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On the question of payment for the health service, not everybody reads the documents that the Minister quoted. I shall not say that it is my plan, because it is not, but consideration should be given by the Government to show perhaps on people’s wage slips how much they personally are paying towards the cost of the health service—like a health stamp, for example.

Lord Darzi of Denham: In relation to the private pharmacists, I refer to any pharmacist providing NHS services. If the general practitioner has been involved in that prescription, it is the general practitioner’s right to share any information that he or she may find suitable with the pharmacist providing those pharmaceutical drugs. As for patients reading documents, it will be a great pleasure for the Government to find a way in which we can share this information about the £100 billion that the taxpayer is spending on healthcare. On the question of exactly how much each individual is contributing, we all know that we are paying a significant amount of tax; we know exactly how much tax we pay. On an individual basis, people should be aware of the contributions that they make in tax.

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Baroness Cumberlege: I understand the arguments that have been put about flexibility and ensuring that we have enough room for manoeuvre in future. It is quite interesting that we have had the principles set out in the Children Act and in the Mental Capacity Act. That is not the Mental Health Act, which went into the code, but the Mental Capacity Act. Clearly it is unfair to ask the Minister if he has had any comeback from those principles set out in the Act, but I wonder if he could write to me. I would be interested to know whether putting principles into two of our Acts has introduced a lot of legal cases and disruption.

Earl Howe: I am grateful to all noble Lords who have spoken. This has been a good debate. Of course, I acknowledge the reservations that have been expressed about the amendment. I recognise the danger of putting lists in legislation. Everyone will have their views about the content of such a list. The noble Lord, Lord Walton, is right in saying that there is no mention of research and education, and I would agree that the phrase “evidence based” might usefully sit in the wording.

The noble Lord, Lord Walton, said that the amendment would be likely to give rise to litigation. That is one worry that I have had about promulgating an NHS Constitution in the first place. I sincerely hope that I am wrong, but there is a risk in undertaking this very worthy exercise, which the Government have embarked on, that people will sit on their rights rather more firmly than they have in the past. Let us hope that that is not so.

I thought that the core principles contained in the NHS Plan were as good a collection of principles as any. So far as I know, no one has seriously argued with them up till now. If we are not to have anything, I must come back to what the noble Baroness, Lady Barker, said. She was absolutely right: there is a gap to be filled here, and if we are not to have an amendment of this kind or something like it, we need to ask ourselves how we are going to fill that gap.

I would of course be concerned if the inclusion in the Bill of principles, however brief, gave rise to an increased risk of litigation, as I mentioned. I think that that point can be argued over in relation to the amendment as worded, and I say to the noble Lord, Lord Warner, that, in my own mind at least, principles are not the same as rights or, indeed, pledges. They are separately listed in the constitution for, I would say, a very good reason. The noble Lord said that Governments should be free to change the principles in the future if they want to. However, I think that that is the very argument that people out there will not want to hear and it is why I felt that Parliament and this Bill should be allowed to say something about the content of the constitution. I give way.

Lord Warner: For the sake of clarity, I did not say that Governments should willy-nilly be able to change principles; I said—I want to be very clear about this—that the circumstances in which Governments govern may change, making it necessary for a Government to respond to those circumstances. I think that that was in the thoughts of the people who wrote the founding legislation for the NHS. That does not mean that there

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should not be some understanding of principles and that they should be enshrined in the constitution, but I am saying that enshrining them in primary legislation may unreasonably restrict a Government of any political persuasion in the economic circumstances that they face, as happened in 1951 with the Labour Government.

Earl Howe: In that case, one could argue that it is good for Governments to come to Parliament if they want to change one of the founding principles of the NHS. That is a positive thing to allow for. I was a little surprised that there was not a greater degree of concern about Parliament having been completely sidelined in this context but I shall of course reflect on all the contributions made. The Minister said that in practice there was no difference between the principles in the NHS Plan and those in the constitution, and I shall reflect on that as well. I observe only that at least one principle in the NHS Plan has become a pledge in the constitution and is therefore not enforceable. Therefore, I think that there is a difference between the two and we may be able to find other examples.

I believe this is a debate that we had to have. In the light of comments that have been made, between now and the next stage I shall consider carefully what to do about this particular amendment but, in the mean time, I am happy to beg leave to withdraw it.

Amendment 3 withdrawn.

Clause 2 : Duty to have regard to NHS Constitution

Amendment 4

Moved by Baroness Barker

4: Clause 2, page 1, line 17, at end insert “and Handbook”

Baroness Barker: I shall speak also to Amendments 5 and 6. What does this mean in practice? That is the key question that everyone who has read what is termed “the NHS Constitution” has been trying to figure out. Great supporters of it are adamant that it will make a real difference to staff and patients within the NHS. They believe that it sets out a recognised framework for the way in which the NHS deals with individual patients and that it also sets out expectations which patients do, and should, have of how the NHS will treat them. Even its most staunch supporters and, indeed, some of its authors, cannot yet answer the question: what will be different in practice? I think that they would admit that, although they have high hopes and aspirations for it; however, they are unclear about what it will mean in practice.

4.45 pm

The question of what the Bill is intended to do as a document which enhances practice within the NHS keeps recurring. It is answered to a limited degree by the handbook to the constitution. The purpose of these amendments is to try to come at some of the same issues that we discussed on the previous amendment, but from a different angle, and to try to incorporate what is in the handbook—not to incorporate its every

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word into the primary legislation, but to ensure that practitioners have regard for what is in the handbook and to increase its status.

The most important lines in the handbook are those that ask what the principles mean in practice. The handbook endeavours to exemplify what the principles will mean. Why go about it this way? In part, because I, like the noble Earl, Lord Howe, and other Members of the Committee, am a veteran of the Mental Health Bill and the Mental Capacity Bill. I take this opportunity to challenge the version of history of the noble Lord, Lord Warner. The reason that there was a great deal of argument about the inclusion of principles in the Mental Health Act and the mental health code of practice was not because the Mental Health Act 1983 was being updated; there was a great degree of consensus on that. There was intense argument because the Government were proceeding with a piece of legislation which they claimed rested on a set of principles—which it did—but unfortunately only the Government and a few of their advisers thought that they were right and relevant. Everyone else from mental health users to the Opposition thought that the principles were wholly wrong.

Regarding the Mental Capacity Act, the noble Lord, Lord Warner, was right to say that because the principles were so novel in legislation it was important that they were included in the Act and they have been reflected in the many documents that have flowed from that piece of legislation.

It is important that we try to reach a middle way whereby it is a legislative requirement that providers of services have regard to the handbook without putting its detail into the legislation, because it is clear from the Government’s actions so far that the heart of how the legislation will work will be embodied in the handbook, rather than in the constitution. I invite noble Lords to look at the constitution and the relevant bits of the handbook and draw the distinctions between them.

I pick one principle, which states:

“You have the right, in certain circumstances, to go to other European Economic Area countries or Switzerland for treatment which would be available to you through your NHS commissioner”.

That is stated in the constitution. However, the handbook goes on to state:

“What this right means for patients”,

and sets out the limits of what that means in practice. In the spirit of this legislation and of what the Minister is trying to do, which is to be fair to be patients about what their expectations of the NHS should be, it would be beneficial to the NHS and its users that they are not misled by the simplicity of the NHS constitution and are openly directed towards the practicality of what that principle will mean for them. That applies as much to staff as it does to users.

Another example—a very topical matter this week—was the commitment on screening. If one were to read only what the constitution says about screening, one would not immediately understand that there are policies around screening programmes which have been worked out by the department on the grounds of their efficacy in certain groups. The more you can draw patients into

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an understanding of how this document will work in practice, the more you will minimise unnecessary litigation and disruption to services. The three amendments are necessary because they place the duty of having regard to the handbook not only on providers of NHS services but on those who provide NHS services under contractual arrangements and on subcontractors. That is a deliberate thing on our part.

I continue to have an ongoing and interesting dialogue with the department about its interpretation of the 2010 competition for services regulations and the Part B derogation for health. At this point I know that noble Lords’ eyes will start to glaze over, but it is extremely important European legislation. I and many other people take the interpretation that it means that many areas of healthcare and social care are public services which have to be open to competitive tendering. Some people in government cling to a view that it does not. One day one of us will be proven right in a court of law but, whichever way one chooses to interpret it, it is an important matter, not least for the parts of the Bill dealing with direct payment and beyond. We have tried to make sure that this obligation rests not only with direct providers because we believe that in future a great many more healthcare services will be provided by subcontractors.

This is a slightly different way of making these principles have a meaning in the NHS as it is now. It is a commendable way of doing so because it does not tie down indefinitely in primary legislation the detail of the handbook, which remains capable of being changed and altered as it becomes relevant without amendments to primary legislation. This approach has worked, in slightly different ways, under the Mental Health Act and the Mental Capacity Act and I commend it as a good way forward. I beg to move.

Earl Howe: I agree with all that the noble Baroness said as regards incorporating a duty to have regard to the handbook. My Amendment 8 is designed to meet that purpose. If anything, it is more important that people should be under an obligation to abide by the handbook than by the constitution in isolation because, of its very nature, as the noble Baroness indicated, the constitution is expressed only in headline terms rather than in terms of the explanatory substance in the handbook.

We need to remember that the handbook not only defines but, in some cases, limits the rights and pledges set out in the constitution. If the duty to have regard to the constitution is not accompanied by an equivalent duty in relation to the handbook, we are left wondering what status the handbook has. At the moment, it does not appear to have any at all. In purely practical terms, we want to be certain that people employed by the NHS operate with a clear understanding of what the constitution actually means rather than what they think it means. That is the central point at issue here.

Baroness Cumberlege: I pay tribute to those who put this handbook together. In the NHS, we bore for Britain when it comes to jargon—we are absolutely appalling in that regard. However, this is written in such clear language that I think a huge amount of

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work must have gone into it. It is direct and simple to understand, and I think that it is a good document. I just wonder why Switzerland is included. Perhaps someone can tell me. The document says that,

It lists all those countries but it also says,

Lord Darzi of Denham: Amendments 4, 5 and 6 tabled by the noble Baronesses, Lady Barker and Lady Tonge, propose that all bodies and persons who must have regard to the NHS Constitution must also have regard to the handbook to the NHS Constitution. Amendment 8, tabled by the noble Earl, Lord Howe, has a similar effect but uses an alternative method through a new clause.

I understand the intention behind these amendments, seeking as they do to strengthen the duty on bodies and persons to have regard to the NHS Constitution by extending this duty to the handbook. However, it is important to give some context to the Government’s existing proposals.

We propose in Clause 2 that all providers of NHS care in England should have regard to the constitution. As noble Lords will know, the constitution is designed to be an enduring document that will, as I said previously, be updated infrequently and only after full consultation with patients, the public and staff. By contrast, the handbook is the explanatory guide to the NHS Constitution. It explains what the constitution means in practice, by setting out the law and departmental policy that underpin each right and pledge in the constitution. There is no right or pledge in the handbook that is not mentioned in the constitution, and the handbook itself does not create policy or law.

Although, of course, we expect those having regard to the constitution to be familiar with the content of the handbook, it is not a document that we intend should be legally taken account of by providers of NHS care. If I use my earlier analogy of the Bill that we are currently debating and the Explanatory Notes that go with it, I hope that that makes the case. Having regard to an explanatory guide is fundamentally different from having regard to the constitution, and I believe that a requirement in that regard may be unduly bureaucratic, given that NHS providers will in any event be familiar with the content of the constitution.

In addition, if there were an obligation to have regard to the handbook, there would also be a case for a more formal process for updating it—for example, a requirement to consult on any revisions to the handbook.

Furthermore, strengthening the legal status of the handbook in the way that the amendments suggest could, ironically, make it a less useful and accurate guide for patients, the public and staff, because imposing a requirement to consult on any changes to the handbook would make it slow and cumbersome to update, even though most of the changes would be minor and technical. It would undermine our objective of ensuring that the handbook was readily revised and kept up to date. That objective has widespread support. For example, the Constitutional Advisory Forum, which oversaw

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the consultation, recommended that the handbook should be updated regularly to keep pace with changes in legislation and policy.

Although I sympathise with the intention behind the amendments, I believe that they would complicate what we are trying to provide as a simple guide to the constitution for patients and staff in the NHS. I hope that I have made my case and that the noble Baroness, Lady Barker, will feel able to withdraw the amendment.

Baroness Howarth of Breckland: May I ask a question of clarification? Having been brought up in the field of social care, where Bills and Acts sometimes contain a sentence that says that guidance may be issued from time to time, I saw the handbook as the guidance to the constitution. I would have found it helpful to have had that in the Bill, and to have had some wording following from the handbook that could be revised by the Secretary of State from time to time. That would give the provision more formality but would enable it to be changed, as any guidance can be changed, without unduly cumbersome consultation. I hope the Minister will think again about this.

5 pm

Lord Stoddart of Swindon: The constitution is quite a thick document. In it there are some serious paragraphs about patient and public responsibilities—and they are very serious responsibilities indeed. Everyone in the health service will have a copy of this in the hospital, or wherever they work, in whatever part of the health service they work. But what about the patients? As I say, there are some strong words here about the responsibilities of the patients and the public. Is it planned to send this—not the small, annotated version but the document itself—to every household in the country? After all, the French were able to do that in relation to the European constitution; I do not see why we should not be able to do something like this as well. Is that the plan, or are patients and the public not to be considered?

Lord Darzi of Denham: To add a point of clarity, the handbook is primarily an explanatory guide for patients, not guidance for the NHS. I hope I have answered that. On how we share that information with the patients, I have no doubt that in debating amendments later today we will discuss how to make the constitution and handbook available to those who use the health service.

Lord Stoddart of Swindon: But it refers to the public and patients.

Baroness Barker: That was a useful debate. I must admit, in answer to the noble Baroness, Lady Howarth, that I have enjoyed many a happy hour discussing what the word “guidance” means. That is why I deliberately shied away from any suggestion that we might be talking about something that had equivalence with statutory guidance. The noble Baroness knows the status of that, as do many other noble Lords.

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There is something missing from this whole exercise if the document that most clearly sets out for patients and for staff what this is all meant to mean in practice—and we should bear in mind that there is a big section about staff—is unconnected from a constitution that the Government have decided should be based in law, but can have some kind of legislative force without it. I am not sure that I fully accept what the Minister says about the difficulty of updating it all, and so on; in so far as it is a document that reflects existing law and policy elsewhere, it consists largely of things that the NHS ought to make clear to its users. There is an argument, at least in my mind, that to do all that updating in the form of one document might be a more efficient way in which to go about managing relationships with staff and users.

I have listened to what the Minister said. I shall take it away and reflect on it, but I may well come back to it if, on reflection, I think that this is the most efficient way in which to keep this updated.

On the matter of Switzerland, I cannot answer the question with full certainty, but I shall have a guess. I am sure that Switzerland is not there because of Dignitas; I am sure that it is listed because, for WHO purposes, Switzerland, which is not part of the European economic area is a health partner in many things. I may be wrong, but I wanted to show that I have doing my homework for tomorrow’s debate. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendments 5 and 6 not moved.

Amendment 7

Moved by Earl Howe

7: Clause 2, page 2, line 25, at end insert—

“( ) The Secretary of State shall publish guidance on the manner in which bodies and persons may demonstrate that they have had regard to the NHS Constitution.”

Earl Howe: Besides the matters that we have just discussed, another aspect of these provisions needs to be looked at carefully. That is the issue covered by this amendment. What in this context does the phrase “have regard to” actually mean in practice? The Government have made it clear that the constitution is not intended as a document that gives people legal rights over and above those that they have already. I take it, therefore, that “have regard to” falls some way short of “slavishly adhere to”. If it meant “slavishly adhere to”, it seems to me that new legal rights would indeed be created. If it does not mean that, it must imply that there are some circumstances in which it is not incumbent on health service bodies to abide by the constitution.

If a body is allowed in certain circumstances not to abide by the constitution, yet must at the same time be able to demonstrate that it has had regard to it, what does that obligation amount to in practice? What will distinguish a situation in which an NHS trust feels duty bound to follow the constitution and a situation in which it does not? That question is difficult to

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answer, but we have to do so. If we do not, we are open to the charge that the constitution is a piece of tokenism that can be followed or ignored more or less at will.

As we know, various rights are laid out in the constitution, such as the right to receive NHS services free of charge, which, if they are not honoured, are open to legal action and redress. But when it comes to the pledges, which are explicitly not legal rights, we have to ask what force they actually carry if there are undefined circumstances in which health service bodies do not have to abide by them but must merely have regard to them.

The other question that arises is how it will be possible to verify or audit the extent to which a trust has or has not had regard to the NHS Constitution. What happens if someone complains that the NHS, notwithstanding the pledge in the constitution, has failed to work in partnership with you, your family, carers and representatives? Let us suppose that the trust or PCT on reflection agrees that the complaint has some validity in the light of the prevailing facts. What factors can be adduced to show that the trust had had regard to the pledge despite not actually having adhered to it?

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