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I was disappointed with the Minister’s reply about the conflict of interest question. To imagine an NHS body as a host is to imagine something undesirable and inappropriate. Indeed, those were the words the Minister used to describe that situation. Yet she also said that the Bill was deliberately permissive. I find that very strange. But even if we are able to live in hope that such a situation will not arise, I have a nagging worry that under the rules of statutory construction the explicit exclusion of NHS bodies from LINks would suggest their implicit acceptability as hosts. I can only suggest that the debate we have just had is flagged up in some appropriate way to deter anyone from even supposing that an NHS body might prove an acceptable host. The Government are

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being rather precious about this issue in not countenancing the matter being sorted out on the face of the Bill.

As regards dispute resolution, again I was sorry that the Minister did not warm to the proposal that I put forward. I simply ask: who out there will be capable of advising Government how well the LINks system is working nationally? It surely cannot be the LINks themselves nor, realistically, can it be local authorities. The role of a monitor would not simply be a tier of bureaucracy, as the Minister put it, but a function that Government and LINks would find invaluable. Nevertheless, I am grateful to the Minister for having considered the issue. We may reserve the right to revisit the amendment at Third Reading, but—

Baroness Andrews: My Lords, I certainly do not want to be considered precious. I listened hard to what the noble Earl said on the amendment on the NHS and he has come back equally powerfully. I cannot imagine that a local authority would procure the services of an NHS body to be a host—if it did, it would have to have exceptional reasons—but I shall take the matter away, have a final look at it and consider over the coming week whether there is anything to be gained by this.

Earl Howe: My Lords, that is a helpful offer on the part of the Minister. I am most grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews moved Amendment No. 208:

[Amendment No. 208A, as an amendment to Amendment No. 208, not moved.]

On Question, Amendment No. 208 agreed to.

Baroness Andrews moved Amendment No. 209:

On Question, amendment agreed to.

[Amendment No. 209ZA not moved.]

6.15 pm

Clause 228 [Duties of services-providers to respond to local involvement networks]:

Baroness Murphy moved Amendment No. 209A:

The noble Baroness said: My Lords, the noble Baroness, Lady Meacher, has been called away from the House and sends her apologies. I shall speak to her amendments, which of course I support.

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The context in which the amendments have been tabled is the rising proportion of hospital, mental health and ambulance care provided through foundation trusts, which was amply outlined during Second Reading. I do not want to repeat the arguments here that the noble Baroness spoke to then, but I remind the House of one or two key issues. I declare an interest as a board member of Monitor, the regulator of foundation trusts, and in the light of Monitor’s strong support for the Government’s wish to give practical expression to the very important role of foundation trust governors, in particular, but also the wider trust memberships’ engagement in their local hospitals and services.

Each foundation trust has now some 10,000 or more members, any of whom may seek information from the trust. Also, every foundation trust will have a board of governors of some 40 members, many of whom will be service users, patients, carers, members of the public and staff. I draw to the attention of the House that there are currently in excess of 800,000 people serving in these roles, and we expect within three years or so to have more than 2 million governors and members engaged in interest in their local NHS services. The boards of governors have powers and duties in relation to the future planning of the trust, the annual report and accounts, appointing and possibly firing the chairman and non-executive directors, and the very important role of acting as a communication link between the board and the local community. The board of governors will be given considerable information on the work of the trust. Foundation trust boards need to ensure that governors are fully informed so that they can undertake their functions effectively, yet informed in such a way that does not divert resources excessively from patient care.

It cannot be in patients’ best interests for two organisations with a mass membership and core group to be working alongside each other purporting to represent the interests of patients, carers and the community and seeking information to undertake their representative role. The potential for overload and confusion within the acute hospital, mental health and ambulance services is obvious. We hope that the Minister will assure the House that we will find some way to ensure that such duplication is avoided, while overall giving strong support to the improvement that LINks provide over what went before. This is a very important issue.

As to the second amendment, obviously LINks will want to visit wards and community facilities, as do foundation trust governors and, on occasions, members. But governors, in particular, will want to challenge their boards if they have concerns. I am sure that just as the Mental Health Commission successfully visits unannounced, so will the governors of foundation trusts choose to make unannounced visits. We would have concerns if some of these ways and means of members and governors involved in a trust are again duplicated by LINks.

I hope the noble Baroness will be sympathetic to the confusion that we see arising if these matters are not clarified as the Bill passes through the House. I beg to move.

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Earl Howe: My Lords, it is with some hesitation that I intervene in this debate, because I have the highest regard for the noble Baronesses, Lady Murphy and Lady Meacher, and their views. However, I have to say I disagree with the approach they have taken in these amendments. I shall quote from the report on the Bristol inquiry to explain why I do so. Paragraph 14 of the report says that,

To argue that patients in a given locality are adequately represented by boards of governors misses the key point that boards of governors are concerned only with what is done or not done in their particular organisation. The patient perspective on local services encompasses more than just a single trust; it also encompasses groups of people who may be completely unrepresented on trust boards.

Foundation trust members are a self-selected group of people who officially have no duty towards the wider community served by the trust. The Department of Health website says:

None of that has anything to do with the activities of a LINk. Indeed, I venture to say that a board of governors cannot fulfil its duties towards the trust while also attempting to fulfil the role of a LINk. Amendment No. 210ZA would confer on boards of governors a role that, I humbly suggest to the noble Baroness, they have neither the vires nor the funding to undertake.

If there is still doubt about this, we have only to consider a situation in which major changes to local health services are being proposed to appreciate how the perspective of a trust board could not possibly be an adequate substitute for that of local patients and their representatives. If a LINk were to be denied access to information from a particular foundation trust or denied entry into that trust, it would be impossible for it to take a measured and informed view of locally provided services across the whole area. I hope the noble Baroness will, on reflection, reconsider her amendment.

Baroness Neuberger: My Lords, I rise with not only some hesitation, as the noble Earl has said, but also a certain amount of trepidation, given that the two noble Baronesses are people I respect enormously and have worked with over many years, particularly the noble Baroness, Lady Murphy. However, I too have some concerns about the amendments. If we are now moving to a system of LINks, and if, although some of us have had our doubts about it, the system is particularly to be recommended because it goes right across the piece, including social care as well as healthcare, then it is wrong to exclude any element of what might be seen as provision of health or care services from the scope of LINks. It may well be that

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the members of the board of governors of a foundation trust might also be members of a local LINk; in fact, that may well solve the problem. But excluding them would be the wrong way to proceed. I hope the Minister will be able to give us some assurance that LINks will apply across the patch whoever the provider is, whatever kind of provider it is and whatever other governance arrangements there are for that particular body.

Baroness Masham of Ilton: My Lords, I go along with the noble Baroness and the noble Earl. Banning LINks from foundation trusts would not be wise. LINks, if they are going to be any use at all, will be interested in the standard of care in health and social care.

Baroness Meacher: My Lords, I apologise that I have arrived rather late. I had to be at a rather important meeting in relation to the regulator and was therefore unable to be here.

The noble Baroness, Lady Murphy, and I strongly support LINks’ activities in social care and all other healthcare that is not already dealt with by an existing organisation—for example, a foundation trust—where there is a board of governors with, in my own experience, a strong commitment to the communication role between the foundation trust and the public, the users, carers and others. A good proportion of members of the board of governors are users and carers. They are not, as mentioned by the noble Earl, a self-selected group; they are elected by some 10,000 members of the public, many of whom, again, are users or carers. They are representative and have a tremendous commitment to raising the quality of services for, as they see it, themselves—us, the users, the carers and the public. We have to be careful not to assume that somehow these are professional representatives; that is not how they see themselves at all.

In proposing the amendments I was trying to achieve the best possible information, visits to wards by members of boards of governors and commitment to the interests of users, carers and the public while ensuring those functions were not performed twice over. It is for the Minister to decide whether she needs to go back and change the regulations and so on regarding boards of governors, or to make some amendment to the way in which the LINks would function. Otherwise, I fear that these two bodies with considerable public membership will duplicate each other’s effort in some areas, causing some confusion and, particularly, taking resources away from the front-line delivery of services, which we all want to achieve to the maximum degree.

While I have a high regard for the speakers on the other side of the House and have much enjoyed working with them in the short time I have been here, I hope they will understand the motivation behind the amendments, which is to achieve the best possible outcome for patients, carers and the public—but not twice over.

Baroness Andrews: My Lords, I am glad that the noble Baroness, Lady Meacher, was able to join us in the Chamber for the debate. Her amendments were brilliantly moved by her colleague. We are all pretty

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trepidatious when it comes to taking her on with her experience of trust work. There is no one in this House more committed to that work, especially in mental health.

I understand that the noble Baroness is concerned with the best possible outcomes; she has spoken to me about this herself. But with her Amendments Nos. 209A and 210ZA there is a risk of not joining up activities across LINks and foundation trusts, and there might be some overlap. The noble Earl described more eloquently than I could the differences between LINks and foundation trust boards. The functions of the two bodies are different. Foundation trust boards are institution-based and focus only on healthcare, while LINks are area-based and cover both health and social care. LINks will be networks of individuals and organisations and are about bringing work together; they are certainly not about duplicating it. There will be enough to do without duplicating the work of the foundation boards. Crucially, LINks will include organisations that might have little attachment to health, but whose members will be affected by health provision. Foundation trusts may wish to work with LINks or contribute to LINk research, and they may see the benefit of developing relationships with LINks as a useful means of gathering additional information to inform the development of services.

6.30 pm

I know that the noble Baroness is concerned that the two types of organisation will not co-ordinate their work when visiting institutions. She made an important point on that. I know from my officials’ discussions with governors of foundation trusts which are members of the Foundation Trust Network that the majority of board members see LINks as a real opportunity to be able to influence wider service improvement. If a mental health trust has the capacity to reach out into the community and identify at an earlier stage of intervention people who might otherwise find themselves institutionalised, offering care through self-help groups and mental health groups in the community, it is a valuable LINk. We would want to see that happen.

I acknowledge my noble friend’s concerns. I shall ensure that an explicit reference to how LINks and foundation trust boards should work together is made in our guidance. It will address visits to institutions—the next amendment will relate to that further. The guidance can set out protocols that LINks and foundation trusts can use to ensure no overlap of activity. That is a better way forward than trying to make provision in the Bill and then having to amend it later. Guidance can set out good practice and make useful suggestions of ways of working. It will ensure that LINks and foundation trusts work together as well as possible.

Baroness Meacher: My Lords, I thank the Minister for her response. As she knows, I agree with her about the importance of LINks in developing communication with community services. I am pleased that she felt able to give a commitment to include in the guidance words that would exclude the possibility of duplication. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Clause 229 [Duties of services-providers to allow entry by local involvement networks]:

Earl Howe moved Amendment No. 209B:

The noble Earl said: My Lords, I shall speak also to Amendment No. 210ZAA. Clause 229 deals with the duty of services providers to allow entry by local involvement networks. If we read the wording of subsection (1), we see that the duty consists of allowing,

The worry that I have with this wording, as the Minister knows, is that it conveys the impression of a LINk pursuing its activities in a manner that is both passive and mute. It is as if all a LINk is able to be when it visits premises is a fly on the wall. The word that I want to introduce, and which still has a lot going for it, is “inspect”, because it carries with it the connotation of active questioning and monitoring. However, the Government have made it amply clear both in Committee and in correspondence that they regard the word “inspect” as inappropriate, because inspections are the function of the health and social care regulators.

I have therefore attempted to find a word which would make it explicit that LINks will be able to enter premises and ask whatever questions they need to ask to carry on the activities set out in Clause 226(2); that is, monitoring and reviewing the provision of local care services. The word is “enquire”. I should like the Minister to consider that word if she will.

As background, the Minister will know that the key to a patients’ forum being able to gauge the quality of a local service—exactly the same was true of CHCs—is its ability not only to enter and view premises but to talk to service users and staff. It needs to be able to ask the necessary questions of the right people. The mere notions of entering, viewing and observing do not seem to carry with them that essential capability. We need to correct that shortcoming.

Although the Minister has not yet spoken to Amendment No. 210, I would like to know the intention behind it. To one reading the amendment cold, it would appear to permit the Government to exclude LINks from whole categories of premises and whole classes of services provider. On the face of things, that is an extremely sweeping provision. I cannot help being rather concerned about what lies behind it. Paragraphs (b) and (c) of Clause 229(2) already contain provisions which allow the Government to place restrictions on the duty of services providers to allow LINks to enter and view premises, so why do we need yet more restrictions? I beg to move.

Baroness Andrews: My Lords, I appreciate that the noble Earl has tried hard to address the issue which we raised in Committee of what LINks will do when they carry out their activities on premises. He has come up, ingeniously, with the words “enquire into”. I am afraid that I shall have to disappoint him, but I hope that I will be able to reassure him at the same time.

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My understanding, which was confirmed by what the noble Earl said, is that the amendments are inspired by a concern that, when visiting premises, authorised representatives of LINks will not be able to ask staff, patients or patients’ families for their views on the level of service being provided. If that were the case, one would worry about it, because it would render the role of the LINks member essentially passive: they would become a fly on the wall or an observer. It would be a diminished role when compared with that of patients’ forums and leave them unable to judge how people really felt about their local care services.

The noble Earl was right that we were unable to accept the word “inspect”, but the power “to enter and view” means the same thing. The phrase was deliberately chosen to recognise the fact that LINk participants are not inspectors. “Inspect” applies to the professional regulatory bodies; those involved in LINks are lay people and, as such, are able to take a view from the patient and user perspective. I reiterate that LINks will have exactly the same powers as the patients’ forums to enter and view. Their members will be bound to have training and support that will equip them to do that job properly.

I think that I can reassure the noble Earl by helping him to understand how Clauses 226 and 229 fit together. Clause 229(4) makes it clear that while an “authorised representative” of a LINk is conducting a visit, any viewing or observation should be carried out for the purposes of the carrying on of the arrangements set out in Clause 226. In other words, while LINks members carry out only the activities listed under Clause 226(2), one of those activities is precisely to obtain the views and experiences of people relating to local care services. That power will enable them to listen closely and ask questions of the people who experience services in situ. I hope that the noble Earl will therefore agree with me that “to enquire into” as a separate provision is unnecessary.

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