Mr.
Mike O’Brien: I fear that the hon. Gentleman is
straying into an area of law that would apply if the proposals were
enshrined in statute in the way in which he wants them to be, but that
will not necessarily apply to the extent that he suggests as a result
of how we have chosen to do things. We are able to have regard to the
constitution, which is not enshrined in the Bill. As I have already
said, providing that a trust can show that it is working in the spirit
of the NHS, there may be reasons why it will take the view that it is
not held in a straitjacket by the constitution. It may wish, for good
reason, to deviate from
it. It
is the case that we say that NHS provision—funding—should
be only for the benefit of NHS patients. However, it is also the case
that the objective of the provision is to benefit NHS patients. If
something would occur because of a restrictive application of the law
that would not benefit the patient, the trust may well have good reason
for taking a decision that it will do what is proposed none the less.
For example, provision of a drug that might be partially funded by a
top-up could be provided on NHS premises—to use the example that
the hon. Gentleman gave—because it is for the benefit of the NHS
patient. It is primarily funded by the NHS, but it is topped up
privately. Is
it the case that that drug cannot be provided on NHS premises? A trust
may take the view that, if it were in the statute, it might well become
a justiciable issue, but because it is not in the statute, the trust
can take a view, providing that it can justify it, that it will be able
to deliver the drug in an appropriate way for the benefit of its
patient, who is an NHS patient, in premises that are owned by the NHS,
even though there may be some contribution from the
patient.
Mike
Penning: Will the Minister be kind enough to clarify the
position of one provider, the air ambulance service? That is funded in
myriad different ways throughout the country, but in many areas it is
partially funded by the NHS—it is commissioned by the PCT or the
ambulance trust—although the helicopter and pilot are almost
certainly provided by a charitable organisation or private benefactor.
The paramedics and the major trauma surgeons and so on who are on the
helicopter, which provides such a vital service, are paid for, or
possibly employed, by the NHS. This is an anomaly: are those people in
or out? The ambulance trust may well be providing funding and the
helicopter will almost certainly be from a charity. It is private
provision, partially funded by the NHS. Where does it fit inside the
constitution?
Mr.
O’Brien: Again, we are brought back to the problem
that would arise if we did what the hon. Gentleman and his colleagues
want to do, rather than the problem that we face. We just do not face
that problem and I shall explain why. As the hon. Member for Eddisbury
has said, if all this was in the Bill, privity of contract would be the
only basis on which rights and obligations would arise. Actually, the
provision is declaratory. Any obligations that currently exist will
continue to exist. As far as we are concerned, we are not in any
straitjacket as a result of this legislative provision. In the way in
which we have chosen to do it, it merely sets out what is currently
legally enforceable. However, it may be referred to—had regard
to—in a court
case. We
do not have the problems that would arise if we did what those on the
Opposition Front Bench propose and stuck the measure in the Bill,
because in those circumstances real legal rights could arise. Questions
would arise about the meaning of words. In a very detailed way, lawyers
would be able to take a whole series of points. Privity of contract
would be the basis on which things would arise, because it would all be
legally
hidebound. 12.45
pm As
for the air ambulance, a whole series of questions would arise about
what exactly its legal position was, but, because we have chosen to do
it in this particular way, all those problems are voided. It is
possible that at some stage they might be referred to, but there is no
new cause of action that could possibly arise with regard to the air
ambulance service that would not arise now. The constitution will not
create a new problem for that service. It will not create an anomaly in
relation to staff employed by the NHS or the air ambulance service. Any
anomaly that might exist exists now. It does not create a new one. But
if we do what the hon. Gentleman advocates and stick it in the Bill,
who knows what would arise? We would have a whole new area of law and
all sorts of new questions could arise as to exactly what would happen
in relation to issues such as the air ambulance
service. So,
how does the NHS constitution apply to the air ambulance service? Only
in the sense that if a trust employs a member of staff, that member of
staff is constrained by the obligations that the trust has, because
they are an employee. But where a service is commissioned by a
PCT—for example, if it commissions the air ambulance
service—the PCT has to have regard to the constitution. In
addition, any body contracted to provide an NHS service, such as an air
ambulance, would then be in a
position where it has to have regard in respect of those NHS services,
but not in respect of any other, say, charitable function that it might
perform. As
far as we are concerned, there is not a problem for the air ambulance
service other than any issues that it might currently have. However, I
do not know what problems would arise if we were to do what the hon.
Gentleman proposes; no one knows. His approach would create a whole new
legal basis.
Sandra
Gidley: The mention of the air ambulance service raises
another, slightly unusual, question, because that service often makes
use of the British Association for Immediate Care doctors. Those
doctors do not have a contract with the air ambulances as such. They
usually work in another part of the health system during the day and
they provide the BASICS services as volunteers. It is not a service
that is commissioned. BASICS doctors and paramedics provide services in
a voluntary capacity, and so will not be covered by the responsibility
of staff, because, in this context, they are not staff. I am sure that
people would be very glad of the attention of a BASICS doctor, so this
issue may not arise, but where does that voluntary area fit into the
picture, because the service is not commissioned and the doctors are
not
staff?
Mr.
O'Brien: In exactly the same way as it does now. There is
no significant change in the way the service is provided as a result of
the constitution coming into play. It does not substantially alter the
position of the staff who are employed by the trust. Those who are in a
voluntary capacity, however, are in a different position. Are they
entirely voluntary? Are they acting to some extent in a situation where
they hold themselves out as people trained by the trust, by the NHS, as
having certain capabilities to perform a medical function? And
therefore does the NHS have liabilities? It might well have, and those
liabilities arise now. But there will not be any new and significant
liabilities arising as a result of the NHS
constitution. The
difficulty in dealing with questions regarding the air ambulance
service—it is a good, but also difficult and therefore bad, way
of trying to delineate the obligations—is that it operates
across the country in a multiplicity of ways. Some air ambulances
operate in ways that are entirely charitable; others are under
contract. It is not possible to cover all the areas for the air
ambulance service in one brief paragraph, as the service depends on
particular circumstances in each locality. However, where a liability
currently arises, it will continue to arise. In the future, when the
constitution is in play, it should not bring about a new cause of
action that does not currently exist. Will it create any new problems?
It should not create any new problems for the air ambulance service at
all. However if, in legal terms, an air ambulance service has a
contract, then it may well have to have regard to the constitution, but
only when it makes any decisions in relation to the performance of the
NHS parts of that contract, not in relation to its charitable
functions.
Mike
Penning: This area is very important. In a previous
incarnation as a full-time fireman, I went to major traumas, not least
on the M25. In those days, we sorely lacked the major trauma skills
that people such as BASICS provide. There is no issue where an
organisation
or an individual, such as BASICS or the air ambulance service, has a
contract, because it has been commissioned and that is fine. However,
if it is working in an unpaid, voluntary capacity on behalf of the
NHS—without a contract, but providing a service—does it
have to abide by the constitution, or is it outside the constitution? I
know that that is very technical, but it is very important to the
volunteers who provide this service around the
country. A
moment ago, the Minister said that some air ambulance services are
employed and some are not. London is a good example, where the
helicopter is provided by a third party, but the London ambulance
service provides the specialist technicians on the helicopter. So, we
have different services. Where people are volunteering for the NHS, but
are not physically employed by it or contracted to it, do they have to
abide by the
constitution?
Mr.
O'Brien: In a sense, the hon. Gentleman makes my
point—there are a multiplicity of different arrangements that
exist in regard to the NHS and the ambulance service. The real
questions that a volunteer, or someone else, is likely to ask are: is
the constitution going to put me at more risk; will it put me under
obligations that I was not previously under; and will it create an
ability for me to be brought before a court, which I was not previously
subject to? The answer is that there is no new obligation and no new
cause of action that will arise as a result of this. Therefore, the
volunteers, or others, in whatever arrangements they are in, need not
feel that the constitution puts them in a more vulnerable position,
because it does not. If they are acting in an entirely voluntary way
and there is no contract, then they do not have to have regard to
anything they do not have to regard to now. They may choose, as an
organisation dealing with the NHS, to have regard to it, but that would
be
voluntary.
Mike
Penning: With that in mind, would there be an obligation
on behalf of those commissioning the voluntary work to require that
organisation to abide by the
constitution?
Mr.
O'Brien: That would be the case only in the provision of
NHS services. A trust or PCT entering into a contract with any
commercial or charitable organisation would have to consider the extent
to which the patient could secure the protections that they were due
under the constitution. If the trust or PCT felt that that was the
appropriate way to ensure that the patient got what they were entitled
to, they could make particular reference to the
constitution, which would be a decision for them.
Will such an
arrangement produce a problem that does not exist now if the person is
a volunteer, an air ambulance service or a charity? No. The person may
be subject to legal liabilities. Will that change? No. Will the
circumstances of the trust that enters into a contract with that person
or that accepts services from them change? There will be no new cause
of action, but the trust must have regard to the constitution in
entering into any agreements.
If we are not
careful, we can end up counting the number of angels dancing on a
pinhead. Let us try to avoid that by saying that we can provide the
reassurance that the air ambulance service and charitable organisations
need in terms of practicalities. At the same time, we can
ensure that the patients get the reassurance that they need that the
constitution has some bite, some importance and some relevance and that
it puts some obligation on the various NHS organisations, because those
organisations must have regard to
it. Mr.
Stephen O'Brien: I am grateful to the Minister, who has
tried to explore the issue at some length. He is right that we need to
be careful not to end up counting angels dancing on a
pinhead. The
issue is less to do with an anxiety about what “have regard
to” means in terms of the everyday life of somebody involved in
providing NHS services, although I fully followed everything that the
Minister said about that and shared his analysis. Of course, these
issues have an impact on whether people feel safe to volunteer their
effort and confident that they will to not be tripped up by something
that is additional to what they face
today. In
my constituency, there is a phenomenal and long-running controversy
about community first responders, who have been providing an
outstanding service to constituents, particularly in rural south
Cheshire, because we have abominable problems with the performance of
the North West Ambulance Service NHS Trust. That is partly because it
is quite tricky to service an area from Carlisle to Crewe—the
area is far too remote, and everything is run from Bootle. It is
inevitable that there will be considerable concerns about the way in
which the proposals could impact on volunteers, and my hon. Friend the
Member for Hemel Hempstead highlighted my example of the air ambulance.
Hospices are also obviously an important point.
The Minister
has prayed in aid the CQC, which was established last year, and the
Health Act 2006. He says that we should have regard to them, but they
are both cases where there are more specific issues to have regard to.
A judge may well say, “I’m not going to create any new
causes of action,” unless he is Lord Denning, who happened to
admit me as a solicitor. However, most judges will not create new law,
and that is well understood.
The real
problem is that there will be an increase in accountability and,
therefore, I fear, in bureaucracy, as bodies demonstrate that they have
had regard to the constitution. That concerns me, because it will mean
that there will be an audit trail as people defend their position. If
that reads over to volunteers, it will change the nature of their
activity. I
accept the Minister’s assurance that we are unlikely to create
any new forms of liability. The situation is like an overlapping Venn
diagram. At the same time, however, there may be an increase in
bureaucracy because, as with all these things, we will end up with an
audit trail, as people seek to demonstrate that they have had regard to
the constitution in all their practical applications.
Having had a
full explanation, and fully admitting, as I did at the outset, that the
words “abide by” are no more felicitous than the words
“have regard to”, let me say that the important point is
the intent of the words as used and what lies behind them. On that
basis, I beg to ask leave to withdraw the amendment.
Amendment,
by leave, withdrawn.
Ordered,
That further consideration be now adjourned. —(Mary
Creagh.) 12.59
pm Adjourned
till this day at Four
o’clock.
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