HL Deb 13 February 1973 vol 338 cc1423-533

4.0 p.m.

Report stage resumed.


My Lords, we have had a long and interesting discussion—


My Lords, I am most grateful to my noble friend for giving way. I am prepared to speak either before or after him, whichever suits him better. I do not think he is likely to agree with what I say, or even necessarily to satisfy my wishes. I listened to all the speeches on this group of Amendments, and I think I can safely say that I agreed with something that everybody said and disagreed with something that everybody said. I think we must realise that what we are discussing is the second tier—and the membership of an authority of the second tier—of the National Health Service, there being four tiers in all. There is the Secretary of State at the top, there is the district at the bottom —and this is really where all the work will be done, even though it may not be recognised by Statute. Then there is the area, the new body which is being interpolated into the system, and in between the area and the Secretary of State we have the region. I have to confess to your Lordships that I find that the regional authority may be necessary—I am not totally convinced by all the arguments—but I see it as a tier between the Area Authority and the Secretary of State whose powers will, I hope, be very limited indeed.

What we are discussing is the membership of the Regional Authority as it stands, and I certainly share all the misgivings of my noble friend Lord Cobbold as to what this may mean in the extra work, the extra bureaucratic work, that may be involved in the accountability of the areas to the region, and of the regions to the Secretary of State, and the contrary devolution downwards. Nobody whom I know thinks that there will be any less administrative staff at district level. I have yet to hear, though, of any less staff at the regional level, so the Area Authority will probably be added as an extra burden on the Health Service and ultimately on the taxpayer. We are, as I said, discussing membership, and I have given some consideration, while I have been temporarily absent from your Lordships' House, to what I think should be the right kind of membership.

In the Bill the Secretary of State is reticent about the actual numbers, and one point that I liked in the Amendment of the noble Baroness, Lady Scrota, was that she was at least specific as to the minimum and maximum numbers that there should be. But I certainly could not go so far with her as to say that one-third of the Regional Authority should be local government members. On the other hand, I think there is a strong case for some local authority representation. I therefore unhesitatingly support the Amendment of my noble friend Lord Brooke.

I do not want to enter into a duel with the noble Lord, Lord Brown, or even in absentia with Professor Jacques, whom I know and for whose opinions I have the greatest respect. I should like to see some of Professor Jacques's other opinions on this proposal published, as well as those in The Times. I agree with him very strongly that this is a National Health Service and that that therefore limits the majority of members to being appointed directly or indirectly by the Secretary of State. But I should have thought there was a very strong case at this, to me, superfluous Regional Authority level, for having the equivalent of what in the business world are known as non-executive directors, outside directors. I do not think this would in any way impinge upon the managerial functions that the authority has to exercise, but it would bring in at that difficult level, that almost fictional level, of the region, some idea of the needs as expressed to local authority members. Therefore, I very strongly support my noble friend Lord Brooke and I hope that he will in due course press his Amendment to a Division. I should also like to speak about the other matter—


My Lords, may I interrupt the noble Lord for one second before he passes on to another matter? I think the whole issue is bedevilled with difficulty over the use of words. A few minutes ago, the noble Lord said that he agreed with the Amendment of the noble Lord, Lord Brooke, because it got some representatives of local authorities on to the Regional Hospital Authorities. With great respect, it does nothing of the sort. The Secretary of State—if the Amendment of the noble Lord, Lord Brooke, is accepted—will appoint them. They may be people with local authority experience, but they will not represent local authorities. It is these subtle meanings of words which are so pregnant in this discussion.


My Lords, I am not quite sure about which words of mine are, or are not, subtle or are, or are not, pregnant, but I do not think I want to enter into too detailed a discussion with the noble Lord at this stage as to the exact meaning of every word that he used and I used. I think I know perfectly well what I meant and I only hope that most of your Lordships do as well. It is very important that there should be somebody appointed, if you like from outside but not by the Secretary of State, who can be critical at the Regional Board level.

I was speaking about the other Amendment which relates to the Area Health Authorities. This I would not necessarily support as it stands, but I think it brings into the open a very important point which has not really been discussed at any stage of this Bill; that is, the relations between the Area and the Region. At all stages, the Government have laid great stress on the importance of the Area Health Authority and the Secretary of State has reserved for himself the right to appoint the chairman of each Area Health Authority. I think this is right; I think this is wise. But what I want to know, and what I should like to hear from my noble friend, is how he visualises the relationships between the Area Health Authorities and the Regional Health Authorities. It is a little difficult to explain the kind of problem I have in mind, but I think I can safely say that most people know that on occasions the relations between the existing Regional Hospital Boards and hospital management committees have not always been as happy as they might have been. I think this is very sad and a great deal of blame can be expressed on both sides. I do not necessarily want to suggest that this applies always, but I think there would be a case for considering—even if it is only as co-opted members—that the Area Health Authority chairmen should form part of the Regional Authority.

I have had some opportunity of listening to the views of those in authority on this suggestion, and the only answer I get is, "Oh! well, that will place too much work on the Area Authority chairmen". If that is so I suggest that that might be met by the appointment of deputies. But I do not think that that is a very valid argument, and if the regional authorities are to have their powers limited and their wings clipped, as I think they should have, then it is more important that the Area Health Authorities, on whom the real burden of the executive work and the planning will fall, and who no longer have any direct access to the Secretary of State, should have a voice at the authority level on the board of the authority. I hope that, if possible, my noble friend and the Secretary of State will give a lot of thought to how they are going to limit the powers of the regional boards, so that we do not see what we have seen over the last 25 years—a considerable increase in the power of the regional boards, at the expense of the hospital management committees. I put forward those views about the Area Health Authorities not, I hope your Lordships will think, in any critical way particularly, but because I think it is a matter which has not been given enough thought; and many of us think that as the various Grey Books, Blue Books, and all the rest have evolved, more and more power has been taken away from the areas and given to the Regional Boards.

4.10 p.m.


My Lords, I think we have now heard all shades of opinion on this matter of the membership of Regional Health Authorities, and, having listened very carefully to what has been said, I hope that I can satisfy those noble Lords who have spoken on this side of the House that my views are not very different from theirs and that I can meet most, if not all, of their requirements. But I am afraid that, having had the pleasure of talking to the two noble Baronesses and the noble Lord opposite, though we had some useful discussions on this matter and perhaps more profitable ones on other matter, I think that the gulf in principle between us is probably unbridgeable, and is certainly unbridgeable in the terms in which the noble Baroness, Lady White, spoke to us to-day—reverting, I thought, to the Amendment that she had down at Committee stage—that is to say, asking for an Authority that was made up partly of consumers and partly of the medical profession, and leaving the Secretary of State in the minority.

Our view is that the Regional Health Authority, as the principal agent of the Secretary of State for carrying out his policies, should be appointed by him, of course after consultation. After all, as the noble Lord, Lord Brown, said, he is responsible to Parliament for enormous sums of public money—almost £2,000 million a year; double the expenditure of the National Coal Board, for example, and more than I.C.I. or British Leyland. In view of those huge sums, we owe it, I should have thought, not only to the taxpayers but to all those of us who are not only taxpayers but potential patients, that they should be properly and wisely spent. I do not see how that can be assured unless the Secretary of State has real responsibility for the service which he administers. I believe, therefore, as I said on Committee stage, that he should have the freedom to appoint members of Regional Health Authorities for their own personal qualities, although undoubtedly included in those qualities will be experience of local government, medical knowledge and nursing skills, and the qualities of those other citizens who were described as outside directors, I think, by my noble friend Lord Reigate. I certainly think it would be wrong to provide for one-third of the membership of the Regional Health Authority to be nominated by the local authorities.

I should first of all like to try to assure my noble friends Lord Brooke and Lord Amory that we believe in the need for the closest possible relationship between the local authorities and the National Health Service; but we believe this to be crucial at the Area Health Authority level. This is the level of the senior tier, of the county tier, in the non-metropolitan county. This is the tier where we believe it is essential to have every possible co-operation between the two bodies, and we have strained every muscle to ensure that it is there. It is written into the Bill in Clause 10; we have working parties examining every facet of collaboration; and we have even made one significant exception to the normal rule by allowing the local authorities to appoint themselves members of Area Health Authorities. The noble Lord, Lord Brown, pointed to this illogicality at the Committee stage. It is illogical, but it is indicative of our desire for close co-operation and collaboration.

My noble friend Lord Brooke of Cumnor has put down a later Amendment to this Bill, No. 37, which dots the "i's" and crosses the "t's" of the cross-membership, the power of the local authority to appoint members to the Area Health Authority. He asks in his Amendment for four members, and I certainly intend to accept that Amendment. It is at that level, I suggest, that the local health services, which have been mentioned a great deal this afternoon, will be planned and administered. That will be the task of the Area Health Authority, and there will be those four members from the corresponding local authority. But at the Regional Health Authority level there is no corresponding tier of local government; and although I accept the importance of having local authority members on every Regional Health Authority, I think it would be disproportionate if they were to appoint one-third of them. One other reason why I think this would be dangerous is that it would at once arouse the suspicions of other interests, of other people, who are anxious to have the right to appoint members to Regional Health Authorities, and it would be very hard to resist their pleas.

My noble friend Lord Brooke of Cumnor has also spoken to his Amendment on Regional Health Authority membership—the next one, No. 34—and I must say that I have much more sympathy with this Amendment because it retains the right of appointment by the Secretary of State, but I hope I shall be able to persuade my noble friends that much of what they are pressing for will be provided in the arrangements for appointing members to the Regional Health Authorities. First of all, there will certainly be members from local authorities on every Regional Health Authority. Secondly—and this was a question which my noble friend Lord Amory put to me—these members will be appointed after consultation with the main local authorities in each region; that is, the counties, the metropolitan districts, the Greater London Council, the London borough councils and the Common Council of the City of London. Thirdly, I can assure your Lordships that the people appointed by the Secretary of State will certainly be people currently active in local government. That is another assurance for which I think my noble friend Lord Brooke of Cumnor asked me. Fourthly, the local authority members of the Regional Health Authorities will not be drawn, as will their counterparts on the Area Health Authorities, only from the metropolitan districts and non-metropolitan counties.

But, my Lords, I still think, as I tried to explain at Committee stage, that we should leave the Secretary of State some freedom to decide on the exact number of local authority members on individual Regional Health Authorities. As has been pointed out, the regions vary so much in size, in population, in complexity and in the number of local authorities concerned. It is true that we have proposed a minimum of four members on the Area Health Authorities, but there the situation is very different. Each Area Health Authority outside London will have a matching local authority available to make appointments. In the regions there is no such correspondence of boundaries, and there will be anything from three to eleven main local authorities within the health regions. I have a fear that to prescribe a minimum number of local authority members might imply some sort of right to representation which for some of the authorities, or even many of them, could not possibly be satisfied, in view of the numbers of them.

I think it would be useful, to help particularly my noble friend Lord Reigate, if I said something about the functions of the Regional Health Authority and the Area Health Authority and the relationship between them. What I will say relates only to England, because there are no Regional Health Authorities in Wales. I would say that there has never been any intention that the Regional Health Authority's function should be exercised by oppressive interference in the Area Health Authority's management of the services in its area. Since my noble friend Lord Reigate has been away, the reorganisation Circular HRC(73)3 has been issued (this was at the beginning of this month) to the existing health authorities and the joint liaison committees. This circular sets out the Secretary of State's decisions on the main proposals made in the Report on management arrangements. The Circular was sent to interested bodies for their views last September.

I should like to quote from paragraph 6. It says: The principal means of achieving accountability between the statutory authorities should be a planning and monitoring system closely linked to financial estimates and budgetary control. It goes on: It follows that once plans and budgets have been agreed between the Regional Health Authority and the Area Health Authorities of the region"— and I stress the word, "agreed"— it will be possible for responsibility for carrying out the plans to be delegated to the Area Health Authorities so that involvement of the Regional Health Authority in the running of the services for which responsibility has been delegated will be minimal. The arrangement places a very large measure of initiative and responsibility for the planning of area services, and virtually complete responsibility for that operation, on the Area Health Authorities. It is therefore at the area level that close planning and working links with the local authorities are so important. The important role of the Area Health Authorities in planning as well as operating the National Health Service, and the close links they will have with their matching local authorities, will ensure that these local authorities have a full say in planning matters.

My noble friend Lord Brooke of Cumnor specifically put three points to me. On the first, I can assure him, as I tried to do so last time, that not all the people appointed to these bodies will be management "kings"; they will be a cross-section of people with varying skills and qualifications, some drawn from local authorities, some from the medical profession. We are flexible on the total numbers of the Authorities. We have suggested about 15 as a manageable number. This will depend on the makeup of the region and I am prepared to be flexible on the total numbers, and flexible on the numbers that will be drawn from any one interest, be it local authorities or doctors. All I am asking your Lordships and my noble friend is to allow us flexibility not to write specific figures into the Bill. I can give a third assurance that the members of local authorities who will be appointed by the Secretary of State, after consultation, will be active members of local authorities.

Finally, I think that in considering Section 106 of the White Paper, to which he drew attention, we are at one in what we are seeking to accomplish; but it is rather a matter of using difficult words. There is a distinction between a body which collectively represents the interests of the public and a body whose members are individually appointed to represent the interests of a particular section of the public. The basic job of the R.H.A. and the A.H.A. must be to plan and administer services in the interests of the public. In that sense we believe that we shall meet what my noble friend is asking for in the new service; but we do not feel that the interests of the public are best served by setting up governing bodies which comprise a spectrum of sectional interests. What we are proposing is authorities whose members will for the most part be chosen for the personal contribution they can make.

My Lords, I digress for a moment to answer my noble friends Lord Cobbold and Lord Reigate on the question of cost. I shall quote briefly from the circular I mentioned; perhaps noble Lords would like to study it in more detail later. Section 44 says that reorganisation must be carried out within available resources of manpower and money. Section 45 says that the first task of the new authorities must be to constitute the teams in regions, areas and districts, to make appointments to the other bodies described in paragraphs 13 to 32 and to establish lines of accountability between authorities and staff at present providing services on their transfer to the authorities' employment on April 1, 1974, so that on that date all members of the staff know their responsibilities pending the determination of schemes of management. Section 46 says that the next main task of the authorities, with the help of their senior officers, will be to draw up and consider schemes of management covering appropriate levels below the top posts. This phase may take from 12 to 18 months after April 1. 1974: it is a long-term process. At the moment, the joint liaison committees are considering the matters of accommodation and staffing and individual costs will emerge from that.

My right honourable friend recognises that one of the prime objects during the period leading up to the reorganisation, as well as for some time afterwards, must be at least to maintain the present standards of service; and in requiring only these few main, though important, innovations he has in mind that an attempt to do too much too fast might jeopardise the standards and might also lead to unnecessary additional expenditure in administration. I can only say that these matters are only in my right honourable friend's mind. He is determined to move slowly in order not to build up a vast administrative machine at the expense of the services themselves.

Reverting to the Amendments that we are considering, I cannot advise the House to accept the Amendments in the name of the noble Baroness, Lady Serota, the noble Lord, Lord Garnsworthy, and the noble Baroness, Lady White, and I hope that, in view of the assurances I have given to my noble friends Lord Brooke and Lord Amory, they may feel disposed not to move their Amendments.


My Lords, before the noble Lord sits down, in order to help the House and to save time, may I ask whether he would like to reply to the point that I made on Area Health Authorities within the area of each Regional Health Authority becoming a part of the Schedule under 2(a)? I mentioned this in connection with Amendment 35 when moving my Amendment No. 33.


My Lords, this Amendment would oblige the Secretary of State to include Area Health Authorities among the bodies to be consulted before he makes appointments?


Yes, my Lords.


My Lords, I can only say that it might well be that the Secretary of State would decide to consult the chairman of some of the Area Health Authorities within a region before making appointments to a Regional Health Authority. There is nothing in the Bill to prevent him from doing so, or indeed, from consulting more widely among people who are A.H.A. members. But we think that it would be wrong to prescribe that the Area Health Authorities within the area of the R.H.A. should be consulted before R.H.A. appointments are made. The A.H.A.s are the agents of the R.H.A.s and are accountable to them in the line of responsibility; and we think it illogical that in appointing one body, the Regional Health Authority, the Secretary of State should be required to consult the agents of that body, the Area Health Authorities. So, my Lords, I am afraid that I am not happy about that particular Amendment and I could not advise its acceptance.

4.32 p.m.


My Lords, I am rather at a disadvantage over this matter as I have not been able to follow the whole of the debate. But I have listened with great care to the Minister's reply to the speech of my noble friend Lord Reigate. There is one matter which troubles me very much, and perhaps I might ask the Minister whether he could help me by stating the Government's attitude to a particular point. My noble friend Lord Aberdare appeared to me to regard it as being a virtue in these authorities that they should be non-representative; that is, that they should have no direct connection other than a decision by the Secretary of State to select someone who happened to have experience in local government or whatever it may be.

I can see that the power of the Secretary of State to appoint these bodies will give the Secretary of State confidence in the ability and personality of the bodies to carry out their duties. But what seems to me to be missing is the confidence in these bodies, which is so essential, from the people who are the users—the sick, the doctors and others. Is there no consideration in the mind of the Government that in fact these bodies should have some representative element on a local government basis and, I would have thought, on a wider basis as well? Not so much to provide confidence, so far as the Secretary of State is concerned, in the ability of bodies to use the moneys which the Secretary of State is providing for them to the best advantage of the public, but in the interests of ensuring that the public, the ordinary folk who are going to find these bodies very remote, have confidence in the way they are conducting an immense social service upon which the life or death of many people may depend.

My Lords, I have been very disturbed by the Local Government Act which we passed in the last Session. I have not been able to take any part in this discussion, but I am disturbed by the whole philosophy which seems to me to run contrary to the tradition of public administration in this country: the centralising of everything in the hands of the men in Whitehall who, for all I know, may well know best, and taking it away from those who at any rate know local conditions and local people in the local government organisation which we have brought into being. I fear that what will happen as a result of all this is not that the Secretary of State is going to use his best judgment, but that this will be completely in the hands of officials at all levels. That would apply to local government as well. I speak without any great knowledge, and I apologise for keeping your Lordships at this time, but I do not believe that this organisation will work over the long term because it will not be able at all levels to retain the public confidence which is essential in respect of every public service.

4.35 p.m.


My Lords, I do not think that I can answer in a word. My noble friend is striking at the root of the management arrangements that exist in the Bill. The fact is, as I tried to explain, that there are vast sums of public money involved and we are seeking bodies which will not be inhuman bodies. After all, everyone is a potential patient whether he be a doctor or a local authority representative. The members of these bodies will be selected by the Secretary of State for their personal qualities, for their overall experience, and we hope to get the best sort of organisation, one which ultimately will bring benefit to the patient.

The noble Baroness, Lady Serota, may like to know that what one gets now are reports like the Hospital Advisory Service Annual Report, a sentence from one of which reads: I am also concerned at the very considerable gap between generally accepted policies and the reality of the Service as patients find it. This is because we have not got a proper management structure at the moment. But in order to safeguard the very patients that my noble friend is talking about we have introduced, for the first time, a new concept of community health councils to which we shall be turning if we reach that point at a later stage this evening—not to mention, in the last resort, the Health Service Commissioner.

4.37 p.m.


My Lords, first, on behalf of the whole House, I must thank the noble Lord, Lord Aberdare, for his very careful and detailed reply in relation to the arguments put forward about this very important group of Amendments. We have now debated this matter on a number of occasions, even before the Bill reached your Lordships' House when we were considering the Consultative Document and then again during the debate on the Queen's Speech at the beginning of the Session. Therefore, I will not attempt to go through all the arguments again. The noble Lord, Lord Alport, with a brilliance and incisiveness which I certainly could never emulate, said in a very few words what some of us have been saying so inadequately in very many more words. I think he expressed a feeling that, regardless of Party loyalties, is shared by noble Lords on both sides of the House; even by those who cannot support us in respect of the Amendment we are moving to-day. I very much hope that the Government will take heed of that because none of these feelings has been expressed—certainly not from this side of the House—in any anti-Government sense.

I longed once again to take issue with my noble friend Lord Brown but one really must resist the temptation to debate organisational theories when one sincerely holds beliefs which differ. I shall never convince the noble Lord, Lord Brown, and in fact he is the only ally that the noble Lord, Lord Aberdare, has in this House. This has become evident time and again as we have debated these matters. I still find it very difficult to see why you spend more wisely if you are an appointed member of an authority than if you are an elected member. That is something I cannot accept. Nor can we on this side of the House accept that there is this rigid division between the management and the representative function.

Yesterday afternoon, when we listened to the noble Baroness, Lady Elliot of Harwood, telling the House how in the area of her local authority she had set about formulating a policy of sex education in the local authority schools, I could not help thinking that it was a perfect demonstration of the best kind of member-officer relationship as demonstrated in local government and one which combined management and representative functions. I could certainly not put it in better words or give a better practical illustration than the noble Baroness gave.


My Lords, may I ask the noble Baroness, who knows so much about these matters, whether she would not agree that there are many examples of excellent member-official co-operation in the present National Health Service?


Yes, my Lords, and I am only too anxious to encourage it. One of my fears at the moment is that the rigid structure which is to be imposed will discourage that. I think that this fear is genuinely felt by many who are concerned with the development of an efficient Health Service to-day. As I listened to the noble Lord, Lord Aberdare, I had a feeling that he was, through assurance though not through acceptance of the Amendment itself, seeking to meet the points made by his noble friends Lord Brooke of Cumnor and Lord Amory. It is, of course, entirely for them to decide how they receive the noble Lord's remarks. But in the case of the Amendment which I moved I think that, quite rightly, fairly and frankly, the noble Lord, Lord Aberdare, stated that there is a deep division between us on the grounds of principle.

This is a point that I made at the Committee stage but I withdrew my Amendment at that time because the noble Lord gave an undertaking to think about it again and kindly agreed to meet and talk with us. But there is this division on principle and, as I said in Committee, there are occasions when one should not

seek to paper over the cracks. We on this side—and I hope that the House will agree—have not sought throughout the passage of the Bill to press Amendments to a Division or to take up the time of the House by repeating arguments over and over again on individual details involved in the legislation. We have sought to concentrate the attention of the House on principle. That I think we must seek to do to-day through this Amendment, which I am unable to withdraw, because I feel we ought to test the feeling and to see where noble Lords stand on the important issue of democratic principle involved.

4.41 p.m.

On Question: Whether the said Amendment (No. 33) shall be agreed to?

Their Lordships divided: Contents, 75; Not-Contents, 93.

Addison, V. Greenway, L. Ritchie-Calder, L.
Alport, L. Hale, L. Royle, L.
Arnherst, E. Hall, V. Rusholme, L.
Amulree, L. Hayter, L. St. Davids, V.
Archibald, L. Henderson, L. Sandys, L.
Ardwick, L. Henley, L. Seear, B.
Arwyn, L. Heycock, L. Segal, L.
Balogh, L. Hoy, L. Serota, B.
Beaumont of Whitley, L. Jacques, L. [Teller.] Shacklcton, L.
Beswick, L. Leatherland, L. Shinwell, L.
Blyton, L. Llewelyn-Davies of Hastoe, B. Slater, L.
Brockway, L. Longford, E. Stow Hill, L.
Buckinghamshire, E. Loudoun, C. Summerskill, B.
Byers, L. McLeavy, L. Swaythling, L.
Champion, L. Maelor, L. Taylor of Mansfield, L.
Chorley, L. Masham of Ilton, B. Thurso, V.
Citrine, L. Meston, L. Vivian, L.
Donaldson of Kingsbridge, L. Nunbumholme, L. Wade, L.
Douglas of Barloch, L. Ogmore, L. Walston, L.
Douglass of Cleveland, L. Pargiter, L. Wells-Pestell, L.
Essex, E. Peddie, L. White, B.
Gaitskell, B. Phillips, B. Willis, L.
Gardiner, L. Popplewell, L. Wootton of Abinger, B.
Garnsworthy, L. [Teller] Redcliffe-Maud, L. Wright of Ashton under Lyne, L.
George-Brown, L. Rhodes, L.
Aberdare, L. Clwyd, L. Ebbisham, L.
Ailsa, M. Cole, L. Eccles, V.
Albemarle, E. Colville of Cutross, V. Elliot of Harwood, B.
Ashbourne, L. Colyton, L. Emmet of Amberley, B.
Atholl, D. Conesford, L. Ferrers, E.
Auckland, L. Cottesloe, L. Fortescue, E.
Balerno, L. Courtown, E. Gisborough, L.
Balfour of Inchrye, L. Cowley, E. Gowrie, E.
Bath and Wells, L. Bp. Craigavon, V. Grenfell, L.
Belstead, L. Croft, L. Gridley, L.
Berkeley, B. Daventry, V. Grimston of Westbury, L.
Blake, L. de Clifford, L. Hailsham of Saint Marylebone L. (L. Chancellor.)
Brock, L. Denham, L. [Teller.]
Brooke of Cumnor, L. Drogheda, E. Hanworth, V.
Brooke of Ystradfellte, B. Drumalbyn, L. Hurcomb, L.
Brown L. Dundonald, E. Hylton-Foster, B.
Ironside, L. Molson, L. St. Aldwyn, E. [Teller.]
Jessel, L. Monck, V. St. Helens, L.
Killearn, L. Mowbray and Stourton, L. Sandford, L,
Kindersley, L. Napier and Ettrick, L. Selkirk, E.
Kinloss, Ly. Northchurch, B. Semphill, Ly.
Kinnaird, L. Nugent of Guildford, L. Somers, L.
Limerick, E. Oakshott, L. Strang, L.
Long, V. Onslow, E. Strange, L.
Lothian, M. Orr-Ewing, L. Strathclyde, L.
Lovat, L. Porritt, L. Stratheden and Campbell, L.
Lucas of Chilworth, L. Rankeillour, L. Swansea, L.
Malmesbury, E. Reigate, L. Templemore, L.
Mancroft, L. Rothes, E. Wakefield of Kendal, L.
Mansfield, E. Rowallan, L. Ward of Witley, V.
Merrivale, L. Ruthven of Freeland, Ly. Young, B.
Milverton, L.

On Question, Amendment agreed to.

4.50 p.m.

LORD BROOKE OF CUMNOR had given Notice of his intention to move Amendment No. 34: Page 50, line 9, at end insert ("including four or more persons who at the time of their appointment are members of local authorities within the Region.").

The noble Lord said: My Lords, I have spoken to this Amendment in the general debate that we have had on the noble Baroness's Amendment, and I have listened carefully to what my noble friend Lord Aberdare said. I feel in some difficulty, but in view of the series of explicit assurances that my noble friend gave in his reply and his promise that he will accept my similar Amendment when we come to it relating to Area Health Authorities, and having had an opportunity of discussion with my co-signatory, my noble friend Lord Amory, during the course of the Division, I propose not to move this Amendment.

4.51 p.m.

LORD ABERDARE moved Amendment No. 36:

Page 50, line 25, leave out paragraph (d) and insert— ("(d) any federation of workers' organisations which appears to the Secretary of State to be concerned and any voluntary organisation within the meaning of section 13 of this Act and any other body which appear to him to be concerned; and").

The noble Lord said: My Lords, this Amendment arises from an undertaking I gave at Committee stage to the noble Baroness, Lady Scrota. She had an Amendment down to include trade unions and voluntary organisations in consultations about appointments to Regional Health Authorities, and I hope the Amendment we now have on the Marshalled List will satisfy what the noble Baroness had in mind. I beg to move.


My Lords, it is a particular pleasure, especially after the discussion and decision that we have just had, to be able to thank most sincerely and genuinely the noble Lord, Lord Aberdare, for moving this Amendment which, as he has just explained, springs from a request which we made at Committee stage. I was particularly pleased, though perhaps a little surprised, to see the way in which the Government have decided to word it. The words "any federation of workers' organisations" are, in my experience, fairly unique in a Statute. All I would ask the noble Lord is whether in fact the phrase is meant to include all ranges of staff employed within the Service in recognised workers' organisations. We are, of course, equally pleased to see the specific reference that will now appear in the Bill about "any voluntary organisation", in view of their contribution to the Service.


My Lords, the phrase "federation of workers' organisations" means the Trades Union Congress. The difficulty was over the wording of the phrase. I understand that the T.U.C., as such, meets only once a year and therefore we had this difficulty in finding a proper form of words. It has always been the practice of the Secretary of State, in appointing Regional Hospital Boards, to consult with the T.U.C., and these words really mean the T.U.C., but if there were to be any other federation of workers' organisations which appeared to the Secretary of State to be concerned, then I have no doubt that would be covered.

LORD BROOKE OF CUMNOR moved Amendment No. 37: Page 51, line 7, after ("members") insert (", being not less than four in any area,").

The noble Lord said: My Lords, this matter really arises out of the statement in paragraph 98 of the White Paper that the Government intended that four members of the Area Health Authority should be appointed by the corresponding local authority. However, the number four did not appear in the Bill, and it seemed to me desirable that a minimum of four should he statutory and that the terms of the Bill should indicate that number to be a minimum and not a maximum. I have been encouraged by hearing from my noble friend Lord Aberdare a few moments ago that both Regional and Area Health Authorities might be of different sizes and that the amount of local authority representation on them might vary accordingly. I was even more encouraged by hearing him say that he intended to accept this Amendment. That being so, perhaps I need say no more. I beg to move.


My Lords, I am grateful to my noble friend, not only for his courtesy and kindness in not moving his Amendment No. 34 but also for having moved this Amendment No. 37 so briefly. Certainly I confirm that I am happy to accept the Amendment. The figure of four is, we feel, a good figure to have as a minimum. It is right and sufficient within a total body of 15. However, as he says, it is a minimum figure and there could well be Area Health Authorities of a larger size, or Authorities in London, with more than one London borough in them, where there would need to be more than four members appointed by the local authorities. I have much pleasure in accepting this Amendment.

4.57 p.m.


My Lords, as the Minister has indicated in the Amendment we have just accepted, that he is prepared to contemplate appointing more than four members where circumstances warrant it, there is perhaps rather less force and urgency in Amendment No. 38 than we had originally supposed. Frankly, we should much prefer to have a guarantee of not less than one-third of the total number; but in the circumstances and in view of the acceptance of Amendment 37, we do not propose to move this one.

LORD BROOKE OF CUMNOR moved Amendment No. 39: Page 51, line 8, at end insert ("as full members of the Area Authority").

The noble Lord said: My Lords, this Amendment is a variant of a much less good one which I tabled at the Committee stage. The Amendment is now so worded as to express exactly what I mean, which I failed to do in Committee. I think I need only explain how it arises. It is because of some uncertainty resulting from statements made by the Government and by the previous Government that perhaps these local authority representatives on the Area Health Authority were there only to make links with the local authority services, and not as full members in their own right, with no limit on their power to speak and act, sitting alongside their colleagues as full members of the Authority. If my noble friend will give that assurance and say that these words are unnecessary, I will ask leave to withdraw this Amendment.


My Lords, once again I am grateful to my noble friend. I can give him the absolute assurance. There is no question at all that as the Schedule stands at present local authority members (those appointed by the equivalent local authority), just as the other members appointed under the terms of paragraphs 2(1)(b) and (c), will be of full standing and expected to take their full part in the local authority teams. In those circumstances and with that assurance, I hope that my noble friend will feel able to withdraw his Amendment, because otherwise I should meet various other difficulties in connection with it.


My Lords, in the light of that assurance, I have pleasure in asking leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

BARONESS WHITE moved Amendment No. 40:

Page 51, line 8, at end insert— ("(e) The Chairman or a member of the Family Practitioner Committee for the area of the Area Health Authority.")

The noble Baroness said: My Lords, I beg to move the Amendment standing in the names of my noble friends and myself. The reason for this Amendment is very similar to the reasons for an earlier Amendment that we did not press regarding Regional Health Authorities. When we come to the Area Health Authority we feel it is of greater importance. We are well aware that the family practitioner committees will be appointed by the Area Health Authority. This is the delegation downwards that we have been hearing so much of during the course of our debates. We think it is quite unrealistic for the Area Health Authority to proceed with its work and deliberations without having some spokesman on the side of the family practitioner services. When considering the National Health Service in toto the family practitioner services are an extremely important part of it. If the Area Health Authority is to have a proper and comprehensive view of the state of the Health Service within the territory for which it is responsible, it appears to us that it ought to hear the voice of those who are running that part of the Service which is in the most intimate contact with the patients and families concerned. We cannot see any but an ideological objection to this proposition and therefore without more ado I hope very much that the Minister will accept the Amendment.


My Lords, we agree with the noble Baroness that there should be a common element of membership between the family practitioner committees and the Area Health Authorities. We agree with her that it is of the greatest importance to ensure that there are members who belong to both bodies to encourage the proper integration of the family practitioner services with the rest of the health services. For this reason we have laid it down in Part II of the Schedule dealing with the setting up of family practitioner committees that of the 11 members appointed by the Area Health Authority at least one shall be a member of the Area Health Authority. In fact the Amendment of the noble Baroness is slightly less generous, because we specify at least one member.

The reason I am not very happy with the proposal of the noble Baroness is that it would make for a less integrated service. It would have the result of making the family practitioner committee appear to be an independent body instead of, as is proposed at present, a key element but still a committee established by the Area Health Authority. I hope that we are at one in wishing to see the complete co-ordination between the family practitioner committee and the Area Health Authority, although we prefer to see it dealt with in this way because we think that the suggestion of the noble Baroness would make it appear that the family practitioner committee was something rather separate from the Health Service, which I am sure is not her intention at all.


My Lords, we were well aware that it was the intention that there should be a movement downwards from the Area Health Authority to the family practitioner committee. We were suggesting that there should be some movement upwards as well. I do not think there is very much point in our pursuing this argument. The Government's whole philosophy in this matter is one with which we do not agree and we shall have to agree to differ. We do not feel that putting a member of the Area Health Authority on the family practitioner committee is the same as putting a member of the family practitioner committee on the Area Heath Authority—there is a different relationship between the two. We believe our view of this to be the right one and one that would be in the public interest. It does not mean that if you do it our way round you eliminate the other appointment. The two could be side by side; the attitude of the members might well be different. However, this is not an Amendment which we propose to press—the other place may take a stronger view on it—and therefore I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

BARONESS WHITE moved Amendment No. 41:

Page 51, line 13, leave out from ("profession") to end of line 14 and insert— ("(b) such bodies as the relevant Regional Authority may recognise as being, either in its region or generally representaitve of such pro fessions other than medicine as appear to that Authority to be concerned.")

The noble Baroness said: My Lords, your Lordships may think that there is no very great significance in this Amendment. As you will observe, what we are proposing is to divide sub-paragraph (a) of paragraph 2(2) in Part I of the Schedule into two parts. The reason is that if it is left as at present in the Bill in our view it gives too preponderant a position to the medical profession as compared with representatives of other professions which are concerned in the National Health Service. Of course we want to have representatives of the medical profession on the Regional Health Authority, but as the paragraph is drafted it might well be that only the medical profession would be concerned, and if the consultations were carried out with representatives of the medical profession there would be no necessity to carry out consultations with other professions which are also deeply concerned with the wellbeing of the National Health Service.

We have tabled this Amendment in order to make it quite clear that we placed very considerable value on the other health professions, as well as the medical profession, and that they should be referred to in a separate paragraph. It is for that reason, and to emphasise the importance which we think should be laid upon the other health professions, that we feel the Schedule could be improved if it were set out as proposed in our Amendment instead of as it stands at present in the Bill. I beg to move.


My Lords, my darkness is illuminated. I was wondering what the noble Baroness had in mind with this Amendment because, as she rightly said, its effect would be to leave the provisions exactly as they stand at the present moment with regard to consultation. I now understand what she has in mind, and I can give her the assurance that we shall be requiring the Regional Health Authority to consult more than with just the medical profession. I can support that with a quotation from paragraph 99 of the White Paper which said: The R.H.A. will be required, before making its choice, to consult with appropriate organisations. These organisations will include those representative of the main health professions, as it is intended that A.H.A.s should include in their membership people of authority and experience who themselves are members of the healing professions. So this goes a good deal wider than simply the medical profession. If the noble Baroness would be kind enough to allow me to think about this Amendment I should prefer it. It makes no difference to the Bill as it stands, and if I could consider the matter further, now that I know exactly what she has in mind, we might be able to come some way towards meeting her.


My Lords, I am most grateful to the Minister. As he appreciates, it is really a difference of emphasis and we believe that such a difference would be valuable because, although the White Paper makes the issue fairly clear, we are dealing here with a Statute. If the noble Lord would look at this again I should be grateful. We believe that there are reasons for suppossing that our Amendment might serve a useful purpose, but, in view of the noble Lord's assurance that he will look at the point, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.10 p.m.

BARONESS WHITE moved Amendment No. 42: Page 52, line 18, after ("borough") insert ("the Inner London Education Authority").

The noble Baroness said: My Lords, I beg to move Amendment No. 42 in the name of my noble friends. The point here is that the Inner London Education Authority is of course unique; there is no counterpart in any other area of the country. Because of that, we felt that in the consultative processes which are outlined in this part of the Schedule it was important that, where appropriate, the Inner London Education Authority should be brought in. One appreciates that the School Health Service is an extremely important element in the Health Service and therefore co-operation between the education authorities and the National Health Service is going to be of great significance, not least in an area such as London where in many parts there are such acute social problems. It was for this reason that we felt it was a pity that, in a pattern which might suit the other the Inner London Education Authority parts of the country very well, in London could not be brought in. For that reason we suggested this Amendment to this part of the Schedule. I beg to move.


My Lords, the noble Baroness has touched on a difficult point, because we hoped in the appointments that are made to Area Health Authorities by the local authorities that one of the types of interests and experience among the members should be that of education. The noble Baroness has relevantly pointed out that this raises difficulties in the Inner London Area with the Inner London Education Authority. So, if it will not surprise her too much, I am prepared to accept her Amendment.


My Lords, I thought our logic was irrefutable. We are of course delighted and thank the Minister very much.

LORD ABERDARE moved Amendment No. 43:

Page 54, line 24. at end insert— ("(1A) The Secretary of State may make such provision as he may determine as aforesaid for the payment of a pension, allowance or gratuity to or in respect of the chairman of an authority other than such a Committee. (1B) Where a person ceases to be the chairman of an authority other than such a Committee and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, the Secretary of State may make to him a payment of such amount as the Secretary of State may determine as aforesaid.")

The noble Lord said: My Lords, this Amendment provides a general enabling power to permit the Secretary of State to pay superannuation benefits or compensation to the chairman of a Regional Health Authority, Area Health Authority or a special health authority. While such chairmen might be remunerated under the power in paragraph 9(1) of Schedule 1, we do not have any plans to provide a pension scheme for them nor do we propose to establish a custom of paying superannuation benefits to them. Nevertheless, circumstances could arise in which we would want to pay such benefits or compensation to a chairman on an ad hoc basis, and it is desirable that power to make such payments should be available. If it became necessary to exercise it, the amount of the payment and the conditions on which it would be made would depend on the particular circumstances of the individual case. I beg to move.

5.14 p.m.


My Lords, this is a drafting Amendment intended to remedy the omission from the Schedule of a power to loan or second officers from one Health Service Authority to another in circumstances where permanent transfer was inappropriate: for example, the meeting of a need for emergency cover while a permanent arrangement was being made. The Schedule provided only for loan or secondment of officers between Health Service and local authorities. I beg to move.

Amendment moved— Page 55, line 6, after ("of") insert ("another authority or"). —(Lord Aberdare.)


My Lords, this is a drafting Amendment to remove inconsistencies in referring to the staff concerned. I beg to move.

Amendment moved— Page 55, line 8, leave out ("employees") and insert ("officers"). —(Lord Aberdare.)


My Lords, this is a similar Amendment. I beg to move.

Amendment moved— Page 55, line 12, leave out ("employees") and insert ("officers"). —(Lord Aberdare.)

LORD ABERDARE moved Amendment No. 47: Page 55, line 16, leave out from ("than") to ("a") in line 17.

The noble Lord said: My Lords, I beg to move Amendment No. 47. The removal of these words makes clearer the intention of this sub-paragraph, which is that the Secretary of State shall have power to direct that either a Regional or an Area Health Authority shall employ particular officers, and removes a practical difficulty. As the Bill is drafted, if it were desired to provide an officer with a post in an Area Health Authority in a different region it would be necessary for the Secretary of State to direct the Regional Health Authority to take him on their strength, then by another direction to transfer him to the second Regional Health Authority, which could then direct the receiving Area Health Authority to employ him. I am sure this would be a very clumsy method of accomplishing the objective, which would normally be in the interests of the employee. The Amendment would facilitate his transfer. I beg to move.

LORD ABERDARE moved Amendment No. 48:

Page 55, line 29, at end insert— ("10A. —(l) It shall he the duty of the Secretary of State, before he makes regulations in pursuance of the preceding paragraph, to consult such bodies as he may recognise as representing persons who in his opinion are likely to be affected by the regulations. (2) It shall be the duty of the Secretary of State or as the case may be of a Regional Health Authority, before he or the Authority gives directions to an authority in pursuance of sub-paragraph (3) or (4) of the preceding paragraph in respect of any officer of an authority, to consult the officer about the directions or to satisfy himself or itself that the authority of which he is an officer has consulted the officer about the placing or employment in question or (except in the case of direction in pursuance of the said subparagraph (4)) to consult with respect to the directions such body as he or the Authority may recognise as representing the officer.")

The noble Lord said: My Lords, this Amendment is one of a series which I promised the noble Lord, Lord Garnsworthy, in our Committee stage. It imposes on the Secretary of State a statutory duty to undertake consultation with staff interests before making regulations under paragraph 10 of Schedule 1, and obliges him, or in appropriate cases the Regional Health Authority, to undertake suitable consultation or ensure that such consultation has taken place before making directions under paragraph 10. I beg to move.


My Lords, I should like to express appreciation to the Minister for having tabled this Amendment and for, again, having fulfilled a promise he gave at Committee. May I say that he appears to have made a very good job of it. Perhaps he will feel that the Bill is the better for it and the Health Service may work the more easily because of the inclusion of the Amendment. It is with gratitude that we acknowledge his action.


My Lords, I thank the noble Lord.

Clause 7 [Functions of authorities]:

LORD ABERDARE moved Amendment No. 49: Page 7, line 14, after ("of") insert ("functions conferred on the Secretary of State by section 9(1) or (2) of this Act or").

The noble Lord said: My Lords, this is the first of a series of three Amendments—Nos. 49, 70 and 71—on the subject of community health councils. I do not know whether the noble Lords and Baronesses opposite would like to deal with community health councils now, or whether we could take this Amendment formally and when we came to Amendment No. 70, the principal Amendment, which will fall within Clause 9, deal with the matter at that point.


My Lords, I believe it would be for the general convenience if we followed the suggestion of the Minister and discussed the community health councils when we reach Clause 9.


I beg to move Amendment No. 49.

Clause 8 [Local advisory committees]:

5.20 p.m.

LORD ABERDARE moved Amendment No. 50: Page 7, line 28, leave out ("a Regional Health Authority") and insert ("the Secretary of State").

The noble Lord said: My Lords, if I may, I should like to speak to Amendments Nos. 50 to 63 inclusive and also Amendment No. 69. The effect of these Amendments is to impose the duty of recognising local advisory committees on the Secretary of State, once he is satisfied that they are representative of the professions concerned at both Area and Regional level.

When we discussed this clause in Committee, the noble Lord, Lord Brock, argued that we should follow the Scottish Act and impose the duty of recognising local advisory committees on the Secretary of State. I accepted that there were advantages in the proposal which would enable the Secretary of State to LORD ABERDARE moved Amendment No. 64: intervene at local level, for example if there were unresolved disputes between an Area Health Authority and a profession over recognition of a committee. These Amendments together transfer the ultimate responsibility for recognition to the Secretary of State. I emphasise the words, "ultimate responsibility", because it would clearly he impracticable for the Secretary of State and his Department to scrutinise the arrangements proposed for the several hundred committees. But I am sure that this was not the intention of the noble Lords who raised the matter. The Secretary of State will delegate his responsibilities to the appropriate Health Authorities, but he will now be able to intervene at local level should the need arise. I beg to move.


My Lords, I should like to thank the Minister for tabling these Amendments which concede the Amendments moved in Committee by my noble friends Lord Platt, Lord Amulree and myself.


My Lords, I beg to move Amendments Nos. 51 to 63 en bloc.

Amendments moved—

Page 7, line 29, leave out second ("the") and insert ("a Regional Health")

Page 7, line 38, leave out ("Authority") and insert ("Secretary of State")

Page 7, Page 8, line 1, leave out ("a Regional Health Authority") and insert ("the Secretary of State")

Page 7, line 2. leave out second ("the") and insert ("a Regional Health")

Page 7, line 11, leave out ("Authority") and insert ("Secretary of State")

Page 7, line 14, leave out ("by a Regional Health Authority").

Page 7, line 15, leave out ("Authority") and insert ("Secretary of State")

Page 7, line 17, leave out ("the Authority") and insert ("he")

Page 7, line 20, leave out ("A Regional Health Authority") and insert ("The Secretary of State")

Page 7, line 21, leave out ("by the Authority")

Page 7, line 22, leave out ("its") and insert ("his")

Page 7, line 23, leave out ("the Authority") and insert ("he")

Page 7, line 35, after ("by") insert ("reference to the region of").—(Lord Aberdare.)

LORD ABERDARE moved Amendment No, 64:

Page 8, line 43, leave out ("the Authority") and insert ("it shall be the duty of the Authority to consult the committee with respect to such matters and on such occasions as may be prescribed. (4A) A Regional Health Authority.")

The noble Lord said: My Lords, I should like to move Amendment No. 64 and at the same time speak to Nos. 65 and 67. These Amendments impose a duty on Area Health Authorities and Regional Health Authorities to consult their local advisory committees on such matters and on such occasions as may be prescribed in regulations. The Amendments discharge the undertaking I gave during the Committee stage to amend the Bill so that regulations can be made to impose on the authorities a general duty to consult their advisory committee. This is a matter on which the medical profession have strong views and we are here following the example of the Scottish Act. I beg to move.


My Lords. I should again like to thank the Minister on behalf of my noble friends and myself for conceding these Amendments.


My Lords, I beg to move Amendment No. 65, which is consequential:

Amendment moved— Page 8, line 43, leave out ("the committee in performing that duty") and insert ("such a committee in performing the duty imposed on the committee by the preceding subsection"). —(Lord Aberdare.)

LORD ABERDARE moved Amendment No. 66:

Page 9, line 5, leave out form ("if") to end of line 9 and insert— ("(a) for references to a region of an Authority there were substituted references to Wales; (b) for the words "Regional Medical" in subsection (1) there were substituted the words "Welsh Medical"; (c) for the words "the Authority" in both places in subsection (4)(a) and for those words and the words "A Regional Health Authority" in subsection (4A) there were substituted the words "the Secretary of State"; and (d) in subsection (4) the words following paragraph (b) were omitted.")

The noble Lord said: My Lords, Amendment No. 66 amends subsection (5) of Clause 8 and is necessary to fit this subsection, which applies the provisions about regional committees to Wales, more clearly and appropriately to the wording of the preceding subsection as revised by Amendments Nos. 50 to 63. In Wales, it will be for the Secretary of State himself to recognise and to meet the expenses of the all-Wales committees. There will be no Health Authority to which it can appropriately delegate this and it would be for the all-Wales committees to advise the Secretary of State directly. The requirement imported into subsection (4) by Amendment No. 64 that a Regional Health Authority shall consult its committees on such matters and occasions as the Secretary of State may prescribe is obviously not relevant to the all-Wales committees however, since the Secretary of State will of course consult them on all matters that he considers appropriate. I beg to move.


My Lords, needless to say, we make no objection at all to these Amendments. As the Minister was speaking, I was thinking that this will add even more to the travelling time of some of our compatriots in Wales. It is rather surprising that when the Bill was originally drafted it was not recognised that there was a difference between England and Wales in these respects.


My Lords, think it arises only because we have amended the Bill.


My Lords, in that case I beg the noble Lord's pardon.


My Lords, Amendment No. 67 is consequential on Amendment No. 64. I beg to move.

Amendment moved— Page 9, line 10, leave out ("(4)") and insert ("(4A)"). —(Lord Aberdare.)

LORD ABERDARE moved Amendment No. 68: Page 9, line 11, after ("Authority") insert ("of which the area is in England or Wales").

The noble Lord said: My Lords, the purpose of this Amendment is to remove any doubts which might arise that, because of the application of the preceding clause to Wales in subsection (5), as amended by Amendment No. 66, subsection (6) might not apply to Wales. In Wales, as well as in England, it is intended normally to delegate to Area Health Authorities the functions of recognising area committees while preserving of course the ultimate control of the Secretary of State. The new words, "of which the area is in England or Wales", make it clear that all the provisions of Clause 8(1) to 8(4)(a), including the duty to consult the areas as prescribed, apply to the English and Welsh Area Health Authorities, equally. I beg to move.


My Lords, Amendment No. 69 is consequential on Amendments Nos. 50 to 63. I beg to move.

Amendment moved— Page 9, line 24, after ("by") insert ("reference to the area of"). —(Lord Aberdare.)

Clause 9 [Community Health Councils]:

5.29 p.m.

LORD ABERDARE moved Amendment No. 70: Page 10, line 5, leave out from ("of") to ("thinks") in line 8 and insert ("the Secretary of State to establish in accordance with this section a Council for the area of each Area Health Authority or separate Councils for such separate parts of the areas of those Authorities as he").

The noble Lord said: My Lords, we come now to Clause 9, dealing with community health councils, and we are grateful to noble Lords opposite for having already agreed to Amendment No. 49 which is the preliminary Amendment to this series, which comprises 49, 70 and 71. The three Amendments impose on the Secretary of State instead of the Area Health Authority the duty of establishing community health councils and making consequential changes.

I listened with great care at the Committee stage to a host of criticisms of the community health councils and one particular criticism that rang out loud and clear was that there must be no interference of any sort by the Area Health Authority in the appointment or other administrative arrangements for the community health councils. I have therefore tabled a number of Amendments which I hope will meet with the approval of your Lordships and which are based largely on what was said in the course of the Committee stage. I am grateful to all those noble Lords throughout the House who gave us the benefit of their advice during the Committee stage, which enabled us to produce these Amendments.

This first group of Amendments lays responsibility for the appointment of community health councils on the Secretary of State. I believe this was originally an idea put forward by my noble friend Lady Ruthven, and I am glad that we have been able to adopt her suggestion. On the other hand, as I said in Committee, it will be impossible for the Secretary of State to carry out the detailed work involved in appointing some 200 community health councils in England. The intention is that he will delegate his powers to the Regional Health Authorities, except of course in Wales, but will retain ultimate responsibility and be able to intervene locally if necessary. The detailed work, however, will be left to the Regional Health Authority and it will' he specifically made clear that it will not be possible to delegate it below the Regional Health Authority.

Amendment No. 49 to Clause 7, which has been passed, provides a safeguard in that the Secretary of State's directions to Regional Health Authorities under the amended Clause 9(1) and (2) will need to be put in regulations, and these will be subject to Parliamentary control. I hope that this meets one of the objections about the community health councils in transferring the responsibility for their appointment from the Area Health Authority in effect to the Regional Health Authority. I beg to move.


My Lords, I rise to thank my noble friend Lord Aberdare on behalf of myself and my noble friend Lord Amulree for tabling this Amendment and for giving the proposals we made in Committee his consideration. I am now much happier about the situation regarding community health councils. I only hope that the Minister will be able to do something about the membership, staff, finance and accommodation.


My Lords, as this was also the sense of an Amendment which my noble friends and I tabled in Committee, I, too, on behalf of my noble friends, would like to thank the Minister for having had second thoughts on this matter. He is right, of course: he had not one single voice of support for the Bill as originally drafted because everyone—that is, everyone apart from those who drafted it—could see how ludicrous it was to propose that the community health councils should be appointed by the very body whose duty they had to watch. We are therefore glad that after what I know have been extensive consultations the Minister has made these Amendments, which we are happy to accept.

As we come to the subsequent Amendments, I hope very much that he will feel able to spell out in some detail the way in' which his mind is working, because, as he rightly says, the details will be filled in later in regulations. We all know only too well that even if such regulations are subject to Parliamentary control, they are not subject to Amendment. It would therefore be extremely helpful if the noble Lord would go into some detail as to how he proposes the regulations should be framed in order to deal with the various consequential matters which will arise from the subsequent Amendments to a clause which, it is fair to say, has aroused more public interest than almost any other part of the Bill.


I beg to move Amendment No. 71:

Amendment moved—

Page 10, line 11, leave out subsection (2) and insert— ("(2) The Secretary of State may if he thinks fit discharge the duty aforesaid by establishing a Council for a district which includes the areas or parts of the areas of two or more Area Health Authorities; but the Secretary of State shall be treated as not having discharged that duty unless he secures that there is no part of the area of an Area Health Authority which is not included in some Council's district."). —(Lord Aberdare.)

5.35 p.m.

LORD ABERDARE moved Amendment No. 72: Page 10, line 30, leave out from beginning to ("of") in line 31.

The noble Lord said: My Lords, I should like at the same time to speak to Amendments Nos. 76 and 80. These three Amendments specify the proportions of each community health council that should be appointed by the various bodies concerned. This also follows on the discussions we had in Committee and I hope that the proposals we are now putting before your Lordships satisfy most of the points that were made at that stage. The effect of the Amendments is that one-half of the community health council will be appointed by district councils. That was a proposal which I think generally commended itself the last time we considered this matter. One-third of the community health council will be appointed by voluntary bodies with special interest in the National Health Service, and the decision on which voluntary bodies shall have the right to make appointments to this one-third is to be decided by agreement between the Regional Health Authority and the equivalent local authority.




Yes, my Lords, either the county council or the metropolitan district. Perhaps I should not have used the word "equivalent" in this context. It is the Regional Health Authority and the county council or the metropolitan district.


From the top ten?


No. It is the equivalent tier at the Area Health Authority level. It is the county council or metropolitan district, or the London borough in London. They will agree which voluntary bodies shall have the right to appoint one-third of the community health council. The remaining one-sixth of the council will be appointed by the local health authority after consultation with the county council or metropolitan district or London borough. They will consult various bodies including women's organisations, the Churches, youth organisations, immigrant organisations and so on. They will be given an opportunity of making suggestions for this one-sixth membership. In this one-sixth membership, too, will be included people who may have special knowledge of the National Health Service—for example, people who have given service on hospital management committees or other present Health Service bodies.

This goes as far as one can go to making the community health council completely independent and yet having on it not only members from the lower tier local authority but also from the voluntary bodies who have special interest in the health field and also from a number of other bodies who may be interested and able to give useful service on these community health councils. The districts will appoint their own people, the Regional Health Authority and the county council or equivalent will have to agree on which voluntary bodies to nominate and the remaining one-sixth will be appointed by the Regional Health Authority after consultation with the county council or its equivalent. I beg to move.


My Lords, would it be convenient if I addressed some remarks to Amendments Nos. 80A, 80B and 80C which stand in my name and that of the noble Viscount, Lord Amory, the Minister having referred to Amendment No. 80 which stands in his name?


My Lords, it might be for the convenience of the House if we took the next group of Amendments together because there are a number of Amendments in the names of various noble Lords which affect the pattern which the noble Lord, Lord Aberdare, has described. I wonder what his attitude would be to that.


My Lords, I was hoping that we could discuss this particular Amendment, and any others that bear on the membership, and then we could discuss separately the other questions which are important, such as staff, premises and so forth. Would that meet the noble Baroness?


My Lords, that would meet both my noble friends Lord Pargiter and Lord Brown, and also myself, because Amendments Nos. 80A, 80B and 80C affect membership, as do Amendments Nos. 77, 78, 79 and 80. I should have thought we might discuss those together and, as the noble Lord suggests, leave out the other Amendments referring to premises and other such matters.


My Lords, may I ask my noble friend the Minister a question? A great many of the things which my noble friend has done are first-class and will be of great help to us. But as we are supposed to be a kind of watchdog on the Area Health Authorities, and also on the local authorities, so far as the latter have functions to do with the sick and the handicapped, in the Grey Book in the plan, on page 28, exhibit 3, we are connected by dotted lines with local authorities, Area Health Authorities, district management teams, et cetera. I do not know whether most people realise that the local authorities are some of our greatest bugbears in that they have done nothing to help. For instance, there is a shortage of accommodation for those who can be discharged from hospital but who have nowhere to go. A particular case came to my mind of a patient who remained in an orthopædic hospital for three months because the local authorities had not been able to arrange that his doorway was made wide enough for him to bring in his chair. If we are to be of any use to the patient, the community, the person whom we are supposed to serve and represent, we ought not to have so many local authority representatives, or whatever they may be, on these community councils as well as voluntary workers and other bodies of people who are interested in the Health Service and particularly in the patient, the consumer.


My Lords, I should like to speak to Amendments Nos. 80A, 80B and 80C, which are all concerned with the same point; namely, that county councils should be entitled to be represented. There is an important reason why they should be entitled to be represented. After all, let us take one of the first issues: they are the planning authority. A question will come up about the siting of buildings, hospitals and all sorts of points on which the community council will be consulted, and it would help at least if there were some knowledge going between the council and the county council at the initial stages, not after the planning application is made, but about the sort of application that might be made and that would be likely to be successful. Another question that arises is that the county councils outside London and the metropolitan counties are the education authorities. Again, the health education service comes into this, and it is important that there should be a direct link between county councils and the community health councils.

May I add a further point? There is no question of a conflict of interest here with other authorities. All three, the A.M.C. and the rural and urban districts have agreed in principle that it would be desirable and in the best interests of cooperation that county councils should be represented. It may be said that the same argument will not apply altogether with regard to metropolitan counties. It applies to a lesser extent, particularly in the question of planning in some aspects of the social service. I need not go into these matters at length, but it would be helpful if the Minister would agree that these words can be inserted so that there is no question that the counties will be represented.


My Lords, may I support and express my gratitude to the noble Lord, Lord Pargiter, for speaking on the Amendments which stand in both our names. I agree entirely with what he said. Our feeling is definitely that most of the representatives from local government on this body should come from districts. But, having said that, I feel that there is great value in having also one or two representatives from the county council itself. That would be of great value to the community health council itself, and it would also be of great value to the county council to be kept in touch with the discussions that take place on that council. Because of the mutual advantage that will come from this proposal, I hope very much that my noble friend may be able to agree with the views that the noble Lord, Lord Pargiter, has expressed.


My Lords, I rise to speak to Amendments Nos. 76 and 77. It occurs to me that the Minister may wish to reply first to the movers of Amendments Nos. 80A to 80C. I am quite sure that I speak for the House if I say that we should have no objection to his speaking twice if he gave a reply to these different Amendments first before speaking to his own Amendment No. 76 and to mine, No. 77. I should like to know which way he would like to take it.


My Lords, are we not getting into deep waters? We are now speaking to Amendments which are some way ahead. Would it not be better if we took the Amendments in their order, and then we should all know where we were?


My Lords, my noble friend has a good deal of sense in this matter. We should be getting very much out of order if I leap to my feet and answer every Amendment. I should be happy to answer my noble friend Lord Amory and the noble Lord, Lord Pargiter, in one go, perhaps after the noble Lord, Lord Brown, has spoken.

5.48 p.m.


My Lords, I should like to pay tribute to the Minister for Amendment No. 76, because it goes a very lone way towards democratising the community health councils. I have spoken at some length on the need to keep a management structure intact, but equally I am correspondingly very much in favour, in fact "insistent" —if I may use such a word—in making certain that the community health councils represent local authorities, the public, patients, and all the rest. These Amendments go a long way. My noble friend Lady White and I have put down Amendment No. 77 which was drafted prior to seeing the Minister's own Amendments. Apart from one issue, in my own view it is not required, but the important difference between Amendment No. 77 and Amendment No. 76 is that Amendment No. 77 makes it possible—it is not mandatory in any sense—to enable the Minister at some later date to introduce a very new principle in terms of representation on bodies such as the community health councils, in that it would permit of direct elections being held in a locality to put such people on a community health council.

I have been impressed on many visits to the United States by the great enthusiasm and attention which the public pay to the many elections of that kind which take place in that country. I do not want to follow the analogy too closely, because I am violently opposed to the American practice of electing officials, which leads to some very strange results indeed. But there is no doubt that local elections, other than for the conventional borough councils or county councils, arouse a great deal of interest enabling people who are interested to take part in the specific aspect, such as the Health Service, which is of great importance to the community.

I have no suggestions as to how this might be organised; I do not know whether my noble friend Lady White has. It is a very complex matter. This Amendment, or the substance of it, if adopted, would permit of experiments to be made in the future which would be exciting and, I think, interesting, and I should have thought it was possible to include in a Bill of this type an enabling clause, so that the Minister would not be prevented from an experiment of this sort, which I think is a nice thing to do; it means that we are experimenting with a little change, which I think we often badly need in our society.

I am not going to press this Amendment too strongly, because I acknowledge the great step forward made by Amendment No. 76; I think we have to acknowledge that the Minister has paid a great deal of attention to the views expressed in the House, and is to be congratulated. I leave him with the thought that to make room for such experiments is important. I emphasise that the Amendment as drafted is not in any way mandatory; it may lie idle for years. But it might be a very convenient way of getting some members on to the community health councils in the future, and I hope that the Minister will consider it very seriously.


My Lords, if I may follow up what my noble friend has said, the Minister will recall that at Committee stage I proposed a very similar Amendment indeed, which, as Amendment No. 77 now proposes in rather more specific terms, would have made it possible for directly elected persons to be members of the community health councils, certainly not mandatory at this stage, because I think we shall need a great deal more consideration, and possibly more experience of how such bodies are going to work, before we come down firmly on one side or the other. I do not wish to go over again all the arguments I put forward on Committee as to the value, in my mind, of at least a proportion of directly elected persons. But I was very glad that, although my noble friend Lord Brown and I do not agree on certain other aspects of this Bill, on this we are entirely at one. As he said, it is something which we used to have in our local administration, but which over a period of years we have dropped. It seems to me that with increasing centralisation there is much to be said for going back to locally directly elected persons for particular functions and the community health council would be a very obvious body to choose for such work.

I still hope that the Minister may be willing to put into the Bill the possibility of directly elected membership, and not keep it out altogether. This does not in any way commit the Government. It might not be used for a very long time, but at least we should not be preventing anybody from doing it. As I understand his own Amendments, I think perhaps the position is a little more fluid now than it was under the Bill before his Amendments were proposed, but perhaps he could enlighten us on that. I have every sympathy with the Amendments that would include the possibility of a county representative, not that I should have thought more than one would be necessary, but there is something to be said for the county authority having some knowledge of what the community health councils are worrying about.

At the other end of the scale, my Amendment No. 79 asks that in Wales, where under the Local Government Act we have community councils as part of the reorganised local government in the Principality, we should recognise the fact by including at least one person appointed by the community councils in the area. After all, the community councils in Wales are very much the grass roots authorities, and surely, that being so, it would be entirely appropriate that they should have some place upon the community health council which is also intended to be concerned with grass roots problems. The reason why we had the community councils included in the Welsh part of the Local Government Act, whereas neighbourhood councils are much more cloudy bodies so far as England is concerned, was, I suppose, that we have large rural areas where it was felt that something below district level was very much required.

The same kind of argument applies equally to community health councils. Areas which are now full counties will become districts under the reorganisation of local government in Wales, and some of them are very large indeed in area, although often scanty in population. The county in which I now live in Wales, Montgomeryshire, stretches from the English Border just West of Shrewsbury to the sea; it is a very long county indeed. Therefore it seems to us that community councils are likely to be set up in such a county and that they should have some place, therefore, on the community health councils. Our Amendment No. 78 is really inspired by the thought that in some parts of the country, at least, there may not be sufficient members of district councils who are willing and able to man the community health councils, partly, again, because in the thinly populated rural areas a great deal of travelling will be involved in their normal work as district councillors and they may not wish to take on the extra duties of supervising the Health Service.

We were therefore much interested to see in a Bill which has appeared in another place, although it has not yet reached us, the Water Bill—where there is also provision, in different circumstances of course, for appointments by local authorities—that in Clause 3(12) it states: Members of a Water Authority appointed by a local authority or authorities may be members of that authority or one of those authorities or other persons. This seemed to us to be an interesting and helpful extension of the powers of local authorities to appoint people on to other bodies. It seemed to us appropriate that this might also be made possible in this Bill, so that if there is to be a community health council, whose membership could be between 20 and 30 in number, and half of it, as the Bill now stands, is to be appointed by district councils, those councils might not find it easy to man that community health council entirely from their own membership. Therefore it would be desirable that they should have an opportunity, if they so wished, to suggest that some other persons chosen by themselves should be put forward. Again this is in no way mandatory; it might not very often happen, but we think it would be a useful and helpful addition to the Bill. It is particularly necessary because, in the appointments to the other sections of the community health council, the Regional Health Authority will not be consulting at district level, it will be consulting at county council, metropolitan district, or London borough level, as the case may be.

Therefore, if the district, which is going to be much closer to the community health council, feels that there are certain individuals that it would like to be members of the community health councils, this would give them the opportunity to put forward possibly one or two individuals who they feel would be appropriate people. That would leave the Regional Health Authority to consult with the other higher tier of local authorities about representation of, on the one hand, the voluntary organisations which are concerned with the Health Service and, on the other hand, the other organisations which do not have a direct connection with the Health Service. As I understood the Minister, that is what he means by his distinction between the two groups of people who are not appointed by the district councils. He said that one-third would be from voluntary organisations, and that those voluntary organisations who were to be allowed to nominate would be designated by the Regional Health Authority in agreement with the appropriate county council, metropolitan district, or London borough, as the case may be.

This is an important point, because the voluntary organisations with whom we have had discussions have said that they would wish to choose their own representatives. This method would make it possible for them to do so, because they would know how many places were to be filled and which voluntary organisations connected with the Health Service were on the list, and, if they could agree among themselves, they could put forward precisely the number of names to fill the number of vacancies available. Therefore, in effect they would be appointing their own. If, on the other hand, they did not succeed in agreeing among themselves —and I am afraid one has to contemplate that this is at least a possibility—then, as I understand it, it would be left to the Regional Health Authority (and here I am not clear), to decide, after consulting with the county council. Or is the position that there must be agreement between the two before any name is put forward? Perhaps we could clear up this minor point.


My Lords, the intention is that for the one-third nominated by voluntary bodies with interests in the Health Service, there should be an agreement between the Regional Health Authority and the county on which organisations should have the right to nominate. Presumably that would include, in certain cases, that one body might have to nominate more than another. But the constitution of the different voluntary bodies would be left entirely to the different Regional Health Authorities and the county councils to decide. Then it would be up to the voluntary body to choose the person they wanted to put up.


My Lords, this is not quite clear, because there may well be more voluntary organisations connected with the Health Service than there are places. As I say, if they can all agree among themselves and choose the correct number to represent the total of voluntary organisations connected with the Health Service in the area concerned, that is fine: but supposing they do not, and that you have a much longer list of voluntary organisations eligible to nominate than there are places? What exactly happens if the voluntary organisations do not agree, and they nominate more people than there are places? Does the Regional Health Authority choose, or does it have to agree with the county council as to which individual names are to go forward, and not just as to which organisations are to be permitted to nominate? It is a different point.


My Lords, our intention was that if, for example, there were ten places to be filled by voluntary bodies, the Regional Health Authority and the local authority concerned would nominate ten voluntary bodies, each to put up one. This is something that we could think about again, but that was the intention. I do not know whether the noble Baroness wants to take this point any further.


My Lords, I must say that that was not what I understood the Minister to be proposing. Of course this is not actually in the Bill, it is only the Minister's gloss on the Bill. Quite frankly, I should not have supposed that that in itself would be an appropriate way to proceed. There might very well be some areas in which there are too few, and some where there are too many voluntary organisations. For example, we have been told that in one London borough there were nearly 200 voluntary organisations of one sort or another who had some connection with the Health Service. Even if a good deal of pruning is done on such a list you might very well find yourself with local organisations, including friends of hospitals and so on, as well as the big uniformed organisations, who might consider that they had every right at least to put forward proposals.

It seems to me that this particular matter needs a good deal more consideration, and perhaps consultation with the voluntary organisations. It is a matter of detail, but I think it is quite important. As I understand it, for the remaining one-sixth there is no dubiety that it is the Regional Health Authority which has the last word, although it is proposed that it should consult with the appropriate local authorities. The position for the remaining one-sixth is rather different.


My Lords, I wonder whether the noble Baroness would allow me to interrupt for one moment. As I understand it, the voluntary bodies themselves realise that in some cases there will have to be some sorting out done by somebody, and I understood that their feeling was, on the whole, that the local authority might be the best body to do the sorting out that was required. I understand now that the noble Lord is suggesting that that sorting out process should be done by the Regional Health Authority and the local authority in agreement. It could be that the voluntary bodies would accept that as a sensible way of doing it—I do not know; but I think that there is no dispute that they feel that somebody will have to do the sorting out.


My Lords, I doubt whether we can carry this very much further at this stage; but before the regulations are put before us, on the assumption that these Amendments are accepted, it seems to me that there must be a good deal more consultation, because I think that there is a certain confusion. I must say that we on this side had not fully understood what the noble Lord was suggesting. Having said all that, and having put forward one or two detailed propositions, we should be very glad to have the views of the noble Lord on the other detailed propositions—including if I might just emphasise one of them, our Welsh community councils.

6.9 p.m.


My Lords, I am very grateful to all noble Lords who have spoken on this matter, and I am extremely grateful for the generally favourable reception to the proposal for the makeup of the community health councils. I will certainly take away the problem that the noble Baroness has touched upon. The difficulty was that at the Committee stage—and it was brought out again by my noble friend Lord Amory—in general we had the feeling that the voluntary bodies would never agree on their nominations. If we could have some method by which they proposed their own members, this would be ideal. However, in default of that, we had suggested this compromise of the Regional Health Authority and the county, or equivalent authority, being given the final decision in the matter. This is certainly a matter of organisation which I will take away and give more thought to.

We have touched on a number of future Amendments which also go to the question of membership. The noble Lord, Lord Pargiter, has waited a long time for a reply to his Amendments Nos. 80A, 80B, and 80C, to secure representation of the county, including the metropolitan county, on the community health councils in their area. The reason why we have put forward the district councils as being those who will fill 50 per cent. of the places is our anxiety that the community health councils should be made up of local people drawn from local voluntary bodies and district councils, and speaking for the local community. It was for that reason, and also taking into account the point the noble Lord made about the metropolitan county—which may come out at 2.8 million people in up to ten metropolitan districts —that we had not originally thought of the county as necessarily being represented on the community health council. However, I can see the advantages that he put forward in his proposal, and there is certainly no reason why the county councils should not preserve a local link by appointing to a community health council someone who lives within the community health council's district. I should therefore be happy to accept the Amendment in principle, if he would allow me to have a look at the wording to make sure that it is all right to put it into the Bill. But, in principle, I shall see that we accept that Amendment.


My Lords, may I interrupt the noble Lord and say that I am perfectly happy to accept that proposal at this stage? Therefore I shall not be moving the Amendment.


Then, my Lords, the noble Lord, Lord Brown, spoke to Amendment No. 77. We could not, as I think he realises—he put this Amendment down before my own Amendment—accept that two-thirds of the members of community health councils should be appointed by local authorities. We feel that this would upset the balance of the council, and my noble friend Lady Ruthven made the point that the balance is very important. I must say that I admire the forethought of the noble Lord, Lord Brown, and the noble Baroness, Lady White, in wishing to insert this permissive paragraph about direct elections, but much as I admire their initiative it is really not appropriate to put it into this Bill. As I tried to point out at Committee stage, it has some constitutional effects or implications and, much as I should like to help the noble Lord and the noble Baroness, I do not really think I can accept that Amendment or that idea at the present moment. I was interested to hear how it works in America. Considering the poll that is achieved here for some local district elections, I am not too hopeful that there would be much interest in electing these community health councils; but perhaps it would be better to see how they turn out. If they prove to be the effective bodies that we hope they will he, and if in future there is a great demand to sit upon them, then perhaps we can revert to that idea.

The noble Baroness, Lady White, spoke to Amendment No. 79, the idea behind it being that at least one member of each health council in Wales should be appointed by the corresponding community councils. I think she knows that I found that a very attractive idea when she first mooted it at Second Reading. The only difficulties, it seems to me, are the practical ones, which are overwhelming. On average, there are likely to be about 40 community councils for every community health council in Wales, and it would be an impossible task for them to select one or more persons to represent them on the community health council. We have provided for 50 per cent. membership for district councils. They can appoint members of their own committees or, as I shall assure the noble Baroness in a minute on Amendment No. 78, they can appoint people not members of district councils to represent them, and I should hope very much that the districts would consider appointing people from community councils. In fact, I hope she will agree that I should suggest to my right honourable friend the Secretary of State that, in giving guidance to the district councils on appointing community health councils in Wales it would be a good idea to suggest that members of Community councils should be included among the persons that they nominate.

Finally, to go back to what the noble Baroness said on Amendment No. 78, it is not necessary to put this provision into the Bill. Local authorities are not debarred from choosing non-councillors when making appointments to bodies outside local government. I am not sure why this specific power should be given in the case of water boards. I have noted the provision in Clause 3(12) of the Water Bill and there are special circumstances in relation to water boards, but that certainly does not affect the power of district councils that we are now considering, and I am advised that legally this provision is unnecessary. Indeed, the same view was taken when the Local Government Act 1972 was going through the House: namely, that local authorities are not debarred from appointing people other than councillors to bodies outside local government. So I hope that with that assurance she will feel that she need not move that Amendment. I think I have answered all the questions that have been asked on various Amendments, and perhaps we could go back to Amendment No. 72 which I have moved.

6.17 p.m.

LORD ABERDARE moved Amendment No. 73: Page 10, line 34, after ("staff") insert (", premises").

The noble Lord said: My Lords, with Amendments Nos. 73 and 74 we are now moving on to another group of Amendments which concern staff, premises and expenses of community health councils. These two Amendments delete the specific reference in subsection (4)(c) to the making available of staff and the payment of expenses by Area Health Authorities, and include a reference to premises in the amended version. This, again, is an effort to meet your Lordships who felt that the Area Health Authorities should be excluded from having any responsibility for staff, premises or payments. What we intend is that the Regional Health Authority should be responsible for the community health council's finance. This is consistent with the intention that the Secretary of State should delegate to the Regional Health Authorities new responsibility for establishing comunity health councils; and so the Regional Health Authority would not only establish them, but would also pay their expenses.

So far as premises are concerned, I see the force of the argument which was advanced in Committee, that to use National Health Service accommodation might be unacceptable for presentational reasons, but I think that this is really a matter which we should leave for local discussion by the community health councils when they are established. The regulations will be drafted with that in mind, and they will not require community health councils necessarily to use National Health Service premises.

On the question of staff, we still see great merit in the community health councils using staff seconded to them by the Regional Health Authorities. This, we feel, will work to everyone's advantage. The officers concerned will enhance their value to the National Health Service, and therefore their career prospects in the Service; and the community health councils will get the assistance of people knowledgeable about the health services and the working of the administrative machine. But it is certainly not our intention to oblige community health councils to take staff in whom they might not feel confidence, or who for one reason or another would be unacceptable to them, and they would have the right of veto on any individual officer who might be proposed by the Regional Health Authority to serve with them.

I hope your Lordships will feel that, again, we have gone as far as we can to meet the views expressed at Committee stage in showing flexibility in regard to the premises, in giving the responsibility for expenses to the region and in saying that, although we see the advantages of having staff seconded from the Health Service to work with these community health councils, at the same time we would give the community health council the right to refuse or to make representations about the particular staff who it might be proposed should serve with them. I beg to move.

6.21 p.m.


My Lords, we have been discussing so many Amendments together that I am not sure whether I ought not to ask permission to speak again, or whether I am allowed to speak again, because we have been discussing so many different Amendments; but I think I will phrase my speech in the form of questions to my noble friend. The first one is: will he accept that, personally, I think he has come a very long way to meet us in this matter. The main thing we were concerned about was that the Area Health Authorities should have no part, really, in the setting up or the running of these community health councils, and we are very grateful to him for meeting us over that. I think he has also come a long way to meet us over the question of composition; and also in what he has just said about premises.

The one point I am still a little unhappy about is on staff, where he has come a little way to meet us, I think. Our feeling was that in the matter of staff the community health councils really should be autonomous, and should be able to choose their own staff; and I am sure that is right in principle if these bodies are to be really independent. I accept that there may be cases where it would be good experience for the individuals concerned, and that the community health council itself might be well served by a secondment, but I believe that the right of the community health councils to appoint members of their staff from outside should be enshrined somewhere. I think my noble friend has stopped short of doing that, as I understood him to say that while he and his colleagues felt that in most cases it would be a good plan to have members of staff seconded to these councils, the councils would have the right to object to an individual, would have a veto over an individual. The implication of that is that then another individual would be put forward. That would be a rather invidious process, I would have thought. I hope very much that my noble friend will be able to go a little further with that, and, while sticking to his point that in many cases he feels the councils will be well served by having a staff seconded to them, will be able to say that, nevertheless, the council should have the right, if they felt it would be advantageous to them, to appoint members of staff from outside.


My Lords, I wonder whether I might say just a word on that point. In principle, the noble Viscount, Lord Amory, is perfectly correct: a body of a representative sort should, in principle, be able to choose its own staff. But, having been thinking about this, I think that what the Minister has put forward has great advantages. Let us imagine the position if a large number of these community health councils were allowed to choose their own staff—a very small number; one or two people each, I suspect. They make the appointments, and the new body meet together for the first time. They will not know each other very well, but eventually they make decisions. In many cases, they will perhaps make rather poor decisions. This is inevitable, when you are choosing people; many councils appoint people who later do not prove adequate.

Now, when they want to dispense with their services—and we know what happens on committees when we have to dispense with the service of officials—there is a great reluctance to do so because they are being cast back on the market. If you follow the other route and accept the right by the Regional Health Board to veto nominations, then, later if they become dissatisfied, I have no doubt the provisions would enable the community health council to go to the region and say, "We should like to change", and there would be no difficulty. The individual is part of the staff of the National Health Service, and he can be posted back after this excellent experience to some other post. So you get a flexibility, and eventually you end up with the people you want. By doing it the other way, you might end up for a very long time indeed with people you do not want. In the case of trade associations in this country, of which there are over 1,000 —and I used to see members of these trade associations when I was at the Board of Trade—the level of officials was very often really quite deplorable. I do not say all of them, because many of them were very good officials. This was because of the difficulty that always existed of getting rid of unfortunate appointments. I rather fear that this will happen in the case of the community health councils, and for these reasons I rather like the Minister's proposal.


My Lords, I was rather confused by what the noble Lord said about the right of veto, because one does not quite understand whether the right of veto applies before the person is appointed or after.




If it is before, then it is rather difficult for the community health council to know enough about the person to veto him. If it is after, then it is rather pejorative. So I think the position would be much better without the right of veto, and that the suggestion made by the noble Viscount, Lord Amory, is a very much better one.

6.28 p.m.


My Lords, we are of course very glad indeed that the noble Lord, Lord Aberdare, has come quite a long way to meet us in the sense that, having agreed that the Area Health Authorities should not appoint, he has also agreed that they should not be responsible for expenses or for staff. I am sure that we would all realise that one cannot have direct financing from the Department to the community health councils, that therefore one has to have some intermediate body, and that the Regional Health Authority is the obvious one if one is not going to have the Area Health Authority, which none of us wants. So I think there is no real problem over the expenses: with one proviso, of course; namely, that in any guidance which may be given to Regional Health Authorities on this matter it should be made quite plain to them that if community health councils are to do a real job of work they must be allowed to pay for staff which has adequate status to represent the community health councils in their work. Because if a community health council is to be effective, then it must have the services and the guidance of somebody who is not just a relatively junior officer of the Health Service on his way up, but someone who is able to stand up to the Area Health Authority if he thinks that there is real reason to have differences of view about the way the service should be organised in the area, and who is able to tell them with some real significance what it is that the council feels strongly about. If the staff is too junior or is without adequate experience and standing, then the community health councils will be a cypher and will not be the effective part of the National Health Service which we all want.

I think this is a very important proviso. It is not something that one puts in the Statute, of course, but I think we would wish to have some assurance from the Minister that if the Regional Health Authorities are to be the financing bodies it will be made quite clear to them that it is the Government's intention that the community health councils should mean something, and that they should therefore be staffed accordingly.

On premises, again we are glad that the Government have agreed that there should be flexibility. I am particularly glad about that because I think we are at a point where many experiments are being made in connection with the representation of consumers' interests over a wide field. For example, some local authorities have established welfare rights officers to advise members of the public how they are to deal with the social service benefit conundrums with which they are likely to be faced. In the next few years we may see the establishment of offices in various areas to help the citizen in his confrontation with authority of various kinds. Therefore the offices of a community health council might appropriately be under the same roof as the various local authority bodies, including the citizens' advice bureaux, which are set up for this purpose. I am glad that the Minister has agreed that there should be nothing cut and dried about the matter of premises.

The disappointing part of the Minister's statement, as the noble Viscount, Lord Amory, rightly stressed, is this question of the staff. It appears to me that the community health council ought to have the right to appoint its own staff and that the only veto should rest not with them but with the Regional Health Authorities. If the R.H.A. thought that the community health council was being ill-advised in its choice, the R.H.A. might then exercise a veto. That would be entirely proper and appropriate, especially as the R.H.A. is to be the financing body. If one were told that the community health council could appoints its own staff with the consent of the R.H.A. that would be acceptable. I do not think that the public will accept that the community health council is going to give the kind of protection that we understand it is intended to give, if for example, a member of the public is presented with the name of somebody who works in the Health Service and is told, "If you do not like Mr. X, you may have Mr. Y." That is not independence and it will not be seen to be independence. It appears to me that it would be far better, and in line with the whole spirit of the discussions that we have had in this House on this sensitive matter of the community health councils, if they were given the right to appoint their own staff subject to the consent of the R.H.A. That would be the right way round.

I hope that we can have an assurance from the Minister that this matter will be reconsidered. Having come so far as he has—and we much appreciate it—in this matter of taking the opinion from all quarters of the House on the community health councils, I am sorry that he has not felt able to come this little further on the vital question of the independence of the councils in the appointment of their own staff. I understand his view that it would be useful for the Health Service or for certain individuals in it to have some experience in community health service work; but I believe that that could be arrived at in other ways, in service training and so on. It is not right that one should subordinate the independence of the community health council for the benefit of the staff of the Health Service as a whole. Other ways could be found of associating members of the regular staff of the Health Service with this community work. Wtih that proviso, I hope that we can accept the Amendment put forward by the Minister; but I also hope that he will think again on this question of staff.


My Lords, I hope that my noble friend will consider carefully the constructive compromise on staffing suggested by the noble Baroness.


My Lords, my noble friend is out of order, having spoken twice on this Amendment; but I take his point and I am grateful for what has been said about the two Amendments. I certainly take the point made by the noble Baroness, Lady White, that the finance available to the community health councils should be sufficient for them to do their necessary duty. I can assure the House that that will be so. We are desperately anxious that the community health councils should be of value to the National Health Service. It is this very desire that they should be useful bodies that has led us to propose that the staff should be provided by the National Health Service. We are afraid that in certain cases—and the noble Lord, Lord Brown, made this point—they might appoint somebody who had the idea that the two bodies were antagonistic and that they were there simply to snoop round, to find holes in the sheets or the paint flaking off. We do not see the community health councils in that light; we see them as much more constructive bodies, criticising district and area management in its major functions in what it is providing for the hospital patients and in its whole policy within the district.

I was interested to read in the Health and Social Service Journal tor February 3 a leading article headed, "Advice for Community Health Councils". They made this point better than I. I quote: The chief danger is that it"— the community health council— will lack the expert knowledge needed to challenge the authorities on the really vital aspects of planning and performance. Its members will therefore confine themselves to testing the meals served to hospital patients and criticising the general practitioner appointment systems. That is the worry. The article goes on to recommend some quite different solutions, but I take this as pointing to the danger which we are anxious to avoid. It is that danger and that anxiety that the health councils should get off to a good start that led us to think that there would be advantages if the staff were seconded from the National Health Service—not just that we were making them take the National Health staff because it was good for the National Health staff, although we see advantages in the career structure of the staff themselves. We are not intending to muzzle or to antagonise. We saw the benefits that I have tried to explain. I recognise the criticism has been made on this point, the one point on which I failed to satisfy everybody. I will certainly see that it is looked at again in the course of discussions before any regulations are made. I hope that I have answered most points.


My Lords, Amendment No. 74 goes with No. 73. I beg to move.

Amendment moved— Page 10, line 34, leave out from ("Councils") to end of line 36.—(Lord Aberdare.)

6.40 p.m.

LORD ABERDARE moved Amendment No. 75:

Page 10, line 36, at end insert— ("(cc) the consultation of Councils by Area Health Authorities with respect to such matters and on such occasions as may be prescribed;").

The noble Lord said: My Lords, this Amendment goes perhaps a little further than I was asked to go in Committee so I hope that your Lordships will feel that we have bent over backwards to make the community health councils as good as we can. This Amendment enables regulations to be made requiring the Area Health Authorities to consult the community health councils about such matters and on such occasions as may be prescribed".

In most cases an A.H.A. will, I am sure, take the initiative and will want to consult the councils, but it may be useful to have a specific power to make regulations requiring them to do so about prescribed matters on prescribed occasions. I am sure it would be wrong, and probably impracticable, to attempt to list all such matters and occasions in detail, but the regulations might specify the kind of circumstances in which consultation will be required. I beg to move.


My Lords, I think we would all agree that this is a very satisfactory extension of proposals for the community health councils and is one that we welcome.


My Lords, this Amendment is consequential on Amendment No. 72. I beg to move Amendment No. 76.

Amendment moved—

Page 11, line 12, at end insert— ("(4A) It shall be the duty of the Secretary of State to exercise his power to make regulations in pursuance of paragraph (a) of the preceding subsection so as to secure as respects each Council that—

  1. (a) at least one member of the Council is appointed by each local authority of which the area or part of it is included in the Council's district and at least half of the members of the Council consist of persons appointed by those local authorities;
  2. (b) at least one third of the members of the Council are appointed in a prescribed manner by bodies (other than public or local authorities) of which the activities are carried on otherwise than for profit; and
  3. (c) the other members of the Council are appointed by such bodies, in such manner and after such consultations as may be prescribed;
but nothing in this subsection shall affect the validity of anything done by or in relation to a Council during any period during which, by reason of a vacancy in the membership of the Council or a defect in the appointment of a member of it, a requirement included in regulations in pursuance of this subsection is not satisfied."). —(Lord Aberdare.)


My Lords, this Amendment is consequential on Amendment No. 72. I beg to move Amendment No. 80.

Amendment moved—

Page 11, line 13, after ("section") insert ("— local authority" means the council of a London borough or of a district as defined in relation to England in section 270(1) of the Local Government Act 1972 or of a district mentioned in section 20(3) of that Act (which relates to Wales) or the Common Council of the City of London; and"). —(Lord Aberdare.)

6.45 p.m.

LORD BEAUMONT OF WHITLEY moved Amendment No. 82: After Clause 9 insert the following new clause—

Appointment of Ethical Committees.

". —(1) The governing body of every institution in which treatment under the National Health Service is provided (hereafter in this section called "an institution") shall appoint a committee to be known as "the Ethical Committee" of that institution.

(2) The Ethical Committee of an institution shall consider the ethical aspects of medical experiments proposed to be conducted on persons receiving treatment in that institution.

(3) At least one quarter of the members of an Ethical Committee shall be persons who are not medical or dental practitioners, nurses, midwives, registered pharmacists, ophthalmic or dispensing opticians and who do not hold any position in or employment under the National Health Service."

The noble Lord said: My Lords, in this Amendment I come back to the attack on the question of ethical committees and to what I am afraid we must refer to, in a kind of verbal shorthand, as experiments on patients. Noble Lords will recall that during the Committee stage the noble Lord, Lord Strabolgi, and I put forward an Amendment in these terms for the setting up of ethical committees in institutions under the National Health Service; and also at that time we attempted to lay down what they should consider and what their terms of reference should be. In a very useful debate it was pointed out that it would be very difficult to draw the line between what was, and what was not, an experiment and that what we were putting forward was to a certain degree unworkable. Not everyone to whom I have spoken accepts that argument, but we felt it right to accept it and to come back to your Lordships with an Amendment just setting up an ethical committee.

I think it quite clear that if you have an ethical committee of this sort and that it is statutory in hospitals and other Institutions, people who have problems Know exactly where to go. It has been pointed out that a great majority of hospitals and National Health Service institutions have such committees. I think it true that there is a small minority which does not have them. What is particularly important is that a large majority of the committees do not have any serious lay representation outside, say, the hospital secretary. We think it important that lay opinion should be represented in respect of these important matters.

Now I come to the slightly delicate task of talking about the kind of case which may arise. On the last occasion I did not quote any particular case because I was anxious that we should concentrate entirely on the question of deciding what kind of experiments there are, whether they are well substantiated and whether they are permissible. Nevertheless one cannot, I think, get away from talking about the disquiet that may exist in the public mind, whether justified or not. I hope that in my short examination of a particular case and a particular newspaper report it will be borne in mind by your Lordships that what I am discussing is not whether or not the report is accurate, but the fact that this is the kind of thing which presents itself from time to time: that a patient in hospital, particularly one who is most defenceless and weak, has a genuine fear and anxiety, and that we can go some way to meet those fears and anxieties if we are seen to set up the appropriate machinery for discussing these problems in a proper way.

My Lords, the paper I am proposing to quote from is the Newcastle-on-Tyne Journal in which there is a report of a paper given at the British Medical Association Conference last year at Leicester. I shall not quote the name of the doctor concerned, not that I think there is anything which is in any way derogatory of him. In fact, I have written to him asking for his gloss on one or two or his remarks, but I have not had a reply. That is not his fault; it is probably mine, because I was not able to give him enough time. He was talking about the method of deciding what kind of operation to conduct in cases of breast cancer, and the fact that in a number of hospitals, in order to try to discover what operation is best for dealing with this, a series of experiments is set up whereby the surgeon does not know which operation he is going to perform on the patient, let alone the patient knowing, until he opens a brown paper envelope which tells him who by chance has been selected for this patient. Your Lordships do not need to be reminded that in operations for breast cancer, which are operations of a particular psychological as well as physiological importance, there is a great deal of difference between the operations which can be performed and their drasticness. The doctor was quoted, whether rightly or not, as saying: The surgeon was not allowed to decide what was the best for the patient.

I have had time to talk this matter over with a number of people, including the noble Lord, Lord Platt, and as he is here and can correct me if I get it wrong, I hope the noble Lord will allow me to paraphrase, as I understand it, what he told me about this kind of approach and experiment. He said that this kind of experiment does go on; that it is an absolute condition that the surgeon concerned genuinely does not know which is the better operation; that if, in spite of the fact that this procedure of opening envelopes has been set in motion, the surgeon feels that in a particular case operation A is better than operation B, he can and must do operation A and set aside that operation out of the series which is considered for comparative purposes for statistical analysis afterwards. The noble Lord, Lord Platt, went on to say that, because we genuinely do not know which of the two operations is the most effective at the moment, such a series of experiments, if conducted under those safeguards, will save lives in the end because it will give us the information that we need.

There may be some of your Lordships who would not accept that. I am quite prepared to accept, at any rate for the basis of this discussion, that that is an ethical procedure, properly arrived at, which can be pursued, but I would point out that if the doctor in this report was correctly reported, he said that the surgeon was not allowed to decide what was best for the patient. I have no means of knowing whether any cases such as that referred to by the doctor in that report in fact occur, but what I do know, and what can be proved without any shadow of doubt, is that this kind of topic does arise, is discussed, is reported in important and reliable newspapers, and is something about which patients increasingly know and about which they have increasing worries.

It does not seem to me, my Lords, that there can be any objection to setting up ethical committees in hospitals, whose business it is to consider, and to be seen to consider, the ethical implications of this kind of experiment or any other kind of experiment. I agree that we cannot give them detailed recommendations as to how they must operate and how they must organise their decisions; but I feel that the mere setting of them up and the knowledge that they are there—and I believe that just as they have increased over the years in number, so their functions will increase and will get to be understood and realised—would go a long way to meeting some of the real fears, doubts and troubles which people have.

Let me go back to this particular case of breast cancer—a highly emotive subject, and rightly so. This particular cutting was sent to me by a lady who talked about her own fears and doubts as to the whole procedure of experiments of this kind, and about the doubts and fears of her friends, relatives and people to whom they had talked. This is the kind of thing to which we, if we are talking now about what we should do under the National Health Service for the rights and protection of patients, should be paying attention. I would ask the Minister, even if he thinks the Amendment in this revised form is not the right Amendment, to consider something equivalent to it, because I believe that we must pay attention to doubts and fears, which may be unreasonable but which nevertheless exist. I beg to move.


My Lords, as I have been quoted, I would say straight away that I am sure the noble Lord, Lord Beaumont of Whitley, has given a true account of the little discussion we had. This is a most difficult issue. I may say that I am entirely in favour of ethical committees, which have been recommended by the Medical Research Council and the Royal College of Physicians and which exist in most of the big hospitals. The difficulties of accepting the Amendment as it stands seem to me to be (though no doubt we shall hear from the noble Lord who is going to reply) to define "an experiment", and also to get over the question of "The governing body of every institution in which treatment" is provided. That might mean a health centre or anything. The conditions would have to be carefully laid down. I might also say that the suggestion that one quarter of the members of the committee should be laymen is rather too much. But these are details. The real difficulty is exactly as the noble Lord has described, and it is a serious one.

Let us take a less emotive subject. I can tell your Lordships something, which is just as true as the account the noble Lord has given, on the subject of acute coronary heart disease. I am sure all your Lordships would think that if you had an acute coronary attack you ought to get straight into an intensive care unit in hospital. We do not even know whether that is right, or whether you are not safer at home and left to your own devices. It is quite true that we are not certain of the answer. And we are not certain, furthermore, whether there are any criteria on which we can say this case ought to be in hospital and that case should stay at home. There are dangers, of course, in moving people in ambulances. I was chairman of a joint committee of the Medical Research Council and the Department of Health and Social Security, and we decided on a random experiment. This is where we are on dangerous ground again, but how else can you do it? We said that doctors who were willing would, by drawing a card or whatever it might be, send this case to hospital and that case would stay at home, but that if a doctor felt there were special reasons, then he would keep the case out of the experiment altogether—as was done in the case mentioned by the noble Lord, Lord Beaumont. I may say that leading cardiologists were against this experiment: they said that it was unethical. They came to see the first twenty or thirty cases, and the cases in class A who had gone to hospital had obviously done better than the cases in class B. One cardiologist in this case said, "I told you it was not an ethical experiment" —and my very naughty friend said, "I am afraid we have mixed up the categories: those are the ones who stayed at home and these are the ones who went to hospital. I am so sorry for the mistake." And the cardiologist did not then say, "It is an unethical experiment, you should keep them all at home." I do not know what the logic of that is, but it is a good illustration of how difficult these things are and how the only way to find out about certain things is to carry out random experiments. I am sure it is not all white or all black, and I hope that by this kind of research sooner or later we shall be able to say that we know the kind of case which is safer at home and the kind of case which is safer in hospital. At the moment we do not know that, so this kind of experiment must go on, however difficult it is—and I fully understand the devastating effect it can have on the lay person who knows only half the story.

So far as I am concerned, I am all in favour of ethical committees, and if we can find a way of writing them into the Bill without running into great difficulties in our definitions, I shall support this Amendment. If, on the other hand, we are again assured (as I believe we were at Committee stage) that the Department took the view this was better done by advice or directives than by writing it into the Bill, then I would also accept that. I would certainly accept that, if there are these committees, there should be some lay representation on them: how much would be a matter for discussion.

7.2 p.m.


My Lords, on the Committee stage the noble Lord, Lord Beaumont of Whitley, indicated that he would return to his suggestion of the insertion of a new clause which would make the appointing of ethical committees a statutory obligation. In the course of discussion he selected me upon whom to launch a direct frontal attack, because he alleged that I had merely said in general terms that legislation was not necessary—indeed, that it was undesirable—and he invited me at this later stage to spell out my reasons in more detail. My first point is that I cannot accept the contention that I was deficient because I did not spell out why I thought special legislation was not necessary. However, I am prepared to meet the noble Lord's challenge on this matter, although it requires a certain amount of time. I should say also that the noble Lord, Lord Platt, has presented full reasons why legislation is unnecessary, and I can see no reason to repeat the arguments already presented.

We all agree that ethical committees are desirable in order to govern and control the relationship between doctors and patients so that nothing is done that will be harmful, unnecessary or unpleasant for the patient, unless it is entirely connected with diagnosis or treatment, and that studies or investigations done for research purposes alone must be closely scrutinised and approved by a body of responsible people.

We must first ask whether such committees are in existence or whether statutory direction is needed for their formation and, if they already exist, whether their function is already recognised. I suggest that the question goes back to those claiming that special legislation is necessary to bring them into existence. I indicated very clearly that they are in existence and are functioning, and that this is the first, and certainly a very important reason why special legislation is not needed. This I spelt out and will repeat.

Some years ago action came from the profession itself to secure the formation of ethical committees. The Medical Research Council issued a report in 1963 on Responsibility in Investigations on Human Subjects and its advice was passed to all hospital authorities by the Ministry of Health in 1964. Indeed the M.R.C. has just issued yet another statement on Responsibility in the Use of Medical Information for Research in January 1973, since the Committee stage on your Lordships' House. In 1967 the Royal College of Physicians issued a report—as mentioned by the noble Lord, Lord Platt—that was supported by the Royal College of Surgeons. In this year also the Ministry of Health re-issued the M.R.C. report previously circulated by the Ministry in 1964 "because a complete new generation of junior hospital staff has since appeared." In the following year (1968) the Ministry of Health issued a directive to hospital authorities requesting that they should each form an ethical committee to deal with those matters to which attention had been drawn by the M.R.C. report.

Last year the Department of Health made an inquiry to follow up the extent of the response to this request. As I stated clearly at Committee stage, the Chief Medical Officer of the Department of Health had issued letters and documents stating that in every case throughout the country each teaching hospital authority had organised an ethical committee, and that three-quarters of all hospitals concerned with clinical research had already done so. About one-fifth of these ethical committees included lay members. These are impressive figures and by themselves should indicate that there is no need for special legislation. I submit that they constitute a powerful argument such as the noble Lord, Lord Beaumont of Whitley, says I did not give. The few hospitals that have so far not formed an ethical committee can very readily be stimulated to do so. I cannot see that legislation is needed.

It would appear that the noble Lord, Lord Beaumont of Whitley, either did not hear what I said or considered the observations unworthy of acceptance. I presume that he would not doubt the truth of these facts put forward by the Chief Medical Officer of the Department of Health; so I can only assume that his unwillingness to recognise the existence of these committees is because he doubts the good intent and genuineness of the hospital authorities who have already formed ethical committees, and he considers that they are a sham.

The hospital authorities are well seized of the importance of honouring the intention of this action that they have taken. There are plenty of doctors and others also who are fully sensitive to the need to exercise proper control. There is no fear that the matter will be neglected or treated casually. I recently approached my own teaching hospital authorities for permission for a young graduate research assistant to make observations on environmental conditions in the operating theatres and intensive care units as they affected the comfort and wellbeing of patients. This work is in association with the Department of Health and is supported by a special grant. The observations were to be of an entirely non-invasive character and in the nature of things could not impose any discomfort, suffering or danger to the patients. The hospital authorities could well have said to me, "As you are consultant emeritus of the hospital, director of a research department at the Royal College of Surgeons and a former president of the Royal College of Surgeons, and as the work is supported by the Department of Health, we can accept that it is in order for you to do it." In fact I was told that I must first observe the hospital rule that full details of the proposed research should be submitted to the ethical committee on a special form; and this I have done. This is the way these matters are routinely and generally conducted. I think this at once throws back to the initiators of this Amendment the responsibility of showing why it is necessary. Why should they think that doctors, hospital authorities and the Royal Colleges are insincere and unreliable in their conduct of this important matter?

Having, as I think, shown that it is already being handled effectively in a decent voluntary manner and that there is no need to legislate to achieve it, I will put forward some other reasons why the matter is better left to the good sense of the profession and not be surrounded by controlling legislation.

I foresee great difficulties in separating control of clinical research from what is properly the freedom of clinical decision, of clinical responsibility, which we think is entirely a matter for each individual doctor. I do not intend to enter into a full presentation of clinical freedom, because that is extremely difficult; but essentially it means that the doctor who is responsible for the treatment of his patient should be able to give that management and treatment which he thinks is proper and should not have his judgment interfered with or compromised by the intervention or direction of an outside person or body. His decisions, conduct and advice must be responsible, reasonable and not neglectful or basically harmful, but he should not be intimidated against his own careful judgment and opinion.

It is in this field that difficulties may arise, especially when it involves new methods of investigation or new methods of treatment, particularly if an operation of a new type is involved. In order to get away from a somewhat vague generalisation and to be more particular, I will, with some reluctance, give an instance from my own experience. Many years ago we were occupied with the development of operations for heart disease. One type of operation that had been brilliantly successful had been acclaimed as such throughout the world. In spite of its success, I felt that it was lacking in that it followed a principle of secondary importance, and that we should rather follow a principle of primary importance. This involved an entirely new and untried procedure of an operation on the substance and structure of the heart itself. This had not hitherto been done with success, but I was able to demonstrate that it could be entirely successful and, indeed, my first patients were alive and well some 24 years later. The principle is now fully accepted and marks the first important steps of advance in successful operative treatment of many heart diseases. But within a few days of taking this new step that proved to be absolutely justified I was told by a colleague, "You had no right to do that when you had an alternative operation available that had already proved successful." In other words, I was being accused of unethical practice.

The anxieties and responsibilities I had had in carrying out what I considered a thoroughly justifiable procedure were in no way lessened by this remark and, indeed, my feeling of resentment is still sharp a quarter of a century later. It is only slightly modified by my knowledge that the step has been fully accepted and that I should have been lacking if I had not followed my conviction that it was the type of operation that was needed. I repeat, it was indicated that I was being unethical. I suggest that the existence of means of placing me under legislative constraint would not have been desirable. I have given this example from my own experience, but it could be multiplied many times. Take the question of transplantation of organs, especially transplantation of the kidney. There was a time a few years ago when the ability to transplant kidneys with any degree of success was rejected and much was written and spoken against it, including ethical objections. In spite of this unfavourable atmosphere some surgeons persisted and have achieved a degree of success that fully justifies the procedure and shows that the way lies open to much more transplant surgery that can be as beneficial as kidney transplantation.

During the past two or three decades we have witnessed immense advances in many fields of medicine and surgery. The immense progress could easily have been adversely affected by certain restraints. The Minister, the noble Lord, Lord Aberdare, stated that the general underlying intention of the new clause is acceptable both to the Department of Health and to the profession. But he stated very clearly yet another objection allied to what I have just said: that a matter of this sort, where the details are constantly changing, is one that is not best dealt with by legislation. He was sure that there is general agreement on the basic need to protect the patient and also on the need to protect clinical freedom and the advance of medical knowledge. These are not irreconcilable, but any law, any precise definition, would soon be outdated. The Minister said that what is needed is an understood procedure and a constant adaptation to changing circumstances.

The Medical Research Council's statement in 1963 on responsibility in investigations on human subjects emphasised the heavy moral onus on the profession, severally and collectively, not to abuse the trust of patients. It lays down circumstances in which the fully valid consent of the patient must be obtained and it recommends that other experienced colleagues should be consulted where appropriate. It also stated that a detailed code of rules was impossible to draft. I submit, therefore, that the evidence is abundant that the profession is fully aware of its responsibilities in this important matter, that it has considered it fully and conscientiously and that it can be trusted to see that the necessary precautions and safeguards are carried out in the way that they should be.

It is also clear from the course of events, of decisions and directives on the part of the Department of Health, that genuine and successful steps have been taken by the Government to make clear what their wishes are in this important and sensitive matter, and that the follow-up they recently conducted shows that their wishes are being properly observed by hospital authorities. No doubt more follow-up inquiries will be made, and I have little doubt that they will reveal that what is needed is being done even more widely and conscientiously. For these reasons, I repeat what I said earlier: that these proposals are not a fit subject for legislation; that they are already covered by present practice, and that any direction or guidance that is thought necessary with changing conditions can be achieved by simpler means than by Statute.

7.17 p.m.


My Lords, any layman who takes part in a discussion of this kind is, inevitably, treading on delicate ground, but this is a matter of some importance. The intention behind the Amendment of the noble Lord, Lord Beaumont, is a very good one, but there are one or two difficulties which we can all foresee. Medicine these days is, as we all know, becoming much more sophisticated. Technical equipment is becoming more involved, and intense training is needed in its use. Therefore I hope that medical students, when they start off on their career, are taught, among other things, the ethics which they must pursue. This seems to me to be an important matter and one which will go to the root of much that is implied in this Amendment.

The part of the Amendment which rather disturbs me is subsection (3) which quite rightly mentions that at least one quarter of members of an ethical committee should not be directly concerned with the Health Service. This is what I take it to mean. But, as we have heard regarding many other parts of this Bill, there are those who serve on the house committees of hospitals in an unpaid and therefore perhaps more objective section of the Service, who would be of intense value if we are going to have these committees. Completely to exclude anybody with any connection with the Health Service—if that is the intention—would probably lessen the value of any Amendment of this kind. I wonder whether the Minister has any figures available about how often, say, in the past year or two years it has become necessary to probe into matters of this kind, the kind which the noble Lord, Lord Beaumont, quite properly mentioned. I feel on balance that our doctors in this country, as I mentioned yesterday, have a very high standard and code of ethics. As I believe that most hospitals have a code of this kind, it seems to me that the important thing is that those entering into the profession today should have instilled into them by those who are teaching them medicine the need for the highest standards in this field.


My Lords, the noble Lord, Lord Auckland, has paid a high tribute to the medical profession. I should like to repeat that, and to say also that in addition to his interesting speech we have had two most interesting and informative speeches from two very distinguished members of the medical profession. The noble Lord, Lord Auckland, said that he would be glad to hear from the noble Lord, Lord Aberdare, how many experiments of this kind there may have been in the past, and whether there were any which were causing disquiet. Possibly there are not now. For the record, I would point out that in Committee I quoted, and so did the noble Lord, Lord Vivian, from a book called Human Guineapigs, for which I hold no brief at all—I do not know whether its allegations can be substantiated—but it cited a great number of medical experiments which it considered to be somewhat unethical. The noble Lord, Lord Aberdare, in his reply said: I understand that the cases cited in this hook were collected over a long period and from a number of countries other than the United Kingdom."—[OFFICIAL, REPORT, 25/1/73, col. 282.] All I can say is that I have been through the book and there are at least 50 experiments from the United Kingdom over a period of about ten years from 1955 to 1965 which this particular writer alleges are in his opinion unethical. I admit that this was some while ago and what he says cannot be substantiated. I should like to make the point that the cases I was citing from that book were alleged to have come from the United Kingdom.

I was particularly interested in the contribution of the noble Lord, Lord Platt, and of the noble Lord, Lord Brock.

There we seem to be at one. Lord Platt said that experiments must continue—and here I am sure the noble Lord, Lord Beaumont of Whitley, and I certainly agree with him. The noble Lord, Lord Brock, said that ethical committees are desirable and indeed are in existence. I thought his speech gave a great deal of support to the whole question of ethical committees. We do not quarrel with that at all. All we are asking in this Amendment is that something which seems to be working very well on a voluntary basis should be written into the Bill and be made a statutory requirement. There is no form of dictation in these committees. The wording is that they shall "consider the ethical aspects"; they are not going to lay down in law about it. The great majority of their members will be members of the medical profession; and indeed it is merely going to extend what seems to be working very well in the words of the two distinguished medical Peers who have contributed to the debate. Therefore there is every reason why this Amendment should be accepted and this additional clause written into the Bill.

7.23 p.m.


My Lords, these are difficult and delicate matters. I do not complain that the noble Lord, Lord Beaumont of Whitley, has put down the same Amendment again, less one paragraph. It has stimulated a further interesting debate and we have again heard from the noble Lord, Lord Platt, and had a longer speech from the noble Lord, Lord Brock. I am afraid that my contribution cannot go much further than I went on the last occasion, because there really are serious difficulties in putting this matter into legislation, even if it were desirable to do so. I must say that I thought the weakest argument of all was put forward by the noble Lord, Lord Strabolgi, when he said, quite rightly, what I confirmed last time and the noble Lord, Lord Brock, confirmed, that all hospital authorities where clinical research is undertaken have ethical committees, and therefore, Lord Strabolgi added we should put them into the Bill. I thought the opposite should be true. As they already exist in all hospitals where clinical research is undertaken, I cannot see the point of putting them in a Bill.


My Lords, I thought that the noble Lord, Lord Brock, referred to 75 per cent. of the hospitals where clinical research is done. The noble Lord, Lord Aberdare, said "in all".


Well, my Lords, my information is that in all hospital authorities where clinical research is undertaken there are ethical committees, about one fifth of which include lay members. But the difficulty is that one cannot put matters of this kind into legislation. Lord Platt has already put his finger on many of the difficulties. I explained them, or tried to, at the Committee stage. "Medical experiment" itself is undefined and probably not sensibly definable. The word "institution" is very wide, because the effect of the noble Lord's Amendment would mean that every hospital and probably every health centre would have to set up ethical committees which would never be called to meet and would therefore he rather redundant. At the same time, the word could not be held to cover medical schools, where a certain amount of research of this kind might go on. So there are grave difficulties in legislating.

Nevertheless, I must confirm again that we have undertaken to look into the possibility of further guidance and that we are in conversation with the Medical Research Council and the Royal College of Physicians on the whole question. I confirmed on the last occasion to the noble Lord that this includes the question of lay membership. If he is seeking simply to reassure patients that suitable arrangements are made for the clearing of clinical experiments within the profession, then I think there are perhaps other ways one might look to do that rather than by simply putting it in a Bill. I am not sure how many patients read a National Health Service Bill before they go into hospital, but Lord Beaumont might think there are other ways in which we could reassure people that they are not going to be experimented upon.


My Lords, I should like to thank noble Lords who have spoken on this clause for again turning their minds to this extremely important problem. I must apologise to the noble Lord, Lord Brock, if I was discourteous to him at the Committee stage. I did not intend to be, and I am delighted that it in fact prompted him to unveil his full battery of arguments. On the question of lay representation, I must say that I do not think 20 per cent. of ethical committees having lay representation is a very overwhelming figure. It means that 80 per cent. of them do not have lay members. This is something which needs to be dealt with, and I am delighted to know that the Department is considering further advice on the matter. I only hope it will be far-reaching advice. I entirely take the point of the noble Lord, Lord Auckland, that we drafted that part of the Amendment not too well. It is a difficult piece of drafting to say something which means "layman" in this situation. If we had been able to go further, I would certainly have paid attention to what he had to say.

I thought the interesting points that the noble Lord, Lord Brock, put about clinical freedom were not entirely relevant. Since we are agreed that we have ethical committees, and since the only purpose of this Amendment would have been to make those ethical committees statutory, without laying down in any great detail what they should do, it does not seem to me that that could in any way infringe proper clinical freedom. It certainly was in no way intended to do so. I thought that the noble Lord, Lord Aberdare, was a little lighthearted when he made the crack about patients not reading the Statute before they to into hospital. That is entirely true but it is also true (and he knows it as well as the rest of us) that people as a whole have a great respect for their rights when they are entrenched and when they know that they are written into the law of the land, and although this would not become general knowledge immediately the mere fact that there is such a procedure and that it is statutory would, I am sure, have some effect.

It is with considerable disappointment that I must accept the statement made by the noble Lord. Lord Aberdare, that there is no suitable way to put a provision such as this into the Bill. It is with some satisfaction that we accept his reassurances about the advice that is going to be given, and I can assure the noble Lord, as I am sure he is aware, that a good many people will be keeping a watch on what advice is given and hoping that it really will be adequate. If it is not adequate this time there may be a case for improving it or even doing something statutory. I am not entirely satisfied, but in the circumstances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 10 [Co-operation between health authorities and local authorities]:

7.32 p.m.

LORD GARNSWORTHY moved Amendment No. 83: Page 12, line 44, leave out ("three") and insert ("four").

The noble Lord said: My Lords, this is a paving Amendment and I should like to speak to Amendment No. 84 at the same time. Amendment No. 83 would merely provide for the inclusion of the clause that I am hoping to persuade the Government to accept. May I first say that I feel your Lordships have been very patient as the disappointments of the Inner London Education Authority in losing the school health service have been voiced, and have been very patient at what might be regarded as the rearguard action that has been undertaken from this side of the House to try to salvage something from the situation. I tried in Committee and I tried again yesterday to persuade your Lordships to give the Inner London Education Authority certain reserve powers that would enable them, in the event of failure in the School Health Service in one of a number of ways, to meet the situation and to ensure the continuance of the very high standards that have been built up.

I have been able to appreciate the force of the argument advanced by the Government and I have accepted that they were determined that ILEA should not have the reserve powers for which I asked on their behalf. I suggest that this Amendment is of a quite different kind, and because it is so different I hope it may commend itself to the Government. Indeed, I think there would be considerable advantage in its inclusion in the Bill.

Clause 10 requires health authorities and local authorities to co-operate with one another and to establish joint consultative committees. The purpose of the new clause that I am proposing is to secure co-operation between all the health authorities in Inner London and the Inner London Education Authority. It has been pointed out before, but I think perhaps it ought to be mentioned again, that the situation in London is quite different from that obtaining in the rest of the country, and the situation in Inner London is quite unique in that no less than seven Area Health Authorities are concerned in the area covered by the Inner London Education Authority.

The proposed Amendment would provide special arrangements for Inner London and could be used to ensure that if there was failure to maintain the school service at the very high standard and with the degree of uniformity to which the authority is accustomed, they would be able to bring home the difficulties to those concerned on the health side. They would be able to use their powers of persuasion to enable them to remedy the breakdown and to maintain throughout the whole of the Inner London area a uniformity of service which, if not maintained, would not merely cause concern to ILEA, it would also be very difficult indeed to persuade the parents that there was any good reason for the differences in treatment, the standards of treatment, the sort of place in which examinations and all the other things that go along with the School Health Service are undertaken, and that they should vary from place to place.

It may be said that Clause 10 of the Bill meets the situation adequately, but as I am advised it does not adequately do so. Clause 10(1) is designed to achieve the co-operation of health authorities and local authorities in securing, in general terms, the advancement of the health and welfare of the people of England and Wales. The aim of Amendment No. 84 is to secure a high and uniform standard of school health provision for Inner London schoolchildren, and more particularly to ensure that such provision is made, so far as possible, in the schools instead of elsewhere in order to avoid the loss of educational time and to foster a multidisciplinary approach by involving teachers, particularly in special schools —and London has a considerable number of them—in the care of children.

This is a far more specific aim than the general statement of intent in Clause 10(1), however worthy such a statement might be. Under Clause 10(2) the function of the joint consultative committees is to advise Area Health Authorities and local authorities on the performance of the general duty imposed by Clause 10(1) and on the planning and operation of services of common concern to those authorities. But there can be no guarantee under Clause 10 that a joint consultative committee constituted in this way would in practice be established. Even if it were, it is extremely doubtful whether the achievement of the aim of the Inner London Education Authority, and its specific aim—and I venture to suggest a reasonable aim—would be a matter of common concern. Will each Area Authority on the committee be concerned with the standard of provision over the whole of Inner London? The feeling is that it probably will not. Each Area Authority will be—rightly so in the view of most people—concerned with the priorities in its own area. Deficiencies in, say, inspection and treatment in the resources of, for example, Lewisham will hardly be a matter of concern to the Area Authority of Islington, where adequate facilities may already be provided.

In regard to the Inner London Education Authority's objective of providing Health Service facilities so far as possible in the schools, it would be embarrassing and inconvenient for the Authority and almost incomprehensible to parents and teachers if, for example, one Area Authority supplied physiotherapists in schools for the physically handicapped at a different level of provision than that of another, or if a third wished treatment to be carried on outside school, so creating a different situation there. I suggest that such a situation could arise if the Bill is enacted as drafted. The presence of the machinery proposed in this Amendment could ensure that such difficulties or inconsistencies were avoided and the ILEA'S aim achieved.

The position of the ILEA may not seem to be a matter of great concern to many of your Lordships. I repeat what I have said before; namely, that it is the largest education authority in the country and that the standard of its School Health Service was excellent compared with any education authority. Indeed, its standard of service was in many respects higher than most. It had the opportunities that others did not have resulting from the very size of the area it covered and the number of children involved. It has lost a very great deal and it is rightly concerned about the service available to the children in its schools.

I appeal to the Government, in considering this Amendment, to realise that whereas they have felt unable to agree to any of the other requests that have been made, this is a very reasonable request. I ask that there should be a joint consultative committee on which the ILEA has a right to participate. I hope that we shall not get a refusal from the Minister on a matter that would give so much satisfaction where so much has been denied and where there is so much justifiable concern. I beg to move.

7.43 p.m.


My Lords, the House will understand, from the previous discussions that we have had on the Bill as it relates to the area of Inner London, the concern which has prompted the noble Lord, Lord Garnsworthy, to table this Amendment and to speak to it in the way he has. I put it to the noble Lord, as I admit I have done before, that I genuinely do not think that what he proposes is necessary. As the noble Lord knows, the position is that the main proposals for collaboration and joint consultative committees are as set out in Clause 10 and follow the recommendations of the Working Party on Collaboration. The particular arrangements needed for London will be looked at by a subcommittee which has been set up by the Working Party to look at the whole range of Health Service local collaboration issues in London. I gave a specific assurance about this only yesterday in this House.

In his remarks, the noble Lord seemed to query the effect of Clause 10 and wondered whether it could possibly achieve the result which he wishes to achieve in his Amendment, and perhaps I may clarify this point. Clause 10(2) provides for the Inner London Education Authority to be represented on a joint consultative committee for each Area Health Authority forming part of the ILEA area. That is something which the noble Lord does not want. There are, however, powers in Clause 10(4) to vary these arrangements and it is for consideration whether, instead, there should be a single joint consultative committee for all the education or health matters in the ILEA area comprising representatives from ILEA and the seven Area Health Authorities. But whereas the noble Lord would like to write it into the Bill now, I am asking him to agree to have it looked at by the subcommittee which has been set up and which is shortly to meet.

The noble Lord asked whether each joint consultative committee will be concerned with the Service over the whole of the Inner London area. This will, of course, be up to each J.C.C., but as the ILEA will be represented on each of those J.C.C.s, I do not think the noble Lord's fears have any foundation in this respect. I ask the House not to prejudge the arrangements which will be looked at now by the Inner London sub-committee of the Joint Working Party.

The Amendment would entail statutorily another committee in addition to the joint consultative committees which are to be set up under this clause. As I have said, the London sub-committee is about to look at the matter and I assure the House once again that the powers in Clause 10 are sufficient to enable the Secretary of State to ensure the establishment of the type of joint consultative committee which is envisaged in this Amendment.


My Lords, the hour is anything but early, and the attendance in your Lordships' House is now quite thin compared with the good attendance we have had all day. It would be very foolish of me to think of pressing this matter further, even if I thought there was value in doing so. The noble Lord, Lord Belstead, speaks of my fears. I assure him that they are not my fears alone and I trust that the Minister will take away with him the thought that these are the fears, the considered fears, of the ILEA as legally advised and that the Amendment has not been lightly tabled. Nor did I lightly decide to move it tonight in view of what the noble Lord said yesterday.

When I said that the acceptance of this Amendment would give comfort where there is now concern, I was merely relating what happens to be the truth. The strong feeling of the ILEA is that it is necessary, if they are to play the role they wish to play in the school health service, for this provision to be written into the Bill. I am grateful to the noble Lord for reiterating what he said yesterday about the sub-committee of the Joint Working Party. I am glad to have his assurance, and pleased to have it on record, that the subject matter of Amendment No. 84 will come before them. As the noble Lord was speaking, I seemed to detect something of a recognition that the Government are not absolutely positive about the future and if they will keep something of an open mind that at least will be a slight achievement. Having regard to the situation, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.51 p.m.

LORD STOW HILL moved Amendment No. 85. After Clause 13 insert the following new clause:


"It shall be the duty of the Secretary of State to take all reasonable steps to promote and organise research in all fields of medical science, diagnosis, treatment and technology, and to make available all such finance and other resources as he considers reasonably necessary for that purpose."

The noble and learned Lord said: My Lords, I shall not detain your Lordships long over this Amendment which your Lordships may have noticed is in identical terms to an Amendment which was before the Committee on the Committee stage. At that stage I presented my argument in full in support of it and I certainly shall not seek to repeat what I said then. The noble Lord, Lord Belstead, at the conclusion of that argument very kindly indicated that he would like to think the matter over and since then he has been (if he would allow me to say so) extremely helpful in indicating to me the result of his thinking. I am most indebted to him for going into the matter so carefully. He indicated also what he thought would be appropriate steps that might be taken with reference to a specific case which I mentioned in the course of my argument. I am most indebted to him also for approaching the matter on that basis.

In those circumstances, my noble friends and I thought to ourselves whether it would be in the public interest that we should revert to the matter on the Report stage of this Bill. After some hesitation—and I frankly so admit—we thought that it would be right at any rate to have the Amendment tabled again, and in order that it should not, as it were, be withdrawn from the arena of argument, present shortly the case for it. I say at once that I will not seek to divide the House upon it though I should like the express view of the House when the argument is concluded.

The noble Lord, Lord Belstead, indicated that he thought that the existing language of Section 2 of the 1919 Act and Section 16 of the 1946 Act adequately covered the position and provided adequately for the prosecution of research at a pitch of intensity which was desirable in the public interest. My noble friends and I have carefully reconsidered that language. I have it in my hands, I have copied it out, but I do not propose to read it to your Lordships because I do not think that I should be serving any useful purpose by so doing. All I would say is that having most carefully reconsidered that language we do not think that it is adequate to place upon the Secretary of State a precise and specific duty to look after research, to see that if research is not already done by some other responsible body something must be undertaken in order to see that any necessary fields left uncovered are properly catered for.

My Lords, it is in those circumstances that I and my noble friends put the clause again before this House. As I have said, I hope that even now Ministers may think that the circumlocation of Section 2 of the 1919 Act does not achieve the objective which is necessary in this context. Having said that—and having asked the noble Lord to have one more look at that language to see whether he thinks that its very imprecise, circumlocutionary nature, permissive in character, is adequate—I ask the House to accept this Amendment and would add no further to the argument which I have just put before your Lordships. I beg to move.

7.55 p.m.


My Lords, when the noble and learned Lord moved this Amendment in Committee, he created a difficulty in the sense that on the one hand the noble and learned Lord, Lord Stow Hill, expressed his concern (and he has repeated that concern to-day) to see that all reasonable steps should be taken by the Secretary of State for Social Services "…to promote and organise research" and to make available the necessary finance. I am bound to say that I am not entirely persuaded that there is a great deal of difference in effect between that Amendment—and I entirely understand the reasons for the noble and learned Lord tabling the Amendment—and the situation as it exists to-day whereby the Secretary of State has a power to do as he wishes. However, that is as may be because, as the noble and learned Lord would immediately say to me, "We can always tidy up the wording".

There was, however, a second real difficulty; namely, that although the noble and learned Lord asserted that his Amendment would not interfere with the independence of those who were involved in research, there is no gainsaying that the Amendment is bound to conflict with the division of responsibilities for medical research between the Medical Research Council which comes under the budget of my right honourable friend the Secretary of State for Education, the universities (which are, of course, funded by the universities themselves through the U.G.C.), and research funded by the Department of Health and Social Security direct.

It was for that reason that the Government felt unable to accept the noble and learned Lord's Amendment as it stood. But what I believe the noble and learned Lord would wish at this stage is to have a reply from me to one particular point which was raised in Committee, and I am in a position also to offer some positive action in response to the reason which prompted the noble and learned Lord to table this Amendment. In Committee, I regret that I launched off into the rapids of the situation about constitutional practice as to where Ministerial responsibility for medical research should lie, and the noble and learned Lord was so good as to withhhold any criticism until there had been an opportunity for us to have a private discussion. I am advised that Ministerial responsibility for research depends upon the nature of the activity for which the funds are sought.

When the noble and learned Lord wrote on behalf of a distinguished doctor at a famous medical school it appeared that general funds were being sought and that is the reason why the noble and learned Lord received the reply from my right honourable friend's Department that this was a matter for the U.G.C.—and in the final analysis it would have been for the medical school's own university—and therefore this was not a matter for which my right honourable friend was directly responsible. Subsequently, after the noble and learned Lord had kindly discussed the matter with the Government, I understand that the school may have had in mind funds for some specific research, and my right honourable friend the Secretary of State for Social Services will now arrange a discussion with the school at official level to advise about the appropriateness of possible approaches either to the M.R.C. or to the Department of Health and Social Security. As the noble and learned Lord knows, I am only too ready thereafter to arrange for him to discuss with the appropriate Minister who has ultimate responsibility if he feels that that would be useful, bearing in mind that if the activity were to fall into the M.R.C. field the immediate decision whether to assist financially is for the M.R.C.

I hope that perhaps the noble and learned Lord, Lord Stow Hill, may consider that this renewed debate, as well as the debate in Committee, has had some profit in it. After the very close scrutiny which has been given to research, not least to medical research, and not least again in a long debate which was initiated in this House by my noble friend Lord Bessborough, the Government really cannot accept the noble and learned Lord's Amendment as it stands because it would alter the balance of responsibilities which has been arrived at for research in this country. But the Amendment has enabled the House to take a further look at the matter, and I hope that the noble and learned Lord may take the view that that has been of assistance also in the case which originally prompted him to table the Amendment.


My Lords, I venture to rise to my feet again only to thank the noble Lord, Lord Belstead, once more for his attitude in this matter. He has taken steps which will be very helpful and, as he knows, I have already taken him up on his offer. I am most indebted to him. For the reason I gave I do not formally ask your Lordships' leave to withdraw the Amendment because I feel that it should be left on the Table for further discussion in case other views should prevail.

On Question, Amendment negatived.

Clause 19 [Provisions supplementary to Section 18]:


My Lords, this is a further Amendment which lays a duty on the Secretary of State to consult staff interests, in this case when making orders under Clause 18, or what is at present subsection (1) of Clause 19. I beg to move.

Amendment moved—

Page 23, line 36, at beginning insert— ("(1) Without prejudice to the duty imposed on the Secretary of State by subsection (2) of the preceding section, it shall be the duty of the Secretary of State, before he makes an order in pursuance of that section or the following subsection, to consult with respect to the order such bodies as he may recognise as representing persons who in his opinion are likely to be transferred or affected by transfers in pursuance of the order.")—(Lord Aberdare.)

Clause 33 [Administrative provisions]:


My Lords, this is in substance the same as an Amendment which I moved at Committee stage, but after consultation with the Minister's Department it has been more felicitously worded. I beg to move.

Amendment moved— Page 33, line 10. at end insert ("and it shall be the duty of the Health Service Commissioner for Wales to include among his officers such persons having a command of the Welsh language as he considers are needed to enable him to investigate complaints in Welsh ")—(Baroness White.)


My Lords, I am very happy to accept this Amendment, and I congratulate the noble Baroness on her excellent drafting.

Clause 34 [Matters subject to investigation]:

8.1 p.m.

LORD STOW HILL moved Amendment No. 88: Page 34, line 21, after ("has") insert ("not received proper and adequate medical care or attention or that he has").

The noble Lord said: My Lords, during the Committee stage discussions on this aspect of the Bill, which deals with the Ombudsman, some anxiety was expressed as to whether the wording of the Bill might not have the result of unduly limiting the jurisdiction reposed in the Ombudsman. Your Lordships will be aware, of course, to begin with, that the Ombudsman, or perhaps I should describe him as the Commissioner, cannot investigate under Clause 34(4) "any action in respect of which" there is "a right of appeal, reference or review" and so on, or in respect of which there is "a remedy by way of proceedings in any court of law". Under the next subsection he is prohibited from investigating any matter which relates to "general medical services, general dental services, general ophthalmic services or pharmaceutical services". Under Schedule 3 he is prohibited from investigating any action which arises out of "the exercise of clinical judgment".

May I, at the outset of this argument, say at once that I myself, and my noble friend, Lady White, who has put her name to this Amendment, recognise that clearly every clinical judgment of a doctor cannot possibly be submitted to the jurisdiction of the Commissioner. It would be quite absurd to propose such a thing; it would bring the whole medical service to a halt, or it might do so. I certainly do not propose anything of that sort. But it did occur to my noble friend and myself to wonder whether, with those limitations, the further limitation which is contained in subsection (3) of Clause 34 is itself not too restrictively drafted. Under that subsection — and it is from that subsection that the Commissioner derives his main jurisdiction—he is empowered to investigate "an alleged failure in a service", an "alleged failure …to provide a service which it was the function" of a relevant body to provide; "or (c) any other action taken by or on behalf of a relevant body". If one looks earlier in that Clause one sees what a relevant body is—broadly speaking, in the present context, Regional Health Authorities, Area Health Authorities and so on.

The restriction which I should like to draw to the attention of the House consists in these words; he can investigate any such alleged failure or any such other action in a case and only in a case, where a complaint is duly made by or on behalf of any person that he has sustained injustice or hardship in consequence of the failure or in consequence of maladministration connected with the other action". Are the words "injustice or hardship" too restrictive? I know that the noble Lord thinks they are not; he has already very kindly indicated to me in a letter that he thinks the word "hardship" is quite wide enough to cover anything which should be within the purview of the Commissioner. The word "injustice" comes from the Parliamentary Commissioner Act 1967, which is, as it were, the fons et origo of all this Ombudsman jurisdiction.

I should have thought that in the very nature of things when you are talking about a Health Service "injustice" is hardly the right word. The complainant is not going to say "I have been unjustly treated". He might in the rare case, but I should have thought that in 99 cases out of 100 there would not be any question of injustice; so the operative word will be "hardship" The Commissioner will have to be able to say to himself when he looks at the ground of complaint, "Yes, this complainant is complaining of what I can properly regard as a hardship within the meaning of that term". In a very large number of cases there will not be hardship. Supposing it is mere inconvenience, or mismanagement, or his having been subjected to a risk to which he should not have been subjected but where there have been no unfortunate consequences as a result.

What one has in mind, surely, in this context is the possibility of a patient's not having received proper and adequate medical care or attention. It is those words that I seek to insert in this restricting phrase, in this phrase which defines the area of the Commissioner's responsibility. In other words, he will be able to make an investigation into an alleged failure, and so on, where a complaint is made by or on behalf of any person that he has not received proper and adequate medical care or attention or that he has sustained injustice or hardship. I do not seek to take out what is already there, but I do seek to add words which seem to me to be appropriate to cover the cases—99 cases out of 100—in respect of which complaints are likely to arise.

The noble Lord, as I said, thinks "hardship" covers that already. Take the kind of case where somebody says, "This hospital is hopelessly badly managed. I have been three times to the out-patient department; I have waited the whole morning and I was not reached; nobody came to see me; my turn did not arrive." That is thoroughly bad management. It is thoroughly inconvenient. Is it hardship? I should have thought it was very doubtful whether it was hardship. I mentioned the case where a person is subjected to risk. Suppose, because the hospital is badly managed, he is put in a position where he might have sustained serious harm but fortunately did not do so. He has not sustained hardship. What has happened is that he has been exposed to an unnecessary and improper risk, fortunately without bad results. That, I should have thought, could not be said to be, within the meaning of this phrase "hardship" something which falls within the jurisdiction of the Commissioner, in relation to which he is given power to make an investigation. That is the point which I would seek to make in support of Amendment No. 88. May I also, while dealing with it and in order to save time, say that Amendment No. 92 is simply consequential on this Amendment; if Amendment No. 88 is acceptable to your Lordships, No. 92 will be consequential upon it.

It might be a saving of time to your Lordships' House if I also shortly argue the case in favour of Amendment No. 93. That is directed to precisely the same objective. It is an Amendment to Schedule 3 which says that the Commissioner must not investigate any action which stems from a clinical judgment. I accept that as a principle, but you may constantly have cases in which a doctor makes a mistake of clinical judgment—and that, I accept, should not by itself be the subject of investigation—but the surrounding circumstances are such as to seem to suggest that that type of mistake must have been due to some mismanagement on the part of the hospital as a whole. The doctor might have been a doctor who plainly had inadequate experience to deal with that type of case; he might have been alone and not able, under the hospital arrangements, to seek help or to communicate with somebody who could handle a case of that sort; he might not have been supplied with the appropriate equipment. Various things stemming from bad management in that hospital might have resulted in his being unable to form a better clinical judgment than he in fact did.

It is in order to deal with that kind of case that in Amendment No. 93 my noble friend and I propose that, while the clinical judgment should not be subject to investigation by itself so that one preserves the really important principle, nevertheless if the Commissioner thinks, when looking at the surrounding circumstances, that there is some ground for thinking that there was mismanagement on the part of the hospital as a whole and independently of that error in clinical judgment, then in that case, and only in that case, he is empowered, by the words which we have selected for our Amendment, to look at the whole matter. He can then ask himself whether this was really a case of mismanagement or whether there was no mismanagement and the error of clinical judgment was just an error of judgment on the part of a qualified doctor with all the help he required, with all the equipment he needed, and was simply one of those errors of judgment to which all human beings are unfortunately prone. That is the case in favour of Amendment No. 93. and it seeks to achieve the same sort of objective; that is, to prevent what perhaps otherwise might be thought to be an undue restriction of the jurisdiction conferred upon the Commissioner. I beg to move.

8.13 p.m.


My Lords, I was suffering yesterday from "hardship" due to maladministration, and I had neither food nor drink from 12 o'clock noon until 10 o'clock at night. This evening I dashed away for five minutes to try to get something to eat, hoping that the noble Lord, Lord Garnsworthy, would take at least 40 minutes over his Amendment No. 84. Unfortunately, he seems to have rushed through it, and the noble and learned Lord, Lord Stow Hill, has rushed through Amendment No. 85, which I am sorry to have missed. However, I must address myself to the matter in hand, which I understand is Amendment No. 88.

As I came in, the noble and learned Lord, Lord Stow Hill, was saying—and I understand that it is fully accepted in this House on all sides—that it is not to be the business of the Commissioner to interfere with matters of clinical judgment: a doctor must be allowed to prescribe what he thinks is right for his patient, and the patient has a remedy at law, and so on, if the doctor has in any way misprescribed. I look forward to hearing what the Minister has to say in reply. It seems to me that these particular words almost completely deny what the noble and learned Lord was asserting (that is, that there should be no interference with clinical judgment), because I cannot interpret the words, "not received proper and adequate medical care" in any way except that they are a complaint against the clinical judgment of the doctor. I agree, of course, that in the particular case it could be argued that the doctor's decision, in the circumstances, was right, but that he had not got the proper apparatus, the department was inadequate and so forth. But it does not seem to me, in my comparative ignorance, that anything drafted into this Bill makes that at all clear. It seems to me that this brings the Commissioner right into questions of clinical judgment. If so, I would suggest that we are in for a rather long debate on some more suitable occasion.

8.16 p.m.


My Lords, I must say that I thoroughly agree with the noble Lord, Lord Platt, in his definition of "hardship". I think that many of us have suffered from a certain amount of hardship in the course of this evening's debate. I think that I can say to the noble Lord, Lord Stow Hill, that the "hardship" really covers some fairly basic suffering of an individual, which would cover the sort of case that he has in mind. Certainly I agree with the noble Lord, Lord Platt, that, as drafted, Amendments Nos. 88 and 92 verge on bringing clinical judgment into the matter, and I would not wish to accept those Amendments.

First of all, I do not think that they are necessary. Clause 34(3) already enables an aggrieved person to complain about failures in the service, or failures to provide a service, which result in hardship, and this would include hardship resulting from inadequate medical care or attention, provided, of course, that it was not otherwise excluded from investigation, for example, by the clinical judgment provision in paragraph 1 of Schedule 3. May I give the noble Lord an example or two which I think meet his point? A Health Service Commissioner would be able to investigate a complaint that a doctor failed to examine a patient as a result of a breakdown in the normal administrative process. That would be hardship. If the patient had had to wait for an excessive time for admission to hospital, that too would be a hardship. But it is desirable to keep the wording of the Bill as tight as possible, and to avoid adding superfluous words.

I would particularly suggest that the words in the Amendment would be undesirable because they refer to "medical care or attention". Either this would mean, as the noble Lord, Lord Platt, fears, that it would be widening the Health Service Commissioner's remit into the field of clinical judgment or, if it is merely intended to clarify the terms of reference, then it would be unacceptable because it is not only medical care and attention that one receives in the National Health Service; there are nurses, physiotherapists, social workers and others involved, and it would be inappropriate to refer only to the doctor's role by stressing the medical aspect of care. We have this delicate question where we must keep the clinical judgment of the doctor completely free from investigation, but everything up to that point constitutes hardship if it is a failure of service, and I should think that the noble Lord would find that this works effectively right up to the borderline of clinical judgment.

The noble Lord very kindly also spoke to his Amendment No. 93. We had some discussion on Committee about this matter, and I appreciate the desirability of giving the Health Service Commissioners as much discretion as we can in the exercise of their functions. Indeed, there are several places in the Bill where we have done this. For example, Clause 34(4) gives discretion to investigate cases that could be taken to court in certain circumstances. Another Amendment that we have not yet reached, that to Clause 35(4), will give discretion to investigate complaints made directly by staff of health authorities. But I do not think that this is an area where discretion is appropriate.

Paragraph 1 of Schedule 3 has been most carefully drafted. It excludes from investigation only those cases where it is solely action resulting from clinical judgment that is at issue; that would be the diagnosis the type of treatment prescribed or a decision to restrain a mental patient, for example. There can be no question of a Health Service Commissioner challenging a clinical judgment in such matters. But there will of course be the odd borderline case—and I think this is what the noble Lord has in mind—where it is not immediately clear whether an action complained of is, or is not, covered by the clinical judgment exclusion. For example, a complaint might be made about visiting hours because a hospital was unreasonably restrictive in allowing visitors in. On the other hand, it might be that the patient's condition did not allow frequent visiting. In borderline cases of that sort, the Health Service Commissioner will have power to resolve these problems under Clause 34(7), which gives him the right to determine whether he can initiate an investigation, and for that purpose he will be able to call upon expert advice if he needs it. I think this is the way in which we can go furthest to satisfy the noble Lord's difficulties. Where a borderline case is concerned, he will be able to call on expert advice. I hope that that answer will satisfy the noble Lord.


My Lords, before the noble Lord sits down, may I put this one question to him? I am conscious that I have not intervened earlier in this debate, but I should like to ask whether the Commissioner would be able to deal with a case where a patient did not have access to a consultant, which, as the noble Lord will know, very often happens. The Commissioner might feel that such a case had not been dealt with with proper and adequate medical care or attention, if a junior doctor was in charge although a consultant was ultimately responsible. Would that sort of case come within the purview of the Commissioner? I am only asking for information on this point. I entirely agree with what the Minister has said but, if possible, I should like to get that point clear in my mind.


My Lords, if I may speak again, with the leave of the House, I would say that that was very much a borderline case and just the sort of case where the Commissioner would wish to take professional advice.


My Lords, in order not to incur the reproach of adding to the hardship of your Lordships' House I should not have ventured to intervene again, except that I really feel rather provoked by the answer which the Minister gave and by what, in my submission, is a misunderstanding by my noble friend Lord Platt. May I first answer the question put by my noble friend Lord Addison? If a patient could not obtain access to a consultant and if my Amendment No. 93 were accepted, that might form the subject of a complaint and there might be an investigation into the matter. If my Amendment No. 93 were not accepted, then it would be a matter of clinical judgment and there could be no investigation. That is the answer which I would give to my noble friend and, with great respect, I cannot help thinking that it is the right answer.

The noble Lord, Lord Platt, and the noble Lord, Lord Aberdare, said that Amendment No. 88, which in one sense is too narrow because it uses only the word "medical" and there are other aspects of the art of healing, nevertheless entrenches upon and trespasses upon the doctrine that the Commissioner is not to be allowed to investigate matters of clinical judgment. With very great respect, it does absolutely nothing of the kind. If the noble Lord will look at the Bill again, he will see that it is perfectly specific and clear. Clause 34 states what the Commissioner may investigate, and if you look at subsection (5) you will see that he is not to investigate anything which, in the terms of Schedule 3, is described as "clinical judgment". I do not in Amendment No. 88 seek to limit that provision in the very slightest degree. What I seek to do in Amendment No. 93 is to limit it in this sense, to give the Commissioner power, notwithstanding the other provisions in the Bill, to investigate a case of clinical judgment where there are surrounding circumstances to point to the conclusion that the error in clinical judgment was due to some mismanagement on the part of the hospital. To go back to my noble friend's example, where the doctor who made the error was plainly a doctor who was not equal to the task and where a consultant would not have made that error, if my Amendment No. 93 were accepted there could be an investigation into whether a consultant ought to have been called upon to look after the patient. I hope that I do not speak with any warmth to either my noble friend Lord Platt or to the Minister, but I am really tempted to point out what I submit is a very serious error in the reply which I have been given. My Amendment does not have that effect. I shall not endeavour to repeat again the purpose of it, but I venture to protest against its being subjected to criticism to which it is not open.

On Question, Amendment negatived.

8.27 p.m.

BARONESS WHITE moved Amendment No. 89: Page 34, line 41, leave out from ("Act") to end of line 45.

The noble Baroness said: My Lords, I come back to a subject which we discussed at Committee stage. At that stage, both the Minister and noble Lords connected with the medical profession brushed it on one side, on the grounds that the people referred to in Clause 34(5), which this Amendment seeks to delete, are not employees of any relevant body and therefore would not come within the purview of the Ombudsman. I can of course fully appreciate that argument but, on the other hand, I do not think we ought simply to leave the matter there without at least giving it some further consideration. In the first place, I am quite sure that the general public will be astonished when they discover that the Health Service Commissioner is not to be allowed to look at anything whatever to do with general practitioners, dentists, opticians or pharmacists. They will have supposed that the Ombudsman, as they will call him, will be there to help any patient in his relationship with the National Health Service. So that, as a matter of public concern, it is only right that we should stress the fact that this very large gap in the responsibilities of the Ombudsman is something which has not been widely appreciated, and which will cause considerable disappointment when it is.

I am also concerned about the existing position under the arrangements for complaints in this part of the Health Service. We have the Davies Committee looking at complaints in the Hospital Service, but I am afraid that we are not to have the benefit of their wisdom because, as we all know very well, they will not report until this Bill is through Parliament. That is most regrettable. I should like the Minister to inform us what investigations, if any, there have been into the working of the service committees in this part of the Health Service. My information is that, while in general the service committees who hear complaints about what will be called the family practitioner service work reasonably well, there are undoubtedly instances where they do not.

As your Lordships may know, anyone who takes a complaint to a service committee is entitled to have with him either a paid advocate or what is called an assistant. In certain circumstances his assistant may be an official of a trade union or of a society, but not necessarily so. A paid advocate is allowed to advise his client, but not speak: an assistant, on the other hand, may speak. This is the procedure which is laid down; and, of course, it is a sensible one in so far as such a hearing could be dominated by an experienced professional advocate. But I am told that when appearing before such a committee a complainant does not receive as a natural right a statement of his position, that he is very much dependent upon the good will or efficiency of the clerk concerned, and that in fact the clerk does not always tell him what his rights or position may be. I have been told of various instances in which these rules have in fact not been fully observed. So I should like to know, in the first place, just what steps are taken to see that the service committees follow the procedure which is laid down, and whose business it is to check on this.

These committees meet in private. Again, this is understandable, because if allegations are made against a doctor which are not well founded, it could nevertheless be very damaging to his reputation. Again, one does not complain about that, but it makes it all the more essential that one should be entirely satisfied that the procedure is a proper one and that the rules are in fact carried out. So far as I know, my Lords, there is no way by which a lay person who cannot afford a paid advocate can obtain advice in preparing his case. There is no representation service that I know of at the present time to help at such a hearing. He has to try to stand up to the medical evidence; whereas the doctor will almost always have some professional person to advise him from one of the medical defence unions, and normally takes out insurance to cover this sort of expense.

It is because one feels that the scales are rather heavily weighted against the complainant that one had hoped that the Ombudsman might act as, in a sense, a court of appeal. I have already, at an earlier stage of the Bill, pointed out that if a complainant is not satisfied with the decision of a service committee a right of appeal lies, either with the complainant or with the professional person concerned, to the Secretary of State, and that the Secretary of State appoints a legal adviser, a medical adviser and another medical assessor to hear the appeal. But, as I stressed, the person who loses the appeal is subject to costs, which can be extremely heavy. This aspect worries me very much indeed, because what we are concerned about of course is that justice should be done and should be seen to be done. A doctor, as part of his normal expenses (and I presume he could also set such an expense against tax) takes out an insurance policy to meet such contingencies; the ordinary citizen does not. The ordinary citizen is not insured against this kind of thing; it is not a risk which most of us would think should be covered by insurance, that we should have to meet the costs of any such appeal. It therefore appears to me that in this particular sector of the Health Service one is not satisfied that justice is both done and seen to be done.

It may well be, for the reasons that were put forward when we discussed this matter on a previous occasion, that it is not possible to amend the Bill in the way that we have suggested, by bringing this sector of the Health Service within the purview of the Ombudsman. But if it is not, then I think one really would wish to have some assurance from the Minister that the considerations which I have put forward will be looked at by the Department, with some idea of the manner in which this might be done; because I think some of the points that I have made would not come within any review by tribunal machinery, particularly in such matters as skilled advice for someone who is appearing before such a committee or this matter of, as I say, the award of costs, which must be a very important deterrent against taking the matter to appeal if one is not satisfied in the first place.

One other question which I might ask is whether the community health councils would be able to proffer advice in this particular area to anyone who was taking a complaint to a service committee. Would that be part of their recognised functions, if they thought it a desirable thing to do? As I say, that might be one way to redress the balance between the lay person and the professional person. At the moment it is not something which seems to me to be fair, and I shall be very interested to know whether the Minister has given further thought to this since we discussed it at Committee stage. I beg to move.

8.37 p.m.


My Lords, I am grateful to the noble Baroness for bringing this matter up again. I do not agree with her that there are all these difficulties over complaints made to service committees. I think that, on the whole, they work extremely well. The working of these committees was last looked at in 1966 in the course of a joint study by the then Ministry of Health and representatives of the medical profession, and the arrangements generally are under the oversight of the Council on Tribunals. I think that should be some reassurance to the noble Baroness that they are properly conducted. As to the matter that she touched on about help to the complainant, the fact is that complainants may be assisted in the presentation of their cases by some other person, but neither side to the complaint may use counsel, solicitor or other paid advocate to conduct their case. So mostly they are informal hearings; mostly the complainant and the doctor only appear and in most cases, therefore, the costs are very small. Even so, executive councils have discretion to contribute to costs, and in fact may be directed to do so by the Secretary of State.

The noble Baroness also asked me about the position of community health councils. Certainly they would be in the same position as any other person, and if they so wished they would be able to proffer advice, to a person in connection with a complaint through the statutory procedure. My Lords, we think that this statutory procedure is working well, and, as I say, it is under the oversight of the Council on Tribunals. It is part of the present arrangements with the medical profession, and any desire to change it would need a great deal of discussion with the medical profession before the change could be adopted. I feel that generally these arrangements are working reasonably well.


My Lords, can the Minister say a little more about the costs on appeal?


My Lords, I do not know what costs will be involved on appeal. Cases come to the Secretary of State and he then gives his judgment. I do not know what costs will be involved.


My Lords, may I ask another question? I cannot speak again. On appeal, advocates are allowed and they have to be paid; therefore the costs on appeal could be quite considerable. That is the point I made strongly on the last occasion as being so uncertain as to be a great deterrent.


My Lords, as I said before, the Secretary of State has power to contribute towards the costs.

On Question, Amendment negatived.

Clause 35 [Provisions relating to complaints]:

8.42 p.m.

LORD ABERDARE moved Amendment No. 90: Page 35, line 27, leave out ("other") and insert ("by some body or")

The noble Lord said: My Lords, the effect of this Amendment is to remove the restriction in Clause 35(2) which prevents bodies of persons as distinct from individuals from making complaints to a Health Service Commissioner on behalf of an aggrieved person. The Amendment will make it possible for such bodies as community health councils, voluntary organisations or local authorities to take complaints to the Commissioner in cases where the aggrieved person has died or is unable to act for himself. Perhaps he may be mentally ill or physically handicapped. The purpose of the Amendment was to meet points made by the noble Baroness, Lady Llewelyn-Davies, on Committee stage. I am grateful to her for drawing our attention to what was a flaw in the provisions for the Health Service Commissioner which would unnecessarily have limited to individuals this ability to take grievances on behalf of those who were unable to act for themselves. There may be cases when one of the voluntary bodies in the National Health Service feels it right to do so, and the subsection, as amended, will give the necessary authority. I beg to move.


My Lords, I am deeply grateful to the noble Lord for coming so far to meet us, and I am extremely grateful for his writing fully to me about the whole subject. I have listened to his description and we very much welcome the fact that community health councils and voluntary organisations can present appeals. But I should like to say that this is so only if the aggrieved person is dead or incapable. That is the first point. The second is that I read his letter almost for hours. It was extremely complicated. He did his best to explain, even to somebody as simple as I am, what it meant; but I could not find out whether it could apply to nationalised industries, local authorities or parts of nationalised industries—which was the main point that I made when we discussed this issue on Committee. We on this side feel that they are precisely the bodies most responsible and greatly experienced—especially in the nationalised industries—in occupational diseases. These are the bodies—and this goes back to my first point— who could apply for, say, three or four people who had not had the kind of treatment they ought to have had but were, fortunately, still alive and not mentally handicapped.

What we were anxious to get across on Committee was, first, that we could not see why the nationalised industries, so responsible and so experienced, should be left out; and, secondly, why, in cases where it had been found that there were complaints which applied to the same kind of diseases or treatment, a communal approach (if I may put it that way) could be made by the experienced body on behalf of a group of people who were, fortunately, not necessarily dead and not mentally incapable. Although I read the noble Lord's letter with gratitude, I still could not feel, unless I am wrong, that he met that point. From what he has said to-night, I am still at sea. Could he clarify this?


My Lords, following what my noble friend has said, may I very shortly put this question? As she pointed out, the Amendment relates only to a case where the individual in question is not capable of making a complaint on his own behalf. Clause 35(1), in terms, says: A complaint under this Part of this Act may be made by any individual, or by any body of persons whether incorporated or not …". Putting aside for the moment local authorities and so on, what I should like to ask the Minister is this. In what circumstances can a body of persons, an incorporated body of persons, a limited company, make a complaint? In order to make a complaint, must the limited company be able to show that within the meaning of Clause 34(3) that limited company is a person complaining that he has "sustained injustice or hardship"? In what circumstances is it envisaged that a limited company could, within the meaning of that subsection, complain that it had "sustained injustice or hardship"?

In the course of the argument my noble friend referred to companies. For example, I.C.I. was referred to. That is a limited company. I think somebody made the supposition that poisoned food had been served in the canteen of I.C.I. and that 20 people, employees of the company, had been poisoned and that they were not properly looked after. In those circumstances, could the I.C.I. complain? And, in order to complain, would the I.C.I. have to be able to say, within the meaning of subsection (3), that it was a person which had "sustained injustice"—hardly "injustice"—or "hardship"? It is rather difficult to say in those circumstances that it had sustained hardship. Or would it be able to say: "I am making a complaint not on my own behalf but on behalf of those 20 people who have been poisoned by this food and who have not been properly looked after"? Is that the approach which is to be made by the I.C.I., if they could make a complaint in those circumstances?

The question is, first, could the I.C.I. make a complaint in those circumstances? Secondly, would the I.C.I., in order to make a complaint, have to show that its complaint was that it had "sustained injustice or hardship"? I feel myself that there is some ambiguity about the wording here. The Minister has had an extremely tiring afternoon, and to start posing these questions is rather putting a hardship upon him. I should be happy if at a later stage he would give consideration to it. He might, after consideration, think that the language is ambiguous and that some change ought to be made.


My Lords, I am not tired and I do not agree that any change whatever is required in this clause. May I try to explain. I admit that it is complicated, but I do not think it is really as complicated as it sounds. The first point to grasp, which I think follows the example of the Parliamentary Commissioner and which I think is correct and right, is that the person making the complaint should be able to do it for himself. Clause 35(2) says: Where the person by whom a complaint might have been made under the preceding provision of this Part of this Act has died or is for any reason unable to act for himself, the complaint may be made by somebody else. I think we must accept that in normal circumstances a complainant makes the complaint on his own behalf.

What we propose by this Amendment is that any body may act as the personal representative, as well as the "other individual" mentioned in the original text.

We now make it possible for any body to act on behalf of that person who is unable to act on his own behalf. That includes local authorities, nationalised industries, community health councils—any body. It does not even go to the exclusion of local authorities, as in Clause 35(1)(a).

There is another case, which was referred to by the noble and learned Lord, Lord Stow Hill, where in Clause 34(3) it states: … where the complaint is duly made by or on behalf of any person … As the noble and learned Lord knows, "any person" covers a number of people in a company or other group of people. This is a case where a body of persons—the noble and learned Lord mentioned I.C.I.—can put in a complaint on their own behalf as a body of persons. From this sort of complaint there is excluded the local authority or other public body because, as with the case of the Parliamentary Commissioner, it is felt that public bodies have direct access to Ministers and other ways of pursuing their own complaints. But where it is a public company, like I.C.I., and if they can substantiate that they have cause for complaint, and that they have suffered a hardship, then they can complain themselves. I should think that this is just the sort of case—a very rare case—where they might have a complaint; where, as the noble and learned Lord suggested, there was an outbreak of food poisoning or some such thing, and the ambulance did not arrive for an hour and a half. I think that that is just the sort of case, but that it would be very rare. So I think that everything is perfectly clear. I hope that I have not confused it still more, and that the cases at which the noble and learned Lord and the noble Baroness are looking are covered.


My Lords, since I can only ask the noble Lord, Lord Aberdare, a question before he sits down, may I ask whether he is aware that we are deeply grateful that in his last few words he has made the situation very much clearer than it was before? The noble Lord should realise that we still worry about this communal business, but we are very much more satisfied, in the light especially of the last two sentences of what he said, and we are much happier than we were before.

BARONESS WHITE: My Lords, before we express our utter satisfaction, may I ask the Minister what happens if the food poisoning occurs, for example, on the premises of the National Coal Board? Surely that would be a matter of day-to-day administration where the Minister has no direct responsibility, and I cannot see that the N.C.B. is in any better position than I.C.I. would be in circumstances of that sort. It seems to me that to include nationalised industries "or undertaking or part of an industry or undertaking" is quite absurd in this connection. Suppose that under the mixed economy which we enjoy the Government take shares in an industry, as they may well do and indeed as they have done on a number of occasions, but have no part in the management of the industry. Is the Minister really telling the House that in those circumstances people affected by food poisoning and who are on the premises of some establishment belonging to such an industry are in a different position owing to their intimate relationship with the Minister—which in fact they do not have—than the employees of a private undertaking? And what proportion of shares would the Government have to have in order to bring this part of the Act into operation? I seriously suggest that the Minister should look at this again. I do not think the point would arise very often, but I cannot see the logic of the provisions of Clause 35(1)(a). I do not think the Government are covered by the Minister's otherwise extremely helpful Amendment.


My Lords, if by leave of the House I may speak again, I would say that I think we are splitting hairs. This is in the Parliamentary Commissioner Act. It repeats the matter that exists there and, on the whole, statutory authorities and bodies constituted for the purpose of public service does not seem to me to cover companies in which there have been investments. These publicly-owned undertakings and local authorities have access through other channels, and I think it is much better to leave it as it is in the Parliamentary Commissioner Act.


My Lords, before the Minister sits down, may I ask whether he will acept my sincere thanks for his explanation?

8.58 p.m.

LORD ABERDARE moved Amendment No. 91: Page 35, line 43, at end insert ("; but a Commissioner may disregard the preceding provisions of this subsection in relation to a complaint made by an officer of the relevant body in question on behalf of the person aggrieved if the officer is authorised by virtue of subsection (2) of this section to make the complaint and the Commissioner is satisfied that in the particular circumstances those provisions ought to be disregarded.")

The noble Lord said: My Lords, this is another Amendment which I hope meets the wishes of the House, because there was a great deal of criticism during the Committee stage about the rigidity of not allowing staff to complain, on very rare occasions, direct to the Health Service Commissioner. This Amendment gives the Health Service Commissioners discretion to investigate complaints made to them direct by members of the stall of Health Service Authorities on behalf of aggrieved persons who are unable to act for themselves, without such complaint having first been brought to the notice of the responsible health authority and without the authority having been given an opportunity to investigate and reply to the complaint.

We had a very full discussion during the Committee stage about the issues involved. The present Amendment is similar in substance to the one which was moved on that occasion by the noble Baronesses, Lady White and Lady Scrota. I am still convinced, both on grounds of principle and also on what is practicable, that it is right, and indeed essential, that the Health Service Authorities should in general take responsibility for inquiring into and, where possible, resolving complaints made against the service that they provide or which it is alleged they have failed to provide, but I was equally convinced by the very strong arguments in the debate that some room should be left for handling the exceptional complaints in an exceptional way. That is the point of the Amendment. It will enable a member of the staff of whatever status or grade to go direct to the Commissioner with a complaint made on behalf of a patient unable to act for himself. I should expect that such patients would be predominantly in the long-stay hospitals, which is the group of hospitals about which most anxiety was expressed. The decision whether to make his own investigation straight away on receipt of a complaint will be a matter for the Health Service Commissioner. I should not imagine that the need to do so would arise very often, but whether or not that proves to be the case, the Amendment provides the Commissioner with the discretionary power which I think your Lordships desired that he should have. My Lords, I beg to move.


My Lords, we are extremely grateful to the Minister for having been sensitive to the very clear opinion of the House on this matter which was in no sense expressed only from these Benches. The anxieties of the Committee were expressed strongly from both sides, and especially, as the noble Lord rightly said, in connection with the long-stay hospitals. It is mostly in those hospitals that one will be in the situation of a patient who is not in a position to make a complaint for himself. We were glad also to hear the noble Lord make it plain that the term "officer" covers people of all grades, so that any member of the staff who feels that there is something seriously wrong as it affects patients will be entitled to take his complaint direct to the Commissioner. The one thing that slightly worried me was whether a doctor or other professional person is necessarily an officer. What happens if a doctor feels that he wishes to go direct to the Commissioner in respect of some grievance? Can the noble Lord clear my mind on that point?


My Lords, I am not sure about it. I should have thought that he was not an officer, but I will have to let the noble Baroness know.


My Lords, I should be grateful, because in our Amendment we were careful to draw the distinction between those who were employed by and those under contract to the relevant body. This is a matter of importance. One can envisage circumstances in which it would be advisable for a doctor to have the opportunity of going directly to the Commissioner, and the Commissioner in those circumstances investigating forthwith.


My Lords, I do not want to interrupt, but it struck me that what we were trying to get at in this connection was very much the case of victimisation. I hardly think that this would apply to a doctor. We are anxious about a person who may be frightened of making complaints. I do not think doctors would come into this category.


My Lords, as one who took part on this matter on the Committee stage and as president of a voluntary organisation that has had a great deal to do with these questions, may I say how grateful I am to the noble Lord, Lord Aberdare, for meeting us. Like my noble friend Lady White, I am not clear about the meaning of the word "officer". The noble Lord has told us that it means a member of staff of whatever status or grade. But I should have thought that in the years ahead the noble Lord's words may not be known, because you cannot expect members of the public or even of the legal profession, to go through the minutiae of Hansard to find out what an Act means. This is rather a late stage in the Bill, but I should have thought that there was a case for defining the word "officer" in the interpretation clause, Clause 39. I wonder whether the noble Lord would consider that suggestion? If it cannot be done in this House, perhaps it could be done when the Bill goes to another place.


My Lords, I should like to add my thanks to the noble Lord for the effort he has made to meet the points that were raised on all sides in Committee. I am very conscious that we put him under considerable pressure at that time. I really believe that the Amendment he has just moved will be of immense value in this legislation. I think it will give confidence to the staff in the Service and to the public, and I see it as a great improvement to the Bill.


My Lords, perhaps I may say that I am grateful to the noble Baroness. I could sense how strongly she felt on this point. It has suddenly come to my mind in regard to doctors that "officers" includes all National Health Service staff except family practitioners. So that term would include a doctor in a hospital, if that intimation helps.

Clause 46 [Expenses of new health authorities]:

9.4 p.m.

THE EARL OF MANSFIELD moved Amendment No. 94:

Page 43, line 4, at end insert— ("(d) to the Greater London Council sums equal to the expenses which the Secretary of State determines are incurred by that Council for the purpose of performing the functions conferred on that Council by virtue of this Act.")

The noble Earl said: My Lords, some of your Lordships may recollect that yesterday I moved Amendments Nos. 2 to 7 inclusive, which were agreed to by the House. The effect of those Amendments was to exempt the London Ambulance Service from being transferred from the Greater London Council to the Department. This Amendment is consequential upon those Amendments. In effect, it provides for the payment by the Secretary of State to the Greater London Council of such sums as are incurred through the organisation and provision of the London Ambulance Service. Your Lordships will know that the Greater London Council is not a rate-levying body, and up to this time it has (to use the word) precepted the boroughs; I would prefer to say indented for the cost to each individual borough. The Government have contributed to the cost through the rate support grants to each borough. I am informed that, so far as the Ambulance Service is concerned, about 40 per cent. of the cost has been met by the Government.

When this Bill becomes an Act, the boroughs will no longer have any Health Service function and there will be no block support grant in this respect. Having looked at the Local Government Act, I am not sure that a block support grant could not still be maintained in respect of the Ambulance Service under the provisions of that Act. To say that that is obscure is putting it mildly, and therefore this Amendment has been drawn, as it were, to fill the breach.

My Lords, for two reasons I would submit that this is a matter of equity. Your Lordships' House accepted the principle that the London Ambulance Service should still in the future be run by the Greater London Council. Secondly, in my submission, the use to which the service will be put will be by the National Health Service and the patients who are treated by it in one form or another. It is only right, in my submission, that the country, and the taxpayer in that form, should pay for it.

My noble friend spoke to this Amendment yesterday afternoon, at column 1256 of the OFFICIAL REPORT, and said one or two fairly unkind things about the Amendment. When one looks at it in relation to the section as a whole, in my submission it then appears quite reasonable. It is not beyond the wit of my noble friend and his Department between now and when this Bill becomes an Act to devise, if I may use the phrase, an accountability system. Apart from that, and putting on my county council hat for a moment, there are other provisions where, on the face of it, a local authority is given a blank cheque, or what seems to be a blank cheque, notably concerning the improvement of roads. I very much hope that your Lordships will give this Amendment your blessing, as happened yesterday with Amendments 2 to 7. I beg to move.


My Lords, I should not wish to oppose this Amendment, since it has been proposed by my noble friend as consequential to the Amendments that were carried yesterday. All I want to do at this point is to repeat my uneasiness about a system under which one authority calls the tune but another authority pays the piper. The effect of the Amendments already carried is that the Greater London Council will call the tune and this present Amendment. It seems to me that what the Social Services must pay the piper.


My Lords, am sorry to think that the noble Lord feels that London will call a tune that will not be to the liking of the Government. It seems to me that in what the noble Lord said in Committee when we were considering this matter he acknowledged that the Greater London Council was doing precisely the job that the Government wanted to be done, and even if the Bill had remained as the Government wished it to remain, the cost, in view of the fact that the Greater London Council was going to do the work, as it were, on an agency basis, would have been the same. There really is no problem here. It seems to me that the noble Earl, Lord Mansfield, has put the matter extremely reasonably and I doubt whether any who were in this House yesterday when we discussed the matter would feel that there is anything of substance in what the noble Lord, Lord Aberdare, has said with regard to any difference between he who calls the tune and he who pays the piper. I think that the concern that has been expressed has no basis in fact. I hope the Government will appreciate that in London there is a unique situation and that the need for the Ambulance Service is being met in a meticulously satisfactory manner, in so far as it can be met, and that no improvement is to be gained by introducing change for change's sake. The important thing—


My Lords, if I may interrupt the noble Lord, I would certainly never accept that we are introducing change for change's sake. I tried to explain at great length yesterday what the purpose was, and I see no point in going over all those arguments again.


My Lords, if that is all the noble Lord has to say, then I think we can let the matter rest, because your Lordships' House decided this matter yesterday.


My Lords, I should not like to let my Amendment go through, or otherwise, on an unpleasant note. I should like to thank my noble friend for the attitude he has taken now. I am not being facetious when I say that I hope the tune which will be called in future is as congenial as it has been during the period of the London Government Act 1963.

Schedule 4 [Minor and consequential amendments of enactments]:

9.11 p.m.


My Lords, this is a drafting Amendment. I beg to move.

Amendment moved— Page 58, line 8, after ("3(1)") insert ("or 3(2)(a)(i)").—(Lord Belstead.)


My Lords, this Amendment is also a drafting Amendment, like the last one. I beg to move.

Amendment moved— Page 58, line 20, leave out from ("words") to end of line 22 and insert ("from "local" to "treatment" there shall be substituted the words "Secretary of State to carry out the functions conferred on him by section 3 of the National Health Service Reorganisation Act 1973."").—(Lord Belstead.)

LORD ABERDARE moved Amendment No. 97: Page 58, line 27, leave out from ("words") to end of line 28.

The noble Lord said: My Lords, the purpose of this Amendment is to delete from Schedule 4 a drafting Amendment which was originally proposed to Section 1 of the National Health Service Act 1946. This Amendment had given rise to some anxiety on the part of the professions which provide family practitioner services. They were concerned that it might blur the important distinction in the 1946 Act between the services which the Secretary of State has a direct responsibility to provide and the family practitioner services, which are provided by the contractor professions and where the Secretary of State's duty is to secure their effective supervision. I move.

9.14 p.m.

LORD ABERDARE moved Amendment No. 98: Page 66, line 24, leave out ("Act of 1946") and insert ("Acts of 1946 and 1947").

The noble Lord said: My Lords, this Amendment makes for Scotland the technical drafting change made for England and Wales at Committee stage to maintain the present position under the National Health Service Act 1951 that no charge may be made in respect of a dental or optical appliance supplied by a hospital to a patient for the time being resident in a hospital. I beg to move.

LORD ABERDARE moved Amendment No. 99: Page 66, line 34, after ("Act") insert ("at the end of the definition of "children's glasses" there shall be inserted the words and which are supplied for a person who was, at the time of the examination or testing of sight leading to the supply of the glasses or of the first such examination or testing, under sixteen years of age or receiving full-time instruction in a school within the meaning of the Education Act 1944 or the Education (Scotland) Act 1962. (2) In that Schedule,").

The noble Lord said: My Lords, this Amendment is intended to fill a gap in the National Health Service Act 1951 so that the range of spectacle frames with which children can have their glasses free of charge may be further improved. The 1951 Act introduced charges for the supply of spectacle frames and lenses except for "children's glasses", which were defined as "glasses for which a standard type of children's frame is used". The intention was that this exemption should be for the benefit of children only, but the Act did not expressly provide that adults should not be supplied with such glasses, or that they should be charged for the supply of them.

It has always been open to children to have their glasses fitted to National Health Service frames from outside the children's standard range, on payment of the appropriate charge. For older children the frame charge only is payable, but for children under the age of ten the lens charges are payable as well. There has, however, been growing pressure to extend the children's standard range of frames to include some of the more attractive plastic frames which are in the general range. Last year we took the first step towards this by transferring to the children's standard range one such frame which was already regarded as more suitable for children; but we have not felt able to go any further under existing legislation, because of the likelihood that adults might then demand and obtain glasses fitted to such frames without having to pay any charge. This would defeat the intention behind the provisions in the 1951 Act and cause an unacceptable loss of revenue. I beg to move.


My Lords, the effect of Amendment No. 100 is to keep the provisions relating to the Health Service Commissioner for Scotland in line with those for the Health Service Com- missioners for England and Wales. I beg to move Amendment No. 100.

Amendment moved—

Page 93, line 33, at end insert— ("131A.—(1) In section 46(2) of that Act leave out ("other ") and insert ("by some body or"). (2) In subsection (4) of that section at end insert ("; but the Commissioner may disregard the preceding provisions of this subsection in relation to a complaint made by an officer of the body subject to investigation on behalf of the person aggrieved if the officer is authorised by virtue of subsection (2) of this section to make the complaint and the Commissioner is satisfied that in the particular circumstances those provisions ought to be disregarded.").—(Lord Aberdare.)

Schedule 5 [Repeals]:


My Lords, this Amendment remedies an omission among the repeals set out in Schedule 5. I beg to move Amendment No. 101.

Amendment moved— Page 85, line 21, column 3, at end insert ("Section 79.").—(Lord Aberdare.)

Clause 57 [Citation, commencement and extent]:

LORD ABERDARE moved Amendment No. 102: Page 49, line 9, leave out from ("Scotland ") to ("may") in line 10 and insert ("and the National Health Service (Scotland) Acts 1947 to 1972")

The noble Lord said: My Lords, this Amendment provides a new collective title of "the National Health (Service) Acts 1947 to 1973" by making clear that the present Bill may be cited together with the Scottish Acts up to 1972 which were given a collective title in Section 65(2) of the National Health Service (Scotland) Act 1972. The revised wording is technically more accurate and conforms to the similar provision relating to the legislation for England and Wales. I beg to move.


My Lords, this Amendment applies to Scotland two provisions in Schedule 4 to the Bill amending the National Health Service Act 1951. I beg to move Amendment No. 103.

Amendment moved— Page 49, line 26, after ("41") insert (", 55(2), 56(1)").—(Lord Aberdare.)

LORD ABERDARE moved Amendment No. 104: Page 49, line 26, leave out ("92") and insert ("97, 115")

The noble Lord said: My Lords, the effect of this Amendment is first, to delete an inappropriate reference to the Public Health Laboratory Service Act 1960, which does not apply to Scotland; secondly, to give effect in Scotland to the changes being made in the provisions governing the membership of the Council for the Education and Training of Health Visitors; and thirdly, similarly to apply the revised definition of hovercraft which is embodied in paragraph 115 of Schedule 4. I beg to move.