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Baroness Finlay of Llandaff: My Lords, I support the amendment and the principles behind it. As well as providing important frontline healthcare information, community pharmacists know an enormous amount about the community they serve. They know when someone has been chronically ill. They have got to know the relative or the friend who has come in to collect medication time and time again. Quite often, if you go into a community pharmacy, you find that the community pharmacist is providing bereavement support after that person has died. They are also a source of

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advice about what to do with medication, equipment and other things that are left in the house that cause a great deal of distress. They are also able to identify youngsters who are at risk, for example, of unplanned pregnancy, and are able to have a quiet word with them in a non-threatening environment that is not associated with making an appointment to see the GP. Young girls go into the local chemist to get their tampons and sanitary towels, so they are used to going in and out, and under that aspect health promotion advice can be provided. We would lose community pharmacy services at our peril. It would not be until they had gone that we would find the negative health impact, particularly on the older population, those with disabilities and those who are lonely and isolated for whatever reason and of whatever age. That health impact would be devastating, and if we costed it, there would be an enormous cost to the country.

Baroness Thornton: My Lords, Section 164 of the National Health Service Act 2006 allows the Secretary of State to authorise any primary care trust or other person to exercise the functions of determining authorities in relation to making or varying the remuneration for those providing NHS pharmaceutical services. Section 164(5)(b) sets out that the instrument of appointment may be contained in regulations, but there is no requirement to do so.

This amendment removes the current discretion in Section 164. It provides that the instrument of appointment must be set out in regulations when the Secretary of State appoints a determining authority for the remuneration of those services. The Government have already given a number of commitments on the record during the passage of this Bill that the Secretary of State will continue to set the fees and allowances for the national elements of the community pharmacy contractual framework in line with provisions in Section 164(3)(a) of the National Health Service Act 2006. They are in complete agreement with the value that all noble Lords put on community pharmacists.

However, it seems that in tabling this amendment, noble Lords continue to express concerns. Once again, I want to assure the noble Earl, Lord Howe, and the noble Baronesses, Lady Barker and Lady Finlay, that the Government remain fully committed to maintaining the current position; that is, that the fees and allowances for essential services and advanced services should continue to be determined nationally in negotiation with the Pharmaceutical Services Negotiating Committee and in discussion with the NHS.

However, having listened carefully to the arguments made, I am persuaded that there should be further consideration of the need for an amendment to place the requirement on the Secretary of State. I accept that this is a matter of continuing concern, and it is justifiable for that reassurance to be given. We have made the commitment today and previously, but things change, and I am prepared to consider further that this should be underpinned by a statutory requirement, and to bring it back at Third Reading.

Earl Howe: My Lords, I could not have asked for a more welcome reply from the Minister. I thank her for listening so carefully to the concerns that have been expressed around the Chamber. I thank the noble

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Baronesses, Lady Barker and Lady Finlay, for their contributions. I look forward to hearing from the Minister what proposals she is prepared to bring forward. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 136 [Consultation in relation to commencement]:

Earl Howe moved Amendment No. 72:

The noble Earl said: My Lords, Clause 136 makes it possible for private health providers who are contracted by the NHS to treat NHS patients to join the Clinical Negligence Scheme for Trusts. As noble Lords will be aware, this scheme is administered by the NHS Litigation Authority. The question raised by Amendment No. 72 is whether it is appropriate and right for this arrangement to be voluntary. As the Bill stands, it means that an NHS patient who suffers negligent harm from a private provider may not have access to the same system for redress as an NHS patient harmed in an NHS trust. There is a fundamental issue of principle here, which is that all NHS patients, no matter where they are treated, should be guaranteed the same rights and the same system for obtaining redress. The amendment makes it possible for the Secretary of State to direct that any body which is eligible to join an indemnity scheme by virtue of providing NHS services must join that scheme.

In tabling this amendment, I have been advised by Action against Medical Accidents, which has already seen examples of confusion over who is liable for negligent treatment when NHS patients have been harmed by private providers, such as independent-sector treatment centres. This sort of situation quite literally adds insult to injury. If an NHS patient is injured by an NHS trust, his claim is overseen by the NHS Litigation Authority. The NHSLA has a reputation for dealing with claims more expeditiously and, I know AvMA would say, more fairly than private insurers or medical defence organisations. I hasten to say that I am not casting aspersions on my friends in that sector who do a very conscientious job. I am not in a position to agree or disagree with AvMA’s assessment, but the central point of principle remains valid. It would be unfair for an NHS patient who happens to have had his treatment commissioned from a private provider not to be dealt with in the same way as someone who has been treated in an NHS hospital. If the treatment is NHS treatment, liability should reside with the NHS. AvMA tells me that in its experience patients who have to sue private organisations or individual doctors find the process even more stressful than making a claim with the NHSLA.

Of course, we always need to think carefully before building into statute any provision that interferes with contractual freedoms. However, which is more important: allowing a private provider to arrange its own indemnity cover and thereby creating unfairness and confusion for NHS patients; or predetermining this aspect of private-provider contracts and by doing so making

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sure that no NHS patient is disadvantaged or treated differently from any other patient should his treatment happen to go wrong? It is surely not satisfactory to contemplate a situation in which, after negligent treatment by a private provider, an NHS patient is effectively disowned by the NHS and left to seek redress from a large commercial organisation or its insurers.

I should add that the amendment would also theoretically make it possible for the Secretary of State to consider extending NHS indemnity to cover GPs, dentists and other primary care practitioners providing NHS treatment. I should make it clear that I am not advocating that idea. It is not the point of the amendment. My concern relates to independent providers of NHS secondary and tertiary care. I should be glad if the Minister could tell us whether she would be willing to look at this issue again. I beg to move.

Baroness Finlay of Llandaff: My Lords, I hope that when the Minister replies he also comments on episodes of care and where they begin and end. A situation can arise in which a patient is treated in the private sector, something goes wrong, they land in A&E and something else goes wrong. It is difficult to know whether the NHS or the original private sector provider is culpable. At the moment, the NHS is picking up and sorting out problems that have arisen when people have gone into the private sector for whatever reason.

It would be helpful for the Minister to clarify this, because the NHS seems to be carrying an unfair burden of responsibility, partly because it deals reasonably and rapidly and recognises the distress that patients are in when they try to take action, and partly because it is so difficult to take action against a private sector provider, particularly as they may be disparate and there are multiple contractual layers to the problem. I will not detain the House with numerous examples, but after the debate I would be happy to discuss with the Minister some that have come to mind. This problem is of real concern and involves the interface between episodes of care and how those are clearly defined.

Baroness Barker: My Lords, I do not wish to prolong the debate any further, but a clear statement from the Minister is important for the following reason. When care services are being put out to tender, it is common practice for those who are invited to tender to have to take out insurance cover. This is usually very large and very expensive. I would not want a number of independent providers to be priced out of, or to struggle to meet, tender specifications because of potentially very large insurance claims, only for this to result in a situation where, if there were an episode, it was deemed that the NHS was responsible for the claim all along. This has even more layers to it than one might have anticipated at the beginning. Therefore it would be extraordinarily helpful to have a clear statement on it.

Baroness Masham of Ilton: My Lords, I support the amendment. Complaints procedures can be very complicated. A lot of distress is involved, and the amendment would make the procedure much easier and much more straightforward for patients.

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Lord Darzi of Denham: My Lords, Clause 136 widens the entry eligibility of indemnity schemes created under Section 71 of the National Health Service Act 2006. We intend to open up for trusts a specific scheme, the clinical negligence scheme, that covers healthcare providers for clinical negligence liabilities arising from the provision of NHS care. The clause will extend the potential scope of this scheme so that we can allow non-NHS providers to obtain this cover when delivering NHS care. That is quite clear in the Act. The current legislation allows the Secretary of State to require prescribed NHS bodies to become members of this scheme, because it is right that bodies whose finances are under the control of the Secretary of State for Health may be directed to make such an arrangement.

However, Amendment No. 72 would extend this power of direction so that the Secretary of State could also require NHS foundation trusts, let alone independent sector providers of NHS care, to become members of such schemes. If the intention of the amendment is to ensure that all providers delivering NHS care have adequate indemnity cover, I could not agree more with the noble Earl, Lord Howe. However, the amendment is not the right way to achieve this. I am sure noble Lords will agree that the Government should not be able to direct or to seek to manage the day-to-day running of organisations that have greater freedom from government to control their own budgets. Specifying the indemnity scheme that they must join would be micromanaging foundation trusts—a debate that we have had throughout the passage of the Bill—and independent providers to an unacceptable level.

Instead, the Government have a responsibility to ensure that every provider delivering NHS care has appropriate arrangements in place to protect patients. I am happy to confirm that, as part of the national NHS contracts, this will be the case. In other words, every contract with an independent provider will set out very clear arrangements for that provider for the indemnity schemes that we may wish to see from them. We will require all of them to have indemnity cover as part of their NHS contract where such risks are present. This means that these providers can choose the type of indemnity cover that best meets their needs, and that patients can be assured that appropriate indemnity arrangements will always be in place.

7.45 pm

The noble Baroness, Lady Finlay, asked about the definition of episodes of care. I am more than happy to put that in writing, but she touched on something that is also close to my heart. If a patient comes into a hospital and is ill, it is our duty to look after them, irrespective of whether their treatment was private or under the NHS. I therefore do not see that as an issue. I regularly come across issues such as that, and I think that it is most unprofessional to say, “Actually, you have received this treatment elsewhere”. I will try to address that issue later.

The Government are fully committed to protecting the interests of patients harmed by their NHS care. We will not direct financially freestanding organisations such as foundation trusts and others. We believe that,

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within the context of a contractual obligation, having appropriate indemnity arrangements in place protects patients. I hope that I have explained the position as much as possible, and I very much hope that the noble Earl, Lord Howe, will feel able to withdraw the amendment. If he does not, we can have further discussions before Third Reading.

Earl Howe: My Lords, I rather suspected that that would be the Minister’s reply. I do of course thank him for what he has said. I also thank the noble Baronesses, Lady Barker, Lady Masham and Lady Finlay, for their support. It is reassuring to hear that the contract with private providers will require adequate indemnity cover to be in place. I had assumed that that would be so, but the issue runs broader than that, as the noble Baroness, Lady Barker, said.

If the Minister does not feel that any amendment to the Bill is appropriate, it would be helpful to have some assurance from him that commissioners of NHS services from private providers would in the normal course of things aim to make it a condition of their contract with the provider that they join the clinical negligence scheme for trusts to cover their NHS patients. We cannot insist that they take out cover of a particular kind to cover their private patients, as that has nothing to do with the NHS. In the case of NHS patients, however, it has everything to do with the commissioner. Such an assurance would go a long way and does not seem that outlandish a thing to ask for, given that a number of other conditions to private-provider contracts will be mandatory, not least adherence to the NHS complaints procedure in respect of NHS patients. If the Minister feels able to look at this again, I am sure that that will be welcomed in many quarters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 73 and 74 not moved.]

Clause 156 [Orders and regulations: Parliamentary control]:

Lord Darzi of Denham moved Amendments Nos. 75 to 76:

On Question, amendments agreed to.

Clause 164 [Commencement]:

Lord Darzi of Denham moved Amendment No. 77:

On Question, amendment agreed to.

[Amendments Nos. 78 and 79 not moved.]

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Welsh Ministers (Transfer of Functions) Order 2008

7.49 pm

The Parliamentary Under-Secretary of State, Department for Innovation, Universities and Skills (Baroness Morgan of Drefelin) rose to move, That the draft order laid before the House on 22 April be approved.

The noble Baroness said: My Lords, this draft order, which was debated and approved by the House of Commons Delegated Legislation Committee on 3 June, seeks to effect the transfer of functions relating to two health Acts from UK Government Ministers of the Crown to Welsh Ministers. The draft order contains functions under Section 86 of the Mental Health Act 1983 and Section 259 of Schedule 21 to the National Health Service Act 2006. The proposed transfer of functions has the approval and support of the Department of Health, the Ministry of Justice and, of course, the Welsh Ministers.

The relevant powers of the Secretary of State under Section 86 of the Mental Health Act 1983 apply to patients detained under Part 2 and Part 3 of that Act. Your Lordships may recall from our consideration of the Mental Health Bill last year that Part 3 of the 1983 Act relates to patients concerned in criminal proceedings or under sentence, while Part 2 relates to those often referred to as “civil patients”; that is, patients whose detention in hospital does not involve the courts. Section 86 applies only to patients detained under Part 2 or Part 3 of the Act who are neither British citizens nor Commonwealth citizens with the right of abode in the United Kingdom. The powers in Section 86 are to remove the person from a hospital in England or Wales and to send them to another country.

Section 86 provides that, before exercising the power of removal, the Secretary of State must be satisfied that appropriate arrangements have been made to ensure that a patient receives proper care and treatment in the other country and that removal would be in the patient’s best interests. Before exercising the power of removal under Section 86, the Secretary of State must obtain the approval of the Mental Health Review Tribunal, an independent judicial body concerned with determining whether a patient continues to meet the criteria for detention under the Act. It has the power to discharge a person from detention.

As set out in Section 86(3), the Secretary of State shall not exercise the power except with the approval of the Mental Health Review Tribunal. Responsibilities formental health matters are devolved to the National Assembly for Wales under the Government of Wales Act 1998. At the time of the original transfer of functions in 1999, which covered the Mental Health Act powers, Section 86 remained the responsibility of the Home Secretary. These powers subsequently have been transferred to the Secretary of State for Health in respect of unrestricted patients and to the Secretary of State for Justice in respect of restricted patients by the machinery of government changes which took place in 2007.

At present, Welsh Ministers are dependent on the Secretary of State for Health to exercise the powers of removing a patient who is receiving treatment for a

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mental illness from Wales to a country abroad. Given that health falls within the executive competence of the Welsh Ministers, it would be appropriate for them to exercise Section 86 functions. Most of the functions exercisable by the Secretary of State for Health in England are exercisable by the Welsh Ministers in relation to Wales.

This draft order makes it clear that there will be no transfer of functions relating to Section 86 for patients who are subject to a restriction order or direction under Section 41 or Section 49 of the 1983 Act or a hospital and limitation direction under Section 45A of that Act, which, I am sure noble Lords will appreciate, is key. These will remain with the Secretary of State for Justice, who will exercise those functions in relation to England and Wales, which, also, is key. That reflects the current settlement and arrangements regarding such patients. The Welsh Ministers are not seeking to change those arrangements.

There are potential benefits to be gained from the proposed transfer of Section 86 functions to the Welsh Ministers for Part 2 patients and unrestricted Part 3 patients. The Secretary of State for Health currently exercises functions under Section 86 in relation to Wales on the basis of advice from health service bodies in Wales, which are part of NHS Wales. The Secretary of State has no statutory control over NHS Wales; it is the responsibility, as we know, of Welsh Ministers, so it is appropriate for this function to be transferred. For hospital managers in Wales, the transfer of Section 86 powers would provide consistency with the exercise of other functions within the MHA 1983 which are exercised by the Welsh Ministers.

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