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Baroness Gardner of Parkes: I could not think more highly of nurses; indeed, I believe that they make the most marvellous contribution to the work of the health service in the community, in the hospitals and throughout the whole of the NHS. However, I believe that the proposed amendment limits the scope of the provision to one place for one nurse. I prefer to have a place for a nurse as suggested in Amendment No. 20, which certainly would have been possible. I should have preferred the wider spread whereby any "health professional" could be appointed. If there are only five places available, I do not quite see how we will be able to fit everyone into them. I also hope that many nurses will serve in an executive role on the health authority and that they will be in close touch with nurses working in general practice.

Baroness Cumberlege: We considered the question of professional membership of health authorities in earlier debates. I made clear then the Government's general approach to membership. We do not think that it is helpful to reserve places for individuals from particular professional or other interest groups. As my noble friend Lady Eccles said in our debate on Tuesday, it is important that health authorities are made up of people from as wide a range of experience as possible and that they are tailored to suit the needs of the particular area.

It was also clear from our earlier debate that there are many groups with claims to be included on health authorities. My noble friend Lady Gardner has made the case for the range of primary care professionals, including pharmacists and dentists. However, I believe that I have made clear to my noble friend that the Government very much welcome applications from suitably qualified members of those professions, but do not see the necessity to reserve a place for them.

I recognise that the nursing profession are particularly concerned that they should be at the centre of decision making in the new authorities. The noble Baroness, Lady McFarlane, has very fairly set out the contribution that nurses can make. I know that the noble Baroness speaks from considerable and distinguished experience and that she is one of the most respected leaders of the nursing profession. I also agree with the attributes and skills of nurses as outlined by the noble Baroness, Lady Robson. However, I believe that I have explained why the Government cannot accept the amendment.

Perhaps I may just add something that I said in an earlier debate concerning not only nurses but also midwives and health visitors. In this Chamber only recently I illustrated how we had shown our trust in nurses' skills by introducing nurse prescribing. It has been recognised for a number of years that nurse prescribing in the community could bring genuine benefits both to patients and staff. Nurses themselves believe that they can do the job and do it well. The eight demonstration schemes—some of which I have myself visited—provide us with an opportunity to put that to the test.

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Moreover, when speaking to Amendment No. 11, I mentioned the high priority that we have placed on nurse education and training. We made substantial funds available to support the introduction of Project 2000. As a result, the new form of pre-registration education has been introduced throughout England in only five years. It is the envy of other countries.

The "Changing Childbirth" policy gives midwives the scope to strengthen their professional skills, and the care that they give, alongside other health professionals. We have set out 10 key indicators of success and asked all purchasers to draw up plans for implementing Changing Childbirth within five years. I should say that midwives are, with enormous courage, commitment and energy, rising to that challenge.

Finally, we recognise that effective purchasing is a complex task which makes new calls on the skills of health professionals. We have invested in nurses by developing those particular skills. I am now delighted to see nurses playing a significant role in general management, as well as providing expert advice from their nursing experience. Nurses are helping health authorities to define their real purpose. They are contributing to health needs assessment, defining the need for services, including health promotion and developing plans with providers. They are ensuring value for money, challenging prices and examining alternatives for services which better match people's needs. Best practice, in relation to the nursing contribution to purchasing, is set out in the report Building a Stronger Team.

I have mentioned all the foregoing because it is very easy just to praise nurses. We have tried to give them more responsibility and extend the scope of their professional activities. I believe that we have illustrated the way that we value their profession and have put our trust in it. We do not believe that the proposed amendment is the best way to achieve what the noble Baroness seeks to achieve. Therefore, I hope that she will feel able to withdraw it.

Baroness McFarlane of Llandaff: I thank the Minister for her detailed reply and for her own considerable contribution to the welfare of nurses and nursing. Of course, I am disappointed that the strength of the case has not been taken on board. However, I shall read the Minister's response and reconsider the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 to 28 not moved.]

Baroness Cumberlege moved Amendment No. 29:

Page 31, line 7, leave out from beginning to ("(accounts") in line 9 and insert:
106. In section 12 of the Local Government Finance Act 1982").

The noble Baroness said: The above is a technical amendment. Section 28A of the Local Government Finance Act 1982 confers certain functions on the Audit Commission. The section is no longer needed because the same functions are conferred on the Audit Commission by the 1990 Act. Section 28A should have been repealed by the 1990 Act. The provision inserting

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it was removed but, by error, the section itself was not repealed. The error came to light only recently—after the Committee stage in another place. This is our first chance to put it right.

The current draft of the Bill contains an amendment to Section 28A. That amendment would only increase the confusion over whether the section still stands. The proposed amendment clarifies the situation by repealing Section 28A and removing the provision which amends it. I beg to move.

Lord Carter: I understand that we are discussing a technical amendment. However, I am experiencing some difficulty in following the explanation. I have with me the Local Government Finance Act 1982 and am just looking at Chapter 32. I presume that I have the right document, but the sections in the Act that I have before me do not tie up with the Section 28A mentioned in the Bill and that suggested in the amendment. For example, there is no Section 28A in Chapter 32 of the 1982 Act; indeed, there is only Section 28 with subsections (1), (2) and (3). None of them says anything about the functions of the Audit Commission in relation to the National Health Service. It could be that I have got it wrong. I tried to check the position with the officials and they believe that they have an answer. I shall be interested to hear the Minister's response.

Baroness Cumberlege: I am grateful to the noble Lord, Lord Carter, for having made contact with the officials. As I understand it, the answer lies in paragraph 2(2) of Schedule 4 to the National Health Service and Community Care Act 1990. I am not sure whether that makes the matter clear to the noble Lord. Perhaps we can discuss it before the Report stage so that I can reassure him.

Lord Carter: I have a suspicion that it is not very clear to the Minister either. It is confusing for those of us who do not have the resources of the department. I am holding the document which corresponds with the marginal note "1982 c. 32.". I have checked with the Printed Paper Office. That is the only document of its kind. I accept that it is a technical point, but it would be helpful if we knew the route by which the Government arrived at the amendment.

Baroness Cumberlege: I shall be very happy to try to help the noble Lord.

On Question, amendment agreed to.

[Amendments Nos. 30 and 31 not moved.]

Schedule 1 agreed to.

[Amendment No. 32 not moved.]

Clauses 3 and 4 agreed to.

Schedule 2 [Transitional provisions and savings]:

5.15 p.m.

Lord Carter moved Amendment No. 33:

Page 43, line 10, at end insert:
("(c) the employee has no less a right than he previously enjoyed to speak publicly about issues or developments which are in his professional opinion of concern to the health of the public.").

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The noble Lord said: Amendment No. 33 deals with a subject that we have dealt with on a number of occasions in various Bills and orders relating to the health service; namely, what are known as gagging clauses. The amendment is intended to put the matter right at least in the case of this Bill.

I should like to give a few examples to show why we feel this whole business of the gagging clause is a grave weakness in the operation of the health service. With this amendment we try to put the matter right at least in respect of the new organisation that is proposed.

After the Bill becomes an Act, on 1st April next year what have been described as the last vestiges of the public health advocacy in Britain on behalf of the public will be abolished when the eight regional health authorities are replaced by eight NHS Executive regional offices. The point has already been made in relation to a number of amendments that the regional directors of public health and their staff will become civil servants and hence will be constrained, like all civil servants, in the way in which they speak out on public matters. I am advised—and it will be interesting to know whether the Minister can confirm this—that one consequence will be that the directors of public health, who are the leaders of public health medicine, will not be allowed to become office holders in the Faculty of Public Health Medicine.

It is interesting that in 1988 the report of the Committee of Inquiry into the Future Development of the Public Health Function, chaired by the then Chief Medical Officer, Sir Donald Acheson, concluded:

    "We therefore reject the view expressed in some of the evidence submitted to us that public health doctors, employed in the public sector, have a duty or a right to advocate or pursue policies which they judge to be in the public interest independently of any line of accountability. In the extreme this would place them in a position above Parliament".

I shall be interested to know whether that is still the view of the Government and whether the Minister agrees with the view expressed by Sir Donald Acheson.

I turn now to the general subject of the gagging of employees. I do not believe that it is an exaggeration to say that a large number of NHS employees feel that restrictions on freedom of speech have become much more severe since the health service has become more commercial. We feel that efficient organisations encourage internal debate and dissent. Obviously the NHS Executive wants NHS employees to talk to their managers about any problems they find in the service. Unfortunately, employees are rather sceptical about that approach because of all that has happened.

We know that so-called gagging clauses have been written into the contracts of NHS consultants and other employees. There have been several high-profile cases of whistle-blowers being persecuted. We know that the Government have produced what is known in the jargon as a whistle-blowers charter, but some people feel that the charter has made life easier for those who want to suppress information rather than for those who want to blow the whistle.

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I should like to give some examples of where that has happened. The manager of the Cardiff Royal Infirmary group and a surgeon in that group made critical comments, one to the local press and the other to the health authority itself, about certain practices. They were both suspended. They responded by taking their cases to an industrial tribunal. The day before the tribunal was to sit they were paid a sum of money, not only as recompense for the damage to their careers but as a form of gag because they could no longer refer to the circumstances under which they had been suspended. That is now done almost as a matter of course to quash any dissenting opinions about the state of the health service.

There was the case of staff of the Raigmore hospital trust. Dr. Anita Reddy, a senior registrar, complained about low staff morale in the hospital. The trust managers seriously contemplated taking disciplinary action. They were only dissuaded from doing so by senior consultants who talked to them about the case. At the same Raigmore trust a letter to the board chairman, Dr. James Kyle, was leaked to the press. That letter was from five senior consultants expressing their surprise and annoyance at the callousness of managers. All five consultants were dragged before the director to account for themselves and to explain the leak. Such people should not be disciplined for bringing those matters to light: they should be congratulated.

The purpose of the amendment is to give a clear right to employees of the National Health Service and professional staff to speak up professionally on matters that concern the health of the public. We feel that the right should be enshrined in this primary legislation and override the "gagging clauses" that are increasingly being inserted into trust contracts.

The terms and conditions of service of hospital, medical and dental staff used to contain a clause in paragraph 330 which stated:

    "A practitioner shall be free, without prior consent of the employing authority, to publish books, articles, etc. and to deliver any lecture or speak, whether on matters arising out of his or her hospital services or not".

That is an absolute freedom. It is a safeguard for the public health, for the public good and for the professionalism of medical staff which is the cornerstone of the National Health Service.

A further matter which is causing concern is the additional financial incentive for trusts, as employers, to keep quiet matters which might have a negative impact on the marketing (these are customers, not patients) of hospitals to purchasers such as GP fundholders, health authorities and those who make extra-contractual referrals from other health authorities. Trusts have every incentive to enforce the gagging clauses on their staff in case their speaking out has an adverse impact on the trusts' ability to trade under the new contract system.

The amendment is intended, at least in this Bill, to deal with this pernicious aspect of the health service, which is causing great anxiety. The issue has not arisen from stories in the tabloid press but from conversations with doctors, nurses and consultants. One knows that it is causing increasing concern. I hope that the Minister

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will be able to show that the Government recognise the genuine public concern that exists on this matter and will accept the amendment. I beg to move.

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