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Having said that, when I began to read the NHS Constitution, I felt more than a twinge of concern because, as the noble Baroness, Lady Murphy, said, the Patient's Charter, published 10 years ago, sank virtually without trace, and no one remembers much of what it said. The United Kingdom does not have a written constitution. I recall a very well attended lecture by a colleague of mine who was a professor of law in Newcastle. He gave a lecture on the law of conspiracy and, at the end, he said: “My only conclusion can be: common law 2, statute law 1, after extra time”. The thought of having more constitutions imposed on the NHS caused me some concern.
However, having read and studied it, I think that it is to be commended. The safeguard we have is that virtually everything that it includes has been enshrined in previous legislation; there is nothing new and restrictive about it. I was concerned by the remark in the handbook, which the noble Lord quoted and was referred to by other colleagues, that there is no appetite for a lawyer's charter, and that the consensus based on taking note of and having regard to the constitution must not lead to litigious individuals in society feeling that they can,
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As many others have said, quality accounts are an excellent idea. I remember that we produced quality accounts in my former department and other departments in clinical medicine with which I had an association. One of the major tasks of the Care Quality Commission under my noble friend Lady Young will be to ensure that they are examined and analysed in detail. My only concern about the production of quality accounts is to some extent raised by the problems that have occurred in the higher education sector where, over the years, universities have been required to produce quality assessments of the quality of their teaching and facilities. Sometimes in university departments, the production of those figures has been extraordinarily burdensome.
I said in a debate in this House last year that one problem that I had noticed in the NHS over the past 10 to 15 years was the continuing introduction of new regulations and new methods of assessment to such an extent that the NHS was being beset by an intolerable quangocracy. I am concerned about the burden of data collection in the quality accounts. I should like to be assured by the Minister that that will not add a major administrative burden that may distract staff, particularly in the clinical field, and divert their attention away from their primary concern of patient care. It would be helpful if he could tell us what redundant, intrusive and superfluous procedures resulting from other quangos in the NHS can be abolished to make it more appropriate for the material on quality accounts to be collected and analysed. That is important.
Direct payments are an interesting development. Like everyone else, I was moved and much informed by the speech of the noble Baroness, Lady Campbell. I see no problem in how such accounts could be used and administered by health authorities and primary care trusts. That could be carefully controlled. What concerns me a little, however, is the idea of giving them to individual patients. It would be most helpful if the Government could indicate when the regulations controlling that activity are likely to be presented for consideration by the House. When are the pilots likely to be embarked on? I commend the principle of the public-private mix and recognise the great benefits that may, in certain circumstances, be derived by an individual with such a personal account from being able to purchase services from the private sector. However, I would be concerned—here I speak as the former chairman of your Lordships’ Select Committee inquiry into complementary and alternative medicine—if certain aspects of complementary medicine, not those that have been shown to be of patient benefit, but certain so-called disciplines of no proven value, were to be purchased by an individual using such a personal account. What safeguards might be introduced?
The idea of innovation prizes is sensible. Again, I declare an interest as a past president of the Royal Society of Medicine. This morning I attended a meeting there about a major programme on innovation in medicine being developed in collaboration with the
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I turn to trust special administrators. All of us who have worked in the health service have seen over the years the tortuous procedures and snail-like processes that have been used to remove trust administrators or chairmen in the very rare instances where the performance of the health service body concerned has proved to be inadequate. Are we thinking about a similar procedure by calling in an administrator in the same way as a failing company in danger of going into liquidation calls in administrators? What kind of person will be nominated as a trust special administrator? Will it be a judge, a noted lawyer, a senior doctor, a senior nurse, or an administrator? I would love to know the Government's ideas about the people who may be invited or nominated to fulfil that exceptionally burdensome task.
After reading the Bill, there were times when I wondered whether that was not too much of a task for an individual and whether a tribunal, including, as a matter of course, an individual with health service experience, would not be a better arrangement. Again, I look forward to hearing from the Minister about the proposals. I am glad that the 2008 regulations, which have been carefully framed, ensure that those procedures would be used only sparingly and after all other relevant procedures had been exhausted.
A lot has been said about tobacco control, and I do not propose to go into detail, except to say that I warmly commend the idea of removing tobacco products from display at the point of sale and the idea about vending machines. However, I am not enthusiastic about having tobacco products wrapped in paper that does not identify the nature of the content, if only because it might then be extremely difficult for people, once they had got through all the barriers, to identify which tobacco products contained higher levels and which lower levels of nicotine. That is an important issue that needs to be looked at.
In passing, the proposals for pharmacy are admirable. I spoke just a couple of weeks ago in this House about the crucial importance of continuing the doctor-dispensing practices. That has been accepted, and I hope that no barriers will be put up against the possible introduction of new practices with similar facilities. I agree entirely with what has been said about the complaints procedure in adult social care and the crucial importance of having a mechanism that looks at private facilities.
What the noble Lord, Lord Turnberg, said about research is absolutely crucial; everyone who has worked in medicine, medical research and clinical practice knows that today’s development in basic research brings
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Finally, the noble Lord, Lord Turnberg, is the chairman of the Association of Medical Research Charities. Are the Government satisfied that the charity research support fund, which was established to replace money that had been lost under the former dual-support system between the health service and the universities, is adequate to cover the cost of the fundamental needs of these research programmes? Many of us do not think that that fund is adequate.
6.11 pm
Baroness Pitkeathley: My Lords, I always have two main interests in any health Bill in your Lordships’ House. My first interest is as a long-time and long-term patient of the NHS; I owe my life to it and am grateful to it every day. My other main interest is as someone who has spent a great deal of her working life trying to get the NHS and other care services to be more focused on patients and users, and in that regard your Lordships will not be surprised to know that I welcome this Bill very much. However, I have several other specific interests to declare in relation to issues that I want to raise today. I am chair of the Council for Healthcare Regulatory Excellence, chair of the Specialised Healthcare Alliance and vice-president of Carers UK.
From the point of view of patients, the constitution is an extremely welcome development, which will have far-reaching effects by putting privacy, dignity and cleanliness at the heart of care and giving patients a better understanding than ever before of their rights and responsibilities. Because it is based on existing legislation, it may be vulnerable to change under different Administrations. Consistency is of the utmost importance from the point of view of patients, so we shall have to ensure that the constitution is an enduring document. The commitment to review the handbook every three years to take account of policy developments is therefore very important.
As we introduce this important new development, the Government will have to ensure that the principles outlined in the constitution fit broader NHS policies. There is a considerable overlap between the goals of the constitution and those of the regulation of health professionals. It is important to ensure that the rights and responsibilities of NHS staff, as laid out in the constitution, work in harmony with and not in opposition to the standards of the regulators of the health professions.
During the consultation phase last year, the Council for Healthcare Regulatory Excellence expressed concern that there were potential inconsistencies between standards and the guidance issued by professional regulators to their registrants and the responsibilities described in the constitution towards confidentiality and access to records. The council is pleased that these have been
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The status of the handbook is also of concern to the Specialised Healthcare Alliance. There is, I am pleased to say, a paragraph on page 15 about the existence of specialised services, but it seems to limit the alliance’s concern to a small number of people who are suffering from rare conditions. As specialised services account for 10 per cent of NHS expenditure and many hundreds of thousands of patients who are often in the most extreme need, as the noble Baroness, Lady Thomas, has reminded us, this is inadequate recognition and needs to be amended.
So far as patients are concerned, the Bill requires the Secretary of State to publish a report every three years on how the constitution has affected patients, staff and members of the public. As others have said, however, it does not provide any details about how this will be assessed or how the effectiveness of the constitution will be evaluated. I hope that, as the Bill proceeds, we will receive more details about this. We also need to work a little more on patient choice. There is a lot of emphasis in the Bill on patients’ duties, but patient choice is not given sufficient prominence.
The Bill also requires that patients and the public are consulted during each review of the constitution, but it does not make that requirement for the reviews of the handbook. I am not sure that the public will be able to understand the meaning of the rights and pledges in the constitution without the aid of the handbook, so consideration will also have to be given to public/patient involvement in regular reviews of the handbook. I will make specific suggestions about consultations in a moment.
I draw your Lordships’ attention, as other noble Lords have done, to a serious omission in the constitution. Given the increasing overlap between health and social care and the fact that most patients do not know where one ends and the other begins—why should they?—it is an anomaly that there is not one mention of social care in the constitution and no equivalent constitution for social care. If the Government are committed to providing a seamless service, we will have to address this omission.
The constitution sets out a number of responsibilities that patients and carers have towards the NHS. Carers—there are 6 million of them, as I am glad to say other noble Lords have reminded us—argue that they are going above and beyond their responsibilities, as set out in the constitution, by already providing more than £87 billion of care, which is the same as the value of the NHS when that was calculated. The constitution states that it is a patient’s responsibility to attend appointments and screenings and to register with GP practices. For some carers to be able to do this, social care needs to work proactively.
Carers UK has provided me with several examples of carers having been unable to attend routine screenings, register with GP practices or attend follow-up appointments for cancer because they have been unable to secure the right social care services to do so. One woman has been unable to attend a check-up since she
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A further concern is that, although Clause 3 requires the Secretary of State to consult patients, staff, service providers, members of the public and,
in the regular revision of the constitution and handbook, there is no specific mention of consulting carers. Carers must be recognised in the Bill as key stakeholders in the provision of healthcare services, and health bodies must be given similar duties to consult, involve and generally have regard to carers alongside patients, users and the public.
Many carers are also patients and will therefore have rights in this regard, but they interact with the NHS often solely as carers and must be specifically consulted as such rather than under the catch-all term “the public”. They often play a vital role in mediation, advocacy and negotiation in helping patients to access services, and their lives are influenced considerably by the quality and accessibility of services. The constitution should reflect the reality that patients and service users exist not in a vacuum but within families, many of which provide high levels of care. I am pleased to say that health and social care policy is finally recognising that carers should be seen as partners in care. We should not let them down by denying this special and important recognition.
I turn finally and briefly to personal health budgets and direct payments. These will enable patients to purchase their own services in the same way as the model used in social care for some time, which could make a real difference to people who receive continuing care and those with complex health and social care needs. However, several issues need to be resolved, such as how personal health budgets that are used to buy care from unregulated providers will be policed. If that can be done, will some of the conflicts to which I referred earlier in relation to regulation also arise here? In particular, it is essential that we heed the lessons learnt in the social care field so far as direct payments are concerned. I hope that these will be apparent from a full evaluation of the pilots, but we can do no better than listen to the noble Baroness, Lady Campbell, on this issue.
6.20 pm
Baroness Knight of Collingtree: My Lords, I know that this Bill comes to us with the best of intentions and, indeed, I agree with some parts of it, particularly those mentioned by the noble Lord, Lord Walton of Detchant, who is always absolutely fascinating to listen to, both because of his knowledge and because we respect him so much. However, I put down my name to speak because of my great concern about the clauses on tobacco.
I should like to make it quite clear that I do not smoke. I have not smoked a single cigarette in my life. I claim no virtue for that, although when I was growing
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Smoking is a perfectly legal pursuit. To make it illegal to see what people can legally buy is, I think, the nanny state writ large. Lawmaking is rarely easy. There is no shining path along which Bills can be driven without there being objects and principles that clash head-on with each other. Those principles will arise whether we like it or not and there are always difficult decisions to be made. We cannot pretend that a principle does not exist if it is slightly inconvenient to the passing of a certain part of a certain law. After all, one man’s human rights can very easily be another man’s denial of human rights. In this regard, we are considering legal steps to deny freedom of choice and freedom to act legally. I simply cannot swallow that. I believe passionately in freedom under the law. Surely the hallmark of every civilised state in the world is the freedom for people to act in accordance with the law as they wish. I believe so strongly in that principle that I would go to the stake for it. However much I desire to see people, especially young people, not smoking, I simply cannot sacrifice the principle of freedom under the law.
As I have said, I am a firm advocate of the use of teaching to influence people and I would greatly regret it if that changed. It seems that smoking has reduced in this country not as a result of what Governments have done over the past 10 years but because more and more information has come out about how desperately dangerous it is to smoke and because so many people have seen loved ones in their own families and circle of friends die. Looking back, they can see that, yes, they did smoke, which undoubtedly was a contributory factor to their death. Had they not smoked, perhaps they would still be alive.
I am bothered by the suggestion that cigarettes should be sold in plain packets free of wording. You cannot have a plain wrapper with writing all over it, so bang goes another effective method of ramming home the message that jolly well should be rammed home. For the life of me, I cannot see the sense in suggesting that cigarette packets should be plainly wrapped and kept under the counter when it is perfectly legal to have them. For goodness’ sake, let us give people the facts and let them make up their own minds. It is also very odd suddenly to say that cigarettes should be produced and sold in plain packets while at the same time the manufacturers of everything else sold in packets or jars, from soups to cough pastilles—anything that we buy in the supermarket—must put what is inside that packet or jar on the outside. Apparently, that is not to be the case for cigarettes. It is going to change and I simply cannot understand why.
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I found some confusion between proposed new Sections 7A and 7B in Clause 19. New Section 7A(1) states:
“A person who in the course of business displays tobacco products, or causes tobacco products to be displayed ... is guilty of an offence”.
“No offence is committed under section 7A if—
- (a) the tobacco products are displayed in the course of a business which is part of the tobacco trade”.
I thought that that was slightly odd until I read it through carefully. I presume that it means that if you are selling hats, handbags, china or anything other than tobacco, you must not display tobacco advertising or tobacco products. But why on earth would you want to? That puzzles me. Why would you want to put up an expensive display about cigarettes if you are selling other things?
Further down this page of the Bill is material that would be splendid for a comedy sketch: you must not display unless someone aged over 18 asks you to display, in which case you can display. Can you tell by the requester’s appearance how old they are? There are more bits about that and it gets still more complicated. It is okay to display if someone aged over 18 asks you to, but if someone under the age of 18 comes into the shop, what are you to do? Do you shove the packet of cigarettes under the counter or put a cloth over it—now you see it, now you don’t? The next bit says that if the displayer thought that the said person was over 18, then it would probably be all right. But I am not sure, because then we go on to how it shall be decided why or if the displayer thought that. What steps had he taken to discover the truth? Had or had he not “exercised all due diligence” in reaching that conclusion? My word, we are into heavy weather here.
Finally, we turn to what “a requested display” means. The poor person D with the mysterious age mentioned in the Bill—we do not really know whether is he 18 or under 18 and it has to be proved—must have asked to buy a tobacco product, which surely he would not have done if he had gone out to buy a hat or a handbag. This is a contorted part of the Bill, to which perhaps some amendments will be tabled in Committee. It calls for a few.
The Government want to make smoking illegal but they dare not do so. There is a rather unpleasant element: one of the reasons why they do not want to is that they get a lot of money from smoking being legal. They are quite prepared to rake in the money with one hand—all Governments have done this—and put down firm rules about smoking on the other. That is a difficult concept to accept. The Government dare not make it illegal to smoke, so they want to make it as difficult as they can to do so. It is a denial of people’s rights to live freely under the law, according to the law, and to do what they wish to do, which is what happens in a free country.
To say that the Bill wants more choice in the NHS belies its contents because of what I have just said. However, there is merit in the Bill. For instance, we learn that the NHS constitution will put privacy and dignity at the heart of care. I am all for that. Some noble Lords will know that I have made a fuss about that for a long time. But will all those good words
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On one occasion, the Minister on the Front Bench told me that 93 per cent of all people going into hospital went into segregated wards. That is wonderful, I thought. Then I made my own inquiries and found that the only reason why the Minister could say that was that a great many wards had been redesignated and called something else. They were mixed wards but they were called assessment wards. It is all right to be in a mixed assessment ward because it is not called a mixed ward. That is really playing with words. If that is the only way forward, the constitution will not provide what it says is intended.
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