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Session 2008 - 09
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General Committee Debates
Health Bill [Lords]

Health Bill [Lords]

The Committee consisted of the following Members:

Chairmen: John Bercow, † Mr. Edward O'Hara
Creagh, Mary (Wakefield) (Lab)
Cunningham, Mr. Jim (Coventry, South) (Lab)
Gidley, Sandra (Romsey) (LD)
Hall, Patrick (Bedford) (Lab)
Horam, Mr. John (Orpington) (Con)
Merron, Gillian (Minister of State, Department of Health)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
O'Brien, Mr. Mike (Minister of State, Department of Health)
O'Brien, Mr. Stephen (Eddisbury) (Con)
Penning, Mike (Hemel Hempstead) (Con)
Pugh, Dr. John (Southport) (LD)
Slaughter, Mr. Andy (Ealing, Acton and Shepherd's Bush) (Lab)
Turner, Mr. Andrew (Isle of Wight) (Con)
Turner, Dr. Desmond (Brighton, Kemptown) (Lab)
Waltho, Lynda (Stourbridge) (Lab)
Wilson, Mr. Rob (Reading, East) (Con)
Chris Stanton, Committee Clerk
† attended the Committee

Public Bill Committee

Tuesday 16 June 2009


[Mr. Edward O’Hara in the Chair]

Health Bill [Lords]

Written evidence to be reported to the House
H 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 2

Duty 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.
Mr. Stephen O'Brien: I beg to move amendment 7, in clause 2, page 2, line 2, at end insert—
‘(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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Prepared 18 June 2009