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Committed to a Special Public Bill Committee

3.15 pm

Moved By Lord Patel of Bradford

Motion agreed.

12 May 2009 : Column 928

Disabled Persons (Independent Living) Bill [HL]

Bill Main Page
Copy of the Bill

Third Reading

3.16 pm

A privilege amendment was made.

Bill passed and sent to the Commons.

Health Bill [HL]

Bill Main page
Copy of the Bill

Third Reading

3.16 pm

Clause 1 : NHS Constitution

Amendment 1

Moved by Lord Darzi of Denham

1: Clause 1, page 1, line 9, at end insert “or (Other revisions of NHS Constitution)”

The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): My Lords, I shall speak also to Amendments 2 to 10. On Report, the noble Earl, Lord Howe, tabled an amendment to ensure that Parliament is given an opportunity to scrutinise any changes to the guiding principles set out in the NHS Constitution. In the government amendments that I bring forward now, we have accepted the principle of the amendment but suggest an alternative form of wording to ensure that it fits with the existing clauses. These amendments require the Secretary of State to make regulations, under the negative resolution procedure, to address any changes to the guiding principles set out in the NHS Constitution.

Although they may look extensive, the amendments are minor and technical. They make it clear that regulations must be laid whether principles are changed as a result of the 10-yearly review of the constitution or as a result of more periodic revisions. To achieve that, they make clearer the distinction between a review and a revision, and correct cross-references.

Any changes to the guiding principles in the future would already require consultation, as we set out in the Bill from the start. However, I have listened to the concerns of the House about the role of Parliament in determining the guiding principles, and the amendments address those concerns. I hope that noble Lords are content with these amendments and I beg to move.

Earl Howe: My Lords, I very much appreciate the Government’s acceptance of the underlying principle of the amendment carried by your Lordships on Report, and of course I accept the reformulation proposed by the Minister.

The fear that some people had that an amendment of this kind might open the floodgates to litigation against the NHS was never one that I considered to be well founded. I still do not believe that. It would have validity if the scope of these amendments were to extend more widely than they do—if, for example, they were to embrace specific rights. However, in so far as the guiding principles are already underpinned

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by existing primary legislation, there cannot reasonably be a fear that, by linking the constitution directly to the parliamentary process, we will be creating the potential for a lawyers’ charter.

As I said, I am most grateful to the Minister for having given this matter his close consideration and for having brought forward these amendments. I hope that they will be accepted.

Lord Mackay of Clashfern: My Lords, I strongly support what has been said. It is extremely good that the Minister has felt able to modify the Bill in this way. A lawyers’ charter is not a particularly fearsome prospect for me. However, the best protection against lawyers’ charters is clear drafting, and these amendments are clearly drafted.

Amendment 1 agreed.

Clause 2: Core principles

Amendment 2

Moved by Lord Darzi of Denham

2: Clause 2, leave out Clause 2

Amendment 2 agreed.

Clause 4: Availability, review and revision of NHS Constitution

Amendments 3 to 7

Moved by Lord Darzi of Denham

3: Clause 4, page 3, line 9, leave out subsections (2) and (3)

4: Clause 4, page 3, line 15, after “Constitution (” insert “referred to in this Chapter as”

5: Clause 4, page 3, line 25, at end insert—

“( ) The guiding principles may not be revised as a result of a 10 year review, except in accordance with regulations made by the Secretary of State setting out the revision to be made.”

6: Clause 4, page 3, line 26, at end insert “made as a result of a 10 year review”

7: Clause 4, page 3, line 29, at end insert—

““the guiding principles” means—

(a) the 7 principles described in the NHS Constitution published on 21 January 2009 as “the principles that guide the NHS”, or

(b) any revised version of those principles set out in the NHS Constitution published under this section or section (Other revisions of NHS Constitution);”

Amendments 3 to 7 agreed.

Amendment 8

Moved by Lord Darzi of Denham

8: After Clause 4, insert the following new Clause—

“Other revisions of NHS Constitution

(1) This section applies to any revision of the NHS Constitution made other than as a result of a 10 year review (including any such revision which revises the guiding principles).

(2) Before any revision the Secretary of State must undertake appropriate consultation about the proposed revision.

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(3) The persons consulted must include such patients, staff, members of the public and other persons as appear to the Secretary of State to be affected by the proposed revision.

(4) The guiding principles may not be revised, except in accordance with regulations made by the Secretary of State setting out the revision to be made.

(5) The Secretary of State must publish the NHS Constitution after any revision.”

Amendment 8 agreed.

Clause 5: Availability, review and revision of Handbook

Amendment 9

Moved by Lord Darzi of Denham

9: Clause 5, page 4, line 12, at end insert “(whether made as a result of a review under this section or otherwise)”

Amendment 9 agreed.

Amendment 10

Moved by Lord Darzi of Denham

10: After Clause 6, insert the following new Clause—

“Regulations under section 4 or (Other revisions of NHS Constitution)

(1) The power to make regulations under section 4 or (Other revisions of NHS Constitution) is exercisable by statutory instrument.

(2) A statutory instrument containing regulations under either of those sections is subject to annulment in pursuance of a resolution of either House of Parliament.”

Amendment 10 agreed.

Clause 10: Direct payments for health care

Amendment 11

Moved by Lord Darzi of Denham

11: Clause 10, page 7, line 33, at end insert—

“( ) as to arrangements to be made by the Secretary of State or the Primary Care Trust for providing patients, payees or their representatives with information, advice or other support in connection with direct payments;

( ) for such support to be treated to any prescribed extent as a service in respect of which direct payments may be made.”

Lord Darzi of Denham: My Lords, these amendments clarify our intentions around supporting patients and reviewing the pilot schemes. Having listened to the excellent debates on Report and in Grand Committee, I promised to consider these issues further, and I have consulted the noble Baroness, Lady Barker. I hope these amendments address noble Lords’ concerns.

Amendment 11 would make it more explicit on the face of the Bill that the NHS should make arrangements to ensure that patients, or people receiving direct payments on someone else’s behalf, are able to access advice, information, and other support. As I have said in earlier debates, having proper support in place is vital for the success of this policy, and support could

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be delivered in many ways. The pilot proposals we have received contain a range of innovative ideas. We want to allow for flexibility rather than prescribe a particular approach.

The amendment will allow our regulations to be broad enough to allow innovation to flourish, while ensuring that people are well supported. It will also allow patients to buy support services using their direct payments. Some people have suggested that PCTs should commission and pay for support services centrally. Others have proposed including an element within the personal health budget to allow patients to choose the support that is right for them. It is likely that different approaches will work in different circumstances, and this amendment gives us the flexibility to test both.

Amendment 12 clarifies how we intend to evaluate direct payments. The first part highlights our objective to commission and publish an independent evaluation. Noble Lords may know that the department recently published a detailed invitation to tender for the evaluation of the personal health budgets pilot programme. We hope to have a team of independent researchers in place by the summer.

I emphasise that every pilot site will be involved in the evaluation. In practice, it is likely that a representative subset of the pilots, chosen by the evaluation team, will be examined in great detail, while the other sites contribute information. This will give both breadth and depth to the analysis.

The evaluation will, of course, specifically consider the effect of direct payments as a mechanism for delivering personal health budgets. The findings of the evaluation will be published. Moreover, before the Government can extend direct payments more widely, each House of Parliament must give its express approval, through the affirmative resolution procedure.

The second proposed new subsection in the amendment allows the Government to specify in regulations some of the issues the review should address. These include reviewing the administration of the schemes, the effect of direct payments on the cost or quality of care, and the impact on the behaviour of patients, carers and providers.

I know that the noble Baroness, Lady Barker, is particularly concerned about the potential effect of personal budgets on other services, particularly the effect on smaller specialised service providers. The amendment is deliberately worded in a general way to emphasise that we intend to examine the effect of direct payments both on the people who receive them and on those who do not. Our invitation to tender makes that clear.

Amendment 13 is a technical amendment, reflecting the addition of these paragraphs in new Section 12C. We have listened to the points raised in the debate and I believe that these government amendments respond to them. They provide explicit reassurance that we intend there to be a proper support in place for people receiving direct payments, and that the evaluation should be rigorous and independent. I commend these amendments to the House. I beg to move.

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Baroness Barker: My Lords, I thank the noble Lord, Lord Darzi, for tabling these amendments. They are the product of intense discussions between the department and myself. I am most grateful that we have achieved a resolution of matters which although technical and boring are of great importance to the working of this policy. I am delighted to be able to do so in the presence of the noble Baroness, Lady Campbell, because those who sat through our discussions will see her hand in this amendment in the inclusion of the word “support”. She took me to task on my original proposals and she made them better. I am therefore pleased that this represents a victory for her, too.

I do not want to restate the arguments we had during previous stages. I am pleased that the noble Lord has seen the importance of requiring primary care trusts to pay attention to the provision of these services, not least because in the department’s own advice and guidance to commissioners, it talks about reliance on existing services such as the CAB. When these pilots take place, those services will be going through a great deal of upheaval and may not be readily accessible to people.

As regards the review, I thank the Minister for his explanation and for sharing with me the detailed spec for the review process. However, I seek clarification from him on one point. He talked about the wording of the amendment, enabling the research to focus not only on those patients who receive direct payments, but also on those who do not. I would welcome his confirmation that the wording of the amendment is such that it would not be a matter of looking only at those patients who do or do not receive direct payments for the same service, but looking at the impact of a service which is funded by direct payment on other parts of the health service. That is the point that I have been trying to make for the past week.

I am under no illusion that it will be an extremely complex piece of research. The noble Lord, Lord Darzi, talked about the need to research the cost of direct payments, but to research the cost-effectiveness of direct payments will require a level of monitoring and accountancy, and sophistication in those, which is as yet unseen. We need properly to be able to answer the question, “Does the move towards direct payments and individual budgets not only benefit patients in terms of the outcomes of those services, but decrease reliance on other services in the NHS?”. That is a critical part of the issue. From what the Minister has said, I believe that he will be able to give me a satisfactory answer. With that in mind, I thank him very much for the work that he has done to get us to this point.

3.30 pm

Earl Howe: My Lords, these amendments immensely strengthen this part of the Bill, and reflect a key part of the concerns raised at earlier stages from all parts of the House, including mine. Like the noble Baroness, I very much welcome all these amendments, especially Amendment 11, which seems to address an aspect of the direct payment scheme that is likely to prove central to its uptake and success, namely the provision of,

for those who decide to try that scheme. I hope that these amendments will be accepted.

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Lord Darzi of Denham: My Lords, I am grateful for the support that these amendments have received. To clarify the issue raised by the noble Baroness, Lady Barker, the tender for the evaluation is based on five broad areas: the effects on individual outcomes, including carers and informal carers; the behavioural change on both individuals and NHS staff; finances and cost-effectiveness; system effects, including impact on staff and other existing services, and how personal budgets have been implemented. It covers a wide range of services, so I very much hope to have reassured the noble Baroness.

Amendment 11 agreed.

Amendments 12 and 13

Moved by Lord Darzi of Denham

12: Clause 10, page 8, line 29, at end insert—

“( ) Provision as to the review of a pilot scheme may in particular include provision—

(a) for a review to be carried out by an independent person;

(b) for publication of the findings of a review;

(c) as to matters to be considered on a review.

( ) Those matters may in particular include any of the following—

(a) the administration of the scheme;

(b) the effect of direct payments on the cost or quality of care received by patients;

(c) the effect of direct payments on the behaviour of patients, carers or persons providing services in respect of which direct payments are made.”

13: Clause 10, page 8, line 30, leave out “carrying out”

Amendments 12 and 13 agreed.

Clause 13 : Innovation prizes

Amendment 14

Moved by Lord Darzi of Denham

14: Clause 13, page 10, line 1, after “to” insert “—

(a) work at any stage of innovation (including research);

(b) ”

Lord Darzi of Denham: My Lords, on Report, the noble Lords, Lord Walton and Lord Patel, and the noble Baroness, Lady Finlay, tabled an important amendment that sought to make it clear that innovation prizes would encompass research. It has always been our intention that prizes would include research; innovation is a broad concept, of which research is a vital part. The purpose of the innovation challenge prizes is to recognise and promote excellence in innovation, including research. I am grateful to the noble Lords for our useful discussions on the matter and hope that this amendment puts that important point beyond doubt. I beg to move.

Lord Walton of Detchant: My Lords, I am very grateful to the Minister for that, and for the opportunity that he gave us to meet him and members of the Bill team last Thursday. I was concerned to express the fact at Second Reading—and again in Committee and on Report—that the responsibility of the National Health Service for the education and training of healthcare

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professionals was not formally acknowledged in the Bill. However, after our discussions I am sufficiently reassured that any revision of the NHS Constitution and other issues would take full account of the needs and concerns of those involved in such education and training. In the light of those assurances, then, the amendment that we had considered tabling for Third Reading has proved unnecessary.

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