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Lord Warner moved Amendment No. 233:

On Question, amendment agreed to.

[Amendment No. 234 not moved.]

Clause 27 [Mergers]:

Lord Warner moved Amendments Nos. 235 to 239:

    Page 12, line 16, leave out "he" and insert "the regulator".

    Page 12, line 20, leave out from beginning to "will" in line 21 and insert "the applicant has taken steps to secure that (taken as a whole) the actual membership of any public constituency, and (if there is one) of the patients' constituency".

    Page 12, line 25, leave out "he" and insert "the regulator".

    Page 12, line 25, at end insert—

"( ) In deciding whether it is satisfied as to the matters referred to in subsection (5)(c), the regulator is to consider (among other things)—
(a) any report or recommendation in respect of either of the applicants made by the Commission for Healthcare Audit and Inspection,
(b) the financial position of the applicants." Page 12, line 26, leave out from beginning to "the" in line 27 and insert—

"( ) The applicants must consult about the application in accordance with regulations.

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( ) In the course of the consultation the applicants must seek the views of—
(a) any Patients' Forum for an applicant,
(b) the staff employed by the applicants,
(c) individuals who live in any area specified in the proposed constitution as the area for a public constituency,
(d) any local authority that would be authorised by the proposed constitution to appoint a member of the board of governors,
(e) if the proposed constitution provides for a patients' constituency, individuals who would be able apply to become members of that constituency,
(f) any persons prescribed by regulations.
( )" Page 12, line 28, leave out "he" and insert "it".

On Question, amendments agreed to.

[Amendment No. 240 not moved.]

Clause 28 [Section 27: supplementary]:

Lord Warner moved Amendment No. 241:

    Page 13, line 2, leave out subsection (4).

On Question, amendment agreed to.

[Amendment No. 242 not moved.]

Clause 29 [Co-operation between NHS bodies]:

[Amendment No. 243 not moved.]

Clause 30 [Public involvement and consultation]:

[Amendment No. 244 not moved.]

Clause 31 [Patients' Forums]:

Lord Warner moved Amendment No. 245:

    Page 13, line 21, at end insert—

"( ) In section 15 (establishment of Patients Forums), after subsection (2) there is inserted—
"(1A) The Secretary of State shall also establish a Patients' Forum for each NHS foundation trust, unless a resolution of the board of governors of the trust under section 18A has had effect.
(1B) In relation to a Patients' Forum established by virtue of subsection (1A) references in this Part to the trust, or NHS trust, for which it is established shall be read as references to the NHS foundation trust.""

The noble Lord said: My Lords, my ability to clear the Chamber is impressive. As I have said previously, we support independent patient involvement. NHS foundation trusts, like other NHS bodies, will be under a duty to consult and involve patients and the public under Clause 30. The Bill did not require NHS foundation trusts to have patients' forums because we do not want to prescribe how NHS foundation trusts should implement their duty to consult and involve the public and patients. In that stance there was no intention to diminish the work of patients' forums.

However, we recognise that there are strong feelings and concerns on the issue, in the House and outside. We wish to respond to those concerns by proposing that all NHS foundation trusts will, in the first instance, have a patients' forum. An NHS foundation trust must continue with a patients' forum for at least a year from establishment, under the government amendments in the group that we are moving. That will give a trust's governance arrangements a chance to get fully up and running, and the trust will have had the opportunity to consider the best way of fulfilling its duty to consult and involve patients and the public. At

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that stage, the board of governors will gain a power to vote on dissolving the patients' forums under those amendments.

Before voting on dissolution of its patients' forum, the board of governors would first need to consult the members of the trust and the patients' forum itself. The board of governors would also need to be satisfied that satisfactory alternative arrangements were in place for fulfilling the independent patient involvement and scrutiny role of the patients' forum. At least three-quarters of the members of the board of governors must vote to dissolve the patients' forum at a general meeting for such a resolution to be passed. That is what Amendments Nos. 245, 248, 249 and 252 would achieve.

I hope that all sides of the House will feel able to support the government amendments and that colleagues on the Liberal Democrat Benches will not press their amendments. I beg to move.

Lord Clement-Jones: My Lords, I thank the Minister for introducing the government amendments as he did. They were not unexpected in view of the Minister's assurance in Committee carefully to consider an alternative to provide more comfort for patients' interests and to show that we are serious about patient involvement on the providers' side. Some of the subsidiary amendments are sensible tidying-up arrangements, as were the amendments tabled by the Liberal Democrats at the previous stage. To that extent, they are welcome. We welcome, in particular, Amendment No. 249, which amends Section 19 of the 2002 Act, and Amendment No. 252, which gives the commission the right role as regards foundation trusts. We very much welcome the introduction of statutory consultation requirements on merger proposals, which has been under debate.

We do not accept the underlying principle behind the Government's amendments. Patients' forums are a statutory link with the community, so the community should decide whether that link is severed, not the foundation trust. Amendment No. 245 and subsequent amendments tabled by the Government attempt to provide a consultation procedure, but it starts from the wrong end. It is no good to consult a foundation trust patients' forum without a duty to have regard to what it says. It is all very well to consult, but the process must be taken seriously, and there should be a duty to do so. Will the overview and scrutiny committees of local authorities be consulted? Those are essential pre-requisites to any power.

Our fundamental objection is that we see patients' forums as the standard operating requirement for patients' involvement in the NHS, whether an ordinary NHS trust or a foundation trust. They should, and will, be a useful independent informed voice for patients and will be able to act as a support for governors, counterbalancing the influence of trust management on the governing body. They should be able to link up accountability mechanisms, particularly through their powers of referral to

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overview and scrutiny committees. They should link up also with national accountability, through the referral of issues of concern to the commission.

The bottom line is that the Government themselves made a commitment that there should be a patients' forum in every trust and PCT. That was the underlying basis of the 2002 Act. By the simple expedient of getting rid of NHS trusts and turning them into foundation trusts, they are attempting to climb out of that commitment, albeit with that caveat. That is a major problem for us.

There are problems with individual amendments. What sticks out most is the aspect of timing. Under the Government's provisions, by my calculations, the minimum period for which a foundation trust should have a patients' forum is 15 months—I do not know whether the Minister will be able to confirm that. That is a ridiculously short time in which to have a patients' forum to see whether that will operate. Even in their own terms, the Government's amendments seem extraordinarily flawed.

Many of us have considerable doubts about what constitute adequate arrangements to secure the performance of functions corresponding to those of the patients' forum for that trust. One could go into detail specifying that; indeed, if we were to accept the provision, such detail would have to be included. But, having looked carefully at the provisions, I am afraid to say that I do not believe that the Government have gone far enough. They will have to stretch themselves to go that extra mile.

3.15 p.m.

Earl Howe: My Lords, I support the noble Lord, Lord Clement-Jones, in what he says on this group of amendments. I recognise that the Minister has tried to be helpful in tabling the government amendments, but I am sorry to say that, having read them, I do not think that they will do.

The central point is that the governors of a foundation trust should not be made judge and jury on the question of whether to get rid of a patients' forum. That is surely what they would be, as the consultation that they would be required to perform under proposed subsection (5) is only that—consultation. As the noble Lord said, it does not include a duty to pay attention to the feedback that the governors receive or to act accordingly.

The chairman of the board of governors is in a particularly awkward position since he is also the chairman of the trust, who would have a clear interest in wanting to remove the patients' forum. Like the noble Lord, Lord Clement-Jones, I do not see why the overview and scrutiny committee has been omitted from the consultation process. One of patients' forums' main powers is that of referral to the local overview and scrutiny committee. That is part and parcel of their democratic underpinning. It seems extraordinary to ignore the views of the OSC.

I agree that the Government need to explain the meaning of subsection (1) of Amendment No. 248. It is not clear what replacement arrangements there

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could be for a statutory power to refer a matter to the OSC or the Commission for Patient and Public Involvement in Health; nor is it clear what replacement arrangement there could be for a statutory duty to find out the views of patients.

As a matter of drafting, the Government's amendments, taken together, cause me some puzzlement. Amendment No. 248 refers to the circumstances in which a patients' forum may be dissolved. That presupposes that a patients' forum exists to be dissolved. Yet, Amendment No. 245 says that a patients' forum need not be set up in the first place, if a resolution under Amendment No. 248 has been passed. How could that resolution have been passed if the patients' forum did not exist? I should be glad, if the Minister could explain.

I feel let down by the Government's approach to patients' forums in the Bill, despite the fact that they tried to meet us halfway. The promise was made only a few months ago—after three years of negotiation—that every hospital would have its own forum. If patients' forums are to be abandoned across the piece in acute trusts, the least that should happen is that the community itself should do the deciding. The government amendments adopt the wrong approach.

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