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Lord Mayhew of Twysden: My Lords, before the Minister sits down, will he spare a moment to return to the subject of poor draftsmanship? Will he accept from me, as a former "confessor" to the parliamentary draftsmen, that the kind of draftsmanship about which my noble friend Lord Peyton rightly complains derives from two issues, each of which is the responsibility of successive governments? The first is that we must be concise and keep the number of clauses in a Bill down; the second is that we will not spend money on consolidation. Therefore, what the Minister said about consolidation a few moments ago is most welcome.

Lord Hunt of Kings Heath: My Lords, let me make it clear that I did not seek to hide behind the alleged shoddy work of parliamentary draftsmen. It is for governments to try to ensure that legislation is as clear as possible and I hope that we in the Department of Health learn the lessons as we take legislation through Parliament. From the point of view of the department, the NHS and Members of your Lordships' House, a consolidated measure would be welcomed.

Baroness Masham of Ilton: My Lords, before the Minister sits down, will he tell the House what happens to the non-NHS patients, some of whom come from abroad and may need even more protection than those living in this country?

Lord Hunt of Kings Heath: My Lords, I suggest that that is a matter for the National Care Standards Commission. In due course, the responsibility will transfer to the new health inspectorate that we have proposed. The noble Baroness, Lady Masham, raises an important point but it is outside the remit of the Bill.

Earl Howe: My Lords, again, I am most grateful to all noble Lords who have taken part in the debate and to the Minister. However, I was surprised when the Minister at the outset of his remarks said that I was proposing some grand set of draconian powers. I do not see the amendments in that light.

I have always been in favour of applying the quality agenda in its broadest sense across all care settings. Patient representation is an integral part of the quality agenda and I do not see it as draconian. It is entirely consistent with measures already in place, not least as regards the functions of the CHI in settings where NHS patients are being treated.

The Minister said that rights of access would be provided for in each individual contract. The trouble with that is that the inclusion of visiting rights in contracts with private providers of care is not new. Frankly, it has not worked. It was provided for in Department of Health guidance in 1990 and that guidance was widely ignored. Some CHCs had to resort to legal action to have clauses enforced by health

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authorities, if they had been included in the contract, or to put pressure on health authorities to include such clauses in the first place.

I do not believe that the measure will work in the new world in which the monopoly status of the NHS is to be replaced with a plurality of providers with which the NHS will have varying bargaining powers. In any case, the patients forum will have no legal power to enforce such contracts because it will not be a party to them.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl for giving way. I was trying to make two points. First, I was remembering our debates on the Food Standards Agency and the concern of noble Lords opposite relating to the powers of the Meat Hygiene Service to enter private premises. I was drawing a comparison between the concerns about the rights of public officials to enter private premises and drawing a distinction between the comments made in this debate and comments made in the passage of other legislation.

As regards contracts, it seems to me that, given the plurality of provision which the noble Earl suggested, the NHS is in a much stronger position because it is becoming a much large purchaser of services within the private sector. Furthermore, since 1990 we have moved on in our thinking. The issue raised by the noble Baroness, Lady Masham, for instance, as regards complaints in the private hospital sector are apposite to that. The climate is much stronger for ensuring that there are contracts which allow for proper monitoring and involvement. I hope that they will enable patient forums to discharge an effective duty in relation to them.

Earl Howe: My Lords, it is all right if the provision is in the contract, but if for whatever reason it is not—and that is the purpose of the amendments—I do not see how patients forums will be able to discharge the duties under Clause 15(2)(a) and (b) to which the Minister referred earlier. Under that provision

    "A Patients' Forum must monitor and review the operation of services . . . obtain the views of patients"

and so forth. I do not see how it will be able to discharge those duties because it will be able to monitor only remotely; it will not be able to access patients and their carers directly. However, I shall as always reflect on what the Minister said.

I am grateful to the noble Baroness, Lady Howarth, for her remarks. I am sure she realises that the purpose of my introducing care homes into the debate was specifically to draw attention to intermediate care rather than long-term care. Clause 15(6)(c) of the Bill refers to Section 31 arrangements, but the problem is that the vast majority of social services are not provided under Section 31 arrangements. They are provided by local authorities on their own. In that context, I cannot help thinking that paragraph 86 of the Explanatory Notes is a little misleading when it talks about patients forums having monitoring rights

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under Section 31 and quotes as an example social care services. The figures for Section 31 social services are small. Perhaps the Minister would confirm that.

The difficulty is that the duty of the patients forums to monitor and seek patients' views and its power to enter and inspect relate only to the functions of the trust. Therefore, for example, in a local authority care home for people with learning disabilities, the patients forum for a PCT could monitor only the GP and therapy services provided—nothing else. The mental health trust patients' forum could monitor only secondary care services provided there—nothing else. So what would a forum do if it discovered deficiencies in, say, daytime activities for residents? It would have no remit to do anything about it.

I am grateful to the Minister for saying that he will take away the ideas I put forward as regards the overview and scrutiny committees. There is another dimension to the amendments relating to scrutiny, which is that even if a patients forum were able legally to gain access to a private provider contracted to the health service, there would be no contract with that provider at the time when the local trust was contemplating such a contract. I do not know what role the Government see for the patients forums in assisting NHS trusts with the tendering process, or indeed whether there is a role for the overview and scrutiny committee at that stage, but it is a matter which needs thinking about.

Whether or not these amendments or others similar are written into the Bill, I believe that before long we shall see the best of the private acute sector signing up to arrangements of the kind I am advocating. I say that advisedly because I know of two private hospitals in London which are already exploring such ideas. They are doing so, no doubt, because they know it makes commercial sense for them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 to 38A not moved.]

Baroness Hanham moved Amendment No. 39:

    After Clause 15, insert the following new clause—

(1) No member of a Patients' Forum may be appointed as a director of an NHS trust or a member of a Primary Care Trust to which the Patients' Forum relates unless that person has been recommended for appointment by the NHS Appointments Commission.
(2) Where a member of a Patients' Forum is also a director of an NHS trust or a member of a Primary Care Trust to which the Patients' Forum relates, his responsibilities as a director of the NHS trust or member of the Primary Care Trust shall be the same as those of any other director or member of such trust."

The noble Baroness said: My Lords, for what I hope will be the last time, I return to the fray in trying to establish the parameters that will follow the election of a member of a patients forum as a non-executive director of an NHS trust, and that person's accountability and responsibilities to the trust. In doing so, I should say to the Minister that I am grateful to him for having met me on two occasions, the first

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time before we debated the Bill in Committee; the second time last week to discuss the points over which I have been labouring during the progress of the Bill. To that end, I have already given the noble Lord a note of what I wish to say today in order to receive those final answers I seek and thus will not have to raise the matter again.

The patients forum will elect for each NHS trust one of their members as a non-executive director to that trust. The questions which now need to be answered are the following. Will the person then be subject to assessment by the NHS Appointments Commission procedure before they are entitled to take up the appointment as a director? If so, will the commission ensure that the criteria it adopts for all other non-executive directors are followed, including an interview panel which will include on it the chairman of the relevant trust? At this point I should, as usual, declare my interest as the chairman of an NHS trust.

In Committee, the Minister gave the criteria which would prohibit a member from being appointed as a director. Those seemed to be somewhat mechanistic and would have prevented someone from being accepted as a member of a patients forum. Does the Minister agree, therefore, that the criteria against which a patients forum director would be appointed would be the same as those for any other non-executive director? Can the Minister indicate whether it is expected that the patients forum will elect a trust appointee for a term of four years, or will there be annual elections—which I believe would probably be rather disruptive? Obviously it would be more effective if it were the former.

If there are no current non-executives on the board due for completion of eight years of service, will the Minister enable the patients forum director to be supernumerary until that situation arises? This would be only for the first person elected, as once such a retirement date is reached, then the patients forum non-executive would be subsumed into the regular board number of five, or six if it is a teaching authority. It would seem invidious that a competent serving member of the board, who justifiably could expect to serve for a second term of four years, were to be ejected to enable the patients forum director to have a place.

In Committee, the Minister confirmed that the patients forum director would hold corporate responsibility with other board members and would be accountable to the board. At what stage of their appointment will this be made clear by the NHS Appointments Commission? Will that be made part of its remit?

Finally, in the event of a conflict of interest for the patients forum director—for example, if the patients forum issues a critical assessment of its trust or any part of its services, either to the trust board or to the local authority overview and scrutiny committee—where would the patients forum director's accountability lie?

As I believe the Minister understands, I have no hostility to the concept of a director who brings to a trust board concerns about patients, although I am

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bound to say that, in my experience, current members of a trust board believe that to be a major duty. However, I am anxious that there should be a recognised procedure which will ensure that they are accepted without rancour or suspicion by other board members. I hope that the Minister's response today will be able to satisfy not only myself, but also those other bodies which have the same concerns about this matter. I beg to move.

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