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I listened closely to the arguments put forward by the noble Baroness, Lady Masham, in support of the

13 Feb 2012 : Column 592

amendment. She suggested that the contractual duty would be useless in detecting cover-ups because, as she put it, it would apply only to incidents that were reported. Checking if an incident has been reported to the CQC or the national reporting and learning system is only one mechanism by which commissioners could check if an incident had occurred but had not been disclosed to the patient. It is not the only mechanism; a commissioner could review medical records or review the care received outside incident reporting. If the evidence indicated that an incident had occurred but not been reported or disclosed, that would be a breach of current CQC regulations and, indeed, the contract. That would be quite unacceptable and action could then be taken.

Lord Harris of Haringey: My Lords, is not the point that the contractual obligation that the Government are proposing would in effect be triggered only by the reporting of an incident to the CQC? Is it not also the case that the contractual obligation that the Government are talking about would not apply to primary care?

Earl Howe: I will move on to primary care in a moment, but I do not agree with the noble Lord at all on his first point. What we see happening from a contractual requirement is a process of culture change taking the form of conversations between management and clinicians about the fact that this was something that the organisation had to focus on. I do not agree that it will arise simply by reason of reported incidents.

As I said, any disagreement that I have with the noble Baroness is not out of any difference of intent; it is because of a difference of opinion about what we feel would work. Her amendment would require the Secretary of State to act with a view to securing that any CQC-registered organisation providing healthcare was required-we should perhaps log that word-to take all reasonable steps to ensure that a patient or their relatives were informed of a serious patient safety incident.

The key points here are around a requirement in relation to CQC-regulated healthcare. Any requirement must come with enforcement, otherwise it is not a requirement. The amendment as drafted would extend to providers of purely private healthcare-that is, non-NHS-funded healthcare-which suggests that any requirement would have to be enforced by the CQC. I and my officials have spoken at length with CQC colleagues regarding this. In response, the CQC has clearly stated that it would not be able to routinely monitor and enforce such a duty. This is not due to attaching less importance to this issue than to the others areas that they regulate. It is the very nature of openness that when errors occur, it is not easy to detect routinely where a lack of openness has occurred. When a patient or their relatives are not told of an error and the incident is not reported, it is often very difficult to discover that there has been a failure by an organisation to be open. The only way to fulfil this requirement would be to verify that openness was happening and, given the very nature of the issue, that would not be possible for a national regulator. It would require it to prove a negative-in this case, that people were not told about something going wrong with their healthcare.



13 Feb 2012 : Column 593

Lord Harris of Haringey: I am grateful to the Minister for giving way again, but I am now genuinely confused about why this is different. His argument seems to be that a contractual arrangement-we will come back in a moment to the question of who that will cover and whether it will cover primary care-would magically produce a change in culture but that a statutory obligation, applying to all providers registered with the CQC, somehow would not. This is not about requiring the CQC to monitor every interaction with a patient; it is about creating that culture change and a clear sense of obligation-you cannot be registered as a provider with the CQC unless you are committed to doing this.

Earl Howe: My Lords, I hope that the noble Lord will allow me to remind him very respectfully that we are on Report and not in Committee. I am trying to work through my arguments, which I hoped would have a flow to them, but my flow has been interrupted. I am getting to what I hope he wants me to get to.

I was saying that the amendment would effectively require you to prove a negative-in this case, that people were not told about something going wrong with their healthcare. If they were not aware of the error, they would not be aware that they had not been told about it, and the volume of incidents is such that a single national body could not possibly verify compliance with that requirement.

I know that the noble Baroness advocates that the CQC should not routinely monitor this duty and instead should require organisations only to provide evidence that they encourage openness through having appropriate procedures and policies in place. Unfortunately, what that creates-this point was made by my noble friend Lord Ribeiro-is a tick-box exercise. Organisations can provide all the assurances in the world that processes are in place and therefore they are considered to be compliant, when in actual fact it could be that patients were still not being told about errors in their care. That is not acceptable and would not deliver the culture change that we need. We must have a requirement that ensures that patients are told of errors, not one that pays lip service to this and allows organisations-

Baroness Young of Old Scone: I was not intending to speak on this amendment but, as the former chairman of the Care Quality Commission, I have to make a point.

Baroness Northover: I remind the noble Baroness that, as my noble friend said, we are on Report. If she is seeking clarification or questioning something, that is slightly different, but she should not make a speech at this point.

Baroness Young of Old Scone: I merely want to ask the noble Earl what the material difference is between this requirement being laid on organisations by the CQC and many of the other basic requirements that are laid on organisations by the CQC. Those organisations are not inspected in detail on an ongoing basis, but the requirement is intended to

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seek from providers of health or social care an outline of how they intend to deliver that requirement, without their being inspected regularly in all cases.

Earl Howe: My Lords, I hope I have already explained that. In our conversation with the CQC, it made very clear that this would not be like any other requirement placed upon it. A requirement to prove candour will require the CQC to engage in a much more continuous and intensive process of monitoring than some of its other requirements. That was the distinction that it made and that is why it said that it did not have the capacity to fulfil this duty if it were built into the Bill.

I am afraid that the amendment would not be effective in meeting our shared objective. That is my problem with it. I have listened to the arguments put across by noble Lords in relation to primary care. I want to see openness in primary care as much as I do in secondary care. However, we still need to consider which requirements would work best in primary care.

Baroness Kingsmill: Can the Minister explain the distinction and why we cannot have both? It seems that culture change is best reinforced by legislative change, and the contractual point that the Minister made is a good idea.

Baroness Northover: For clarification, can I point out that only the mover of an amendment or the noble Lord in charge of a Bill should speak after the Minister on Report, other than for short questions of elucidation to the Minister or where the Minister speaks early to assist the House in debate? As this makes very clear, it is possible for a noble Lord to ask a short question about what the Minister has just said, but he or she should not introduce other speeches.

Earl Howe: The question of the noble Baroness relates back to something that I said some time ago. The answer is that we believe that culture change stands the best chance of happening when you bring home to those with direct responsibility for patient care that it is in the contract of the organisation that it must be candid. There are different views about this. I do not disagree with the noble Baroness that, in some cases, regulation is the right way to go. I will say a little more about that in a moment, as I wind up.

I was just talking about primary care in sympathetic terms. We need to remember that other requirements for openness still apply to all NHS services. All primary medical service contractors must have regard to the NHS constitution, professional codes of conduct, any guidance issued by PCTs or the Secretary of State and so on in relation to openness. Once they are registered with the CQC, a failure to be open with patients contravenes clear expectations set out in CQC guidance. The CQC can then take action. Therefore, primary care contractors currently have no excuse to avoid telling their patients about things going wrong with their healthcare. However, I acknowledge the concern of the noble Baroness, Lady Finlay, and others that primary care contractors will not be covered by the current proposals for a duty of candour in the NHS standard contract.

13 Feb 2012 : Column 595

Any contractual amendment in relation to primary care contractors is a more complex process, requiring amendments to secondary legislation, among other things. Specifically because of this, we asked for views on this in our recent consultation, which closed at the end of last month. I can confirm to the House today that we are giving further thought to the issue of primary care and the duty of candour in light of the consultation responses we have received. They are complex issues. I hope noble Lords will understand that I cannot prejudge the careful analysis that is already under way in deciding how we go forward in this area. However, it is something that we are actively considering.

5.45 pm

My noble friends Lady Hussein-Ece and Lord Ribeiro, the noble Countess, Lady Mar, and the noble Baronesses, Lady Pitkeathley and Lady Wheeler, all made the same point: more than anything else, patients or their families often wish for an explanation, an apology and some assurance that lessons have been learnt. As part of our consultation, we have reiterated that there must be an apology and a basic step-by-step explanation in a face-to-face meeting quickly. That should be required as a minimum. The NHS Litigation Authority has made clear, as have we and the National Patient Safety Agency, that an apology is not an admission of liability and should be immediately offered.

My noble friend Lady Williams and the noble Baroness, Lady Finlay, spoke about whistleblowing. I completely agree with them and the Government support the right of NHS staff to raise concerns. We expect all NHS organisations to do likewise. Measures to promote whistleblowing include a free, independent advice line for staff and a proposal to strengthen the NHS constitution in this area.

My noble friend Lady Oppenheim-Barnes asked me whether the NHS should circulate information about a mistake after it has been made so that lessons can be learnt. I completely agree with her. It is a very important issue. The NHS can and should report the details of patient safety incidents to the National Reporting and Learning System, which collates such information, distils the learning, spots trends and risks and then disseminates the information to the whole NHS to prevent a recurrence. That will continue.

My noble friend Lady Tyler asked whether I would report back to the House on the consultation that recently closed. Of course I shall. The Government will publish a full response to the consultation once the submissions that we have received have been fully analysed. Early indications are that opinion is split. Our initial analysis suggests that around one-third of respondents were supportive of a contractual duty, while a similar number were not. The remainder provided mixed comments. We will review the information carefully and respond to it in due course.

In addition to this and, once again, in response to my noble friend's question, I confirm that I agree with the proposal that she put forward, which I think the noble Lord, Lord Beecham, asked about in Committee. It was that the Government should undertake a future

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review of the effectiveness of the contractual duty of candour after an appropriate interval and include within this a specific analysis of whether its effectiveness is being substantially held back by the lack of a reference in primary legislation. If this review were to highlight that this was happening, the Government would give it very significant consideration and take it fully into account in the context of future primary legislation.

I hope that the noble Baroness will take that reassurance on board. I hope, too, that it will be clear to her that this debate is not about the principle of candour, but about what in practice is most likely to influence the culture of an organisation. We simply do not think that more regulation is the right way to go. I hope that the noble Baroness will accept that we have listened to her point of view and considered it very carefully. However, for very good reasons we think our preferred route is better.

Baroness Masham of Ilton: My Lords, this is a very complex health Bill and I should like to pay tribute to the Minister for all the work that he does-for the meetings that he has and for his letters and explanations.

I feel that patients are not covered enough by this Bill. Patients and their supporters have to fight for everything. Why do they have to fight so much for something that should be good practice? The noble Lord, Lord Ribeiro, said that surgeons and doctors should do this. Why are they not doing it? If you look in today's Yorkshire Post, you will see a tragic case of a woman who lost her baby through negligence in Scarborough Hospital. I have received a letter today from Dr Frank Arnold. I shall quote some of it. It states:

"I am a doctor, who suffered a near fatal adverse event in my local hospital due to errors subsequently accepted as negligent ... Part of the reason that these cases recur is that they are not admitted, reported and learnt from. Similar considerations apply to many other types of repeated serious adverse events and preventable deaths. It took more than two years of struggle against hospital management and NHSLA evasions, denial and delay before my case was settled and I could speak of it in public. After that time, I took part in the discussions at the DoH about duties of candour. These revealed the extent of hostility of the Academy of Royal Colleges, insurers and GMC to any requirement to be honest with patients and the professions".

We need an open and honest system right through primary care and secondary care and even extending to dentists. I have been very lucky. I have had serious accidents and my doctors have always been open and told me the problems, for which I am grateful. However, there are others who do not do so. Generally, the ones who do not do so end up facing legal action. We must do something. We must find a way. I am grateful to the noble Earl but I do not think that it is good enough. It is a case of words and more words.

There is another problem. The other place was not able to discuss these amendments. They did not come up as the other place ran out of time. We have time. If we could get something in the Bill it might not be perfect but at least the other place would have another chance to discuss this. Every Member of Parliament has this problem, I know. Therefore, I would like to test the opinion of the House.



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5.53 pm

Division on Amendment 17

Contents 198; Not-Contents 234.

Amendment 17 disagreed.


Division No. 1


CONTENTS

Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L.
Beecham, L.
Berkeley, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brennan, L.
Broers, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corston, B.
Craigavon, V.
Crawley, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L.
Deech, B.
Desai, L.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L.
Hall of Birkenhead, L.
Hanworth, V.
Harris of Haringey, L. [Teller]
Harrison, L.
Hart of Chilton, L.
Hattersley, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollins, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kestenbaum, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Lea of Crondall, L.
Leitch, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Mar, C. [Teller]
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.


13 Feb 2012 : Column 598

Monks, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Nye, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Palmer, L.
Pannick, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Prescott, L.
Prosser, B.
Quin, B.
Quirk, L.
Rea, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tonge, B.
Touhig, L.
Triesman, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Wigley, L.
Wilkins, B.
Williams of Baglan, L.
Williams of Elvel, L.
Wills, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Worthington, B.
Wright of Richmond, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Young of Old Scone, B.

NOT CONTENTS

Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Bell, L.
Benjamin, B.
Berridge, B.
Best, L.
Black of Brentwood, L.
Blencathra, L.
Boothroyd, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Buscombe, B.
Butler of Brockwell, L.
Byford, B.
Caithness, E.
Carlile of Berriew, L.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
De Mauley, L.
Dear, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elton, L.
Emerton, B.
Empey, L.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Feldman of Elstree, L.
Fellowes, L.
Flight, L.
Fookes, B.
Fowler, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Glasgow, E.
Goodhart, L.
Goodlad, L.


13 Feb 2012 : Column 599

Goschen, V.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harries of Pentregarth, L.
Harris of Peckham, L.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Howard of Lympne, L.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
James of Blackheath, L.
Janvrin, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Kakkar, L.
Kilclooney, L.
Kirkham, L.
Kramer, B.
Laming, L.
Lamont of Lerwick, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Listowel, E.
Liverpool, E.
Loomba, L.
Lothian, M.
Lucas, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Maples, L.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mawson, L.
Meacher, B.
Miller of Hendon, B.
Montgomery of Alamein, V.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newlove, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
O'Cathain, B.
O'Neill of Bengarve, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Palumbo, L.
Parminter, B.
Patel, L.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Randerson, B.
Rawlings, B.
Rees-Mogg, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Rowe-Beddoe, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stewartby, L.
Stirrup, L.
Stoddart of Swindon, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Swinfen, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Turnbull, L.
Tyler, L.
Tyler of Enfield, B.
Verma, B.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walton of Detchant, L.
Warnock, B.
Warsi, B.
Wasserman, L.
Waverley, V.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Younger of Leckie, V.


13 Feb 2012 : Column 600

6.07 pm

Amendment 18

Moved by Lord Hunt of Kings Heath

18: After Clause 7, insert the following new Clause-

"The Secretary of State's duty as to preventing bureaucracy

After section 1F of the National Health Service Act 2006 insert-

"1G Duty as to preventing bureaucracy

In exercising functions in relation to the health service, the Secretary of State must, so far as in consistent with the interests of the health service, act with a view to securing-

(a) that the NHS Commissioning Board shall exercise its functions in relation to the health service with a minimum level of management tiers, and

(b) that any other person exercising functions in relation to the health service must have regard to the need to curb bureaucracy.""

Lord Hunt of Kings Heath: My Lords, one by one, the pillars holding up the Government's reasons to justify the mayhem they are raining on the NHS are being kicked away. The Prime Minister promised "no top-down reorganisation" of the NHS, yet it is faced with the biggest change since it started life 64 years ago. The Government implied that the NHS was failing, yet the 2010 British social attitudes survey put public satisfaction with the NHS at its highest-ever level. The Government have said that falling productivity is a problem, yet Professor Nick Black, writing in the Lancet, described this as a myth. The Government said they wanted to encourage collaboration and the integration of services, yet Mr Lansley spilled the beans this morning by making it clear that competition between doctors and nurses is really what he is about.

The Government argue that they will end micromanagement by the Secretary of State and introduce democracy. Last week, the noble Earl, Lord Howe, on the first day of Report, sought to persuade your Lordships that the Government are aiming to free the service from micromanagement by the Secretary of State. Indeed, the noble Earl went further and said that Mr Lansley is the only Secretary of State,

The noble Earl went further when he said that the NHS Commissioning Board will have a facilitating role to promote guidance, and is,

I say gently to him that the reality seems a little different. Indeed, since your Lordships started to debate the Bill, the Secretary of State has shown no inclination whatever to keep his hands off the National Health Service. He has announced a set of indicators for patient outcomes for NHS trusts to meet; he has pronounced that hospitals are admitting too many patients; he has pronounced that patients are being discharged from hospitals too quickly; the A&E four-hour indicators have been extended; primary care trusts have been told to speed up treatments for patients waiting longer than the 18-week waiting limit; hospitals have been ordered to remove advertisements for personal injury lawyers in NHS-branded leaflets from being distributed in casualty wards; primary care trusts have

13 Feb 2012 : Column 601

been told to identify three services that can be handed over to the private sector; and the Prime Minister-no less-has announced that there will be hourly nursing rounds to check that patients are properly fed and hydrated. I might have missed a few examples in my recording of the interventions that have taken place in a short period of time.

Lord Graham of Edmonton: Keep going.

Lord Hunt of Kings Heath: My noble friend urges me to keep going. I will certainly continue to note down the evidence on whether the Secretary of State is not micromanaging the National Health Service.

Let me make it clear to the House that I do not have a problem with those kinds of interventions. In fact, I wish the NHS could be left to get on with dealing with some of those issues rather than having to be diverted by this centrally imposed top-down restructuring.

I do not think that we should let the Government get away with the myth that what they are proposing is some kind of anti-bureaucratic Minerva or kid us that they are standing back from interfering in the NHS. I have no doubt that the noble Earl, Lord Howe, will regale us with how many reductions there are in the number of bureaucrats employed in the NHS. He will probably pass over the huge redundancy costs that are being paid out. He might also pass over the possibility of there being a cost-shift as clinical commissioning groups, for instance, hire the very people made redundant by strategic health authorities and primary care trusts.

The fact is that the Government are busy constructing a huge edifice of confusion and a multilayered decision-making process. I remind the House that the Commons Health Select Committee report on 24 January concluded that the Nicholson challenge, the £20 billion efficiency challenge,

It continued:

"The reorganisation process continues to complicate the push for efficiency gains. Although it may have facilitated savings in some cases, we heard that it more often creates disruption and distraction that hinders the ability of organisations to consider truly effective ways of reforming service delivery and releasing savings".

Let me be clear. In criticising the Government's approach, I do not seek to undermine the role of managers and leaders in the NHS. They are at a premium, and I have been somewhat concerned by the tenor of some of the Government's remarks about the role of managers in the health service. We need good managers to lead and support change on this vast scale. What we do not need are layers and layers of bodies without any clarity in organisational responsibilities. We do not need systems and practices that mean that the same information is collected many times over, and we certainly do not need the increasingly complex paperchase that the internal market will morph into when it becomes a real market.

In essence, the Government are replacing a managed-system bureaucracy with a market bureaucracy. Monitor and the national Commissioning Board will grow and grow, mostly by spending on external consultants to mask the baseline costs. Here I return to the point

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made by my noble friend Lord Graham. Again, one sees a plethora of organisations in the new structure. We have Monitor, with its hugely contradictory role in both supporting the foundation trusts and being the economic regulator for the NHS. We will have the national Commissioning Board overseeing the system in accordance with a mandate given to it by the Secretary of State. However, the board, which the noble Earl, Lord Howe, talked of as being a facilitating organisation, will none the less have a massive £20 billion commission of services. The national Commissioning Board will also have four regional outposts and 50 local outposts. The noble Earl called them field forces last week, but I suspect that the jargon has moved on since then.

We then have 244 clinical commissioning groups, at the last count, but because the clinical commissioning groups do not have the skills to commission services we are also to have 35 commissioning support units. Then there are the clinical senates-15, perhaps-but no one has any idea who they will be, what they will do or who they will be accountable to. We then have 165 local authorities taking over responsibility for the public health function, 165 health and well-being boards and the same number of local healthwatches. As we heard earlier, the local education and training boards are accountable to Health Education England. Then there is the leadership academy and the improvement body that the noble Earl referred to last week.

6.15 pm

If that is confusing enough to NHS experts-and it is-what about patients and the public? How do the public and patients influence the national Commissioning Board and its massive number of outposts? For all the criticism of strategic health authorities and primary care trusts, at least they were local and had their own corporate boards, so there was an effort at independence and autonomy. Under the national Commissioning Board all the outposts are simply layers of management with no pretence of any accountability or autonomy. With more commissioners and more providers, more services subject to tariff and a more complicated tariff, the cost to the transactional bureaucracy in running the internal market will have to rise considerably. No estimate has been made of that at all. I wonder why.

The Prime Minister has made big claims about savings, but as the impact assessment makes clear there has been no estimate at all of savings based on expected and actual running costs. No one has worked out anything for the increasing cost to providers in a new contract and legal market world.

A Bill that was partly proposed as a way to tackle bureaucracy has turned out to give the NHS the most complicated structure that it has ever seen. I think we should build some protection into the Bill for the NHS from the massive bureaucracy that it will now come under. I beg to move.

Lord Warner: My Lords, I must congratulate my noble friend. He has obviously had an extremely good weekend and is in very fine fettle. He has done a great service in moving the amendment, because it gives us a chance again to air the continuing concern in many parts of the NHS and the outside world about the cost

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of the organisational changes that flow from the Bill and the risks of those administrative costs escalating in future.

I recognise that nearly all organisational changes have transitional costs, and I do not doubt the Government's genuine belief that their changes will lead to savings in what they call bureaucratic costs. As the Minister knows, I moved some amendments in Committee to try to cap management costs and their annual increases. He told me in the politest possible way and with his normal, reasonable manner that that was unnecessary.

However, I remain concerned about the Government's ability to keep under control the costs of the organisational changes that they have set in train with the very large number of new bodies that can play in the NHS game, as my noble friend Lord Hunt made clear. I do not intend to go over them again, but there are a lot more of them than there were before. Whether we call them bodies or ill defined entities, such as the senates, they are still people who will be involved in the administrative processes, and I have never found anyone able to engage in administrative processes who does not incur costs and increase the cost of those services. Some of us have been around the public sector quite a long time. Those bodies can use the age-old arguments to grow their organisations over time. Those growths of organisations are, of course, always in the interests of the public. It is always for the best of purposes that they expand.

I see nothing in the Bill that enables those costs to be contained from escalating in future. It is not just about the start-up costs of the national Commissioning Board or Monitor in the early stages; it is a question of where this whole system will end up in two, three, five or 10 years' time, when we see, in its full glory, how it works in providing our NHS.

My scepticism rests on how the Government have modified the Bill as it has progressed through Parliament. It would be easier to be more confident about containing those costs if, after the pause and as the Bill has progressed, we had not seen modification, often done with good intentions and often moved in amendments from other parts of the House. However, we have ended up with a model that looks jolly different from the one that we started with when the Bill began its passage through Parliament.

I have also been struck by what I can only describe as the naivety of the language of some of the Government's supporters, who seem to equate eliminating managers with reducing bureaucracy. As my noble friend said, we badly need managers to make this system work. There is a growing belief that somehow, after all these years, clinicians will suddenly be efficient, cost-cutting commissioners of services and we can forget about the quality of general managers. I am pleased to see the noble Lord, Lord Fowler, in his place because he was, if I may put it this way, the father-or grandfather-of the general management that was introduced into the NHS, and he deserves a lot of credit for that. In the 1980s, the Conservatives decided that what the NHS needed was a good dose of general management, and that is what it had.

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However, managers suddenly seem to be equated by some of the Government's supporters with the cause of the problem. They are the people whom we seem to need fewer of while we undergo a massive organisational change and have to save £20 billion over four years. How that is all to be done with a new set of organisations and with many of the most experienced managers being lost to the NHS slightly eludes me.

The Government turned their face against using existing legislation to reduce the number of PCTs significantly, reconstituting them with more members from local authorities and more clinicians. Some of us have reduced the number of PCTs and SHAs and have substantially reduced the number of ambulance trusts without any primary legislation at all. I am still waiting to hear convincing arguments as to why we could not have done some of that under existing legislation without inflicting much of the organisational change relating to commissioning. I support in principle more clinician involvement in commissioning, but why could that not have been done within the existing legislative framework without this plethora of new entities being created? These new bodies will have to learn how to run the NHS and will incur quite a lot of costs while doing so.

In the current public expenditure climate, we cannot afford to have what I would call youth training scheme approaches to managing the NHS. A lot of new people will have to learn on the job. If we do not introduce into the Bill some constraints on these costs, they will escalate out of control. That is why I do not think that my noble friend's amendment is the perfect solution, although it is an attempt to try to curb costs and stop them running out of control. However, I fear that that is what we shall see when the sets of changes in the Bill are implemented in the real world.

Lord Fowler: My Lords, when the noble Lord said that the amendment was not exactly the perfect solution, that was a brilliant understatement of the position, as I think almost everyone would agree. My concern about the amendment is that it is a prime example of declaratory law. Almost no one would disagree with the aim of reducing bureaucracy. I suspect that almost every Government since 1946 have said that that has been their aim, although I am not sure that it takes the argument very much further. I am delighted that the noble Lord, Lord Hunt, is proposing this. He was a former director of the National Association of Health Authorities and Trusts, which I never felt was in the foreground of reducing bureaucracy in the health service, but that is doubtless a very unworthy allegation to make against him. However, going purely on the basis of the wording of the amendment, I think that it is simply impractical to have a,

What does "minimum" mean? It is a wonderfully generalised statement.

The noble Lord, Lord Hunt, touched on the fact that there is a slight implication-I know that he distanced himself from it-of there being opposition to management inside the health service. Of course I agree with the noble Lord, Lord Warner, that management is absolutely of the essence, and I am delighted to have

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received praise from him. When I introduced general managers into the National Health Service following the report of the late Roy Griffiths, who, people may remember, did so much and produced a wonderful and exemplary report, it was in the face of opposition from virtually all the health service unions, including, needless to say, the British Medical Association, and most of the people who have been opposing the current Bill. It was also in the face of fierce opposition from the Labour Party-in the Commons at any rate; perhaps it was different in this House. Therefore, if I can make an entirely partisan point, I am delighted that we all agree on this serious point. More than 1 million people are employed in the NHS and there is a vast budget. To believe that you can get through the reorganisation without skilful and good management is completely ridiculous and we need to underline that. We are not talking about administrators-a phrase that is still used far too often. We are talking about managers, and what the health service needs is good managers.

I hope that the noble Lord, Lord Hunt, regards this as simply a good amendment for debate and that he will withdraw it because of its manifest defects. However, he rather criticised the new organisation going down to the local level regarding health promotion. Obviously, if you go down to the local level, you are going to have a number of local authorities. However, I should have thought that one thing on which both sides of the House would agree is that health promotion should be carried out with a ring-fenced budget and with local delivery. I should have thought that most people would want to see that. It contrasts with what the previous Government did and doubtless with what happened before that. Money which went to health promotion-I remember this happening with HIV/AIDS-simply was not used for that purpose; it was used for something else inside the health authority. I think that we are taking a giant step forward with health promotion and I am passionately in favour of that.

The amendment of the noble Lord, Lord Hunt, is interesting. I obviously agree with all the sentiments behind it, as I think most people do. However, as a piece of law, it is, frankly, defective.

Lord Harris of Haringey: My Lords, it is an enormous pleasure to follow the noble Lord, Lord Fowler. I was particularly taken with his support for the principle of ring-fenced funding, which I trust the Minister will take into account when, a little later, we come to consider local healthwatch organisations.

Earlier today, we had a Question on the initiatives that had been taken in London on stroke care. I did not get an opportunity to pose this question but I was interested in who, in the absence of NHS London driving the process, would have taken the quite difficult decision to reorganise stroke care in London, given that it was opposed by a lot of the local providers and local organisations. This question also came up during the first day on Report when we looked at who would make decisions on reconfiguring services and who would make decisions when services were not adequate or when there were issues of equality of healthcare to be addressed. At one point, the Minister said:

"The CCGs will be supported in their efforts to improve quality by the NHS Commissioning Board".-[Official Report, 8/2/12; col. 314.]



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Later on, when I probed him on this, he said that "the board"-that is, the NHS Commissioning Board-"will be represented sectorally". I was not quite sure what he meant, but it being Report stage I could not challenge him. He said:

"There will be field forces in all parts of the country ... The majority of its staff will be a field force".-[Official Report, 8/2/12; col. 316.]

I do not know how a majority can be a field force, but there we are. Later on, he said:

"However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there".

When I questioned whether that meant that they would be members, he said:

"It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that".-[Official Report, 8/2/12; col. 340.]

I took that to mean that the NHS Commissioning Board will be sitting at the centre of the National Health Service with its tentacles going out to all parts of the health service. The Minister did not really like that. He said:

"The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier".-[Official Report, 8/2/12; col. 352.]

6.30 pm

If the noble Earl does not like the metaphor of tentacles reaching out across the health service, perhaps a better metaphor would be to see the NHS Commissioning Board as some sort of Spanish Inquisition, reaching out to the local clinical commissioning groups and to the health and well-being boards, saying, "We are here to help", which is no doubt what the Spanish Inquisition said in its heyday, and, "We are a resource to promote guidance", which is also what I suspect that the Spanish Inquisition might have said in its heyday. I have to ask whether what we have before us is really a less bureaucratic structure when it has this enormous inquisition-like structure sitting in the middle of it, promoting things at a local level.

We are replacing a fairly simple, basic idea: the Department of Health in the middle with a series of strategic health authorities and below those the PCTs. I believe that the previous Government should have done more to reduce the number of PCTs and I know that my noble friend Lord Warner worked very hard, in his various incarnations, to try to achieve just that. There are too many PCTs, but we did not need this Bill to reduce the number of PCTs. Nor did we need this Bill to give those PCTs clinical leadership. All that was required was to appoint local doctors, local clinicians, to lead those PCTs, and that could have been done from the Department of Health. You did not need this Bill to reduce bureaucracy and to simplify that fairly straightforward structure; you did not need this Bill to give clinical leadership; and you certainly did not need the top-down reorganisation, which I think we were promised we would not have.

Instead we shall have the Department of Health at the centre and the Secretary of State, who will not micromanage but who will have instead the NHS

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Commissioning Board. No doubt the Secretary of State, like some latter day Henry II will say, "Who will rid me of this rebellious CCG?", or, "Who will require something to happen in a local provider?" and popping up like some-I am mixing my metaphors-Torquemada will be the chief executive of the NHS Commissioning Board, Sir David Nicholson, who will say, "Ah, right, this is something that we will take on; it is not something that you, Secretary of State, should be micromanaging yourself; we, the NHS Commissioning Board will micromanage it through our network of clustered strategic health authorities, through our commissioning support groups and through the 300 CCGs, not forgetting these wonderful bodies, the clinical senates". No doubt this is my failure rather than anyone else's, but I have yet to understand exactly how the clinical senates will operate. I rather suspect that they will be like the Deputy Prime Minister's proposals for a replacement for your Lordships' House: they will be costly, rather powerless and part of this panoply of structures.

Throughout all this, there will be the field forces of the NHS Commissioning Board, not reaching out like tentacles, but being there as a resource to promote guidance and to make things happen. Apparently from this Bill, which allegedly will reduce bureaucracy-this morning I heard a government apologist on the radio saying that the Bill is all about reducing bureaucracy-we will have this network of individuals who will work with, or even sit on, local health and well-being boards, working to encourage and promote guidance and advice and working with clinical commissioning groups. They will be individuals who will, largely, be anonymous, invisible and unaccountable, except upwards to the NHS Commissioning Board. I am not sure that I accept that this will be a less bureaucratic structure but I am quite sure that it will be a much less clear and accountable structure than anything we have had before.

Recently, I was in a meeting with a number of London MPs who were talking about how these new arrangements will work. The question they wanted answered-this is the Henry Kissinger question-was who do we phone to talk to when some issues takes place which is not soluble by an individual clinical commissioning group or is not simply an issue that relates to one provider? Where do we go? Presumably, we ought to go to this anonymous individual, anonymous representative of the NHS Commissioning Board. No one will know who that person is. That person will not be accountable and presumably will not be supposed to talk to Members of Parliament.

The question that I hope the noble Earl will answer about where the Bill is going-I accept the comments of the noble Lord, Lord Fowler, that it may not be perfectly drafted-is: how baroque will the structure be underneath the NHS Commissioning Board? How will that structure of individuals and field forces, which will manipulate what happens in local CCGs and in local health and well-being boards, work? How will a field force be held accountable, visibly and locally to the population who will be affected by the decisions of those influenced by that local field force?



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The Earl of Erroll: My Lords, the description by the noble Lord, Lord Hunt, of the NHS Commissioning Board and its satellites shows that you do not get economies of scale, but complexities of scale. This amendment contains a wonderful concept that bureaucrats should curb their deepest urges and I think that should be in all public sector body reorganisation Bills, but how would you enforce it? What sanctions do we have against a person who does not comply and does not curb their bureaucracy? The challenge is the same as with the previous amendment: how do we motivate people to behave in a correct and ethical way, so that patients' and the taxpayers' interests are looked after? I do not think that it can be done by regulation, which is very sad.

Baroness Tonge: My Lords, I cannot resist putting my oar in on this Bill. I do so because, many years ago, I was in middle management in the health service. I had to take part in the many reorganisations that happened. I suppose the noble Lord, Lord Fowler, must have been one of the culprits who added to my misery at work. I tried to concentrate on clinical work but people pestered me about filing cabinets, which office they should work in, who would be their line manager and what exactly would they be managing. The noble Lord, Lord Hunt, is quite right to point out that as soon as you start on any sort of reorganisation, the people themselves enlarge it. They need PAs, they need offices and so on. Suddenly, they find they have no one to do the bean counting, so they need a bean counter. The Government give the impression that this is all a delightfully simple, wonderful, altruistic idea that GPs, in consultation with their patients, will commission the care for their patients. I have been a GP as well, and I can tell the House that GPs are not going to go home instead of going to the golf club, take out their laptops and do a bit of commissioning in the evening. It will not work like that. There will have to be an office block full of commissioners-just like PCTs-to do the job for them. What is worse, I understand that private medical companies are anxious to do the commissioning for the clinical commissioning groups. That will mean that taxpayers' money will go directly to private medical companies that will advise GPs on how to commission. I find that absolutely iniquitous and will fight it to the end.

We will see a mushrooming commissioning group with its advisers, whoever they are, in an office block. It will not stop there. The noble Lord, Lord Hunt, mentioned the number of different organisations that had been set up. The noble Lord, Lord Harris, mentioned the connections between them. It was deliciously simple for him to give us the image of tentacles reaching down from the National Commissioning Board to all parts of the health service. The noble Lord, Lord Rea, and I helped send round some information many weeks ago. There was a wonderful diagram of the interconnections between all the new bodies in the health service. It was like Spaghetti Junction. I am a midlander so I know what that junction is like. There is no way that one can navigate the maze of who provides what, and whether it is done nationally, locally, by local authorities or by clinical commissioning groups. It is overly and unnecessarily complicated. As the noble Lord, Lord Harris, said, we could have adapted

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the existing system to work much more efficiently, which would have been much cheaper and better. No wonder Professor McKee recently wrote an article in the BMJ asking who understood the Health and Social Care Bill, in which he explained that he did not understand it at all.

I will finish with an image that will delight noble Lords who are fed up with me. I went to the dentist this morning. Just as he got me in the reclining position, with the torture instruments looming, he said: "By the way, I know what I have to ask you: can you explain the Health and Social Care Bill?". About 10 minutes or so later I noticed that his eyes had glazed over and he was reaching for the drill, so I shut up and gave in.

Lord Newton of Braintree: My Lords, I hope that the noble Lord who moved the amendment will accept my apologies. I needed to recuperate after the previous debate so I was not present for the earlier part of this debate. Therefore, it is probably unwise for me to speak. However, I have checked that I will not cross the path of my noble friend Lord Fowler in what I intend to say, so I will risk it.

The noble Lord, Lord Hunt, will also recall-if I dare advert to it-that we had a somewhat jocular conversation in a cafeteria last week. He sought my support for the amendment and I said that I thought he was joking. There is a serious point here. First, we really should not include in primary legislation things such as minimum tiers of management. Secondly-I say this with an eye on my own Front Bench as well-one of the most irritating features of the discussions for any practitioner is the naked populism of assuming that anybody who is not a doctor or clinician contributes nothing to the service. I have been chair of three health trusts, as well as Health Minister many years ago. What do we mean by "bureaucrats"? Do we mean the people who pay the nurses and doctors, and who make sure that the drugs are ordered on time and organised in neat rows? Do we mean the people whose duty is to pay small businesses in time so that they do not go bankrupt? We are all against having a system in which it takes 25 men to change a light bulb and costs about £20 when the rest of us could go out and buy one and put it in the socket. I am not talking about that kind of thing but about the fact that these resources-nurses, doctors, pharmacists and a lot of other people-are precious, and if they are not well organised by people setting up sensible systems, we will not get the best out of them. The constant knocking of management under the heading of "bureaucracy" is deeply counterproductive and I will not go along with it in the course of these debates.

I will make two further points. First, why do so many GPs' practices have practice managers? It is because they recognise that somebody needs to manage the resource to get the best out of it. The managers perform a very valuable role. My second and even more important point, born of my experience in the three health trusts, and perhaps particularly at the Royal Brompton and Harefield, is that it is critical to involve doctors in that management. Therefore, in some ways the problem is much more complicated than has been registered. Trusts where managers sit in one silo and fire bullets or bombs at doctors sitting in

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another do not work. We need to engage doctors and, where they have an interest in performing a managerial role, train and involve them as managers. That is what we did at the Brompton-which was no great credit to me-and it transformed things.

This is a grossly oversimplified amendment. It does not belong in primary legislation. It rests on a crude, populist misunderstanding of what we mean by bureaucracy and management in the NHS.

6.45 pm

Earl Howe: My Lords, during the passage of the Bill we have had much discussion about the importance of freeing front-line professionals from needless bureaucracy and ensuring that they are able to focus on patient care-not least when we considered the duties of autonomy. This is one area where the House is in agreement. Certainly one aim of the Bill is to reduce bureaucracy and micromanagement, prevent politicians in Whitehall second-guessing the decisions of doctors and nurses, and streamline the architecture of the NHS.

The noble Lord, Lord Hunt, indulged himself in one of his occasional rhetorical forays, which I enjoyed. However, the amendment is rich coming from him. Perhaps I should remind the House that the previous Government did to management costs what the noble Lord accused us of doing. Since 2002-03, the management costs of PCTs and SHAs have increased by more than £1 billion-a rise of more than 120 per cent. The Bill aims to get a grip on a problem that under the previous Government simply got out of control. The noble Lord will know that my department has confirmed an overall running-cost budget of £492 million. That represents a 50 per cent reduction in costs and staff compared to the current cost of functions that will transfer to the board. At board level, the work previously done by 8,000 people will be done in future by approximately 3,500 full-time equivalent people. That is a major reduction.

The amendment tabled by the noble Lord seeks, first, to introduce a new duty on the Secretary of State to prevent bureaucracy and, secondly, to minimise the layers of management tiers within the Commissioning Board. The noble Lord produced a confection of arguments to bolster his case that bureaucracy in the NHS is increasing rather than diminishing. I can tell the House that the opposite is true. In saying that, I should stress that I am not in any way denigrating NHS managers. I have never done that and I will never do it.

Setting aside the noble Lord's knockabout routine and getting back to earth, I agree with the principle behind this amendment. Noble Lords will already be aware of the autonomy duties, which we have recently amended, in no small part due to the Constitution Committee. Those duties ensure that proper consideration is given to whether any requirements or objectives set by the board or the Secretary of State will place unnecessary burdens on the health service or distract from good quality patient care. In addition, the Bill places duties on the NHS Commissioning Board, CCGs and other bodies to exercise their functions effectively, efficiently and economically. That is in new Section 13D

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of the National Health Service Act 2006 for the board and new Section 14P for CCGs. Together, I believe that these provisions ensure that the duty to maximise efficiency and minimise bureaucracy is embedded throughout the system. We do not need anything further.

The noble Lord, Lord Warner, asked me a question that I have been asked before in these debates. It concerned why we did not simply reform the PCT model. We chose not to try to reform the PCT model because it would not have delivered the empowered clinical commissioners we want to see and, indeed, the Opposition want to see. This Government supported the principle of practice-based commissioning, but there is one thing to say about practice-based commissioning: it was not working. It did not live up to the ambitions that people had for it. Central to this was clinical commissioners' lack of autonomy. Only by conferring functions directly on clinical commissioners, as this Bill does, can that autonomy and responsibility be properly established.

Subsection (a) of the noble Lord's amendment refers rather bafflingly, as my noble friend Lord Fowler pointed out, to a minimum level of management tiers. I am not quite sure how that would be interpreted by the courts, but I believe that the noble Lord is drawing attention to the published proposals for the board's organisational structure. In line with the vision we set out in the White Paper, the proposals put forward make clear that the board will be a single nationwide organisation that will work across the country to improve quality and outcomes. However, there are some who have focused on the board's proposal for a maximum of five layers of management, claiming that this represents some sort of increase rather than a reduction in bureaucracy. That is not the case. The structure proposed by the board is based on sound and well recognised principles of effective organisational structure. The proposed organisational structure for the board is designed above all to support it in its overarching role to improve health outcomes. What surely matters is the board's efficiency and effectiveness. In fact, as I have already said, the board will operate with a 50 per cent reduction in running costs in comparison with the current system. I am not attracted to the part of the amendment that requires the Secretary of State to influence the number of management tiers in the NHS Commissioning Board. Apart from being inappropriate, it is unnecessary. The Bill already makes clear that the Secretary of State sets the resource limit for the board and new Section 223E of the 2006 Act allows him to impose a cap on administrative spend. Together these provisions ensure that financial limits are placed on the board, which will necessarily influence the way in which it is structured. However, I believe it would be inappropriate for the Secretary of State to go any further than this in influencing the organisational design of the board. The board is the body best placed to determine how to organise itself in the most effective and efficient way. It is therefore our intention to allow it as much autonomy as possible in determining its own membership, structures and procedures.

All our proposals for modernising the NHS, including the provisions in the Bill, are designed to minimise bureaucracy, micromanagement and unnecessary waste

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to enable the whole system to focus on what really matters, which is patient outcomes. For example, the outcomes framework will directly link quality improvement and outcomes with commissioning; clinically-led commissioning groups will be judged, through the commissioning outcomes framework, on whether they improve patient outcomes and experience rather than process targets; the NHS Commissioning Board will hold GP commissioners to account for their performance against NICE indicators; and CCGs will hold providers to account for driving up quality improvement using contracts and incentives. It is quality and outcomes that matter and with the safeguards already in place to limit administrative spend throughout the system, I believe that the noble Lord's amendment is unnecessary. I hope that he will feel able to withdraw it.

Lord Hunt of Kings Heath: I must say that I am really rather disappointed by the noble Earl's response to my constructive amendment. He does not seem to have answered the charge that is being made. First, I think we are all agreed that when we talk about bureaucracy we are not talking about the fine managers that the NHS has to whom we owe so much. This is an argument about the structure, the layers and the cost of a market that the Government wish to bring in to the health service. It is not about managers in the health service.

The fact is that the Secretary of State and his colleagues, including the noble Earl, have continued to intervene in the health service on a daily basis. They have yet to explain how, if this Bill eventually receives Royal Assent, at that point, magically, Ministers are going to step back and simply let this new system continue. I do not believe a word of it. What I believe will happen is that on the one hand you will have this complex structure where the mantra is that it is all arm's length, it is all down to the clinical commissioning groups, the market and the gentle guidance of Sir David Nicholson and his colleagues at the national Commissioning Board, and Ministers can simply step back. It will not happen. What we will have is the system that the Bill enacts, if it is enacted, and Ministers continuing to micromanage. It is inevitable that Secretaries of State are accountable to Parliament, and they will be required by the very process of parliamentary democracy to continue to intervene and to take a close interest in what is happening. That is the charge I put to the Government as to why I believe that this is going to be a very complex situation indeed.

It is always good to debate with the noble Lord, Lord Fowler. Twenty years ago, I enjoyed debating with him issues mainly to do with the funding of the National Health Service. I think the National Association of Health Authorities and Trusts was a very modest organisation. It was very lean and certainly not subject to the strictures of the noble Lord who suggested that it was part of the bloated bureaucracy that I think he was implicating me in. He does not like the idea of declaratory law. That is all very well, but what is Clause 4 but a declaratory statement: "The Secretary of State's duty as to promoting autonomy"? Indeed, the noble Earl, Lord Howe, referred to it in his winding-up speech. I have to say to him that if the duty of autonomy were currently on the statute book, I do not

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think that he could have brought this legislation in under it because it states that,

This whole edifice is going to impose enormous burdens on many such people within the National Health Service.

The noble Lord, Lord Fowler, referred to the Griffiths report-at 24 pages, it was a remarkable letter which had a long-term impact on the health service. He will recall that we were very strong supporters of the introduction of general management. I am very concerned about the structures that are now being brought in because they may well inhibit the kind of leadership and clinical engagement that we saw as a result of the Roy Griffiths management inquiry.

I have to say to my noble friend Lord Harris that the description of Sir David Nicholson as the chief inquisitor was a little unfair.

Lord Harris of Haringey: But only a little.

7 pm

Lord Hunt of Kings Heath: All of us who have worked with Sir David will know that he is a very fine manager and I am very glad that someone of his calibre is in that position.

The worry is that although the national Commissioning Board is going to be one organisation, it will have different layers and at the local level it will be very powerful. If there are, say, 50 local offices of the national Commissioning Board, given the smallness of clinical commissioning groups-the Government have followed us into the trap made when we created too many primary care trusts-when it comes to the real issues at local level and the kind of leadership of a system that goes across local authority boundaries and covers populations of around 1 million to 2 million, the clinical commissioning groups are simply not going to be big enough to provide the kind of strategic leadership that is required. Inevitably it is going to fall to the local office of the national Commissioning Board. I worry that there is no accountability because these will be simply the outposts of a national body.

However much one might criticise primary care trusts or strategic health authorities, the fact is they had a majority of non-executive directors on their boards, they met in public and they felt some local accountability. The local offices of the national Commissioning Board will have no such feel because their sole accountability will be to the national Commissioning Board at national level. Alongside that, we see from Mr Lansley's article in the Health Service Journal that he is very keen on the implementation of a market. We know that that will come at a price-in terms of the complexity of contract-making and of legal costs and certainly in the profits that private sector companies will wish to take out of the National Health Service.

This is a very complex structure that the Government are introducing. My amendment is a helpful reminder to the Secretary of State that there should be a very clear presumption that the kind of bureaucratic monstrosity that is now being introduced ought not to be introduced. I wish to test the opinion of the House.



13 Feb 2012 : Column 614

7.03 pm

Division on Amendment 18

Contents 169; Not-Contents 231.

Amendment 18 disagreed.


Division No. 2


CONTENTS

Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Bilston, L.
Blackstone, B.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Colville of Culross, V.
Corston, B.
Crawley, B. [Teller]
Davies of Oldham, L.
Deech, B.
Desai, L.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Erroll, E.
Evans of Watford, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kestenbaum, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Lea of Crondall, L.
Leicester, Bp.
Liddell of Coatdyke, B.
Liddle, L.
Lister of Burtersett, B.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Monks, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Nye, B.
O'Neill of Clackmannan, L.
Palmer, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prescott, L.
Prosser, B.
Quin, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.


13 Feb 2012 : Column 615

Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tonge, B.
Touhig, L.
Triesman, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Baglan, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Worthington, B.
Young of Norwood Green, L.
Young of Old Scone, B.

NOT CONTENTS

Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Barker, B.
Benjamin, B.
Berridge, B.
Black of Brentwood, L.
Blencathra, L.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Buscombe, B.
Butler of Brockwell, L.
Byford, B.
Caithness, E.
Carlile of Berriew, L.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elton, L.
Emerton, B.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Feldman of Elstree, L.
Finlay of Llandaff, B.
Flight, L.
Fookes, B.
Fowler, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Glasgow, E.
Gold, L.
Goodhart, L.
Goodlad, L.
Goschen, V.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harries of Pentregarth, L.
Harris of Peckham, L.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hollins, B.
Howard of Lympne, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Kakkar, L.
Kilclooney, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.


13 Feb 2012 : Column 616

Leach of Fairford, L.
Lee of Trafford, L.
Lexden, L.
Lichfield, Bp.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Loomba, L.
Lothian, M.
Lucas, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Maples, L.
Mar, C.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mawson, L.
Meacher, B.
Miller of Hendon, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newlove, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L.
Northover, B.
O'Cathain, B.
O'Neill of Bengarve, B.
Oppenheim-Barnes, B.
Oxburgh, L.
Palmer of Childs Hill, L.
Palumbo, L.
Pannick, L.
Parminter, B.
Patel, L.
Patten, L.
Perry of Southwark, B.
Plumb, L.
Popat, L.
Ramsbotham, L.
Randerson, B.
Rawlings, B.
Rennard, L.
Ribeiro, L.
Risby, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Rowe-Beddoe, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Sterling of Plaistow, L.
Stewartby, L.
Stirrup, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Tugendhat, L.
Turnbull, L.
Tyler, L.
Tyler of Enfield, B.
Verma, B.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Warsi, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Younger of Leckie, V.

7.15 pm

Clause 8 : The NHS Commissioning Board

Amendment 19

Moved by Lord Hunt of Kings Heath

19: Clause 8, page 4, leave out lines 10 to 21 and insert-

"(2) The Board has the function of arranging for the provision of services for the purposes of the health service in England in accordance with this Act and subject to any directions issued by the Secretary of State.



13 Feb 2012 : Column 617

(3) The Board must exercise the functions conferred on it by this Act in relation to clinical commissioning groups so as to secure that services are provided for those purposes in accordance with this Act.

(3A) The Secretary of State may give a direction to the Board to discharge each of those functions, and in such manner and within such period or periods, as may be specified in the direction."

Lord Hunt of Kings Heath: My Lords, Amendment 19 comes back to a theme which takes us to the overriding responsibility of the Secretary of State for a comprehensive health service and to the relationship between the Secretary of State and the national Commissioning Board. I do not want to go over the ground that we went over in the previous debate but I want to make just two or three points.

The Minister will recall that in Committee we debated the whole question of the concurrent power being given to the national Commissioning Board in relation to the Secretary of State's responsibilities in Clause 1. Given Clause 1 and our really important debates on it, and the welcome agreement on the first day on Report regarding the way in which an amendment was accepted to make clear that the Secretary of State is accountable to Parliament for NHS provision, I remain concerned as to whether it is right that a body such as the national Commissioning Board should carry such responsibilities as well-that it should have a concurrent responsibility and duty.

Surely, ultimately, the national Commissioning Board is a secondary body as compared to the Secretary of State. The very fact that there is a mandate in which the responsibilities and duties of that board are laid down on a regular basis by the Secretary of State reinforces the proper relationship between an unaccountable body, such as the national Commissioning Board, and an accountable person, such as the Secretary of State. I should be grateful if the Minister would give further reflection as to whether a concurrent power really is the appropriate way in which that relationship should be set out.

Of course, that is associated with the power of intervention by the Secretary of State. It seems to me that in the end, since the Secretary of State is accountable to Parliament for provision and for ensuring a comprehensive service, if he feels that the national Commissioning Board is not doing the right thing or that there is a matter which requires the intervention of the Secretary of State, it is right that that intervention can be taken out without obstruction or legislation. In my view, that would lead to a confusion of role as between the Secretary of State and the national Commissioning Board.

When we discussed this issue in Committee, I asked the Minister what would happen if there was an issue. Let us take, for instance, some of the recent interventions by the Secretary of State. He has expressed concern about the way in which primary care trusts have manipulated waiting lists. Rightfully, in my view, he sought to intervene. How would you do that under the new arrangements if clinical commissioning groups or some individual clinical commissioning groups were not doing what the Secretary of State thought to be appropriate?

From our debate in Committee, I had the impression from the Minister that in those circumstances provision

13 Feb 2012 : Column 618

could be made in the mandate set for the board by the Secretary of State. I can see that every so often you can alter the mandate to deal with an issue like that. But sometimes he will need to intervene rapidly rather than have to wait for the process of a mandate to be set. I also suspect that there is a risk that the mandate could become very detailed and prescriptive-in other words, the micromanagement that the Minister is so keen not to see introduced. There will be issues that arise during the year which might not have been envisaged when the mandate was drawn up.

The noble Earl may well say that we will have the intervention powers set out in proposed new Section 13Z1 set out on page 24. My problem with this is that the wording constrains the intervention because it has to be based on a failure to discharge or a failure properly to discharge any of its functions, and the failure is significant. Of course, the intervention none the less is based on what the Secretary of State himself considers, and no doubt he would always be properly advised by his officials and, in extremis, the Government Law Officers. But I can envisage situations in which the NHS Commissioning Board actually rejects the Secretary of State's view and where it would be deemed that the issue is not one that comes under the auspices that could lead to intervention under Section 13Z1. I think that there should be a clear right in the Bill for the Secretary of State to have a power of direction.

In the end the sole accountability of the national Commissioning Board has to be through the Secretary of State and thus to Parliament. The board is not elected; it is an appointed body. There has to be full accountability, and for me, one element of that accountability is that the Minister responsible to Parliament has the right to tell that body what to do. I feel very uncomfortable with a body that is floated off. Okay, we have the mandate, but in the end it is not an accountable body except through the relationship it has with the Secretary of State, so it is right that the Secretary of State should issue direction powers without being fettered as I believe he is in Section 13Z1.

I do not think I need to mention the other two amendments at great length. Amendment 23 merely tries to encourage the noble Earl to say that clinical commissioning groups have the function of safeguarding the comprehensive provision of NHS services. It is very important that within all the autonomy that the Secretary of State wishes to give the clinical commissioning groups, it is made clear that they must, none the less, sign up to the overriding responsibility of anyone involved in the NHS to ensure that comprehensive provision is safeguarded. Amendment 70 is really consequential on Amendment 19. I beg to move.

Earl Howe: My Lords, Amendments 19 and 70 seek to reintroduce the Secretary of State's powers to direct the health service. I have listened with care to what the noble Lord has said, but I continue to believe that this would be a retrograde step on every count, not least that of transparency. Under the Bill as it stands, the Secretary of State will be able to set objectives and requirements both through the mandate and through "standing rules" regulations under Clause 19, but unlike directions, these would be subject to full scrutiny,

13 Feb 2012 : Column 619

and the Bill creates a clear expectation that they would be set only once a year in order to provide certainty for planning. Ministers would also have robust intervention powers in the event of significant failure, as the noble Lord mentioned.

The system we are creating is designed to be predictable, transparent and structured, and will provide stability for the health service. I think that this is a better approach than allowing the Secretary of State to direct the health service whenever he wants, which risks returning us to the unpredictability and opaqueness of the current system. The noble Lord described the Commissioning Board as "unaccountable". I must scotch that myth. The Secretary of State will have wide-ranging powers over the Commissioning Board, most prominently through the mandate and the standing rules, which will enable the board to be held rigorously to account. In addition, the board will have to meet in public, produce a business plan and an annual report, both of which will have to be laid before Parliament. Further, I would remind the noble Lord of Clause 51, which covers the,

The process of holding the board to account is not a once-a-year task. In turn, the Commissioning Board will hold CCGs to account for the quality outcomes they achieve and for financial performance-and, again, will have the power to intervene where there is evidence that CCGs are failing or likely to fail to fulfil their functions. If the Commissioning Board fails to hold CCGs to account, the Secretary of State could then direct the board to do so. If the board failed to comply with that instruction, the Secretary of State could either discharge the function himself or make arrangements for another body to do so on his behalf. So it is quite wrong to say that there are no levers available to the Secretary of State.

I turn now to Amendment 23, which emphasises the need for clinical commissioning groups to safeguard,

Noble Lords will recall that the House has already agreed an amendment to Clause 12 which explicitly requires CCGs to act consistently with the discharge by the Secretary of State and the Board of their duties to promote the comprehensive health service, and with the objectives and requirements in the mandate.

I fully appreciate and support the intentions behind this amendment, and I hope that the discussion we have already had and the amendment we have already discussed to Clause 12 will offer the noble Lord a reassurance that the effect of this amendment is already covered in the Bill. In the light of what I have said, I hope that he will feel able to withdraw the amendment.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl, Lord Howe, particularly for his remarks in relation to Amendment 23. Clearly we are not going to agree about this matter. I do wish that the late Lord Marsh could still be present because he would have enjoyed these debates. I think that he would have reminded us of the traditional relationship between the chairman of the board of a nationalised

13 Feb 2012 : Column 620

industry and the Minister responsible to Parliament. Although we have lost those nationalised industries, in one sense the Department of Health is now busily engaged in setting up the kind of structure that in many ways is akin to those industries. That is because the chairman and chief executive of the national Commissioning Board are, in essence, being handed a huge amount of power by the Secretary of State. They are to be given the budget, the mandate and the standing rules, and are to be told to get on with it. If we go back to our experience with the nationalised industries, of course it never worked because there was a continuous tension between the board of a nationalised industry and the Minister which arose from the fact that the Minister was accountable to Parliament for the running of the railways, iron and steel and the coal board.

That is exactly what we are constructing today. We have the myth that simply by having a mandate and standing rules, we can say to the national Commissioning Board, "Get on with it. I as a Minister will no longer intervene unless in extremis", under the circumstances set out in Bill. Life is not like that. Parliament will continue to debate the health service, issues will arise and Ministers will make pronouncements. I do not believe for a minute that the 12 or so pronouncements we have heard from Ministers over the weeks that this Bill has been in your Lordships' House will not be followed by similar pronouncements under the new structure. They will be forced to do so because Parliament will require it. That is the risk and why I believe it is such a complex system. On the one hand there is a structure which is based on an arm's-length relationship, a market, with clinical commissioning based on a mandate, while on the other hand there is still the Secretary of State who will be fully held to account in Parliament. There will be enormous tension and great confusion within the National Health Service. For that reason, there is a strong argument for accepting that, in the end, the Minister is accountable and ought to have a power of direction. Saying that this can be done through a mandate and standing rules is not realistic, and no doubt, if the Bill is enacted, we will see this played out. I do not think anyone should be under the misapprehension about the fact that we are building into these arrangements a very unstable situation. But we have had a good debate, and I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Consideration on Report adjourned until not before 8.31 pm.

Arrangement of Business

Announcement

7.31 pm

Lord De Mauley: My Lords, may I remind noble Lords that this evening's debate, as is the case with all dinner-break Questions for Short Debate, is time-limited to one hour? Thirty noble Lords have signed up for the debate, meaning that all speakers, other than the noble Baroness, Lady Jay, and the Minister, are limited to one minute.



13 Feb 2012 : Column 621

Assisted Dying

Question for Short Debate

7.32 pm

Asked by Baroness Jay of Paddington

Baroness Jay of Paddington: My Lords, I am grateful for the opportunity to ask the Government this important and timely Question. On 25 February, it will be two years since the Director of Public Prosecutions published his Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide. I think that it is fair to say that those new guidelines were generally welcomed. They relate to a criminal offence which carries a maximum prison sentence of 14 years and, of course, to the general issue of assisted suicide, which, as your Lordships are aware and as we see from the speakers list tonight, continues to be of great interest and concern. Until this evening, the guidelines have not been debated in Parliament, so this is a very appropriate moment to hear the Government's assessment of how they are working, not least because there have been two more recent publications which are pertinent.

In January, the expert Commission on Assisted Dying, chaired by my noble and learned friend Lord Falconer of Thoroton concluded after 12 months' work that the,

The commission proposed an entirely new legal framework. I am very pleased that the noble Baroness, Lady Young of Old Scone, who was one of the commissioners, is speaking in this debate. Just last week, the General Medical Council published new draft guidelines dealing with the circumstances in which a doctor is alleged to have assisted a suicide. Those guidelines are now out for consultation.

As your Lordships can see, this is a very live current issue, but perhaps I may remind the House of the background. The Suicide Act 1961 explicitly gives the Director of Public Prosecutions discretion over whether to prosecute cases of assisted suicide. Over the years, this has led to complicated and difficult ambiguities in a particularly sensitive area. In 2009, the case of Debbie Purdy, who is suffering from progressive multiple sclerosis, came to the House of Lords. She was seeking clarity about her husband's future legal position if he helped her to commit suicide. The Law Lords ruled that the Director of Public Prosecutions must as a result of this case create what they called a "custom-built" statement, indicating the various factors for and against prosecution. I am delighted that the noble Lord, Lord Pannick, who represented Mrs Purdy in that case, is speaking this evening.

The resulting policy guidelines, which we are discussing tonight, included 16 factors where the DPP will be more likely to judge that it is in the public interest to prosecute and six where prosecution is less likely. The six factors weighing against prosecution are: the victim had reached a voluntary, clear, settled and informed

13 Feb 2012 : Column 622

decision to commit suicide; the suspect was wholly motivated by compassion; the actions of the suspect were of only minor encouragement or assistance; the suspect tried to dissuade the victim from committing suicide; the suspect was reluctant to assist; and the suspect reported the victim's suicide to the police and fully assisted them in their inquiries. I should note that many people object to the use of the terms "victim", meaning in this case the person who has died, and "suspect", the assister in this context, but I understand that the DPP feels that these are unavoidable in the criminal law.

As so often, it is probably more helpful to look at individual cases; for example, that of Geraldine McClelland. Last December, Geraldine McClelland died in Switzerland, having been accompanied to the assisted suicide organisation, Dignitas, by both her brother and her sister. Geraldine, who was terminally ill, made clear her desire to control her own death to the extent that she wrote an open letter to the public, telling us:

"I am 61 years old and am dying from lung and liver cancer ... I have chosen to travel abroad to die ... I am not sad that I will die today ... I feel sure this is the right decision for me and I am relieved that I won't be forced to suffer any more".

Frankly, I cannot imagine anyone thinking that it would be in the public interest to prosecute Geraldine's brother and sister, who accompanied her.

It is worth recording that it is estimated that more than 180 Britons have travelled to Switzerland to die in the past decade, but, to date, no one has been prosecuted for accompanying them or assisting with arrangements. Interestingly, it does not look as though the existence of the new prosecuting guidelines since 2010 has led to an increase in the number of Britons going abroad to die. The media have reported that there were fewer in 2011 than in 2010. On the other hand, the Crown Prosecution Service reports an increase in the cases reported to the authorities-50 between January 2009 and December 2011 compared with only eight in the five years between 2003 and 2008. The greater willingness to come forward seems to have been prompted, in part at least, by the new prosecution policy and is certainly to be welcomed. Overall, the legally sanctioned clearer and more flexible approach to what are often emotionally and practically difficult, sad situations is a great step forward.

However, there are two significant problems with the policy as it now stands and I should be grateful for specific comments from the Minister on them. The first and perhaps most obvious is that, although Debbie Purdy brought her landmark case in the hope of protecting her husband from criminal charges-that is, if he helped her in the future to die-the new policy maintains the position that there can be no negotiated immunity before a crime is committed. It would be much more humane and realistic to establish that, when someone has, in the words of the new guidelines,

their circumstances could be investigated before they die. Apart from anything else, if their intention was known in advance, the person wanting to die might be offered alternative care and treatment options, and might even change their mind.



13 Feb 2012 : Column 623

A change in the law or extension of the custom-built guidelines to achieve this would also open up the possibility of involving medical assistance, because the second failing of the guidelines is the lack of advice to doctors and nurses. Indeed, the policy explicitly states that those with professional caring responsibilities are more likely to be prosecuted if they assist a suicide than a lay relative or friend. This is one of the 16 factors which tend to lead to prosecution. There is growing evidence, though, that this creates practical problems for health professionals looking after patients at the end of life. We are in danger of creating a paradox here. Doctors and nurses think that they are still actively precluded from any involvement in assisted suicide, but, on the other hand, patients and their families today feel encouraged to discuss it with the professionals whom they trust. It would be extremely helpful if there could be clear understanding about the nature and limits of any assistance that a healthcare professional might give. To take an example, is a doctor equally liable to prosecution if he prescribes lethal drugs or, on the other hand, he supplies medical records for a patient who has made the decision to travel abroad to die and asks his medical practitioner for them? I very much welcome the General Medical Council's initiative in consulting on legal issues for the medical profession as it is doing now and I hope that the council gives valuable guidance when that process is completed later this year.

Overall, the prosecuting policy has produced positive effects, which are widely supported by the public where polling suggests that more than 80 per cent are in favour of not prosecuting those who help a relative or close friend to die. I am very grateful to all the distinguished Members of the House who will take part in what may be a slightly breathless debate tonight. The number of speakers who have decided to take part indicates that this House takes this issue very seriously and we should perhaps be asking for government time to discuss it more fully soon. I look forward to the Minister's reply and particularly his opinion on whether the present policy is regarded as a permanent solution and settled, or whether it may need amendment and extension in the future.

7.41 pm

Lord Ribeiro: My Lords, I thank the noble Baroness for bringing this very important debate to the House. I declare an interest as a past president of the Royal College of Surgeons. In 2005, we made it clear that we did not support assisted suicide. In evidence to the Commission on Assisted Dying in April 2011, the Royal College made two clear statements:

"The law as it currently stands should not be changed and no system should be introduced to allow people to be assisted to die",

and:

"The College does not recognise any circumstances under which it should be possible for people to be assisted to die".

I understand that the policy for prosecutors issued by the Director of Public Prosecutions does not indicate a change in the law, but for me there appear to be ambiguities that require clarification. Under the heading:



13 Feb 2012 : Column 624

"Public interest factors tending in favour of prosecution",

in paragraph 43(14),

or, "nurse", may be seen as being in danger of prosecution. That seems at odds with the, "factors tending against prosecution", in paragraph 45(2) where,

I hope that my noble friend will be able to clarify this point as it is bound to put doctors and nurses in considerable doubt as to the interpretation of their actions. A good doctor knows when he or she should,

and that doctrine should be maintained.

7.42 pm

The Earl of Glasgow: My Lords, death, as we all know, comes to all of us, so there is no point in being frightened of it. What we do fear, though, is the manner of our death. If we are unfortunate enough to contract some terminal illness involving a painful or undignified death, we may well wish to die before the worst hits us. But to achieve that we will need assistance and, as the law now stands, any doctor or relative who helps us to die prematurely is committing a criminal offence.

The only hope of getting away with it is by persuading our loved ones to take us to Dignitas in Switzerland. It is not where we want to die, it is not how we want to die, but it is the only option open to us. More than 100 terminally ill Britons have chosen the Dignitas route and although the friends and relatives who accompany them are committing a crime, the public prosecutor has chosen not to prosecute any of them. He has rightly concluded that they did what they did for compassionate reasons and were complying with the patient's wishes. That ruling, I submit, should apply to all cases of assisted dying. The public prosecutor has chosen compassion over the law and it is time that the law was changed to reflect that.

7.43 pm

Baroness Hollins: My Lords, I express an interest as a past president of the Royal College of Psychiatrists, which issued a statement in 2005 about the law as it relates to assisted dying. The prosecuting policy published two years ago is not the only one of its kind. There are prosecuting policies relating to other offences, including domestic violence, racial hatred, dangerous driving and rape. The Director of Public Prosecutions told the group chaired by the noble and learned Lord, Lord Falconer, last year:

"There is a residual discretion for all offences whether to prosecute or not. This is a particular version of it. But it's not unique by any stretch of the imagination; it's the way our law operates".

We need to remember that and to see the law on assisted suicide and its associated prosecuting policy within the context of the criminal law as a whole rather than in isolation.

The penalties that it holds in reserve provide a powerful deterrent against malicious assistance and like other criminal laws it gives prosecutors the discretion

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not to press charges where it is clear that assistance with suicide has been, to quote the words of the prosecution policy, "wholly motivated by compassion".

7.44 pm

The Lord Bishop of Lichfield: My Lords, the current guidelines on assisted suicide act to protect vulnerable people and to deter others from acting in an unprincipled manner in bringing about the end of another person's life. That so few cases have been brought to the DPP is proof of the deterrent value of the law. That none of these cases has resulted in prosecution is proof that the law is being applied with compassion and good sense.

Last week, the Church of England General Synod passed a motion by 264 votes to nil indicating, among other things, its opposition to a change in the law in assisted suicide and its support for the current DPP's guidelines. The synod represents not only bishops but clergy and lay people democratically elected by their peers. Its decision, taken after careful consideration and debate, bears testimony to the efficacy of the current law and its application.

7.45 pm

Baroness Emerton: The prosecution guidelines make it clear that there does not need to be a change in the law in any way and that encouraging or assisting suicide remains unlawful. The law that we have deters malicious or manipulative assistance with suicide and it ensures that the few cases that occur are generally those where there has been serious soul-searching and which do not need to be prosecuted. There are fewer than 20 cases a year throughout England and Wales. Contrast that with the US state of Oregon, where the current rate of legalised assisted suicide equates to more than 1,000 such cases here. The law that we have is both firm and compassionate and the DPP is on record as having said that the law works well in practice.

7.46 pm

Baroness Morris of Bolton: My Lords, like other noble Lords who have spoken, I believe that the law we have on assisted suicide combines deterrence with compassion. Its effectiveness as a deterrent is shown by the infrequency of the offence, while the discretion that it gives to the prosecutors to assess each case on its merits ensures that there is sensitive handling of genuinely compassionate cases.

It is impossible to legislate in detail for every conceivable human situation. What we have now is a law that makes a firm statement that suicide is not something to be encouraged or assisted, but which allows each case to be dealt with by the prosecutors in the light of all the evidence.

I appreciate that the desire for clarification is driven by decency and concern, but I fear that relaxing the law will lead all too easily to pressure on the vulnerable. That is why I believe fervently that we should leave the law and prosecuting policy where they stand.

7.47 pm

Lord Joffe: My Lords, because the Director of Public Prosecutions can only interpret but not change the law, the policy puts members of society at risk for

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two reasons. First, patients have to rely not on doctors but on individuals who have no experience to assist them to die, which will result in botched suicides. Secondly, safeguards are needed before the patient ends his or her life and not after it is ended, as required by the policy. The solution is to change the law to allow assisted dying with rigorous safeguards which would protect vulnerable members of society and allow terminally ill patients to end their suffering by ending their lives, if that is what they want.

7.48 pm

Lord Butler of Brockwell: My Lords, the number of speakers in this debate shows that the appetite for debating this issue in your Lordships' Chamber has quite rightly not diminished. We should be grateful to the noble Baroness, Lady Jay, for this-albeit inadequate-opportunity. But the first question for the Government should surely be whether they can provide a proper opportunity for debate.

The existence and the content of the DPP's guidelines are welcome. But unlike other speakers, I feel that the present situation is not satisfactory. People important to someone wishing to end their lives are left in uncertainty about whether they may be prosecuted: principally their inheriting children and their medical carers. All helpers, whether prosecuted or not, face the trauma of a police inquiry. We need a proper framework of law on this very sensitive matter. It is the duty of government and Parliament to make progress sooner rather than later.

7.49 pm

Lord Maginnis of Drumglass: My Lords, suicide was decriminalised 50 years ago, but not because it was regarded as something to be taken lightly. Consider emergency responses to 999 calls, the attempts that are made to resuscitate people who have tried to take their own lives, suicide watches where people are thought to be at risk of self-harm-society's attitude to suicide is no different from how it was 50 years ago. We may not prosecute those who attempt it and survive, but society does not regard suicide as something to be encouraged and assisted. The law already recognises exceptional circumstances, where helping someone to end their lives for wholly compassionate reasons does not usually need to be prosecuted. The DPP has discretion to look at every case on its merits and to judge whether there has been malice or manipulation or whether there has been evidence that there has been serious soul-searching and to treat the cases accordingly. Thanks to the law's deterrent effect, assisted suicide is a rare offence, with fewer than 20 cases a year throughout England and Wales, many of which do not need to be prosecuted.

To sum up, we have the best of both worlds-deterrence combined with compassion. We tinker with this at our peril.

7.51 pm

Lord Turnbull: My Lords, despite the advances made by the DPP's guidance, the new status quo still leaves the dying and their families with three unsatisfactory choices: to soldier on with their suffering; to accept

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assistance but still with risk of prosecution; or to pay up and travel to Switzerland to die away from home and family.

Parliament should no longer hide behind an official, however enlightened. Any change will face opposition, not just from faith groups and the palliative care sector but also from what might be called the slippery-slopers, who have already concluded that a satisfactory framework can never be found. We should not accept this defeatism; the Bill introduced by the noble Lord, Lord Joffe, was denied a Second Reading, thereby preventing the issues from being explored. With the expertise that we have in this House in medicine, ethics and the law, a robust framework of safeguards must surely be attainable.

7.52 pm

Lord Patten: My Lords, for a quick background to my views, some, including me, sense that we are drifting more and more into an ever more eugenic society in this country and that there are those who wish to give encouragement to that direction of travel at every opportunity. While I am concerned about this drift, I am equally convinced in the matter of assisted suicide that the present prosecution policy, making it clear that it does not in any way change the law and that encouraging and assisting a suicide remains unlawful, is clear and good. This is sound principle, and the DPP is on record as stating that the law on assisted suicide "works well in practice". Good again. This is reinforced not just by the Royal College of Surgeons, as we have heard from my noble friend, but by the Royal College of Physicians, in explaining that their duty of care does not include in any way being part of a suicide. Good yet again, my Lords.

7.53 pm

Lord Browne of Belmont: My Lords, assisting someone to commit suicide is a criminal offence, and rightly so. At present, if someone feels that they are a burden on their families because of illness, most people will not consider assisted suicide or feel pressured by that option, for the very simple reason that it is not legal. As soon as you change the law to make assisted suicide legal, even if only in tightly circumscribed contexts, that changes. This must be of huge concern for any civilised society. Of course, I understand that there are a minority of people who really want to be helped to commit suicide; however, any benefit that they might claim to gain from a change in the law would be more than outweighed by the increased pressure towards assisted suicide that would fall on the seriously ill.

The assisted suicide guidance provided by the Public Prosecution Service for Northern Ireland reflects that of England and Wales. While I feel at times that the guidance risks giving the prosecutor rather more room to manoeuvre than suggested by the statute, I accept that in the words of the noble Lord, Lord Carlile, it facilitates the expression of a tough law with a kind face. However, it is important that the Attorney-General for Northern Ireland, John Larkin, and the Northern Ireland Assembly, should closely monitor the conduct of our Director of Public Prosecutions, Barra McGrory, in this regard.



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7.54 pm

Baroness Nicholson of Winterbourne: My Lords, all of us here have the deepest sympathy for individuals who are in the last stages of their lives and in great pain, who are seeking help to shed this life and move on. But that does not mean that we should alter the law to favour what is called assisted suicide. There are good fundamental psychological and religious principles why suicide is always frowned on by almost every society everywhere. Suicide is self-murder, and if you pull other people into that framework you are helping them to kill you, and it is a sort of murderous intention. Let us not think that the medical profession, wonderful though it is, is so spotless in all its ethics that it will not leap on the bandwagon. If you only look at Dignitas and Exit in Switzerland, for example, about a third of the people they treat-and in the case of women nearly half, I understand-are not terminally ill at all but are merely feeling rather miserable and want something to be done to help them.

I urge noble Lords not to go down this slippery slope and to recall quite seriously the early 1930s in Nazi Germany. It is all too close to home.

7.55 pm

Baroness Hayman: My Lords, I do not believe that changing the law in this area needs to frighten us in the sense of these terrible fears of Nazi Germany and eugenics. My experience on the Select Committee on the Bill proposed by the noble Lord, Lord Joffe, led me to believe that regulation was indeed possible and desirable in this area. A benefit of the DPP's guidelines has been increased reporting in this area; increased reporting means that we can have increased supervision and monitoring and give the protection that good regulation brings.

The noble Earl, Lord Glasgow, said that many people feared the manner of their dying. These guidelines have given some comfort to people thinking ahead who might be faced with terrible decisions about helping their loved ones. If we had a properly safeguarded approach, as they do in Oregon-it is quite different from the approach in Switzerland; they do not have to have the same approach-we could give many people comfort, security and the confidence to go forward. Many people may not avail themselves of the ability to have help but would feel comforted by knowing that it was there if they needed it.

7.57 pm

Baroness Hayter of Kentish Town: My Lords, suicide-thankfully-is legal, but many people need help and support to ensure that it is both pain-free and risk-free and to have a trusted friend at one's side at that hour of need. That means being able to get such support, safe in the knowledge that one's chosen friend will neither be interrogated by the police nor face prosecution. For this reason, I would like to see the DPP's approach given wider endorsement. I am concerned that the present law affects people unequally, given that going to Dignitas costs about £5,000 and is only available to the well-off and those fit enough to travel, and there is no safe way of having assisted death at home without risk of prosecution for loved ones, which is an unfair burden for the dying person to

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contemplate. I would favour a law to allow people to be helped to die if they meet safeguards and eligibility criteria, are terminally ill and mentally competent. Of course I want to see greater access to high-quality end-of-life care, but part of that comes from knowing that they will be free from suffering.

I finish with the words of the Reverend Dr John Cameron, who said that,

7.58 pm

Baroness Howe of Idlicote: My Lords, some of your Lordships have argued that the prosecution policy on assisted suicide should have listed serious illness as a mitigating factor. In other words, helping a seriously ill person to commit suicide would be regarded more leniently than helping someone else-but that would in effect have meant that the law would offer less protection to seriously ill people than to others. Such discrimination is unacceptable in an inclusive society. Therefore, I was pleased to see that the policy does not list serious illness as a mitigating factor in assessing whether assisting suicide should be prosecuted. The law must apply equally to all of us, irrespective of age, gender, race and state of health.

7.59 pm

Baroness Young of Old Scone: My Lords, I thank the noble Baroness, Lady Jay, for giving us this opportunity tonight. I served on the commission on the future of assisted suicide and we heard a very wide range of evidence, which we considered rigorously over a year and with a very open mind. I support the flexible approach taken by the DPP guidelines, but they are not sufficient, for two reasons among several that I could name. I will stick to only two in view of the time limit. First, it still leaves compassionate friends and families facing criminal investigation. Secondly and most importantly, it is a real barrier to healthcare professionals discussing with their patients options for their end of life. Much as they discuss options for treatment during their life, options for death need to be a normal part of the care conversation in the future. The result is that in this country, assisted suicide is in the hands of amateurs. I personally would not look forward to that prospect. The Director of Public Prosecutions said that he has done what he can with the current law. Only a change in the law can overcome these very real problems.

8 pm

Baroness Berridge: My Lords, I find tonight's Question troubling as its precursor is: should the Government be assessing the application of DPP policy? I view the DPP rather like the icing in the middle of the judicial sponge cake. The top layer is the independence of judges, and the bottom layer is police operational independence. It is imperative that DPP policy and decisions are free from, and seen to be free from, government interference. I do not envy my noble friend the Minister's task in performing this assessment this evening without creating any perception of political interference in, or inadvertent pressure on, prosecution

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decisions and policies. These roles would also be blurred if the DPP guidelines had been statutory, as how could he then revise them? The independent DPP would be dependent on the Government or parliamentarians to change the legislation or statutory instrument. If the House were asking how the Government are assessing the application of DPP policy for prosecutions in cases of phone-hacking, constitutional alarm bells would, I believe, have gone off immediately.

8.02 pm

Lord Turnberg: My Lords, I should express my interest as a past president of the Royal College of Physicians. The question I ask myself is whether the experience of the public prosecutor leads us to believe that we should now change the law. Fewer than 20 cases a year have been referred to the DPP and few of those, if any, have led to prosecution. A new law would, in effect, lower the barrier and remove the critical safeguard provided by an independent body making a fair and objective judgment. The question we have to ask ourselves is not whether it is desirable to make it easier for someone with impeccable motives to help a person suffering unbearably to die. They can do that now in the knowledge that the DPP has been shown to act in an entirely appropriate way. The question really is whether a change in the law will make it easier for someone with selfish, ulterior motives to help an elderly, infirm relative to die. A combination of the current law and the DPP provides a safe and humane system that we would jettison to our disadvantage.

8.03 pm

Lord Harries of Pentregarth: The noble Baroness, Lady Jay, referred to the recent commission, which found the present legal status of assisted dying to be "incoherent", but whenever you try to balance two vital principles, as we are here, the result can appear less clear-cut than if one had one principle alone to take into account. On the one hand, the present law expresses and safeguards the fundamental principle of respect for life-the life of everyone. On the other hand, the guidelines put out by the DPP express the principle of compassion. The present situation gets the balance between law and compassion just about right. In trying to hold these two principles together, I suggest, it is perfectly coherent. Further, when we try to hold two principles together it is important to remember that what we are comparing with the present situation is not some abstract state in which we might have only one principle to uphold. We are comparing it with actual alternatives, and in my judgment the alternatives are more damaging to the public good of this country than the present well-struck balance.

8.04 pm

Viscount Craigavon:My Lords, I speak very much in favour of this policy of the DPP and the clarification provided by the guidelines. My main point is that I believe that more transparency and light can be thrown on the process of decisions that are now being made in this field. That obviously should not compromise any necessary confidentiality but, by revealing more reasoning and the details, it should be possible to assist one of

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the main purposes of this policy stemming from the Purdy judgment: that is, for the public to be more reasonably able to predict whether actions might lead to prosecution. An alternative would be for the DPP to publish an overview of his decisions without revealing identifying details of the individuals involved. That is the direction that we could be taking now, prior to any further legislation.

8.05 pm

Lord Swinfen: My Lords, I congratulate the DPP on the way in which he has produced what in my view is a very compassionate policy. Some people have argued that it would be better to investigate a case of assisted suicide before it has happened, so that the wishes of the victim and the intentions of the assister can be scrutinised, but this would involve handing a licence to the assister based on subjective assessments of the victim's state of mind, and on presumptions about the intentions of the assisters. Such a process is far from foolproof. As one witness, who I understand is a consultant psychiatrist, put it to the group of the noble and learned Lord, Lord Falconer,

Moreover, once a licence to assist has been granted, there would be nothing to prevent coercion or manipulation. The death would not be investigated, as it would have been officially authorised in advance.

8.06 pm

Lord Warner: My Lords, in the Purdy judgment the noble and learned Lord, Lord Hope, said that there had been two prosecutions up until then. Since the DPP's new guidelines two years ago, as far as I am aware there have been no prosecutions. Perhaps the Minister could tell us how many cases have actually been referred to the DPP in that time. I believe that the DPP's guidelines, while well-intentioned and a sensible way forward in such a controversial area in many ways, have caused real problems for health professionals-doctors, nurses, et cetera-in discussing end-of-life issues with patients such as their own personal choices about the way they wish to end their life. Do the Government accept that there is a real issue for health professionals, with whom they need to engage in a stronger dialogue? Do they also accept the need to have a parliamentary debate on my noble and learned friend Lord Falconer's excellent commission's report, which dispassionately gives us a mountain of evidence that was not there before and that needs to be tackled by Parliament?

8.07 pm

Lord Pannick: My Lords, the DPP has done a good job. His policy promotes the three main objectives which the Law Lords indicated, in the Purdy case, are vital in this sensitive area of law. First, the policy recognises the autonomy of the individual-a factor ignored by some speakers in this debate. The position is very simple: the able bodied may lawfully seek to end their life but the autonomy of the disabled person, vitally, depends on the assistance of others. The second objective advanced by the policy is to

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protect the sick and the vulnerable from being put under pressure to end their lives. The third objective is to introduce greater certainty into the law. I hope that the success of this policy-and it has been successful-will now encourage Parliament to show the necessary maturity to address these important issues as questions of legal rights and wrongs, not to continue to leave these matters to prosecutorial discretion, however compassionate its exercise.

8.09 pm

Baroness Finlay of Llandaff: My Lords, I was a member of the Select Committee that looked at the assisted dying Bill. I co-chair Living and Dying Well and have worked as a hospice doctor since 1987. Assistance with suicide by a treating doctor or healthcare professional tends towards prosecution. The Royal College of Physicians advised the DPP in drawing up his guidance that a doctor's role is,

and that,

Some claim the policy encourages amateur suicides. It does not. The policy recognises the asymmetric relationship between doctor and patient, with the patient dependent on professional advice and treatment and being very susceptible to nuances in the doctor's reaction when patients discuss their dying openly. Doctors are in a position of trust; that trust must not be abused. Medical witnesses to Falconer were clear that the present law is not inhibiting open conversations. Indeed, conversations are now more open than ever before, ensuring that healthcare professionals work with their patients to improve living, to cease futile treatments and to support patients during dying. The vast majority of hospice doctors do not want physician-assisted suicide. The policy is clear, firm and compassionate.

8.10 pm

Lord Bach: My Lords, I congratulate my noble friend Lady Jay on securing this debate. She has supported a policy of reforming the existing law for a long time and has been a distinguished advocate for that point of view. I thank other speakers too for expressing their strong views on both sides of this difficult argument. Our view in opposition is the same as it was in government: we think that this is a matter of individual conscience for Members of Parliament to decide on, not one for Her Majesty's Government to propose legislation on at present.

We look forward to the debate in another place next month. We do not think that this sort of debate in this House is appropriate, and we feel that the matter should be debated at greater length as soon as time allows. I look forward to what the Minister has to say in his response. We agree that this is an appropriate moment to hear the Government's view.

8.11 pm

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I congratulate the noble Baroness, Lady Jay of Paddington, on introducing

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this debate, and those who have contributed to it. Noble Lords have actually left me with 20 minutes but I shall not take up all that time. The succinctness with which some very passionate points of view have been expressed is remarkable. I have heard the comments made by a number of those who have contributed to the debate about the opportunity for a longer debate on this. I would not dream of speaking on behalf of the usual channels' business managers, but I am sure that that will have been noted on this occasion, as indeed on an occasion when the noble Lord, Lord Bach, dealt with this issue in a Grand Committee debate when he was in Government.

Lord Bach: It was not this issue.

Lord Wallace of Tankerness: It was not quite this issue but it was related. There was also a debate in Grand Committee in February 2010 on assisted suicide to which there were many contributors, and the importance of this issue and the salient points that have been made will have been noted. It is evident that this matter generates much passion on both sides of the argument.

At the outset, I would like to make the distinction, as a number of contributors have done, between the form of the law on assisted suicide on the one hand, which is, quite properly, a matter for Parliament-I endorse what the noble Lord, Lord Bach, said: just like the Government of which he was a member, this Government also take the view that a change to the law is an issue of individual conscience. Therefore, it is a matter for Parliament to decide whether there should be a change to the law rather than one of government policy-and the prosecution policy of the Director of Public Prosecutions on the other. The DPP discharges his functions and duties within a framework determined by Parliament.

Perhaps it is important to put the position into context to be able to respond to some of the points. To understand how the policy works in practice, the Crown Prosecution Service was established by legislation as an independent public prosecution service for England and Wales. The Director of Public Prosecutions is the head of the CPS, and-to reflect the point made by my noble friend Lady Berridge-the DPP is superintended by my right honourable friend the Attorney-General, who is in turn accountable to Parliament for the work of the CPS. There is a distinction, however, between that accountability, which is quite proper, and having guidelines and policies approved by Parliament that in some respects could fetter the independence of the decision of the prosecutor.

The primary role of the CPS is to prosecute criminal cases investigated by the police in England and Wales and to provide advice to the police in some of the most serious or complex cases. However, I emphasise again that the CPS operates independently of the police.

The Director of Public Prosecutions has a statutory duty to issue a code for Crown prosecutors. This is one of the most important documents for the CPS, as the code provides guidance to prosecutors on the general principles to be applied when making decisions about prosecutions. In particular, the code sets out the full

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code test. That is the test applied by prosecutors to the facts and circumstances of every individual case referred to them by the police. It has two stages to it. First, there is the evidential stage: is there sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge? Secondly, there is the public interest stage: is it in the public interest to proceed with a prosecution?

It is nearly always the case that the public interest is considered only when the evidential stage of the full code test has been satisfied. It is only when there is sufficient evidence to provide a realistic prospect of success that a case proceeds to the public interest stage of the full code test. It is essential that the public interest is considered by prosecutors when making a decision on an individual case. It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution-the point that the noble and learned Lord, Lord Hope, made in his judgment in the Purdy case, to which reference has been made-as the public interest must always be considered.

The most recent edition of the code was published in February 2010 following public consultation. It is a public document and is written in a way that enables it to be followed by the general reader so that the public are able to understand how prosecution decisions are made. However, with relevance to this particular debate, in addition to the code the DPP also publishes public policies and guidance that provide further advice to prosecutors when considering particular types of cases. The various policies and pieces of guidance are expected to be followed by prosecutors and must be read in conjunction with the code.

The policies and guidance are also available on the CPS website, again to provide transparency. The noble Viscount, Lord Craigavon, asked about transparency. As well as setting out the policy guidance, the website also sets out a few individual cases, giving the facts of the case and the route that the DPP took in coming to his decision not to prosecute. The particular case that I am thinking of is set out there. Hopefully, that will at least to some extent aid the transparency that the noble Viscount and others have asked for. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide is one of these documents.

It is important, as has been recognised in many of the contributions to the debate, that the policies and guidance issued by the DPP are not intended to be a substitute for the law or to replace it in some way. A number of those who have contributed to the debate-even those who have called for a change in the law-have reflected on the fact that the policies are imbued with a sense of compassion. More than one contributor talked about the law providing deterrence and the policy guidelines from the DPP enabling the law to be discharged with compassion. The guidelines are there to assist prosecutors in making decisions on individual cases by setting out in one place the relevant legislation, case law, court sentencing practice, internal operating procedures and any specific evidential and public interest factors to be taken into account. That is the purpose of the policies and guidance. They are subservient to and operate within the framework of the law as determined by Parliament.



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The assisted suicide policy was published in its present form following an interim policy and consultation in February 2010. As the noble Baroness said in introducing the debate, we are coming up to the second anniversary of that policy being in place. As has been indicated, it followed the judgment in the House of Lords case of Purdy v Director of Public Prosecutions. Debbie Purdy sought information about the factors that the DPP would take into account in deciding whether to grant his consent to a prosecution under Section 2 of the Suicide Act 1961. Ms Purdy argued that the code issued by the DPP was insufficiently precise to provide her with the information that she sought. In July 2009, the Appellate Committee of the House of Lords found in favour of Ms Purdy. In so finding, the Law Lords required,

As I have indicated, an interim assisted suicide policy was published in September 2009. It was the subject of a three-month public consultation, in which more than 4,700 responses were received from interested individuals and organisations. The interim assisted suicide policy was revised by the DPP following careful consideration of the responses to the public consultation. The final version was published in February 2010. At the time of its publication, the revised policy met with broad approval. It is fair to say that it attracted considerable approval from many sides of the Chamber this evening. It is interesting to note that, while the commission that has been referred to, which was chaired by the noble and learned Lord, Lord Falconer, recommended changes to the law on assisted suicide in cases where a person is terminally ill, in cases where there is a non-terminal illness, it indicated the following in its executive summary:

"Therefore, we suggest that the DPP's prosecution policy should continue to be applied to those cases that might fall outside the scope of the legislation that we are proposing for consideration (for example assisted suicides involving people with chronic illnesses or serious physical impairments who are not terminally ill)".

Even the commission itself recognised the merit and substance of the policy. It is worth repeating that it does not seek to change the law. Indeed, it cannot change the law, as that is clearly a change that only Parliament can make.

I shall take up some of the specific points that have been made. Prospective immunity was raised. Prospective immunity has never been granted. The DPP told the commission that,

Indeed, it goes beyond the DPP's power because the police are responsible for deciding when an investigation should be instigated. Obviously, if there was no alleged crime, that would not be possible.

With regard to the medical profession, the guidelines try to strike a balance but acknowledge that as the law stands the law does not give immunity from prosecution

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in this regard. I do not wish to quote at great length from the evidence of the Director of Public Prosecutions to the commission. However, he set out the balance that he has sought to apply in the policy. The policy guidelines do not refer to a medical doctor but to a person,

It would be wrong to confer blanket immunity, if that is how it would be interpreted. That would not only fetter the discretion of the Director of Public Prosecutions who needs to look at the individual circumstances of every case but would be tantamount to a change in the law. As has been said, that is a change in the law that is for Parliament to determine.

With regard to families and doctors discussing end-of-life options, the noble Baroness, Lady Finlay, indicated that she did not think such discussions were taking place. Again, however, that is a matter which would more appropriately require a change in the law rather than indicating, ahead of a potential crime being committed, that there was immunity for it.

It is very difficult to do justice to such a wide issue. In that respect, I have a lot of sympathy with those who think that we should have a much wider debate. I have tried to pick up some of the salient points that have been made. My noble friend Lord Glasgow was not alone in indicating that perhaps the time had come for a change in the law. As I have indicated, that is not a matter of government policy but is a matter for individual conscience and for Parliament. However, I rather suspect that we will be back here debating this issue in days to come.

8.25 pm

Sitting suspended.

Health and Social Care Bill

Report (2nd Day) (Continued)

8.31 pm

Schedule 1 : The National Health Service Commissioning Board

Amendment 20

Moved by Lord Hunt of Kings Heath

20: Schedule 1, page 275, line 13, at end insert "with the consent of the Health Select Committee of the House of Commons"

Lord Hunt of Kings Heath: My Lords, I shall refer also to Amendments 21, 21A and 22. The amendments take us to a number of other matters in relation to the national Commissioning Board. I think that we are all agreed that the board will have an important role to play within the new arrangements, and its governance is a matter of considerable interest. My amendments, which follow closely amendments that I tabled in Committee, invite the noble Earl, Lord Howe, to give further consideration to how we can ensure that the governance of the national Commissioning Board is as effective as possible and that due parliamentary processes are involved.



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The amendment would ensure that the chair of the national Commissioning Board was appointed only with the consent of the Health Select Committee. I am well aware that Professor Grant, the excellent chair of the board, gave evidence to the Health Select Committee and I am glad that that occurred. I should like to put the matter beyond doubt by putting this provision in statute for when future appointments of chairs need to be made. The noble Earl will know that I have followed precedent because this Government's legislation that established the Office for Budget Responsibility makes it clear in statute that the appointment of its chair has to be agreed to or approved-or consent has to be given-by the appropriate Select Committee. My argument to the noble Earl is that the national Commissioning Board is as important as the Office for Budget Responsibility. I realise that one could look at a hierarchy of these organisations and I would understand if the noble Earl were to say that we cannot apply this provision to all bodies in a similar position. However, the responsibility of the national Commissioning Board is immense and there is a case for putting this in statute.

I sense that my Amendment 21 may not be necessary, but perhaps the noble Earl can confirm that the vice-chair of the national Commissioning Board would always be a non-executive appointment and that that person would always be the senior independent director.

Amendment 21A concerns public health specialist input. I should like some assurance from the noble Earl that the national Commissioning Board will have public health expertise. I understand that it is to have a medical director-and that is of course welcome-but, given the need to ensure that in the NHS, through the Commissioning Board and clinical commissioning groups, there is a good tie-in to the public health function, it would be good to know what arrangements the board will make to ensure that there is a strong enough link with public health. Having public health expertise around the board of the national Commissioning Board would, I should have thought, be very welcome indeed.

I come, finally, to my Amendment 22, which would remove the requirement for the appointment of the chief executive to be approved by the Secretary of State. I said in Committee that I had no problem with the provision that ensured that the first chief executive should be appointed by the Secretary of State. That is normal practice when new bodies are established. In order to get on with it, you clearly need to have a method by which the chief executive is put in place as soon as possible. I quite understand why it should be the Secretary of State in the first instance, but I do not understand why future appointments of chief executives should have to be approved by the Secretary of State.

Back in our debates on bureaucracy and the issue of the concurrent power of the national Commissioning Board with the Secretary of State in relation to the crucial parts of Clause 1, the noble Earl emphasised that the relationship between the Secretary of State and the national Commissioning Board should be seen principally through the mandate and the standing rules. He resisted my efforts to give Ministers powers of intervention other than the extreme power given under the Bill. If that is so, I cannot for the life of me

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see why the Secretary of State would want to approve the appointment of the chief executive. Surely the relationship should be between the Secretary of State and the chairman of the national Commissioning Board. Why must the Secretary of State have a veto on the appointment of the chief executive? That seems inconsistent with the general points that the noble Earl has been making about the need for the Secretary of State to have a hands-off approach.

The noble Earl may repeat what he said in Committee, which is that that is to do with the accountable officer status of the chief executive. With the greatest respect, is that very different from the accountable officer status in relation to many organisations within the NHS where the Secretary of State does not have to approve the appointment of the chief executive? I hope that at least on this one the noble Earl will recognise that Secretary of State approval for the appointment of a chief executive is wholly inconsistent with the general thrust of where the Government say that they are going, and will be sympathetic. I beg to move.

Lord Beecham: My Lords, I trust that my noble friend will not object if I claim at least parliamentary paternity of Amendment 21A-influenced, I must say, by the Faculty of Public Health and others interested in the public health dimension of the Bill. The Faculty of Public Health is a very respectable body, characterised, along with other opponents or critics of the Bill, by Mr Simon Burns, the Minister of State for Health, as zombies, a term that I cannot imagine emerging from the lips of the noble Earl. It is concerned about the degree to which the public health service and its interests and needs will be reflected in the structures that are being created. That interest is shared by the Health Select Committee.

The Health Select Committee also referred to its recommendation that the local director of public health should be a member of each clinical commissioning group. Having regard to the number of clinical commissioning groups, that is possibly asking a little much, although it would be sensible for clinical commissioning groups to consult the director or his representative from time to time in the course of their work. However, my noble friend is absolutely right to stress the importance of having a qualified public health professional on the national Commissioning Board. Public health is an enormously significant area of public policy, and we will discuss other aspects of it later this evening and subsequently during Report. The Health Select Committee was very clear that there should be a qualified public health professional on the NHS Commissioning Board and that the Commissioning Board should routinely take advice from qualified public health professionals when taking commissioning decisions.

The Government's response to the Select Committee's report is, to put it mildly, not very encouraging. While the board will be required to obtain clinical advice from a broad range of professionals, including those in public health-and the Government have stated their intention that there should be clinical and professional leadership on the board-they state explicitly that,



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that is, the board-

That seems, frankly, to put an unnecessary degree of power in the hands of the national Commissioning Board. It again raises the issues of accountability that my noble friend dealt with so well earlier this evening. It is surely not acceptable to permit an organisation with this degree of power and influence-and, indeed, with the substantial resources at its disposal-simply to decide on its own membership, particularly when public health is not just a health service or Department of Health issue but goes much wider than that. It is important that those wider implications of the work of public health, which we will touch on later, are reflected in the board's deliberations as a matter of course.

I hope that the Government will take the strong advice of the Health Select Committee and reconsider this position. I have no doubt that there will be a queue of other organisations wanting a place on the national Commissioning Board, but this is, in a sense, a unique function because of its reach into other areas of policy and administration, including, for that matter, other government departments. That voice, reflecting all those interests, is not likely to be represented directly in the way that other clinical interests probably will be in relation to the board. Therefore, I strongly support Amendment 21A, as well as the other amendments in the name of my noble friend. I hope that the Government will see their way to rethinking this matter and come back at Third Reading with a different position.

Baroness Williams of Crosby: My Lords, I agree strongly with the noble Lord, Lord Beecham. Public health has always been the Cinderella of the health services, yet it should not be. It is obviously crucial to the whole attempt to reconfigure services, and it is crucial to the emphasis on preventive health that we badly need if we are to stop things such as the very rapid increase in the incidence of diabetes in this country, especially diet-related diabetes. It is important that the public health service is seen by the whole of the public as central to the Government's proposals for bringing services together. It is essential that we now publicly recognise the very great importance of the public health service and raise it to a level at least equal with other parts of the health service, including clinical commissioning groups.

As the noble Lord, Lord Beecham, said-I thought rather modestly-we accepted that it was too much to expect to have a public health officer on every commissioning group, although there is a very strong case for having one where a commissioning group is happy to have him or her. However, in the case of the board, which after all overlooks the whole CCG structure, it is absolutely vital that a public health officer should be present and should be able to put emphasis on preventive health. It would also be a signal to the health and well-being boards at the local level to follow that lead and themselves put a great deal of emphasis on preventive rather than only curative health.



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I think that the noble Lord, Lord Beecham, should get the support of all parties in the House as he has put forward something perfectly sensible and moderate. What the noble Lord, Lord Hunt, was saying about this group of amendments is important, particularly on Amendment 21A, and I hope that the Minister listened very carefully, as I believe that he has a great deal of sympathy with the importance of public health. This will be a very important way in which to underline that in the manifesto.

It is fair to say that the board should make its own decisions on some of the membership, but I agree with the noble Lord, Lord Beecham, that the sheer significance for all the reforms of public health is such that this should be on the face of the Bill and that it should not be left entirely to the members of the board to decide on. There is plenty of room for them to reach their own decisions, but this involves the whole of the Government's strategy. I very much hope that my noble friend will suggest that the Bill could carry this amendment in it.


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