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Baroness Noakes: I thank the Minister for that reply and other noble Lords for their contributions to the debate. The noble Lord, Lord Hunt, raised an interesting point about continuity of management. I suggest that such a provision would be very difficult to draft because the Bill is predicated on mergers, and a merger has no dominant party. What the noble Lord, Lord Hunt, referred to was a takeover, and there is no provision in the Bill for a takeover. It is probably counter-cultural to the NHS to suggest that there might be a takeover. So while the Bill maintains the fiction of merger, I suspect that the points that he has raised, which I completely accept are valid, may be extremely difficult to accommodate in the Bill.

Lord Hunt of Kings Heath: I am grateful to the noble Baroness for giving way. Does she agree that, because of that, it might be appropriate to look at whether the regulator could be given discretion so that he or she could exercise judgment in those cases? I agree with her that it is quite difficult to set hard and fast rules here.

Baroness Noakes: That is a very constructive suggestion, and I hope the Minister will take it into account.

So far as the Secretary of State's consent is concerned, we will have to agree to differ. We see that the sticky hands of the Secretary of State are far too apparent in relation to foundation trusts. It would be no bad thing, we think, for the regulator to have complete say about whether or not foundation trusts were set up or merged in due course, but we will doubtless not progress that argument.

I take the Minister's point that the Independent Reconfiguration Panel is a mere figment of the Secretary of State's imagination and therefore cannot be referred to in the Bill. But that is a pity, because then we cannot refer to anything that requires the regulator to consult. If the regulator is not required to consult, the independent reconfiguration panel may wither on the vine, but that may of course be what the Secretary of State intends.

I was grateful to the Minister for his reply on consultation and his assurance that the regulations would be out before there was ever any issue of a merger. That will deal with the point in my amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 197 and 198 not moved.]

Clause 27 agreed to.

Clause 28 agreed to.

Clause 29 [Co-operation between NHS bodies]:

[Amendment No. 199 not moved.]

Clause 29 agreed to.

Clause 30 agreed to.

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[Amendment No. 200 not moved.]

Clause 31 [Patients' Forums]:

Lord Clement-Jones moved Amendment No. 201:

    Page 13, line 19, leave out subsection (2) and insert—

"(2) In section 15 (establishment of patients' forums) after paragraph (1)(b) there is inserted "and
(c) for each foundation trust.""

The noble Lord said: In moving Amendment No. 201, I shall also speak to Amendments Nos. 202 and 203.

We come to one of the largest question marks at the centre of the Bill and one of its major flaws—namely, the failure to provide for patients forums for foundation trusts. The key question in relation to Clauses 30 and 31 is why parts of the existing legislation are not being amended so that foundation trusts are put on the same basis as NHS trusts. This is the mystery of the dog that is not barking; I am sure the Minister will be putting on his deerstalker and trying to elucidate matters later in the debate.

Let us first look at the existing legislation. Section 11 of the Health and Social Care Act 2001 provides for public involvement in consultation. This is a very general provision, which states that it is the duty of everybody to which the section applies, including NHS trusts,

    "to make arrangements with a view to securing, as respects health services for which it is responsible, that persons to whom those services are being or may be provided are, directly or through representatives, involved in and consulted on—

    "(a) the planning of the provision of those services,

    "(b) the development and consideration of proposals for changes in the way those services are provided, and

    "(c) decision to be made by that body affecting the operation of those services".

That is a very general provision which is being amended to include foundation trusts. But when one looks at that section, that was always intended. It was purely coincidental that that section went through on the 2001 Act; it was not part of the 2002 Act. The Minister may have had a crash course in the history of this particular part of patient and public consultation. I hope he has, because it is very convoluted and hard fought.

Without the patients forums provisions, that is not a very useful piece of stand-alone legislation. There are no sanctions for failure to comply. Indeed, the provisions are extremely vague in the way in which they are applied.

Let me turn to something rather more specific which was deplored on these Benches and the Conservative Benches as not being nearly as satisfactory as the one-stop shop provided by community health councils. We had that debate on both Bills as they went through this House.

Section 15 of the National Health Service Reform and Health Care Professions Act 2002 provides for the establishment of patients forums. Such forums have very specific duties under that section. They must monitor and review the range and operation of services provided by, or under arrangements made by, the trust for which it is established; obtain the views of patients

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and their carers; provide advice and make reports; make available to patients and their carers advice and information about those services; and so on. These are very specific provisions.

Section 16 provides additional functions for PCT patients forums. The Government have simply provided for PCT patients forums to have a degree of responsibility for reporting on foundation trusts. But there is no extension of the power, for instance, to insist that foundation trusts respond to the concerns of the PCT patients forums. Ultimately, no separate patients forum is specifically provided for by amendment to Section 15 of the 2002 Act. That is a major hole in the middle of the Bill, which the amendments are intended to remedy.

There are other aspects which the Government have provided for. They give the Commission for Patient and Public Involvement in Health a role in relation to foundation trusts. However, it appears that they have very little capacity to fulfil that and none of that makes up for the fact that no patients forums will be provided for in the Bill.

Having set up the architecture of patient and public involvement for individual NHS trusts, it seems inexplicable that the Government have gone down this route. Do they believe that the board of governors will fulfil this role? We heard, as we went through the Government's provisions, that the role of the board of governors will be utterly minimal. There is nothing like the detail setting out what kind of public involvement mechanism there will be for the board of governors. So far as one can see, the role of the board of governors will simply be to elect the non-executive directors.

This seems a very shaky model, particularly when the Government were extolling its virtues. Indeed, they extolled its virtues on the basis of the recommendations of the Bristol inquiry. The Bristol inquiry put forward a model which the Government claimed to be implementing when putting forward the patients forums. I have not looked back at the precise form of the parliamentary commitment given by Ministers as the legislation on patients forums went through, but it seems a far cry from the Government's commitment to patient consultation and involvement at the time that both pieces of legislation went through for the Government now to say that foundation trusts will not be included in that.

There is grave disquiet on these Benches. It seems that what the Government will eventually allow to happen is the withering away of patient information and consultation. That seems a somewhat extraordinary step only a year after the passing of the 2002 Act. We need considerable tightening up in this area. I very much hope that the Government will have a change of heart on this matter and move forward to put foundation trusts on all fours with NHS trusts. I beg to move.

1 p.m.

Earl Howe: I rise to support the noble Lord, Lord Clement-Jones, in all that he has said. He has put the

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case extremely well. Only a few months ago Parliament agreed to the creation of patients forums as successors to community health councils on the clear understanding that every NHS trust and every PCT would have one; in other words, both providers and commissioners. Never was there even a hint from Ministers that the creation of foundation trusts would render those assurances null and void as regards the providers. Only when this Bill was published did we realise that the goalposts had been moved even before they had been planted into the ground. So now, just as the new national system of patient and public involvement is being rolled out in statutory instruments, we are engaged in debating a Bill which ensures that that system will be condemned to a limited span of life. It is a state of affairs that must be unique in parliamentary history and demonstrates either a lack of candour by Ministers originally or else—which I find more likely—policy-making on the hoof and simply a disregard for undertakings given.

The argument that patients forums are no longer needed because of patient representation on boards of governors was dealt with very well by the noble Lord. It is an argument that rests on a false premise. Accountability has three strands: the governance strand; in other words, the mechanism by which an organisation is controlled and managed to ensure that it delivers; the scrutiny strand to make sure that what has been promised is properly delivered; and patient and public involvement, which influences the delivery of services to match the needs of users. Neither scrutiny nor patient and public involvement can be done in-house. They require an arm's length relationship to ensure impartiality and to avoid conflicts of interest. Governors are an intrinsic part of their organisation. Their lack of impartiality will mean that they cannot also be scrutineers. To blur the distinction between those three strands of accountability is bound to lead to all three of them being compromised.

It is no good the Government saying—as they do—that PCT patients forums will perform the scrutiny and involvement roles in foundation trusts. The remit of a PCT patients forum in this context is a much more limited one, as the noble Lord correctly said. At the end of the day foundation trusts can ignore what they say. That is a long way from the kind of influence and leverage that patients forums will have in ordinary NHS trusts. The absence of a duty to create a patients forum in every foundation trust should not be looked at in isolation, I suggest. It should be seen against the background of an absence of legal accountability elsewhere. Neither governors nor, indeed, members of a foundation trust are accountable in law to anyone at all.

The Government are saying that it is up to the constitution of each foundation trust to determine whethe there is a patients forum within the hospital. That is one instance where I could have wished that the Government had chosen to be more prescriptive, not less. That lays me open as an easy target for the Minister but I would find it surprising if he did not agree with me—as Ministers have stated repeatedly in

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the past—that a patients forum should be seen as one of the essential checks and balances in the delivery of a responsive and patient-centred health service.

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