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Baroness Masham of Ilton: My Lords, I thank the Minister for that full reply, but something he said at the end of his speech worries me a great deal; namely

25 Mar 1999 : Column 1454

that different regions might do different things. I also believe that the comments of the noble Earl, Lord Howe, about the right of appeal are very important.

I thank all noble Lords who have supported me because I believe that they want the provision to appear on the face of the Bill. I know that the noble Baroness, Lady Hayman, knows in her heart that if she were sitting on the other side of the House she would be campaigning with me. I remember very well that she and I campaigned about MRSA and pressure sores, but I understand her position.

I believe that we should have a go and see what the House thinks. Therefore, I wish to divide the House.

5.19 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 113; Not-Contents, 86.

Division No. 1


Ailsa, M.
Ampthill, L.
Anelay of St. Johns, B.
Astor of Hever, L.
Attlee, E.
Berners, B.
Blaker, L.
Bledisloe, V.
Bridgeman, V.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Carrington, L.
Charteris of Amisfield, L.
Chesham, L.
Clanwilliam, E.
Clark of Kempston, L.
Coleridge, L.
Colwyn, L.
Cope of Berkeley, L.
Cork and Orrery, E.
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
Cross, V.
Cuckney, L.
Darcy de Knayth, B. [Teller.]
Davidson, V.
Dixon-Smith, L.
Donegall, M.
Eames, L.
Ellenborough, L.
Elton, L.
Fookes, B.
Garel-Jones, L.
Gray, L.
Hanningfield, L.
Hayhoe, L.
Higgins, L.
Holderness, L.
Home, E.
Hooper, B.
Howe, E.
Hylton-Foster, B.
Jopling, L.
Kintore, E.
Kitchener, E.
Lamont of Lerwick, L.
Lauderdale, E.
Leigh, L.
Lindsey and Abingdon, E.
Liverpool, E.
Long, V.
Lucas of Chilworth, L.
Lyell, L.
McColl of Dulwich, L.
McConnell, L.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Milverton, L.
Molyneaux of Killead, L.
Monson, L.
Morris, L.
Mountevans, L.
Moynihan, L.
Munster, E.
Murton of Lindisfarne, L.
Napier and Ettrick, L.
Naseby, L.
Newall, L.
Noel-Buxton, L.
Northesk, E.
O'Cathain, B.
O'Neill of Bengarve, B.
Oxfuird, V.
Palmer, L.
Pearson of Rannoch, L.
Pender, L.
Rankeillour, L.
Renton, L.
Renwick, L.
Roll of Ipsden, L.
Romney, E.
Rotherwick, L.
Sandwich, E.
Selborne, E.
Simon of Glaisdale, L.
Skelmersdale, L. [Teller.]
Soulsby of Swaffham Prior, L.
Stewartby, L.
Stockton, E.
Strafford, E.
Strange, B.
Sudeley, L.
Swansea, L.
Swinfen, L.
Taylor of Warwick, L.
Tenby, V.
Thurlow, L.
Torrington, V.
Trefgarne, L.
Trenchard, V.
Tugendhat, L.
Vivian, L.
Walpole, L.
Walton of Detchant, L.
Weatherill, L.
Wharton, B.
Wynford, L.
Young, B.


Acton, L.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Borrie, L.
Brooke of Alverthorpe, L.
Burlison, L.
Carter,L. [Teller.]
Castle of Blackburn, B.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crawley, B.
Currie of Marylebone, L.
David, B.
Davies of Oldham, L.
Donoughue, L.
Dormand of Easington, L.
Emerton, B.
Farrington of Ribbleton, B.
Gainsborough, E.
Gilbert, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Hacking, L.
Hanworth, V.
Hardie, L.
Hardy of Wath, L.
Harris of Haringey, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. [Lord Chancellor.]
Janner of Braunstone, L.
Jay of Paddington, B. [Lord Privy Seal.]
Jeger, B.
Judd, L.
Kennet, L.
Laming, L.
Levy, L.
Lincoln, Bp.
Longford, E.
Lovell-Davis, L.
Macdonald of Tradeston, L.
McFarlane of Llandaff, B.
McIntosh of Haringey, L. [Teller.]
Mallalieu, B.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Nicol, B.
Peston, L.
Ponsonby of Shulbrede, L.
Ramsay of Cartvale, B.
Richard, L.
Rogers of Riverside, L.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Shore of Stepney, L.
Simon, V.
Simon of Highbury, L.
Stoddart of Swindon, L.
Strabolgi, L.
Turner of Camden, B.
Walker of Doncaster, L.
Warner, L.
Wedderburn of Charlton, L.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

25 Mar 1999 : Column 1455

5.28 p.m.

Baroness Hayman moved Amendments Nos. 8 to 12:

Page 12, line 28, after ("28A") insert ("41A").
Page 13, line 24, at end insert--
("( ) Subsection (3) of section 17 of the 1977 Act applies in relation to the powers to give directions conferred by sections 4, 6 and 8 of the National Health Service (Primary Care) Act 1997 (proposals for, and making, variation and termination of, pilot schemes) as it applies in relation to the powers conferred by any of the provisions mentioned in paragraphs (a) to (c) of that subsection.").
Page 13, line 29, leave out ("16C") and insert ("16D").
Page 13, line 32, leave out ("16C") and insert ("16D").
Page 13, line 36, leave out ("16C") and insert ("16D").

25 Mar 1999 : Column 1456

The noble Baroness said: My Lords, these amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

Clause 15 [Duty of quality]:

Lord Clement-Jones moved Amendment No. 13:

Page 16, line 30, at end insert ("including, without prejudice to the generality of this section, general clinical care as well as medical treatment, and the promotion of health,").

The noble Lord said: My Lords, on Report the Minister said:

    "in the spirit of reading through the entrails after our previous debate, as noble Lords have done, I shall be happy, in the light of the specific points that have been raised in the debate, to check once again that nothing which has been pinpointed as essential in the contributions that noble Lords have made tonight is beyond the scope of the present definition ".--[Official Report, 15/3/99; col. 581].

We debated the definition of "healthcare" in what was then Clause 13 both on Report and in Committee. I make no apology for returning to this to ask the Minister whether she finds that definition in good or bad health after her examination of the "entrails", which I thought was a particularly apt expression to come from a Minister responsible for health.

Many issues are involved in this matter, which we have debated at some length. However, it still seems to us on these Benches that that definition is defective. I cannot see how the delivery of babies is an illness, yet the Bill purports, in terms of quality, to regulate that. Also, it is still not clear that public health promotion is covered by the definition in terms of the duty of quality. This is crucial. If noble Lords consider the Minister's assurance in Committee that local authorities cannot charge for healthcare, they will recognise that the definition of "healthcare" is absolutely pivotal when it comes to the distinction as to whether or not a means-tested charge applies or whether the service is free at the point of delivery, as in the NHS. Those distinctions will become more and more important. That is why we must get the definition of "healthcare" right. Has the Minister had time to reflect on that? It will be a very important definition in the years to come. I beg to move.

5.30 p.m.

Baroness Hayman: My Lords, I have indeed reflected further, read the "entrails" and tested the issue, as I undertook to do at various points in our earlier debates. I have checked whether or not the present definition misses anything essential. I can advise the noble Lord and the House that I remain convinced that the duty covers all that it needs to.

One example cited by the noble Lord, Lord Clement-Jones, as a service which the duty must cover--he repeated it today--was that of the treatment of pregnant women and their care immediately after childbirth. I agree it would be quite wrong if such a significant area of NHS provision were to be excluded from the duty, but in fact this example demonstrates quite well the intentional breadth of the drafting as it stands. The noble Lord is quite right to say that pregnancy is not an illness; it is a perfectly natural and, by and large, healthy state. But the NHS has an important preventive role in normal childbirth: it is on hand to help make sure that nothing goes wrong, and that avoidable harm befalls neither mother nor baby before, during or immediately after labour. This is quite clearly within the scope of the Bill's definition.

25 Mar 1999 : Column 1457

The noble Lord referred to public health provision. Smoking cessation services and screening services would equally be covered by the definition and therefore by the duty of quality. Similarly, I remain of the view that the duty adequately covers nursing care--I referred on Report to the explicit reference to nursing in the part of the 1977 Act on which this definition draws. I think that what I said on Report about health promotion activity also holds true. As far as NHS trust and PCT provision is concerned, activities which promote health will also prevent illness, and vice versa.

In case your Lordships are still unconvinced, and perhaps fear that some services somehow will be "missed" by clinical governance as a consequence of the way the duty is worded, I should emphasise that clinical governance in NHS trusts and PCTs will be implemented on an organisation-wide basis. It will apply as much to trust-wide activities such as complaints, ensuring that staff are up to date with best practice, and detecting and tackling poor performance as it will to specific service areas. As a result, it is very difficult to see how any areas of clinically-related activity could in practice escape its impact.

I hope that the noble Lord will accept that my opposition to his amendment is not because of "pride of authorship", to quote what he said earlier. I share his concern that the duty should cover as full a range of provision as is practicable, but I also take the view that we should expand on the present form of words only if there are important gaps to fill. I have given this matter careful consideration and I believe that the duty as drafted is wide enough to cover the areas which the noble Lord has highlighted. In the light of that, I hope that he will feel able to withdraw his amendment.

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