Sandra
Gidley: The Minister seems to be saying all the right
things and there clearly is an intention to evaluate. Lessons could be
learnt from social care because some of those early direct-payment
trials were not terribly successful. It was only by continuing and
modifying that we eventually ended up with a model that is acceptable
to more people.
Some key
questions have been asked today. My hon. Friend the Member for
Southport hit the nail on the head—if you are improving health
generally that must be a good thing, but if you are further improving
the health of people with a longer life expectancy, is that quite such
a good thing? It is an argument we can bat around all day. What I am
not clear about is the criteria for these pilots. Although I am happy
to withdraw the amendment, it would be helpful if the Minister wrote to
us outlining the methodology that will be used for evaluation. It seems
that many of the pilots could have been set up in different ways. I am
not quite sure how one would compare 70 different pilots, all of which
apparently have small numbers of people—something I had not
realised. That is difficult. It would be helpful for the Committee to
have more information about that before Report. It would also be useful
to know how many patients are involved in these pilots. Fundamentally,
if—as the Minister indicated—the numbers are small, we
could be making some quite significant changes to the NHS in the future
with a small evidence base. If the Minister can provide us with that
information it will be helpful. However, at this stage I beg to ask
leave to withdraw the amendment.
Amendment,
by leave, withdrawn.
Sandra
Gidley: I beg to move amendment 173, in
clause 11, page 9, line 33, leave
out lines 33 and
34.
The
Chairman: With this it will be convenient to discuss
amendment 142, in
clause 11, page 9, line 34, after
‘this’, insert ‘Part of
this’.
Sandra
Gidley: The amendment would delete the entirety of
paragraph (8)(b) from new section 12C, which allows any other
provisions of the National Health Service Act 2006 to be amended,
modified or repealed—for example, where it has become apparent
that this is necessary for a general roll-out of direct payments. The
reason for tabling the amendment was that new section 12C(8) contains a
wide-ranging power to amend or modify the NHS Act. The Delegated Powers
and Regulatory Reform Committee commented on that during its
examination of the Bill. They described this as a “Henry VIII
power” and concluded that it was
“limited to
facilitating the exercise of the powers to make direct
payments.”
Other organisations
have raised concerns that in fact this may not be the case and there is
no sunset clause here. Given that the Government would like to start
pilot projects this year, it is somewhat surprising; the inclusion of a
sunset clause would reassure people that the power was only limited to
the direct payments. This is to seek clarification on the
Government’s intentions, because it is a wide-ranging power and
could have been restricted if that was the sole purpose of its
inclusion in the Bill.
Mr.
Stephen O'Brien: Both amendments seek to limit the
apparently wide-ranging powers introduced for the Secretary of State
over the 2006 Act. Subsection (9) clearly limits those powers, but the
power is still vast, as the Secretary of State needs only to be able to
state that the action is in regard to direct payments to wield it. It
is, though, subject to the affirmative resolution. In terms of the
amendment, this is a Henry VIII power, although Lord Justice Laws
suggested—I think in the 2002 metric martyrs case—that it
was unfair to attribute such powers to His late Majesty, who reigned
100 years before the civil war, and longer yet before the establishment
of parliamentary legislative supremacy. I hope the Minister can confirm
whether the power could be used to remove the measures that restrict
this to pilots as much as to remove the pilots from the 2006 Act
altogether.
Mr.
Mike O'Brien: Allowing the Secretary of State to make an
order repealing the limitation that direct payments may be made in
pilot schemes only is the aim of new section 12C of the 2006 Act. It
provides a power, effectively, to extend direct payments nationally
should the pilots be successful. That is the objective of the exercise.
Amendment 173 would remove that provision and amendment 142 would
significantly restrict its scope. So the amendments would be made to
part 2, and not the other 13 parts of the 2006
Act. I
can assure members of the Committee that the provision is not intended
to, and does not, give the Government free rein to rewrite NHS
legislation by order—and I am conscious that the words I use can
be prayed in aid in any subsequent interpretation. It is intended that
the provision would simply allow us to make any consequential
amendments to the NHS Act that might be necessary to facilitate the
wider roll-out of direct payments following the pilots that are being
undertaken. It is not intended to go beyond that, or to create a
general power to make any substantial changes beyond making a national
provision of direct payments, should that be possible, in a limited
number of cases where those limits are constrained by the nature of the
condition and the outcome of the evaluations that will take place at the
end of the pilots. The provision is reasonably clear and is aimed at
enabling us to do what works as a result of the pilots and spread it
throughout the country. We do not intend to give the powers wider
application. As the hon.
Member for Eddisbury said, the affirmative resolution procedure would
be used in relation to this. That provides a significant safeguard and
ensures appropriate accountability to Parliament. That said, I hope
that the hon. Lady will withdraw the amendment.
Mr.
Stephen O'Brien: On the basis that it is almost 30
years to the day since I last learned statutory interpretation
rules—and given that I believe the Minister is right that what
he has said is on the record and can be prayed in aid—I am
confident that the limitation now rests as written. I am happy not to
press the
amendment.
Sandra
Gidley: There is little more to add and I beg to ask leave
to withdraw the
amendment. Amendment,
by leave,
withdrawn. 11.15
am Mr.
Stephen O'Brien (Eddisbury) (Con): I beg to move amendment
17 , in
clause 11, page 9, line 42, leave
out ‘Secretary of State’ and insert
‘patient’. As
we canter to a close on clause 11, in this amendment to proposed new
section 12D we return to where we started at the top of the clause,
putting the patient at the heart of the legislation and indeed the
care. I can see that the Secretary of State might want to commission
information and support services, but will the Minister explain why
legislation is necessary to support that? Surely it comes under the
normal general duty and remit of the Secretary of State. The question
the amendment poses is whether the individual will be able to
commission support and information services as part of his or her care
plan.
Mr.
Mike O'Brien: The aim of the power, which would be
delegated from the Secretary of State to PCTs, is to allow the NHS to
work with other organisations to develop direct payments. A PCT may
choose, for example, to commission a voluntary organisation to
undertake an assessment and agree a care plan for patients, or it may
arrange for a social enterprise to offer support or brokerage services.
For example, if a budget is provided to an individual, that person may
want to use another organisation either to manage the budget itself or
to provide access to particular kinds of care. An example is agency
nursing, for which a brokerage may well broker on behalf of a
patient.
There are
different ways therefore in which we need to have provision for
organisations beyond the NHS itself to be able to deal with some of
these issues around the budget, but also to make sure the NHS’s
finances are safeguarded during that process. It enables us therefore
to have some degree of budgetary control overall but also to ensure
that the way in which these personal budgets are used gives a degree of
flexibility to individuals to handle the budgets in the way that they
feel best suits their needs and their element of health
care.
Mr.
Stephen O'Brien: I am happy with what has been put on the
record. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Question
proposed, That the clause stand part of the
Bill.
Mr.
Stephen O'Brien: New section 12C(6)(c) states that
provision as to the review of a pilot scheme may in particular include
such matters as
“the effect of
direct payments on the behaviour of patients, carers or persons
providing services in respect of which direct payments are
made.” The
word “behaviour” is the key to the whole section and it
is important that we state here that we must re-engage the patient with
the whole process of commissioning health care and with the fact that
it is a service rightly paid for by the taxpayer. Direct payments
should lead to better and more efficient commissioning behaviours and
they will also hopefully have beneficial ramifications for lifestyle
and wellbeing.
Question
put and agreed
to. Clause
11 accordingly ordered to stand part of the
Bill.
Clause
12Jurisdiction
of Health Service
Commissioner Question
proposed, That the clause stand part of the
Bill.
Mr.
Stephen O'Brien: I have a few questions concerning the
health service commissioner. What assessment have the Government made
of any increase in work load and how have they resourced that? I
discovered during proceedings on the Health and Social Care Act 2008
that although the Government are able to adjust the responsibilities of
the ombudsman through legislation such as this, the resource of the
ombudsman is not delivered through the money motion of the Bill but
must be voted directly by Parliament.
Can the
Minister confirm that the ombudsman will not be limited to
maladministration in this area? When one talks to the ombudsman, one
finds that they do not believe that they are. It is important, however,
given that most MPs who deploy the ombudsman on behalf of their
constituents tend to think that the ombudsman’s remit is limited
to maladministration. We must be clear about the expectation here,
given that there is no alternative appeals process.
The
Under-Secretary of State for Health, the hon. Member for Brentford and
Isleworth (Ann Keen), told me earlier this month, in response to a
written parliamentary
question: “The
scope and remit of the parliamentary and health service ombudsman to
consider complaints has not been changed by the abolition of the
Healthcare Commission.”—[Official
Report, 9 June 2009; Vol. 493, c.
839W.] Will
the patient in receipt of a direct payment be able to complain about
anything in the care package—the commissioning and providing, or
overpayment and underpayment, for example—rather than simply the
administration of that
package? Thirdly,
what is the hierarchy of complaints? Last year saw the removal of the
complaints function from the Healthcare Commission, now the Care
Quality Commission, which removed people’s ability to push
complaints about things other than maladministration
beyond their own trust. In the case of direct payments, if the patient
is the commissioner, do they lose the right to complain through the
PCT? Is their only recourse to complain to themselves, and to the
ombudsman? I hope the Minister can give us more clarity about how this
will
work. Mr.
Mike O'Brien: The clause expands the jurisdiction of the
Parliamentary and Health Service Ombudsman as set out in the Health
Service Commissioners Act 1993. It allows the ombudsman to investigate
people providing services funded by direct payments for health care,
but who are not health service bodies. In particular, it allows the
ombudsman to investigate matters relating to commercial or other
contractual transactions arising from arrangements for the provision of
direct payment services. So this will not just be about
maladministration; it will be somewhat wider than that, so that we can
have a proper investigation of problems that arise, which may well
result from legitimate disputes that come out of the provision of
direct budgets to
individuals. By
expanding the ombudsman’s scope in this way, we can ensure that
people who receive these services have a similar degree of protection
to other NHS patients. It is not identical—for example, the NHS
complaints system will not apply—but this is consistent with the
principle that services procured by direct payments remain NHS
services. So where a third party has provided various levels of
service, the NHS ombudsman would be able to look at how that third
party provided those services. The ombudsman will have discretion about
which complaints she wishes to investigate and we expect that she will
continue to operate in a sensible and proportionate manner. Neither we
nor the ombudsman expect these changes to add significantly to her work
load and the ombudsman is supportive of our
approach. We
are not aware of any significant resource implications, to deal with
the point raised by the hon. Member for Eddisbury, but should that
resource implication arise, we will listen to representations from the
ombudsman to ensure that these things can be properly looked into in a
proportionate and appropriate way. The resource issue is not a major
one and we will look at how this develops in the future. As I have
indicated, it is not just maladministration and we want to ensure that
the health service ombudsman, in particular, will be able to look at
matters more broadly than merely disputes between a PCT and someone who
has a budget—for example, to look at how the budget was deployed
by the individual. Reports from the ombudsman can help us in the longer
term to evaluate how these budgets are being dealt
with.
Mr.
Stephen O'Brien: The last point is important, because it
might establish patterns of behaviour as a result of the way things are
being done, which, without LINks or, indeed the former community health
councils being specifically involved, could be a very valuable way of
assessing the collective experience. It will be very important to those
who have a concern about the use of the direct payments—people
in vulnerable situations may be worried about taking a complaint to the
very body from which they need continuing support. There is always an
anxiety about using a complaints process which is effectively like a
parked arbitration process without affecting their relationship with
the continuing support that they need. This is a very important area in
terms of trust and confidence and why the independence is
valued.
The Minister
has helpfully identified the expectations, particularly as regards
resources, and that confirms what I have heard myself from the
ombudsman, but the issue will be whether there is an ability to access
the ombudsman, given that ombudsmen have a full panoply of
recommendations open to them, but, as we all know, no teeth. The best
they can do is issue another letter suggesting that the recommendation
has not been carried out, as we know from the Equitable Life debacle.
If this is to work properly, in the interests of patients, it is
important that the ombudsman be given the full remit. I am satisfied
with the reply so
far. Question
put and agreed
to. Clause
12 accordingly ordered to stand part of the
Bill. Clause
13 ordered to stand part of the
Bill.
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