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23 Feb 2009 : Column GC1

Grand Committee

Monday, 23 February 2009.

Health Bill [HL]

Bill Information Page
Copy of Bill as debated
Today's Amendments
Explanatory Notes
Delegated Powers 3rd Report

Committee (1st Day)

3.30 pm

The Deputy Chairman of Committees (Lord Colwyn): Good afternoon. I start with the usual announcement that, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 1: NHS Constitution

Amendment 1

Moved by The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham)

1: Clause 1, page 1, line 8, leave out from “State” to “, or” and insert “on 21 January 2009”

The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): I shall speak also to Amendment 2. Before I turn to those amendments—I do not intend to delay the Committee for too long—I want to welcome noble Lords to the Committee and say how much I am looking forward to our debates on the Bill’s further stages, in particular that in Grand Committee. My first experience of Grand Committee was during the passage of the Health and Social Care Act 2008. All of us felt that that Act was improved by the important contributions of noble Lords, although I very much hope that we will keep our debates shorter than those we had on that Bill. I look forward to a similar quality of debate on this Bill; that has already been demonstrated by the informed contributions made at Second Reading.

I turn to government Amendments 1 and 2, which are minor, technical amendments. They make it clear that the constitution and handbook referred to in the Bill are the versions published on 21 January. I am pleased that the NHS Constitution was published very shortly after First Reading; that meant that noble Lords have had the opportunity well in advance of Second Reading to consider its contents. Noble Lords will be aware that the Bill was published on 15 January, which was, of course, prior to the publication of the constitution, and therefore the specific dated constitution and handbook could not be referred to when the Bill had its First Reading. As we are asking the NHS to have regard to the constitution, it is important that the legislation is crystal clear about the document we are referring to, which is why the Government have tabled the amendments. I hope that noble Lords are content with these minor amendments. I beg to move.

Lord Naseby: I seek clarification on the subsequent date. I believe that the Bill states that there will be a review every three years. Is the operational date for those reviews three years from 21 January 2009?

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Lord Darzi of Denham: My understanding is that that is correct.

Amendment 1 agreed.

Amendment 2 agreed.

Clause 1, as amended, agreed.

Amendment 3

Moved by Earl Howe

3: After Clause 1, insert the following new Clause—

“Core principles

(1) The NHS Constitution shall, in particular, include and be consistent with the core principles of the National Health Service (“NHS”).

(2) The principles are that—

(a) the NHS will provide a universal service for all based on clinical need, not ability to pay,

(b) the NHS will provide a comprehensive range of services,

(c) the NHS will shape its services around the needs and preferences of individual patients, their families and their carers,

(d) the NHS will respond to different needs of different populations,

(e) the NHS will work continuously to improve quality services and to minimise errors,

(f) the NHS will support and value its staff,

(g) public funds for healthcare will be devoted solely to NHS patients,

(h) the NHS will work together with others to ensure a seamless service for patients,

(i) the NHS will help keep people healthy and work to reduce health inequalities,

(j) the NHS will respect the confidentiality of individual patients and provide open access to information about services, treatment and performance.”

Earl Howe: I hope that the amendment’s purpose will be immediately understood by the Committee. It is to suggest to the Government that the question of how much or how little of the NHS Constitution should be reflected in the Bill can be settled in a more satisfactory way than that which the Government have chosen.

On looking at the available possibilities, there are two extremes at either end of the spectrum. One would be to place the entire NHS Constitution in the Bill. The Government have rejected that option for the perfectly understandable reason that it would ossify the constitution in primary legislation. The other extreme is not to include any of the constitution in the Bill. Ministers have opted for that course, ostensibly because they wish to leave scope for the constitution to be revised and amended from time to time without having to refer to Parliament. The problem with that option is that it will leave the law saying nothing about what kind of declaration the NHS Constitution should be. We are in a situation where Parliament is given no say in fashioning or shaping the constitution, even in the most general terms. That, to say the least, seems odd when the separate statement of NHS accountability, which the Government have published, makes it clear

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that at the national level the Department of Health is accountable to Parliament. Where is the accountability here?

The NHS Constitution, as we heard in the preceding amendment, was written, signed off and published in an exercise that was completely detached from the parliamentary process. Given that we are dealing with a document of such apparent significance for the health service and for patients, I am disappointed and uncomfortable with that approach. The other problem with the resounding silence in this part of the Bill is that it carries with it the implicit assumption that there is nothing in the nature of an enduring or universally agreed statement of values that will serve to underpin the NHS Constitution over the long term. If there is literally nothing that we want Parliament to say about the values and core principles of the NHS, what message does that send out about the reliance that people should place on that document? It is as though the Government are saying that not even the principles on which the NHS is founded can be set in stone, lest they might in the future have to be changed.

Hence, I have tabled the amendment. Its purpose is to suggest that there might be a sensible halfway house between the two extremes I have referred to. What we should try to do, indeed what we owe it to the country to do, is to encapsulate in the Bill those core principles without which the NHS would not be the NHS that we want it to be, and without which any constitution, to put it bluntly, would not be worth the paper it is written on.

The set of principles I have included in the amendment are those that were articulated and agreed nine years ago in the NHS Plan. They are not my words, although I think that they are very good words. As in 2000 when the great and the good of medicine appended their names to the preface of the NHS Plan, they are principles with which no one will take serious issue. Interestingly, the amendment contains two principles that are not explicitly included in the NHS Constitution: first, that the NHS will support and value its staff, and, secondly, that public funds for healthcare will be devoted solely to NHS patients. Why does not the constitution expressly repeat these two core undertakings from the NHS Plan? We see in the constitution seven principles that,

The third principle refers to the NHS aspiring,

and staff are mentioned in that context. However, ensuring that staff achieve high standards is not the same as saying that those staff will be supported and valued. You have to turn to section 3a of the constitution to find anything resembling the words “support” and “value”, and what you do find is expressed only in the form of a pledge and not a core principle. Why is that?

As regards public funds for healthcare, we see a slightly weaselly version of the principle in the NHS Plan. Instead of an undertaking that public funds will be devoted solely to NHS patients, we see that public funds for healthcare will be,

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What is the significance of this change of wording? What other groups of people are embraced by the phrase,

It seems to me a potentially much wider cohort than simply NHS patients.

Therefore, my questions to the Minister are twofold. First, do the Government still subscribe to the core principles of the NHS Plan, and, if so, why have these not been transposed into the NHS Constitution? Secondly, if we agree that the core principles of the NHS Plan are good and enduring, will he agree to consider including them in this Bill as a means whereby Parliament can both endorse the constitution and warrant to the public that the values underpinning it are not ones that Governments of whatever political persuasion will tinker with? I beg to move.

Baroness Cumberlege: Those noble Lords who took part in the Queen’s Speech on the health debate will remember that I am not a fan of this constitution. However, I am told that no one is more welcomed through the gates of heaven than a sinner who repents. In this context, I am still a bit of a sinner. I am not wholly repentant but studying the Second Reading debate and certainly taking into account the views that I have heard throughout the country, I recognise that on the whole people are very much in favour of the constitution. Therefore, I have come round to thinking that it is something that we need but I think that it should be made as good as possible.

In that context, I very much share the views of my noble friend in that I think that the Bill is wanting when it comes to the constitution in that it omits the fundamentals and, in particular, the influence that Parliament can have on the future NHS. An organisation that is principled is one that is trusted. Principled people have clarity of thought and a philosophy that guides them. There is widespread agreement that, with regard to the law, stated principles give confidence to service users and their families, they support and guide professionals, they assist in tribunals and give consistency in casework, and they inform the exercise of discretion under the law. I think it is essential that those who have to interpret the law should have this knowledge.

I do not know the Minister’s views but, judging by some of our past experience, I am sure that he will be thoughtful. He will consider the matter very carefully and, I hope, return to this House with his own amendment. However, I suspect that his briefing will say, probably in mandarin-speak, “Beware. Don’t touch it. This is a trap”. If we go by past experience, the Government will be shy of putting the principles into the Bill, but that is in contrast to our fellow legislators in Scotland, who are rather braver. When we debated the Mental Health Bill, which became the Mental Health Act 2007 and revised the 1983 Act, the then Minister, the noble Lord, Lord Hunt of Kings Heath, was sympathetic but he thought that it was not practically possible to add principles to an existing Act. It might have been possible if the Act had been replaced in its entirety, he told us. He argued that the Act already contained

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implicit principles and that it would not make for clarity to add explicit ones. He undertook to explore the issue but made no promises about the outcome.

3.45 pm

The subject was further debated on Report, when the Minister again expressed his sympathy but also doubts about causing confusion if principles were inserted into an Act that already contained principles. However, he agreed to introduce on Third Reading an amendment about principles, although this would relate to the code of practice and not the Act. This Bill is not on all fours with the Mental Health Act because it is not a revision of a previous Act but is new in its entirety. I am optimistic that the Minister will have inherited the sympathy shown by his predecessor, the noble Lord, Lord Hunt, and adopt the Government’s approach to two previous Bills, the Children Act 1989 and, more recently, the Mental Capacity Act 2005. Despite the principles being on the face of these two Acts, I am not aware that there have been any problems, litigation and the like. Perhaps the Minister will enlighten the Committee if that is so.

As my noble friend has explained, our suggested core principles are taken from the 2000 NHS Plan. That plan is nearly 10 years old and those principles still stand firm. I suggest that they are rather better than those contained in the constitution, but which, of course, are not on the face of the Bill as it stands at the moment. There are only seven principles in the constitution as opposed to 10 in our amendment, the first of which is split into two. The third principle in the constitution is “aspiration”, as my noble friend has said, and, although I rejoice in the focus on professionalism—I am delighted about that—using the interpretation in the handbook of “aspiration”, it could be seen more as a pledge than a principle.

In contrast, all our amendments and those principles taken from the 2000 health plan contain the verb “will”. This means business and is executive. The principle contained in subsection 2(b) of our proposed amendment concerning the provision of comprehensive services is omitted from the Government’s principles. Are the Government running away from offering a comprehensive range of services or are they—this is not a rhetorical question; I should really like to know—in this difficult financial climate, saying, “Sorry, but we can no longer afford to offer a comprehensive range of services”? That would worry me, but I could understand it because it could be a legitimate strategy. However, if it is, it should be overt and not shielded simply by omission. Perhaps the Minister will explain the position to the Committee.

In our proposed new clause, subsection 2(e) states:

With a Minister who has breathed, led and never ceased to impress the NHS with his championing of quality, and a CMO who is recognised the world over for his commitment to safety, I am amazed by the omission of this principle. Perhaps the Minister will tell the Committee why it is not included. Other voids in the constitution’s principles are the supporting and valuing staff, devoting public funds to NHS patients, keeping people healthy and a respect for confidentiality.

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We could have pages of principles but there is merit in brevity. The Ten Commandments have stood the test of time and if we had only kept to them perhaps we would have a healthier society. We have set out 10 principles in our amendment which I hope the Committee will consider helpful as an important suggestion to improve the Bill and, much more important, to provide an anchor for patients, public, carers and staff when they consider the fundamentals that surround the NHS. I support my noble friend.

Lord Walton of Detchant: I have the greatest respect for the noble Earl who proposed the amendment and the noble Baroness who spoke to it but I have to express some personal concerns about its content. When we debated the Bill at Second Reading it was stressed, rightly so, that the NHS Constitution is not a code or a statute but a set of guidelines. It is clear that the Bill makes it apparent that people working in the NHS and those who are subject to its rules and regulations must take account of or take note of or pay regard to the provisions of the constitution. With that I wholly agree.

It is clear that the principles set out in the amendment are admirable and totally unexceptionable. My concern is that if, as is the purpose of the amendment, this group of principles were embodied in the Bill, it would become part of a statute. I foresee the danger that if for any reason individuals of litigious intent felt that these principles were not being fulfilled it could give rise to litigation.

At Second Reading, I said how crucial it was that issues which are best dealt with by common law are handled by common law and not by prescriptive statutes. There are so many other principles that are a part of the National Health Service which are not included here and might be regarded as being of considerable importance. Nothing is said in these principles about the responsibility of the NHS for the education of healthcare professionals, nurses, other healthcare professionals, doctors and others, which is a crucial part of the responsibilities of the NHS. There is nothing said about the principles relating to the advancement of knowledge by research, which can nourish patient care and produce new developments which are vital to the future of medicine and patient care in general. Nothing is said about the crucial importance of the NHS nurturing advances in a vast range of medical technologies, which might equally have been included. Therefore, while its intention is very worthy, to embody the amendment in the Bill would be dangerous for some of the reasons that I have mentioned.

Baroness Finlay of Llandaff: I have great sympathy with the principle of the amendment, because it states that the core principles of the NHS should be stated. We already have effectively four different NHS systems in the UK: devolution has meant that what is done in Wales, Scotland, Northern Ireland and England is at times very different. The experience of patients on one side or other of the border changes quite dramatically if they are referred across it. We have a unified taxation system, so the funding of the NHS is on a UK-wide

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basis. We do not fund the health service within a devolved Administration locally. In other words, we have a truly national, UK-wide health service, yet the constitution will apply to England. As it would be revised every three years, I am concerned that we may see some drift, that it may move with time away from the core principles of the NHS and that we will find that we have different systems in different places. It is therefore very important to define it.

I am concerned that “evidence base” does not feature in the words within the principles. I would like to see the evidence basis for what is done within the NHS flagged up as a core principle, because research and the accumulation of evidence should inform what is done. When there is no evidence, things should be abandoned and change thought about.

Baroness Barker: When I saw the amendment, it sparked the following questions in my mind: what happened in 1948? What were the core principles of the NHS that its founders believed should be stated and should endure? Was there a document in 1948? As far as I have been able to research it, there never was, which seems very strange when one considers the magnitude of the task which those brilliant men and women set for themselves; namely, to institute a comprehensive health service the like of which had never been seen. I have not been able to verify it, but I understand that the reason was that Winston Churchill decreed that, were there to be a set of principles for the NHS, they would be so general as to be meaningless.

That thought led me to ask whether, 60 years on, we need some principles. I rather think we do. I am not sure that these principles are even those that the noble Earl, Lord Howe, if starting from scratch, would have arrived at. However, we need some principles, because, 60 years on and in the light of our experience and the policy and legislative developments over that period, there is now a body of evidence about what brings about change and progress within a national health service.

I have spoken in the past three or four months about what I see as the looming issue for all of us, on whichever side of the House we sit, which is the grim prospect for public services expenditure over the next few years. I do not wish to be partisan in any way, but the question of public service expenditure will be top of the agenda for any Government of any hue.

In light of that and what we have learnt in the past 60 years, it may be time for us to go back to establish what should be some founding principles of the NHS and be safe in the knowledge that any list of principles now exists within a context of the development of a body of policy, a context of clinical practice and expectation and a context of patient expectation. I perhaps take a slightly different view from that of the noble Baroness, Lady Finlay of Llandaff. Within the devolved system of the UK it is legitimate that we should begin to have different national health services which meet the needs of different populations. That said, I should be interested to know what should be the enduring principles that go across all four Administrations.

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For the future, there is a very interesting task to be done, which is to have a full consultation about what the enduring principles of the NHS might be. I said at Second Reading that the question of how patient data was used had been overlooked in the Bill. That has been an ongoing problem, probably since 1948, which has never properly been resolved: how do we deal with the conflicts between the need for individual patient confidentiality and the need to generate population data in order to facilitate research? That is a big question that, 60 years on, we could and should look at in an open way.

I have a great deal of sympathy with what the noble Earl, Lord Howe, is trying to do. I am sorry that I have to direct my questions to him as the author of the amendment, rather than to the Government, but he has hit upon an issue—perhaps in not quite the right way—which is the gap at the heart of the NHS about what its principles should be in this day and age, and for the future. The idea should be taken forward in a slightly different way.

Lord Rea: Even before the noble Earl, Lord Howe, moved his amendment in his usual eloquent and persuasive manner—it was elegant, too, actually—I felt that the Bill should say more about the basic principles of the constitution. I am sure that my noble friend would agree with the noble Lord, Lord Walton, that all 10 principles are absolutely acceptable and completely worthy, and that they are in line with the kind of NHS that Aneurin Bevan envisaged. That is not to say that they are the last word; we can amend them or add to them before the Bill leaves this House, and the other House can do the same, and the point made by my noble friend Lord Walton could be catered for. If these principles are in the Bill, that will not stop any future amendments to the detail of the NHS Constitution, provided that they fall in with these excellent principles.

4 pm

Lord Warner: I apologise to the Committee for not being at Second Reading but I was out of the country.

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