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Lord Hunt of Kings Heath: I welcome the opportunity to debate this important subject, which has been debated frequently in your Lordships' Chamber in the past two years, for reasons that are entirely understandable.

My first response to the noble Lord, Lord Clement-Jones, as my noble friend Lord Harris foreshadowed, must be that the matter is enshrined in legislation. The whole ethos of the NHS must be to ensure fair and equal treatment to all. I refer the noble Lord to Section 1 of the NHS Act 1977, which places a duty on the NHS to provide a comprehensive health service for all. That is the starting point and the framework under which the health service must operate in providing a service to all citizens in this country.

I can go further and say that the Government have consistently stated that discrimination on grounds of gender, race, religion, sexual orientation, disability or age is wholly unacceptable. I very much reject the

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charge made by the noble Lord, Lord Clement-Jones, that the Government have not taken action to ensure that that is carried out in practice.

The NHS Plan sets out our vision for healthcare services in this country, which must be built around the needs and preferences of individual patients, their families and carers. The NHS of the 21st century must respond to the needs of different groups in society, whatever their age, gender, ethnicity, religion, disability or sexuality. We are committed to ensuring that the NHS will treat patients as individuals and with respect for their dignity.

I shall give some examples of the action we have taken. I firmly believe that unless we have the right approach to staffing in terms of equal opportunity, we shall not be providing services to the whole population in the way in which the noble Lord, Lord Clement-Jones wishes.

The NHS Plan introduces a standard to improve working lives and makes clear that every member of staff in the NHS is entitled to work in an organisation that can prove that it is investing in improving diversity and tackling discrimination and harassment. We are tackling harassment of staff, including racial harassment.

The "positively diverse" initiative brings together a service-wide consortium of healthcare and other partners to improve access and participation for all sections of local communities in the healthcare work force. We have set targets to increase minority ethnic representation in executive posts at board level to 7 per cent by the end of March 2004.

It is extremely important to set the foundation in which to eliminate discrimination in service delivery. We are facing up to inequalities in health, and launched the Acheson inquiry into health inequalities. We published the White Paper, Our Healthier Nation, and announced new health inequalities targets. Tackling inequalities is a key issue for health action zones.

The noble Lord, Lord Clement-Jones, referred to national service frameworks, and said that they were not sufficient. I believe that such frameworks are the ideal vehicle to ensure high quality and consistent provision of services throughout the country. We know that it has been a persistent sin of the NHS to have an inconsistent and patchy service. The national service framework for older people will be the ideal vehicle to raise standards in the way in which the noble Lord, Lord Clement-Jones, has rightly suggested. The Commission for Health Improvement is designed to allow us to examine the progress of the NHS and to address issues of access to healthcare.

I am not persuaded that defining legislation is the way forward. The fundamental duty of the NHS is laid down in the 1977 Act. The issue is not about adding to that legislation, but ensuring that we implement its provisions effectively in the National Health Service. I hope that the noble Lord, Lord Clement-Jones, will understand that the arrangements that we are putting in place, the targets in the NHS Plan and the national service framework for older people, which will be

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published shortly, will enable the NHS to tackle the issues, which the noble Lord has rightly raised, more effectively.

With regard to clinical treatments for older people, I can tell the noble Lord that I would deplore any such arbitrary age limit to which he referred. The treatment of older people must be based on clinical assessment alone.

Baroness Barker: I can tell from the Minister's face that he thinks that I am about to ask about the national service frameworks, but I am not. I want to ask him to pick up the point made by the noble Lord, Lord Harris, about protocols for treatment having to be based on factors other than age.

Lord Hunt of Kings Heath: Whether we are talking about protocol for treatment, or the clinical policies adopted in individual hospitals, the Government have said consistently that arbitrary age limits are not supported. The issue in the end is about an individual's clinical assessment made by a doctor.

Lord Clement-Jones: I entirely recognise the Minister's sincerity and genuine belief that new legislation is not the way forward. I am delighted to have elicited from him that he regards Section 1 of the 1977 Act as being as good as the amendment that I am proposing today, although I find that a little difficult to believe. As far as I know, no one has ever sued under Section 1 of the 1977 Act. I do not believe that medical negligence lawyers are lining up behind ambulances to use that Act, but I may be entirely mistaken.

I recognise that there is a litigation-averse feeling both in the NHS and more widely in the department itself. But that should not stop us considering the most effective way of preventing discrimination in the future. Time will tell. The Minister clearly believes that a national service framework is the ideal method of improving standards. I find that a little bit tall. They are relatively new instruments and we have the Commission for Health Improvement to help enforce them.

Lord Hunt of Kings Heath: Perhaps I can intervene and explain to the noble Lord, Lord Clement-Jones, why national service frameworks offer the best vehicle for taking forward these issues.

If we look back at the history of the NHS we can see, and my office contains, many reports which have been produced and designed to improve the provision of a specific service. The problem with that is that reports are produced without any connection to implementation, particularly in relation to resources.

The whole point of national service frameworks is to come forward with realistic plans for the implementation of changes in the health service which can reasonably be expected to be implemented because of the resources available and the robust performance management system that is adopted. That is why

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national service frameworks represent a much more effective way of ensuring changes in services than has been the case historically in the NHS.

Lord Clement-Jones: I thank the Minister for that intervention. I am a fairly rusty lawyer and am certainly not about to give a lecture on the law of tort. But lawyers are used to having a set of standards by which they judge whether or not somebody is guilty of malpractice, negligence or maladministration. Of course the national service frameworks are an extremely good method of testing the general level of standards that should be applicable. But it is rather like the Human Rights Act. That was an extremely valuable piece of legislation. It means that there are tests and that the whole system in government and the way we treat people has been tightened up. Why should it be any different in terms of adopting a clause of this nature within the NHS? Of course there will be cost implications and administrative tightening-up that will need to be carried out.

We are clearly going to return to this subject, no doubt on this Bill and in the future. There is a difference in relation to means; I do not believe there is any difference as to ends. Time will tell whether the Minister's optimism in national service frameworks is justified. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

7. 15 p.m.

Clause 1 [Determination of allotments to and resource limits for Health Authorities and Primary Care Trusts]:

Earl Howe moved Amendment No. 5:

    Page 1, line 12, leave out "(in whatever way he thinks appropriate)"

The noble Earl said: My Lords, I do not suppose that I am alone in finding Clause 1 of the Bill quite a complicated piece of drafting. At the best of times NHS finance is an extremely difficult and specialist science and I do not pretend to be an expert in it. However, I feel that, as far as possible, what happens to taxpayers' money and who receives it should be clear and transparent.

The element lacking in Clause 1 is any acknowledgement of the importance of the transparency principle and the purpose of Amendments Nos. 5, 7, 9, 10 and 13 is to try to rectify that omission.

The Minister will know that, for many years, allocations to health authorities have been based broadly on resource allocation principles. At the moment we have the Advisory Committee on Resource Allocation which advises Ministers on these issues. But inevitably, as each new version or refinement of these principles is adopted, some authorities find that they are above the target or below

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the target. The annual allocation process therefore has to try to make adjustments to shrink the gaps in both directions.

During the 1990s, under the last government, considerable progress was made in doing just that. In 1992 the gap--that is to say, the gap measured as the distance between the authority with the highest percentage above target and the authority with the lowest percentage below target--was around 34 per cent. By 1998-99 it had fallen to around 14 per cent. However, since then the trend has been reversed. I have not been able to lay my hands on precise figures, but my understanding is that very little of the total allocations during the past two or three years have been used to redistribute money between over and under- target authorities. That process of strategic shift in resources ought to be clearly in the public domain. At the moment it is not.

Ideally, the Government should publish the allocation target and the distance from target of each body. We should also ideally be able to see what amounts have been top-sliced from the budgets, such as the amounts in the NHS performance fund. However, it would be a welcome first step if a statement was laid before Parliament which set out the principles on which allocations are made and the amounts of money being parcelled out. That is what Amendment No. 9 seeks to do.

The Government indicated that the purpose of Clause 1 is to get fair shares for GP services. I do not suggest that there is anything wrong with that aim. However, it is patently obvious that another valuable by-product of that clause--that is, valuable to the Department of Health and the Treasury--is that it enables Ministers to obtain control of non cash-limited GP spending.

For example, if a southern health authority has had historically high levels of GP services and an average level of secondary care services, then its overall level of spending will have been above average. Clause 1 will empower the Secretary of State to cut allocations to the authority in order to level down the effect of apparently high GP spending. But it is worth saying that high spending is not in itself a good indicator of over-provision. Some costs associated with Part II services will inevitably be higher in areas where property prices and wages are higher than they are in other areas.

I understand about the new unified formula referred to in the Explanatory Notes. Paragraph 23 of the notes says that this formula should not lead to the cash limiting of Part II expenditure. That is an example of economy with the truth. It is clear that, as a result of the unified formula, some cash limits will bite on the allocations that are made by health authorities to PCTs; in other words, cash limiting by the back door.

The notes say that those authorities that are over target under the new rules will receive lower funding growth than those under target. Can the Minister confirm that there will at least be no reduction in allocation, certainly in cash terms, as a result of the new powers?

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Let me revert briefly to where I started; that is, to the issue of transparency. The powers conferred by Clause 1 are incredibly widely drawn. It says that the Secretary of State may take into account a health authority's Part II expenditure,

    "in whatever way he thinks appropriate".

That is a recipe for completely subjective decision making. If one takes the wording literally, the Secretary of State could abandon all pretence of following a laid-down resource allocation formula and do exactly as he likes without disclosing why he is doing it. To take that to an extreme, although the idea is admittedly fanciful, it would not do for the powers to be used to redistribute money into, for example, favoured marginal constituencies. What statutory safeguards are there to prevent that happening? What is to stop the Secretary of State taking into account one authority's general Part II expenditure in a certain way and yet take into account another authority's Part II expenditure in a completely different way or, indeed, not at all?

It does not seem to me to be right to depart from the principle which says that money should be allocated around the health service only by means of objective and fairly applied formulae. However, to the extent that formulae sometimes need to be refined and tweaked, I believe that it is of fundamental importance that there should be maximum transparency in the way that that is done. I beg to move.

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