7 Nov 2011 : Column 1

House of Lords

Monday, 7 November 2011.

2.30 pm

Prayers-read by the Lord Bishop of Bristol.

Death of a Member: Lord Gould of Brookwood

Announcement

2.37 pm

The Lord Speaker (Baroness D'Souza): My Lords, it is with deep regret that I have to inform the House of the death yesterday of the noble Lord, Lord Gould of Brookwood. On behalf of the House, I extend our condolences to the noble Lord's family and friends.

Benefits: EU Nationals

Question

2.37 pm

Asked By Lord Empey

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, we do not propose to change the way DWP determines benefit entitlement for EU nationals, but we are considering the details of a European Commission reasoned opinion against the right to reside test. While we accept our responsibility in supporting EU nationals who work and contribute here, it is absolutely necessary that we protect our welfare system from those who come here with no intention of working or looking for work.

Lord Empey: I fully understand the point the Minister makes but it is nevertheless a fact that on 29 September 2011 a reasoned opinion was issued which states that the EU Commission believes that we are contravening EU law. What steps do the Government intend to take in order to protect our system from additional and currently unaffordable demands?

Lord Freud: My Lords, we are moving in two directions. First, we are looking hard at the Commission's opinion and considering whether we should go to court. We have two months in which to take that decision and the likelihood is that we will take it through the full legal process. The second area is the political one. We are talking to other countries which are also deeply disturbed about this. Some 13 countries have signed a motion calling for a minute statement and for a policy debate on this matter.

Lord German: My Lords since some 900,000 UK citizens are migrants in other European Union countries, I am sure my noble friend the Minister would like to protect the reciprocity which exists for both EU citizens and others coming here, as well as our citizens in other countries. Will he comment on the information we have received from the European Commission about the intention to extend reciprocity to North African countries? Can he tell us what line he will take with the European Commission on this matter?

Lord Freud: My Lords, we are going to take a pretty robust line on this matter. We have an opt-out from the Lisbon treaty which we have been using for African nationals where there are third-country agreements, in particular Morocco, Algeria and Tunisia. Again, currently we have legal differences with the Commission on this matter, which is looking for ways to get around our opt-out, but we are determined that we will retain it.

Lord McKenzie of Luton: My Lords, can the Minister tell us what the uprating arrangements are for benefits that are exported? We are aware that by generally switching uprating to CPI, the Government are seeking to reduce the income mostly of poor people by some £10 billion a year in 2015-16. Will the Minister take

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this opportunity to denounce any suggestion that benefit uprating in the UK for upcoming years will not at least keep pace with CPI?

Lord Freud: My Lords, we have had this discussion during the Committee stage of the Welfare Reform Bill and I have made it absolutely clear that I am not going to comment on that particular question in any way.

Lord Forsyth of Drumlean: My Lords, can my noble friend comment on the fact that EU law requires equal treatment between citizens of member states, but not within member states? So we have the absurd position in Scotland, for example, where English, Welsh and Irish residents have to pay university fees of £36,000 while for Scottish students, along with French, German, Italian and other European students, they are free. Is that not grossly unfair and should not the law be changed so that residents in other parts of the United Kingdom are treated in the same way as EU citizens?

Lord Freud: My Lords, I am being taken well off my brief which is concerned with benefits, so I will not comment on that question either.

Lord McAvoy: My Lords, the issue of reciprocity was mentioned by the noble Lord, Lord German. Have the Government ever calculated the cost of reciprocity in terms of how much it costs the United Kingdom to pay benefits to EU nationals and what our 900,000 people get back?

Lord Freud: My Lords, amazingly, we do not have those data, but that is clearly not the present Government's problem as we are looking to get those data. Our concern is that, if we let in benefit tourists in the way the Commission is looking for us to do, the costs of doing that could be up to £2.5 billion a year. Noble Lords will be absolutely aware that we have many better ways of spending that money on people who are in this country and who have been making a contribution to this country.

Lord Campbell-Savours: When are the Government going to comment on the uprating? A lot of people out there in the country will want to know.

Lord Freud: I have already made my position on that absolutely clear.

Baroness Symons of Vernham Dean: My Lords, everybody has sympathy with a Minister when they are taken off brief, but does the Minister understand that, in this House, he answers not just for his department but for the Government? I think we would all be grateful if he would undertake to give the noble Lord, Lord Forsyth, an answer, perhaps in written form at a later date. Is the Minister aware that he is accountable to this House and that, when he is asked a question which is reasonable, it is not up to him to say that he is just not going to answer it?

Lord Freud: My Lords, my responsibility is to answer questions in this particular area, which I am very happy to do. If noble Lords have a question in this area, I will be delighted to answer it.



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Lord Foulkes of Cumnock: In this particular area, the Minister still has not answered the question put by two of my colleagues. They did not ask whether benefits are going to be uprated by 5.2 per cent, as they should be, but when the Government are going to tell us. It is the time that we want to know; not a definitive statement now. Will he now answer that question?

Lord Freud: My Lords, as noble Lords will be well aware, there is an autumn Statement where these things are declared. That is the answer.

BBC: Licence Fee

Question

2.44 pm

Asked By Lord Fowler

Baroness Rawlings: My Lords, the Government have no immediate plans to review the cost of the BBC licence fee. Under the terms of the October 2010 current licence fee settlement, the Government are committed to providing a full financial settlement to the end of the year 2016-17. No new financial requirements or fresh obligations of any kind will be placed on the BBC and/or licence fee revenues in this period except by mutual agreement.

Lord Fowler: My Lords, does my noble friend agree that there is significant public concern today that a single media company should not have disproportionate influence? That is normally said about News International, but is it not the case that in national radio news and accompanying radio programmes such as the "World at One", "Today" and "PM", the BBC has an overwhelmingly strong position? Will the Government therefore give consideration for future policy on how outside competitors may be introduced, possibly by earmarking a small part of the licence fee for that purpose?

Baroness Rawlings: My Lords, my noble friend makes a very valid point, which I would expect from him with all his knowledge and consistent interest in broadcasting. The Question clearly addresses the next stage from his previous Question in your Lordships' House on the licence fee in October 2010. Following the phone hacking issue, he is right that plurality continues to be on the agenda. That needs to include all media and I understand his wish for more independent radio providers. Indeed, local commercial radio stations provide a wide range of national and local news-around 8 million minutes of news every year. We believe, too, that there are a number of ways of supporting such news provision and we will consider these in the forthcoming communications review.

Lord Soley: While diversity is important, does the Minister accept that the news broadcasting services of the BBC are truly remarkable and we have to protect them, not least because of the importance of the World Service? I worry when we talk about watering down the BBC's news service, which frankly is the oxygen of publicity that we need in a democracy.



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Baroness Rawlings: The noble Lord, Lord Soley, is absolutely right. The BBC World Service is of paramount importance. The October 2010 licence fee settlement transferred funding of the BBC World Service from the Foreign Office to the BBC from 2014-15. The BBC Trust sets out the overall strategic direction of the BBC, including the World Service. The World Service will be funded from the licence fee from 2014. The transfer will increase the BBC's ability to make further economies to avoid duplication across the whole of the BBC.

Lord Roberts of Llandudno: My Lords, I first thank the Minister for the agreement in the funding of S4C to use licence fee revenue. That is a sensible and sensitive response to a battle that we have been fighting for a long time. But what revenue from the licence fee comes from the various nations of the UK? How much comes from Scotland, Northern Ireland, Wales and England? Secondly, could we have an assurance that no use of the revenue from the licence fee will in any way prevent the granting of concessionary television licences to those over a certain age?

Baroness Rawlings: My noble friend Lord Roberts asks an important question regarding fees, which obviously come from throughout the United Kingdom. The proposed S4C/BBC partnership arrangements are a success for Welsh language broadcasting. The arrangements make certain that S4C's editorial and managerial independence will offer a reassuring level of financial security for the next five years. The partnership offers the stability and certainty that S4C needs so that it can go from strength to strength under the management of its new chairman and new chief executive.

The Earl of Clancarty: My Lords, given that sound quality is an important part of the BBC's service, could the Minister say whether there is a future for FM radio, in view of Ed Vaizey's recent admission that there is "truth" in the criticism of the UK's DAB system, which many listeners-and, indeed, other countries-now regard as inferior and outmoded?

Baroness Rawlings: The noble Earl, Lord Clancarty, asks a very valid question. We are worried about the transfer. It worked with television but we are not sure yet what is going to happen with radio. However, the licence fee settlement stated that the BBC will commit to funding the rollout of the national DAB multiplexes. We trust and hope that this will work out properly.

Baroness Jones of Whitchurch: My Lords, notwithstanding the BBC's settlement, can the Minister clarify whether it is the Government's intention to revisit the licence fee to take account of developing technologies in the forthcoming communications Bill?

Baroness Rawlings: The noble Baroness, Lady Jones, brings up a good point. The current BBC charter expires on 31 December 2016. The timing and scope of the next charter review are a matter for Ministers, but no decision has yet been taken. The last charter review began three years before the expiry of the previous charter, and the subject will no doubt be brought up during the meetings on the draft communications Bill.



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Lord Pearson of Rannoch: My Lords, given that the BBC's charter and fee require it to cover matters of public interest fairly, how do the Government react to the statistic that, over the past six years, the BBC has dedicated less than 0.04 per cent of its news and news-related coverage to the case for our withdrawal from the European Union, which case is supported by at least 50 per cent-and growing-of the British people?

Baroness Rawlings: It would surprise me if the noble Lord, Lord Pearson, did not ask a European Union-related question. I do not have the statistics on the BBC's coverage of our possible withdrawal from the EU, but no doubt the department will find them for me and I will send them to him.

Lord Brooke of Alverthorpe: My Lords, as the BBC is anxious to achieve economies, and as the BBC now knows what fees it will be charging licence fee payers over the coming years through to 2017, why does it send out reminders in February and March every year asking individuals to pay their licence fee when it could now say, "Please pay for five years at X amount", which is probably less than the amount that people pay in one year to Sky? Why do we have annual chasing for fees when they could now be paid over several years?

Baroness Rawlings: The noble Lord makes a very good point, and I will take it back to the department to find out for him.

Hospitals and Care Homes: Hydration

Question

2.53 pm

Asked By Baroness Greengross

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, all providers of regulated activities, including hospitals and care homes, are required by law to have policies in place that protect people from the risks of dehydration. The Care Quality Commission can take action if these requirements are not being met. It is for health and social care providers to develop local hydration policies. There are a number of best practice resources available to help providers to do this.

Baroness Greengross: My Lords, evidence has clearly demonstrated that adequate, and indeed good, hydration can lead to fewer falls, through less dizziness, less constipation, less renal and urinary tract problems, and can bring a host of other benefits, particularly among elderly people in hospitals and care homes. Could Her Majesty's Government introduce firm guidelines on this for all key providers of care, whether in NHS hospitals or in care homes?

Earl Howe: My Lords, I think that mandating a blanket approach to hydration from the centre, as it were, will not have the effect that we want, which is to

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deliver the person-centred improvements that we all want to see. Having said that, I know that there have been some important developments. As I have just said, providers are now required by law to have policies in place that protect people in hospital, and the regulatory body charged with overseeing compliance-the CQC-has been equipped with tough powers of enforcement. My right honourable friend the Secretary of State instigated a whole succession of unannounced inspections of NHS trusts, and there are further ones on the way. We are also looking at changing the NHS constitution in relation to the issue of whistleblowing. So a lot is going on, but there is a limit to what central government can do. It is in the end up to staff and managers on the ground.

Lord Naseby: Is my noble friend confident that today's nursing training understands and re-emphasises the great importance of having a hydration policy?

Earl Howe: My Lords, I asked my officials that very same question. I thank my noble friend. My advice is that all preregistration training for nurses contains instruction and information about hydration and how to make sure that people have enough to eat and drink while in a care setting.

Baroness Barker: My Lords, the Minister said that the CQC has enforcement powers. How long after a CQC inspection reveals abuse of vulnerable people is it required to take enforcement action?

Earl Howe: I think that my noble friend asked about the period of time after an inspection. The CQC has flexibility depending on what it finds. As my noble friend will know, there is a whole succession of increasingly strong measures that it can take, depending on the concern. It can mandate immediate action to be taken, and in those circumstances it will return, typically, for a further inspection within a fairly short space of time to ascertain whether the action has been carried out.

Lord Campbell-Savours: Is not this hands-off attitude to dealing with this matter costing the health service a fortune on urinary tract infections?

Earl Howe: My Lords, the noble Lord is right to express concern about urinary tract infections. There is a programme of work designed to bear down on that, as there is for hospital-acquired infections generally. He is absolutely right to raise that concern, which has a direct bearing on the Question on the Order Paper and the need for proper hydration at all times.

Baroness Fookes: My Lords, could I suggest to my noble friend an experiment being done by a hospital that I know of-namely, that within 24 hours each patient should be assessed as to whether they are likely to have any difficulties drinking or eating? When that is found to be the case, they have specially marked jugs and trays in red, which immediately alerts staff on duty to the need for extra care.



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Earl Howe: My noble friend raises a very good idea. I have heard of similar ideas in different trusts, all designed to meet the same objective. The key point my noble friend makes is that patients who may be malnourished when they enter hospital or have difficulty feeding or accessing drink for themselves should have their condition assessed straightaway so that the nursing care is there for them when they need it.

Lord Laming: Could the Minister assure the House that the Government will do everything possible to increase the number of unannounced inspections, both in hospital and in care homes, to make sure that these basic and very important matters are being properly attended to?

Earl Howe: My Lords, since the publication of the CQC summary inspection report, my right honourable friend the Secretary of State has requested a further 500 inspections of dignity and nutrition in care homes and 50 further visits to hospitals, which will start in the new year.

Baroness Thornton: My Lords, I was disturbed by the Minister's first response to this Question because it sounded as if the Government are washing their hands of a hydration policy. Can the Minister say whether that is indeed the case? It seems to me vital that the Government should be providing leadership in ensuring that, at every level of health and social care, they are following through on the policies that are in existence and that have been disseminated over many years, and that they should not say that this is a matter for the policy of individual hospitals.

Earl Howe: No, my Lords, the Government are very far from washing their hands of this extremely important issue. As the noble Baroness will know, the new registration system under the Health and Social Care Act 2008 covers all providers of health and adult social care regulated activities. There is an outcome in that set of regulations which requires providers to adhere to the highest standards of nutrition and hydration. It is because of that that my right honourable friend has been so concerned to instigate these unannounced inspections by the CQC.

Housing: Landlord and Tenant Legislation

Question

3.01 pm

Asked By Baroness Gardner of Parkes

Baroness Gardner of Parkes: My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I declare a long-standing property interest, which is in the register.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, the Government have no plans to consolidate all landlord and tenant legislation. "Landlord and tenant legislation" covers social and private renting, plus residential leasehold. It also covers

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renting and leasing in the commercial sector. The features and requirements of each housing sector or tenure type are reflected in specific legislation. A wide range of housing regulations is now being looked at as part of the red tape challenge.

Baroness Gardner of Parkes: I thank the Minister for that disappointing Answer. The problem is that as each statute replaces something in the previous one, it has reached the point where even legal practitioners have great difficulty following these laws. Does she not think that a consolidation Act would mean that it could get to a point where ordinary leaseholders and tenants might be able to check on their own duties and responsibilities, which would be worth while?

Baroness Hanham: My Lords, consolidation Acts take an enormous time to put together. As I have already said, landlord and tenant law covers several Acts. We appreciate that leasehold law in particular can be complex and that people find it difficult to understand. That is why the department provides guidance for leaseholders and free advice and information, which can be sought from the Leasehold Advisory Service. Consolidating legislation, while helpful, requires considerable Civil Service and parliamentary time, so there needs to be a very significant benefit from it.

Baroness Deech: Does the Minister agree that the way in which English or British law is presented on its original enactment, and even worse when it is amended, makes it very hard to understand and that we are not making best use of modern technology and computer-aided amendments in order that we and ordinary people can read the law as it is? Great efforts could be made in that direction, both in this House and outside, so that one does not have to rely on secondary sources in order to be able to understand primary legislation.

Baroness Hanham: My Lords, I am sure that everybody would say amen to that. Unfortunately, it is not quite within my brief to deal with how legislation is constructed. I guess that it probably has a history which goes back generations. That is not to say that it should not be modernised, but I think that it will be in somebody else's hands rather than mine.

Baroness Butler-Sloss: My Lords, I wonder whether the Minister would consider asking the Law Commission to look at this, particularly in the light of what the noble Baroness, Lady Deech, has said.

Baroness Hanham: My Lords, I hear what the noble and learned Baroness says and I will see what the response to that is from other sources.

Lord Palmer of Childs Hill: My Lords, one of the most common complaints from private tenants is the failure of landlords to do major repairs such as a broken boiler or leaking roof. Could my noble friend the Minister clarify what steps can be taken to allow a tenant to carry out such major repairs and legally deduct the moneys from their rents? Would she also comment on the desirability of those rights being contained in legislation and not just relying on the varied proposals in common law?



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Baroness Hanham: My Lords, whether the tenant is able to do repairs to property and how that is dealt with will be on an individual tenancy agreement. Some landlords allow them to do repair work, some do not. Some demand that resources will be provided for it and some do not. This is something that each tenant needs to ensure is in their agreement so that they know exactly what the situation is.

Baroness Williams of Crosby: My Lords, would my noble friend consider closely the suggestion made by the noble and learned Baroness, Lady Butler-Sloss? This is precisely the sort of area where the Law Commission could be immensely helpful to us. Many of us in the House recognise that the complexity of our legislation grows exponentially from Parliament to Parliament, and the Law Commission would have the authority and the experience to be able to give very good advice about how this could be avoided.

Baroness Hanham: My Lords, I am sure that the Law Commission pays enormous attention to what we say in the House. It will have heard what has been said and, if it thinks that that is a valuable investigation to undertake, I have no doubt that it will do so.

Lord Best: My Lords, I declare my housing interests as in the register and support the proposals of the noble Baroness, Lady Gardner of Parkes. Does the Minister agree that it would be unwise to think of reforming landlord and tenant legislation to bring back security of tenure on an indefinite basis and rent controls, even though we face alarming rises in rents and some very bad landlords, because such a return would bring back the deterrent to institutional investment at a time when we badly need more money to come into rented housing? Would it not be better to use tax incentives and disincentives to reward good landlords and encourage investment by institutional investors?

Baroness Hanham: My Lords, I agree with the noble Lord, Lord Best, in his question. Bringing back indefinite security of tenure and rent controls is not the right way forward. We need a vital and highly flexible private rented sector, and previous experience has shown that measures such as he has described act only to reduce supply and that does not help tenants. As I am sure he knows, changes were made to stamp duty in the 2010 Budget, and we already have a commitment to look at the rules on real estate investment trusts. These are important signals about the value that we place on such investment and on the private rented sector.

Business of the House

Motion to Approve

3.07 pm

Moved by Lord Strathclyde

Baroness Royall of Blaisdon: My Lords, will the noble Lord the Leader of the House confirm that it is the practice in this House that noble Lords answer on behalf of the Government as a whole, not just on behalf of their own departments?



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The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I am so pleased that the noble Baroness took the opportunity to ask me that question. I confirm that what she has just said is exactly right: from this Dispatch Box, Ministers are expected to speak on behalf of the whole Government. Interestingly enough, having just witnessed a slight disagreement about that in a Question to my noble friend Lord Freud, I think that he meant to say that the questions he was being asked were beyond the scope of the Question on the Order Paper, which would have been entirely in keeping with the spirit and practice of the House.

Motion agreed.

Health and Social Care Bill

Main Bill page

Committee (3rd Day)

3.09 pm

Clause 2 : The Secretary of State's duty as to improvement in quality of services

Amendment 13

Moved by Lord Rix

13: Clause 2, page 2, line 16, at end insert-

"(c) the promotion and improvement of the health of all disabled people, including those with co-morbidities"

Lord Rix: My Lords, five of the-

Baroness Anelay of St Johns: My Lords, I take this opportunity again to remind colleagues that as they are leaving the Chamber they should, in courtesy, not walk in front of the noble Lord, Lord Rix, as they are doing at the moment, but should leave by the other exit. It is considered discourteous to interrupt a speaker.

Lord Rix: Thank you. Five of the six amendments that I have tabled to the Bill have been grouped together. I welcome the opportunity to raise some specific concerns about the Government's health reforms in relation to learning disability. I should also like to thank the Minister, who recently met the noble Lord, Lord Wigley, the noble Baroness, Lady Hollins, and me, along with representatives from the Royal Mencap Society, of which I am president, to discuss our concerns in more detail.

As I made clear during my contribution at Second Reading, people with learning disabilities already have worse health outcomes than the rest of the general population. Mencap's 2007 report, Death by Indifference, highlighted the neglect that was faced by six people who were treated in the NHS, leading to their deaths, which were entirely avoidable. Since then, many parents have approached Mencap to recount the indifference, prejudice and ignorance that is displayed towards people with a learning disability when being treated by the NHS. The purpose of the various amendments that I have tabled to the Bill is to address this problem.



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First, Amendment 13 would ensure that the Secretary of State for Health has a clear duty to improve the quality of services for people with a disability. This is a prerequisite if the health inequalities to which I have previously referred are to be reduced and entirely removed as soon as possible. We hear a great deal from the Government about the importance of local decision-making, empowering patients and more opportunities for clinicians to make their input. In principle, I do not object to these intentions but they must not be at the cost of removing the accountability of the Secretary of State. By placing a duty on the Secretary of State to improve the quality of services for disabled people, I hope greater priority will be given in government to making this happen and seeing improvements on the ground.

My second amendment, Amendment 81, aims to ensure that health services for those with the most complex needs are commissioned by the NHS Commissioning Board. I am concerned that, since the numbers of those with the most complex needs, particularly those with profound and multiple learning disabilities, are likely to be relatively small, clinical commissioning groups may not commission those services that are deemed to be insignificant. We already know that the commissioning of services for people with complex needs by primary care trusts has been patchy. It is questionable whether commissioning led by clinical commissioning groups alone will lead to any great improvement on this issue. My amendment would ensure that the NHS Commissioning Board has oversight in this area, including the co-ordination and commissioning of services and facilities for this very specialist group of disabled people.

The third amendment tabled in my name, Amendment 117, concerns the importance of collecting data on the experiences and outcomes of all patients in the NHS. Where a patient has a disability, it would also ensure a breakdown of disability by impairment type. This will provide a bank of information that could be disseminated and used to inform future NHS decision-making to ensure that it accurately reflects the expectations of those it seeks to serve. It would also help to ensure that clinical commissioning groups, the NHS Commissioning Board and the Secretary of State are more accountable for their decisions and better placed to improve such decisions. Without the collection of this data, including the impairment type for disability, it will be difficult accurately to assess what is happening to people with a learning disability and other disabled people within NHS treatment.

3.15 pm

The penultimate amendment in my name in this group, Amendment 143, relates to accessibility in relation to public involvement and consultation by the NHS Commissioning Board. I welcome the direction of Clause 20, to which my amendment relates, because it is essential that the board is accountable to the public to ensure that its functions and decisions are subject to the correct level of public scrutiny, openness and transparency. However, I am concerned that this accountability would be limited if the means by which it achieved draws only on the views of a narrow cross-section of society. I am specifically referring to

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the need to include people with a learning disability, people with communication difficulties, the elderly, people with visual impairments-which, I regret, I have at this precise moment-and those with hearing difficulties who might require alternative formats or means of communication such as Braille or Easyread in order to influence decisions taken by the board.

Such individuals are disproportionately more likely to be more frequent users of the NHS, and therefore have a particular justification in wanting to have their say in the commissioning arrangements. I am seeking assurances that steps will be put in place to ensure that reasonable adjustments are made by the Commissioning Board to ensure that this participation is proactively addressed.

The final amendment in this group, Amendment 245, tabled in my name, will place a duty on the Secretary of State to ensure that his or her annual report to Parliament on the performance of health services in England includes progress in tackling health inequalities for people with a disability. For example, there has been some progress in improving healthcare outcomes for people with a learning disability, but that progress remains inconsistent and disparate, with variances in equality of health outcomes continuing to exist for many disabled people.

More needs to be done if the NHS is to improve its record in this area. The need to tackle this issue has been acknowledged by the Secretary of State for Health-hence his recent announcement that he plans to provide GPs and the new clinical commissioning groups with the practical support necessary to improve their understanding of the needs of particularly vulnerable groups. This work is to be led by the Royal College of General Practitioners, which is recognition of the importance of trying to provide better healthcare for all. The existence of a statutory duty on the Secretary of State to report on progress made in the NHS in tackling health inequalities would act as an important driver in improving healthcare for all.

In light of the various amendments tabled in my name and those of my noble friend Lady Hollins and the noble Lord, Lord Wigley, I look forward to hearing the Minister's response to the issues that I have raised. I beg to move.

Baroness Hollins: My Lords, I support the amendments of my noble friend Lord Rix. He made reference to people with learning disabilities and in particular expressed concern about people with complex needs. I should like to say a little more about people with learning disabilities who have challenging behaviour. It is estimated that as many as 40 per cent of people with learning disabilities may present behaviours that are challenging to family and other carers. These behaviours can be so intense and frequent as to have a major impact on the quality of life of the individual and their families.

People who present severe behavioural challenges are among the most disadvantaged and marginalised individuals in our society and are at much greater risk of exclusion, institutionalisation, deprivation, physical harm, abuse, misdiagnosis and exposure to ineffective interventions. Their carers are subject to physical harm, psychological ill-health, physical ill-health and to an

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increased burden of care and financial consequences. It can also have an impact on their employment prospects and quality of life.

Commissioners, policymakers and providers all face escalating costs and risk undermining national policy. Providers face high staff sickness and turnover, service breakdown, scandals and exposés such as the recent "Panorama" programme about Winterbourne View in Bristol and previous scandals in recent years in Cornwall and Merton and Sutton.

Back in 1993, Professor Jim Mansell emphasised the need for commissioners of health and social care to work together to provide good support and services for this group of individuals. He recommended locally based, individualised packages of care. He suggested that the environments where people are cared for should be skilled and capable of maintaining support for the long term. He revised his report in 2007 for the Department of Health and made the same points because insufficient progress had been made. He and others, such as the Challenging Behaviour Foundation, have made it very clear that large institutional provision is not the answer, yet many people with learning disabilities have care packages commissioned within such institutional care, mainly in the independent sector, funded by the NHS and by social services. These placements are often far from home. They have little guarantee of high-quality, skilled care and are vulnerable to the kind of restrictive practices that have been revealed time and again in a variety of high profile exposés. This care is often very high cost, as well as not delivering good outcomes for people.

A recent publication entitled There Is an Alternative, published by the Association for Supported Living, makes a strong argument for local, community-based support, saying that it is more successful and cheaper than specialist in-patient provision. However, for that to happen requires vision, commitment and a will to make it happen. It cannot be achieved without the will of effective local commissioners, a will that must be expressed in decisions to invest in local community-based services, rather than to farm out problem cases to expensive out-of-area placements-what in the world of learning disability we know as the "crisis Friday afternoon very expensive mistaken placement". Most successful supported living services have their roots in commissioners' decisions to invest in that service model, acting on sound demographic knowledge of the communities they serve and the needs and wishes of the people with learning disabilities who live within them.

I am sure that health and well-being boards will have an important role in thinking about the needs of their population with learning disabilities in that way. However, it is clear that there need to be good lines of accountability in future. There is a worry that local clinical commissioning groups will not be able to commission adequately when specialist services are needed. They will have to be able to address a comprehensive local strategy that can deliver early intervention, timely and skilled professional expertise and support, competent and high-quality providers of individualised support and services, flexible crisis intervention services, such as psychological therapies,

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which are very underdeveloped for that group of people, and psychiatry, which can build the support required for each individual-real individualised care. The numbers of individuals are relatively small but they can be very high cost if the services are not planned well.

It is essential that the needs of this group of individuals are specifically considered within the new commissioning arrangements. I always say that if we can get it right for people with learning disabilities and complex needs, we can get it right for everybody else. There may be an argument for looking to the National Commissioning Board to take this overall responsibility without compromising the need to find ways to ensure local responsibility-the delivery of creative, flexible and local solutions to meet the needs of individuals and families within their own communities. This is quite a challenge, which is why I have gone to such lengths to explain the problem faced by this complex group of people. I ask the Minister to comment on how such services might be commissioned in the future.

Lord Newton of Braintree: My Lords, perhaps I may intervene briefly in support of the general thrust of the amendments without necessarily saying that I agree with every dot and comma. I also agree, not least, with the remarks of the noble Baroness, Lady Hollins. The noble Lord, Lord Rix, and I have known each other for quite a long while in the field of learning disabilities and, indeed, through my role many years ago as Minister with responsibility for disabled people, so I am happy to lend a sympathetic word on this point.

I ought to declare an interest in that several times I have told the House that I am the chair of a mental health trust. Of course, mental health trusts often deal with learning disabilities as well, as indeed does the health trust that I chair, although happily last year it transferred most of its residents on old-style campuses to Suffolk County Council for a more complete version of genuine living in the community and community care, and I am rather pleased that we did that.

We need to recognise that, although there are overlaps-the word "co-morbidities" is used in one of the amendments-between mental illness and learning disability, they are not the same, and we need to make sure that we take particular and appropriate account of the needs of learning disabilities in all this. I hope that the Minister will be able to assure us that that will be the case.

Lord Beecham: My Lords, I begin by congratulating the noble Lord, Lord Rix, who has been such an outstanding champion of people with disabilities, alongside my noble friend Lord Morris of Manchester. The two of them have been in the vanguard of public policy-making and of informing and involving people in this crucial issue.

The noble Lords, Lord Rix and Lord Newton, both implied that learning disability is something of an overlooked condition. The noble Lord, Lord Rix, referred to the degree of prejudice and ignorance surrounding learning disability, which sometimes leads to the rather disgraceful treatment of individuals who suffer from that complaint, as we read from time to

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time. It is therefore right that they should be included in this broad request for the Secretary of State to have a duty to promote the equality of and improvement in treatment for people with all kinds of disability.

The noble Lord, Lord Rix, and to a degree the noble Baroness, Lady Hollins, questioned whether this might be rather too much of an issue for local commissioning groups to undertake. I am not so sure about that, and think that this area needs exploring. After all, the general practitioners, who will be a significant part of clinical commissioning groups locally, are the first line of service providers for people with a disability, and I am not clear that a commissioning body operating nationally would be the appropriate mechanism to promote such commissioning. Something like the shortly-to-disappear SHAs might have been, and it is not clear-at any rate, to me-the extent to which the national Commissioning Board will be operating at that sub-national level in the future. However, at all events, somebody has to assume an overarching responsibility, and local authority health scrutiny committees should certainly be ensuring that this group is not neglected in their statutory responsibility of reviewing the efficacy of local arrangements and local provision.

The noble Lord referred to the important issue of data collection in Amendments 117 and 143 and of drawing on the experience of people with the condition. I think that he would probably accept my suggestion that both of the amendments would be slightly improved by reference to carers, as their experiences should also be shared and brought into the picture. The amendments suffer a slight defect which I believe the noble Baroness, Lady Hollins, implicitly touched on. The amendments relate very much to the clinical and medical side of the conditions with which the amendments are concerned, but, of course, there are other agencies and other services that are important and must play a part in improving life for people with any of the range of conditions covered by the amendments.

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The role of local authorities can and should be very important in this respect. There will be a locus for involvement through the health and well-being boards in the preparation of joint strategic needs assessments which would, of course, cover this group. However, there is a range of local authority services-not least housing, a service carried out by district councils in two-tier areas-which will not necessarily be included in the commissioning groups, a matter to which we might revert later. There is also the question of the provision of aids and adaptations, leisure, educational services, transport, community safety and possibly, pending the introduction of a new structure for welfare reform, access to benefits through the support of welfare rights services. Clearly, all those matters can influence outcomes and the quality of life of a significant number of those whose needs the amendments seek to address.

It will be interesting to hear the Minister's replies to the observations made by noble Lords in proposing and supporting the amendments. It is important that there should be a reference to this group in the Bill, as that would send precisely the right signal to them, to

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their carers, to society at large and to decision-makers at all levels. If the Minister cannot accede to the amendment today, I hope that he will agree to take it away and come back on Report with something that would satisfy that particular need.

The Earl of Listowel: My Lords, my noble friend Lord Rix's amendment on children with complex needs and the special services that they need reminds me of a visit that I made a few years ago to a service run by the National Society for the Prevention of Cruelty to Children. This service was for a small and unpopular group of children who sexually harm other children and the manager said that it was very difficult to determine who should fund it. The primary care trust did not want to fund it. However, it was a vital service which intervened early in children's lives and stopped them from continuing their harmful behaviour towards other children into adulthood. The matter is relevant to this debate because the victims of sexual harm are often children with learning disabilities, and the children who perpetrate sexual harm are also more likely to come from the learning disabled group. We need to be reassured that services like that will find a home in the new arrangements. I look for reassurance from the Minister that that will be the case.

Earl Howe: My Lords, I am sure that all Members of the Committee will join me in expressing our admiration for the long record of the noble Lord, Lord Rix, in championing the cause of disability rights. They will have had a great deal of sympathy with what he and others have said in this debate.

The Government are committed to improving the lives of people with learning disabilities and the lives of their carers and families. Since we last had a debate of this kind in the context of a health Bill, the legislative backdrop has changed in a very material and important way. I am referring, of course, to the Equality Act 2010. The public sector equality duty in Section 149 of that Act requires public bodies to consider the impact of policies and decisions on particular groups across the protected characteristics. It also requires public bodies to have due regard to the need to eliminate discrimination and to advance equality of opportunity. This general public sector equality duty came into force in April 2011. This means that public bodies such as commissioners, local authorities, health trusts, other providers of NHS services and regulators need to understand how different groups are affected by their policies and practices across all protected characteristics, including disability, and ensure that they routinely use equality data in order to have due regard in their decisions. Furthermore, public authorities need to have a clear evidence base from which they can determine and set clear and measurable equality objectives in line with their specific duties in regulations made under Section 153 of the Act.

Sections 29 and 39 of the Equality Act 2010 prohibit discrimination against disabled persons, whether direct or indirect, by NHS employers, providers of health services and persons exercising other NHS functions. There are, in addition, important duties that apply to the NHS in relation to disability discrimination and reasonable adjustments which public bodies must make.

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Duties to make reasonable adjustments in relation to employment or the provision of services are set out in Sections 20, 29(7) and 39(5) of the Equality Act. The purpose of these duties is to ensure that employers and service providers have a positive and proactive duty to take steps to remove or prevent obstacles which may place a disabled person at a disadvantage in comparison to a non-disabled person.

This Bill plays its own part in helping to ensure that the care system delivers these commitments and improvements. It introduces new duties in relation to quality and fairness. It creates underpinning legislation for the NHS outcomes framework, which links to the public health and social care frameworks, and that will shine a light on the experiences of all patients and service users, including disabled people. The Bill brings clarity to quality through NICE quality standards that describe high-quality care along a pathway addressing the key issue of co-morbidities. The changes to the regulatory framework give Monitor a role in Clause 59 in relation to improvement in quality and fairness, as well as efficiency. The Secretary of State's annual report will be closely linked to the objectives that he sets for the NHS Commissioning Board and Public Health England. These are likely to evolve over time to meet changing health needs.

Because the new duties relating to quality and the reduction of inequalities apply to a number of bodies in the system, it would seem logical to include these aspects in the annual report. I can give an assurance that we have every expectation that the improvement of quality and the reduction of inequalities will be key reporting themes in the Secretary of State's annual report.

Our starting point is that people with a learning disability are people first. They have the right to lead their lives like any others, with the same opportunities and responsibilities, and the same dignity and respect. There is a clear policy framework towards people with learning disabilities, including those with profound and multiple learning disabilities and behaviour that challenges. Valuing People, published in 2001, set out the previous Government's commitment to improving the lives of people with learning disabilities, and set out the core principles of rights, independence, choice and inclusion. In 2009, that Government reaffirmed these principles in Valuing People Now. The coalition Government have also endorsed them. Key areas include improving outcomes for people with learning disabilities and their family carers around health, housing and employment, in particular enabling people to live healthier and for longer, including by improving access to high-quality healthcare, helping people to secure and stay in employment and supporting people to live in their own homes, including closing NHS campuses.

The first NHS outcomes framework signalled a number of important areas that needed to be included in it in the future. One of those areas was to understand and measure good outcomes for people with learning disabilities. The existing data and data collections do not easily allow outcomes for people with disabilities, including learning disabilities, to be identified. To help rectify this my right honourable friend Andrew Lansley launched the innovation in outcomes competition earlier this year to try to help to fill these gaps. I am delighted

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that we received some extremely helpful suggestions for how we might incorporate outcomes for people with learning disabilities in future iterations of the framework.

In addition to the NHS outcomes framework, the mandate is a mechanism through which it may be possible to draw attention to the importance of improving the quality of services and outcomes for people with learning disabilities. Improving outcomes for people with learning disabilities and their family carers is about making change happen at a local level for all people. It needs the full commitment of the full range of service providers and agencies across all sectors that need to work in partnership to plan, review and commission strategically.

As was well emphasised by the noble Lord, Lord Beecham, local authorities and health bodies are required to develop a joint strategic needs assessment and to commission services to address those needs. Joint commissioning with local authorities in relation to care and support for people with learning disabilities will help to support them better. We expect services delivering support to people with learning disabilities to act to ensure they are fully compliant with the law, especially the Equality Act 2010.

I turn now to the noble Lord's amendment to Clause 12. This clause allows the Secretary of State to make regulations requiring the NHS Commissioning Board to commission certain services that it would be less appropriate for clinical commissioning groups to commission. One of the reasons for giving GPs within clinical commissioning groups responsibility for commissioning NHS services locally is their unique position as the gateway by which patients access the majority of NHS services. However, there are some services that patients do not access via their GP, and there are others, for patients with rare conditions which are high cost and where clinical expertise needs to be concentrated, that require them to be commissioned and organised separately. For those services we believe that it would be better for the NHS Commissioning Board to take the lead. Dental services and services for members of the Armed Forces and for persons detained in prison or other accommodation of a prescribed description were included in the Bill because there was a clear policy intention for the board to commission the majority of services in these areas, and they could be easily defined in broad terms in primary legislation. This was confirmed by the consultation process on the implementation of the NHS White Paper and in the subsequent Command Paper.

Clause 12 provides that regulations may require the board to commission such other services or facilities as the Secretary of State considers it appropriate for the board rather than clinical commissioning groups to commission. The intention is that this would include specialised services for very rare or rare conditions where different arrangements currently apply because of their low volume and high cost. Currently, these services are either commissioned nationally by NHS London or regionally by primary care trusts working through collaborative commissioning arrangements with their specialised commissioning groups. In deciding what services it would be appropriate for the

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Commissioning Board to commission directly, the Secretary of State would be required to take into account a number of factors. These four factors are set out in Clause 12.

For services such as those for people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services, it is expected that some services will be considered specialised and therefore should be commissioned nationally. This is the specific question posed to me by the noble Baroness, Lady Hollins. Some services will not be considered specialised and should be commissioned by clinical commissioning groups working with local authorities.

The services included in the regulations could change over time as new services develop, existing specialised services become more common, and so on. The point here is that there is flexibility for the Secretary of State to take account of these changing factors and to require the board through regulations to commission certain services in a way that primary legislation does not.

3.45 pm

We do not think it would be suitable to include services for people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services in Clause 12, although I hope that what I have said is helpful in this context. We have, however, set up a clinical advisory group to make recommendations on an initial list of specialised services that will be directly commissioned by the board and tested against the four factors set out in Clause 12. That work is progressing and no final decisions have been made, but I can assure the noble Lord that the CAG's considerations have been based on the premise that the specialised services national definition set will form the solid basis for the specialised services included in the regulations. The current SSNDS includes a number of services that people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services can access. That includes specialised neurosciences services for adults, specialist mental health services and specialist services for children. I am looking particularly in the direction of the noble Earl, Lord Listowel.

On Amendment 117, the general public sector equality duty already requires public authorities to pay due regard to eliminating discrimination and advancing equality of opportunity. The Bill imposes additional, health-specific duties in relation to reducing health inequalities. In practice, this would entail collecting and analysing data to understand the needs and experiences of people using their services according to their protected characteristics. Furthermore, the NHS outcomes framework will include a number of measures of patient experience. Wherever possible these will be broken down by protected characteristics in order to promote a renewed focus on tackling inequalities in outcomes from healthcare services.

The framework provides a mechanism by which the Secretary of State can hold the NHS Commissioning Board to account for the outcomes that it is securing for patients. The board will be under a duty to assess the outcomes achieved by clinical commissioning groups for their local populations. It will be expected to

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discharge this duty in ways that support reductions in inequalities and promote equality. I am afraid that I do not think it would be appropriate to give greater emphasis in the Bill to some protected characteristics and not to others.

On Amendment 143, the noble Lord, Lord Rix, should be assured by the fact that the Government are committed to involving patients and the public in decisions about health services that are being or may be provided to them. As I have already indicated, the general public sector equality duty already requires public authorities to pay due regard to eliminating discrimination and advancing equality of opportunity. The Bill imposes an additional health-specific duty in relation to reducing health inequalities. The means through which to involve and consult must be capable of reflecting the needs of all members of the community.

The health inequalities duty on the board, as on the Secretary of State and clinical commissioning groups, will require it to act appropriately in order to comply with its duties. The same applies to the board's public involvement and consultation duty at new Section 13P. The board will be required to involve or consult people appropriately in order to fulfil this duty and will have to have its duties in relation to equality firmly in mind when doing so.

It is clearly right that the views of people with any impairments or disabilities are appropriately sought. However, we need to bear in mind that there are other groups in the community for whom reasonable adjustments may need to be made to ensure meaningful consultation, for example those whose first language is not English. I realise that the noble Lord may consider those with learning disabilities to be a special case, but to single out one group over another would be inequitable.

On Amendment 245, I can assure the noble Lord, Lord Rix, that the Secretary of State will include in his annual report a comprehensive account of the state of the health service. I have already mentioned the duty to reduce inequalities in this context. I believe that the existing robust legislative framework, allied with the changes introduced by this Bill, will deliver demonstrable improvements in outcomes for disabled people. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.

The Earl of Listowel: My Lords, I thank the Minister for his helpful response, particularly with regard to specialist services for children. I was interested in his point that the advent of the clinical advisory group will help the Secretary of State in making these decisions. I should be grateful to him if he could provide an assurance that, as the name suggests, this clinical advisory group will have a strong basis of expertise, that its membership will have long practice in the fields of interest and that there will be transparency as regards the members of the group and their experience. Perhaps that is too much to ask, but having discussed these issues with him in the past over the Cassel Hospital specialist service for families with complex needs, it seems that everyone would benefit from being reassured that the people who advise the Secretary of State have a depth of knowledge in the areas and specialist fields for which they are responsible.



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Earl Howe: I can reassure the noble Earl that the clinical advisory group is taking and welcomes expert advice from all quarters. It is taking its time to get this right. It is too soon to announce any conclusions from its work, but I have no doubt in my mind that the noble Earl's concerns will be addressed fully.

Lord Rix: My Lords, after that long, complex reply from the Minister, I shall have to read Hansard from top to bottom tomorrow. He referred to many Acts, which have yet to prove their efficacy in some instances, and to all manner of directives, which I could not write down and take note of at this moment. However, I thank him for his comprehensive response. When I read Hansard, I hope that it will prove to be more than helpful.

I also thank my noble friend Lord Listowel, and my noble friend Lady Hollins, whose expert opinions and advice are both personal and professional. I should also like to say, possibly at great risk because I am surrounded by doctors and nurses, that I fear that it is only people such as my noble friend Lady Hollins who have really worked at learning disability and that students who come out of St George's know more about learning disability than perhaps many other medical students and young doctors who come out of other medical schools. Therefore, if clinicians are to be made to guide the commissioning boards et cetera on the work that has to be done for learning and disabled people, I have to say that I fear that some clinicians are rather short of experience in this area. I say this with due deference to my noble friends who are all around me at the moment and I hope that they will not clobber me when I get into the tea room after the next amendment.

I also thank the noble Lords, Lord Beecham and Lord Newton. I was very glad to have support from both sides of the House. The noble Lord, Lord Newton, and I have discussed learning disability for many years. I was very glad to hear from the noble Lord, Lord Beecham, who is new to me, and to have his support. Without further ado, I look forward to reading Hansard tomorrow and to consulting my colleagues, my noble friends Lady Hollins and Lord Wigley, and all the people at Mencap and other devoted charities. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendment 14 not moved.

Amendment 15

Moved by Lord Patel

15: Clause 2, page 2, line 19, after first "the" insert "health"

Lord Patel: My Lords, I shall speak to all the amendments tabled in my name, but before I do so I should like to thank all noble Lords who have joined their names to these amendments-and of course there are amendments tabled in their names as well. Given the size and complexity of the Bill and what it covers, my amendments may well appear to address minor issues, but on reading the Bill in detail-I have

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read it line by line-it occurred to me that there are some fundamental omissions, even if they concern only a single word. I must ask why, when the Bill is supposed to implement a reorganisation of the health service that will deliver world-class health outcomes, such important issues have been missed out.

I shall address each amendment tabled in my name, and take Amendment 15 first. Clause 2 will insert a new clause covering the Secretary of State's, "Duty as to improvement in quality of services". New subsection (2) states:

"In discharging the duty under subsection (1) the Secretary of State must, in particular, act with a view to securing continuous improvement in the outcomes".

It makes no sense to me if the word "health" is not inserted before the word "outcomes". We are talking about the health outcomes that are achieved from the provision of services. Equally, new subsection (4) states:

"In discharging the duty under subsection (1), the Secretary of State must have regard to the quality standards prepared by NICE".

I wonder why the word "clinical" is not before "quality standards" so as to emphasise that these have to be clinical quality standards. I am well aware that NICE produces technology assessments that are often referred to as technology standards, and that it writes standards in other areas, but they are all for the purpose of refining clinical care or developing eventual clinical quality standards that deliver clinical care.

Perhaps I may say with some humility that I am aware of what clinical quality standards are all about, having for five years had the job of writing them. I am also familiar with some of the clinical quality standards written by organisations that we would regard as being the best in the world, such as the MD Anderson Cancer Center in Houston, Johns Hopkins in Baltimore, Harvard, the Mayo Clinic and others, including some Australian institutions. They all refer to quality standards as being clinical quality standards, because they are what matter in the delivery of care. Apart from that, those are the standards that the Commissioning Board will use to build packages of currency that Monitor will then use to produce tariffs, so if they are not clinical standards, what are they? In my view, it is clinical standards that will deliver the outcomes we seek, so why not call them clinical standards?

Amendment 107 refers to Clause 20, which covers the duties and functions of the Commissioning Board. Proposed new Section 13E is entitled, "Duty as to improvement in quality of services". Subsection (3), which I seek to amend, states:

"The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show-

That is the definition of quality standards that we are using, but it does not mention delivering better outcomes for patients. Why are these quality standards that will deliver better outcomes for patients not the standards that we want? If we do, why do we not put them in the Bill? It will alter the culture of people who work in the health service when they read language and words such as "clinical standards" and "health outcomes"

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for individuals or in practice. My noble friend Lord Warner tabled a similar amendment to which he will no doubt speak.

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My Amendment 109 would again introduce "clinical" to new Section 13E(4)(b) of the 2006 Act, so that "quality standards" would become "clinical quality standards". My Amendment 134 again relates to the duties and functions of the Commissioning Board. New Section 13L refers to the, "Duty in respect of research" and new Section 13M to, "Duty as to promoting integration". We have discussed integration previously, when I referred to an example of care for diabetics. New Section 13M(1) states:

"The Board must exercise its functions with a view to securing that health services are provided in an integrated way".

Why does it state "an integrated way" when it means "a clinically integrated way", as my amendment proposes? The patient will benefit from a service that is clinically integrated to deliver individual care, which will make a difference to their outcome.

Amendment 179 again refers to the functions of the NHS Commissioning Board. New Section 14Q is headed, "Duty as to improvement in quality of services". It is very important. Subsection (1) states:

"Each clinical commissioning group must exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals".

Again, it misses out the word "clinical". It is the clinical quality of services provided to individuals that will deliver continuous improvement and better outcomes. Subsection (2) also misses out the word "clinical" when it refers to outcomes, which my Amendment 181 would remedy. I repeat that the use of these words establishes a culture in practice. I know from long experience that these words are important, and these amendments include them.

Lord Warner: My Lords, I support the amendments of the noble Lord, Lord Patel. I draw the Minister's attention to the noble Lord's great expertise, of which I am sure he is aware, in the area of setting standards for good clinical outcomes. He has done this in Scotland and the Committee should take careful note of the amendments that he has proposed and which I strongly support. I shall not go over again the ground that the noble Lord has covered, but he has made a compelling case for tidying up the wording of the 2006 Act in the areas that he has suggested.

Amendment 109 is in my name and that of the noble Lord. The words that it would add to new Section 13E(3) are very important to patients. Good and speedy access to services is essential to good outcomes, but it is an issue with which the Conservative Party has played fast and loose in its efforts to distance itself from targets. In doing so, it may have made itself popular with the NHS but it has rather lost sight of the importance that access to services has for patients in terms of their view of the way in which the NHS treats them.

Good and speedy access is critical to good outcomes, and nowhere is that more apparent than in cancer services, which is why a lot of effort was put in by the previous Government, with experts in cancer, to devise the targets that were produced in this area. I am not

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trying to make a party political broadcast on the success of Labour's access targets, although the temptation is enormous, but to bring out the key difference in approach to access between many parts of the Chamber and the Government Front Bench. I suspect that when the Minister comes to reply, I will get a little lesson on the lines that access is a process and what we should concentrate on is outcomes. I suspect that his brief will tell us a lot about that particular issue.

I suggest that there is a different way of looking at this. Access is not just a process issue because it incorporates one of the requirements for good outcomes. Of course, no one, least of all me, is suggesting that we should be against trying to define outcomes or measuring performance in achieving those outcomes. Some of us have spent the best part of our working lives trying to deal with the subject of outcomes in a whole range of public services. But we usually struggle, as I suspect this Government will, to define the outcome appropriately and to find an appropriate measure. Often we have to wait an indecently long time for the outcome to become apparent. We are often forced back onto proxies, which usually look much more like outputs than outcomes. Performance measures on access are a good example, not least because without speedy access patients are unlikely to get good outcomes.

It is also important that we have speedy access in order to ensure that diagnosis takes place, particularly in areas such as cancer. That is why targets were used by the previous Government to drive improvements to access. One reason why they got involved in the issue of targets and access was the great public concern in the 1990s about the length of time people had to wait before they could get access to services. I am not making a party political point, but trying to get across to the Benches opposite that patients take this very seriously. They judge the NHS to a great extent on whether they can get access to services in a timely way. It is worth bearing in mind that the previous Government's targets were actually less demanding than some of the views that patients had on how long they should wait to get services. Patients were much more demanding than the NHS targets that the previous Government set for the NHS in this area.

A Nuffield Trust comparative study of access targets in north-east England and the lack of them in Scotland revealed that the English experience was better for patients both in terms of speedier access and of efficiency and cost. It also showed that targets were indeed often unpopular with NHS staff. But if we are to make a choice between popularity with NHS staff and popularity with patients, I know which side of that argument I would prefer to be on.

I know that the Government have begun to retreat, to some extent, on the issue of abolition of targets, but we need to keep speedy access to services high on the NHS agenda, particularly as the NHS moves through a period of considerable challenge. Our five little words in Amendment 109 would help to do that, and I hope that the noble Earl will feel able to accept them.

Baroness Bakewell: I support Amendment 18B, which is also included under the heading,

"Duty as to improvement in quality of services",

of the proposed new Section 1A to the 2006 Act.



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I speak on behalf of particular interest group: the old. I declare an interest. I was for 18 months the government-appointed Voice of Older People. The interest group for which I speak is large and growing larger. Some 10 million people are now over 65 in the UK. In 2034, 23 per cent of the population will be over 65 of whom 3.5 million will be of the older old-over 85. That age, 85, is significant to the amendment. The amendment is to new Section 1A(3), proposed in Clause 2, dealing with the Secretary of State's duty to seek continuous improvement in the outcomes, and it lists the relevant outcomes to be measured: effectiveness, safety and quality. We have already heard from the noble Lord, Lord Patel, and others about the important amendments to that.

Amendment 18B seeks to add a fourth consideration-and a rather odd one-which is that,

"These outcomes should not exclude sections of the population due to age".

That phrase sits uneasily here-it would sit uneasily anywhere-because it is not of a kind like any other. However, it is important for the many people who will be numbered in the data on which outcomes are based-or, rather, not listed in the data.

The NHS Outcomes Framework 2011/12, which sets out outcomes and corresponding indicators, states:

"Where indicators are included which can be compared internationally, levels of ambition will work towards the goal of achieving outcomes which are among the best in the world"-

a laudable aim indeed. However, the document goes on later to state:

"Current data collections are limited in the extent to which this is possible ... We recognise that there are certain groups or areas which the framework may not effectively capture at present, simply because the data and data collections available do not allow outcomes for these groups to be identified".

In the document's charts that show the overarching indicators, it is clear that many of the indicators stop at the age of 75. The indicators specify the mortality rates from cardiovascular disease, respiratory disease and liver disease. Thus, the data on deaths from such causes over the age of 75 are not monitored under the outcomes framework, despite the fact that life expectancy is far higher than 75.

It is also clear that many of the data are under development. I understand that, and there is work to be done. As the document states:

"This is the first NHS Outcomes Framework and ... it is intended to signal the direction of travel for the NHS".

The direction of travel for the population of this country is to have a much higher percentage of older old people. We already have more than 12,000 centenarians. Throughout debates on this Bill, I will be pressing for considerations of age to be written specifically into its provisions.

Why do we need to be so explicit? Surely we are all citizens, we are all taxpayers and, in the end, we are all patients. That is of course the reasonable case, but that is not how care is experienced. A recent report commissioned by the Department of Health concluded:

"Evidence of the under-investigation and under-treatment of older people in cancer care, cardiology and stroke is so widespread and strong that, even taking into account confounding factors

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such as frailty, co-morbidity and polypharmacy we must conclude that ageist attitudes are having an effect on overall investigation and treatment levels".

That was in a report published for the Department of Health. To give just a simple anecdotal example from broader practice, although the risk of breast cancer increases with age, the general-practice reminders that are sent out to women to invite them to mammograms stop once a woman reaches the age of 70.

My amendment seeks to make clear, and even overemphasise, that all outcomes include all sections of the population. Prevailing attitudes to the old require that to be spelled out in the Bill.

Lord Kakkar: My Lords, I support Amendments 15 and 19, in the name of the noble Lord, Lord Patel, to which I have added my name. In so doing, I speak as a practising clinician and I wish to emphasise the wise point made by the noble Lord, Lord Patel, about the need to ensure that the Bill describes important facets of what needs to be achieved to improve culture within the NHS.

At Oral Questions today, we heard a discussion about hydration policy. Clearly, in a healthcare system, it is important that the culture is appropriate. Therefore, an emphasis on specifying "health outcomes" and "clinical quality standards" is also important because that will drive a cultural emphasis on the fact that improvement of health is the purpose of the Bill. The failure specifically to recognise, on page 2 in line 17, the issue of outcomes being specifically those of health, and in line 27 the quality standards to be specifically those of clinical quality, is potentially an important failure that should be recognised. I hope that in responding to this debate the Minister can confirm that with the emphasis on health outcomes and clinical quality standards, the purpose of the Bill will be emphasised in the language used in the Bill.

4.15 pm

Baroness Barker: I follow on from the speech made by the noble Lord, Lord Kakkar, by raising a question for the noble Lord, Lord Patel. Does he accept that if his amendments were accepted, for some of us that would run the risk of medicalisation of long-term conditions? I agree with him when he says that there needs to be a change in culture-culture is all important. What this Bill seeks to do is to break down a lot of the barriers between health and social care so that the health and well-being, in the broadest sense, of individuals, are improved. That is an enormously important step forward, not least because much of the preventive work needs to be done with the population, in terms of lifestyle and so on, to decrease admissions to the NHS. That is what has traditionally been carried out not by healthcare but by other agencies.

I throw the noble Lord a somewhat philosophical question. If his amendment were to be accepted, would that be an acceptance by the medical profession that health and social care need to work in a far more integrated fashion than they have ever done before to achieve what he would term health and clinical outcomes, to which I would add well-being outcomes?



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Lord Patel: My Lords, there is no conflict when I use the word "clinical" in recognising that it would encompass the totality of clinical and social care. The problem will arise that while the evidence exists to be able to write clinical quality standards, the evidence to write social standards is lacking, and we may have to develop those. That is why a distinction is made between the two. In terms of immediate outcomes for patients that are seen for medical care, the clinical quality standards will make the difference. That does not mean that I do not recognise clinical and well-being together-and I think that all doctors would recognise that. It is not medicalisation that I am after by using the term "clinically".

Lord Hunt of Kings Heath: My Lords, this has been an interesting series of amendments. The noble Lord, Lord Patel, made a very important point about the influence that legislators can have in drafting legislation on the culture of the NHS. He speaks with great experience because of his work in Scotland on the development of clinical standards, and I am sure he is right to emphasise the words "health" and "clinical" in adding to our understanding of what we seek from the National Health Service.

The point raised by the noble Baroness, Lady Barker, is very interesting. This is meant to be a health and social care Bill, although there is very little about social care in it. Indeed, the only provisions ranging around social care are bad provisions. Remarkably, we are proposing to abolish the General Social Care Council, which ought to be an uplifter of standards among social workers. I give notice that I intend to thoroughly oppose these provisions and place the regulation of social workers into a health body. I look forward to the support of the noble Baroness, Lady Barker, on that when we come to it. I would have thought that the way through is either to add well-being to this part of the Bill or to say "health, clinical and other outcomes" to meet the valid point raised by noble Baroness.

My noble friend Lady Bakewell is very keen in her Amendment 18B to ensure that in securing the outcomes set out in the Bill, we,

on grounds of age. We look to the Minister to give us some reassurance on my noble friend's point about the overarching indicators used extensively in the department and the health service, which go up to only the age of 75. It is not good enough to say that the data are still under development and therefore we will not worry about statistics on the over-75s. One would like to think that those indicators will be revised to embrace people over 75.

Amendment 16A, which is my own amendment, relates to the efficiency of the service. It seeks to add "efficiency" to the criteria that need to be considered. I would be interested to know from the noble Earl why efficiency is not mentioned in line 23 on page 2 of the Bill. My argument would be that a measurement of a service's effectiveness may be of only limited value. One example might be the fraught question of new drugs and treatment being developed by industry and marketed indirectly to patients, for example through the sponsorship of charities that promote the case for

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the provision of new treatments in the NHS, and there is a strong case to make those treatments improve the effectiveness, safety and quality of experience. However, if you do not also have to consider efficiency, is there not a risk that you will not look at value for money or productivity and, in the end, not give a rounded analysis of a particular new treatment or technology?

Amendment 19, in the name of the noble Lord, Lord Patel, deals with the standards prepared by NICE under Clause 231. I hope that the noble Earl can clarify the status of NICE standards and guidelines. I have a later amendment on this matter, as do my noble friend Lord Warner and the noble Lord, Lord Patel. We have been concerned by suggestions that the Government are seeking to downplay the role of NICE and the statutory nature of its guidance on technology appraisals. I would be very grateful if the noble Earl could reassure me on that.

I remind the noble Earl that NICE was established because of the traditional delay in the health service when a treatment has been proven to be cost-efficient and effective. There was always reckoned to be a long delay from the time when it was proven to be cost-effective, efficient and clinically effective to the time when it generally available in the National Health Service. NICE guidance was designed to speed up the adoption of such proven new treatments, technologies and drugs. I am concerned about any suggestion of returning to the bad old ways when it was up to each clinical commissioning group simply to decide on a new technology and the group not having to follow the guidance set out in the NICE technology appraisals-if that is what they are called; I think we have probably moved on from that terminology. We will of course return to that later on in the Bill, but some assurance would be welcome.

I turn to my noble friend Lord Warner's Amendment 109. I never understood the Opposition's opposition to waiting time targets in the NHS. I remind the Minister that when his Government last left office they had the patients' charter, which had a waiting time target of 18 months that they did not achieve. We got it down to 18 weeks, which had a hugely beneficial impact on patients. There is no doubt, if you look at regular polling, that the NHS was in very good condition in 2010 because to all intents and purposes the dreadful waiting that had been such a product of the NHS over many decades had been radically reduced.

We know that there is a sense in the health service that the Government are no longer worried about waiting times. I have no doubt whatever that if the pressure is taken off, waiting times will start to rise again. That might suit the Government because of the funding issues that they are confronting the NHS with, and it would certainly suit the private sector, which we know does well out of long NHS waiting times, but it will do patients no good at all. I do not know how far my noble friend Lord Warner intends to take this, either now or at a later stage, but it is important that we say in the Bill that we are concerned about the speed of access to services.

Earl Howe: My Lords, I am grateful to the noble Lord, Lord Patel, and other noble Lords for introducing this group of amendments. I agree with the noble

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Lord, Lord Hunt, that this has been an excellent debate with a shared commitment to ensuring that quality sits at the heart of the Bill. I find that heartening. I recognise the long experience of the noble Lord, Lord Patel, in defining what quality looks like.

The grouping revolves around the definition of the duty of quality and how the term "quality" is addressed throughout the Bill. As was discussed in earlier debates, the duty of quality enshrined in the Bill is derived from the report of the noble Lord, Lord Darzi, High Quality Care for All, published in 2008. The noble Lord set out that quality could truly happen only when three different factors were present: safety, effectiveness and patient experience. That definition was widely welcomed at the time and over the past three years has become valued across the NHS.

The definition did not come out of the blue. The noble Lord's review was produced with the NHS, with patients, clinicians and managers, using the strategic visions developed in each of the 10 strategic health authorities. Its definition of quality-effectiveness, experience, safety-has survived even the electoral cycle. Indeed, one of our first priorities as a Government when we came to power was to build on the noble Lord's work. We did this through publishing a consultation paper and then following it up with the first NHS outcomes framework, published in December last year. Respondents to the consultation on the outcomes framework were highly supportive of the continued use of the definition of quality and the fact that the framework sought to measure patient-reported outcomes and patient experience as well as clinical outcomes.

The question we have to ask ourselves about the amendments is simple: does the definition need to change? My view is clear: we should stick with the original definition. However well intentioned the amendments are, there would be risks attached to them.

I shall start with Amendments 19, 110, 134, 179 and 181. The intention, if I understand it correctly, is to specify that the duty of quality should be restricted to clinical matters in order to ensure a focus on clinical quality and outcomes for patients. I understand the noble Lord's arguments but my fear is that these amendments would have the effect of narrowing the duty of quality and losing the integrated approach that it embodies. Let us consider this with regard to quality standards, covered in Clause 231. Quality standards, as I have already said, bring clarity to quality, providing definitive and authoritative statements of high quality care that are based on the evidence of what works best. That idea opens up the opportunity for quality standards to cover an integrated care package, from public health interventions in primary care to rehabilitation and long-term support in social care, thereby supporting the integration of health and social care services. I fear that we would lose this integrated approach if we were to restrict the Secretary of State's obligation to looking only at clinical standards.

4.30 pm

Similarly, restricting the NHS Commissioning Board's integration duty to services provided in a clinically integrated way would preclude integration where the board consider at it would be beneficial, although not clinically, to the people receiving those services, such

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as in improving the patient's experience. I was very grateful to my noble friend Lady Barker in this context. Focusing just on clinical outcomes would mean the exclusion of non-clinical outcomes, such as access, reduction in health inequalities, healthy living, health promotion and the health-related services that we want to see integrated in an increasingly effective way.

In a similar vein, I am afraid I am unable to accept Amendment 15, tabled by the noble Lords, Lord Patel and Lord Kakkar. Clause 2 is clear that the only outcomes that can be pursued relate to the definition of quality. By limiting the pursuit of better outcomes just to health outcomes, the amendment would cut out crucial outcomes such as delivering a better patient experience. We need to look at care in the fullest sense when looking at ways to improve integrated care. I cannot help but feel that these amendments risk undermining this principle. Therefore, I hope the noble Lords will think again about them.

Amendment 107 contains a noble sentiment with which I completely agree: the NHS Commissioning Board should focus on delivering better outcomes for patients. However, I hope to reassure the noble Lords, Lord Warner and Lord Patel, that the clause covers this. The outcomes sought in subsection (3) are those specified in subsection (2), which are patients' outcomes.

Amendments 16A and 109 again seek to alter the definition of quality, originally set out by the noble Lord, Lord Darzi, this time in a slightly different manner. The aim of Amendment 16A, tabled by the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, is clear; it is to emphasise the critical importance of efficiency in the NHS. I reassure the noble Lord that the importance of efficiency is well tackled elsewhere in the Bill. Under Clause 20, in new Section 13D, and Clause 23, in new Section 14P, the NHS Commissioning Board and clinical commissioning groups respectively come under a duty to exercise their functions "effectively, efficiently and economically". In this context, "effectiveness" relates to the overall effectiveness of the organisation, rather than to the effectiveness of the outcomes that both organisations must pursue in relation to their own duties to improve quality continuously. Therefore, I hope the noble Lord will recognise that the sentiment behind the amendment is already well covered by the Bill, and that he will be prepared to withdraw the amendment.

Amendment 109 seeks to amend the NHS Commissioning Board's duty in relation to quality under new Section 13E, in Clause 20, to include reference to "timely access to services". The noble Lord, Lord Warner, may be pleased to know that I do not disagree with a lot of what he said about access. It is intimately bound up with the definition of quality. It matters to patients and can be a good way of predicting good outcomes. Timely access to services encompasses all three of the domains of quality. It is important that patients have timely access to services to ensure the clinical effectiveness of treatment. For example, where cancer is suspected, patients should see a specialist within two weeks of an urgent GP referral. Waiting times remain low and we continue to place an emphasis on this in the operating framework.



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It is true that without timely access to healthcare you cannot have quality. It is intimately connected with delivering better outcomes for patients, better clinical effectiveness outcomes, better patient experience outcomes, and better safety outcomes. However, while I acknowledge all that, I believe that this all-encompassing definition of quality, combined with the rights that patients continue to have under the NHS constitution on access, makes this amendment unnecessary, and I therefore hope that the noble Lord will feel comfortable in not pressing it.

Lastly, I turn to Amendment 18B, tabled by the noble Baroness, Lady Bakewell. She makes an important point that in pursuing improved outcomes there should be no discrimination on grounds of age. Once again, I could not agree more with the intention and sentiment behind this amendment. None the less, I believe it to be unnecessary. First, the Bill places the Secretary of State, the NHS Commissioning Board and clinical commissioning groups under a duty to have regard to the need to reduce health inequalities between the people of England-the first time that we have had such a duty in statute. It is a landmark provision for a broad duty that encompasses all groups in society.

Secondly, as we discussed in the previous group of amendments, the public sector equality duty at Section 149 of the Equality Act 2010 requires all public bodies to consider the impact of policies and decisions on particular groups across the "protected characteristics"-a term of art in the Act-that include age. This general public sector equality duty came into force in April this year. The noble Baroness mentioned that data are not available to measure outcomes for particular groups such as the elderly. I fully agree about the importance of having good data to drive improvement, but data for the over-75s are particularly difficult to collect. Mortality causes in this group are hard to pinpoint, which is why such data are of somewhat limited value as an accountability measure. The outcomes framework is designed to make services accountable. However, older people's experiences and safety measures are included, and these indicators will of course improve over time. That is our stated ambition.

The noble Lord, Lord Hunt, asked me about NICE-

Lord Winston: I listened carefully to the Minister's answers to and rebuttals of many of these amendments, which he made with cogent force, and I found it difficult to disagree with them. However, in the case of the amendment of the noble Baroness, Lady Bakewell, I have a problem. The issue of age is such a special case that there is a strong reason to consider writing her amendment into the Bill at this stage, because it is clear from what has happened historically and recently that aged patients are in a particularly difficult situation in an ageing community. They are often not communicated with and left unable to feed themselves, and people are not there to feed them, and so on. The Minister knows all this very well. Is there not a serious case for a caring Government to think seriously about the issues that the noble Baroness has raised?

Earl Howe: Of course there is, and I am grateful to the noble Lord. We are anxious to ensure, however, that any measures that we put in place in the

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outcomes framework are robust in terms of their verifiability. As I have said, I completely agree with the need for good data that have to underpin any system of accountability. I strongly feel that the Bill takes a significant step in the right direction. The NHS Information Centre will be the powerhouse for improving data in the NHS. It will look at how we can improve data for all age groups, not just the over-75s. I take on board what the noble Lord said. If I can add to what I have said, I should be happy to do so in writing.

I shall cover briefly the questions from the noble Lord, Lord Hunt, about NICE. NICE is a body for which we have the highest regard. In the Bill, we are widening its duties and placing it on a much firmer statutory footing. I hope that that in itself will indicate to the noble Lord that, far from downplaying the role of NICE, we want to do the opposite. We are giving it responsibility for defining excellence in social care and for producing a library of quality standards, which it has already started to do. In connection with technology appraisals, we see it continuing to have a very important role. What the noble Lord may have heard on the grapevine, if I can put it that way, related to our plans for value-based pricing of medicines. If we succeed in defining a good system-a good framework-for value-based pricing, the role of NICE will inevitably shift somewhat, because it will be asked a slightly different question from that which it is asked at the moment, but it will retain an absolutely central role, particularly in the pharmacoeconomic evaluation of new medicines.

The noble Lord asked me about the concern that clinical commissioning groups would, as it were, be able to take their own decisions and perhaps disregard NICE guidance. We have made absolutely clear that the funding direction associated with NICE-approved medicines will continue, not only up to the end of 2013, which is when the current pharmaceutical price regulation scheme comes to an end, but thereafter in the new world of value-based pricing.

I agree with the spirit of all the amendments, but I hope that noble Lords will accept from me that they are either not needed or would have an unintended and retrograde effect, which I have tried to outline. I hope that, with that, noble Lords will feel able not to press the amendments.

Lord Patel: My Lords, I thank the Minister for his detailed comments and all noble Lords who took part, although some of them did not quite understand the meaning of my amendments. None the less, it was never my intention to have a narrow definition of "clinical", and I accept what the noble Baroness, Lady Barker, said: that it might give the impression that this is narrowly defined to medical standards. It is not; it takes into account both the well-being of the patient and, beyond that, rehabilitation and even social care, if we can define the standard.

My intention was never to press the amendments, but to try to highlight the issue that standards that are written are important if they are written with a view to focusing on patient outcomes. The phrase "clinical standards" tends to do that, and other standards have

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to incorporate that. If there was one benefit of this debate, it was that the noble Earl had to define the quality standards that NICE would be expected to write, which incorporates the patient journey of care from access to rehabilitation. That is exactly what I was hoping to achieve. By the way, I am familiar with NICE, having been involved at its inception and having written the paper that established it. Standards, whether they are quality standards of access or others, must focus on what gives a better outcome to the patient. On that basis, I am pleased to withdraw the amendment.

Amendment 15 withdrawn.

Amendments 16 to 17 not moved.

Amendment 17A had been withdrawn from the Marshalled List.

Amendments 18 and 18A not moved.

Amendment 18B

Moved by Baroness Bakewell

18B: Clause 2, page 2, line 25, at end insert-

"( ) These outcomes should not exclude sections of the population due to age."

Baroness Bakewell: My Lords, I thank the noble Earl for his thoughtful consideration of my amendment. Because this is so impending a situation, it has to be taken on board for the future. The noble Earl spoke about having data that were robust in terms of verifiability and about evidence for the over-75s being harder to come by. However, life expectancy in this country is 84 for women and 79 for men, so there are data somewhere. I reiterate that there is a growing groundswell of concern, evident in newspapers when the story goes wrong, about the National Health Service failing older people, and I am sure that the Minister is as keen as I am to see that end. I beg to move.

Earl Howe: My Lords, I completely understand the points that the noble Baroness has made and I am sure that there is general sympathy in this Committee for the issues that have been aired through successive reports. I refer not just to the Care Quality Commission's findings but to those of the ombudsman relating to care for the elderly in both the NHS and care home settings. The noble Baroness should be in no doubt that this is very high on the Government's list of priorities but, as she recognised herself, there are particular obstacles that we have to overcome before we can move forward in the way that she has indicated and that we all want.

Baroness Bakewell: I beg leave to withdraw the amendment.

Amendment 18B withdrawn.

Amendment 19 not moved.

Clause 2 agreed.

House resumed.



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UK Border Agency

Statement

4.47 pm

The Minister of State, Home Office (Lord Henley): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary.

"With permission, Mr Speaker, I would like to make a Statement on the United Kingdom Border Force, an operational division of the United Kingdom Border Agency.

The border force is responsible for ensuring that only legitimate travellers and goods are allowed to enter and leave the United Kingdom, while reducing threats, including illegal immigration, drug smuggling and terrorism. Border force activities include verifying the immigration status of passengers arriving and departing the UK; checking baggage, vehicles and cargo for illicit goods; and searching for illegal immigrants.

Border force officers confirm the identity of passengers arriving at the United Kingdom border, check passengers against a watch-list known as the warning index and undertake a visual inspection of passengers' passports. Where a biometric passport is held, the biometric chip, which contains a second photograph, is opened and verified. Non-EU passengers undergo additional checks. Officers establish whether a visa is required and whether a visa is held; if the passenger has a biometric visa, then a fingerprint database check can be made; and officers decide whether the passenger should be granted entry to the United Kingdom.

In the past, under the previous Government, some of these checks were lifted at times of pressure on the border. In the summer of 2008, warning index checks were suspended on EEA nationals-children and adults-on Eurostar services. At Calais, warning index checks were suspended on European economic area and UK car passengers-again, adults as well as children were not run against the index. Since 2008, at various ports and airports, this happened on more than 100 occasions.

Officials have told me that once, in 2004, local managers at Heathrow terminal 3 decided to open controls and no checks were made. To prevent this happening again, and to allow resources to be focused on the highest-risk passengers and journeys, in July I agreed that the United Kingdom Border Agency could pilot a scheme that would allow border force officials to target intelligence-led checks on higher-risk categories of travellers.

Initial options had been put to the then Security Minister and the Immigration Minister in January, and this resulted in proposals for a risk-based strategy coming to me in April. After further work, I agreed an amended and limited pilot scheme in July. That meant that, under limited circumstances, EEA national children, travelling with their parents or as part of a school group, would be checked against the warning index, designed to detect terrorists and serious criminals, when assessed by a border force official to be a credible risk.



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The pilot also allowed, under limited circumstances, border force officials the discretion to judge when to open the biometric chip, which contains a second photograph and no further information, on the passports of EEA nationals. Those circumstances were that the measures would always be subject to a risk-based assessment, that they should not be routine, and that the volume of passengers would be such that border security would be stronger with more risk-based checks and fewer mandatory checks than with more mandatory checks on low-risk passengers and fewer risk-based checks on high-risk passengers. The advice of security officials was sought and they confirmed that they were content with the measures.

I want everyone to understand what was supposed to happen under the terms of the pilot. In usual circumstances, all checks would be carried out on all passengers. Under the risk-based controls, everybody's passports would be checked; visa nationals' fingerprints would be checked; all non-EEA nationals' biometric chips would be checked; all adults would be run past the warning index; all non-EEA nationals would be run past the warning index; and border officials would be free to use their professional judgment to check the biometric chip of EEA passengers and free to use their professional judgment to check EEA children travelling with parents or a school group against the warning index.

The pilot was extended on 19 September and was due to end last Friday. The results are not yet fully evaluated but UKBA's statistics show that, compared to the same period last year, the number of illegal immigrants detected increased by nearly 10 per cent.

Last week, John Vine, the independent chief inspector of the UK Border Agency, raised concerns with Rob Whiteman, the chief executive of UKBA, that security checks were not being implemented properly. On Wednesday, the head of the UK Border Force, Brodie Clark, confirmed to Mr Whiteman that border controls had been relaxed without ministerial approval. First, biometric checks on EEA nationals and warning index checks on EEA national children were abandoned on a regular basis, without ministerial approval. Secondly, adults were not checked against the warning index at Calais, without ministerial approval. Thirdly, the verification of the fingerprints of non-EEA nationals from countries that require a visa was stopped, without ministerial approval.

I did not give my consent or authorisation for any of these decisions. Indeed, I told officials explicitly that the pilot was to go no further than we had agreed. As a result of these unauthorised actions, we will never know how many people entered the country who should have been prevented from doing so after being flagged by the warning index.

Following Mr Clark's conversation with Mr Whiteman, the latter carried out further investigations and, on Thursday morning, he suspended Mr Clark from duty with immediate effect. The Home Office Permanent Secretary, the Immigration Minister and I were notified of his decision that morning. The pilot scheme, which had been due to end the next day, was suspended immediately. And on Friday two other border force officials, Graeme Kyle, director of operations at Heathrow, and Carole Upshall,

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director of Border Force South and European Operations, were also suspended from duty on a precautionary basis.

There is nothing more important than the security of our border and, because of the seriousness of these allegations, I have ordered a number of investigations. Dave Wood, head of the UKBA Enforcement and Crime Group and a former Metropolitan police officer, will carry out an investigation into exactly how, when and where the suspension of checks might have taken place. Mike Anderson, director-general of immigration, is looking at the actions of the wider team working for Brodie Clark and John Vine will conduct a thorough review to find out exactly what happened across UKBA in terms of the checks, how the chain of command in the border force operates and whether the system needs to be changed in future. For the sake of clarity, I am very happy for Mr Vine to look at what decisions were made and when by Ministers. That investigation will begin immediately and will report by January. I will place the terms of reference for these inquiries in the House of Commons Library.

Border security is fundamental to our national security and to our policy of reducing and controlling immigration. The pilots run by the UK Border Force this summer were designed to improve border security by focusing resources at passengers and journeys that intelligence led officers to believe posed the greatest risk. The vast majority of those officers are hard-working, dedicated public servants. Just like all of us, they want to see tough immigration controls and strong enforcement, but they have been let down by senior officials at the head of the organisation who put at risk the security of our border. Our task now is to make sure that those responsible are punished and to make sure that border force officials can never take such risks with border security again. That is what I am determined to do. I commend this Statement to the House".

My Lords, that concludes the Statement.

4.55 pm

Lord Hunt of Kings Heath: My Lords, I thank the Minister for repeating the Statement made by the Home Secretary in the other place. The security of our borders is of paramount importance and must be one of the first duties of any Government. It is becoming abundantly clear that the Government are failing in their duty in their oversight and stewardship of the UK Border Agency. The services it is providing are falling far short of what they ought to be. The public are understandably shocked at reports of serious security and immigration lapses by the UK Border Agency over the summer. They are the most serious and pressing of a catalogue of failures on immigration and border enforcement over the past 18 months, which include a six-fold increase in untraceable asylum applicants placed in the controlled archive.

The establishment of an independent inquiry is extremely important and welcome, as it is clear that the two internal investigations instituted by the Home Office would not have been sufficient. The first and crucial step must be to ascertain the implications of the lapses in security and passport controls. In particular, we need to know whether anyone posing a threat to

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Britain's national security was allowed to enter the UK during the period in which the decision of Ministers to relax passport checks was taken further than the Home Office said was ordered. It is vital that passenger records are reviewed and a swift investigation undertaken covering the period when the checks were cancelled. We need to know if someone on a watch list entered the UK during this time so that the police and security services can take the necessary steps to protect the public.

The Minister said that Ministers agreed to a pilot scheme to allow border force officers to target intelligence-led checks on higher-risk categories of travellers. However, UKBA officials-admittedly many of them anonymous-have been commenting across media outlets since the news broke. Essentially, they said that the length of queues and the lack of staff led to decisions in July to relax passport checks. Can the Minister confirm that Home Office Ministers asked officials to draw up a range of measures to cut queues at airports and ports during the summer holiday season because they were so concerned at the visible consequences of the cuts that they had made to the budget of the UK Border Agency?

The Statement emphasised that the measures agreed by the Home Secretary in July were subject to a risk-based assessment. Will the Minister give me an assurance that officials are not now being asked to carry the can for using the very discretion given to them by Ministers in July? The reality is that, instead of strengthening the checks year on year as all previous Ministers committed themselves to do, this Home Secretary decided to water them down as official government policy, even though Parliament had not been informed. Officials are now blamed for relaxing the checks further than the Home Secretary intended, but will the Minister confirm that it was the Home Secretary who gave the green light for weaker controls in the first place?

Will the Minister publish correspondence and papers from the Home Office and the UKBA around the decision that Ministers made in the summer and the effects that it had on border controls? The July guidance that relaxed passport controls should be published alongside any other memoranda explaining policy to UK Border Agency officials.

On the question of the independent inquiry, can I be assured that it will take into account the actions of Home Office Ministers and the effect of resource cuts on UKBA decision-making? To what extent have the state of affairs and the catalogue of errors at the UK Border Agency been a response to the budget cuts the agency has faced, including the reduction of thousands of staff and the pressure to cut queues during the summer period?

Since the Government came to power, they have piled new responsibilities on the UK Border Agency. We have debated the responsibilities on a number of occasions, not least in relation to the very misguided approach to the student visa programme. The UK Border Agency has had many responsibilities placed upon it at the same time as it has had to cut back drastically on its budget and on the number of staff that it has in place. Is that not what has now happened?

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The weakening of controls and the risk assessment are simply the clearest illustration of the failure of the Government to support the UK Border Agency effectively with resources, thereby putting the security of our nation at risk.

5.01 pm

Lord Henley: My Lords, at least I can welcome the fact that the noble Lord welcomed the fact that we are making a Statement. He alleges that the Government are failing in their duty. I think that is a bit rich from the party opposite when one considers some of the failures that I outlined in the Statement made by the Home Secretary, which were failures of the party opposite when in government. We accept that there have been failings here, which is why my right honourable friend the Home Secretary set up those two internal inquiries and, as she quite rightly emphasised, the third and most important external inquiry that will be conducted by John Vine.

As I made clear in the Statement, the terms of reference for both inquiries will be set out and placed in the Library, and I will make sure that the noble Lord gets copies. The draft terms of reference are still being discussed with John Vine, but they will cover a number of aspects, particularly investigating and reporting the level of checks operated at ports between 1 January and 4 November-Friday of last week-and fully reporting any potential adverse outcomes to border security created by any unauthorised relaxation. The noble Lord will be well aware that at this stage I cannot say whether anyone posing a threat snuck through on those occasions. That is what we hope John Vine will discover as part of his inquiry.

As I made clear in the Statement, initial results from the pilots that we discussed were fairly good. The problem was that although the pilots were authorised by the Home Secretary, quite rightly, in June of last year after extensive consultation-I could take the noble Lord at considerable length through the whole decision-making process, but that will come out in the inquiry-what seems to have happened is that certain officials went beyond what was agreed. My right honourable friend made it quite clear that they were not go to beyond what was agreed, which is why we are asking John Vine and others to look into this.

Again, I stress that my right honourable friend gave the authorisation for those pilots. We will publish the decision-making process as it is unearthed by John Vine as part of his inquiry. Again, my right honourable friend made that clear in her Statement. I shall quote her words to remind the noble Lord. She stated:

"I am very happy for Mr Vine to look at what decisions were made and when by Ministers".

I feel that that makes it as clear as can be to the noble Lord that we are not trying to cover up anything whatever. Nor are we asking officials, as he put it, to carry the can for ministerial decisions.

My right honourable friend made a decision about pilots, as I said. It is alleged that certain officials exceeded their authority. That is what we want to have examined and will have examined because the security of our borders is fundamental. I look forward to passing on copies of those inquiries to the noble Lord.

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As I said, John Vine hopes to report by January. We hope to have the initial report by Dave Wood in a somewhat shorter time. However, as the noble Lord said, the independent investigation by John Vine is far more important.

Earl Attlee: My Lords, I remind the House of the benefits of short questions to the Minister in order that as many noble Lords as possible have the opportunity to ask a question.

5.05 pm

Baroness Hamwee: My Lords, perhaps the Minister will share with the House the extent of the pilot. Is there a link between that and the suggestions that we heard today in the media that staff were deployed in the wrong places? To give us some context, does he have information about the number of number of staff in the border agency workforce, the number who have already left and how many of them were on the front line? Finally, I wonder whether he might consider that the last two paragraphs of the Statement, which refer to "those responsible" being "punished" because they "put at risk ... security", may be a little premature in view of the investigations that are still to take place.

Lord Henley: My Lords, I again make it clear that these are only allegations at this stage. The individuals have only been suspended-two of them only on a precautionary basis. We will have to wait for the results of the independent inquiry. As to staff levels, I do not accept there has been a misdirection of staff in these matters. It is very important we use staff in the best manner possible. We all know that we have to reduce the size of the United Kingdom Border Agency. Over the spending review period it will have to lose some 5,000 or so posts. That is the nature of things when we have to deal with the cuts that we are faced with-and we know why we are faced with them.

We will make sure, as far as possible, that the staff are used in the best possible way. That was one reason behind a pilot of this sort. The initial report from the pilot seemed to indicate that it was doing rather well in terms of the increased numbers of people whom it was catching. Obviously we will have to wait for the result of John Vine's inquiry.

Lord Pannick: My Lords, does the Minister accept that border controls were relaxed without ministerial authority because of the unacceptably long queues at ports of entry? If it is the case, as the Statement asserts, that,

surely it should be the highest priority of this Government to ensure that the border agency employs sufficient staff to ensure that full checks can be carried out at all ports of entry without the unacceptable delays that cause the need for such measures to be adopted.

Lord Henley: My Lords, the noble Lord would not want me to speculate on why certain individuals are alleged to have relaxed the rules beyond what the Home Secretary authorised in the pilot. That is the point of the investigation being mounted by John Vine. We look forward to that investigation in due

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course. I do not accept his second point that we have necessarily to maintain United Kingdom Border Agency staff numbers at the precise level that they have been for some time. The noble Lord will know that the numbers went up quite considerably when the Border Agency was created a few years back with the merger of a number of different agencies. We now have to reduce it in size but we will make sure that staff are deployed in precisely the right manner. That matter, too, will be covered by the investigation.

Lord Lawson of Blaby: Is my noble friend aware that part of the problem of delays, which has been spoken about, is that the biometric machines installed at great expense at our airports, partly in order to speed up the process, in fact take a great deal longer? I speak as a regular weekly commuter and from experience. The technology is so defective that they take much longer than the old manual system. Is he further aware that when I flew into Gatwick last night the biometric machines there were not operating at all? When I asked the border official why they were not working, he said that he did not have a clue.

Lord Henley: I take note of what my noble friend has to say. We inherited these machines and will try to make sure they operate as well as we can. Whether it would be right at this stage to spend very large amounts of taxpayers' money on installing new machines is another matter. Obviously, as my noble friend says, we want to reduce delays, because delays cause major annoyance to a great number of individuals and cause damage to business. We will do what we can. At the same time we need to maintain border security, which is one of the reasons why we want to make sure that biometric details on passports are properly read.

Lord Hughes of Woodside: I am not sure whether I heard the Minister correctly. Did he say that there was a cut of 5,000 in the staff required, but no discussion about the effect of those cuts? It is a bit rich now to come to the House and say, "We're going to try to find out the optimum number". Surely that is a dereliction of duty.

Lord Henley: My Lords, of course there has always been discussion about how many people are needed to maintain the appropriate level of protection at our borders. However, very difficult decisions have to be made in this, as they do regarding the police and other matters. Obviously, it might be a matter on which John Vine would also want to comment in his report. That is a matter for him: he is independent. The important thing is that Ministers made appropriate decisions at the time of the spending review about what was appropriate, which, in terms of making decisions, we have had to do across the whole of government.

Lord Campbell-Savours: My Lords, while not wishing in any way to endorse the cuts in UK Border Force staff which have led to delays of up to three hours in clearance at Heathrow, I wonder whether this is not one of the few times when instead of Ministers being driven into resignation due to the negligence of civil

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servants, as happened with Charles Clarke, a civil servant is being required to take the rap. It is a precedent that I fully support.

Lord Henley: My Lords, on the delays, the border agency is largely meeting the targets imposed on it. The noble Lord will no doubt have examples of some pretty severe delays, but in the main, at something like 95 per cent of all locations, the agency is processing individuals with the appropriate speed. As for the noble Lord's final remarks, all we are saying is that it seems that this official, or these officials, went beyond what Ministers authorised. That is why this process is taking place.

Lord Marlesford: Does my noble friend agree that there have been repeated occasions when the incompetence of the Home Office immigration department has been denounced, going back to a time when the noble Lord, Lord Reid-who in my view was a very effective Home Secretary-declared the department not fit for purpose? On that occasion the head of the department was actually promoted to be Permanent Secretary at the Ministry of Defence. Is my noble friend aware that not only are we deeply disturbed by the apparent incompetence being revealed, but that there have been press reports over the weekend of criminal corruption at the heart of the service in the headquarters at Lunar House? That is deeply worrying. Will he add to the inquiry's terms of reference the possibility of replacing the top operational command of this service, currently exercised by Home Office officials, with the appointment of retired military officers who have spent their professional lives defending the realm?

Lord Henley: On my noble friend's first point, I am aware that there has been a certain amount of criticism over the years of the various controls that we have on our borders-going back, as he pointed out, to Mr John Reid, now the noble Lord, Lord Reid, and others. We are trying to put that right. My noble friend also commented on criminal activity within the UK Border Force. No doubt they are only allegations at this stage, and are another matter that it will be permissible for Mr John Vine to look at in his review. As I said earlier, at the moment we are still discussing the draft terms of reference for the review, but I am sure that he would be more than happy to look at matters of that sort as well.

Lord Harris of Haringey: My Lords, is it not the case that Home Office Ministers frequently visit our border posts? In the circumstances, is it not surprising that they did not visit sites where these pilots were taking place-or if they did, that they did not notice or hear from the staff concerned how the pilots had been extended? Can the Minister also tell us what arrangements Ministers made to monitor the pilots and the way in which they were working?

Lord Henley: My Lords, speaking for myself, I have to say that I have not visited any of the pilots, but then I have not been in the Home Office for that long. No doubt I will make inquiries of my honourable and right honourable friends and let the noble Lord know what visits have been made. However, I believe that

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Ministers have visited ports and airports on quite a regular basis to see how these things operate. I certainly was intending to do that at some point in the near future, but when I will be able to manage that is another matter. Of course Ministers always want to evaluate any pilot schemes they put into place, whether by visits or by other means.

Lord Mawhinney: My Lords, can my noble friend assure the House that when the inquiries are over, the reports have been read and dissected and the dust has settled, we will not lose in that process the concepts of risk assessment and intelligence-led operations?

Lord Henley: My noble friend is quite right to say that those are very important. It is obviously important that we do not burden every single individual with a full investigation as they go through. That is why we have different procedures for UK citizens and EU nationals in comparison with what we have for other people. There will always be a place for making decisions based on the perceived risk as seen by the individual officer concerned.

Lord Stirrup: My Lords, few would argue with the principle of risk assessment and the targeting of resources more appropriately, but can the Minister tell us whether, as a result of the pilot, the total effort or quantum of scrutiny that went into protecting our borders was increased or reduced?

Lord Henley: My Lords, it is early days for saying much about the pilot other than that it looks as though it achieved rather good results by focusing on the more high-risk people rather than on the lesser ones. However, no doubt we will be able to tell the noble and gallant Lord more in due course once the pilot has been fully assessed.

Lord Skidelsky: My Lords, I am sure the Minister is aware of Adam Smith's famous remark that defence is more important than opulence. Does he agree that defence is also more important than austerity, and that the security of the realm should not be sacrificed to the cuts?

Lord Henley: My Lords, we have not sacrificed the security of the realm to cuts either in this area or in other areas. However, I thank the noble Lord, as always, for bringing to my attention another bit of Adam Smith that I was unaware of, but then I was never quite as well educated as I ought to have been, if I had had the chance of sitting at the feet of the noble Lord at an earlier stage in my career.

Lord Brooke of Sutton Mandeville: My Lords, is it appropriate for my noble friend to tell your Lordships' House by whom the biometric machines are manufactured?

Lord Henley: My Lords, not without notice, but no doubt I will write to my noble friend.

Lord Mackenzie of Framwellgate: My Lords, are there lessons to be learnt from the Israelis in this? While people are waiting to be assessed and interviewed

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by the immigration authorities, assessments are made and they are profiled, and of course in some cases they are targeted very successfully.

Lord Henley: My Lords, obviously, lessons are always to be learnt from all around the world. No doubt, if the noble Lord wishes it, we will look at the experience of the Israelis as well as that from other parts.

Lord Dholakia: My Lords, one of the allegations made by the Home Affairs Select Committee was that at least 125,000 people have been lost in this country and can no longer be traced. There is no indication of what will happen to them. Would it not be wise to extend the scope of the inquiry to see why those illegal entrants are still in this country?

Lord Henley: My Lords, I think that the noble Lord is trying to take the inquiry on to other, equally important matters which should be looked at. We want John Vine to be able to report by January of next year. Therefore, he should focus on the issues in front of us-that is, why officials were going beyond what was authorised by Ministers, and what Ministers authorised.

Lord Marlesford: My Lords, will my noble friend comment on my suggestion that the Vine terms of reference should include the possibility of bringing in the retired military to run this service in the future?

Lord Henley: My Lords, I am sure that Mr Vine will have noted what my noble friend had to say. I am not going to comment at this stage.

Health and Social Care Bill

Main Bill page

Committee (3rd Day) (Continued)

5.21 pm

Amendment 20

Moved by Baroness Masham of Ilton

20: After Clause 2, insert the following new Clause-

"The Secretary of State's duty to ensure transparency

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

"1B Duty to ensure transparency

The Secretary of State must act with a view to securing-

(a) that any persons providing health services should provide, within as short a period as possible, full information to patients, their carers or representative about any incident or omission in or affecting their care which may have caused harm, or may in the future cause harm,

(b) that regulations are introduced to enable the Care Quality Commission to take action against a registered person or body who fail to disclose details of such incidents as set out in those regulations.""

Baroness Masham of Ilton: My Lords, Amendment 20 would establish a duty of candour so that any provider of National Health Service services would have to inform a patient, or their family or next of kin if they

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died or lacked capacity, when something went wrong with their care or treatment that had led to harm or could cause harm.

The principle of "no decision about me without me" has been stressed. If the patient is to be central to the legislation, the amendment should be taken very seriously. I hope that your Lordships agree with me that there are always risks in the treatment of patients, but that there should be openness and transparency, with no cover-ups, when things go wrong.

There is currently no statutory requirement on providers of National Health Service services to tell a patient, or their carer or representative, when something has gone wrong during their care and treatment, while a host of compulsory standards are set out in statutory regulations. The issue is left to guidance and a non-binding requirement in the National Health Service's constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse, actively covered it up.

Organisations concerned with patient safety have campaigned for a statutory duty of candour to rectify this situation. The Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patients' organisations do not believe that that is adequate. It would not include all NHS providers, only those with standard contracts, and would not create access to the sanctions that the CQC has at its disposal.

It is not just patients and patients' groups who advocate a statutory duty of candour. Action Against Medical Accidents presents an impressive list of organisations and leading clinicians who support it. Just recently, at the Mid Staffordshire Hospital NHS Foundation Trust public inquiry, Sir Liam Donaldson, the former Chief Medical Officer for England and internationally renowned champion of patient safety, reiterated his long-held belief in a statutory duty of candour. When asked directly, he said that he had always personally agreed that there should be a statutory duty of candour. He explained that he favoured it because he was of the view that professionals should be encouraged to take responsibility when they have done something wrong rather than withhold instances of harm. I believe that failure to commit to a more meaningful measure in this Bill will not only fail to have the desired effect, but is a snub and an insult to patients, patients' groups and other experts.

There is little if anything in the Bill that is genuinely drawn directly from the priorities and wishes of patients. A commitment to a statutory duty of candour certainly would be. This is an opportunity to show that patients really are being listened to. If the Government agree that the requirement to be open really is fundamental and essential, why on earth would a different approach be taken to this essential requirement, with it being left to the commissioning process? Commissioners are simply not equipped to regulate issues of this kind. If one accepts the argument that this is the appropriate way to proceed, then all of the core standards currently in the CQC regulations could simply be dealt with in the standard contract for providers.



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Another key weakness in the Government's proposal is that providers' contracts relate only to NHS contracts with trusts, PCTs and private voluntary providers of NHS services. That would not include primary care practitioners such as GPs. The Government admit in their consultation document that GPs are subject to different arrangements and that the duty could be brought in only in negotiation with their representing organisations. Very significantly, the BMA General Practitioners Committee has already stated that it would not sign up to a duty of candour, but it should not be negotiable. A duty is a duty.

The Government's proposed contractual duty of candour would be weak even where it did apply. It simply would not cover the area where so much NHS care is undertaken-in primary care.

5.30 pm

As recently as June of this year, MPs on the Health Select Committee recommended, in their report Complaints and Litigation, that a duty of candour be included in the licensing arrangements with the Care Quality Commission. That is precisely what AvMA and others are arguing for.

Restricting the duty of candour to the contracting process diminishes its importance and impact and is inconsistent with how any other genuine "must do" is regulated. It is also offensive to patients, and undermines the principle of candour, that there is a statutory requirement in the CQC regulations for providers to report patient safety incidents to the CQC but no statutory requirement to report them to the patients affected. Inclusion of such a requirement in the CQC registration regime would cover all providers of NHS services-not just those with a particular form of contract-including dentists and, in due course, GPs.

We believe that creating a statutory duty of candour to provide a right for patients to know when things have gone wrong with their care and treatment is fully justified, would improve healthcare, would put the patient at the centre of health services and could, I hope, gain the support of the House. If the patient is to be central in this Bill, I can see no reason why the Minister should not accept this amendment. I beg to move.

Lord Harris of Haringey: My Lords, when I was director of the Association of Community Health Councils, the message from community health councils around the country was that people who complained were seeking not compensation from, or retribution against, those who had perhaps caused the reason for their complaint-for example, the death of a loved one-but information. They wanted to know what had happened, and they wanted some reassurance that what happened to them or their relatives would not happen again.

Always, the most tragic cases were those in which people had not known what had happened and discovered the actual circumstances only much later, perhaps when their relative's case came to an inquest or, in some cases, even long after that. I would like to hope that, in the 10 years or so since I was director of the Association of Community Health Councils, this problem

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would have become less, but it remains a serious blemish on the health service that, too often, such mishaps are covered up.

In a case reported only three weeks ago-the most recent case that I have come across, but I am sure there are many others-a mother discovered long afterwards that the death of her seven year-old daughter, which she had blamed on herself for not being able to perform the necessary first aid, was actually the consequence of a failure by a paramedic called to the scene. She discovered that only ages afterwards when she became aware of the transcript of the inquiry which led to the paramedic being dismissed. That case, reported in the Doncaster Free Press only three weeks ago, is an indication of the sorts of incidents that one is talking about.

I met the family of someone who had died while detained in a secure mental health facility. They discovered the circumstances in which their loved one had died only when the matter was reported at an inquest. In such incidents, the health service officials knew what had happened and had conducted their own inquiries but did not think it necessary or appropriate to tell the families concerned. That is why it is so important to have this amendment, which would place a statutory duty of candour on the health service, to make it something that runs right the way through the system.

Of course, accidents can never be eradicated. Healthcare is of its very nature a risky business and health professionals are only human, so these things will happen. However, what is unforgiveable is that the fact that something has gone wrong is not told to those concerned. The noble Baroness, Lady Masham, quoted Sir Liam Donaldson, but I thought that she was also going to quote the maxim that he gave:

"To err is human, to cover up is unforgiveable".

That is precisely the concern that motivates this amendment.


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