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Lord Warner moved Amendment No. 11:


The noble Lord said: My Lords, we accepted the will of the House by accepting amendments on Report to Clause 31 that provide for all NHS foundation trusts to have a patients' forum on the same basis as NHS trusts. The amendments are technical amendments to tidy up Clause 31 and to ensure that the provisions on patients' forums in the 2002 Act apply to NHS foundation trusts in the same way as they apply to NHS trusts. I beg to move.

Lord Clement-Jones: My Lords, I would like to thank the Minister for graciously accepting the will of the House—in his words. He is right to do so, and we fully accept the spirit of the amendments.

On Question, amendment agreed to.

Lord Warner moved Amendments Nos. 12 to 14:


    Page 14, line 11, at end insert—


"(b) in subsection (9), in the definition of "relevant overview and scrutiny committee", for "or NHS trust" there is substituted ", NHS trust or NHS foundation trust"." Page 14, line 15, leave out from "reports)" to "there" in line 18 and insert "in subsection (2)—


(a) in paragraph (c)(ii), after "NHS trust" there is inserted "or NHS foundation trust",
(b) after paragraph (d)" Page 14, line 26, at end insert ", and


(b) in subsection (4)(a), after "NHS trust" there is inserted "or NHS foundation trust."

On Question, amendments agreed to.

Clause 36 [Offence]:

Lord Warner moved Amendment No. 15:


    Page 15, line 30, leave out from "form" to end of line and insert "of the particulars of his qualification to vote as a member of the constituency for which the election is being held"

The noble Lord said: My Lords, the Bill requires members of an NHS foundation trust, when voting, to make a declaration that they are eligible to do so. Amendments Nos. 15, 16 and 17 remove that requirement and replace it with a requirement that voters confirm their details, including their qualification to vote. That provides a mechanism for the NHS foundation trust to make sure it has up-to-date details of all its members. That need not be an onerous requirement for members—there could be two sections on the voting paper, for example, one for voting, and another for members to complete with their details. Amendment No. 18 removes the requirement on staff to make a declaration when they vote, since it seems reasonable to assume that an NHS foundation trust would in any case hold up-to-date details on staff members. In addition, noble Lords will recall that, in response to an amendment tabled by the noble Lord, Lord Hunt, on Report, we indicated that we would consider amending the Bill to give NHS foundation trusts discretion to adopt an opt-out system for membership of the staff and patient constituencies. Such amendments would, however, need to be made to the former Schedule 1, which noble Lords voted to remove

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from the Bill on Report. If we are successful in restoring the Schedule in another place, we may pursue the issue. The amendments would facilitate the introduction of any such provisions. However, I would make the point that they also stand alone, and are not dependent on the making of other amendments in the other place. I beg to move.

On Question, amendment agreed to.

Lord Warner moved Amendments Nos. 16 to 18:


    Page 15, line 32, leave out "that he is" and insert "of the particulars of his qualification to vote as"


    Page 15, line 37, leave out "that he is" and insert "of the particulars of his qualification to vote as"


    Page 15, line 38, at end insert—


"( ) This section does not apply to an election held for the staff constituency."

On Question, amendments agreed to.

Clause 48 [Introductory]:

Baroness Finlay of Llandaff moved Amendment No. 19:


    Page 19, line 5, at end insert ", and


( ) the implementation of ethical principles in decision making processes"

The noble Baroness said: My Lords, at previous stages of the Bill, we have debated issues surrounding equity and ethics and, on Report, the Minister expressed sympathy with my amendment but pointed out the problem with the wording, which included the word "equity". The Minister said that CHAI judgments could not cut across difficult decisions involving weighing up all relevant factors. This amendment, therefore, uses the words,


    "the implementation of ethical principles".

CHAI will not be able to judge on the clinical results alone, but must ensure that the principles are implemented.

The Minister stated that the issues are traditionally left to the General Medical Council and other regulatory bodies—as they should be. I quote briefly from the General Medical Council booklet, Management in Health Care: The Role of Doctors, which is consistent with the guidance set out by the British Association of Medical Managers, the Institute of Health Services Management and the UKCC for Nursing, Midwifery and Health Visiting. It states:


    "Conflicts may arise . . . when the needs of an individual patient and the needs of a population of patients cannot both be fully met. Dilemmas of this kind have no simple solution. When taking such decisions, doctors should take into account the priorities set by Government and the NHS and/or their employing or funding body. But they must also be clear about their own role. As clinicians, doctors must make the care of their patients their first concern, bearing in mind the effects of their decisions on the resources and choices available for other patients. As managers, doctors must allocate resources in the way that best serves the interests of a community or population of patients. In both roles doctors should use evidence from research and audit to make the optimum use of the resources available".

It is precisely the weighing up of decisions and the difficulty behind clinical decisions that demand an ethical approach.

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In the Bill as it is worded, CHAI will be charged with the effectiveness of healthcare economy and efficiency and looking at information provided to the public. It will also need to safeguard and promote the rights and welfare of children. However, I am concerned about groups in the population who are vulnerable but are not children. There are issues for those with severe disabilities, communication problems or complex social needs and for those in custody.

The inspectorate of CHAI is charged not only with looking at NHS providers, but non-NHS providers who provide for NHS patients. That is where my greatest concern lies. Where there is pressure on the resources, it is much easier to provide for those patients who will not be disruptive, will not take up a lot of staff time and who will be easier to discharge back into the community when prioritising. However, that may not be to treat on the basis of clinical need. That is the background to those concerns, and I would like CHAI to ensure that the ethical principles of autonomy, beneficence, non-maleficence and justice—justice to the individual and to the population served, as outlined in the GMC booklet and in guidance to the other professions—are being adhered to. If not, we will fail the very population that any NHS service must seek to meet. I beg to move.

Baroness Barker: My Lords, I support the noble Baroness, Lady Finlay of Llandaff, in her excellent argument. Throughout our debate, we have primarily focused on the issue of equity. Today we move away from that—happily, in my view—to examine the far more important element of ethical principles.

On Report, when the Minister addressed these matters, he said:


    "As for equity in terms of ethical decision making, we believe that traditionally, many of those issues should be left to the General Medical Council, and to the other regulatory bodies of the healthcare professions".—[Official Report, 10/11/03; col. 1148.]

I believe that that is a mistake on the issue.

While we are not concerned about whether the General Medical Council adheres to, recognises or upholds ethical principles, we are concerned that, in practice, government policy forces clinicians to abandon some of those ethical principles. Therefore, the reason for wanting these words in the Bill is not to put any restraint on the GMC, but to ensure that government policy does not traduce those important fundamental principles.

Throughout the debates, we have talked about the extent to which management measures have been given greater pre-eminence than medical and clinical principles, which we have always believed to be wrong. It is an important protection for the health service that government policy should not produce the kinds of dilemmas about which the noble Baroness, Lady Finlay of Llandaff, spoke.

I do not understand why it has never been explained satisfactorily why economy and efficiency are sufficiently important to be in the Bill, but ethical principles are not. The Minister has one last chance to convince us on this matter, but his track record to date

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does not fill me with great hope. This is a fundamental and important matter. I therefore support the noble Baroness wholeheartedly.

5 p.m.

Baroness Masham of Ilton: My Lords, I, too, support the amendment. Ethical principles written in the Bill would safeguard many very vulnerable people; one has to look only at the huge pressures on the National Health Service as regards the mentally ill, drug abusers and some very unpopular kinds of patients.


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