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Lord Clement-Jones moved Amendments Nos. 56 to 58:

"( ) co-ordinating and supporting the activities of Patients' Councils in respect of their activities as provided for in section (Establishment of Patients' Councils),"
Page 25, line 6, at end insert "and to co-ordinate and support the activities of Patients' Councils in respect of the activities provided for in subsection (4)(d) of section (Establishment of Patients' Councils)"

    Page 25, line 27, at end insert—

"( ) The Commission will provide to Patients' Councils services, including staff and other facilities, to support those bodies in the exercise of their functions."

On Question, amendments agreed to.

[Amendment No. 58A not moved.]

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Clause 20 [Abolition of Community Health Councils in England]:

[Amendment No. 58B not moved.]

Earl Howe moved Amendment No. 59:

    After Clause 20, insert the following new clause—

(1) In section 11(2) of the Health and Social Care Act 2001 (c. 15) (public involvement and consultation) for paragraph (a) there is substituted—
"(a) The Secretary of State,
(aa) Care Trusts,".
(2) Before an establishment order for a Strategic Health Authority, an NHS trust, a Primary Care Trust or a Care Trust is made, varied or revoked, the Secretary of State shall consult those bodies in subsection (5) whose districts are wholly or partly within the area of operation of the relevant authority or trust.
(3) Any Strategic Health Authority considering whether to exercise its powers under section 17A of the 1977 Act shall first consult the bodies provided for in subsection (5) whose districts are wholly or partly within the area of operation of the relevant Primary Care Trust.
(4) The Secretary of State shall by regulations make provision—
(a) concerning the application of section 11 of the Health and Social Care Act 2001 such that if in the view of any of the bodies in subsection (5) consultation arrangements are inadequate, the body in question shall refer the matter to him;
(b) for the referral to Strategic Health Authorities of disputed decisions concerning the operation or planning of health services by bodies detailed in subsection (5);
(c) for circumstances in which bodies detailed in subsection (5) shall refer decisions concerning the planning or operation of the health service to him including the circumstances in which referrals shall be made directly to him by Patients' Forums and Patients' Councils on the failure of overview and scrutiny committees to respond to a referral made to them under section 18(2)(m) of this Act;
(d) placing a duty on the Secretary of State and those bodies receiving referrals to respond to them within a specified time limit and giving reasons for any decision taken in relation to the subject matter of the referral.
(5) Those bodies referred to in subsections (2) to (4) are—
(a) overview and scrutiny committees or joint overview and scrutiny committees provided for in sections 7 (functions of overview and scrutiny committees), 8 (joint overview and scrutiny committees etc) and 10 (application to the City of London) of the Health and Social Care Act 2001,
(b) Patients' Councils,
(c) Patients' Forums."

The noble Earl said: My Lords, this amendment brings us back to an important set of issues debated in Committee about replicating the rights currently enjoyed by CHCs to be consulted on any proposals that would lead to a major change in the provision of healthcare in an area. The amendment also covers the separate but associated issue of replicating the right of a CHC to notify a matter to the Secretary of State when it feels that a consultation has been inadequate.

As the Bill is drafted, major or controversial changes to service provision, which up to now would have necessitated an automatic consultation with a CHC, need not trigger a similar consultation with the

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successor bodies. That is a major gap that needs to be filled. In Committee it was suggested that existing and planned provisions to require consultation negated the need for the amendment. However, as I understand the position, the existing provisions relate to the requirement to consult CHCs about substantial changes and the power of CHCs to refer matters to the Secretary of State. With the abolition of CHCs, those safeguards will disappear.

The amendment addresses a number of distinct issues that are not currently provided for in existing legislation or in the Bill. They include gaps in the duty to consult on reorganisations of health bodies, the limited extent of duties to consult under Section 11 of the Health and Social Care Act 2001 and failing in the power or duty to refer. At present, CHCs have the right to be consulted before the establishment of most health service bodies, including health authorities, NHS trusts and primary care trusts, and before changes are made to the way in which some of those bodies operate. Most of those consultation rights are to be found in a wide raft of complex and at times confusing secondary legislation. The same rights are not conferred in relation to changes to all health service bodies. For example, CHCs have the right to be consulted before the establishment, dissolution or change of functions of an NHS trust or primary care trust, but when it comes to health authorities, CHCs will be consulted only on boundary changes, not on changes in their functions. Because of the obscurity of the provisions concerning consultation on primary care and pharmaceutical services, many health authorities have not consulted CHCs on proposed changes.

The existing provisions governing consultation over the establishment of care trusts are inadequate. Patient representatives do not have a right to be consulted. The partners seeking care trust status will carry out the consultation with bodies or persons that they choose to consult. There will be a strong temptation not to consult those who may oppose the application. The body that makes the decision on care trust designation will not necessarily have access to the results of that consultation. The regulations do not make provision for consultation over subsequent changes to the functions or boundaries of the care trust.

Where CHCs have a right to be consulted, it is important that that right is replicated to ensure that successor bodies are consulted. The right to be consulted will not automatically be transferred to another body, as I read it; it has to be done through legislative provision. Where there is at present no right to be consulted over establishment or changes in function, that right needs to be created.

Similarly, the duty to consult detailed in Section 11 of the Health and Social Care Act 2001 does not go far enough and contains a number of important gaps. Care trusts are omitted from the list of bodies required to consult. The extent and nature of the duty to consult in Section 11 is vague. Health bodies may seek to fulfil that duty by setting up a focus group and consulting only that group. For that reason, it is important that the bodies that should be consulted are detailed.

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Although the Government have said that they are reluctant to prescribe who should be consulted, if the legislation does not do so, all consulting organisations could find themselves challenged by a range of bodies that consider that they had a legitimate expectation of being consulted.

The Government have already conceded that further legislation is required to provide overview and scrutiny committees with a power to refer inadequate consultations and disputed decisions. No proposals have been produced on how or when that is to be achieved. The amendment would remedy that gap in the allocation of responsibility to overview and scrutiny committees to make referrals.

At present there is no legislative mechanism for the referral under Section 11 of consultation exercises that are inadequate or are not conducted at all. That is a major omission, as CHCs are currently under a duty to report inadequate consultations to the Secretary of State. I believe we need to replicate the requirement that inadequate consultations be reported to and investigated by a body or person with the power to order the body in question to consult properly.

Parliament is being asked to accept the abolition of CHCs, and the safeguards that go with them, without any clarity over exactly how the new provisions would work. That, in my submission, is not acceptable. The amendment rectifies that. I beg to move.

Lord Filkin: My Lords, I hope to demonstrate that effective arrangements are already in place for the type of consultations described by the noble Earl, Lord Howe, and that the proposed new clause would, therefore, over-complicate the process.

Subsection (1) of the new clause seeks to include the Secretary of State and care trusts in the list of bodies that should involve and consult the public and their representatives. First, as we have discussed in previous stages, it is not necessary to include care trusts since PCTs and NHS trusts are already listed, and care trusts will only be either PCTs or NHS trusts and are therefore already included. Care trusts will already be covered by the references to PCTs and to NHS trusts.

Secondly, with regard to the Secretary of State, a consequence of shifting the balance of power to the front-line is that responsibility for the planning, development and delivery of services is now with the front-line. We believe that it would be rather inconsistent to place a duty on the Secretary of State when that duty already exists for the local bodies who will be making those decisions and are responsible for the services. Indeed, the local bodies' relationship with local people should enable them to carry out the involvement and consultation activity. Section 11 of the Health and Social Care Act 2001 already places a duty on NHS bodies, including strategic health authorities, to consult on services for which they are responsible. Including the Secretary of State under this duty makes only a cosmetic difference, not a real one.

Subsection (2) of the new clause deals with the Secretary of State consulting bodies representing local patients on the establishment orders of NHS bodies.

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As noble Lords will know, we have already amended the Bill to cover the consultation of relevant bodies on the establishment orders of strategic health authorities. Subsection (3), which places a duty on strategic health authorities to consult before directing PCTs to undertake their statutory duties, surely gives rise to consultation overload. We therefore believe that that provision is unnecessary.

Subsection (4) relates to the issues of referral to the Secretary of State in the context of consultation with overview and scrutiny committees and the health services. My ministerial colleagues have made it clear that we wish to have an effective and comprehensive framework for referral by overview and scrutiny committees to the Secretary of State on matters of concern which are being consulted upon and on the nature of the consultation itself. This framework is important for ensuring that those democratically elected representatives of local communities can, if they so wish, represent the views of their local communities to the national level. We are considering how best to provide for this within the framework of Section 7 of the Health and Social Care Act.

Subsection (4) is helpful in enabling us to think through what is actually required to ensure that the referral arrangements for overview and scrutiny committees are effective. We are confident that we shall be able to guarantee that a secure referral mechanism exists within our provisions. We are very sympathetic to the need to carry out proper and effective consultation and to ensure that disputed decisions are properly dealt with by democratically elected representatives of local people. However, this new clause seems to us to overcomplicate the Bill with unnecessary detail which is provided for elsewhere. We have made the necessary provisions in this Bill and in the Health and Social Care Act—for example, in Section 11—to ensure that the views, concerns and interests of patients and the public at large are fed into local decisions about the planning and development of the NHS.

We recognise that this new clause attempts to clarify and rationalise the consultation arrangements. However, we do not think that it is necessary, and it goes into too much detail and muddles up Sections 7 and 11 of the Health and Social Care Act. Sections 7 and 11 provide for rigorous and comprehensive consultation activity, and, under the regulations for Section 7, will set out the specific detail in respect of consultation of overview and scrutiny committees. For those reasons, we think the amendment should be resisted.

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