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Session 2002 - 03
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Standing Committee Debates
Community Care (Delayed Discharges etc.) Bill

Community Care (Delayed Discharges etc.) Bill

Standing Committee D

Thursday 12 December 2002


[Mr. John McWilliam in the Chair]

Community Care

(Delayed Discharges etc.) Bill

Clause 6

Dispute resolution

8.55 am

Mr. Simon Burns (West Chelmsford): I beg to move amendment No. 6, in

    clause 6, page 4, line 41, leave out 'may' and insert 'shall'.

The Chairman: With this it will be convenient to discuss: Amendment No. 19, in

    clause 6, page 4, line 41, after 'Authority', insert 'and local authority'.

Amendment No. 38, in

    clause 6, page 4, line 41, after 'Authority', insert 'and Social Services Authority'.

Amendment No. 20, in

    clause 6, page 4, line 42, after 'Board', insert 'and local authority'.

Amendment No. 39, in

    clause 6, page 4, line 42, after 'Wales', insert 'jointly'.

Amendment No. 118, in

    clause 6, page 4, line 42, after 'Wales', insert 'in agreement with their local authority counterparts'.

Amendment No. 18, in

    clause 6, page 4, line 42, leave out 'a' and insert 'an independent'.

Amendment No. 21, in

    clause 6, page 5, line 3, leave out 'a panel' and insert 'an independent panel comprised, in equal proportions, of representatives from a Strategic Health Authority and from a local authority, with a wholly independent chairperson'.

Amendment No. 22, in

    clause 6, page 5, line 4, leave out 'a' and insert 'an independent'.

Amendment No. 23, in

    clause 6, page 5, line 5, after 'which', insert 'independent'.

Amendment No. 77, in

    clause 6, page 5, line 8, leave out subsection (3) and insert—

    '(3) Any NHS body or social services authority shall be prohibited from bringing legal proceedings against another such body in relation to a dispute under this Part before such steps have been taken in relation to a panel established by virtue of this section.'.

Amendment No. 53, in

    clause 6, page 5, line 13,at end add—

    '(5) Each independent panel shall publish annually the cost of dispute resolutions.'.

Mr. Burns: The amendments deal with dispute resolution. One could claim that clauses 6 and 7 highlight our argument that the Bill will cause problems in developing relationships between local authorities, social services departments and the national health service. The Government have recognised that, and have established a dispute

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resolution to sort out the problems that may arise under the Bill. As everybody knows—except, possibly, the Minister—the Bill will introduce a system of fines for local authorities.

Mr. Paul Burstow (Sutton and Cheam): The hon. Gentleman makes an important point that, on everybody else's understanding, we are talking about fines. Has he noted that even the Secretary of State, in answer to questions yesterday, talked of fines?

Mr. Burns: I am extremely grateful to the hon. Gentleman. He has anticipated a point that I was going to make. He was probably as perplexed as I was when the Secretary of State directly contradicted and undercut his own Minister in his statement in the House yesterday by saying that fines would be imposed under the Bill. It will be interesting to see whether the Minister can explain why she has, in effect, been wrapped over the knuckles for getting it wrong and seeking to mislead the Committee through the spin that she has put on the Bill. The Secretary of State has let the cat out of the bag—there will be fines, as Opposition Members have been arguing since the Bill's publication.

Dr. Phyllis Starkey (Milton Keynes, South-West): Will the hon. Gentleman give way?

Mr. Burns: Yes.

Dr. Starkey: I thank the hon. Gentleman—

The Chairman: Order. I have not called the hon. Lady. Before I do, I remind the Committee that we are not dealing with clause 6. We are dealing with a group of amendments, and should stick to those.

Dr. Starkey: I hope that my intervention will be in the spirit of your remarks, Mr. McWilliam. The hon. Gentleman is making a great play of the issue of fines. Is he against fines per se, or does he think that they are perfectly reasonable in some circumstances?

The Chairman: Order. I hope that the hon. Gentleman will not go down that line; it is way wide of the amendments.

Mr. Burns: As always, Mr. McWilliam, you are absolutely right. I was not going to be tempted by the hon. Lady's intervention, although I would be more than happy to give her my views outside the Committee, which would be a more appropriate setting.

The amendments deal with the Government's proposal to establish dispute resolution panels under the auspices of strategic health authorities. That is curious because the proposed dispute procedure will ensure that the NHS acts as judge and jury in disputes that arise from the Bill. I am sorry that the hon. Member for Feltham and Heston (Alan Keen) is not here. He is the chairman of the all-party group on football, and the proposed procedure can be compared to the draw for a football match, except that one team will be allowed to decide who will win before anyone has even kicked the ball.

The Chairman: Order. I have been thinking about the amendments. They cover the whole clause, so I shall treat this as a clause stand part debate.

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Mr. Burns: Thank you, Mr. McWilliam. That will assist us greatly.

Most people who have read the Bill—except, I suspect, the Minister—will find it odd that the health service alone should be responsible for setting up panels. We strongly argue in the amendments that it should be put on an equal footing with local authorities. If panels are to consider disputes, the system should be seen not only to be working but to be fair. There will be doubts, however, among those who think that strategic health authorities have a vested interest in protecting NHS interests at the expense of local authorities. I hope that the Minister accepts that that is a dangerous road to go down.

If panels are to deal with disputes, people must feel confident that their dispute will be studied in an unbiased way, but the way in which the Government plan to set up the panels will not give that impression. That could lead to horrendous problems, and some people will feel that a panel has reached a view that does not coincide with their own simply because the NHS is protecting itself. That may not be the case, but it will be the perception among those who feel that a panel has come to the wrong decision.

Amendment No. 21 deals with the constitution of panels. It makes it clear that they must be independently comprised, with equal proportions of representatives from the health service and local authorities, and with a totally independent chairperson. Amendment No. 53 would introduce new subsection (5), which would add a requirement that each independent panel should

    ''publish annually the cost of dispute resolutions.''

We have to read the explanatory notes to get a better idea of how the Government envisage the panels working. We come again to the problem that has bedevilled the Bill, because much of the detail of how the panels will work will be set out in regulations, which we have not seen. In some ways, we are operating in the dark, because we have not seen the small print, which will set out exactly what the Government intend. The explanatory notes give us a clue. They say that

    ''The panel's role is advisory and its recommendations are not formally binding, although it is hoped that the recommendations will be accepted in most cases.''

That clears up part of the problem for organisations such as Help the Aged and Age Concern, which have been asking whether panels' recommendations will be binding or advisory. However, it does not clarify the purpose of the panels.

It seems odd that a panel's rulings will be advisory rather than binding and calls into question the validity of the procedures. What will happen if people do not accept their recommendations? Even though the panel's role is advisory, many will feel that the system is skewed in favour of the health service, and that the position of local authorities is undermined. I do not say that that will be so, but it will be the perceived view, particularly of those who are not satisfied with the advice or recommendations of a panel. I hope that the Minister will accept that what looks like an inherently unfair system of providing

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help in disputes could undermine the concept. I trust that she will be prepared to think again and make the panels more fair by giving local authorities an equal say in their establishment, so that they are genuinely independent.

Mrs. Patsy Calton (Cheadle): I am beginning to worry because, increasingly, I find myself wanting to support amendments tabled by the Conservative party. I never thought that it would come to that; it is a novel experience.

It would be difficult to come up with a Bill that was more likely than this one to create antagonism between local authorities and health authorities. Amendments Nos. 6, 19, 38, 20 and 39 require the disputes panel to be a partnership between the health authority and the local authority. Together with amendment No. 118, and in the spirit of partnership, they would enable disputes to be settled through agreement with local authority counterparts, as an alternative to the lopsided situation in which strategic health authorities with an axe to grind have the ability to set up a panel—said to be advisory—that can dictate the outcome. That will necessarily lead to legal action.

Ms Meg Munn (Sheffield, Heeley): Opposition Members are making a meal of this. The idea is that an independent panel will consider disputes. Who appoints it is subject to regulation, which will include safeguards to ensure that it is not one-sided. There are many other similar circumstances—all that is needed is a simple, straightforward, effective appointments process.

Mrs. Calton: I thank the hon. Lady for her intervention, but ''independent'' is not used in the Bill and would have to be inserted by amendment. In fact, the point of many of the amendments is to ensure the independence of the panel, so that it will not be as one-sided as the Government seem to want it to be. The disputes panels are supposed to resolve issues between two public bodies, but strategic health authorities are charged with establishing them. It is a given that disputes are likely arise about fines, rather than about patients, who seem to have been rather forgotten about.

The Bill proposes a remarkably lopsided process. How can the body responsible for fining set up an independent panel? A recent case in the European Court of Human Rights, Salesi v. Italy (2001), makes it clear that statutory arrangements for the establishment of quasi-judicial administrative panels may breach article 6 of the European convention, unless they are independent of those whose decisions they review and compliant with the rules of natural justice. It is, therefore, important to ensure that the panel resolving the disputes is not unduly influenced one way or the other by financial considerations when reaching a decision.

It is manifestly unfair that the health service, which will be levying fines on local government under this legislation, should have sole responsibility for creating and maintaining disputes panels, as currently envisaged in clause 6. We are prepared to accept that the adjudications of those panels should be binding on all parties. I join the hon. Member for West

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Chelmsford (Mr. Burns) in asking the Minister to explain what is meant by ''not formally binding''. Either something is binding or not. I am unsure what difference the word ''formally'' makes. At all costs, we must avoid endless legal proceedings that completely miss the point as far as the patient is concerned. The clause envisages the prospect of legal proceedings against local councils. What will happen to the patient in the meantime? That is hardly a recipe for seamless delivery and joint working.

Amendment No. 77, tabled by my hon. Friend the Member for Sutton and Cheam (Mr. Burstow), clarifies the impenetrable subsection (3) to ensure that legal proceedings are not entered into before the disputes resolution procedures have been utilised. I very much hope that the Government will take up that suggestion, which offers welcome clarification. I read the subsection to colleagues three times last night and had them rolling around the floor because it is so impossible to understand. [Interruption.] I challenge the Minister to read it out in public. In fact, it is interesting just how little reporting on the Bill there has been in the press.


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Prepared 12 December 2002