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Another issue is the speed of allocation. If someone has been assessed as eligible for direct payment but decides not to go for it, the service is too slow and they purchase something, will they be able to claim

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retrospectively? Indeed, will they have some sort of appeal mechanism for the way in which they are assessed for payments?

Will there be a requirement that patients must buy an indemnity for any service that they buy, as they must for midwifery services, for example? Certainly, trust indemnity is a requirement and is part of the services that an NHS trust provides, but what if patients go outside that? What happens if the budget is overspent? If a patient buys more or suddenly has to go back into the NHS, which has been covered already, how is that worked out?

How will the tariffs be determined? The Motor Neurone Disease Association has evolved a year of care and has broken down the care requirements of patients with motor neurone disease into discrete packages, which it has also costed. It is a fantastic piece of work and a great service for anyone who is trying to provide end-of-life care. Will patients be able to mix and match? If they are, how much will they be able to mix and match, dip in and out and top up? It strikes me that the devil will be in the detail and that it will work well if it is well managed, as the noble Lord, Lord Warner, said. If it is not very carefully managed and defined, it may well fall apart and run into big problems.

Baroness Masham of Ilton: I have a question, too. Will drug and alcohol services be included in direct payments? So many people are sitting in prison now and not getting the right treatment, because it comes from another budget and health or social services simply do not want to pay for it.

I asked the Minister at one of our meetings who was going to do the assessments. Again, like my noble friend Lady Finlay, I would like to know what happens if the budgets run over, which I can see happening.

Lord Campbell-Savours: Are we straying into the next set of amendments? If we are, we might miss the opportunity to seek comprehensive responses. Will my noble friend take that into account when he deals with the previous two contributions, so that we can deal with them in our debate on the next group of amendments?

The Earl of Listowel: I will speak as briefly as I can in support of the thrust of Amendment 58 in the name of the noble Baroness, Lady Cumberlege. In doing so, I declare an interest as a trustee of the Michael Sieff Foundation, a child welfare organisation, and as a trustee of TACT, the Adolescent and Children’s Trust, a foster care organisation. I declare that interest because it is so important for a child’s welfare that there is a secure attachment between mother and child, which must be protected. We must protect a good start. Good maternity services must protect children later on, perhaps from family breakdown and dysfunction and being lost into care, so I strongly support the thrust of what the noble Baroness, the noble Lord, Lord Patel, and others have said about the importance of continuity of care for mothers.

4.45 pm

I visited the Albany midwife service in south London, which operates a caseload midwifery model and is similar to the independent midwives to which the

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noble Baroness referred. The midwives get to know the parents several months prior to the birth, providing the induction and pre-natal sessions. One midwife will work with a family until the birth of the child. She will carry a pager and, ideally, often will help at the birth, at which we found there were fewer interventions. Although this service takes place in a deprived area, it does not focus on those people who are most excluded. It was found that breast-feeding was far more prolonged and widespread, which is a positive indicator of the welfare of the child, both physically and emotionally in terms of the bond between the child and the mother. I welcome the thrust of that proposal.

When sitting in on a maternity meeting run by the noble Baroness, I remember being distressed on hearing a mother describe giving birth in a hospital. She said that the midwives changed and that she was left alone for long periods after a difficult pregnancy. From the other side, I can see that it is important to have choice. My concern is that this new model might disadvantage those who are less aware of the new options being offered to them. There is a danger of reinforcing social exclusion because the most intelligent and proactive people will seek out independent midwives. I would appreciate reassurance that there will be a means to ensure that women from ethnic minorities who perhaps have not had the benefit of a good education will not be left in the lurch. Should many mothers opt for independent services, what impact would that have on caseload midwifery? I am not sure that I have explained that clearly, but I hope that I have.

On the first day in Committee, I welcomed the reminder from the Minister that the constitution document puts great emphasis on support staff and on ensuring that they have a right to support. I take the point made by midwives about how often they work in departments where they do not get the support or supervision that they need. I am very grateful to the Minister for reminding me of the priority that the NHS document puts on supporting staff.

The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): Direct payments for healthcare form part of a wider programme, which I announced last year in High Quality Care for All, to explore the potential of personal health budgets in the NHS. The aim is to deliver better quality care by enabling patients, if they want—that is the principle—to take more control over the way money is spent on their healthcare. The noble Baroness, Lady Barker, referred to a change in policy. I believe that empowered patients who exercise that power in deciding on the treatments they wish to receive is an improvement in policy. We also recently published details of our programme in Personal Health Budgets: First Steps, a fairly comprehensive document, which invites expressions of interest from the NHS in taking part in the pilots.

In many cases, a personal health budget would be notional or would be held by a third party on a patient’s behalf. That is permissible under current legislation and we hope the first pilot schemes of this kind will run from later this year. Here we are talking about direct payments as variations of personalised or individual budgets, including notional payments, which are permissible under law, as I said. We want to test

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direct cash payments to patients where it makes most sense for individuals. The powers in the Bill allow for that. Subject to parliamentary approval for the Bill and subsequent regulations, the pilot programme could be extended next year to include pilot schemes for direct payments for health care.

The amendments in this group are concerned with the coverage of direct payments for healthcare, including to whom and in what circumstances it is appropriate to make such payments. Amendment 50, tabled by the noble Baronesses, Lady Barker and Lady Tonge, would allow direct payments for healthcare to be made to a suitable person on behalf of a patient who does not have the capacity to consent and who has not nominated a surrogate beforehand. The Bill is drafted to enshrine the important principle, outlined in new Section 12A, that direct payments may only be made with a patient’s consent.

However, as noted by the noble Baroness, it is important that patients who are unable to give consent should not be denied the opportunity of benefiting from a direct payment. As we set out in the department’s briefing note, we intend to allow a representative to hold direct payments on behalf of a patient who is unable to give consent. The role of this person would be to act in the best interests of the patient by holding the direct payment, securing services for them and supplying information to the PCT as necessary. It is important to emphasise that the regulations to achieve this would only apply to people unable to give consent.

In those circumstances, we expect that, where a person lacks capacity, their representative is likely to be either a court-appointed deputy or a donee of a lasting power of attorney made at a time when the patient had capacity. Next-of-kin or long-term carers may also be suitable. Regulations under new Section 12B(2) would allow us to define the details—for example, to put in place safeguards to ensure that a surrogate is suitable and is acting in the patient’s best interests. This is a similar approach to that used in social care, where it has worked well to ensure that people unable to give consent or who wish to nominate another are able to benefit from direct payments. I hope that I have reassured the noble Baroness, and that she will find this explanation helpful.

Amendment 51, tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, would remove the specific provision for defining the scope of direct payments for healthcare. Amendment 58A, tabled by the noble Baroness, Lady Cumberlege, concerns the use of direct payments for maternity services. It would enable regulations to set out the circumstances where direct payments could be used to secure the services of independent midwives.

I have every sympathy with the desire to make the Bill as clear as possible about our intentions for direct payments. However, it is precisely for that reason that I would be reluctant to agree these amendments. As we said in our policy document Personal Health Budgets: First Steps, personal health budgets would not be right for everyone, nor in all areas of the NHS. That is especially true of direct payments, the form of personal budget that gives most direct control to the individual

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patient. It would not be appropriate—or even possible at this stage—to specify what services or groups of people would benefit most from personal budgets or direct payments. Instead, we want to encourage local innovation and build the evidence base through piloting. Numerous examples have been mentioned earlier: eye care, mental health—as pointed out by the noble Earl—children, chiropody and, certainly, speech therapy. All are good examples of the innovation that we very much hope that PCTs at a local level, in partnership with other stakeholders, would be encouraged to pilot.

As I said earlier, PCTs should consider where personal health budgets might have the greatest benefits for patients. Personal budgets might work especially well in areas where choice is available but where current NHS services are not meeting patients’ needs. That might be one very good driver for personal health budgets. Several service areas have been suggested by stakeholders and our policy document has listed some of them.

The department is currently running a series of regional events—I have attended at least one—to encourage applications for the pilot programme, and I would be delighted if we received applications covering all the service areas listed and many services that noble Lords have suggested today. I would certainly be very interested in proposals for maternity services, where I know that the noble Baroness, Lady Cumberlege, has a particular interest. There is plenty of evidence, not only in this country but elsewhere, where we have seen independent midwives working very well, such as in New Zealand and certain parts of England where such a service exists. I was delighted to hear the support expressed by the noble Lord, Lord Patel.

The noble Earl raised the issue of safety in a transfer to hospital in the case of emergency of a woman who decides to have a home birth. As was said by the noble Baroness, Lady Emerton—she is well equipped to answer that question—most midwives with their professional values have very sophisticated tools for assessing risk and making sure that, if a risk arises, the appropriate transfer arrangements are made in the best interests of the safety of the mother and of the child. I do not believe that direct payments, or any form of budget, should have any impact on the transfer protocol that must exist between the midwife, whether independent or not, and the hospital that might be receiving that patient at a local level.

We are keen for the pilots to explore a range of different service areas and models. However, it would be premature at this stage to specify these types of services on the face of the Bill. I have concerns that including a list could turn out to be misleading if, for example, the pilots reveal that one of the listed services is not suitable for personal budgets, but that other, unlisted, services are. We have a lot to learn here. That is the experience and the evidence base that we need to gather on the effectiveness of such a policy.

Equally, the services that are suitable may evolve over time. As the concept of personalisation becomes more embedded within the NHS and its culture, and as improvements take place in the way in which services are commissioned, it may become possible to extend personal health budgets more widely in the future.

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Lord Campbell-Savours: Can I take my noble friend back to maternity services? Suppose that it can be shown that a maternity unit’s existence is threatened by the introduction of these payments in the case of maternity services. Does my noble friend believe that that should be taken into account, remembering that page 10 states:

“They will not inject more money into the system”?

So this is within the given budgets available in maternity services. I wonder how my noble friend will respond.

Lord Darzi of Denham: I fully appreciate my noble friend’s concerns when it comes to the impact of this, and that is exactly what we need to learn from the pilots and the evaluation. What is the impact not only on the individual but on the local health economy? That is all based on the types of services, the demand and the supply at the local level. Once we know the impact of that, we can address these issues and we will have a greater evidence base that we can debate at a local level with the local public and patients who are the users of such a service. As I said earlier, it would be premature to have such services in the Bill. I also have concerns about having a list, which could be misleading.

5 pm

The approach taken in the Bill provides the overarching framework but at the same time the flexibility to prescribe specific details in regulation where necessary. This mirrors the legislation for direct payments in social care.

I turn to the detail of how we intend to use regulation-making powers, set out in the department’s briefing notes on direct payments, which I hope noble Lords have seen, and the department’s memorandum to the Delegated Powers and Regulatory Reform Committee, which the committee has endorsed. A few other issues have been raised by this informative debate. First, the noble Earl, Lord Howe, and the noble Baroness, Lady Finlay, asked about where to buy such services. If agreed by the care manager and the care plan, such services could be bought from the private or voluntary sector. That is exactly the ethos of the policy. Patients will be empowered to make those decisions based on the quality of the services that they receive. Secondly, what can they buy? A number of noble Lords referred to crystal therapy, which is not my area of expertise, but hydrotherapy would probably be a better example. Any intervention that will improve the health and well-being of the patient that is signed off by the care manager within the care plan would be implemented.

The noble Earl raised the issue of the transaction costs. We have said that personal health budgets, including direct payments, should be used only when the likely benefits outweigh the transaction costs. I recognise that this will not be suitable for all patients, or certainly all services, which is why we are piloting them. He also raised the issue of the BMA and I declare an interest as I am still a member, despite my interactions over the past 18 months. It is important always to recognise the concerns of continuity of care, which is the issue that has come up. The patient must always remain the continuum. The patient is always challenging us as professionals about integration of care, rather than

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fragmentation of care. The more we shift power to the patient from the professional, the more we will see a better response to healthcare in the future.

Lord Campbell-Savours: Going back to the speech made by the noble Baroness, Lady Campbell, on Second Reading, which was read extensively by people outside the House, will my noble friend say whether the £200 mattress would fall within the direct payment budget? The £200 mattress became the symbol of that debate in many ways.

Lord Darzi of Denham: That would probably fall within the direct payment budget of social care rather than healthcare, so the answer is yes if the care manager has signed off on it. Was my noble friend referring to healthcare?

Baroness Campbell of Surbiton: Yes, healthcare.

Lord Darzi of Denham: Yes. The case was made in that powerful speech. It was a good example of how an empowered patient could receive a treatment that not only was based on her needs but saved the PCT a significant amount of taxpayers’ money.

I turn to the other question raised by my noble friend Lord Warner in relation to integration between health and social care. The answer is yes. Social care direct payments and the personal health budget should be pooled as far as practicable and legally possible. I hope that the Bill will enhance that rather than create any obstacles to it.

Lord Warner: I am grateful for that assurance, but the mattress cited by the noble Baroness, Lady Campbell, is symbolic of this boundary area. I could see that the war of the noble Baroness’s mattress could go on in some parts of the country where the relationship between health and social services is not very good. I hope that the Minister can give us strong assurances as we go through this. People out there are under no illusions about the importance of not allowing individuals to be caught in the crossfire between two budget managers on different sides of the NHS and local government.

Lord Darzi of Denham:Page 42 of the document, Personal Health Budgets: First Steps, says:

“The ‘boundary’ between health and social care matters less to people than does getting the right services”—

as the noble Lord eloquently described and the noble Baroness, Lady Campbell, said on Second Reading—

As we have said in High Quality Care for All, one of the PCTs’ duties is certainly now to have joint commissioning with the local heath authorities. We see this as one of the enabling tools that allow more pooled budgets to come together, which is the principal policy that we are trying to encourage.

Baroness Thomas of Winchester: Would it be all right with the Committee if I do not stand up at this point?

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Noble Lords: Yes.

Baroness Thomas of Winchester: The interface between health and social care is very interesting. While we are on this, I seize the moment to say that when I broke my leg last year, various people came to help me, some with a social care background, others with a health background. If they were not trained, they were not allowed to get me up on to a gutter frame to help me walk. All they had to do was give me a little push, but if they were from one discipline, that was not possible for them. If they were older women who were more practical, they said, “Of course I will help you”. That got me walking again. At a low practical level, it is important to know the difference between the two, and for there not to be such a difference between the two. It is nonsense if one is literally trying to get back on one’s feet after an illness.

Paragraph 22 on page 28 of Personal Health Budgets: First Steps, says:

“Further guidance and regulations governing the use of healthcare direct payments will be produced in due course”.

Can the Minister tell me roughly when that will be? It would be helpful to the Committee.

Lord Darzi of Denham: I am grateful for the noble Baroness’s intervention.

On the interface between health and social care, we made it quite clear in this document that individuals will have to agree their care plan with the help of staff from both health and social care. The circumstances may arise in which there are two types of budgets. We are encouraging pooled budgets, which is exactly what we need to do.

On the regulations governing the use of direct payments in health in paragraph 22, I will look into that in more detail and come back in writing with the timings of when they should happen.

A few more points were raised by the noble Baroness, Lady Finlay. Actually, there were many, many questions in a very short speech. I am sure that we will cover many of them later on, such as indemnity and budget overspend. I hope that I have addressed the evidence base. I will look into the cross-border issue and come back to noble Lords. I have no doubt that it is no different even from outside the context of personal health budgets, or if the budget runs out.

I hope that I have given Members of the Committee a summary of, and reassured them on, some of the issues that were raised—certainly in our debates on some of the probing amendments—to get more clarity. I have certainly enjoyed this debate, and hope Members of the Committee are confident that the amendments can be withdrawn.

The Earl of Listowel: I thank the Minister for his helpful and encouraging response, particularly about the pilots looking carefully at the impact of this innovation on the wider health economy. However, I worry that momentum may be gained by this process, so I take this opportunity to raise this point one more time. I foresee a certain scenario. Some years ago, a survey of a fairly small sample of young people in care and

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leaving care found that a quarter of the young women in care were pregnant and that half of them were pregnant shortly after they left care. My slight concern is that one might find, for instance, that poorly educated people who are not well placed to make the most careful judgments about what is in their interests might lose out in a new system where more power is given to individual users. The Minister need not answer my question now. I just wanted to make the point one more time.

Lord Darzi of Denham: I am sorry if I did not touch on the issues raised by the noble Earl, Lord Listowel, in relation to the impact of this on inequalities. One of the six principles that we have adopted in the initiation of this programme is that personal health budgets should be designed to tackle inequalities and protect equality. We intend that there will be support for patients to manage their direct payments. We want to make sure that that is tailored to the different needs of patients that the noble Earl eloquently expressed, particularly those who are less well served by existing services. With appropriate services, personal health budgets and whatever support we put around patients will be tremendously powerful tools. For example, if we go back and look at the evidence based on choice, the areas that have the greatest deprivation in equality actually exercise the most choice. That is what we need to encourage: empowering patients to tackle some of the inequalities to which the noble Earl referred.

Baroness Masham of Ilton: I have one more question. What happens if one PCT gives a direct payment to one patient and the next PCT denies it to an absolutely identical patient? Is there a right of appeal?

Lord Darzi of Denham: I will bring this discussion back. We are running pilots across the country, and it is for the PCTs to submit innovative ideas that are locally worked through with all the stakeholders at a local level: patient groups, advocacy groups, the voluntary sector and others. They will bring us the best pilots to look at, and different PCTs may have different pilot schemes. We will evaluate these and identify the evidence base. We hope that, if the right conditions are identified, we will roll out such a scheme nationally, but we will bring that to Parliament before we do so.

Baroness Barker: I thank all noble Lords who not only took part in this debate but proved my point. There is a great deal of support for this policy and a great many misgivings about how it will work in practice.

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