Health Bill [Lords]

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Mr. Stephen O'Brien: I beg to move amendment 10, in clause 2, page 2, line 25, at end insert—
‘(5A) Each person who is sub-contracted by persons in sub-contracting arrangements under section (5) must, in delivering that contract, have regard to the NHS Constitution.’.
This is a probing amendment to investigate how far down the food chain the NHS constitution bites. In the Bill, any private or third sector organisation which contracts with the NHS must have regard to the constitution. Likewise, any body which they subcontract to
“provide or assist in providing”
must also have such regard. The amendment would require that any body subcontracted by a subcontractor would also have to have regard to the constitution. Amendments could be tabled to deliver a body subcontracted by a subcontractor’s subcontractor and so on, like Russian dolls ad infinitum, ad absurdum.
I hope that the Minister will take this opportunity to clarify how many iterations of subcontraction the provision affects. I assume that the main contractor takes an obligation to bind all those who are suppliers in a contractual chain—that the intention is to bind everyone to have regard to the constitution. I will leave him to have fun with the legal niceties of that one.
Can the Minister also clarify the wording
“provide or assist in providing”?
What, in terms of law, does it mean? Does it include a subcontractor named on the contract? Does it apply to every contractual relationship the contractor holds, whether it pertains to the NHS contract or not? I am not talking about common sense but about the force of the statute. For example, if a cleaning contractor fails to have regard to the principles because their paper supplier fails to deliver, can the NHS constitution be brought to bite on the paper supplier?
I recognise from our earlier discussion that the clause is not intended to lead to new courses of action, but, when the Minister described the intended effect of the constitution on all those who supply services, he said that it was intended to bite. Indeed, that was precisely the word that the noble Lord Darzi used throughout his defence in the other place of the drafting of the Bill. If we are not talking about direct legal courses of action, we need to understand what is meant by “bite”, and how far it goes down the chain.
Can the Minister also provide some examples of joint contracting under subsection (8)? The fact that that provision is in the Bill seems to betoken that it has been thought through, because there must be a particular concern, opportunity or even mischief in mind. Furthermore, will the duty “to have regard” be inserted in all contracts that the NHS has with its contractors? Will the NHS mandate the insertion of the duty in all its contractors’ contracts? To some degree, that is the same point as the first one.
One issue that often comes up is that private sector providers to the NHS feel they cannot compete with, for example, the public sector pension fund, which makes the attraction and retention of staff difficult. I am yet to be convinced of that argument. I believe that the flexibility of the private sector usually allows it to suffer the differential on VAT happily, because its efficiencies amply recompense it for such difficulties. The question is whether the staff of private and third sector providers would have grounds to claim against their employer, using the constitutional right to the fair pay and contracts framework. Furthermore, will contractees have to warn the contractor of this duty before entering into a contract, or will they operate a tick-box exercise on the paper trail afterwards to show that they were “having regard to”, as we discussed earlier? We must also consider the argument of justiciability, and whether it should be inserted into contracts. What assessment has the Minister made of whether that will become a justiciable area in contract law? If the contractor fulfils his contract but fails to have regard to the constitution, is that now, or might it become, a ground for termination or some other form of contractual remedy?
The next point was raised earlier by the hon. Member for Romsey and then picked up by my hon. Friend the Member for Hemel Hempstead, particularly when he spoke about air ambulances. We need to cast our minds to clause 3(7), which raises the interesting question of the position of volunteers within the contracting and subcontracting organisations—and, indeed, within the NHS itself. I do not want to teach the Minister grammar or how to suck eggs, but he will be aware that there is no contractual basis for enforcement between two parties intending to create a legal relationship, if there is a failure of consideration for money or money’s worth.
With volunteers, there is by definition an absence of money or money’s worth. One could argue that some sort of time element might be of value, but the fact is that the time is given voluntarily and without the expectation of reward or compensation, which means that there is an absence of consideration. There is the question of whether it might be misleading to encompass volunteers within the term “staff”, which is how the Bill is currently drafted. If so, there can be no ability to enforce—or, if that is too strong a word, to lay up the expectation that they should have had regard to the constitution. The last thing that we want to do is to create perverse incentives on volunteering, and I dare say that the Minister entirely shares that sentiment. I am sure that in all our constituencies we can find great examples of volunteers helping hospitals and other NHS facilities.
The amendment brings to light a further possible illogicality. It seems that foundation trusts are bound to have regard to the constitution only in respect of their NHS patients and not their private patients. To a degree, we have already discussed that matter. However, many people receive dental services under contractual arrangements made through general dental service contracts. Although the dentist will be a contractor under subsection (4), or possibly subsection (5), and thus be covered by the duty, patients increasingly pay for their services through Denplan. A private patient in hospital is not covered by the constitution, whereas a private patient in a dentist’s surgery is.
I make no argument for both or either, but the legislation should be consistent. Given the multiplicity of ways in which all of us, as citizens of the devolved countries of the United Kingdom, can gain access to primary care and other health services, we should have thought the matter through in a careful and detailed way with specific examples. I hope that the Minister understands the thinking that lies behind the amendment and that he will take the opportunity to assure us that these things have been thought through and are going to work.
Mr. Mike O'Brien: Amendment 10 proposes that those persons providing NHS care that are subcontracted by a subcontractor must have regard to the constitution. I applaud the thoroughness of the hon. Member for Eddisbury in trying to ensure that we do not neglect the subcontractors of subcontractors, who are important people. However, the amendment is unnecessary, as subcontractors are already covered by subsection (5)(b), which states that each person who
“provides or assists in providing NHS services under sub-contracting arrangements”
must have regard to the constitution. That includes those who are assisting.
4.45 pm
Mr. Andy Slaughter (Ealing, Acton and Shepherd's Bush) (Lab): On subcontractors, I wonder whether my right hon. and learned Friend can help me on the issue of telephone services. I know that the issue is fresh in his mind, because during the short adjournment he was engaged with one of my constituents, Mr. David Hickson, who is involved in an assiduous campaign against the use of 084 numbers. I will ask my question in two parts. First, is there any conflict between what the constitution states in relation to services being provided free of charge and the profit that is made either by NHS institutions or by the private providers of telephone numbers? Secondly, given that the widespread consultation, which may of course resolve the issue depending on the Department’s response, concluded on 31 March 2009, when does he expect the response to it? It highlights considerable disquiet about the use of 084 numbers in relation to NHS services.
Mr. O'Brien: My hon. Friend tempts me down the line of discussing 0845 numbers, 084 numbers and a number of other numbers. We could debate the issues at some length, but he is right to say that a consultation has been completed. We will shortly announce the outcome, but I do not have the date for that announcement. I hope to look at the issue in some detail in the near future, and I hope that we will then be able to announce how we intend to pursue it.
It is important to recognise that there are a number of areas in the NHS where organisations have the ability to not only provide services, but to jointly fund them through patients’ contributions; I gave the obvious example of prescription charges earlier. That is allowed within the terms of the constitution. Particular problems arise on telephone numbers, however, which I want to look at with a great deal of care. As my hon. Friend has said, a considerable degree of concern has been expressed by patients about the way in which certain premiums have been charged in relation to such numbers. If he bears with us, I hope that we will be able to deal with the issue at greater length.
Mr. Slaughter: I thank the Minister for that. It would be helpful to know when he has an indication of when we can expect a departmental response to the consultation. By mentioning prescription charges, he tempts me to push the point on the constitution, which clearly notes
“the right to receive NHS services free of charge, apart from certain limited exceptions”.
Prescription charges are a clear example of that, but, as far as my constituents and I are aware, telephone services are not. Does he therefore agree that that inconsistency would be best addressed by not allowing the use of 084 numbers within the health service?
The Chairman: Order. I have heard the hon. Gentleman’s point, but he is straying a little far from the terms of the amendment.
Mr. O'Brien: My hon. Friend is tempting me not only to stray from the amendment, but also to pre-brief people on the outcome of a consultation, which ought to be dealt with in a more appropriate way and announced at a more appropriate time. If he will forgive me, I will duck the question, valid as it is, and turn to amendment 10.
As we go, as the hon. Member for Eddisbury has described it, ad nauseam through the various ranks of subcontractors, it becomes, to use another legal term, somewhat otiose as to whether the constitution applies; it will at some stage become a matter for contract as to whether it does or not. To put volunteers’ minds at rest, where there is no contractual liability, tortious liability may arise, but that duty is normally imposed not on the individual volunteer, but on the trust itself. No new duty will arise that does not already exist in relation to volunteers. He is quite right that volunteers do an enormously important job for the NHS and, as a result of that, we do not wish to impose any new burden on them. In our view, the provision will not do so.
In terms of the example given of the provision of paper supplies, the provision of NHS supplies will potentially bring into effect, as far as the person purchasing them is concerned, the NHS constitution, if they are otherwise covered by it. If someone is merely supplying a product from the private sector, they are not otherwise bound by the NHS constitution. As I have indicated, there are no new causes of action. When the hon. Gentleman asks “where does it bite?”, it bites where it bites already, but with a tiny bit of extra energy—no more than that. I do not want to be too deliberately opaque, but the aim, as I have said, is not to create a new cause of action.
As far as employees, fair pay and contractual obligations are concerned, we are not creating any new way in which negotiations on pay can be conducted. There is no new legal obligation. As far as subcontractors, and subcontractors of subcontractors, are concerned, it is entirely a matter for them to delineate in terms of their contracts. If they wish to take a particular view, that is a matter for them. The constitution imposes no new obligation on them.
Mr. Stephen O'Brien: I take the point about the volunteers and the duty of care under tortious liability, which is one that would always focus on an institution more quickly than it would on particular individuals, subject to an individual having an express or ostensible authority to commit a particular body in relation to its actions, which would be unusual. It would be pretty unusual for it to be given to a volunteer, although not impossible. I am happy to accept the reassurance on that, as indeed I was on fair pay.
As far as the paper suppliers example is concerned, what one needs to note rather than press is if the NHS employee—who is part of the process, whoever the employer body is within the NHS—has to have regard to the constitution, it is possible that through various contracting arrangements they might seek to impose conditions on the supplier to ensure that they themselves can conform to the expectations under the constitution. They can therefore help to demonstrate—perhaps through an audited paper trail that I suspect they will want to keep—that they have indeed had regard to the constitution and that they feel that they have complied with it. That is a possible way that the procurement contracts will flow through. I suspect that we will have to wait and see. That might be an actual example of the bite with a bit more energy rather than a greater cutting power, if one wants to take the analogy far too far.
As for the broad point made by the Minister on subcontractors, I can see that there is an intent, which I think that I am satisfied with. The approach taken to contractors, subcontractors and the chain of contracted supply is effectively intended to be an anti-avoidance measure, so that people cannot avoid having to have regard to the constitution. There is a genesis at the top of the chain—someone who will be covered and intends to be covered by the Bill, once it is enacted. Following those reassurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Stephen O'Brien: I beg to move amendment 9, in clause 2, page 2, line 41, after ‘service’, insert
‘paid for out of public funds and’.
I do not think that this matter will detain us for long. The amendment would clarify the ambit of NHS services by including
“paid for out of public funds”
in the definition. That seems a much neater way of demarcating NHS services than the Bill’s entanglement with specific enactments, an issue which we covered earlier. I hope that the Minister will, of course, continue to support health care paid for out of public funds. As we have discussed, we have concerns about some of the issues where the core principles have been taken away from what was proposed by the Government. The Minister has sought to assure us that that is because those values are represented elsewhere. As he knows, we have not taken that to the nth degree, but there is still a concern. He might want to reflect on whether that particular area will need further discussion among the new ministerial team.
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