Mr.
Mike O’Brien: We want to develop a more
personalised style of care from the NHS, and last year my noble Friend
Lord Darzi announced a pilot programme to explore the potential of
personal health budgets in his document “High Quality Care For
All”. We are all aware of the success that has come from the
Government’s initiative in relation to community care direct
payments. We want to ensure that these direct payments will enable
people to benefit to some extent in the same way that they have in
community care from controlling a greater degree of their health
care. We
are approaching the matter with caution. We think that it is worth
exploring in a series of pilots. Giving people who have particular
conditions the ability to manage their own health needs through control
of the budget will, we think, appeal to a limited number of people who
want to exercise the level of control over their care that is needed.
We see that happening in the following
way. A
patient would go to their provider—probably their GP
initially—say that they want to have a health care package that
does a particular set of things and then negotiate the budget with the
health care provider. There may be more than one provider. The person
could then ensure that that was delivered. It will not involve the
handing over of money. It is about a budget being made available to
meet the needs of a particular individual. Those needs may be unique;
perhaps the person has a long-term disability or a particular
condition. They could have control over their own lives and be able to
make decisions about how and when they want particular services
delivered. That must be done in negotiation with their health provider;
we see that being done primarily through their GP probably, although it
will not always be their GP. They will agree that process, the health
care will be delivered and we shall be able to
evaluate whether it has been successful. There should be about 70 pilot
projects, to see how it would operate, and then we shall evaluate
whether any expansion is the right way
forward. 3
pm I
know that the Conservative Opposition take the view that direct
payments are a way, effectively, of giving some sort of private ability
to control money—spend it—whichever way the person wants
to. I am not sure how far the Conservatives would go with that, but I
want to be clear how far the Government propose to go, and that has its
limits. Where appropriate, where negotiated with health providers and
where there is agreement about what will be delivered in a way that
suits the personal needs of a patient with a particular condition, we
want to run some pilots to see how direct payments will operate. Then
we shall evaluate the outcome of those pilots before deciding either to
continue with such payments or that the system had not operated
correctly and that we needed to look at it again. This is a bit more
than an experiment; it is a pilot that we hope will enable us better to
ensure that personalised health care is delivered to those individuals
who particularly need
it.
Mr.
Stephen O'Brien: I am glad that the Minister has said that
it is more than an experiment, because his immediate predecessors in
the Health Department made it clear that it was very much more than an
experiment; that it was very much the direction of travel. To pick up
on a couple of his phrases, the expressions that his predecessors used
were a touch less cautious and perhaps emphasised less that the system
applied to such a limited number of people. It is important—not
least because it appears in the legislation—and is very much
seen as one of the central bricks in the wall of the future of care
. As
we move through the amendments, we need to be clear that we are talking
about what is written in the Bill—direct payments—and put
that in the context of what the Minister calls personal health budgets,
which were originally described by us as individual budgets. The
nomenclature is neither here nor there, but the point is that within
the budgetary process there will arise the question of who makes the
payment and handles the cash. The Minister strayed perilously close to
making an unnecessarily contentious point, but there is no
one—across the House—saying that this is anything to do
with enabling a private approach. His own side has been very conscious
of not wanting it branded as some form of voucher scheme.
Interestingly, a consensus has developed across the House that the
right forward direction should not be impeded and hindered by the
prejudice of a number of people—again across the
House—who are fearful of the implications of anything that could
be equated to a voucher scheme. We are very much at one with that
careful
approach. I
hope therefore that we shall not find, as we proceed with the clause,
that our discussion is itself impeded by such a mental map on the
Minister’s part. I am prepared, of course, to withdraw amendment
186, because we shall find plenty of opportunity to explore how this
works. As we proceed, it is vital that we ensure that patients feel in
control of their destiny when it comes to their care and that they can
command the quality in accessing that care. Everything we can do to
enhance the provisions in this chapter will be vital in ensuring
that what is intended to be delivered can be delivered. As I have said,
we have urged the Government to introduce these measures for years, so
I hope that they realise that they have our support. I beg to ask leave
to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 106, in
clause 11, page 7, line 28, at
end insert— ‘(7) Health care
provided in accordance with this section constitutes a function of a
public nature for the purposes of section 6 of the Human Rights Act
1998.’. I
am sure that hon. Members are aware that we touched on human rights
when considering the Health and Social Care Act 2008. A number of
colleagues of the hon. Member for Hendon (Mr. Dismore) from
the Joint Committee on Human Rights were members of that Public Bill
Committee and they put forward ideas that had arisen in the Select
Committee. To some degree, those issues read across to these
provisions. We should bear it in mind that we are trying to empower
patients. The quality of the care of the elderly should be the
benchmark test for this
legislation. Lord
Dubs raised this issue in another place and questioned whether, in
light of YL v. Birmingham city council—which admittedly
is a social case—the provider of services commissioned and/or
paid for through a direct payment constitutes a public authority under
the Human Rights Act 1998, an Act with which the Minister is very
familiar. Lord Darzi argued in response that the Government consider
that all independent providers of health care that provide services to
the Secretary of State in fulfilment of his duty to provide health care
are carrying out a public function. They are therefore all public
authorities for the purposes of section 6 of the 1998 Act. He argued
that because the patient would sit in the same legal position as the
Secretary of State, independent providers commissioned through a direct
payment would similarly be covered by the 1998
Act. That
argument, of course, has not been tested in the courts in the manner of
YL v. Birmingham city council. Lord Dubs remained less sure than
Lord Darzi that the Law Lords would agree if pushed to a decision. That
debate is on the record, and I will not trouble the Committee with
references to it. I would be grateful for the Minister’s views
on
that. More
interesting are cases in which a patient commissions a type of care
that the Secretary of State would not normally commission, or care from
a type of provider that he would not normally commission from or is
prevented from commissioning from. Under the large tranche of
amendments that we are about to discuss, we will debate the different
forms that direct payments might take. If the patient is left totally
free within his agreed care plan, can the Minister guarantee that
anybody he commissions from will come within the ambit of the Human
Rights Act 1998, simply as a result of the act of commissioning? I am
sure that he is as aware as I am of the consequences that will flow
from his answer. That issue was at the heart of much of the
consideration of the Joint Committee on Human Rights when trying to
protect the rights of the elderly and those most in need of care in
particular.
Hon. Members
from all parties are genuinely deeply concerned about many campaigns on
these issues, such as “Action on Elder Abuse”. If there
is one function that we must all fulfil as MPs, it is to give a voice
and effective action to people so that some of the greatest abuses do
not take
place. I
hope that the Minister sees that this point is seriously made and that
he assures the Committee that the human rights aspect of the
legislation will be in
place.
Sandra
Gidley: I shall be brief. I support the amendment. It is
important and well intended. I welcome the Conservative party’s
support for the Human Rights Act 1998, which is not always
forthcoming from its
Benches.
Mr.
Mike O'Brien: I share the hon. Lady’s welcome for
the repenters; it is always nice to hear. The hon. Member for Eddisbury
is broadly right in the sense that it is our view that the Secretary of
State’s duty to provide a comprehensive and free health service
under the National Health Service Act 2006 is a core public function.
The Government consider that, when providing services in fulfilment of
that duty, independent providers of NHS-funded health care are carrying
out public functions. They are there for public authorities for the
purposes of section 6 of the Human Rights Act
1998. The
Government do not consider that any distinction can be drawn between
the situation where the Secretary of State directly enters into a
contract with an independent provider of health care services—as
permitted by section 12 of the NHS Act 2006—and the
current situation, where the patient enters into a contract with an
independent provider of health care services under the proposed
legislation.
The
Government know that services provided under the proposed direct
payment arrangements will ultimately be met by public funds. They note
that there would be a strong public interest in ensuring that services
are properly provided. They believe that stating explicitly that
providers of health care procured by direct payments are carrying out
public functions for the purposes of the Human Rights Act would cast
doubt on whether independent providers of health care services acting
under other relevant sections of the NHS Act 2006 were exercising
functions of a public nature. We would rather it were not stated here,
because it seems clear that the Government are aware of concerns on the
matter raised by the Joint Committee on Human Rights, and they remain
committed to consulting on the scope of the Human Rights Act in due
course. As
I have indicated, providing services in the fulfilment of the Secretary
of State’s duty under the 2006 Act, the Government consider that
independent providers of health care are carrying out public
functions—if they take the queen’s shilling they have a
duty, which includes ensuring that the Human Rights Act is complied
with. I hope that provides reassurance. I do not think, for the reasons
that I have given, it would call into question other provisions where
we believe the Human Rights Act would apply. We do not want to call
into question those provisions, so it is better not to put the
provision in the Bill as if it needs to be stated; we think that it is
clear that it
applies.
Mr.
Stephen O'Brien: I have listened to the Minister and I
think he has taken the point seriously. However, I am not sure whether
I buy the argument that if the
amendment were added it might imply that other provisions were not
included within the overall approach of the NHS Act 2006. That is not
the most powerful argument that the Minister has advanced in the course
of our proceedings. I think that that area is engaging us to such a
degree that it makes considerable sense to put it to the test, and I
will therefore press the matter to a vote.
Question
put, That the amendment be
made. The
Committee divided: Ayes 5, Noes
8.
Division
No.
4] Question
accordingly
negatived.
3.15
pm
Mr.
Stephen O'Brien: I beg to move amendment 187, in
clause 11, page 7, line 31, at
end insert— ‘(a) as to
the balance of risk between the patient’s
autonomy to use the direct payment and the Secretary of State’s
accountability for the appropriate use of public
funds.’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 170, in clause 11, page 7,
line 34, at end
insert— ‘(aa) as to whether
a patient wishes to use direct payments as a means of obtaining health
care;’. Amendment
15, in
clause 11, page 8, line 5, at
end insert— ‘(fa) as to
circumstances in which the patient might pay a carer with a direct
payment,’. Amendment
188, in
clause 11, page 8, line 7, after
‘payments’, insert ‘and the notice period
required’. Amendment
123, in
clause 11, page 8, line 18, at
end insert— ‘(l) as to
arrangements to be made where the patient exercises a direct payment
alongside a
top-up.’. Amendment
189, in
clause 11, page 8, line 18, at
end insert— ‘(l) as regards
the procurement of maternity
services.’. Amendment
124, in
clause 11, page 8, line 18, at
end insert— ‘(l) as to the
retention of savings made as a result of a direct payment by the
Primary Care Trust; (m) as to
the granting of money for direct payments to the Primary Care Trust by
the Secretary of
State.’. Amendment
125, in
clause 11, page 8, line 18, at
end insert— ‘(l) as to the
commissioning of emergency, urgent and intensive care with a direct
payment.’. Amendment
126, in
clause 11, page 8, line 18, at
end insert— ‘(l) as to the
commissioning of palliative care with a direct
payment.’.
Amendment 127,
in
clause 11, page 8, line 18, at
end insert— ‘(l) as to the
responsibilities of the patient as an
employer.’. Amendment
128, in
clause 11, page 8, line 18, at
end insert— ‘(l) as to the
purchase of community services at tariff
prices.’. Amendment
129, in
clause 11, page 8, line 18, at
end insert— ‘(l) as to the
use of direct payments by
prisoners.’. Amendment
130, in
clause 11, page 8, line 18, at
end insert— ‘(l) as to the
use of direct payments to fund complementary
therapies.’. Amendment
131, in
clause 11, page 8, line 18, at
end insert— ‘(l) as to the
use of direct payments to purchase care in from another health
system— (a) in the
United Kingdom; (b) in the
European
Union’.
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