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Earl Howe moved Amendment No. 12:

The noble Earl said: In moving Amendment No. 12, I shall speak also to Amendment No. 13. I want to raise two specific issues relating to the public constituency where the Government's intentions are far from clear. As the Bill reads at the moment, any member of the public falling within the definition of paragraph 3(1)(a) and (b) is eligible to become a member of the public constituency. Personally, I have a problem with the idea that someone from abroad who has no entitlement to comprehensive free care under the NHS might nevertheless be able to vote in the elections for the board of governors. It does not seem to me that such a person has a right to influence the way in which an NHS hospital is run, even if he happens to have received, let us say, free emergency treatment there.

I also have a problem with the idea that babies and children could be given a vote. There is no minimum voting age specified in the schedule, and I must ask why that is. I beg to move.

Lord Warner: To some extent we went into this territory earlier today. The essence of those earlier arguments was that the legislation deliberately sets out only minimum eligibility requirements for membership

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of NHS foundation trusts. So this allows individual NHS foundation trusts the flexibility to tailor their own arrangements to meet local circumstances and on the basis of their own consultation. As I said earlier, we do not want to go back to this model of trying to set out all the detail on this in legislation from the centre.

On Amendments Nos. 12 and 13, spoken to by the noble Earl, I comment as follows. Although NHS foundation trusts will be part of the NHS and their primary purpose will be the treatment of NHS patients, it is right that the majority of their public constituencies should be people who have used, or are likely to use, NHS services provided by that trust.

However, individual NHS foundation trusts may decide that it is appropriate to offer membership to private patients with an interest in that NHS foundation trust. There are specialist bodies with international reputations which provide services over a long period of time, often to groups of people from other countries, and there is an ability to move around increasingly, particularly within Europe, to secure specialist services which may not be available in another person's country. We do not believe that it is right to actually lay down in law those kind of restrictions. We are happy to leave this to the judgment of people at the local foundation trust level.

I can see what the noble Earl is getting at regarding the provision on children. Again we think that the NHS foundation trusts should have flexibility to decide whether and how to include children in membership. Some children and their parents and carers have long-running contact with the NHS. Some trusts may, for example, decide that it is appropriate for parents as carers to represent their children's interests. We would prefer to leave that flexibility in the legislation rather than trying to rule out those issues.

Earl Howe: I thank the Minister for his reply. I would just say that I do not read my amendment, even reading it again, as being about private patients, but rather about those individuals entitled to free care under the NHS, which is rather a different matter. But I am amazed in many ways by the Minister's reply. He seems to be saying that issues of this magnitude—namely, voting by babies and the enfranchisement of asylum seekers—should be for each foundation trust to determine. They will have a great deal on their plates. Issues of that kind should not be added to their work.

The Government have not stopped short of being prescriptive on a whole range of detail relating to the constitution of a foundation trust, yet on these broad issues of principle—constitutional principles in the widest sense—they apparently remain willing to impose the responsibility on foundation trusts. I find that quite extraordinary. There is time for reflection between now and the Report stage. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

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Earl Howe moved Amendment No. 14:

    Page 108, line 20, leave out sub-paragraph (3).

The noble Earl said: In moving Amendment No. 14, I shall speak also to Amendments Nos. 15, 18, 21 and 37. I should like to move on to a group of issues bearing on the broad question of membership of a foundation trust and specifically who the Government envisage should be eligible for membership of the public constituency.

The knottiest issue relating to membership is the problem faced by specialist hospitals which wish to become foundation trusts. Hospitals such as Moorfields and the Royal Marsden treat patients from all over the country, people who live outside the boundaries of the hospital's local government electoral areas. Indeed, the idea of a local catchment of patients and the public is not relevant to the way they operate. It is not the local population that has the primary interest in how they are run, but patients from far and wide and potentially every citizen in the country. It therefore seems odd that including patients as part of the public constituency is expressed in the schedule only as an option. For specialist tertiary hospitals it should be possible to say that the public constituency consisted mainly, or entirely, of patients rather than members of the population living locally.

Indeed, without that approach, I find it hard to imagine how the regulator would be able to agree that the membership of such a hospital was truly representative of those eligible to register as members, as Clause 36 requires.

Perhaps I may raise two further issues about patients. If patients are included in a trust's public constituency, paragraph 3(3) appears to provide that they may only comprise patients who have actually attended the hospital concerned. I might feel aggrieved about that if I was someone who had been looked after by the hospital on a remote basis, say through a telemedicine facility. Carers of patients are also eligible to vote, but a hospital is given no guidance about what constitutes a carer in this context. I believe that there should be an explicit definition in the Bill and have therefore proposed one that is consistent with recent legislation. I beg to move.

Baroness Barker: I speak to Amendments Nos. 16, 17, 19 and 20 in the group. The effect of Amendments Nos. 16 and 17 is to include current patients within the arrangements. I return to some of the points made by the noble Baroness, Lady Hanham, in her speech a short while ago. It does not seem logical that the arrangements should be open only to people who have previously been patients of a hospital. The noble Baroness, Lady Hanham, was quite right to say that the point at which someone is engaged with a hospital as a recipient of services is the point at which one is perhaps most enthusiastic—one might say perhaps of most value to a governance board, given that one has had that experience.

The noble Baroness, Lady Hanham, was also right to draw the distinction between people who are recipients of emergency treatment and may be there

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for only a short time and those who have chronic conditions. It is also worth pointing out that by including current patients in the arrangements we would be including people who have appeared for treatment for which they have been waiting for some considerable time—elective patients. They perhaps would have a great deal to say about the running and the governance of organisations.

In many ways, this is something which plugs one of the many gaps foreseen in previous health Bills when CHCs were abolished in favour of the new system of patient involvement. During those debates, I said that there were two major omissions. While the new system of PALS and patient forums saw and dealt with patients who had concerns as recipients of services, they risked missing out the involvement of users in the strategic governance of hospitals. The fact that there are to be no patient forums in foundation trusts is one of the biggest omissions.

The effect of Amendments Nos. 19 and 20 would limit involvement to those who are NHS patients. Within the context of the Bill, that seems to be the right thing to do. Therefore, I hope that the Minister will give these amendments a warm welcome.

Baroness Pitkeathley: I, too, support the attempt at a definition of "carer" in Amendment No. 21. In a sense, the carers movement has been a victim of its own success. A word which was not even in the dictionary 12 years ago is now so popular that everyone wants to get in on the act. While I am delighted that "carer" is now added to every document and every paragraph—sometimes, I think, to every sentence in every paragraph—of documents which have anything to do with health or social care produced by the Department of Health, nonetheless, we should be clear about which carers we mean. Social workers are called carers these days, as are paid home-care workers, foster carers, and so forth.

I am sure that the intention of the Bill is to include informal carers—that is, family members or neighbours who provide care for patients or people who are to be patients as a result of a pre-existing relationship rather than people who are drafted in as a result of a need. Therefore, it is important to provide a definition.

I am not sure that this amendment is entirely right. For example, as currently drafted, it would include any representation of young carers. It may be that some foundation trusts would want to include young carers in that, but I believe that the Bill intends focusing on the so-called informal carers; namely, family members, neighbours and such like. This amendment is helpful in providing such a definition. I hope that the Minister will either accept the amendment or at least place on record his own definition of the carers who are to be included in the Bill.

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