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Baroness Finlay of Llandaff: My Lords, I am grateful to the noble Baroness, Lady Carnegy, for raising the question and for the opportunity to clarify it. No, the clinical standards are absolute. The clinical standards to which the patient must be subject will be the same wherever the patient is but the way that the service is delivered and configured is different, particularly as regards community care. For example, patients who receive care in England for a transplant will be transferred back into Wales for their ongoing care and support. Protocols need to be established between providers in Wales and England concerning the point at which referral back to the English service is triggered and about what is delivered and conducted within Wales so that patients will receive long-term care close to their home. However, acute management, for example, of transplants, or specialist paediatric services, will be conducted under the contract of the specialised commissioning services within this 40 million envelope. The contract monitoring processes need to check that the flow of care on both sides of the border does not mean that patients hit a gap when they transfer from the English provider back to Wales.

Lord Thomas of Gresford: My Lords, I support the amendments in the name of the noble Baroness, Lady Finlay of Llandaff. Generally speaking, we who live in Wales are very satisfied with the quality of care we receive if we have to go to English hospitals, which happened to me a year or two ago.

Perhaps I may illustrate one problem that might arise. About 12 months ago it emerged that Welsh patients were placed at the end of the waiting list in the Robert Jones and Agnes Hunt Orthopaedic Hospital in Oswestry. The result was that some 30 or 40 patients from Wales exceeded the time limits that everyone was striving for. The reason given was that the hospital was receiving less per patient from Wales than it received from the English authorities. That is the kind of issue that must be ironed out. I am therefore very happy to support placing proposals for collaboration on the face of the Bill, particularly Amendment No. 330, which ensures that there must be collaboration with CHAI on cross-border issues.

I speak only as a Welsh resident receiving care in England, but I am sure that examples could be found in the opposite direction. It is important that clinical standards remain the same on both sides of the border and that a proper inspection process ensures that that is so.

My second point is that I am very happy that the noble Baroness should seek to place in the Bill an absolute commitment that recognises the principle of devolution. Of course, the Welsh Assembly is in charge of health issues in Wales. If it commissions reviews, it is

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only right that the people who carry out those reviews should report directly to the Assembly. The Assembly is directly accountable to the people of Wales, who have elected its Members. That direct link should be made.

I hope that the Minister will be generous in his response on this matter, despite the fact that Wales defeated England yesterday in Brisbane in the Rugby World Cup. I know that England scored more points, but that is really not the issue. I hope he recognises who won that game.

Baroness Andrews: My Lords, it is always good to start by welcoming a moral victory. I am absolutely in agreement with the noble Lord on that.

I am happy to respond to this group of amendments, which have been illuminated forensically by the noble Baroness, Lady Finlay, and at a personal level by the noble Lord, Lord Thomas of Gresford. It was useful to have some sense of the breadth of the issue. I welcome and appreciate the remarks of the noble Earl, Lord Howe, about devolution.

We had a very lively debate on this issue in Committee. This group of amendments goes very much to the heart of the issue which we addressed at earlier stages. The amendments revolve around the functions that the Bill confers on the National Assembly for Wales to set standards under Clause 46 and, more importantly in a way, against those standards, to conduct reviews and investigations of health services provided by English hospitals for patients from Wales.

In the light of what I shall say a little later, I will not at this stage pursue in any detail the debate on standards. In her analysis, the noble Baroness, Lady Finlay, has covered that issue. I would prefer now to talk about our response to some of those issues. It is both logical and proper, as noble Lords have said, that the Assembly, having commissioned services from organisations across the border, should be given the powers to ensure that they are being provided. This is not a unique or unusual power. It is identical to that given to CHAI under Clause 51, which gives CHAI the equivalent power in relation to services provided for English patients in Wales.

That is separate from the additional and very welcome function given to CHAI to conduct thematic reviews of particular types of healthcare—for example, for cancer, chronic heart disease and so on, as the noble Baroness, Lady Finlay, said—across England and Wales.

In Committee, noble Lords were concerned—and I understand their concern—about the possibility that the Assembly might choose to exercise its powers unreasonably, unhelpfully or inefficiently or that it might undertake reviews that conflict with or duplicate those being undertaken by CHAI. Amendments Nos. 289 and 234, which have been tabled by the Noble Earl, Lord Howe, seek to eliminate the issue by denying the Assembly the power to undertake those reviews under Clause 68 and consequently to deny the Assembly the power to enter premises in England.

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We understand the concerns about possible duplication or the lack of co-ordination. We also understand that there is a need for co-operation and, indeed, collaboration between the Assembly and CHAI. Obviously they would collaborate on the thematic reviews and, as the noble Baroness, Lady Finlay, said, it is very important to ensure that CHAI has all the relevant data and information in that respect.

I was slightly disappointed that the assurances that I gave here, and which were given in the other place, did not satisfy noble Lords. Those assurances were that the clear duty which Clause 141 places on the Assembly and CHAI to collaborate would ensure that such conflict did not arise. In fact, we have previous examples of collaboration. I refer briefly to the negotiation between the Community Health Councils—CHCs—and patients forums across the borders. We have some precedents there.

As the noble Baroness, Lady Finlay, said, the flow of care is the important point. Given that we want cross-border arrangements to flourish, the duty of partnership, co-operation and collaboration should entail the flourishing of fundamental arrangements regarding adequate flows of data and information, data sharing, co-ordination of timing and scope, the relative priority and nature of reviews and the joint methodologies referred to by the noble Baroness. All of that should help to ensure that there is no duplication of work. It should therefore follow, for example, that inspections across the border by Health Inspection Wales are generally less frequent and more narrowly focused. Collaboration also covers the practical processes for improvement and redress. It would involve agreeing the mechanisms for dealing with reports of concerns about quality and safety.

It is of the greatest importance that the Assembly has the capacity to establish the effectiveness of local Welsh commissioning with regard to the expectations of the local health board, the medical staff and the patients themselves. I am grateful for the support given by the noble Lord, Lord Thomas of Gresford, and by the noble Baroness, Lady Finlay, on the noble Earl's amendment. Without that capacity, which reflects local and expert knowledge, commissioning in Wales would inevitably be a less reliable and less responsible process.

I would suggest to noble Lords that taking a hatchet to the Assembly's functions is not the way to proceed. Noble Lords are concerned that the Assembly might not exercise its function in a way that meshed well with the exercise of the identical powers of CHAI. The answer to that is not to remove the powers, but to improve their operation.

In that spirit, I am prepared to reflect further on this issue and to return to it at Third Reading. I shall consider in particular whether the duty of co-operation between the Assembly and CHAI in Clause 141—which is rightly identified by the amendment of the noble Baroness, Lady Finlay, as the key to this particular issue—might be strengthened to place on

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them a specific requirement to collaborate, particularly on cross-border reviews, perhaps with an emphasis on avoiding unnecessary duplication.

In the light of that assurance I hope that the noble Baroness will be prepared not to press her amendment. I should perhaps add that I understand that the Assembly fully intends to have a memorandum of understanding. That will cover, for example, information and data from Wales which might be included in an annual report on the state of the NHS in England and Wales; national performance data to be published by CHAI; collaborative working on national reviews of England and Wales; and collaborative working on cross-border CHAI reviews. I hope that noble Lords will be greatly reassured by that.

Perhaps I can briefly turn to Amendment No. 325, in the name of the noble Baroness, Lady Finlay. In Committee, the noble Baroness, Lady Noakes, made it very clear that she thought that it was wrong in principle that the review and investigation of healthcare services provided by English hospitals to patients from Wales should be carried out by a politically-controlled organisation—the Assembly. I recall that she also thought it was rather inefficient. Amendment No. 325 addresses that same issue by seeking to bolster the independence of the HIW. I hope that I can persuade both noble Baronesses that their concerns are unfounded. Amendment No. 325 is unnecessary. It would require any body that conducted a review of healthcare in Wales to report to the Assembly. In fact, only two bodies will be conducting such reviews.

CHAI has the function of conducting thematic reviews. Clause 50 places a duty on CHAI to publish a report of such reviews; Clauses 52 and 53 require CHAI to report to the Assembly any failings that it identifies. It can also conduct reviews of healthcare provided by Welsh NHS bodies—again it is under a duty to publish a report. As the noble Lord, Lord Thomas, said, most investigations in Wales will be conducted by the Health Inspectorate Wales, but that is not to say that that will be a purely introspective exercise.

During the past 20 years—and predating the devolution settlement—Wales has developed a range of independent inspectorates that are now responsible to the Assembly. I mentioned the Education Inspectorate Wales. I did not know that weights and measures were involved; that comes as something of a shock. There is also the Social Services Inspectorate Wales, the Care Standards Inspectorate Wales and so on.

HIW will enjoy the same operational independence and safeguards as existing inspectorates. That independence is assured by several Assembly protocols and procedures. For example, under Clause 68 it will be required to publish a report after conducting a review. The head of HIW will have editorial control of such reports—just as does the Social Services Inspectorate Wales. They will be

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provided simultaneously to the Minister for Health and Social Services and the Assembly's Health and Social Services Committee.

To ensure independence from political intervention, the head of the HIW—again, like the other inspectorates—will be accountable to a senior Assembly director, but will enjoy rights of independent access to the Minister for Health and Social Services. To return to the amendment, in all logic, as HIW will be part of the Assembly, it would be impossible and unnecessary to require it to report directly to itself.

On the chair of reviews, which is dealt with by the second part of the amendment, it would again be inappropriate to provide for that in the Bill, as the chair of reviews will in effect be the head of HIW, who will be a senior civil servant. Those appointments are conducted under Civil Service Order in Council 1995 rules, which involve open competition on merit, and so forth.

Those conducting the reviews and investigations for HIW will, like those on other bodies, be a mix of permanent and seconded peer inspectors and lay assessors. In addition to recruiting its own inspectors through open recruitment, the Assembly wants to establish an exchange scheme with other NHS inspection bodies, including CHAI and Quality Improvement Scotland.

I think that that in some way addresses the point about efficiency made by the noble Baroness. A duty to collaborate between CHAI and the Assembly in the exercise of cross-border functions would allow the sort of joint working and sharing of experience which maximises efficiency.

I have gone rather quickly through my response to the concerns raised, but I hope that it satisfied noble Lords on the issues and that they will not press their amendments.

5.30 p.m.

Earl Howe: My Lords, strictly speaking, the amendments tabled by the noble Baroness, Lady Finlay, address slightly different points from my amendments. I do not think that they cut across the points that I sought to make, but the Minister's welcome offer to reconsider the whole question of cross-border co-operation—which I am sure will be welcomed by the noble Baroness—also goes to the heart of the concerns that I raised. I therefore for my part thank the Minister for her offer. I am all for co-operation across the border; I encourage it and do not belittle the force of Clause 141, to which the Minister drew our attention once again, but if at the end of the process of co-ordination and co-operation there are differences in standards, how will we deal with them?

Unlike the noble Baroness, Lady Finlay, I doubt that CHAI will be spending its time monitoring contracts. I do not see that as its central role. It is unfair on doctors and nurses to expect them to work to dual standards. That is a simple point. I am more than

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happy to accept that English patients in Wales should have to accede to what is on offer in Wales. There should be no problem about that.

So it is very welcome that the Minister will consider how to strengthen the provisions. I consider her offer to be more than sufficient reason to withdraw my amendment, and beg leave to do so.

Amendment, by leave, withdrawn.

Clause 47 [Introductory]:

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