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by leave, withdrawn.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
28Breach
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
29LPS
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. The
last thing that we want is to take certain steps to ensure that people
have access to drugs, but not have the legal basis to do so. That would
be wrong. It would be not thinking ahead. There could be circumstances
in which we need to have such a provision, so let us be sure
that it is on the statute book. We can make the
necessary regulations to enable safeguards. Section 175 of the 2006 Act
defines prescribed as being prescribed by regulations made by the
Secretary of State. The provision would not enable the PCT just to make
a decision. I appreciate that the hon. Gentleman was stating an extreme
case, but that could not arise because Parliament would have passed a
regulation enabling such powers to be
exercised. 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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