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Lord Rea: My Lords, my noble friend the Minister has given serious consideration to the amendments. The Secretary of State and the Prime Minister have said many times that the private sector will be brought in increasingly to provide services that were formerly provided by the National Health Service. It, therefore, seems completely logical that patients and citizens should be able to comment on such services through patients forums and scrutiny committees. If not, how will those services be monitored? Will withdrawal of the contract be the only discipline available? That is not desirable as the services will be integrated by then and will be difficult to replace. I shall be very interested to hear my noble friend's reply.
Baroness Masham of Ilton: My Lords, the noble Earl, Lord Howe, has explained very well the fragmentation that could complicate the life of patients when they are looked after in a variety of health establishments. The Minister knows the
complications of hospital infections, which need all the monitoring they can get. That is only one example of the complications that could arise.
Lord Hunt of Kings Heath: My Lords, I have a great deal of sympathy with the intention behind the amendments, although I do not believe that they are necessary.
NHS patients remain NHS patients wherever they are treated and there is no question that it is extremely important that patients forums can enter premises and inspect services. That is the Bill's intention. The difference is the legal basis that underpins the arrangements.
First, I remind noble Lords that it is not necessary to list care trusts as a separate entity that must allow patients forums entry rights. Care trusts are either NHS trusts or primary care trusts that have been redesignated as care trusts under Section 45 of the Health and Social Care Act 2001. As such they are already provided for under the terms of Clause 17 of this Bill.
Secondly, Clause 15(2) covers all services arranged by the trust, including those provided in independent clinics, hospitals, medical agencies or care homes, local authority care homes or directly by the NHS. Whenever NHS care is provided the service can be reviewed by patients forums as per Clause 15(2).
Thirdly, NHS patients remain NHS patients wherever they are treated. As I said, it is important that patients forums are able to enter premises and inspect services. That has always been our intention. NHS bodies will be expected as a matter of course to set out rights for patients forums in the individual contacts that they agree with independent providers.
Both the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, referred to contracts. I am aware that the details of such contracts have been a source of some concern to community health councils in the past. That is one of the reasons why we are currently discussing with the independent sector a set of standard terms and conditions for NHS bodies to use when drawing up contracts for acute hospital care. Naturally, in such standard terms and conditions we shall include appropriate provisions to safeguard the rights of patients forums. We shall stress the importance of those provisions in the accompanying guidance.
In addition, we are considering whether the patients forums' non-executive director on the trust board should be given a specific responsibility for ensuring that contracts include details of the arrangements for patients forums to exercise their functions. We shall also consider whether they should monitor arrangements for forums to review, monitor, and inspect the services provided by the trust through arrangements with non-NHS providers.
I acknowledge the concern to inspect nursing homes and other healthcare establishments under the Care Standards Act 2000 in order to ensure that they meet appropriate standards of care. As the National Care Standards Commission has taken over the regulation
and inspection of the bodies specified in these amendments from local authorities and from health authorities, such inspection will enable the closest attention to be paid to those private sector providers.In addition, through the Commission for Patient and Public Involvement in Health, patients forums will be able to report matters of concern to the National Care Standards Commission, the Commission for Health Improvement, and any other body that they consider appropriate under Clause 20(6) of the Bill.
As regards overview and scrutiny, I make it clear, again, that the definition of "health service" will, in any case, include services provided to NHS patients under arrangements made by a trust. It is irrelevant whether the service is provided by the trust, or under an arrangement made with an independent body. The patient remains an NHS patient, and the health aspect of the service received can be scrutinised by his or her local overview and scrutiny committee. Although the pathway is somewhat different because of the different legal basis of an NHS organisation and of an independent provider, I am satisfied that patients forums will have the ability to undertake inspections within the private sector where they are dealing with NHS patients.
Earl Howe: My Lords, I thank the Minister for that helpful reply. I am also grateful to those noble Lords who took part in this debate, not least the noble Lord, Lord Clement-Jones, who was right to point out that the bargaining power of the parties to contracts in this sort of instance will vary considerably case by case. Nevertheless, it is heartening to hear that the Government are considering the possibility of a standard form of words for such contracts. It is also helpful to know that they are thinking in terms of giving a specific role to the patients forum member sitting on the trust board to ensure that contracts do include suitable provisions.
However, we return to the fundamental point; namely, that when it comes to enforcement of the contract, the patients forum is in rather a difficult position because it has no locus in that respect. I very much take on board what the Minister said about overview and scrutiny committees. Again, I found his response encouraging. I take it from his remarks that the overview and scrutiny committee will be able to look at the service actually delivered to the patient—the patient experience—wherever that service is delivered. Therefore, it will not need to confine itself to cross-questioning the trust that commissioned that service; it can question directly those who provided the service in the private facility, whether it be a hospital or a care home.
Lord Hunt of Kings Heath: My Lords, I should clarify the position. I believe that the overview and scrutiny committee would be in a position to invite a private sector provider to appear before it. Therefore, it would be for the private sector provider to decide whether or not to accept that invitation. What is not in doubt is the fact that the arrangements made by an
NHS organisation for commissioning those services would be covered by the responsibility of the overview and scrutiny committee. In accordance with the legislation, the committee would be in a position to require a representative of that body to appear before it.
Earl Howe: My Lords, again, I thank the Minister for his most useful clarification.
As regards the National Care Standards Commission, it would be reassuring to know that a line of communication will be established between the commission and the relevant patients forum. Although the Minister mentioned the likelihood of the National Care Standards Commission wishing to report to the Commission for Patient and Public Involvement in Health, or possibly even the CHI, there is perhaps another line of communication available in this case—namely, the relevant patients forum. I leave that thought with the Minister. We have had a most useful debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 to 9 not moved.]
5.15 p.m.
Clause 16 [Establishment of Patients' Councils]:
Earl Howe moved Amendment No. 10:
- Page 22, line 4, leave out "from among"
The noble Earl said: My Lords, this is a technical amendment to remedy a drafting defect that crept into the Bill on Report when the amendment introducing what is now Clause 16 was accepted. I beg to move.
On Question, amendment agreed to.
Clause 17 [Entry and inspection of premises]:
[Amendments Nos. 11 to 15 not moved.]
Earl Howe moved Amendment No. 16:
- Page 25, line 17, after "Authority," insert "an overview and scrutiny committee or joint committee within the meaning of 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 (c. 15),"
The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 17, 18, 22 and 24. We debated these amendments on Report. They propose a duty of scrutiny for local authorities in substitution for the power of scrutiny conferred on them by the Health and Social Care Act 2001. This is an important issue. When confronted by a matter brought to their notice by a patients forum, my concern is that some local authorities may simply choose to ignore it and do nothing; either because they have other priorities, or because they do not have the necessary resources.
As matters stand, there is nothing in this Bill or elsewhere to ensure that patients forums will be listened to; yet scrutiny of health issues by local authorities is absolutely central to patient and public representation. It is a function currently carried out by
CHCs. If nobody has a statutory duty to scrutinise health issues, and, where necessary, take action, patients forums will simply be left talking to a brick wall. In fact, except in the context of minor matters that can be sorted out within the narrow confines of a trust, forums will almost cease to have a point.On Report, the noble Lord, Lord Filkin, argued that under the Local Government Act 2000 local authorities already have a "responsibility"—I use his word—to promote the economic, social and environmental well-being of their areas. He added:
- "It could not be clearer that they are responsible for promoting the health and well-being of their communities".—[Official Report, 30/4/02; col. 619.]
As the noble Lord is aware, I took his statement to mean, first, that local authorities already have a duty to promote the health and well-being of their communities; and, secondly, that the provisions of the Local Government Act are directly relevant to the scrutiny of health issues. I withdrew my amendment on that basis.
Following the debate, the noble Lord was kind enough to write to me to correct my interpretation of his words. He said that when he had spoken of local authorities having a responsibility to promote the economic, social and environmental well-being of their areas, I should have understood him to mean that they had a power to do so. I do not think that I can be blamed completely for having interpreted the noble Lord's words as I did. However, that was a helpful clarification and I am grateful to him.
The other part of the noble Lord's argument was also important. I have had an opportunity to examine the Local Government Act 2000. Section 2 contains the power that I have just mentioned, and Section 4 contains a duty for a local authority to prepare a strategy for promoting or improving the economic, social and environmental well-being of their area and contributing to the achievement of sustainable development in the United Kingdom. Perhaps two questions arise from that. First, given that health is not specifically mentioned in the Local Government Act at that point, can the Minister confirm that Ministers and the Department of Health have received legal advice that,
- "economic, social and environmental well-being"
Secondly, can he confirm that the power contained in Section 2 of the Local Government Act should be interpreted as implying a power of scrutiny of health issues? If the answer to both those questions is yes, I would find that encouraging. If it is yes, can the Minister say whether the Government are prepared to issue guidance to local authorities to make that matter clear, and whether they could incorporate guidance about the content of the strategy mentioned in Section 4 of the Local Government Act to the effect that the strategy should cover health issues as well as all the rest?
What the Minister was essentially saying on Report was that my amendments were unnecessary for the reasons I have given. He was also arguing that the amendments, in so far as they created a duty, were undesirable, on the grounds that it is wrong, as he saw it, to impose duties on democratically elected bodies such as local authorities. I have reflected on that argument. I am not sure what I think of it, really. It was clearly Parliament's intention when it passed the Health and Social Care Act 2001 that local authority overview and scrutiny committees should have the function of scrutinising matters relating to health. In other words, it was not in Parliament's mind that local authorities should pay lip service to the function or that they should fail to perform it at all if they did not feel like it. The whole point of setting up overview and scrutiny committees was to ensure that the scrutiny function currently performed by CHCs should be safeguarded.
I believe that we should ensure that the edifice of patient and public involvement really does stand up, which is why I am proposing this amendment. In other spheres, the Government have not been averse to imposing duties on local government—witness for a start Section 4 of the Local Government Act. In a matter as important as this, I really see no reason why there should not be such a duty in order to ensure that what the Government themselves say they want really does happen. I beg to move.
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