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Mr. Mike O'Brien: The points that the hon. Gentleman has made during his closing speech have made me think a little further about these issues. In due course, as I consider some of the points that he has raised, I may write to him on this matter.
Mr. Stephen O'Brien: I am most grateful to the Minister. I think that that has been a very satisfactory exchange.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 ordered to stand part of the Bill.
Clause 27 ordered to stand part of the Bill.

Clause 28

Breach of terms of arrangements: notices and penalties
Mr. Stephen O'Brien: I beg to move amendment 133, in clause 28, page 30, line 12, after ‘period’, insert
‘and in consultation with the professional and regulatory bodies for pharmacists.’.
The Chairman: With this, it will be convenient to discuss amendment 134, in clause 31, page 31, line 36, after ‘period’, insert
‘and in consultation with the professional and regulatory bodies for pharmacists in Wales’.
Mr. O'Brien: I am sorry that nobody else is getting up to speak at the moment; I feel that I have talked enough already. [Laughter.] Do not all agree.
Happily, we have now reached clause 28, which is on the second page of the second list of grouped amendments and not on today’s list of grouped amendments. Amendments 133 and 134 would place a duty on PCTs to consult the regulatory and professional bodies for pharmacists in England, in relation to clause 28, and in Wales, in relation to clause 31. They seek to probe the Government about where the power to suspend pay should lie.
Earl Howe raised the issue of a PCT’s powers of intervention in matters concerning pharmacists’ professional conduct in the other place. However, he did so with regard to another clause in the Bill. I want to address some of the issues that he commented on with respect to clause 28, as I question whether it is appropriate for a PCT to suspend the pay of a pharmaceutical service. The power to suspend pay could be detrimental to patient care if it is not strictly controlled. If the payment of pharmaceutical services is suspended, those services could deteriorate rapidly and that could severely hamper services to patients. As the National Pharmacy Association put it:
“Pharmacies’ day-to-day financial outlay cannot usually be deferred, so withholding payment would have an immediate and dramatic effect on cash flow and the consequent ability to provide core services.”
We must ensure that the measure is used as a last resort and that the power to suspend pay is not exploited in inappropriate circumstances. What assurances can the Minister give that the use of this power will not have a detrimental effect on local services?
Another reason that I tabled my amendment is that PCTs may not understand the nuances of the pharmaceutical sector and therefore may not be in a position to make a judgment as to whether they have breached the arrangements for service delivery. However, I believe that the principle behind clause 28 is right. I merely wish to query whether the decision to suspend pay should be a collaborative one rather than one that is made solely by the PCT.
Perhaps the Minister can specify in his response the measures that he will put in place to prevent PCTs from abusing the power to suspend pay. If a PCT has commissioned a pharmaceutical service, it is perversely in its interest to suspend pay while still reaping the benefits of that service. In extreme circumstances, the system could be abused to bring about cost savings. An arbiter in the form of a pharmaceutical regulatory body could prevent such a situation from arising and ensure that the case of the accused pharmaceutical service is sufficiently represented.
To quote Earl Howe:
“The natural question that arises is who regulates pharmacists. Is it PCTs or is it the Royal Pharmaceutical Society of Great Britain? If it is in effect both, which body takes precedence?”
6 pm
In her answer to Earl Howe, the Minister, Baroness Thornton, stated:
“The GPhC will be the new regulator for pharmacists, pharmacy technicians and pharmacy premises, taking over the role currently performed by the Royal Pharmaceutical Society of Great Britain”.
She assured Earl Howe that the Government will
“strive to demarcate in the regulations”
of clause 24
“the respective responsibilities of the new regulator and the responsibilities of primary care trusts.”—[Official Report, House of Lords, 11 March 2009; Vol. 708, c. GC481-482.]
However, her reply does not answer my question on the suspension of pay in clause 31. Should the council, with its new responsibilities, be given a role in deliberating whether the actions of a pharmaceutical service warrant the actions outlined in clause 31? I would be grateful for the Minister’s reply on that point.
The Chairman: The question is that the amendment be made. I call Mr. Stephen O’Brien.
Mr. Mike O'Brien: Too many O’Briens, Mr. Key.
First, I should like to make it clear that we see the use of the powers as a matter of last resort, not of first resort. They will be part of a progressive series of steps to ensure that contractors achieve acceptable quality standards, and PCT decisions will be appealable. The same provisions are proposed in clause 31 for Welsh Ministers.
The amendments would place a duty on PCTs in England and on local health boards in Wales to consult professional and regulatory pharmacist bodies before deciding whether to withhold NHS contractual payments that are due to a person when there are continuing concerns about poor or inadequate performance. I am not convinced as to why that is necessary. As a general rule, we strive to keep NHS contractual matters and professional regulatory matters distinct. The amendments would confuse and integrate the two.
I reassure the hon. Member for Eddisbury that there is no intention to penalise individual pharmacists for poor performance. In that respect, the aim is to look at the practitioner as the person as set out in the pharmaceutical list. The list is published by the PCT of persons who are authorised to provide pharmaceutical services by the PCT. In other words, it is essentially a list of contractors. They may be sole traders, partners or companies and it is not a list of individuals.
The aim is to ensure that when absolutely necessary, we are able to intervene to deal with something when it gets to such a poor state that the quality of provision being made available to local people deteriorates unacceptably. If we accepted the amendment, it might leave professional and regulatory bodies rather baffled as to what they would be expected to do if a PCT consulted them. That is not the remit of those bodies, nor would they be equipped to take on such a role. They are not really in a position to take a view on a PCT’s responsibilities. For that reason, Welsh Ministers and I cannot accept the amendments, and I ask the hon. Gentleman to withdraw.
Mr. Stephen O'Brien: Obviously, I listened to the Minister and he said early in his reply that the powers were last resort powers, which is important. He also made the point that there was a degree to which the regulatory bodies would be baffled. Whether or not that is the case, I made it clear that my amendments were probing and that I did not intend to press them to a Division. The Minister’s response went a long way towards clarifying the question of the demarcation of responsibilities for regulation, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 ordered to stand part of the Bill.

Clause 29

LPS schemes: powers of Primary Care Trusts and Strategic Health Authorities
Mr. Stephen O'Brien: I beg to move amendment 150, in clause 29, page 31, line 7, leave out ‘prescribed circumstances’ and insert
‘accordance with regulations issued by the Secretary of State’.
The Chairman: With this it will be convenient to discuss amendment 151, in clause 29, page 31, line 7, at end insert—
‘(2C) The regulations under this section must make provision—
(a) as to the circumstances under which a Primary Care Trust may provide local pharmaceutical services.
(b) as to a duty placed on Primary Care Trusts to report any plan to provide such services to the Secretary of State.’.
Mr. Stephen O'Brien: The amendments address my fear that parts of clause 29 are too loosely worded to merit the circumstances in which the Government claim that they would apply this legislation. I guess that all Committee members can follow that we have left pharmaceutical services in England and moved into chapter 5A, “Notices and penalties”. Although we have left the part of the Bill that dealt with them, we are now back to the question of local pharmaceutical services. I just wanted to make sure that we are all clear what we are talking about.
In the explanatory notes, the Government state that PCTs should be able to provide their own pharmaceutical services in the case of an emergency or an exceptional circumstance. The Bill will
“remove the restrictions in NHS legislation on PCTs providing local pharmaceutical services...or to other PCTs, in certain circumstances, for example, in the event of any emergency such as a flu pandemic or where there was no alternative provider.”
The clause is topical as well as important.
The impact assessment makes a similar statement by noting that PCTs will
“provide services themselves in an emergency or where there is no suitable alternative”.
It goes on to state:
“At this stage the Department has not identified a significant impact arising from these proposals, as the use by PCTs of these new provisions would be expected to be of limited duration and only in exceptional circumstances”.
That admission is at least a bit surprising, given that we are on the brink of a flu pandemic that could sweep across the nation at any moment. The Department obviously had swine flu in mind when drafting the Bill, as it referred to the flu pandemic in the impact assessment, yet it has not assessed the provisions’ impact in advance of an outbreak, which is a serious concern. Perhaps the Minister will address that matter in his response.
In a case where a PCT decides to provide a local pharmaceutical service, I understand that the strategic health authority would become the commissioner in order to prevent a situation from arising in which a PCT is performing the roles of both commissioner and provider. In clause 29, the Government amend legislation from the National Health Service Act 2006 to make provision for such circumstances.
My concerns with the Government’s amendments to the 2006 Act are twofold. First, there is an issue of accountability. If PCTs are to carry out the function only in an emergency, surely the circumstances in which they are permitted to provide pharmaceutical services should be prescribed on the face of the Bill; otherwise, there is nothing to prevent PCTs from providing services on a whim or in normal circumstances that do not qualify as an emergency.
What parties will define an emergency? Patently, that is the threshold. My amendments would allow for that by permitting the Secretary of State to publish in a series of regulations the circumstances in which a PCT could provide such a service. The amendments would also place on PCTs a duty to inform the Secretary of State of their intentions if they believe that circumstances allow them to provide a service.
The Minister may argue that at a time of emergency, he does not want so-called bureaucracy or red tape getting in the way of PCTs becoming pharmaceutical providers, and I am pretty sympathetic to that. However, it is only fair to argue that the Government must also make adequate provision for the times when we are not facing an emergency and prevent PCTs from providing the services unnecessarily. It seems ludicrous that under the proposed legislation, a PCT could conduct a PNA, identify a need and then seek to provide for that need itself, all within the bounds of the Bill. What is to stop a PCT deliberately identifying a need it knows that it can satisfy, purely for financial gain? I accept that that is an extreme form of analysis but it is not implausible, particularly if there were any real pressure on a PCT and it was looking to gain from the situation. I accept that we are discussing extreme circumstances, but as it is our job to point out significant pitfalls in the Bill, it is right and appropriate that I have raised such matters, without casting any aspersions on the current management and composition of boards of any PCT in the land. I hope that I have given a good explanation of why the amendments have been tabled. Obviously, the Minister’s reply will be both interesting and important.
Mr. Mike O'Brien: Clause 29 amends section 144 and schedule 12 of the National Health Service Act 2006 to enable the Secretary of State to authorise PCTs to provide local pharmaceutical and drugs services in certain situations. There is no intention to enable PCTs to have a long-term role in providing drugs directly. Let me be clear. We want to enable PCTs to provide services in local situations, such as in an outbreak of pandemic flu or when there is no suitable alternative provider. The Bill would enable the strategic health authority or another PCT to become the commissioning body, in effect, of the providing PCT. That role and distinction will be maintained.
We propose these changes because it is prudent for a PCT to have the power to act as a service provider. The emergencies that we are describing are those in cases of a serious pandemic of, say, flu. We are aware that the current swine flu condition has been described by the World Health Organisation as a pandemic and that its impact so far on individuals has appeared in the vast majority of cases to be relatively mild. A dose of flu is never completely mild, but we must compare it with some of the strains that we have experienced over the decades. Flu can happen in waves; it can, in effect, pass through and come back again. We need to make provision for not only flu, but other eventualities, so the provision is very much seen as a precautionary step to enable us to put in place the necessary legal infrastructure, should the need for it arise.
There will be limited circumstances. There will be no long-term role as a provider of pharmacy services for PCTs. Their role will be to ensure continued provision in emergencies or when there is no suitable alternative. We envisage the powers being used in emergencies and used only as a temporary measure until the normal service can be resumed. Having given those reassurances, I hope that the hon. Gentleman will withdraw the amendment.
6.15 pm
 
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