HL Deb 30 April 2002 vol 634 cc574-658

3 p.m.

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

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report. —(Lord Hunt of Kings Heath.)

On Question, Motion agreed to.

Clause 15 [Establishment of Patient's Forums]:

Earl Howe

moved Amendment No. 32: Page 20, line 39, after "Forum" insert "represents the interests in the health service of patients and in particular The noble Earl said: My Lords, in moving Amendment No. 32 I shall speak also to Amendments Nos. 33 and 55.

The purpose of Amendment No. 32 is very simple; it is to ensure that patients forums are not limited in their functions and will be able to carry out activities currently carried out by community health councils, activities not otherwise provided for in the Bill. The examples I gave in Committee were running or engaging in local or national public campaigns—for example, a campaign to oppose the closure of a hospital—making donations to campaigns; calling for public consultations; inspecting premises other than those specifically provided for, even if they have the consent of the service provider; or taking legal proceedings to enforce their rights.

At the moment community health councils have an overarching remit to represent the interests of patients and the public in the health service. That has enabled them to adapt to changing circumstances such as the need to develop services for complainants. Without that overarching remit patients forums could be acting ultra vires if they engage in activities other than those prescribed.

The purpose of Amendment No. 55 is to give the responsibility for making representations about local concerns to patients forums. It should be the responsibility of patients forums to raise issues locally and not the job of the commission. Amendment No. 55 leaves the commission with a responsibility to make representations at a national level if necessary. For example, if an overview and scrutiny committee refuses to scrutinise an aspect of the local health service, the commission could then make representations at a national level. That would not detract from the capacity-building work and outreach to socially excluded groups that the commission will do at a local level.

The purpose of Amendment No. 33 is two-fold. First, it deletes subsection (e). That is necessary to ensure the independence of patients forums. As the subsection is worded, that independence would be compromised if forums were seen in any way to be performing the functions of trusts. I ask the Government to think again about that. The purpose of the new subsection is to allow patients forums to monitor the provision and the efficacy of independent advocacy services in their area. Those services could be provided by or arranged by the Secretary of State, the Commission for Patient and Public Involvement in Health or, anticipating a later amendment, patients' councils.

The reason for Amendment No. 33 is simple. It is important that the independent complaints advocacy services are independently monitored. The performance of that function by patients forums would provide a useful tool for informing their other scrutiny functions. It is a fairly modest suggestion to make. It is entirely in keeping with the functions of patients forums as currently envisaged and I hope that the Minister will be sympathetic to it. I beg to move.

Lord Clement-Jones

My Lords, I rise briefly to support Amendment No. 32 and to speak to Amendment No. 33 tabled in my name. As the noble Earl, Lord Howe, indicated, it seems strange that the patients forums would be required in certain circumstances, if the Bill were unamended, to carry out the functions of PALS.

The Minister was not particularly clear in Committee on this matter. The amendment is designed to substitute oversight and provision of independent advocacy services via patients forums. But the specific purpose of Amendment No. 33 is designed to elicit from the Minister a clearer reply than he gave in Committee.

It seems strange for the patients forums to be carrying out the duties of PALS. It would blur the functions of the forums. The PALS are effectively part of the acute trusts and the patients forums have entirely different functions. Perhaps the Minister could elucidate that rather more clearly in his reply on this occasion.

Lord Hunt of Kings Heath

My Lords, the functions of patients forums are specific. It is explicit within those functions that forums put forward the views of patients, in particular those who use the services of the relevant trust.

While I understand what the noble Earl, Lord Howe, is saying, to extend the remit of the forums to represent the interest of the public rather misses the point of our proposals. To say that we have a representative role on behalf of what would be a large section of the community being served by each patients forum, would be untenable and unlikely to be realised in effective action on behalf of those patients forums.

If we look at the performance of community health councils—we may talk about that in a few moments—we see there have been big problems where community health councils have sought to speak on behalf of the whole community. Community health councils do not have the legitimacy or the credibility to do so; nor could patients forums take on that wider public representational role.

The aim of patients forums is to enable patients' views to be put forward. It is recognised that patients' views on an issue may differ. If a patients forum is charged with representing those patients' interests, it implies that the forum will have to make a judgment as to what those interests are; that is, that the forum members know what is best for the entire body of patients served by the NHS trust with which the patients forum is associated.

Patients' views differ. It is the job of the forum to represent all those views to enable trusts and primary care trusts to take account of that range of views when making decisions. Our objective with this system is to increase opportunities for patients and the public to have a say, to have greater influence and to make real changes, but also accepting that patients will often have a wide spectrum of views. On that basis I resist the wording of the noble Earl.

In looking at Amendment No. 33 we see that the effect is twofold. The first is to remove from the Bill Clause 15(2)(e), which is what would be used to give forums the power to be able to take over the operation of a patient advice and liaison service in prescribed circumstances. The second effect is to give forums the specific role of monitoring and reviewing independent advocacy services and to make reports and recommendations about them.

I do not accept, as the noble Earl suggested, that the clause as presently drafted impacts upon the independence of patients forums. Indeed, I argue entirely the opposite. The fact that it has that role is an expression both of the ability the patient forum will have at local level and its very independence. I accept that the circumstances in which that would occur—a PAL service being taken over by a patients forum—would be rare. It is an important service to patients and their families and it is surely only right and proper that in those rare cases where the forum feels that the trust is failing to provide an adequate service, the patients forum should be able to do something about it.

I am sorry that I disappointed the noble Lord, Lord Clement-Jones, in Committee on this matter. Perhaps I can try again to reassure him. How would the provision work if a patients forum was dissatisfied with the work of a PAL service in a trust for which it was responsible. We envisage a grievance type of process. If a forum is concerned about the quality of PALS, it would normally report that to the board of the trust or primary care trust. If there was no improvement, it would report again, copying its report to the strategic health authority. If again there was no improvement, the forum would report the matter to the Secretary of State.

The Secretary of State would then need to make a decision about what action should be taken. He could choose to direct the trust to take action. He might also decide that the forum should take over responsibilities for the PALS service. If the latter were the case, the forum would make arrangements for the provision of the PALS, such as arranging for another trust's PALS to take over the service but with the forum retaining responsibility for it; or a voluntary sector organisation might take over the PALS but report to the forum.

I accept that the patients forums themselves would not physically provide the patient advocacy and liaison service, but they would be in the driving seat for ensuring that such a service is provided. When a trust is not doing the right thing in terms of running a proper PALS, surely it is a very important lever in the armoury of the patients forum that it is able to take such action.

In the second part of the amendment, the responsibility for commissioning the independent complaints and arbitration service is to be one of the key functions of the commission. It will commission such independent advocacy services only from providers that meet standards set by the commission. I believe that that process will ensure that this service is available, that it meets a certain standard, that it provides an effective monitoring system and that it avoids unnecessary duplication. Given the likely range of the independent arbitration service—which is likely to go wider than an individual trust or primary care trust—in practical terms it is best commissioned by the commission at a national level. But of course, in so doing, it will be informed by the experience of patients forums, which can be fed into the commission so that it is well aware of any problems that might be arising.

Amendment No. 55 is consequent on Amendment No. 33. We believe that engagement with the wider public and representation of their views, particularly in relation to overview and scrutiny committees of local authorities, will be with the local commission. The commission will, in the course of its activities, develop a clear picture of the entirety of patient experiences across a whole area. The commission will support and facilitate forum activity, and in so doing will build up a wider view of the patient's journey. As with independent arbitration, the experiences of patients forums would be an important influence on the commission in being able to make those representations. But both in terms of the workload of local commissions and in enabling a commission to get a clearer perspective of a patient's pathway across organisational boundaries, I believe that that particular responsibility is best left with the commission.

Earl Howe

My Lords, I am grateful to the Minister for that reply, although I am disappointed by it. At present, community health councils have a legitimate role in representing the voice of patients and the public. In the strict sense they have a legitimate role in doing so because the law empowers them to engage in such activity.

The Minister is effectively saying that a patients forum should not be allowed to make representations at all. The forums are, as it were, to he silent witnesses—except, and very importantly, in the context of their ability to refer a matter to the local overview and scrutiny committee.

I believe that that is retrograde. The fact is that CHCs can, and do, speak up for patients—sometimes very vocally. I should have thought that it would he entirely healthy for a patients forum to have the ability to make representations in that sense.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Earl for giving way. This is an important point. Will he accept, in reference to Clause 15(2), that the role of a patients forum in monitoring and reviewing the operation of services, obtaining the views of patients and their carers and reporting on those views to the trust is a powerful set of responsibilities on patients forums? It is better to have focused responsibilities such as those, rather than suggesting that a patients forum could represent the interest of all the people who were served by a particular trust.

3.15 p.m.

Earl Howe

My Lords, I agree that it is a powerful set of responsibilities, but the powers conferred on a patients forum are minimal. All the forums are allowed to do is to monitor and express their opinion to the trust. They cannot do anything further than that.

I agree that that is a job that needs to be done. I am glad that there will be an independent body within the trust to do that. However, the wings of patients forums will be clipped; they will not have the ability to fly outside a trust and tell the world what they have found and express their views more widely.

The issue of the independence of a patients forum is an important one. I feel that a patients forum should be independent from its own trust in the fullest sense. People value community health councils because they are independent of the operations of health trusts. The same independence should apply in the case of patients forums.

The explanation given by the Minister of how the process of patients forums taking over trust functions would work—a matter to which he referred in Committee (at col. 561 of the Official Report)—demonstrates that these ideas have not been fully thought through. The Minister referred only to PALS. But if the clause is meant to refer only to PALS, I do not understand why it is not specific.

There is a danger not only of patients forums being allocated inappropriate responsibilities which they may be ill equipped to deliver, but also of patients forums giving undue attention to monitoring PALS, because they have that power, at the expense of the trusts' main services to patients, which are the things that matter most.

I shall read the Minister's remarks carefully. I do not believe that he has given me much comfort, if any, but I shall reserve the possibility of bringing these matters back at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 not moved.]

Earl Howe

moved Amendment No. 34: Page 21, line 17, at end insert "(including services provided by in an independent hospital, independent clinic, independent medical agency, or care home under arrangements made by the NHS Trust or Primary Care Trust or Care Trust for which a Patients Forum is established) The noble Earl said: My Lords, in moving this amendment, I shall speak also to the other amendments in the group.

We move on to an issue that we did not debate in Committee but which is of considerable importance for NHS patients. I start with a statement of the obvious, which nevertheless needs to be made. Whether you are an NHS patient in an NHS hospital, whether you are an NHS patient in a private hospital, or whether you are an NHS patient recuperating in a care home, you are likely to be frail and vulnerable. The ability that you have in any of those settings to exercise your consumer rights is equally curtailed. That is why effective patient and public involvement must be established on an equal footing in all three sectors.

The Government have committed themselves to breaking down two sets of barriers: those separating health and social care and those separating the NHS and the private and voluntary providers of acute care. I am in total agreement with those two aims and with the positive steps that the Government have taken to make both of them a reality.

The recent White Paper, Delivering the NHS Plan, speaks of having a plurality of providers. One of the main arguments for that is to present patients with a better deal and a better range of choices. Patients waiting for an operation have more of a Hobson's choice if they are told that they can wait for a year or else go sooner to somewhere that is unfamiliar, whether outside the NHS or further from home. They often have to take what is offered. Patient and public involvement has to keep in step with these changes; which means that the accountability to the patient should be no different whatever setting he is in.

At the moment, the NHS, private acute hospitals and care homes are required to have systems in place to seek the views of patients, carers and their representatives. Given that, there is no reason why those systems should not be integrated on a fair and consistent basis. My amendments allow the functions of a patients forum to be extended to every location of care and to the services proved within them. To perform those functions the patients forum needs to have equal monitoring rights and equal rights of access. Anything less will result in postcode patient representation.

The final piece of the jigsaw in this context is the need to ensure that the local overview and scrutiny committee is able to scrutinise services provided in all the three settings that I have mentioned. The OSC is where the real power lies in these new arrangements. Let us suppose that the local NHS is proposing to contract with a totally unsuitable private provider of, say, children's mental health services. The scrutiny committee would be able to question such an arrangement and look at the care provided, so long as it had a report in front of it from the patients forum, but the chief executive of the private provider could not be called upon to appear before the committee. If there is to be proper local accountability, I believe that all patients need to benefit from that in the fullest sense. I beg to move.

Lord Clement-Jones

My Lords, I support the noble Earl, Lord Howe. He has made a powerful case for this set of amendments, which extend the rights of patients forums to monitor and to access those services contracted out by the NHS to the independent sector. They also cover the extension of rights of overview and scrutiny in that respect.

It has taken some time for the Government to recognise the seamless nature of both health and social care. I well recall in the Health Bill 1999 the Government resisting the pressure from these Benches and from the Official Opposition Benches to extend the powers of the Commission for Health Improvement to inspect independent healthcare, even when that had been contracted out by the NHS.

This year the Government have finally seen the light and are prepared to merge the Audit Commission, CHI and the acute hospital aspects of the national standards commission. Therefore, it is impossible to split the services provided and it is much better to see them in the round. The Government may be providing a separate inspectorate for social care. Nevertheless, their policies, in terms of putting into place care trusts and duties on local authorities for care beds in the community to prevent bed blocking, show that the integration of health and social care is very much on the agenda. It is a short step of logic to expect that patients forums should have the duties that the noble Earl, Lord Howe, has outlined in these amendments. We strongly support them from these Benches.

Baroness Carnegy of Lour

My Lords, of all the amendments on the agenda this is the group that the Government should consider carefully. Patients who find themselves being treated by the NHS, private hospitals and care homes are very vulnerable. If we are going to have this somewhat fragmented system for representation of patients, the body looking after the patients in these hospitals and homes should be the patients forum. I hope that the Minister will express some sympathy for that. Otherwise, I do not think that we can feel that the Government are really thinking the matter through on behalf of patients.

Lord Peyton of Yeovil

My Lords, perhaps I may briefly remind the noble Lord and your Lordships of some of the sloppy drafting which occurs so frequently in the Bill. I have long been a warm admirer of your Lordships' patience, but sometimes I think that it is overdone.

On page 21, line 22, in Clause 15, to which these amendments refer, there is reference to something called "section 31 arrangements". It may be that those familiar with the jargon will immediately have a good idea of what is meant by "section 31 arrangements". But if one were less well informed, less erudite or less sophisticated in one's approach to these matters one may be—as I am—a bit puzzled.

However, in order to get an explanation one must look further down the page. On line 42 these words occur: 'section 31 arrangements' means arrangements under regulations under section 31 of the 1999 Act (arrangements between NHS bodies and local authorities.)". That is by no means my favourite quotation from the Bill, but it will do me for the moment.

At an earlier stage I raised these matters with the Minister. He, as always, was courteous, intelligent and responsive. He extended some hope to me that he would come along with devices such as Keeling schedules and so on, and explain what the Government: were at. But of course he was not able to go nearly far enough to suit me. In the letter which he kindly sent me some weeks ago—a copy of which I received yesterday—he indicated that the spirit was willing but the flesh was woefully weak.

I hope very much that the noble Lord will stand up and explain exactly what is meant by the term "section 31 arrangements" and why, if he understands it as clearly as I have no doubt he does, such a definition is not made absolutely clear on the face of the Bill. I really do protest.

The noble Lord, Lord Brightman, would explain far better than I can—if he were here—that this nuisance of legislation by reference has been going on in an increasing tide of nuisance for 150 years. So I agree that it would be unreasonable to expect the present Government in a few months to scrap it. But at least they should go a little beyond saying that they do not like it; they should occasionally lend conviction to their opinions by producing easily comprehensible Bills instead of ones which are loaded with what. I can only politely describe as somewhat slovenly garbage.

3.30 p.m.

Baroness Howarth of Breckland

My Lords, I shall make a rather less erudite point. I find myself in some difficulty in that, for the first time, I am speaking mildly against extended representation for patients. I have some concerns about what is called the continuum of care. Sooner or later, we must consider the difference between patients and people in care homes in which they will live out their life. The latter are not patients.

I was delighted that the Minister did not use the words "beds" and "bed-blocking" when talking about the continuum of care for elderly and frail people. Until we see that bed-blocking is not the only issue and that long-term care is—I suspect that I have spent more time in such establishments than most of your Lordships—we will not get the concept right as to the needs of different groups of people in different establishments.

I declare an interest as a member of the National Care Standards Commission, but, in doing so, I do not hold any particular view that the situation should remain as it is. As I said before, there is room for change and improvement. However, I hope that we will bear in mind the distinct needs of the different care groups and the different establishments in which people find themselves and tailor our inspections and concerns accordingly. I hope that the Minister 'will bear that in mind, as he takes us forward.

Lord Hunt of Kings Heath

My Lords, I am grateful, first of all, to the noble Lord, Lord Peyton of Yeovil, for taking us back to the issue of the quality of the draftmanship of the Bills that come before the House. I must confess that he has a point. I shall not pretend that the drafting to which he referred is at all easy to understand. My guilt is increased by the fact that I had a hand in taking the Health Act 1999 through the House.

Section 31 is rather long, and I am sure that noble Lords will not wish me to read it out. Essentially, it relates to the joint working of health and local authorities, particularly in social care but also in other areas. Section 31 enables that collaboration to be more effective. It also covers the pooling of budgets and other arrangements to allow that collaboration to take place. I accept the noble Lord's substantive point. I cannot put 150 years of poor draftsmanship right in a flash, but, although that answer will disappoint the noble Lord, he will know that we are engaged in seeing whether we can produce a consolidated measure for NHS legislation. It would be welcomed as warmly in the NHS as in your Lordships' House.

I was surprised that the noble Earl, Lord Howe, should propose rights of inspection of private sector premises which, in any other legislation passing through the House, Opposition Members would have described as draconian powers. I accept the general principle that NHS patients, wherever they are treated, should be enabled to have facilities for raising issues of concern, but we must accept that the way in which that comes about will be different, depending on whether the organisation concerned is an NHS organisation or a private sector one. The noble Baroness, Lady Howarth of Breckland, put her finger on some of the important relevant considerations.

Amendments Nos. 34 to 38 would add a reference to services provided in independent hospitals, clinics and medical agencies or care homes. As the noble Earl, Lord Howe, said, Clause 15(2) covers all services arranged by the trust, whether in private clinics or NHS ones. Where the trust arranges for a patient to receive services from a private hospital or clinic, medical agency or care home, the patient is still an NHS patient and the services fall within the review remit of patients forums. In that sense, the amendments are rather superfluous.

The second half of the group of amendments relate to inspection rights of patients forums with regard to independent providers. I hope that I can assure the noble Earl that it is our intention that the arrangements for patients forums to carry out their functions where the NHS contracts with independent providers will be set out in the contract between the NHS and the provider, along with all other details of the contract. Contracts with the private sector are subject to strict rules and include monitoring mechanisms to ensure that patients receive the same quality and safety of care wherever they are treated. For example, the Commission for Health Improvement may carry out clinical governance reviews of services provided to NHS patients by the independent sector. Again, those arrangements will be set out in contracts.

The principles for inspection and rights of entry for NHS providers and private providers are identical. As I said, it is the legal basis that brings it about that is different. With NHS providers, it is in the terms of the Bill; with independent providers, the arrangements will be required in the contracts. Technically, it is not necessary to list care trusts as a separate entity that must allow patients forums in, as suggested by Amendment No. 40A. The noble Earl will recall from the time when we discussed the Health and Social Care Act 2001 that care trusts are either NHS trusts or primary care trusts that have been designated as such under Section 45 of that Act, by virtue of their provision of certain functions on behalf of local authorities. As such, they are already provided for under the terms of Clause 16.

Amendments Nos. 40AA and 40CA concern the appropriateness of the general entry and inspection rights of forums. We want patients forums to have as much freedom as is reasonably possible for their members to inspect all premises used to provide services to NHS patients. That valuable function will help maintain the high standards of, for example, cleanliness in the health environment brought about by initiatives that we have already taken. However, we must accept that hospitals and surgeries can be busy and, at times, dangerous places. Common sense dictates that we simply cannot allow forums carte blanche to go about their business willy-nilly without some guidance.

We shall consult the key stakeholders on the regulations to ensure the correct balance between the freedom of the forums to inspect as and when they wish—I sympathise with the reasons for that—and respect for the legal framework in which it should be done. It is all about reasonableness. We expect to see protocols negotiated locally with trusts under which forum members can make unannounced visits but within agreed times and circumstances. That is a commonsense approach.

I understand that the overview and scrutiny committees can review and scrutinise matters relating to the health service in their area. I would certainly consider that that remit is wide enough to take in the scrutiny of commissioning contracts. However, it is the first time that we have discussed the issue, and I would like to take it away and perhaps provide a definitive answer at Third Reading. To the noble Earl, I say that it is one thing to say that overview and scrutiny committees can, as part of their remit, review the commissioning contracting arrangements made by NHS bodies within their local authority boundary; it is another to say that they should have the right to call private sector providers before them. The remit of the overview and scrutiny committees as regards contracts with the private sector ought to cover the NHS bodies that agree the contracts with the private sector, under the monitoring arrangements that the NHS organisations have put in place.

Overall, I agree that we want patients forums to be able to visit, in order to discharge their functions. It must be done sensibly, and regulations will allow for that. However, we must recognise that, legally speaking, circumstances are different for NHS organisations and private sector organisations. Ultimately, we want NHS patients to be allowed to put forward their views and concerns, wherever they are treated.

Lord Mayhew of Twysden

My Lords, before the Minister sits down, will he spare a moment to return to the subject of poor draftsmanship? Will he accept from me, as a former "confessor" to the parliamentary draftsmen, that the kind of draftsmanship about which my noble friend Lord Peyton rightly complains derives from two issues, each of which is the responsibility of successive governments? The first is that we must be concise and keep the number of clauses in a Bill down; the second is that we will not spend money on consolidation. Therefore, what the Minister said about consolidation a few moments ago is most welcome.

Lord Hunt of Kings Heath

My Lords, let me make it clear that I did not seek to hide behind the alleged shoddy work of parliamentary draftsmen. It is for governments to try to ensure that legislation is as clear as possible and I hope that we in the Department of Health learn the lessons as we take legislation through Parliament. From the point of view of the department, the NHS and Members of your Lordships' House, a consolidated measure would be welcomed.

Baroness Masham of Ilton

My Lords, before the Minister sits down, will he tell the House what happens to the non-NHS patients, some of whom come from abroad and may need even more protection than those living in this country?

Lord Hunt of Kings Heath

My Lords, I suggest that that is a matter for the National Care Standards Commission. In due course, the responsibility will transfer to the new health inspectorate that we have proposed. The noble Baroness, Lady Masham, raises an important point but it is outside the remit of the Bill.

Earl Howe

My Lords, again, I am most grateful to all noble Lords who have taken part in the debate and to the Minister. However, I was surprised when the Minister at the outset of his remarks said that I was proposing some grand set of draconian powers. I do not see the amendments in that light.

I have always been in favour of applying the quality agenda in its broadest sense across all care settings. Patient representation is an integral part of the quality agenda and I do not see it as draconian. It is entirely consistent with measures already in place, not least as regards the functions of the CHI in settings where NHS patients are being treated.

The Minister said that rights of access would be provided for in each individual contract. The trouble with that is that the inclusion of visiting rights in contracts with private providers of care is not new. Frankly, it has not worked. It was provided for in Department of Health guidance in 1990 and that guidance was widely ignored. Some CHCs had to resort to legal action to have clauses enforced by health authorities, if they had been included in the contract, or to put pressure on health authorities to include such clauses in the first place.

I do not believe that the measure will work in the new world in which the monopoly status of the NHS is to be replaced with a plurality of providers with which the NHS will have varying bargaining powers. In any case, the patients forum will have no legal power to enforce such contracts because it will not be a party to them.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Earl for giving way. I was trying to make two points. First, I was remembering our debates on the Food Standards Agency and the concern of noble Lords opposite relating to the powers of the Meat Hygiene Service to enter private premises. I was drawing a comparison between the concerns about the rights of public officials to enter private premises and drawing a distinction between the comments made in this debate and comments made in the passage of other legislation.

As regards contracts, it seems to me that, given the plurality of provision which the noble Earl suggested, the NHS is in a much stronger position because it is becoming a much large purchaser of services within the private sector. Furthermore, since 1990 we have moved on in our thinking. The issue raised by the noble Baroness, Lady Masham, for instance, as regards complaints in the private hospital sector are apposite to that. The climate is much stronger for ensuring that there are contracts which allow for proper monitoring and involvement. I hope that they will enable patient forums to discharge an effective duty in relation to them.

Earl Howe

My Lords, it is all right if the provision is in the contract, but if for whatever reason it is not—and that is the purpose of the amendments—I do not see how patients forums will be able to discharge the duties under Clause 15(2)(a) and (b) to which the Minister referred earlier. Under that provision A Patients' Forum must monitor and review the operation of services … obtain the views of patients and so forth. I do not see how it will be able to discharge those duties because it will be able to monitor only remotely; it will not be able to access patients and their carers directly. However, I shall as always reflect on what the Minister said.

I am grateful to the noble Baroness, Lady Howarth, for her remarks. I am sure she realises I hat the purpose of my introducing care homes into the debate was specifically to draw attention to intermediate care rather than long-term care. Clause 15(6)(c) of the Bill refers to Section 31 arrangements, but the problem is that the vast majority of social services are not provided under Section 31 arrangements. They are provided by local authorities on their own. In that context, I cannot help thinking that paragraph 86 of the Explanatory Notes is a little misleading when it talks about patients forums having monitoring rights under Section 31 and quotes as an example social care services. The figures for Section 31 social services are small. Perhaps the Minister would confirm that.

The difficulty is that the duty of the patients forums to monitor and seek patients' views and its power to enter and inspect relate only to the functions of the trust. Therefore, for example, in a local authority care home for people with learning disabilities, the patients forum for a PCT could monitor only the GP and therapy services provided—nothing else. The mental health trust patients' forum could monitor only secondary care services provided there—nothing else. So what would a forum do if it discovered deficiencies in, say, daytime activities for residents? It would have no remit to do anything about it.

I am grateful to the Minister for saying that he will take away the ideas I put forward as regards the overview and scrutiny committees. There is another dimension to the amendments relating to scrutiny, which is that even if a patients forum were able legally to gain access to a private provider contracted to the health service, there would be no contract with that provider at the time when the local trust was contemplating such a contract. I do not know what role the Government see for the patients forums in assisting NHS trusts with the tendering process, or indeed whether there is a role for the overview and scrutiny committee at that stage, but it is a matter which needs thinking about.

Whether or not these amendments or others similar are written into the Bill, I believe that before long we shall see the best of the private acute sector signing up to arrangements of the kind I am advocating. I say that advisedly because I know of two private hospitals in London which are already exploring such ideas. They are doing so, no doubt, because they know it makes commercial sense for them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 to 38A not moved.]

Baroness Hanham

moved Amendment No. 39: After Clause 15, insert the following new clause— "PATIENTS' FORUM MEMBERS (1) No member of a Patients' Forum may be appointed as a director of an NHS trust or a member of a Primary Care Trust to which the Patients' Forum relates unless that person has been recommended for appointment by the NHS Appointments Commission. (2) Where a member of a Patients' Forum is also a director of an NHS trust or a member of a Primary Care Trust to which the Patients' Forum relates, his responsibilities as a director of the NHS trust or member of the Primary Care Trust shall be the same as those of any other director or member of such trust. The noble Baroness said: My Lords, for what I hope will be the last time, I return to the fray in trying to establish the parameters that will follow the election of a member of a patients forum as a non-executive director of an NHS trust, and that person's accountability and responsibilities to the trust. In doing so, I should say to the Minister that I am grateful to him for having met me on two occasions, the first time before we debated the Bill in Committee; the second time last week to discuss the points over which I have been labouring during the progress of the Bill. To that end, I have already given the noble Lord a note of what I wish to say today in order to receive those final answers I seek and thus will not have to raise the matter again.

The patients forum will elect for each NHS trust one of their members as a non-executive director to that trust. The questions which now need to be answered are the following. Will the person then be subject to assessment by the NHS Appointments Commission procedure before they are entitled to take up the appointment as a director? If so, will the commission ensure that the criteria it adopts for all other non-executive directors are followed, including an interview panel which will include on it the chairman of the relevant trust? At this point I should, as usual, declare my interest as the chairman of an NHS trust.

In Committee, the Minister gave the criteria which would prohibit a member from being appointed as a director. Those seemed to be somewhat mechanistic and would have prevented someone from being accepted as a member of a patients forum. Does the Minister agree, therefore, that the criteria against which a patients forum director would be appointed would be the same as those for any other non-executive director? Can the Minister indicate whether it is expected that the patients forum will elect a trust appointee for a term of four years, or will there be annual elections—which I believe would probably be rather disruptive? Obviously it would be more effective if it were the former.

If there are no current non-executives on the board due for completion of eight years of service, will the Minister enable the patients forum director to be supernumerary until that situation arises? This would be only for the first person elected, as once such a retirement date is reached, then the patients forum non-executive would be subsumed into the regular board number of five, or six if it is a teaching authority. It would seem invidious that a competent serving member of the board, who justifiably could expect to serve for a second term of four years, were to be ejected to enable the patients forum director to have a place.

In Committee, the Minister confirmed that the patients forum director would hold corporate responsibility with other board members and would be accountable to the board. At what stage of their appointment will this be made clear by the NHS Appointments Commission? Will that be made part of its remit?

Finally, in the event of a conflict of interest for the patients forum director—for example, if the patients forum issues a critical assessment of its trust or any part of its services, either to the trust board or to the local authority overview and scrutiny committee—where would the patients forum director's accountability lie?

As I believe the Minister understands, I have no hostility to the concept of a director who brings to a trust board concerns about patients, although I am bound to say that, in my experience, current members of a trust board believe that to be a major duty. However, I am anxious that there should be a recognised procedure which will ensure that they are accepted without rancour or suspicion by other board members. I hope that the Minister's response today will be able to satisfy not only myself, but also those other bodies which have the same concerns about this matter. I beg to move.

Baroness Noakes

My Lords, I rise to support Amendment No. 39 and to pay tribute to my noble friend Lady Hanham for her tenacity in raising the issues posed by the appointment of patients forum members as representative members of PCTs and of NHS trusts.

There are two aspects to this matter. First, we seek to ensure that people appointed to PCTs and NHS trusts have the right competencies. There can be no place on these bodies for mere representatives. The people appointed to such boards must meet certain quality thresholds and there should be no question of devising special categories for members from patients forums or, indeed, from anywhere else. To do otherwise would be to jeopardise the integrity of those boards.

Secondly, the patients forum representative must be for corporate members of the PCT or the NHS trust. They cannot serve on the boards and say that they are in place solely, or even mainly, to represent the concerns of the patients forum. Their responsibilities go far wider than that.

I hope that the Minister will be able to give the assurances asked for by my noble friend. If no clear answers can be given, then the only way forward would be to place the issues beyond doubt by way of this amendment.

Lord Hunt of Kings Heath

My Lords, I am most grateful to the noble Baroness, Lady Hanham, for her interest in this matter. Of course she speaks with a great deal of authority as the chair of a large NHS trust in London. As the noble Baroness mentioned in her remarks, I have been pleased to meet her on a couple of occasions to try to go through some of the detail of how this will work in practice.

I wish first to make it clear that the NHS Appointments Commission will appoint all non-executives to trusts and it will appoint the patients forum non-executives. Those non-executives will be appointed subject to exactly the same checks and balances. The way that it is to work in practice has been agreed with the commission. One of the members of a forum will then be interviewed by a panel which will include the chair of the trust. If the candidate fits the criteria set by the Secretary of State, the panel will recommend to the commission that the candidate should be appointed.

I have listed the specific criteria under which a person might not be appointed. The noble Baroness thought that that was somewhat mechanical. However, she was right to draw attention to the more general qualities that are required for all non-executives. Some of those essential requirements are that they need to live in the area served by the trust; they must have a strong personal commitment to the NHS; they should be able to demonstrate a commitment to the needs of the local community; they must be good communicators with plenty of common sense; they must be committed to the public service values of accountability, probity, openness and equality of opportunity; they must be able to demonstrate an ability to contribute to the work of the board; they must be available for up to five days per month; and they must be able to demonstrate an interest in healthcare issues. Those criteria are regarded as essential.

We then move on to the desirable criteria. They should have experience as a carer or a user of the N HS; they should have experience of serving in the voluntary sector, in particular within an organisation working with health issues; they should have already served the local community in local government or in some other capacity; they should have an understanding of or experience in management either in the public, private or voluntary sectors; and they should be able to offer specialist skills or knowledge in the work of the trust. Those are exactly the kind of qualities on which a judgment will be reached about any non-executive.

It is also worth making the point that the members of patients forums will have to go through an appointment process. I should have thought that many of the qualities required for membership to an NHS trust would apply equally to membership of a patients forum. I also believe that the role of the chair of the trust in the appointment process will be very important indeed. They will be able to give their assessment of whether the candidate would work well with the rest of the board. They would also be able to tell whether the candidate has the required skills for that particular trust and they would be able to make clear to the candidate the kinds of duties and responsibilities that the candidate would be called upon to contribute to the work of the board.

I turn now to the issue of corporate responsibility. It goes without saying that the patients forum non-executive will have exactly the same corporate responsibilities as a member of the board. I do not run away from the fact that sometimes it will be difficult for the patients forum non-executive to balance those corporate responsibilities against the spread of views that may be expressed by the patients forum. However, as I have often pointed out in this debate, the health service is well used to appointing people to serve on boards who have to strike a balance between different responsibilities. I can cite my own experience in the 1970s when I was appointed by Oxford City Council as a member of the Oxfordshire Health Authority. I remember clearly that it was a challenge to balance those responsibilities. However, it is our experience that most people are able to face up to that challenge. Ultimately, it is far better to have people inside the board rather than on the outside.

When a patients forum non-executive ceases to be a member of the forum, he or she will have to step down from the trust board. The forum would then elect another candidate to be considered by the appointments commission.

The noble Baroness raised the important issue of whether the non-executive from the patients forum will be appointed in addition to the existing non-executives or in the fullness of time replace a non-executive who has come to the end of his or her term in office. There is a degree of flexibility. NHS trusts are enabled to request an increase in the number of non-executives. Apart from trusts providing high security psychiatric services, which have seven non-executives, most trusts have five non-executives. Those trusts can move up from five to seven subject to their requesting the agreement of the Secretary of State, that agreement being given and the necessary regulation being laid. So within the current system there is scope for increasing the number of non-executives.

I hope that the noble Baroness feels that I have answered most of her points. We have benefited from her input. As we move to developing regulations to give effect to this policy, we would be pleased if she were able to give us the benefit of further advice during that stage.

4 p.m.

Baroness Hanham

My Lords, I have a feeling that I should quit while I am winning. I am extremely grateful to the Minister for his reply to what has become a detailed questionnaire. He has now resolved all the points. If he is offering me a chance to help with the regulations, I shall be absolutely delighted to do so. I am grateful to the Minister. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones

moved Amendment No. 40: Before Clause 16, insert the following new clause— "ESTABLISHMENT OF PATIENTS' COUNCILS (1) The Secretary of State shall, subject to subsection (2), establish a body to be known as a Patients' Council ("Council") in England in each area for which an overview and scrutiny committee has been established under section 7 of the Health and Social Care Act 2001 (c. 15) (functions of overview and scrutiny committees). (2) Each Council shall comprise from among members of the relevant Primary Care Trust Patients' Forums and NHS trust Patients' Forums operating in that area and representatives from the relevant community interest groups. (3) Where it appears to the Secretary of State that there is a need to establish a Council for an area other than that represented by a local authority with overview and scrutiny functions, he shall, after local consultation, establish a Council for such other area as appears to him will meet the needs of the local community. (4) The functions of a Council are to represent the interests in the health service of the public in its district and in particular to—

  1. (a)facilitate the co-ordination of the activities of member Patients' Forums including by the provision of staff and services to Patients' Forums,
  2. 592
  3. (b)provide or make arrangements for the provision of services under section 19A of the National Health Service Act 1977 (c. 49) (independent advocacy services) at the direction of the Commission for Patient and Public Involvement in Health,
  4. (c) represent to persons and bodies which exercise functions in its area (including in particular the overview and scrutiny committees and the joint overview and scrutiny committees referred to in sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001 (c. 15)) the views of members of the public in its area about matters affecting their health, and
  5. (d) advise the bodies mentioned in subsection (5) on involvement of the public in its area in consultations or processes leading (or potentially leading) to decisions by those bodies or the formulation of policies by them, which would or might affect (whether directly or not) the health of those members of the public, monitor the effectiveness of this involvement and co-operate with the Commission for Patient and Public Involvement in Health in carrying out this function.
(5) The decisions in question at subsection (4)(d) are those made by—
  1. (a) health service bodies,
  2. (b) other public bodies, and
  3. (c) others providing services to the public or a section of the public.
(6) The Secretary of State shall, following consultation with the Association of Community Health Councils for England and Wales, Community Health Councils, patients' and carers' organisations and the wider community, by regulation make provision in relation to Councils and in particular provide as to—
  1. (a) the Patients' Forums and other community interest groups from which members of the Council are to be appointed,
  2. (b) any qualification or disqualification from membership,
  3. (c) terms of appointment,
  4. (d) the proceedings of a Council,
  5. (e) the discharge of any functions of a Council by a committee of the Council or by a joint committee appointed with another Council,
  6. (f) the circumstances in which Councils will co-operate with each other in the exercise of their functions and exercise functions jointly with one or more other Councils,
  7. (g) funding of Councils and the provision of staff, premises and other facilities,
  8. (h) the preparation and publication by a Council of annual accounts,
  9. (i) the provision of information (including descriptions of information which are or are not to be provided) to a Council by an NHS trust, a Primary Care Trust, a Strategic Health Authority, the Commission for Patient and Public Involvement in Health, the relevant local authorities or a person providing independent advocacy services (within the meaning given by section 19A of the National Health Service Act 1977),
  10. (j) the provision of information by a Council to another person,
  11. (k) the preparation and publication of reports by Councils,
  12. (l) the furnishing and publication by NHS trusts, Primary Care Trusts, Strategic Health Authorities and overview and scrutiny committees of comments on reports or recommendations of Councils, and
  13. (m) the referral of matters of a prescribed description to any overview and scrutiny committee, the relevant Strategic Health Authority, the Commission for Patient and Public Involvement in Health or the Secretary of State for Health.
(7) The regulations shall include provision applying or corresponding to any provision of Part 5A of the Local Government Act 1970 (c. 70) (access to meetings and documents). (8) In section 21(10) of the Local Government Act 2000 (c. 22) (overview and scrutiny committees) after "members of the authority" there shall be inserted "and shall include a person appointed by the relevant Patients' Council". (9) In paragraph 1 of Schedule 5 to the National Health Service Act 1977 (c. 49), as amended by the Health Authorities Act 1995 (c. 17) after sub-paragraph (c) there is inserted— (d) persons appointed by the relevant Patients' Councils.". The noble Lord said: My Lords, in moving Amendment No. 40, I shall speak also to the consequential amendments in this group.

These amendments seek to establish patients' councils to integrate the work of the patients forums operating in their area. As I explained in Committee, Amendment No. 40 is similar to the one put forward by David Hinchliffe, MP, the chairman of the Select Committee on Health, during the passage of the Health and Social Care Bill before the last general election, which enjoyed cross-party support in both the House of Commons and the House of Lords.

The amendment provides for the creation of patients' councils as a statutory means of integrating the work of patients forums in a local area. This local area would in general be co-terminus with local authority overview and scrutiny committees and provide support to their scrutiny function. Regulations would provide for membership from relevant forums and other community groups.

As membership bodies, patients' councils would be accountable to patients forums. With lay membership and statutory duties, they would also be more accountable to local patients and communities than the Government's proposed local networks of the commission, which are set out in response to the listening exercise. As independent statutory bodies, they would help to reinforce the independence of patients forums at local level.

Patients' councils would operate as the local base for staff provided by the Commission for Patient and Public Involvement in Health. They would also be able to provide or commission advocacy for people wishing to make a complaint about the NHS in line with provisions for the independent complaints advocacy service now contained in the Health and Social Care Act 2001. As well as providing an identifiable point where the public can raise concerns about the local health service, patients' councils could also act as one-stop shops where members of the public could get independent information and advice.

Under the amendment, the role of representing local concerns about matters affecting health will be carried out by patients' councils rather than by the commission. Patients' councils would share with the commission the task of ensuring that consultations are carried out by health service bodies and assist where this is appropriate. The national commission will be included in the list of bodies to whom patients' councils should send their reports.

Patients' councils will appoint members to sit on overview and scrutiny committees and strategic health authorities. This will ensure a coherent representation of patients forums members' interest at a strategic level.

Overall, there is an extremely strong case for a local, lay-led organisation which would pull together all the various fragmented functions of the system; provide and arrange complaints support; represent the local community; and be a visible, accessible and approachable point of contact for the local community.

In contrast, the Government's model, relying on a national commission, is built from the top down. In the Government's model there is no in-built reason why the national commission or its local manifestations should take any notice at all of the views of the local community on any issue. Community health councils currently provide easily accessible one-stop shops. In contrast, the Government's scheme involves a confusing array of fragmented bodies from which to seek help.

It seems extraordinary, after all this debate, that the Government are not accepting what seems to most of us to be sound common sense. In Committee, the Minister offered three main reasons for the Government's reluctance to accept patients' councils—that is, the possible usurping of patients forums' role as the main source of influence within the system; the perception that introducing patients' councils would add an additional tier of bureaucracy; and, finally, the need for flexibility to work across administrative boundaries.

This misrepresents what is proposed for patients' councils in the amendment. For example, patients' councils would not affect in any way the role of individual patients forums as the key bodies working with and within NHS trusts, monitoring services and bringing about change. Local patients forums would simply come together to form patients' councils. This would allow their respective expertise to be shared to provide a joined-up view of a local health economy, the patient journey experience across different trusts, and wider health and health inequality issues. They would provide a focal point for local communities and have powers to take up issues of concern with oversight and scrutiny committees and others. These roles are otherwise lacking in the Government's proposals.

Introducing patients' councils would significantly reduce bureaucracy and simplify the system. Patients' councils would take away the need for several strands of bureaucracy contained in the Government's proposals—for example, local networks of the Commission for Patient and Public involvement in Health; lay reference panels or other artificial means of forcing the different patients forums to work together and the commission to take account of them through as yet unspecified regulations; and the bureaucratic exercise of the commission's staff tendering, contracting, monitoring and evaluating independent complaints advocacy services from a variety of separate organisations. Staff based with patients' councils could provide this service more efficiently and consistently from an identifiable one-stop shop.

Under the Government's proposals, individual patients forums would need to compete for staff support from an entirely separate, staff only, local network of the commission. This would be unwieldy and bureaucratic. Patients' councils would combine the local staff of the commission with lay members drawn from patients forums and the wider community to work as a tight, efficient team.

It has also been implied that the local authorities' overview and scrutiny role in some way negates the need for patients' councils. However, many local authorities have expressed enthusiasm for the concept of patients' councils because they provide a natural link with the patient and public involvement system and would make it easier for them to engage with patients and the community on health issues. For instance, the Democratic Health Network, part of the Local Government Information Unit, supports patients' councils in these words: The Democratic Health Network very much welcomes the idea of Patients' Councils to bring together the work of Patients' Forums. One of our main concerns has been the lack of a voice for patients that goes across the whole care pathway, from social services to tertiary care, because the transition from one level of care to another has often been problematic for service users and patients and is where 'seamless' care can often break down". The Government know that the amendment has enormous support right across the voluntary sector; it has support from local government and it has wide support within this House and in the other place. They should listen to that overwhelming body of opinion on this matter. I beg to move.

Baroness Pitkeathley

My Lords, I have spent a large part of my life campaigning for a stronger voice for patients and the public in public services. If I felt that patients' councils would help that along, I would support the amendment. However, I do not feel that it would give patients greater recognition or power. It would introduce a new bureaucratic structure with no guarantee of greater patient power.

The Government's commitment to increasing patient and public involvement in the health service, which I believe is at the heart of the NHS reforms, has not received sufficient recognition or praise. The new system, with the patient advocacy and liaison services, the patients forums and the local and national elements of the commission, is the biggest boost ever given to patients in the history of the NHS. We should rejoice in that. It is not about organisations representing patients or speaking on their behalf; it is about bringing patients into the system and enabling them to help with planning according to community needs, to make decisions and to control resources.

That is a huge cultural change in the NHS and many people will resist it. It will take time and it will take even more commitment. That is why we need the many different strands of enabling patient power to develop.

However, I am in sympathy with the idea of enabling patients forums to share their experience and learn from good practice. I do not feel that patients' councils are the way to help that along. The one-stop shop is always a seductive idea. We hear about it in many contexts—one-stop shops for carers, one-stop shops for the lottery and so on. The idea of the high street presence is very attractive and seductive, but it is hard for it to give real access to patients. We need a single point of access, but that can be done by telephone or, increasingly, by the Internet. Patients need as many points of entry as possible in order that their voice can be as strong as we can make it.

Lord Weatherill

My Lords, I regret that I disagree with the noble Baroness, Lady Pitkeathley. One of the differences between this House and the other place is that in my former incarnation as Speaker I had to listen to endless speeches over and over again, whereas here I am able to say that the points that I wanted to make have been rather better made by the noble Lord. Lord Clement-Jones.

I strongly support the amendment for all the reasons that I gave in Committee on 11th April at cols. 581 and 582. In contrast to what the noble Lord, Lord Peyton, said about the previous amendment—which was very difficult to understand and had all the impact associated with the old Army phrase, "If you can't tell 'em, confuse 'em"—this one is clearly set out in ways that we can all understand. I hope that it will commend itself to your Lordships. As the noble Lord, Lord Clement-Jones, has said, it has wide support in the other place and I trust that the Government will accept it.

4.15 p.m.

Baroness Carnegy of Lour

My Lords, the noble Baroness, Lady Pitkeathley, understands the Bill very well. She has explained that patients' interests will be dealt with in a new way within the system. As somebody who has not worked in the National Health Service, I can understand the thinking behind that. The trouble is that the means allowed for patients' representation are locked into the system. We have heard from my noble friend Lady Hanham the problems presented by the chairman of a patients forum being on the board of the trust. I understand why that provision has been included, but it is bound to alter the way in which the forum can operate. That is clear from the structures. Anyone who has been involved in administrative systems can see that it gives a particular characteristic to the patients forum.

The most important aspect of Amendment No. 40 comes in subsection (4), which says: The functions of a Council are to represent the interests in the health service of the public in its district". Every member of the public is potentially a patient. At any given moment many members of the public have relatives or friends who are patients. The public, not just patients, have a continuing interest in the health service. The public must surely be able to feed their thoughts into the system from outside, not from within the system.

My general worry about the Bill is that there is too much of the big tent about it. It embraces everybody who is concerned as if they were all members of the health service, whereas the public are not members of the health service; they are the customers. The amendment identifies the public as the customers and would enable them to get at the health service from outside. That is its main advantage. The community health councils did that and the proposed patients' councils would do the same. It is an important addition to the system that would not conflict with the rest of the Bill. We should accept it.

Lord Peyton of Yeovil

My Lords, I agree with what my noble friend has just said. The Government have set up an elaborate new organisation that is quite powerful. There is a real danger that people on the ground —or on the operating tables and in the wards—will tend to be forgotten and reduced to statistics for waiting lists and the rest of it.

I fear that the Government are attempting to defend their new organisation against the possible irritations caused by complaints from patients' councils. That could well happen. I remain extremely doubtful about the remoteness of strategic health authorities. I also have grave doubts—I am afraid that I was not able to stay yesterday—about the organisation known as the Commission for Health Improvement. As I have said before, I always suspected that health improvement was the task of the department, but now we have a special commission for it. Unlike the department, which occupies modest offices, the commission occupies some very smart premises in Finsbury. Despite what it says, it leaves in its wake a trail of people who have been vexed and irritated by yet one more inquiry.

The more organisations there are that are capable of subjecting everybody to inquiries, the more we need some defence with the eloquence that a patients' council could generate. I hope that the noble Lord will forgive me if I repeat the quotation that I gave at an earlier stage of the Bill from the chairman of a large hospital group, who told me clearly, "We are suffering from death by a thousand visits". I fear that these thousands of visits by invigilators, inquisitors, monitors and the rest are becoming a real pest. I am left with the hope that patients' councils—which the Minister seems to think will be a source of discomfort—may prove to be what is wanted, as at least one line of defence against the inquisition of potential tyrants.

Baroness Masham of Ilton

My Lords, the previous amendments have illustrated the complexity and confusion surrounding the Bill's proposals on the new bodies to represent patients. The Government are setting up an independent audit committee to ensure that the new money coming into the National Health Service is spent correctly, and that seems wise They have made it clear that there is a need for independence. Why are they so adamant that patients should not have an independent body representing them? I cannot understand that, especially as the Minister understands the National Health Service so well. If patients' councils are set up, it will be vital that they are both independent and are seen to be independent. Unless patients or their representatives have an independent body to go to for help and advice, they will feel gagged and vulnerable when using the service.

One sometimes wonders whether the National Health Service is run for the patients or the staff who work within it. For years, there has been a health centre in North Yorkshire where the staff car park was smoothly tarmacked while the patients' car park was full of potholes and rough stones. It is important that one has as good facilities as possible for patients. If patients do not have an independent body with a wide variety of people representing them who have the interests of the National Health Service at heart, it will seem that the Government are not allowing freedom of speech and freedom to try to strive for good, acceptable standards for all who work and use the National Health Service.

Staff have their unions and professional bodies. Patients also need an independent voice, not a fragmented muddle. I therefore support the amendment.

Lord Stoddart of Swindon

My Lords, I do not think that I would have entered this debate—this is my first say on the Bill—unless I had had an unfortunate experience with the Department of Health. That experience concerns mixed-sex wards, a matter which I have been pursuing for the past eight years and has not yet been revolved. As it is quite clear that mixed-sex wards are still with us, in December, I wrote a letter to the Department of Health. Although I waited for three months, I received no reply. Indeed, I would not have had a reply by now if I had not tabled a question for Written Answer asking for one. If that is the way in which I am treated as a Member of your Lordships' House, what chance is there for the ordinary patient? He has no chance at all.

The fact, unfortunately, is that the patient is not treated as a customer or as a patient to be respected. All too often, he is treated as a supplicant. We must understand that patients are not supplicants. Currently, on average, each family in this country' pays between £2,000 and £2,500 annually for the health service. So he is not a supplicant, he is a paying customer. He deserves to be treated in that manner. In normal circumstances, one would expect that a business with captive, paying customers would treat those customers very well indeed. At the moment—make no mistake about it, I am a supporter of the National Health Service—they are not being treated in that way. Patients therefore need a voice, and a strong one. What is proposed in the Bill is not a strong voice but a diffuse voice.

I shall support the amendment because it will give focus to that voice. I hope that it will give power to patients. I hope that, if this amendment is sustained and the Government accept it, patients' councils will believe in themselves and in those whom they represent and not cosy up to the National Health Service or the entrenched bureaucracy, but work on behalf of patients and not be afraid to voice their own and patients' concerns about the organisation of the National Health Service, which needs a very great shake-up indeed.

Earl Howe

My Lords, I am very pleased to support these amendments to which I have added my name. The noble Lord, Lord Clement-Jones, and other noble Lords have made a succinct and admirable case for patients' councils. There is very little I can add beyond perhaps underlining one or two key points.

If we believe in a patient-centred health service, then logically we must also believe in the voice of the patient being heard. I am terribly sorry that the Government have seen fit to abandon the concept of the community health council rather than build on it, because community health councils really do provide a means by which the voice of the patient can be heard at the highest level. They also provide a means whereby lay people in an area can reach an informed view on service delivery across a wider canvas than simply this or that acute trust or this particular PCT.

What we have in the Government's proposals is a means whereby lay people will be able to consider the patient's experience, albeit—as the noble Lord, Lord Stoddart, indicated—only in slices, not as a totality. That is not much good to our old friend Mrs Archibald, who is waiting a long time for her operation. The patients forum for Mrs Archibald's primary care trust may well lay the blame on the hospital. The patients forum for the hospital may in good conscience lay the blame on the primary care trust. What use is that to Mrs Archibald? What she needs is one place where all her problems are considered in the round and from where pressure is brought to bear on the system failures that are causing these problems. That place is a patients' council.

In the Government's model, there is absolutely no lay representation for patients above the level of a patients forum. In pointing that out, I am not playing down the significance of the Commission for Patient and Public Involvement in Health; I am sure that the commission is a positive idea and it will have a useful role. However, the commission will not have lay people in it; it will be staffed by paid officials. It is in essence, and I think will be perceived as being, a creature of government.

The commission's job will be to support patients forums, but that is a long way from saying that the commission has to take action when a patients forum brings a particular matter to its notice. It does not have to do anything. A patients forum can bring the same matter to the notice of an overview and scrutiny committee of a local authority. However, there is no legal duty for the overview and scrutiny committee to do anything either. I find it very difficult to see this reformulation of patient and public involvement as anything other than a way of weakening the patient's voice rather than assisting it.

The fact is that the overview of health services in an area will be led by staff who are employed by a national organisation which the Department of Health can control. Is that really what we want? The Government are effectively saying that lay involvement is all very well provided it can be muzzled and that lay people are fine as regards monitoring what goes on in an acute hospital, but that is all they can do—monitor. They will have no real power to do anything about whatever may emerge from their monitoring. We need patients' councils to sustain the voice of patients.

The Minister said in Committee that he did not want another statutory tier of patient involvement that usurped the primacy of patients forums. In answer to that I underline the point made by the noble Lord, Lord Clement-Jones. I do not see patients' councils as adding another tier of bureaucracy. I do not see them as altering the key position of patients forums working with and inside NHS trusts. Indeed, I see them as supporting patients forums, not the other way round. The people who serve on patients' councils would be the same people as serve on patients forums.

At the moment the Government propose an array of bureaucratic structures and tasks in a given locality. There would be local networks of the commission and so-called lay reference panels of different patients forums. It would be the job of the staff of the commission to tender, to contract for and to evaluate the independent complaints advocacy services. Why not bring all of those activities and structures together in a patients' council where, using local staff of the commission, they could all be provided much more efficiently? Advocacy would be provided from within patients' councils. Lay reference panels would not be needed at all.

The Government have indicated that they are willing to place a duty on the face of the Bill for patients forums to work together. I have to say that I do not think that that is adequate. Working together is not the same thing as having a lay led organisation that will pull all the threads together from trusts and PCTs and speak up for patients in a particular geographical area, perhaps working across administrative boundaries. That in simple terms is the watchdog function. It is a function we shall lose if the Government have their way.

Finally, as regards visibility, local networks of the commission will be neither visible nor recognisable to the general public. Nor will they be accountable to them. If we look at things that way, I do not think that we can avoid the conclusion that patients' councils are the only sensible solution to the very significant deficiencies inherent in the new arrangements.

4.30 p.m.

The Lord Bishop of Hereford

My Lords, I express my warm support for the amendment and my strong agreement with what the noble Earl, Lord Howe, has just said. I ought to declare an indirect interest in that my wife served as a chairman of one community health council and vice-chairman of another and has for some years been a non-executive director of an acute trust. Therefore, she has seen the situation from both sides. I believe that the real point of the patients' council—this has been said already but I want to underline it yet again—is that it is a body which has a broad enough view to co-ordinate and to have a coherent overview of the relationship between the various bodies delivering healthcare. We must think in particular of the primary care trusts and the acute trusts. The shift of responsibility has changed in that relationship. It is one where we must have a body which can relate to both over a much wider area than that of an individual organisation.

I believe that the patients forum, which may be necessary, desirable, effective and good within its narrow limits, has too narrow limits. It will have much too narrow a remit. It will not be able to take an overview and relate its own concerns to those of patients who are being treated by another institution or agency. I believe that patients' councils would have a much greater degree of independence and would be more likely to achieve effective and desirable change. I urge the Minister to accept the amendment. I hope that it will win widespread support from all sides of the House.

Baroness Finlay of Llandaff

My Lords, I strongly support the amendments. I speak as a healthcare professional. I believe that the voice of the patient must have parity with that of' the management at all levels. Patients' councils are important in order to establish a route whereby the collective intelligence can be gathered on information that may be supplied through the layers of a patients forum. Patients forums are inexorably linked to trusts and there is always the danger that the patient who is vulnerable cannot really express all his or her concerns. There is also a danger that small trends in one area which may constitute large national trends would be lost if there was not a collective intelligence.

There have been examples of collective intelligence professionally. I refer to the confidential inquiry into maternal deaths and the confidential inquiry into perioperative deaths. Now within trusts there is sentinel event reporting or near miss reporting. It is that collection of many small bits of information coordinated and brought together that supplies crucial information as regards a trend. The amendments appear to enable patients to themselves have a collective intelligence to inform their reporting.

Lord Harris of Haringey

My Lords, I was moved by the energetic statements of the noble Lord, Lord Stoddart of Swindon, with regard to the importance of not cosying up to the NHS or the Department of Health. As director of the Association of Community Health Councils for a number of years, that was certainly a precept that I sought to follow. Indeed, I have at home a series of copies of denunciations of me by successive Secretaries of State, the most vitriolic of which came from my right honourable friend Frank Dobson during his period as Secretary of State for Health.

However, I am confused by the different points that have been made in the past half hour or so in support of the amendment. For example, the noble Lord, Lord Stoddart, mentioned a diffuse void. I am not sure whether you can have a diffuse void or whether they are necessarily different. However, I am concerned about the extent to which what is proposed here will make the arrangements more rather than less diffuse.

Lord Stoddart of Swindon

My Lords, I did not say diffuse void; I said a diffuse voice.

Lord Harris of Haringey

My Lords, it is possible that I wrote down "voice" but I cannot read it. That explains the situation. In fact, that makes my point all the more telling. If the noble Lord is concerned about a diffuse voice, the danger is that the amendment which he supports creates yet another voice and further diffuses it.

Much has been said in this short debate about giving power to patients. On the various occasions I have contributed to that discussion over the past few months I made the point that the original proposals which emerged from the Government were extremely weak and flawed. What has emerged subsequently is substantially better, but there are still one or two gaps. One of the gaps concerns the need for there to be some system of co-ordination between the different patients forums and the different issues that may arise. The other concerns the need for there to be a focus at area level which is population based as opposed to institution based. My other anxieties concern staffing arrangements. A number of noble Lords alluded to the issue of whether staff of the patients forums will be accountable to the patients forums or to the new Commission for Patient and Public Involvement in Health. There are also concerns with regard to the extent to which the new patient structure will address issues of public health.

In Committee I tabled two amendments which I thought might address those points. I have not tabled them subsequently having listened carefully to my noble friend's assurances. I had hoped that we would have before us today a draft of the regulations 'which would have enabled us to see exactly how he proposes to meet some of the points that I put forward. Unfortunately, the regulations are not before us. I am conscious that there is an impressive array of support being displayed for the amendment from around your Lordships' House. My limited experience suggests that if noble Lords from both opposition Front Benches and a former distinguished Convenor of the Cross-Bench Peers put their name to an amendment, the chances are that it will be accepted. However, that raises some concern about what will be on the face of the Bill.

The amendment is slightly strange. A number of noble Lords have expressed concern about the danger of diffuse arrangements. The first paragraph of the amendment states that the Secretary of State shall establish a body in each area covered by an overview and scrutiny committee. The third paragraph proposes that in addition the Secretary of State may create other patients' councils in other areas. That is not instead of the patients' councils for each overview and scrutiny committee but as well as, thereby making the provision even more diffuse. There may be a misprint in the second paragraph which is incoherent. It states: Each Council shall comprise from among members". I assume that that is just a mistake.

The first paragraph establishes a body known as a patients' council in each area for which an overview and scrutiny committee has been established. Some noble Lords suggest that it will be close to the public. I do not understand how it can be closer to the public than areas represented by a patients forum representing a PCT area which is likely to be much closer to the public. Others have talked about an overarching view. In some areas the area covered by an overview and scrutiny committee will be a long way from the public. It will probably relate to a county council area which covers perhaps 2 million people and is remote from local communities, issues and concerns.

In London it is the converse. There will be a patients forum for each PCT, covering the area of a London borough. If the amendment were passed, there would also be a patients' council for the same geographical area. That seems a recipe for enormous confusion for the public. I suspect that it is a flaw in the drafting and that the noble Lord, Lord Clement-Jones, did not intend that.

The proposals produce a bureaucratic response to the problems identified. I have suggested that the local area covered by a PCT and the patients forum established for that area should have the co-ordinating function. It should bring together the various areas within it. I have yet to hear arguments which satisfy me that that is not the best way to address the issue.

I am amazed at subsection (4)(d) of the amendment. It proposes that one of the tasks of the new patients' councils will be to advise a series of bodies about anything, which would or might affect (whether directly or not) the health of those members of the public in respect of those services. The provision does not relate only to health service bodies. It is clearly intended to address the question of public health. But it provides for, other public bodies, and … others providing services to the public or a section of the public". Presumably it will be the duty of the patients' councils to advise transport undertakings on the safety of the railway system because that may potentially affect the health of people who may or may not use it. The patients' councils will be required to give advice to the supermarket chains about the quality of the food that they provide because that may affect the health of people, and to small shopkeepers, and so on. The provision is extraordinarily widely drafted. The noble Lord, Lord Clement-Jones, will no doubt suggest that it can be tidied up. But there has to be clarity about what we seek to achieve.

Noble Lords have suggested conflicting aims. Some say that because the patients forums will be close to specific trusts they cannot be the champions of the patients. Yet others say that the strength of the patients' councils is that they will be drawn from the patients forums. The same people will be sitting on the patients forums as are on the patients' councils. That does not make sense. One cannot have it both ways. Like, I am sure, the noble Earl, Lord Howe, I have sought assurances from the Minister on the independence of the patients forums. If the patients forums are genuinely independent, there can be no problem about creating a patients' council. If one is not satisfied that they are independent, the patients' council is not the solution because the patients' councils are drawn from the patients forums.

The noble Lord, Lord Peyton, expressed concern about the death by a thousand visits. The proposals create yet another statutory body with, presumably, powers to visit, to have reports, and to require responses involving extra rounds of visits. I do not believe that the amendment meets the purposes that noble Lords seek to achieve. Simpler and less bureaucratic solutions could create a focus on a specific locality and population and address questions of public health without the all-embracing, blunderbuss approach to every conceivable issue which may arise. With appropriate guarantees from Ministers, bodies could be independent of the NHS and adequately serviced by the arrangements for the new national commission.

4.45 p.m.

Lord Rea

My Lords, I have added my name to those putting forward the amendment in order to demonstrate to my noble friend the breadth of support the provision has not only from the Opposition Benches in this House but also from among the large segment of government supporters, particularly in another place. As the noble Lord, Lord Clement-Jones, pointed out, the amendment is identical to that moved by David Hinchliffe, the chair of the Select Committee in another place. It also has wide support among the health profession.

Like the noble Lord, Lord Weatherill, I shall not argue again the case for patients' councils which many noble Lords have argued eloquently. However, unless my noble friend puts forward a proposal which goes a long way towards embodying the principles outlined in the amendment, he is likely to provoke a Division which he is likely to lose. I await with some anxiety the noble Lord's suggestions. Perhaps some of the suggestions just put forward by my noble friend may act as a basis for them. However, the proposals will have to be quite radical for me to support the Government and oppose the amendment in the Lobbies.

Lord Hunt of Kings Heath

My Lords, it has been a wide-ranging debate which has taken us back to some of the substantive discussions on Second Reading in terms of the future of patient and public involvement in the National Health Service. Like my noble friend Lady Pitkeathley, I have had a long-standing interest and experience in patient and public involvement. I have always made it clear to your Lordships that the tests of the Government's proposals are whether at the end of the day they will be more effective in improving patient and public involvement and NHS sensitivity to the needs of patients than the current arrangements. I have no doubt that the arrangements we set before noble Lords will lead to a more effective engagement with the public than we have at present.

The noble Baroness, Lady Carnegy, said that the problem with our proposals was that they took a "big tent" approach. I disagree. The problem with community health councils is that they were a big tent approach. Within CHCs they were meant to encompass a range of functions. Often they did so inadequately. They were patchy in what they achieved. At the end of the day, I say to the noble Lord, Lord Stoddart, that the proof of the pudding is in the eating. Twenty-seven years after the establishment of CHCs, can we say hand on heart that we believe that their impact has been to turn the NHS into a patient and public orientated service? The answer is, no: that has not happened. That is why we think it better to separate the functions that CHCs have traditionally been given and ensure that they are organised in a much more professional and effective way—hence the establishment of PALs (patient advocacy and liaison services) within NHS trusts to deal with problems as they arise; in other words, to nip them in the bud. We also have the establishment of patients forums, independent advocacy services, as well as the overview and scrutiny committees of local government.

The noble Baroness, Lady Masham, asked for independence. That is what these arrangements are about. For example, patients forums are independent. Indeed, by its very name, independent advocacy is independent. Overview and scrutiny committees and the committees of local authorities are independent of the NHS.

Going beyond the range of measures that we now propose, we come to the issue of the co-ordination of the work of patients forums. I accept that patients' councils are one way by which one could co-ordinate the work of forums, but, in my view, they are not the best answer. Patients' councils risk undermining the key plank of our proposals; namely, the establishment of patients forums. There is a very real risk in this respect. Unlike community health councils, patients forums will be operative in those areas where patients are actually being treated within NHS trusts. That is the point where patients need help and support. It is there that the wide spectrum of patients' views needs to be brought to bear on clinicians, and on those who take a leadership role.

If our patient/public involvement initiatives are to make a real difference, it will be in the improved quality of every-day patient experience. That is why patients forums, based within each NHS trust, are the essential foundations of our proposals. Patient journeys cross organisational boundaries; indeed, they have always done so, and they always will. Patients forums will need to work together. That is why we propose that the national commission will provide the support to give the necessary flexibility at the local level. We do need a flexible approach. It is because different patient journeys cross different organisational boundaries that the required flexible approach is embraced within our proposals.

The risk with the proposed patients' council is that its function would go much wider than merely facilitating co-ordination. It would be a statutory body—another tier. The risk is that it would take to itself a role of speaking on behalf' of patients forums and of supplanting their primacy. As my noble friend Lord Harris pointed out, under the proposals put forward by the noble Lord, Lord Clement-Jones, my strategic health authority covering Birmingham and the Black Country would have but one patient council for a huge population area. How can that possibly be concerned with getting closer to the views of patients?

I argue for subsidiarity as opposed to a centralist approach, which I believe would be almost inevitable if formal statutory patients' councils were established. The noble Earl, Lord Howe, said that there was no risk in that respect. However, he then recited a whole list of responsibilities for patients' councils. It is clear that they would become the primary patients' organisation within the proposed new structure. The last thing we should want is to have such councils tying up resources and people, acting in an inappropriate representational role, and taking the main focus of attention away from the direct patient experience at the NHS trust level.

However, that does not mean to say that cooperation between patients forums is unimportant. The Commission for Patient and Public Involvement in Health has already been given the function of providing assistance to patients forums, as well as facilitating the co-ordination of their activities. But I am not unsympathetic to the points raised about trying to flesh out further details about how that coordination may work. Having listened to the debate in Committee, and having had useful discussions with several noble Lords, the Government have decided to go further on the basis that the patients' councils option is not pursued.

We would plan to make explicit on the face of the Bill a requirement on patients forums to come together on a regular basis in a structured format, along the lines of standing conferences. That mechanism would mean that all the forums within an area would bring their views, findings, themes and trends into one place where consideration could be given to sharing views and co-ordinating the work of different forums. That process would ensure a mechanism that was inclusive and one that would be open to all forum members. It would not be a matter of giving an extra status to any forum, or any forum member. Similarly, it would not involve an extra statutory bureaucratic tier.

At the same time, we are prepared to place a requirement on the commission—again, on the face of the Bill—to take account of the views of patients forums in deciding its work plan. In that way, we can be sure that the commission and its work are being explicitly influenced by local patients forums, which, in itself, would encourage the working together of those forums. The commission will already have a very clear and comprehensive view of patients' experiences across an area, but the requirement for forums to come together, and the fact that the commission will take this into account, will ensure that important degree of accountability—but without shackling its work unnecessarily.

I turn to the issue of a one-stop shop. Wherever local people may be, I agree that it will be important for them to have a single access point into the patient/ public involvement system. Clearly, it will be possible to access this through PALS, through independent complaints and advocacy services, through patients forums, through the overview and scrutiny committees of local government, and through the staff of the local commission; and, indeed, through many other sources of information, not least in the NHS. However, in response to some of the points raised, we shall ensure that the commission provides a central access point through its network at the local level. Again, we shall make it an explicit function of the commission to provide information and guidance to local people wanting to complain, to have their say, or to know what is happening locally on matters that affect their health.

We have in mind a single point of contact, as suggested by my noble friend Lady Pitkeathley, by telephone, by electronic media, so that it will be possible through one contact not only to access all the local mechanisms for patient involvement and information but also to provide information about key developments in the local health service. We would plan to bring forward the necessary amendments on Third Reading.

I have no doubt about the sincerity of all noble Lords who have spoken on these matters. I believe that we all want better public and patient engagement within the NHS. I agree with the noble Lord, Lord Stoddart: we do not want the patient to be a "supplicant" at the table of the NHS. We want the NHS to serve patients in the most effective and sensitive way possible. We have not done this well in the past; indeed, we must do better. If we do not better serve the public, they will walk away from the NHS. It is as simple as that. I should point out to the noble Lord, Lord Peyton, that it is in the interest of the Government, as much as anyone else, to have powerful patient engagement.

All that we have said about the NHS, and all the plans that we have made, are predicated on a more responsive National Health Service. We will not have a responsive NHS unless we have strong patient involvement.

My view of the amendments starts and finishes with an analysis of which approach is more likely to lead to strong patient involvement. Which approach is more likely to secure the responsive NHS that all noble Lords want? I am convinced that the patients forums route is right. The impact on each trust of having within its midst wholly independent patients forums will be enormous. Please do not inhibit and undermine those forums by placing on top of them remote patients' councils, which will at best detract from the primacy of patients forums and at worst become a bureaucratic and unnecessary encumbrance that is remote from the day-to-day experience of patients.

Patients forums must work together; that is not in doubt. That is why we have listened carefully to the arguments and are prepared to table amendments at Third Reading to reinforce that co-operation if the patients' councils amendments are not pressed.

We will of course be determined to ensure that the model that we finally reach will be the best model for co-operation. It will operate on the basis of equal partnership in relation to patients forums and it will be grounded in the day-to-day experience of NHS patients. I do not believe that patients' councils would add to that one iota. The risk is that they would considerably detract from those arrangements.

5 p.m.

Lord Clement-Jones

My Lords, I thank all noble Lords for their contributions to this debate and the Minister in particular for his powerful speech.

It is clear that the overwhelming opinion of the House is in favour of patients' councils. I was interested that several times in his reply, the Minister used the word "risk". He said that the approach risks undermining the world of patients and public involvement, as designed by the Government. The irony is that the Government accepted amendments involving patients' councils in a Bill before the previous general election, and they did so gladly. They did so by way of a compromise with one of their own Back-Benchers—the chairman of the Select Committee on Health. What has changed in nine months? Very little.

The Minister and his ministerial colleagues have had some time—probably one year—to consider the matter. I am afraid that although his reply was well considered, he and his colleagues have come up with roughly four or five additional sticking plasters for what was already a very complicated solution. The Government have added to the Bill a duty to oblige patients' forums to work together. Very useful. A standing conference has been suggested and a telephone line. Well, that is a very useful contribution! Most noble Lords who listened to the Minister's speech will mull over whether all of those rather minor additions to the Bill could be fulfilled through patients' councils.

I was interested to hear the robust contribution of the noble Lord, Lord Harris—it is always good to hear him in full flow. The answer to his suggestion is that, in essence, patients' councils are a bottom-up solution to patient and public involvement. The networks of the national commission, which are a Government creation—they are effectively the creature of the Secretary of State—are a top-down solution. That is the key difference between patients' councils and the Government's proposals.

Many noble Lords would like to return to the status quo in relation to community health councils. I do not believe that the Government have properly taken into account the fact that this proposal is a compromise that was put forward by many voluntary organisations and by the CHCs themselves through their national organisation. We advance it in a genuinely constructive way—in the belief that it is the best way forward, rather than an attempt to fight past battles. I do not believe that the Government are giving as much credit as they should to supporters of patients' councils.

Why go for a solution of sticking plasters and string when we could have a solution that is a powerful and well-constructed way forward? There is a considerable philosophical difference between the Government and those on these Benches, the Opposition Benches, many on the Cross Benches and, indeed, many on the Government's Benches. I would like to test the opinion of the House.

5.5 p.m.

On Question, Whether the said amendment (No. 40) shall be agreed to?

Their Lordships divided: Contents, 227; Not-Contents. 136.

Division No. 1
Aberdare, L. Carnegy of Lour, B.
Ackner, L. Carr of Hadley,L.
Addington, L. Cavendish of Furness, L.
Alexander of Weedon, L. Chadlington, L.
Ampthill, L. Chilver, L.
Anelay of St Johns, B. Chorley, L.
Arran, E. Clement-Jones, L. [Teller]
Astor of Hever, L. Cockfield,L.
Attlee,E. Coe,L.
Avebury, L. Colville of Culross, V.
Beaumont of Whitley, L. Colwyn, L.
Belstead,L. Cope of Berkeley, L.
Blaker,L. Craig of Radley, L.
Blatch,B. Crathorne, L.
Boardman, L. Crickhowell, L.
Bowness, L. Cuckney, L.
Bradshaw, L. Cumberlege, B.
Bridgeman, V. Darcy de Knayth, B.
Brigstocke, B. Dean of Harptree, L.
Brooke of Sutton Mandeville, L. Deedes, L.
Brougham and Vaux, L. Denham, L.
Burnham, L. Dholakia, L.
Buscombe, B. Dixon, L.
Byford, B. Dixon-Smith, L.
Caithness, E. Dundee, E.
Carlisle of Bucklow, L. Eden of Winton, L.
Elles,B. Monson, L.
Elliott of Morpeth, L. Montrose, D.
Elton, L. Moore of Lower Marsh, L.
Erroll, E. Mowbray and Stourton, L.
Ezra, L. Moynihan, L.
Falkland, V. Murton of Lindisfarne, L.
Fearn, L. Naseby, L.
Ferrers, E. Neill of Bladen, L.
Finlay of Llandaff, B. Newby, L.
Flather, B. Nicholson of Winterbourne, B.
Fookes, B. Noakes, B.
Fowler, L. Northbrook, L.
Freeman, L. Northesk, E
Gardner of Parkes, B. Northover, B.
Geddes, L. Norton of Louth, L.
Geraint, L. O'Cathain, B.
Gilmour of Craigmillar, L. O'Neill of Bengarve, B.
Glenarthur, L. Oakeshott of Seagrove Bay, L.
Goodhart, L. Onslow, E.
Greenway, L. Oxburgh, L.
Hamwee, B. Palmer, L.
Hanham, B. Park of Monmouth, B.
Harris of Richmond, B. Pearson of Rannoch, L.
Haslam, L. Peel, E.
Henley, L. Perry of Southwark, B.
Hereford, Bp. Peyton of Yeovil, L.
Higgins, L. Platt of Writtle, B.
Hodgson of Astley Abbotts, L. Plumb, L.
Hogg, B. Plummer of St. Marylebone, L.
Holderness, L. Prior, L.
Home, E. Pym, L.
Hooper, B. Quinton, L.
Howe, E. [Teller] Rawlings, B.
Howell of Guildford, L. Razzall, L.
Hunt of Wirral, L. Reay, L.
Hurd of Westwell, L. Redesdale, L.
Hylton, L. Rees, L.
Jacobs, L. Renfrew of Kaimsthorn, L.
James of Holland Park, B. Rennard, L
Jellicoe, E. Renton, L.
Jenkin of Roding, L. Roberts of Conwy, L.
Jenkins of Hillhead, L. Rodgers of Quarry Bank, L.
Jopling, L. Rogan, L.
Kimball, L. Roper, L.
King of Bridgwater, L. Rotherwick, L.
Kingsland, L. Russell, E.
Knight of Collingtree, B. Russell-Johnston, L.
Laing of Dunphail, L. Ryder of Wensum, L.
Laird, L. Saatchi, L.
Lane of Horsell, L. Sainsbury of Preston Chandover, L.
Lester of Herne Hill, L.
Listowel, E. Saltoun of Abernethy, Ly.
Liverpool, E. Sandberg, L.
Livsey of Talgarth, L. Sandwich, E
Lofthouse of Pontefract, L. Scott of Needham Market, B.
Lucas, L. Seccombe, B.
Luke, L. Selborne, E.
Lyell, L. Selsdon,L.
McColl of Dulwich, L. Sharman, L.
MacGregor of Pulham Market, L. Sharp of Guildford, B
Sharples, B.
Mackay of Clashfern, L. Shaw of Northstead, L.
Mackie of Benshie, L. Shrewsbury, E.
Maclennan of Rogart, L. Shutt of Greetland, L.
McNally, L. Simon of Glaisdale, L.
Maddock, B. Skelmersdale, L.
Mar and Kellie, E. Smith of Clifton, L.
Marlesford, L. Soulsby of Swaffham Prior, L.
Masham of IIton, B. Stern, B.
May of Oxford, L. Stevens of Ludgate, L.
Mayhew of Twysden, L. Stewartby, L.
Methuen, L. Stodart of Leaston, L.
Michie of Gallanach, B. Stoddart of Swindon, L.
Miller of Chilthorne Domer, B. Strange, B.
Miller of Hendon, B. Strathclyde, L.
Monro of Langholm, L. Taverne, L.
Tebbit, L. Walker of Worcester, L.
Tenby, V. Wallace of Saltaire, L.
Thatcher, B. Walmsley, B.
Thomas of Gresford, L. Walpole, L.
Thomas of Gwydir, L. Watson of Richmond, L.
Thomas of Walliswood, B. Weatherill, L.
Thomson of Monifieth, L. Wigoder, L,
Wilberforce, L.
Tope, L. Wilcox, B.
Trefgarne, L. Williams of Crosby, B.
Tugendhat, L. Wilson of Tillyorn, L.
Vivian, L. Windlesham, L.
Waddington, L. Wolfson, L.
Acton, L. Hayman, B.
Ahmed, L. Hilton of Eggardon, B.
Alli, L. Hogg of Cumbernauld, L.
Amos, B. Hollis of Heigham, B.
Andrews, B. Howells of St. Davids, B.
Archer of Sandwell, L. Howie of Troon, L.
Ashton of Upholland, B. Hughes of Woodside, L.
Bach, L. Hunt of Chesterton, L.
Barnett, L. Hunt of Kings Heath, L.
Bassam of Brighton, L. Irvine of Lairg, L. {Lord Chancellor)
Berkeley, L.
Bernstein of Craigweil, L. Janner of Braunstone, L.
Bhatia, L. Jay of Paddington, B.
Blackstone, B. Jenkins of Putney, L.
Borrie, L. Jones, L.
Boston of Faversham, L. Judd, L.
Brett, L. King of West Bromwich, L.
Brooke of Alverthorpe, L. Kirkhill, L.
Brookman, L. Layard, L.
Bruce of Donington, L. Lea of Crondall, L.
Burlison, L. Levy, L.
Campbell-Savours, L. Lipsey, L.
Carter, L. [Teller] Macdonald of Tradeston, L.
Chandos, V. McFarlane of Llandaff, B.
Clarke of Hampstead, L. Mclntosh of Haringey, L. [Teller]
Clinton-Davis, L.
Corbett of Castle Vale, L. MacKenzie of Culkein, L.
Crawley, B. Mackenzie of Framwellgate, L.
David, B. Marsh, L.
Davies of Coity, L. Mason of Barnsley, L.
Davies of Oldham, L. Massey of Darwen, B.
Desai, L. Merlyn-Rees, L.
Donoughue, L. Milner of Leeds, L.
Dormand of Easington, L. Mitchell, L.
Dubs, L. Morgan, L.
Elder, L. Morris of Aberavon, L.
Evans of Parkside, L. Morris of Manchester, L.
Evans of Temple Guiting, L. Nicol, B.
Evans of Watford, L. Orme, L.
Falconer of Thoroton, L. Parekh, L.
Farrington of Ribbleton, B. Patel of Blackburn, L.
Faulkner of Worcester, L. Paul, L.
Filkin, L. Pendry, L.
Gale, B. Pitkeathley, B.
Gilbert, L. Plant of Highfield, L.
Gladwin of Clee, L. Puttnam, L.
Golding, B. Quirk, L.
Goldsmith, L. Radice, L.
Gordon of Strathblane, L. Ramsay of Cartvale, B.
Goudie, B. Rendell of Babergh, B.
Gould of Potternewton, B. Richard, L.
Graham of Edmonton, L. Richardson of Calow, B.
Greengross, B. Roll of Ipsden,L.
Gregson, L. Rooker, L.
Grocott, L. Sainsbury of Turville, L.
Hardy of Wath, L. Sawyer, L.
Harris of Haringey, L. Scotland of Asthal, B.
Harrison, L. Sheldon, L.
Haskel, L. Simon, V.
Haskins, L. Smith of Gilmorehill, B.
Stallard, L. Walker of Doncaster, L.
Strabolgi, L. Warwick of Undercliffe, B.
Symons of Vernham Dean, B. Wedderburn of Charlton, L.
Taylor of Blackburn, L. Whitaker, B.
Temple-Morris, L. Whitty, L.
Thornton, B. Wilkins, B.
Tomlinson, L. Williams of Elvel, L.
Turnberg, L. Williams of Mostyn, L. (Lord Privy Seal)
Turner of Camden, B. Williamson of Horton, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.17 p.m.

Clause 16 [Entry and inspection of premises]:

[Amendments Nos. 40A to 40E not moved.]

Clause 17 [Annual reports]:

Baroness Finlay of Llandaff

moved Amendment No. 41: Page 22, line 32, at end insert— ( ) both Houses of Parliament,. The noble Baroness said: My Lords, in moving Amendment No. 41, I shall speak also to Amendment No. 42 standing in my name. Amendment No. 41 recognises the importance of patients forums as established in the Bill. In their document, Delivering the NHS Plan, the Government propose to ensure explicit patient choice: the choice of where and when patients receive treatment. That will be monitored through the patients forums or the patients councils, as we heard in debate on the previous amendment. If patients do not have a choice where it is appropriate, then the report will show that.

We heard from the Minister in his address to this House on 18th April 2002 that the, investment in the NHS must be accompanied by changes in the way the NHS works". He also stated, rightly, that: Where more resources are going in, people have the right to know what they are getting out".—[Official Report, 18/4/02; col. 1081.] Just as the new commission for healthcare audit and inspection is to be the judge of service change, so the British people are to be the jury.

For true openness and debate, the reports from the patients groups must be presented to both Houses of Parliament along with reports from the new commissions for healthcare audit and inspection and for social care inspection. It is only by presenting the perspective of the external audit of the service and the experience of the users that a true 360 degree appraisal of the service will have occurred. Through that process, Parliament, on behalf of the people of the country, will be fully informed.

In speaking to Amendment No. 42, I do not wish to delay today's business by going over old ground. Yesterday the Minister stressed the importance of distinguishing between the annual report to Parliament, which forms part of a provision under the Bill, and the separate question as to how Parliament deals with such a report and the work of the commissions.

Parliament is made up of the Members of both Houses. Those Members should be able to question directly aspects of the service appraisal to which the various reports will contribute; they should be able to debate the advantages and disadvantages of different service configurations.; and, importantly, they should be able to confer with others over questions pertinent to the reported findings of the commission and the patients groups.

As a collective experience in Parliament develops, so will the checks and balances exerted by Parliament be increasingly rigorous and informed. Of course, the Bill cannot establish a Select Committee. That is to be done through the usual channels. But in the event of a committee of both Houses being established, the reports would be scrutinised there—hence, the persistent proposal. However, I fully understand that the Minister may not wish to reiterate his previous points. I beg to move.

Baroness Gale

My Lords, I believe that it is important that annual reports are submitted and that there is accountability. But is it realistic for reports from all the forums—they could number a few hundred—to be submitted to Members of both Houses? Would the Members of both Houses want to receive reports from 200 forums and would they have the opportunity and the time to read through all those reports? I question the necessity for and practicality of the forums to report to both Houses. It may be more advantageous to have an overview of the forums' work and there may be a more appropriate way of reporting on the work of the forums to Parliament.

Lord Hunt of Kings Heath

My Lords, I am grateful to the noble Baroness for raising the issue of annual reports. Subsection (2)(n) of Clause 18 provides the Secretary of State with a power to make regulations about the preparation and publication of patients' forums' reports, including their annual reports.

Consideration will be given as to whom forums should submit their annual reports, in addition to the bodies, including the Secretary of State, listed in Clause 17. We shall have to consider whether they should be submitted to the Houses of Parliament and whether they should be viewed more widely than that.

At this stage all I shall say is that I wonder whether the submission of what would be over 600 forums' reports every year to each MP would necessarily be a practical way of dealing with the matter. Surely, it would be better for forums to send their reports to MPs in their areas. Those are matters that we shall consider when we develop the regulations.

On Amendment No. 42, the noble Baroness knows my response. It is a matter for Parliament to decide how it will deal with the issues. It is not for us to write into the Bill the way in which Select Committees should conduct their business. I am confident that the current Select Committee system is well able to take care of scrutiny of the role of forums and the national commission. Of course, if in the future it were decided that a committee of your Lordships, of those in another place, or a joint Select Committee should be established specifically to deal with the work of patient and public involvement, we would ensure that all NHS bodies co-operated with such a committee.

Baroness Finlay of Llandaff

My Lords, I thank the Minister for his reply. When I drafted these amendments I was not able to predict that he might make an offer of a standing committee of patients forums in his response to the previous amendment. nor was I able to predict that that amendment would be carried and that patients' councils would be incorporated into the Bill. However, that answers the question about the large number of reports. Within either of those frameworks there would be only one report. I accept the assurances from the Minister that annual reports would certainly be looked at and my understanding is that there would be a need for such consolidated reports to come to Parliament. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 42 to 42B not moved.]

Clause 18 [Supplementary]:

Lord Clement-Jones

moved Amendments Nos. 43 to 45: Page 23, line 16, after "premises," insert "and Page 23, line 17, leave out "and staff Page 23, line 26, after "by" insert "a Patients' Council, On Question, amendments agreed to.

Earl Howe

moved Amendment No. 46: Page 23, line 27, after "Authority," insert "an overview and scrutiny committee or joint committee within the meaning of sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001 (c. 15), The noble Earl said: My Lords, Amendment No. 46 picks up a critical issue debated in Committee. I shall speak also to Amendments Nos. 47, 49 and 60. In Committee I pointed out that under the Bill as currently worded, overview and scrutiny committees of local authorities, to whom patients forums will refer matters of concern, have no specific duty to consider or to act upon such referrals. In my opinion, that is an important gap. I want to remind the House of some of the reasons for my concern.

Paragraph 1 of Schedule 7 to the National Health Service Act 1977 says that community health councils are under a duty,

  1. "(a) to represent the interests in the health service of the public in its district; and
  2. (b) to perform such other functions as may be conferred on it".
The CHC regulations expand on that duty. At Regulation 17 a duty is placed on each CHC, to keep under review the operation of the health service in its district, to make recommendations for the improvement of that service and to advise any health authority upon such matters relating to the health service within its district as the CHC thinks fit". My key concern in bringing those words to your Lordships' attention is to ensure that once CHCs have been abolished and the new arrangements are in place, those new arrangements should be no less effective and no less robust than those they have superseded. Under the Health and Social Care Act, overview and scrutiny committees inherit from CHCs the power to scrutinise, but that is a power and not a duty. Some local authorities could, therefore, choose not to exercise that power, leaving the local community, after CHCs have gone, with no one at all scrutinising the NHS.

In Committee, the noble Lord, Lord Filkin, said that it was "almost inconceivable" that local authorities would not exercise their powers to scrutinise. Later he said, it is most unlikely that they will not see them as important functions".—[Official Report, 11/4/02; col. 615.] Yes, perhaps that is so, but there is no certainty about it. Many local authorities are concerned that no new money has been allocated to them to develop and to run their overview and scrutiny of health. In those circumstances it is not only conceivable but very likely that some local authorities will decline to use their power to scrutinise, or they will simply pay lip service to it. As I said in Committee, there are also concerns that party political interests may determine how, if at all, the scrutiny function is applied.

I am advised that in a recent case in Camden, the council scrutiny committee's concerns about a proposed NHS LIFT scheme were over-ruled by the council's executive following an intervention by the Secretary of State. In the light of that, perhaps the Minister can give some assurance that guidance will be issued recommending the non-use of the whip system in overview and scrutiny committees.

I hope that the Minister will be able to give a more encouraging reply than he did in Committee. I beg to move.

5.30 p.m.

Lord Clement-Jones

My Lords, I rise to speak briefly to the amendments, which we on these Benches strongly support. Of course, the best councils will do all that we want in acting on referrals and themselves referring, in the exercise of their overview and scrutiny role. I suspect that the example given by the noble Earl, Lord Howe, came from the edition of the Camden New Journal that I have read. It provides a salutary lesson that we cannot expect such overview and scrutiny inevitably to operate in the right way. That may have severe effects on local health services.

The amendments would tighten up the position and many councils would support them. Of course, there is always the argument that resource must follow for duties to be properly carried out, but that is an argument to be had when the duties are made mandatory, as the amendments provide.

Baroness Masham of Ilton

My Lords, if social services perform scrutiny, who will carry it out—members or officers? Will they have the interest and experience to consider poor equipment or dirty hospitals, say? It is important that those doing the job have an interest in it. If they are tied to social services, will they have an interest in the health service?

Lord Filkin

My Lords, I find the amendments difficult to understand in the context of the debate about measures for patient and public involvement. Noble Lords on both sides of the Chamber have mentioned the essential importance of independence in the system. We absolutely agree. That is why we have sought to make each element as independent as it needs to be for its specific functions. But the amendments would lay down direction on local authorities as to how they should fulfil their scrutiny function.

We do not think it appropriate to compel local government in the context of health scrutiny. We fundamentally believe that local people should be able to rely on their democratically elected representatives to make decisions that are in the best interests of local people.

Local authorities have recently been given a new clear and powerful role to promote the economic, social and environmental well-being of their area. That puts beyond doubt that that is the central function for local, democratically elected bodies as the only possible voice for their communities. That is why they will have a powerful role in overview and scrutiny committees—to oversee many aspects of the improvement of the health of their communities. That is an important and powerful part of the Bill. To turn round and seek in some way to tell them how to do that is a contradiction of principle. They should and must make their own decisions about what is most important to local people to be scrutinized—given that choices must always be made about what is scrutinised first, given limited time.

We have therefore placed duties in the right places to ensure that scrutiny powers are appropriate. We have placed clear and strong duties on the NHS to provide information and to consult OSCs. PCTs and others must provide information to an overview and scrutiny committee. NHS staff must, if required, give evidence to an overview and scrutiny committee. The Secretary of State must consider representations made by overview and scrutiny committees in the light of any comments that they wish to make on major decisions affecting the shape or form of health matters in their area.

Those amount to a substantial raft of powers for overview and scrutiny committees—which is absolutely right, as I am sure that noble Lords in all parts of the House recognize—to affirm the primacy of the local, democratically elected body in fulfilling those functions.

Amendment No. 46 would give patients forums power to require information from local authority overview and scrutiny committees. We expect, hope and will certainly promote the idea that patients forums and overview and scrutiny committees work jointly and in harmony. In many cases, they will have a common interest, so we expect that patients forums would request views from overview and scrutiny committees. We certainly want to encourage good communication links between forums and overview and scrutiny committees, but to require them to do so in the draconian manner of the amendment is going too far.

We have already amended the Bill to give forums the power of referral to overview and scrutiny committees. That amendment was developed following extremely helpful discussions between the department and stakeholders, including the Association of Community Health Councils for England and Wales and patients forums. That amendment demonstrates that we recognise the need for overview and scrutiny committees to have robust information about patient experience available on which to base their decisions about what to scrutinise and when. Moreover, if they wish, they can second members of all patients forums onto overview and scrutiny committees.

To address the good question asked by the noble Baroness, Lady Masham, the overview and scrutiny committee will be a committee of councilors—elected members—serviced by officers. Those officers may include some from the social services department, but they will certainly not dominate, as the committees' remit, terms of reference and overview need to be substantially wider than considering the interconnection between social services functions and the NHS, important though that is.

Similarly, Amendment No. 47 is out of kilter with giving power to scrutinise the NHS to an independent body. We have said that local government must take a view on what action to take in respect of its responsibilities for the well-being of its community. If an overview and scrutiny committee believes a response or action to be appropriate, it is free to act or respond. Compelling an independent body from the centre is not appropriate. I must give the same response to Amendment No. 49. Should overview and scrutiny committees want to respond to patients forums they must be free to do so. We cannot justify contravening the principle of independent action.

I turn to Amendment No. 60. In the course of our discussion, I made it abundantly clear that we think compelling local authority overview and scrutiny committees through a statutory duty to scrutinise health services is not right. Noble Lords have recognised the need for independence.

In conclusion, and slightly more positively, I turn to what I think that the noble Earl, Lord Howe, is understandably seeking to ensure that we achieve.. He said that overview and scrutiny committees should be no less effective than CHCs. I entirely agree—in fact, we hope that they will be substantially more effective than CHCs. While recognising the good work that has been done by many CHCs, none of us think that they have the power, status or influence to shift or shape health policy as powerfully as will a well-organised overview and scrutiny committee that gets hold of issues and stays with them year after year.

So the issue is not about writing a duty into the Bill. We can do that until the cows come home; I fear that it does not always mean that the world shifts its behaviour. What would it mean in practice if committees had to act on referrals? They would have to put it on a committee agenda, give some time to it and decide either to act or to take no action. We could not do much about that. I agree with the noble Earl, Lord Howe, that that would be hopeless.

We want to ensure that local government—or at least the 150 local authorities with the prime role for overview and scrutiny committees—takes its responsibility seriously. That will depend on how we promote and support the implementation of the committees, rather than whether we change one word for another in the Bill.

The noble Lord referred to money. As I said, the department has put in a bid for further resources in the comprehensive spending review. But if a local authority uses money as an argument, it will do so whatever money is provided.

I agree with the noble Lord about party political differences. It would be extremely regrettable if local government sought to behave in a highly partisan fashion about local health issues. We certainly do not want that. If I recollect correctly, the guidance given by the Department for Transport, Local Government and the Regions on overview and scrutiny committees says that generally they should not be whipped. They should consider matters on a cross-party basis—or, better still, a non-party basis—rather than settle them on a party whip.

The other issue, I suggest, is implementation. Therefore, it is extremely important that the department, the LGA and the NHS Confederation work effectively together at preparing local authorities for the expansion of a duty that some have already embraced in the past.

The consultation between the bodies—MIS, LGA and NHS Confederation—on the implementation guidance ended today. It will lead to important regulations which will be in draft and extensively consulted on. We shall not get this issue right instantly. It will also require a good deal of learning from good practice between the NHS and local government and across local government. Universities—and others—will be tracking the experience of overview and scrutiny committees and seeing where they are or are not working and considering how to make them better. The issue should be strongly promoted and distributed throughout local government. I am sure that the Government will want to play their modest part in that process.

I suggest that such implementation will not happen in six months, it will take no doubt several years of persistent work. The Government are committed to trying to make sure that it happens. We are heartened that the LGA and the NHS Confederation want to work with us. We pay credit to the community health councils which—despite recognising that the world is changing—are being supportive of this process of training and development in preparation for these new responsibilities. For those reasons, I suggest that the amendments are not necessary and can be better dealt with through other means.

Earl Howe

My Lords, the Minister is always very reasonable in his replies to me. I am grateful for the trouble that he has taken to respond to my points. He said essentially that a citizen should be able to rely on his local authority and allow the local authority the freedom to make its own decisions. I agree that in an ideal world that would be the preferred way forward.

However, I cannot help returning to the fact that overview and scrutiny committees are the keystone of the entire architecture of patient and public involvement. It is where the power lies. If they fail for any reason the edifice crumbles. The amendments that I have tabled do not really tell overview and scrutiny committees how to do their job but that that they must do it.

I return to the question that I asked in Committee. If for the past 20 years or so it has been appropriate to give local communities a guarantee that their health services will be scrutinised, why all of a sudden is it not appropriate? I do not think that I have had an answer to that.

Lord Filkin

My Lords, in the Local Government Act 2000 the Government have already placed that responsibility on local authorities. They said that the local authorities had the central constitutional leadership role to promote the economic, social and environmental well-being of their areas. It could not be clearer that they are responsible for promoting the health and well-being of their communities. From recollection, if the noble Lord went back to our debates, I am certain that he would find that we referred to that at the time. The promotion of the health and well-being of their areas was central to the local government argument. That is why we do not think that the amendment is necessary.

The second reason is that these are democratically elected bodies. We still have some separation of constitutional roles between central and local government. Noble Lords frequently criticise this side of the Chamber for putting too many duties on local government. In that respect we believe that these bodies have a clear role and power, which we have affirmed in the strongest possible way by saying that NHS staff have to give evidence to them. They will have access to people and to papers to fulfil their duties. One could hardly affirm the importance of their role more strongly.

I agree with the noble Earl that this will not happen immediately. People will not suddenly be perfect at this. But I do not think that changing a duty to a power will make the slightest bit of difference. The issue is the vigour with which we all promote the good practice which will be gained by experience over the coming years.

5.45 p.m.

Earl Howe

My Lords, I am very grateful to the Minister. My understanding of what he said is that there is in effect already a duty in the Local Government Act which obliges local authorities to perform those activities and functions which are conducive to the well-being of the local population. I hope that the noble Lord will correct me if I am wrong, as I realise that I am paraphrasing him.

If that is so, I take the point seriously because it is a new one to me. I must reflect on it. I think that there is a risk as regards resources. Knowing my own local authority and the financial constraints it is under, it is entirely possible that it will be faced with the unenviable task of focusing its resources on those activities that fall into the "must do" category and abandoning—or at least severely curtailing—those activities that are not mandatory. As I understood the Bill before the noble Lord made the helpful comments that he has just made, there would be nothing illegal in its abandoning the overview and scrutiny of health services. I think that the noble Lord has introduced an extremely important ingredient into the discussion. I was minded to press the amendment, but in the light of what he has said I shall not do so. Therefore, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 47 not moved.]

Lord Clement-Jones

moved Amendment No. 48: Page 23, line 38, after "by" insert "Patients' Councils, On Question, amendment agreed to.

[Amendment No. 49 not moved.]

Earl Howe

moved Amendment No. 50: Page 23, line 41, leave out subsection (3) and insert— (3) Regulations shall provide for the membership of a Patients' Forum, which shall comprise—

  1. (a) as to at least a quarter of its membership, members or representatives of voluntary organisations whose purpose, or one of whose purposes, is to represent the interests of—
    1. (i) persons for whom services are being provided under the 1977 Act or in pursuance of arrangements under section 31 of the Health Act 1999 (c. 8) (arrangements between NHS bodies and local authorities) in relation to the exercise of health related functions of a local authority, or
    2. (ii) persons who provide care for such person, but who are not employed to do so by any body in the exercise of its functions under any enactment;
  2. (b) as to at least a quarter of its membership, persons for whom services are being provided under the 1977 Act or in pursuance of arrangements under section 31 of the Health Act 1999 in relation to the exercise of health related functions of a local authority;
  3. 621
  4. (c) as to at least a quarter of membership, persons who provide care for such persons, but who are not employed to do so by any body in the exercise of its functions under any enactment; and
  5. (d) such other persons as may be prescribed."
The noble Earl said: My Lords, Amendment No. 50 seeks to probe the Government on their plans for the composition of patients forums. The key requirement for patients forums is that they should effectively represent the needs of the community that they are appointed to serve. To do that they must have credibility. That means that the public must have confidence in the members.

One feature of the Government's proposals that troubles me not a little is the selection process for who is to serve on patients forums. It has the look of a centrally directed fix. As I understand it, the Government's idea is that the selection should be entirely handled by the Commission for Patient and Public Involvement in Health with guidance from the NHS Appointments Commission.

The guidance from the NHS Appointments Commission, providing that it is simply guidance, is fair enough. But the procedure as a whole is neither clear nor transparent. It has all the makings of a system under which forum members can be parachuted in out of nowhere without anyone locally knowing who they are and what they stand for. That would not be good news.

There have also been suggestions that the commission may give preferential treatment to serving CHC members and officers. I am all in favour of retaining the services of those individuals whose experience and competence are of proven worth. However, it does not seem to me that CHC members, as such, should be guaranteed a fast-track route to membership of patients forums. We all acknowledge that while some CHCs have been extremely effective, others have been less so, which in the end must be a reflection on the calibre of their membership. If the public really is to have confidence that patients forums will provide something that is a cut above CHCs then the last thing that we should be doing, surely, is to encourage the perception that the appointments to patients forums are not being conducted fairly; that is to say, on the basis of a level playing field.

The Commission for Patient and Public Involvement in Health, like it or not, will be seen as a creature of the Secretary of State. Patients forums, like it or not, will be at risk of being seen—in one sense or another—as inside the NHS system because of their inevitable trust-based perspective. Patients forums must look independent and impartial. That means that the appointments procedure itself must look and be independent and impartial. The way they are going, the Government will not achieve that.

The proposals that we have debated for patients councils would address the concern in part, but we must be a bit more specific about the actual membership of patients forums. For example, no current employee of the trust or any other NHS organisation should be eligible for membership. No serving local or national politician should be eligible.

There should be no overt political bias, a point that was made in the Bristol report, which said that all regulatory systems, must be at one remove from party political debate. They must be seen to have a life and status of their own, free from changes in political fashion". The people who should be eligible for membership are those who, from the receiving end, have a stake in the success of the trust—in other words, those who have used its services or have had direct experience of it. That includes carers or close relatives of the service users and representatives of local voluntary organisations that act in the interests of patients and carers. Provided that they are fairly appointed—on merit—those people will command the confidence of everybody in the locality. My amendment suggests that there should be a split of membership categories that is prescriptive, but not a strait-jacket. It would, therefore, allow for flexibility.

In your Lordships' House, we are always wary of shopping lists. If my proposal is a shopping list, it is such only in a loose sense. I tabled the amendment in the hope that the Minister would reassure the House about some of the concerns that I voiced and explain in more detail what the ,Government had in mind as regards the appointments process for patients forums and the kind of people who would be eligible to serve on them. I beg to move.

Lord Clement-Jones

My Lords, I support the amendment moved by the noble Earl, Lord Howe. For patients forums to be properly effective and truly representative, they must include members from a wide variety of backgrounds.

In the past five years, we have debated many health Bills that specify proportions for the membership of many organisations, such as primary care groups and primary care trusts. In that respect, it is a modest amendment and will make sure that we get the balance right. It is extraordinary that a patients forum might have only one patient member.

These are modest and important proposals and could well be accepted by the Government. In general, it would be useful to hear from the Minister how he envisages that the patients forums will be made up.

Lord Hunt of Kings Heath

My Lords, I hope that I can reassure the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, about this matter. They are right to suggest that Clause 18(3) provides the minimum requirements. The detail is for regulations, and we wanted to retain flexibility in relation to membership and the ability to respond to changing circumstances. That is why we have not gone for the list system, as the noble Earl implied.

We will publish regulations, and our intention is that half the membership will be drawn from local patient carer groups and local voluntary organisations. The other half will be made up of a representative selection of patients who use or have used the services of the trust involved. To ensure independence, which is important, appointments will be made by the Commission for Patient and Public Involvement in Health, working with the NHS Appointments Commission. Thus, we will strike a balance between the voluntary sector, patients and carers and incorporate experience of the various strands of a patient journey.

I do not accept the specific point made by the noble Earl. The problem with CHCs has not been the calibre of member; in the main, their membership has been highly committed. The problem has been caused by what CHCs have been asked to do. That is why we have sought to split up some of those functions and put them into more focused organisations. I can assure the noble Earl that CHC members will have no prior claim as such in the appointment process, although their background of involvement in patient affairs will, no doubt, ensure that they will be duly considered.

Appointments will be through open competition. We expect advertisements to be placed in the local press, and the commission will be charged with ensuring that as many people as possible are aware that they are encouraged to put their names forward.

The noble Earl spoke about employees of the trust and politicians. I assume that he meant local councillors and Members of Parliament. I do not know whether he meant to go wider than that. I understand why he mentioned that matter, and we will address such issues in regulations. I hope that we do not reach a position in which the fact of being a politician would disqualify someone from membership of any body at all. We must get the balance right; the fact that people have put their name forward for political office is a mark of their public service. I would be wary of extending the principle. We could find that the declaration of any political affiliation whatsoever could somehow disqualify someone from public service.

Ultimately, however much we politicians may disagree on the Floor of the House, we must agree that involvement in politics is an essential part of public service that we should encourage. We will, of course, take account of the points raised by the noble Earl and the noble Lord, Lord Clement-Jones, when we consider the regulations.

Earl Howe

My Lords, I thank the Minister for that helpful reply, but I must respond to his final point about political affiliation. Certainly, I agree that political affiliation of any kind should not bar anyone from voluntary service in whatever form. However, we must be careful about serving politicians or local councillors who have the ability to create an overt political bias in an organisation. Patients forums should not be politicised in that way. That is the point that I was making.

The Government would do well to consider how to involve not just the patients of a particular trust but hard-to-reach groups that may not be registered with a GP. Such people have a legitimate interest in the local community and in the way in which local NHS facilities operate. We must not focus too much on the patient category. I agree that patients are an important component of the patients forums, but they should not be the only component.

The Minister's reply was helpful, and I shall read what he said carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones

moved Amendment No. 51: Page 24, line 11, after "Forum" insert ", a Patients' Council On Question, amendment agreed to.

Lord Clement-Jones

moved Amendment No. 52: Page 24, line 15, after "15" insert "and a Patients' Council established under section (Establishment of Patients' Councils) On Question, amendment agreed to.

[Amendment No. 52A not moved.]

6 p.m.

Clause 19 [The Commission for Patient and Public Involvement in Health]:

Lord Clement-Jones

moved Amendment No. 53: Page 24, line 21, after "Commission" insert "shall represent the interests in the health service of patients and the wider community and The noble Lord said: My Lords, I rise to move Amendment No. 53 and to speak to Amendments Nos. 85 to 90 in the group. The purpose of the amendments is to ensure that the new national commission is not limited in its functions and to enhance the independence of the commission.

Statutory bodies are only able to carry out activities and functions which are conferred on them by statute. They are powerless to extend their own remit. Any act they perform which is outside the limits placed on them in legislation will be ultra vires.

At present, community health councils and the Association of Community Health Councils are able to carry out a wide variety of activities because the enabling statute provides that each CHC is, to represent the interests in the health service of the public in its district; and … to perform such other functions as may be conferred on it by virtue of paragraph 2 below". That provision is contained in Schedule 7 to the 1977 Act. By the same token, statute also provides that ACHCEW, the Association of Community Health Councils for England and Wales, will, advise Councils [CHCs] with respect to the performance of their functions; and … to assist councils in the performance of their functions and to perform such other functions as may be prescribed". That is also contained in Schedule 7 to the 1977 Act.

Through being charged with advising and assisting CHCs, ACHCEW is thus able to benefit from the wide remit afforded to CHCs. If the clause remains unamended, the commission, for example, would be unable to carry out many of ACHCEW's current functions. Those include research and policy work, conducting casualty-type exercises; running or engaging in national campaigns or making donations to those campaigns; campaigning about national policy changes affecting the health service; commenting on guidance issued by bodies such as the GMC beyond those concerns which may fall within the remit of Clause 19(6); and taking legal proceedings. We on these Benches understand that such activities would be ultra vires.

If the Government are genuine in their desire to empower patients and the public, they will expand on the commission's remit. Although pressed several times in Committee, the Minister did not say whether the commission would be able to represent the interests of patients and the public in an independent way, as CHCs and ACHCEW do.

I am afraid that in Committee we pressed on a raw nerve of the Minister's by referring to the example of South Birmingham. A recent report by University College London, PFI vs Democracy—the case of Birmingham's hospitals, describes how the Department of Health tried to silence the South Birmingham CHC and suggests the independent challenging role as a possible reason for the decision to abolish CHCs. It is clear that without the amendment the Commission for Patient and Public Involvement could effectively be fettered. The essence of the amendment is to convert the commission to a powerful voice for patients, which also provides quality assurance for the patient and public involvement structures at local level.

The Government's intentions for the commission were revealed in response to the Bristol inquiry. They described its objectives only as to set standards and provide training and guidance and build capacity within local communities for greater community involvement—in other words, no patient voice role. The purpose of the amendment is to make explicit and put to the forefront the commission's function in a role of representing the interests of patients and the wider community.

Amendment No. 85 is designed to allow the commission to carry out its functions without interference from the Secretary of State; without directions being given by him. The purpose of Amendment No. 89 is to ensure that the Secretary of State will make payments to the commission and that those are adequate to allow the commission to carry out its many functions. The purpose of Amendment No. 88 is to allow the commission to appoint its first chief executive rather than the appointment being made by the Secretary of State for Health. Finally, the purpose of Amendment No. 90 is to prevent the Secretary of State for Health from being in a position to dictate to the commission how it may spend money given to it by the Secretary of State. I beg to move.

Earl Howe

My Lords, I give my emphatic support to the amendments, which again expose serious weaknesses in the powers of the commission. The empowerment of patients and the public—by which I mean genuine empowerment—entails making the national body as independent as possible of government and as free as possible to act in ways that will benefit those whom it is established to serve.

In Committee, the Minister said that he did not think it was appropriate for the commission to be given the wider power of representing the interests of patients and the public; that is to say, speaking up for them. He felt that that was more properly the job of Parliament. I find that a thin argument. Indeed, it is not a real argument at all. Parliament can indeed speak up for people but from where is it supposed to obtain its information? Surely, it must be from organisations which can speak out without fear or favour. Those organisations need the power to obtain the information and disseminate it appropriately and freely. I suggest that that is not usurping Parliament; it is supporting it.

I recall a comment made by the noble Lord, Lord Clement-Jones, in Committee that if the Government are not prepared to see the commission engaging in public debate, all we shall have is a "tame poodle". It will be a creature of the Government in all meaningful senses.

I turn briefly to Amendments Nos. 85 to 90, which are grouped with Amendment No. 53. We move to an equally important set of issues. The Commission for Patient and Public Involvement is supposed to be an independent body operating at arm's length from the Department of Health with the explicit job of assisting patients and others in a locality in having a say in decisions. That is how the Minister described it in Committee, but looking at Schedule 6 I cannot help observing that if the commission is at arm's length from anyone it is surely the patient and not the Department of Health.

The Secretary of State is being given direction-making powers. Why? He surely has enough powers over the commission when he is funding it and approving the business plan. For what purpose are directions needed? There is no equivalent power over the council for the regulation of healthcare professionals? Why does the Secretary of State have to be involved in the appointments process? Why have an independent appointments commission if the Secretary of State is going to make them?

In Committee, the Minister stressed the importance of preserving proper accountability to Parliament and cited that as a reason for the Secretary of State's powers of appointment to the commission and his powers to ensure that funds are applied for proper purposes. That is something of a smoke-screen. The Secretary of State has given himself more power over appointing the supposed national patient representative organisation than he has over the NHS itself. Why? Who is the commission supposed to be serving? Is it the patients or the Government? Why not give patients a sense of ownership of the body by allowing patients forums to nominate those who serve on them?

The claws of the Secretary of State have been sunk deep into the commission. It is a creature of government and will be perceived as such. Everything in Schedule 6 speaks of command and control and even at this late stage I hope that the Government will feel able to think again.

Lord Hunt of Kings Heath

My Lords, I am sorry that noble Lords believe that the commission will be a poodle and a creature of the Government. That is certainly not the intention of the Government. We see it as having a vitally important role in enabling people in the community generally to have a say and a view about matters that affect their health and to ensure that their views are taken into account when decisions are made that affect their health.

My noble friend Lord Harris is not in his place at present, but I recall that when we debated these issues during the passage of the previous Bill we discussed the need for there to be a national body which could help improve the quality of patient involvement at local level. I believe that the commission has a vital role to play in that as well as ensuring that the Secretary of State receives advice, as is indicated in Clause 19, on these important issues.

However, to state, as Amendment No. 53 does, that the commission has a much broader representative role is a great step away from what we want to see happen. I do not believe that the commission can be put in place to represent the interests of the entire community of this country on health issues. That is why I made the point in Committee that that is the role of Parliament. If noble Lords are saying that the commission should take on the huge role of representing the whole public interest in healthcare, then we would be giving it a task which it would be ill fitted to perform.

We want to see a commission that will actively seek out the varying views of people with an interest in health—I take the point raised by the noble Earl, Lord Howe, in the last group of amendments—in particular from those people in marginalised groups. We want it to take on a very important role in helping to train and support people to become involved so that they can take part in all the activities that will flow from the enactment of the Bill. Furthermore, we want it to have a major role in ensuring that patients forums themselves are effective. Clause 19(2)(f), which sets out the commission's role in setting quality standards in relation to patients forums and patient advocacy services, will be one of the most important of its functions.

Comments have been made that the commission is not sufficiently independent. The noble Earl, Lord Howe, referred in particular to the level of accountability and control held by the Secretary of State with regard to appointments to the commission. In Committee in the other place we went some way towards reinforcing the independence of the commission. The requirement in the Bill for the Secretary of State to give his consent to the appointment of the chief executive of the commission was removed, as was the ability of the Secretary of State to make directions about the appointment, terms and conditions of employment of the employees to the body.

Schedule 6 is based on standard guidance from the Cabinet Office and the Commissioner for Public Appointments on the setting up of executive non-departmental public bodies. Since the functions of the commission will be set out in statute, the Secretary of State has a responsibility to Parliament and, indeed, to the public to ensure that the commission is able to carry out those functions through its key appointments. The chair will need to account for the commission's actions to the Secretary of State, who in turn is accountable to Parliament for those actions. That provides Parliament with the tool for holding Ministers to account over the performance of non-departmental public bodies.

Amendment No. 86 would remove the ability of the Secretary of State to appoint the chair of the commission. I agree that it is important to ensure that the independence of the commission, as an independent body charged with ensuring the effective operation of public/patient involvement in health matters, is not only upheld but is seen to be upheld.

We have said already that the commission board members will be appointed by the NHS Appointments Commission. We have now reflected on the question of the appointment of the chair of the commission. I can tell noble Lords that the Government have decided that the chair, too, will now be appointed by the NHS Appointments Commission. That will go a long way towards meeting the issue of independence, while satisfying the Secretary of State that the probity and quality of the individual who takes the position as chair will be assured.

I turn now to the issue addressed in Amendment No. 88. The amendment would remove the power of the Secretary of State to determine the terms and conditions of the appointment of the first chief executive. The reason why the Bill has been drafted in this way is to enable the commission to get itself up and running as quickly as possible. We have followed the same principles in other new NHS non-departmental public bodies which have been established. After the first appointment, the responsibility for further appointments will become the responsibility of the commission. Indeed, we anticipate that, should the initial recruitment exercise for the chair be successful, then the chair designate would serve on the interview panels for the position of the first chief executive.

I urge noble Lords to consider the following. If the commission is to be successful and if we want it to be up and running in order to be able to carry out its functions, then the early appointment of a chief executive would be extremely helpful. That is the only reason why the provision here has been so drafted.

The amendment also suggests that appointments to the board should be elected and nominated by patients forums. Indeed, the effect of Amendment No. 87 would be to turn the commission into a patients forum representative body and limit competition to candidates known to patients forums. I should like to re-emphasise the point I made in Committee: the commission is not a representative organisation for patients forums. It goes much wider than that and it has much wider duties. It is for that reason that we need to be able to draw from a far wider pool of people in order to make the appointments.

Amendments Nos. 85, 89 and 90 concern the Secretary of State's direction-making powers over the commission. I understand why noble Lords may believe that a direction-making power might diminish the independence of the commission, but in a sense we must return to our debates yesterday. It is not envisaged that this direction-making power will be one that will come into play on a frequent basis. It is there as a backstop power, one which will enable the Secretary of State to ensure that the commission does not overstep its power to do things ancillary to its main functions.

As I have already pointed out in relation to the other measures concerning patient and public involvement that we are seeking to establish, it is in no one's interest for such organisations to—

Lord Peyton of Yeovil

My Lords, I am most grateful to the Minister. He has just mentioned a "backstop power". That is one of those phrases which always leaves behind frayed nerve endings. Obviously ht is very difficult for the occupants of the Government Front Bench to envisage the possibility of someone other than themselves—someone not as wise, not as patient, not as perceptive, not as sensitive—doing rough and stupid things. That is what worries noble Lords on this side of the House.

However. I have to tell the Minister that my confidence in him is far greater than any confidence I may have in his Secretary of State.

Lord Hunt of Kings Heath

My Lords, I shall pass on that.

A backstop power is surely the evidence of public accountability. If we were to take the arguments raised by noble Lords in relation to a number of national bodies—non—departmental public bodies-where they seek simply to make them independent, beyond parliamentary scrutiny and without any proper accountability to the Secretary of State, then I do not believe that we would be serving the interests of the nation. 1t is not right simply to park such bodies offshore and let them get on with it. There needs to be in place a proper framework of accountability and one needs to have some reserve powers.

However, of course these are reserve powers and it is our intention to ensure that the commission, alongside the other national bodies we have discussed, is very well able to discharge its responsibilities in an independent way. But we also need to have in place the proper forms of parliamentary accountability. I think that we have the balance right.

I hope that my announcement today that the appointment of the chair of the commission will not be made by the Secretary of State but by the NHS Appointments Commission will go a long way towards allaying the concerns that have been expressed.

Lord Clement-Jones

My Lords, I thank the Minister for that reply, which fell into two parts. He gave an extremely unconvincing response to Amendment No. 53; and evoked growing interest in his response to the other amendments. Certainly the Minister's undertaking in regard to Amendment No. 86—that the chair will be appointed by the NHS appointments commission—is very helpful, as also is his clarification in regard to Amendment No. 85. Pending further clarification, we shall not press Amendments Nos. 85 to 90 as the Minister has gone some way towards satisfying those of us who do not wish to see the commission as a tame poodle.

I should say to the noble Earl that my speeches in Committee are far better than they are on Report; they contain more colourful phrases. His "command and control" phrase was far superior to mine.

The Minister has gone some way but he continues to wriggle about the powers of the national commission. We do not wish to throw away the benefits that we have had from the ability of the Association of Community Health Councils to campaign on matters affecting patients. I read out a short list of matters on which ACHCEW currently is able to work—research and policy; conducting casualty watch type exercises; running or engaging in national campaigns or making donations to them; campaigning about national changes of policy affecting the health service; and commenting on guidance issued by bodies such as the GMC beyond those concerns. The Minister did not give me an ounce of satisfaction in that regard.

Many of us fear that the circumscribed role of the commission is entirely designed to ensure that ACHCEW is not reborn in another form. As we value its work, we believe that would be a retrograde step—hence the reason for wishing to insert these powers for the new commission in the Bill. I therefore wish not to withdraw the amendment but to test the opinion of the House on Amendment No. 53.

6.22 p.m.

On Question, Whether the said amendment (No. 53) shall be agreed to?

Their Lordships divided: Contents, 119; Not-Contents, 122.

Division No. 2
Addington, L. Buscombe, B.
Astor of Hever, L. Butterworth, L.
Attlee, E. Byford, B.
Avebury, L. Carlisle of Bucklow, L.
Baker of Dorking, L. Carnegy of Lour, B.
Bowness, L. Cavendish of Furness, L.
Bridgeman, V. Clement-Jones, L. [Teller]
Burnham, L. Colwyn, L.
Cope of Berkeley, L. [Teller] Montrose, D.
Cox, B. Moynihan, L.
Craig of Radley, L. Naseby, L.
Craigavon, V. Newby, L.
Crickhowell, L. Noakes, B.
Cumberlege, B. Northbrook, L.
Darcy de Knayth, B. Northesk, E.
Dean of Harptree, L. Northover, B.
Denham, L. Norton of Louth, L.
Elles, B. O'Cathain, B.
Elton, L. Oakeshott of Seagrove Bay, L.
Falkland, V. Onslow, E.
Fearn, L. Palmer, L.
Ferrers, E. Park of Monmouth, B.
Finlay of Llandaff, B. Patten, L.
Flather, B. Pearson of Rannoch, L.
Geraint, L. Peel, E.
Glenarthur, L. Perry of Walton, L.
Goodhart, L. Peyton of Yeovil, L.
Goschen, V. Pilkington of Oxenford, L.
Greenway, L. Razzall, L.
Griffiths of Fforestfach, L. Rees, L.
Hamwee, B. Rennard, L.
Henley, L. Roberts of Conwy, L.
Hogg, B. Roper, L.
Holderness, L. Rotherwick, L.
Howe, E. Sandberg, L.
Howell of Guildford, L. Scott of Needham Market, B.
Hurd of Westwell, L. Seccombe, B.
Hylton, L. Selsdon, L.
Jacobs, L. Sharman, L.
James of Holland Park, B. Sharp of Guildford,B.
Sharples, B.
Jenkin of Roding, L. Shrewsbury, E.
Jenkins of Hillhead, L. Shutt of Greetland, L.
Jopling, L.
Kimball, L. Smith of Clifton, L.
Knight of Collingtree, B. Soulsby of Swaffham Prior, L.
Laird, L. Stevens of Ludgate, L.
Linklater of Butterstone, B. Stodart of Leaston, L.
Livsey of Talgarth, L. Stoddart of Swindon, L.
Lucas, L. Taylor of Warwick, L.
Lyell, L. Tebbit, L.
McColl of Dulwich, L. Thomas of Gwydir, L.
McNally, L. Thomas of Walliswood, B.
Tugendhat, L.
Maddock, B. Waddington, L.
Mancroft, L. Wade of Chorlton, L.
Mar and Kellie, E. Wallace of Saltaire, L.
Methuen, L. Walmsley, B.
Michie of Gallanach, B. Walpole, L.
Miller of Chilthorne Domer, B. Wilcox, B.
Monson, L. Williams of Crosby, B.
Acton, L Clinton-Davis, L.
Ahmed, L. Corbett of Castle Vale, L.
Alli, L. Crawley, B.
Andrews, B. David, B.
Ashton of Upholland, B. Davies of Coity, L.
Bach, L. Davies of Oldham, L.
Barnett, L. Dean of Thornton-le-Fylde, B.
Bassam of Brighton, L. Desai, L.
Berkeley, L. Dixon, L.
Bernstein of Craigweil, L. Donoughue, L.
Bhatia, L. Dormand of Easington, L.
Blackstone, B. Dubs, L.
Blease, L. Elder, L.
Brennan, L. Evans of Parkside, L.
Brooke of Alverthorpe, L. Evans of Temple Guiting, L.
Brookman, L. Evans of Watford, L.
Burlison, L. Falconer of Thoroton, L.
Campbell-Savours, L. Farrington of Ribbleton, B.
Carter, L. [Teller] Faulkner of Worcester, L.
Chandos, V. Filkin, L.
Clarke of Hampstead, L. Gale, B.
Gibson of Market Rasen, B. Mason of Barnsley, L.
Gilbert, L. Massey of Darwen, B.
Gladwin of Clee, L. Merlyn-Rees, L.
Golding, B. Milner of Leeds, L.
Gordon of Strathblane, L. Mitchell, L.
Goudie, B. Morris of Aberavon, L.
Gould of Potternewton, B. Nicol, B.
Graham of Edmonton, L. Parekh, L.
Greengross, B. Patel of Blackburn, L.
Grocott, L. Pendry, L.
Hardy of Wath, L. Pitkeathley, B.
Harrison, L. Plant of Highfield, L.
Haskel, L. Prys-Davies, L.
Haskins, L. Puttnam, L.
Hilton of Eggardon, B. Radice, L.
Hogg of Cumbernauld, L. Ramsay of Cartvale, B.
Hollis of Heigham, B. Rendell of Babergh, B.
Howells of St. Davids, B. Richard, L.
Howie of Troon, L. Rooker, L.
Hughes of Woodside, L. Sainsbury of Turville, L.
Hunt of Chesterton, L. Sawyer, L.
Hunt of Kings Heath, L. Scotland of Asthal, B.
Irvine of Lairg, L. (Lord Chancellor) Sheldon, L.
Simon, V.
Jay of Paddington, B. Taylor of Blackburn, L.
Jones, L. Temple-Morris, L.
Judd, L. Thornton, B.
King of West Bromwich, L. Tomlinson, L.
Kirkhill, L. Turnberg, L.
Layard, L. Turner of Camden, B.
Lea of Crondall, L. Walker of Doncaster, L.
Levy, L. Warwick of Undercliffe, B.
Lipsey, L. Wedderburn of Charlton, L.
Lofthouse of Pontefract, L. Whitaker, B.
Whitty, L.
Macdonald of Tradeston, L. Wilkins, B.
Mclntosh of Haringey, L. [Teller] Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Mclntosh of Hudnall, B.
MacKenzie of Culkein, L. Williamson of Horton, L.
Mackenzie of Framwellgate, L. Wilson of Tillyorn, L.
Marsh, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.32 p.m.

Lord Clement-Jones

moved Amendment No. 54: Page 24, line 34, after "Forums" insert "and Patients' Councils On Question, amendment agreed to.

[Amendment No. 55 not moved.]

Lord Clement-Jones

moved Amendments Nos. 56 to 58: Page 24, line 43, leave out paragraph (g) and insert— ( ) co-ordinating and supporting the activities of Patients' Councils in respect of their activities as provided for in section (Establishment of Patients' Councils), Page 25, line 6, at end insert "and to co-ordinate and support the activities of Patients' Councils in respect of the activities provided for in subsection (4)(d) of section (Establishment of Patients' Councils) Page 25, line 27, at end insert— ( ) The Commission will provide to Patients' Councils services, including staff and other facilities, to support those bodies in the exercise of their functions. On Question, amendments agreed to.

[Amendment No. 58A not moved.]

Clause 20 [Abolition of Community Health Councils in England]:

[Amendment No. 58B not moved.]

Earl Howe

moved Amendment No. 59: After Clause 20, insert the following new clause—

"REFERRAL OF CONSULTATION ARRANGEMENTS AND DISPUTED DECISIONS (1) In section 11(2) of the Health and Social Care Act 2001 (c. 15) (public involvement and consultation) for paragraph (a) there is substituted— (a) The Secretary of State, (aa) Care Trusts,". (2) Before an establishment order for a Strategic Health Authority, an NHS trust, a Primary Care Trust or a Care Trust is made, varied or revoked, the Secretary of State shall consult those bodies in subsection (5) whose districts are wholly or partly within the area of operation of the relevant authority or trust. (3) Any Strategic Health Authority considering whether to exercise its powers under section 17A of the 1977 Act shall first consult the bodies provided for in subsection (5) whose districts are wholly or partly within the area of operation of the relevant Primary Care Trust. (4) The Secretary of State shall by regulations make provision—

  1. (a) concerning the application of section 11 of the Health and Social Care Act 2001 such that if in the view of any of the bodies in subsection (5) consultation arrangements are inadequate, the body in question shall refer the matter t) him;
  2. (b) for the referral to Strategic Health Authorities of disputed decisions concerning the operation or planning of health services by bodies detailed in subsection (5);
  3. (c) for circumstances in which bodies detailed in subsection
  4. (5) shall refer decisions concerning the planning or operation of the health service to him including the circumstances in which referrals shall be made directly to him by Patients' Forums and Patients' Councils on the failure of overview and scrutiny committees to respond to a referral made to them under section 18(2)(m) of this Act;
  5. (d) placing a duty on the Secretary of State and those bodies receiving referrals to respond to them within a specified time limit and giving reasons for any decision taken in relation to the subject matter of the referral.
(5) Those bodies referred to in subsections (2) to (4) are—
  1. (a) overview and scrutiny committees or joint overview and scrutiny committees provided for in sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001,
  2. (b) Patients' Councils,
  3. (c) Patients' Forums."
The noble Earl said: My Lords, this amendment brings us back to an important set of issues debated in Committee about replicating the rights currently enjoyed by CHCs to be consulted on any proposals that would lead to a major change in the provision of healthcare in an area. The amendment also covers the separate but associated issue of replicating the right of a CHC to notify a matter to the Secretary of State when it feels that a consultation has been inadequate.

As the Bill is drafted, major or controversial changes to service provision, which up to now would have necessitated an automatic consultation with a CHC, need not trigger a similar consultation with the successor bodies. That is a major gap that needs to be Filled. In Committee it was suggested that existing and planned provisions to require consultation negated the need for the amendment. However, as I understand the position, the existing provisions relate to the requirement to consult CHCs about substantial changes and the power of CHCs to refer matters to the Secretary of State. With the abolition of CHCs, those safeguards will disappear.

The amendment addresses a number of distinct issues that are not currently provided for in existing legislation or in the Bill. They include gaps in the duty to consult on reorganisations of health bodies, the limited extent of duties to consult under Section II of the Health and Social Care Act 2001 and failing in the power or duty to refer. At present, CHCs have the right to be consulted before the establishment of most health service bodies, including health authorities, NHS trusts and primary care trusts, and before changes are made to the way in which some of those bodies operate. Most of those consultation rights are to be found in a wide raft of complex and at times confusing secondary legislation. The same rights are not conferred in relation to changes to all health service bodies. For example, CHCs have the right to be consulted before the establishment, dissolution or change of functions of art NHS trust or primary care trust, but when it comes to health authorities, CHCs will be consulted only on boundary changes, not on changes in their functions. Because of the obscurity of the provisions concerning consultation on primary care and pharmaceutical services, many health authorities have not consulted CHCs on proposed changes.

The existing provisions governing consultation over the establishment of care trusts are inadequate. Patient representatives do not have a right to he consulted. The partners seeking care trust status will carry out the consultation with bodies or persons that they choose to consult. There will be a strong temptation not to consult those who may oppose the application. The body that makes the decision on care trust designation will not necessarily have access to the results of that consultation. The regulations do not make provision for consultation over subsequent changes to the functions or boundaries of the care trust.

Where CHCs have a right to be consulted, it is important that that right is replicated to ensure that successor bodies are consulted. The right to he consulted will not automatically be transferred to another body, as I read it; it has to be done through legislative provision. Where there is at present no right to be consulted over establishment or changes in function, that right needs to be created.

Similarly, the duty to consult detailed in Section 11 of the Health and Social Care Act 2001 does not go .far enough and contains a number of important gaps. Care trusts are omitted from the list of bodies required to consult. The extent and nature of the duty to consult in Section 11 is vague. Health bodies may seek to fulfil that duty by setting up a focus group and consulting only that group. For that reason, it is important that the bodies that should be consulted are detailed.

Although the Government have said that they are reluctant to prescribe who should be consulted, if the legislation does not do so, all consulting organisations could find themselves challenged by a range of bodies that consider that they had a legitimate expectation of being consulted.

The Government have already conceded that further legislation is required to provide overview and scrutiny committees with a power to refer inadequate consultations and disputed decisions. No proposals have been produced on how or when that is to be achieved. The amendment would remedy that gap in the allocation of responsibility to overview and scrutiny committees to make referrals.

At present there is no legislative mechanism for the referral under Section 11 of consultation exercises that are inadequate or are not conducted at all. That is a major omission, as CHCs are currently under a duty to report inadequate consultations to the Secretary of State. I believe we need to replicate the requirement that inadequate consultations be reported to and investigated by a body or person with the power to order the body in question to consult properly.

Parliament is being asked to accept the abolition of CHCs, and the safeguards that go with them, without any clarity over exactly how the new provisions would work. That, in my submission, is not acceptable. The amendment rectifies that. I beg to move.

Lord Filkin

My Lords, I hope to demonstrate that effective arrangements are already in place for the type of consultations described by the noble Earl, Lord Howe, and that the proposed new clause would, therefore, over-complicate the process.

Subsection (1) of the new clause seeks to include the Secretary of State and care trusts in the list of bodies that should involve and consult the public and their representatives. First, as we have discussed in previous stages, it is not necessary to include care trusts since PCTs and NHS trusts are already listed, and care trusts will only be either PCTs or NHS trusts and are therefore already included. Care trusts will already be covered by the references to PCTs and to NHS trusts.

Secondly, with regard to the Secretary of State, a consequence of shifting the balance of power to the front-line is that responsibility for the planning, development and delivery of services is now with the front-line. We believe that it would be rather inconsistent to place a duty on the Secretary of State when that duty already exists for the local bodies who will be making those decisions and are responsible for the services. Indeed, the local bodies' relationship with local people should enable them to carry out the involvement and consultation activity. Section 11 of the Health and Social Care Act 2001 already places a duty on NHS bodies, including strategic health authorities, to consult on services for which they are responsible. Including the Secretary of State under this duty makes only a cosmetic difference, not a real one.

Subsection (2) of the new clause deals with the Secretary of State consulting bodies representing local patients on the establishment orders of NHS bodies.

As noble Lords will know, we have already amended the Bill to cover the consultation of relevant bodies on the establishment orders of strategic health authorities. Subsection (3), which places a duty on strategic health authorities to consult before directing PCTs to undertake their statutory duties, surely gives rise to consultation overload. We therefore believe that that provision is unnecessary.

Subsection (4) relates to the issues of referral to the Secretary of State in the context of consultation with overview and scrutiny committees and the health services. My ministerial colleagues have made it clear that we wish to have an effective and comprehensive framework for referral by overview and scrutiny committees to the Secretary of State on matters of concern which are being consulted upon and on the nature of the consultation itself. This framework is important for ensuring that those democratically elected representatives of local communities can, if they so wish, represent the views of their local communities to the national level. We are considering how best to provide for this within the framework of Section 7 of the Health and Social Care Act.

Subsection (4) is helpful in enabling us to think through what is actually required to ensure that the referral arrangements for overview and scrutiny committees are effective. We are confident that we shall be able to guarantee that a secure referral mechanism exists within our provisions. We are very sympathetic to the need to carry out proper and effective consultation and to ensure that disputed decisions are properly dealt with by democratically elected representatives of local people. However, this new clause seems to us to overcomplicate the Bill with unnecessary detail which is provided for elsewhere. We have made the necessary provisions in this Bill and in the Health and Social Care Act—for example, in Section 11—to ensure that the views, concerns and interests of patients and the public at large are fed into local decisions about the planning and development of the NHS.

We recognise that this new clause attempts to clarify and rationalise the consultation arrangements. However, we do not think that it is necessary, and it goes into too much detail and muddles up Sections 7 and 11 of the Health and Social Care Act. Sections 7 and 11 provide for rigorous and comprehensive consultation activity, and, under the regulations for Section 7, will set out the specific detail in respect of consultation of overview and scrutiny committees. For those reasons, we think the amendment should be resisted.

Earl Howe

My Lords, I thank the Minister for his detailed reply, and particularly for providing more detail than he was able to give in Committee. There was much in the reply and I shall need to read it. On first hearing, however, it was very helpful. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 60 not moved.]

6.45 p.m.

Lord Clement-Jones

moved Amendment No. 61: After Clause 21, insert the following new clause—

"LOW VISION COMMITTEE (1) It is the duty of—

  1. (a) each local authority in England and Wales; and
  2. (b) each Primary Care Trust in England and local health board in Wales,
jointly to establish and support a Low Vision Committee for the area for which the Primary Care Trust or local health board is established for the purposes of co-ordinating multi-disciplinary low vision services for persons with low vision. (2) Every Low Vision Committee shall—
  1. (a) identify and log local providers of low vision services and gaps in local provision;
  2. (b) determine ways in which services can be developed to meet local needs;
  3. (c) advise commissioning authorities on priorities and the budgetary implications involved;
  4. (d) develop a user-involvement strategy;
  5. (e) ensure that in hospital eye departments an individual is identified as a point of contact for people who are diagnosed as having a visual impairment;
  6. (f) establish mechanisms for inter-agency referral and information exchange between different service providers to ensure a seamless service;
  7. (g) ensure that services are audited appropriately;
  8. (h) ensure that information about the services is promoted to the community; and
  9. (i) consider provision of low vision services for children, older people, people with learning difficulties, people from ethnic groups and people with multiple impairments such as deafblindness.
(3) The appropriate authority may by regulations make further provision in relation to Low Vision Committees. (4) The regulations may in particular make provision as to—
  1. (a) the composition of a Low Vision Committee and how members are to be appointed;
  2. (b) the funding of Low Vision Committees;
  3. (c) the payment of travelling and other allowances to members of a Low Vision Committee; and
  4. (d) other functions of Low Vision Committees.
(5) In this section— low vision services" relate to rehabilitative or habilitative processes which provide a range of services for persons with low vision to enable them to make use of their eyesight to achieve maximum potential and include assessing the person's visual function and providing aids and training, addressing psychological and emotional needs:, and facilitating modification to the home, school and work environments, persons with low vision" and "persons with a visual impairment" mean those persons who have an impairment of visual function for whom full remediation is not possible by conventional spectacles, contact lenses or medical intervention and which causes restriction in those persons' everyday life. deafblindness" and "dual sensory impairment" mean a combined sight and hearing impairment which causes difficulties with communication, access to information and mobility, the appropriate authority" means—
  1. (a) the Secretary of State in relation to England, and
  2. (b) The National Assembly for Wales in relation to Wales."

The noble Lord said: My Lords, this amendment is very similar to the one on low vision committees that I moved in Committee. I have moved the provision again in an attempt to see whether the Minister might reconsider some of the matters he described in Committee. In Committee, the Minister said: My view is that it would be inappropriate now to impose a requirement for primary care trusts and local authorities effectively to establish statutory low vision services committees. I think that it would make sense to allow the project to continue and for an evaluation of the committees' impact on service provision to be carried out by the implemental ion group at the end of that 18-month period ... I assure noble Lords that the department will continue to take a close interest in the progress of the implementation project. I take the view that legislation is not the appropriate route down which we should go, but I hope I have reassured noble Lords that we take a keen interest. I accept that having made progress in the past two or three years, more progress needs to be made".—[Official Report, 21/03/02; col. 1521.]

Those were very welcome words. However, having considered the Minister's words, we on these Benches contend that it does not make sense for the Department of Health to sit back and watt for 18 months. The department needs to take action now. The need is urgent as statutory authorities in many parts of the country are failing people with sight problems, resulting, for example, in 200 accidents in the home every week caused by sight problems which people are not being properly supported in managing. Moreover, many of the low vision services committees need stronger support from statutory authorities now so that they can successfully negotiate the changes in commissioning entailed by the restructuring of health services that we have been debating in relation to this Bill.

Other spheres have seen major injections of public investment, sometimes as part of a national service framework, but low vision has apparently been deemed a low priority and left to the voluntary sector to sort out. Visually impaired people are dismayed at how little support they feel the Government are giving in tackling the lottery in specialist health and social care services.

We suggest that the Department of Health should issue positive guidance now to social services and PCTs in England—to give active support and encouragement to the establishment of local low vision committees; to consult them where appropriate; and to take their recommendations into account in planning, deciding priorities and budgeting. Such guidance could also reaffirm the importance of the national low vision framework and the standards and processes set out in it for meeting existing statutory responsibilities for clinical and rehabilitation services in a cost-effective manner. It could also highlight how local authorities and PCTs can collaborate across boundaries to address unmet needs.

The key message is that now is precisely the time for the Government to give such a steer, while there is a funded implementation officer to support authorities in this regard. I beg to move.

Earl Howe

My Lords, I rise very briefly to support Amendment No. 61. My understanding is that there are currently only 24 low vision committees, many of which have been established since the implementation group was formed, and many of which are or have been supported by the low vision services implementation officer. Whether they flourish depends on the commitment of local players, especially the statutory commissioning authorities. Whether they become a feature of every local community is effectively being left to chance. Without statutory provision or guidance for low vision committees, services risk remaining extremely patchy and uncoordinated. I for one am very worried about that.

Lord Filkin

My Lords, the noble Lord, Lord Clement-Jones, referred to the importance of having good eye care services and of doing all that is reasonably practicable to remedy deficiencies. The Government strongly agree with those comments and support them. The Government's action in restoring the free NHS eye test for all those aged 60 and over at a cost of £50 million a year shows the priority that we attach to the eye care of older people. That group is most vulnerable to eye disease and stands to benefit most from regular eye examinations. In 1999–2000 there were more than 2 million extra NHS sight tests following the extension of eligibility for free tests.

We are also taking steps to improve cataract services and have allocated an extra £20 million over two years to fund the capital costs of 60 schemes to improve treatment facilities and reduce waiting times. We believe that this investment will considerably improve the standard of eye care and greatly improve the quality of lives, particularly of older people.

However, there are many people, particularly older people with visual impairment, whose conditions are not treatable. Those patients are deserving of support, as the noble Lord, Lord Clement-Jones, indicated. We all recognise the work that voluntary organisations such as the RNIB, Guide Dogs and The Partially Sighted Society do to improve our understanding of the needs of people with visual handicaps.

Amendment No. 61 would require each PCT in England or local health board in Wales and each local authority in both countries jointly to establish a low vision committee for the area for which that PCT or local health board was established.

A report in 1999 by a consensus group of organisations on the future of low vision services recommended the establishment of local vision committees for the purpose of ensuring that services in the UK are provided in accordance with the report's recommendations.

The Secretary of State for Health commended the report to the NHS and social services, which is what I believe the noble Lord, Lord Clement-Jones, wished to hear. I am also pleased that the department is contributing a grant of £120,000 over three years to provide an implementation officer from the voluntary sector to help in setting up local committees. I understand that good progress is being made and that, as the noble Earl, Lord Howe, said, 24 committees had been set up by the start of this year and a number of others are under consideration.

The implementation project is set to run for another 18 months. As we indicated previously, the Government think that it would be inappropriate now to impose a requirement for PCTs and local authorities to establish jointly low vision service committees. Those committees are intended as a means of bringing about more effective collaboration between agencies and so improve low vision services. I believe that it will make sense to allow the project to continue and for an evaluation of the committees' impact on service provision to be carried out by the implementation group.

It may be possible to have a good multidisciplinary low vision service without a formal committee. In some areas the PCT may not always cover the area that is sensible in terms of linking and providing low vision services and other models may emerge. Also, under the present arrangements, the committee is not in the ownership of one body and that emphasises joint working which may be important for the successful functioning of the committee.

The department will continue to monitor the progress of the implementation project through participation in the implementation group and the six monthly reports it receives. However, we take the view that it would be inadvisable to legislate for a system which has not yet been evaluated. Indeed, as noble Lords recognise, low vision committees have already been established without the need for legislation. Therefore, in that sense, it is superfluous. Also, for the present there would seem to be considerable advantage in retaining flexibility around the organisation of the committees rather than defining it in the way proposed.

In Wales it is believed that the issues the proposers seek to address are being met informally through the Wales eye care initiative, part of which is the Wales low vision aids scheme. Therefore, we believe that there is no need to impose a statutory requirement to establish low vision committees.

To conclude, if one sees it in the round, PCTs will clearly have the responsibility to improve health outcomes in their areas of which those who are suffering from low vision will form an important part. Low vision committees are one way—they may be a good way—of doing that, but they are not necessarily the only way and they are not necessarily a universal way. The Government believe that they should promote and support PCTs to address low vision rather than specifying the particular mechanism advanced through this amendment.

Lord Clement-Jones

My Lords, I thank the Minister for giving way. I well understand the Minister's argument about the need for flexibility. That is desirable. The purpose of the amendment was to tease out from the Minister whether it might be possible for guidance to be given in the period of 18 months before the funding is no longer available for the implementation officer.

Lord Filkin

My Lords, clearly, when sufficient time has been allowed to make a sober and sound assessment of the effectiveness of low vision committees, the Government will be in a position to act in that way if they feel it appropriate. However, I do not think that we are in that position at this time which is why we believe that the useful experiment should continue and be properly evaluated.

Lord Clement-Jones

My Lords, I thank the Minister for that reply. I believe that there is a germ of satisfaction in there in so far as the Minister seemed to say that, without commitment, the resource could be made available at the end of the implementation period.

Lord Filkin

My Lords, I do not recollect mentioning resources.

Lord Clement-Jones

My Lords, I do not think that the Minister could have said that at the end of the 18 months period there would be an ability to issue guidance or to recommend a way forward unless there were the resources to back that. It would be rather negative to issue guidance without the resources to support it. Perhaps I am reading too much into the Minister's words. Perhaps it is perfectly usual for departments to issue guidance without any resources to support it.

Lord Filkin

My Lords, I am afraid that that has often been known to happen on the part of governments of all parties.

Lord Clement-Jones

My Lords, I am afraid that the Minister issues me with even more of a dud cheque than I thought he had in the first place. I shall take what satisfaction I can from what he had to say. It is a little unfortunate that, despite the arguments about flexibility, we are in a sense in a phase where certain approaches are being explored. Low vision committees are being set up and evaluated. However, the statutory authorities are not in every case being as "come hit her" or as pro-active as they might be. That is the key concern of those in the voluntary sector who support the amendment. Even if the Minister cannot be more positive at this stage, perhaps he will take away the proposition that some guidance or some further encouragement to the statutory sector might be appropriate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 [The Council for the Regulation of Health Care Professionals]:

Baroness Northover

moved Amendment No. 62: Page 29, line 17, leave out subsection (1) and insert— (1) The bodies referred to in subsection (3) shall in each year submit a report to any joint select committee appointed by the House of Commons and House of Lords to perform the functions prescribed in this Part ("health joint select committee" ). The noble Baroness said: My Lords, in moving Amendment No. 62, I wish to speak also to Amendments Nos. 63 to 65 and 67 to 72. We are now moving on to consideration of the regulation of the medical professions. This is a major area in the Bill. It is here that we have the proposal of a lay dominated overarching committee with in effect control over the health professions. That is a change which should be made after full consideration of what we are doing, why and whether that is the best way to proceed.

When we considered this matter in Committee, we started at 10.45 p.m. on Thursday 11th April and we concluded our session at 12 minutes past midnight on Friday 12th April. That is not a recipe for careful and considered appraisal of what is a major change in the accountability and arrangements which have been in place for the health professions in some cases for well over a century and a half. I hope that we shall be better placed today to do this subject justice. We are again at the tail end of the Bill as before, but the hour is not quite so late.

The medical profession was the first to professionalise, with others following later. Self-regulation has always been part of that. There are pros and cons to that and I have no problem whatever with the notion that at the beginning of the 21st century we should reappraise that. Professor Kennedy's report on Bristol and his proposals for linking the professions have acted as a catalyst for that and must be seriously addressed. I welcome the fact that the various professions have played a full part in such discussions. Co-ordinating standards, spreading good practice and monitoring performance, as suggested by him, are all worthwhile objectives. It is clearly also vital that the various health professions should be more accountable and more transparent as well as better co-ordinated.

The Kennedy report proposed that an overarching council should report directly both to the Department of Health and to Parliament and should have a broadly-based membership, including representatives of the health professions of the NHS and the general public. It is now up to us to assess whether, with this blueprint, the Government have now come forward with a sensible proposal.

As I mentioned previously, there is a danger that the Government are proposing a quango to second-guess what the regulatory bodies are doing without the depth of knowledge and experience that they have. We are in serious danger of bogging down this council in looking at endless complaints against the profession by jaundiced patients even if the council then rules the complaints not worthy of further consideration.

However, we agree that in addition to co-ordination and a spread of good practice the time has come for greater accountability of the professions to the public and for there to be greater transparency. In that respect we agree with the Government although, conspicuously, the Minister trod very gently around the subject in Committee.

It is not enough for the Minister to argue, as he did in Committee, that Select Committees can call the various regulators before them. We need a more systematic way of ensuring accountability on a regular basis and not simply when things go wrong. We retain serious doubts about making the health profession accountable to yet another quango. The Government's proposal does not make each of the professions answerable to Parliament. As the noble Earl, Lord Howe, said, all is done at one remove via the council. Such accountability should surely be by the shortest route and enable each regulatory body to be cross-examined.

Therefore, we propose that those bodies which regulate the health professions should be accountable directly to Parliament. We propose that the health bodies should report each year to a Joint Select Committee appointed by the House of Commons and House of Lords. They should report in public and that is where they should answer and be scrutinised.

The Minister said that the Government have no power to request the establishment of such a committee. I thank him for the letter he sent me on the matter which unfortunately arrived after the deadline for amendments. However, he had made clear his views in Committee. I submitted the amendments, therefore, in the knowledge of where he stood. The Minister said that he can have no view on the idea of a Select Committee as he cannot dictate what Parliament does or does not do. That is true enough. But, as he knows, that is not the whole story. After all, the Government could bring forward such a proposal to be debated in both Houses which could decide to set up such a Joint Select Committee. Select Committees are set up through the usual channels. We all know what the usual channels are and they do not exist in isolation from the political parties or government. A "usual channel" is sitting on the Front Bench. I served on a Select Committee on stem cell research.

Lord Carter

My Lords, by definition the usual channels are not defined.

Baroness Northover

My Lords, I shall now not see the noble Lord sitting there!

The proposal that the Select Committee on stem cell research should be established was put forward by the noble Lord, Lord Walton of Detchant, and agreed by this House—no doubt not by any "usual channels". The Select Committee was set up. There are ways of doing things. In many ways, what I am laying down is the principle of the kind of arrangement that we should like to see: an arrangement which allows for the direct accountability of the regulatory bodies to Parliament for their open scrutiny. That is the principle; and that is why we continue to argue the case for it.

We have in the new document, Delivering the NHS Plan, which the Minister must heartily wish had been issued after rather than before the debates on the Bill—

Lord Hunt of Kings Heath

My Lords, I must respond to that. I am delighted that the plan was issued. I believe that it has informed our debates. As we have seen with the decision about the appointment of a chair to the national patient and public involvement commission, we have been able to move the agenda on in the light of that reform.

Baroness Northover

My Lords, I thank the Minister. It has informed our debates. It has been most encouraging to see all the skittles falling as we come to Report stage. I am pleased to see that annual reports to Parliament from bodies are mentioned in the new document. It also refers to high national standards and clear accountability, so perhaps we are moving in the same direction.

In Committee, the Minister said that a balance must always be held between professional self regulation, parliamentary accountability and the public interest. I agree. However, I argue that we achieve that more effectively through our proposals than through the proposed council. I beg to move.

7 p.m.

Lord Hunt of Kings Heath

My Lords, the amendments turn on the accountability to Parliament of professional regulatory bodies. In so doing, they would do away with our proposed new council for the regulation of healthcare professionals and propose that many of the functions that we intended for the council should be given to a health Joint Select Committee if Parliament should decide to establish such a committee.

Following the interesting comments of the noble Baroness, perhaps I may take this opportunity to spell out how the accountability regulations would work under the Bill. The council will be accountable to Parliament. Schedule 7 to the Bill obliges it to lay a report before Parliament each year. It is explicitly stated within that schedule that it must also provide Parliament with a special report on any matter which Parliament asks it to. It must also lay its accounts before Parliament.

The noble Baroness raised the issue of direct accountability of individual regulatory bodies. Those bodies themselves have long been accountable to Parliament in the sense that Parliament can ask them to provide evidence, for example, to departmental Select Committees. It has done so on a number of occasions in the past few years. The Bill changes none of that. Regulatory bodies will, I am sure, in their individual capacity, continue to be called before Select Committees and the Government very much welcome that.

The Bill provides Parliament with some assistance in the work of the new council. Reports from the council will allow Parliament to see more readily how the world of regulation is developing, what is going well and, if necessary, what is going less well and requires closer scrutiny.

The amendments are somewhat unusual. Amendments Nos. 71 and 72 seem to turn the tables. In effect, as drafted the amendments provide that the Secretary of State could ask Parliament for advice and Parliament would be obliged to comply, which is an unusual turn of events. Of course, we want proper account ability to Parliament. There is no question but that the new body will have the responsibility of reporting. Parliament must then decide how it will wish to call in such a body. We already have Select Committees. If Parliament decided to create new Select Committees the commission could be called in to give evidence. However, as I have said on a number of occasions, it is not for the Government in the form of a Bill to dictate to Parliament how it should discharge its responsibilities.

Baroness Northover

My Lords, I thank the Minister for that reply. It is clear that debate on the issue is now well and truly opened. Matters are already moving along. I am encouraged by what the Minister has said and implied although I shall study the precise details. In some ways, it is nice to be moving unusual amendments among the 72 other amendments. However, I beg leave to withdraw my unusual amendment.

Amendment, by leave, withdrawn.

[Amendment No. 63 not moved.]

Clause 24 [Powers and duties of the Council: general]:

[Amendments Nos. 64 and 65 not moved.]

Earl Howe

moved Amendment No. 66: Page 30, line 27, at end insert— ( ) No recommendation made under subsection (2)(c) may include a recommendation to amend an ethical code of practice that has been formally approved by a regulatory body. The noble Earl said: My Lords, in Committee we debated extensively the functions and the role of the proposed new council for the regulation of health care professionals. In those debates I made clear my support for the concept of such a body, but I also outlined my concerns, which are shared by senior members of the profession, that the way in which the council sets about its business will be critical if the integrity and the ethos of each profession is to be maintained.

"Integrity" and "ethos" are difficult concepts to pin down. However, we can speak of them meaningfully. I believe that the essence of a profession is that it is a body of men and women who determine what constitute proper standards of practice, training and ethical behaviour. That is not to say that there is no other group of people who have a legitimate interest in such decision making. On the contrary, the GMC recognises the value of informed lay opinion, as evidenced by its decision to increase the percentage of lay members on its governing council. But, as the Minister recognises, there is a sensitivity in these matters.

When we look at the role of the new council, I do not believe that there is any disagreement or difficulty about what I understand to be its principal remit: it is there to make the professional regulators better at what they do. As the Minister put it previously, it is there to provide the "energy for improvement". One example given by the Minister was that we should imagine that the regulators were invited to pool their experience on using the findings of overseas regulatory bodies, so that those bodies with the best systems could spread best practice among the rest. The Minister also spoke of the council as encouraging the regulatory bodies to conform with the principles of good professional self-regulation.

None of the latter presents me with any difficulty, but there is a line beyond which it would be mistaken and wrong for the council to tread. If there is one element of a profession that is fundamental to it, it is surely its ethical code of practice, in medicine, the document Good Medical Practice is now some six years old; well established in the United Kingdom, and internationally acclaimed. In a real sense, its precepts define the way in which the profession sees itself. I would be very concerned if the council were to take it upon itself to make a recommendation to a regulatory body that proposed a change to its ethical standards of practice. Indeed, I would go as far as to say that a lay-dominated council would have no standing on issues of that nature. I should be most grateful if the Minister could enlighten us on the issue, and provide some reassurance. I beg to move.

Baroness Carnegy of Lour

My Lords, I support my noble friend's amendment. In Committee, I said that the concept of this council alarmed me. I am not as sanguine on this matter as my noble friend, but I believe that the professions are somewhat naïve in assuming that the council does not have seeds within it that could endanger our democracy. I believe that free professions regulating themselves are basic to a democracy.

My noble friend has found a way to improve the Government's proposals I am sure he is right to say that the ethical standards of a profession and the way that it sees itself are basic to what makes a profession. I should be happy if the Government were to accept this amendment. Indeed, I suspect that a number of people who are not necessarily in the profession but who think about what makes a democracy safe would also be happy. Perhaps the Government will consider accepting my noble friend's proposal.

7.15 p.m.

Lord Hunt of Kings Heath

My Lords, the noble Earl raised a very interesting question in Committee. I have studied carefully the codes of ethical practices. I trust that I can reassure him on the matter. I must draw a distinction between the power of the council to make recommendations to the regulatory bodies and the power of council to issue directions subject to the parliamentary processes that we agreed, and amended, in Committee.

I must make it absolutely clear that the council does not have the power to compel a regulatory body to accept any changes that it recommends. The council can make directions only in relation to rules that require Privy Council approval. I can assure the House that that does not include professional standards and ethics. Primary legislation does not provide for regulatory bodies to set ethical standards by rules subject to Privy Council approval. However, there may be circumstances where it is appropriate for the council to make recommendations to the different regulatory bodies. That would occur mainly in an effort to encourage greater consistency across the professions, and would go with the grain of the work already taking place within a number of the regulatory bodies.

I am aware that the regulatory bodies have been working together on a statement of common principles for healthcare professionals. The council could, for example, encourage the regulatory bodies to implement that work where it believed that a cross-professional approach would be beneficial. I looked through the code of ethical practice for doctors and found many instances therein that I am sure could apply to the other professions.

I hope that I can reassure the noble Earl that there is a valuable role for the council to play in recommending to regulatory bodies a cross-professional approach to codes of ethics. However, the council could not issue a power of direction to the regulatory bodies.

Earl Howe

My Lords, the Minister has given a most helpful reply. I thank the noble Lord for writing to me about the powers of direction, and also for confirming the contents of his letter. I understand the position; indeed, that is a very important statement and one that will reassure many people. I take on board what the Minister said about the power to recommend a change in the standards of practice of a regulatory body so as to encourage greater consistency across the professions as a whole. I do not believe that to be a controversial suggestion in itself; it implies that the profession would still have the ability to examine such a proposal on its merits. However, my worries would increase if the council took it upon itself to go into greater detail, or to go rather further in that respect and be more specific about a change to a particular code of practice. Nevertheless, we have had a useful debate. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 to 72 not moved.]

Clause 25 [Regulatory bodies and the Council]:

Earl Howe

moved Amendment No. 73: Page 32, line I, leave out subsections (2) to (15). The noble Earl said: My Lords, I raised concerns in Committee over the powers of direction being conferred on the council for the regulation of healthcare professions. Government amendments to the Bill have created some welcome safeguards as regards the use of those powers. The affirmative resolution procedure in Parliament will ensure that any direction from the council will receive close scrutiny and debate in both Houses; in other words, proper parliamentary accountability.

Like my noble friend Lady Carnegy of Lour, I have deep reservations about granting any powers of direction to a lay-dominated organisation. I believe that that would fundamentally undermine the concept of professional self-regulation. The council will be controlled by political appointees and unelected lay people, who may have no experience of the health professions or of their conduct committees. That is an inherently unsettling prospect. However, I must acknowledge that the regulatory bodies have declared themselves satisfied with the safeguards, so I do not propose to take issue with them.

I would, however, like to raise some concerns relating to the scope of the powers. When one reads the Bill, it is very hard, prior to the establishment of the council, to forecast when and in what circumstances the power of direction will be exercised. I say again, as I said in Committee, that there are no real limits laid down in relation to the sorts of issues on which the powers can be deployed, or how often that can be done, other than the qualifications that are set out in subsection (2). It would not be a healthy state of affairs if directions were issued on a frequent basis. In fact, I hope that it will never be necessary for the council to assert its will against the wishes of a regulator, because that would mean that normal constructive dialogue had reached an impasse.

The sort of situation that I worry about is where there has been, let us say, a story in the newspapers—or perhaps a succession of different stories—involving doctors who have in some way or other acted controversially. One thinks of the Bristol Royal Infirmary or even Dr Shipman, but some other situation could be involved. A head of steam would build up in such cases in the tabloid press. The GMC, let us imagine, invokes its disciplinary procedures and reaches a conclusion with which the press does not agree. The press would whip up criticism of the GMC. The council for the regulation of healthcare professionals would try unsuccessfully to persuade the GMC to revise some aspect of its procedures. It would end up issuing a direction. The direction would go to Parliament. We might say that the verdict of Parliament should be taken as final. If the orders are approved, there should in theory be no more argument. Except that even Parliament is capable of jumping the wrong way in the face of media pressure. One thinks of several pieces of primary legislation that were passed on the back of some temporary frenzy and which, with hindsight, were not wise. One can only hope that the professional regulators will never be put in the position of having to comply with directions that are essentially populist and ill-informed.

The Minister was kind enough to write to me, as I mentioned earlier, with answers to some of the questions that I raised in Committee. One of the points that I raised was about the words, "must comply", which appear in Clause 25(11). I asked whether they should stay in the Bill. It seems to me that once a resolution has been passed by both Houses of Parliament there is an automatic duty to comply with it because it is the law of the land. I should be grateful if the Minister would set out the reasons for the position that he has taken in this regard—I confess to not fully understanding it. I beg to move.

Baroness Finlay of Llandaff

My Lords, I rise to speak in support of the amendment and Amendment No. 74, which is grouped with it.

The Minister's response to the noble Earl, Lord Howe, in relation to Amendment No. 66 in some ways allayed some of my concerns, but not fully. I shall not reiterate the arguments that have already been advanced by the noble Earl.

Subsections (11) and (12) caused me concern. They appear to be counter to the spirit of collaboration and co-operation that was so starkly called for in Professor Kennedy's report. No one should forget that it was a doctor who, against great pressure to the contrary, blew the whistle and exposed the children's cardiac surgery services in Bristol.

A health professions regulator would be ill-advised to ignore willy-nilly a direction coming from the council and would face stringent sanctions for so doing. However, there may be a situation, as the noble Earl, Lord Howe, outlined, in which a single regulator feels morally and ethically bound to refuse to toe the line. It is the ability of a professional body to speak out that safeguards patient autonomy. I shall explain and expand on that a little.

Some clinical decisions are extremely complex—so complex that they are ill understood by people outside the specialty and that specific clinical situation. They demand an in-depth understanding of the subject and may, in the interests of a patient or a group of patients, be counter to the vested professional interests of other healthcare professionals. The council is being established o try to avoid clashes of interest, to build teams and to foster collaboration. However, at the end of the day, any one profession must be able to stand up to the considered, competent opinion of its constituent members.

It is, as has been outlined, the regulatory bodies that make the rules and regulations about professional standards and ethics that enable an individual to be registered for that profession. It is the regulatory bodies that can suspend or strike off a professional from the body's register, ending the person's work in an instant.

If the professions are not respected and not trusted to consider and act responsibly, the council seems to be able, at the end of the day, to subsume the very nature of a professional approach on behalf of patients. Make no mistake, my Lords—I am not arguing for entrenched conservatism and vested interests; quite the opposite. The lone voice of one profession may be the best safeguard for the vulnerable patient, who may be weakened by disease and effectively disenfranchised by debility or infirmity. If the provisions remain in the Bill, how will a regulatory body respond to a direction that it feels is unethical or jeopardises patients?

Lord Hunt of Kings Heath

My Lords, I say at once that I agree with the noble Baroness and the noble Earl, Lord Howe, that this is a very sensitive issue and that we need to get the balance right between the integrity of the individual regulatory bodies, the professions and the wider public interest. Kennedy was absolutely clear that the council should have powers to ensure that it is able to carry out its functions effectively. He said: We believe that the council should have statutory powers to require the various bodies to act in the interests of patients and conform to the principles of good regulation". That is the foundation on which we bring this part of the Bill before your Lordships' House.

I very much agree with the noble Earl, Lord Howe, in hoping that the direction never has to be used. We all hope that the new arrangements will operate on the basis of sensible discussion and agreement. I am sure that in most cases it will do so. However, we believe—this is based on the original analysis of Kennedy—that the council has to have the ability to issue a direction only in those cases in which the Privy Council is involved in the rule-making. The amendments to which we agreed in Committee were extremely significant in ensuring that such a direction could be issued only through an affirmative vote in both Houses.

As the noble Earl, Lord Howe, generously acknowledged, we had intense discussions with the regulatory bodies over several months. They clearly stated that they are satisfied that we have now got the balance right.

I suspect that the noble Baroness, Lady Finlay, asked a rhetorical question about a disagreement between the regulatory body and the council. The strict interpretation of the position is that if a regulatory body refused to comply with a direction, which would have been endorsed by Parliament, it would be open to the council to seek, by way of judicial review, an appropriate declaration or order from the courts. That is what would happen in the event of such a disagreement.

On the question of the noble Earl, Lord Howe, I have inquired into the reason why the wording needs to be as it is. That goes back to the fact that the direction would be issued not by a Minister but by the council. An affirmative order, having progressed through both Houses of Parliament. would do no more than to set the date for the coming into force of the direction. Clearly, the direction's wording would be available to both Houses and would be the subject of debate. However, the resolution would relate to the date of coming into force of the direction. There would be nothing in the order that would require the directions to be complied with. That is why we need in the Bill a positive obligation on regulatory bodies to comply.

7.30 p.m.

Earl Howe

My Lords, I thank the Minister for his reply. He has just made a very nice legal point and, of course, I suppose that what he says is strictly correct. However, I should have thought that for Parliament to set the date on which directions come into force would be nothing more nor less than Parliament giving those directions legal force from that date. But clearly that is not so.

Nevertheless, I do not propose to argue from a basis of ignorance what is clearly a nice legal point. The Minister does not speak from a basis of ignorance. He has been very helpful generally on this amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 74 not moved.]

Clause 26 [Complaints about regulatory bodies]:

Baroness Noakes

moved Amendment No. 75: Page 33, line 9, leave out paragraph (a). The noble Baroness said: My Lords, in moving Amendment No. 75, I shall speak also to Amendments Nos. 76 to 82, which stand in my name in this group.

These amendments concern Clause 26, which allows the Secretary of State to make regulations in respect of the council for the regulation of healthcare professionals, setting up a complaints scheme in relation to the regulatory bodies. The regulation-making power in Clause 26(1) is wide, and subsection (2) sets out a number of areas which regulations under these powers could cover.

The noble Baroness, Lady Finlay, will speak in a moment to her Amendment No. 83, which seeks to leave out Clause 26. These powers are very extensive and there are legitimate questions about whether the council should be involved in complaints at all. Amendments Nos. 75 to 82, however, take the basic scheme as read but probe the particular nature of the regulation-making powers.

Amendment No. 75 seeks to take out paragraph (a), which allows the Secretary of State to prescribe who is entitled to complain. I find that extraordinary. The implication is that certain persons or types of person will not be allowed to complain. I struggle to think of any complaints scheme that rules out certain complaints because of their source.

Paragraph (b) allows the Secretary of State to say that certain types of complaint must be ignored. Under paragraph (c) he can say what is excluded from investigation. Under paragraph (d) he can set out requirements that complainants must follow. Under paragraph (e) he can tell the council what procedure it should follow in investigating complaints. Under paragraph (i) he can even decide about making payments for investigations.

Perhaps of most significance in Clause 26(2) is paragraph (g), which gives the Secretary of State power to decide about the confidentiality of information acquired during an investigation. That could clash with the ethical guidance from one of the regulatory bodies.

Amendments Nos. 75 to 81 are probing amendments, either deleting or amending the paragraphs to which I have referred. Why does the Secretary of State need to take these powers? Why cannot the matters be left to the council? The Government are setting up the council for the regulation of healthcare professionals with carefully constructed membership. So why do the Government need to micro-manage the complaints procedure by specifying in the finest detail the "who", "what" and "how" of complaints investigation? That is why Amendment No. 82 seeks to introduce a new subsection in Clause 26 stating that the council should adopt such procedures as it thinks fit. I beg to move.

Baroness Finlay of Llandaff

My Lords, I wish to speak to Amendment No. 83, which goes slightly further than the amendments to which the noble Baroness, Lady Noakes, has already spoken.

Clause 26 examines complaints about regulatory bodies. Currently each regulatory body has a complaints procedure and receives complaints not only about the decisions that it makes but also about the way that it makes those decisions. For example, in the year 2000, the GMC received 4,470 complaints against doctors on its register. An additional 125 complaints were re-opened from the preceding years. Explicit standards are set for the timing of the screening and investigation of proceedings in relation to the handling of complaints. The figures relating to physiotherapists are very different but provide a useful contrast. In the same year, the Chartered Society of Physiotherapy received 37 complaints.

The problem for aggrieved relatives and patients is that they may feel very angry and seek revenge or redress. Certainly, for those who are bereaved that is very understandable. Sadly, errors of judgment occur and will continue to occur whenever the assessment of risk, however well thought through, balances the probabilities for and against a management strategy and gets it wrong in clinical care. Hindsight is a marvellous tool: if only we had such a perfect ability to predict what will happen.

Those who feel angry and bitter will often feel deeply unhappy if the professional has not been struck off, however inappropriate that might be. They will complain against the relevant body. Their letter may outline perceived irregularities in the process, although their complaint really concerns the outcome of the process. Looking back at the complaints which were brought forward in the year 2000, one could estimate that in approximately 10 per cent of cases dissatisfaction would be expressed about the process by those who brought the complaints. However, that is almost always resolved when the procedure is clarified.

If such complaints went to a body other than the regulator, such as the council, their investigation would become very time-consuming and burdensome and certainly extremely expensive. The process would need to be adequately resourced and would require trained staff. When one considers the figures in relation to the GMC and the physiotherapists, one is possibly talking about almost 500 complaints in one year. The process will certainly require extensive investigation.

An alternative to this clause would be to extend the Health Service Commissioner's role to include the health regulators. The current remit of the commissioner covers NHS providers. However, the skills and procedures have been established and the remit could possibly be widened. It would have the advantage for the person bringing the complaint of being an external, completely neutral process, far removed from any regulators. It would avoid any potential conflict of interest for the council in relation to its role in co-ordinating the different regulators, and it would ensure consistency in standards.

It would also ensure that the complainants were able to go to a completely independent body, and it would avoid the perception of professions sticking together or closing ranks—an allegation which at present is often brought against professions by those who complain. It is in that spirit that my amendment proposes that the clause should be deleted and the whole complaints procedure re-thought.

Lord Hunt of Kings Heath

My Lords, I am glad to respond to a number of points that have been raised in relation to this group of amendments. I make it clear that Clause 26 is modelled on the powers which the ombudsmen have today. The regulatory bodies are not subject to any of the ombudsmen and, as they are not government bodies, it would not be right for that to be the case. But we look to regulators, as they reform themselves, to create effective ways of handling complaints. These provisions ensure that, only if it were necessary, the new council would be able to underpin that by taking its own action.

I was interested to hear the statistics that the noble Baroness, Lady Finlay, quoted concerning the number of complaints being heard by the GMC. There is no doubt that there has been a problem with a backlog of those complaints. We also have experience of complainants being left with very little idea of what is going on. While some delays have been unavoidable, they have often continued unexplained.

Therefore, a complaints system of the kind envisaged by the Bill would give members of the public an opportunity to press for an explanation in such situations. We envisage that it would cover such problems as advice which is misleading or inadequate, the refusal to answer reasonable questions, and avoidable delays. This is an area where the regulatory bodies, not just in health but also in other areas, have not always come up to scratch in creating a credible complaints system in which the public believe.

Amendment No. 83 would render such a complaints system toothless, but if we were to accept Amendments Nos. 75 to 81, in effect we would be saying that in relation to some areas of substantial importance the council should decide, rather than leaving such matters to regulations that Parliament can scrutinise. It is worth making the point that as part of the delicate balance, under this clause regulations would be brought to Parliament under the affirmative resolution procedure. Ironically, the amendment, in seeking to take away some of the headings in the clause, would provide for less effective parliamentary scrutiny. I understand where the noble Baroness is coming from, but the affirmative resolution procedure is part of the balance we are trying to achieve between the individual regulatory bodies and the council itself.

The noble Baroness asks me why we would want to specify in regulations who is entitled to complain and with what kind of complaints the council should deal. It is important not to open the gates to complaints by every person whose complaint against a practitioner is rejected by a regulator. I remember my noble friend Lord Turnberg warning against a system that simply provides an opportunity for every complaint, where the complainant is dissatisfied, automatically to come to the council.

We do not want to leave the council unable to filter the complaints it receives. However, we may want to be able to require the council to consider certain types of complaints. Amendments Nos. 78 and 79 deal with the procedures to be followed by those making a complaint and by the council in its investigation. It is proper to make regulations for those points. Parliament should have an opportunity to decide what aspects of procedure should be for the council and what should be for the regulations.

Amendment No. 80 seeks to exclude the Secretary of State from making regulations about confidentiality or disclosure of any information supplied to the council or acquired by it in connection with an investigation. Amendment No. 81 seeks to exclude the Secretary of State from making regulations about payments in relation to investigations.

We believe that it is more appropriate to have regulations that Parliament can scrutinise under the affirmative resolution procedure. The point that the noble Baroness, Lady Noakes, made about sensitive issues around confidentiality and ensuring value for money from payments suggests to me that they are better scrutinised by Parliament.

Overall, I recognise the points raised by both noble Baronesses and I recognise that there is a considerable amount of detail in Clause 26. At the end of the day, it leads to a proper balance between the individual role of regulated bodies, the role of the council and the role of Parliament in scrutinising this part of the Bill. Any complaints system that is appropriate, proportionate and sensible will be enhanced by greater parliamentary scrutiny.

Baroness Noakes

My Lords, I thank the Minister for his reply. He has portrayed a balance being struck between the council and Parliament. While there is the affirmative procedure, the Secretary of State in the first instance will decide what is to be done, after which Parliament will have a say. I am not entirely convinced that that is the right approach to this difficult and sensitive issue, particularly in relation to confidentiality. I shall reflect further on what the Minister said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 76 to 83 not moved.]

7.45 p.m.

Baroness Finlay of Llandaff

moved Amendment No. 84: After Clause 34, insert the following new clause— "SUMMARY OF THE EFFECTS OF THIS ACT IN RELATION TO WALES

The effects of this Act in relation to Wales are set out in Schedule 7A. The noble Baroness said: My Lords, in moving Amendment No. 84 I shall speak also to Amendment No. 93. This Bill covers England and Wales and many of the clauses concerning Wales are enabling clauses for the National Assembly for Wales. It is difficult to disaggregate the English and Welsh components in the Bill and even the contents page at the front of the Bill is not very helpful. My amendments do nothing at all to alter the law itself; they simply make the interpretation of the paperwork easier.

If we are to have openness in the legislative processes and procedures it is important that any student of law, healthcare, healthcare management or an interested member of the public can track the changes as they go from Parliament through to the National Assembly for Wales. In the future students of law may be pleased to have a table that allows them simply to track various parts of the Bill and match them up to legislation that passes through the National Assembly for Wales.

In Schedule 9 there is a table relating to legislation amended by this Bill and the table that I have proposed in Amendment No. 93 mirrors that in layout. I hope it will be equally helpful. It seeks to clarify for Wales what is pertinent to Wales. I hope that these amendments will allow for the documentation of the history of healthcare services as they evolve in Wales under the direction of the National Assembly for Wales. I beg to move.

Baroness Farrington of Ribbleton

My Lords, I am extremely grateful to the noble Baroness, Lady Finlay, for raising this important issue. I can happily give her my assurance that a summary of the effects of the Act in relation to Wales will be included within the accompanying Explanatory Notes. Since 2000 the Government have produced Explanatory Notes to accompany new Acts.

The laudable aim of Amendments Nos. 84 and 93 is to provide a clear indication of those sections of the Act that will have effect in Wales but, as the noble Baroness recognised, they have no legislative effect. Therefore, under normal parliamentary practice it would be inappropriate to include them on the face of the Bill. The schedule is informative of new law made or existing law changed by the Bill. Therefore, it is more appropriate for inclusion in the Explanatory Notes.

We accept the reasoning behind the amendment but believe that the insertion of such a new clause and schedule is not the most appropriate way to meet the wishes that lie behind these two amendments. Of course, we shall provide information within the Explanatory Notes.

For the record—this is an example of why it is less appropriate to include such a provision on the face of the Bill—the reference to Section 8 is incorrect and the amendment made by Clause 2 of the Bill to Section 16A of the 1977 Act unfortunately has the effect of repealing the PCT legislation in Wales. It is quite difficult to achieve what the noble Baroness seeks on the face of the legislation. However, we fully accept the points that lie behind her amendments and I am hopeful that she will recognise that we have met her concerns in full.

Baroness Finlay of Llandaff

My Lords, I am extremely grateful and absolutely delighted to have that reassurance from the noble Baroness, Lady Farrington. I fully understand why the table that I have outlined will be more helpful in the Explanatory Notes. I am delighted and I thank the Ministers for having considered and for having incorporated the spirit of my amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 85 to 90 not moved.]

Baroness Northover

moved Amendment No. 91: Page 88, line 34, leave out "regulatory body" and insert "of the regulatory bodies referred to in section 23(3)(a) to (h)(i), and three members appointed by the regulatory body referred to in section 23(h)(ii) or the successor regulatory body (within the meaning of Schedule 3 to the Health Act 1999 (c. 8)) to the Council for Professions Supplementary to Medicine (the Health Professions Council) established by order in Council under section 60 of that Act The noble Baroness said: My Lords, I moved a similar amendment in Committee, arguing that historical accident had dictated to the balance of numbers representing the different professions on the council. The Minister in effect acknowledged that that was the case and agreed that it was a minefield. I fully accept the difficulty, but I point out that not all the regulatory bodies are happy with the resolution, which may well lead to problems down the track.

My solution is to expand a part of the council, but I fully recognise the difficulties that the Minister faces. I simply seek a reassurance that the matter will be kept under review. I beg to move.

Earl Howe

My Lords, I shall speak to Amendment No. 92, which addresses the sensitive issue of the majority of votes on the council. Two groups of people will serve on the council: one will be appointees of the regulatory bodies; the other will be lay individuals appointed by Ministers or one of the regional assemblies. The Bill provides that the latter group should have an automatic, in-built majority. I wonder about that.

Under my amendment, neither of the two groups would be able to form a majority. The key to the smooth working and effectiveness of the council will be consensus. All members of the council will need to work together and do their best to speak with one voice. If neither group had more members than the other, that would be conducive to giving all members of the council an added impetus to reach unanimity. I confess that I do not understand why there needs to be an a priori provision in the Bill for the balance of votes.

Lord Hunt of Kings Heath

My Lords, in response to the noble Baroness, Lady Northover, I said that representation on the council was a minefield. Having been involved in discussion with many of the regulatory bodies not only over this matter but over the Section 60 orders that we debated—we shall have several more to debate during the next few months—I know that these are delicate issues. Although I accept that some professional bodies will not be satisfied with the proposed position, in the main most of them accept the need for a bit of give and take. We all accept that there are some historical accidents and anomalies between the sizes of different professions and their number of seats. I readily acknowledge that. But in the interests of getting progress, movement and co-ordination, most regulatory bodies accept that there will be discrepancies in the membership of each council.

While I am happy to say that we will keep the matter under review, I must caution against re-opening the issue We could upset many apple carts. Generally, the regulatory bodies accept that what we propose is the appropriate way to proceed.

On the issue of the balance of the council raised by the noble Earl, Lord Howe, we probably have it right. The council's function is to promote the interests of patients and other members of the public. In that light, it is appropriate for there to be a slight majority of lay people on the council—balanced, of course, by the professional majority on the regulatory bodies, which is the essence of professional self-regulation. We have reached the ideal balance, as it were, by giving representatives of the public a slight majority on the council balanced by the professional majority on each of the individual regulatory bodies.

On appointees, we have moved on considerably since our earlier debates. The independent NHS Appointments Commission has shown itself to be robustly independent in the year or so that it has been in existence. There is no doubt that the kind of person that we want to serve on the body, who can speak up for the public, will be robust. I am sure that the council will be an extremely interesting one on which to serve and that we shall not have a shortage of good calibre people putting their names forward. At the end of the day, my case rests on the balance between the regulatory hoard on the one hand and the council on the other. That is why I resist the amendment tabled by the noble Earl, Lord Howe.

Baroness Northover

My Lords, I thank the Minister for that reply. I fully understand the problem of drawing up numbers for particular councils. I am reassured by what he said about keeping the matter under review. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 92 and 93 not moved.]

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