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Baroness Wilcox: I am grateful to the Minister for that very heartening response. I should like also to thank the noble Baroness, Lady Pitkeathley, for supporting the amendment. It is only recently that she represented so well the country's carers. I am very happy to have her support at this time.

Given what the Minister has said, of course I will be happy to withdraw my amendment at this time. I look forward at the next stage to hearing what she has managed to come up with to fulfil all my dreams. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 215 to 217 not moved.]

Schedule 3 agreed to.

Clauses 48 to 50 agreed to.

Schedule 4 [Amendments of enactments]:

Lord Harris of Haringey moved Amendment No. 217A:

Page 62, leave out lines 22 and 23.

The noble Lord said: This is unashamedly a probing amendment. I expect that we shall be told later that it goes to the heart of the Bill in a deeply unhelpful way in that it deals with the question of the abolition of extra-contractual referrals. The amendment would mean that patients whose quality of life is at risk because of severe pain or loss of mobility or livelihood, would still have the option of being referred outside local service agreements between health authorities and trusts, and that trusts could be reimbursed for treating such patients.

Before the introduction of the internal market by the previous government, GPs were free to refer patients to any NHS consultant anywhere in the country. It was genuinely a National Health Service. The 1990 Act introduced a two-tier system. We were assured at the time that somehow that increased patient choice. The reality was that it restricted patient choice, because there was less of an opportunity for patients to discuss with their GPs the precise referral that would be most appropriate for their individual circumstances.

Under the present arrangements for 40 per cent. of the population GP referrals are restricted by a mechanism known as extra-contractual referrals. It is the mechanism by which trusts are reimbursed if they treat

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patients referred outside health authority contracts by non-fundholding GPs. The system has been extremely complicated, poorly explained, and often poorly funded. However, it meant that there was an appropriate mechanism which allowed many thousands of patients to receive timely and/or specifically appropriate treatment for their needs when they were faced with a rare or complicated illness.

My understanding of the Bill as currently drafted is that it proposes to replace extra-contractual referrals with a new system to be known as out of area treatments (OATS) by means of secondary legislation. It is clear from the Government's consultative paper, The new NHS: guidance on out of area treatment, that the new system will mean a dramatic reduction in informed choice for patients. That will clearly affect a number of groups of patients, particularly elderly people whose quality of life may be severely affected by pain and mobility, some of whom currently face waiting times of three-and-a-half years for admission to hospital for operations such as hip and knee replacement or cataract removal; or those patients whose lives are at risk because they are on long waiting lists; or patients who have good reason to want to be referred to a consultant or a centre which specialises in a rare or complicated illness not covered by the new specialised commissioning arrangements.

The purpose of the amendment is to examine how we can ensure that the needs of those patients are met, that there is flexibility and that we can perhaps return to a system where there is genuine patient choice exercised by dialogue and partnership between the GP and the individual patient concerned. I beg to move.

Baroness Hayman: I am grateful to my noble friend for the way in which he introduced the amendment, and for his recognition that, were it to be accepted, it would set in tablets of stone the current arrangements for extra-contractual referrals. I believe that he accepts that the current arrangements are not satisfactory and cause difficulties for patients, and I urge him not to press the amendment. In doing so, I am happy to explain in rather more detail the arrangements that we are putting in place to replace extra-contractual referrals.

Extra-contractual referrals were "one-off" arrangements whereby an NHS trust provided care for someone and that care was not covered by a contract with the patient's health authority. We made a clear commitment to abolish the internal market and to replace it with modern arrangements founded on the principles of co-operation and partnership.

In the ECR system, individual patients became the subject of sometimes heated debate between GPs, NHS trusts and health authorities about whether they were covered by a "contract" and, if not, whether their care would be paid for. Sadly, the focus was sometimes not on building high quality services for patients, which is our clear purpose, but rather on opportunity and "playing the market". The abolition of ECRs signals a clear end to the unnecessary anxiety for patients and the excessive bureaucracy that symbolised the internal market.

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The new arrangements for commissioning patient services will ensure that all referrals to hospitals are covered by either the new long-term service agreements or the new arrangements for access to specialist services. The new arrangements are intended to strike a balance between coherent planning for service development and responsiveness to individual needs.

Health authorities and their shadow PCGs, NHS trusts and clinicians, are already putting a great deal of effort into shaping plans for their local health service through the local health improvement programmes. It is our intention that long-term service agreements should be developed through dialogue between the clinicians concerned and with important input from users. More sensitive commissioning will ensure that the new arrangements will also be able to take account of the views of users.

New arrangements for planning and commissioning specialist services, which were often the cause of ECRs, are also being developed. Attempting to support complex services through funding from ad hoc ECRs was never the way to secure good quality patient services. That is why, in The new NHS, we charged the regional offices of the NHS Executive with ensuring that better arrangements are in place, based on clear, long-term service agreements for these services to which all concerned are committed. These are intended both to promote fair access for patients and to support clinical staff in developing the most suitable and effective care. Where there are consistent patterns of referrals to a service, whether a specialised service or more locally, it is right that that should be reflected through service agreements. It has already been possible to build some 90 per cent. of what were ECRs into service agreements for the future.

However, there are cases that do not fit that pattern--emergencies away from home, or a rare condition needing specialist treatment. Such cases will be covered by the new arrangements for out of area treatments. Where a hospital receives referrals of this sort, that pattern will be reflected in the allocation of the health authority which is its main commissioner, and that health authority will build this funding into its own service agreement with the hospital to cover these ad hoc cases. That will be achieved by directions.

OATs will be within service agreements but not constrained by them and the referring health authority will not be constrained by past spending patterns. OAT patients will be treated under the same agreement and on exactly the same basis as the main commissioner's other patients. They will be treated according to clinical priority and covered by the standards for quality and effectiveness specified in the main commissioners service agreement. Freedom to refer will be enhanced through OATs as prior approval will not be required as was the case with ECRs.

There will be no more quibbling as to whether or not patients are covered by "contracts", and no more chasing invoices around the system. The freedom of GPs to refer and the freedom of trust clinicians to admit according to clinical priority within the overall resources available to them are safeguarded.

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Allowing ECRs to continue, as the amendment proposes, would mean letting patients continue to be piggy-in-the-middle while health service managers argue about who will pay. I hope that the former provisions enabling ECRs to continue are now clearly redundant, and that my noble friend will feel reassured that we have in place better arrangements to replace them.

Lord Harris of Haringey: I am grateful to my noble friend for her reply. The statement that there will be no requirement for prior agreement before an out of area treatment is approved is extremely welcome, as is the expectation that there will be greater flexibility. I shall need to read with some care the precise mechanism that my noble friend describes. I am not sure that I fully understand how it would work for a patient sitting on the opposite side of the table to the GP who is making the referral. However, on the basis of the reassurances given, I am happy at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Harris of Haringey moved Amendment No. 218:

Page 63, line 8, at end insert--
("( ) In section 15 (information and consultation)--
(a) for subsection (1A) there is substituted--
"(1A) Subsection (1B) applies where information has been obtained by a Commissioner or any of his officers in the course of or for the purposes of an investigation which is to the effect that a person is likely to constitute a threat to the health or safety of patients.", and
(b) in subsection (1B), omit the words following "patients".").

The noble Lord said: This amendment relates to a very different topic. It seeks to give the Health Service Commissioner (the ombudsman) greater discretion to pass directly to other bodies concerns arising from individual complaints to him where he judges that there may be a risk to the health or safety of patients.

The bodies to which he might pass on such concerns include the professional regulatory bodies which we have spent so much time this afternoon discussing, such as the General Medical Council, the General Dental Council, and the UK Central Council for Nursing, Midwifery and Health Visiting, as well as the future commission for health improvement which the Bill seeks to establish.

The Committee may be surprised to learn that the present wording of the Health Service Commissioners Act 1993 (as amended) severely restricts the circumstances in which the ombudsman may disclose, say to the General Medical Council, concerns arising from a complaint to him. He may, for example, not do so if he decides not to investigate the complaint which gave rise to the concern, or if the matter of concern falls to be disclosed in one of his reports. The result is that the ombudsman has less scope to bring concerns to the GMC or other such bodies than has a private citizen. My amendment seeks to put that right.

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I do not believe that this amendment will change current government policy about the ombudsman's powers. However, it removes an undesirable effect--quite possibly an unintended effect--of the current wording of the legislation. The deficiency in the present legislation is not an academic point. Since 1996 the ombudsman has had powers to consider complaints about the exercise of clinical judgment. The ombudsman tells me that on several occasions he has had worries, arising from individual complaints to him, about the actions of individual doctors who were still practising. He wanted to tell the GMC about them as soon as possible, but had to resort to intermediaries to do so. Clearly, that cannot be right or sensible.

I trust that I do not need to labour the arguments to persuade the Committee that the amendment is in the interests of patients. I am motivated by my 12 years' experience as director of the Association of Community Health Councils. It is quite unacceptable for patients if the ombudsman is worried that their doctor might pose a risk to their health or safety, or indeed to other patients, but is not in a position to tell the GMC directly. I understand that recent sad cases underline that we cannot be complacent about the present situation. We must ensure that concerns can be acted upon speedily.

The ombudsman has sought my support in proposing this amendment, and I am glad to give it. He has also written on the matter to the Select Committee on Public Administration in another place and members of the committee have questioned government witnesses about it. The amendment also has the strong support of the current president of the General Medical Council, Sir Donald Irvine. I notice that the noble double act, the former presidents of the General Medical Council, is no longer here. Sir Donald Irvine has written to the ombudsman saying:

    "I know that you see cases where the specific circumstances of the particular matters you are investigating cause you to have serious concerns about the general standard of a doctor's professional skills, knowledge or attitudes. It must be in the public interest for you to be able to draw those concerns to our attention, so that they can be properly investigated under our performance procedures".

A similar letter has been sent to the ombudsman by the president of the General Dental Council, saying:

    "we would support the removal of barriers to appropriate exchange of information where the public is potentially at risk. Whilst clearly this is an area where proper thought must be given to appropriate safeguards, nevertheless, we would have no difficulty in your discretion in this area"--
that is the ombudsman's area-

    "being less circumscribed".

The amendment concerns the safety of patients and is supported by the medical profession's regulatory body and by the dental profession's regulatory body. It gives wide discretion to the ombudsman, but I suppose that is what an ombudsman is for. I am confident that the Committee will agree that the public interest is best served by allowing the ombudsman the wider powers sought by the amendment. I beg to move.

7 p.m.

Baroness Hayman: My noble friend has raised a very important issue. The Government are aware that

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the existing statutory limitations on the Health Service Commissioner in the area that he has outlined have been a matter of grave concern to the commissioner for some time. I agree with him that it is entirely right and consistent with the wide aims of our proposals for reform of the National Health Service that if the commissioner obtains information which suggests that the health or safety of patients may be at risk, he should be able to pass that information on to the appropriate authorities. Therefore, I would certainly accept the principle behind my noble friend's amendment.

However, I should point out that the Health Service Commissioner is in a delicate position. Complainants, and others who may be called on to provide information to him, do so in the expectation that it will be kept confidential. For many that is a crucial element of the commissioner's work. Of course, the health and safety of patients must be paramount. But I am sure that the Committee would agree that we need to consider carefully the balance between giving the commissioner the very wide discretion which would result from my noble friend's amendment, and the need to maintain the confidence of complainants and those complained against. Indeed, we had a slightly tangential discussion about confidentiality issues and the need to be careful about them on an earlier amendment in Committee.

We need to ensure that we get the balance right. For those reasons I cannot accept the amendment as tabled. However, as I have said, we accept the principles behind my noble friend's proposals. I shall certainly undertake to give urgent consideration to whether we can use the opportunity offered by this Bill to effect the changes in the Health Service Commissioner's powers that he and my noble friend would wish to see.

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