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More generally, I agree with the noble Earl that people should give valid consent before they receive any form of care. If they are not able to do so, the

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consent should be obtained from someone acting legally on their behalf. That is fundamental to healthcare, and a legal right, as we have made clear in the NHS Constitution. However, the notion of consent already implies that the person is informed. Expanding the definition of consent will not, in practice, increase the protection that this Bill already offers. I remember debating this in Committee. Although I take the point that the noble Earl is concerned about, I cannot find a better word to cover this being a voluntary scheme. That is well known to the people coming into it. Finally, before even accepting it, they have to obtain consent. I hope I have provided reassurance to the noble Earl on his amendment.

Amendments 25 and 31 were tabled by the noble Baronesses, Lady Barker and Lady Tonge. Amendment 25 seeks to limit the services for which direct payments may be made and Amendment 31 would promote the use of direct payments for maternity services but would rule out end-of-life care. I hope to persuade the noble Baronesses that these amendments are not necessary.

It may be helpful if I start by giving an update on how the pilot programme has developed since these clauses were last discussed in this House. In Personal Health Budgets: First Steps we invited PCTs to submit expressions of interest in becoming a pilot site to test personal health budgets. Since then, we have received more than 70 applications from every strategic health authority area, covering a range of services and conditions. Many PCTs want to focus on people with long-term conditions, people who are receiving NHS continuing healthcare or people with mental health needs. We have also received proposals to explore how personal health budgets could be used, for example, to support carers for stroke services. Around a dozen applications included proposals for end-of-life care, while one PCT expressed an interest in using personal health budgets for maternity services. I am sure that will please the noble Baroness, Lady Cumberlege.

Lord Campbell-Savours: My Lords, which authority was that?

Lord Darzi of Denham: My Lords, I am not entirely sure. I shall be more than happy to come back and say unless my noble friend knows which one it was. We felt that it was a creative proposal and I have no doubt that it will be looked at quite carefully.

It is too early to say exactly which proposals will go ahead. We are delighted by the enthusiasm and the range of innovative ideas that we have seen. We are looking forward to working with as many sites as possible to develop viable proposals and we intend to feed back shortly to all PCTs that have applied.

Initially, the pilots—and I remind the House that these are pilots—will test only the models of personal budgets that are allowed under current powers. Subject to the passage of this Bill and the making of necessary regulations, there would be a further stage in the process to decide which pilot site would be authorised to use direct payments.

As I said in Committee, we are looking to build on the enthusiasm for personalisation in the NHS, so we do not intend to set too many prescriptive limits on

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the circumstances in which people could use direct payments. The Bill already gives power to exclude services or groups of people. This is something that we might consider where there is a particular risk of abuse: for example, for people who are under compulsory drug or alcohol treatment orders. As I said in Grand Committee, we intend to consult on this in the normal way with draft regulations.

However, across the NHS there are, of course, many services, such as accident and emergency and other acute services, where direct payments will not be appropriate. I do not think it is necessary to list these and exclude them all in regulation. We want personal health budgets and direct payments to be used where they make sense, relying on the judgment of local PCTs, individuals, patient groups and the voluntary sector.

On the specific questions about end-of-life care, clearly this is an area with particular sensitivities. However, there may be great potential for personal health budgets, although not necessarily delivered through direct payments, as per the applications we have received recently. For example, some PCTs have suggested that personal budgets might allow patients to receive a more flexible range of support, or allow a quicker and more responsive way of adjusting a care package to a patient’s changing needs. It is also worth remembering that another person—for example, a carer—can receive direct payments on behalf of the patient. This would mean that people could have the extra flexibility of direct payments while not creating an additional burden at a very difficult time.

I am sure the noble Baroness will agree that some of the policies that we have come up with over the past 18 months are all to improve quality and caring on the end-of-life pathway, in relation to the national strategy. This could be one enabler in relation to that pathway. Rather than making conclusions now about which services are suitable or unsuitable for delivery through direct payments, we would prefer to explore a range of proposals and to build the evidence base through those pilots. If evaluation reveals the need to rule out a specific service, the Bill already provides the power to do that. With these reassurances, I hope that the noble Baronesses will not press their amendments.

9 pm

Baroness Barker: My Lords, before the Minister sits down, does he agree that there are legitimate reasons, other than the incapacity of individual patients, to rule out particular services from individual health budgets? If, because of this policy, it is possible that provision of a particular service within an area would cease and that that can be predicted now, is it right that that particular area of service should not be included in a pilot? That is the point I seek to make. For example, that could apply on specialist services such as palliative care, where there are only small numbers of people and the level of need for that service cannot be predicted regularly. The Minister’s answer is important. I feel so strongly that this is of importance, not just to these pilots but to the future of the NHS, that I would be willing to test the opinion of the House on it.



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Lord Darzi of Denham: My Lords, I am not entirely sure what the question is. If it is whether a highly specialised service might be destabilised by the concept of direct budgets, I do not think that will change the demand to affect the supply. At the end, the demand will remain the same. It is about the method of payment, and whether the PCT is paying a provider or the patient is holding the direct budget. In my experience of those rare diseases, most patients feel much more empowered to buy their own services—because they are, first, expert patients—and that is the purpose of that. If this might be a reassurance, I do not see the situation arising where the supply of a service could demise because the payment method had become direct payment rather than being a direct commission from a PCT. If that were to happen, I can reassure the noble Baroness that the providers of such services will remain, because the local demand will be the same.

Earl Howe: My Lords, this has been a useful debate, and I thank the Minister for his reply. His assurances were welcome. He may like to know that it is not only Diabetes UK that has expressed concern to me about the voluntary principle of direct payments; the RNIB is equally concerned. Its worry is that PCTs might make certain long-term healthcare services available only via a direct payments route. In other words, the patient would have no choice in the matter. Whether that is likely is a matter for debate, no doubt, but the RNIB is clearly worried about it. In those circumstances, the proposed constitutional rights that the Minister has referred to would not be easily enforceable. The RNIB would be much reassured to see the right to refuse direct payments explicitly expressed in the Bill. However, while I have sympathy with that I do not propose to press the point tonight, unless other noble Lords think differently. I beg leave to withdraw the amendment.

Some Lords objected to the request for leave to withdraw the amendment, so it was not granted.

9.05 pm

Division on Amendment 23.

Contents 46; Not-Contents 61.

Amendment 23 disagreed.


Division No. 2


CONTENTS

Addington, L. [Teller]
Alderdice, L.
Astor of Hever, L.
Barker, B.
Brougham and Vaux, L.
Caithness, E.
Craigavon, V.
Dundee, E.
Falkner of Margravine, B.
Fookes, B.
Forsyth of Drumlean, L.
Glasgow, E.
Hamwee, B.
Howe, E.
Hunt of Wirral, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
McColl of Dulwich, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Newton of Braintree, L.
Norton of Louth, L.
O'Cathain, B.
Palmer, L.
Roberts of Llandudno, L.


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Rowe-Beddoe, L.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Stair, E.
Strathclyde, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tonge, B.
Tyler, L.
Waddington, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.

NOT CONTENTS

Adams of Craigielea, B.
Ahmed, L.
Bassam of Brighton, L. [Teller]
Bilston, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brookman, L.
Browne of Belmont, L.
Campbell-Savours, L.
Clark of Windermere, L.
Corston, B.
Darzi of Denham, L.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
D'Souza, B.
Dubs, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foulkes of Cumnock, L.
Gibson of Market Rasen, B.
Golding, B.
Hannay of Chiswick, L.
Haskel, L.
Haworth, L.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Jones, L.
Judd, L.
Lea of Crondall, L.
Lofthouse of Pontefract, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Massey of Darwen, B.
Mawson, L.
Maxton, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Morrow, L.
Patel of Bradford, L. [Teller]
Pendry, L.
Pitkeathley, B.
Quin, B.
Rendell of Babergh, B.
Rowlands, L.
Royall of Blaisdon, B.
Sewel, L.
Smith of Finsbury, L.
Smith of Leigh, L.
Stern, B.
Stone of Blackheath, L.
Thornton, B.
Tunnicliffe, L.
Watson of Invergowrie, L.
Winston, L.
9.15 pm

Amendment 24

Moved by Lord Dubs

24: Clause 9, page 6, line 36, at end insert—

“(7) Health care provided in accordance with this section constitutes a function of a public nature for the purposes of section 6 of the Human Rights Act 1998.”

Lord Dubs: My Lords, I am a member of the Joint Committee on Human Rights, and this amendment stems from some work that the committee has done, which we published in our 11th report on 15 April. The issue is again about payments. Under this Bill, the Secretary of State is enabled to discharge various statutory functions under the National Health Service Act 2006 by making direct monetary payments to patients in appropriate cases, initially through pilot schemes. As the Explanatory Notes say:

“This gives patients receiving direct payments for health care similar rights to those enjoyed by patients accessing services from NHS organisations or from private sector organisations commissioned by PCTs”.

So far, that is good. The issue is whether the provider of these services would constitute a public authority under the Human Rights Act 1998. Why is that in

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doubt? It is in doubt because a number of court cases culminated in a judgment by the House of Lords in YL v Birmingham City Council and others in June 2007. As our report says:

“By a majority of 3 to 2, the Law Lords ruled that the person concerned could not bring a claim against her private sector care home under the HRA, in relation to the infringement of her right to respect for her private life and home under Article 8 ECHR”.

As a result, the Government introduced an amendment to the Health and Social Care Bill in the last Session to put that right, but the question is whether the new arrangements on payments are also covered. The report of the Joint Committee on Human Rights states:

“In their joint evidence to us, Help the Aged and Age Concern argued that private bodies providing health services funded by direct payments should be considered as providing public functions, but”—

and here is the key point—

I think that is a reasonable doubt, given the previous House of Lords case.

The Government have argued that it is unnecessary, and there is a straight conflict of view there. We on the Human Rights Committee believe that it is necessary and that there should be an amendment to this Bill for the avoidance of doubt. The recommendation is,

I beg to move.

Lord Mackay of Clashfern: My Lords, there may be a small question about what the status of such a person would be in terms of the European Convention on Human Rights. The Human Rights Act is domestic legislation and there is, ultimately, the possibility of going to the court in Strasbourg. I am not sure that this would necessarily be sufficient. I may be wrong about this—I am not sure—but I raise the question whether this would be sufficient to make the provider a public authority within the meaning of the European Convention on Human Rights, which is a different document in some substance from the Human Rights Act.

Lord Darzi of Denham: My Lords, the amendment tabled by my noble friend Lord Dubs on behalf of the Joint Committee on Human Rights would highlight the fact that NHS services funded by direct payments—whoever provides them—are functions of a public nature for the purposes of the Human Rights Act 1998. I hope to persuade my noble friend that there is no need to make this explicit in the Bill; and furthermore that to do so might cause confusion and have an adverse effect on how other health services are provided. This is not to deny the need for greater clarity about what constitutes a public authority under the Human Rights Act. The Government are aware of concerns raised by the committee on this matter, and remain committed to consulting on the issue in due course.

The committee previously sought clarification on whether the Government considered that private providers of health services funded through direct payments

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were to be treated as public authorities under the Human Rights Act. I will reiterate the Government’s position. We do consider independent providers of healthcare to be public authorities, for the purposes of Section 6 of the Human Rights Act 1998, when they are providing services under the National Health Service Act 2006. The duty of the Secretary of State to continue to provide a comprehensive and free health service under the Act is a core public function. The Government consider that all independent providers of healthcare that provide services in fulfilment of that duty are carrying out a public function, and therefore that they are all public authorities for the purposes of Section 6 of the Human Rights Act.

The Government do not consider that any distinction can be drawn between the situation where the Secretary of State directly enters into a contract with an independent provider of healthcare services—as permitted by Section 12 of the National Health Service Act 2006—and the situation where a patient enters into a contract with an independent provider of healthcare services under the proposed legislation. In both cases, the services will be provided under the National Health Service Act 2006, and in fulfilment of the Secretary of State’s duties. Similarly, an independent provider of after-care services under the Mental Health Act 1983, whether commissioned by a primary care trust or providing the services under a direct payment arrangement, will be covered by the Human Rights Act.

The Government also note that the costs of services provided under the proposed direct payment arrangements would still be met from public funds. The Government note that there would still be a strong public interest in ensuring that the services were properly provided. The Government do not, however, believe that it is necessary to state this in the Bill, which is what the amendment seeks to achieve. To state explicitly that providers of healthcare procured by direct payments were carrying out public functions for the purposes of the Human Rights Act could cast doubt on whether independent providers of health services acting under other relevant sections of the National Health Service Act were exercising functions of a public nature.

The judgment in YL v Birmingham City Council 2007 does not alter the position. It did not determine the position of any function other than those specifically considered by noble and learned Lords. For example, the noble and learned Lord, Lord Mance, explicitly stated that he,

The provision made in Section 145 of the Health and Social Care Act 2008 was necessary only because of the judgment in the YL case. It was intended to ensure that, notwithstanding the judgment, some social care and accommodation that is publicly arranged under the National Assistance Act is a public function subject to the Human Rights Act. The approach was deemed sensible by a range of stakeholders at the time, and no subsequent court judgment has led the Government to consider that independent providers of national health services are not public authorities for the purposes of the Human Rights Act.



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In the light of these explanations, and of the Government’s intention to consult on the issue of what constitutes a public authority under the Human Rights Act, I hope that my noble friend will withdraw his amendment.

Lord Dubs: My Lords, I am grateful to my noble friend for that explanation. What the Government seek to achieve and what I seek to achieve are clearly the same. The question is whether I share the Government’s confidence that, if the matter were to be put to the test of the House of Lords in its judicial capacity, the House would come down on the side of the Government or take the same view as it did in the YL case. I am not a lawyer: I am not qualified to answer some of the detailed legal questions, but my understanding is that there is a little doubt about that. If there is no doubt, that is fine and I hope that I am proved wrong. However, given the persuasive nature of my noble friend's arguments, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendment 25 not moved.

Amendment 26

Moved by Baroness Barker

26: Clause 9, page 7, line 16, at end insert—

“( ) as to the mechanisms by which a patient, or (if different) the payee may appeal against the amount of direct payment or how it is calculated;”

Baroness Barker: My Lords, the amendment would insert into Clause 9 something that is omitted from new Section 12B. That is a provision for the Secretary of State to make explicit the mechanisms by which a patient, someone on a patient's behalf if they lack capacity or the payee can appeal against the amount of a direct payment or the method of calculation. The Bill provides that the Secretary of State may in regulations make provision about the amount of a direct payment, but there is no indication anywhere that an individual person may have recourse to a means of appeal.

That absence of a means of appeal puts individual health budgets on to a different basis from the provision of direct healthcare services. If a patient is provided with a particular course of treatment under the NHS, they have a means within the current system of raising the issue of their treatment and questioning it. The amendment asks not that individual budget holders be able to determine the level of their payment but that they have a means of appeal. There are a variety of reasons why that should be so. In the new world of a plethora of providers of services to individuals and individual providers of individual services, it could be that the level of costs goes up. That which may be deemed to be a reasonable amount in order to provide a service that has hitherto been a direct provision by the NHS may simply not be possible when it is provided on a small scale without some of the efficiencies and economies of scale—one of the things that NHS patients currently benefit from.



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This is a reasonable amendment. It is a matter to which we have not hitherto paid any attention and I therefore beg to move.

Lord Campbell-Savours: My Lords, I will speak to Amendment 29, which is grouped with the amendment moved by the noble Baroness, Lady Barker. In Committee, there was much debate about direct payments and the impact that they may have. While I appreciate the assurances provided by my noble friend about the safeguards that will be put in place, I have remaining concerns that the fundamental impact that direct payments will have on health services and staff delivering those services has not been fully realised.

UNISON, the union with which I have a non-pecuniary relationship and which I support in amendments in this House when I agree with its positions, recognises and supports the need for National Health Service services to be responsive and able to provide more tailored support to some patients. However, there are still concerns within the union that the introduction of direct payments may have a damaging impact on the delivery of health services to the wider population that have not been fully considered.

During consideration of the Bill in Committee, noble Lords raised their concerns around the potential circumstances that could arise if a direct payment budget ran out and a sufficient safety net was not put in place.


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