: After Clause 20, insert the following new clause— "OVERVIEW AND SCRUTINY COMMITTEES In section 7 of the Health and Social Care Act 2001 (c. 15) (health-related functions of overview and scrutiny committees), in subsection (3)(b), at the end there is inserted "or to the relevant authority". On Question, amendment agreed to.

Earl Howe

moved Amendment No. 23: After Clause 20, insert the following new clause— "REFERRAL OF CONSULTATION ARRANGEMENTS AND DISPUTED DECISIONS (1) In section 11(2) of the Health and Social Care Act 2001 (c. 15) (public involvement and consultation) paragraph (a) is omitted and there is inserted— (a) The Secretary of State. (aa) Care Trusts". (2) Before an establishment order for a Strategic Health Authority, an NHS Trust, a Primary Care Trust or a Care Trust is made, varied or revoked the Secretary of State shall consult those bodies in subsection (5) whose districts are wholly or partly within the area of operation of the relevant authority or trust. (3) Any Strategic Health Authority considering whether to exercise its powers under section 17A of the 1977 Act (health authority directions: distribution of functions) shall first consult the bodies provided for in subsection (5) whose districts are wholly or partly within the area of operation of the relevant Primary Care Trust. (4) The Secretary of State shall by regulations make provision—

1. (a) concerning the application of section 11 of the Health and Social Care Act 2001 such that if in the view of any of the bodies in subsection (5) consultation arrangements are inadequate, the body in question shall refer the matter to him,
2. (b) for the referral to Strategic Health Authorities of disputed decisions concerning substantial variations or developments in the planning or operation of health services by bodies detailed at subsection (5),
3. (c) for circumstances in which bodies detailed at subsection (5) shall refer decisions concerning the planning or operation of the health service to him including the circumstances in which referrals shall be made directly to him by Patients' Forums and Patients' Councils on the failure of overview and scrutiny committees to respond to a referral made to them under section 19(2)(m) of this Act, and
4. (d) placing a duty on him and those bodies receiving referrals to respond to them with a specified time limit and giving reasons for any decision taken in relation to the subject matter of the referral.

(5) Those bodies referred to at subsections (2) to (4) are—

1. (a) overview and scrutiny committees or joint overview and scrutiny committees provided for in sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001,
2. (b) Patients' Councils,
3. (c) Patients' Forums."

The noble Earl said: My Lords, the arrangements for patient and public involvement concern one matter and one matter alone: accountability. There are two strands to the way in which accountability works, depending on whereabouts in the hierarchy of responsibility action is initiated. Action is initiated either at the top, in which case there has to be consultation at national and at strategic level with local communities, or it is initiated at local level. At local level there are often powers to trigger action at a national level. In those cases there needs to be a right of referral upwards from local communities to national and strategic level.

This amendment, which has been debated on earlier occasions, seeks to preserve those lines of accountability to ensure that national accountability for what happens locally is not compromised. The advent of strategic health authorities, as branch offices of the NHS, means that they must be built into the mechanisms as well. On many occasions the Government have said that overview and scrutiny committees will have rights of referral as robust as those held by CHCs. With great respect to the Minister, at the moment that is not the situation. As I have indicated on previous occasions, the right of referral between local communities and the national government is absent from the Bill and from the Health and Social Care Act. That omission needs to be rectified.

I am delighted that the Minister has tabled Amendment No. 22. That amendment will give overview and scrutiny committees an explicit power to make reports and recommendations to the Secretary of State. However, I do not believe that that amendment is an adequate substitute for the one that we are now debating. I am seeking a robust replacement for the referral powers of CHCs, which is a much wider and a more significant matter. The government amendment gives only a permissive power to overview and scrutiny committees to make referrals. The wording of the relevant part of my amendment stipulates that referring such matters should be mandatory. That wording replicates the wording of the regulations that cover CHC referrals. It is a significant point and there is a significant difference.

We can all too easily imagine a situation where an OSC may he aware of flawed plans or flawed consultations about an important change to the provision of services, yet choose not to refer them, perhaps—dare I say—for political reasons. I touched upon that point at the previous stage of the Bill. To put it mildly, that would not be a satisfactory state of affairs. The word "referral" carries the implication, to my mind, of a two-way dialogue. My amendment puts a statutory responsibility on the Secretary of State to provide a full and timely reply to whatever may be referred to him. That is how proper accountability should work. Making reports and recommendations, as under the government amendment, does not imply that a response is required in the same way as a referral does.

On the face of the Bill we already have a right of' referral by patients' forums to overview and scrutiny committees. If we compare that right with the terms of Amendment No. 22 we can see that it is more robust than the referral mechanism—if I can call it that—from local to national level. I ask why that should be.

Subsection (4) is an attempt to achieve those aims. It also requires the Secretary of State and care trusts to consult. That is especially relevant to specialised commissioning, where currently only the hotch-potch of PCTs will consult. Also, if a Secretary of State ever proposed to abolish a strategic health authority, it would be unreasonable for it to be expected to consult on its own demise. The Secretary of State ought to do that. That illustrates that it is not just health services that can trigger consultation, as the Minister implied earlier. I include care trusts again, not withstanding the Minister's reply last time, because it is far from clear whether a care trust would consider a duty to consult as applying to it once it was established as a new body. It is better to place the matter beyond doubt.

The amendment also requires consultation by strategic health authorities with local communities about the transfer of functions to PCTs. That would be important, for example, where a PCT was not ready to take on such functions and the local community wanted a say in the matter. Last time, the Minister said that the provision in subsection (3) of the new clause was unnecessary, but without it PCTs may be given a completely different remit from the one for which they were established without any consultation. That would be entirely unacceptable.

Last time, the Minister said that he thought that the amendment would overcomplicate the Bill. I hope that I have shown that that is not so and that there are good reasons for every ingredient in it. I beg to move.

Lord Clement-Jones

My Lords, I support Amendment No. 23, moved by the noble Earl, Lord Howe. We welcome government Amendment No. 22 so far as it goes but, like the noble Earl, we believe that it does not go far enough. We make the same distinction as did the noble Earl between reports and referrals, referrals being a much more active process requiring a reply from the body to which the referral has been made.

The noble Earl, Lord Howe, put a gloss on the Minister's reply on Report. I shall not repeat the points that he made about care trusts, but he did not put a gloss on some of the Minister's other replies, which it may be helpful for me to take the Minister through. First, care trusts should be specified because there is doubt about whether they are included.

Secondly, the Minister said of subsection (1) of the new clause that it would be only "cosmetic" to include the Secretary of State under the duty to consult because of shifting the balance of power, and so on and so forth. The reason for including the Secretary of State is so that he is forced to put in place appropriate arrangements for consultation on specialised or regional services. The noble Lord, Lord Filkin, did not deal with that angle. For example, as the noble Earl, Lord Howe, said, it would be unrealistic to expect a strategic health authority to consult on its own demise if that was proposed by the Secretary of State. That is a strong point that I re-emphasise.

The Minister said that subsection (2) was covered by the government amendment relating to consultation orders for strategic health authorities. He will note that subsection (2) of this new clause goes considerably wider. The noble Earl, Lord Howe, touched on subsection (3). I shall not repeat what he said.

On Report, the Minister said of subsection (4) and the issue of OSCs not having the right to refer: We are considering how best to provide for this within the framework of Section 7 of the Health and Social Care Act". We have dealt with that today, but I hope that it will become clearer. After all, the Minister and his colleague, Hazel Blears, have been considering that since the beginning of the Bill's passage. The Minister said that, we shall be able to guarantee that a secure referral mechanism exists within our provisions".—[Official Report, 30/4/02; co1.636] We welcome Amendment No. 22 on that basis.

The Minister summarised Section 11 of the Health and Social Care Act 2001 as providing for people's views and concerns to be "fed into decisions". That is quite different from consultation on substantive issues.

So the Minister did not deal adequately with the points that I and the noble Earl, Lord Howe, raised. Several aspects of the new clause would be hugely beneficial to the Bill and I hope that he will take the time and trouble to respond to all of them.

6.15 p.m.

Lord Filkin

My Lords, as noble Lords have recognised, we dealt with one of the issues that the amendment attempts to address under Amendment No. 22. I hope that that does not raise too high an expectation of further concessions.

Our amendment gives OSCs an explicit power to refer matters of concern to the Secretary of State—as we said, to put the matter beyond doubt—and subsection (4) of the new clause is intended to strengthen the mechanism for getting the views of OSCs, among others, to the Secretary of State. However, there is no benefit in making the further changes suggested in subsection (4). In fact, to do so would overcomplicate and muddle the arrangements. I shall seek to explain why.

Amendment No. 22 did not deal with the other aspects of Amendment No. 23—namely, the changes to the duty on the NHS to make arrangements to consult and involve the public in its decisions. Again, the amendment is unnecessary. It is unnecessary to include care trusts because, as we have said several times, PCTs and NHS trusts are already listed and care trusts will be either PCTs or NHS trusts. They cannot be anything other than one of those two, so they are already explicitly caught and provided for in the way in which the noble Earl, Lord Howe, wants. They will already be covered by the references to PCTs and NHS trusts.

Secondly, with regard to the Secretary of State, shifting the balance of power to the front line means that responsibility for the planning development and delivery of services is now with the front line. It would be inconsistent then to place a duty on the Secretary of State when the duty is already in place for local bodies—those bodies with responsibility for the services and the relationship with local people to be able to carry out the involvement and consultation activity.

Section 11 of the Health and Social Care Act 2001, which was referred to, already places a duty on NHS bodies, including strategic health authorities, to consult on services for which they are responsible. Including the Secretary of State under that duty makes only a cosmetic difference.

Subsection (2) of the new clause relates to the Secretary of State consulting bodies representing local patients on the establishment orders of NHS bodies. As noble Lords will know, we have already amended the Bill to cover the consultation of relevant bodies on the establishment orders of strategic health authorities. Subsection (3), which places a duty on strategic health authorities to consult before directing PCTs to undertake their statutory duties surely gives rise to major consultation overload. We would be in danger of so much consultation as to make the process meaningless.

Although we recognise that the new clause attempts to clarify and rationalise the consultation arrangements, it goes far too far in its detail and perhaps muddles the arrangements already provided for.

The noble Earl, Lord Howe, spoke about how important it was that overview and scrutiny committees acted with vigour and argued that referrals should be mandatory. I find it hard to believe that the major local authorities—the 150 social services authorities, which are some of the most powerful local authorities in the land—would be inhibited about referring matters to the Secretary of State or elsewhere, if they felt that there was something wrong with healthcare provision or facilities in their area.

The noble Earl made a more substantial point about anxieties that local authorities might, at times, behave in a party political way that might inhibit the vigour of their response. There is no black-and-white answer to that problem. Even if we created a duty to refer, it would not necessarily be meaningful; people can refer things without putting much power into it. The local authorities will have noticed what happened in the case of Kidderminster Hospital and are more alert to the importance of taking seriously the concerns of the local public about health provision and do not think that they can behave along rather crude party lines. I am not necessarily implying that that was what Bromsgrove District Council did in that case.

There has been previous reference to overview and scrutiny committees and how they will develop. The general advice, as I recollect it, was that they should not be whipped. They should give fairly full representation to all political parties, and they will have failed if they fulfil their duties in the kind of party political or partisan way about which the noble Earl was concerned.

The question of whether strategic health authorities would consult about changes in PCT functions was mentioned. There will be no duty of consultation, as such, on the delegation of functions. However, if the shift of functions affects the development of the service and the way in which it is developed, the public will be consulted, under Section 11 of the Health and Social Care Act 2001. I hope that that gives noble Lords sufficient comfort.

For those reasons—reinforced by what we said today—we believe that there is no need for the amendment. It should not be pressed.

Earl Howe

My Lords, I thank the Minister for his response. He repeated many of the arguments deployed last time and said, in particular, that the amendment would give rise to consultation overload. I do not see things in the same light. Consultation is an integral part of the quality agenda. It is integral to proper accountability in the system, which, to their credit, the Government say that they want to achieve.

The overall trend in the Bill and in the Health and Social Care Act 2001 is to make the arrangements for consultation a good deal fuzzier. With CHCs, we have a clear, discernible process; what we are being given is more of a focus-group approach. I am not saying that focus groups do not have their merits. They are—or can be—useful devices. However, if legal duties to consult are lost and if the power of local communities to act against poor consultation or bad decisions is lost, the whole process will be reduced from a power to act to a power merely to talk. That is the background to the amendment. It is not superfluous.

The Minister said that paragraph (2) of the amendment was covered by the government amendment agreed to previously that relates to consultation orders for strategic health authorities. However, that paragraph of my amendment includes NHS trusts, PCTs and care trusts, which are, otherwise, missed out. It also provides for consultations on variations and revocations, not simply establishments. I do not share the Minister's view that it merely replicates the measures that have already been put in place.

In view of the hour, however, I shall not press the matter. The point has been made, and I do not feel that I can say any more. I thank noble Lords who contributed to the debate, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

Clause 27 [Complaints about regulatory bodies]:

Baroness Finlay of Llandaff

moved Amendment No. 25: Leave out Clause 27. The noble Baroness said: My Lords, the amendment refers specifically to the clause relating to complaints against regulatory bodies. When the clause was last debated, the Minister pointed out the importance of allowing members of the public to press for an explanation of delays, when they have made a complaint against a healthcare professional. The noble Lord, Lord Turnberg, warned against a system that automatically allowed every complaint to come to the council if the complainant was dissatisfied.

The complaints procedures laid out here cause me great anxiety. Each regulator must have an appeals system in place and be able to receive complaints against the way in which it has conducted its business. Within its internal complaints procedure, the regulator must have a system for resolving such complaints. If the complaints are major, the body should—must—have a procedure for external review of its procedures. However, the internal complaints procedure should allow a complainant to return if he feels that his complaint has not been adequately heard or processed. There is no dispute that there must be a system that allows people to come back.

The data on such complaints will be contained in the annual report of the regulatory body. If the procedures are not conducted adequately, it will be evident from the report, as will the fact that the standards set for the complaints procedure are not being adhered to. There is now provision for the council to direct a regulator to alter its code of practice through the affirmative resolution procedure. That has already been debated.

If the complainant is not satisfied that the regulator has listened adequately to the complaint about the processes of that regulator, it would be appropriate for the complainant to go then to the health service ombudsman. I am concerned that, if the complaints procedure is internal to the council, the council will receive an inordinate number of complaints that should be dealt with by the individual regulator. It will undermine the council's ability to be an overarching body that can ensure that there is equity in complaints procedures.

My other concerns relate to the fact that there will be different patterns of healthcare delivery in different parts of the United Kingdom. The regulation of healthcare professionals is a reserved power: so it should be. There may be a situation in which a decision is made about a complaint against a healthcare professional acting in a certain way in one part of the United Kingdom, such as Scotland or Northern Ireland, that could, at face value, set a precedent. It could be that a similar-seeming complaint made in England could be treated in the same way, although, in fact, it should be interpreted differently when the relevant regulatory body consider the minutiae of the issue. Decisions are often similar on the surface but turn out to be fundamentally different. Another problem is that under Clause 27(3) and (4), the council will act as a court—over and above the regulators. The noble Baroness, Lady Noakes, previously alluded to a difficulty in relation to the delicate issues surrounding confidentiality and disclosure. I beg to move.

6.30 p.m.

Baroness Noakes

My Lords, the noble Baroness raised some important points, with which I sympathise. Clause 27 is something of a Cinderella. We did not discuss amendments to it in Committee because we came to it at the end of the fourth day in Committee and it was getting very late. Also, it was practically the last clause to be discussed on Report. I am not clear that we have discussed all the important issues that arise from the clause.

Clause 27 gives wide powers to the Secretary of State to establish complaints procedures—many of which can override the provisions of the regulated bodies. I refer in particular to Clause 27(2)(g), which allows the Secretary of State to specify what happens in relation to the important area of confidentiality.

On Report, the Minister said that the Government's decision was that Parliament should decide on important and sensitive issues. It is not that simple. Admittedly an order made under the clause will be by the affirmative procedure, but we know that your Lordships' House and another place can do little to orders. We have no ability to amend, so are left with the possibility of rejecting the whole order—which is often taking a sledgehammer to crack a nut.

The Secretary of State will be the decision maker, which adds to Clause 27 being unsatisfactory, with worrying implications—particularly in relation to important matters that are properly dealt with by the regulatory bodies but which could be overridden. We do not know how the powers will be used. The Explanatory Notes are silent and the Minister has said nothing—certainly not in your Lordships' House—about the Government's intentions. Will the Minister say how and when the Government intend to use the powers in Clause 27? What consultation will there be before those powers are used—and what role does he expect the professional bodies to play in the development of a further tier to the complaints procedure?

Lord Hunt of Kings Heath

My Lords, I am not in a position to give a timetable for which such regulations might be brought before Parliament, but of course there would be full consultation. The regulatory bodies themselves will no doubt play an important role in putting forward their own views.

Clause 27 is one of a number of clauses that develop the theme of the careful balance that we have attempted to strike between the benefits of self-regulation, the role of the regulatory bodies and the overriding public interest. The changes made as the Bill has progressed through both Houses have achieved that balance—which is why the regulatory bodies have expressed satisfaction with the outcome of discussions.

Clause 27 is not to be seen as a means of overturning decisions of fitness-to-practice committees but as a power to investigate maladministration. The noble Baroness suggested that the ombudsman should have a role in relation to the regulatory bodies—but they are not subject to any ombudsmen because they are not government bodies. Our debates would suggest that none of us wishes them ever to be seen as government bodies. If an ombudsman cannot be involved, there is a persuasive argument for the council to carry out that function in relation to maladministration.

While I hold the regulatory bodies in the highest regard, one cannot say that all of them have uniformly been particularly efficient in conducting their own disciplinary cases. In the past, some complainants have been the subjected to long waits, have had little idea about the progress of their cases and have received little information about the process as a whole.

The regulatory bodies themselves recognise those problems and are working hard to put them right—but a backstop is needed, to permit another body to investigate where there is evidence of maladministration. Clause 27 provides that ability. Regulations for its operation would have to be brought before your Lordships' House and be subject to the affirmative resolution procedure, which will provide sufficient safeguards.

Baroness Noakes

My Lords, would the Secretary of State only trigger the powers in Clause 27 if there was evidence of maladministration among the regulatory bodies?

Lord Hunt of Kings Heath

No, my Lords—I would not say that at all. It is clear that we will wish to establish a scheme and produce the necessary regulations in due course.

Baroness Finlay of Llandaff

My Lords, I am grateful to the Minister for going some way to providing reassurance in respect of the questions asked by the noble Baroness, Lady Noakes. I am slightly concerned that the Minister has left the matter so open. I am glad that the concept of maladministration will be the underpinning principle by which Clause 27 could be invoked. There is certainly a need for some form of backstop to protect the public. The Minister is correct when he says that delays in processing complaints cause undue tension and distress. While there are still some gaps left, I am grateful for the Minister's reassurance that there will be limits on the way that Clause 27 is used. I beg leave to withdraw to amendment.

Amendment, by leave, withdrawn.

Schedule 6 [The Commission for Patient and Public Involvement in Health]:

Lord Hunt of Kings Heath moved Amendment No. 26:

Page 87, line 33, at end insert— 5A (1) The Secretary of State may direct a Special Health Authority to exercise—

1. (a) his function of appointing the chairman under paragraph 3, and
2. (b) any functions conferred on him by regulations made under paragraph 4 in relation to the appointment or the tenure of office of the chairman and the other members.

(2) If he does so, the 1977 Act has effect as if—

1. (a) the directions were directions of the Secretary of State under section 16D of that Act, and, accordingly,
2. (b) the functions were exercisable by the Special Health Authority under section 16D."

On Question, amendment agreed to.

Lord Hunt of Kings Heath

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)

On Question, Bill passed, and returned to the Commons with amendments.