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Earl Howe: My Lords, that was a helpful reply. This is not an appropriate matter to press but, at the same time, the House will be grateful to the noble Baroness, Lady Finlay, and the noble Lord, Lord Clement-Jones, in particular, for having spoken in the way in which they did about a matter that has raised much concern.

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The Minister said that my amendment and the amendment of the noble Baroness, Lady Finlay, and the noble Lord, Lord Clement-Jones, would give NICE guidance an unfair emphasis. My concern is that NICE guidance does not have enough emphasis. While the Minister was no doubt right to point to the importance and salience of guidance from the Chief Medical Officer and the Medical Royal Colleges, for example, I am not aware that guidance from those sources has given rise to particular concern as to its non-implementation. I am, however, aware that there is concern about the non-implementation of NICE guidance. So this is an appropriate issue for an amendment.

Nevertheless, we must take on board what the Minister said. There is time between now and Third Reading to give further consideration to the issue and it is right that, for now, I should beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker moved Amendment No. 294:

    Page 17, line 28, at end insert "; and

( ) the availability of and access to specialist services"

The noble Baroness said: My Lords, I return to a subject that we addressed in Committee. As in the amendments we have just debated, it is a subject on which there was a fair amount of ambiguity in the answer given by the Minister. Hence we return to it now.

The amendment concerns the role of CHAI in overseeing the accessibility and availability of specialist services within the new set up. In his response to points that I raised in Committee, the Minister spoke at length about the duty of co-operation between different trusts. He rightly put that forward as one way in which the issue of the availability of specialist services could be addressed. However, he did not sufficiently cover in his response the question of whose responsibility it is to ensure that specialist services, which are needed by only a minority of the population, are delivered equitably across the whole country. What happens if a specialism is considered to be so expensive that no foundation trust in a vast area of the country chooses to provide it? What happens to the people who need such treatment in that area?

We know that there are at the moment chronic shortages in some important specialist fields. For example, neurological and paediatric services are inadequate—there is no other word to describe them. The amendment seeks to elicit from the Minister a more detailed response on the role of CHAI in ensuring that the necessary specialist services are equitably distributed across the NHS. It is as simple as that. I beg to move.

6.30 p.m.

Lord Warner: My Lords, as the noble Baroness knows, it is the responsibility of commissioners to ensure that specialised services are made available to meet the needs of their populations, whether

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individually or in co-operation with other commissioners. That is the short answer to some of the questions that she was raising.

I can understand the sentiment behind Amendment No. 294, but we believe it has already been adequately captured by the scope of the clause as it stands. CHAI will be able to concern itself with the provision of specialised services under subsection (2)(a). Furthermore, CHAI is also able to consider the quality and effectiveness of any such care under subsection (2)(b) of the clause.

Including references to specialised services on the face of the Bill is in our view unnecessary because this is already provided for. As I have said, no doubt CHAI will want to look at whether there are particular problems in particular parts of the country if it turns out that commissioners are not making adequate provision, but that will be picked up in the inspection of providers. It will be for CHAI to identify any such concerns in the reports resulting from those inspections.

Baroness Barker: My Lords, I thank the Minister for that answer, but I do not think that it fully meets the reality, nor is it likely to. A commissioner can commission services as they like, but if there are no suitably qualified people in the field of paediatric neurology to provide the services, under this future system—as now—they will not exist. That is the issue I am seeking to address. Who has the responsibility for making up for those deficiencies? I am not sure that leaving it solely to commissioning will be the answer, particularly in the new set-up of financial flows. However, I take what the noble Lord says on board—I believe his interpretation of subsection (2)(a) is somewhat more generous than mine would be, but I understand his argument and will not, at this stage, press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Finlay of Llandaff moved Amendment No. 295:

    Page 17, line 28, at end insert—

"( ) the equity in provision of healthcare; and
( ) the implementation of ethical principles in decision making processes"

The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No. 328, which is in this group.

It is only fair to tell the Minister that I feel very strongly about these amendments. Equity lies at the heart of the philosophy of the NHS. It is equitable that people are prioritised by need, not by demand. It is equitable that they are not disadvantaged in the care that they receive by dint of any prejudice against the person on any grounds, by pre-judging their personal or social situation, by pre-judging them because of any pre-existing disability, or because they live in the wrong postcode area.

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People with disability have spoken very openly and loudly about their fears of inequity in the service that they already receive. There have been discussions on the Floor of the House at many points during the Bill's proceedings over concern about a two-tier system. It is accepted by many in the House that things are not as they should be—there are areas of much worse care and areas of much better care. There are currently inequities in the system.

I have a major concern. Clause 47(2) states that CHAI shall be concerned in particular with,

    "the quality and effectiveness of the health care".

I do not quibble with that. It also states that CHAI shall be concerned in particular with,

    "the economy and efficiency of the provision of health care".

I do not quibble with that. However, there is no mention of equity.

The commissioning arrangements by primary care trusts and in Wales by local health boards must ensure that providers adhere to equity. Indeed, the commissioning arrangements themselves must not create "two-tierism" or, worse, three or "four-tierism" across parts of the health service.

When trusts were first established and the competition of the internal market seemed to reign supreme, inequities emerged which caused a great deal of anxiety. I hope that no such inequities will re-emerge as a result of the Bill. CHAI and the Assembly inspectorate must ensure that provision is equitable and that the contracts that are in place do not jeopardise that equity.

The Government have shown a commitment to patient choice and to informed decision-making by patients in partnership with professionals. However, the relationship between patient and professional contains an inherent and, sadly, inevitable imbalance. The patient is vulnerable—he may not have any knowledge of physiology, anatomy or disease processes. He is often fearful, and those fears are informed by anecdotes and personal witnessed events, either in his care or the care of his family and friends, or as portrayed in the media. Unfortunately, sensational stories in the media do not always present a balanced view and at times they do not provide helpful public education to improve health.

When CHAI and the Assembly inspectorate look at the processes of care, it is essential, in my view, that they can confirm that decisions are driven by the principles of bio-ethics, of informed choice, of actions guided by the patient's best interest, and by the just allocation of resources.

The inspectors will be in a unique position. They will be auditing clinical processes, they will have access to records, to patients and to staff at all grades. They will be able to detect inconsistencies. They must be formally charged with a duty to enhance good clinical processes. I beg to move.

Baroness Barker: My Lords, I support the noble Baroness, Lady Finlay, wholeheartedly, and should like to speak to Amendment No. 316 in particular.

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Noble Lords on these Benches were puzzled in Committee that matters such as economy and efficiency were of such importance that they were on the face of the Bill yet equity was consigned to the penumbra of regulation. I do not believe that we received at that stage a compelling answer from the Minister about why equity should not be a principle equal to those on the face of the Bill, and we remain unconvinced. The Minister will recall that I tackled equality in a number of different ways in Committee. He rejected most of them on the grounds that they were far too prescriptive. To contain a principle of equity is not prescriptive.

The noble Baroness, Lady Finlay of Llandaff, is right that the health system as it stands is not equitable. However, the aim or the goal of equity is within the health service, and it should continue to be so, particularly when foundation trusts come into being and are not so tied to management structures as they would otherwise have been.

The noble Baroness is quite right about the potential skewing of healthcare towards those people who are knowledgeable and articulate, and capable of putting forward their demands in the right terms. It is beginning to happen in primary care and I have no reason to believe that it will not happen in acute care when foundation trusts become membership organisations.

I doubt whether anybody will be as disarmingly honest as the person whom I recently met from a PCT who said, "In our borough, we have highly articulate, very well off middle-class parents of children. That is why we are putting our money into children's services, not older people's services". It may sound breathtaking, but for once it was a joy to meet somebody in the NHS who told the truth straight up and did not dance around the subject. But there is always a danger that those who are not articulate or strong, and who have not worked out all the clinical angles, will not be included in the legislation. That is why we believe the matter to be important.

Finally, I imagine that the Minister will say, as he did in a previous debate, that equality legislation is in place and that, therefore, the amendment is not necessary. If equality legislation applied to healthcare, that argument might be right—but in not all respects does it do so. Tremendous strides have been taken in the health service, especially with the work on age discrimination and some of the other work included in the national service framework. However, an undertaking throughout the health service is not in place that everyone, no matter who, has a right and the same opportunity to have the same treatment, even though it is not specific to the group to which they belong. Therefore, I believe that the noble Baroness, Lady Finlay of Llandaff, has got the matter absolutely right. This is one of the most important aspects of the Bill.

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