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Lord Renton: My Lords, I supported the noble Baroness, Lady Masham, when she moved that the words the Government intend to leave out should in fact be inserted in the Bill. When we were asked not to accept this amendment I read the notes and I am grateful for having received them.

In the notes, the Government suggest that the words are unnecessary. On page 11 the notes state,


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    At the beginning of the next paragraph, they add:


    "Nothing in this Bill cuts across GPs' existing freedom to refer their patients for whatever treatment is in their best interests, whether locally or at a specialist centre".

I believe that there is a doubt about this. The noble Lord referred to one, as did the noble Baroness, Lady Masham. When there is a doubt, it is best to remove it when legislating, especially when people's lives may be at stake.

In one or two cases in these amendments, the Government have been wonderfully overzealous. In Commons Amendment No. 2, the word "Act" is to include "this section". Every Act includes every section. Yet the Government use the specific words saying that in that case, and in one or two others, the word "Act" includes a specific section of the Act. If the Government are willing to be so overzealous in such a small drafting matter--perhaps I may have the attention of the Minister; I know that the Chief Whip may have something very important to say--I suggest that it is a good thing for them to be overzealous about the removal of doubt in this important matter of specialist services. Specialist services these days are essentially localised. They are not in every health authority area, as we all know from personal experience. I think that in this important Bill, which the noble Baroness, Lady Hayman, has been so careful to explain to us in great detail, it would be regrettable if on this important matter there was the slightest doubt left.

I believe that the noble Baroness, Lady Masham, is doing a service in inviting the Government to remove a doubt.

Baroness Carnegy of Lour: My Lords, I shall listen carefully to what the Minister says about whether the House should accept Commons Amendment No. 18. I, too, read the Notes on Commons Amendments. I note that the Government consider the amendment unnecessary and that it might limit the powers of the Bill.

I shall listen carefully to the Minister. It is crucial that people should, as far as humanly possible, have access to the specialist services they need. I want to hear from the Minister what the Secretary of State will have power to direct. The notes state that the powers,


    "are amply broad enough to enable the Secretary of State to issue directions to ensure appropriate access to specialist services". That will depend whether the specialist services are available; whether the cost of getting the patient there can be paid; and whether it will be possible to fund the patient's treatment. If it is possible for the Minister to describe that which the Bill allows, it will be important to the House. That is what matters to patients, as I am sure the noble Baroness, Lady Masham, will agree. That is what she and the whole House will listen to.

As the noble Baroness also said, we all wish to know what the notes mean when they state that this amendment may have the unfortunate and unintended consequence of being construed as limiting the scope of the power. We want to know whether the amendment would be counter-productive. But we also need to know precisely what the Bill will allow to happen and how

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the Secretary of State can intervene. He cannot intervene about every patient. So we need to know the precise procedure.

4.45 p.m.

Baroness Berners: My Lords, I support the Motion tabled by the noble Baroness, Lady Masham. There should be more readiness to make other specialist options available to desperate patients. I hope that the Government will reconsider the Motion and agree to it.

Lord Patel: My Lords, I speak as a clinician. In the past a clinician had to fulfil the requirement to meet the extra-contractual referrals. That made out-of-area referrals difficult. Therefore, it is important that the Bill enables easier out-of-area referrals. I believe that the co-operation encouraged and enshrined in the Bill allows for that.

As a clinician, the other aspect I look for is the freedom and ability to persuade the trust--I work in a hospital--to develop specialised services. Therefore, I hope that the Minister can reassure the House that measures will be in place to ensure local monitoring of out-of-area referrals. That will help the development of new services.

I do not believe that the amendment is necessary because of the encouragement to co-operate. As a clinician, I have to tell noble Lords that in the past we were discouraged from referring patients out of area because funding issues were involved. We do not have that situation now. I do not want to see any restrictive measures in legislation acting as a disincentive for a trust to develop specialised services.

Earl Howe: My Lords, I add my support to the noble Baroness, Lady Masham, on these issues which she highlighted so ably. I do not want to repeat the points she made. However, some fundamental unanswered questions remain.

The first relates to doctors' clinical freedom. I refer to the section of the Notes on Commons Amendments picked up by my noble friend Lord Renton. At page 11 the assurance is given that,


    "Nothing in this Bill cuts across GPs' existing freedom to refer their patients for whatever treatment is in their best interests, whether locally or at a specialist centre". There is a touch of disingenuousness about that statement. There may be nothing on the face of the Bill which discourages out-of-area referrals. But we know the Government's intentions. The intention is that most specialist tertiary services should be funded through long-term service agreements between health authorities and PCGs or PCTs and an appropriate NHS trust. Sometimes an agreement will cover a number of health authorities and their PCGs and PCTs. There will be a move to establish agreements of three to five years' duration. That scheme of things may well assist planning and budgeting, but where does it leave the doctor who may not want to refer a patient to the hospital chosen by his or her health authority? As I understand the proposals, the long-term service

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    agreement will govern his decision on where his patient is seen and treated. How is that not a diminution or fettering of a doctor's clinical freedom?

My second question relates to those 10 per cent of conditions which under the Department of Health's own estimate will not be subject to long-term service agreements. Ten per cent may be a minority proportion but it will not be an insignificant number of cases. If 10 per cent of services previously funded by extra-contractual referrals are now to be accounted for by out-of-area referrals, we need to be sure that the mechanisms to fund them are adequate.

In her helpful letter to me of 22nd March, the noble Baroness explained how a health authority, acting as the main commissioner of a specialist centre, will have funding added to its own service agreement with the trust to reflect past patterns of one-off referrals. My question to the noble Baroness is: how will this work in practice? If there is a service agreement between a health authority and a specialist centre and the margin built into that contract is exceeded as a result of a higher volume of referrals from out of the area, how is the centre supposed to cope with that? Under the duty of partnership it will be bound to accept those referrals, yet it will have no money to pay for them.

I understood Ministers in another place to say that money will not follow the patient. Indeed, that sort of arrangement is what the Government say they want to get away from in abolishing the internal market. An upwards adjustment in a trust's budget for the following year will not pay for the unfunded cases it has already dealt with. Can the noble Baroness shed further light on that conundrum?

Lord Clement-Jones: My Lords, having heard the debate so far, and in particular the speeches of the noble Lord, Lord Ashley, and the noble Baroness, Lady Masham, no one can doubt the importance of the points that have been made. There is also no doubt about the absolute importance of OATs working much better than extra-contractual referrals. The funding and the clinical freedom must be there in the future. We must have thriving centres of excellence and we have heard throughout our debates when the original amendment was before the House at Report stage and again today, problematic stories about how the centres of excellence are not thriving. It is our view that the working of OATs is of crucial importance. That has also been emphasised throughout the debate.

The noble Lord, Lord Patel, put his finger on one point. We are not persuaded on these Benches that the best way forward is necessarily by means of primary legislation. It is a matter of ends and means. What is the best means of achieving a system of well-managed OATs, a system that works where the funding is in place and where clinical freedom is important? I look forward very much to hearing from the Minister with assurances that perhaps go further than some of the points made in the notes about the working of OATs; and then of course we will take a view.


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