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26 Feb 2009 : Column GC147

Grand Committee

Thursday, 26 February 2009.

Health Bill [HL]

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

Committee (2nd Day)

2 pm

Clause 3: Availability, review and revision of NHS Constitution

Amendment 24

Moved by Baroness Barker

24: Clause 3, page 3, line 21, at end insert “, who are eligible to receive NHS services or who have received NHS services within the past 5 years”

Baroness Barker: I express my thanks to the noble Baroness, Lady Thornton, for allowing us to up sticks slightly early on Monday. It enabled me to retire early with a dose of self-medication, and I think I will be a bit more fit for battle today. I thank her for her kindness.

Amendment 24 probes the meaning of the word “patients”, which the Bill defines as the people who will be involved in the review of the constitution. It may seem pedantic to raise the issue, but I think it reflects what will in future years be regarded as one of the Government’s biggest mistakes—the myriad different ways in which they have approached public involvement in heath. Since they have been in power, we have had no fewer than four major reviews of patient involvement. Some of us have been involved in the discussions on CHCs, PALs, patient and public involvement and LINks. I suspect that the conclusion in years to come will be that for all the good intent behind it, patient involvement, and the strategic involvement of patients in policy-making and assessment of the NHS overall, has been weakened. We return time and again, in different health Bills, to the question of how one can most effectively and meaningfully involve patients in the development of the NHS, and how one can best enable groups of patients to go beyond their direct individual experience of the NHS and provide input that not only challenges clinicians but is valid in strategic terms. That is the motivation behind the amendment.

The amendment widens the term “patients”, to make it clear that we are talking not only about patients currently involved with the NHS but also patients who have previously been involved with the NHS. Quite often, people have had an engagement with the NHS, recovered, gone off and thought about what happened to them, then tried to put that into context, and then come back with some of the most valid and challenging proposals. Our amendment is perhaps not perfect, but the intent is to ask the Government how they intend to meaningfully capture the involvement of patients in the review of the constitution, and, in particular, how they intend not to

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lose the experience of those who might have been involved but are no longer active patients seeing clinicians. I beg to move.

Baroness Finlay of Llandaff: There is one additional point to make on this very sensible proposal. Patients who are currently patients often feel inhibited from saying what is really going on or what concerns them, because they are worried that they will antagonise the people who they are dependent on for their care. They do not know at that point in their illness how the rest of their illness is going to play out. It is only when they have been discharged from services that they may feel that they have the courage to speak out about some of the things that they found upsetting, or that they observed happening to other patients that they feel should not have happened. They then know that if they are going to go back into care they may be referred to a completely different service and can ask for that to happen.

The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): I am delighted that the noble Baroness is better, and I am sure that it will be relevant to the discussion of the amendment.

The amendment proposes that the definition of “patients” in Clause 3 should be extended to include all patients,

I understand the intention behind the amendment. I reassure the noble Baroness that recent and potential patients, as well as current patients, are adequately consulted in respect of any changes to the constitution. Clause 3(3) and 3(5) refer to the need to consult “members of the public”. That includes anyone who was eligible to receive NHS care, or who is currently receiving NHS care, or those who have received it in the past five years. I reassure the noble Baroness that these are all captured in the clause.

I further reassure the noble Baroness that it is fully our intention to consult extensively on any changes in the constitution. However, it is unnecessary to be prescriptive and to set up subcategories—another list, if you wish—of NHS patients in the Bill. I hope that I have demonstrated that the groups mentioned by the noble Baroness are already captured in the current drafting of the clause under the description of “members of the public”. I very much hope that she will feel able to withdraw the amendment.

Baroness Barker: I thank the noble Baroness, Lady Finlay, for her intervention and the Minister for his reply. It is good to know that the department intends to capture as much information as possible. I add to what the noble Baroness, Lady Finlay, said. Particularly when someone has had an acute episode, it is often only when they leave hospital and start to talk to other people and put their experience in the context of others’ experience, that they begin to appreciate why things were actually very good, even though they might not have appeared to be so at the time, or that there was something wrong.

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I welcome what the noble Lord, Lord Darzi, said, but we continually run up against the problem of the definition of “patient” in all sorts of health legislation. Perhaps there is a need for the department to think about that and come up with a definition that is sufficiently wide that we can all understand it and agree it, and then we will not have to keep returning to these debates. His words were very helpful in this context, and on that basis, I am happy to withdraw the amendment.

Amendment 24 withdrawn.

Clause 3 agreed.

Clause 4: Availability, review and revision of Handbook

Amendment 25 not moved.

Amendment 26

Moved by Baroness Barker

26: Clause 4, page 3, line 37, leave out “3” and insert “5”

Baroness Barker: It is unfortunate that this is the next amendment. Members of the Committee might think that I have a fixation with five-year plans, but I do not. There is a reason for this amendment. The length of time in which the handbook and the constitution should be reviewed has turned out to be interesting. Before I put down this amendment, I discussed it with a number of people. As I thought about it, I tried to note off the top of my head all the documents that have an impact on the NHS in a year. They include: NICE recommendations; new legislation; Healthcare Commission reports; CSCI reports and, in future, CQC reports; investigations into serious matters that have gone wrong; medical or surgical innovations; and documents outlining budgetary pressures. Every year, each of those will routinely have a clear impact on how the NHS responds to the needs of patients. It is within that context that the constitution and the handbook lie.

I therefore searched for an answer to the question: what would be a reasonable length of time within which to measure the impact of the constitution and the handbook and expect to see a change that would inform a new version? I felt that three years was not long enough. Three years does not seem the right length of time in an organisation the size of the NHS in which to implement something, review it and make a report of this kind. I then thought about other policy-led initiatives or documents around the NHS which are similarly reviewed, and I turned to the national service frameworks, which were developed as 10-year programmes with a built-in review after five years. It has certainly been possible with the older people’s NSF, which I know best, and with some of the others, to look at the detailed and strategic impact on the NHS of these strategic documents over five years.

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In some ways, these are similar documents. The National Service Framework for Older People had within it eight or nine factors, one of which was about dignity and the way in which people were treated. Over five years, Professor Ian Philp and his team were able, working with clinicians on the ground, to note change and to come up with a realistic programme for the implementation of the latter part of the national service framework. I make it clear that my intention in moving this amendment is not to undermine the constitution in the national service frameworks or to push the frameworks off into the long grass. I am trying to find a timescale in which they can be reviewed in ways which are meaningful to the staff, who have to work with them, and to the patients who see the outcome. With that in mind, can the Minister say whether the department considered a timescale such as mine and whether it decided on this timescale for a particular reason. I beg to move.

2.15 pm

Baroness Finlay of Llandaff: Perhaps I may ask the Minister a specific question on Amendment 26. Will the data that are collected to inform whether there has been any change be routinely or additionally collected? If it is routinely collected, it will be easy to generate a report every year. If the data are additional, collected over and above the routine data, then all the points which the noble Baroness, Lady Barker, made are pertinent. You will weigh the service down with collecting data whereas you want to weigh it down with providing care and preventing disease, with data collection as a secondary matter.

I must declare an interest. As part of my role in looking at palliative care services in Wales, we have decided to pilot commissioning iWantGreatCare to produce a website which routinely collects data from patients and carers independently of the hospice and palliative care services. We will thereby have an independent rolling evaluation on which we can draw, with six very simple domains against which to make an assessment. As we have just been wrestling with this problem in Wales, I completely empathise with the principles behind the amendment. However, the crux is where the data to inform any kind of reporting and revision will come from.

Baroness Howarth of Breckland: I take a rather different view of the handbook. At the Committee’s last sitting, I asked a question about the handbook and who it was guiding. The Minister said that it was very much for patients. Having now read it pretty thoroughly, it is clearly a handbook for a whole range of people, giving them the guidance they need to carry out their tasks. We could have a debate about what is or is not “guidance”, but the handbook also contains clear specifics on matters such as the national social partnership forum. It deals also with other relationships and has other bits on legislation and health and safety.

In five years, those matters could change quite significantly. My concern is that the handbook should be constantly updated and somebody should keep their mind on the issues. As for whether there should be an overall review, which is what the noble Baroness,

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Lady Barker, is talking about, I absolutely agree. To get an overall picture, you need more information and a longer time period. However, my question for the Minister is how this document will be kept up to date. What is the mandate for its use? How will the Government ensure that everyone to whom it relates is quite clear about its status and their responsibility to use it? How much data do we need to review it? I apologise to the noble Baroness for using the debate on her amendment to ask a series of other questions.

Lord Darzi of Denham: Amendments 26 and 28, tabled by the noble Baronesses, Lady Barker and Lady Tonge, propose that the Handbook to the NHS Constitution be reviewed at least every five years, rather than every three years as Clause 4 provides. Amendments 30 and 32 propose that the Secretary of State report on the effect of the NHS Constitution on patients, staff and members of the public at least every five years, rather than every three years as Clause 5 provides.

The intention behind the amendments, as I understand it, is to give more time to vet the constitution before reporting on its effect; to provide more time to embed the handbook in the NHS; and perhaps to minimise unnecessary changes to the document. It might be helpful if I outline our objectives for the handbook and explain the thinking behind the current drafting.

The constitution, as we previously debated, is designed to be an enduring document. We therefore propose to review it every 10 years. The handbook, on the other hand, is an explanatory guide setting out the current law and policies underlying each right and pledge in the constitution. Our intention is to keep the handbook up to date. As the noble Baroness, Lady Howarth, has just mentioned, it would be useful to keep this up-to-date for patients, the public and staff. For example, if one of the Government’s waiting-time targets or commitments were to change, the handbook could be updated straight away to reflect that. Similarly, the Secretary of State has the power to make minor and technical revisions to the handbook at any time in line with changes in departmental policy or law.

Clause 4 provides a duty to review the handbook every three years. This would be a more general review of whether the handbook was still fit for purpose in its current format. We believe that every three years is a sensible interval for a major review, but earlier revisions might be needed. A more frequent review could create an administrative burden; any less often and we might lose the opportunity to ensure that the handbook remains useful and tailored to the needs of its audience. Finally, I should like to stress that the overwhelming response from our extensive consultation process was that every three years was considered the appropriate time to review the handbook.

I turn to Amendments 30 and 32. We do not wish the new duty for the Secretary of State to report on the constitution to create an administrative burden on the NHS. Perhaps I can set the noble Baroness’s mind at rest by confirming that we will work to ensure that local feedback and monitoring arrangements are aligned wherever possible with the constitution, working in partnership with others such as strategic health authorities, regulators and other stakeholders.

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We also agree that the constitution needs to be given time to become embedded before we assess its impact, which is why we have set a minimum of three years for the report. There needs to be a balance between providing an assurance that the constitution is having an effect and giving it time to embed, as the noble Baroness so eloquently described it. We believe that reporting every three years will strike this balance. We need to know sooner than every five years what the effect of the constitution is.

Furthermore, it is logical that the timetable of both clauses—to review the handbook and to report on the effect of the constitution—should be the same. It means that the review of whether the handbook is fit for purpose can be set in the wider context of how the constitution has affected patients, staff and members of the public.

The noble Baroness, Lady Finlay, asked where the data will come from. These are routinely collected data from, for example, our patient surveys—which I very much hope noble Lords will see, as we talk about the quality accounts, will be much more sophisticated. These are much more sophisticated tools for determining the patient experience. The data will also include staff surveys which we have historically collected. We hope to assess the impact of the constitution using this baseline.

I hope I have been able to explain why we think that three years is the right period for a review of both the handbook and the effect of the constitution. I strongly believe that the reviews should be aligned. I would therefore ask the noble Baroness, if I have given enough assurance, to withdraw her amendment.

Baroness Barker: I thank noble Lords very much for their contributions. Perhaps I may reply to the noble Baroness, Lady Howarth, based on my understanding of the handbook. It is a document for patients and staff. I would like to call it a guide, and she will understand my aversion to using the word “guidance” in this context. It is also a snapshot in time of good practice underpinned by the current status of the law. That will change, but it will change at different points. Thinking back over recent years, I would say that the passage of the Mental Capacity Act brought about a fundamental change. Had there been a constitution and handbook at that time, that legislation would have changed them in a major way, as any pre-existing documents would not have made sense. That would have been less so in the case of other legislation. I do not imagine that the changes brought about by the Mental Capacity Act would have halted just because this handbook or this constitution had not been updated. That was what I was trying to get at.

I am not talking about technical revisions; I am talking about a review. Therefore, we are talking about the bringing together of good practice, legal developments, patient experience and developments in clinical practice, and putting them all together. It is possible to achieve a meaningful assessment of that only if you make that assessment over time. I say in response to the noble Lord, Lord Darzi, that three years is not even the length of a normal Parliament, never mind being long

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enough to monitor the effect of major policy changes. My amendments do not require that a review should take place only every five years, they say within five years. If there were an overwhelming case to do it at an earlier point, the Government would have the flexibility to do it.

I remain less than convinced about the need to do this within three years. I am somewhat sceptical about the degree to which the documents will change over a three-year period; it would be beneficial to take a slightly longer view. For the moment I shall not press the matter, but I hope I have convinced the noble Lord to think again before he dismisses it completely. I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendment 27

Moved by Baroness Barker

27: Clause 4, page 3, line 38, at end insert—

“( ) The following must be consulted about the Handbook on a 5 year review—

(a) patients,

(b) carers,

(c) staff,

(d) members of the public,

(e) the bodies of persons listed in section 2(2), (4) and (5), and

(f) such other persons as the Secretary of State considers appropriate.”

Baroness Barker: We may disagree about when people should gather to review these documents, but I hope that we will have a fair degree of unanimity about who should be involved in the review. The amendment seeks to clarify that the process of review will be meaningful to all involved. It sets out the different bodies which should be involved, differentiating the views of patients, carers, staff and other members of the public. To a large extent, it reflects the discussions we had on Monday about how those different groups are sometimes seen to have similar views, when in fact they could have very different ones. I hope the amendment does not irritate the noble Lord, Lord Walton, because it contains a list, but it seeks to set out a defined group of people and bodies which should be involved in the process of review. I do not think it is the kind of list that lends itself to being elongated further. There are self-evident reasons why every one of these bodies should be involved in that process of review, so I hope the proposal will be largely uncontentious. I beg to move.

Earl Howe: My Amendment 29 is designed to say much the same as the amendment in the name of the noble Baroness, Lady Barker, only less prescriptively. Listening to the noble Baroness, I think that her approach might be better than mine. There is a good case for being prescriptive.

The central question is not at issue. It is whether the Secretary of State should have an explicit duty to undertake a consultation exercise on any revision of

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the handbook. My answer, like hers, is yes, he should. Why do I say that? We have touched on some of the reasons already. The handbook explains the NHS Constitution in greater detail and in so doing defines and occasionally limits or restricts the rights contained in the constitution.

You cannot understand the constitution properly without also reading the handbook. In fact, the handbook could be regarded as much more of a source document than the constitution itself for practical purposes. The two are, indeed, complementary. Yet in the Bill, as we have already discussed, the handbook has no legal force or standing at all. It is a thing that is referred to but is not defined in any substantive sense. That still seems very odd indeed for such an important document. Surely the very least that we can do is to say that the Secretary of State should be under an obligation to consult key stakeholders whenever the handbook is revised. It should not simply be left to him alone to interpret the constitution, so I hope that the Minister will be able to provide some reassurance.

2.30 pm

Baroness Finlay of Llandaff: On the back of this, will the Minister say what the budgetary allowance is for the revision at three years? The size and extent of the consultation and the revision will determine its costing. If a small budget is allocated to do it, one risks having a tokenistic review, whereas if it is revised less frequently but is more extensive, the revision may prove to be more cost-effective in the long term.

Baroness Young of Old Scone: I declare an interest as chair of the Care Quality Commission, and welcome Amendment 27 in the name of the noble Baroness, Lady Barker, at least in respect of the dreaded list. The list in the amendment replicates the list that is already in the Bill in terms of who would be consulted on the review of the constitution, and it is vital that that list is the same as the list for the review of the handbook, for the very reasons that the noble Earl, Lord Howe, outlined. In fact, the more important document is the handbook rather than the constitution, because it puts flesh on the bones of what the entitlements are.

I declared my interest because the amendment would mean that the Care Quality Commission, which under the Bill is already statutorily consulted on the constitution, would also be consulted on the handbook. It would be inconsistent if we were to be a statutory consultee on the constitution but somehow evaporated in the face of the handbook. We welcome the incidental implication of the amendment of the noble Baroness, Lady Barker.

Baroness Pitkeathley: I, too, support this amendment. I will not rehearse the arguments that I made on Monday about carers, but it is important that we all remember that, for many people, the handbook will be the way in to the constitution. We must therefore keep it as up to date and as widely known as possible.

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