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Lord Archer of Sandwell: My Lords, I am most grateful to my noble friend. I hope that he appreciates that many of us who intervened in this debate were quite specifically not arguing that all personal care should be free. I argued that certain forms of treatment for specified conditions should be made free, even though they may not be administered by a registered nurse.

Lord Lipsey: My Lords, I take the point made by my noble and learned friend and by the noble Baroness, Lady Greengross. In our further debates we shall come to the point regarding the precise definition of free nursing care. I am making my case against those around the House who argue for free personal care, as do many of the lobby groups in this area. It is that which I consider to be unaffordable. I am not saying that we must stick precisely with what the Government are suggesting now, because I can see the case that is being made.

Perhaps I may develop my point as to what would happen if we adopted the proposal for free personal care. As was the case when it was put forward by the Royal Commission, that proposal has been made with the very best of motives--with the good of elderly people in mind. However, I am afraid that one of two things would occur. First, after a few years we would decide that we could not after all afford it and we would drop the idea. That can happen. It occurred in Holland, where free personal care was introduced in 1968. The cost was three times higher than had been expected and the scheme was dropped in 1982. What a cruel deceit for the hopes that had been raised by starting down that line in the first place.

However, the other alternative is worse. One would find that this cuckoo would grow in the nest and that other items would have to be thrown out in order to

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accommodate it. The educational group in this House would not say, "We do not need any more money for education after all. We shall leave it all for the elderly". The transport group, meeting for another debate, would not say, "We'll drop all our extra transport needs so that all the money can go on the elderly". There would be competition for the funds.

If the plan were not dropped, services would be jettisoned. Care workers would be made to work not more sensitively but harder, simply to get through the physical business. Care home fees, which at present are quite inadequate to enable businesses to keep up standards, would be further compressed. One would find home helps being sacked. There would be less intermediate care and less support for care in the community. In the end, a policy developed for the best of reasons--to help elderly people to achieve the dignity in their old age which they deserve--would have the worst of consequences: worse services and free care but terrible care.

That is why, in my view, the pleas for free personal care must be rejected. I am afraid that Scotland may be undergoing a controlled experiment in this area. If that were to happen, I should feel very sad for elderly people in Scotland. They will believe that they are receiving something great. However, in the end what they receive will not be something great but a tragedy.

Baroness Carnegy of Lour: My Lords, I intervene briefly before the noble Lord concludes his speech. As someone who lives in Scotland, I have listened to his remarks with enormous interest. Would he be prepared to send his speech and any supplementary remarks to his political colleague, Susan Deacon, who is the responsible Minister in Scotland? She would be very interested in them.

Lord Lipsey: My Lords, I have been in touch with Scottish opinion. I do not think that Susan Deacon is the person to whom my words need most closely to be addressed. She appreciates the problems quite well. However, I take the spirit of the noble Baroness's point. I assure her that I shall do everything in my power to point out to the people of Scotland that if they want the policy, they may have it, but that if they obtain it, they should do so with full knowledge of the consequences of what they are entering into. If they want it, they should have it. However, I hope that they will decide at the end of the day that that is not the best thing for their country.

10.15 p.m.

The Earl of Listowel: My Lords, I thank the Minister for his helpful opening speech and for his useful written briefing. I express my concern, which is shared by many noble Lords who have spoken this evening, including my noble friend Lady Masham of Ilton and the noble Lord, Lord Rea, about the abolition of community health councils. I note the welcome given to the Bill from all sides of the House. In the brief time that is available to me, I shall concentrate on one matter.

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While the current arrangements for complaints against the NHS need improvement, there is disquiet about the fact that the new arrangements will be less independent and assertive. Community health councils sometimes work well for patients. The Office for National Statistics reports that 10 per cent of five to 15-year-olds have a diagnosable mental health problem. Other research suggests that if one includes older adolescents in that statistic, the appropriate figure is closer to 20 per cent. Parents who see their child losing interest in life, obsessively washing his hands or dieting, or becoming extraordinarily excitable can wait for a year after an initial consultation for treatment to begin. Provision for child and adolescent mental health is notoriously patchy and under-resourced in the NHS. Parents who have felt helpless in the sight of their child's deteriorating behaviour have found community health councils on occasion to be tough and effective advocates on their behalf. We need strong reassurance from the Minister that the new arrangements will be at least as aggressive or effective as the best community health councils in ensuring that patients have access to necessary services.

I look forward to hearing the Minister's response to some specific concerns; namely: that the proposed new bodies do not have the same powers that community health councils have in statute; that by seeking to abolish community health councils with immediate effect, the Bill mitigates against the smooth transition of skills and experience from one structure to another, which will be to the detriment of patients; that the Bill seeks to abolish the Association of Community Health Councils for England and Wales but puts no national body in its place--a concern allied to that expressed by the noble Lord, Lord Rea; and that the Bill leaves far too much detail to the discretion of the Secretary of State.

10.19 p.m.

Lord Harris of Haringey: My Lords, I declare an interest as a former director of the Association of Community Health Councils for England and Wales and as a current member of the Greater London Assembly, of the London ambulance trust board and of the executive of the Local Government Association.

I begin by making it clear that I am a keen supporter of the Bill. The NHS Plan has been widely welcomed in the House. It is appropriate that at the earliest opportunity the Government should seek to give legislative backing to their modernisation of the NHS. There are many matters in the Bill that I would like to raise, but your Lordships will be relieved to learn that I shall discuss only three--that may be three too many--in this speech: the arrangements for care trusts, the extension of the local authority scrutiny role to the NHS and the proposals to reconstitute the system of patient representation in the NHS.

I, of course, fully support the ambitions set out in the NHS Plan for more integrated health and social care. Service users want their care to be seamless. They

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are not interested in what to them are the artificial boundaries that exist between the health services and local authority social care services. And there is no doubt that care trusts could be an important way to deliver more seamless care to service users based on voluntary partnerships between health and local government. However, like others, I am concerned that as NHS bodies, care trusts will not reflect the strengths of both partners--the NHS and local government--and it is important that the governance arrangements for the new voluntary care trusts truly reflect the joint nature of the new bodies.

Those arrangements must be based on a partnership of equals. Yet the Bill makes it clear that voluntary care trusts will be NHS bodies and that implies that local councils and the social care for which they are responsible may be left as the junior partner. The need to ensure that the new bodies draw on the expertise of both local government and the NHS is demonstrated by recent research on the experience in Northern Ireland where health and social care have been merged for some time. That suggests that resources are disproportionately tied up in acute care at the expense of adequately developed services in the community.

That research also shows that the location of social care within a health bureaucracy results in the domination of the medical model of needs assessment, marginalising the consideration of other needs such as those associated with social care, housing and deprivation. That makes it imperative that the governance arrangements for care trusts reflect the need for an equal partnership, and that care trusts should have fundamentally different governance and management arrangements to PCTs and NHS trusts with elected local authority members retaining a clear accountability line back to the local authority.

Indeed, it is essential that local authority members sitting on the care trust board are selected by the local authority and are clearly seen to be representing that local authority. It is inappropriate that the new Independent Appointments Commission should be given the task of substituting its selection of elected members for those that are democratically chosen by the local authority in question. The councillors' elected status should be the crucial determinant in such matters, otherwise, we could have the absurdity of the commission appointing Labour elected members to sit on a care trust board serving an area with a predominantly Conservative local authority; or perhaps vice versa.

I should now like to turn to the new scrutiny arrangements. I am particularly pleased to see that the Bill envisages the extension of the local authority scrutiny role to the health service. This further strengthens the councils' roles as community leaders and their existing responsibility to promote the health and wellbeing of local people. My view is that that process will work even better if there is an obligation on local councils to take note of reports submitted to them by patient forums and patient councils in carrying out their scrutiny work.

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However, the arrangements for London do not seem to be quite right. I would normally assume that the civil servants responsible for drafting the Bill had merely forgotten--yet again--London's specific needs. Yet this cannot be the case. Clause 10 devotes 19 lines to the specific problem of what will be the Common Council of the City of London. It would therefore seem that the omission of the London Assembly and the Greater London Authority from Clause 7(2) is a deliberate snub. Yet the London Assembly was set up as an exclusively scrutiny-oriented body.

It seems bizarre that the new arrangements for looking at the operation of the NHS in general across London, and in particular the operation of London-wide services, should not explicitly be provided for in this Bill. That potentially has enormous implications for, to take one example, the chief executive of the London Ambulance Service who will, as things stand, be required to attend 66 scrutiny meetings per year. That is two sessions with each of 32 boroughs and the common council. That would be more than one a week. If the GLA had the scrutiny function, it would not only be more appropriate, but also more efficient. I have no doubt that my noble friend the Minister will reassure us that that will be remedied by a government amendment in Committee.

At the heart of the Bill are proposals to place patients at the centre of the new NHS. It thus seems somewhat anomalous that the Bill would abolish community health councils. Last October I introduced a short debate in an Unstarred Question on this matter. At that time I expressed concern that the new arrangements would not be seen as genuinely independent of local NHS structures and that robust mechanisms are needed to be in place to ensure that various strands of work are integrated together effectively.

I am pleased that in the intervening few months the Government have listened and responded. The Bill as it emerged from another place will still abolish community health councils. However, the proposals coming forward are now very different from what was previously envisaged. Patients' forums will now be statutorily independent bodies. The issue of co-ordination and integration of work can now at least partially be addressed by the formation of patients' councils to co-ordinate the work of patients' forums and the Bill ensures that the Secretary of State will make provision for independent advocacy services.

That follows from the new clauses introduced in another place by my honourable friend David Hinchliffe. In doing so he made clear that they would need to be developed and built upon in your Lordships' House when he said that he makes no bones about the fact that he is proposing a framework that needs to be examined in more detail and that the amendments should be considered in your Lordships' House. It is encouraging that the Government were happy to accept David Hinchliffe's amendments, but they, together with your Lordships, now have a duty to get the details right.

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Perhaps I may deal, therefore, with advocacy and independence. Ministers still seem to be confusing the role of independent advocacy and the customer relations and support provided by the new PALS service. As recently as last month, a paper issued by the NHS Executive stated that PALS should act as a gateway for people who wish to access an independent advocacy service. Complainants who have had a bad experience will be put off returning to the trust premises to access it; the very problem that the proposed access to independent advocacy is designed to avoid.

The Bill as currently drafted places a duty on the Secretary of State to arrange the provision of independent advocacy services as he considers necessary to meet all reasonable requirements. However, there are no guarantees about the funding, commissioning or provision of these services. It is essential that that be clarified on the face of the Bill. I would argue that patients' councils should provide those services, not only because they will be--I hope--truly independent of the trust concerned, but also because it will permit the councils to integrate the lessons learnt from their advocacy cases into their wider work, one of the strengths of the better CHCs in the existing system.

I am also concerned that there is too much discretion given to the Secretary of State in Clause 17 as to whether or not to arrange these services. Indeed, the only safeguard of independence provides that:


    "services ... should, so far as is practicable, be independent of any person who is the subject of a relevant complaint or who is involved in investigating or adjudicating on such a complaint".

In other words, they do not have to be independent of bodies about which complaints may be made, only of the individuals who are complained of.

Patients forums and councils are intended to be independent, as are the advocacy services. However, in the Bill there is uncertainty about where their staff and secretariat support would be based, with the Department of Health suggesting that there is a strong case for them to be based with local authorities. A link with local authorities has many attractions. It would certainly improve integration with the scrutiny process. However, in my view a more logical approach would be to make the proposed national patients organisation responsible for the staffing and budgets of local patients' councils and forums.

The existing arrangements for the accountability framework and staffing and budget systems for CHCs are a mess. It would be a mistake to create something equally unsatisfactory. If I remember correctly, staff are notionally employed by a health authority, have pay and rations organised by an NHS trust, but are accountable and line managed by the NHS regional office. CHCs themselves are in practice either accountable to no one or to the NHS regional office. The role of the NHS regional office is not always benign. I am told that regional offices rang CHC staff to tell them that they would be in breach of their contracts of employment if they did anything to support ACHCEW's lobby of Parliament on the future of CHCs.

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Similarly, if the regional offices performance manage either CHCs or the new structures, the question arises: what is considered to be good performance--one that makes waves for the local NHS or one that is helpful and supportive? My own strongly-held view is that the proposed national organisation should have that role. That brings me to the proposed national organisation because there is nothing in the Bill about it. The Bill proposes the abolition of my former organisation, ACHCEW, but makes no provisions for a national overview of patient representation and involvement. ACHCEW is and was the national body representing patients' interests. It plays a key role in consultation with Government and with leading health professional and regulatory bodies. It also runs high profile monitoring campaigns such as Nationwide Casualty Watch and produces a range of publications for lay representatives and patients.

There is a clear requirement for a national body to take on a range of functions, including the training of staff and volunteers, exchange of best practice, establishing performance standards and the provision of expert advice, research and publications. Without such a body there will be significant inconsistencies in the quality of patient empowerment and public involvement throughout the country. Variability is the main charge that Ministers have levelled at CHCs to justify their abolition. It is ironic that the Bill as currently drafted, which introduces a plethora of bodies but without a national co-ordinating body, has patchiness built into it. The public has a right to the same standards of representation regardless of where they live. A government that opposes postcode prescribing should not seek to introduce postcode representation. In order to get a genuine overview of problems in the NHS the public needs a national body.

In the Second Reading debate in the other place the Secretary of State announced that the department would be funding work to look at the feasibility of forming a national patients' organisation to act as an independent umbrella body for NHS patients. However, that scoping study will not be completed until the end of next month. There are no guarantees that a new body will be established. Even if the report were to recommend it, the Government have apparently ruled out statutory status. That is a wrong judgment. Statutory status is needed to ensure its independence and protection from changing opinion within the Department of Health. Without it, any national body would be liable to abolition or loss of funding without parliamentary debate.

I have always believed that CHCs need to change and be reformed; certainly, I said as much repeatedly when I was director of ACHCEW, which did not always enhance my popularity with some of the CHCs, particularly those most in need of change. But the NHS Plan as initially described was, at least as far as concerned CHCs, not about reform and could have left patients with a deeply flawed representative structure. The Bill as now amended is very different; indeed, the arrangements proposed are almost robust

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and make sense. It will not take much to get them right, and I hope that that happens before the Bill leaves your Lordships' House.

10.32 p.m.

Baroness Northover: My Lords, we share the Government's welcome commitment to the NHS, but we also agree that the NHS needs to change and move on. Patients have a right to expect a high quality service with equality of access to provision wherever they live. Will this Bill help to achieve that? This is a complex measure which rushes to the wire. If there is an election in April the Bill will not pass into law; even with a May election things will be very tight. There is very little time for detailed analysis of how the provisions will work, yet they may have an effect for years to come.

As my noble friend Lord Clement-Jones explained, we welcome some of the provisions of the Bill. However, there are a number of areas which concern us and, clearly, other noble Lords as well. Our concerns focus on three main areas. The first is the missed opportunity to cover personal as well as nursing care for those in residential care. The second is the astonishing abolition of community health councils without adequate, let alone improved, replacements. The third centres on the Bill's proposals for the handling of patient information. Other issues also concern us, some of which I shall mention. However, I shall focus most of my remarks on those three areas. In failing to adopt the Royal Commission's recommendations that personal as well as nursing care should be free the Government impoverish those who receive such care, cause confusion and place those who look after them in an impossible situation. The NHS was set up to help alleviate the burden of poverty on those who had the misfortune to fall ill. Surely, in the same way we should seek to help, not penalise, the most frail, as the noble Baroness, Lady Greengross, put it.

As my noble friend Lord Clement-Jones and many other noble Lords have said, it is wholly illogical to maintain a division between nursing and personal care. How invidious it will be for the poor nurse who must arbitrate here, thus undermining his or her relationship with those for whom he or she cares. If he or she changes a dressing it is free; if a care assistant does it, no doubt a form will need to be filled out so that it is paid for.

The RCN's definition of nursing quoted tonight by the right reverend Prelate the Bishop of Lichfield included bathing, feeding, toileting and comforting, which I somehow believe is not the Government's definition of "nursing care". Meanwhile, Scotland looks set to abandon the division between nursing and personal care. The Welsh Assembly, too, has signalled that it would wish to consider doing the same if only it had the power to do so. Surely that is an area, on the basis both of fairness and workability, that must be re-examined.

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We do not share the Doomsday scenario of the noble Lord, Lord Lipsey. This proposal is fully costed in our alternative Budget. I would commend that to the noble Lord.

The second issue is the abolition of CHCs. Tonight there has been overwhelming opposition by noble Lords to that. On these Benches we are astonished and alarmed at the plan to abolish CHCs without adequate and more effective replacement. Surely, we all agree that the health service must work in partnership with patients and not act as a paternalistic body. The Minister said that patients must have more say. The Secretary of State made the point in another place that patients need a complaints system that is accessible, open and independent. He said that they need helping through it and they need also to be able to assess the performance of their local health service. Yes, indeed; but if that is so why propose this fragmented system? A system that the noble Earl, Lord Howe, rightly called a mishmash and the noble Baroness, Lady Fookes, described as a hydra.

I agree with the noble Baroness, Lady Ashton, that patients must be heard. But this proposal with all its different elements in different settings, semi-independent with few teeth, with no costings and with a complaints system which is waiting on a report from the department of health? Not only does the proposal destroy the watchdog role of the CHC, it removes the only real assistance there was in the complaints procedure.

A complaints procedure must be transparent, independent, simple to understand and cover all aspects of care. Above all, it has to be seen from the patient's point of view. How on earth can patients, unfamiliar with health trusts, patients' self-selecting forums, PALS, scrutiny committees and so on, possibly hope to feel that they know how to take a complaint through?

I remember when I was on a family practitioner committee how inadequate the complaints system seemed. Now we have a rising tide of legal challenges to medical practice with a huge financial price tag attached. Surely where it is possible for a patient to feel that he or she is being listened to, we should devise systems with their viewpoint in mind, not the chief executive of the trust or the Secretary of State or anyone else from within the system?

At least being pointed to a CHC for help was a step on the way. Where is the one-stop shop in this proposal? CHCs may need reform, but babies and bathwater do indeed come to mind. To be charitable, I might conclude that the Government may have plans, but that they are not ready. Otherwise, these are astonishing proposals.

The third issue is that of patient information. It has to be a cause for concern when the GMC indicates that the supply of patient information may breach patient confidentiality, while the cancer registries fear that they will not receive data that they need and medical charities and pharmaceutical companies say that data are essential to their effectiveness. All agree that the Secretary of State is taking powers that are far too wide-ranging.

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There is clearly a balance to be worked out on confidential patient information between the right of the patient to confidentiality and the need for patient information by cancer registries and others to conduct research in the public interest. I have no doubt at all that the vast majority of patients are only too happy that others should benefit from their experiences. I therefore note with great concern the letter from Sir Donald Irvine, President of the GMC, and others in The Times of 7th February of this year in which they state that,


    "any decision to override the citizen's right to privacy should be exceptional and must only be made--other than in an extreme medical emergency-- after rigorous parliamentary scrutiny rather than by order of a Secretary of State".

The GMC now seeks to see proposed regulations on the face of the Bill. I note what the noble Lord, Lord Rea, had to say on that.

On anonymised data, sympathise though I might with a Secretary of State who does not wish to see NHS costs driven up by the pharmaceutical industry, I am very concerned again at the powers he intends to take. Too much discretion in the Secretary of State's hands could prove a temptation in areas where there is conflict of interest; for example, in whether to allow into the public domain anonymised data that would reflect poorly on the Government's performance. That kind of decision is far better held in independent hands.

On the subject of medical research and public health, I take very seriously the fact that the noble Lord, Lord Turnberg, is not yet comfortable with this clause. I trust that when we have passed amendments he will indeed be comfortable.

Besides these three key areas, a number of issues have come up in the debate today. We give a cautious welcome to the traffic light system for hospitals, but could not the department have come up with a happier way of describing hospitals that are not coming up to scratch? What are patients to make of their hospital suddenly becoming a red light hospital?

We also give a cautious welcome to care trusts, since we have long advocated better integration between health and social services. But we note the concern expressed by various organisations about an unequal partnership. Malcolm Dean in the Guardian on 14th February described care trusts as potential "Trojan horses" unless that partnership is equal: social services must not simply see their resources drained by the acute needs of a dominant NHS.

In summary, it does seem to me that it is in those areas where the Government should be listening to patients that we have most problems with the Bill. And that is over personal care, ensuring that the patient's voice is heard, and in the use of their own information. The NHS is for patients; it is for the public.

I trust that over the next month or so the Government will address the questions that remain to be answered. As the Government try to get the Bill on the statute book before the election, I trust that we will not entrench avoidable problems in a health service that could well do without them.

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10.43 p.m.

Lord Astor of Hever: My Lords, this debate has been of very high quality and characteristically well informed. That is not surprising, given the knowledge and experience of so many eminent speakers. The noble and learned Lord, Lord Archer, felt that he was intruding into health matters away from his normal subjects. I very much enjoyed his speech and hope that we will hear much more from him in the future on health matters.

The Government fought the last election on a promise to save the NHS. The health service would see dramatic improvements under their stewardship. But waiting lists are higher, the number of nurse vacancies stands at 20,000 and the NHS is in almost year-round crisis. Official Department of Health figures reveal that only 110 extra family doctors were recruited last year. The BMA has described this as a disaster and has warned that patients' lives will be put at risk unless the Government change their policy to take account of this recruitment crisis. What is the reaction of the Government? "We just do not seem able to get Ministers to listen", said the deputy chairman of the GPs' committee of the BMA. "They seem absolutely bent on ignoring everything we say".

The Government also ignored much of what honourable Members wished to say at the Report stage of the Bill in the other place. Many amendments were not debated or received only scant consideration. Some 15 pages of government amendments were tabled to what was an 80-page Bill. More to the point, the Government tabled those amendments at the last possible moment. As a result, it was virtually impossible for Members to consult with the many outside bodies interested in the Bill. Accordingly, it is the responsibility of your Lordships' House to rectify this. I trust that we shall be given sufficient time properly to scrutinise the Bill.

We on these Benches regard the Bill as something of a curate's egg, good in parts but bad in others. As my noble friend Lord Howe pointed out, there are aspects of the Bill which we very much welcome. Given the time constraints and the sheer length of the Bill, I can touch on only a few areas which are causing us, along with many organisations that have written to us, the most concern. We are concerned that the Government's policy objectives, set out in the NHS Plan, could be stifled by over-prescriptive target setting and a centralised bureaucracy within the NHS. After all, the NHS is an organisation of over 1 million people and accounts for almost 6 per cent of GDP. The Government's belief that such a vast and diverse entity can be centrally controlled and managed effectively from a single Minister's desk is dangerously misguided. My noble friend Lady Carnegy made that point very well, as did my noble friend Lady Noakes so persuasively in her contribution to the debate on the Address.

At the heart of the Bill lies the Government's proposal to abolish, arbitrarily and without any consultation, the only independent voice of patients and communities, the community health councils. This

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has been received with almost unanimous rightful indignation from all parts of this House tonight and the other place. My noble friend Lady Fookes and the noble Baroness, Lady Masham, spoke eloquently of the disruption that will be caused by the changes. The BMA has voiced its severe reservations, as did the National Association of Citizens Advice Bureaux, MIND, the King's Fund, the Royal College of Nursing and the Law Society. Numerous other letters of concern and critical briefings are piled high on my desk, many from within my own county. South East Kent CHC played a pivotal role in the exposure of Rodney Ledward.

Despite Clauses 13 and 17 being incorporated into the Bill in the other place, our concerns about the Government's proposals remain very strong. The Government are riding roughshod over the concerns of patients and professional bodies. While we do not expect the Government to listen, we do feel that they should be made fully aware of the strength of feeling on this matter. We hope, therefore, that the Government will now drop their plans to scrap the CHCs and will instead resource and improve them. In the meantime, I very much echo the question put by the noble Lord, Lord Clement-Jones, as to the real cost of the CHC replacement.

Many noble Lords mentioned care trusts. While a cautious welcome has been extended to voluntary establishment, organisations such as the BMA and the RCN are concerned about the compulsory creation of a care trust against the wishes of local bodies and individuals. We shall want to return to several aspects of this in Committee, in particular to the issues of by whom and by what means the process for assessing and deciding upon failed performance will be triggered; the criteria for inadequate performance; and what kind of resources and support will be available for care trusts where they are imposed as a result of a failing categorisation. We shall also wish to explore how progress will be monitored and what will happen if it is not satisfactory.

My noble friend Lord Howe welcomed the extension of prescribing rights to a wider range of health professionals. Here I pay particular tribute to my noble friend Lady Cumberlege, who is not able to speak in the debate through illness. She has long been a champion of nurse prescribing.

I should like clarification from the Minister on two points. First, there must be absolute clarity about who retains clinical responsibility. Will those with prescribing rights be independent of existing prescribers such as GPs and consultants or will they be dependent on an existing prescriber who would take ultimate responsibility for the decision? Secondly, can the Minister confirm that any advisory body created to consider and advise Ministers on the award of additional prescribing rights will include representatives of relevant professional groups, including doctors, nurses and pharmacists?

The noble Baroness, Lady Ashton, touched on performance grading for access to supplementary funding--the traffic light proposals to evaluate NHS

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bodies. The King's Fund, among others, has raised a series of concerns about this approach to evaluation and funding. It may make evaluation more simple but it could well lead to some bodies being unfairly treated. In particular, bodies labelled as "red" or "failing" are likely to have a severe impact on patient confidence and staff morale, which, as my noble friend Lord Howe said, is very low at the moment.

The RCN also does not believe that it is right for a quota of NHS bodies to be determined in advance. The organisations categorised as "green", "yellow" and "red", should be determined on merit, rather than having a system whereby a certain proportion of organisations would be bound to be categorised as failing each time.

Clause 20 allows the Secretary of State to intervene in poorly performing NHS organisations. These are considerable powers and the Opposition believe that they should be used only in the most serious or extreme circumstances. We shall want to question in Committee how an intervention order will be brought to an end and whether the bodies with interim control will be informed of clear targets before autonomy is returned.

Many noble Lords were worried about Clause 67, which was tacked on to the end of the Bill and is well beyond the Government's proposals outlined in the NHS Plan. This clause was rushed through the other place without consultation with any interested groups, including patients, doctors and medical researchers. Groups ranging from medical charities to professional bodies have expressed their deep concern at the sweeping powers which the Secretary of State will secure over the use of identifiable and anonymised patient data. Despite some minor amendments in the other place--albeit not on the face of the Bill--this clause is profoundly objectionable in form and substance. It would cast a very wide net over many medical, research and other currently legal activities, and I hope that the Government will think again.

Many noble Lords mentioned the extension of free nursing care to residents of nursing homes, which, as my noble friend Lord Howe said, we welcome. However, the RCN is extremely concerned at the very narrow definition of nursing care that the Government are using and propose to fund. This concerned my noble friend Lady Fookes and the noble Baroness, Lady Wilkins, among others.

The Government's definition excludes nursing care provided by healthcare assistants, but they deliver much of the nursing care received by frail older people in nursing homes, as was so eloquently portrayed by the two right reverend Prelates. I hope the Minister will address this important point in his reply.

My noble friend Lady Hanham was concerned about possible conflicts of interest when members of the patients' forums are appointed as non-executive directors of their trust board. This is an important point and I look forward to the Minister's response.

The noble Lord, Lord Rix, fresh from his valiant efforts on the Special Educational Needs and Disability Bill, made some excellent points about

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people with learning difficulties. As the father of an autistic daughter, I fully support the noble Lord's wish for a place for them in dental, pharmaceutical and community services.

We on these Benches are adamant that proper, robust scrutiny of the Bill is essential. We share many of the varied and legitimate concerns expressed tonight and look forward to returning to them constructively in Committee.

10.56 p.m.

Lord Hunt of Kings Heath: My Lords, I agree with the noble Lord, Lord Astor, that this has been an excellent and wide-ranging debate. It has encapsulated both the ambitious nature of the Government's plans for the NHS and social care. It has also identified many of the key challenges that we face.

Many points have been raised. I shall attempt to deal with the key points; and I have no doubt that in Committee, as noble Lords have threatened, we shall deal with the others in ever-loving detail. Indeed, I noted that most noble Lords welcomed the Bill in about 10 seconds, and then proceeded to spend the rest of their speeches attempting to demolish bits of it. Although there is clearly disagreement among noble Lords over some aspects of the Bill, we start from a foundation where there is broad support for many of the aims contained in it. That is a healthy foundation on which to move.

I begin with the important issue of support and care for older people. The matter has exercised your Lordships on many occasions, and it is one in which I have a great deal of interest. Although it has been claimed in the debate that the Government's decision with regard to nursing care and personal care will lead to discrimination, the fact is that from October this year anyone who is already paying for his or her own nursing care in a nursing home or who is considering a move to a nursing home can approach their local health authority or primary care trust and ask for their nursing needs to be assessed and paid for by the NHS. That is surely a major advance and needs to be seen as such.

I have listened again, as I did some weeks ago, to the calls for personal care to be made free. The Government's position has not changed. We believe that the extra resources that we are bringing should be spent so as to benefit as many older people as possible. We are spending 1 billion on health and social services for older people across the board. We believe that the targeting of public money at a larger number of older people, preventing them from having to go into residential care in the first place and investing in intermediate care, will at the end of the day provide a more effective range of services for many more older people than free personal care would provide.

The noble Baroness, Lady Barker, made references to intermediate care. I believe that what we are proposing to undertake is providing, and will provide, an enormously wide range of care and services that will promote independence and improve the quality of care. At the end of the day, when it comes to a choice of

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provision of intermediate care services or free personal care, I believe that the provision of intermediate care services, with all that that means about promoting independence and the rehabilitation of people, is the right way to spend our resources.

A number of speakers, the noble Baroness, Lady Fookes, in particular, believe that it is unworkable to make a split between nursing care and personal care. I have to say that the split between NHS and personal social care provision has been a feature of our welfare services for many years. The Royal Commission believed that it is possible to distinguish between nursing care and personal care. The improved procedures that we are developing for assessing nursing requirements and the input of registered nurses are being developed with several organisations, including the RCN, Help the Aged and the Alzheimer's Disease Society.

The assessment of an individual's current and future nursing care needs will be undertaken by NHS nurses, using a standard approach as part of a single, multidisciplinary assessment. The assessment tool for this purpose will be published as part of the national service framework for older people. The aim is to ensure that nursing care is free wherever it is received. The definition that we have used clearly covers all care that requires the skills and experience of a registered nurse. Far from being discriminatory, surely that is a clear, fair and capable definition that can be applied on a consistent basis. Indeed, all the alternative definitions that have been proposed begin to break down the distinction between free nursing care and free personal care, either for care delivered by certain groups or to certain patients.

When a person's need is primarily a health need defined by continuing care criteria, all his or her care in a nursing home is funded by the NHS in the same way as applies in a hospital. However, for the vast majority of nursing home residents, where their need for nursing care is additional to their need for accommodation and personal care, the intention is to provide free nursing care in nursing homes in the same way as it would be provided in a person's own home or in a residential home where personal care is provided by carers or care assistants and the registered nurse provides nursing expertise. In those settings, bathing, feeding, dressing and toileting are provided by carers, either paid or unpaid, and, where applicable, charged for after a means test. The definition at which we have arrived most closely represents the extra care received in a nursing home compared to a residential home--that is, care provided by a registered nurse with her experience and skills.

Surrounding this debate is very much the issue of the overall care for older people. The right reverend Prelate the Bishop of Lichfield referred earlier to age discrimination, as did the noble Lord, Lord Clement-Jones. Perhaps I may make this abundantly clear, as I have done previously in this House. There is no place for age discrimination in the National Health Service.

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The national service framework, which I can assure the noble Baroness, Lady Barker, will be published soon, will address these issues with great care.

I have paid a great deal of attention to the issues raised by my noble and learned friend Lord Archer of Sandwell in relation to dementia and, indeed, to the points raised by the noble Lord, Lord Rix, regarding learning disabilities. I have a great deal of sympathy with the view that these are major health and social care issues which must be tackled. But what I cannot agree with is that one can decide that one can provide free personal care for some category of provision in relation to different groups such as people suffering from dementia or people suffering from learning disabilities and not for other categories. I think in the end it would prove to be very difficult to draw such a distinction.

I believe that making personal care free for everyone would not necessarily improve the quality of services; it would not help the least well off. I believe that investment in intermediate care is the most appropriate way to use the increased resources that we have available alongside what I believe to have been a very good decision in relation to free nursing care.

A number of questions were asked about preserved rights. I make it clear that 86 million extra will be available to local authorities on top of the current costs to the Department of Social Security of the preserved rights scheme. That is in recognition of the way preserved right funding has fallen behind the cost of local authority packages of care in recent years.

I turn to the issue of patient information. I assure the noble Earl, Lord Howe, and the noble Lord, Lord Astor of Hever, that the powers in the Bill to allow the use of patient confidential information without consent are intended to be used only to safeguard the continued operation of key services that are in the patient and public interest and cannot be carried out by other means. Indeed, those safeguards are built into the Bill. But, as the noble Lord, Lord Clement-Jones, pointed out, the GMC guidance which comes into operation in October would not permit the use of patient information without consent.

The proposals in the Bill are not a long-term solution to the use of patient information. We agree with the GMC that the only sustainable base for the use of patient confidential information is informed consent. As the technology becomes available to allow the use of anonymised data, we shall be able to move away from the use of confidential information in many areas. But this is not the every day experience in the NHS today. It will take time to move the culture and processes of the NHS on to a proper use of informed consent. The powers in the Bill will allow key services to continue to use patient information in the meantime, protecting the work of cancer registries and others.

I say to my noble friend Lord Rea that we do not accept that a list of all the uses of patient information without the need for consent can be drawn up in Whitehall and written into the Bill. One simple argument against this approach is that the list will

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change. New technology will allow some services to move to anonymised data. A central list is also bound to miss out key services. That is why we propose that individual uses of information are identified in regulations once they have been through a rigorous and transparent series of safeguards to make sure that the use of the powers in the Bill are appropriate. These safeguards include an expert advisory committee to advise the Secretary of State. A proposal will have to be in the patient or public interest. There must be no other reasonably practical alternative to using patient information without consent. The Secretary of State must consult before laying the regulations. The regulations will have to be made under the affirmative procedure, debated and voted on in both Houses. Once in place, the Secretary of State is required to review the regulations on an annual basis to ensure that they continue to meet these criteria.

This approach allows the medical community to identify the uses; disease registries, medical research, and public health, and then subject proposals to rigorous tests before the use of the power. These are clear, transparent safeguards; a process that allows the NHS the opportunity to identify the use of patient information but at the same time a process that the Data Protection Commissioner recognises as safeguarding patients' rights.

I turn to the outlawing of the use of anonymised data for commercial purposes. The powers in the Bill allow the Secretary of State to make regulations controlling the release or processing of patient or patient derived data for commercial purposes. I stress the term "commercial purposes". We believe that those powers are necessary to prevent the use of this information in ways that are to the detriment of the NHS. A prime example is the recent Source Informatics case where a data processing company was using prescribing data to target marketing efforts and drive up drugs costs--a process that would not be beneficial to patients or the NHS. The Bill provides the Secretary of State with the powers he needs to stop that kind of activity.

But we have sought to reassure the pharmaceutical industry that our concern is with the use of information for targeted marketing which would unnecessarily increase the burden of NHS finance. That would not be done without consultation. Regulations would have to be brought forward; and any action would be targeted and focused.

On the issues raised by my noble friend Lord Turnberg, anonymised data can be used for any purpose unless it is a specific purpose which the Secretary of State has prevented by regulations under Clause 67. I understand some of the concerns he raised, particularly those concerning the Public Health Laboratory Service. I understand that the definition of medical purposes is broad enough to encompass all the important public health work undertaken by the PHLS. I am happy to discuss this matter with him further between now and the next stage of the Bill.

I turn to care trusts. I believe that these are an important mechanism to bring together health and health-related local authority services to deliver

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integrated care to local people. I want to respond to many points raised, in particular by my noble friend Lord Harris, on whether it is a true partnership. It is a true partnership; it is not a takeover by the NHS. The importance of the local authority is protected by the process for establishing a care trust. All local partners must agree that a care trust is the right approach. Local authority members will be guaranteed representation on the care trust's board. The local authority retains overall responsibility for the functions delegated to the care trust. The care trust will be accountable to the authority. Any of the partners can apply to withdraw from the care trust.

Perhaps I may say to my noble friend Lady Wilkins that I understand the fear that a care trust would operate under the philosophy of a medical model as opposed to a social model. I believe that the involvement of local authorities in such a positive partnership way would ensure that one would involve the best of a social and medical model of care so that one was able to provide a more co-ordinated and integrated set of services. Of course, a local authority would have to give its agreement and support for a care trust to be formed. Surely that is one of the issues which a local authority would bring to the table.

On funding and payment for services, perhaps I may say to the noble Baroness, Lady Masham--I think that it is clear from what I have already said in relation to nursing and personal care--that the Government remain committed to the principle that NHS care should be free at the point of delivery. In relation to care trusts, a local authority would remain responsible for the charging policy of those services on which it has discretionary powers. When people are assessed for a range of services, they clearly will need to be informed for which of the services they would be charged. That means that clear information will need to be given to users and appropriate training to staff.

Many noble Lords raised the issue of community health councils. I have to confess that I was one of the first community health council secretaries ever appointed, back in 1975. I shall be for ever grateful for that experience. There is no doubt that CHCs were a much-needed jolt to a rather complacent National Health Service. I certainly agree with the noble Earl, Lord Listowel, that many CHCs, their staff and members, have done sterling work over those years.

The noble Earl, Lord Howe, asked about the record of CHCs. Looking back over the past 25 years, I do not believe that they have fulfilled all that was hoped for from them. The noble Baroness, Lady Fookes, raised the same question. Fifty two years after its formation, the National Health Service still exhibits too many characteristics of a producer-led philosophy. There is still too much paternalism towards the users of its services, it is still too slow to deal with patients' concerns on the spot, and it is still not open to sufficient local scrutiny on major changes of services.

That is where our proposals come in. Far from stifling or inhibiting user involvement or patient representation, we are enhancing it and giving it a much bigger punch than it has ever had before. That is the test on which our proposals must stand or fall.

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I first came across the system of patient representation in the United States 15 years ago. I have always been impressed with the fact that hospitals in the US have members of staff whose job is to deal with problems for patients the moment that they arise. The patient advocacy and liaison service will be very effective in sorting out issues immediately rather than letting them gestate, ultimately forcing people to go through what we all agree can often be a very bureaucratic complaints service.

In our proposals in the Bill and the plan, we have recognised the need to ensure the independence of patient representatives, but they also reflect the important need to ensure that the patient's voice is heard in the NHS and to bring about change. We need to strike a balance between independence and influence. In some cases it is clear that independence is paramount. That is where the independent patient advocacy service comes into play, enabling support to be given to complaints, independent of the body about which the complaint is made. We have recognised the importance of requiring independent advocacy services to be established across the country for the first time. I agree that it is also important that people should not have to go through the PALS service to get access to that independent advocacy service. I assure noble Lords that approaches can be made directly. We also believe that NHS Direct will have an important role to play.

Patients' fora--if I may use the word--will have a positive role in bringing the concerns of patients to the attention of the board of NHS trusts. I listened very carefully to the questions of the noble Baroness, Lady Hanham, about the role of the non-executive director. I do not share her concerns about a person appointed through the patients' forum also serving as a corporate member of the board. The health service has a happy history of people wearing more than one hat on the boards of NHS trusts, including local authority councillors and, dare I say, doctors. It will be possible to make the arrangements work effectively.

We shall develop our ideas on the appointments process, but the independent appointments commission will have a role in overseeing the arrangements. We shall need to come to the issue that the noble Baroness has raised about the number of non-executives on the board.

The noble Earl, Lord Listowel, and my noble friend Lord Harris referred to a national patients' body. We have listened to the calls from patient groups which press the need for a national patients' body. We also recognise the need for a body to provide support, guidance, training, development and public representation in relation to patient care. Following a proposal from leading patients' organisations, we are funding a feasibility study about how such a national body would work in practice. We shall look to develop any proposals which emerge from that project.

I sense that my time is nearly up. Perhaps I may conclude by commenting on the suggestion that the Bill is rather centralist, as the noble Earl, Lord Howe,

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said. The debate about central and local direction in the health service has been with the NHS since its formation in 1948. The government of which the noble Earl had the honour to be a member dabbled in this matter. I remember that at one stage during their stewardship, they managed to produce 57 different priorities for the NHS. They had a record of continuous restructuring, and they gave us the internal market, which produced an enormous bureaucratic overload.

However, despite that, the NHS was left with a great deal of inconsistency, with postcode rationing and with a slow take-up of new medicines, technology and treatment. We introduced mechanisms such as NICE, the Commission for Health Improvement and National Service Frameworks in order to achieve greater consistency.

I believe that the new powers in the Bill are wholly in line with the aim for consistency; for example, Clause 6 seeks to direct trusts in relation to the terms and conditions of employment of staff. That is necessary in order to implement consistent pay modernisation across the NHS. Clause 20 seeks to create new powers which will allow the Secretary of State to replace management teams in the NHS in cases of extreme failure. Alongside the power to enforce the coming together of NHS local authorities as care trusts, both those provisions are backstop measures to be used only as a last resort. However, the NHS cannot and should not sustain failure. I believe that it would be irresponsible of us not to introduce measures to improve performance where there is clear evidence of problems.

It is important that the Bill also recognises the benefit of local leadership and ownership. That is crucially important in relation to earned autonomy. The NHS must be rewarded with few strings attached to successful organisations but with more intervention in the case of those which fail to keep up with the level of the best. Surely that is the answer to the perennial issue of striking a balance between central and local control in the National Health Service--that is, to provide the incentives for organisations that perform well to be given more freedom and to intervene more with the weaker organisations.

There are other ways in which to push down responsibility; for example, by giving health authorities more control in relation to the suspension and distribution of GPs. Local pharmaceutical services will depend on the leadership role from health authorities. At the same time, primary care trusts will take on more and more responsibility for the commissioning of services, and an independent appointments commission will take over from Ministers responsibility for appointing non-executives. I do not accept the charge that the Bill is over-centralising. I consider that it provides a sensible balance between national consistency and local ownership.

In conclusion, we have had an excellent debate which no doubt will be continued in Committee. I believe that the Bill represents an important plank in

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our armoury of establishing NHS and social care services as a beacon for excellence in our society today. We face enormous challenges in transforming those services, and I believe that the Bill will help us on the way.


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