Mr.
Mike O'Brien: Section 1 of the NHS Act 2006, to which the
clause refers, makes it absolutely clear that NHS services must be
entirely free of charge subject to the conditions in relation to, for
example, a contribution where prescription charges are involved. I do
not see any need to repeat section 1 of the NHS Act 2006
now. The
hon. Gentleman may be concerned that the Government no longer believe
that public funds should be devoted to NHS patients. That is not the
case, as I explained in my responses to previous amendments. I
will not repeat my points here. It is the case that NHS funds will be
applied to NHS patients. That is the objective, the aim and the way in
which we wish to proceed.
Mr.
Stephen O'Brien: I was, of course, referring to section
1(3) of the NHS Act 2006, which was picked up by the Minister. In
relation to the reference in the 2006 Act to
“the services so
provided must be free of charge except in so far as the making and
recovery of charges is expressly provided for by or under any
enactment, whenever
passed”, it
was my concern that we would end up with a chain of legislative
provision that uses the phrase “any enactment”. I was
concerned that we would end up with a series of pieces of legislation
that would contain the phrase “any enactment” and then
“under an enactment”. My point is that one has the grave
danger of never specifying where the chain of legislative line follows.
I shall not press the amendment to a Division, but the point has been
made that we should be careful not simply to rely on the phrase
“any enactment” or “enactments”, because it
will become very vague to those who will succeed us over
time.
Amendment,
by leave,
withdrawn. Clause
2 ordered to stand part of the Bill.
Clause
3Availability
and review of the NHS
Constitution
Sandra
Gidley: I beg to move amendment 165, in
clause 3, page 3, line 3, after
‘public’, insert ‘in formats
accessible to people with
disabilities’.
The
Chairman: With this it will be convenient to discuss
amendment 168, in
clause 5, page 4, line 17, at
end insert ‘, including in formats accessible
to people with
disabilities.’. Sandra
Gidley: These are a couple of simple amendments to try to
further the debate on Second Reading about the availability of the
constitution for those who may have some sort of disability. I am
particularly mindful of people with a visual impairment. I perhaps
should declare some sort of interest here. My husband is registered
blind, so I am acutely aware of some of the difficulties faced by
people in trying to access information. The Minister could argue that
the issue is covered by equality legislation anyway and that existing
legislation should ensure that the information is made available.
However, the facts do not bear that
out. 5
pm Research
undertaken by the Royal National Institute of Blind People shows that a
large percentage of patients did not receive information in an
appropriate format. In many cases, that information might have been
available with a little thought, but nobody thought to provide
something usable. The statistics are stark. The group that came out
best was community pharmacists—I probably ought to declare
another interest—although information about prescriptions came
out worst, so the picture is slightly mixed. In urgent care, perhaps
nobody minds too much if the information is not readily available in an
accessible
format. Given
the interest in health and the drive towards self-care, on which the
Government seem keen, it is more important than ever that information
is available. If we start with the constitution by including access to
information in accessible formats in the Bill, it will help to drive
improvements in all other areas of the health service. The Minister
could also argue that the Equality Bill, which is going through
Parliament at the moment, might be a more appropriate place for such
provisions, but people who work in the health service take far more
notice of legislation in a health Bill. Given the failure to put
existing legislation into practice, that is another reason for putting
the measures in this Bill. In a letter to Lord Low, the
Solicitor-General
said: “We
are not persuaded of the case for making specific reference to the
provision of information in alternative formats on the face of the
legislation”
—a reference to
the Equality Bill.
The amendment
is a simple amendment that should not need to be included in the Bill,
but the evidence is overwhelming that we must do something, as the
provision for an increasing group of people is inadequate. Given our
ageing population, many of whom have eyesight problems, such an
amendment is even more important.
Mr.
Stephen O'Brien: I can see where the hon. Lady derived the
impetus for the amendments, and I agree with the principle behind them.
It is certainly right that every citizen, taxpayer and service user
should be able to access the constitution, the handbook and all the
other associated documentation and rules. I worry slightly that the
duty as drafted might apply only to people with more than one
disability, but presumably that was not her
intention.
I am slightly
concerned that by its very inclusion—I think that this is the
second point that the hon. Lady was seeking to make in the amendment
when she said that the equalities legislation will cover all such
issues—the amendment would open up a divide in the public
discourse between patients, staff and members of the public and people
with disabilities, which is something that we have all been seeking to
combat for years. I am not suggesting that that was the hon.
Lady’s intention, but we need to be careful lest we create
separate categories. All patients are patients, and some of them, I
accept, have disabilities. The same goes for staff and members of the
public. As long as we are clear that there is no such intent, as I am
sure is the case, we are allied in backing the spirit of the
amendments.
Mr.
Mike O'Brien: I begin by reassuring the hon. Member for
Romsey that the constitution and the handbook will be, and are, readily
accessible to patients, public and staff. The constitution is
available in a number of alternative formats in addition to
translations in 11 languages. It is available in Braille, large print
and audio format, and there is an easy-to-read version that can be used
by children and those with learning disabilities. The handbook is
available in Braille to those who request it. Those formats are
available through the internet, over the phone and by post. NHS bodies
have also accessed the hard copies of the document, and are being
supported by the Department of Health in promoting the constitution
locally. We fully intend to keep the formats, so there is no need to
put that in the Bill. The Disability Discrimination Act 1995 already
requires public authorities to take reasonable steps to provide
disabled people with an auxiliary aid if that would facilitate the
receiving of any benefits. I believe that further duties are
unnecessary. The
point that the hon. Lady reasonably makes is that we may have
legislation, but it is not always delivered in practice. I accept that,
but the original legislation must be enforced rather than compounding
the problem by saying that it was not always enforced when it should
have been under the 1995 Act, so we will repeat it. That does not
resolve the issue. The way to resolve it if the law is not being
complied with—this does not seem to be the case—is to
enforce the existing law. We should not pretend that we can do
something just by repeating the same effect in new
legislation.
Law making
and law enforcement are different, and the option of using the law
subsequently to ensure that organisations enforce previous legislation
is available to citizens and various representative organisations such
as RNIB. It is therefore right that they should use the existing
legislation and the new equalities legislation when appropriate to
ensure that the various pieces of information are available in the
necessary forms. Repeating it in subsequent legislation—we could
do that in every piece of legislation—is not the way forward. We
have generic legislation, and it should be used.
I submit that
the NHS constitution is available in the ways that the hon. Lady hopes,
and I hope that she accepts that we agree that it should be readily
available in the appropriate format for people who need it. I believe
that it and the handbook are available in those various
forms. Mike
Penning (Hemel Hempstead) (Con): Why will it be produced
in so few languages, when NHS Direct provides a translation service in
175 languages? I am not suggesting that the constitution should be
produced in 175 languages, but if NHS Direct is translating into so
many languages, the limited number in the provision will not be
suitable for the members of the population who need to read
it.
Mr.
O'Brien: I will take that back to those who are
responsible for the matter, and tell them it was suggested in the
Committee that 11 languages are insufficient, and that 175 seem to be
necessary.
Mike
Penning: I want to clarify whether 11 is sufficient; 175
means that a ridiculous amount of taxpayers’ money is being
wasted by NHS
Direct.
Mr.
O'Brien: Having advocated 175 languages, the hon.
Gentleman is now withdrawing that and saying that that number is
ridiculous. I am not sure where he is on this, but as far as I am
concerned we must try to make the NHS constitution readily available to
those who may need to access it. I will leave it to others to determine
how that ready availability should be determined. The hon. Member for
Romsey raised issues concerning people with visual impairment, and I am
anxious to ensure that they will have access to the NHS constitution in
an appropriate
form.
Sandra
Gidley: I am obviously pleased that the constitution is
available in many formats, and habitual users of Braille, which
requires a lot of training, will not have second thoughts about asking
for information in their format of choice. My concern is that those
whose eyesight has failed as they have grown older may not be used to
asking for information in an alternative format or even aware, in many
cases, that it is available. It is a bit of a cop-out to say,
“Well, it’s the DDA that’s not working so
there’s no point in putting it the Bill”, because
reinforcing the DDA on numerous occasions may make that Act more
effective. The
statistics show that a lot of patients are not given access to suitable
formats. The staff seem to be the missing links who, perhaps because
they do not have a disability, are probably not aware of the
difficulties faced by others in accessing information. I intend to
withdraw the amendment, but I think that there should be a little more
in the handbook aimed at staff to give them a responsibility to ensure
that information is provided in the format most useful to any
individual. That is on a slightly wider point than just the
constitution, but an early review of the handbook may be the best way
to address this matter.
Mr.
Mike O'Brien: The hon. Lady has made a useful point about
the handbook, and I will certainly give it due and full consideration.
Thanks to the wonders of
modern technology I can add that there are 180 countries in the world,
and NHS Direct provides language interpreters rather than various
translations.
Sandra
Gidley: There is another chance to debate the matter
further with a new clause tabled later in the Bill, so, for the moment,
I am happy to withdraw the amendment.
Mike
Penning: I want to clarify the situation regarding the
languages in which the document will be available and NHS
Direct’s ability to use interpreters, especially for languages
as obscure as Cherokee, which the British taxpayer is paying for. We
are using interpreters in the UK to help people access the NHS
facilities, so where does the figure of 11 languages come
from?
The
Chairman: Order. Perhaps the Minister would write to the
hon. Gentleman.
Mr.
Mike O'Brien: I am happy to do
so.
Sandra
Gidley: I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 11, in
clause 3, page 3, line 3, at
end insert— ‘(2) The
Constitution must be revised whenever its constituent parts cease to be
consistent with
legislation.’. With
two O’Briens and an O’Hara in the room it is a blessed
relief that we are not speaking Irish or double-Irish. Amendment 11
would revise the constitution whenever the legislation underpinning it
changes in such a way as to bring legislation and the constitution into
contradiction. Earlier, I set out our commitment to the core principles
of the NHS as established in the NHS plan, which was the subject of
amendment 5. We will continue to seek to enshrine those principles in
legislation—we had some enjoyable teasing out on amendment 7. I
believe that the Government intend to continue to believe in that too.
However, there is explanatory paraphernalia in the constitution itself,
and I am thinking particularly of the responsibility under
section 2b which
runs: “You
should keep appointments, or cancel within reasonable time. Receiving
treatment within the maximum waiting times may be compromised unless
you
do.” Sound
stuff, leaving aside the somewhat Orwellian veiled threat that it seems
to encompass, or perhaps not, although it sounds commanding.
The Secretary
of State has just taken up his post and promised a bonfire of the
targets. Given the enormous volume of regulations that have indeed been
introduced on this Government’s watch, even if the bonfire is as
fierce as it was at Buncefield in the constituency of my hon. Friend
the Member for Hemel Hempstead, as extensive as the fire of London, or
even as destructive as the very fires of hell, I cannot see any of
those regulations being burnt to a sufficiently small number. So much
legislation seems to be being produced, not least by regulation, that I
hope that the Minister will confirm what will happen in the event that
the constitution ceases to be underpinned by legislation. It is
important that we have a backstop, which this amendment is
intended to provide, in case there is a mismatch—as one can
envisage happening quite easily—between the legislative
underpinning and the constitution, even as amended, in the
overlapping Venn diagram, which I referred to
earlier. 5.15
pm
Mr.
Mike O'Brien: Amendment 11 obliges the Secretary of State
to revise the constitution whenever its constituent parts seek to be
consistent with legislation. Let me reassure the Committee that it is
already our intention to revise the constitution if it ever becomes
inconsistent with the law or departmental policy. My noble Friend Lord
Darzi put that on record in the other place. I do not believe that a
new statutory requirement in the Bill is necessary. Indeed, I would say
that, because it is not necessary, putting it in would amount to
over-regulation. In fact, the amendment would inadvertently limit the
Department’s flexibility and impose an overly bureaucratic
approach to how that was done. Indeed, on the face of it, this seems to
be an attempt from the Conservative Front Bench to ensure that we do a
little bit extra. It will impose extra bureaucracy on the NHS that we
just do not need. For example, there could be two changes in
legislation in short succession that affect the constitution. It would
clearly make sense, therefore, to deal with both of them together
rather than be forced, as this additional regulation would do, to
revise and republish the constitution twice over, with full
consultation each time.
Similarly, it
would be perverse to force the Government to make minor and purely
technical changes only a few months before a major 10-year overhaul of
the constitution, as required in the Bill. The more sensible approach
would be to make a clarification in the handbook, which is designed to
be easily updated. In principle, the hon. Gentleman’s objective
is a reasonable one, but I do not believe that a duty in the Bill is
the right way to achieve it. I hope he will therefore feel that he can
withdraw the amendment, because he is fulfilling precisely that fault
that he criticises, which is over-regulation. This, indeed, if it was
passed, would be
over-regulation.
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