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Baroness Masham of Ilton: Following on from the points raised by the noble Earl, perhaps I may ask the Minister about the training of advocates. Will a list of advocates who can be called upon be available, and will there be a rota? Different training will need to be given in different parts of the country. The needs in an area such as Herefordshire are quite different from those which one comes across in Tower Hamlets.
Lord Hunt of Kings Heath: Some of those matters will need to be developed as the Bill, if enacted, is implemented. Clearly in terms of the commissioning process for local advocacy services, the criteria that we set will need to tackle many of the issues raised by the noble Earl; for example, with regard to open access. I very much agree with that point.
I understand that when he asks whether a referral procedure will be put in place, he means that a person should not be required to go through a bureaucratic system before gaining access to the advocacy service. I share that point of view. In order for the service to be successful, people must have quick and easy access to it. Whether through a telephone call, through NHS Direct, through telephone booths that may be placed in NHS trusts, or whatever, people must be able to gain access as quickly as possible.
So far as concerns premises, I believe that that matter is for local determination. However, if useful premises existed in the high street, those would clearly be an option.
The noble Baroness, Lady Masham, asked about rotas. I assume that she is inquiring whether an out-of-hours advocacy service will be provided. Again, I believe that that matter must be determined through local discussion. However, we would not want to see the situation which sometimes arises at present with regard to people seeking help in relation to complaints. On certain days it is difficult to obtain help. Clearly, in a society such as ours, we need to provide as much access as possible.
The issue of training is a very important one. We would expect any organisation or service commission providing independent advocacy at local level to have
the experts to do so; and part of that would be their own continuing professional development. In addition, if the amendment tabled by the noble Lord, Lord Clement-Jones, is passed today, I am sure that the national body will also have an important role to play in considering the question of training and support for those services.
Lord Clement-Jones: My Lords, I appreciate much of what the Minister has said about independent advocacy services. We on these Benches believe that the independent advocacy services have great potential. We have previously argued for them, in the context of both care standards and the Health Act 1999. But the services set out in this Bill must be judged as part of a total package of representation and advocacy.
Although I admire the Minister's certainty with regard to how the scheme as a total package will work, I fear that the total package may founder on a lack of willingness of the Government to respond to criticism of their current proposals. That is all it may amount to. However, in the mean time, before we reach the next stage of this Bill, I shall not press my opposition to the Question.
[Amendment No. 134 not moved.]
Lord Clement-Jones moved Amendment No. 134A:
- After Clause 17, insert the following new clause--
On Question, amendment agreed to.
Clause 18 [Abolition of Community Health Councils in England]:
[Amendments Nos. 135 to 139 not moved.]
Clause 19 [Power to abolish Community Health Councils in Wales]:
[Amendments Nos. 140 and 141 not moved.]
Lord Hunt of Kings Heath moved Amendment No. 142:
The noble Lord said: This amendment corrects an oversight in Clause 19. As drafted, the clause does not specify how the National Assembly for Wales can exercise its power under subsection (2) to amend or repeal any legislation if the Assembly decided to abolish CHCs. The amendment makes it clear that the National Assembly and the Secretary of State can,
On Question, amendment agreed to.
[Amendment No. 143 not moved.]
Clause 19, as amended, agreed to.
[Amendments Nos. 144 and 145 not moved.]
Clause 20 [Intervention orders]:
Baroness Northover moved Amendment No. 146:
The noble Baroness said: In moving this amendment, I speak also to Amendment No. 154, both of which seek to render this system less subject to the whim of the Secretary of State. Amendment No. 146 provides that the Secretary of State alone should not decide on interventions, should any of the various bodies proposed in the Bill be considered to have failed. Such action should be taken only after receiving the advice of the Commission for Health Improvement, the Commission for Mental Health or the Audit Commission.
Amendment No. 154 lays down that the Secretary of State should, at the same time, publish a report giving a detailed description of the failure which is the subject of the intervention order. Again, that makes matters far more accountable and open. I beg to move.
Earl Howe: I shall speak to Amendments Nos. 147 to 151, 153 and 157. Debates in another place established the intention behind this clause, which is that an intervention order would be triggered only as an exceptional measure and in extreme circumstances. We can all be relieved that the use of those new powers will not be frequent nor in any way routine.
As I said before, the more we can maintain local managerial accountability and build on it, the better it will be for the working of the health service and for the morale of its employees. Much of the present lack of morale in the NHS is directly attributable to the feeling of not being appreciated by those in high places. That feeling of not being appreciated is not just a matter of pay. It originates from a whole variety of reasons. But one reason is undoubtedly the way in which Whitehall insists on directing matters from the centre and loading the health service with objectives and targets, which in some cases distort clinical priorities and erode local accountability.
Against that background, it is difficult not to be acutely suspicious of Clause 20, which is another centralising power. But the relief generated by the
The first issue is that raised by the noble Baroness, Lady Northover; that is, the gravity of the test which is set as a trigger for an intervention order. The Explanatory Notes first explain this clause in terms of,
It would be a rare health body which did not, on occasion, fall down on one or other of its functions. That is why I believe that we should consider two amendments in that regard. The first is to make clear that the shortcomings in performance should be of a significant order; and the second is to specify that it will be only after all other appropriate avenues have been explored and exhausted that the power of central intervention can be triggered.
At the risk of appearing contrary, I have also tabled a further amendment which proposes that an intervention order should be linked directly to the quality of care and the quality of financial and general management as revealed by the annual audit.
I am drawn to that amendment because it is based on the idea of the whole process being triggered by a third party--that is, someone other than the Secretary of State. Once again, transparency is essential in this regard, because if there is not transparency, those sweeping powers will have all the potential to be used as a charter for "scapegoating", to put it at its simplest.
To follow that sentiment still further and to enable the appropriate lessons to be learned, I suggest that every time an intervention order is made, a report of that fact and the background to it should be published and laid before Parliament.
But what happens then? The power to intervene in the affairs of an NHS body is couched in very sweeping terms. We need to ask whether it is right and justifiable for that power to be used, as it could be, willy-nilly and without warning. I do not believe that it is. That is why I suggest that there should be a system of prior notification so that the body, if it chooses, can make appropriate representations about the proposed course of action.
Finally, Amendment No. 151 does not set up a formal appeals procedure. Instead it inserts a process whereby the Secretary of State formally sets down his concerns and his proposed solutions. That process would allow the body to state its case. The health authority, trust, or PCT should have the opportunity to correct unfair, incorrect or misleading statements. I
"NATIONAL PATIENTS' BODY FOR ENGLAND
(1) The Secretary of State shall by regulations establish a body corporate ("the national body") to exercise in relation to the health service in England the following functions--
(a) advising the Secretary of State, and such bodies as may be prescribed, with respect to arrangements for public involvement in, and consultation on, matters relating to the health service;
(b) representing to the Secretary of State and such bodies as may be prescribed, and advising him and them on, the views, as respects the health service, of Patients' Forums, Patients' Councils and those voluntary organisations and other bodies appearing to the national body to represent the interests of patients and their carers;
(c) assisting Patients' Forums and Patients' Councils in, and advising them with respect to, the performance of their functions;
(d) such other functions as may be prescribed.
(2) In carrying out its functions the national body shall have regard to any guidance given to it by the Secretary of State.
(3) The Secretary of State may by regulations make further provision in relation to the national body.
(4) The regulations may in particular make provision as to--
(a) the appointment of members;
(b) any qualification or disqualification for membership;
(c) terms of appointment;
(d) circumstances in which a person is to cease to be a member or may be suspended;
(e) the proceedings of the national body;
(f) the discharge of any function of the national body by a committee;
(g) the appointment, as members of a committee, of persons who are not members of the national body;
(h) the provision of information to the national body by a health service body, a Patients' Forum or a Patients' Council, including descriptions of information which are or are not to be provided;
(i) the funding of the national body;
(j) the payment, to or in respect of members of the national body, of such remuneration, pensions, gratuities and allowances as may be determined in accordance with the regulations;
(k) the preparation and auditing of accounts of the national body.
(5) The regulations may include provision applying, or corresponding to, any provision of Part 5A of the Local Government Act 1972 (access to meetings and documents), with or without modifications.
(6) The regulations may authorise the national body to make charges for the provision of advice or other services.
(7) The national body shall--
(a) prepare a report in relation to its activities in each financial year,
(b) as soon as possible after the end of each financial year, send a copy of its report for that year to the Secretary of State,
(c) publish any such report in accordance with prescribed provisions,
(d) make such other reports to the Secretary of State, and supply to him such information, as he may require.
(8) Before making any regulations under this section the Secretary of State shall consult--
(a) such persons as appear to him to be appropriate to represent the interests of patients and their carers, and
(b) such other persons (if any) as appear to him to be appropriate.
(9) In this section--
"carer" has the same meaning as in section 12;
"the health service" has the same meaning as in section 7;
"health service body" means--
(a) a Health Authority,
(b) a Special Health Authority,
(c) an NHS trust, or
(d) a Primary Care Trust;
"patient" has the same meaning as in section 12;
"prescribed" means prescribed by regulations made by the Secretary of State."
Page 15, line 15, after "may" insert "by regulations"
Page 15, leave out lines 22 to 30 and insert--
"( ) If the Secretary of State--
(a) receives evidence from the Commission for Health Improvement or the Commission for Mental Health or the Audit Commission of serious and persistent failures in the way a body to which this section applies is run or evidence that such a body is not performing one or more of its functions adequately or at all, and
(b) is satisfied that it is appropriate for him to intervene under this section,
he may subject to subsection (3A) below make an order under this section in respect of the body ("an intervention order")."
10.15 p.m.
"the most serious and persistent failures".
However, at paragraph 96, they then speak of the Secretary of State merely having concerns about the management of that body. The subsection makes clear that the Secretary of State needs to be of the opinion that there are significant failings in the way the body is being run. However, in the same breath, the test for failing one or more of that body's functions is described only in terms of the adequacy with which the function is performed.
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