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Baroness Finlay of Llandaff moved Amendment No. 3:
- After Clause 6, insert the following new clause—
The noble Baroness said: My Lords, this amendment appears to be consequential on Amendment No. 1. Therefore, I assume that it will be accepted in principle by the Government. I beg to move.
Lord Hunt of Kings Heath: My Lords, I am advised that the practice of the House would be for the Government not to oppose the amendment. However, I should like to place on record the fact that I regard this—particularly in relation to a matter which I believe is for the Welsh Assembly—as a substantive and different matter from the issue of teaching and research.
On Question, amendment agreed to.
Clause 14 [Commission for Health Improvement: constitution]:
Lord Hunt of Kings Heath moved Amendment No. 4:
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 26.
Amendment No. 26 delivers the commitment that I made on Report that the NHS Appointments Commission will be responsible for appointing the chair of the Commission for Patient and Public Involvement in Health. But we go further—demonstrating that we are committed to the independence of the commission and distancing the appointments process from the Secretary of State. These amendments enable the Secretary of State to delegate to the NHS Appointments Commission such of his functions as may be appropriate in relation to the tenure of office, terms of appointment, dismissal and so on of the chair and members. The details of how such arrangements with the NHS Appointments Commission might work in practice are still subject to discussion with the chair of the commission and his team.
We have also been persuaded that similar arrangements should be made for the appointment of the chair of the Commission for Health Improvement.
Dame Deirdre Hine has announced that she does not intend to seek reappointment. I should like to take this opportunity to place on record my gratitude and that of the Government for the key personal contribution that she has made to the development of the commission.
Through Amendment No. 4, the next chair will be appointed by the independent NHS Appointments Commission. This anticipates arrangements to be made for the new health inspectorate, as was recently announced by the Secretary of State. Again, my right honourable friend will be able to delegate to the NHS Appointments Commission his decision-making powers in regulations relating to the appointment and tenure of office.
I believe that these amendments follow the discussions that we had at previous stages. I very much hope that noble Lords will accept them. I beg to move.
Baroness Noakes: My Lords, we greatly appreciate the amendments that the Minister has brought forward in relation both to the CHI and to the Commission for Patient and Public Involvement in Health. We are glad that he has agreed with us.
Perhaps I may ask the Minister one question. Why are the amendments phrased in terms of directing "a special health authority" to carry out the appointments and functions of the Secretary of State? Given the wording, that could be any special health authority—for example, it could be NICE or any other NHS body; I probably do not even know the current list of bodies which are special health authorities. Why does not the Bill simply mention the NHS Appointments Commission?
Lord Hunt of Kings Heath: My Lords, I can—
Lord Clement-Jones: My Lords, if the Minister wishes to respond at the end, that would seem to be convenient. Perhaps I may just insert my twopenny-worth into the proceedings.
I welcome not only the amendments but also the assurances that the Minister gave. Otherwise, we should spend many happy hours debating "may" and "shall", as we have on other occasions. In particular, these are important for the independence of the CHI and the Commission for Patient and Public Involvement in Health. I suspect that the Minister may have set a precedent for discussion of future health Bills. But as an opening of the door to greater independence for these two bodies, this sets an excellent precedent and runs counter to previous legislation to quite a degree.
I associate myself with the Minister's warm words about Dame Deirdre Hine. She has done a splendid job. There may have been a difference of approach in the way in which the CHI has been run in terms of its
Baroness Carnegy of Lour: My Lords, the word "direct" is used as opposed to "delegate". Does that mean that the direction cannot be revoked afterwards without primary legislation?
Lord Hunt of Kings Heath: No, my Lords. The Secretary of State has the power of direction, and I suppose that what he directs he may "un-direct".
Baroness Finlay of Llandaff: My Lords, perhaps I may put a brief question to the Minister. Subsection (2) states that,
Lord Hunt of Kings Heath: My Lords, my understanding in relation to the question asked by the noble Baroness, Lady Noakes, is that, clearly, the NHS Appointments Commission will do the appointing. But because the NHS Act itself does not provide for the National Health Service Appointments Commission we could not now place it on the face. It is a special health authority. When the Secretary of State makes a direction, clearly that responsibility will be given to the NHS Appointments Commission. But the appointments commission was set up by secondary legislation. That is why the amendment is termed in the way it is.
On Question, amendment agreed to.
Clause 15 [Establishment of Patients' Forums]:
Earl Howe moved Amendment No. 5:
The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 6 to 9 and 11 to 15.
On Report, I suggested to the Government that if they intended to be consistent about patient and public involvement and give full recognition of the growing role of the private and voluntary sectors in delivering healthcare to NHS patients, there was one important way in which the arrangements in the Bill needed to be buttressed; namely, by ensuring that the functions of a patients forum could be extended to every location in which publicly funded care was delivered. It is no good to an NHS patient if he finds that having been moved
Similarly, if the acute trust looking after our old friend, Mrs Archibald, decides to send her to a local private hospital to have her operation, why should she be suddenly cut off from the trust's patients forum? When considering the provision of mental health services of the significant proportion of NHS patients who are treated in the private sector, what is the argument against making sure that such patients in privately run treatment centres have exactly the same guarantee of representation as they would have in an NHS facility?
I know that the Minister is sympathetic to that argument, but his main rejoinder last time was to say that the amendments were superfluous because when the NHS contracts with independent providers, the inspection rights of patients forums will be set out in the relevant contract. That is fine as long as the contract covers the issue. Experience of the past few years shows that it is sometimes very difficult to get health authorities to insert such arrangements into their contracts, despite departmental guidance to that effect. Even if we take it as read that visiting rights have been included in a particular contract, how can those rights be enforced? The patients forum itself will not be a party to the contract.
I agree with what the Minister said on Report, namely, that with the NHS becoming a much larger purchaser of services within the private sector, the rights of inspection should feature more prominently and perhaps more automatically in contract negotiations. But, for the reasons that I have given, I do not think that that is good enough. As I said on Report, the Bill places very specific duties on patients forums. Clause 15(2)(a) states that they must
Patients forums should not have to be dependent on the vagaries of a contract to fulfil those duties.
The other matter covered by the amendments relates to overview and scrutiny committees, which ought to be able to scrutinise services delivered to NHS patients in whatever setting those patients are being looked after. The Minister helpfully said on Report that he would consider the issue. I understand his point that the remit of OSCs covers NHS bodies that may or may not agree contracts with the private sector. I am not sure that it is possible for an OSC to engage in the proper scrutiny of services unless it can call the provider of those services directly to account. That should be part and parcel of the deal that the private service provider enters into in exchange for accepting NHS patients.
I hope that the Minister will be reasonably sympathetic to these probing amendments. I beg to move.
Lord Clement-Jones: My Lords, I strongly support the noble Earl, Lord Howe, on Amendments Nos. 5 to 9 and 11 to 15. To some extent, there is a sense of déjà vu about our debates. The Minister may recall that we had very similar debates when we discussed the inspection powers of CHI, which seems like a long time ago but was probably three or four years ago, during the passage of the Health Act 1999. At that time, we said that it was utterly logical for CHI, as the audit and inspection body being set up at the time, to cover not only NHS facilities but private facilities as well. The case is even stronger and more cogent now as services will be commissioned by the health service and not only private health care is involved.
We know from the stated plans of the Secretary of State that it is intended that the NHS should have flexibility to commission the NHS internally or, as seems to be more and more likely, from the private sector, and even from overseas, so flexibility is being built into the system.
The noble Earl, Lord Howe, made the case extremely well. He referred to the vagaries of contracts, and as a lawyer, I agree that that is absolutely true—indeed, more so than he can say. The contents of a contract depend on the bargaining power of the parties. If it is a distress purchase, commissioned by a health trust that has to buy care very quickly from a specialist provider, it will be in no position to insist on very much. It may have a degree of leverage on the price but I doubt that it will have much leverage on whether there should be powers of inspection for the patients forum. Leaving it to the parties to decide the contents of the contract sounds to me, as a lawyer, an extremely faulty way of going about things. The issue would be far better expressed in legislation.
"DUTY OF LOCAL HEALTH BOARDS AND NHS TRUSTS REGARDING EDUCATION, TRAINING AND RESEARCH IN WALES
Local Health Boards and NHS trusts, and those commissioning specialist services on behalf of the National Assembly for Wales, shall have a duty to safeguard and promote education, training and research."
Page 19, line 41, at end insert—
"( ) After paragraph 5 there is inserted—
"5A (1) The Secretary of State may direct a Special Health Authority to exercise—
(a) his function of appointing the chairman and the other members referred to in paragraph 4(c), and
(b) any functions conferred on him by regulations under paragraph 5 in relation to the appointment or tenure of office of the chairman and those other members.
(2) The National Assembly for Wales may direct a Special Health Authority to exercise—
(a) its function of appointing the member referred to in paragraph 4(b), and
(b) any functions conferred on it by regulations under paragraph 5 in relation to the appointment or tenure of office of that member.
(3) If the Secretary of State or the Assembly gives such directions, the 1977 Act has effect as if—
(a) the directions were directions under section 16D of that Act, and, accordingly,
(b) the functions were exercisable by the Special Health Authority under section 16D.""
"The National Assembly for Wales may direct a Special Health Authority".
I understood at an earlier stage of the Bill that the health authorities in Wales are to be called "health authorities", not "special health authorities". It is simply a matter for clarification. The intention of the amendments is most welcome.
Page 21, line 17, at end insert "(including services provided by an independent hospital, independent clinic, independent medical agency, or care home under arrangements made by the NHS trust, Primary Care Trust or Care Trust for which a Patients' Forum is established)"
"monitor and review the operation of services"
and Clause 15(2)(b) states that they must
"obtain the views of patients".
5 p.m.
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