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On tobacco control, we on these Benches, like everyone else, have seen all the evidence that has been put before us. It is regrettable that we have to consider this without a comprehensive strategy from the Government to counteract the illness and health inequalities that are caused by tobacco. I make the observation that tobacco is like any product; if there is a market for it, there is profit to be made, manufacturers will make it and distribute it and retailers will sell it.

I will not restate the point made about vending machines, but I will say that we are a little sceptical about the extent to which the measures in the Bill will

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limit access by young people. I want to make it absolutely clear that we support the end of point-of-sale advertising, but we do not believe at this stage that it is right to end point-of-sale display. We would be happy to consider anything that noble Lords wish to put forward on plain packaging. We believe that, if stuff is put under the counter, it is glamorised and made more attractive to young people and smugglers are enabled to further their business.

On pharmaceutical contracts, will the Minister explain whether the new system that he proposes will be used to decrease the number of pharmacies? Pharmacists are high street retailers and not immune from the carnage we see on our high streets at the moment, so we want it to be absolutely clear that the Government are not doing something that will decrease coverage.

On adult social care complaints, I thank the Government for listening to what we said on the Health and Social Care Bill, but it is important that the local commissioner has a duty to refer any investigations to the regulator. That is how he will pick up incidences of bad practice and malpractice.

Over the next five years the outlook for the NHS and local authorities in terms of funding is grim. I hope that, as we go through the Bill, not only do we keep in mind the long-term vision of the noble Lord, Lord Darzi, but we also ask ourselves this: will what we are doing make the NHS something that people continue to value and cherish in good times and in bad? Some parts of the Bill will help that, some may not, and on some it is unclear. Those parts which are good will have our support.

8.50 pm

Earl Howe: My Lords, I am sure that the Minister will have been gratified by the general content and tone of this debate, which, with one notable reservation, has indicated a good measure of support for the Bill from all quarters of the House. He will be glad to know that I do not propose to be the one to spoil the general mood, for even if I cannot let out a rousing cheer for every single clause now before us, I am the first to acknowledge that this Bill is shot through with good intentions, and to that extent the Government and the Minister are deserving of our good will. Unfortunately, there are two parts of the Bill on which I will sound a note of criticism, and I shall come to those later. But knowing as I do how immensely hard the Minister has worked to bring his next-stage review to this point of fruition, I should like to congratulate him on those parts of this Bill which have his distinctive imprimatur visible upon them.

When it comes to the NHS Constitution, my reaction is little different from that of many other noble Lords: one cannot sensibly oppose it. Indeed, it was my own party that originally proposed the idea of an NHS constitution some time ago. I agree with what has been said; there is a benefit to be gained from articulating in a single document those values and principles which characterise the way in which the NHS goes about its work alongside the rights and pledges which patients of the NHS should be able to rely on. Restating all these things is by no means a sterile exercise. It serves to refresh the mission and purpose of the health

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service and, one hopes, underpin public trust. On the whole, I think the constitution reads very well. There is only one small problem. If you look for the constitution or any part of it in the Bill, it is nowhere to be seen. Not even the founding principles of the NHS are included here. What is more, they will not appear before us in a formal way at any time in the future, either in regulations or in any other statutory form. With all the talk in the constitution about parliamentary accountability, that is rather regrettable. Indeed, one has the feeling in this particular context that Parliament is something of an irrelevance. When we reach Grand Committee, I think we need to challenge the Minister on that point.

The other noticeable thing about the NHS Constitution is the one mentioned by the noble Baroness, Lady Barker, in that it is not really a constitution in the accepted sense at all. One of the defining features of a constitution is that it should serve to provide clarity on issues of principle that are likely to prove contentious and to act as a point of reference when disputes or matters of definition need to be settled. Section 1 of the National Health Service Act 2006, for example, speaks of a “comprehensive health service”, and the constitution itself echoes that phrase. If we look for a definition of what the word “comprehensive” should actually be taken to mean, we will be disappointed. It would have been helpful to know the extent to which people have a right to access NHS dentistry, an issue of widespread concern, but the constitution is silent on dentistry altogether.

Similarly we all remember that one of the most knotty and contentious issues of health policy in 2008 concerned NHS top-ups. In precisely what circumstances should a patient who is receiving healthcare in the private sector be denied access to the NHS? It is a question of fundamental significance but the constitution fails to answer it. The Minister will know only too well, and it has been mentioned today, that the issue of mixed-sex accommodation has been a highly charged one for more than a decade. Does the constitution take us anywhere near an understanding of what NHS patients have a right to expect in this area? It does not.

The NHS constitution seems to be a lost opportunity. Equally, some of us would have liked to see within it a clear articulation of how and to whom the powers, rights and responsibilities within the health service are allocated and distributed. Constitutions are normally a convenient vehicle for defining the broad structure of governance within an organisation, but not here. Ministers have told us, and we have to accept, that the constitution was never intended to create any new legal rights for patients. Given that, it seems a distinct pity that it has ended up ducking some of the key issues of structural definition.

I am not wholly clear why it is necessary to incorporate in statute a duty for NHS bodies and independent sector organisations to have regard to the NHS constitution. The Secretary of State already has a power of direction. Why would it not be sufficient for him to issue a Section 8 direction to health service bodies under those existing powers and to achieve the same result with independent sector providers by means of contractual obligations? Perhaps the Minister will

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be kind enough to tell me. If it turns out that the Government could have created that duty by another and more straightforward route, we need to ask why they did not do so. If there was another route open to them, this part of the Bill looks suspiciously like political grandstanding.

Ultimately, as noble Lords have said, the test of the constitution will be the added value that it brings to patients and staff. We owe it a fair wind, but I wonder how close we will come to being able to measure its effectiveness with any degree of precision. I support the Minster’s wish to measure quality in the NHS and to improve outcomes. The noble Lord is eloquent on his proposals to introduce quality accounts, and I am certain that this House will want to give him the chance to put them into practice. If I have doubts about the policy, they centre around the gap that may emerge between ambition and actuality. The first requirement for quality accounts is reliable and meaningful information. The collection and presentation of that information will be no mean task. The noble Lord, Lord Walton, sounded a warning about the burden imposed on healthcare providers.

The second requirement is that the information which is published tells the story that needs to be told. Will it? If it is up to local providers to decide what should make up the greater part of a quality account, there needs to be some way of ensuring that the bad news is published as openly as the good news. How will we know that this is happening? Who will audit the completeness and accuracy of what a provider chooses to publish? I am aware that the noble Lord, Lord Patel, who regrets that he cannot be here today, would have wished to voice his concerns on this very point.

There is another dimension to quality accounts which makes me somewhat anxious. We understand that the accounts will focus on three principal areas of a provider’s performance: safety, effectiveness and patient-reported outcomes. There is one important element that seems to be missing from those headings, which is the uptake of innovation. A provider may score high marks on safety and on patient-reported outcomes, and may be judged as being effective under certain definitions. However, if the provider does not constantly improve and develop new and better ways of working for the benefit of patients, the quality of his performance is, at best, questionable. I have not seen or read anything on this aspect of quality in the literature provided by the noble Lord, and it would be helpful if he would comment on it.

I also give broad support to the proposals on direct payments for healthcare contained in Chapter 3 of Part 1. It is extraordinary: this was a proposal that my party put forward more than three years ago. The then Secretary of State denounced us, and in the Government’s White Paper of 2006 the idea was ruled out. Undeterred, we made direct payments one of the central tenets of the health policy paper that we published in 2007. I am glad that the Government have changed their mind, because the whole purpose of this proposal is to extend the control that people have over the services provided to them—particularly those people living with reasonably predictable long-term illness or disability. For them, the divide between healthcare and social

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care can be a source of frustration and bewilderment. Services that should be seamless are not, and costs are often shunted between the NHS and social services.

If we take people’s individual needs and wishes as our starting point, instead of the traditional structures of service delivery, we can begin to break down the barriers to providing people with better care. However, we have to go about this carefully. The Government are right to start off with pilot schemes. Much detail needs to be developed and wrinkles need to be ironed out. The questions that we will ask in Grand Committee will centre on how the Government want the scheme to work; what kinds of healthcare will fall within the scope of direct payments; how individual budgets will be calculated; and how patients will be able to make informed decisions about what services to choose. Noble Lords were right to indicate the potential pitfalls. We need to take time to identify and overcome them.

I shall touch briefly on Part 2 of the Bill. We have waited some time for the Government to put in place a failure regime for NHS bodies. The proposals before us are a disappointment in one important respect: that of foundation trusts. The Government are obliging Monitor to hand over to the Secretary of State its responsibility for overseeing foundation trusts and for securing the services that they provide. The net effect of this is that all liabilities of NHS foundation trusts will be underwritten by the taxpayer. As a matter of principle as well as practice, I take issue with that, and in Grand Committee I shall explain why.

Finally, I will say a few words about tobacco. I am a spokesman on health and I take extremely seriously the public health imperative to reduce the prevalence of smoking, in the general population and in young people in particular. I support any reasonable and evidence-based measure that will bear down on teenage smoking. The Bill's proposals to outlaw point-of-sale displays of tobacco products are unjustified and repressive. The evidence to back them up is flimsy, and the data has been hyped. In 2002, when tobacco advertising was banned, the Government said that they had no plans to interfere with the right of retailers to display a perfectly legal product in shops. We must be absolutely sure of our ground before removing that right. I worry about what this measure will do to small shops, and I find it surprising that the Government have chosen to pass over other measures that would promote smoking cessation and make the existing law work more effectively. Our detailed debates on this must wait for Grand Committee, but the Minister will recognise that they are likely to be well attended.

I have concluded on a note of scepticism merely because I have followed the sequential order of topics in the Bill. As I said at the beginning, for the greater part of the Bill, the Government can count on our general support; and they can count on our constructive engagement on the whole of it. I join other noble Lords in looking forward to our later debates and, in the immediate term, to the Minister's reply.

9.05 pm

Lord Darzi of Denham: My Lords, I thank noble Lords for a lively and informed discussion. It has become customary to declare interests and I declare

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that I am an active clinician and work as an academic at Imperial College, a name that was mentioned earlier. I should also declare that many years ago I was a smoker. The incidence of smoking is higher in the medical community than in any other sector. I should also declare that, despite stopping smoking, I broke that vow on two occasions. I should probably leave the reasons why to the Committee stage.

The proposals in the Bill break new ground in a number of areas, mostly in driving quality in healthcare in the NHS, an organisation that we all admire and which is a part of our moral and social culture. Many in this Chamber today eloquently described its 60-year history and where it is heading over the next decade. The purpose of the Bill is to ensure that the quality of healthcare, the product of the NHS, is improved in the next decade, that it is more personalised around the needs of those who use it and that there is further accountability within the system to meet the expectations of patients.

Many valuable points have been raised in the debate and I shall try my best within the time that I have to address some of the main issues. I look forward to further discussions as we move to the Committee stage of the Bill.

The first part of the Bill covers measures to implement the recommendations in the report High Quality Care for All, which I had the privilege of leading. I am grateful for the support of noble Lords over the past 18 months in producing that important work, in which many colleagues in the NHS across the country were involved and more than 60,000 people engaged. One of the fruits of the report was the NHS Constitution, on which we have had many contributions today.

First, the noble Lord, Lord Naseby, and the noble Baronesses, Lady Tonge and Lady Meacher, raised the issue of the enforceability of the NHS Constitution. Every right in the constitution is already in law. The constitution itself is not a legislative document; most of the rights are in the different Acts to which the noble Baroness, Lady Barker, referred. She asked how the different Acts that we have in the system at the moment refer to the constitution. The rights are already enforceable in law. We have added three new rights, to which I referred in my opening speech, including the right to informed choice. The right to vaccination is the second new right.

I reassure the noble Lord, Lord Rea, that “having regard to” is a well established phrase and means that bodies or individual providers covered by the legislation will need to demonstrate that they have given proper consideration to the constitution in their decisions. The duty also means that they must have good reasons for any decisions to depart from the constitution. As I said earlier, we did not want to create a lawyers’ charter, which is why the constitution will not be set in legislation, although its contents are already in legislation. As the noble Lord, Lord Walton, pointed out, no one wants an NHS that is constantly dragged through the courts. I hope that that explanation also addresses the issue raised by the noble Earl, Lord Howe, about the relevance of the constitution and why it should not be part of the Bill.

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I wish to assure your Lordships’ House, particularly the noble Lord, Lord Naseby, and the noble Baronesses, Lady Young and Lady Wilkins, that we envisage that there will be a wide-ranging consultation on any further reviews of the constitution, which will involve all key stakeholders, including trade unions, carers, the Care Quality Commission, local government and all other individuals and bodies that are interested in participating.

The noble Baroness, Lady Tonge, highlighted the issue of choice with regard to maternity services. It is important to stress that the right to choose will develop over time as choice policy extends into other areas. When the right to choice comes into effect on 1 April 2009, it will reflect the existing requirements that patients have the right to choose the organisations that provide their NHS care when they are referred to the first out-patient appointment with a consultant-led service. That does not mean that maternity services will not be covered by the right to choice in the future.

The noble Baroness also asked about integration of healthcare and social care. Several elements in the constitution relate to social care and its relationship to the healthcare system—for example, there is a commitment to make the transition as smooth as possible when a patient is referred between the two services. However, there are currently no plans to produce a constitution specifically for social care because, as the noble Baroness will be aware, the Government will be publishing a major Green Paper on the reform of social care and the support system in early 2009. I also reassure the noble Baroness, Lady Masham, that the duty to have regard to the constitution will apply to providers of NHS services including the independent third sector organisations providing NHS care.

The noble Lords, Lord Naseby and Lord Stoddart, and the noble Baroness, Lady Knight, asked about the Government’s commitment to reducing mixed-sex accommodation. Privacy and dignity are key aspects of good patient experience. The quality framework will capture that and the constitution itself refers to it. As announced by the Secretary of State last month, the department has set up a privacy and dignity fund to the tune of £100 million to make swift adjustments over the next six months, with a central team to support local action.

We have also had an interesting and informative debate on the proposals in the Bill to introduce direct payments for healthcare.

Lord Naseby: My Lords, just so that we are all quite clear on the subject of mixed-sex wards, the Minister said, in answer to a Parliamentary Question that I tabled, that single-sex bays were the norm in the NHS, but that would result in a mixed ward. The Secretary of State has said that mixed wards will go. What exactly is the definition of a non-mixed ward in the Secretary of State’s new announcement?

Lord Darzi of Denham: My Lords, obviously the confusion continues. We are committed to single-sex accommodation, as we have always said in debates in this House. The announcement made by the Secretary of State is in support of that exact policy: we are committed to establishing 100 per cent single-sex

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accommodation in the future. We have done a lot in this area and I hope that with the help of the NHS we will achieve our aspirations and the commitments that we have made. I hope that the new investment will—

Baroness Knight of Collingtree: My Lords, is it possible for a date to be given?

Lord Darzi of Denham: My Lords, I will be more than happy to come back to that. I cannot commit to a date while standing in the House addressing a Bill that does not specifically address this issue but, as I said earlier, we are fully committed to this. Last month the Secretary of State announced not just a commitment but a significant investment to support that commitment.

We have also had an interesting and informative debate on the proposals in the Bill to introduce direct payments for healthcare. I am grateful to noble Lords for the range of experience that they have brought to these discussions, particularly the noble Baroness, Lady Campbell, for her powerful contribution. Many noble Lords have asked for further detail on the Government’s plans, such as whom direct payments may apply to, how they will be implemented, the safeguards that are envisaged and the support that will be given.

The noble Baronesses, Lady Howarth and Lady Young, raised the issue of advocacy. We would expect the PCTs to work with local authorities and third sector organisations to provide guidance and support to people being offered personal health budgets. Independent or peer advocates may also have a role in supporting people through the process. Some of the evidence from other healthcare systems suggests that peer, or expert, patient involvement as advocates may be very effective.

The noble Baroness, Lady Thomas, spoke from the breadth of her experience, particularly on muscular dystrophy. Several noble Lords raised the issue of other complex cases. I would like to reassure the noble Baroness, Lady Pitkeathley, that we hope to present as seamless a service as possible with those receiving social care and personal healthcare budgets. These budgets should be pooled as far as possible, as far as is practical and as far as is legal. That may require careful auditing and we will look into it further. It is one area that we need to explore as we consult on the type of pilot.

Several noble Lords, including the noble Baroness, Lady Barker, spoke about intended safeguards for direct payments. We intend that, before a healthcare direct payment is issued, all parties must agree the underlying principles as well as the clear objectives of the care plan. The care plan needs to be signed off by the patient and their care plan manager. Once the direct payment is running, it should be regularly monitored to ensure that the appropriate and agreed services are being used. It would also be appropriate to monitor budgets more frequently, probably in the early weeks and months of patients receiving direct payments and less often once the user becomes an established user of health budgets. If a patient is no longer able to manage direct payments, then this should be withdrawn by the PCT and services should be delivered directly.

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Several noble Lords considered the Government’s plan to use quality accounts. I firmly believe that that has the potential to embed a completely new culture in the NHS. That is what I referred to as a transformational change. It excites me because it is the language that the 1.3 million people who work in the NHS identify with and own up to because it reflects the quality of care that they provide to their patients. I thank my noble friend Lady Wall for her encouragement regarding quality accounts. I reassure her that we plan to develop our approach through a close working relationship with stakeholders to ensure that our plans are pragmatic.

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