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Baroness Gardner of Parkes: My Lords, perhaps I may ask the noble Baroness to elaborate on the expression, "body corporate". I ask that because, as a dental practitioner, at one time I owned a body corporate. Body corporates in the dental sense were designed to enable people who were not dentists to run dental practices. Indeed, I noticed from the press recently that Boots had acquired a body corporate and would now be running dental practices, so such bodies still exist. Is there any possibility under this Act that the body corporate could be taken over by people other than professionals, who would then run these health services? Could the whole of the health service be handed over to a body corporate?
I understand the body corporate to be a limited company. Perhaps the noble Baroness could tell me whether that is correct. If it is, is it subject to company law? Is it some other kind of body corporate? It is not a mutual. I should like to know the legal technicalities with regard to the body corporate to which the noble Baroness referred.
Lord Walton of Detchant: My Lords, having spoken in Committee against lists, which it seemed to me could
never be sufficiently exclusive, or sufficiently inclusive to meet all potential developments, I welcome the amendment, which seems to me to be sufficiently broad to take account of future developments. In particular, I welcome the inclusion of the words "in particular" in the amendment, which means that subsequently, should it prove necessary, other functions could be added by regulation to those specified in the amendment. I believe that this is an admirable solution to a difficult problem and I congratulate the Government on it.
Earl Howe: My Lords, I thank the Government for bringing forward this amendment and for responding so constructively to what I sensed was a very widely held view during the Bill's earlier stages that there needed to be an explicit definition or statement of purpose for a primary care trust spelt out in the legislation. My only regret is that the amendment has a slightly circular feel, at least as regards paragraphs (a) and (b). To be told that a primary care trust will be concerned with the provision of services under Part I of the Act is reminiscent of the party of the first part being known in a contract as the party of the first party. I had hoped that a slightly more explicit framework could be inserted without undermining the important principle of flexibility to which the Minister alluded and which the Government understandably want to maintain.
However, the Government's amendment is considerably better than what we had before--which was nothing. Lest I sound too grudging, which I have no wish to do, one of the most significant words is "and" at the end of paragraph (b). I realise that the functions listed are not mandatory for every PCT but the word "and" seems symbolic of the comprehensiveness of a PCT's functions, certainly at level 4, and the linkage between its broader commissioning and providing role and its role as a provider of personal medical and dental services under Section 28(1) of the 1997 Act. Incidentally, that answers my noble friend Lord Skelmersdale. I hope that I have not over-interpreted the significance of the word "and".
I welcome the amendment and, in light of the Minister's comments, I do not intend to preach the alternative to which I added my name or that which I tabled in Committee--the wording of which was lifted straight out of the Government's White Paper. The issue is not as simple or as straightforward as it might appear and I am grateful to the Minister for her willingness to take on board the main point of principle which causes concern to so many of us.
Baroness Thomas of Walliswood: My Lords, ours is almost a composite amendment, incorporating a sentence derived from an amendment tabled in Committee by the noble Earl, Lord Howe, but omitting all the lists that other noble Lords so understandably disliked. Our language is also taken directly from bits of paper and guidance supplied by the department. It occurred to us that it would be better partly to link an amendment on purposes back to the 1977 Act, but I did not find myself competent at that, so we proceeded with the amendment that we first thought of instead.
I listened with interest to the Minister's remarks about the Government's amendment but confess to some disappointment that it does not set itself in the context of the Bill as well as of the 1977 Act. On the other hand, it is extremely welcome that the Minister has fulfilled her indication in Committee by bringing forward a comprehensive amendment. Persons who understand legal language will understand the amendment easily but others will be puzzled and will need legal advice. I regret that it has not been possible to link the amendment with the 1977 Act in the simple way that we proposed. However, in view of the Minister's excellent amendment, it is extremely unlikely that we will contest that point again.
Baroness Hayman: I am grateful for the support for Amendment No. 1. We have done our best with it but I share some of the concerns expressed by the noble Earl, Lord Howe, and the noble Baroness, Lady Thomas of Walliswood. I doubt that it would win a plain English award, but I hope that it satisfies the average legislator more than the absence of any definition in the first place.
The noble Earl is absolutely right when he says that the use of the word "and" is significant. We expect that PCTs will exercise all three categories of function but they do not have to do so. Neither are these necessarily a comprehensive set, so that we may acknowledge developments may occur. He was also right in answering the noble Lord, Lord Skelmersdale, about Section 28(1) of the 1977 Act, which refers to the personal medical and dental services that can be provided. In doing so, PCTs will be put on the same footing as community trusts and be able to provide personal medical or dental services.
To answer the noble Baroness, Lady Gardner of Parkes, a body corporate is a body with a legal personality. It is able to exercise the same rights and be subject to the same liabilities as a natural person, subject to the statutory provisions that govern it. That is a significant area for primary care trusts and is the limitation. Primary care trusts are statutory bodies corporate in exactly the same way as NHS trusts and therefore subject to the requirements of the Bill. A PCT can only be set up by an establishment order under the Bill for the purposes in the amendment. Therefore, it could not be handed over to the private sector. That is the legal mechanism for creating those clearly NHS bodies.
On Question, amendment agreed to.
Earl Howe moved Amendment No. 2:
The noble Earl said: My Lords, this is grouped with Amendments Nos. 4 and 5, to which I have added my name. The amendments address an extremely important issue debated in Committee--the basis on which the Secretary of State should decide whether or not to establish a primary care trust. As the Bill stands, a
My concern, which is widely shared among doctors and other healthcare professionals, is that those arrangements do not provide any assurance that the views of key stakeholders--the primary care groups--will determine the Secretary of State's decision. The worry is that a PCT could be established following wide and thorough consultation but without the positive backing of those most affected by it.
Consultation is an expensive process and it would be a thoroughgoing waste of NHS resources for PCT proposals to be put out to consultation without approval by the relevant PCG having first been sought. Another issue is implementation. Unless doctors and health professionals represented on a PCG are fully committed to developing a primary care trust and have a real sense of ownership of what is proposed, it is hard to see how the group could succeed in practice.
In Committee the Minister sought to be reassuring on those points. I fully acknowledge that the amendments previously tabled, at least by these Benches, did not properly capture the aim that the approval process should be wide and inclusive. But when I read again the Minister's language in Hansard it was odd. She twice repeated the phraseology of the circular of the Department of Health which said:
With great respect to the Minister--I know that she intends to be reassuring--I do not believe that those phrases go far enough. They appear rather guarded. It is because the words seem so carefully chosen that I feel even more strongly than I did before that something of a more prescriptive and definitive nature should appear on the face of the Bill. I believe the Minister when she says that the Government want measured change with progression to trust status being driven locally. However, there is a lurking worry that what ultimately determines the Secretary of State's decision may not be the feelings and views of health professionals but, rather, the views of others or (heaven forbid) the fulfilment of a political agenda. The Bill should not allow for that and, therefore, I beg to move.
Lord Clement-Jones: My Lords, the noble Earl has spoken to a number of very important points that reflect many of the reasons for Amendment No. 5, which is very similar to his own. It is particularly important that progression from PCG to PCT status is clearly understood and that safeguards are built in. In a very recent circular relating to management costs, it is made
Like the noble Earl, I recognise that the Minister sought to reassure the Committee. She said that the Government could not put a requirement for consent on the face of the Bill because of particular circumstances. For example, two PCGs and the majority of GPs might want to go into a PCT but for some reason one of the PCGs, by vote of its members, might not be able to consent. That appeared to those on these Benches to be an exceptional circumstance; hence we have reflected that in our amendment. After all, if there were exceptional circumstances preventing progress from PCG to PCT status we would not wish to oppose that.
The language used by the Minister was in some ways more positive than that used in a letter dated 19th February from her colleague in another place. As the noble Earl pointed out, Mr. John Denham said:
Page 1, line 17, at end insert ("and following a majority vote by the members of the Primary Care Group concerned after consultation with all health care professionals that would be covered by the Primary Care Trust.").
"It is our assumption that the support of relevant primary care groups would be required".
The Minister said:
"We intend to establish PCTs in a way that is sensitive to local views".
She also said:
"The views of PCGs, local GPs and other professions will be key considerations for the Secretary of State".
3.30 p.m.
"It is our assumption that the support of the relevant primary care group would be required".
The noble Baroness said that the Government did not envisage circumstances in which proposals would go ahead without the support of PCGs. I appreciate that she was putting a gloss on that letter. However, the difference in the language of the letter is significant. All of the professionals to whom we on these Benches have spoken in connection with this amendment have said that clearly there is no point in going out to consultation on progress towards PCT status if the basic requirement of consent of the primary care group is not met. Therefore, this amendment seeks further reassurance from the Minister about the nature of the consultation. I hope very much that she will be able to give that reassurance today.
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