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Baroness Carnegy of Lour: My Lords, my noble friend Lord Howe made a powerful case in moving Amendment No. 2. Almost everything he said has been repeated by the noble Lord, Lord Clement-Jones, in speaking to his amendment. I believe that this is a simple matter and should not be made too complicated. To move from a primary care group to a primary care trust is a very big step, particularly if the trust is to move to stage 4. It is a move that all the stakeholders must support if it is to work. The word "stakeholding" is absolutely meaningless if it does not mean that everyone has a stake. One cannot have a stake in something that one does not want. On those very simple grounds I believe that the Government must accept either this amendment or something very much like it. To reject the amendment would be extremely foolish.

Baroness Sharp of Guildford: My Lords, I rise to speak to Amendment No. 4. The amendment relates

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to a slightly different issue from the one raised by the noble Earl, Lord Howe, and by my noble friend Lord Clement-Jones. It relates to the wider process of consultation within the community over the establishment of primary care trusts. In Committee the Minister made clear that consultation about the setting up of primary care trusts would be mandatory. The question at issue was who should be consulted in that process. In particular we on these Benches were concerned that the consultation should involve both the wider medical community such as dentists, opticians, pharmacists and professionals allied to medicine, for example, physiotherapists, occupational therapists, speech therapists and so on, and lay members of the community represented by community health councils and the voluntary sector, including representatives of both carers and patients.

We had considerable discussion as to how far it was possible to prescribe who should be consulted by lists. The consensus, as on other issues, was that lists were too prescriptive and inflexible. The Minister echoed those thoughts. However, she assured us that the regulations to be made would specify wide consultation, including both the wider medical community, patient and carer groups and the voluntary sector. We made clear that we were not entirely happy with the response of the Minister. We have not yet seen the regulations. Can the Minister give an assurance that they will be laid before the House prior to this Bill going to the other place?

While we accept the dangers of being too prescriptive and inflexible, we maintain the core principle; namely, if primary care trusts are to work satisfactorily they must be owned by their local communities and wide consultation helps to create such a sense of ownership. In order to meet the wish of the Minister to have a more flexible and less prescriptive form of words we have redrafted our amendment. We now merely ask that it should be specified on the face of the Bill that key partners in the delivery of healthcare under the National Health Service should be consulted.

I reiterate that although the wording is more generalised, an issue of principle underlies the amendment. The Minister made clear at Committee stage the distinction between primary care groups which are to be led by GPs and practice nurses as commissioners of services and the primary care trusts which may be providers as well as commissioners of services. Unless specified on the face of the Bill, in moving from a stage 2 primary care group to a stage 3 primary care trust, there is a danger that consultation does not go wide enough and is too narrowly focused among the GPs and practice nurses who are involved already in running the group and subsequently the trust. By requiring consultation with key partners, and with the regulations specifying who those key partners shall be, we make sure that wide consultation takes place.

It is an important issue. Healthcare is more than just GPs' surgeries and hospitals. It involves all those we have sought previously to specify: the dentists and opticians; the physiotherapists and occupational therapists; chiropodists and social workers; universities and training institutes; and patients, carers and voluntary

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organisations. If those groups are to play a full part in this new community-based healthcare system that the Government are promoting--the primary care trust--then they must trust and work with it, and they must be consulted when those trusts are established.

Baroness Gardner of Parkes: My Lords, I support Amendment No. 2 moved by my noble friend Lord Howe. I support that part of Amendment No. 5 which makes almost the same provision as Amendment No. 2. I am less happy with the phrase in Amendment No. 5 "except in exceptional circumstances". That provides such a let-out that it negates the majority vote.

The only fault that I can find with the amendment moved by my noble friend Lord Howe is that it refers only to a majority. I believe that two-thirds should be in favour. There should be a definite process whereby people are able to register their feelings. My noble friend suggests a majority vote. It is generous to suggest simply a majority on the face of the Bill. We could have suggested a larger figure. However, we believe that those entering into a trust must be committed to it and want the best for the health service. Unless one has that provision, a small group of people on the primary care group with a lot of influence could overrule their less articulate colleagues and one could have people going into a primary care trust without being fully committed. I believe that Amendment No. 2 is a good amendment.

I found the speech of the noble Baroness, Lady Sharp of Guildford, on Amendment No. 4 very interesting. It is a chicken and egg situation. The noble Baroness referred to key partners. She did not mention pharmacists. One could go on and on; a list is never complete. But if one refers to key partners the question arises of how they will be defined. There is a problem therefore with Amendment No. 4. But I support Amendment No. 2 wholeheartedly.

Lord Skelmersdale: My Lords, the noble Baroness has differentiated between Amendment No. 2 and the other two amendments. When I describe the NHS as a great juggernaut, it is by no means pejorative. I use the term almost as a mark of respect. It is difficult to stop a great juggernaut and to make it turn corners; in the case of the Queen Mary, for example, to veer slightly to the left or right; or in the case of this Government to veer straight ahead! But we shall leave that point for another time.

It is vital that all healthcare professionals should be consulted. That theme runs through Amendments Nos. 2, 4 and 5. What is different is that having conducted the consultation the primary care group should have a vote which should be settled on a majority. The Government are keen on democratisation. They seek to democratise this House; they seek to democratise local government arrangements; they have almost succeeded in democratising local government proceedings in Scotland and Wales, and of course in London. I see no reason therefore why they should not democratise the institutional change of primary care groups from stage 3 to the ultimate stage 4 of the

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primary care trust. Therefore I hope that the noble Baroness will have no difficulty in accepting the amendment.

3.45 p.m.

Baroness Cumberlege: My Lords, I strongly support my noble friend. The Minister will be well aware that if one is to achieve any change in the NHS, one has to take the key professionals with you. Traditionally, the way to do that has been to consult them fully. The noble Baroness will also be aware of some of the pitfalls of consultation. Those issuing consultation papers profess that they are sincere; that they are listening; and that they will be influenced by the outcome. But those who are being consulted sometimes suffer from consultation fatigue. As a result, they are wary, sometimes cynical, and think that the whole process is just another NHS tribal ritual--a sort of rite of passage before proposals come into being.

The amendment put forward by my noble friend gets over that problem. He seeks a majority vote. That is an excellent idea. It is clear; it is concise; and it rules out any ambivalence, any interpretation, of the consultation exercise that has taken place. I am aware that the Minister may not wholeheartedly support the amendment. However, perhaps I may probe further. There is a possibility that the amendment could be rejected. Will the noble Baroness tell us today what criteria will be exercised by the Government when they take on board the consultation? What evidence will they require to be assured that the majority is in favour? Can the Minister also say what processes will be in place during the course of consultation so that the Secretary of State can assess the views of the PCG about progress to trust status where that view differs from the health authority?

Baroness Fookes: My Lords, before the Minister replies I have a question, the answer to which may influence the way I vote on the amendments before us. Can we have an absolute assurance from the Minister that if as a result of the consultations she proposes there seems to be no enthusiasm, or perhaps even downright hostility, to moving to a trust, she will not then go ahead with making the order? It is a key point. I am slightly cynical as to whether we shall have such an assurance. In those circumstances, I prefer the certainty of Amendment No. 2.

Baroness Hayman: My Lords, we have had an interesting short debate following the extensive debates at Committee stage. We have discussed some of the same issues. Those issues do not relate to the ends that we wish to achieve but the effectiveness of the means of achieving them.

There are two issues. The first relates to the many difficulties in drawing up in primary legislation exactly who must be consulted before a primary care trust is established. Amendment No. 4 returns to that issue. The second issue is the relative weight which should be given to the views of local players and professionals, and those of the primary care groups and GPs in particular, to which Amendments Nos. 2 and 5 refer.

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I am grateful to those who drafted the amendments for trying to accommodate the "exceptional circumstances" issue, which I put forward as one of the reasons against including this in primary legislation. I am not sure whether that helps, because we then have an argument about what "exceptional circumstances" means, who interprets it and whether it is a meaningful phrase to put into primary legislation. I tried to reassure the House in earlier debates; I will try to reassure your Lordships again today and to clarify some of the issues.

One issue I should like to make clear at the beginning, which in earlier debates may have become slightly lost in our focusing on the technicalities, is that the Secretary of State for Health can establish a primary care trust only after consultation. The effect of the new Section 16A(4) and (5) inserted by Clause 2 is to impose a cast-iron duty on the Secretary of State to impose consultation requirements before a PCT is established. Our key aim has always been that the whole process leading up to the Secretary of State considering the establishment of a primary care trust is a local one, taking into account a wide range of local views on proposals generated locally. Consultation needs to be thorough and effective. I take the point that the noble Baroness, Lady Cumberlege, made: consultation should not be a ritual process to be gone through; it should be realistic and inclusive, with a significant number of interests being considered and balanced.

We recognise that developing and shaping the delivery of healthcare to meet the needs of the local population needs to involve the whole community. As a matter of government policy we will therefore be considering the interests of all relevant parties when making these regulations. I can give a clear assurance that we will, first, be consulting very widely and, secondly, be taking account of those views--the point to which the noble Baroness, Lady Fookes, referred.

On Amendments Nos. 2 and 5 I will reiterate a further assurance which I gave to the House. It is no part of the Government's agenda to impose primary care trusts on the service in the face of local opposition, nor to deliver GPs and other healthcare professionals, bound and gagged, into primary care trusts. The process will be locally driven, based on and sensitive to local needs. In response to the noble Lord, Lord Clement-Jones, I can say that it will not be driven by issues of management costs. There is an envelope to cover health authorities, PCGs and, in due course, PCTs. It is not a question of devolution to PCTs being driven by management costs; rather, the principle is that funding for management costs should be consistent with where the management function is being discharged. If they are taking on more management, the costs should shift to them for doing that; but it is a matter of redistribution and not of changing the existing package.

Returning to the basic issue, the views of primary care groups, local GPs and other professions, as well as those of the wider community and the NHS locally, will be key considerations for the Secretary of State in deciding whether or not to establish a primary care trust, and the support of the relevant primary care group will be a

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crucial consideration. We intend to establish PCTs in a way that is sensitive to local views and primary care groups are obviously key to that.

We have made it clear that it is our assumption that the support of the relevant primary care group will be required before a primary care trust is established. Let me make it clear once again that we want primary care trusts to be established with the support of local primary care groups, and we recognise the arguments that have been put forward about local ownership if they are to be a success. The House can therefore be reassured that the support of the PCG will be a critical factor in our decision.

So far there is not a great deal in the argument between those who support the amendments and myself, who has difficulty with them. Perhaps I may explain to the House what those difficulties are. In taking account of the views of one group of stakeholders, however important they are--and here we are talking about the PCGs--we should not allow for the possibility of automatically ignoring the views of others in the local community as though they had no weight at all. That is what Amendment No. 2 does. I believe that it would serve to demean the importance of the partners in the local NHS, such as community trusts and their staff, who will be very much affected by these proposals. As I said in Committee, it may be, though we hope that it will not, that complex and difficult situations--dare I say, exceptional circumstances?--arise which require careful and sensitive handling. Amendment No. 5 recognises that possibility.

At Committee stage I gave one example; perhaps I may now give another. Let us consider the situation where almost exactly half of the local GPs within a PCG area are strongly in favour of a proposal to establish a primary care trust and half are lukewarm about it. The health authority, neighbouring PCGs, the local community trust and acute trust clinicians and managers, and local authority are all strongly supportive; and the Community Health Council and local patient and carer groups give unanimous support in favour of establishing a PCT. Surely the Secretary of State should not then be obliged by primary legislation to ignore those views. After all, the Government have always maintained that they want the establishment of primary care trusts to be locally driven. That means reflecting a broad spectrum of views.

I have given a hypothetical example in which almost exactly half of the GPs within a PCG area are strongly in favour and half are lukewarm, but that is not what these amendments provide for. They state that PCG members--that is, the PCG board--would be responsible for the veto. Local healthcare professionals, who in lay terms may be described as PCG members--that was the point behind the comments of the noble Baroness, Lady Gardner, regarding a bare majority or a clear majority--do not fall within that definition as a matter of law. Given that PCG boards may comprise a minimum of nine members, these amendments effectively provide that five individuals on the PCG board, a majority of the board, could stand in the way of the establishment of a primary care trust despite

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overwhelming local support. That does not seem to me to be an appropriate way of dealing with a very difficult local circumstance.

I have a further difficulty with Amendment No. 5. It seems to me to be almost impossible to provide a satisfactory, objective definition of what constitutes "exceptional circumstances". I do not believe that it is feasible to capture all the circumstances which could be considered exceptional. I am not even clear whether the example I have just given would, in terms of statute, constitute exceptional circumstances. It is the sort of situation where the clear judgment of a Secretary of State would be needed regarding the best way forward in a difficult situation.

A further more technical point is that there is a problem in specifying a particular role for primary care groups on the face of the Bill. The pace at which PCGs progress to PCTs will vary, but there may be circumstances where, say, the whole of the health authority is covered by PCTs. People locally may want to re-configure primary care trusts; for example, by creating a new one. In those circumstances, the requirement to achieve primary care group agreement would not be relevant.

The difficulty with Amendment No. 4 is the use of the term "key partners." As regards the definition, what, as a matter of law, does that proposition mean? Who are the key partners? Could they vary from one locality to another? How does one define them in primary legislation without getting into the recurrent list problem? Furthermore, I suggest that the Secretary of State must bear in mind a whole range of interests and should consider all relevant factors, not just those of the key partners, whoever they might be. There is a danger that in specifying "key partners" we are importing "two-tierism" into the Bill and enshrining in primary legislation a system between partners who matter, who are the key partners, and partners who do not matter, who are not on the face of the Bill. I do not believe that that is the most conducive approach to partnership working.

Finally, the way in which the Bill approaches the issue is based on clear precedent. The 1990 Act does not require the Secretary of State to have regard to particular interests when making regulations as to the consultation requirements which are to apply before an NHS trust is established. We are trying to mirror that situation here. I hope that I have persuaded your Lordships that there is no substantive disagreement as to the policy intentions but that there are some real and serious difficulties in spelling out those policy intentions on the face of the Bill.

I was asked about the criteria for the establishment of a primary care trust. I make it clear that top among them are likely to be a clear vision of the service and health benefits which establishing the trust may bring, an effective contribution to the local health improvement programme, effective arrangements for developing clinical standards and proper arrangements for monitoring activity. First and foremost, however, there must be broad local support for its establishment, including among the GPs affected.

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I hope that in the light of those reassurances, our clear intention to have wide and meaningful consultation and our clear recognition that GPs and other primary care group professionals are crucial to the matter, the House will feel that it is not sensible to put such definitions on the face of the Bill.

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