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Earl Howe moved Amendment No. 34:

The noble Earl said: My Lords, in moving this amendment, I shall speak also to the other amendments in the group.

We move on to an issue that we did not debate in Committee but which is of considerable importance for NHS patients. I start with a statement of the obvious, which nevertheless needs to be made. Whether you are an NHS patient in an NHS hospital, whether you are an NHS patient in a private hospital, or whether you are an NHS patient recuperating in a care home, you are likely to be frail and vulnerable. The ability that you have in any of those settings to exercise your consumer rights is equally curtailed.

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That is why effective patient and public involvement must be established on an equal footing in all three sectors.

The Government have committed themselves to breaking down two sets of barriers: those separating health and social care and those separating the NHS and the private and voluntary providers of acute care. I am in total agreement with those two aims and with the positive steps that the Government have taken to make both of them a reality.

The recent White Paper, Delivering the NHS Plan, speaks of having a plurality of providers. One of the main arguments for that is to present patients with a better deal and a better range of choices. Patients waiting for an operation have more of a Hobson's choice if they are told that they can wait for a year or else go sooner to somewhere that is unfamiliar, whether outside the NHS or further from home. They often have to take what is offered. Patient and public involvement has to keep in step with these changes; which means that the accountability to the patient should be no different whatever setting he is in.

At the moment, the NHS, private acute hospitals and care homes are required to have systems in place to seek the views of patients, carers and their representatives. Given that, there is no reason why those systems should not be integrated on a fair and consistent basis. My amendments allow the functions of a patients forum to be extended to every location of care and to the services proved within them. To perform those functions the patients forum needs to have equal monitoring rights and equal rights of access. Anything less will result in postcode patient representation.

The final piece of the jigsaw in this context is the need to ensure that the local overview and scrutiny committee is able to scrutinise services provided in all the three settings that I have mentioned. The OSC is where the real power lies in these new arrangements. Let us suppose that the local NHS is proposing to contract with a totally unsuitable private provider of, say, children's mental health services. The scrutiny committee would be able to question such an arrangement and look at the care provided, so long as it had a report in front of it from the patients forum, but the chief executive of the private provider could not be called upon to appear before the committee. If there is to be proper local accountability, I believe that all patients need to benefit from that in the fullest sense. I beg to move.

Lord Clement-Jones: My Lords, I support the noble Earl, Lord Howe. He has made a powerful case for this set of amendments, which extend the rights of patients forums to monitor and to access those services contracted out by the NHS to the independent sector. They also cover the extension of rights of overview and scrutiny in that respect.

It has taken some time for the Government to recognise the seamless nature of both health and social care. I well recall in the Health Bill 1999 the Government resisting the pressure from these Benches

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and from the Official Opposition Benches to extend the powers of the Commission for Health Improvement to inspect independent healthcare, even when that had been contracted out by the NHS.

This year the Government have finally seen the light and are prepared to merge the Audit Commission, CHI and the acute hospital aspects of the national standards commission. Therefore, it is impossible to split the services provided and it is much better to see them in the round. The Government may be providing a separate inspectorate for social care. Nevertheless, their policies, in terms of putting into place care trusts and duties on local authorities for care beds in the community to prevent bed blocking, show that the integration of health and social care is very much on the agenda. It is a short step of logic to expect that patients forums should have the duties that the noble Earl, Lord Howe, has outlined in these amendments. We strongly support them from these Benches.

Baroness Carnegy of Lour: My Lords, of all the amendments on the agenda this is the group that the Government should consider carefully. Patients who find themselves being treated by the NHS, private hospitals and care homes are very vulnerable. If we are going to have this somewhat fragmented system for representation of patients, the body looking after the patients in these hospitals and homes should be the patients forum. I hope that the Minister will express some sympathy for that. Otherwise, I do not think that we can feel that the Government are really thinking the matter through on behalf of patients.

Lord Peyton of Yeovil: My Lords, perhaps I may briefly remind the noble Lord and your Lordships of some of the sloppy drafting which occurs so frequently in the Bill. I have long been a warm admirer of your Lordships' patience, but sometimes I think that it is overdone.

On page 21, line 22, in Clause 15, to which these amendments refer, there is reference to something called "section 31 arrangements". It may be that those familiar with the jargon will immediately have a good idea of what is meant by "section 31 arrangements". But if one were less well informed, less erudite or less sophisticated in one's approach to these matters one may be—as I am—a bit puzzled.

However, in order to get an explanation one must look further down the page. On line 42 these words occur:

    "'section 31 arrangements' means arrangements under regulations under section 31 of the 1999 Act (arrangements between NHS bodies and local authorities.)".

That is by no means my favourite quotation from the Bill, but it will do me for the moment.

At an earlier stage I raised these matters with the Minister. He, as always, was courteous, intelligent and responsive. He extended some hope to me that he would come along with devices such as Keeling schedules and so on, and explain what the Government were at. But of course he was not able to go nearly far enough to suit me. In the letter which he

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kindly sent me some weeks ago—a copy of which I received yesterday—he indicated that the spirit was willing but the flesh was woefully weak.

I hope very much that the noble Lord will stand up and explain exactly what is meant by the term "section 31 arrangements" and why, if he understands it as clearly as I have no doubt he does, such a definition is not made absolutely clear on the face of the Bill. I really do protest.

The noble Lord, Lord Brightman, would explain far better than I can—if he were here—that this nuisance of legislation by reference has been going on in an increasing tide of nuisance for 150 years. So I agree that it would be unreasonable to expect the present Government in a few months to scrap it. But at least they should go a little beyond saying that they do not like it; they should occasionally lend conviction to their opinions by producing easily comprehensible Bills instead of ones which are loaded with what I can only politely describe as somewhat slovenly garbage.

3.30 p.m.

Baroness Howarth of Breckland: My Lords, I shall make a rather less erudite point. I find myself in some difficulty in that, for the first time, I am speaking mildly against extended representation for patients. I have some concerns about what is called the continuum of care. Sooner or later, we must consider the difference between patients and people in care homes in which they will live out their life. The latter are not patients.

I was delighted that the Minister did not use the words "beds" and "bed-blocking" when talking about the continuum of care for elderly and frail people. Until we see that bed-blocking is not the only issue and that long-term care is—I suspect that I have spent more time in such establishments than most of your Lordships—we will not get the concept right as to the needs of different groups of people in different establishments.

I declare an interest as a member of the National Care Standards Commission, but, in doing so, I do not hold any particular view that the situation should remain as it is. As I said before, there is room for change and improvement. However, I hope that we will bear in mind the distinct needs of the different care groups and the different establishments in which people find themselves and tailor our inspections and concerns accordingly. I hope that the Minister will bear that in mind, as he takes us forward.

Lord Hunt of Kings Heath: My Lords, I am grateful, first of all, to the noble Lord, Lord Peyton of Yeovil, for taking us back to the issue of the quality of the draftmanship of the Bills that come before the House. I must confess that he has a point. I shall not pretend that the drafting to which he referred is at all easy to understand. My guilt is increased by the fact that I had a hand in taking the Health Act 1999 through the House.

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Section 31 is rather long, and I am sure that noble Lords will not wish me to read it out. Essentially, it relates to the joint working of health and local authorities, particularly in social care but also in other areas. Section 31 enables that collaboration to be more effective. It also covers the pooling of budgets and other arrangements to allow that collaboration to take place. I accept the noble Lord's substantive point. I cannot put 150 years of poor draftsmanship right in a flash, but, although that answer will disappoint the noble Lord, he will know that we are engaged in seeing whether we can produce a consolidated measure for NHS legislation. It would be welcomed as warmly in the NHS as in your Lordships' House.

I was surprised that the noble Earl, Lord Howe, should propose rights of inspection of private sector premises which, in any other legislation passing through the House, Opposition Members would have described as draconian powers. I accept the general principle that NHS patients, wherever they are treated, should be enabled to have facilities for raising issues of concern, but we must accept that the way in which that comes about will be different, depending on whether the organisation concerned is an NHS organisation or a private sector one. The noble Baroness, Lady Howarth of Breckland, put her finger on some of the important relevant considerations.

Amendments Nos. 34 to 38 would add a reference to services provided in independent hospitals, clinics and medical agencies or care homes. As the noble Earl, Lord Howe, said, Clause 15(2) covers all services arranged by the trust, whether in private clinics or NHS ones. Where the trust arranges for a patient to receive services from a private hospital or clinic, medical agency or care home, the patient is still an NHS patient and the services fall within the review remit of patients forums. In that sense, the amendments are rather superfluous.

The second half of the group of amendments relate to inspection rights of patients forums with regard to independent providers. I hope that I can assure the noble Earl that it is our intention that the arrangements for patients forums to carry out their functions where the NHS contracts with independent providers will be set out in the contract between the NHS and the provider, along with all other details of the contract. Contracts with the private sector are subject to strict rules and include monitoring mechanisms to ensure that patients receive the same quality and safety of care wherever they are treated. For example, the Commission for Health Improvement may carry out clinical governance reviews of services provided to NHS patients by the independent sector. Again, those arrangements will be set out in contracts.

The principles for inspection and rights of entry for NHS providers and private providers are identical. As I said, it is the legal basis that brings it about that is different. With NHS providers, it is in the terms of the

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Bill; with independent providers, the arrangements will be required in the contracts. Technically, it is not necessary to list care trusts as a separate entity that must allow patients forums in, as suggested by Amendment No. 40A. The noble Earl will recall from the time when we discussed the Health and Social Care Act 2001 that care trusts are either NHS trusts or primary care trusts that have been designated as such under Section 45 of that Act, by virtue of their provision of certain functions on behalf of local authorities. As such, they are already provided for under the terms of Clause 16.

Amendments Nos. 40AA and 40CA concern the appropriateness of the general entry and inspection rights of forums. We want patients forums to have as much freedom as is reasonably possible for their members to inspect all premises used to provide services to NHS patients. That valuable function will help maintain the high standards of, for example, cleanliness in the health environment brought about by initiatives that we have already taken. However, we must accept that hospitals and surgeries can be busy and, at times, dangerous places. Common sense dictates that we simply cannot allow forums carte blanche to go about their business willy-nilly without some guidance.

We shall consult the key stakeholders on the regulations to ensure the correct balance between the freedom of the forums to inspect as and when they wish—I sympathise with the reasons for that—and respect for the legal framework in which it should be done. It is all about reasonableness. We expect to see protocols negotiated locally with trusts under which forum members can make unannounced visits but within agreed times and circumstances. That is a commonsense approach.

I understand that the overview and scrutiny committees can review and scrutinise matters relating to the health service in their area. I would certainly consider that that remit is wide enough to take in the scrutiny of commissioning contracts. However, it is the first time that we have discussed the issue, and I would like to take it away and perhaps provide a definitive answer at Third Reading. To the noble Earl, I say that it is one thing to say that overview and scrutiny committees can, as part of their remit, review the commissioning contracting arrangements made by NHS bodies within their local authority boundary; it is another to say that they should have the right to call private sector providers before them. The remit of the overview and scrutiny committees as regards contracts with the private sector ought to cover the NHS bodies that agree the contracts with the private sector, under the monitoring arrangements that the NHS organisations have put in place.

Overall, I agree that we want patients forums to be able to visit, in order to discharge their functions. It must be done sensibly, and regulations will allow for that. However, we must recognise that, legally speaking, circumstances are different for NHS organisations and private sector organisations.

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Ultimately, we want NHS patients to be allowed to put forward their views and concerns, wherever they are treated.

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