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Session 2008 - 09 Publications on the internet General Committee Debates Health Bill [Lords] |
Health Bill [Lords] |
The Committee consisted of the following Members:Chris Stanton, Committee
Clerk † attended the
Committee Public Bill CommitteeTuesday 16 June 2009(Afternoon)[Mr. Edward O’Hara in the Chair]Health Bill [Lords]Written evidence to be reported to the HouseH
01 Imperial Tobacco
UK H 02
Association of Convenience
Stores H 03
Tobacco Manufacturers
Association H
04 Imported Tobacco Products Advisory
Council H 05
Cancer Research
UK H 06
Tobacco Retailers
Alliance H 07
British Heart
Foundation H
08
ASH 4
pm
Clause 2Duty
to have regard to NHS
Constitution Mr.
Stephen O'Brien (Eddisbury) (Con): I beg to move amendment
3, in
clause 2, page 1, line 16, after
‘Constitution’, insert ‘, Handbook, and Statement
of
Accountability’. I
am trying to multi-task by turning off my phone at the same time as I
introduce amendment 3. This is a probing amendment to tease out the
status of the handbook, particularly the statement of accountability.
The amendment would ensure that NHS bodies have regard not only to the
constitution, but to the handbook and statement of
accountability. Will
the Minister explain why the statement of accountability is not in the
Bill, when the handbook is? In purely legislative terms, that gives
equal status to the handbook and the constitution and lesser status to
the statement of accountability. If de jure the documents are of
different value, conversely they seem to be de facto of the same value.
The constitution cannot stand alone, which can only undermine it,
because it needs the 148-page handbook and the 20-page statement of
accountability to support it. Alternatively, the Minister might argue
that the constitution is, in fact, superior to the handbook and the
statement of accountability. If they are different, how is that so and
why are they different from one another in that respect? Why has one
but not the other been included in the
Bill? Furthermore,
although paragraph 7 of the constitution states that
“the Government
will ensure that there is always a clear and up-to-date statement of
accountability for this
purpose,” there
seems to be no legislative responsibility or mechanism for doing so.
Why is that the case and how will it work?
Sandra
Gidley (Romsey) (LD): I rise to support those points. One
issue debated in the other place was that, in the handbook, there is a
greater degree of information that is not available in the constitution
itself. If one were to open the “Handbook to the NHS
Constitution” at random, one might
read: “you
have the right to make choices about your NHS care and to information
to support these choices. The options available to you will develop
over time and depend on your individual
needs.” However,
when one looks at the explanation of what that means, a number of
persons are excluded—for example, those detained under the
Mental Health Act 1983, military personnel and prisoners. A number of
services are also excluded. For some reason, maternity services are
excluded, which is quite alarming, as are mental health services. That
will be of concern to a number of people who may already have issues
with the mental health services that they receive. That is a
contentious area where service users sometimes have a different
perception from health professionals regarding what treatment they
might benefit from. I certainly support the amendment, because it seems
that the handbook will be revised, and it would be much more useful if
it were referred to in the
legislation.
The
Minister of State, Department of Health (Mr. Mike
O'Brien): Amendment 3 would oblige those bodies that must
have regard to the NHS constitution to also have regard to the handbook
and the statement of accountability. The hon. Member for Eddisbury has
indicated that he wants to know why one is in the Bill and the
other is
not. It
may help if I set out the purpose and intentions behind the handbook
and the statement of accountability. The handbook is an explanatory
guide designed for patients, members of the public and members of NHS
staff. As the words in the constitution are necessarily at a high
level, the handbook outlines in practice what each right, pledge and
responsibility in the constitution means. In a sense, it is a
description. That intent is clear in the introduction to the handbook,
which
states: “this
Handbook is designed to give NHS staff and patients all the information
they need about the NHS Constitution for
England.” The
handbook is not an instruction manual or guidance for the NHS. It does
not create any new policy or law; it merely describes what currently
exists; and it does not contain guidelines to which people must have
regard. The handbook does not ask anything fundamentally different of
NHS organisations. It merely sets out policy and law with which
organisations should already be
familiar. For
those reasons, it would be inappropriate to impose a duty for bodies to
have regard to a patient and staff-facing explanatory guide. It is just
a document for members of the public to glance at in order to get some
idea of what the constitution means in practice, and no more. We would
be somewhat concerned if some sort of legal effect were given to a
handbook that can be rewritten from time to time.
Furthermore,
imposing a duty to have regard to the handbook would create a case for
a more formal process for updating it, such as a requirement to consult
on any revisions, which might merely reflect current departmental
policy or law. Strengthening the legal status of the handbook would
make it a much less helpful guide for patients, the public and staff,
as the process of making
minor or primarily technical amendments to it would become bureaucratic
and time-consuming, potentially requiring extensive consultation.
Essentially, what we are looking for in the handbook is something that
can be amended whenever it needs to be and that will not have any legal
force, but will just help the patient or NHS member of staff know what
the constitution, to which bodies must have regard, is all
about.
The statement
of NHS accountability, on the other hand, was published alongside the
constitution on 21 January as a response to last year’s
consultation, in which we heard that patients and the public would find
it helpful to know the system of responsibility and accountability for
taking decisions in the NHS. We believe that it is vital that the
public know how the NHS is accountable at a local level and how they
can get involved. The statement of accountability is also a
public-facing document and explains roles, responsibilities and
accountability in the NHS. It is a short summary of the current
structure and functions of the NHS in England. There would be little
value in requiring NHS bodies to have regard to a factual document
detailing the structure of the
NHS. For
that reason, although it is permissible to refer to the documents in
regulation, we do not want them to have any statutory force, be
referred to during court cases or add a large amount of documentation
to an NHS constitution that we want to be fairly straightforward.
People will require some explanation. They will ask, “What does
this mean?” or “What does this sentence in the
constitution mean?” Therefore, we want to provide a handbook,
but we do not want to give it a lot more weight than it needs. Giving
it that extra weight would add complications, and the courts might then
start to take a keener interest in it than we want them to. It is not
for judges or lawyers; it is for patients and members of
staff.
Mr.
Stephen O'Brien: I am grateful to the Minister. He has
tried to explain why the handbook is effectively a subsidiary
operational document rather than a framework, strategic and standard
document. I am also grateful for the support of the hon. Member for
Romsey.
One thing
that is easily recognised is that the Minister’s explanation is
consonant with that of Lord Darzi, who said in his speech on the
provisions in the other place that the handbook is “the
explanatory guide”, which is exactly where the Minister arrived
in the end after saying that it was not guidance or guidelines, to be
used by patients, the public and staff. He went on to
say: “Similarly,
the Secretary of State has the power to make minor and technical
revisions to the handbook at any time in line with changes in
departmental policy or law.”—[Official Report, House
of Lords, 26 February 2009; Vol. 708, c.
GC151.] As I
had seen that reference by Lord Darzi, I was concerned that due to
changes to the law, there might have been a reference to say that that
had legal effect. The Minister confirmed the negative just
now—it is not intended for the handbook to have legal effect.
The fact that we have had this exchange on the record is
helpful. Lord
Darzi went on to
say: “We
do not think that it would be proportionate to have to consult on such
changes, and I think that most noble Lords agree. However, any
significant changes to policy or law that affect the handbook are in
themselves likely to trigger consultation
requirements.”—[Official Report, House of Lords,
26 February 2009; Vol. 708, c. GC155.]
Patently, he must have
had in his mind that consequential changes would come into the handbook
as a result of changes to the law. I wanted to make sure that, given
the way that it has been expressed in the other place, we do not have
any confusion in the record that could have any potential legal effect.
Unless I misinterpreted the Minister—I think that I have
understood him accurately—it does not currently have legal
effect and is not intended to do so. He has not intervened to correct
me, and so, for the record, that has been cleared up. Therefore, I do
not need to press the point. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
‘(a) the NHS
board’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 8, in clause 2, page 2, line 8, at end
insert— ‘(h) the National
Institute for Health and Clinical
Excellence’. Amendment
164, in
clause 2, page 2, line 8, at
end insert— ‘(h)
Children’s Trusts; (i)
Sure Start Centres; (j) any
other organisations providing NHS
services.’.
Mr.
O'Brien: Amendment 164 was tabled by the Liberal
Democrats. I will make my few points before the hon. Member for Romsey
catches your eye, Mr. O’Hara. Amendment 7 would put
the NHS board as the first body that must have regard to the
constitution. It seems wise that the NHS as a whole should adopt the
constitution, rather than simply the bodies listed.
The Committee
will be aware that Conservative Members favour the incorporation of an
independent NHS board—incidentally, the Prime Minister also
favoured that precise option when he was on the campaign trial for the
Labour leadership just a couple of years ago. That approach would
remove politicians from responsibility for the day-to-day running of
the NHS, which, over the past 11 years, has inevitably led to many
accusations of day-to-day politically inspired meddling, which we
believe have stuck. The amendment is clearly consistent with the
approach that we have taken to the architectural structure of the NHS,
which we have published, and we very much hope to have a legislative
opportunity to deliver that. There may be a need for the Minister to
examine whether the bodies listed do not include something that
encompasses the whole of the
NHS. While
the phrase is “NHS services and those who are contracted to
it”—we will deal with the question of contracted persons
and subcontractors shortly—there is a question that the Minister
touched on in discussing a previous group of amendments in relation to
how that flows through to the sense of obligation and behaviour of NHS
employees and the expectations and requirements of their conditions and
terms of employment. The Minister has said that although he sees the
NHS constitution as binding on institutional bodies, he does not see it
as binding on individual employees. We need to be clear that there is a
flow-through that is capable of affecting the way in which individuals
in the NHS
behave, which will help the delivery of the constitution. Those bodies
will therefore not be let down because their employees do not work
within that spirit, let alone to the letter. Amendment 7 explores that
area. 4.15
pm Amendment
8 would—importantly, I think—add the National Institute
for Health and Clinical Excellence to the bodies that must have regard
to the constitution. The amendment is an opportunity to explore the
Government’s rationale for the list of bodies. None of the
Department’s arm’s-length bodies are on the list, even
though many of them have a huge impact on what NHS services are
delivered to patients, and all of us know from our postbags know that
none has a bigger influence than
NICE. The
£195 million price tag on the NHS constitution is due to its
impact
on “improving
the timeliness of NICE guidance and increased uptake of NICE approved
drugs”,
according to the impact
assessment. Can the Minister explain how the constitution will deliver
the assumed uptake of NICE-approved drugs and how the costings have
been made? If that information is not to hand, I hope that he will give
a commitment to make it available to all members of the Committee, so
that we can return to the matter if we have an opportunity to do
so.
It would also
be interesting to know whether the parameters that NICE uses to make
its cost-benefit assessments are compliant with the NHS core
principles. As the Committee will know, the Government have
consistently refused to published the so-called quality assisted life
years formula, so there can be no independent corroboration of the
assurance that I am about to seek from the Minister, but can he tell
the Committee to what extent the QALY formula conforms to the
principles set out in the NHS constitution? He will be under no
misapprehension as to why that is a serious and important
question.
Liberal
Democrat amendment 164 adds children’s trusts, Sure Start and
some other organisations to the list. I am grateful to the hon. Member
for Romsey for picking up on a point raised by my hon. Friend the
Member for Basingstoke (Mrs. Miller) on Second Reading. If
the Department has neglected its own arm’s length bodies in
relation to the constitution, as I described in relation to amendment
8, it is little surprise that it has neglected bodies that are overseen
by the Department for Children, Schools and Families. What evidence can
the Minister provide that his Department sought to break out of the
silo of its departmental responsibilities, and that the Government
really have looked across all Departments to make sure that the policy
is not hindered by having a single departmental
viewpoint?
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