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As a light smoker I am rarely inconvenienced in this way, but the scenes of perfectly decent people huddled up, with their coat collars turned up, braving the elements, remind me forcibly of witnessing on more than one occasion 60-odd years ago in the American south, and in the United States capital, Washington DC, another minority group—coincidentally they formed about 20 per cent of the population—standing outside diners munching their burgers in the cold, while representatives of the majority population sat inside enjoying their meals in warmth and comfort. Apart from creating, in effect—although I am not sure whether it was deliberate—second-class citizens, the zealots have effectively signed the death knell of the great British pub. Pubs are closing at the astonishing rate of 39 per week.
Not content with that, the zealots plan to impose burdens, financial and otherwise, on small shopkeepers, a disproportionate number of whom are hard-working Asians. Newsagents derive as much as a third of their income from tobacco sales. For what end is this plan? It is supposed to protect the health of adolescents, but, if people are so concerned about that, and it is an admirable objective, why did the Government use the Parliament Act to force through Section 1 of the Sexual Offences (Amendment) Act 2000 against the considered judgment of a majority of your Lordships’ House, including many Labour Members? For those noble Lords who want to refresh their memories, I commend the House of Lords Hansard of 13 November 2000, in particular columns 35 and 36.
I revert to the subject of tobacco. I am sorry that the noble Lord, Lord Rea, is not in his place, but it is already a criminal offence to sell tobacco to the under 18s. This new law is almost always obeyed, and where it is not, the remedy should be to pursue and punish the offenders rigorously. I shall go further; should not the police be given the power to confiscate tobacco from minors, matching their powers to confiscate alcohol?
Underlying the Bill there is an extraordinary misunderstanding of human psychology. The BMA, for example, claims that a display of tobacco products at the point of sale reinforces in young people notions of the glamour of smoking. I go into shops and supermarkets quite a lot, and I can vouch that the huddle of customers around the tobacco counter is about as glamorous as a queue of people at a chemists waiting to buy aspirin or corn plasters. The fact is that young people throughout the world are, and always have been, tempted by what is mysterious and forbidden by adults. If you hide cigarettes behind a curtain, they will automatically become more exotic and desirable. On a practical note, I have noticed that in most supermarkets a cigarette counter is always busy, so in practice, the curtain would be open most of the time.
The BMA is on surer ground by asserting that young people are influenced by role models. On the whole, this is true; but what can you do about it? Should you censor every film, DVD and TV programme which shows people smoking? Mind you, the Americans, with their puritan heritage, did just that regarding one of their most famous 20th century presidents, Franklin Delano Roosevelt. In real life, FDR was rarely seen in public, nor I suppose in private, without his elegant
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One wonders how long it will be before British children are taught that our famous wartime leader, Winston Churchill, used to boost Britain’s morale during the blitz by being driven around bombed areas giving a “V” sign with one hand, while with the other brandishing his trademark cylindrical macrobiotic muesli bar, before retiring to his simple supper of lentils and brown rice, washed down with dandelion tea, to fortify himself for his titanic struggle with the evil, chain-smoking, hard-drinking carnivore, Adolf Hitler. Do not laugh, my Lords, it may yet happen. Speaking of Prime Ministers, it is noteworthy that three of this country’s 20th century’s Prime Ministers most closely identified in the public mind with smoking—Winston Churchill, Clement Attlee and Harold Wilson—lived on average to the age of 85. Not bad going.
The Government themselves, through their agencies, the Better Regulation Commission and the Parliamentary and Health Service Ombudsman, have clearly stated on more than one occasion that policy solutions “must be proportionate”, “need to be evidence based, objective and rational” and must be “appropriate and fair”. None of these conditions has been met in the case of the proposed ban, and the Government should think again.
8.20 pm
Lord Tomlinson: My Lords, I begin by congratulating my noble friend Lord Darzi on being the driving force behind change in the National Health Service. It is frequently said that Parliamentary Under-Secretaries do not have a great deal of influence in departments, but my noble friend’s track record shows where the drive and initiative for change have come from. I congratulate him not only on that but also on the exceptional stamina that he has shown in sitting right the way through this debate. Sometimes he must have felt a little twinge of regret about it; nevertheless, he has done it.
During the debate, a number of flights of fancy have taken us quite a long way from the subject. I shall start with my preferred one, which is that this reform of the National Heath Service does not come from a point of view of overall crisis in the NHS. If we look at the record of this Government since 1997, we see enormous progress: in real terms, the NHS budget has gone up by 96 per cent; waiting times for operations have been dramatically reduced, while waiting lists, which had gone up by 400,000 during the tenure of the previous Government, have fallen by 600,000 during the tenure of this one; operations carried out in the health service are up by 1 million post-1997; the number of nurses in employment in the NHS is up by 80,000; and there are 38,000 additional doctors in the NHS. All that has been achieved alongside a massive improvement in the National Health Service estate and innovative actions leading to the creation of things that did not exist before, such as the 90-plus NHS
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I welcome the idea of a National Health Service constitution, although I did not think that I would until I saw it. It is a very good start, but I have one or two concerns about it. There is an imbalance between rights and responsibilities as expressed. I think that we should emphasise a lot of the responsibilities that come with access to the health service, as well as people’s rights. I am a little doubtful about the full expression of these rights, particularly in the handbook to the constitution, my concern being that it may become a charter for litigants. We already have too many vexatious litigants knocking around the National Health Service.
My other concern about the constitution is where it talks about rights. Time after time it states, “You have the right”, but it does not specify who “you” is. That is quite important. “You” has to be defined. Is it a British citizen who acquires the right or is it any legal resident? Is it anyone who is legally in this country but not as a resident, or are we just going to rely on the exception that we can charge overseas visitors? What about asylum seekers, and what about failed asylum seekers who should have been sent home but have not yet gone? A whole series of questions has to be asked about who the “you” is. One reason why I am a strong supporter of a compulsory identity card is that I would like to see it become a statement of entitlement to the benefits and services in this country for people who are legally entitled to be here. For other people, there would be other ways of accessing the services that they need. Therefore, I welcome the constitution but I have some doubts about it. For example, 56 pages in the handbook cover rights and pledges relating to the patient, but, when it comes to responsibilities, there are only six pages. That is an imbalance.
A very useful additional management tool is the measurement and publication of data and the whole question of quality accounts. My only caveat about that is the imperative of keeping systems both accurate enough to be useful and simple enough to avoid the creation of another layer of bureaucracy. Such a bureaucratic overlay might just consume resources, which will continue to be scarce, rather than give value in terms of the benefits arising.
I found it difficult to get enthusiastic about personal budgets and direct payments, but I listened with great care to the noble Baroness, Lady Campbell of Surbiton, who gave an interesting and moving personal example. However, it depends on how far and how wide the question of personal budgets and direct payments goes. We all know from experience that the National Health Service is not the best at operating large-scale computer systems or securing patient information at the necessary level of confidentiality. Therefore, when I see new systems being introduced for personal budgets and direct payments, although I am willing to give the whole idea a fair wind in our examination of the Bill, I certainly have some doubts about size, scale, propensity to fraud and the ability to manage data inside as complex an organisation as the National Health Service.
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I hope that innovative prizes are widely based and are not limited to the great and the good in the National Health Service who in the past have been the recipients of merit payments. There has to be a wider base, because it is not only expert doctors in the NHS who can have good ideas about innovation. I hope that we will include in the scheme ambulance men and women, paramedics, cleaners, caterers and porters. Even patients may have ideas about innovation and how to change things for the better. Of course, I totally welcome the contribution that doctors, nurses and other health professionals can make, but I do not think that their contribution to innovation is exclusive.
I am all in favour of reducing smoking as much as possible and I listened with great interest to all the arguments about tackling the problem of tobacco at the point of sale. I am convinced that the only alternative to doing that, if we are to discourage young people from smoking, is to deter through taxation. There has never been a better time than today for punitive additional taxes on tobacco: there is very low inflation; it will not have a seriously detrimental effect on the rate of inflation to be declared during the next year; and we will not see it feeding through into inflationary pay claims. If we do not do something about reducing smoking, as is suggested in the Bill, or if there is an attempt to knock out Part 3 of the Bill, I will perhaps look to make some suggestions to the Government about what they should do in the next Budget in relation to taxation on tobacco.
While the Government are at it on tobacco, I find it quite illogical for them to be seeking to deter smoking without in parallel seeking to deter the consumption of alcohol. The cost of alcohol-fuelled accidents and the carnage that we see in so many of our towns and cities, particularly on Friday, Saturday and Sunday nights, when enormous alcohol-fuelled damage is done, are borne partly by the police and substantially by the National Health Service. I look for the Government, if not now, then at some other time, to say that they regard alcohol as a threat to the financial interests of the National Health Service and to the health of our people.
The Bill has clear purposes to ensure the highest possible standards of care and to empower individuals to help shape the care that they receive. I agree with those purposes and support driving up the quality of the health service through the proposed quality accounts. Despite the caveats that I have expressed, I welcome the Bill and the main purposes that lie behind it, and I will give it my support during its passage through this House.
8.32 pm
Baroness Finlay of Llandaff: My Lords, we have had an informed and interesting debate, but time is going on, so I shall confine myself to commenting briefly on the Bill and then discussing an amendment I shall table to insert a new clause on transplants and organ donation.
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Other noble Lords have commented on the NHS Constitution and Part 1 of the Bill. It is a sad reflection of our society that there is still bullying in the health service and that the NHS does not always respect and value the intrinsic worth of each human being. As Cicely Saunders said, “You matter because you are you”. That should have been the maxim of the NHS Constitution, and it could have been blazoned across the front of the publication. It is important to write down the principles, but we also need to have a debate about what the NHS cannot do when an emergency, whether national or local, arises. Staff need to know that they will be supported when they work outside their normal roles in such a situation. I fear the Bill may be a missed opportunity to realise our research potential by decreasing the regulatory hurdles for researchers in this country. My noble friend Lady Campbell argued eloquently for personalised budgets, especially mixed-health budgets for some aspects of equipment and defined interventions. I can see how useful such a provision might prove. It might remove unnecessary delays, particularly for wheelchairs, some treatments and equipment.
In 2003, I introduced a Bill to ban smoking in public places. Although my Bill for Wales did not become law, the Government's legislation of the same nature is now in effect and working well. Those who predicted that such legislation would result in a marked fall in smoking have been proved right. The reported 40 per cent fall in the incidence of heart attacks is probably the combined effect of less smoking, better cholesterol and blood pressure control and targeted health education. However, statistics unfortunately also reveal that approximately 450 under-18s start smoking every day in the UK. The Department of Health consulted on three legislative measures on tobacco ahead of this Bill: prohibiting retail display, banning tobacco sales from vending machines, and plain packaging. The Bill covers only the first of these—prohibiting retail display—and plans only to restrict access to vending machines. Declaring my interest as president of ASH Wales, I must say we would like to go further, but others noble Lords have addressed tobacco control comprehensively.
I turn to the urgent problem of transplants. As noble Lords know, I introduced a Private Member's Bill during the previous Session to introduce a soft system of presumed consent for kidney donation. I remain convinced that such a system would be advantageous, but I recognise it would not be a panacea. Presumed consent has been advised against by expert committees inside and outside this House, and I heed that advice. As the report of the EU Committee chaired by my noble friend Lady Howarth stated, we must encourage the gift of life to others after a tragic death and we must improve the infrastructure to encourage organ donation and support transplant procedures. My amendment will insert a new clause in the Bill. It will require the transplant team to take account of advanced wishes as expressed by the donor's relatives when they give consent. In the Mental Capacity Act, we made provision in Section 4(6) in Part 1 for an advance statement of wishes to be considered when a best-interests decision is being taken—an important
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At present, when a donor dies, the family's wishes about the use of donated organs are excluded. With her mother desperately in need of a transplant, Laura Ashworth told family and friends that she wanted to donate one of her kidneys, yet when the 21 year-old tragically died after an asthma attack, the Human Tissue Authority refused to consider her mother as a possible recipient of one of her kidneys and her pancreas, with the other kidney and her liver going to others. Instead, her organs went to three strangers on the waiting list. Of course, it is not known if tissue matching would have shown Laura's mother to be a suitable recipient, but if she had at least been considered, her grieving would not have been compounded by being denied the possibility of even being considered. She now has to rely on her sister becoming a live donor, which will endanger her sister. This is not the case in other countries. Elsewhere, a person already on the transplant waiting list and known to the grieving family can be considered in the tissue-typing process. The Human Tissue Authority seems to insist that an advance statement of wishes must be in writing by the potential donor having recorded a wish to be a live donor prior to death. That seems to run counter to the spirit of the Mental Capacity Act.
Let me be clear. My clause will not allow the donation to be conditional, but it will allow consistency with respecting an advance statement of wishes by the deceased by allowing the suitability of a potential recipient to be considered. It will help to ensure that organ donation is truly a gift to those in need, and it will allow the grieving to have comfort from the attempt to help someone among family and friends if a person on the waiting list is personally known.
I have consulted on this and have support from transplant professionals, but more of that when we debate the clause. I hope that the Government will see that it may increase donations, particularly in ethnic-minority communities, and would certainly do no harm. I will be calling on the House to support this.
8.38 pm
Baroness Barker: My Lords, I congratulate the noble Lord, Lord Darzi, on bringing forward his first Bill for consideration by the House. I must declare an interest in Clauses 18 to 22. Unfortunately, I am one of those people who have not yet managed to give up; that is something that your Lordships ought to know. I also make it quite clear that the policy that I will outline from these Benches about the tobacco control measures has been worked on with my colleagues here and in another place, who vary only in the degree of their intensity of anti-smoking feeling.
During debate on the Queen’s Speech a few months ago, I tried to set out some of the enormous challenges that the NHS, our largest public service, will face over the next five years during a time of recession. As we go through the Bill, we need to bear in mind that now, more than ever, people want evidence that the NHS provides high quality, efficient services delivered personally, locally and nationally. That is why my colleagues and I
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I start with the constitution. The first and obvious point is that it is not a constitution; I do not know what it is, but it is not a constitution. I understand from talking to people, including some of those who worked on it, that this statement of intent, or whatever it is, should not be used by individual patients to further arguments with clinicians. Rather, it sets out the general relationship between the NHS and its patients. As such, it is an important document which tries to set out some strategic issues that have a big influence on healthcare.
For that reason, we on these Benches have two regrets: two issues are missing. The first is a statement of clear principles about the use of patient data. I do not want to rerun the arguments made by the noble Lord, Lord Turnbull, but that is an ongoing issue that has never been resolved. Patients are fearful of confidentiality being breached, and researchers are frustrated by lack of access to anonymised data. That key point should have been included. Secondly, as the Local Government Association points out, if we are to reach the stated aims of overcoming health poverty, reducing mortality and improving efficiency and delivery of care, there needs to be full co-operation between the NHS and local government. I regret that there is no requirement on the NHS fully to co-operate with local government in the document.
What is the document’s status in relation to existing policy and legislation? Important drivers for healthcare for several years have been the Children Act 1989 and the Mental Health Act 1983. I do not want those important pieces of legislation to be undermined in any way by this document, the status of which is unclear.
Reviewing the handbook seems to be like a Forth Road Bridge job—never-ending. Reviewing it every three years seems to me quite daft. The pace of change in the NHS is such that you cannot fully implement something and review it successfully during that period, so we will propose later that the figure be changed to five years.
On quality accounts, the NHS is swimming in data; it has data everywhere. It does not have a clear, purposeful system for analysing and using that data. We support the aims of the noble Lord, Lord Darzi, and we welcome the involvement of clinicians in setting quality accounts, but to ensure that the provisions are right we need a much fuller statement about the purpose of quality accounts. Then we can determine what their nature should be. We will support anything that helps the NHS to come up with verifiable data that improves its evidence base.
We support individual budgets and direct payments as a means of making services responsive to need. I welcome any initiative that will enable older people to have greater independence, that will enable people to manage pain by having a chiropractor or an osteopath treat them, and that will help people with mental health problems to get rapid access to therapies, whether or not they are provided in their area.
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Direct payments are, however, very complicated. I told the noble Baroness, Lady Campbell, before she left the Chamber that I would tell the House that we need to be very clear that the use of direct payments in social care has yielded very little evidence so far. That evidence suggests that they work very well for some people, but for other people they are incredibly problematic. I am sorry to say that the noble Baroness, Lady Campbell, presented a particular view that may not be typical, and I am really worried that we see individual budgets as the answer to the NHS and all its problems when they are not, although they might be an answer for some people.
I ask noble Lords to consider that the individual budget is a market model, which is interesting; when the City is ditching market models at a hell of a rate, we are suggesting that they move into the NHS. They have been trialled in social care, which has 28,000 providers, most of which provide stand-alone services, and if the providers fail, there is no knock-on consequence for anything else at all. In social care, services are managed by eligibility criteria and people’s ability to pay, and we are going to apply that to the NHS, which has a few hundred providers. In the NHS, the distinction between acute care and community care is not clear-cut, and taking a budget from one part of the organisation could have severe knock-on consequences for another. All those services are supposed to be free at the point of delivery at the moment and are largely uncosted; yet we are going to do all that on the basis of some very thin evidence from social care. That is a huge risk. We assume that this system will work, but we must realise that this is a system in which there are more providers and more capacity than people need, so they can have a choice and there is sufficient purchasing power. Noble Lords may think that that applies to the NHS today, but I ask them to consider whether it will apply in five years’ time.
The IBSEN study has shown that there are some problems. I do not want to go into them; other people have, but if we go ahead without having fully evaluated this we will be in danger of compounding inequities between different client groups. That would be extremely dangerous. I say to the Minister now that we will not let the Bill leave the House without much more rigorous requirements for review and evaluation before this is rolled out.
Innovation prizes are okay on one condition: that the Minister gives an undertaking that the money will not come from existing research, education and training budgets. If he says that, that is fine; he can have them.
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