NHS Reform & Health Care Professions Bill

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The Chairman: Order. The hon. Gentleman is spreading the discussion widely. He may have opportunities to say more during the stand part debate. At this time, he should keep himself strictly to the amendments and new clauses before the Committee.

Mr. Baron: I apologise.

Ms Blears: It is clear that the amendments relate to operational aspects, which I believe are best dealt with through regulations. However, I will deal first with those amendments that relate to patients forums.

Amendments Nos. 217, 218 and 219 would provide patients forums with the right of referral to the overview and scrutiny committees. They would require overview and scrutiny committees and strategic health authorities to comment on the reports and the recommendations made by patients forums. Clause 18(2)(m) already provides for regulations to be made about the provision and publication of patients forums' reports. Section 7(3) of the Health and Social Care Act 2001 provides for the overview and scrutiny committees to have the same rights of referral that are currently held by community health councils.

We do not accept that we need further legislation in that respect, but I have heard the strength of argument with which the hon. Members for Wyre Forest and for Oxford, West and Abingdon made their points. They believe that there ought to be a right of referral for patients forums, or that the overview and scrutiny committees ought to respond to what patients forums raise. When we talk about the operation of the local Commission for Patient and Public Involvement in Health under clause 19, it will be seen that we intend the information arising from the deliberations of patients forums to be drawn together by the commission. The commission will have the power to refer those matters to an overview and scrutiny committee for its consideration. That will ensure that scrutiny is informed by what local people say, which is important.

Dr. Harris: I accept that I did not clarify amendments Nos. 218 and 219 very carefully, and I would like briefly to do so now. I think that the Minister understands them, so I will deal with her response.

The Minister maintains that clause 18(2)(m) will deal with my concern. My concern, however, is that there needs to be a duty—and regulations need to be available—for such bodies to respond to reports by patients forums. Clause 18(2)(m) refers only to regulations on the preparation and publication of reports by patients forums, not responses to them.

Ms Blears: I take the hon. Gentleman's point, and I have said that the regulations provide for the preparation of reports. However, getting the overview and scrutiny committee to respond to the specifics of the report is important. I would like to think further about how we could strengthen that process and when we debate clause 19 and the operation of the commission at local level, hon. Members will become aware of our intention to ensure that all parts of the system are joined together and respond to the issues raised. The question of the overview and scrutiny committee being required to respond to issues raised by patients forums is important. I will think further about it and come back to hon. Members.

3.30 pm

Dr. Harris: I accept that answer and will take the matter no further at this stage. The Under-Secretary cited section 7(3) of the Health and Social Care Act 2001, which refers to the functions of overview and scrutiny committees and the regulations that make provisions for them. Which particular paragraph of subsection (3) gives to overview and scrutiny committees the duties and powers to make the referrals that are stated in my amendment?

Ms Blears: I shall endeavour to answer that when we debate the relevant amendments and new clauses.

Amendment No. 220, which is supported by the hon. Member for Wyre Forest, aims to ensure that the membership of a forum is drawn proportionately in areas covered by more than one overview and scrutiny committee. I understand the hon. Gentleman's desire to ensure that forums are representative and agree that those sitting on them should represent the whole community, as far as that is possible. However, it is appropriate for the regulations in clause 18(2) to deal with that. That clause refers to the appointment of members, the terms of appointment and how we ensure the widest possible representation. At this stage, it is inappropriate to include such fine points as the hon. Gentleman proposes in primary legislation.

The thrust of the Government's changes is to ensure that the representative bodies in the patient and public involvement system cover as wide a range of groups and individuals as possible, and that all voices, some of which perhaps have not been heard traditionally, have a say in the new system.

In response to the amendments on overview and scrutiny, it is important to return to the principle behind the placing of the scrutiny of the NHS in the hands of local government. We want scrutiny to be in the hands of an independent, democratically elected body. That proposal had widespread support when it was included in the 2001 Act. We also want the body to be in touch with the communities that it represents.

The local government overview and scrutiny committees should develop a degree of expertise in scrutiny. During the past 12 months, many local authorities have begun to undertake the scrutiny of their services in different areas. Many useful and worthwhile recommendations for changes to services that would make improvements to the local community have resulted. We want the expertise that local government has built up for scrutinising its own services to be extended, transferred, developed and deepened for the scrutiny of the NHS.

We want the exercise to be democratic, with locally elected representatives, but we must recognise that, because the bodies will be independent, they will be entitled to organise the way in which other bodies are scrutinised in accordance with their priorities and methods of work. We do not want to compel an independent body to behave in a manner that would conflict with the principle of independence. I cannot think of a circumstance in which a local authority will not want to represent the views of its community on the functions of the NHS. If it refused unreasonably to carry out scrutiny, or if such a decision were frivolous or based on irrelevant considerations, the matter would be open to judicial review. There is provision, therefore, to ensure that local authorities scrutinise properly.

With regard to the provisions from which the hon. Member for Oxford, West and Abingdon has quoted, under section 7(3) of the Health and Social Care Act 2001 regulations can require NHS bodies to consult overview and scrutiny committees. We can use the powers in those regulations to replicate the current position for community health councils. We have said on several occasions that the new powers for overview and scrutiny committees to refer matters to Ministers will be no less rigorous and powerful than those currently enjoyed by community health councils.

I should point out to the hon. Gentleman that, in statutory terms, the powers that community health councils currently hold relate to the process of consultation. They can refer in cases where the processes were inadequate, where the right people were not consulted, where there was insufficient time for consultation or where such decisions were arrived at in a defective manner. It is very much an administrative law provision, but there is no statutory right to refer matters on the basis of the merits of proposals. A tradition has built up over the years whereby provisions that are contested on their merits are referred to Ministers; for example, where there is a dispute in the community and people are at odds about the merits of a proposal.

It is clearly important that decisions on process and on substance be subject to proper scrutiny and review. I certainly want to ensure that the power of overview and scrutiny committees to make references is no less than that enjoyed by community health councils, and that issues of process and of substance are looked at in a sensible way.

Dr. Harris: I have been listening carefully, and I am not sure whether the Under-Secretary said that the right of referral has emerged but should no longer exist, or that it has emerged and should continue to exist. I think that she meant the latter. Referral involves taking away from the NHS the right to decide locally and giving that right to the Secretary of State, as can currently happen with controversial re-providing decisions; or hospital closures, as ordinary people call them. As it stands, section 7(3)(b) of the Health and Social Care Act 2001 grants the power to make reports, not referrals, so I am still not clear where in existing legislation the right of referral is granted.

Ms Blears: I will come to that point. The Government certainly intend that the right of referral on contested reconfigurations, or on matters that were previously the subject of referrals, should continue. A better system of public and patient involvement will enable people to get involved at the outset when options are being developed. Given that there will be greater opportunity to shape proposals when they are first considered, I hope that we might see fewer contested matters. In my experience, giving people the opportunity to get involved at the beginning of a process sometimes minimises the matters that remain subject to dispute.

None the less, I should make it absolutely clear that the right of referral must exist in the system. If matters are contested and there is a great dispute in the community, a democratically elected body—the overview and scrutiny committee—must have the power to decide that it is right and proper that they be referred.

Mr. Heald: I have been reading an update on the costing exercise for the replacement of community health councils in England, which was prepared by Mr. Roy and given to me by the Association of Community Health Councils for England and Wales. Mr. Roy said that the assumption is that only three quarters of the NHS in England will be covered by local authority overview, and that specialised services and so on will not be covered. Is that why the Under-Secretary is not keen to accept new clause 3?

 
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Prepared 6 December 2001