Health and Social Care Bill

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Mr. Hammond: If we all learned something from our first sitting—it was the first sitting of a Committee that I have served on under the new arrangements—it was that we must be fairly self-disciplined and ration our time. I shall therefore be brief in responding to what the hon. Member for Sutton and Cheam (Mr. Burstow) said about the amendments.

We shall consider clauses 16, 2 and 3 this morning. Together, they deal with the Secretary of State's powers to intervene in the running of health authorities and trusts. That is literally true for clause 16, which will allow him to take control and to position his placemen to assume control. More invidiously, clauses 2 and 3 will allow him to use the power of the purse to ensure that his will is done to the farthest corners of his empire. The clauses give the lie to the Government assertion that the Bill is decentralising. The Bill gives huge powers to the Secretary of State, and these three clauses in particular embody that transfer of power.

Dr. Peter Brand (Isle of Wight): Is there not a slight discrepancy between what the hon. Gentleman is saying, and what the hon. Member for Woodspring (Dr. Fox) said last week, when he made the Secretary of State personally responsible for not having discrimination towards the dead? Is the hon. Gentleman now suggesting that the Secretary of State should not be responsible for discrimination towards the living?

Mr. Hammond: We have some difficulty with the Government's handling of the matters. They seem to want to take personal responsibility for all the good news, and no responsibility at all for the bad news. It is a two-way process. Power and credit flow to the Secretary of State when the news is good, but it is always someone else's problem when the news is bad.

The key issue at stake when considering the amendments is the Secretary of State's power to intervene. The Government's proposed traffic-light grading system, a note on which the Minister circulated to the Committee at the end of last week, is not in the Bill, but underlies the debate.

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The clauses will, ultimately, determine a significant proportion of the resources that go to hospitals, and will have a resulting impact on the distribution and delivery of care. Without wishing to appear confrontational over the matter, it is typical of the Liberal Democrats that they have tried to hijack a debate on these important clauses in order to stage a debate that is quite out of context in relation to what we are considering. Although I acknowledge that it is an important debate in its own right, it is an artificial device to have a debate on a subject that this part of the Bill does not deal with directly.

Mr. Burstow: Is the hon. Gentleman telling the Committee that he never seeks to use an artificial device to construct a debate on something that is nothing to do with the Bill?

Mr. Hammond: I shall take that one on the chin. However, what I may have done in the past, under the old regime, may no longer be appropriate. It is clear that, to avoid the situation that arose on Thursday, when important clauses did not get any scrutiny at all, we must be disciplined about how we use the time available. Whether or not we agree with what the Government have imposed upon the House, we must work within those parameters until such time as the rules are changed. I hope that the hon. Gentleman will not find me guilty of dissembling on matters that are not directly relevant to the clauses under consideration.

I have already raised with the hon. Member for Sutton and Cheam the extent to which he envisages the Secretary of State using the powers under clause 16. I do not intend to do so during the debate, but I will ask the Minister later to give the Committee a much clearer idea of the extent to which the Government expect the Secretary of State will use the powers. They are draconian, and they must be seen as reserve powers. I am afraid that the amendment tabled by the hon. Member for Sutton and Cheam would—unintentionally, I am sure—have the effect of giving the Secretary of State huge control over the day-to-day running of the health service, by making many trusts subject to intervention orders.

I am also concerned about amendment No. 35, tabled by the hon. Member for Sutton and Cheam. He goes so far as to define indirect discrimination. We have had such debates before, in Standing Committees on various Bills, and I thought that our consensus was that we objected to, and wanted to eradicate from the national health service, unjustified discrimination on grounds of age—discrimination based on the patient's age and unrelated to the clinical condition. The definition used by the hon. Member for Sutton and Cheam in amendment No. 35 would make it impermissible to take into account a clinical indicator that, in practice, would be found in older people disproportionately in relation to the general population. That flies in the face of what I have always thought to be the consensus among Conservatives and Liberal Democrats, that a patient's clinical status should determine the treatment.

I am not a clinician, but it is self-evident that many clinical decisions will be based on criteria that de facto mean that older people may be deemed unsuitable for treatment. That would not be because of their age per se, but because of their clinical condition. The amendment would put health service managements that allowed clinicians to proceed on that basis at risk of having their functions taken over by the Secretary of State, by the draconian powers under clause 16. The central tenet of our argument is that the health service should be run on the basis of clinical, not political, judgment. The hon. Member for Sutton and Cheam is, with the best motives, trying to superimpose a political judgment on doctors' clinical judgment. The definition in amendment No. 35 would enshrine that judgment. Yet the hon. Gentleman and the hon. Member for Isle of Wight (Dr. Brand) have been as quick as any to criticise the Government when they have appeared to place political priorities before clinical ones, and as diligent as any in arguing that clinical priorities must prevail in determining where and how treatment is administered.

The points that arise from these amendments need to be aired and the overall issue raised by the hon. Gentleman is important, but it is something of a distraction from what will be an important debate on clauses 16, 2 and 3. However, it has served a useful purpose, by highlighting how the Secretary of State's powers could be used. The hon. Gentleman would impose a set of criteria that would not be strictly clinical. They would be political—with a small ``p''.

Mr. Burstow: The hon. Gentleman says that I want to construct a set of criteria. In fact, amendment No. 35 deals with

    an apparently neutral provision, criterion or practice.

We are dealing with existing NHS criteria and practices. We are not trying to substitute criteria for clinical judgment.

Mr. Hammond: Amendment No. 35 defines indirect discrimination as happening

    where an apparently neutral provision...would put persons of a particular age at a particular disadvantage compared with other persons.

Mr. Burstow: That changes the sense.

Mr. Hammond: If the hon. Gentleman wants me to read it in full, it defines it as happening

    where an apparently neutral provision, criterion or practice would put persons of a particular age at a particular disadvantage compared with other persons.

I do not think that that particularly changes the sense. The point—and I do not speak as a doctor, but perhaps the hon. Member for Isle of Wight will confirm this—is that some legitimate clinical criteria will put older persons at a disadvantage, if one sees things in that way. It is a fact of life that certain conditions are more prevalent in the elderly. I am not suggesting that the hon. Gentleman is attempting to turn the system of priorities on its head—perhaps amendment No. 35 contains careless wording—and I am sure that he is not seeking to prohibit any clinical criterion that suggests that elderly people are less likely to benefit from a medical treatment than someone who is younger, fitter and healthier.

The amendments show just how the Secretary of State could use the powers under the clause to shut down trusts or health authorities that, in the language of the Government's publications, were ``failing''. It is clear from the debate and from reading the Bill that the definition of ``failing'' will be failing to do the Secretary of State's bidding. The Secretary of State sets criteria and if a trust or health authority does not diligently pursue those criteria—however wacky they may be—they will be judged as ``failing''. Perhaps when we come to clauses 2 and 3 we can look at some examples of Government targets that undermine and distort clinical priorities in the health service.

The danger is that the Secretary of State will be allowed to set criteria which lack sound clinical bases, and then to intervene in trusts and health authorities that refuse to be pressured into following a course of action that, in the clinical judgment of their staff, is not in the interests of their patients. That ability, that power, that potential, to distort further clinical priorities through the operation of clauses 16, 2 and 3 is the essential issue of the debate.

Mr. Denham: I shall deal as swiftly as possible with a number of issues that have been raised.

The hon. Member for Sutton and Cheam said that the amendment was intended to probe the Government. Let me put on record a number of statements as to the Government's attitude towards age discrimination. The NHS plan, which was launched last July, carries an unequivocal statement that age discrimination in the NHS will not be tolerated. In November, we signalled our commitment by appointing Professor Ian Philp as national director for older people's health and social care. He has made it clear that his main responsibility is to ensure that people as they grow older have the same access to health services as anyone else—access that is based on clinical need and in respect of social care on assessed need.

The prior assumption that the greater the age of the patient, the less beneficial the treatment is simply not acceptable. Age should never be a determinant in decisions about access to investigation and treatment. However, that does not mean that everyone needs precisely the same type or level of health or social care, or that those needs should always be met in the same way. Patients of different ages sometimes receive different approaches in their treatments, for which there may be good reasons. For example, when an older person presents at an accident and emergency department with a fracture, it would be quite natural to expect a broader assessment of the person's health and needs than might be the case with a younger person presenting with a simple fracture, as the injury may reflect a wide range of other factors such as a failure to take medication, poor eyesight, dementia, physical frailty or instability. Those examples show how difficult it is to legislate a fundamental principal in the simple way that the hon. Member for Sutton and Cheam has suggested.

I shall give a recent example. During the winter, general practitioners and practice nurses successfully delivered the largest and fastest immunisation campaign in the history of the NHS—the flu campaign—which was created for those over 65 and vulnerable groups.

It is almost certain that the amendments and new clause would have prevented the Government from targeting the flu campaign at the over-65s, as that would have been regarded as direct discrimination. No one could argue that some incredible change in the link between biological age and vulnerability takes place on one's 65th birthday to make the flu jab much more effective than it would have been on the previous day. However, in a practical health service, a limit at 65 made a great deal of sense as a way to target a group of people that we wanted to have the flu jab. One could base a limit purely on a clinical judgment of vulnerability, but that would almost certainly be caught by indirect discrimination, as one would be taking an approach from which, again, older people would largely benefit. That example does not prove that it would always be impossible to have legislation on age discrimination, but it suggests how complex and difficult it would be to get it right.

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The Government's preference is to move ahead with a range of measures to tackle age discrimination that will be implemented through management, high standards of practice and inspections by organisations such as the Commission for Health Improvement. The development of the national service framework for older people is a key part of that, and we are working hard on its publication. The CHI will, as part of its clinical governance review programme, monitor implementation of all aspects of the NSF, including fair access to services.

With the investment in training and leadership in NHS staff and the measures in, for example, the performance assessment framework, the NSF will help to overcome—more effectively than a narrow legislative route would—problems of cultural attitudes of poor training and bad management practice. Such problems lie behind many of the individual arguments that have been made.

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