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Baroness Hayman: My Lords, I am extremely grateful to the noble Baroness, Lady Masham, for once

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again making the House concentrate on an immensely important area. It has been echoed all round the House, particularly by my noble friend Lord Ashley, that patients should have access to appropriate services, particularly to appropriate specialised services, and the difficulties that might be inherent when those services are not available for very obvious reasons--because of their very specialised nature--at primary or even local secondary care level.

I have to say to the House that some of the anxieties mentioned spring from the very unfortunate experiences around extra-contractual referrals to which the noble Lord, Lord Clement-Jones, referred. I believe that the new arrangements actually provide a great deal more reassurance to patients in terms of how they can be referred, and to doctors about their clinical freedom to refer. I will deal with those matters in a moment.

I hope I shall be able to reassure the House that the amendment is unnecessary in terms of the need to give extra powers to the Secretary of State. Also and, I believe, more importantly, I want to assure your Lordships that we are taking appropriate action to see that specialised commissioning is available for out-of-area treatment, with the freedom to refer in order to ensure high quality services for patients. The point about mechanisms was made by the noble Lords, Lord Patel and Lord Clement-Jones. I will say a little more about the changes that we have already put in place and I hope to be able to give assurances about further steps in a moment.

One thing is very clear: there is still uncertainty as to the nature of the new arrangements we are introducing and how they will work in practice, together with the need for better communication. As well as the debates in your Lordships' House, ministerial colleagues and I have had the opportunity to hear directly the views of patient groups and, most recently, there was a very constructive meeting between my right honourable friend the Minister of Health and representatives of the Carers National Association and the Patients Forum last week.

Important issues were raised in the House and elsewhere, and I should like to respond to them. However, returning to the technicalities of this particular amendment, I should explain why it remains the Government's clear view that the amendments introduced by your Lordships' House on Third Reading, for which the noble Baroness has again argued today, are not necessary; nor are they the right way forward.

Those amendments amplify the wording of the general powers of direction and the duty of co-operation between NHS bodies to specify that they apply in particular to arrangements for referrals for specialised treatment. The key point is that the Secretary of State's general powers of direction, as originally set out in Clause 10 of the Bill, and the duty of co-operation between NHS bodies in Clause 23 are both wide enough to contain the arrangements needed for commissioning specialist services and for the so-called "out-of-area" treatments. Indeed, it is precisely because the Government attach such importance to partnership working between NHS bodies to ensure that all services

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are properly responsive to patients' needs that we have for the first time introduced the statutory duty of co-operation.

I can confirm that nothing further is needed on the face of the Bill to ensure that those provisions are indeed as wide as the noble Baroness intends them to be. Again, I should like to confirm, as has been pointed out in the notes dealing with the amendments, that nothing in the Bill restricts a GP's freedom of referral or stands in the way of commissioning services from whatever centre may be appropriate. I want to make that quite clear for the record.

I am also happy to give the commitment that, should it prove necessary, the Government would not hesitate to use the powers of direction and ensure that the duty of co-operation is complied with in order to ensure that arrangements in this area work as intended. The noble Baroness, Lady Carnegy, asked precisely what those powers were. The Secretary of State is able, under Clause 10(17) of the 1977 Act, as amended, to direct all NHS bodies--health authorities, SHAs, PCTs and NHS trusts--about their exercise of any functions. So this is comprehensive; it covers commissioning and funding arrangements should it be necessary to make directions on those. Therefore we believe that it is comprehensive enough.

We believe that reinstating the wording proposed by the noble Baroness would in practice add nothing to what the Bill already allows. The noble Lord, Lord Renton, to whom the whole House listens with great respect in these matters, suggested that it would remove doubt. I have to say to him that I do not believe there is doubt to remove, because of the breadth of the Secretary of State's general powers of direction. I believe in fact that it would create doubt in another area. That is because there is a danger that by introducing provisions regarding particular applications of a general power or duty--such as those in Clauses 10 and 23--we risk the unfortunate, and I am sure, absolutely unintended consequence of it being construed as limiting the scope of these general provisions.

I remind the House of a few of the other important purposes for which the powers may be used. For example, Clause 10 would enable the Secretary of State to issue directions, if necessary, to ensure an NHS body followed through speedily on the recommendations of the commission for health improvement. Clause 23 would cover local NHS bodies working together on the agreed priorities for local health improvement.

We must not run the risk of limiting the scope of the powers of direction and the duty of co-operation in respect of all matters that will advance patient care, given their intended breadth. This Motion is not the way forward. The noble Lord, Lord Renton, rightly said that it was important to get the legal framework right. But in this area it is essential to get more than the legal framework right. We must have the resources in place and smooth arrangements operating. We must ensure equal access for patients and remove some of the existing inequalities. That will entail a huge and comprehensive programme of work which we have already begun to undertake. For example, in the area of

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mental health, to which the noble Baroness, Lady Masham, referred, the national service framework will be the way forward in ensuring that there is greater consistency and better access to services for patients across the board.

Lord Renton: My Lords, I thank the noble Baroness for giving way. That is a very important point and I am anxious to help to make it clear. A difficulty arises under Clause 10 which states,

    "The Secretary of State may", I underline the word "may",

    "give directions to any of the bodies mentioned in subsection (2) below about their exercise of any functions". The authorities are then set out. But subsection (3), which the Government propose to leave out, says,

    "The power conferred by subsection (1) shall be exercised so as to enable patients resident in an area, covered by a body referred to in that subsection to be referred out of their area". "May" and "shall" are the operative words. It is the mere existence of "may" which raises a doubt, and the existence of "shall" which removes that doubt. That is what we must be careful about.

Baroness Hayman: My Lords, I understand absolutely the point to which the noble Lord refers. There is an issue in the drafting of legislation in these areas regarding putting "shall" into legislation where it may not be necessary for the Secretary of State to use the powers of direction. I hope that the noble Lord will accept from me that the power of direction means that the Secretary of State is able to follow through if necessary. I have today made a commitment that, should it prove necessary, the Government will not hesitate to use the powers of direction and ensure that the duty of co-operation is complied with in order to make sure that the arrangements work as intended.

Perhaps I may turn to the action we propose to take. I hope to reassure the House of the importance we attach to trying to improve the situation. Action continues on the specialised commissioning arrangements. National priorities for attention have been identified for attention in 1999-2000. We have already issued guidance on the commissioning of cleft lip and palate services. Guidance on medium and high secure psychiatric services will follow shortly. The two national service frameworks on coronary heart disease and mental health will include guidance on commissioning specialist services in those fields. So the rolling programme is under way as we promised.

At the same time, a process of peer review is under way across regions to ensure consistency of approach and to share best practice. My noble friend Lord Ashley spoke powerfully from his personal experience about arrangements for the provision of cochlear implants. He argued that they should be specifically included in the list of specialised services that had been issued in previous guidance. I should explain that this list is a working brief for the NHS Executive regional offices to use in reviewing current service arrangements over time. It has been deliberately framed so as to contain a

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measure of detail where necessary, but also to retain sufficient flexibility to be used in differing regional or local circumstances.

I hope that my noble friend will be reassured to know that the list is not set in stone. It will be refined as it is used, in discussion with the NHS. In the light of today's debate, I shall draw the attention of my ministerial colleagues to the importance which my noble friend attaches to this issue although I do not think that they are in any doubt as to that already. I shall ask my colleagues to ensure that the issue of cochlear implants is carefully considered as the list is developed. I say to my noble friend that we would expect an area which identified a particular problem over access to cochlear implants, or indeed to any other service, to follow that up, whether or not the service was on the list as a specialised service. I know that he is concerned about the number of implants that are taking place, particularly among people in middle years. Our figures show that the number of operations for cochlear implants in children under four and people over 75 has increased, but I accept absolutely the importance of keeping the figures under review so that the appropriate services for patients who would benefit from cochlear implants remain in place.

The noble Lord, Lord Renton, referred to the importance of getting the legal framework right. I accept that. But the issue raised by my noble friend Lord Ashley concerned an annexe to a circular which was issued before the Bill was introduced and which is still in force now. That reflects the need to get the arrangements right. The remedy to that does not necessarily lie on the face of this particular Bill.

Debates in this House and elsewhere have confirmed the need for better understanding of the new arrangements for out-of-area treatments. I am glad to say that since we last debated those issues in this House the department has issued further guidance on the arrangements under the cover of HSC99 171. Copies are in the Library. Regional offices of the NHS Executive continue to keep the arrangements under close review to ensure that any problems which emerge can be nipped in the bud.

The guidance also draws attention to the need for new or developing services to be identified and explicitly planned for. That point was made by my noble friend Lord Ashley and I think that the noble Lord, Lord Patel, would also welcome that provision. However, management guidance alone is not enough. We acknowledge the need to do more to ensure that local clinicians, patient groups and others understand and have confidence in all aspects of the new arrangements. Therefore, the department will be exploring with patient groups, managers and clinicians what sort of information will be helpful and how it can best be made available. It is especially important that those who depend on specialised services, whether for treatment for life-threatening conditions or for rare continuing illnesses, have confidence in the new arrangements. That is why I wish to confirm today that the Government welcome and accept the proposal that has come forward from user and carer groups in particular that we should arrange for annual reports to be

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published locally on the new regional specialised commissioning arrangements. We shall want those reports to explain which services are being commissioned through collective arrangements; to outline possible priorities for future in-depth review; and in due course to report on the operations already in place.

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