HL Deb 20 October 2003 vol 653 cc1356-490

8.31 p.m.

House again in Committee on Clause 66.

Earl Howe moved Amendment No. 324ZA:

Page 26, line 19, at end insert— "'( ) the Office for Standards in Education; ( ) the Department for Education and Skills: ( ) children's trusts; ( ) local Safeguarding Children Boards."

The noble Earl said: If we accept that there may be occasions when CHAI will need to access personal data, it is unclear whether situations involving suspected harm to children—whether in a domestic context or elsewhere—strictly will be within CHAI's remit or its sole remit.

Could the Minister clarify this point? Now that policy making for child protection has been transferred to the DfES and the Minister for Children, who will be the lead body when investigations into child abuse allegations take place? Will it be CHAI, Ofsted or neither? If it is Ofsted or perhaps one of the new children's trusts, will that body have unfettered access to personal medical data relating to children? Will such data be freely available in the DfES?

We need to be extremely careful when making data of this kind available to anyone and everyone with a possible interest in accessing it. Members of the Committee will be aware that the recent government Green Paper put forward a number of recommendations, one of which is for a national database of children and families. We are all familiar with why such a recommendation should have emerged in the wake of the report produced by the noble Lord, Lord Laming, into the death of Victoria Climbié. Like so many of us, I have enormous respect for the noble Lord, Lord Laming, and the work that he did.

However, there are dangers as well as benefits in any widening of access to personal data. The first danger that springs to my mind is that of jumping to wrong conclusions. I shall not weary the Committee for too long on what, I have to admit, is an abiding concern of mine. On previous occasions in this Chamber, we have debated how impossible it is for someone who has been wrongfully accused of child abuse to have that designation removed from his or her medical records or from the records of the child. In practice, it is a permanent black mark against that person, even if an allegation has been comprehensively rebutted.

We all want to see child abusers identified and brought to account, but we do not want to see a mushrooming of false allegations which traumatise parents and children and waste valuable public resources. I should be grateful if the Minister could say a little now, or perhaps write to me, about the width of the circle of privileged access that the Government envisage as regards the sharing of children's personal data. If CHAI has automatic access, albeit according to worked-out protocols, who else will be entitled to share in the data? Will the protocols be the same for those people? The more people who potentially have access to confidential data, the more it can be misused or accessed by those who have no business doing so. I beg to move.

Lord Warner

The noble Earl knows from my responses in earlier debates to concerns he has rightly raised about wrongful accusations of child abuse that I have every sympathy with them. It is not something that either I personally or the Government would want to encourage. I understand his position.

In regard to Amendment No. 324ZA, we do not feel that placing Ofsted under a duty to provide information to CHAI in this manner is the best way forward. A duty of co-operation and joint working provisions is already included in the Bill. Further, given the increased remit provided for Ofsted in relation to children set out in our recent Green Paper, Every Child Matters, we think it proper that both bodies should develop appropriate protocols with regard to joint working and information sharing. I am sure that government departments will try to help CHAI with information if necessary, but making it a requirement in primary legislation is not appropriate.

I am sympathetic to the inclusion of the final two bodies listed in the amendment, but neither children's trusts nor local safeguarding children boards have statutory status at this stage. Furthermore, and in response to the inquiry of the noble Lord, Lord Laming, into the tragic death of Victoria Climbié, we are currently considering to what extent these bodies should be put on a statutory footing. Therefore it would be inappropriate to place these bodies on the face of the Bill until the issue of their status has been resolved. Certainly it would go against accepted drafting practice to refer in primary legislation to bodies which do not have statutory status.

CSCI will be the lead body in relation to child protection allegations. It will have the right, where necessary, to access personal data in order to protect the welfare of vulnerable children. The position of CSCI will be considered further in the context of the response to the Laming report. Until that is made more clear, I cannot take the debate much further, other than to reassure the noble Earl that we understand his concerns. However, the amendment does not mark the way forward at this point.

Earl Howe

I am grateful to the Minister for that response and I accept that it would not be appropriate to place on the face of the Bill a mention of bodies that do not yet exist. He will understand that this was intended as a probing amendment really to tease out who will take the lead on children's issues. If it is to be CSCI, there is still a question to be raised about whether the edges are in any sense blurred and whether that body will be able to gain access to all the types of premises that it will need to investigate for the purposes of its work in this area.

As regards Ofsted, if it is expected that CHAI should work in close co-operation with it, I am a little surprised that that is not set out on the face of the Bill. Where such co-operation is required, it is important that both sides contribute to the same degree and in the same measure to the work in hand. I should have thought that duties set out on the face of the Bill would not be out of place here. Nevertheless, if it is the considered view of the Government that that is not required, then I bow to their judgment.

Again, I am grateful to the Minister for his explanation. I shall take the issue away and give it further thought. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66 agreed to.

Clause 67 [Power to require explanation]:

Lord Warner moved Amendment No. 324A:

Page 26, line 38, leave out "prescribed" and insert "specified by the CHAI"

The noble Lord said: The government amendments are technical in nature and were suggested by parliamentary counsel.

As I said to earlier, similar, amendments. Amendments Nos. 335A and 361 A, under Clauses 67, 73, 89 and 99 regulations may provide for CHAI, the Welsh Assembly or CSCI as appropriate to require prescribed persons to provide an explanation of any documents or information the inspectorates obtain in exercising their relevant powers, or of any matters which are the subject of the exercise of any functions of the inspectorates.

The Bill currently provides that those regulations may require explanations to be provided at times and places set out in the regulations. This is to ensure that it will be possible to require explanations to be provided in person, as opposed to in writing, which we consider will sometimes be appropriate, particularly where the inspectorates come across conflicting data in the course of exercising their functions. These amendments clarify matters in this regard. I beg to move.

Earl Howe

I shall speak briefly to my Amendments Nos. 325 and 359, which are grouped with the government amendments.

Can the Minister expand in a little more detail on the full intent and purport of the clause? Clause 67 creates a criminal offence if a prescribed person fails to provide a explanation to CHAI of any documents or other matters referred to in subsection (1) in circumstances as yet undefined. The Minister, however, outlined one set of circumstances, which I found helpful.

We gather that regulations will be laid in due course which will set out the full extent of the power and what exactly is involved. If the Minister can give an inkling of what we can expect to see in the regulations and what kinds of circumstances these provisions are meant to cover, I am sure the Committee will find it helpful. I have also tabled an equivalent amendment to Clause 89, which relates to Wales.

I suggest, I hope not unreasonably, that because we are being presented with not only an empty box but also a new criminal offence applicable to it, the regulations to be laid should be subject to the affirmative resolution procedure to enable them to be guaranteed debating time in both Houses.

Lord Warner

I shall not go over the arguments again of why we think the regulations are suitable for the negative rather than affirmative resolution procedure. They were set out at an earlier stage of our discussion in relation to regulations of this kind.

We are moving the government amendments because there are circumstances under which CHAI, the Assembly or CSCI may require prescribed persons to provide an explanation of any documents or information the inspectorates obtain in exercising their powers. We are trying to ensure that these explanations may be provided not only in writing but in person. We will of course set out in more detail in the regulations those arrangements, but essentially this is about explanations being dealt with in writing or by a personal appearance.

That is the purport of what will be covered in the regulations. I am not sure that I can go much further in trying to clarify what will be in the detailed regulations.

Earl Howe

The noble Lord has shed some light on the clause and I thank him for that. We look forward to seeing the regulations when they are published. No doubt these matters will by then have been thought through in even greater detail.

On Question, amendment agreed to.

[Amendment No. 325 not moved.]

Clause 67, as amended, agreed to.

Clause 68 [Reviews and investigations relating to Wales):

[Amendments Nos. 326 to 331 not moved.]

Clause 68 agreed to.

Clause 69 [Reporting to Secretary of State and regulator]:

Baroness Noakes moved Amendment No. 332:

Page 27, line 37, leave out "Secretary of State" and insert "CHAI"

The noble Baroness said: In moving Amendment No. 332, I shall also speak to Amendment No. 333.

Amendment No. 332 amends Clause 69(1), which requires the Assembly to report to the Secretary of State if it believes there are significant failings in an English NHS body. I have argued earlier in our proceedings that it is not sensible or desirable for the Assembly to concern itself with English bodies, but, if it is to do so, we believe that its reports should go to CHAI. The issue of significant failings is unlikely to be related only to the provision of care to Welsh patients. It should be left to CHAI to deliver to the Secretary of State a coherent picture, based on the Welsh perspective and CHAI's own findings.

It is possible that significant failings in an English hospital seen through the Cardiff end of the telescope are not nearly so important when contextualised for the whole of the hospital's activity. I am not suggesting that CHAI should ignore what the Assembly thinks, but the Secretary of State should receive advice on a consistent basis from the body which he has set up for that purpose.

Amendment No. 333 makes a similar provision in relation to foundation trusts. Clause 69(3) has the Assembly reporting to the regulator directly. Our amendment would have the Assembly reporting to CHAI, which can then report to the regulator under Clause 52 if, in the round, such a report is considered by CHAI to be desirable. I beg to move.

Baroness Andrews

I shall take my cue from the noble Baroness—I shall not have another debate on devolution and will keep my remarks brief.

We believe that the amendments are not necessary. To state the obvious, the Secretary of State is responsible for the overall provision of healthcare in England, while the Assembly, under Clause 68, is given the function of conducting the reviews of and investigations into the provision of healthcare by and for Welsh NHS bodies. As we debated last week, the new independent health inspectorate for Wales is being established to conduct reviews in the same way as CHAI does in England. Our argument is that if the Assembly identifies significant failings, it should report them to the Secretary of State or the regulator, in the case of foundation trusts. These are the people who can make things happen and make changes.

I agree with the noble Baroness that in pursuit of its responsibilities, the health inspectorate might indeed come across failings. It may find those failings in relation to Welsh patients in English hospitals. Let us assume, for example, that CHAI did not inspect a hospital recently or that it never inspected it. If HIW, as part of its programme, makes a decision to inspect that hospital, discussing its programme with CHAI, given its duty of co-operation, any difficulties it comes across will be germane not simply to Welsh patients but will have an impact on English patients as well. Therefore, we believe that this is an opportunity for something to be anticipated. It would be for the Secretary of State to determine what action should be taken to address those failings in accordance with the powers conferred on him by the National Health Service Act 1977, and likewise for the regulator, in relation to his powers under Clause 23.

I emphasise that Clause 141 provides for co-operation where it seems appropriate for the effective discharge of functions. In this context, the provision also extends towards the provision of information, including information on failings relating to English NHS trusts. Clause 126 also provides for CHAI to make and publish an annual report on both English and Welsh NHS bodies. In exercising that function, CHAI will need to have copies of all reports in relation to the functions undertaken by the Assembly, which may include information on failings relating to English NHS trusts.

I hope the noble Baroness will agree that these are reasonable arguments and withdraw her amendment.

Baroness Noakes

I thank the noble Baroness for her reply, but it has really rather strengthened my resolve on the issue. She said that CHAI would need to report both to the Secretary of State and to the Assembly on health matters. It can report to the Assembly on Welsh matters only if it has information about Welsh matters—but here we have a deliberate information flow that bypasses CHAI and goes somewhere else. There is a real asymmetry here.

We do not believe that the Welsh Assembly should have any role with regard to English hospitals—only CHAI should have a role. If the Assembly is going to do it, however, its findings will need to be filtered through CHAI, otherwise there will be an asymmetry.

Lord Livsey of Talgarth

I am sorry to intervene in the debate, but I have wide experience of the relationship between the NHS in Wales and the NHS in England. It is extremely important that there is wide consultation, particularly as it affects England. Up to 25 per cent of the patients in Powys go to English hospitals, in Hereford and Shrewsbury and one or two other places. That is a significant cross-border movement of patients, and it is important that they are monitored. The new hospital in Hereford has fewer beds than was formerly the case, which means that patients in Powys have achieved a second-class status in terms of waiting lists. Such matters are extremely important.

Baroness Noakes

I thank the noble Lord for that intervention. I have never denied that the cross-border flows were important. If the noble Lord had been able to join us on a previous Committee day—I am not sure which one—he would have heard an extensive debate, which the Minister may be rather disappointed that we are not having again today, about the impact of the cross-border flow. In fact, the Minister told us that she herself was a cross-border flow at one stage in her life.

The Secretary of State should get consistent advice on a hospital from one source, which should not be confused by advice coming from separate sources and, in particular, against different standards. The Assembly has decided that it will set its own standards; we do not know how they are going to be different from English standards, but they may be different. The Secretary of State has fundamental responsibility for the English hospitals, and there cannot be a lot of confusing advice about different standards and different patients, who will inevitably be at the margin of the English hospitals.

The Government have not got the measures right. In practice, on the ground, those measures will cause tremendous confusion. If the Assembly says that hospital X in England is somehow failing Welsh patients, what is the Secretary of State to do, other than to try to get an in-the-round assessment via CHAI? That is why the advice should go via CHAI in the first place.

I hope that the Government have another opportunity to rethink their Welsh interface issues before we get to Report stage, because they are really in a dreadful mess. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 333 not moved.]

Clause 69 agreed to.

Clause 70 v[Right of entry]:

[Amendment No. 334 not moved.]

Clause 70 agreed to.

Clause 71 [Right of entry: supplementary]:

[Amendment No. 335 not moved.]

Clause 71 agreed to.

Clause 72 agreed to.

Clause 73 [Power to require explanation]:

Lord Warner moved Amendment No. 335A:

Page 30, line 16, leave out "prescribed" and insert "specified by the Assembly"

On Question, amendment agreed to.

Clause 73, as amended, agreed to.

[Amendment No. 336 not moved.]

Clause 74 [Introductory]:

Baroness Noakes moved Amendment No. 337:

Page 30, line 32, leave out "and their value for money"

The noble Baroness said: In moving Amendment No. 337, I wish to speak also to Amendments Nos. 338 and 375.

Amendment No. 337 is a technical probing amendment. It seeks to leave out the words, and their value for money from paragraph (d) of Clause 74(2), which sets out the matters with which CSCI should be concerned in particular.

I had always understood that in the public sector value for money was regarded as synonymous with economy, efficiency and effectiveness—the 3Es. Those are the words in statute that go with the value for money functions of the National Audit Office and the Audit Commission. I am not aware of any other source of wisdom on value for money. However, paragraph (b) of Clause 74(2) refers to the effectiveness of services; and paragraph (d) refers to economy and efficiency of their provision but then goes on to refer to value for money, which seems to me tautologous. Will the Minister say what is added to Clause 74(2) by the words "value for money" as the components of value for money have already been specified?

The other two amendments in the group standing in my name and that of the noble Earl, Lord Howe— Amendments Nos. 338 and 375—add to Clauses 74 and 102 the need to safeguard and promote the rights and welfare of elderly people. We have already debated this point in connection with CHAI and I have little to add to that debate. If it is necessary to separate out a vulnerable group such as children, I believe that the case for excluding elderly people is even more important for CSCI than for CHAI given the services that local authorities must provide. I say immediately to the noble Baroness, Lady Howarth of Breckland, that children's needs are undoubtedly important. However, the problem with mentioning children is that the exclusion of other groups may create confusion as regards their relative importance. That cannot be right. I beg to move.

Baroness Barker

I wish to speak to Amendments Nos. 338A and 376 in this group. No doubt I shall achieve as much success as I have done on every other occasion when I have mentioned these two issues but none the less I shall carry on undaunted.

Along with the three Es and value for money that the noble Baroness, Lady Noakes, discussed it is important that we keep returning to the principle of equity and access to services. Until such time as that is on the face of the Bill I believe that there will be the potential for huge distortions in the provision of services.

Amendment No. 376 is concerned with the inclusion of vulnerable adults. One of social services' most important functions is the delivery of services to vulnerable adults. The definition of "vulnerable adults" is well set out in documents such as No Secrets. Like the noble Baroness, Lady Noakes, I was willing to accept the arguments put forward by the noble Baroness, Lady Howarth of Breckland, about children being overlooked in hospital. However, I am afraid that I do not buy that argument in respect of social services where older people and vulnerable adults are in some cases numerically the largest recipients of services. But, interestingly, they will not always be so. For example, in a number of London boroughs the emphasis is being put very much on children's services because the number of older people is declining. The noble Baroness will not be surprised to hear me say that older people and vulnerable adults have very complex needs. They are equally deserving of being mentioned on the face of the Bill.

But having said that, the noble Lord, Lord Warner, would still be well advised to adopt our amendments that set out duties of equality.

Baroness Howarth of Breckland

I must speak in this debate partly to put right any misunderstanding that I do not think that groups other than children need priority. I declare an interest as a member of the National Care Standards Commission. Children are in a minority as regards the services that they will receive through CSCI. We know from vast experience that if children do not have emphasis they lose out. These, too, are all vulnerable children. The adults being accommodated are not vulnerable adults. I do not believe that people who go into old people's homes, for example, are necessarily vulnerable. They may need accommodating, but many of them would speak out very strongly if they were described as vulnerable. Indeed, some of them have asked that that terminology should not be used. It is true of some groups with learning difficulties, who see themselves as needing accommodation, but not necessarily as in the vulnerable category.

Most children received into care—I am sure that the noble Earl, Lord Listowel, will say more about them later—are usually vulnerable, so it is terribly important that they be kept in the Bill. That should not in any way detract from the services for other groups, which are actually in a majority with most funding spent on them.

9 p.m.

Lord Warner

I admire the stamina of the noble Baroness, Lady Barker, but fortified by dinner I hope that I will also demonstrate stamina on some of the issues. I do not question the importance of the issues that Amendment No. 338A raises. I should point out, however, that the Local Government Act 2000 enables local authorities to do anything that promotes the economic, social or environmental well-being of their populations. However, we should be clear that CSCI is fundamentally an inspector of the quality of social care provision, rather than a regulator of quality of life as a whole. However, those services that it regulates will have a very important impact on an individual's life quality. I will not go all over the argument about equity, as we have set out our position. We do not believe that the amendment is justified.

We have already debated at some length the issues dealt with in Amendments Nos. 338, 375 and 376. I obviously sympathise with those concerned about the vulnerability of older people and certain other adults. The noble Baroness, Lady Howarth, put the case for children extremely well. As I tried to say in an earlier debate, vulnerability in relation to adults is often very much related to the particular circumstances in which a particular adult may find himself. That is extraordinarily difficult to define appropriately in primary legislation, if I may say so without being patronising to many of those groups. That does not diminish the argument that some are vulnerable in certain circumstances, which we are not making. CHAI and CSCI will have regard to their needs, as has been made clear by those organisations already. We do not think it necessary to prescribe all that in the Bill. Indeed, it would be difficult in relation to some of the adult groups about which we have talked.

Amendment No. 337 seeks to remove CSCI's general duty to inspect the value for money of local authority social services departments. That duty has two dimensions. First, it reflects the requirement in the Local Government Act 1999 for local authorities to produce best-value performance plans in relation to their functions, including their social services functions. Currently, under Section 6 of the 1999 Act, it is the duty of every local authority to produce a best-value performance plan. Section 7 of the 1999 Act requires that an external auditor audits each best-value performance plan.

The Audit Commission is responsible for auditing the best-value performance plans that cover a majority of a local authority's services. However, the Audit Commission has done so in the past by drawing on the expertise of the inspectorate for the relevant service, currently the Social Services Inspectorate, which is concerned with those parts of the plans that deal with social services. It is envisaged that in future that role will be taken over by CSCI.

The second dimension of the duty is that it will enable CSCI to continue the joint review function currently taken by the Social Services Inspectorate in conjunction with the Audit Commission. Joint reviews have provided the public with important information about how local councils allocate resources to social services, and whether they deliver value for money. The staff responsible for joint reviews, from both the Audit Commission and the Social Services Inspectorate, will transfer to CSCI. It is thus important that CSCI's duty to look at the value for money of social services is retained to allow that work to continue. That is why it would be inappropriate to accept this amendment.

Baroness Noakes

May I have clarification from the noble Lord over the point that I put to him in connection with Clause 74(2)? Paragraph (b) talks about effectiveness and paragraph (d) talks about economy and efficiency and then goes on to talk about value for money. I was not trying to eliminate value for money from this matter, I was saying that one already had value for money by the time one reached value for money—because one has effectiveness and economy and efficiency. 1 asked the Minister what those additional words added. I was not trying to say that CSCI should not look at value for money. Far from it. What are the Minister's views on that?

Lord Warner

I shall not repeat all the reasons that I have just given, but the essential point is that the Audit Commission has to carry out best value performance plans—auditing—under the Local Government Act 1999, and it looked in the past to the Social Services Inspectorate, in the future CSCI, to produce the expertise in carrying out the audit of that plan. Therefore, we are putting beyond doubt on the face of the Bill the point that CSCI has responsibility in that area. The noble Baroness may not accept our arguments, but that is the reason for the wording in the Bill.

Baroness Noakes

I thank the Minister; but no, the noble Baroness does not accept that value for money has to be spelt out twice within a couple of lines of the legislation. I hope that the Minister or his officials will look at that issue again, because the answer cannot be to do with liaising with the Audit Commission or about best value performance plans. If the wording has any meaning it is something that has not been to date teased out. That is one aspect of my amendments. The other relates to children.

If we return to the wording of, for example, Clause 74. CSCI "shall be concerned in particular with": the need to safeguard and promote the rights and welfare of children". It is not just a question of dealing with the children who are in care. A much broader function is specified for CSCI. I was trying to add "and elderly people", the noble Baroness, Lady Barker, was trying to add "and vulnerable people", into this much wider concept of simply looking after the very vulnerable, but also promoting and safeguarding their rights. It is a very broad sense here. That is why it is difficult to see why groups other than children have been ignored. We have been through this argument once already in Committee in connection with CHAI. We have the argument again over CSCI.

I feel that the matter has not been satisfactorily bottomed out, and we shall need to return to it again, because at the moment the functions of CHAI and CSCI are being distorted by their emphasis on one very important group, but only one group among the many who ought to have some focus. I shall not press the matter further today. I beg leave to withdraw.

Amendment, by leave, withdrawn.

[Amendments Nos. 338 to 338A not moved.]

Clause 74 agreed to.

Clause 75 [Information and advice]:

[Amendment No. 339 not moved.]

Clause 75 agreed to.

Clause 76 [Review of studies and research]:

Earl Howe moved Amendment No. 340:

Page 31, line 17, at end insert— "( ) The CSCI may conduct or commission such research as it deems necessary to ensure that the future development of care services is based on independent knowledge and expertise."

The noble Earl said: Clause 76 permits CSCI to conduct reviews of research undertaken by other people in relation to local authority social services. I have no quarrel with this power, but it is unclear to me why CSCI is not being given a power to conduct or commission research directly to enable it to carry out its work in a more informed way. As the clause reads, CSCI will have to sit back and wait hopefully for others to produce interesting information that is relevant to its remit. That does not seem logical or sensible. I hope that the Minister will look constructively on this suggestion. I beg to move.

Baroness Barker

I rise to speak to Amendment No. 350, which would enable CSCI to produce reports concerning the implementation of Clause 14 of the Care Standards Act relating to registration. This is a probing amendment questioning whether CSCI will have the power to examine the impact of government regulations on home care. The disappearance of care homes has been well documented in debates in your Lordships' House. The passage of legislation through Parliament can have a direct effect on the provision of services at local level. Therefore, we want to be able to see CSCI having a free hand to commission and produce reports on the matter.

Given the Minister's response to a similar amendment, no doubt the Government will not be enamoured by the proposal. Nevertheless, it is an important element in taking a strategic view of the whole of social care within the country—something which CSCI should be able to do and have the freedom to do.

Lord Turnberg

Having spent most of my life engaged in research, or encouraging it and the knowledge gained from it to underpin medical care, I am all for the idea that CSCI should base its ideas on research. Research is certainly needed in this area. However, I am not clear on whether CSCI will be in a good position to be able to do so.

I hope that this short debate will focus the attention of the Government on the need for research of which CSCI can take advantage and in which it can take an interest. I am not sure what the mechanism might be, but I do not believe that CSCI will be set up to undertake that role.

Baroness Howarth of Breckland

I believe that CSCI will have some of the best sets of data in the world, not only in Europe, because it will have full data on all the establishments throughout the country year on year. From that it will be able to deduce information on the way we are inspecting, what that inspection shows, and how the service can be improved. That will not exist for some years, but it will form the basis of good research in the long term.

Lord Warner

I am grateful for the intervention of the noble Baroness, Lady Howarth. Given her background, she indicates that a great deal of material will in time come forward through CSCI. I am also grateful for the gentle question from my noble friend Lord Turnberg. It is unnecessary to allow CSCI to conduct or commission research to develop and inform its own inspection methodologies because CSCI is already able to do that under Schedule 7, paragraph 2. That provision enables CSCI to, do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions". It may be that the amendment is trying to take us down a road where CSCI's functions would be extended into the realm of best practice. If research were for that purpose, that would be inappropriate. The development of best practice is the proper role of the Social Care Institute for Excellence, as provided for in the Government's paper, Quality in Social Care: The National Institutional Framework, which was published in 2001. For those reasons, we believe that Amendment No. 340 is not appropriate.

The noble Baroness, Lady Barker, will be reassured by my consistency of approach in responding to Amendment No. 350, the practical effect of which would be to extend the functions and duplicate powers that CSCI already has. I suggest that it might also divert the inspectorate from its core task of monitoring the quality of both local authority social services and services regulated under the Care Standards Act 2000.

In my view, the amendment is unnecessary for a number of reasons. Under Clause 102, CSCI has a duty to keep the Secretary of State informed about the availability and quality of registered social care services and any other matter connected with the provision of such services under the Care Standards Act. If it was considered that the manner of regulation of the services was having an adverse effect on those services, it would report that to the Secretary of State.

As part of that duty, CSCI must report what it has found in the course of exercising its functions in the annual report to Parliament and the Secretary of State, which it is required to produce under Clause 127 of the Bill. I do not believe that the inspectorate—the noble Baroness may be unnecessarily pessimistic here— would ignore any evidence that its activity was having a detrimental effect on the quality, supply and cost of regulated services under the Care Standards Act. Indeed, CSCI would be in breach of its duty to keep the Secretary of State informed if it did not report such matters.

In view of that, it would be wrong to give CSCI a specific function of looking at the impact of regulation on regulated services. As I said, it is under a duty to do that in any event. Therefore, I do not believe that the amendment is appropriate.

9.15 p.m.

Earl Howe

I am grateful to the Minister for pointing out that Schedule 7 permits CSCI to carry out research. The noble Baroness, Lady Howarth, is absolutely right: looking several years down the track, it will be in a prime position to do that kind of work. With that reassurance from the Minister, I believe there is little more that I need to say. However, because I very much respect the noble Lord, Lord Turnberg, and his views, at some point I should be glad of a conversation with him about why he has doubts on this matter. But, for now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 agreed to.

Clause 77 [Annual reviews]:

[Amendments Nos. 341 to 344 not moved.]

Clause 77 agreed to.

Clause 78 [Other reviews and investigations]:

[Amendments Nos. 345 and 346 not moved.]

Clause 78 agreed to.

Clause 79 [Failings]:

[Amendments Nos. 347 and 348 not moved.]

Clause 79 agreed to.

[Amendment No. 349 not moved.]

Clause 80 [Studies as to economy, efficiency etc]:

[Amendment No. 350 not moved.]

Clause 80 agreed to.

Clause 81 [Joint working with Audit Commission]:

Baroness Noakes moved Amendment No. 351:

Page 34, line 10. leave out subsections (3) and (4).

The noble Baroness said: Amendment No. 351 would delete subsections (3) and (4) of Clause 81, which concern the interface between CSCI and the Audit Commission.

Clause 81 starts by being entirely sensible. Subsection (1) states that the Audit Commission and CSCI may exercise their functions jointly. Subsection (2) states that they must co-operate with one another. But the clause goes downhill from there with the appearance of the usual suspect—the Secretary of State.

Subsection (3) seems mild enough and says that the Secretary of State may give guidance to CSCI and the Audit Commission about which should undertake studies. But the sting is in the tail of subsection (4), which states that CSCI and the Audit Commission must take the guidance into account—that is, it is not guidance but a direction. If one compares Clause 81 with Clause 57 it is apparent that a quite different approach is taken to CHAI. There CHAI is put in the lead and it is left to CHAI to agree with the Audit Commission if it wants the Audit Commission to help.

Will the Minister explain why a different approach has been taken as to the allocation of functions between CHAI and the Audit Commission on the one hand and CSCI and the Audit Commission on the other? Will he further explain why the Secretary of State has to intervene at all? Why cannot the overlap of functions be left to the good sense of the Audit Commission and CSCI and their duty to co-operate? Does the Minister have any reason to believe that co-operation between the two will not work out in practice? If he does I am sure that noble Lords will be interested to hear about that. I hope that this is at least one area in which the Secretary of State can be persuaded to give up one of his routes of intervention. I beg to move.

Baroness Barker

I shall speak to Amendments Nos. 352 and 353. They are probing amendments to tease out the relationship between CSCI, the Audit Commission and the Comptroller and Auditor-General. Amendment No. 352 deals with areas where there should be joint reviews or studies, the requirement to publish information and the fact that CSCI is to produce information to those bodies. Amendment No. 353 requires that the Comptroller and Auditor-General shall report to both Houses on those matters.

The amendments are trying to tease out some kind of coherence between the different regulatory bodies that will be brought together in the hope that we get streamlining rather than a profusion of reports and a duplication of work. It is quite clear that all those different bodies have a role to play in determining the value and effectiveness of social care services. It is not clear how all of them will work together in the perfect harmony that the Minister has assured us the Secretary of State will bring to these matters. I would be pleased to know what he thinks of that point.

Lord Warner

We have already gone over the ground covered by Amendment No. 351, that CSCI and the Audit Commission have a different relationship with local government from that which CHAI has with the NHS and healthcare. The Audit Commission's role in value for money studies is removed in relation to the NHS. In view of time constraints 1 shall not repeat all the arguments that I made on the previous amendment.

Under normal circumstances we would anticipate that CSCI and the Audit Commission will agree a programme of studies and determine the leadership for each individual project. However, it is possible that there may be circumstances when they are unable to reach such an agreement. Following that, it may be the case that CSCI and the Audit Commission will decide to engage in separate but ultimately very similar studies looking at the same aspects of local authority services. Such duplication would be an unnecessary waste of the resources of the two commissions and, perhaps more significantly, place an unnecessary burden on service providers. Thus in our view it is important that the Secretary of State has the power to prevent such duplication through intervening when there are disagreements between the two commissions. It would be a brave person who, looking into the future, would suggest that there will never be any disagreement between commissions, although it is unlikely.

Issuing guidance as to how they should work together is important. That power to issue guidance is contained in Clause 81 (3) and (4) and it is that power that the proposed amendment seeks to remove. I am sorry that the noble Baroness thinks that the clause goes downhill after subsections (1) and (2). We think it retains equilibrium and we do not think that the amendment is appropriate.

We do not think that Amendment No. 352 is necessary because CSCI and the Audit Commission are each required to publish a report of any studies that they carry out under Sections 33 and 34 of the Audit Commission Act 1998, and Clause 80 of the Bill respectively. So it follows that they would have to publish a report—separately or jointly—of any studies which they carry out together in exercising these powers. The NAO already has a right of access to information held by CSCI should it need it for the purpose of auditing CSCI.

On Amendment No. 353, I do not believe that giving the NAO a specific power to report to Parliament on the work of CHAI and CSCI under Part 2 of the Bill is necessary or appropriate. The NAO can already report to Parliament in relation to CHAI because of the Comptroller and Auditor-General's powers under the National Audit Act 1983. The Comptroller and Auditor-General is the auditor of the NHS summarised accounts, which cover all NHS spending and for which there is no equivalent on the local authority side. In undertaking that audit, the Comptroller and Auditor-General will of course need to know of anything identified by CHAI in its work, in order to consider whether it should affect the response given in his audit. That is the principal reason why CHAI is required to provide copies of reports.

However, in addition, CHAI will be taking over responsibility for all national and local studies of NHS provision that are currently carried out by the Audit Commission. Thus, it will take on the responsibility to provide, at the Comptroller and Auditor-General's request, any material relevant to reviews or investigations it undertakes. That is made clear in Clause 60.

On local authority services, the Audit Commission will retain responsibility for value-for-money studies in relation to local authorities and will also retain the responsibility for providing information to the Comptroller and Auditor-General. CSCI will carry out value-for-money studies about local authorities under Clause 80 of the Bill and can be required to provide copies of reports produced under this section to the Comptroller and Auditor-General. Furthermore, the Comptroller and Auditor-General already has powers under the National Audit Act 1983 to report to Parliament.

I hope this explanation, which I cantered through, will reassure the noble Baroness that the amendment is unnecessary.

Baroness Noakes

I thank the Minister for that comprehensive reply. I shall concentrate on my own amendment which deals with the interface between CSCI and the Audit Commission. I also thank the noble Lord for his explanation of the difference between the treatment of CHAI and of CSCI in the interrelationship with the Audit Commission. We come back again to the Secretary of State not trusting the bodies, with which he is associated, and which were created to get on and do a good job. This is a recurring theme of the Bill. The body was set up so that the Audit Commission and CSCI can work jointly; it was set that they have to co-operate but then the Secretary of State has to come in and tell them how to do it.

We do not think this power is anything like necessary. To say that it demonstrates perhaps a lack of trust is putting the matter too lightly. It is a real unwillingness to let go of the levers of power and control. I can quite understand why the Secretary of State might want to have a lever over the Audit Commission because it can be jolly inconvenient at times. The Secretary of State and people in the health department have found that out, because it is fearless and independent.

We should think very carefully about whether or not we give the Secretary of State power in effect to call the Audit Commission off a particular area. This is getting into extremely difficult and dangerous territory and one that may well compromise considerably the independence of the Audit Commission to the detriment of accountability. I shall read Hansard and consider carefully what the Minister has said. I should say that this matter is far from closed. 1 beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 352 and 353 not moved]

Clause 81 agreed to.

Clause 82 agreed to.

Clause 83 [Criteria]:

Lord Warner moved Amendment No. 354A:

Page 34, line 23, after "77)" insert— "( ) to consult any person specified in the regulations before publishing any such statement:"

On Question, amendment agreed to.

[Amendments Nos. 355 and 356 not moved.]

Clause 83, as amended, agreed to.

[Amendment No. 357 not moved.]

Clause 84 [Fees]:

Lord Warner moved Amendment No. 357A:

Page 34, line 29, after "authority" insert "or to an English local authority social service provided by. or pursuant to arrangements made by, that authority"

On Question, amendment agreed to.

[Amendment No. 358 not moved.]

On Question, Whether Clause 84, as amended, shall stand part of the Bill?

Lord Clement-Jones

This is a useful opportunity for the Minister to assure us about the fees that may be charged by CSCI under the clause. The Social Services Inspectorate does not currently charge local authorities for the provision of inspection services, but the National Care Standards Commission does. The Bill provides charging powers for CSCI to cover the former SSI and NCSC functions. Needless to say, local authorities are concerned that CSCI will be charging them for standard social services inspections, which would be a change to former practice. What reassurances can the Minister give us?

Lord Warner

As the noble Lord said, the clause provides a power for CSCI to determine and levy fees on local authorities when carrying out any review or inspection of local authority social services. We believe that it is important that CSCI as a body is independent of the department. That is common ground across the Committee. Part of that is its ability to raise revenue through fees. The Secretary of State will have no involvement in the setting of those fees. That will allow for a clear and more direct relationship between the inspecting body and the local authority.

There have been concerns that an independent body will be able to levy high fees on local authorities, but I believe those concerns are unfounded. In the first instance, the commission will be required to consult appropriate persons before setting the scale of fees. We consider that such appropriate persons would include bodies such as the Local Government Association and the Association of Directors of Social Services, which would have a clear interest in the nature of any charge levied on local authorities, as well as the local authorities themselves. We also expect that such a consultation process would take place before the publication of any revised schedule of fees.

Subsection (6) also provides a power that would enable the Secretary of State to make regulations that would allow an independent person or panel to review the charge that CSCI has set, if it has set an unreasonable charge in individual cases.

We want CSCI to be able to demonstrate its independence and the value of its work by charging reasonable fees where appropriate. There are safeguards in the Bill and the provisions in the clause will enable a proper balance to be struck.

Lord Clement-Jones

I thank the Minister for that helpful response. It is not a cast iron situation, but subsection (6) gives some redress to a local authority faced with unreasonable fees. As the Minister says, we hope that from the outset the consultation process will ensure the right level of fees.

Clause 84, as amended, agreed to.

Clauses 85 and 86 agreed to.

Clause 87 [Right of entry: supplementary]:

9.30 p.m.

Baroness Howarth of Breckland moved Amendment No. 358ZA:

Page 36, line 8, at end insert— '"( ) interview in private, or solicit written or verbal expressions of opinion from, any child or group of children who consent to be interviewed or to express their views, as the case may be;"

The noble Baroness said: I shall speak also to Amendment No. 358ZA. I wish to ensure that inspectors can freely seek children's views when inspecting welfare in services for children. That may affect vulnerable groups other than children, such as other adults in care.

The Children's Rights Director, Roger Morgan, to whom Parliament has given the specific job of continually ensuring that the commission properly listens to children in all that it does, has recently asked both children and inspectors what they consider to be key elements of effective inspection. Children said that inspectors must listen to children. I agree with them; I am sure that everyone does. Inspectors confirmed that listening to children is an efficient source of evidence for judging whether they are safe and properly looked after. I agree with that, too, having been involved in situations where children were not listened to. The Children's Rights Director will now be carrying that forward for us into the future integrated inspection framework envisaged in the Green Paper. I hope that the Children's Rights Director will continue regardless of any future commissioner discussions, although I recognise that the Minister might say that that is an argument for another time and another place.

I am concerned that there are two limitations in the Bill on how far inspectors can listen to children effectively. First, Clause 87 refers only to interviewing in private; yet other ways of asking children's views are needed on inspections, such as the use of surveys, group discussions, inviting children to consultation days and electronic means of seeking views. We need to be assured that inspectors can use all those ways, and more, and not be limited only to interviewing children in private. I do not read the very specific term "interview in private" as covering all those other ways of asking and listening to children.

The second limitation is that the Bill gives inspectors the power to interview, and therefore to seek views from, only children accommodated or cared for at premises to which inspectors have a legal right of entry. That is not good enough. Inspectors also need to be able to seek views, in reasonable and practicable ways, from, for example, foster children who live, or are cared for, in the homes of their foster carers, not in any premises to which inspectors have a right of entry.

As it stands, having a power only to seek views from children who live where there is a power of entry means that inspectors can only legally ask foster children for their views and experience of fostering in a fostering service that they are inspecting, and if they ask permission of someone else first. That alerts anyone about whom the children may want to talk. That cannot be right. Inspectors have their own power to seek the views of children when inspecting other services, such as children's homes, schools and colleges, subject only to the consent of the children themselves. They need the same power to talk to foster children.

As the Minister will understand, my probing amendments are intended to ensure that inspectors can always ask children for their views and experiences, when inspecting their safety and welfare, in more ways than private interviews, and regardless of whether the children live or are cared for at premises being inspected. That is needed to safeguard children.

I am not asking for powers that inspectors do not already have in relation to other children's services. Under the inspection of schools and colleges regulations, under the Children Act 1989, inspectors have already been given the power to ask children for their views in more ways than private interviews.

I am not asking for inspectors to have any right of entry to private houses, such as foster carers' homes. That would not be appropriate and would go beyond the powers that they already have in other settings. But, together with the Children's Rights Director, 1 have talked to groups of children from foster homes about their experiences, with great and vivid backgrounds. My amendment would give inspectors the power to seek children's views by those and other reasonable means. I would be pleased to hear the Minister's view. I beg to move.

Lord Warner

I appreciate the concerns that lie behind the amendment. We are aware that concerns have been expressed that the powers in the Bill are not sufficiently wide to enable CSCI to interview groups of children receiving local authority services or to elicit information from them, with consent, regardless of whether they are accommodated at premises to which there is statutory access. We consider that the concerns are misplaced.

Under Clause 87( 1 )(c), a person authorised by CSCI to enter and inspect premises is already able to interview in private any person accommodated or cared for at those premises who consents to be interviewed. We are advised that there is no reason why this power would not allow an employee of CSCI to interview any child or group of children in private already. The reference to conducting an interview in private was included in the Bill to make it clear that the commission could interview in private if it and the person being interviewed thought it appropriate. There is no reason why it must interview in private.

Solicitors advise us that verbal or written expressions of opinion can already be solicited from children who consent to be interviewed under the provisions of the Bill. CSCI has powers at Clause 88(1) that allow it to require any person to provide it with information that is necessary or expedient for the purposes of its functions under Chapter 5. That would enable any person authorised by CSCI to obtain the details from a local authority of any children from whom they believed it would be necessary or expedient to elicit information, for the purposes of assessing how well a local authority was carrying out its children's social services functions.

We are advised that there is no need for an explicit power in the Bill to enable CSCI to use this information to contact children to elicit their views about the services they are receiving. They can already do that to the extent that they consider it necessary to judge the quality of services. Obviously, what form the contact will take—a letter or telephone call, for example—will depend on CSCI's judgment of what is appropriate in individual cases.

Amendment No. 376A is also unnecessary. The Bill will already enable employees of CSCI to elicit views or information from children receiving inspected services without the permission of another party, such as a local authority. That is the case regardless of whether the child concerned is accommodated in a premises to which the inspectorate has a statutory right of access, such as a registered children's home, or whether they are accommodated in a private home under fostering arrangements.

The specific issue of whether the children's rights director would be able independently to contact children in foster care, including private fostering, and pre-adoption arrangements had been raised with the department by the NCSC. I can confirm that the provisions already in the Bill will allow the CRD to collect information about where such children are living and to contact them to seek their views, when he judges that this is necessary in individual cases to enable him to assess the quality of services provided. Since the Bill already allows for such things, the amendment is unnecessary.

I hope that that reassures the noble Baroness and that she will withdraw the amendment.

Baroness Howarth of Breckland

I am grateful to the Minister for putting those assurances on record, for reasons that he will appreciate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 87 agreed to.

Clause 88 [Power to require information etc]:

[Amendments Nos. 358ZB and 358ZC not moved.]

Clause 88 agreed to.

Clause 89 [Power to require explanation]:

Lord Warner moved Amendment No. 358A:

Page 37. line 19, leave out "prescribed" and insert "specified by the CSCI"

On Question, amendment agreed to.

[Amendment No. 359 not moved.]

Clause 89, as amended, agreed to.

Clauses 90 and 91 agreed to.

Clause 92 [Reviews and investigations]:

[Amendments Nos. 360 and 361 not moved.]

Clause 92 agreed to.

Clauses 93 to 98 agreed to.

Clause 99 [Power to require explanation]:

Lord Warner moved Amendment No. 361 A:

Page 41. line 19, leave out "prescribed" and insert "specified by the Assembly"

On Question, amendment agreed to.

Clause 99, as amended, agreed to.

Clause 100 [Transfer of functions to CHAI and CSCI]:

Baroness Barker moved Amendment No. 362:

Page 41, line 29, at end insert— "( ) In the Care Standards Act 2000 (c. 14), after section 23(2) (national minimum standards) insert— "( ) In reviewing standards the appropriate Minister must ensure that lower standards are not applied to Parts 2 and 3 services received predominately or exclusively by people at or above state pensionable age.""

The noble Baroness said: In moving Amendment No. 362 I shall speak also to Amendments Nos. 363, 364,365, 367 and 368, which are grouped with it. These amendments deal with the transfer of functions to CHAI and CSCI. The latter two are designed to tease out exactly where responsibility for certain inspection functions will lie.

Amendment No. 362 deals with a subject close to the heart of many noble Lords, because we debated it at considerable length during the passage of the Care Standards Act—national minimum standards for residential and care homes. Earlier this year the Government rowed back from the exacting standards for building regulations which they set themselves in that Act. However, those standards applied only to services for adults and not to those for older people. Amendment No. 362 is designed to pose the following question. What happens when an adult who has been a recipient of care services in a residential setting reaches the age at which they are deemed to become an older person—usually considered to be pension age— as regards social care? Will they be moved? On their birthday will they be subjected to a lesser minimum standard? Will they be transferred by local authorities to different premises, and will CSCI report and investigate such matters?

Amendments Nos. 363 and 364 address the issue of non-NHS healthcare provided by an NHS or non-NHS body under the National Health Service Reform and Health Care Professions Act 2002. These amendments are designed to ask the following question. Where healthcare services are provided principally to people in residential care settings and they are provided by private providers, will CHAI or CSCI have the duty to inspect? A number of residential and nursing homes rely on private services such as private dentistry. Which of the two bodies will have the duty to inspect and regulate those?

The remaining amendments, Amendments Nos. 365, 367 and 368, deal with excepted treatments.

It is well known that one of the biggest challenges facing healthcare is the management of long-term and chronic conditions. These amendments question which body will have regulatory responsibility to look after the interests of people who have long-term conditions, which are not acute conditions, but are continuing conditions.

The amendments were clearly tabled some time ago. They have an added importance because the last day on which the Committee met, the Minister made his somewhat jaw-dropping assertion that the NHS retained little responsibility for long-term rehabilitation. To be clear and fair to the Minister, he said that they were matters which are now largely carried out in the community as a function of social services. Therefore, it is apt and right that we should ask the questions posed in the amendments. I beg to move.

Earl Howe

I rise briefly to support Amendments Nos. 365, 367 and 368, to which I have added my name. It may be that the expression "long term conditions" is not quite appropriate in the context of this clause, but the point made by the noble Baroness is, nevertheless, extremely well made. The difficulty with alcohol addiction centres, for example, and clinics which look after patients with acquired brain injuries, is that they fall across the definitional divide, as between mainstream healthcare and mainstream social care.

Often the reason why a particular facility is inspected by the NCSC rather than the Commission for Health Improvement is an accident of history. What we need to bear in mind is the need for institutions to be inspected by those who have a proper understanding of the work being carried out in them. Brain injury units—I visited one recently—have much more in common with acute hospitals than with residential care homes. Substance abuse clinics, equally, have precious little to do with social care and a great deal to do with specialised and intensive treatment regimes. I suggest that both should be under the wing of new CHAI.

Regulation, when it happens, needs to be appropriate. Like the noble Baroness, I am worried that arbitrary and inconsistent decisions may be taken over the regulation of these centres, which may not make sense or be appropriate to the activities in question.

Moving on briefly to my Amendment No. 370, this amendment has a very simple purpose which is to incorporate the Government's stated intention to allow CHAI to regulate private dentistry. The Bill is an obvious opportunity to meet that commitment. Earlier this year the OFT published its report into the private dentistry market, which highlighted a number of key concerns. Chief of these were that consumers are not able to access information to enable them to make informed choices; consumer complaint procedures are inadequate; and some regulation of dentistry may be unnecessary.

On the consumer front, work clearly needs to be done by the Government and the GDC to address standards of care in dental surgeries, as well as consumer-related issues, such as clear pricing, itemised accounts, whether this or that treatment is private or on the NHS, and what kinds of treatment are available. It makes sense for new CHAI to take an active part in the discussions and to be the body responsible for monitoring the standards when they are in place.

As regards complaints, there must obviously be an accessible procedure available for patients. Once again, CHAI and the GDC need to be in close communication about how such a system is to work. I hope that the Minister will be receptive to the amendment. If he cannot accept it as it stands, I hope that he will at least wish to take the proposal away to look at it constructively.

Lord Colwyn

Perhaps I may be allowed a few seconds intervention. I have been sitting here since about three o'clock today. This is the first time that we have heard the words "dentists" or "dental services", and I am on my feet. I, too, welcome the amendment and support all that my noble friend said. It is important that CHAI—or having heard the noble Baroness, Lady Barker, perhaps it may be CSCI— should monitor availability, quality and access to dentistry and independent dental services. As the remit of the two bodies increases, I should like confirmation from the Minister that they will not include dealing with complaints and complaint handling.

As my noble friend Lord Howe has just mentioned, the OFT report has made quite a considerable impact on the dental profession. Indeed, as soon as the legislation is in place, the General Dental Council is planning to produce regulations to monitor the independent sector. Perhaps Clause 101 will negate the need for that, which would be wonderful so far as I am concerned because, year on year, an ever-increasing amount in respect of retention fee may not now be necessary. I look forward to hearing what the Minister has to say.

10 p.m.

Lord Warner

I feel a little like Marcus Trescothick on reaching his hundredth; I now take guard for the next hundred. In order to address the long wait mentioned by the noble Lord, Lord Colwyn, if the Committee will bear with me, I shall deal first with Amendment No. 370. We certainly support wholeheartedly the intentions behind this amendment. In June, in the Government's response to the OFT report, The Private Dentistry Market in the UK, we made a commitment to include private dentistry within CHAI's remit. The OFT concluded that the public needed better protection from a small minority of dentists who were providing poor-quality services and, often, being less than transparent about their charges for those services.

However, we are planning to introduce the necessary provisions by means of secondary legislation. Section 2(7) of the Care Standards Act 2000 contains a list of services within the remit of the National Care Standards Commission. Included in this list at Section 2(7)(b) are, dental services under general anaesthesia". Accordingly, the National Care Standards Commission is already empowered to regulate dental practices providing general anaesthetics. As a result of this Bill, the commission's responsibilities in relation to private health and dental care will become CHAI's.

Section 2(8)(c) provides for the definitions of the listed services at Section 2(7) to be modified by regulation. We propose to modify the definition at Section 2(7)(b) to read, dental services under local and general anaesthetic", which, since local anaesthetics are an integral part of dental practice, will have the effect of bringing all private dental practices within the remit of CSCI and CHAI.

The advantage of this legislative route is that we are required to consult interested parties about changes in CHAI's remit. Shortly we will work up a draft together with greater detail on how the existing regulatory framework might be adapted to apply to wider dental practice and circulate it to the bodies concerned with dentistry and consumer interests. We would aim to have the regulations in place during 2004.

I hope that, in the light of those reassurances to the noble Lord, Lord Colwyn, the noble Earl will feel able to withdraw his amendment.

Turning back to Amendment No. 362, it is of course desirable that lower standards should not be applied to services for older people. It is already the case that the national minimum standards must be applied to services under Part 2 of the Care Standards Act regardless of the age of the individual receiving those services. The consultation process prior to the introduction of services ensures that the standards we develop do not have a disproportionate effect on any set of service users.

The amendment also appears to assume that discrimination against older people takes place in the application of national minimum standards. This is not the case. Those standards are based on the type of establishment or agency in or from which an individual is receiving services, and not the predominant age of the person receiving those services.

Section 24(3) of the Care Standards Act provides that the national minimum standards must be consulted before they may be introduced. This allows for the views of service user groups to be taken on board and acts as an extra safeguard to ensure that national minimum standards do not unintentionally discriminate against any one set of users. We do not think, therefore, that this amendment is necessary.

I turn now to Amendments Nos. 363 to 368, which concern the division of responsibilities between CHAI and CSCI. We have been over this ground at length, although the Government do recognise that it is not always easy to distinguish between where the provision of healthcare ends and the provision of social care begins for the purposes of regulation. This matter was considered in depth when the White Paper, Modernising Social Services, was published in 1998. At the time, Ministers decided, on the basis of the subsequent consultation and in the best interests of service users, that all provision that did not provide acute services led by medical staff, but provided substantial levels of personal care would in future be regulated as care homes. This is the provision about which the Independent Healthcare Association, among others, has been concerned.

When developing the Bill, the Secretary of State decided that the future division of the National Care Standards Commission's responsibilities should be based on the current categories of establishments registered under the Care Standards Act to avoid confusion and disruption. This meant that services that would currently be registered as private and voluntary healthcare services would be transferred to CHAI. We believe that care homes providing nursing should remain registered by CSCI rather than giving regulatory responsibility to CHAI because of the very high levels of personal care provided in such services.

It is the Government's view that services providing long-term care and treatment for drug and alcohol abuse are not providing acute medical intervention, as do hospitals, for people with these conditions but are providing secondary care to aid recovery or to manage on-going secondary symptoms. These facilities may have substantial input by nurses and allied health professionals, but have limited input from doctors.

Nevertheless, these services are also providing substantial personal care for service users, including some of the most intimate forms of care, and, in common with other care homes providing nursing and personal care, we believe that these services should properly continue to be regulated by CSCI so that their welfare needs can be most appropriately met. CSCI will, of course, be able to seek assistance from CHAI where healthcare professional expertise is needed.

The amendments tabled have the intended effect of transferring the regulation not only of those services highlighted by some—for example, those supporting recovery from brain injury or recovery from drug or alcohol abuse—but of any long-term condition. So this would mean that elderly people with Alzheimer's who received any kind of nursing or other health service in their care home would be regulated by CHAI. The personal care and welfare needs of these service users, which most certainly are equal to or greater than any health need, and are probably their major need, would not be appropriately covered by the regulatory framework under the 2000 Act under these amendments. I was not saying earlier that rehabilitation was not an important part of healthcare; I was saying that in many of the cases we have discussed in regard to this issue personal care needs are the dominant factor.

Under Clause 118, the Bill provides for joint working between CSCI and CHAI. The intention here is that the commissions should be able to plan to work together to review the quality of joint services between the NHS and local authorities and share expertise where services regulated by either commission have substantial health or social care aspects. For the reasons I have given, we do not believe that the amendments are needed.

The effect of Amendment No. 369 would be to remove CHAI's duty to keep the Secretary of State informed about the general provision, availability and quality of independent healthcare provision. CHAI's general duty of keeping the public informed about the provision of independent healthcare is well established.

It is entirely proper that the Bill clearly states that CHAI, in addition to its other duties, has a more general duty to keep the Secretary of State informed about the general provision, availability and quality of independent healthcare provision. It is a significant role of CHAI, using all the information it will have to hand about the performance of independent healthcare providers, to advise the Secretary of State on issues about the availability and quality of care— care which, in many cases, is used also by NHS patients.

CHAI has a prominent: role to play in the continued evolution of independent healthcare provision. The amendment, if carried, would significantly hinder the fulfilment of this role.

Baroness Barker

I thank the Minister for that reply. It confirms my on-going belief that we have no agreement whatever about the boundaries between healthcare and social care. We have not had agreement in all the Bills on which I have worked, so it does not come as a surprise now.

I do not believe that the situation is anywhere near as cut and dried as the Minister makes out. It is entirely possible that identical units doing identical work in different buildings and different institutions with different designations could be subjected to completely different regulation.

The Minister mentioned Alzheimer's disease services. It is entirely possible that people could find themselves in something designated a care home, receiving exactly the same treatment as they would in a nursing home, but the two homes would be subject to completely different regulation.

I believe that as long as this inconsistency exists, there will be a risk of duplication and of inappropriate regulation by the wrong body. I therefore do not share the Minister's confidence that all will be cut and dried. I have no option but to withdraw the amendment at this stage, but the concerns remain and they are very strong. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 363 to 365 not moved.]

[Amendment No. 366 had been withdrawn from the Marshalled List.]

[Amendments Nos. 367 and 368 not moved.]

Clause 100 agreed to.

Clause 101 [General functions of CHAI]:

[Amendments Nos. 369 and 370 not moved.]

Earl Howe moved Amendment No. 371:

Page 42, line 15, at end insert— "( ) The CHAI shall ensure that so far as it is practicable the standards and procedures applied to its responsibilities in relation to independent health services are the same as those applied to services provided by or for NHS bodies."

The noble Earl said: In moving Amendment No. 371, I shall speak also to Amendment No. 377.

It is decidedly welcome, as we have said on a number of occasions, that with the creation of CHAI and CSCI we shall now have a single regulator for the state and independent hospital sectors combined, and a single regulator for private and state-run care homes. But having a single regulator in each case is not, of course, enough. Both the private and state sectors have to be judged according to a uniform set of standards.

At the moment, independent sector hospitals work to minimum standards and published sets of regulations which, although having the merit of being transparent, are decidedly bureaucratic. NHS hospitals work to the principles of clinical governance, which are much less explicit. We are living in a time when partnership working between the two sectors is increasing. The concordat means that independent hospitals are treating more and more NHS patients. It is quite simply against those patients' interests for the standard of care that they are entitled to expect to differ according to which sort of hospital they are in. They need to know that there is a level playing field on which NHS and independent facilities are judged alike. Consultants also need to know that since, of course, many work in both sectors.

There ought to be a timetable for this. I am suggesting that the Government should publish such a timetable within a year of the Bill coming into force, with a goal of achieving convergence within five years from that point. That ought not to be seen as excessively ambitious.

It is not enough for this simply to be a vague aspiration. I should like to hear whether the Minister will take this concern on board. It would be most regrettable if CHAI were just to continue with a separate approach towards each sector. Perhaps one way of moving towards a convergence of standards would be for CHAI to address the regulation of the new diagnostic and treatment centres which are to be run by both NHS and independent providers. I beg to move.

Lord Clement-Jones

I shall speak to Amendment No. 377. We on these Benches welcome the creation of single regulators for both state and independent—or public and private—sectors. It never made any sense that independent hospitals and care homes should be regulated by different regulators from publicly run facilities, and we made no bones about that when the respective Bills were going through this House.

However, we need to go further, as the noble Earl, Lord Howe, has made clear. We are moving into the era of a mixed economy of providers of acute care in particular, but there still will not be consistency between public and private provision. While both sectors may have the same regulators, it appears that they will still continue to be judged by very different sets of standards. At a time when partnership working between the two sectors is increasing and when the independent or private hospitals are treating ever-more NHS patients, this cannot be justified. The noble Earl, Lord Howe, referred to diagnostic and treatment centres as one example; indeed, commissioning is increasingly taking place at large for elective surgery from the private sector and from the NHS.

Amendment No. 377 proposes a clear mechanism whereby the Government are required to publish a timetable to ensure that the private and public sectors are judged by the same standards. For the benefit of patients, there needs to be a common set of standards and a clear mechanism for achieving that.

Lord Hunt of Kings Heath

In speaking to the amendment, I remind noble Lords of my previous reference to the range of various interests that I have in the health service. In particular, I refer to my advisory role with Beechcroft Wansbroughs, which provides advice to both the NHS and private sector organisations.

I do not want to react unduly to the remarks made by the noble Lord, Lord Clement-Jones, and go back over old ground about the original decision to treat regulation of the independent sector differently from management of the NHS. A lot of water has flowed under the bridge. In this Bill, it is right to bring the regulation of both the independent sector and the NHS under the same umbrella inspectorate. However, I am persuaded that the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, are right about the need for a level playing field.

We are moving from a situation in which the NHS was seen as a service provider to one in which the NHS must be seen much more as a healthcare system. The role of government is to provide the money to ensure that national standards are set and that inspection takes place to make certain that standards are up to scratch. It follows that it matters less who provides those services. From the increase in the use of the independent sector by the NHS, and from the Government's own stated policy to encourage diversity of provision, it is clear that, in terms of the work of CHAI, there ought to be a level playing field between the NHS and the independent sector.

As the noble Earl, Lord Howe, intimated, at the moment CHAI inspects the NHS on clinical governance, whereas the NCSC inspected the independent healthcare sector against national minimum standards. As the new CHAI becomes established, I agree that it would be very good if the Minister could tell us at what stage CHAI will start to inspect both the independent sector and the NHS according to the same regime. Long-term, that must make sense. It is difficult to bring those two inspectorate regimes together in a short space of time, because that would have enormous consequences for the NHS and the independent sector. However, it would be very helpful to both sides to know when those standards will converge.

Lord Warner

The standards in the social care sector applied to the independent services and local authorities under the Care Standards Act 2000 are already consistent, so that the same quality standards apply to independent care home or children's home providers as apply to local authority providers. There is no substantial difference. The National Care Standards Commission regulates local authority providers and independent providers against the same criteria when determining whether standards are being met. That will remain the basis on which CSCI will take over the regulatory work to be transferred to it from the National Care Standards Commission under the Bill.

On the NHS and healthcare the issues are a little more complicated. We have already made a commitment to apply similar standards to both sets of providers over time. However, while it is likely that there will be a great deal of coherence between NHS standards and the current standards for independent healthcare, I remind noble Lords that the range of activities and services provided by the NHS is much greater than that supplied in the independent sector. Of course where the independent sector is providing a set of services under contract to a health authority, those will be consistent with standards applied to the NHS and will be inspected and regulated on that basis. The position is slightly different where the independent sector is not providing those services in effect directly to NHS patients as part of the NHS.

CHAI will ensure that independent care provision will continue to be provided at a level comparable to that achieved by similar organisations within the NHS. The role of CHAI is to provide an independent assessment against standards set by government for both the NHS and the independent sector. Such standards are not set in stone and we expect to review and revise them over time. CHAI, by the power in Clauses 53(2) and 101, which amends the Care Standards Act 2000, is empowered to advise the Secretary of State of any changes which it thinks should be made for the purpose of securing improvements in the quality of healthcare provided and in the relevant standards. This is an appropriate role for CHAI using all the information that it will have to hand about the performance of both NHS and independent healthcare providers. It will advise the Secretary of State where standards may need amendment or development.

It is not our intention that NHS care standards will totally subsume the national minimum standards for independent healthcare providers but we expect that over time a common set of standards covering both NHS and independent healthcare providers will be developed. CHAI has a proper role in this but we do not think that it is appropriate at this point to set a prescriptive timetable in the way in which the amendment suggests. We think that the work needs to be built up over time.

10.15 p.m.

Lord Clement-Jones

I grow more confused by the Minister's reply. I do not know whether it is due to the hour but I certainly did not understand all the language in that response. Indeed, I was not entirely clear even about the thrust of it. Is it the intention to develop a common set of standards? The Minister may not accept the timetable or the setting of" a clear timetable, but is it the Minister's intention that CHAI should develop common standards as between the independent healthcare sector dealing with private sector patients—I accept that two different kinds of patient go through the independent healthcare sector—and the standards which are applicable to NHS patients?

Lord Warner

I was trying to be cautious. We accept the need for convergence; we do not accept the need for convergence within a prescriptive timetable. I was saying that as services are provided by the independent sector under contract to the NHS, they will be assessed under the standards that apply to the NHS. They will have to meet those NHS standards that are set by the Secretary of State.

Lord Hunt of Kings Heath

I hope that my noble friend will give the matter further consideration before Report. Two issues arise from the matter. First, my understanding is that most independent hospitals provide some services to the NHS through contracts. If we are to take it that an independent hospital is providing services to those patients according to NHS standards, that would suggest that achieving convergence would not be a problem for many of those hospitals as they have already achieved convergence in relation to a proportion of their patients. Secondly, with the introduction of the choice policy and national tariffs, the issue of a level playing field surely relates as much to the independent sector as to the NHS. That is why it is important to give a date when convergence will be reached.

Lord Clement-Jones

I would like to make one further observation, at the risk of alienating the Committee at this time of night. From what the Minister has to say, theoretically over the next two or three years there could be two patients—one an NHS patient, another a private patient under an insurance policy or whatever—next to each other in the same ward or the same independent hospital with two different standards. That is a completely crazy situation, and not one envisaged by the merger or by the fact that the National Care Standards Commission is no longer dealing with acute healthcare, with everything going into CHAI.

Lord Warner

We are not denying that there is an issue. We are saying that we do not want to be prescriptive about the speed at which we can deal with the issue at the moment. I hear the concerns expressed by Members of the Committee, especially those from behind me, and I will take the matter away and consider whether we can do anything more to reassure them.

Earl Howe

The amendment is very simple and straightforward. It is not very ambitious in what it proposes. I am very grateful to the noble Lord, Lord Hunt, for his support, and I agreed wholeheartedly with what he said. It should not matter to the patient where he is treated, only that the treatment that he receives is of the same high standard in any equivalent setting. Comparability, which I think was the word used by the Minister, does not carry the same connotations to me as uniformity and consistency.

My amendment proposes a time-scale that can be described as prescriptive but, if no time-scale is set, we could be sitting here in 10 years' time with nothing substantively having changed. If it is true that diagnostic and treatment centres and services provided under contract to the NHS will be judged under an equivalent set of standards, as the noble Lord, Lord Hunt, said, that suggests that achieving convergence will not be as difficult as the Minister makes out. This is really a matter of principle on which I would like to test the opinion of the Committee.

10.22 p.m.

On Question, Whether the said amendment (No. 371) shall be agreed to?

Their Lordships divided: Contents, 29; Not-Contents, 54.

Division No 2
Addington, L. Liverpool, E.
Astor of Hever, L. [Teller] Luke, L.
Atllee, E. Mancroft, L.
Barker, B. Montrose, D.
Blatch, B. Noakes, B.
Bridgeman, V. Northbrook, L.
Byford, B. . Onslow, E. .
Caithness, E. Peel, E.
Roper L
Clement-Jones, L. Seccombe, B. [Teller]
Colwyn, L. Skelmersdale, L.
Cox.B. Smith of Clifton, L.
Ferrers, E. Strathclyde, L.
Howe, E. Wade of Chorlton, L.
Hunt of Wirral, L. Wilcox, B.
Acton, L. Evans of Parkside, L.
Amos, B. (Lord President) Evans of Temple Guiting, L.
Andrews, B. Farrington of Ribbleton, B.
Archer of Sandwell, L. Faulkner of Worcester, L.
Bach, L. Gilbert, L.
Bassam of Brighton, L. Golding, B.
Berkeley, L. Grocott, L. [Teller]
Bernstein of Craigweil, L. Hilton of Eggardon, B.
Brennan, L. Hollis of Heigham, B.
Brooke of Alverthorpe, L. Howarth of Breckland, B.
Burlison, L. Hughes of Woodside, L.
Campbell-Savours, L. Hunt of Kings Heath, L.
Carter, L. Jay of Paddington, B.
Chan, L. Jones, L.
Chandos, V. Jordan, L.
Crawley, B. Listowel, E.
Davies of Coity, L. Lofthouse of Pontefract, L.
Davies of Oldham, L. [Teller] McIntosh of Haringey, L.
Dean of Thornton-le-Fylde, B. McIntosh of Hudnall, B.
Desai, L. MacKenzie of Culkein, L.
Dixon, L. Mitchell, L.
Elder, L. Morgan, L.
Pendry, L. Warner, L.
Plant of Highfield, L Warwick of Undercliffe, B.
Randall of St. Budeaux, L. Watson of Invergowrie, L.
Sawyer, L. Whitty, L.
Simon, V. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

10.32 p.m.

[Amendments Nos. 372 to 374 not moved.]

Clause 101 agreed to.

Clause 102 [General Functions of CSCI]:

[Amendments Nos. 375 to 376A not moved.]

The Earl of Listowel moved Amendment No. 376B:

Page 43, line 25, at end insert— "( ) The CSCI shall have particular regard to support for residential care staff with responsibility for children."

The noble Earl said: The purpose of this probing amendment is to learn what priority support for residential child care staff tending children in care will have for the new inspectorate. I apologise for not drawing the amendment more narrowly to concentrate on children's homes, as had been my intention.

Despite recent welcome innovations, such as minimum standards, Quality Protects and Choice Protects, residential care staff in children's homes require special attention. They deal with our most challenging and needy children. For the most part, they remain unqualified in contrast to the high level of professional qualification required for such residential care staff across Europe. There has been delay in qualifying the workforce in National Vocational Qualification level three. We hope that 80 per cent of them will now be so qualified by 2005. NVQ level three is still well below that required on the continent, welcome though it is.

There has been a long, sad history of professional misconduct. The sector is small and shrinking further, so there is a danger of it being overlooked. Yet success in residential care provision is important to success in increasing placement stability and outcomes for children in care.

Staff require the support described in Chapter 8 of Choosing with Care—the report of the committee of inquiry into the selection, development and management of staff in children's homes, published in 1992. The committee was chaired by the noble Lord, Lord Warner—Norman Warner, as he was then. Staff in these homes need special support in working successfully as a team. In the recent National Children's Bureau report, Better than you think: staff morale, qualifications and retention in residential child care, effective teamwork was identified as a key attribute in improving outcomes for children in residential care.

In the conclusions of his report on safeguarding children living away from home, Sir William Utting made the important point that the best safeguard is an environment of overall excellence. In Germany, staff have a degree behind them before going into such work. In fact, they normally have postgraduate qualifications before doing so. Children in care in Germany can expect to gain a good clutch of Abitur— the equivalent of A-levels. Sadly, children in care in this country do not do nearly so well, but I shall not describe the details. I shall try to be as brief as possible.

The manager of a care home that I visited recently said, "I'm afraid that I would call two of my staff semi-literate. They are barely able to put down on paper information about what is happening with the children so that other staff can understand what is going on". Very good work is being done in some children's homes and there are some excellent special residential schools, but so much more needs to be done.

Tomorrow I shall attend a lunch cooked by care leaders. This is Care Leaders Week. Margaret Hodge, the Minister responsible for children, will address the meeting. I am looking forward to my sushi for lunch tomorrow. Significant numbers of care leaders do well but, sadly, when one looks at the criminal justice system, one sees that one-quarter of inmates have had some experience of being in care. I believe that we need to do far more in this area and that it requires the special attention of the inspectorate. We need to ensure that the inspectorate gives a high level of attention to, and supports, under-qualified staff working in these difficult conditions. I look forward to the Minister's response to the amendment. I beg to move.

Lord Warner

It is a pleasure to respond to this amendment. It takes me back a long way to when one tried to drive up standards in residential childcare. I accept much of what the noble Earl said about continuing to have to work away in this area in order to secure improvements.

We fully accept the need to ensure that care staff working in residential homes are supported. Children's Homes: National minimum standards, published in March 2002, set out in some detail the support which must be provided to staff working in residential homes. Standards 17, 28 and 31 have particular regard to the support of residential care staff and respond to the relevant recommendations in the report, Choosing with Care, which I was privileged to chair.

However, the national minimum standards are just one set of standards that the Government have produced for the regulation of care services. Standard 28 is, indeed, important. It states: All staff, including domestic staff and the registered person of the home, are properly managed, supported and understand to whom they are accountable". In addition, Standard 31 states: Staff receive training and development opportunities that equip them with the skills required to meet the needs of the children and the purpose of the home". These are the standards against which the homes are inspected.

The role of CSCI, as is the current role of the National Care Standards Commission, is to inspect children's homes against those national minimum standards. It is in that context, and particularly in respect of inspecting against Standards 28 and 31, that CSCI has a role in regard to support for residential care staff. Given the inspection role, I do not believe that it would be appropriate to add a further general duty under Clause 102.

Under Clause 102 CSCI has the general duty of encouraging improvement in the quality of registered social care services provided in England. In doing so CSCI will clearly need to look at the education and training of those working in residential children's homes to ensure that they are fit to do the job. I know that that is a concern of the noble Earl. It will look beyond the minimum of education and training as required in the national minimum standards to ensure that improvement takes place. I noticed that at the social services conference last week Denise Platt, the shadow chair of CSCI, affirmed that. She spoke about the commission's focus on promoting positive improvements in service. I hope that the noble Earl will be reassured by that and that he will feel able to withdraw the amendment.

The Earl of Listowel

I thank the Minister for his helpful reply. I shall carefully read what he has said. It is good to have it on the record. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102 agreed to.

[Amendment No. 377 not moved.]

Clauses 103 to 107 agreed to.

Clause 108 [Boarding schools and colleges]:

Lord Clement-Jones moved Amendment No. 378: Page 46, line 6, at end insert— ( ) In exercise of its functions by virtue of this section, the CSCI shall—

  1. (a) prepare a report on the discharge by the school or college of relevant functions;
  2. (b) without delay send a copy of the report to the school or college; and
  3. (c) make copies of the report available for inspection at its offices by any person at any reasonable time:
and may take any other steps for publicising a report which it considered appropriate. ( ) Any person who asks the CSCI for a copy of the report shall be entitled to have one on payment of a reasonable fee determined by the CSCI; but nothing in this subsection prevents the CSCI from providing a copy free of charge when it considers it appropriate to do so.

The noble Lord said: One of the great pleasures of legislation is how one can find a clause in the least expected place. The latest version of Section 87 of the Children Act is to be found, not in the Act, but in Section 105 of the Care Standards Act 2000. When Clauses 108 and 109 of this Bill refer to it they refer to that section, as amended.

Taking the matter a stage further, when one looks at new subsection (9A), as introduced by Clause 109 of this Bill, one sees that it refers to Section 105(5). For the aficionados subsection (5), as introduced by Section 105 of the Care Standards Act 2000, specifies:

"Where accommodation is, or is to be, provided for a child by any school or college, a person authorised by the appropriate authority may, for the purpose of enabling that authority to discharge its duty under this section, enter at any time premises which are, or are to be, premises of the school or college".

So the plot thickens. When one looks at Clause 109, subsection (9A) appears to be a good subsection. It states: Where the Commission or the National Assembly for Wales exercises the power conferred by subsection (5), it must publish a report".

If one did not know what subsection (5) contained, that would be quite an interesting and rather useful subsection. However, subsection (5), which I have just read to the Committee, is so narrow. Providing a report simply about accommodation and entering premises to ascertain whether the authority is discharging its duty as regards that accommodation is a very narrow provision. Something along the lines of Amendment No. 378 would be far better. That would encompass the whole of Section 87, and under subsection (4) there are duties. The subsection reads: Where the Commission are of the opinion that there has been a failure to comply with subsection (1) in relation to a child provided with accommodation by a school or college",

the commission is obliged to notify the local education authority, the Secretary of State and so on. A report in those circumstances would be of far greater use.

Having engaged in something of a truffle hunt to find the real purpose of this section, one discovers at the end of the day the very limited nature of Clause 109 in this Bill. I hope that the Minister has understood me and has an answer to why that clause introduces such a limited reporting duty. I beg to move.

10.45 p.m.

Baroness Andrews

I must confess that the amendment has taken a slightly different direction from the one I anticipated. I did not expect the noble Lord to be so assiduous in searching out truffles in that particular direction, so I shall have to write to the noble Lord about his point.

I did have some good news for the noble Lord but I am not sure how good the news is now. I presumed that he was seeking to ensure that the reports generated went to each school as a matter of course. They go as a matter of practice but not as a matter of law. In fact Clause 109 does all that Amendment No. 378 seeks to do, except in that specific, but actually very special, regard.

I was going to tell the noble Lord—and still will— that we are minded to look sympathetically at the amendment and to consider the specific point about requiring that the report goes back to the schools and residential homes in question. We will look favourably on that. It is standard practice, but it might be useful to have it in the Bill.

On the noble Lord's second point about why the issue suddenly becomes so narrow when the current breadth of the clause leads one to think otherwise, I shall have to write to the noble Lord.

Lord Clement-Jones

I think that that is as good an answer as I can expect at this time of day. So I thank the Minister and look forward to further progress. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 108 agreed to.

Clauses 109 and 110 agreed to.

Lord Clement-Jones moved Amendment No. 379: Before Clause 111, insert the following new clause—


  1. (1) Complaints under this Act may be made by an individual or a body of persons, whether incorporated or not.
  2. (2) A complaint may be submitted in respect of—
    1. (a) the exercise by an NHS body of any of its functions;
    2. (b) the provision by any person of health care for which the body is responsible;
    3. (c) the provision of an NHS service by a health professional supplied under private contract; and
    4. (d)the provision of services by the body or any other person in pursuance of arrangements made by the body under section 31 of the Health Act 1999 (c. 8) (arrangements between NHS bodies and local authorities) in relation to the exercise of the health-related functions of a local authority.
  3. (3) A complaint may be initiated by—
    1. (a) the person aggrieved;
    2. (b) his personal representative;
    3. (c) a member of his family;
    4. (d) an independent advocate, or
    5. (e) some body or individual suitable to represent him."

The noble Lord said: In moving Amendment No. 379, I shall speak also to Amendments Nos. 380 and 386. Amendment No. 379 adds more detail to Clause 111 on the complaints process in order to put the answers to key questions on the face of the Bill. Who is the complainant? What are the issues that can be complained of? What are the rights of advocacy? It does not attempt to outline a detailed procedure, which will remain a matter for regulation, but it puts in place the framework of a process that is independent from the Secretary of State. Currently, the process established in the Bill for handling complaints is entirely contingent on regulations.

On Amendment No. 380, the statutory difference between "may"—a discretionary duty—and "shall"— a mandatory duty—applies. I do not need to trouble noble Lords once again with distinctions between "may" and "shall". However, it seems unlikely that Ministers will not want to make regulations to introduce a comprehensive complaints procedure, but there is nothing technically in the Bill which actually introduces the duty to do so.

I turn to Amendment No. 386. While it is recognised as desirable that complaints are made within a prescribed period, this is not always possible and a degree of flexibility should be allowed in this regard.

The amendment would enable consideration of the many complaints that are currently in the system which have been pursued by complainants for years without satisfaction. It is important that these do not suddenly become null and void. New procedures should ensure speedy resolution and, in particular, an automatic transfer to independent review after a maximum of six months. They should not further penalise people who have already suffered a great deal. This should also apply to those who pursue a complaint through an inappropriate route and consequently come to use the NHS complaints procedure only after this has proved unsuccessful. I beg to move.

Baroness Andrews

Clause 111(1) is intended to set out in general terms what a complaint may be about. As the noble Lord said, Amendment No. 379 would broaden who may make a complaint under the regulations and what a complaint may be about.

The amendment would include too great a level of detail in the Bill. Clause 113(2)(a) already allows for the regulations to set out who may make a complaint; and Clause 113(2)(b) provides that regulations may make provision about the complaints which may or may not be made under the regulations.

I suspect that we shall discuss the regulations during our debates on the clauses. Let me reassure the Committee that we intend to consult widely on the content of the regulations. We therefore need to be able to respond to comments received and to change things, where people come up with sound reasons for doing so. It would restrict our ability to respond flexibly to the results of the consultation if specific provisions were required under the Bill. So the amendment would not add value to the Bill. I hope that the noble Lord will share my view.

On Amendment No. 380, I fear that the noble Lord has the power of clairvoyance. We do not believe that it is necessary to substitute "shall" for "may". In circumstances such as this, where the intention of the regulations is to implement policy, it is normal drafting practice to provide a power to make regulations rather than to impose a duty. So we find that amendment difficult to accept.

Although I understand what the noble Lord seeks to achieve by Amendment No. 386, again, it would be inappropriate to be so prescriptive about the detailed aspects of the regulations. It is important to retain some flexibility on the detail of what regulations will eventually provide, especially from the point of view of involving stakeholders in decisions about how the procedures that will affect them will work. As I said, we intend to consult widely on the regulations.

Moving to Amendment No. 395, there will clearly be occasions when it is appropriate for CHAI or CSCI to exercise the functions of their counterparts on their behalf: for example, where a complaint is about a package of services delivered by arrangement under Section 31 of the Health Act 1999. In such cases, regulations made under Clauses lll(l)(c) and 112(l)(c) may require each commission to exercise the functions of the other in considering a complaint about both health and social care. To that extent the amendment is inappropriate and unnecessary.

It is equally important that CHAI and CSCI should co-operate with each other where appropriate: for example, where one body may have expertise that the other lacks. That is something that we have tried to advance in reforming the complaints procedure; that is central to what we are trying to do. The Bill already provides adequately for that in Clause 118, which requires CHAI and CSCI to co-operate when necessary for the effective discharge of their respective functions, and in particular for CHAI and CSCI to delegate any of their functions to each other.

So, for all those reasons, although I am sorry to give the noble Lord a disappointing reply, I hope that he will withdraw the amendment.

Lord Clement-Jones

I thank the Minister for her reply, although I confess that I do find it disappointing. She seems to be arguing for flexibility on the Government's behalf but not much flexibility for the complainant. That does not have the right balance. She says that the Government will be consulting widely. I hope that they will bear in mind the need for complainants not to have an absolutely rigid time limit imposed on them. We may well want to take the matter further during the Bill's later stages.

As for Amendment No. 395, to which I did not speak, I entirely accept what the Minister said about Clause 118, which provides much assurance in that respect. However, Clause 111 is inadequate in its detail about the complaints system to be introduced; it gives few pointers in that respect. We may need to fill that out in future. In the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 111 [Complaints about health care]:

[Amendment No. 380 not moved.]

Baroness Noakes moved Amendment No. 381:

Page 46, line 37, at end insert— "( ) the provision of health care services by any other person or body."

The noble Baroness said: In moving Amendment No. 381, I shall speak also to the seven other amendments in this group tabled in my name and that of my noble friend Lord Howe. They relate to the complaints procedures in the Bill and follow on from the issues to which the noble Lord, Lord Clement-Jones, has just spoken. We broadly welcome the new provisions, but they raise several issues. A number of the amendments that I shall discuss have been inspired by very helpful briefing provided by the citizens advice bureau, which has considerable expertise and experience in handling complaints.

Amendment No. 381 would add to the list of areas for complaint set out in Clause 111(1), the provision of health care services by any other person or body".

The scheme covers complaints about English NHS bodies or about healthcare arranged by an NHS body, for example. But it does not cover healthcare provided wholly in the independent sector.

The separation between the independent sector and the NHS is not as clear-cut as it once was. Many NHS patients are treated in independent hospitals under PCT contracts, which are designed to cut waiting lists. But, alongside that, the independent sector treats rapidly increasing numbers of people on a self-paid basis, where patients have been failed by the NHS.

As there are no complaints mechanisms for those treated privately in the independent sector, there are anomalies. In an independent sector hospital, patient A, who is funded by the PCT, has access to the complaints mechanisms under the Bill, while patient B in the next room, who is paying for himself, has no such access. In an NHS hospital, the patients in both the public ward and the private patient wing are covered. Under Amendment No. 381, all providers of healthcare would be covered, whatever the setting.

Amendment No. 382 would allow regulations under Clause 111 to deal with how correspondence relating to complaints is dealt with, including adherence to time limits for replying substantively to correspondence.

The Citizens Advice Bureau reported to us that NHS bodies say that they have resolved complaints within the current 20-day time-scale when all they have done is send a letter of response. The time-scales can be much greater when complainants write follow-up letters, perhaps seeking more information or challenging an initial response. I hope that the Minister will see the need for being able to handle that issue effectively in the regulations.

Amendments Nos. 387, 388 and 391 are probing amendments concerned with who and what can be excluded from the complaints scheme by regulations. They would amend or leave out paragraphs (b), (c) and (0 of Clause 113(2). There are concerns that certain kinds of care, such as continuing care, could be excluded from the complaints mechanisms. That would raise significant issues, which is why it is so important to understand for what the Secretary of State intends to use the regulation-making powers. If he has no clear idea at this stage, we may well suggest at a later stage, on other than a probing basis, that the powers in Clause 113 need to be curtailed.

Amendment No. 390 would add a new paragraph to allow regulations under Clause 113 to cover oral hearings. It is unclear from the Bill whether the Government envisage oral hearings at all, the circumstances in which they might take place, and, if they take place, the procedures to be followed. There is a fear that complaints will be seen as an impersonal bureaucratic process in which the complainant's voice is not heard.

Will the Minister say whether the Government envisage oral hearings, and, if so, in what circumstances? How will CHAI equip itself to handle the function of complaint-handling, which is so very different from its core functions of audit and inspection? In particular, will CHAI have regard to model rules issued by the Council of Tribunals?

The different aspects of the new complaints procedures are not mere detail. It is important that we understand whether the Government's regulations will result in procedures that meet legitimate aspirations.

Lastly, Amendments Nos. 384 and 385 deal with regulations under Clauses 111 and 112. The amendments require the affirmative procedure—one of our old friends returns to the Committee. The regulations are not only about the who, what and when of complaints. They also cover issues such as payments of compensation under Clause 113(3) and can also, under Clause 113(4), override the duty of confidentiality and dispense with consent to the use of personal data. That is why we propose the affirmative procedure in Amendments Nos. 384 and 385. It is vital that there is proper scrutiny of the provisions. I beg to move.

11 p.m.

Baroness Barker

I rise to speak to Amendment No. 383 and the others in this group standing in my name and that of the noble Lord, Lord Clement-Jones. Amendment No. 383 raises the issue of oral hearings. As the noble Baroness, Lady Noakes, said, the amendments have been framed and informed by the work of the CAB and other organisations that have a great deal of experience of helping people through the Byzantine NHS complaints procedure. It is no exaggeration to say that when the Bill was in its formative stages, some feared that what would be wished on NHS patients and those undergoing social care was the worst of the NHS complaints procedures. I accept that a great deal of work has been done—in the ICAS pilot, for example, which ran for most of last year.

It has become evident to many people who work in this field that the facility to have an oral hearing is not only desirable in some cases—for the providers of services and patients—but essential. The people for whom it is most essential are those for whom English is not their first language, who find it easier to have an oral rather than written interview. That is why it is an important ability to have within the Bill.

As the noble Baroness, Lady Noakes, said, the time scales must be realistic for the work to be done, but they must also be adhered to. There have been many examples when the NHS has obeyed the letter of the existing rules by simply sending out a missive within the deadline—the classic bureaucratic way of getting round the imposition of a date—but not actually resolving the matter. We believe that time scales should be realistic but should be adhered to.

We also believe that, when time scales have been badly missed and abused, there should be a penalty on the NHS body concerned. Therefore, we propose an upscaling system in which matters that are not dealt with within the right time go up to another level such as the strategic health authority.

Finally, a great deal has been done over the past few years to ensure that information about one's right to complain is more available. A notice that one has the right to complain is something that one now regularly sees in NHS premises. However, details of how to go about complaining or resolving issues are often not advertised. That is of primary importance and is the force behind our amendments in this group.

Baroness Andrews

This is an important group of amendments which I shall try to put in context. They are concerned to ensure that the complaints procedures are accessible, timely and as exhaustive as possible; that nothing appropriate is excluded; and that everyone who uses health and social services is as well informed as possible and involved appropriately so that everyone gets the satisfactory outcome that they want. That is largely what Chapter 9 of the Bill sets out to do. In particular, Clause 113 sets out in very general terms the framework within which the complaints procedure will be constructed and which will be covered in more detail in accompanying regulations and in guidance.

I should outline some of the improvements that we are trying to make to the system. We are aiming to make the system more flexible; to improve local resolution of complaints; to make the resolution of complaints truly independent; to ensure that information about complaints and the causes of complaints are an integral part of the system; and to make the procedures for complaints about health and social services as compatible as possible so that from the complainant's point of view there is a seamless process with a single access point. That is very important. So we fully understand the intention of these amendments.

I shall take the amendments in numerical order. In moving Amendment No. 381, the noble Baroness, Lady Noakes, pointed to what she saw as discrepancies in the treatment of complaints regarding private and National Health Service care. Amendment No. 381 seeks to ensure that the complaints procedure is comprehensive and covers healthcare services provided by third parties. It will do that in any event. The NHS complaints procedure has always been about providing patients, or someone on their behalf, with the right to complain if they are not happy with the treatment. When a patient is treated through arrangements made by NHS bodies, even if their care is not provided by an NHS body, it is right that they should be able to have their complaints addressed under the NHS complaints procedure.

Subsection (l)(b) of Clause 111 already makes provision for that by covering healthcare by or for an English NHS body or cross-border SHA. That means that healthcare provided by third parties—that is, primary care practitioners and independent providers - will be covered by the complaints procedure. I should, however, add that this procedure is designed to deal with complaints about the NHS and NHS patients only. Private healthcare is covered in separate regulations which are associated with the National Care Standards Commission.

I should advise the noble Baroness that this amendment would also have the unintentional effect of extending the Secretary of State's regulation-making power to, for example, Welsh NHS trusts and local health boards as the amendment as drafted is not geographically limited to England and is not in any way linked to Clause lll(l)(a), which limits the Secretary of State's regulation-making power to English NHS bodies and cross-border SHAs. To extend the Secretary of State's regulation-making power in this way would be inconsistent with the regulation-making power given to the Assembly under Clause 111 (2). So the amendment would put a small fly in the ointment in that respect.

Baroness Noakes

I thank the Minister for giving way. As there are various points to raise it might be easier if we dealt with them as we went along. Let us contrast the position of a private patient in an independent hospital who went there on a self-pay basis because the NHS waiting lists were too long with that of someone admitted for whatever reason to the private wing of an NHS hospital. The NHS patient would be dealt with by the NHS complaints system whereas the other would be dealt with by a completely different system that originates in the National Care Standards Commission. Does the Minister think that that is logical?

Baroness Andrews

It is certainly comprehensive. Both sets of patients have a right of complaint and a recourse. That is what we are aiming to achieve.

I turn to Amendment No. 382 and the issue of time limits. In reply to the noble Baroness, Lady Barker, we want the reformed complaints procedure to include time scales for dealing with complaints. I take her point regarding the CAB, which has a lot of experience in this field. Of course, it is reasonable that we address time limits. I agree with the noble Baroness that there must be a balance between imposing a time-scale that makes it impossible for complaints to be resolved properly and making sure that things are not allowed to drift. Therefore, we intend to consult widely on that aspect of regulations. In particular, we shall talk to bodies, such as the CAB, about that. We have identified time-scales as a key area where we need to gather feedback.

The current wording of Clause 113(2)(e) is sufficient to provide for regulations to set out the detail with regard to time-scales. On those grounds, Amendment No. 382 does not add value to the Bill. Obviously, CHAI will be consulting widely, not least with the Council on Tribunals, on the advice and experience that people can bring to bear on the process.

I turn now to the form of the complaint. Amendment No. 383 seeks to ensure that regulations detailing the complaints procedure provide for a right to an oral hearing, where appropriate. Amendment No. 390 also seeks to ensure that the regulations specify the circumstances in which a complaint is subject to an oral hearing. Not only do we recognise that the amendments have been made with the best of intentions, but we envisage oral hearings.

We recognise that the parties involved in a complaint must have the opportunity to put their case. We intend to provide in regulations for an oral hearing where it is the best option for making progress and where local resolution has not been achieved. Clause 113(2)(e) enables regulations to provide for that. While on the face of it the amendments have the best intentions of the parties involved at heart, there would be some perverse consequences because it would also reduce the complainant's control over what happens rather than empowering him to make the right choice.

I must stress that we are envisaging a much more involving process. Complainants, in the stages supported by the appropriate bodies, would choose the right and most appropriate route forward for them. We want them involved as far as possible to determine how they think the situation can best be resolved. We are trying to focus proactively on seeking to facilitate resolution at various stages rather than on an invariable progression where certain procedures kick in at certain stages. Rather than specifying rigidly when an oral hearing must take place, we want to set out options for resolution after the local stage. That will allow CHAI and CSCI more flexibility to decide with the complainant the best way forward.

It may be that an independent panel involving oral representation might be one way forward if that is what people want, but there may also be other options. With that explanation, I hope that the noble Baroness will not press the amendment.

Amendments Nos. 387, 388 and 391 seek to ensure that no one who has cause to complain is left out or is prevented from doing so. I agree that the language in the regulations needs some untangling. One of the main objectives behind the provisions that we are proposing for complaints is to make the procedures more rather than less accessible. For example, we intend that people who wish to make a complaint should be able to do so just once rather than being sent all over the place. The provisions in Clause 113(5) are designed to allow for that.

The amendments seek to remove the ability for regulations to set clear parameters for the complaints procedures in terms of the complaints which may not be made or which need not be considered under matters which are excluded from consideration. Each of those three subtly different points serves a different purpose.

Obviously, we have to set parameters, but we have no intention of limiting the proper investigation of complaints about the NHS or social care. What we intend in the clauses is to ensure that the procedures are used appropriately so that, for example, other routes resolving issues such as misconduct can operate effectively alongside the complaints procedure.

Perhaps I may go through the provisions very quickly. Subsection (2)(b) simply reflects the fact that we will need to be clear about what people can and cannot complain about using the procedures. For example, social services procedures should be for complaints about social care functions. Subsection (2)(c) is subtly different from (2)(b) in that it allows for regulations to provide for some complaints that have been made not to be considered, rather than excluding them from being made in the first place. This might cover circumstances where an alternative route might be more appropriate to achieve resolution. For example, if a complaint brings misconduct to light, the relevant disciplinary procedures may need to be brought into play. The paragraph does not give NHS bodies or local authorities a way out of investigating a complaint properly. However, to remove it would take away the necessary flexibility.


Baroness Noakes

I thank the Minister for giving way once again. She read out the provisions of paragraphs (b), (c) and (f), but what I sought to tease out was whether they would be used for excluding certain kinds of care. Can the Minister assure the Committee that those paragraphs will not be used by the Government for excluding the provision of long-term or other specific types of care? At face value, they appear capable of doing that.

Baroness Andrews

Everyone capable of being in receipt of an NHS service must be covered. I can give the noble Baroness the assurances that she seeks.

Paragraph (f) allows regulations to be made about matters which are excluded from consideration. For example, the NHS procedure has always been about patients having the right to complain if they are not happy with the treatment or service they have received. That is right, but other people either in or using NHS facilities, such as contractors, need to be excluded. Of course they can raise their concerns and have them addressed, but that is not the purpose behind the procedure provided for here. These are safeguards to deal with the exceptions.

Baroness Barker

I am sorry to interrupt the noble Baroness at this late hour, but within the important and extremely detailed explanation of the clause that she is giving the Committee, can she confirm whether this would enable people to make complaints when they have been excluded from the provision of NHS care to which they feel that they should be entitled? I cite, for example, continuing NHS care.

Baroness Andrews

If someone has been excluded from NHS care, there would be a reason for that, along with a history and a background to the case. Presumably those would form the basis of the complaint. If I am wrong then I shall certainly write to the noble Baroness, but I see no reason why they should be excluded from making a complaint.

I turn to Amendment No. 389. We believe that this is too detailed a point to be covered by the Bill. Again this refers to time-scales, but it is only reasonable that the reformed complaints procedure should include time-scales. However, it is right that there should be measures in place to deal with complaints that are allowed to drift unnecessarily, and we want to stop that from happening. These would include referring complaints to the next stage of the procedure if they are not dealt with in a reasonable time. Again, we intend to address this in regulations and the wording of Clause 111(3) and (4) will allow for appropriate provision to be made. We feel, therefore, that the amendment is unnecessary.

However, I am sympathetic to the spirit of Amendment No. 393. It is essential for information to be freely available in order for the complaints procedures to be as accessible as we would all wish. I want to reassure noble Lords that we intend to make provision about this in regulations. Although I believe that we can achieve that without the addition of this specific provision, I am minded to take it away for further consideration with a view to coming back with an amendment on Report.

The general powers to make regulations about the handling of complaints contained in Clauses 111(1) and 112(1) are sufficient to allow regulations to make provision about making information for the complaints procedure available to the public, but as I have said, I sympathise with the purpose of the proposed amendment.

I turn now to the final set of amendments in the grouping, Amendments Nos. 384 and 385. These amendments would have the effect of requiring that regulations made under these clauses are dealt with under the affirmative resolution procedure. We do not believe that that is either desirable or necessary. We have set out a clear programme for reforming the way in which complaints are made under the complaints procedure and we have been open about the reasons for that reform. Indeed, the whole history of the process over the past two years was set out in the departmental paper, NHS complaints procedure reform: making things right, published in March this year. It also marks the way forward. So our intentions have been made clear and, similarly, how they are to be covered is set out in the Bill.

I emphasise that this is the first time that the detail of the complaints procedures will be subject to regulation. This improves the current provision and sets the procedures apart from the procedure of handling complaints under Sections 24D and 26 of the Children Act 1989 and the requirements for complaints procedures set out in regulations applying to providers of family healthcare services. These have been subject to a variety of directions and we are changing that. We intend that the regulations will cover who may complain and about what; what they can expect by way of a full and prompt response; and, if necessary, a review of the complaint by a body which will be completely independent of the organisation complained about. The regulations will also place responsibility with health and social care organisations for making effective responses and, as I have said, we are committed to involving all stakeholders.

The noble Baroness asked about data protection. These bodies will be subject to the Data Protection Act and people will be asked to consent to the disclosure of appropriate information when they make a complaint to CHAI and CSCI. There will be no question of that provision being overridden. Regulations will provide for information to be obtained from the NHS and local government, but that will have to be consistent with the provisions of the Data Protection Act.

The Government wrote a longer response when this issue was raised by the Delegated Powers and Regulatory Reform Committee which I shall be very happy to copy to the noble Baroness. So we have been open about the changes we intend to make.

Another problem which would be raised by the affirmative resolution procedure is that the amendments fail to take account of the devolution settlement. Under these clauses the Assembly will be given the power to make regulations detailing how health and social care complaints procedures will operate in Wales. It would therefore be inappropriate for the draft regulations to have to be approved by both Houses before the Assembly can make them.

I am sorry to have spoken at such length. These are difficult and complicated amendments which I hope the noble Baroness will not press.

Baroness Noakes

I thank the Minister for that extremely comprehensive response and for some good news. I am pleased that the Government will cover the issue of timescales, that they will consult widely, that oral hearings will be included and that the complainants will be involved in selecting the process. All of those provisions are good news. I thank the Minister for the assurance that issues such as long-term care will not be excluded—indeed, that all care offered or not offered by the NHS will be covered by these regulations.

That leaves only a couple of areas where the Minister's response was a little disappointing. The Minister said that the position of the independent sector is comprehensive, but that preserves artificial distinctions between the independent sector and the NHS which, as I tried to demonstrate in opening, are already blurred. We need to think about that issue further.

We shall also need to think further about the affirmative procedure, in particular because of the use of personal data. I completely take the Minister's point about the Assembly and devolution, which often slips one's mind. But there are some important issues in regard to the regulation-making powers, the use of personal data and compensation payments. The Minister rang a bell when she referred to the fact that this is the first time complaints regulations are being put together. Perhaps the first set of regulations should themselves be subject to the affirmative procedure because that is where so much will be set out. I should like to think further about personal data and I should be grateful for the letter that the Minister has offered to me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 382 to 384 not moved.]

Clause 111 agreed to.

Clause 112 [Complaints about social services]:

Lord Clement-Jones moved Amendment No. 384A:

Page 47, line 38, leave out paragraph (b).

The noble Lord said: We now come to the clause dealing with complaints about social services. Very simply, Clause 112 effectively repeals the existing complaints procedure for local authority social services set out in existing social services legislation and replaces it with a new process. Under subsection (2), CSCI is one of the bodies that can consider complaints.

Local authorities and their representative body have concerns about the inclusion of CSCI in that list. It is interesting to note that under subsection (4), there is no reference to CSCI as far as concerns Wales. It is only for English local authorities that CSCI is included. That is a significant omission. As the previous social services inspector did not have a role in considering complaints, there is a lack of understanding as to why CSCI, the SSI's successor, should assume that role. There may simply be a feeling of symmetry—as CHAI deals with health services, so CSCI should deal with social services. I do not believe that that should necessarily be the case, and look forward to what the Minister has to say. I beg to move.

Baroness Andrews

We were slightly surprised by this amendment because it runs counter to the very principles of what we are trying to achieve. We can usually count on the noble Lord to share our vision.

I hope I have made it clear so far that the overriding principle of what we are trying to achieve is to make the process easier and more accessible, and to increase the chance of achieving the right outcomes for people. CSCI is crucial to that. It will enable the review stage to be geared to the circumstances of each case. Making Things Right, which was published earlier this year, contains a solid argument about why CSCI is important for doing just that.

Nobody knows better than people like the noble Baroness, Lady Barker, that the key difficulty with the current procedures is that they make it difficult for complainants, health bodies and local authorities to deal with complaints that cut across health and social care services. We have only to reflect, as we do so often in this House, on the implications of the Community Care (Delayed Discharges etc.) Act.

The way in which the review stages are handled by health and social services, being different in their structure and in their process, makes it very difficult to deal collectively with complaints of that sort. That is why we are looking for a parallel process for single points of access and a very strong independent review mechanism at the top. That is the role of the two new commissions in the independent review stage. The provisions we have made that will allow them to co-operate and work on each other's behalf are crucial to improving that.

The feedback from the major consultation exercise on Making Things Right contained a very articulate demand for greater independence. Some complainants did not understand how, as is the case at present, a review panel convened by a local authority, which might include two councillors from the authority being complained about, can be truly independent. But that is not to criticise the review panels, which have worked extremely well. Independent panels may well continue to be part of the potential armoury for resolving complaints under the new proposals. We are trying to focus the local resolution in such a way as to separate the local investigation from the review mechanism so that, on the ground, people can do the job which they can do best because they are nearer the information and circumstances and will be able to address those issues. Local authorities may have concerns on the matter, but we want the review panel to support the process on the ground.

For the reasons that I have offered, we would be very reluctant for the amendment to be adopted, because it would lead to greater disparity between the way in which complaints are handled in health and social care, rather than bringing the process together. It would not bring the desired overview and independence that we want to see. I hope that the noble Lord will take the case put on those two grounds and withdraw the amendment.

11.30 p.m.

Lord Clement-Jones

I thank the Minister for her reply. Far be it from me to obstruct the onward march of progress or arrest the grand designs that are clearly in the Minister's mind, as we march forward with health and social care in tandem, towards a bright and glorious future. There is something rather Stakhanovite about the whole concept.

I have not yet had an answer as to why Wales should be different. If the grand design that is so desirable in England is being achieved, why not in Wales?

Baroness Andrews

It is a dreadful oversight on my part—normally I answer the questions about Wales first. As far as I know, Wales is different because it has a tradition of lay members serving on independent panels. That is how Wales wants to continue, in the spirit of devolution, respecting the strength of local organisers and the independence of the lay members. That is obviously what we want for Wales.

Lord Clement-Jones

The Minister is almost making my argument for me—it is very interesting. She said that review panels were working extremely well, but here she says that the Welsh in their wisdom—and at this point I assume Welsh ancestry—are extremely sensible in staying with the things that they know work. That is why local authorities are keen on the review panels rather than on CSCI.

I do not want to take the matter further tonight, but clearly there are quite a number of questions to be answered between now and Report. I shall read the Minister's comments carefully. Far be it from me to stop the onward march of progress, as described by the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews moved Amendments Nos. 384B and 384C:

Page 48, line 12, leave out from second "to" to "(and" in line 15 and insert "a Local Commissioner under Part 3 of the Local Government Act 1974 (c. 7) who is a member of the Commission for Local Administration in England for him to consider whether to investigate the complaint or matter under that Part" Page 48, line 17, leave out from second "to" to end of line 19 and insert "a Local Commissioner under Part 3 of the Local Government Act 1974 (c. 7) who is a member of the Commission for Local Administration in Wales for him to consider whether to investigate the complaint or matter under that Part"

On Question, amendments agreed to.

[Amendment No. 385 not moved.]

Clause 112, as amended, agreed to.

Clause 113 [Complaints regulations: supplementary']:

[Amendments Nos. 386 to 393 not moved.]

Lord Clement-Jones moved Amendment No. 394:

Page 48, line 39, at end insert— "( ) The provision that may be made under subsection (2)(g) includes the provision for a report about a complaint to recommend the making of an ex gratia payment in respect of injuries sustained, loss of earnings or expenses incurred as a consequence of the incident or incidents complained about."

The noble Lord said: The amendment is similar to the one that the noble Baroness, Lady Finlay of Llandaff, would have moved. It will not have escaped the Minister's notice that we on these Benches have tabled a number of different amendments at different stages that are in the nature of probing amendments, to test how limited the provisions are.

The purport of this amendment is to enable compensation or ex gratia payments to be made to an upper value which would be determined by regulations in respect of lesser injuries caused as a result of avoidable mistakes. This would remove the need for people to take legal action on a smaller scale, the costs of which usually exceed any award made. I am sure the Minister is aware of some of the rather horrifying statistics about the cost of some smaller claims.

At present there is an inconsistent approach dependent largely on the personality of the complainant and/or the chief executive of the trust concerned regarding whether ex gratia payments will be considered. Some complainants are told that there is no possibility of this while others are successful in being offered a payment.

An expert group convened by the Scottish Executive recently recommended bringing ex gratia payments formally into the application of the NHS complaints procedure there. In England the Clinical Disputes Forum recommended that compensation should be available through the NHS complaints procedure. I look forward to hearing what the Minister has to say in that respect. I beg to move.

Baroness Andrews

Amendment No. 394 seeks to make financial redress available through the complaints procedure. NHS bodies are already allowed to make ex gratia payments where legal liability would otherwise be conceded. NHS bodies will continue to have that flexibility under the reformed NHS complaints procedure.

The amendment as drafted would also apply to social care. There is already provision for payments to be made by local authorities where they consider that their actions amount to maladministration. The issue of compensation for acts of clinical negligence has traditionally been a matter for the courts unless the body concerned accepts liability and reaches a settlement out of court.

The CMO has carried out an extensive review of the options for reforming the way in which the NHS handles clinical negligence claims. The results of the review were published on 30th June in the report, Making Amends. Under the proposals an NHS redress scheme will be established to speed up the process and to offer care and compensation under certain circumstances without the necessity to go to court. This new redress scheme will be closely aligned to the new NHS complaints procedure. For example, it is proposed that making a claim for compensation would no longer be a disqualification from pursuing a complaint—something I am sure we would all welcome. Subject to the outcome of the consultation, we shall need to take account of that in determining how the complaints procedure operates so that it is aligned effectively with the NHS redress scheme. I hope that with that explanation the noble Lord will withdraw the amendment.

Lord Clement-Jones

I thank the noble Baroness for that reply. The interface between clinical negligence cases and the complaints system is an important matter. I do not believe that we yet have a very clear picture established of exactly how that will operate. The noble Baroness says that there is an existing power to make ex gratia payments. When a body such as the Consumers' Association wants clarification on that, it demonstrates that there is a lack of communication or a lack of clarity regarding the powers. When the regulations are made, or when communications are made about the content of the regulations and what the complaints system consists of, it is important to tell potential complainants and the public that trusts have the relevant power. At the moment that is not clear. However, the clarification was useful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones moved Amendment No. 394A:

Page 48, line 40, leave out subsection (3).

The noble Lord said: This is a straightforward amendment which is designed to discover the current intentions regarding the requirement of payment of a fee to the body hearing complaints under Clause 113.

We on these Benches are concerned that individuals bringing complaints may be required to pay a fee to the body that hears their complaint. Of course, vexatious or dishonest complaints may be a problem for some social services departments, but charging complainants is not necessarily the best way to deal with that. It would be important for the Minister to explain why the Government think that a charging power is required in the circumstances. I beg to move.

Baroness Andrews

There was inevitably a cost at the review stage of the existing complaints procedure, which was traditionally borne by the relevant authorities. We recognise that there will be a cost to the commissions in carrying out their functions of independently considering complaints. That is a logical outcome. Therefore, there will need to be a mechanism for covering the costs associated with the work.

I assure Members of the Committee that no scheme of charging will be implemented without a full analysis of the impact, and we would intend to consult on that. For example, we would want any scheme of charges to contribute to the aim of resolving complaints locally, and certainly not to hinder it. Over the coming months, the Department of Health and the shadow commissions will analyse the costs associated with review activity and drawing up proposals for a charging structure that fairly reflects the transfer of the function to the commissions. Those proposals will be subject to full consultation. I should also emphasise that there will be no intention of charging complainants at all. We are talking about charges that are, as it were, costs paid to the commission by the relevant authorities.

We do not want to pre-empt the analysis but will want to see some link between, for example, charging and workload, so that if bodies or authorities that have fewer cases need further action to achieve a resolution, they do not bear a disproportionate burden. We will be looking at the full range of options as to how the provisions can be made to work sensibly.

Lord Clement-Jones

I thank the Minister for that reply. She has made it pretty clear that her interpretation of Clause 113(3) is that the complainant will not be charged. The thrust of the amendment was very much to make sure that the complainant was not charged. Furthermore, she said that there would be analysis of the costs of current review mechanisms and full consultation about how any recovery of those costs from the players involved—presumably local authorities and so on—will be levied. That is a pretty satisfactory reply, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 395 not moved.]

[Amendment No. 396 had been withdrawn from the Marshalled List.]

Clause 113 agreed to.

Clause 114 [Further consideration of representations under the Children Act 1989]:

Lord Warner moved Amendments Nos. 396A to 396E:

Page 50, line 3, leave out "the Commission for Local Administration" and insert "a Local Commissioner"

Page 50, line 4, leave out "it" and insert "him"

Page 50, line 33, leave out "the Commission for Local Administration" and insert "a Local Commissioner"

Page 50, line 34, leave out "it" and insert "him"

Page 50, line 38, at end insert—

"(5) In this section, "Local Commissioner in England" means a Local Commissioner under Part 3 of the Local Government Act 1974 (c. 7), who is a member of the Commission for Local Administration in England.""

On Question, amendments agreed to.

Clause 114, as amended, agreed to.

Clauses 115 to 118 agreed to.

11.45 p.m.

Clause 119 [Reviews and investigations]:

[Amendment No. 397 not moved.]

Clause 119 agreed to.

Clause 120 agreed to.

Clause 121 [Power to assist]:

Baroness Noakes moved Amendment No. 398:

Page 54, line 2, leave out subsection (1).

The noble Baroness said: I shall be extremely brief with this probing amendment. Why would CHAI or CSCI want to assist other bodies rather than concentrate on their core functions? Subsection (1), which this amendment seeks to delete, gives them power to assist any other public body in the United Kingdom with the purposes of that body's functions— and they can charge fees for it. Surely CHAI and CSCI are not going to set up consultancy businesses. If they are going to help other people, whether or not for payment, will the Minister also explain why they are confined to helping United Kingdom public bodies? Are there no bodies outside the UK which, perhaps for a fee, might benefit from the advice of CHAI or CSCI? Why should bodies outside the public sector—for example, charities or voluntary bodies—be excluded from this beneficial interaction with CHAI or CSCI? I am puzzled by this clause, which is why we have tabled the amendment. I beg to move.

Lord Warner

I hope that all will be revealed. The power in Clause 121 builds on a tradition of co-operation between inspectorates that is necessary to ensure effective and joined up working between agencies. A recent example of such co-operation would be the street crimes initiative, which saw the Social Services Inspectorate working closely with a number of other public bodies, including Home Office inspectorates and Ofsted. The drafting of the Bill enables CHAI and CSCI to assist other public bodies where they believe that it is appropriate for them to do so. This will be a decision for the inspectorates based on whether they believe there is any social or healthcare implication for them in the work that is being carried out by another public body.

CSCI will be involved in the Local Services Inspectorates Forum, which brings together a range of government inspectorates to consider common issues and discuss their work programmes relating to local government issues. This includes the Audit Commission, Ofsted, the Benefit Fraud Inspectorate and the Prisons Inspectorate. Clearly we expect CSCI and CHAI to be sensitive to the burden of inspection placed on organisations that are the subject of work that they will do with other public bodies. CHAI will be under a duty to work jointly with CSCI and other public bodies and where it considers that would promote further efficiency and cost effectiveness. CHAI's vision document clearly indicates the commission's willingness to work in real partnership with others, particularly in the area of common data collection. It would be a significant constraint on the powers of CHAI and CSCI if they were not able to assist and co-operate with other agencies in this way and would undermine effective joint working.

We have drawn the powers reasonably widely to enable that area of co-operation to operate effectively, due to the wide range of public bodies that may carry out work that has health and social care implications, and to which CHAI and CSCI will therefore need to be able to provide assistance. They are not going into the consultancy business, but we do want them to work on a basis of co-operation with others when they think that that is necessary in order to discharge their primary functions. I hope that explains to the noble Baroness why we have set out the terms of the Bill in this way.

Baroness Noakes

I thank the Minister for that helpful response. I shall read it carefully, but it appears to answer the points that I raised. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 121 agreed to.

Clause 122 agreed to.

Clause 123 [Arrangements with Ministers etc: CSCI]:

[Amendment No. 399 not moved.]

Clause 123 agreed to.

Clauses 124 and 125 agreed to.

Clause 126 [Reports: CHAI]:

Earl Howe moved Amendment No. 400:

Page 56, line 5, at end insert— "( ) an updated regulatory impact statement showing the effect, including the estimated financial effect, of the CHAI's activities on those bodies which it covers."

The noble Earl said: In moving Amendment No. 400, I shall speak also to Amendment No. 401. These amendments relate to regulatory burdens. I suggest that both CHAI and CSCI should be required to publish at the end of each financial year a full regulatory impact assessment of all their activities.

I hope that the Government will consider the amendment seriously. The proposal is good discipline and good practice. None of us can assume that CHAI or CSCI will reduce the regulatory burden of their inspections, or hope that they will follow good practice spontaneously. We need to see on a regular basis whether this occurs.

Employers and staff alike across the public and private sectors are becoming more aware and more resentful of unnecessary and intrusive red tape and bureaucracy. In the health service, the amount of time that clinicians and managers spend filling in forms and justifying themselves to others is time taken from the care of patients. If we can achieve a reduction in the burden of data gathering and compliance on front-line NHS staff, and on those who work in the social care sector, we should do so.

The regulatory impact assessment for the Bill as it relates to CHAI and CSCI speaks in optimistic terms about the advantages of creating two new inspectorates and the reduction in burdens that this will bring to front-line staff. It speaks of, less work for frontline staff following co-ordinated visits and requests for information".

It also speaks of, co-ordination of work where the inspectorates might be looking at the same provider, e.g. care trusts".

We need to ensure that these are not just pious hopes. There may indeed be a net reduction in the number of bodies—although if one counts the Welsh inspectorate, I am not sure that that is literally true. Despite what the Minister may say, there are possibilities for duplicated inspection work in border areas between England and Wales. If that happens, burdens will increase, not decrease.

Quite apart from that, the regulatory burden can equally be influenced by the manner and style in which inspectorates work. There needs to be a formal requirement to enable us to ensure that good intentions are translated into practice.

I have one question relating to the regulatory impact on independent health and social care providers. The regulatory impact assessment states: Independent health providers and registered social care providers are currently inspected by the NCSC against national minimum standards … to ensure national consistency of service provisions. This function is to be taken over by the new inspectorates … The inspection procedures may change when CHAI and CSCI become operational, but providers will not be subject to different standards as a result of the changes".

However, it also states:

"In future, providers may be subject to new service standards".

I did not understand what the reference to "new service standards" means and the implications it carries for regulatory burdens on the private sector. I beg to move.

Lord Warner

On the last point, national standards will be set out by the Secretary of State in relation to health care. We have already discussed the issue of convergence between the independent sector and the NHS. I believe that the wording is related to that, but I will check and write to the noble Earl.

Before the Bill's introduction, the department led an assessment of the likely regulatory impact of its provisions. It consulted widely, including with key stakeholders, the devolved administrations, the regulatory impact unit of the Cabinet Office and the small business service at the Department for Trade and Industry. A full regulatory impact assessment of the Bill in its entirety was published on 14th March this year and a copy is available in the Library. I shall not quote from it, other than to point out that, overall, the inspectorate's clauses in particular are considered to have a limited impact, if any, on businesses and the voluntary organisations. I know that the noble Earl has looked at the document.

Both organisations are being established with duties to discharge their functions economically, efficiently and effectively. It is therefore our belief and expectation, in line with the recent Office of Public Sector Review report on inspection and external review, that CHAI and CSCI will bring about a reduction in the burdens of inspection placed upon frontline staff, freeing up time that could be better spent caring for patients and other service users.

In CHAI's Vision statement, Professor Sir Ian Kennedy notes that organisations which provide healthcare are currently assessed by different inspectorates without proper co-ordination. CHAI therefore already proposes to develop techniques of assessment which reduce the need for it routinely to visit each and every organisation. Clearly, there is still some way for CHAI to go in developing such methodologies, but we are confident that progress will be made in that area.

The Better Regulation Task Force report recommends that regulators should make available for public scrutiny a regulatory impact assessment on all new major policies and/or initiatives. It does not recommend an annual regulatory impact assessment. However, I shall study the amendment further in the light of the task force report to be sure and shall consider whether anything more needs to be done. But, at present, we do not believe that the amendment is necessary.

Earl Howe

I am grateful to the Minister for agreeing to have a second look at this issue. I believe that it is important. Whenever we set up new regulatory mechanisms, it should be more or less a reflex action to examine how the regulatory impact of those bodies can be contained, however well intentioned the new system is to be. I look forward to hearing, perhaps at a later stage, what the Minister concludes. But, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 126 agreed to.

Clause 127 [Reports: CSCI]:

[Amendment No. 401 not moved.]

Clause 127 agreed to.

Clause 128 [Duty to have regard to government policy: CHAI]:

Earl Howe moved Amendment No. 402:

Page 56, line 27, leave out "must" and insert "may"

The noble Earl said: In moving Amendment No. 402, I shall speak to the other amendments grouped with it. In this group, we return to the principal theme of our Committee proceedings on Part 2—namely, the independence of CHAI and CSCI. Clause 128 confers a power of direction over CHAI by the Secretary of State.

A clause of this kind, tucked in towards the tail end of Part 2 and headed "Relationship with government", speaks volumes for the intentions of Ministers. Here, we have an open acknowledgement that, like it or not, CHAI will be beholden to the Government, as and when Ministers so choose, in every aspect of its operations. Its functions as an adjudicator of the quality of care and of the economy and efficiency of the provision of healthcare, as a guardian of the rights of children, as a publisher of data and as an assessor of the performance rating of trusts may not be for CHAI to perform as it seems fit but, instead, may be subject to the Government's take.

I am extremely troubled that a provision such as this should be in the Bill. It is quite unnecessary. Government policy, referred to in subsection (1), can mean many things. It can mean something as benign as a drive to get rid of mixed-sex wards or, alternatively, something that is political, such as waiting-list targets, delayed-discharge penalties and A&E waiting times.

However, the obligation to have regard to government policy is a strict provision. I have no problem with CHAI having regard to government policy. No regulatory body such as this one can possibly operate in a cocoon. Government policy is a fact of life, and CHAI must live with it. But that is different from saying that CHAI should be subject to a power of direction. The only point of a power of direction is to influence someone's actions. What possible ways are there for the Secretary of State to influence the actions of CHAI which would not amount to direct interference in CHAI's mode of working or the results that it published?

The confidence that patients and the public need to have in what CHAI says and the way that it does its business is one of the most important considerations in this legislation. People very definitely do not want to see CHAI as just another arm of government, doing the Government's dirty work and implementing the Government's political agenda. But that is what will happen if the Secretary of State is allowed to direct what it does.

In my amendment I suggest that the Secretary of State should by all means have the power to bring matters of policy to the attention of CHAI, but that that should be as far as it goes as regards any direct political influence over its operational role. The same comments apply in equal measure to CSCI. I shall not take up the time of the Committee to repeat the argument. Knowing the Minister, he is bound to present the Committee with some rational-sounding justification for these provisions, but I doubt I am persuadable.

Perhaps I may move briefly to Amendments Nos. 407 and 408. In Clauses 130 and 131 we see once again the over-intrusion of the Secretary of State in the governance of CHAI and CSCI. It is conceivable and the Bill is right to allow for the possibility that CHAI or CSCI may fail to perform their functions in some major way. Were that unlikely eventuality to come about, there has to be a means to address it. The Government's answer here is to give the Secretary of State a power of direction over each body so that he can tell it what to do or even what not to do. A power of direction may be the obvious device to bring out the tool kit in those circumstances, but I am distinctly uncomfortable with it. We all know about powers of direction; the point is not so much that they are used, but that they are there at all. The existence of a completely unfettered power of the Secretary of State to say that CHAI or CSCI were failing in the discharge of their functions gives him a large degree of psychological influence over the way that each body operates.

We should note that the Secretary of State does not even have to be satisfied as to the failure of CHAI or CSCI. He has to consider only that they are failing, which is much weaker. If the Government set up a body that does not work, the proper course is one of two things: to return to Parliament to introduce something else or, as my amendments propose, to get Parliament to approve the direction. To leave the Bill as it is will effectively give the Secretary of State a Sword of Damocles that he can wield almost whenever he feels like it. For bodies that are operationally independent, or supposedly so, that is simply not appropriate. Those concerns go to the heart of our misgivings on Part 2 of the Bill. I beg to move.


Lord Warner

I hope that I shall continue to sound rational at this time of night, as the noble Earl helpfully suggested. On Amendments Nos. 402 to 406, we have pointed out on a number of occasions that there are no general powers in the Bill to issue directions to either commission because we want to ensure that they are independent from government. A Minister will be able to intervene only in the specific circumstances of either body being judged to be failing in the discharge of any of its functions or under the power that we are discussing here which allows him to issue directions that require the commissions to have regard to matters of government policy. Such a power cannot be used to direct the commission on any specific matter that the Secretary of State chooses. It can be used only to issue a direction on a specific area of policy such as that CHAI and CSCI should not make a profit from any fees that they charge and that they must have regard to general government principles of good accounting in respect of such fees.

In the absence of a general direction-making power, it is essential that the Secretary of State has a power to ensure that proper democratic accountability is maintained. I do not believe that it is unreasonable that CHAI and CSCI should be expected to have regard to the broad health and social care policies of the elected government of the day when carrying out their functions. In contrast to the independent approach that we have taken for CHAI and CSCI, most other NDPBs, such as the Audit Commission, can be directed by Ministers about any matter, so they have been put in a special category. The duty to have regard to Government policy is the same duty as appears in the legislation that established Ofsted. I am sure that the Committee would not regard Ofsted as a body that lacks independence.

Amendment No. 406A seeks to remove the Secretary of State's power to vary or revoke any direction that he has given under this clause. I am sure that noble Lords are aware that this is a standard provision that is attached to any direction-making power. To remove such a provision would be extremely restrictive for the Secretary of State, but such a restriction would not be beneficial to CSCI. It could potentially lead to the inspectorate needing to have regard to an aspect: of government policy that was long out of date, and which no longer reflected the reality of the social care world that it was inspecting. Clearly, that would be wrong.

Amendments Nos. 407 and 408 would place a duty on the Secretary of State to consult Parliament before he issued a direction to either commission. The procedure proposed by the amendments for issuing a direction to Parliament would be time consuming and a bureaucratic and unnecessary waste of parliamentary time. In the extremely unlikely event that either commission failed to carry out its duties, or failed to carry them out properly, it would be important that corrective action could be taken quickly. Let us suppose that because of the pressures of work one of the commissions refused to undertake an investigation into a Climbié case or a Shipman case, would the public think it right that an investigation was held up while we discussed the matter in the House? We think that is not so and that the Secretary of State should have these powers of direction in these rather special circumstances. I suggest that the amendment is withdrawn.

Earl Howe

I should have thought that in the kind of case cited by the Minister—the Victoria Climbié situation—where the inspectorate declined to carry out an investigation there are already separate powers in the Bill which the Government could use. I am not at all certain that these powers of direction are necessary.

The Minister may seek to present these various powers as limited in scope. I do not read them in that way. They are widely drawn. While the Government may have only modest horizons about the use of these powers that might not necessarily apply to a future government who leaf through the Act, as it will be, and find that they have very considerable influence with which to play.

Nevertheless, I can see that the Government are not going to be moved on this issue, which I find a pity, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 403 and 404 not moved.]

Clause 128 agreed to.

Clause 129 [Duty to have regard to government policy: CSCI]:

[Amendments Nos. 405 to 406A not moved.]

Clause 129 agreed to.

Clause 130 [Failure in discharge of functions: CHAI]:

[Amendment No. 407 not moved.]

Clause 130 agreed to.

Clause 131 [Failure in discharge of functions: CSCI]:

[Amendment No. 408 not moved.]

Clause 131 agreed to.

Clauses 132 to 143 agreed to.

Schedule 9 [Part 2: minor and consequential amendments]:

Lord Warner moved Amendments Nos. 408A and 408B:

Page 139, line 1, at end insert—

"Superannuation Act 1972 (c. 11)

4A In Schedule 1 to the Superannuation Act 1972 (kinds of employment in relation to which pension schemes may be made), at the appropriate places in the list of "Other Bodies" insert the following entries—

"The Commission for Healthcare Audit and Inspection.";

"The Commission for Social Care Inspection."

Page 144, line 21, at end insert— "25A In section 55(3)(e)—

  1. (a) for "the Commission" substitute "the CSCI";
  2. (b) for "section 31 or 46 of this Act" substitute "section 31 of this Act or section 86 or 96 of the Health and Social Care (Community Health and Standards) Act 2003".

On Question, amendments agreed to. Schedule 9, as amended, agreed to.

Clause 144 [Interpretation of Part 2]:

[Amendment No. 409 had been withdrawn from the Marshalled List.]

Clause 144 agreed to.

Clause 145 agreed to.

Lord Skelmersdale moved Amendment No. 409A: Before Clause 146, insert the following new clause—

"REGULATIONS UNDER PART 3 regulations may be made under this Part unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House of Parliament.

The noble Lord said: Listening to two days of debate on Part 2 gave me plenty of time to reflect that CHAI is rather inelegantly named because it is, of course, Turkish for the word "tea". We may consider that at the Bill's next stage. Be that as it may, we now turn to something entirely different.

Ever since 1948, insurance claims against motorists resulting in NHS treatment to the plaintiff have given rise to a proportion of the settlement money going to the National Health Service for treatment costs. The basis of that agreement has been changed twice: once in 1989; and again in 1999.

Part 3 of the Bill changes the basis again and extends the scheme for NHS charges from just motor insurance to include both employers' liability, personal liability and, I believe, product liability claims. The 1989 Act need not concern us—at least for the moment; although I note that my noble friend Lord Hunt of Wirral, whom I am delighted has joined us with his expertise, has an interest in it—but the 1999 Act, which the Bill replaces lock, stock and barrel, most certainly does.

When the latter Act was a Bill before your Lordships' House, the noble Lord, Lord Clement-Jones, will perhaps remember asking at Second Reading whether the National Health Service might recoup its costs in cases where personal injury was paid. The then Minister, the noble Lord, Lord Hunt of Kings Heath, replied that the Bill,

"does not provide a mechanism to extend those rights"

—incidentally, those rights were the rights of the NHS to claim money from compensation payments for motor injuries. He continued, rather strangely:

"by stealth".—[Official Report, 2/2/99; col. 1459.]

Those were unfortunate words. In the modern political lexicon, "stealth" is always accompanied by the word "tax".

When a similar point was put to the noble Lord in Committee, the then Minister said: We have acknowledged the commission's suggestion —that is, the one contained in the Law Commission's 1996 paper that proposed that the NHS should recover its costs in all cases of actionable personal injury—

"and we are considering it"'.—[Official Report, 18/2/99; col. 762.]

Four years is a fairly long time for consideration.

My first question is therefore: why now, if not that the Chancellor is scraping every barrel that he can find to fund the NHS without increasing income tax or VAT? Why do we find it buried well into the Bill and, even worse, do we find not one but eight different statutory instruments, subject to annulment, to launch it? Eight negative instruments? If that is not stealth, I do not know what is.

It is true that Members of this House are rather better at picking up negative instruments than are Members of another place, but no one would claim that the system is perfect. I hope that it will be a little better when we have the statutory instrument policy committee that we have been promised next Session. Nonetheless, orders following close on the discussion of a Bill have a better chance of scrutiny.

Unfortunately, that will not happen in this case. The Department of Trade and Industry and the Department for Work and Pensions have been sufficiently alarmed to launch an inquiry into the workings of employers' liability insurance and the premiums paid by employers, which, according to Zurich Insurance, the Association of British Insurers and the British Insurance Brokers Association, have increased on average by between 40 and 60 per cent since as recently as 2002. According to the regulatory impact assessment of the Bill, another 7 to 8 per cent will be added to employers' costs purely as a result of employers' liability.

That leads me to my next question: what figures does the Minister have for personal or product liability? In another place, the Minister of State said that the new scheme will not be brought into effect until after the investigation to which I referred has concluded. What is the prognosis? Are we to wait another four years before it sees the light of day?

In any event, that is why the amendment would make all the amendments proposed by this part of the Bill—not just those commented on adversely by the Delegated Powers and Regulatory Reform Committtee, whose objections I see are acceded to by the Minister in Amendment No. 474A—subject to affirmative resolution. I beg to move.

12.15 a.m.

Lord Clement-Jones

I support the noble Lord, Lord Skelmersdale, in his cogent introduction of the amendment. He mentioned that the Minister of State in the other place said that provisions on NHS costs recovery in the Health and Social Care Bill would not be implemented until the Government's work on employers' liability compulsory insurance was completed. That was in reply to my honourable friend Brian Cotter, the Liberal Democrat small business spokesman.

We feel strongly about the potential additional costs of compensation claims and the fact that at present, in the calculation of scale premiums for employers' liability, there is no ability or sensitivity to distinguish between different track records among the small business community. Much of the inquiry will be about how the insurance industry can get its act together in that respect. The noble Lord said that the Association of British Insurers reckons that the increases will be by as much as 8 per cent. That is a significant potential increase for small businesses.

In the circumstances, it seems peculiar that the Government are persevering with this part of the Bill, when it is contingent to such an extent on further work to be done by the DTI. An affirmative resolution must be required for the regulations provided for in the amendment.

Lord Warner

The noble Lord, Lord Skelmersdale, is clearly revitalised by not having had to participate in Parts 1 and 2 of the Bill. I am sure that I look a little jaded by comparison.

This is not just a stealth tax. On the contrary, it removes from the general taxpayer the burden of meeting some of the costs of treating the victims of another person's negligence and places it on the wrongdoer. Why should a man or woman in the street have to pay for the medical treatment of people injured at work because their employer failed to take adequate steps to protect them? If the proposal constituted stealth tax, the Law Commission participated in it, as it emerged from a Law Commission review quite a long time ago.

In response to the noble Lord's questions about cost, the estimated losses are £75 million for employers' liability and £75 million for public liability. An estimate has not been made for product liability because the numbers are extremely low.

A first-stage report, setting out the findings of the ELCI review, was published on 3rd June. A further report is to be issued in the autumn, so the review has not yet been completed. We are taking steps to include the arrangements in this legislation, but we have indicated that we will not implement it until the outcome of the final review is settled.

Much was made of the issue of affirmative resolution. Amendments Nos. 409A and 475 would make the regulation-making powers in Part 3 subject to the affirmative resolution procedure. Amendment No. 477 would have the same effect for the commencement order for Part 3.

With only one or two exceptions, the regulation-making powers in Part 3 are not new. Rather, they mirror—sometimes word for word—powers that already exist in the Road Traffic (NHS Charges) Act 1999. All regulations made under the terms of that Act are subject to negative resolution procedures.

In most cases, the Government can see no valid reason why regulations made under the Bill—which will be largely concerned with the detailed and technical administration of the scheme—should be treated any differently. I said "in most cases", as there are two possible exceptions. The report on the Bill from the Delegated Powers and Regulatory Reform Committee recommended that the regulation-making powers in Clauses 146(12) and 149(2) should be subject to affirmative procedures.

On Clause 146(12), the Government accept the Committee's view that the powers granted there could be exercised, but the Government are less convinced about Clause 149(2). The Committee has suggested that because the scope of the expanded scheme is so much greater than that of the existing scheme, the powers to set the amounts payable should be subject to affirmative resolution.

In fact, the way in which payments will be established is intended to be no different at all from the way in which it is done now. There will be three simple tariffs. As now, there will be a single, one-off payment for outpatient treatment, however many appointments are needed, and a daily rate payment for inpatient treatment, irrespective of what that treatment actually entails. In addition, because the scheme will allow recovery of ambulance costs, we will also need to establish a new tariff, again a single one-off payment, to cover ambulance journeys. It is definitely not the intention that a wide range of different payments for different treatments or different types of personal injury will be developed. So the scope of these powers and the way that the Government intend to use them, is the same as the corresponding powers that already exist in the Road Traffic (NHS Charges) Act 1999.

Nevertheless, the Government want to be as constructive as possible in their response to the Committee's recommendations. As a result, I have tabled Amendment No. 474A which would make all regulations made under Clause 146(12) subject to affirmative resolution procedures. It would also make the first set of regulations made under Clause 149(2) subject to affirmative resolution procedures, but subsequent regulations subject to the negative procedures. That would give Parliament the opportunity to debate tariff-setting and so forth at the outset and reassure both this House and the other place that the scheme was being appropriately set up.

Amendments Nos. 474A and 474B also give effect to another of the Committee's recommendations by amending Clause 196, which gives the Secretary of State—or in relation to the "Welsh" parts of the Bill, the National Assembly for Wales—the power to make supplementary, incidental and consequential provisions, including provision modifying any Act or subordinate legislation, when such modification is necessary to the supplemental, incidental or consequential provision made. Subsection (c) of government Amendment No. 474A requires any order or regulations made under the Bill that will have the effect of amending or repealing part of any other Act to be subject to affirmative resolution procedures. In the light of those assurances, I hope that the noble Lord will be able to withdraw his amendment.

Lord Skelmersdale

I wonder what the Delegated Powers and Regulatory Reform Committee has got that I have not got. It is quite clear from its report that it did not consider the vital fact that motor insurance is a compulsory insurance whereas the other two are, to a great extent, optional. That is why I have voiced my worries on what will be in the eight sets of regulations.

The noble Lord, Lord Clement-Jones, spoke about the Government putting the cart before the horse. They have certainly done that. At this stage, we are being asked to buy a pig in a poke. By the end of our discussions, I hope to discover just how much of a pig it is. For now, there is no point in pursuing the matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 146 [Liability to pay NHS charges]:

Lord Skelmersdale moved Amendment No. 410:

Page 64, line 18, after "person" insert "otherwise than during or as a consequence of NHS treatment"

The noble Lord said: In moving this amendment, I speak to Amendments Nos. 411 and 413. Amendments Nos. 410 and 411 in the name of the noble Baronesses, Lady Finlay and Lady Barker, and the noble Lord, Lord Clement-Jones, are variations of the same theme. Over the past few days, the Committee has been awash with health professionals, whether clinicians or managers, both paid and unpaid. Every one of them knows that clinical mistakes, even disasters, occur from time to time in the diagnosis and treatment of accidents and the diseases associated with them. In those hopefully rare cases, NHS employees are actionable in law and doctors' liability insurance premiums have risen alarmingly in recent years as we have become a much more litigious society. As drafted, the Bill would make the treatment of a patient in one hospital, say a special hospital, for medical mistakes made in another one, liable to NHS charges.

The only good that that would do would be to push money from one hospital to another. It is a nonsense that the NHS should pay money to itself.

Amendment No. 413 is slightly different but also refers to those bodies outside the NHS who should not be liable to pay. I refer noble Lords to the comments made earlier about the costs of insurance premiums and their increase as a result of the implementation of Part 3. That these extra costs should be borne by not-for-profit organisations, charitable organisations or private sports clubs must surely be wrong in principle. I beg to move.

Lord Clement-Jones

I rise to speak to Amendment No. 411. Subject to the considerations raised in our debate on the previous group of amendments, we generally support the principle of recovering NHS hospital costs incurred treating patients who receive personal injury compensation for an accident. However, extending the scheme to clinical negligence cases could well be counter-productive and liable to set community doctor, primary care doctor and hospital doctor against each other. Under the proposals, a GP working in the NHS who is sued by a patient for a delay in diagnosing a condition that was subsequently picked up by A&E and treated in hospital could be liable to pay tens of thousands of pounds to the hospital. That cannot be the intention of these provisions. The proposals contradict the Kennedy report recommendations on open reporting and are very likely to damage doctor morale. I look forward to hearing what the Minister has to say.

Lord Warner

I would suggest that the NHS is subject to the same health and safety obligations as any other organisation and it cannot be right that it should not be subject to the same penalties if it fails in those obligations. Similarly, the NHS owes a duty of care to the patients, and can and should be brought to task when it fails in that duty of care through negligence. Why should one hospital have to bear the cost of another's failings? The principle is exactly the same for the NHS as for any other compensator. We do not believe that it is inappropriate for one NHS body to have to bear the proper costs of its wrongdoings, even where that means paying NHS charges to another NHS body.

As for general practitioners and other primary care providers, the principle applies just as much. If they have failed to the extent that a patient or anyone else to whom they owe a liability has had to have hospital treatment to put matters right, then how can it be wrong for them, or their insurers, to have to bear the proper cost of their negligence? We recognise, however, that it would be bureaucratic stupidity for a hospital to have to pay NHS charges to itself where it is both compensator and the hospital providing treatment, which is why Schedule 10 explicitly excludes from the scheme compensation payments made in those circumstances.

Turning to private treatment, I find the idea that private practitioners should not have to contribute to the costs to the NHS of putting right their mistakes even more difficult to understand. I am sure that we have all heard stories of treatment at a private hospital that has gone wrong, with the unfortunate patient having to be rushed to the nearest NHS hospital to have the problem put right. Where a successful compensation claim is made in such cases against the private practitioner, surely it must be right that the practitioner, or rather their professional indemnity organisation, should also pay towards the costs incurred by the NHS.

Moving on to Amendment No. 413, I can readily understand the reasoning behind this amendment. Nevertheless, the fact remains that these organisations are responsible for the health and well-being of those who work for them and make use of their facilities. The principle behind the expansion of the NHS costs recovery scheme is to make those who cause injury to others through their own negligence bear the full range of costs of that negligence. That applies equally to the organisations identified in the amendment as to any commercial or other organisation.

Some of those organisations are pretty substantial organisations employing very large numbers of people. In some cases, they have responsibilities also for volunteers who spend time on fundraising activities. I find it difficult to understand how when these bodies have the same obligations as any other organisation they should not also be subject to the same penalties for failing to meet those obligations, which is all that this particular scheme does. There would also be practical difficulties. The Compensation Recovery Unit currently administers the existing road traffic recovery system and the benefits recovery scheme. We envisage that it would also operate the new expanded cost recovery system, acting on behalf of the Secretary of State and Scottish Ministers as it does now.

The amendment would require the unit to identify the body or organisation on whose behalf the compensation payment was being made by the insurer. At present, that is not information which the Compensation Recovery Unit automatically seeks. It would be a significant additional administrative burden for it to have to do so.

12.30 a.m.

Lord Skelmersdale

I elicited more from this group of amendments than I could possibly have expected. Perhaps the Minister will answer me a simple question. What happens now if an ambulance runs over someone and he or she is treated in an NHS hospital?

Lord Warner

The principles that I have enunciated are exactly the same. It depends whether the compensation payment is made in respect of that action. It depends whether it is a separate organisation from the organisation that is treating the injured person.

Lord Skelmersdale

The trouble with attempting to précis is that rather more is read into my words than I intended. Clearly, I meant a situation in which the ambulance service subsequently has to pay—through its insurers—the person that it ran over and that person was treated in an NHS hospital. However, this is not the time of night to get into an argument, although I could pursue this issue quite a long way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral

moved Amendment No. 410A: Page 64, line 18, after "person" insert "as the result of an accident The noble Lord said: It is probably unnecessary for me to repeat my interest, but I shall place on record that I am senior partner of Beachcroft Wansbroughs, a law firm which deals with a great deal of the work that we are now discussing. I hope that I might be able to assist the Minister to improve some of the provisions. It is in that context that I move Amendment No. 410A, which, together with Amendment No. 417A, would insert the words, as the result of an accident". Presently, Clause 146(l)(a), states that, a person makes a compensation payment to or in respect of any other person … in consequence of any injury, whether physical or psychological, suffered by the injured person". The words that I seek to insert— as the result of an accident"— would follow.

The addition of those words is to clarify the intention of the Bill so far as the exclusion of disease claims is concerned. The wording reflects that which has already been adopted and approved by the Civil Procedure Rule Committee in the pre-action protocol relating to occupational diseases. I must tell the Minister that lawyers and insurers alike are concerned at the use of the word "injury" without the qualification which I seek to add. On its own, the word "injury" is not sufficiently clear.

I know that that was the language used in previous legislation. But the legislation concentrated on road traffic accidents where the only likely cause of injury was an accident. As has been discussed in immediate past debates, the Government are now proposing to extend the recoupment provisions to employers' liability and other actions, which makes the risk of misinterpretation much greater. I know that insurers welcome the intention of the Government to exclude occupational disease claims, but I hope that the wording could be clarified so as to remove any uncertainty.

I made the Minister aware of the comments 1 was going to make in moving these two amendments, and he has kindly written some brief words in response. The problem, however, is that the note which I have just received, and which other noble Lords may not have seen, raises more questions than it answers.. In his letter the Minister said: Amendments 410A and 417A would seek to limit the scheme to injuries arising from accidents. A dictionary definition of 'accident' is: 'an event without apparent cause or which is unforeseen'". Unfortunately, some injuries can be foreseen or even intended and we do not want them to be excluded from the scheme.

I suppose that any normal person who wanted to know what a word means would rush to the Oxford English Dictionary, but they forget that such is the legal system in this wonderful country of ours—I do not want to be quixotically chivalrous—that it is founded on the basis of ratio decidendi and stare decisis, which means it does not matter what is set out in the Oxford English Dictionary and that all that matters is what the judiciary has interpreted the words to mean over many years.

I have to tell the Minister that to resort to the dictionary to find out the meaning of "accident" is to ignore, I have calculated, 38 cases in the Judicial Committee of the House of Lords which have concentrated on defining the word "accident". Indeed, there is a whole range of cases which seek to interpret the word in a different way from the words "an accident". While I do not want to labour the point, I hope that the Minister will accept from me that, although the dictionary definition appears to be a rational interpretation, it is certainly not the one set out in the House of Lords case of Fenton v Thorley & Co Ltd in 1903 and Warner v Couchman in 1912. Indeed Halsbury 's Laws of England states that what is defined by this word is not entirely clear.

Turning to "illness" or "injury", personal injury includes any disease, any harm to a person's physical or mental condition, as well as pregnancy. So far as concerns food legislation, injury includes any impairment, whether permanent or temporary.

What I seek the Minister to acknowledge is that we might think about this a little more deeply than the rather brief dismissal in his letter of the points I sought to make, although I am sure that he did so with the best of intentions. Perhaps I may press him at least to reflect on what I have said and, rather than resort to the Oxford English Dictionary, we might resort to a little considered legal opinion before we set in stone the final wording in Clause 146. I beg to move.

Lord Skelmersdale

I said that my noble friend Lord Hunt of Wirral was an expert in this area and he has most certainly just proved that. However, it occurs to me that the words, as the result of an accident", he seeks to insert seem eminently sensible. I hope that the Minister will agree.

Lord Warner

It is with some trepidation that I rise to respond to the amendment, in particular at this time of night. I am sorry I went anywhere near the Oxford English Dictionary and I promise to do better in future.

The definition of "accident" may not cover all the incidents which give rise to injuries. The amendments could have the effect of limiting the types of injury which would attract NHS cost recovery. This could limit the effectiveness of the scheme. The health and safety inspectors might draw attention to shortcomings in particular health and safety issues and no action would be taken. So there was a foreseeable set of circumstances which led to an injury which was not totally unforeseen.

I understand the case law referred to by the noble Lord, but the issues are not quite as straightforward as he suggests. However, I have what I hope he will take as a constructive suggestion, not only on this amendment but on a number of his other amendments. These are very detailed and complex issues in some cases—as the noble Lord said, there is case law on some of them which needs to be explored—and I wonder whether he will accept an invitation to a meeting. I can certainly bring along my lawyers, complete with their reference documents, and departmental officials, and perhaps we can thrash out some of the detailed issues outside the Committee, well before Report stage. I would then write to him confirming the outcome and he would perhaps achieve more satisfaction in that way. The offer is made in a constructive spirit.

Lord Hunt of Wirral

I was not saying the issue was straightforward; I was saying the opposite. I readily accept the Minister's generous offer. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 411 not moved.]

Lord Skelmersdale moved Amendment No. 412:

Page 65, line 4, at end insert "or an ex gratia payment"

The noble Lord said: The Minister has referred to cases where compensation is not paid on the basis of liability. None the less, although it is fairly rare, ex gratia payments are made on occasion where liability is not accepted. Why have the Government excluded them from the scheme—or is the word "voluntarily" on line 7 of the page supposed to include ex gratia payments? I beg to move.

Lord Warner

The Government agree entirely that ex gratia payments should not attract NHS costs where there is no liability or alleged liability for the injury caused, but there is no need for this to be specified on the face of the Bill as the amendment would do.

Clause 146(3) defines a compensation payment as one made by someone who is, or is alleged to be, liable for the injury caused. Dare I say it again? I have checked the definition of "ex gratia" in the dictionary. It states: given as a favour or gratuitously where no legal obligation exists". If a person who is not liable or alleged to be liable for the injury makes a payment gratuitously, that payment cannot meet the definition of a compensation payment and therefore cannot attract NHS charges under the scheme. That is the explanation.

Lord Skelmersdale

It seems I have produced a gratuitous amendment. I am grateful for the Minister's explanation that it is not necessary to make express provision for ex gratia payments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 413 not moved.]

Lord Skelmersdale moved Amendment No. 414:

Page 65, line 12, leave out subsection (6).

The noble Lord said: This is unashamedly a probing amendment. Subsection (6) of the clause qualifies subsection (5) in a rather confusing manner—a matter to which my noble friend Lord Hunt has just referred. Subsection (5) states, in effect, that diseases— asbestosis was cited in another place—do not count. That is absolutely crystal clear.

However, subsection (6) goes on to say, "Hang on a minute. Diseases do count in particular circumstances". If an injury for which compensation is due results subsequently in a disease, it does count. An example might be a head injury where the physical damage is repaired but the patient goes on to get meningitis, which can continue for years and years. That would count as continuing treatment for the head injury and would be subject to continuing NHS charges up to the cap, which, we are told, is likely to be £33,000. We await one of these dreaded orders to tell us how much it will actually be under the new scheme.

Surely to goodness it is not beyond the wit of the draftsmen to ally these two subsections to make the Bill easier to read for the likes of my noble friend and his colleagues in and on the fringes of the industry. At the very least, the Minister should consider Amendment No. 415, which would move up the words "attributable to the injury", prùcised—always a good thing in legislation, pace my noble friend Lord Renton—from further down the page. I beg to move.

12.45 a.m.

Lord Warner

As the noble Lord said, subsections (5) and (6) were inserted into the Bill by the Government in another place in response to concerns expressed by the Opposition as the need to make it explicit on the face of the Bill that compensation payments in respect of diseases, particularly industrial diseases, should not be included in the NHS costs recovery scheme.

These two subsections make it clear that what you might call freestanding diseases are not included in the scheme, but that diseases directly attributable to an injury are. So, for example, a compensation payment made in respect of an industrial disease such as asbestosis would not attract NHS charges under this scheme. However, a compensation payment made to someone who suffers tetanus as a result of a badly broken leg would attract charges, not just for the treatment of the broken leg but also for the treatment of the tetanus. That is the distinction that we are making here.

This seemed a fair and responsible distinction to make. The disease would not have occurred if the injury had not happened, so it is reasonable that the compensator should be held responsible for the cost of treating it. Amendment No. 414 would, in effect, remove this distinction so that no disease, not even those directly resulting from an injury, could be included within the scope of the scheme. This seems manifestly unfair and defeats the underpinning principle of the scheme.

I was not entirely clear what Amendment No. 415 was intended to achieve. Subsection (6) is already worded so as to make it clear that only disease consequent upon an injury is included, so it does not need to be specifically reiterated, as set out in the amendment. It seems to me that these amendments are entirely unnecessary.

Lord Skelmersdale

I cannot have explained myself very well, can I? I am suggesting that the Minister should go back to the draftsmen and reconsider subsections (5) and (6) because I should have thought they could be encapsulated into a single subsection. That was the sole and total purpose of my amendment. They clearly were not meant to be included in the Bill. I am sure that, on reflection, the noble Lord will appreciate it.

Again, there is no point in having an argument at this time of night. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 415 not moved.]

Lord Skelmersdale moved Amendment No. 416:

Page 65, line 19, after second "treatment" insert "carried out within 12 months of the injury for which compensation has been paid"

The noble Lord said: Treatment of injuries, perhaps multiple fractures, or certainly a broken back, can go on for years, sometimes for the rest of a patient's life. Under this clause, as the Minister has so far explained it to us, treatment charges would continue, subject only to the cap.

Let us consider an insured horse rider who has a bad fall, suffers a broken back and becomes a paraplegic. After a period, he or she will go home and, almost invariably, suffer pressure sores, for example. I wonder if the noble Lord has ever seen a bad pressure sore, where the flesh is so eaten away that it has to be cut out, sometimes right down to the bone, over significantly wide areas of the body. Treatment for these would indeed be consequent on injury. It really is not right that an insurance company should be liable for a person's lifetime. Therefore, we have put down this amendment to restrict to 12 months the length of time for which payment is due. I beg to move.

Lord Warner

I do not feel strong enough to trade gruesome experiences at this time of night with the noble Lord.

Clause 149(5)(a) allows for the regulations setting the amounts to be paid under the scheme to include setting a maximum sum payable. That reflects existing powers in the Road Traffic (NHS Charges) Act 1999. The Government have used those powers to set a cap on costs under the road traffic scheme, currently standing at £33,000. That represents roughly 60 days' in-patient treatment using the current daily tariff for such payments under the scheme.

The Government intend to make the same arrangements under the expanded scheme, so that compensators will always know the maximum amount they might have to pay in any particular case. In the vast majority of cases, the liability will be much lower than the cap, because the injured person will not be in hospital for very long, or indeed may not be hospitalised at all.

Noble Lords will appreciate from this that the amendment would, in the more serious cases requiring long-term hospitalisation, make liability much greater not only than is currently the case but also than is currently the Government's intention. That may not be the noble Lord's intention, but it would be the effect of the amendment. We are trying to give certainty to compensators under the scheme.

Lord Skelmersdale

Certainty is all very well, and I appreciate that the Minister is trying. However, the 12 months suggested by the amendment is a very certain period. Saying that the amount due is up to £33,000 is very elastic and does not produce certainty at all. I cannot accept that argument. I wish to test the opinion of the Committee.

12.52 p.m.

On Question, Whether the said amendment (No. 416) shall be agreed to?

Their Lordships divided: Contents, 13; Not-Contents, 42.

Division No 3
Attlee, E. Howe, E.
Barker, B. Hunt of Wirral, L.
Blatch, B. Noakes, B.[Teller]
Onslow, E.
Clement-Jones, L. Roper, L.
Colwyn, L. Skelmersdale, L. [Teller]
Cox, B. Strathclyde, L.
Acton, L. Farrington of Ribbleton, B.
Amos, B. (Lord President) Gilbert, L.
Andrews, B. Golding, B.
Archer of Sandwell, L. Gordon of Strathblane, L.
Bach, L. Grocott, L. [Teller]
Bassam of Brighton, L. Hilton of Eggardon, B.
Brett, L. Hollis of Heigham, B.
Brooke of Alverthorpe, L. Hoyle, L.
Burlison, L. Hughes of Woodside, L.
Campbell-Savours, L. Hunt of Kings Heath, L.
Carter, L. Jones, L.
Chandos, V. Jordan, L.
Crawley, B. McIntosh of Haringey, L.
Davies of Coity, L. McIntosh of Hudnall, B.
Davies of Oldham, L. [Teller] MacKenzie of Culkein, L.
Dean of Thornton-le-Fylde, B. Mitchell, L.
Desai, L. Pendry, L.
Evans of Temple Guiting, L. Plant of Highfield, L.
Randall of St. Budeaux, L. Warner, L.
Sawyer, L. Warwick of Undercliffe, B.
Simon, V. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

1.2 a.m.

Lord Strathclyde

It is now just after one o'clock in the morning. The noble Lord the Government Chief Whip is still in the Committee. Does he realise that we have completed a page and a bit of amendments on the groupings list so far today, and that there is at least three-quarters of a page still to do?

We have an agreement in the House to try to aim for a 10 o'clock cut-off, which has been very difficult to achieve in recent weeks. We all understand why that is. However, it is now likely that we may have to run for another three or four hours. Might the noble Lord consider that we should continue for another hour this evening—that would bring us to four hours beyond the 10 o'clock cut-off—and then complete this Business on Thursday morning? That should give us enough time. It is a reasonable and sensible offer, and fits in entirely with the view taken by many Peers that doing Business at this hour of the morning is not only unreasonable, but not very effective.

Lord Grocott

I suggest that we see how the Committee proceeds. Believe me, I infinitely prefer to do our Business at a different time of day. I do not think it sensible to try to negotiate across the Dispatch Box. As I am here until I switch the lights off and put the cat out, I would be more than happy to have such discussions but, as the noble Lord knows, it is not sensible to try to have them on the Floor of the House.

The Earl of Onslow

Actually, I cannot see why that is not sensible. My noble friend has put forward a perfectly decent suggestion. If there is a bad reason for saying no, say no. Why cannot we all be let into the secret? It is a great myth that we cannot negotiate on the Floor of the House. What is Parliament for except negotiating across its Floors? I spoke earlier about exactly that point. I understand the difficulty that the noble Lord is in, because he and I had a civilised conversation outside where I think he understood me, and I him. The fault is in agreeing to stop at 10 o'clock. It would have been much wiser not to, and then we would have all accepted that occasionally these events are inevitable. They become unacceptable when the rules are that we only play cricket on a cricket pitch, and then suddenly because it is inconvenient to play cricket we have to play football—even though we have reached agreement. If we know that we can play cricket or football that is much fairer.

When one says that we will not go beyond 10 o'clock, half past 10, or 11 o'clock, that is fair enough. But then to go on very late is unreasonable— that has happened not only today but last week as well. I cannot see why the matter cannot be agreed across the Floor of the House. There is no great secret. We are not delving into great affairs of state. There just seems to be a sensible proposal put forward by a sensible man to a sensible man on the other side of the House.

Lord Roper

I believe that the Government Chief Whip has suggested that it would be useful to have further discussions outside the Chamber, and I hope that that suggestion, which seemed a good response to the Leader of the Opposition, is accepted.

[Amendment No. 417A not moved.]

On Question, Whether Clause 146 shall stand part of the Bill?

Lord Skelmersdale

I apologise to the Committee for not having tabled the request. Before we leave Clause 146, the notes on clauses assume that the new scheme will be operated by the Compensation Recovery Unit of the Benefits Agency as heretofore. Before the Health Act 1999 came into force a number of companies were contracted to the NHS to recover from insurance companies the cost of treating road accident victims under the provisions of existing legislation. Those organisations, of which by far the largest was the National Road Traffic Accident Claims Centre—NATRAC—were put summarily out of business without compensation when the 1999 Act came into force. They were obliged to pass to the CRU all their work in progress, again without payment.

Regarding this Bill, has a formal comparative analysis been made of the costs and benefits of a private versus public sector solution? The history of the CRU in that field is not a happy one, although I understand that the teething problems that they experienced initially have now been resolved. For example, I accept that the CRU has introduced a new computer programme to connect to all NHS trusts. But that does not make any difference to my question. Also, have the Government estimated the costs of collection compared to the estimated revenues of the NHS? We know from the notes on clauses and the regulatory impact assessment that about £150 million will be raised for the NHS. That is about half as much again as has been raised now.

Above all, why has the CRU not been benchmarked against private sector bids for cost effectiveness? What is the cost assumed to be for the CRU? Why have we not been informed in the various pieces of paper accompanying the Bill? I understand that the cost now to the CRU is £1.9 million to recover £100 million under the existing road traffic scheme. I ask again: what are the anticipated costs under the new scheme to recover an estimated £150 million?

Lord Warner

I do not have the detailed figures in my head at this time of night and I shall write to the noble Lord. However, I would ask him to accept that the CRU is an established organisation, so the relative costs of expanding it to cover the new scheme are fairly modest compared with the amounts of money that will be generated. I am happy to write to the noble Lord with more chapter and verse to try to reassure him on that matter.

Earl Howe

Was a benchmarking exercise done as regards private versus public sector solutions, or was an executive decision taken to run along with the present system?

Lord Warner

We have an established organisation where the overheads are effectively covered. However, I am not sure that I have in my head the exact answer to the noble Earl's point and 1 will cover it in the letter I promised to write to his noble friend.

Clause 146 agreed to.

Schedule 10 [Recovery of NHS charges: exempted payments]:

Lord Hunt of Wirral moved Amendment No. 417B:

Page 146, line 19, at end insert— "Any payment made direct to a provider of treatment, whether that provider is a health service hospital or other organisation or individual providing treatment."

The noble Lord said: The grouping of Amendments Nos. 417B, 430D and 477ZA would under normal circumstances, were it not almost quarter past one in the morning, have given rise to a wide-ranging debate on rehabilitation. I know that many noble Lords wanted to participate in the debate, but sadly, because of the hour, they will not be able to do so.

Why is rehabilitation so important? It is because there is a genuine wish to try to overcome the serious problems caused to the economy by the rising bill having to be paid by industry for sickness and absence from work. Wearing my hat as president of the All-Party Group on Occupational Health and Safety, I can state that we recently had a report from the Trades Union Congress estimating that the cost of sickness and accidents at work was rising above £17,000 million a year. This is why rehabilitation is such a key issue.

It is also a key issue for the Government. Indeed, several departments have clearly said that rehabilitation is a priority. The Department for Work and Pensions stressed that in considering the future of employers' liability insurance. The Department of Health, in that outstandingly good report from the Chief Medical Officer, Making Amends, has already stressed the need for a wide-ranging policy on rehabilitation. The Treasury has several times indicated that we cannot go on in the way that we are with the rising cost. The Department of Trade and Industry has on a number of occasions demonstrated the need for a greater emphasis on rehabilitation. I know that in this debate many noble Lords would have wanted to stress the fact that at last there are a number of opportunities to do something fundamental about tackling rehabilitation.

Before I come to Amendment No. 477ZA, which seeks to implement one of the proposals that I know the Government are presently considering, perhaps I may deal with the detail of Amendment No. 417B. This amendment would insert into Schedule 10—that is, the list of exempt payments which a compensator can make without having to repay NHS treatment charges—a new item to cover treatment costs paid by the insurer direct. Particularly in the employers' liability field, where, of course, these provisions will take effect for the first time, there are schemes where employers or insurers themselves provide treatment services for anyone who is off work for a certain period of time, whether or not involved in a compensation claim. Therefore, it is clearly right that the Government should seek to encourage employers and their insurers to act in this positive way. Equally, it is right that new legislation should not discourage such measures.

I know from my own experience that under such schemes it is possible that an employer or an insurer will make a payment for treatment well before liability for the accident or the incident has been resolved. Surely it is in everyone's interests that that treatment should be provided so that the employee can get back to work as soon as practicable, where appropriate.

There are some wider issues here, too, which I have shared with the Minister. Those who run our specialist units for severe injuries—that is, spinal and head injuries—tell me that accident victims spend too long in those units, when better provision of treatment and other facilities could get them back into the community rather sooner. That has a knock-on effect on the ability of those units to treat other victims of such injuries. That, in turn, means that the victims find themselves being treated on non-specialist wards and not receiving the same level of care as they could in a specialised unit. With the best will in the world, that will lead to the worst possible outcome for those individuals.

Therefore, I would like to think that payments for rehabilitation treatment could join the list of exempt payments. In practice, the number of cases where such payments are made and where there is then no further compensation is not high. The other important factor is that, under the current version of the Bill, any payment for treatment would trigger liability for NHS charges. That might well cause some companies to pause before making payments for rehabilitation.

The Minister very kindly shared with me his general support for Amendment No. 417B by saying that it is entirely in line with the points made by the Department for Work and Pensions in its review of employers' liability compulsory insurance. But he added: In the sorts of cases we are talking about, it is more than likely that the injured person will have received NHS hospital treatment before they get to the stage of needing physiotherapy or other rehabilitation services".

He continued:

"We would not want to encourage compensators to try to persuade the injured to accept payment of treatment costs instead of a personal compensation payment to which they are fully entitled".

Perhaps I may respectfully say to the Minister that there is no wish on my part, or on the part of any of those to whom I have referred, to persuade the insured to accept some payment on treatment instead of compensation. That is not on the agenda. We are talking about payments made at an early stage to obtain the vital treatment necessary to get people back to work. We want to encourage those payments, even though liability issues have still to be sorted out and may well result in there being no liability at all and therefore no compensation. So it is very different from the description that the Minister has put in his letter to me. I want to see us encouraging insurers to pay for rehabilitation even though liability is not yet determined.

Amendment No. 430D would insert at the end of the provision requiring the Secretary of State to repay money recouped by the relevant NHS trust the words, as the result of accidents to which section 146 applies".

The intention of those words is to ensure that money received by the NHS trust as a consequence of these provisions is used for the supply of services to accident victims as a whole.

Previously I referred to rehabilitation. Surely it is one of the key drivers behind much of government policy that rehabilitation services should be improved and made more available. I would like to see—the Minister has explained to me that it is impossible to ring-fence the money—a greater vision on the part of those formulating policy as to how best to proceed. I shall not press the Minister for a detailed response tonight as it is far too late. I would not want to press him in that direction.

However, Amendment No. 477ZA seeks to repeal Section 2(4) of the Law Reform (Personal Injuries) Act 1948. That section provides that when a court is assessing a case for personal injury damages, no account at all should be made of the availability of treatment and care under the NHS. As a consequence of that section, many seriously injured accident victims are able to claim for the cost of professional care provided outside the NHS when the NHS still has an obligation to provide the necessary treatment. Many of those claimants will purchase such professional care so the money goes where it is intended—I am sure that is the overwhelming majority of cases—but research has shown that damages paid for nursing care are frequently not used for that purpose. Therefore, society is providing double compensation as it has to fund both the necessary insurance premiums and the cost of the National Health Service.

Earlier I referred to the Chief Medical Officer's report, Making Amends. That recommended the repeal of Section 2(4) in clinical negligence cases. I was most interested to read the noble and learned Lord the Lord Chancellor's response to a question from the noble Baroness, Lady Finlay of Llandaff, on 8th September 2003, HL4239, when the Lord Chancellor said:

"The report of the Chief Medical Officer, Making Amends, recommended that Section 2(4) of the Law Reform (Personal Injuries) Act 1948 should be amended so that the costs of future care in any award for clinical negligence made against the National Health Service should no longer reflect the cost of private treatment".

That recommendation is currently the subject of consultation. However, the answer continues, most importantly: The Government intends to consider the implications of the recommendation for personal injury claims generally".— [Official Report, 8/9/03; col. WA 2.]

That opens an opportunity that I hope the Government will take. I have deliberately inserted this proposed amendment in the repeals consequent upon the provisions setting up foundation hospitals. It is hoped that those hospitals will have greater financial and management freedom and, therefore, will be able to look at a range of schemes that could involve the private sector. There must be scope for finding ways to fund better and more effective rehabilitation facilities, certainly in those hospitals, in a way that would involve case managers—I declare an interest as chairman of the Case Management Society of the UK—who would ensure that those suffering injury are provided with the necessary support to bring about an early return to work where appropriate.

So, what I am really saying to the Minister—and I am not pressing him now—is that there is a real opportunity for some joined-up thinking on the part of the Government, rather than to perpetuate this system of seeking to recover comparatively small payments through this very intricate system that often, in many cases, costs just as much to collect as the actual money which is recovered. Surely, we could find a better way to have a really viable private finance initiative, which could join together with private sector finance and the National Health Service itself, in seeking to create far better rehabilitation services within NHS hospitals, so that people, however an injury may have been caused, will be able to get back to work at a much earlier stage. I beg to move.

Lord Warner

I listened with interest to the noble Lord's comments on rehabilitation. Certainly, there is no intention on the part of the Government to do other than to give people access to rehabilitation when they need it and to help them get back to work and health as quickly as possible. I want to put on record one simple sentence just to make matters clear. We do not think it right to allow the compensator to be able to avoid liability for the NHS charges incurred by virtue of agreeing to pay for an injured person's rehabilitation. That is a central point of the Bill.

In the middle of the voting arrangements on the amendment on which there was a vote, I offered to meet the noble Lord and officials and to go through all his amendments, including this one, in as constructive a way as possible, and then to confirm to him after a thorough and detailed discussion before Report where we can and cannot meet his particular concerns. That offer is extended to all his amendments. I hope that that will help the noble Lord and the Committee to make progress today. In that spirit, I shall not go through the detail— particularly as he did not press me—on his particular amendment. But we are happy to have a full discussion outside the Committee.

Baroness Blatch

The noble Lord has made what sounds like a very generous offer. But the Official Report of the debates in this House are not for an "in club"—that is, the Members of this place: they are informative documents for doctors, nurses, all those involved in the health service and other interested bodies, including those who have taken a very serious interest in the Bill. It seems to me that the Government's response to amendments should be part of the Official Report and not simply a system of bypassing the need to debate these amendments in the Chamber. That is why amendments are tabled. There are people who are very interested in the Government's responses. I do not think that it should be left as a way of curtailing discussions today.

Lord Warner

I was trying to make the offer in a way that was helpful to the noble Lord and to Members of the Committee. If the noble Baroness and other Members would like me to go through the seven or eight pages of response, I am happy to. It will of course slow down other noble Lords who wish to discuss other amendments. I was trying to proceed in a way which meets the Committee's needs.

There will be every opportunity—the noble Baronesses are shaking their heads. If they could just listen to what I have to say. I am sure that the noble Lord, Lord Hunt, would not mind this: we would send a copy of the outcome of those discussions to all Members of the Committee. Please may I be allowed to continue? I listened patiently to the noble Baroness when she was speaking. She might do me the same courtesy.

I would actually send that letter to all Members of the Committee who have participated in the discussion. If the noble Lord and other Members were not content with that outcome, there would be nothing to stop them raising matters on Report on particular amendments so that we could discuss them further. However, if it is the wish of the Committee that I work my way through the seven pages, I am happy to do so.

Lord Hunt of Wirral

I am in a slightly difficult position, because I very much agree with my noble friend, but perhaps there is a way through. The Minister has made me a generous offer, which I accept quickly, before he withdraws it. However, perhaps I may do so in this context. Much of what I said about rehabilitation extends right across many provisions in the Bill: seeking to improve facilities in the National Health Service. There will therefore be many noble Lords who will want to participate in further debate on the matter. Perhaps the easiest way through is for me to proceed as the Minister suggested and return to a fuller debate on Report. That may meet my noble friend's point that so many interests are directly affected here. I remind the Minister that it does not affect only the Department of Health: key discussions are underway in the Department for Work and Pensions and the other departments I mentioned on the issue of rehabilitation.

This is not a party political issue. To give an example—perhaps the best one of all—everyone wants someone who has suffered a whiplash injury either at work or in a motor car not just to be sent home to await a GP's appointment and then, possibly, later physiotherapy; but to receive immediate treatment of the highest possible quality at the NHS hospital, so that he can get back to work and be on the road to recovery as quickly as possible.

That example involves a simple, minor accident. So much more important is it that someone who has suffered a serious spinal injury should not have to stay in a hospital bed receiving only one area of specialised treatment but should have a case manager allocated to him, who would make it his business to ensure that that seriously injured individual received the range of specialist advice and treatment that he needed, all combined at an early stage to produce a far better environment in which to return to normal health as quickly as possible.

I hope that in that way I have met the point made by my noble friend and at the same time retained the offer, which I accept, from the Minister. Perhaps we can return to the subject on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 10 agreed to.

1.30 a.m.

Lord Clement-Jones moved Amendment No. 418:

Before Clause 147, insert the following new clause—


Where compensation has been paid through an insurance policy, subject to paragraph 4 of Schedule 10, the insurer will not be liable for payment of NHS costs providing that he has provided the Compensation Recovery Unit with the name and address of the insured."

The noble Lord said: The amendment would meet what might loosely be called the "culprit pays" principle, although if the noble Lord, Lord Hunt, were setting the exams, it would probably be the "tortfeasor pays" principle, which seems to be the Government's implicit driving principle of this part of the Bill allowing for recovery of NHS charges. If the amendment were adopted, the party responsible for causing the harm would have to meet the full economic costs of their failings, rather than them being borne by the many policy-holders and so adding to the inflation of premiums, as under the current proposal.

The Minister's reply set out in his letter was very interesting. However, it is inaccurate to say that the proposal implies that people should be expected to pay potentially thousands of pounds on top of their insurance premiums as a result of an incident for which they considered themselves appropriately insured. It is designed to meet the situation where the insured has received a pay-out from an insurer. I beg to move.

Lord Warner Clause 146(2) is very specific:

"The person making the compensation payment is liable to pay the relevant NHS charges".

There is no provision in the Bill to transfer that liability to the person on whose behalf the compensation payment is made. But if costs cannot be recovered from the insurer who makes the compensation payment, they cannot be recovered from anyone. The amendment would be at odds with the Government's policy in that regard.

Our intention is made explicit in Clause 160, which specifies that where a qualifying compensation payment is made and an insurance policy covers a person's liability in respect of the injury, the policy must be treated as also covering any liability to pay NHS costs. The amendment is not appropriate, given the structure of the Bill. I hope that the noble Lord will reconsider his position.

Lord Clement-Jones

The Minister's answer seems eminently and quite consistently circular, but I am not surprised by it. I will not get any further on this wheel; otherwise, at this time of night, I will feel like a hamster. Nevertheless, I shall consider the Minister's reply and respond appropriately at a further stage in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 147 [Applications for certificates of NHS charges]:

Lord Skelmersdale moved Amendment No. 419:

Page 66, line 17, leave out "may" and insert "must"

The noble Lord said: There has been a lot of chat on the subject of a letter, especially since my noble friend Lord Hunt became involved in our discussion. It would have helped me and, I am sure, other Members of the Committee, to have received such a letter. After all, my name was attached to many of the amendments. I find it strange that I was not sent such a letter.

Lord Warner

The points that I made to the noble Lord, Lord Hunt, were inserted in the letter that I believe I sent to Front-Bench spokesmen and others who have spoken in these debates. If the noble Lord, Lord Skelmersdale, did not receive the letter, I can only apologise.

Baroness Noakes

It might help the noble Lord to know that I did not receive a letter either. I do not know what distribution system his office thinks he operates, but he did not achieve his intended effect.

Lord Warner

We tried to put the letters in Members' pigeonholes. Unless something went seriously wrong, we failed.

Lord Skelmersdale

As my noble friend Lady Blatch said, this is not a useful way of progressing a debate on a very technical subject, although 1 understand readily that that was the Minister's intention. For my part, 1 hope that he will not produce that procedure again.

Amendment No. 419 is rather odd. Instead of our usual "may/shall" discussions, which arise in virtually every Bill that we consider, this is a "may/must" amendment. This is a Government that love dicta. I do not particularly approve, but this is a case where what ought to have happened is vague in the extreme. Lines 16 and 17 of the clause state: Before a person makes a compensation payment in consequence of any injury suffered by an injured person, he may apply for a certificate to the Secretary of State". The repayment scheme simply will not work unless the Secretary of State in either jurisdiction is informed. If he is not, how will he know whether a personal injury claim is successful and compensation will be paid out? It therefore follows that the insurance company must apply for the certificate from the Secretary of State—substitute compensation recovery unit for Secretary of State. Incidentally, the Minister need not be too shy about this because the word "must" is already used in this clause in subsection (7) line 42. It states that, a person who has made a compensation payment in consequence of an injury suffered by an injured person must apply for a certificate to the Secretary of State", if the original one is lost or is no longer in force or for various other reasons. Under those circumstances, a replacement certificate must be applied for but originally it was not. I simply do not understand why. I beg to move.

Lord Warner

Referring to our earlier discussion, I wish to put on the record that I am reliably informed that at 11.30 this morning we placed in the pigeon-holes of all the Front Bench spokesmen a copy of the letter that was discussed. Clearly, something went wrong.

Amendment No. 419 would place a legal requirement on potential compensators to apply for a certificate of NHS charges before any compensation payment has actually been made. Although it may seem logical to encourage compensators to apply for certificates as early as possible in the claim process, it is important to remember that the recovery of NHS charges is secondary to, and dependent on, a successful claim being made. In other words, it is only once a compensation payment has been made that NHS charges can be recovered. It is by no means the case that every personal injury claim made is successful. Some are so manifestly unfounded that it is clear from the outset that they will fail. It seems inappropriately bureaucratic—indeed, a little draconian—to require the person against whom the claim is made to apply for a certificate of NHS charges before it is clear that they will be liable to pay such charges.

That is why subsection (1) of Clause 147 is worded as it is. It allows for compensators to apply for a certificate before the claim is settled if they choose to do so, but does not require them to do so. Of course, it is quite a different matter once a compensation payment has been made. Then the recovery scheme definitely comes into play, and compensators have an obligation to pay any NHS charges identified. It is for that reason that subsections (7) and (8) of Clause 147 place a legal obligation on compensators to apply for a certificate if they have not already done so at the time the claim is settled, or if a previously issued certificate has expired. It places the onus on the compensator to apply for a certificate to the Compensation Recovery Unit (CRU), the body that administers the existing road traffic scheme and that we expect to do the same for the extended scheme.

To remove that obligation, as Amendment No. 420 would do, would create a loophole that would undermine the entire costs recovery scheme. Compensators would quickly realise that it would be impossible for CRU to find out about many claims if they are not told about them—the applications for a certificate are often the first indication that the CRU has that a claim attracting NHS charges has been made. Given that one of the key principles of the scheme is to make the compensator pay the full costs of their negligence, I cannot see how it is unreasonable to require the compensator to inform CRU of the claim. It is common practice in relation to a huge variety of public and indeed private responsibilities. For example, car owners are required to inform the DVLA when they buy or sell their vehicle; it is not for the DVLA to find out about it. The principle is no different for the NHS costs recovery scheme.

Taken together these amendments would move the element of coercion for compensators from the point at which their liability to pay NHS charges is definite to a point at which it may still come to nothing, That does not seem a fair or equitable way to proceed.

1.45 a.m.

Lord Skelmersdale

The noble Lord seems to have made my case for me when he talks about the onus on the compensator. The compensator therefore must apply for a certificate. It seems that the case is totally proven.

Over and above that, the "must" in subsection (8) appears to be an almost straight copy of Section 2(8) of the Road Traffic (NHS Charges) Act. This procedure has been used in respect of that Act. I make the point again that that covered compulsory insurance; this Bill extends to non-compulsory insurance. What happens in cases of uninsured compensation which could be very much greater under this Bill than under anything we have seen heretofore, certainly than under the RTA procedures where insurance is compulsory by law? That provokes me to ask a question that I should have asked perhaps right at the beginning—whether the new scheme will apply to uninsured individuals or not?

Lord Warner

The scheme makes clear that there has to be a compensation payment by a compensator before there can be any recovery of NHS charges. If a person has no capacity to seek an insurance payment then it would be jolly difficult for the compensator to be made responsible for those NHS charges.

Lord Skelmersdale

One could argue that the individual in question is a self-compensator, for want of a better expression. However, I do not think that I want to pursue that any more. The noble Lord has given me a comprehensive but not totally readily explicable explanation. I shall have to read very carefully what he said before deciding how to proceed. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 420 not moved.]

Clause 147 agreed to.

Clause 148 [Section 147: supplementary]:

Lord Skelmersdale moved Amendment No. 421:

Page 67, line 26, leave out subsection (2).

The noble Lord said: I tabled this amendment again rather than have a clause stand part debate. I would assume that subsection (2) covers cases where a certificate is applied for in England when it should have been applied for in Scotland and vice versa. It seems to me that that is bureaucracy gone mad, resulting in a totally unnecessary paper chase. Who issues the certificate is neither here nor there; what matters is where the money goes. What about a case where an English or Welsh visitor goes to a Scottish National Trust property in the Borders and has an accident, claims against the insurance policy, is accepted and is treated in, say, a Durham hospital? The insurance company applies to the Scottish Minister for a certificate. The money goes to the Scottish Ministers. They will have to establish from the Durham hospital and perhaps the Scottish ambulance how much the cost was, particularly whether it was below the ceiling, and then remit it to the hospital and ambulance authority concerned. What a paper chase.

Why cannot a certificate be issued by either the Secretary of State—that is, the Compensation Recovery Unit in England—or the Scottish authorities? Those would receive the money and dole it out to the appropriate health function in either jurisdiction as is specified in Clause 158. An awful fuss seems to be made in the Bill as to who issues the certificate rather than what really matters, which is who gets the money and where does it end up. I beg to move.

Lord Warner

Subsections (1) and (2) of Clause 147 work in tandem to deal with a very specific situation; that is, where an application for a certificate has been made under one of the recovery schemes, but it appears that any payment may be due under another scheme. For example, where an application is made to the England and Wales scheme, but treatment was received in a Scottish hospital or vice versa. Subsection (2) allows, indeed requires, the application to be referred to the appropriate scheme and to be treated as though it had been made originally to that scheme. This reflects the arrangements in the current road traffic scheme, which operate without any difficulty.

Although the provisions in the Bill set up two separate schemes—one for England and Wales and another for Scotland—in order to meet the requirements of devolution, in practice, the Government intend that the two schemes be administered by the Compensation Recovery Unit (CRU), which currently operates the road traffic schemes on behalf of the Secretary of State and the Scottish Ministers.

Omitting subsection (2) would create a bureaucratic stupidity that would cause unnecessary inconvenience for compensators and administrative difficulties for the Compensation Recovery Unit. Instead of, as now, officers working on Scottish cases being able to transfer information about an application to colleagues dealing with English and Welsh cases as considered appropriate, they will have to inform the compensator that they appear to have applied to the wrong scheme and to ask them to apply directly to the right one.

Not only will there be a delay in issuing the certificate, but both the compensator and the CRU will be involved in unnecessary paperwork, all because the staff at the CRU are unable to talk to each other about claims under the different schemes. It is to avoid that kind of bureaucratic nonsense that subsection (2) does not allow information to be passed from one scheme to the other, but actually makes it a requirement to do so.

Lord Skelmersdale

I do not know who advised the Minister to produce that answer, but clearly whoever it was has not read behind the amendment but has taken my leaving out subsection (2) as gospel and my ultimate intention, which, as I explained in my opening remarks, it was not. However, I do not think that we shall get any further tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 148 agreed to.

Clause 149 [Information contained in certificates]:

Lord Skelmersdale moved Amendment No. 422:

Page 68, line 17, at end insert— "( ) A certificate must specify the rights of the person to whom it is issued to have the certificate reviewed under section 152 or to appeal under sections 153 to 155."

The noble Lord said: Amendment No. 422, which states,

"Page 68, line 17, at end insert—"

might be better encompassed, I must confess, in subsection (5). Be that as it may, I trust that I can have a commitment that a standard part of the certificate will tell the recipient of his rights, especially of appeal, and obligations in respect of NHS charges. That is important at the beginning of the scheme anyway for insurance companies that have never offered motor insurance and, permanently, where individuals—as I think we have just established—in rare cases are sent the certificates. I beg to move.

Lord Warner

It is already the case that this information is included on every certificate issued in respect of the existing road traffic scheme. I can also offer the noble Lord the same assurances that it is fully intended that the new certificate for the extended scheme will also include information on review and appeal procedures. Indeed, the early design work on the certificate already does so.

Lord Skelmersdale

For the first time in my discussions on this part of the Bill, I accept the words that the Minister uttered with glee, happiness and appropriate respect, for which I thank him. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 423 had been withdrawn from the Marshalled List.]

Lord Hunt of Wirral moved Amendment No. 423A:

Page 68, line 31, leave out from "which" to end of line 32 and insert "the parties to an action either commenced or contemplated before a court in England and Wales or Northern Ireland have reached an agreement in writing"

The noble Lord said: Amendment No. 423A is intended, along with a similar amendment to Clause 152, to enable the procedures set up to be followed without the necessity of a court order. The point I seek to make most strongly in reference to the amendment is that the vast majority of claims settle without the need for court proceedings, and the current proposal to limit adjustment to those cases where the court has made an order risks either the growth of litigation for a satellite purpose or fails to achieve the desired objective of adjustment.

As the Minister pointed out to me in his letter, to which I shall refer shortly, the present wording in the Bill does not require a formal decision of the court, but it does require a consent order. When I made the Minister aware of my concerns by sending him a copy of my speaking notes—no doubt we shall discuss this in more detail, but I felt that I had to put on the record the arguments on either side; it may be that there is insufficient time to go over this matter again on Report—he responded by stating that:

"I understand the argument that by requiring formal endorsement of the agreement through a court process we may encourage compensators to take a case to court that they might otherwise settle informally. But in actual fact, a compensator would not need to go through a full court hearing to get an agreed order which would meet the requirements of clause 149(3)(d), and could be used for the purposes of calculating NHS costs".

The main point I wish to make to the Minister is that we have moved on in civil litigation as a result of the reforms introduced by successive Lord Chancellors. There has been a wish to see matters of this nature settled without the need for court proceedings. Indeed, we now have wide-ranging pre-action protocols which are designed to ensure that matters can be resolved without the expense of court proceedings at any stage.

There is also an element of encouragement on the part of the Government towards what is known as ADR, alternative dispute resolution. I hope, therefore, that the Minister would accept that by requiring there to be court proceedings, the department in which he is a Minister is moving in precisely the opposite direction from that of the Department for Constitutional Affairs and the reforms of successive Lord Chancellors. Surely there must be a way to reach an agreement—and I am not talking about something on the back of an envelope—of the kind that is reached in the overwhelming majority of cases so that the expense of involving the court is not required at any stage.

My final question to the Minister is that, in the alternative dispute resolution procedure, a mediator is often involved. That mediator sets out the agreement which has been reached between the parties and the whole purpose of the alternative dispute procedure is to avoid court proceedings. Is the Minister really suggesting that all that should be swept aside and, in order for this provision to operate, there has to be a consent order? You cannot have a consent order without proceedings having been commenced, and therefore after the alternative dispute resolution procedure had been followed, we would then have to go through the very procedure that ADR is designed to avoid; namely, court proceedings. I beg to move.

2 a.m.2

Lord Warner

This is a complex issue and the Government thought long and hard about the best way to deal with it. The Department of Health certainly does not intend unnecessarily to push cases through the civil courts. We decided eventually that only where the decision on the extent of contributory negligence had been formally considered through one of the processes identified in the Bill should it be possible to reduce the amount of NHS costs payable.

The important point is to ensure that all the relevant issues have been properly considered in an appropriate forum, or where contributory negligence is specified in an agreed judgment or order, so that the rights and responsibilities of both sides are protected. Often the kind of agreement suggested by the noble Lord can be, with great respect, little more than a back-of-the-envelope agreement which we could not be sure had fully taken into account all the issues.

I understand the argument that by requiring formal endorsement of the agreement through a court process we may encourage compensators to take a case to court that they might otherwise settle more informally and more quickly. However, it is not an argument which the Government fully accept.

For a start, the compensator does not need to go through a full court hearing to get an agreed order which would meet the requirements of Clause 149(3)(d) and could be used for the purposes of calculating NHS costs. That is certainly the legal advice I have received. Furthermore, in many cases it will not be worthwhile for a compensator to push a case to court solely in order to get a contributory negligence ruling for the purposes of NHS costs recovery. Even if the costs due have reached the cap, the costs attached to running the case may well exceed what might be saved in NHS costs recovery. So there are some constraints there.

I include this issue in the areas that I am very happy to discuss in detail with the noble Lord. In view of earlier comments, however, I thought that I should put the Government's current position on the record. I shall be happy to discuss the matter in more detail with the noble Lord when we meet.

Lord Skelmersdale

Before my noble friend decides what to do with the amendment, I recall that the issue of contributory negligence was the cause of a long battle on the 1989 Bill. The then government were planning on, and succeeded in, dropping it from the 1948 compromise in the previous Parliament, and no mention that I can find was made in the Bill which became the 1999 Act. Why have we suddenly got it now?

Lord Warner

I was otherwise engaged when that earlier legislation was going through and so I will have to look back at the arguments. I have set out the Government's position. If I can do anything more to clarify matters for the noble Lord, I shall write to him.

Lord Hunt of Wirral

In reply to my noble friend, I have always felt that it was an anomaly in the recoupment of NHS charges and benefits to require insurers to pay the full sum irrespective of any deduction for contributory negligence. That is where the Minister and I are in agreement. I greatly regret that I have to disagree with my noble friend.

The Minister used the phrase "back of the envelope" even though I had cautioned him against doing so. But the overwhelming majority of claims are now settled by agreement without the need for court proceedings. The whole purpose of the civil justice reforms and the pre-action protocols was to introduce a system whereby the expense of the nation was spared; where you did not have to commence proceedings but could reach agreement.

The present Lord Chief Justice, previously the Master of the Rolls, the noble and learned Lord, Lord Woolf, did the nation a great service when he removed from the courts the burden of having to commence court proceedings by setting down the procedures in pre-action protocols. This is not a back-of-the-envelope solution; it ensures that the nation does not have to bear the costs of court proceedings in a whole range of cases.

ADR—alternative dispute resolution—is certainly no back-of-the-envelope system. The mediator reaches a solution which often involves give and take—otherwise you would not need a mediator. In cases where people blame each other or there is a whole sequence of events which point the finger at the injured person as having been at least partially to blame for what occurred, the mediator comes in and reaches some kind of agreement.

The whole purpose of ADR is to be alternative— it is alternative dispute resolution. Alternative to what? To the court. But the Minister is trying to tell us that that is all "back of the envelope" stuff. Even though it is a tried and tested procedure, encouraged by the Department for Constitutional Affairs, it is to be regarded as inferior, although the whole panoply of civil justice reforms has been to demonstrate to those who are claiming compensation that it is not necessary to go through the court proceedings. You can reach an agreement which is cost-effective and good value for money for everyone concerned without having to commence court proceedings.

Again, the Minister has enticed me and tempted me into having further discussions. How could I refuse such an offer? I hope I have been able to persuade him, however, that there is surely a solution whereby non-back of the envelope settlements could be included in some way. That is not to try to introduce some inferior procedure but to recognise that the whole drift of civil justice reforms has been in the direction of enabling parties to reach settlement without taking up the time of the court. But in view of what the Minister has said, I welcome the opportunity of some further discussions and, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 423B:

Page 70. line 5, at end insert— "( ) Regulations may provide that where—
  1. (a) a person has made one or more payments to the Secretary of State under section 146, and
  2. (b) in consequence of a review or appeal, it appears that the amount paid is more than the amount that ought to have been paid,
the difference must be repaid by such person or persons as may be described."

The noble Lord said: This amendment seeks to insert a provision that appeared in the 1999 Act but is less clear in this Bill. Where a certificate is reviewed or appealed, it is entirely possible that the amount shown on the certificate as due will be reduced. An appeal is almost certain to take place after a compensator has paid the treatment charges owing, and it is possible that a review may also take place after payment. The 1999 Act contained power to make regulations requiring the refund of any overpayment. That provision is absent from the Bill.

The Minister has kindly written to me saying that he recognises that Amendment No. 423B would make explicit on the face of the Bill that if it is established that a compensator has paid more than they were liable for, there is an obligation on whoever has received that payment to refund the excess. He concedes that that is only right and proper. Clause 149(5)(f) ensures that processes can be set up to protect compensators in this respect.

As with the existing road traffic scheme, it is intended that arrangements for dealing with overpayments by compensators will be set out in regulations.

The Minister pointed out that Clause 158(2) prohibits both the Secretary of State and the Scottish Ministers from issuing to NHS bodies any moneys which have been identified as being repayable to the compensator. The regulations, he assures me, will deal with both those cases and cases in which the money has already been forwarded to the relevant NHS trust before the overpayment is identified. That is why the Minister sees no need to make the obligation any more explicit on the face of the Bill.

That is very helpful and I am grateful to the Minister for confirming that the regulations will deal with this point. When does he intend that the draft regulations will be available so that we can scrutinise them? In particular, as they will deal with a requirement—the non-appearance of which has troubled me—it would be helpful if I could see at least the draft of how it is proposed to deal with that in the regulations. But I am very grateful to the Minister for having given me the response he has already given. In that context, I beg to move.

Lord Warner

The noble Lord has done a good job at accurately setting out my case for why we do not believe it necessary to add Amendment No. 423B to the Bill. I shall not go over the ground again, other than to accept that he has put our position accurately and assure him that we will produce the draft regulations as soon as we can after Royal Assent. We shall not be introducing the scheme until after the outcome of the review has been made known.

The noble Lord did not speak to Amendment No. 430A, which allows NHS costs to be recovered only on final payment of compensation. That would prevent any interim payments of compensation, triggering the payment of NHS costs. The existing road traffic recovery scheme allows recovery of NHS costs following interim payments. The arrangement works well. We propose to make the same arrangements in relation to the extended scheme.

Lord Hunt of Wirral

I am very grateful to the Minister. I did not deal with Amendment No. 430A because he has already indicated that overpayments will be repaid in individual cases. I am happy with that, but it would be of great assistance if those parts of the regulations that are in draft at present could be shared with those of us who are concerned about the matter so that we can check that the point is properly covered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 423C:

Page 70, line 16, at end insert— "( ) Before making any regulations under subsection (2), the Secretary of State shall consult with such persons as he thinks appropriate."

The noble Lord said: The amendment would insert a duty for the Secretary of State to consult before making regulations. Regulations under subsection (2) cover a number of different aspects. By virtue of subsection (5), the regulations may, in particular, provide for a cap on the amount or aggregate amount to be repaid for set amounts for different circumstances. The regulations under the 1999 Act provided for both a cap and a daily rate for out-patient and in-patient treatment. Those provisions worked well, and I would welcome an assurance that such provision is likely to continue.

The then Secretary of State gave a commitment to Parliament that, before the overall cap was raised, he would consult with such persons as he thought appropriate, including in particular the insurance industry, which has to meet the bulk of the claims.

The Minister wrote to me about the amendment, using a wonderful phrase. He said: It goes without saying that the regulations setting out the operational framework for the extended scheme will not, indeed could not, be developed without proper consultation".

I am afraid that "without saying" is an inappropriate phrase. I refer the Government to the very fast action of the Minister's predecessor, the noble Lord, Lord Hunt of Kings Heath. It is good to see him in his place, where he has been sitting virtually throughout the proceedings of the Bill.

When the Government introduced the Road Traffic (NHS Charges) (Amendment) Regulations, I pointed out to the noble Lord, Lord Hunt of Kings Heath, that there had been no consultation at all. As soon as the noble Lord heard that, he immediately revoked the regulations. I warmly applauded the way in which he did that. As soon as he became aware that there had been a commitment to consult, and, indeed, that the consultation had through some oversight not occurred—which I do not think was anything to do with the then Minister—he revoked the regulations because of the failure to consult. I refer the Minister to parliamentary Answer PQ5042/2001–02 given on 6th February 2002 when those regulations were revoked because of the failure to consult.

When the Minister now says that it goes without saying that these regulations could never be introduced without consultation, will he forgive me if I have a little doubt that somewhere in the great processes of his department there might be a mistake made and a failure to consult repeated? I hope that in these circumstances he will understand why I am pressing my Amendment No. 423C regarding a duty to consult.

I suppose in a way we are just learning from past experience. I do not ascribe any blame to anyone for what happened. Indeed, I pay tribute to the integrity of the Minister's predecessor in moving so swiftly to put things right. If there is not a duty to consult, consultation is somehow bypassed or omitted. I hope the Minister will recognise that the amendment I put forward could not be worded better from his point of view. It states: Before making any regulations … the Secretary of State shall consult with such persons as he thinks appropriate".

What could be nicer than for a person on the Opposition Benches to give the Minister the final choice in the matter? It is probably because I have confidence that he, in the tradition of his department, would consult with the most appropriate people. In order to tempt him to accept the amendment—which I hope that he might do even at 2.17 in the morning— I have worded it so widely that I do not think even a reluctant Minister could fail to appreciate that I am giving him an olive branch which I hope he will now accept. I beg to move.

2.15 a.m.

Lord Skelmersdale

Of all the words I might use to describe the Minister, "erroneous" most certainly is not one of them. My noble friend Lord Hunt of Wirral has my full support on the matter. If the Minister insists on negative regulations—we shall see if he gets away with that—consultation before, for example, resetting the cap or the daily inpatient or outpatient rates, is absolutely essential. As my noble friend pointed out, this is a lacuna in the current legislation that we are considering which did not appear in the 1999 Act.

Lord Warner

Even though our intention is to make the scheme work in the same way as the existing road traffic scheme, we still need to ensure that those who will be affected by the scheme, and those who will operate it, have a proper say in how it is set up. I am grateful for the generous remarks of the noble Lord, Lord Hunt of Wirral, about the Secretary of State and my department. I am not sure that Members of his Front Bench were always quite as trusting of the Secretary of State as he was.

Furthermore, as was already debated in our consideration of Amendment No. 474A, your Lordships' House together with the other place will have an opportunity to discuss the first set of regulations made under Clause 149(2). I am afraid that I am not convinced that that needs to be specified in the Bill. I also point out to the noble Lord that, as drafted, the amendment would create an anomaly in that the Secretary of State would be required to consult, but Scottish Ministers would not. For those reasons, the Government are not inclined to support the amendment.

Lord Hunt of Wirral

Against the background that I am now very willing to bring forward a further amendment on Report to place a similar obligation on Scottish Ministers, I beseech the Minister to rethink the matter. If I am disposed to meet his final point— to make sure that there is no anomaly and that the duty applies to both the Secretary of State and the Scottish Minister—I hope that he might agree that the Bill ought to contain a duty to consult, particularly bearing in mind the previous occasion.

The matter is of great importance, and it would be too late for consultation to take place once the regulations were laid. It is all well and good to say that there will be an affirmative resolution procedure, but the regulations are either accepted or not. They cannot be amended. The whole purpose of consultation is to check carefully through the detail of the regulations before they are laid. The Minister does not appear to be rising to his feet to say that he is now persuaded—

Lord Warner

I tried to make it clear that the first set of regulations would be subject to the affirmative resolution procedures, so there would be an opportunity for people to debate the matter in both Houses of Parliament. However, in view of the concerns, the lateness of the hour and the charm with which the noble Lord makes his point, I shall be happy to take the matter away, discuss it with him and report our further consideration on Report.

Lord Hunt of Wirral

The Minister places me in a very difficult position. I had just girded myself up to test the opinion of the Committee, even at this late hour. I find that very difficult, so I really must accept his olive branch. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 149 agreed to.

Clause 150 [Payment of NHS charges]:

Lord Skelmersdale moved Amendment No. 424:

Page 70, line 24, leave out "14" and insert "30"

The noble Lord said: Yet again, the Bill relies on procedures under the 1999 Act where settlement of the payment must be made within 14 days. In answer to a similar amendment in another place, it was stated that 90 per cent of motor charge certificates are applied for in advance of settlement, and that 14 days has posed no problem. Bully for that. The amendment does not cover them, but refers only to certificates issued after the settlement date. Those would apply principally to certificates sent to individuals who may—let us hope— see only one in their whole lifetime.

Some insurance companies have long been used to dealing with the bureaucracy of the NHS, but new insurance companies will now be brought into the fold that will not be. It is only right that a little more time is allowed, and that 14 days should be extended to 30. I beg to move.

Lord Warner

Where the certificate of charges has been issued in advance of the personal injury claim being settled and the compensation claim paid, compensators may have had weeks or even months of notice of how much they will need to pay in NHS charges. Giving them 14 days to do so does not seem unreasonable. Similarly, if someone applies for a certificate after making the compensation payment, they will know that they are likely to have to pay charges and can make the necessary preparations to do so. There is no evidence from the existing road traffic scheme that those time scales are unreasonable or unmanageable. We are not persuaded to extend this date for the reasons that I have given.

Lord Skelmersdale

Oh dear. I have already said that the amendment has nothing to do with certificates that are applied for in advance of settlement. In those circumstances I accepted originally that 14 days posed no problem. However, as I pointed out, the amendment is intended to cover those cases where the certificate is applied for after the settlement payment is made. The Minister is being unreasonable. The Committee will remember that in a Parliamentary Question on Tuesday last week we were reminded that companies are allowed to claim interest on payment of debt after 30, not 14, days. In those circumstances, unless the Minister comes back to me, I think that I ought to ask him to think again.

Lord Warner

I have nothing to add to my previous remarks.

Lord Skelmersdale

In that case I must test the opinion of the Committee as to whether 14 or 30 days is most appropriate.

2.26 a.m.

On Question, Whether the said amendment (No. 424) shall be agreed to?

Their Lordships divided: Contents, 11; Not-Contents, 41.

Division No.4
Attlee, E. [Teller] Howe, E.
Barker, B. Hunt of Wirral, L.
Noakes, B. Blatch, B.
Roper, L.
Clement-Jones, L. Skelmersdale, L. [Teller]
Colwyn, L. Strathclyde, L.
Acton, L. Gordon of Strathblane, L.
Amos, B. (Lord President) Grocott, L. [Teller]
Andrews, B. Hollis of Heigham, B.
Archer of Sandwell, L. Hoyle, L.
Bach, L. Hughes of Woodside, L.
Bassam of Brighton, L. Hunt of Kings Heath, L.
Brett, L. Jones, L.
Brooke of Alverthorpe, L. Jordan, L.
Burlison, L. Mclntosh of Haringey, L.
Campbell-Savours, L. McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Carter, L. Mitchell, L.
Chandos, V. Pendry, L.
Crawley, B. Plant of Highfield, L.
Davies of Coity, L. Randall of St.Budeaux, L.
Davies of Oldham, L.[Teller] Sawyer L
Dean of Thornton-le-Fylde, B. Simon, V.
Desai. L. Warner, L.
Evans of Temple Guiting, L. Warwick of Undercliffe, B.
Farrington of Ribbleton, B. Whitty, L.
Golding, B. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

2.36 a.m.

[Amendments Nos. 425 to 430 had been withdrawn from the Marshalled List.]

[Amendment No. 430A not moved.]

Clause 150 agreed to.

Clause 151 agreed to.

Clause 152 [Review of certificates]:

[Amendment No. 430B not moved.]

Lord Hunt of Wirral moved Amendment No. 430C:

Page 73, line 11, at end insert— "( ) But the Secretary of State may not vary a certificate so as to increase the total amount specified unless it appears to him that that variation is required as a result of his having been supplied with incorrect or insufficient information by the applicant for the certificate."

The noble Lord said: This amendment brings into the Bill a provision contained in the 1999 Act. However, I cannot see it being preserved in the current Bill and the Minister has now confirmed that to me.

The Secretary of State has the power to review certificates in certain specified circumstances. Naturally, an aggrieved party who asks the Secretary of State for a review is likely to ask for a review downwards. The 1999 Act provided that the Secretary of State could vary a valid certificate upwards only in very limited circumstances— essentially where the Secretary of State had been misled by the parties on the requisite details.

I believe that that was an entirely appropriate provision in the 1999 Act. Essentially it meant that responsibility for errors in certificates rested with the Secretary of State unless the error was caused by one of the parties. I really could not see why that provision had been omitted. That is why Amendment No. 430C would insert in Clause 152 on page 73, line 11, a new subsection (4)(d) in the following terms: But the Secretary of State may not vary a certificate so as to increase the total amount specified unless it appears to him that that variation is required as a result of his having been supplied with incorrect or insufficient information by the applicant for the certificate".

As I indicated, the Minister has already responded to me by confirming that the wording that I want to insert into the Bill is the provision currently contained in Section 6(3) of the Road Traffic (NHS Charges) Act 1999. As I have just outlined, the effect would be that underpayments by compensators could be put right only where they were the result of incorrect or inadequate information having been supplied to the administrators of the scheme. Underpayments resulting from clerical or administrative errors could not be put right unless the compensator chose to do so.

That is the Minister's response. In his letter to me he points out that the amounts lost under the current scheme due to errors are very small. But while it may not be much in the overall scheme of things, the Minister has pointed out that it can sometimes be far more significant for an individual trust that could potentially lose a five-figure sum. He concludes: It is for that reason that the Government decided not to perpetuate the situation that pertains in the road traffic scheme in this respect".

I respond by saying that if there are errors and omissions that are not due to the parties that have provided the requisite details, but are due to some error within the Minister's own responsibility, I believe that the Minister should be constrained in the way that I have suggested in the amendment.

If one cannot rely on a certificate from the Department for Work and Pensions, that undermines the whole system. Without my amendment, the Bill would state that the Secretary of State could just issue a certificate at any time. That will create uncertainty. Surely, the Minister could rethink this point and recognise that if there are clerical or administrative errors wholly due to his own department—the Department for Work and Pensions—they should not be laid at the door of the parties and prevent them in the way that I have described. I hope that he will reconsider this matter and accept the amendment. I beg to move.

Lord Warner

I do not believe that we could accept the amendment as drafted even if we wanted to because it does not mention Scottish Ministers. It would mean that underpayments in England and Wales due to clerical error could not be recovered, but that similar payments in the Scottish scheme could. Having said that, I understand the arguments that the noble Lord makes. I am happy to agree to re-examine the issue. I make no commitment but the noble Lord and I shall cover this in discussions with colleagues and we shall see whether we can move forward on that issue.

Lord Skelmersdale

We have had six days of debate on this. How long does the Minister anticipate that the discussions will last?

Lord Warner

I have said that 1 would meet the noble Lord to discuss with him a variety of his amendments, particularly those on which he has some detailed concerns. I am simply sweeping up this matter into those discussions. At the same time I am saying to the House that we shall re-examine the issue and return to the matter on Report.

Baroness Blatch

The Minister is being very generous in his offer of meetings. I know that my noble friend Lord Hunt will welcome and appreciate that. I need to remind the noble Lord that only two days have been allocated for Report stage. With the number of matters that are now subject to meetings, and which will give rise to more debates on Report, I hope that there will be a more generous allocation of time for discussion on Report.

Lord Warner

That is a matter for the usual channels. I would not rule out the fact that what we have to say may be so persuasive that there may be no problems when we come to Report.

Lord Hunt of Wirral

I do not know quite what to say. I have had so many generous offers. The only offer that the Minister has not yet made to me is office space within his department. He is now offering it. I am reminded of the words of Viola in Twelfth Night when she said, Make me a willow cabin at your gate". I shall not pursue this matter at a quarter to three in the morning. Once again I say that I am grateful to the Minister. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 152 agreed to.

2.45 a.m.

Clauses 153 to 157 agreed to.

Clause 158 [Payment of NHS charges to hospitals or ambulance trusts]:

[Amendment No. 430D not moved.]

Clause 158 agreed to.

Clause 159 agreed to.

Clause 160 [Liability of insurers]:

On Question, Whether Clause 160 shall stand part of the Bill?

Lord Hunt of Wirral

Clause 60, which deals with the liability of insurers, is a new provision and, as far as 1 can tell, it did not feature in the 1999 legislation. I am not certain what prompted the Government to seek to include this provision for the first time for four years. It may be—I speculated to the Minister— that the Government were concerned about limits of indemnity on certain types of insurance policy, which of course would not be a feature in road accident cases.

If that were the Government's concern, I mentioned to the Minister that I would welcome confirmation that regulations to be made under this clause would not cause insurers to have to pay out in excess of the limits under their policies. I appreciate that this might mean a deduction from the damages that a claimant might otherwise receive, but 1 sense that insurers were understandably anxious that they should not be exposed to greater liability than policy limits provide.

In response, the Minister stated in a letter to me: Where a liability to pay compensation is coveted by insurance, it is our [the Government's] view that the corresponding liability to pay NHS charges should also be covered by the insurance policy. Clause 160 supplements clause 146(2) which makes it clear that liability to pay NHS costs falls upon 'the person making the compensation payment". There is no provision to transfer that liability to a third party". The noble Lord explained that, Clause 160 ensures that this liability to pay NHS costs is made absolutely explicit". The Minister went on to explain that the, requirement was not necessary under the road traffic scheme which was concerned only with cases covered by compulsory motor insurance or its equivalent". He felt that Clause 160, reflects the fact that all kinds of personal injury will now be included in the scheme regardless of the insurance position, and that they may be covered by different types of insurance". The Minister, however, stressed that, the clause also enables regulations to be made to limit an insurer's liability in some circumstances. This might include ... enabling a reduction in the NHS costs payable in cases where an insurer has only covered a proportion of the total compensation clue as a result of a cap on the amount payable under the insurance policy". I am very grateful to the Minister for his explanation, which goes some way to satisfying me. I am very grateful to him for giving me the opportunity of his reply in advance of this debate. I hope that I have set out his position as clearly as I can in my speech on Clause 160 stand part. Of course I should like to see more detail, and I recognise that he has already explained that his offer for further discussions includes this aspect. I readily accept that and am very pleased that he should have made that offer.

Lord Skelmersdale

If my noble friend Lord Hunt's explanation of the Minister's view is correct, does that mean that individuals are encouraged to insure up to the £33,000 cap? If so, the cost to individuals will rise exponentially.

Lord Warner

The outline of the Government's position given by the noble Lord, Lord Hunt, was completely accurate and I have nothing to add to it. I cannot prejudge the question posed by the noble Lord, Lord Skelmersdale. I should like to think a little more about it and will come back to him.

Clause 160 agreed to.

Clauses 161 to 165 agreed to.

Clause 166 [Provision of primary dental services]:

Lord Colwyn moved Amendment No. 430E:

Page 81, line 21, at end insert— "( ) Each Primary Care Trust and Local Health Board will publish a statement of what constitutes a reasonable level of service in its area."

The noble Lord said: We now come to Part 4, which covers provision of primary dental services. At this time of night, the Committee will be delighted to hear that 1 do not intend to see any patients tomorrow morning.

My amendment is intended to discover what the Government intend shall be a reasonable level of service when provided locally by primary care trusts. Most of the profession—the British Dental Association and the General Dental Practitioners Association—welcome the proposals in Agenda for Change that move towards local commissioning of dental services by primary care trusts. For many years—certainly since Sir Kenneth Bloomfield's report in the early 1990s—dentists have wanted to get off the treadmill of fee per item of service.

I have received a letter from the Minister, for which I thank him. He says that he agrees with the intention behind Amendments Nos. 430E and 434A. He also points out the Secretary of State's general duty under Section 3 of the National Health Service Act 1977, which states that he must provide dental services, throughout England and Wales to such extent as he considers necessary to meet all reasonable requirements".

But what is reasonable? Reasonable may mean different things in different parts of the country. During Committee in the other place, it was noted during discussion of an equivalent amendment that the reference to local need was proposed because dental health varies considerably around the country and there was a perception that that was not recognised in the wording. It was intended as a reference to local needs, as opposed to local residents' needs, as commuter populations were also regarded as local.

The principle of local commissioning must be supported, but it is important that assurances be given about what constitutes reasonable levels of service. The PCTs must make clear what services will be available. Perhaps "reasonable" means the essential services that the public currently receive from the NHS dentistry. Will the Minister confirm that stakeholders, local dentists and the public will be consulted on that definition; and that, having defined "reasonable", the PCTs will ensure that they are accessible? I beg to move.

Baroness Barker

I shall speak to Amendments Nos. 431 to 436. Never in my life has dentistry seemed a more pleasing prospect. I simply want to add a few more strings to the bow of the argument advanced by the noble Lord, Lord Colwyn. We are trying to tease out what is determined to be an acceptable level of dentistry provision.

Amendment No. 431 is a probing amendment to enable us to ask the Minister exactly what will be the requirement placed on primary care trusts to determine and provide NHS dentistry. Amendments Nos. 433 and 434 set out our strongly held view that dental services ought to be based on need and, thereafter, on funding. Amendment No. 435 is important in that it draws into the definition of primary dental care such work as orthodontics and oral surgery, which are provided increasingly at local level.

Perhaps one of the most important provisions is the requirement to publish details of dental provision and complaints procedures. Members of the Committee will recall that, a few months ago, details of a new NHS dentist were kept hidden for fear that his surgery would be besieged, such is the scarcity of NHS dentistry in an increasing number of areas. NHS dentistry is becoming the profession that dare not speak its name, such is the demand in some areas. I am being flippant, as it is five to three in the morning, but it is a very serious issue, as many Members of the Committee, most specifically the noble Lord, Lord Colwyn, have highlighted.

Earl Howe

Amendment No. 430A, which stands in my name, differs only slightly from the amendment moved by my noble friend Lord Colwyn. I cannot add much to what he said, except to ask, on the assumption that the Minister agrees that a definition of "reasonable" is to be sought, who would be consulted and what benchmarks are there for making a judgment on it? It is a will-o'-the-wisp concept, but somehow we must get closer to it.

The dentistry objectives proclaimed by the Government are worthy in themselves, but they cannot be fulfilled without having sufficient dentists to perform the work. That is why I have tabled Amendment No. 432. Positive action is needed to ensure that enough dentists, dental nurses, dental hygienists and dental therapists are trained and in post to cater for the increasing levels of patient demand. That requires workforce planning.

I do not know whether the Minister is in a position to update the Committee on the department's workforce planning review, but she will know that that is seen as a key step towards addressing the concerns expressed by the modernisation board about capacity in the dental profession. As noble Lords have pointed out in recent debates on the subject, the British Dental Association has estimated that as many as 25 per cent more dental students are needed if we are to close the gap between supply and demand.

3 a.m.

Baroness Andrews

I feel that we have reached the sunlit uplands, occupied entirely by dentists. It is a great pleasure to hear from the noble Lord, Lord Colwyn, who has been such a faithful companion on this long journey over the past 12 hours.

The Government are committed to rebuilding and restoring NHS dentistry to improve the oral health of the nation. As the noble Lord pointed out, it has been a long time coming over the past decade, since the Bloomfield report, when so many in the profession have sought change and welcome the changes that we have introduced now. I know that the dentists in the House of Lords have lent their voice in support of that. The proposals represent the most radical reform of NHS dentistry since 1948. That is why we welcome the emphasis in the amendment tabled by the noble Lord, Lord Colwyn, and others on the promotion of primary dental services and better oral health.

I do not want to rehearse the history. Let it suffice to say that the Government, the NHS and the BDA have worked hard to develop the proposals published in Options for Change in August 2002. The key recommendations were for an integrated, high quality primary dental service that was locally commissioned and responsive to the needs and wishes of patients. That is the way to address inequalities in health.

The most significant change, which addresses many of the issues raised, is that the existing duty in Section 35 of the 1977 Act so far has merely required a PCT to make arrangements for dental practitioners to provide dental services, where a dentist has agreed to undertake dental treatment.

Under Clause 166, PCTs will be given a new duty to provide or secure the provision of primary care dental services either through contracts with individual practices or by providing services themselves. That evidently significantly strengthens the PCT's role in local service provision. It is also entirely consistent with our intention to shift the balance of power to front-line staff. It will make a big difference to patients not least because we will be requiring dental health colleagues to assess local oral health needs in order to tackle long-standing oral health inequalities.

As noble Lords have said, for the first time since the foundation of the NHS, by breaking the link between fees based on items per service, primary care dentists will be given an opportunity to focus on prevention and health promotion as well as treatment. New contracts for dentists based not on items per service but on the full range and level of services available to patients will provide additional stability for practice incomes and a greater guarantee for patients and for the PCT. As the noble Earl, Lord Howe, said in his amendment, they will provide greater opportunities to engage the whole dental team and allow them to spend more time with patients.

For the first time, we will have a predictable level of service locally. We have been talking about concepts of reasonableness. That is very much a part of reasonableness that we have never had in the past. It will enable the PCT to provide up-to-date and accurate information for the public about the services for which it is responsible. For those reasons, because we believe that the whole thrust of what we are trying to achieve will promote dental public health in a way that meets the needs of our time—in fact it is long overdue—we do not feel that Amendment No. 432 is necessary, although we are sympathetic.

Amendment No. 431 would extend the PCT duty in relation to the provision of primary dental services by removing the qualification of reasonableness. Questions have been asked about what it means to be reasonable. As my noble friend's letter to noble Lords explained and as was debated in the other place, the words, to the extent that it considers necessary to meet all reasonable requirements", have been carefully chosen because they mirror the current Secretary of State general duty under Section 2 of the 1977 Act to, provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements". However, I stress that the wording was amended in the other place in response to requests to bring the PCT duty unambiguously into line with that of the Secretary of State.

The most important test of reasonableness is to ensure that there is no postcode lottery. The PCT discretion will indeed be subject to national bench-marking—the noble Earl, Lord Howe, raised that issue—but with operational responsibility that will recognise variations in relation to local geography such as those between rural and urban areas for example. Time and distance standards will be used to measure compliance with the Prime Minister's pledge made some time ago about everybody being able to reach an NHS dentist. The distance travelled to reach a dentist practice, or time to wait for an urgent or routine dental appointment could be measured, because we are in the process of developing our criteria in this new scheme of things. We will be looking at ways of measuring and testing the concept of reasonableness.

I agree with Amendments Nos. 430E and 434A that publication of local bench-marking is desirable and I propose that it should be published. I agree that any local access targets should be agreed by the PCT during the public part of its board meeting. In that way, PCT decisions can be subject to public scrutiny. Indeed, Section 11 of the Health and Social Care Act 2001 places a duty on local health bodies to hold a public consultation on the proposed configuration. Users of those services need information to make a judgment about one of those services to meet the needs and wishes of people in the area. The performance of PCTs in relation to their new duty under Section 16CA will be a matter for performance management by the strategic health authority. I think that that meets the needs of transparency and openness.

Amendment No. 431 attempts to remove the reference to reasonableness. I do not accept that the PCT's duty under Section 16CA should be any different from that of the Secretary of State's duty under Section 3 or a PCT's duty under Section 16CC in relation to primary medical services. We therefore find it difficult to accept Amendment No. 431.

Amendment No. 433 raises the important issue of funding for the service. I should like to give the noble Baroness, Lady Barker, some reassurance on that. We acknowledge that the existing funding arrangements have been unsatisfactory. They reflect not the NHS's need to secure the needs of patients but the varying willingness of dentists to treat patients. From now on PCTs will have a duty to secure the provision of primary dental services either through contracts with individual practices or by providing services themselves. With these new responsibilities will go the £1.2 billion (net of patient charges) of financial resources that are currently held centrally.

I make the important point that once the reformed system is in place it will be possible over time to adjust NHS allocations to take into account the health inequalities that persist under the old system. 1 can give the Committee the important guarantee that current spend will be protected. We are taking some short-term measures until the implementation of the Bill enables the NHS to address historical anomalies, with additional funds being deployed to support PCTs as they get to grips with the new agenda. I think that some of that funding was mentioned in the letter that we sent to noble Lords.

However, in the longer term allocations have to take into account oral health needs as well as other health needs in general allocations. This is a "once and for all" opportunity to do that. For some areas, that might mean relatively more funding for dentistry in future as PCTs begin to address the long-term oral health inequalities that some of them face. I think that the audit report showed very graphically the tremendous regional variation in the number of dental caries in children under five and young people. We must tackle that issue. So as my noble friend made clear in the letter to noble Lords, we will set a floor on the spending on primary dental services below which the PCT may not fall. By doing so, the financial resources allocated for dental services will be used for the purpose for which they were allocated.

An important feature of direct allocation of resources to the PCT is that should a provider reduce commitment to NHS services under the new scheme, the PCT will retain those funds to commission from an alternative provider. With those important reassurances, I hope that the noble Baroness will not press Amendment No. 433.

Amendment No. 434 suggests that PCTs should provide services in accordance with identified local need. However, it is implicit in the duty that PCTs will have regard to local needs. A most important feature of NHS dental services is that the public can use the service where most convenient, and for adults that may be where they work rather than where they live. The example of those who commute into London was given in another place. That is what we mean by catchment area rather than a residence area. It means that the dental services provided must reflect the needs of users of •the service, not just its resident population. That is one of the great benefits of the service at the moment. So on those grounds I would suggest that Amendment No. 434 is unnecessary.

Amendment No. 435 requires PCTs to ensure that services which are currently provided are secured. The current treatment functions of the Community Dental Service will continue under PCT-provided primary dental services, PCTDS. Such services will include the provision of treatment to patients who might not otherwise seek treatment—for example, patients with special needs and patients with phobias as well as treatment on referral. Then we have the specialist elements such as orthodontics and minor oral surgery where CDS staff have developed skills. Over the years, the CDS has developed considerable expertise that we do not want to lose. However, integrating those treatment functions of the CDS under the new name "primary dental services" in the Bill will strengthen those functions rather than rely on guidance to PCTs which is the current basis. That, plus changing the way in which dentists are paid and moving away from item of service, will enable dentists providing services under a CDS contract to spend more time with their patients.

New powers under Section 16CA(2) will enable PCTs to commission specialist dental services, such as orthodontics, from experienced high street dentists, who are very accessible. That will ensure that the developing dental specialties are given the right opportunities to contribute to patient care because they will be able to pick up from appropriate referrals. Therefore, Amendment No. 435 is met by our intentions.

I have much sympathy for Amendment No. 436. A recurrent theme running through the Audit Commission report, the Office of Fair Trading report into private dentistry and Options for Change is that information about what services are available and how the public might access them is generally very poor and difficult to understand. We are committed to improving the patient experience of the NHS and to promoting patient choice by providing accurate and easily understood information about the services available and what patients might reasonably expect from them. That is why we have included the specific provision in subsection (3) of the proposed PCT duties in relation to primary dental services.

We have concluded that that is best dealt with through regulations. Requirements are bound to change over time as providers' abilities to provide information improve. Statistical information will change, as will ways of dealing with it through ICT and so forth. The regulations will contain a level of detail that justifies a regulation-making power. Subsection (3) makes provision for information about the primary dental services for which the PCT is responsible, and so, by definition, the NHS dental provision in its area.

The task of compiling information regarding non-NHS treatment for which the PCT has no statutory duty seems unreasonable to impose on PCTs. Our policy is that, in the first instance, complaints should be resolved through practice-based procedures. Information about complaints is better dealt with under GDS and PDS contract provision rather than here. I can see no benefit in including examples where these are unnecessary. I therefore reject Amendment No. 436.

The noble Earl, Lord Howe, raised issues about workforce planning review and the increased need for dentists, in general. He is absolutely right. The workforce planning review is continuing its work. However, there are very positive signs—for example, the number of dental therapists has increased significantly. On looking at the capacity for this new service to meet the new needs of the dental service, two points can be made. First, it will encourage bigger practices and a better distribution of professional services with the development of ancillary professions and so on, which is very much to be welcomed.

Secondly, the fact that we are moving away from item of service will mean that the dental environment will become more positive and more preventive, which we hope will encourage young people to go into dentistry as a career because the work will be more satisfactory. In terms of capacity, there are some very positive points to make about workforce planning in the whole environment. With those assurances, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Colwyn

Obviously, that is a helpful, long and explicit answer, for which I am grateful to the Minister. There is possibly no reason why the reasonable and local need amendments could not exist together. However, if there is a national bench-marking system in place, it might be redundant. The issue is whether the bench-marking system would be treatment-based—specifying the types of treatments that must be purchased—or whether it would be outcome-based, which is specifying the general level of dental health that must be achieved in each PCT area. The latter type of bench-mark might mean that any reference to local need is redundant. Once again, I thank the Minister for that long answer. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 431 to 436 not moved.]

Clause 166 agreed to.

Clause 167 [Dental public health]:

3.15 a.m.

Earl Howe moved Amendment No. 437:

Page 82, line 5, at end insert "provided that these functions include school screening as well as oral health promotion and local oral health surveys to help plan services"

The noble Earl said: We see in Clause 167 that PCTs are to be given new statutory functions in relation to dental public health, including oral health promotion, surveys and school screening. At least, that is my assumption. It is good news, but the British Dental Association feels strongly that the Bill needs to spell out those functions or, at the least, the Government need to make clear how they are to be delivered.

The existing duty for dental treatment and dental education in schools will cease to have effect under subsection (2), so it is important that there should be clear policy guidelines on dental public health issues, not least setting out how oral health inequalities are to be identified and tackled, and how a more preventive approach to dentistry is to be encouraged. Amendments Nos. 437 and 438 cover that point.

Moving on to Amendment No. 440, bearing in mind that these will be brand new PCT functions and that there is very little detail on the face of the Bill with as yet no published guidance, I believe that it is not unreasonable to propose, as I do in my amendment, that the regulations governing Clause 170 should be introduced via the affirmative procedure. The Minister will know that, notwithstanding the support of the BDA, which I acknowledge, there is intense unease, bordering on scepticism, about the ability of PCTs to deliver fully-fledged dental services for their patient populations. That is not only because PCTs know next to nothing about dentistry, but also because the money being devolved to them is likely to prove woefully insufficient for anything more than emergency cover. That money will not even be ring-fenced.

Many dentists fear that these changes have put paid to any hoped-for renaissance of a proper national dental health system. We could see a repeat of what has happened in education. Over time, practices will be starved of funds by PCTs, which will blame central government for not paying them enough. Central government will claim that they have paid the money and no one will quite know where it has gone.

However, accepting that PCTs are to be given the job of commissioning dental care in their local areas, what mechanisms will be in place to ensure that, locality by locality, dentistry is not squeezed out by other priorities? How will the Government see to it that dentistry across the country as a whole is receiving an appropriate share of the health budget?

The mystery to me is how the Government think that the new payment scheme for dentistry is going to improve access to dental healthcare or ensure that more people benefit from regular dental check-ups than is currently the case. There do not seem to be any incentives in the system to encourage dentists to increase their productivity. I believe that all these concerns merit a full debate when the new regulations are laid. It would be helpful if the Minister could say when she expects that to take place. I hope that she will look constructively on my amendment for the reasons that I have given. I beg to move.

Baroness Andrews

Perhaps I may begin by addressing the questions put to me by the noble Earl, particularly with regard to how we expect the payment scheme to encourage access to dental services. I shall cite one of the ways in which we expect this to happen. At the moment we have one contract for all dentists with payments geared essentially to the number of treatments. That increases activity; higher fees are paid for the greatest activity and so forth, while there is no incentive to take on preventive work or to offer different kinds of treatment. For example, within that framework is a provision for six-month check-ups for people who do not need check-ups every six months, along with a whole range of routine work which essentially fills a dentist's diary and generates the income.

One of the reasons for introducing individual contracts that are more flexible and geared to the real health conditions and needs of people is that dentists will be able to decide on the clinical pathway for people who require dental support and therefore will not have to see every patient once every six months; rather they will be able to tailor appointments according to an individual's health needs. This will create more freedom for additional patients to be taken on, for example, and for dentists generally to offer a different kind of service and to expand their practices in different ways. That is one suggested answer to the question.

We do not have a precise date for publication of the regulations but it is full speed ahead. I can assure the Committee that there is tremendous enthusiasm in the Department of Health for developing and achieving these provisions now that we have come so far.

The amendments raise very important issues and make the same provision in relation to both England and Wales. They attempt to ensure that the dental public health functions which are currently undertaken by the community dental services in both countries are included in the regulations setting out the new dental public health duties of PCTs and local health boards.

The Community Dental Service is currently provided by primary care trusts and some NHS trusts to ensure that people who might not otherwise seek or receive NHS dental care—such as patients with special needs—can receive it. The CDS also has dental health functions in relation to oral health promotions, school screening and dental health surveys. These functions are set out in the guidance HSG(97)4. The major change we are making is for dental public health functions to become the functions of PCTs and included in regulations because they are obviously an important part of the contribution made to dental public health locally.

So the changes we propose are designed to strengthen the work of the current CDS. First, Clause 167 seeks to insert a new Section 16CB into the 1977 Act. Subsection (1) provides for regulations to confer those dental public health functions directly on PCTs. It is indeed intended that the functions will include oral health promotion, school screening and surveys to plan and manage dental health services locally.

Secondly, the primary dental services provided by the PCTs under new Section 16CA(2) will be equivalent to the treatment function of the CDS. That is in line with the recommendations in Options for Change. PCTs may act jointly in discharging this function and they can involve other agencies, such as dental practices, in addition to primary dental services.

The Government set out their intention to review the school dental screening programme in the "Improving Oral Health" chapter of Modernising NHS Dentistry. We said in the letter that we sent to all noble Lords that the child health subgroup of the National Screening Committee is awaiting the outcome of the research into child dental health screening and the regulations made under subsection (1) will reflect its advice, when published. I would expect to see other functions added as well.

As regards Amendment No. 437, it would not be wise to have unnecessary detail, which may ultimately prove to be inappropriate or inflexible, imposed by amendment on the Bill. This could hinder the movement of services between these population-based dental public health functions and the patient-based preventive services under the GDS contracts.

We regard all these dental public health functions as extremely important objectives for the reasons I have given. I know that the noble Earl will be disappointed, but we consider that the affirmative resolution procedure is too heavy for this regulation-making power. For the sake of consistency, we should also reflect on the fact that regulations made under the provisions in Part 4 will be subject to the negative resolution procedure in keeping with the existing equivalent powers—for example, The NHS (Functions of Health Authorities)(General Dental Services Incentive Schemes) Regulations and so on.

Amendment No. 440 seeks to bring the regulation-making power in relation to dental public health functions conferred on PCTs and LHBs within the affirmative resolution procedure. But, as with the previous amendment, that does not give us the flexibility that we need. Amendment No. 438 relates to LHBs in Wales.

We are serious about these functions. I hope the noble Earl will understand my explanation of why we find it difficult to accept his amendments and that he will feel able to withdraw them.

Earl Howe

As ever, the Minister has been most illuminating, and I am grateful for the trouble she has taken to respond in such detail to my amendments. I am, of course, a little disappointed that she was not able to look more favourably on them, but she has explained some of the darker corners of these provisions very helpfully.

My reason for seeking a slightly more robust parliamentary procedure on the face of the Bill is, as I have said, because we are looking at an empty box at the moment—there is no published guidance. In those circumstances, I think there is justification for Parliament to be guaranteed debating time on the regulations.

Nevertheless, I take note of what the Minister said and will reflect further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 438 not moved.]

Lord Clement-Jones moved Amendment No. 439:

Page 82, line 7, at end insert— "( ) A general dental services contract must require the contractor or contractors to provide for this or their patients—
  1. (a) information about treatment charges;
  2. (b) access to dental records;
  3. (c) alternative local provision and the complaints procedure; and
  4. (d)other such information as may be determined."

The noble Lord said: The Minister will notice that once again, we are so enthusiastic about Amendment No. 439 that we have put it down twice. We obviously expect the Minister's response to be twice as long as she would normally feel obliged to give.

We strongly support the OFT's recommendation that dentists should provide consumers with clear information on indicative prices for common treatments, detailed treatment plans—together with information on any other options and estimates of the likely costs—access to dental records and complaints procedures. This kind of information is fundamental to the delivery of a patient-centred service and to any notion of patient choice.

Existing guidance to dentists from the General Dental Council—the GDC—already covers much of this, yet it is clearly not being observed by the majority of dental practices. It is therefore crucial that appropriate mechanisms are put into place to strengthen the requirements in this area and ensure compliance.

Additionally, we on these Benches strongly support the idea that dentists must also inform consumers about the availability and likely cost of NHS care and how to find an alternative dentist offering NHS treatment if they cease to offer this.

Consumers tend not to look for a different dentist, even if their usual dentist stops providing NHS care. This was confirmed by research by the Consumers' Association earlier this year; it found that 48 per cent of Scottish consumers currently registered with a private dentist had stayed with the same dentist when they switched to providing private-only care. Without even this most basic information, consumers are likely to be a captive audience and unable to exercise an informed choice. Stipulating this key information provision as part of the contract should go some considerable way to addressing this, backed up by enforcement from the PCTs and CHAI. I beg to move.

Lord Colwyn

I support the amendment. Information about local dental services is absolutely fundamental. It is quite true that most people do not really know where to get the information about their local service. This amendment is very important for that reason.

Baroness Andrews

I am sorry to disappoint the noble Lord, Lord Clement-Jones, but I think my speaking notes on this amendment are about half as long. We are at one on this and we welcome the support of noble Lords to the commitment to improve the information available to patients. All the evidence—and this is well documented—suggests that the current system is not good enough by any standard.

Of course patients need to be able to make informed choices in all the instances that the noble Lord detailed. Our experience over five years of piloting personal dental services is that that is best done through national requirements and national criteria. We propose to take the necessary provisions in proposed Section 280(2) under Clause 168 rather than proposed Section 28 L and Clause 167 where these amendments replace them. We are also committed to the field sites that are being set up by the Modernisation Agency. The 15 or so field sites are pioneering new ways of doing everything from remuneration to information. A number of them are concerned with testing ideas to improve the patient experience.

Fully tested information from the sites will become available over the next two years. We want to incorporate those into the GDS contract as they evolve in the transition period and beyond. That is best done through a national contractor requirement, and we believe that the provisions set out in new Section 28 are already sufficient. For example, new Section 280(2)(f) already provides for, rights of entry and inspection (including clinical records and other documents)". I hope that we can meet the information needs and requirements that the noble Lord set out, and that it will be successful.

3.30 a.m.

Lord Clement-Jones

I thank the Minister for her reply. If it were a different time in the morning, I might get excited about pioneering field sites, but I cannot quite raise enough enthusiasm. I am sure that tomorrow morning I shall feel a whole lot different about the nature of those field sites.

I believe that I heard the Minister say that the regulations published under Clause 166 would essentially contain the same elements as set out in the amendment. If that is the case, I would be only too pleased with that. However, it must be made quite clear that there are certain key elements, whether the provisions are in the primary legislation or the regulations. Those are the elements that the OFT has specified, and the ones that I set out in my introduction to the amendment, which should be included if there is going to be "improving patient experience", as the Minister called it. If that is to happen, those elements must be contained within it. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Colwyn moved Amendment No. 439A:

Page 82, line 7, at end insert— "( ) A Primary Care Trust will include a qualified dentist on any professional executive committee or equivalent committee, and secure consultant level dental public health advice, to secure the discharge of its functions in relation to dental public health. ( ) A Local Health Board will include a qualified dentist on any professional executive committee or equivalent committee, and secure consultant level dental public health advice, to secure the discharge of its functions in relation to dental public health."

The noble Lord said: The amendment would ensure that there are dentally qualified staff at PCT and LHB level to properly commission, manage and co-ordinate local dental service delivery.

While dentists and the British Dental Association are keen to work closely with PCTs and LHBs to ensure that the new commissioners understand issues of dental and oral health, that is no substitute for the presence of appropriately qualified staff within the PCTs and LHBs themselves. The transfer of responsibility for dental commissioning in PCTs does offer some exciting opportunities for co-ordinated and consistent delivery of dental services tailored to specific local needs.

In order that these opportunities are not squandered, there is a need for proper understanding of the complex issues involved. Dental public health is a wide area and its scope includes more than just screening, for example. It covers both the full range of dental public health activities and the links between dentistry and issues such as diet, nutrition, and tackling health inequalities. It is important that professionals who understand those issues and links are involved in the commissioning of services.

Ideally I should like assurances that there will be a dentist on the professional executive committees of all PCTs and LHBs. The BDA would also like there to be a dentally qualified dental public health adviser, who fully understands the issues of dental and oral health, available at consultant level to the PCT or LHB. The terms of this amendment are worded more generally, however, to take into account any changes or variations in terminology that may arise. Again, the Minister kindly referred to the matter in his letter to me, and I feel that he will be sympathetic. I beg to move.

Lord Hunt of Kings Heath

I have a great deal of sympathy with the noble Lord's comments. The problem with the amendment is that it sets a precedent. If the measure applies to dentists, why should it not apply to nurses? If it applies to nurses, why should it not apply to pharmacists? If it applies to pharmacists, why should it not apply to members of the allied health professions? If you go down that route, the primary care trust ends up with very little discretion about appointments to its board and the professional executive committee.

Given that all Members of the Committee have expressed themselves utter devotees of devolution, we should leave PCTs with enough room to manoeuvre. That said, I hope that my noble friend will be able to answer the substantive point that the noble Lord raised. If we are really to make a success of the new contract, and if we are to get dentistry back in alliance with the NHS, it is essential that there is dentistry leadership at the PCT level, whether it is a public health dentist or a dental officer who has been appointed. Perhaps between now and Report my noble friend will give further consideration to ways in which we can strengthen the dental profession working alongside primary care trusts. Over many years there has been a disengagement not just between the health service and dentists but also in the vast reduction in the capacity of the NHS to engage with local dental committees.

These clauses are great news for patients who wish to receive NHS dental services. The contract and the discussions with the BDA offer great promise for the future but it is essential that primary care trusts have the ammunition and the expertise to take forward these programmes effectively.

Baroness Andrews

I am grateful to both noble Lords who have spoken. We all recognise the commitment of the noble Lord, Lord Colwyn, to his profession over the years. I have every sympathy with the intention behind Amendment No. 439A. I can reassure the noble Lord, Lord Colwyn, that the points he raises, both on dental public health advice and on dental membership of PCT executive committees are already covered by the PCT Executive Committee (Membership) Directions 2003.

Article 2(2) requires the executive committee to include at least one public health member. The directions further make clear that a public health member means a member of an executive committee who has qualifications and experience as a specialist in public health or who is a consultant in public health medicine or a consultant in dental public health.

Article 2(5) of the directions states that the professional members shall include medical practitioners, nurses and such professional members as, in the opinion of the trust, reflect the functions carried out by the trust. I am advised that the Local Health Board Constitution Regulations already make similar provision. Regulation 3 specifies the membership of a local health board, which includes a dental practitioner member. It also makes provision for the co-option from time to time of such other members as appears necessary or expedient for the performance by the board of its functions.

Shifting the balance of power in the NHS to the front line means leaving much decision-making to the PCTs, which themselves understand the requirements of the service at the local level. I would not want to be seen as micromanaging the NHS by putting such requirements on the face of the Bill. Directing PCTs about their governance arrangements is perfectly adequate.

My noble friend is absolutely right. There is an opportunity here for the first time for dental practitioners to work much more closely with the PCTs that will commission and direct work, plug the gaps in the service and work in partnership to develop the contract. I hesitate to mention field sites again, but they represent a way of testing new partnerships with PCTs, for example. That will be a way of developing shared values and understanding of the profession and the role it plays in general public health as well as in dental public health. I hope that with those assurances the noble Lord will be satisfied and will withdraw the amendment.

Lord Colwyn

I am grateful to the noble Baroness for that reply and for the remarks of the noble Lord, Lord Hunt. Over many years dentists have always felt left out of these matters. The reply was encouraging. I shall read what the noble Baroness said and reserve the possibility of returning to the matter at the next stage. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 440 not moved.]

Clause 167 agreed to.

Clause 168 [General dental services contracts]:

Baroness Noakes moved Amendment No. 441:

Page 82, line 40, after "contract," insert— "( ) the requirement for the contractor to collect charges for dental services under section 79 of the 1977 Act, to pay them to the Primary Care Trust or Local Health Board and to comply with financial control requirements regarding charges for dental services as specified by the Primary Care Trust or Local Health Board."

The noble Baroness said: I shall speak also to Amendment No. 442. Both amendments are probing on the financial aspects of the new dental contract.

Amendment No. 441 amends Clause 168, which inserts new Section 28K into the 1977 NHS Act. It adds another area that general dental services contracts could cover; namely, the requirement for the dental contractor to collect dental charges, pay them to the PCT and comply with financial control requirements.

In moving from a system under which the dental practitioner is responsible for collecting and keeping dental charges, to the new system where risk related to that dental charging income is borne by the PCT, there are likely to be difficulties. The old system had many incentive effects that were not attractive but at least it placed the incentive for collecting charges fairly and squarely on the dental practitioner. If he did not collect, he would be out of pocket.

We are now moving to a new system where the dental practitioner will collect dental charges on behalf of the PCT and account to it for them. That raises a number of issues that I hope that the Minister will address. How will PCTs incentivise dental practitioners to charge for and collect all the income that should be collected? How will the PCT ensure that there is no fraud or error? Will the PCT have audit rights in relation to the dental practitioner's books and records? Will PCTs be able to lay down minimum standards of record-keeping?

In addition, what costs are likely to fall on dentists for complying with any new requirements? The regulatory impact assessment makes it clear that most dentists are small businessmen. How will the Government ensure that any regulatory burden associated with the new scheme is minimised?

Amendment No. 442 deletes new Section 28N of the 1977 NHS Act, which will be inserted by Clause 168. New Section 28N allows the Secretary of State to have pretty complete control over payments made under general dental services contracts. Our amendment knocks that out of the Bill on a probing basis.

We had understood that the thrust of the new arrangements for dental services was to give new responsibilities to PCTs to provide primary dental services in their areas. That is much wider than their existing responsibilities. However, we do not understand how that can work in practice if the PCTs are hamstrung by remuneration terms laid down by the Secretary of State.

I assume that the moneys used by PCTs to pay for dental contracts are part of the much-vaunted 75 per cent of NHS money now being delegated to PCTs. What freedoms will the PCTs have in practice to use their financial resources to achieve better primary dental care services? For example, can they pay additional amounts if market forces locally require higher payments in order to achieve desired access levels? What freedoms, if any, will they have to use finance as a bargaining counter in setting satisfactory contracts? I beg to move.

Lord Colwyn

Very briefly, I want to say how incredibly complex the issue is. It has been a concern for dentists for many years. I remind the Committee that, at present, on people who are not exempt, GDPs collect 80 per cent of the full cost of the treatment. Bad debts exist; it is a problem. So far as I am aware, the new charging system for primary dental care is under discussion by Harry Cayton, the patients' tsar. I suspect that the Minister may not be able to answer on all the points raised, but the subject is no doubt evolving. Will the system be centralised, with overall central control, or will it purely be based in the PCTs?

3.45 a.m.

Baroness Andrews

I am grateful to the noble Lord. I cannot answer all those questions. I can answer some of them to some extent, but many of them will be answered by testing out systems of remuneration in the field sites themselves. Apart from anything else different ways of paying dentists are being looked at. I shall come to that.

I shall help by dealing with the amendment and setting out briefly how we intend to manage the transition from the current general dental services to local contracting and a GDS contract. Work is under way in the field sites to test new commissioning and remuneration models, among other innovations. The first field site draft contract templates will be available in January 2004. Learning from those sites will be ongoing beyond April 2005 for their lifespan. Additionally, some of the field sites are working with the PCTs and the strategic health authorities to develop monitoring and performance management systems to support the commissioning model. It was important—and this ran through Agenda for Change and the whole dialogue with the profession—that matters had to be tested first and there had to be robust mechanisms for learning from those tests.

Drawing on that programme and the personal dental services pilots, to ensure a smooth transition, the Department of Health has been working closely with the British Dental Association to develop a simple and robust base contract that all PCTs and practices will be able to put in place from April 2005. Under those arrangements, from April 2005, unless any local variations are agreed, the Dental Practice Board and its successor the special health authority will continue to pay dental practices contracting with the PCT broadly the same level of income for broadly comparable levels of activity—increased by any nationally agreed uplift following the DDRB's recommendations.

In answer to one of the specific questions asked by the noble Baroness, Lady Noakes, the collection of charges will be a contractual requirement, and the special health authority which will replace the DPB will verify the correct collection of charges and will report to the PCT. So there will be an audit mechanism in that form.

Amendment No. 441 seeks to make collection of patient charges and payment of them to the PCT a contractual matter under a GDS contract. Under the current arrangements, dentists collect patient charges from those patients liable to pay them and the NHS makes payments to dentists by way of remuneration, net of the charges collected. It is intended to continue this procedure under the new charging regime introduced under regulations made under a new Section 79 of the 1977 Act, which is inserted by Clause 179 of the Bill.

Subsection (3) of new Section 79 enables regulations to provide that sums which would otherwise be payable by a PCT, local health board or special health authority to providers be reduced by the amount of the charges authorised by the regulations. Harry Cayton, the director for patient experience and public involvement, is leading a review of patient charges for NHS dentistry. He will report next March. Part of that review will look at the ways of collecting patient charges. The current system works well and, from the NHS perspective, is simple to administer and has minimal bureaucracy. However, Agenda for Change reported that the profession would prefer to separate the direct link between patients' visits to the dentist and charge collection. The Government are sympathetic to that view, because we consider that collecting PCT charges and then remitting them to the PCT would be unnecessarily bureaucratic.

While the technology is available to collect payments through smart cards, by mobile phone and so on, we will be interested in any of those ideas that may be put forward by Harry Cayton's review group on alternative ways to pay charges. We consider that dentists collecting charges and remitting them to the PCT will be unnecessarily bureaucratic and until the technology is available we intend that dentists and dental practices be paid for the provision of primary dental services net of the patients' charges collected. Therefore Amendment No. 441 does not find favour.

As regards the technical questions which the noble Baroness asked on Amendment No. 442, I shall have to write to her. However, perhaps I may explain that Section 28N(1) allows the Secretary of State or the Assembly to give directions regarding payments to be made under the new GDS contracts. Where directions are made, a GDS contract must require that payments are made under the contract in accordance with the directions.

New Section 28N replaces the existing system of remuneration for dentists providing general dental services under Section 35 of the 1977 Act. The rules setting out the remuneration are currently contained in the statement of dental remuneration. The SDR is a determination made by the Secretary of State or the Assembly under Regulation 19 of the National Health Service (General Dental Services) Regulations 1992.

Under Section 28N, payments in respect of any particular matter under the contract can be set on a national basis. Directions may relate to payments to be made by a PCT to a GDS provider or by a GDS provider to a PCT. Where there are no applicable directions, the parties to the GDS contract are free to determine the remuneration to be paid under the contract.

Subsection (3) sets out how the power to make directions may be exercised. It will enable directions to provide for payments to be determined by reference to the meeting of particular standards, for example. Directions may also be made in respect of individual practitioners and so would enable, for example, payments to be made in respect of a dental practitioner's maternity. That is why we need national scope for that.

Subsection (4) of new Section 28N recreates the existing requirements in Section 43B of the 1977 Act for the Secretary of State or the Assembly to consult representative bodies on remuneration matters. Under the new multi-professional GDS contract, this extends consultation rights to other groups whose members can become GDS providers—for example, representatives of other groups of dental healthcare professionals whose remuneration might also be affected.

Subsection (5) provides for directions to be made by regulations or by an instrument in writing and for directions made by an instrument in writing to be revoked or varied. Subsection (6) sets out some examples of what payments under this section include; namely, fees, allowances, reimbursements, loans and repayments.

Representatives of the dental profession, in the interests of fairness to their members, are keen to preserve the ability to continue setting some payments under GDS contracts on a national basis. The payments which give the most concern are those in respect of a particular individual at the practice; for example, payments in respect of maternity. It is thought by the profession to be in the interests of fairness if such payments are determined nationally.

I realise that that was a detailed and complex explanation. However, I hope that the noble Baroness will accept it and withdraw her amendment.

Baroness Noakes

I thank the Minister for taking the trouble to attempt to give me a comprehensive reply. I cannot pretend that it is wholly satisfactory. I asked, for example, about the incentive mechanisms that would exist to ensure that dentists collected the correct money for PCTs. That is still on the table. I asked about the freedoms of PCTs and I did not get an answer.

Much of what the Minister said took me back to our first couple of Committee days when we debated foundation hospitals. The ongoing theme was that the Government were making it up as they went along. I feel that that is the case with these dental arrangements because so many of the details are not worked out. It is almost not the time to consider the Bill.

Nevertheless, I thank the Minister for attempting to answer the questions. I shall of course read what she said before deciding what to do at the next stage.

Amendment, by leave, withdrawn.

[Amendment No. 441A not moved.]

Lord Warner moved Amendment No. 441B:

Page 83, line 23, leave out "or section 17C employee" and insert "employee, section 17C employee or Article 15B employee"

The noble Lord said: This group of amendments makes a number of minor, technical changes. Many of the amendments cover personal medical services and personal dental services in Northern Ireland. References to "Article 15B employee" and "Article 15B arrangements" are inserted into Clauses 168, 171, 173, and so on. This is a UK-wide contract and the amendment seeks to treat Northern Ireland primary medical services and primary dental services employees in exactly the same way as Scottish and English employees in equivalent schemes.

Amendment No. 459E makes clear that any regulations made under Section 28E may include provision for the resolution of disputes as to the terms of any proposed Section 28C arrangement. This allows for equivalent provision to be made in primary medical services as applies in general medical services.

Amendment No. 461A amends the power in new Section 28W to make regulations in respect of payments to be made to a person suspended from the list. As written, the power is restricted to payments made by a PCT or local health boards. However, in certain circumstances, it will be necessary for other bodies to be able to make such payments—for example, in respect of GP registrars, where payments would be made by the strategic health authority.

Amendments Nos. 464ZG and 477ZC make changes to allow the National Assembly for Wales to make regulations giving community health councils the power to enter and inspect the premises of persons providing services under Part 1 of the 1977 Act in England. That is equivalent to the provisions for the Secretary of State in respect of patients forums. I beg to move.

On Question, amendment agreed to.

Lord Warner moved Amendments Nos. 441C and 441D:

Page 83, line 26, leave out from "individual" to end of line 31 and insert "falling within section 28D(l)(bc) above" Page 83, line 44, leave out "and section 17C employee" and insert ", "section 17C employee" and "Article 15B employee""

On Question, amendments agreed to.

[Amendment No. 442 not moved.]

Earl Howe moved Amendment No. 443:

Page 85, leave out lines 15 to 17.

The noble Earl said: In moving Amendment No. 443, I shall speak also to Amendment No. 455. Subsection (3) of the new Section 280 contains what appears to be a draconian provision. It allows for regulations to enable a PCT or LHB to impose a variation of the terms of a GDS contract. There is a similar provision in new Section 28U relating to the GMS contract.

If a dentist or a doctor has entered into a contract, it seems to me that he is entitled to regard that contract as binding on the commissioning body. We all understand that no contract can be set in concrete for all time and that it must be adapted to meet changing needs. However, I should be grateful if the Minister could explain what might justify a provision permitting one party to the GDS or GMS contract, but not the other, to override it. If changes are made to the contract, those should surely be by agreement. I beg to move.

Lord Warner

These amendments would remove a PCT's powers to vary GDS and GMS contracts respectively. For primary dental services, it is essential that PCTs have the power to vary GDS contracts in their area. The main need for the power is to ensure that any future changes to the contract regulations can be taken through into the contract. An example might be learning from field sites about patient information requirements. We might also propose a variation where it is necessary to meet a European Court of Human Rights obligation or where the failure of a PCT and contractor to reach an agreement would prevent the PCT fulfilling its statutory duty. That might be the case where the PCT was under a duty to provide certain information in the hands of the contractor.

For primary medical services, it is also essential that PCTs have a power to vary GMS contracts in their area. The same arguments as I outlined apply. The new GMS contracts will reflect the national agreement that has recently been reached between the BMA and the NHS Confederation. Experience teaches us that future discussions will be needed to update the national contract in the light of changing circumstances. Without that power, we have no effective means of ensuring consistent implementation of new national arrangements.

Within the context of the national rules, GPs will have greater local flexibility around what services they provide and they will also have the choice of leaving the national GMS contract and entering into local primary medical service contracts. It is also recognised in the agreement document that negotiations may not always reach agreement. It is noted in the new agreed GMS contract document that failure to reach agreement would not prevent the Secretary of State or health ministers discharging their statutory obligations or exercising their statutory powers. The amendments would prevent the Secretary of State fulfilling those statutory duties. Therefore, I suggest that these amendments are not pursued.

4 a.m.

Earl Howe

I thank the Minister. That is a helpful reply. It casts some light on the subsection. The question posed by my amendment is: when is a contract not a contract? When is a practitioner entitled to regard his contract as one on which he can rely? The key word in the subsection is "impose". I still think from the examples given by the Minister, apart perhaps from the example of the judgment of the European Court, that in most instances there will be alterations of contract by agreement. I take his point. I am grateful to him for what he has said and no doubt the regulations, as and when they emerge, will specify in greater detail the circumstances that will allow contracts to be varied in the way in which the clause presupposes. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 168 agreed to.

Clause 169 [General dental services: transitional]:

Lord Colwyn moved Amendment No. 443A: Page 86, line 26, at end insert— ( ) A contractor or an employee of a contractor will be entitled to existing pension arrangements that were available to her or him at the time of enactment.

The noble Lord said: The amendment safeguards the existing pension arrangements of practice owners, associates and employees during transition to the new contracting arrangements. The dentists making the transition from the old to the new GDS arrangements may feel vulnerable and the issue of pensions is understandably important. I would like clear and unequivocal confirmation that pensions will be protected. A particularly vulnerable group is that of associates who face the potential change to their employment status as a result of the Bill as they may move from being self-employed practitioners to employed officer status.

While the details of associate employment status are still being worked through, there is a danger that some options on the table could significantly financially disadvantage those individuals. Others at risk are contractors who make a decision to vary their mixture of clients—for example, from mostly NHS to mostly private—at a point that coincides with the introduction of the new funding arrangements. The crude pension contributions of such contractors need to be protected, regardless of their new number of NHS patients. The Government need to send a strong signal that dentists' existing pension arrangements will be protected.

I had a very helpful letter from the Minister in which he said that the changes to pension arrangements as a result of local commissioning will not be to the detriment of any dentist currently working in the NHS. The way that he said that makes me think that they are planning to make changes to the pensions and I would like confirmation that they are considering the different demographic groups in dentistry: assistants, associates, those just starting out in the profession, those who have been in it for some while and those who are semi-retired. It is important that that differential element is carefully considered. I beg to move.

Baroness Andrews

Many dentists will have made a significant contribution to NHS dentistry and a considerable personal investment in their practices. We must ensure that they are able to continue to do so. Perhaps I could explain the context. Clause 169 sets out the framework for a transitional scheme which must be established by order to ensure that those dentists who are providing general dental services under the existing statutory arrangements are entitled to continue to provide primary dental services under the new GDS contracts.

It further enables those dentists who run practices limited to specialist treatments, for example orthodontics, where it would be inappropriate to provide the full range of dental treatments required by a GDS contract, to be entitled to continue to provide those services under a PDS agreement.

It may not have been possible for all dental practices to reach agreement on all the terms of a GDS contract by the time the new regime comes into being. So, as I have said previously, subsection (3) provides for there to be a "default or base contract", which is more closely related to the service previously provided under the GDS.

It would be unfair to expect dentists to accept contractual arrangements which are significantly less favourable than those on which previous GDS had been provided. Provision will be made to offer protection of legitimate practice earnings. That may be achieved under nationally determined GDS contract payments under Section 28N or by an order made under Clause 169 or achieved by using both powers.

Amendment No. 443A specifically raises the important issue of the entitlement of dentists working under GDS contracts, and for that matter under PDS contracts, to membership of the NHS pension scheme. Membership of the NHS pension scheme is increasingly seen as a major benefit of being part of the NHS family and can be impacted when dentists or doctors migrate between salaried posts in hospitals and independent contractor posts in general practice. We have recognised that. We have made an amendment to the NHS pension scheme regulations that will ensure that the scheme operates more flexibly in the future when dentists or doctors move between salaried and independent contractor status. The amendment will apply to the benefits of all dentists and doctors in post on or after 1st April 2003.

The letter sent by my noble friend has already been quoted. It states that changes to pension arrangements as a result of local commissioning will not be to the detriment of any dentist currently working in the NHS. The noble Lord asked me about the range of dentists, associates and so on. Clause 169 deals with transitional provisions. Subsection (1) ensures that a new contract must be offered to all principal dentists. That includes associates. I hope that reassures the noble Lord.

I can also give the noble Lord an important commitment in response to Amendment No. 443A. Changes to pension arrangements as a result of local commissioning will not be to the detriment of any dentist currently working in the NHS. I hope that with those reassurances the noble Lord will feel able to withdraw the amendment.

Lord Colwyn

I am grateful to the Minister for that answer. I am not an expert on pensions. I shall examine with the British Dental Association what the noble Baroness has said and possibly return to the matter. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 169 agreed to.

Clause 170 [Provision of primary medical services]:

Lord Clement-Jones moved Amendment No. 444:

Page 86, leave out lines 39 to 41.

The noble Lord said: Clause 170 deals with the provision of primary medical services. Amendment No. 444 is designed to alter the situation currently contained in Clause 170. There are three kinds of primary medical services: essential, additional and enhanced. GPs have preferred provider status for essential and additional services but not for enhanced services. Enhanced services are, for example, some minor surgery, perhaps minor injury services, services for violent patients, flu immunisation, child immunisation, sexual health services and of course services such as out-of-hours services.

The clause makes radical changes to current arrangements. Under current arrangements GPs provide most of these services. Under the new arrangements contained in Clause 170, those services would now be able to be purchased by the PCO. In England that means the primary care trust itself. Indeed, it may be able to purchase services, such as out-of-hours services, from commercial deputising services. That may include non-NHS provision of services such as physiotherapy.

There has been some attempt to explain the new arrangements by both the Government and negotiators, such as the BMA, but it is not entirely clear why these arrangements should have been put into place and why it is necessary for these services to be provided in the way that they are. I notice that the Minister states in the letter that some of us have received that it is an essential part of the new system of primary care that has been negotiated with the General Practitioners Committee and the NHS Confederation. I should be interested to hear from the Minister why that should be so. Why is it so essential? Why have enhanced services been split off in that way from the other services to be provided? What benefits will that provide to patients in those primary care trusts? I beg to move.

Lord Warner

New Section 16CC is a fundamental part of the new system of primary care that has been negotiated by the General Practitioners Committee and the NHS Confederation. It allows PCTs to contract with a range of providers to secure primary services for people in their area. The majority of contracts for primary medical services will be between PCTs and GP practices—through either a GMS contract or a Section 28C contract.

However, it is essential that we give PCTs as much flexibility as possible to ensure that patients can access the full range of services. That is especially true where practices opt out of providing out-of-hours care or other additional services. PCTs will be under a duty to ensure that services are maintained for the patients affected. PCTs will be able to provide services themselves or, where appropriate, commission services from a range of other providers. For example, in the case of out-of-hours services, that would include NHS Direct, GP co-operatives, practice partnerships, paramedics, other GP practices or deputising services, including organisations such as Primecare.

The amendment would remove that flexibility. Let us consider an area where, at present, GPs delegate out-of-hours services to a commercial deputising service. Under the new contract, some GPs may well opt out of having primary responsibility. Suppose that the PCT wanted to recommission the service directly from the current commercial provider. Without that power, it could not do so.

We are also committed to expanding capacity in primary care. In some areas in which there has been a shortage of doctors for many years, the private sector may well be the best route to provide additional capacity to deliver NHS care. However, we remain committed to the contract agreement with the profession that makes clear that existing primary and general medical service practices will have preferred provider status for the new essential services. Again, the amendment would rule that out.

I hope that I have clarified matters for the noble Lord and that he will feel able not to pursue his amendment.

Lord Clement-Jones

I thank the Minister for his reply, although he has not clarified the matter to any great extent. Many ordinary patients will be baffled by his statement that many GPs will opt out of primary responsibility. That is a crucial aspect of the clause. It sits oddly with the Minister's statement that he is committed to expanding capacity. That seems strange, yet he relies on the fact that there is a contractual agreement over which we have no power. In those circumstances, I want to test the opinion of the Committee.

4.14 a.m.

On Question, Whether the said amendment (No. 444) shall be agreed to?

Their Lordships divided: Contents, 8; Not-Contents, 39.

Division No.5
Barker, B.[Teller] Howe, E.
Blatch, B. Noakes, B.
Clement-Jones, L. [Teller] Roper, L.
Colwyn, L. Skelmersdale, L.
Acton, L. Gordon of Strathblane, L.
Amos, B. (Lord President) Grocott, L. [Teller]
Andrews, B. Hollis of Heigham, B.
Archer of Sandwell, L. Hoyle, L.
Bach, L. Hunt of Kings Heath, L.
Bassam of Brighton, L. Jones, L.
Brett, L. Jordan, L.
Brooke of Alverthorpe, L. McIntosh of Haringey, L.
Burlison, L. McIntosh of Hudnall, B.
Campbell-Savour, L. MacKenzie of Culkein, L.
Carter, L. Chandos, V.
Pendry, L.
Crawley, B. Plant of Highfield L.
Davies of Oldham, L. [Teller] Sawyer, L.
Dean of Thornton-le-Fylde. B. Simon, V.
Desai, L. Warner, L.
Evans of Temple Guiting, L. Warwick of Undercliffe, B.
Farrington of Ribbleton, B. Whitty, L.
Golding, B. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.23 a.m.

Lord Roper

We have now spent more time since 10 p.m. considering this Bill in Committee than we did in the whole of the time after Starred Questions until 10 p.m. Will the Government Chief Whip accept that there is now a need for further consultations about progress on the Bill? Otherwise, it will be difficult to maintain the co-operation between the usual channels. That co-operation has taken this Bill a long way forward tonight, but further progress may become increasingly difficult.

Lord Grocott

I suggest that we have a discussion in the normal way. Meanwhile, we should proceed with the next amendment.

Lord Skelmersdale moved Amendment No. 445:

Page 87, line 9, at end insert— "( ) Regulations under subsection (5) may not be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament."

The noble Lord said: As the noble Lord, Lord Clement-Jones, has failed to get satisfaction on what exactly the Government intend on Clauses 170 and 171, it falls to me to have another crack. Subsection (5) of Clause 170 provides a regulatory power to clarify what should or should not be considered as primary medical services for which PCTs and LHBs have the duty to secure provision. For example, it could be used if necessary to maintain a consistent national level of primary medical services that must be provided across all PCTs. Only a few minutes ago, in answer to the noble Lord, Lord Clement-Jones, the Minister said that it is essential that we allow as much flexibility as possible. I do not see how those two statements fit together.

Moving on to Clause 171, on general medical services contracts, we find that subsection (1) inserts six new sections into the 1977 Act providing for the new GMS contracts that replace the current arrangements under Part II of that Act. The point that concerns me is the first provision, new Section 28Q, which gives power for PCTs and LHBs to enter into GMS contracts. A GMS contract is a contract for primary medical services, but it may also include services—this is the point I think made by the noble Lord, Lord Clement-Jones—that are not primary medical services, for example, in heart services that are on the boundaries of primary and secondary care, such as certain more specialised services in areas such as drug and alcohol misuse, sexual health or depression and so on.

Therefore, I am, as I said, somewhat confused. Is the Minister thinking of professions supplementary to medicine as well or, in part, instead? Will we know before the regulations come to be laid, which is the point of Amendments Nos. 445 and 447? If we are not to know in good time, then I propose that we make the regulations affirmative. I beg to move.

Lord Warner

In general terms, we believe that custom and practice will be sufficient to determine the scope of primary medical services. We do not believe that it is wise or helpful for service development to develop a fixed legal definition that could ossify service provision and militate against achieving better integration between primary and acute sectors.

Primary care is a developing field. In recent years we have seen the development of walk-in centres, diagnostic and treatment centres and an increase in the number of GPs with special interests. Medical knowledge is increasing and there is a shift of care from hospitals to the community. It would be impossible to keep an up-to-date definition of primary medical services. So we envisage that the power will be used, for example, only where it is felt necessary to ensure that a particular service is considered within the scope of primary medical services in the event of doubt.

The Lords Select Committee on Delegated Powers and Regulatory Reform has considered the powers carefully. It did not consider it appropriate that they should be made subject to affirmative procedure. The powers are in keeping with existing equivalent powers and the level of scrutiny is appropriate. I see no reason to disagree with its judgment on this issue. We do not support these amendments.

Lord Skelmersdale

Well, my Lords, surprise, surprise. The Minister again has not really answered my point, which was whether we will know exactly what is intended in sufficient time so that we can consider it. If not, that is a very good reason for affirmative regulations rather than negative regulations. I shall read what the Minister said to me in conjunction with what he said to the noble Lord, Lord Clement-Jones. It is to be hoped that I shall make sense of it and that I shall not have to return to this matter on Report. At the moment, I very much doubt it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 170 agreed to.

4.30 a.m.

Clause 171 [General medical services contracts]:

Baroness Noakes moved Amendment No. 446:

Page 87, line 37, at end insert— "( ) Regulations under subsection (1) shall reflect the principle of patient choice."

The noble Baroness said: In moving Amendment No. 446, I shall speak also to Amendments Nos. 451, 452 and 453 in this group, which are about the impact of the patient's perspective on GMS contracts. Amendment No. 446 adds a new subsection to Section 28R of the NHS Act 1977, as inserted by Clause 171 of the Bill. The new subsection states that regulations under Section 28R—about the services to be provided under general medical services contracts—must reflect the principle of patient choice.

As Members of the Committee will know, patient choice has been the cornerstone of our policies for the NHS for many years. We have been pleased to see the gradual conversion to choice within the Government. We were particularly pleased that the Explanatory Notes at paragraph 358 state that patient choice should be reflected in the GMS contract.

The amendment goes further than paragraph (d) subsection (2) of Section 28U because that refers to the rights of patients to choose from whom they are to receive services. That is welcome, but patient choice is about more than just "from whom", it is also about "when", "what" and "how".

While we welcome the acknowledgement in paragraph 358 of the Explanatory Notes that patient choice is important, we do not understand why that choice is confined to the management of patients who recover from illnesses. Paragraph 358 draws a distinction between those patients and patients who are terminally or chronically ill. Apparently, patient choice is not relevant to those patients. That distinction does not appear to be made by the limited paragraph (d) of Section 28U(2), to which I referred a moment ago. Will the Minister confirm that patient choice will be available to the terminally ill or to those suffering from a chronic disease?

Amendments Nos. 451, 452 and 453 are about the important issue of doctors' rights to accept or reject patients. They all amend subsection (3) of Section 28U of the 1977 Act, inserted by Clause 171. Amendment No. 451 has the effect that regulations under Section 28U must deal with the issues of doctors accepting or rejecting patients. The amendment has the effect that the regulations must not only deal with the circumstances, but also deal with the manner in which doctors may act. Amendment No. 452 states that the regulations must cover when a doctor may terminate his responsibility for a patient, but also when he may not.

We fully recognise that there will be circumstances when a doctor must have the right to remove a patient from a list. Violence is the most obvious example, even though here there are difficult issues—for example, in relation to the family of a violent patient. There is much evidence that there are significant concerns about how removal from a list operates in practice. The National Association of Citizens Advice Bureaux says that it regularly receives reports that clients have been struck off lists without a reason being given. It says that these are often patients with serious long-term medical conditions.

I have recently received a worrying letter from a patient with motor neurone disease, with a wife with her own health problems, because they were both removed summarily from the list of their GP and no other local GPs will accept them. The message is that difficult and long-term conditions are not what GPs want on their lists.

I am aware that there is guidance from the Royal College of General Practitioners that a person's condition should not justify removal and that patients should be given a reason. But the complaints go on. So much hope is pinned on the regulations under the Bill. I understand that it is intended that transparent processes will be involved. Will the Minister say what those will be?

I hope that the Minister will also say something about the regulations under this section? When will they be available in draft? The National Association of Citizens Advice Bureaux is particularly concerned that new regulations will be drawn up without reference to the groups representing patient interests. Will the Minister say what consultation arrangements will be made? I beg to move.

Lord Clement-Jones

I rise to speak to Amendments Nos. 450 and 454. The tenor of both amendments is very similar and straightforward: they seek to improve the provisions of the Bill in dealing with disputes over matters such as a GP declining to take on a person as a patient or terminating responsibility for him. I have attempted to ensure that there would be a proper system for the adjudication of such disputes. Amendment No. 454 is rather fuller than Amendment No. 450, but essentially it seeks the same end. There should be an appeal and adjudication procedure so that it would not be possible simply for a patient to be struck off a GP's list; rather, there would be a proper process to go through.

We have seen enough cases involving rather arbitrary decisions about patients on GP lists to know that it is vital to put in place this kind of system. I look forward to the Minister's assurance that some kind of procedure is to be introduced.

Lord Warner

These amendments deal with some extremely important issues around patient registration and choice. Amendment No. 446 would ensure that regulations prescribing essential services would include a reference to the principle of patient choice. On a technicality, I am not entirely sure what the noble Baroness intended by inserting the amendment into new Section 28R rather than Section 28U. On a second technicality, I am not sure that it makes sense to single out choice as the sole condition on the face of the Bill. In delivering services a range of other factors are extremely important, such as the quality of clinical care provided, clinical governance and so forth.

However, on the issue of principle raised by the amendment, I can confirm that the Government are fully in support of delivering better choice in primary care. That is precisely why we are engaged in a major consultation exercise, focusing on offering choice to patients and users of health and social care services, including decisions about "where" and "when" care is received, as well as "what" and "how" someone wishes to be treated and manage their condition. Task groups were formed to look at eight specific areas or themes, one of which is primary care, being chaired by Delyth Morgan.

I can assure the noble Baroness that patient choice will be equally available to all types of patient. That is also why the new contract supports better choice in a number of ways that, given the hour, I shall not elaborate on.

Amendment No. 452 would require regulations to specify the manner in which patients are accepted on to, refused acceptance on to, or removed from a list. We intend that the regulations will make clear a responsibility not to discriminate against patients in the process of registering or deregistering them. And they will require that a reason is given in writing as to why patients are removed by practices from the practice list. Introducing a requirement that sets out the manner in which these processes work is at this stage overly bureaucratic and prescriptive.

Amendment No. 453 would introduce a requirement for practices to keep patients on their lists. The relationship between the patient and the practice is close and personal. If that relationship breaks down on either side, in our experience the breakdown is usually irreconcilable. We do not believe it is wise to introduce a requirement that practices may not deregister patients, nor is it a balanced one given that patients can choose to register elsewhere. The critical issue is whether, in doing so, they are acting reasonably, and this will be addressed by the requirement to set out reasons for deregistration, and not to discriminate on a range of grounds such as race or age.

These arguments apply equally in relation to Amendment No. 450 and the second part of Amendment No. 454, while an appeals process would add further bureaucracy. If patients are unhappy with the way they have been treated, be that in relation to non-acceptance or removal, they should raise their concerns with the primary care trust. This is the case now and should continue to be the case in the future.

It is important to note that when patients are removed from lists they are still entitled to register with a practice, even in the rare case of all practice lists being closed. It will be a requirement for PCTs to ensure that this happens and they have the power to do so, either by provision of services by the PCT or by allocating patients subject to the new process which involves a patient representative.

Amendment No. 451 proposes changing "may" to "must". The Delegated Powers and Regulatory Reform Committee did not make a recommendation on this issue but brought it to the attention of the House and, indeed, to my attention. The Government are committed to making these regulations as part of the implementation of the new GMS contract. I will be bringing forward a government amendment on this section on Report and, as part of that, will be including the change proposed in Amendment No. 451.

Finally, on the first part of Amendment No. 454, which would require regulations to be made to give reasons for patients being refused inclusion on a list, I am sympathetic. This must be right in principle. It is inconsistent to have a requirement to give reasons at the end of the process for deregistration but not at the beginning for refusing to register someone in the event that the practice list is open. Clearly if the practice list is closed due to capacity constraints, that is the reason.

The most appropriate route for progressing this would be the contract regulations rather than the face of the Bill. The department is in discussions with the BMA about the policy underlying those regulations and I can confirm that I will be in a position to set out the outcome of those discussions on Report. The noble Lord may wish to withdraw the amendment in the light of this assurance.

Lord Clement-Jones

I shall digest what the Minister said about the appeal procedure. I am heartened by what he said about giving reasons and the discussions taking place with the BMA. I seek his assurance that organisations representing patients' interests will also be consulted in that process. As I understand it, there has been no discussion with them to date in this area and it would be valuable.

Lord Warner

I take the noble Lord's point.

Baroness Noakes

I asked about consultation on the provisions in the regulations for changing doctors. I said that the National Association of Citizens Advice Bureaux is particularly keen that patients' groups should be involved in drawing up the regulations. Can the Minister say something about that?

Lord Warner

There will be consultation on the regulations.

Baroness Noakes

I am grateful to the Minister for that. As 1 said, it is regarded as important by patients' groups. 1 thank the Minister for the assurances he gave. I look forward to the amendment he will bring forward on Report and I shall read carefully what he has said. I believe he has answered many, if not all, of my points but, in view of the time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 447 not moved.]

Lord Warner moved Amendments Nos. 447A to 447C:

Page 88. line 15, leave out "or a section 17C employee" and insert ", section 17C employee or Article 15B employee" Page 88, line 18, leave out from "individual" to end of line 23 and insert "falling within section 28D(l)(bc) above" Page 88, line 36, leave out "and "section 17C employee"" and insert ", "section 17C employee" and "Article 15B employee""

On Question, amendments agreed to.

Earl Howe moved Amendment No. 448:

Page 88, line 44, leave out from beginning to end of line 14 on page 89.

The noble Earl said: Proposed new Section 28T sets out the provisions governing payments under the GMS contract. I have tabled this probing amendment to find out what is meant by subsection (3)(a), (b) and (d) in particular. Paragraph (a) appears to cover targets and paragraph (b) schemes and scales of payment that are unspecified. It would be helpful to hear what these may comprise.

A great deal of money for the GMS contract is targeted towards quality and outcomes. How are the targets to be set, what will they be and who will police them? The Minister will by now realise that I am suspicious of targets because, unless they are clinically based, they are likely to lead to skewed priorities which may not necessarily be in the interests of patients. I make an exception for public health targets such as vaccinations, but if the targets are not public health-related, my suspicions return.

Paragraph (d) covers conditions. The only example of such a condition given in the Explanatory Notes is payments for seniority, which seems a very odd basis on which to make payments as it has nothing to do with either competence or quality of outcomes. It would be helpful if the Minister could explain the implications and meaning of these proposals in a little more detail. I beg to move.

Baroness Barker

I shall speak briefly to Amendment No. 449, which echoes the words of the noble Earl, Lord Howe. We, too, feel great disquiet that a target system is based on treatments or proportions of treatments that are delivered rather than health outcomes. We think that could cause quite severe difficulties not only for medical practice but for the nature of the doctor-client relationship.

The BMA is concerned that if exceptional reporting systems are not in place for all target payments, there could be a skew. As the noble Earl, Lord Howe, said, the GMS contract contains several pages detailing the making and achievement of payments. There is a very complex points system under which GP practices are to be rewarded, precisely to improve the numbers of treatments given. We do not see that that can be justified by itself in clinical outcomes. If a patient chooses not to have vaccinations or immunisations, what does that do to the GP practice in question?

Lord Warner

Perhaps I could deal first with Amendment No. 448. The power in proposed Section 28T is needed to implement the national agreement that was reached between the NHS Confederation and the GPC. Subsection (3) sets out how the power to make directions may be exercised. It makes it clear that payments may be determined by reference, for example, to the meeting of standards. In this way, it provides for the quality and outcomes framework. This framework represents, for the first time, that the NHS will significantly reward general practices for the quality of care delivered to patients. It recognises and rewards their clinical professionalism, not just the number of patients on their list.

It is not a series of targets for GPs. The contract does not include a required level of achievement. The framework is voluntary—it is based on best academic evidence. It was proposed by the BMA, which negotiated and agreed it with NHS employers.

Subsection (3) also allows for directions to be made that take effect from a date earlier than the direction where this would overall be favourable to the contractor. This may be used, for example, where negotiations to review payments conclude that new or revised payments should be backdated to the beginning of a year. This has been essential in the past and the power will doubtless be used again. Sometimes these payments are about new services that will deliver benefits to patients, such as vaccinations. I do not think that patients or the profession would wish to see that power amended.

On Amendment No. 449, I have to say that the United Kingdom has one of the most successful vaccine programmes in the world, with high levels of uptake. This has been achieved by the hard work of GPs and enforced by a system of targeted financial incentives. This is for the good of the public's health.

The target payments scheme incentivised levels of uptake; it protects children not only individually but collectively in the wider community, especially those for whom immunisation is contra-indicated. Removing the target payments would have an unpredictable effect on vaccine uptake levels, but it is more likely to be adverse than advantageous to the public health. It could well perpetuate coverage that is insufficient for the protection of the wider community.

The new contract makes it clear that we will be discussing with the BMA how we can use the target payments more effectively in a way that meets general practitioners' concerns and encourages even higher uptake levels, protecting children from potentially life-threatening diseases. It is also worth noting that the BMA negotiated and agreed the directed enhanced service specification for childhood vaccinations in the contract. That includes the existing target payments. Aside from a potentially adverse effect on public health, the amendment would cut across part of the deal that GPs voted on and undermine our ability to deliver the contract agreement.

Earl Howe

I am grateful to the Minister for his full reply. He once again shed light on the clause, as I hoped that he would. I shall study his remarks and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 449 not moved.]

Lord Warner moved Amendment No. 449A:

Page 89, line 30, at end insert—


  1. (1) A general medical services contract must contain provision requiring the contractor or contractors to comply with any directions given by the appropriate authority for the purposes of this section as to the drugs, medicines or other substances which may or may not be ordered for patients in the provision of medical services under the contract.
  2. (2) A direction under this section must, subject to subsection (3), be given by regulations.
  3. 1488
  4. (3) A direction under this section may be given by an instrument in writing where it gives effect to a request made in writing to the authority making the direction by a person who is a holder of a Community marketing authorization or United Kingdom marketing authorisation in respect of the drug, medicine or other substance to which the request relates.
  5. (4) A direction under this section given by an instrument in writing may be varied or revoked by a further direction under this section (whether given by an instrument in writing or by regulations).
  6. (5) In this section—
  7. "appropriate authority" has the same meaning as in section 28T above;
  8. "Community marketing authorization" and "United Kingdom marketing authorisation" have the meanings given by regulation 1 of the Medicines for Human Use (Marketing Authorisations Etc.) Regulations 1994 (S.I. 1994/3144)."

The noble Lord said: Government Amendments Nos. 449A, 457B and 464ZF are made in response to the Delegated Powers Committee report. They make it clear that directions in respect of the drugs, medicines, and other substances that may or may not be ordered for patients will be made by regulations, except where there is a request from a holder of an EU or UK marketing authorisation and the directions give effect to that request. In that case, directions may be given in an instrument in writing.

Any decision to restrict the availability of the medicines on GP prescription is taken only following a period of public consultation. We consult the manufacturer. Additionally, we consult professional representatives, patient representatives and other organisations with an interest to take into account as wide a range of views as possible. We do not intend to alter the arrangements. The consultation document would explain the rationale behind each proposal, including the available evidence on clinical and cost-effectiveness, if appropriate.

The relevant EU legislation is the so-called transparency directive, which obliges the Secretary of State to give a statement of the reasons for introducing a restriction based on objective and verifiable criteria. In addition, if there are expert opinions on which the decision is based they should be sent along with the decision. Those procedures safeguard the interests of patients and manufacturers.

I trust that these amendments and clarifications satisfy the concerns that have been expressed. I beg to move.

Lord Clement-Jones

In view of the hour, I do not propose to speak at length on Amendment No. 457A, which was tabled in my name. Suffice it to say that there are very good arguments against the selected list today, versus the time when the selected list was introduced under the 1977 Act. I intend to return to those arguments at a later stage.

Earl Howe

I thank the Minister for responding positively to the recommendations made by the Delegated Powers Committee on the issue of non-prescribable drugs and the regulatory procedure that should govern them. Amendment No. 459 was designed to flag up the issue, and I have no objection to what the Government are now proposing.

On Question, amendment agreed to.

[Amendments Nos. 450 to 455 not moved.]

Lord Grocott

I beg to move that the House do now resume.

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

House resumed.

House adjourned at six minutes before five o'clock.

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