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Baroness Barker: If the noble Lord, Lord Lipsey, cannot get any blood out of this particular stone, what hope is there for the rest of us? I am very disappointed at the Minister's answer. What the department is expecting of a great many people is impossible for them to fulfil. That is unfair. Taken together, some of the unsatisfactory answers that we have had this evening begin to make this package of measures seem thoroughly unacceptable on these Benches. I reluctantly withdraw my amendment at this stage.

Amendment, by leave, withdrawn.

Lord Lipsey had given notice of his intention to move Amendment No. 286:

(c) at the discretion of the authority, on such later date as it may deem appropriate in order to protect a carer or close relative of the resident from homelessness.
(4A) The Secretary of State shall provide guidance to local authorities as to how they should exercise their discretion under subsection (4)."

The noble Lord said: I am also greatly disappointed. I do not find the Minister's answers very satisfactory. I do not believe that discretion will stop old people experiencing fear. If there are so few cases, why is he so reluctant to put them on the face of the Bill and stop it? I therefore reserve the right to return to this matter at Report stage if my right honourable friend the Prime Minister makes such a thing possible.

[Amendment No. 286 not moved.]

On Question, Whether Clause 62, as amended, shall stand part of the Bill?

Baroness Barker: In view of some of the unsatisfactory and disappointing answers that we have had, there are one or two questions about deferred payments that I have to ask. I point out to the Committee that similar arrangements are already in place which enable local authorities to collect debts under the Health and Social Services and Social Security Adjudications Act 1983 which, for the benefit of the Committee, but mostly of myself, I shall henceforth refer to as HASSASSA.

Are the deferred payment agreements only for those who do not wish to sell their property in their lifetime? If people do not mind selling their property and making contributions towards the cost of care, will they be able to use the deferred payment agreement rather than having a charge placed on their property under HASSASSA? Are the Government taking steps to ensure that any independent financial adviser would be competent to offer detailed individual advice to someone who was thinking of making deferred payment and that he would have knowledge about the charging, how benefits might be affected and the other options available? There are issues such as insurance

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on empty property and the oversight of property. It is an enormous change to the way in which older people will have to manage their property. Will the local authorities also meet the associated costs of legal charges? Those are some of the many questions which are opened up by this clause. At this stage I shall not press the matter any further.

Lord Hunt of Kings Heath : I hope that the noble Baroness will not mind if I duck a couple of her questions and write to her about the specific details. The point she raised about financial advisers is important. Certainly one would wish that people in that situation had proper independent advice.

We need to do everything to ensure that that occurs. If independent financial advisers are going to become involved, it will be important for us to make sure that they are appraised of the issues. I may take that issue back and have a look to make sure that we are covered.

I have suddenly received inspiration in the nick of time on the questions raised by the noble Baroness. On the HASSASSA questions, it is deferred payments only for those who do not want to sell their home and open to anyone who wants to take up a deferred payment. If the home is sold then the resident will need to pay.

Clause 62, as amended, agreed to.

Clause 63 agreed to.

Baroness Barker moved Amendment No. 287:

    After Clause 63, insert the following new clause--

Where a person has been assessed by one local authority and moves to a residential or nursing home in another local authority area, the authority which made the assessment, and as a result of which a duty to provide accommodation under section 21 of the National Assistance Act 1948 has arisen, shall agree such payments which are at least equivalent to those which are normally made in the authority to which the person has moved for the type of accommodation in which that person resides or will be residing."

The noble Baroness said: The title which has been placed upon the amendment in the Marshalled List of "Cross-border assessments" is wrong. The amendment is not about that matter. It is not about vast numbers of people who will be retiring to Scotland, given the fact that the Scots have seen fit to ignore the advice of the noble Lord, Lord Lipsey, on personal care. It seeks to address inter-authority payments within England. It is about people who want to move to a different local authority and have problems if they move to an authority which pays a higher fee level than their own. That happens quite often. Older people want to move to be nearer to their families.

Local authority practice is often to pay only the level of fees they would pay if a person moved into a home in their own area, rather than the fees that the local authority agrees to pay in the new area. That often means that there is a shortfall which the resident's family have to make up. That can be a huge difference, particularly if people move from the North to the South of England.

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In effect it can mean that an older person may not be able to move to be near his or her family because of the differences in local market prices in care homes. The issue potentially raises some human rights issues about respect for family and home life if a person cannot move because of local authority policies.

Lord Hunt of Kings Heath: Under existing legislation once a person with assessed care needs is ordinarily resident in a local authority area, that authority has an obligation to provide for any residential accommodation needs that he or she has. These needs may have to be met by placing the person in a home in another local authority. The authority responsible for the person cannot point to a standard rate for a care home place and say that they will not apply above that if the needs of the person require it. So where a person moves from one local authority area to another, the responsible local authority must provide the person with accommodation that meets his or her needs and pay the appropriate cost.

The authority is free to negotiate the fee it will pay to the care home provider to meet those needs. I do not believe that there is an issue here with the current legislation.

Baroness Barker: The move to another part of the country to be near relatives is often regarded as a preference rather than a need, and many older people find that the differences are not made up. I take it from the Minister's reply that we shall be as lucky on this amendment as we have been all night. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 64 and 65 agreed to.

Lord Rix had given notice of his intention to move Amendment No. 288:

    After Clause 65, insert the following new clause--

(1) Section 11 of the Disabled Persons (Services, Consultation and Representation) Act 1986 shall be amended as follows.
(2) In subsection (1) leave out all words after "Parliament" and insert "separate reports incorporating--
(a) such information as the Secretary of State considers appropriate on the development of health and social care in the community and elsewhere for people experiencing mental health problems, including information about the views of people with mental health problems and their families on such developments; and
(b) such information as the Secretary of State considers appropriate on the development of health and social care in the community and elsewhere for people with learning disabilities, including information about the views of people with learning disabilities and their families on such developments.
(1A) The Secretary of State shall as far as possible include in these reports such information as he considers appropriate about developments in other services for people respectively with mental health problems and people with learning disabilities, such as financial, employment, education, housing and leisure services.""

The noble Lord said: I beg leave to withdraw Amendment No. 288 and to move in its place Amendment No. 316C and to speak to its

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consequential amendment, Amendment No. 319D. I do this for a good reason. I have found my original amendment transformed by legal hands.

Lord McIntosh of Haringey: I hope that the noble Lord will forgive me. If he is not moving Amendment No. 288, he will need to move Amendment No. 316C in its place in the Marshalled List.

Lord Rix: With due respect, the amendment is in its place in the Marshalled List.

Lord McIntosh of Haringey: It may be in the same grouping as Amendment No. 288, but if the noble Lord is not going to move Amendment No. 288, then he will need to move Amendment No. 316C when we come to the appropriate place in the Marshalled List.

[Amendment No. 288 not moved.]

Clause 66 agreed to.

Clause 67 [Control of patient information]:


Earl Howe moved Amendment No. 289:

    Page 67, line 11, leave out subsections (1) and (2).

The noble Earl said: I beg to move Amendment No. 289. In doing so I shall speak also to Amendments Nos. 290, 291, 293, 293A, 294, 298, 299A, 300A, 301, 302, 302B, 302D, 305ZA, 305ZB and 308. Clause 67 of the Bill, more than any other clause in any other Bill that I have ever dealt with, has incurred the alarm, anger and condemnation of virtually the entire medical community, from doctors, medical charities, the pharmaceutical industry and the press.

The clause provides the Secretary of State with two sweeping new powers: a power to regulate the use of any kind of health information by third parties, even anonymised data; and a power to collect personal health information, even when the patients themselves object. These are such huge matters that it is difficult to deal with them adequately in the space of a few minutes. However, I shall attempt to address each in turn.

As many noble Lords will know, there are companies that specialise in collecting and analysing anonymised medical data on behalf of pharmaceutical companies. At the moment, an established agreement between the medical profession and the health data companies allows those companies to collect certain kinds of statistical data, provided that neither doctors nor patients can be identified in the statistics without their consent. In a recent case involving one such company, Source Informatics, the Appeal Court rejected an attempt by the Department of Health to depict this statistical data collection as a breach of patient privacy. That argument was as disingenuous as it was ridiculous. However, the Government are now seeking to overturn the court's judgment by means of legislation.

Many people have expressed serious concern that the effect of this legislation will be, among other things, to prevent and, indeed, to criminalise any

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independent investigation of NHS performance. Many others fear that it will seriously damage the UK's ability to conduct medical research. The Government say that this is not their intention at all. They have tabled amendments which seek to narrow the scope of this clause in an attempt to meet the criticisms that have been made. Those amendments will not do and I shall return to them in a moment.

The second new power would enable the Secretary of State to compel doctors and hospitals to hand over patients' medical records even if the patients object. At present, there are powers to do this only in relation to notifiable diseases such as tuberculosis, where there is a clear public interest in preventing the spread of infection. No one argues with the need for those powers, nor is there in general much dispute about the work of cancer and other disease registries, whose legality was questioned last year under the provisions of the Data Protection Act. The data collected by cancer registries is of direct benefit to medical research.

However, the proposed powers are not limited to cancer or, indeed, to medical research. They would permit the government of the day to demand whatever data are of interest to them--and not just for research but under that well-worn rubric of the public interest. Nowhere in this clause is there any mention at all of that essential prerequisite: informed patient consent.

This new power is not about protecting patients' rights, it is about expediency. As such--I know that this is strong language but it is true--it represents nothing less than the sovietisation of medicine. Clause 67 will ride roughshod over patient's rights in order to make life a little easier for Ministers.

But it does not stop there. There are other costs. Doctors will no longer be able to guarantee confidentiality to their patients. What will that do? It will do one very obvious thing: it will erode patient confidence; and in the process it will erode public confidence in medical research.

Recent events in the NHS at Bristol and Alder Hey, and other cases, have already served to dent public confidence in the medical profession. The last thing we should be doing is to damage that foundation stone of medical ethics, the unbreakable bond of trust between doctor and patient.

The powers sought by Ministers are far, far too wide. They are outrageously wide. The Delegated Powers and Deregulation Committee of this House, in its criticisms of subsections (1) and (2) described the power as "over wide". Quite rightly, the committee did not comment on issues of policy, although it noted with regret the complete lack of consultation on the proposals before the Bill was presented to Parliament.

Since the report was published, the Government have tabled amendments to try to address the committee's criticisms. The amendments to subsection (1) restrict the powers to data,

    "obtained or generated in the course of the provision of the health service",

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and processed for,

    "the purposes of, or in connection with, marketing or other promotional activities which he considers to be contrary to the economic or financial interests of the health service".

I urge Members of the Committee to read those words. What do they mean? What would a court of law take them to mean? They are incredibly imprecise and vague. The vagueness in the meaning of such words as "marketing" and,

    "obtained or generated in the course of the provision of the health service",

is dangerous. The Secretary of State would be left with huge scope for subjective decision-making on almost as broad a basis as he would have under the clause as first drafted.

One very simple point appears to have been overlooked by Ministers. The commercial use of NHS data and the availability of that data to those conducting medical research are inseparable. You cannot divide off the commercial bit from the rest, because commercial data are used to carry out research.

Why are the Government seeking to take this power? They assert that the use of anonymised patient data is likely to lead to increased costs in the NHS, in particular in the drugs bill. The Government have not produced a shred of evidence to support these assertions. The argument simply has not been made. Indeed, the Monopolies and Mergers Commission has demonstrated convincingly that the flow of information to doctors actually reduces prices. Pharmaceutical promotion emphasises the benefits of using cheaper alternatives to the ones that have been used in the past. That is the effect of a competitive market-place. Anonymised patient data highlight inappropriate prescribing as well as drawing attention to new or improved medicines. Both of these are in the interests of patients.

Ministers have offered assurances that they will not use these powers to their full potential extent. I am willing to accept those assurances in good faith. But the Minister knows that this will not do. Once the powers have been granted by Parliament, no such assurances will bind a future government. The fact is that there is no basis for Parliament to grant such wide powers as these in the first place.

In view of the time, I have not spoken individually to my amendments but I have covered their theme and their purpose. When I first looked at this clause, I thought that it was unamendable. With regard to anonymised patient data, that is still essentially my view. The Government should abandon subsections (1) and (2) altogether. However, there may be a way of amending the clause acceptably in relation to identifiable patient data. I have an open mind about this. If there is, it will involve writing on the face of the Bill many more safeguards than are currently in place. In this connection, I shall listen with interest to the noble Baroness, Lady Northover, when she speaks to her Amendment No. 305B.

In the final analysis, this clause is truly astonishing. It offends against everything that Ministers have ever said about a patient-centred health service. It is

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directly contrary to the principles of patient confidentiality. If it comes to a choice between the clause as it stands and striking the clause out, I should have no hesitation in choosing the latter course. I beg to move.

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