Health and Social Care Bill — Report (3rd Day) (Continued)
8:19 pm

Amendment 49A

Moved by Baroness Williams of Crosby

49A: Clause 22, page 17, line 38, at end insert-

"Patients' interests to be treated as paramount

The Board must, so far as resources allow, exercise its functions on the basis that the interests of patients are paramount."

8:29 pm
Photo of Baroness Williams of Crosby

Baroness Williams of Crosby (Liberal Democrat)

My Lords, owing to the need to make progress I shall speak briefly, but my noble friend Lord Marks of Henley-on-Thames will be speaking in greater detail about the amendment.

It is short, perhaps deceptively short, but it has real significance and is related in this group specifically to Amendment 94A. The government amendments respond to aspects of these amendments, too. Amendments 49A and 94A set at the very centre of the Bill, which has the full support of all of us who want to see the NHS thrive, that the interests of patients should be paramount. The importance of that phrase is that in every single aspect of what we try to do, it shall always be the case that this is the way in which we think-whether it is how CCGs operate or how foundation trust hospitals operate. This has emerged in our debates increasingly as the central concept-the one to which we should always refer back. That will give us the guiding light that we need for the Bill.

It is significant because, in many cases, patients can be very vulnerable. They can be vulnerable through lack of information and in some cases by not being consulted. They can be vulnerable, as the noble Baroness, Lady Hollins, has mentioned, through the lack of advocacy by people who understand the basis of the choices they have to make. This phrase about the significance and the importance of patients' interests being paramount therefore also affects a recognition that where patients are vulnerable they need the help of counsellors, advisers and in some cases advocates, so the concept behind this covers those areas as well.

I want also to point out briefly that government Amendment 56 is helpful in spelling out the matters on which patients should be particularly consulted. I will not repeat them but the amendment is helpful in setting out very clearly issues of treatment and the way in which patients should be offered different forms of treatment and then to make choices among them.

I do not intend to keep the House. I shall conclude my remarks. Whatever side of the House we may be on, I hope very much that the concept of the paramountcy of patient interest will be something that all of us can support, understand and advocate with respect to the future of health services. I beg to move.

Photo of Lord Marks of Henley-on-Thames

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, the reasons for Amendments 49A and 94A have been briefly-as she explained-and eloquently expressed by my noble friend Lady Williams of Crosby. One of the fundamental principles which the Government have assured us runs right through this Bill is that the NHS, as reformed by this legislation, will be committed to putting patients first. That is a critical matter for most of us in this House and the public at large. Why do I believe that this principle needs stating in the Bill? It is because the Bill introduces an entirely new structure for commissioning services, with commissioning by clinical commissioning groups within a framework established by the board to requirements and objectives set by the Secretary of State. However well understood here, this proposed structure is widely mistrusted outside this place.

I believe that a legislative statement that the commissioning process will put patients first is very important, both because it will enshrine in law this fundamental principle and because it will give the public an assurance that this is indeed the aim and purpose of the new commissioning process. My noble friend the Minister was kind enough to write to me in relation to this amendment to say that while he completely agrees that we must always put patients first, the Bill already provides for that and that there are "technical reasons" why our amendments should not be accepted.

The Minister is entirely right to point to the commitment to the comprehensive health service in the Bill and to the duties of the board and the clinical commissioning groups, now enshrined in the Bill, to promote the NHS constitution. I agree that those are powerful provisions. The NHS constitution is an important and extremely valuable document. It does indeed contain a commitment to putting patients first. At the back of the document in the expression of NHS values it says:

"Working together for patients. We put patients first in everything we do, by reaching out to staff, patients, carers, families, communities, and professionals outside the NHS. We put the needs of patients and communities before organisational boundaries".

No one could fail to regard that expression of values as admirable, but it covers the whole sweep of NHS functions and is very general. The provisions that we seek by way of these two amendments are specific to the commissioning process. They will impose a binding obligation on the board and the CCGs of which they will at all times be aware. Moreover, our amendments are directed particularly at responding to what is probably the principal concern that members of the public have about these reforms: that the new commissioning process may lead to the marketisation of the NHS and that patients' interests may be lost in that process. I do not believe that, but I do believe that these amendments would help make it crystal clear that this concern is unfounded.

The other problem we face is this: all the evidence, even that emanating from within the NHS, suggests that there is widespread unawareness of the very existence of the NHS constitution, let alone of the detail of its provisions. At the very least, therefore, given the emphasis that we are putting on the NHS constitution, it is crucial for the Government to make it quite clear that a great deal is expected of the board and of CCGs in the exercise of their respective duties under the Bill to promote awareness of the NHS constitution. In addition, the department should commit itself to an even wider, more effective campaign to publicise both the existence and the content of that constitution.

As to my noble friend's second point, I regret that I do not understand the technical reasons which are said to require the rejection of these amendments. It is perfectly true that the NHS will always have to face resource constraints which may necessarily determine many, even most, commissioning decisions, but our amendments accept entirely that the paramountcy of patients is always subject to resource constraints. The board or a CCG must, so far as resources allow, exercise its functions on the basis that the interests of patients are paramount. Nor do our amendments, either expressly or impliedly, reduce the ability of commissioning groups or the board to prioritise the treatment of particular groups of patients where they think appropriate. They simply make the interests of patients in general paramount or, to use my noble friend the Minister's phrase, make sure that commissioners put patients first.

The use of that word "paramount" in these amendments was modelled on the Children Act 1989 and the principle which runs like a golden thread through that legislation that the interests of children are paramount. That legislation has been widely applauded for embodying that principle, which firmly governs its interpretation and its implementation. It is precisely because it is embodied in the legislation itself that that Act is so well respected.

I still hope that my noble friend the Minister might reconsider whether he is not prepared to accept in this Bill the expression of the principle which he has so often expressed: that, throughout the commissioning process, the interests of patients must be paramount.

Photo of Baroness Cumberlege

Baroness Cumberlege (Conservative)

My Lords, my Amendment 142 has been grouped with this amendment. I have brought it forward because I am anxious that when we talk about "patient and public involvement" we should be clear as to exactly what we mean by it. I am grateful to my noble friend Lady Jolly, who has also put her name to the amendment.

I am also anxious that we embed what I will call PPI for shortness-patient and public involvement throughout healthcare in all its forms. I say so in the knowledge that few people understand what this means. However, no one understands it better than my noble friend Lord Howe. He was a doughty fighter for community health councils, those much beloved organisations that knew how to campaign and influence the delivery of services. The culprit sits before me on the opposition Benches.

When I was chair of the Brighton Health Authority I had a huge respect for my CHC. Indeed, we even commissioned it to carry out surveys within the NHS. The effect was electric: no punches were pulled and the pressure on us was irresistible. It really knew what was being delivered, where the glitches were and where services were inadequate and needed improving, and it was not shy in making our shortcomings very public indeed. The CHCs had power and could refer proposed changes in services directly to the Secretary of State. The subsequent inheritors of their responsibilities-patients' forums and LINks-have been systematically neutralised to ensure that they do not have the power to be really effective; that they are not inconvenient bedfellows; and that, despite the undoubted commitment of individuals, they can be largely ignored.

At last we have an opportunity to put matters right and to show that we have genuine credentials in making patient and public involvement a force for good, ensuring that patients and the public are the heart of their NHS. I was encouraged when in one of our earlier debates my noble friend, in answering an amendment, mentioned that the Secretary of State required four tests for the reconfiguration of services, one of which was robust PPI.

I had an interesting letter from my noble friend dated 2 February which again showed his clear commitment to effective PPI. However, the Bill does not seem to match up to that commitment. Different wording is used for PPI in different parts of the Bill-a court of law would surely assume different intentions-and the wording is weak in places. There are three types of involvement. The first is shared decision-making with individual patients on their care, to which the remainder of these amendments relate. The second is the HealthWatch England and local healthwatch structures through which patients and the public feed in their views-the way in which people start a conversation with the NHS. The third is PPI by the service in its decision-making-the way in which the service starts a conversation with local people and the subject of this amendment.

No business would attempt to plan its products or its services without doing market research. If it did, it would fail. We expect the same for the NHS. However, PPI is more important than just market research: it imports the values that we as a society expect from the NHS, making sure that it thinks as we think. PPI must be in the DNA of the service so that those who plan and run it feel as if they are planning and running it for their own families and looking after their own mothers in that hospital bed.

The PPI requirement was introduced in the Health and Social Care Act 2001 in response to the Bristol Royal Infirmary public inquiry. At Bristol, between 1991 and 1995,

"one-third of all the children who underwent open-heart surgery received less than adequate care",

and up to 35 children under one died as a result. As Bristol concluded,

"vulnerable children were not a priority, either in Bristol or throughout the NHS".

What an indictment. These are catastrophic failures and we must not forget them. Sadly, evidence shows that we have not yet succeeded in making the NHS as a whole think as we think. We need look no further than Mid Staffordshire.

Bristol recommended that:

"The involvement of the public in the NHS must be embedded in its structures: the perspectives of patients and of the public must be heard and taken into account wherever decisions affecting the provision of healthcare are made".

The report goes on to say:

"The public's involvement in the NHS should particularly be focused on the development and planning of healthcare services and on the operation and delivery of healthcare services, including the regulation of safety and quality, the competence of healthcare professionals, and the protection of vulnerable groups".

My amendment defines what makes effective PPI across the commissioner, provider and regulatory system, as Bristol recommended. Triggers for the duty will vary depending on the body, and it must always be proportionate. Monitor is covered in my Amendment 166, which we will be debating later.

My noble friend explained to me in his letter that statutory guidance would cover these matters, as it does now. Mid Staffordshire has demonstrated that this approach simply does not work. Furthermore, the duty of autonomy in Clause 4, even as amended, gives all bodies in the Bill discretion to challenge anything-such as statutory guidance-as being unduly burdensome. We must therefore have crystal-clear, comprehensive requirements for effective PPI as explicitly defined on the face of this Bill.

There are three ways in which the clauses in the Bill fall short of this. The first is: telling, not asking. The duty can be met merely by providing information without getting any response or taking any notice of it. Involvement means not assuming that you know whether an issue is something patients only need to be told about, but asking them. The second is: theory, not reality. Patients are not required to be involved in finding out whether plans, proposals or decisions actually advantage or disadvantage patients in practice. The third is: nothing about us without us. Patients must be involved in all functions affecting patients, such as quality improvement or health inequalities, not just in commissioning.

However, the problems are greater than these. My noble friend's letter to me seems to suggest that, as commissioning and providing have been split in the Bill, PPI is to be similarly split. This would enable the PPI buck to be passed between commissioner and provider and leave no one responsible for guaranteeing that effective PPI happened if providers-private or NHS-failed to do it. Commissioners are likely to use the Department of Health model contracts that do require providers to involve patients; and NHS providers have their own statutory duty. So far, so good. However, once commissioners have granted such contracts, they can wash their hands of involvement by the private or NHS foundation trust provider because they no longer have ongoing responsibility.

Subsection (1) of my amendment defines the three involvement elements: giving information, seeking comment on it, and inviting participation in monitoring whether patient benefit emerges at the end of it all. For example, the duty now relates only to designing a commissioning specification for accident and emergency, not monitoring whether it actually works in practice. Subsection (2) involves patient representatives and carers as well as patients. Patients on mental health section may not be able to get involved in commissioning, but those who can represent their interests, as they have previously been on sections themselves, should be able to do so. The NHS outcomes framework, against which we expect commissioners to perform, includes:

"Enhancing quality of life for carers",

so we must make sure that they are involved. Subsection (3) gives the commissioners a lead responsibility for PPI across the local health economy to avoid buck-passing between organisations. Subsection (4) applies involvement to all the relevant functions of the NHS Commissioning Board and CCGs, subject to the existing proportionality limitation. The CCG should, for example, not attempt to address health inequalities without involving those who suffer them.

I have thought a great deal about this issue over many years, as has my noble friend the Minister, and over the past weeks he has been hugely generous with his time in talking to us about it.

Your Lordships have spoken often of the strengths of the NHS and the warm place that it has in the hearts of the people. I strongly support its remarkable ethic that whether you are young or old, black or white, rich or poor, you can get treatment, largely free at the point of use. But none of us can deny that its underlying problem is how little influence we, users and taxpayers, have in a near-monopoly service that is organised and run by those who work in it. We need to reorder the balance, and my amendment seeks to do just that.

8:45 pm
Photo of Lord Harris of Haringey

Lord Harris of Haringey (Labour)

My Lords, I have lost track, since I first became a community health council member in 1977, of how many reorganisations there have been of the National Health Service and how many have all said somewhere in the White Paper or in the preamble or in whatever else it might have been that the Government of the day were committed to putting patients first, or at the centre of the NHS. I recall White Papers with titles such as Putting Patients First, which were all about reorganisation of the health service and the administration. I recall successive Secretaries of State-many of whom are not in their place tonight, although they could be as Members of your Lordships' House-telling us proudly that their particular reorganisation was somehow going to ensure that patients would, for the first time ever, be at the centre of the NHS. So I can understand why the noble Lord, Lord Marks, and the noble Baroness, Lady Williams, thought that it might help to try to write that into the Bill. I can understand, too, how the Minister felt that it could be resisted-as, presumably, every previous ministerial occupant of the role that he currently fulfils has resisted writing it into the Bill in the past. But I suspect that simply having statements that say that the basis is that the interests of patients are paramount is not going to be sufficient. Indeed, I suspect that with some of the arrangements envisaged in the Bill, that may produce some genuine difficulties. If, for example, you are a private sector company providing services to the NHS your duty as directors is to the shareholders of that company. So I can see why it will produce a tension-and, no doubt, why the Government will resist the earnest endeavour of the noble Baroness and the noble Lord to get this into the Bill.

The amendments in the group in the Minister's name are rather helpful, however, because they are specific. They talk about the duty to promote the involvement in various stages of the process. They place a duty on the board and on CCGs to involve patients in the prevention and diagnosis of their illness and their care and treatment. The experience is that where there is that duality, when patients are involved in the assessment of the treatment and the sort of treatment that is to be followed for their illness, the way in which that treatment is then followed by the patient is far greater as a result of that involvement. What is more, patients are usually expert in their own conditions, particularly if they are long-term or chronic conditions. They will often know as much about it as their general practitioner or, indeed, many other people who are engaged in their care. So that principle of involvement is absolutely right. I rather suspect that the Minister's amendments will do far more by making it clear what the expectation is than rather grand statements about the interests of patients being paramount, as we have seen so many times in the past.

In her very full introduction to Amendment 142, the noble Baroness, Lady Cumberlege, has given a very clear and important explanation of why patient involvement is so important, and has drawn a careful distinction between the different types of involvement that need to be addressed. I hope that in responding to the noble Baroness's amendment the Minister will clarify-before we get on to the important amendments about healthwatch which we will come to in due course-exactly how the various separate functions and requirements that the noble Baroness identified will be met by the structures proposed in the Bill, and in particular how they will be met in terms of the resources available and the resources guaranteed. That will be the test of whether these changes matter. The noble Baroness indicated the different sorts of patient involvement that are necessary. It is now down to the Minister to tell us how he will deliver in practice, rather than in fine words, the changes that he is proposing.

Photo of Baroness Wheeler

Baroness Wheeler (Labour)

I am pleased to speak in support of the Government's Amendments 56, 97 and 98, which take an important step along the route of making the Bill more explicit on the duties of the NHS Commissioning Board and clinical commissioning groups to promote patient involvement in decisions about an individual's care and treatment. We particularly welcome the requirement for the board to publish guidance for CCGs on the patient involvement duty. We argued strongly for this in Committee. It will go some way to ensuring that CCGs are clear about what is required of them to meet the duty of involvement of each patient. We know that the evidence shows that many commissioners are currently unaware of the increasing evidence that involving individual patients in their care and treatment is proven to be more clinically effective, provides better patient experience and makes better use of healthcare resources. The guidance will enable strong signals to draw commissioners' attention to the proven interventions that they require from their providers.

CCGs will need considerable help and support to bring about the changes we need, so clear and explicit guidance to them will be crucial. For individuals, participation must mean involvement in care planning and support for patients who manage their conditions. Sharing in the choice of treatment involves major cultural changes in the behaviour, approaches and attitudes of key professionals from across the specialisms. As we have stressed before, this means changing the way that patients and clinicians, in particular, relate to each other, and changing the way that the NHS relates to patients in terms of, for example, information provision, the organisation of clinics and the style of consultation that professionals have with patients.

Amendment 142 underlines the importance of the provision of information to patients and is supported by us. It includes the participation of the patient in monitoring systems that measure the impact of service delivery or the range of services available, and this is welcome. My noble friend Lord Harris has commented on Amendments 49A and 94A, and I endorse those comments.

In Committee, noble Lords strongly supported the call from patient organisations and other key stakeholders for a definition of patient and public involvement to be included in the Bill. The guidance to CCGs will need to address this issue. I hope that the Minister will also ensure that it focuses on ways in which patients will be genuinely engaged during the development of the commissioning plans rather than just consulted on plans after they have been drawn up. Guidance will help patients, carers and their representatives make informed decisions. This group of amendments form the basis for moving forward. We look forward to the Government also looking favourably on the subsequent amendments, which would also provide real impetus to the patient involvement agenda that we need.

Photo of Earl Howe

Earl Howe (Conservative)

My Lords, we have spent a good deal of time in debate on this Bill discussing the issue of patient involvement, and for good reason. Patients rightly expect to experience responsive health services where they are treated as individuals. It is central to the Government's vision for the NHS for patients to become genuine partners in decisions about their health and treatment, with services designed around their needs. The Bill will lay the foundations to achieve that. So I understand completely the motivation behind my noble friend Lady Williams's suggestions in Amendment 49A and 94A to place an additional duty on commissioning bodies when taking decisions to put the interests of patients above all other considerations, as far as resources allow. On the face of it, this sounds obvious, and I am deeply sympathetic to the principle. However, I think that I am going to have to seek to persuade my noble friend that it would be extremely hard to get this right.

In the first place, I think we would all agree that the primary duty in the Bill is the duty to promote a comprehensive health service, free to all at the point of use, as set out in Clause 1 and as agreed and debated at length by your Lordships' House. We should certainly not, I suggest, wish to detract from or conflict with that. The second reason why I suggest that the amendment is not right is that the NHS has to plan and cater for the health needs of the population as a whole, not just those who are currently patients. That is why the duty on CCGs is to commission services to meet the reasonable requirements of all those for whom they are responsible. In addition, the board and CCGs will be under further duties in relation to improvements in quality, promotion of integration, the involvement of patients in decisions and as regards public involvement, duties which all serve in different ways the interests of patients.

Above all, in addition to the duty to have regard to the NHS constitution, they will be under new duties, as my noble friend Lord Marks rightly pointed out, in relation to promoting the NHS constitution. Surely that should be the place for drawing together the fundamental rights and principles that patients should expect from the NHS. As my noble friend knows, the Bill embeds the NHS constitution firmly in the NHS of the future and will ensure that all NHS bodies comply with and uphold it. I say to my noble friend Lord Marks that the new duty means that when exercising their functions, the board and the CCGs must act with a view to securing that services are provided consistently with the NHS constitution and to promoting awareness of the constitution among patients, staff and the wider public. In the past, a number of noble Lords have spoken about wanting to have some kind of touchstone in this area of the Bill. I think that the NHS constitution fulfils that precise role.

In Amendment 142, my noble friend seeks to establish additional requirements that would apply to the exercise of the duties to the public. Although I also agree with the sentiment behind those proposals, I hope to convince my noble friend that they are already appropriately covered by the duties as they stand. The duties as currently drafted allow scope to determine the best method of involvement in each instance. The board, or a CCG, would need to be able to demonstrate that it had acted reasonably when exercising this duty. They are not restricted to the involvement of individuals only by way of consultation or by the provision of information, as my noble friend seemed to imply. They would apply throughout the planning stage and the development and consideration of proposals. They would also apply to anyone,

"to whom ... services are being or may be provided",

and would therefore encompass carers or other representatives.

To provide further reassurance on these points, we have already amended the Bill to require CCGs to set out in their constitutions what arrangements they will make for exercising this duty and the principles that will underpin their approach. This will therefore be assessed as part of the establishment process. The board will also have powers to produce guidance for CCGs on the exercise of the duty, which CCGs would have to have regard to and which could set out what might be reasonable in different situations. Of course, the views of patients should also be integral to the evaluation of the performance of health services. The duty on the board and CCGs as to improvement in the quality of services already requires that specific consideration must be given to the experience of patients. The views of patients and the public on the effectiveness of any change in services would therefore be captured in the normal way as part of this ongoing assessment.

One area where there is a deliberate difference is that the wording of the duty on the board and CCGs is intended to reflect the distinction in the Bill between bodies that commission services and those that provide them. Both the wording of the new duty and the current provision in Section 242 of the 2006 Act apply to arrangements to commission health services which are to be provided by others. This would therefore capture any changes that are a result of the commissioning decision.

At present, however, PCTs also provide some services directly, whereas the board and CCGs will not. Neither will they have managerial oversight of NHS providers in the way that PCTs and SHAs do now. The difference in wording is therefore intended to reflect this. NHS trusts and foundation trusts will be directly accountable for ensuring that they involve and consult the public under Section 242. In relation to foundation trusts in particular, there will be a stronger role for governors and members in holding them to account.

I am also unable to agree that it would be appropriate to extend the application of this duty to the exercise of all the functions of the board or a CCG that might relate to the provision of services. The matters to which the duty applies are the same as those in Section 242 of the 2006 Act. Certainly the board and CCGs could choose to involve people in other aspects of their work, and no doubt they will do so where this would add value, but creating a duty to involve people in every detail of the board's work would not be practical.

I hope that I have been able to offer sufficient reassurance to my noble friends for them not to press their amendments.

Finally, I should like briefly to explain Amendments 56, 97 and 98 in my name on the Marshalled List. I was struck by a point that the noble Baroness, Lady Finlay, made in Committee about the importance of differentiating between public engagement and the involvement of each individual patient in the management of their care and treatment-and that is surely right. It is for precisely this reason that we have included in the Bill new duties for the NHS Commissioning Board and CCGs in relation to promoting opportunities for patients to be fully involved in decisions about the services they receive as individuals.

Nevertheless, it was apparent to me from our debates that the purpose of these new duties was not quite clear enough. This point was raised in the meetings that I have held with many noble Lords in recent weeks, in particular the noble Lord, Lord Warner. I am therefore proposing these amendments to new Section 13H, inserted into the 2006 Act by Clause 22, and new Section 14T, inserted by Clause 25. They put it beyond doubt that the duties on the board and CCGs in relation to promoting the involvement of each patient apply to decisions related to the prevention and diagnosis of illness in the patient and any care or treatment that they receive. This drafting follows the language that is used in defining the health service so as to encompass the full range of activity that could be provided as part of the health service. I was grateful for the supportive remarks of the noble Lord, Lord Harris of Haringey, on these amendments.

The amendments also impose an obligation on the NHS Commissioning Board to issue guidance to CCGs on the discharge of their duty under new Section 14T, to which CCGs must have regard. This will ensure that support will be made available to CCGs on best practice in securing effective patient involvement. I hope that it indicates the Government's clear commitment to this objective.

I am pleased that the Health Foundation and National Voices have strongly welcomed these changes as representing,

"a clear signal that commissioners should be making sure patients are more engaged in their own care and treatment".

I am extremely grateful to them for their support in ensuring that the Bill is as strong as possible on this point.

9:00 pm
Photo of Baroness Williams of Crosby

Baroness Williams of Crosby (Liberal Democrat)

My Lords, I thank the noble Earl very much for the amendment, and I am grateful to him for what he had to say. I beg leave to withdraw the amendment at this point but hope very much that he will come back to it at Third Reading.

Amendment 49A withdrawn.

Amendment 50 not moved.

Amendment 50A

Moved by Baroness Finlay of Llandaff

50A: Clause 22, page 18, line 15, at end insert-

"( ) In discharging its duty under subsection (1), in relation to specialised services, the Board must exercise its functions in accordance with current NICE guidance."

Photo of Baroness Finlay of Llandaff

Baroness Finlay of Llandaff (Crossbench)

My Lords, we come to another group of amendments that relate to the Commissioning Board. These are three separate amendments but they are grouped together because they all relate to the functioning of the board.

The first, Amendment 50A, aims to embed quality and good practice in services while eliminating unacceptable variations in standards of specialist services by ensuring that the NHS Commissioning Board conducts its functions in accordance with NICE guidance. Unfortunately, we know that NICE guidance is not being observed as widely as one would hope. The amendment has been particularly strongly supported by the Neurological Alliance and a lot of other groups representing patients with less common conditions, which feel that their services are not necessarily as good as they should be.

I shall give some examples from neurology. If epilepsy is suspected, the NICE guidance currently says that these patients should be assessed by a specialist, but 49 per cent of acute trusts have none. The guidance says that they should be seen urgently within two weeks but 90 per cent of patients are not seen within that timeframe. It says that they should have access to an epilepsy nurse but 60 per cent of acute trusts do not have one. With regard to multiple sclerosis, a relatively common condition across the country, 56 per cent of the 89 MS centres are multidisciplinary; the remainder are not. One-third of Parkinson's patients are waiting longer for diagnosis than the NICE guidance suggests that they should.

Unfortunately, some pathfinder commissioning groups have vocalised that they do not see a need for specialist services and indeed that they are not following NICE guidance. That is why the amendment is worded as it is, with the phrase,

"in relation to specialised services".

It may seem as if that is superfluous to the wording already in the Bill, but I have worded it in that way to bring a focus on to specialised services.

NICE is an independent way of establishing the evidence for best practice, and its appraisals are widely recognised around the world as being of a high standard and setting high standards. It also provides a basis on which services can be accredited. There are clinical guidelines and services can be audited so that they can be assessed on the standard that they are providing. That allows quality outcomes and patient outcomes to be measured.

Amendment 63A relates to commissioning for conditions that are less common. This amendment in particular has very wide support. Quite apart from neurological disease, there are patients with haematological diseases such as sickle cell or haemophilia, conditions that are affecting children and young people into early adulthood. These patients need to be able to access services rapidly, wherever they are living. These services become part of the general haematological services available where they are, but they have to be provided to a high standard. In the past we had a tragedy with patients with haemophilia, and we see the problem of patients with sickle cell who are not appropriately treated and as a result have much more damage than they might otherwise have. There is also a risk of the inappropriate prescription of analgesics at the wrong time and at the wrong dose, which can result in long-term dependency without establishing good pain control, whereas during the acute crisis patients have terrible pain and need adequate treatment. Sadly, some of these young people have been labelled as being addicted because the severity of their pain has not been recognised.

Other areas that such commissioning needs to focus on include trauma centres and severe burn units and conditions such as immunodeficiency, where again there is a critical mass for the service to be provided. Some services have improved enormously, as has happened particularly in London, but the NHS Atlas of Variation shows a 25-fold variation in anti-dementia drug prescribing across England. I give that as an example of the wide variation in care provided. Many years ago my tutor and mentor Julian Tudor Hart described in a paper for the Lancet the perverse relationship between the need for healthcare and its actual utilisation. The principle behind Amendment 63A is to try to make sure that we do not inadvertently leave the inverse care law being perpetuated once this Bill is enacted.

Amendment 64ZA is the last amendment in this group. This relates specifically to emergency services and unscheduled care. This amendment has three parts which I would like to explain briefly. First, the amendment seeks to ensure that emergency health services are adequate for the population served. Until recently, emergency departments have tended to be placed in a rather ad hoc way, but work done in London, which has designated emergency services and major trauma centres, has been shown to improve clinical outcomes for patients. These have been calculated on a population needs basis.

The second part of the amendment recognises the importance of integration between emergency care and specialised networks and associated specialties. This is particularly important because the emergency department sits on a spectrum of provision. Patients may be seen in primary care and may be sent in to the emergency department either in or out of hours, but there is good work to show that it is only 10 to 30 per cent of cases that could be classified as ones that could have been dealt with in primary care. However, primary care is increasingly taking a gatekeeper role. With a shortage of beds and a decrease in resources, there is also a rationing role in the other parts of secondary care.

The third part of the amendment relates to emergency departments. The one place that remains with its doors constantly open with no gatekeeper role and with open access is the emergency department. Patients increasingly turn up in the emergency department with acute conditions that need management and treating. These conditions are completely undifferentiated, unscheduled and range from the most severely life-threatening to others which certainly need to be treated fast. These can be less immediately serious, although if they are left inadequately treated they can become life-threatening in a remarkably short time. The nature of unscheduled care means that these patients have to be planned for in consideration for the way that primary care is working, in and out of hours. Where out of hours is inadequate more and more people will go to the emergency department or may indeed be advised to by telephone triage services, but they may be inappropriately advised. This accounts for the range of 10 to 30 per cent of those who could have been treated in primary care.

I understand that the Commissioning Board is developing a clinical outcomes framework. That should make a link between the national framework for the Commissioning Board and the clinical commissioning groups, with consultation on NICE indicators, some of which have already been developed for primary care. This clinical outcomes framework should also provide guidance for clinical commissioning groups on how to commission emergency care locally. I hope that the Minister will be able to assure me that this guidance will continue so that work with the colleges, particularly the College of Emergency Medicine, will contribute to the whole commissioning framework.

Emergency medicine is different from other parts of the service because competition is not appropriate and choice, as we talk about it in other parts of the Bill, does not apply. People who need emergency treatment need to be taken to an emergency department that can deliver a service to meet their clinical needs. These patients may be unconscious; they certainly cannot choose where they will go. They also need to be assured that every emergency department to which they are taken will meet a standard that will provide them with the care that they need. Competition has also been shown to be inappropriate. Breaking the Mould without Breaking the System, a document that was published last year by the Primary Care Foundation and the NHS Alliance, pointed out that tendering in emergency medicine results in a decrease in the quality of services because it is expensive, costing around 100,000 for the commissioner and each provider involved. The document also pointed out that the quality of care is driven up by working with providers to look for incremental improvements, rather than by going out for a competitive tendering process. This document is very helpful to commissioners because it also points out how triage is less safe than rapid see-and-treat processes and is used to compensate for delays caused by poor capacity planning.

When accident and emergency departments are overwhelmed the admission rate goes up, but a well functioning department will be able to decrease the number of admissions. The number of patients retained overnight needs to be looked at in relation to the severity of their conditions and not as an absolute number. Without good services for the frail elderly and without somewhere else for patients to go to be observed, they need to be admitted into observation wards overnight because they often deteriorate rapidly, particularly those whose symptoms and history suggest that they are on the cusp between potentially improving and potentially deteriorating. If they are sent home, they may be at great risk.

There is a need for collaboration from primary care right through to secondary care. The problem is that without incentives for primary care to improve home-care services for the frail elderly and out-of-hours services, an increasing number of these patients will end up at the doors of the emergency departments, as happens at the moment. With the decrease in the number of beds, it becomes increasingly difficult for them to be placed anywhere, yet they are often too frail to be sent home at midnight or in the early hours of the morning and need to be kept in overnight.

Emergency medicine acts as a portal. The vulnerable come in with their life stories. There is no pressure group to argue for patients who access emergency medicine because they are a completely heterogeneous group. Disease groups, such as those for neurological diseases, cancer, diabetes and so on, can argue for their patients but emergency medicine covers just about everybody. It has been estimated that, on average, a member of the population accesses an emergency department once every three years, compared to once every six years for out-of-hours primary care services. Therefore, I hope that the Minister will be able to reassure me that emergency medicine will be looked at in its totality and across the spectrum from primary to secondary care; and that commissioning will take into account that it is in a different position, with its constantly open access portal, from the other services in the NHS. I beg to move.

9:15 pm
Photo of Baroness Williams of Crosby

Baroness Williams of Crosby (Liberal Democrat)

My Lords, perhaps I may briefly intervene in the debate on this extremely important amendment. In countries like the United States, where there is no effective health system for those who cannot afford very substantial sums of money, emergency admission has become the last resort for such people. The noble Baroness, Lady Finlay, is right but we should take it one stage further. We know, from very recent reports on the difference between the likelihood of survival in an emergency situation between weekdays and the weekend, that out-of-hours provision is of substantially lower quality than that provided by regular doctors in a good hospital. This is very serious. One of the great mistakes made in the last contract for general practitioners was the almost complete transfer of out-of-hours work to private agencies which did not demand the same standards in respect of doctors, ranging from their ability to speak different languages through to experience of medical treatment. In consequence, we now have a troubling kind of medical roulette where a great deal depends on whether you get ill on Thursday or on Friday. The statistics are quite frightening, showing not a narrow but a very substantial difference.

Before the noble Lord, Lord Hunt, comes in-if he does-and before the Minister responds, I would like to raise two points. The first is about the degree to which the noble Lord believes we can begin to re-establish out of hours work to a higher level of quality broadly equivalent to that offered by general practitioners and other medical staff to patients who conveniently fall ill on Monday through Friday but not later or after that. Secondly, what does the Minister feel about the dependence of some groups in our community on emergency services, not because they want to use them but because they are not familiar with ways to establish their proper relationship with people who could look after them in difficult conditions? This goes back to one of the particular concerns of the noble Baroness, Lady Finlay, which is the impact of alcoholism on emergency entry. This is not just another amendment; it is a crucial one which points to a very troubling discrepancy which could grow worse if we do not succeed in addressing it.

Photo of Lord Walton of Detchant

Lord Walton of Detchant (Crossbench)

My Lords, it would be difficult to overstress the crucial importance of this issue, which has been a matter of grave concern to the specialist medical community. People with less common conditions often require specialist services for treatment unavailable through generic NHS support. At Question Time today, I posed a Question to the Minister about the report of the National Audit Committee which had demonstrated the serious inequalities of neurological services throughout the United Kingdom. People with neurological conditions rely not only on skilled neurologists but on a specialist multi-disciplinary team of nurses, physiotherapists, occupational therapists, speech and language therapists and others to maximise their independence and quality of life. The Bill proposes that these services be commissioned at a local level by Clinical Commissioning Groups which will be able to determine the size of the population for which they have responsibility and which, as matters stand, will have no duty to collaborate with other Clinical Commissioning Groups in the commissioning of services. Grave anxieties have been expressed by the Rare Disease Consortium and by the Neurological Alliance which is the only collective voice for more than 70 national and regional brain, spine and neuromuscular organisations working together to make life better for 8 million children, young people and adults in England with a neurological condition.

My personal wish would be to ensure that the commissioning of highly specialised services and services for less common conditions was conducted by the national Commissioning Board and not delegated to local clinical groups. After all, many of those clinical commissioning groups will cover a relatively small population area, and a lack of specific monitoring of this issue by the NHS Commissioning Board could allow geographical disparities in service provision and outcome-disparities that already exist and are serious-to widen.

At an earlier stage in the debates on the Bill, I mentioned my interest in research into muscular dystrophy and pointed out that when I started work in that field a boy with the most severe form of muscular dystrophy, Duchenne-type dystrophy, would have difficulty in walking in childhood, would be confined to a wheelchair, and would usually die at about 16 years of age from respiratory insufficiency. A recent major investigation by an All-Party Group studying facilities for the management of such patients throughout the UK demonstrated that in centres of excellence such as parts of London, Oxford, Newcastle and Oswestry boys with this disease are now living with supportive care and respiratory support into their 30s and even their 40s, and living much more productive lives. In some parts of the United Kingdom, such as the east of England and the south-west, we found that such boys were still dying in their teens. That is just one example. There are many other rare diseases where new developments in genomic medicine are resulting in the discovery of new forms of treatment.

I well remember-I am talking about the role of general practitioners-two GPs telling me that they thought it was quite disgraceful that I was spending time and effort in raising money for research into and treatment of a rare disease such as muscular dystrophy, which after all, they said, was a fatal condition and the money could be much better spent on the management of common conditions. I am very concerned that some of the clinical commissioning groups would not take full account of the crucial needs of people with rare, crippling and progressive diseases. After all, I have often said that you cannot measure human suffering in purely numerical terms. It is a matter of great importance, and for that reason these amendments are crucial in order to make certain that rare diseases and uncommon conditions are fully accepted as being of great importance, and that the commissioning of services for them will be a vital part of the provisions in the Bill.

9:30 pm
Photo of Lord Warner

Lord Warner (Labour)

My Lords, I rise briefly to lend my support to Amendment 64ZA in the names of the noble Baroness, Lady Finlay of Llandaff, and my noble friend Lord Hunt. I do so on the basis of my experience as chairman of the provider agency in London after my time as a Minister. We have seen in London how strategic leadership at the level of, in this case, the strategic health authority has transformed stroke services and A&E and trauma services. There is no doubt, based on the London experience, that these kinds of changes will not be engineered at the local level. They require populations of considerable size, particularly when we are living in the era of the European working time directive and its effect on the rostering of specialist services and clinicians, to produce the kind of quality of service that people need.

There is often a kind of conflict between that strategic leadership and the wishes of people at the local level putting pressure, if I may put it that way, on their local doctors to keep services very local. I accept that the Government wish to have a lot of this decision-making down at the local level, but we have to recognise that there is sometimes a conflict between that localism and planning in the area of emergency services as regards the most effective way of providing high-quality services to patients.

The Minister therefore needs to listen to concerns such as those that the noble Baroness, Lady Finlay, was expressing, because we know from the evidence in London that these kinds of services need to be planned at a major-population level.

Photo of Baroness Morgan of Drefelin

Baroness Morgan of Drefelin (Crossbench)

My Lords, I rise briefly to support Amendment 50A in the name of the noble Baroness, Lady Finlay, and the noble Lord, Lord Patel, and Amendment 63A in the name of the noble Baroness, Lady Finlay. We need to be clear that the role of NICE in our health system is extremely important. It plays a pivotal role in helping the system to understand innovation, and it is extremely important in promoting fairness. At a time of very tight resources, it would be good to have the role of NICE clearly set out in the Bill. I know that the noble Baroness, Lady Finlay, talked about the reputation of NICE and the role that it plays in facilitating audit and many other things. For me, however, it is about making sure that we have fairness across the NHS in England, and NICE is key in ensuring that that happens for patients.

I want to comment briefly on Amendment 63A. Others have talked about the concerns of the Neurological Alliance. I speak as the honorary President of Cancer52, which represents people affected by rare cancers. The majority of cancer deaths in this country occur because of rare cancers. We know that if a person is diagnosed with a rare cancer, they have often had to really fight through the system, visiting GPs many more times than those with the more common cancers which people call the "big four". Oesophageal, pancreatic and ovarian cancer, for example, are conditions of which GPs have very little experience. There is a great deal to be done in the NHS to improve outcomes for people diagnosed with what are often called less common or rarer cancers, but which are a group of conditions which account for more than 50 per cent of all cancer deaths. The noble Baroness, Lady Finlay, is right to say that we should be encouraging commissioners to ensure that, where rare conditions are concerned, there is collaboration and knowledge and experience sharing so that they do the right things for patients, regardless of how common their condition may be.

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Baroness Jolly (Liberal Democrat)

My Lords, I had not intended to speak because everything had been said. However, the noble Lord, Lord Walton of Detchant, made a point that I think is worth picking up on. I declare an interest as Chairman of the Specialised Healthcare Alliance which works with people with rare and complex conditions. These conditions are commissioned by the NHS Commissioning Board, while the conditions referred to by the noble Baroness, Lady Finlay, in Amendment 63A are intended to be commissioned by CCGs. Clearly, people are really anxious about these commissioning arrangements. They are based on geography; they are relatively small in number, but not tiny; they are geographically sparse; and very often GPs will not actually see these conditions very frequently.

The noble Lord, Lord Walton, asked whether any thought had been given to sweeping these conditions in with the rare and complex conditions, and to have them commissioned by the NHS Board. I am not suggesting whether this is a good or a bad thing, but I think that those with these conditions and the organisations that represent them might be glad to engage in a dialogue on this to see whether it is the appropriate way forward. There is certainly a lot of anxiety about what is currently happening. If my noble friend would give us some indication of whether that could be looked at, that might alleviate some concern.

Photo of Lord Winston

Lord Winston (Labour)

My Lords, I hope that in summing up the Minister will address the general issue of genetic disease. The noble Lord, Lord Walton, referred to one specific single gene defect but there are some 6,000 single gene defects and they are often very complex. Most of them are fatal diseases and many of them affect children. A few sufferers of single gene defects live to a young age and some occasionally live into middle age. However, one problem that we already find in the health service is that provision for the care, treatment and diagnosis of these patients and for the counselling of their families is often very deficient, depending very much on whether funding is available.

An example is the work that has been going on in pre-implantation genetic diagnosis, which can prevent a child who might die from one of these diseases being born through the selection of a suitable embryo. Of course, this is not a cheap procedure but in terms of financial efficiency for the health service it is very much less expensive than the complex care that might be involved for a child with, for example, advanced male-type muscular dystrophy. Hitherto there has been a huge difficulty in getting these services through individual PCTs because they think in the short term and are on a budget from year to year. Therefore, collaboration seems extremely important not only in relation to these rare cancers, which of course are immensely important, but for a great number of diseases which are extremely distressing. I am sure that the Minister will fully understand and be greatly sympathetic to the fact that the families involved are immensely distressed by these diseases. They are often very puzzled that they may be carrying one of these gene defects and they find it very difficult to get answers to what are quite complex problems. There really does need to be proper provision for them through collaboration with other authorities.

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Lord Turnberg (Labour)

My Lords, I should like to comment on Amendment 64ZA. I am sorry to inflict yet another medical opinion on the House but there is one factor which has not been mentioned in the planning of emergency services-that is, the fact that the vast majority of patients in medical wards are admitted through the emergency department, coming in as acute emergencies. This is quite unlike the situation in surgical wards. They, too, have their ration of emergencies but the majority of patients are admitted from waiting lists, and this is where the waiting list initiative and so on come in. However, when planning for medical beds, one has to think in terms of the accident and emergency department being the major route by which these patients enter the hospital and, in planning for emergency services, one has to think of the bed needs associated with that.

Photo of Baroness Masham of Ilton

Baroness Masham of Ilton (Crossbench)

My Lords, I, too, support these amendments, being associated with the rarer cancers group and various other groups. I had a cousin who had neuroblastoma two years ago and had to go to America for treatment. Some of these problems are really complex and GPs have never seen them. However, in the longer term, it is a question of ongoing treatment and the complexity of getting the right drugs for the right condition. Sometimes these drugs do not even come before NICE because the conditions are so rare. This matter really does need serious consideration and I hope that the Minister will do his best.

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Lord Patel (Crossbench)

My Lords, my name is added to Amendment 50A and I rise only to say that my silence thus far does not mean that I do not approve of the amendment. I strongly support it. There is a saying that if you get six doctors in a room, you will get six opinions, but I do not think that that will be the case today. The key point of the whole debate is that in the management of patients with rare conditions NICE guidelines are followed. If that is done in the commissioning of the care of patients with rare diseases they will get quality care.

9:45 pm
Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

My Lords, this is a useful debate and I hope that the noble Earl, Lord Howe, will be able to describe how he thinks specialist services and services for less common conditions will be protected in the new arrangements.

We know that there have been problems with the current commissioning arrangements by primary care trusts, the issue being that if they are dealing with services that cover only a small group of patients they do not have the experience or expertise to commission services effectively. The possibility exists that clinical commissioning groups that cover even smaller areas than PCTs will have the same challenges to face. We know that the NHS Commissioning Board will be commissioning some services at a national level. It would be helpful if the noble Earl, Lord Howe, could explain the distinction between those services that will be deemed to be of national importance but there is clearly concern that CCGs will not be able to have the critical mass to commission locally, and so they fall to be commissioned nationally. Where will the line be drawn? There is a powerful case for highly specialist services and those that are known as services for less common conditions to be given some protection in the system.

Amendment 64ZA is rather different but it comes back to the point raised by my noble friend Lord Walton in our debates in Committee on the need for strategic direction on reconfiguration issues. I am sure that he is right, as indeed was the noble Baroness, Lady Finlay, to point out that decisions on emergency care and specialist networks are very difficult to make. We know that we probably have too many hospitals providing emergency care at the moment, but we also know that it has often been very difficult to reach local consensus. I know that the thrust of the Government's legislation is for local determination but that is asking a lot. If you take a region you are asking for a huge number of clinical commissioning groups to come together and sign up to some kind of reconfiguration process which would lead to a more integrated approach in relation to emergency care. Without strategic health authorities and unless the local outposts of the national Commissioning Board are actually going to take an assertive role, there is a risk that we will not have the mechanism for making the kind of hard decisions that need to be made.

I am convinced that some strong, national leadership is required if you are to get movement on better emergency care and an acceptance that the current arrangements in some parts of the country simply will not do. It is interesting to see the debate in Mid Staffordshire following the problems in that trust and the recent publication of letters sent by the local clinical commissioning groups about the future of that hospital, causing a furore in the area. It shows some of the problems of an individual clinical commissioning group seeking to come to a view about the kind of reconfiguration of acute services. Of course, CCGs will need an input, but some external view and leadership would be very helpful to enable us to get better provision of services. As my noble friend Lord Walton says, one of the best examples of this is in relation to stroke services. The experience in London has shown, without any doubt, that pooling stroke services together in a limited number of acute centres has led to hugely enhanced outcomes. As a result of the London experience the strategic health authorities are requiring the same to be done throughout the rest of the country. The question I put to the noble Earl, Lord Howe, is: under the arrangements in the Bill, how can we ensure that that kind of national leadership will continue?

Photo of Earl Howe

Earl Howe (Conservative)

My Lords, this has been another excellent debate. It is worth saying at the outset that I fully appreciate the importance of the board and CCGs paying due attention to the way they commission specialised services and services for less common conditions and indeed emergency services. I fully endorse the importance of services being delivered in an integrated way when that is in the best interests of patients. I listened very carefully to the case put forward by the noble Baroness, Lady Finlay, on Amendment 50A. She made a very persuasive case about the importance of only ever commissioning specialised services with a close acquaintance with the relevant guidance and evidence base. I could not agree more with her on that. Commissioning of specialised services requires specialist skills and this is precisely why we feel that the Commissioning Board is the right body to commission such services. The board will be able to draw on a great deal of expertise in doing so. I hope the noble Baroness recognises our shared commitment in this area. Very shortly we will be publishing a consultation document as a UK response to the EC recommendation on rare diseases. We hope to be able to do that within a few days. The consultation document and responses will form the basis of the UK's plan. She will see in it that a great deal of thinking is going into how these services should be commissioned.

The noble Lord, Lord Walton, spoke with his customary authority about Duchenne muscular dystrophy. He may like to know that all regional specialised commissioning groups have undertaken reviews of neuromuscular services in their localities. Improvements to services are already being put in place. For example the NHS has invested in care co-ordinator posts which can reduce emergency admissions and readmissions. The national specialised commissioning group has also included neuromuscular disease as a priority in its 2012 work plans and it has been looking at emergency admissions as part of that work.

The noble Lord, Lord Winston, referred to rarer conditions, including those of genetic origins, as did the noble Baroness, Lady Masham, in relation to neuroblastoma. I identified closely with all that they said. Many of these conditions are extremely rare fortunately. It is not possible for all health professionals and carers to have detailed knowledge of conditions which they will see only very rarely in their working life. However, already we are addressing this through such initiatives as NHS Choices. It is one of a number of initiatives we have developed to provide comprehensive, clinically accredited information about health and health services. Comprehensive information to support clinical decision-making is also included on NHS Evidence, the new web-based portal hosted by the National Institute for Health and Clinical Excellence. It provides access to a range of information, including primary research literature, practical implementation tools and guidelines. I am not suggesting it is the total answer to this conundrum but it is certainly a demonstration of the direction of travel. We want to see much more information available to commissioners at a local level.

I think there has been consensus in this debate as to the need to think long and hard about how and at what level particular services should be commissioned. I completely agree with that. It is not always clear cut and it does require careful thought. The Bill says that certain services will be for the board alone to commission. We expect these to include certain highly specialised services-I direct that assurance particularly to the noble Lord, Lord Walton. Other services will be by and large for CCGs to commission, but in collaboration if need be with other CCGs and supported by the board.

I appreciate the keenness of the noble Baroness, Lady Finlay, to ensure that the board's commissioning of highly specialised services pays due regard to NICE guidance. However, we would prefer not to impose a blanket requirement on the board to exercise its functions in respect of specialised services, or any of its commissioning functions, in accordance with NICE guidance. NICE guidance will undoubtedly be relevant to specialised commissioning-that is obvious-but the amendment could well have the effect of requiring the board to have regard to it at the expense of other authoritative sources of advice. I have already referred to a couple. In exercising its duty to obtain expert advice, we would expect the board to draw on as wide a range of professional expertise as possible and not be constrained into prioritising that of NICE, valuable though that would be.

It is important for us to remember that CCGs must be competent to commission all services to meet the reasonable needs of all those for whom they are responsible. This includes services to meet the needs of patients with "less common" conditions, as Amendment 63A points out. CCGs will need to be well supported in developing as commissioners and the Bill provides a framework for just that. It provides for collaborative working, in Section 14Z1, between CCGs. The NHS Commissioning Board must publish guidance on commissioning, to which the CCG must have regard, which could also cover issues relating to commissioning for less common conditions.

The clinical senates and networks will be overseen by the board to ensure that CCGs can access specialist advice. Clinical commissioning, by giving responsibility for ensuring services meet the reasonable needs of patients to the very clinicians who deal with those patients daily and understand their needs, provides a far stronger basis for ensuring that commissioning caters to the needs of those with less common conditions than the current commissioning arrangements. GPs will be able through their membership of the CCG to seek to ensure that commissioning takes account of the less common conditions, which might not be of great significance across an entire geography but which are of great concern at the level of the individual GP practice.

I can assure the noble Baroness that the NHS Commissioning Board will be required to have a robust authorisation process to ensure that CCGs have made appropriate arrangements to discharge their functions competently, including consideration of the extent to which CCGs have collaborative arrangements for commissioning with other CCGs or local authorities as well as any appropriate commissioning support.

However, while I completely recognise the importance of commissioning services for this particular group of patients, I am afraid that I would prefer not to single out a requirement for authorisation to look at specific groups of conditions in the Bill. It would not make the NHS Commissioning Board's process any more effective, but it might lead emerging CCGs to add undue weight to this if it was the only part of the services that CCGs will be responsible for commissioning that was specified in relation to the authorisation process.

I hope it is recognised by your Lordships that in opposing Amendment 64ZA I do not wish to suggest that the concerns of that amendment, to ensure the quality of urgent and emergency care and the integration of its different elements to the benefit of patients, are unimportant-indeed, quite the opposite. The framework in the Bill for ensuring the competence of commissioners, securing continuous improvement in the quality of care and ensuring the promotion of integration applies to emergency and urgent care services every bit as much to as other areas of care. Commissioners will use the expert advice from senates and networks, and from other sources, to determine the best approach to commissioning integrated approaches to the delivery of urgent and emergency care, and within the context of a far-reaching national programme. As the House will know, we already recognise the importance of integration across the health service, particularly in urgent and emergency care. The introduction of NHS 111 will act as a driver for the redesign of local urgent and emergency care systems to create a more integrated system that is easier for patients to access and understand.

I understand the noble Baroness's concerns about competition in the context of emergency care and I should like to reassure her on that issue. We have been clear that competition should be used only where it is in the best interests of patients. For some services or parts of a pathway this may not be the case and commissioners will need to use their judgment as to what is in the interests of their patients and whether competitive tendering is appropriate. With some services, such as emergency care, it is surely highly unlikely that this test would be met. Indeed, we have always cited A&E as a prime example of where choice is usually irrelevant and competition will almost certainly be inappropriate.

I was asked by the noble Lord, Lord Warner, and the noble Baroness, Lady Finlay, about what will happen in the future to cater for the kind of reconfiguration of services that we have seen in London and how the new system will support a regional style of planning. Section 14Z1 enables CCGs to collaborate, as I have already said, in respect of the exercise of their commissioning functions. That is of particular relevance in the context of emergency care. In the same way as current PCTs operate, CCGs may choose to act collectively to co-ordinate care over larger geographical areas; for instance by adopting a lead commissioner model to negotiate and monitor contracts with urgent care providers. In instances such as that, I am sure that the strategic advice of clinical senates and the range of expertise of clinical networks will prove invaluable in continuously improving the quality of services and care for patients.

The noble Lord, Lord Hunt, spoke of the need for external expertise in this kind of decision-making. I agree with him. That will be essential in some cases. The clinical senates will be available as a source of specialist and strategic advice to health and wellbeing boards, in particular, providing a link between professionals and national leadership, although it is anticipated that senates are only likely to become involved in service changes or other issues occurring on a significant scale. However, very often emergency services will be on a significant scale.

My noble friend Lady Williams asked about improving out-of-hours services. We are taking work forward already on that front. Improvement of out-of-hours care will be taken forward as part of the development of a coherent 24/7 urgent care service. Two of the aims of this provision are, first, consistent high-quality integrated care led by clinical commissioning groups, delivering the best outcomes and experience 24/7, with no noticeable differences during or out of normal office hours; and, secondly, greater integration, with services working together to provide a seamless service irrespective of the provider organisations which operate them.

Our vision for urgent care is to replace the ad hoc unco-ordinated system that has developed over the past 13 years-which has been characterised, I am afraid, by poor quality and too much variation-with a system that patients better understand and can get them to the right place first time. Amendment 64ZA would not stimulate that. In fact, it could well distort the local freedoms which commissioners need to develop the best and most effective integration of care.

I hope that I have said enough to persuade the noble Baroness to withdraw her amendment.

10:00 pm
Photo of Baroness Finlay of Llandaff

Baroness Finlay of Llandaff (Crossbench)

I am most grateful to the Minister and to everyone who has spoken in this debate. There has been widespread support around the House for this group of amendments. The Minister's comments on NICE were reassuring and very helpful. We will be returning to less common conditions in relation to clinical commissioning groups, but I feel that we have teased out the very difficult dilemma of the duties that sit with the Commissioning Board versus those that sit with the local clinical commissioning group and how that division and integration work.

Again, in terms of emergency care, the Minister has made very many helpful comments. However, I do have some concerns that I would like to consult on. It would be really helpful if he would meet me and some people from emergency medicine. The College of Emergency Medicine has been trying very hard to work with the Government to make sure that this Bill actually does enhance and does not damage inadvertently the improvements in emergency care that it has been driving across the country very fast over recent years. A meeting would be most helpful. Pending such a meeting, I will withdraw the amendment for the moment, but we may need to come back to some of this at Third Reading, so I would like to reserve that. I beg leave to withdraw the amendment.

Amendment 50A withdrawn.

Amendment 51 had been withdrawn from the Marshalled List.

Amendment 52 not moved.

Amendments 53 and 54

Moved by Earl Howe

53: Clause 22, page 18, line 17, leave out from "must" to end of line 18 and insert "have regard to the desirability of securing, so far as consistent with the interests of the health service-"

54: Clause 22, page 18, line 23, at end insert-

"( ) If, in the case of any exercise of functions, the Board considers that there is a conflict between the matters mentioned in subsection (1) and the discharge by the Board of its duties under sections 1(1) and 1G(3)(b), the Board must give priority to those duties."

Amendments 53 and 54 agreed.

Amendment 55 not moved.

Amendment 56

Moved by Earl Howe

56: Clause 22, page 18, line 34, leave out from "decisions" to end of line and insert "which relate to-

(a) the prevention or diagnosis of illness in the patients, or

(b) their care or treatment."

Amendment 56 agreed.

Amendment 57

Moved by Baroness Finlay of Llandaff

57: Clause 22, page 18, line 39, at end insert-

"( ) The National Commissioning Board must have regard to advice from a range of healthcare practitioners from across the patient pathway, including local clinical specialists and allied health professionals."

Photo of Baroness Finlay of Llandaff

Baroness Finlay of Llandaff (Crossbench)

My Lords, this is another group of amendments that relate to the process of commissioning. Their aim is to ensure that commissioners have regard to all the expert advice needed to make informed decisions about commissioning services for patients, particularly complex services that operate across the care pathway. Amendment 65, which is primarily in the name of my noble friend Lord Patel, further aims to ensure that safety information is shared with everybody who needs to know about it.

The groups of particular concern to be consulted go beyond medicine and nursing; the wording in the amendment is "local clinical specialists". They will be linked to their own specialist group and specialist society and will be expected to be completely up to date with advances in their field, enabling the most modern, up-to-date and cost-effective care to be brought down to a local level. They also address allied health professionals.

We have spoken remarkably little about the contribution of allied health professionals in our debates so far, and they have not featured on the face of the Bill. Physiotherapists form the largest group of allied health professionals. I declare an interest as president of the Chartered Society of Physiotherapy. As a group, they are very used to representing other allied health professionals; and, as a group , allied health professionals are very used to understanding the role and contribution of each other, such as occupational therapists, speech and language therapists and so on, groups that are small in number but have a very important contribution to make. One of the reasons that they become so important in these new processes of a care pathway is that, if we are expecting more patients to be looked after in the community, we have to do a great deal to increase the independence of individuals.

The physiotherapists and occupational therapists are par excellence the people who will maintain or re-establish mobility and be able to discharge patients from hospital. I know from my own clinical practice that all too often we are waiting for the physio or the OT to provide the essential input that makes the difference between a patient remaining an in-patient or being able to get home, particularly where they have mobility problems. Physiotherapists also have a role in mental health and can be very important in establishing mental health improvements as well as just physical health. It is with that background that they have been featured in these amendments as a group of allied health professionals, because, sadly, many doctors and nurses do not really understand the major and very cost-effective contribution that these healthcare professionals can make. I beg to move.

Photo of Lord Patel

Lord Patel (Crossbench)

My Lords, I shall speak to two amendments in my name, Amendments 65 and 66. They are very simple. They regard the information on the safety of services provided by the health service. I particularly want to address the issue about patient safety.

Amendment 65 refers to the information provided. The Bill says that the Commissioning Board will provide information to those whom it "considers appropriate". I do not know why the Commissioning Board must decide who it considers appropriate; my amendment merely lists all the organisations providing healthcare to whom the information must be provided. Patient safety incidents occur mainly because of systems failure. I can give many examples, from wrong-side surgery to wrong infusions, wrong medicines reconciliation and wrong injections in the wrong side-such as a spinal injection when a particular material must not be injected spinally. Because it is a system failure, if such a patient safety incident occurs in one hospital, it is likely to occur in another. So the information must be provided to all healthcare providers and those who train doctors and nurses. I do not understand why it must be that the board must make information collected on patient safety incidents available only to those whom it "considers appropriate".

My next amendment has to do with subsection (3), which says:

"The Board may impose charges, calculated on such basis as it considers appropriate, in respect of information made available by it under subsection (2)".

Why must it charge? If it charges, we do not get the gains from the lessons learnt from patient safety incidents.

The two amendments are quite simple. I do not understand why it is not clearer.

Photo of Lord Turnberg

Lord Turnberg (Labour)

My Lords, my name is attached to two amendments in the group, Amendments 57 and 99. I shall speak very briefly. They are both about ensuring that, first, the commissioning board can put itself in the best possible position to develop its plans by having available to it all the advice that it can get. When the board makes its decisions it has to be able to show and demonstrate that it has reached those decisions on the best evidence possible. That is what the amendment tries to do. The same argument, only even more so, can be applied to CCGs. That is Amendment 99. They will certainly need all the help that they can get, and Amendment 99 gives them the opportunity to get the support that they need. I hope that those two amendments can be supported, at least.

Photo of Lord Warner

Lord Warner (Labour)

My Lords, I have added my name to Amendment 66 from the noble Lord, Lord Patel. Given all the hard work that has gone into trying to improve knowledge about medical and other areas, to improve patient safety, it seems extraordinary that in this Bill there is a provision to enable the national Commissioning Board to be able to charge for information about patient safety defects that have come to its attention. That seems pretty bizarre, but no doubt there is some explanation in Richmond House that would convince me. I look forward eagerly to knowing what it is.

10:15 pm
Photo of Baroness Morgan of Drefelin

Baroness Morgan of Drefelin (Crossbench)

I follow on from the comments of the noble Lord, Lord Turnberg, and will speak to Amendments 99 and 100. There has been a great deal of debate in Committee and now at Report about the duties of the new clinical commissioning groups and how the commissioning of health services should be improved. I will briefly expand on some of the points that have been made in previous debates on this subject.

We know that the commissioning of cancer services could often be better. I remind the House again of my interests in this matter. It is crucial that a range of experts are involved in commissioning. As the noble Lord, Lord Turnberg, has just said, they will need all the help they can get. It is crucial that expertise is used and sought, for example from people operating within the many cancer networks that currently do such an excellent job in supporting cancer commissioning.

I welcome new duty on clinical commissioning groups provided by new Section 14V, which commands that they will need to obtain appropriate advice from professionals with a broad range of expertise in the prevention, diagnosis or treatment of illness. The noble Baroness, Lady Finlay, has tabled an amendment which slightly expands on that duty and mentions the need for expertise in the whole of the patient pathway. That amendment is interesting as well.

I also believe that clinical commissioning groups, during their authorisation process and annual review, should be required to demonstrate how and where they obtain advice to commission cancer services. This would be a very important point of transparency. Ideally this should include, for example, a cancer lead in each clinical commissioning group who is responsible for liaising with the clinical networks and local authorities to ensure a coordinated approach to commissioning cancer services across the pathway.

I should like to ask the Minister two brief questions concerning clinical commissioning groups' new duty to obtain appropriate advice. First, could he update the House on how the Government will monitor the implementation of this crucial new duty? How will clinical commissioning groups be required to report on it, and at what level of detail? Will it, as I mentioned, include named leads, and how will these reports be monitored? Secondly, what steps will be taken if a clinical commissioning group fails to fulfill this crucial duty, and by whom will these steps be taken? The role of cancer networks and the expertise that they bring to bear is key. That should not be lost through this process.

Photo of Baroness Masham of Ilton

Baroness Masham of Ilton (Crossbench)

My Lords, I have put my name to Amendment 99. Will the Minister tell the House a bit more about the clinical senates? He has spoken about them previously but it would be interesting to hear a bit more about who will actually be on them, who will pay for them and how will they give their information. There are many people, especially in the cancer field, who would like to know more.

Photo of Baroness Wheeler

Baroness Wheeler (Labour)

My Lords, we strongly support the amendments in this group, which underline the importance of the NHS Commissioning Board and CCGs seeking advice from healthcare practitioners from across the patient care pathway, including local clinical specialists and allied health professionals, and going beyond professional input to seek advice from organisations with expertise in the experience of patients.

We hope that the Government will recognise the strong case put forward by the noble Baroness, Lady Finlay, and other speakers to these amendments for also recognising the expertise of patients' organisations in the Bill and ensure that commissioners seek their advice as well as that of health professionals. By this we mean patients' organisations not just being consulted but beinggenuinely involved in helping to co-design or co-produce services. Many patients' organizations, such as the Stroke Association for example, arekey providers of local services such as reablement or information, advice and support services to stroke survivors, carersand family members across the country. They have first-hand, direct experience of the issuesthat matter most to patients across the whole care pathway, hospital and community. Involvement of patient groups would also help the patient voice in the clinical senates and networks, which the noble Baroness, Lady Masham, also mentioned. To remind the Government, this approach was supported by the clinical workstream of the Future Forum, round one, but was overlooked in the Government's response. Now is a good opportunity to address this issue.

Amendment 65, tabled by the noble Lord, Lord Patel, and the noble Baroness, Lady Finlay, deals with information collected by the board on the safety of services provided by the health service being made available to healthcare providers, the Care Quality Commission and HealthWatch England, local authorities and professional organisations in healthcare. We fully support this, along with the caveat provided by Amendment 66 that the information should be freely available without charge. I hope that the Minister will accept the need to make progress on this important issue and reassure the House about the involvement of healthcare professionals and patient organisations in developing the commissioning plans.

Photo of Earl Howe

Earl Howe (Conservative)

My Lords, this has been an interesting and worthwhile debate and I appreciate the concern that the noble Baroness, Lady Finlay, and other noble Lords have demonstrated throughout the Bill's proceedings to ensure that the board and CCGs benefit from as wide a range of advice as possible. The Government have been clear that everyone with a role to play in securing the best possible services for local people should be able to do so. The NHS Future Forum recommended that we strengthen the legislative duties to help achieve this, which is why the duties on the board and CCGs to obtain appropriate advice were strengthened in another place to incorporate the wording used to define the comprehensive health service and to ensure that it was clear that such advice should come from persons who, taken together, have a broad range of professional expertise.

I mentioned clinical senates on the last group of amendments. Of course we envisage a role for clinical senates in the arrangements for how these duties are fulfilled, providing not just clinical but multidisciplinary advice from professionals from public health and social care alongside patient and public representation and other groups as appropriate. The noble Baroness, Lady Masham, asked me specifically about clinical senates. They will be established as strategic advisory bodies, with a clear focus on quality improvement and improving outcomes. They will bring together clinicians with strong clinical credibility, drawn from across the disciplines, as I have mentioned. They will include patients and members of the public as well. They will have a role, too, in advancing public understanding of health and healthcare.

Why do we need clinical senates? Commissioning is at its best when it is a collaboration of professionals, based on a shared drive for continuous quality improvement. Maximum participation will be key here. The Future Forum report showed:

"There was universal agreement that people would be",

better served if their,

"care were designed around their needs and based on the input of the public, patients and carers, health and social care professionals",

the voluntary sector, "and specialist societies". The exact detail of who will be part of the clinical senates, the number that will exist and the roles that they may have are all to be determined through a process of discussion and engagement, but I hope that I have outlined, at least in broad terms, what they will be there to do.

Photo of Earl Howe

Earl Howe (Conservative)

My Lords, they will come under the aegis of the NHS Commissioning Board. They will be part of the board.

Having said all that, I remain unconvinced that imposing specific duties as to where advice should come from, including specifying particular sources of advice such as in Amendments 57 and 99, is the right way forward. I am afraid that if we were to do that, there would be then justifiable demands to include in the Bill other clinicians and groups of people who commissioners should seek advice from when exercising this duty. My view is that this is horses for courses, and that it is appropriate that the board and CCGs should have the freedom to determine what advice it is appropriate to seek in each instance. That is why the emphasis in the duties as they stand is rightly placed on ensuring that the commissioner obtains "appropriate advice" from people with a broad range of professional expertise. It is that breadth of expertise which is important, not the particular professionals involved.

Amendments 58 and 100 are admirable, if I may say so, in that they seek to require that the advice should come from across the care pathway. I have every sympathy with the noble Baroness's intentions there. Again, however, I think that this is already provided for in the duty which-in its reference to expertise in the prevention, diagnosis, or treatment of illness, and the need to obtain advice from persons who, taken together, have a broad range of professional expertise-is designed to be of maximum scope, and I am confident that it will be interpreted as such.

We have also just discussed the important role that both patients, and the organisations that represent their interests, can bring to the commissioning process. However, I think that Amendments 59 and 101 are unnecessary. Let us be clear that while these duties refer to obtaining advice from people with expertise in relation to the health service, this is not confined to clinical expertise. There is nothing to prevent the board or CCGs securing advice from patients' organisations, or those with expertise in the patient experience. The board can also draw on the advice of national and local healthwatch as a conduit for such advice. CCGs, similarly, are able to draw on the advice of local healthwatch.

However, to reiterate the point that I made in Committee, there is a risk in becoming too prescriptive. In reality, we have to trust them to build these relationships themselves and judge them on the outcomes that they achieve. If we commission for good outcomes, we will, as night follows day, secure the appropriate knowledge and advice to enable us to do that.

It will also be an important part of the board's remit to produce advice and guidance to prevent the recurrence of incidents that jeopardise patient safety, just as the National Patient Safety Agency does now. It is important that the board is able to share relevant information relating to patient safety. The noble Lord, Lord Patel, is absolutely right that information that can inform and enhance patient safety in the NHS should be made available to all those who would benefit from it. The NPSA, as he will know, currently shares this information with a number of bodies with a particular role in relation to patient safety-for example, the MHRA and the CQC-and this will continue to be the case. Indeed, if it did not make important information available to those who it thought could reasonably benefit from it, the board would be in breach of its duty.

In addition to NHS bodies, this information is currently also used to develop products for use by non-NHS organisations, by the devolved Administrations and international organisations, for which the board may determine it appropriate to charge a fee. It is for those reasons that we have framed the duty to share information in broad terms, and we would not want to be more prescriptive in the way that Amendment 65 proposes. Neither would we want to prevent the board charging a fee when appropriate, as would be the effect of Amendment 66. I think that it is reasonable for the board to determine how and in what circumstances it may impose charges for the information it provides. The power is intended to allow the board to seek adequate compensation for the services that it provides to other bodies where there would otherwise be no benefit to the health service. However, there is no scope for the board to charge for the advice and guidance that it would be required to provide for the purpose of maintaining and improving patient safety, and although there is provision for the board to impose charges, Clause 22, which inserts new Section 13Q(4), makes it clear that the board must give, not sell, advice and guidance to appropriate bodies to maintain and improve the safety of the health service. I hope that that is reassuring to noble Lords.

The noble Baroness, Lady Morgan, asked me about the monitoring of advice and what happens if they fail on that duty. CCGs will have an annual performance assessment by the board, which would assess how well they discharge their functions, including this duty to obtain advice. If a CCG fails to perform any of its functions, effectively the board can intervene and can take action. I hope that the clarification I have given is helpful and that I have sufficiently reassured noble Lords to enable them to withdraw their Amendments 57, 58, 59, 65 and 66.

Amendments 72 and 115 in my name clarify the circumstances in which the board of CCGs must consider common-law confidentiality requirements when considering whether or not to disclose information. We have listened to the views expressed by my noble friend Lord Marks, the noble Lord, Lord Harris of Haringey, and the BMA; they drew attention to circumstances where, if common law did not apply, there was the potential for disclosure to threaten patient confidentiality. We are therefore bringing forward these amendments to achieve what we believe is an appropriate balance between ensuring that information is disclosed when appropriate and protecting personal confidential information. The amendments are tabled in my name to achieve this, and I hope that they will receive the support of the House.

10:30 pm
Photo of Baroness Finlay of Llandaff

Baroness Finlay of Llandaff (Crossbench)

My Lords, I am grateful to the Minister for having listened so carefully to the amendments and for having addressed and recognised the real concerns that are behind the way that they were written and drafted. I rather hoped that he was going to say that the spirit of the amendments would be taken forward in guidance for commissioning as it is written, and I pose that as a very brief question to him before completing my comments.

Photo of Earl Howe

Earl Howe (Conservative)

Certainly, my Lords. The spirit of the amendments will be incorporated in guidance.

Photo of Baroness Finlay of Llandaff

Baroness Finlay of Llandaff (Crossbench)

I thank the Minister very much. I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Amendments 58 and 59 not moved.

Amendment 60

Moved by Earl Howe

60: Clause 22, page 19, line 13, leave out "have regard to the need to"

Amendment 60 agreed.

Amendment 60A

Moved by Baroness Morgan of Drefelin

60A: Clause 22, page 19, line 16, at end insert ", and

"(c) research supported by the health service for the purpose of protecting the public in England from disease or other dangers to health"

Photo of Baroness Morgan of Drefelin

Baroness Morgan of Drefelin (Crossbench)

My Lords, I shall speak also to Amendments 66AA and 67AA in my name. The amendments are all designed to ensure that we have a strong commitment to the research duty throughout the NHS that matches the aspiration and vision set out so clearly during the debates on this issue on Report. There have not been many elements of the Bill so far that have been welcomed and united the House quite so strongly as the Government's acceptance of the strengthening of the research duty placed on the Secretary of State, the NHS Commissioning Board and the clinical commissioning groups. As we know, that was met with universal support around the House. Once again for the record, I declare an interest as chief executive of a medical research charity, Breast Cancer Campaign, which is a proud member of the Association of Medical Research Charities. We have been one organisation among many calling for the research duty to be strengthened.

While amendments to strengthen the research duty were widely supported, the debate on the first day of Report when these amendments were discussed reiterated a critical issue that was also raised in Committee: the duties must be meaningful and must therefore be monitored. There must be monitoring mechanisms in place throughout the system to ensure that the research duty is not there in theory alone. For that reason, I was reassured to hear from the Minister that the Secretary of State would be expected to report on how he fulfils his statutory duty annually, that CCGs will need to demonstrate how they will exercise important functions, including the duty of research during the authorisation process, and that a CCG's commissioning plan and annual report will cover the exercise of the duty of all the CCG's functions. However, no mention was made during the debate of the NHS Commissioning Board being required to report back on its duties when reporting its annual plan and business plan. The purpose of Amendments 66AA and 67AA is to make sure that we really address this key matter. I admit to being a bit confused about the Government's position on reporting on duties. On the one hand, the research duties have quite rightly been strengthened but, on the other hand, there is a notable reluctance to ensure that it is a priority and a requirement for the Commissioning Board to report back on the activity relating to this duty. We need to have that transparency, so that we can see the benefits of the duty percolating through the system.

The duty relating to research is now stronger in wording than the duty relating to inequalities, but the Government have decided to include their own amendment, adding inequalities to the list of duties on which the board will be required to report. They have chosen not to do likewise for research. While I welcome and support the requirement to report on inequalities, this new step by the Government has reinforced my concern over whether there are sufficient reporting mechanisms embedded in the new structures of the NHS to promote adequately the vision of a research-led NHS that has found such widespread support in this House.

If, as the Minister may respond, all duties should be reported back on, why have this subsection, which identifies and highlights specific duties, within the clause at all? We are looking at a case of first among equals when it comes to some of the duties that the board is required to fulfil. How are we to understand what differences this will bring in reporting requirements? I hope that the Minister can use the opportunity now, late as it is, to reassure me that research will be a priority for the Commissioning Board and that there will be explicit reference to research and to the board's plans in relation to it in the business plan and in the report.

Amendment 60A is to seek further clarity on what is to be understood by the term,

"research on matters relevant to the Health Service".

My concern on this point is to ensure that the terminology used in the duty should be sufficiently comprehensive. For example, will the current wording require the NHS to enable research to occur, and to support it, as well as utilising the evidence from research that is available? Having discussed this with the noble Earl, I am confident that he will be able to reassure me on this point. I beg to move.

Photo of Lord Willis of Knaresborough

Lord Willis of Knaresborough (Liberal Democrat)

My Lords, I am eager to speak at this late hour. It seems that every time we talk about research it is always around 11 o'clock at night. The Minister and his minions must be planning something which we do not quite know about, but here we are. I support Amendments 66AA and 67AA standing in the name of the noble Baroness, Lady Morgan of Drefelin. Will my noble friend the Minister clarify the issue over the head of research at NIMR? At an early stage on Report, he clarified the duties of the Secretary of State and the commissioning groups, and how they will be reported. I think that is quite clear to the House. Speaking on behalf of the medical research charities, one of which I chair, there is general agreement on and support for the Minister's general direction of travel. However, the Commissioning Board is a different issue altogether. The Minister was silent on that when he reported back but he indicated that it would be the role of the chief executive of NIMR, Dame Sally Davies, to prepare plans and report back on research. However, my understanding is that Dame Sally Davies has two specific jobs. On the one hand, she is the chief executive of NIMR and is therefore responsible for funding research proposals that come to the Department of Health. That is a very distinct role of looking after more than 1 billion of spend in this particular direction.

Her other role is that of Chief Medical Officer. In that role, I understand that she is responsible for organising, on behalf of the Department of Health, research programmes that deal with both public health and those areas of the health programme that require specialist research input. The Minister appeared to say earlier on Report that Dame Sally Davies would, in her role as the head of NIMR, report to the board on research. However, perhaps she will not report to the board on research; perhaps she has a separate reporting line to the Secretary of State or Parliament. In that case, I should very much like the Minister to clarify that role.

In conclusion, I strongly support the arguments of the noble Baroness, Lady Morgan of Drefelin, in making her point about cherry picking duties. Earlier today, in response to Amendment 38A, moved by the noble Baroness, Lady Masham, the Minister rightly said that we should not cherry pick particular conditions in order to report on them. However, that is exactly what is happening over the duties. A specific set of duties, of which the whole House is incredibly supportive, are laid down in the Bill. However, only certain ones must be included in an annual plan and reported on. There can be no duty more important than that of research. It is the one area in which we will get the very latest treatments to patients quicker and with better health outcomes, yet it is one of the areas that is regarded as less important than others. I hope that the Minister will be able to satisfy both the medical research charities and this House on those two issues.

Photo of Lord Turnberg

Lord Turnberg (Labour)

I strongly support the amendments in the name of the noble Baroness, Lady Morgan, and the words of the noble Lord, Lord Willis. It is almost churlish to return to the matter of research when we have heard such welcome words and support from the noble Earl on research in the Bill. However, as an ex-chairman of the Public Health Laboratory Service, it would be wrong for me not to comment on Amendment 60A, which seeks to have research supported in the health service for the purpose of protecting the public in England. It is in that area that we may have a specific problem because public health will be dealt with largely by the local authorities. It is unclear how local authority support for research will be kept within the context of the needs of the country, and how that will work with the marvellous amendments that the noble Earl has tabled. Perhaps he will clarify how local authorities will be engaged in promoting research and how we will encourage them to do so.

10:45 pm
Photo of Baroness Thornton

Baroness Thornton (Labour)

My Lords, I support this group of amendments from the noble Baroness, Lady Morgan, which call on the NHS Commissioning Board to promote research supported by the health service for the purpose of protecting the public from disease and other dangers to health. These amendments also include the need for the board's business plan to explain how it proposes to discharge its duty in respect of these issues to promote the NHS constitution and for the annual report, in particular, to contain an assessment of how effectively it has discharged this duty. We support these too.

The amendments underline the importance of embedding research in the NHS and we welcome the introduction of a research duty on the Commissioning Board and the intention to ensure that research is genuinely an integral part of the health service, as my noble friend, Lord Turnberg, and the noble Lord, Lord Willis, said. This is one part of the Bill which has genuinely been recognised and improved on by the Government. However, ensuring that the intention of their duty is clearly understood and sufficiently comprehensive is crucial. These amendments are designed to ensure this. Amendment 66A would ensure that there are clear commitments to research for which the board is accountable and Amendment 67AA requires the board to explain activity relating to the research duty. Both these provisions ensure that there are important monitoring mechanisms in place in the board's business plan and annual report. As the noble Baroness, Lady Morgan, has stressed, they address an apparent anomaly which requires the board to report on improvement in the quality of services and on public and patient involvement but not on research, as the noble Lord, Lord Willis, said. We hope that the Government will accept these amendments in that spirit.

Photo of Earl Howe

Earl Howe (Conservative)

My Lords, we had a very positive debate on the importance of research at an earlier stage of Report. I was grateful to the noble Baroness, Lady Morgan, for the support she expressed for the changes the Government have made to the Bill. I am more than happy to respond to these amendments this evening. I sympathise and agree with the noble Baroness's championing of research in this Bill. She and my noble friend Lord Willis have been particularly vocal and well informed on this subject. Nevertheless, I am afraid I am reluctant to agree that the Bill needs yet more amendment. Having said that, I hope I can reassure the noble Baroness going forward.

On Amendment 60A, the duties on the Secretary of State, the board and CCGs to promote research and the powers to conduct research all apply to the health service in its widest sense. This encompasses both NHS and public health services under the 2006 Act. In relation to the board's duty in new Section 13L, the duty to promote research on matters relevant to the health service already covers public health protection. Public health protection is a function of the Secretary of State under Section 2A of the 2006 Act and therefore part of the health service.

There are also other clauses in the Bill that focus specifically on research into health protection. Clause 10 lists research and other steps for advancing knowledge and understanding as examples of action that the Secretary of State may take under his wider duty in relation to protecting public health. Public health and health protection in particular will, of course, be predominantly the responsibility of Public Health England rather than the board. It is not therefore necessary for the board's functions to cover such matters but there will, of course, be close working between them and there are powers under Clause 21 for the Secretary of State to arrange for other bodies, including the board, to undertake any of his public health functions if necessary.

Turning to Amendments 66AA and 67AA, we have had a number of debates about exactly what the board should give particular attention to in its annual business plan and its annual report. I would like to remind your Lordships that the board is already required to set out in these documents how it intends to exercise its functions including how it will meet the various duties placed on it under the Bill.

The Bill emphasises a very few key duties that the board must look at in particular in its business plan, annual report and performance assessments, and that CCGs must look at in their commissioning plans and annual reports. We feel that we have chosen the right duties in each instance. As to the board's and CCGs' annual reports, it is more important that they focus on the outcomes that have ultimately been achieved through the provision of services, rather than on the way in which those services are being delivered. On the whole, that is the distinction we have tried to draw.

My noble friend Lord Willis asked about Dame Sally Davies and her reporting lines. I am sure my noble friend will remember that I wrote to him on 17 November and briefly covered this point. In short, as he knows, the National Institute for Health Research is and will remain part of the Department of Health. Its budget is held centrally by the department. The Chief Medical Officer is and will remain responsible for the NIHR and its budget. In her capacity as Chief Scientific Adviser and head of the NIHR, she will report to Ministers and the Secretary of State, but she will be there to give advice to the NHS Commissioning Board if asked to do so on matters relating to research. Similarly, in her capacity as CMO, she reports directly to the Secretary of State, but will be there to provide advice to Public Health England. I hope that that is of help to my noble friend.

The noble Lord, Lord Turnberg, asked me how the local authority role in promoting research would be assisted and how that would manifest itself in practice. I should like to write a letter to him on that point because the planning on that is, if I can put it this way, work in progress and I hope that I will be able to tell the noble Lord a little more in writing in a few days' time.

Photo of Lord Willis of Knaresborough

Lord Willis of Knaresborough (Liberal Democrat)

Before he sits down, will my noble friend tell the House whether he has made it clear in his remarks that the chief executive of the Commissioning Board will not have a direct relationship in terms of research, and will not have responsibility that will, in fact, be with the Chief Scientific Officer-the head of the NIMR? If that is the case, how on earth will the Commissioning Board have a relationship with the commissioning groups in terms of their duty to promote research?

Photo of Earl Howe

Earl Howe (Conservative)

My noble friend is not correct. The board will have a duty to promote research, and we have debated that point. What it will not have is the budget for the National Institute for Health Research, which is held centrally. I think that noble Lords have welcomed that because it will mean that that budget is held separately from the board's own budget. However, that does not absolve the NHS Commissioning Board from responsibility for promoting research. Indeed, it will do that and have responsibility in particular for ensuring that the health costs of research carried out in NHS establishments are covered under the various tariffs. That will be a major part of the board's work.

I hope that I have reassured the noble Baroness sufficiently to enable her to withdraw her amendments, but I should of course be happy to talk to her outside the Chamber if there remain points that she would like to raise with me.

Photo of Baroness Morgan of Drefelin

Baroness Morgan of Drefelin (Crossbench)

There is one matter on which I should be really grateful for the noble Earl's help. In his helpful response to this debate, he said that there will be some key duties on which the Commissioning Board will need to report in particular. Will he also remind us that the Commissioning Board should report on all its duties, because I am not feeling that reassured at the moment?

Photo of Earl Howe

Earl Howe (Conservative)

I apologise to the noble Baroness. I thought I had made it clear that of course there will be a duty on the clinical commissioning groups to assure the board that they have fulfilled all their functions. We fully expect that research will be covered in that. These particular duties have been mentioned in the Bill only either because they are absolutely integral to the delivery of outcomes, or because they relate to a fundamental strand of accountability-namely, the duties to reduce inequalities, to improve the quality of services, and to promote public involvement and consultation. These really are central to everything that the board and CCGs will do. It is not because there is any greater obligation on the board to comply with them than there is in respect of any of their other duties. The same applies to CCGs.

Photo of Baroness Morgan of Drefelin

Baroness Morgan of Drefelin (Crossbench)

I thank the Minister, not only for giving me double reassurance in this debate, but also for the work that I know he has done personally to ensure strengthening of the research duty in the Bill in the first place. I also thank all noble Lords who took part in this debate. I withdraw the amendment.

Amendment 60A withdrawn.

Amendment 61

Moved by Earl Howe

61: Clause 22, page 19, line 16, at end insert-

"13LA Duty as to promoting education and training

The Board must, in exercising its functions, have regard to the need to promote education and training for the persons mentioned in section 1E(1) so as to assist the Secretary of State in the discharge of the duty under that section."

Amendment 61 agreed.

Amendments 62 to 63A not moved.

Amendment 64 had been withdrawn from the Marshalled List.

Amendment 64ZA not moved.

Amendment 64A

Moved by Lord Mawson

64A: Clause 22, page 20, line 24, at end insert-

"13OA Duty to have regard to the voluntary and social enterprise sector

(1) In exercising its functions, the Board must, so far as it is consistent with the interests of the health service, act with a view to ensuring that competition does not disadvantage the voluntary and social enterprise sectors.

(2) The Board may take specific action to support the development, including capacity building, of the voluntary sector, social enterprises, co-operatives and mutuals as it considers appropriate.

(3) Any action the Board takes in subsection (2) shall only be such that a level playing field between providers is achieved and maintained, meaning that one sector of provision is not more disadvantaged than another and the relative benefits of each form of organisation can be taken into account."

Photo of Lord Mawson

Lord Mawson (Crossbench)

My Lords, I shall also speak to Amendment 64B. Many fine words have been spoken by this and the previous Government about the important role that social enterprise and the voluntary sectors now need to play in our changing economy, particularly in the NHS. Indeed, on 25 January, the Prime Minister spoke to exactly this subject in the other place, and in 2010 Secretary of State Andrew Lansley said during a speech to the voluntary sector leaders that he was assisting in the creation of the,

"largest social enterprise sector in the world".

Indeed, he said that it would mean opportunities for this sector,

"at every stage in the process".

These are very fine words, with which I agree. These two amendments are intended to turn these aspirations into practice on the ground up and down this country, because it is simply not happening when one looks under the carpet and at the fine detail. Whatever we think the numbers produced by civil servants tell us, something quite different is happening on the ground in practice.

When this matter raised its head in Committee, I reminded your Lordships' House of our practical experience in Tower Hamlets, where the social enterprise the Bromley by Bow Centre-I declare an interest as its founder and president-had competed with a large multinational company to run a local health centre. Having invested many tens of thousands of pounds in the process, the centre lost the bid on cost.

Fair enough, one might say: that is life. Because I was conflicted at the time, I kept out of the process but, as soon as it had finished, I realised that a very large company had undercut the centre and come in at a price that was simply not sustainable for either it or the patients, and that the inexperienced procurement officers in the PCT had no idea about what they were dealing with in practice-they had never run a health centre. Lo and behold, very quickly the company was adding new variation orders to the contract to up its value, and by year 3 asking to be relieved of its responsibilities under the contract.

The centre now runs the service, having wasted a great deal of money as a charity in the application process. The company was good to deal with, but the process was hopeless. One can imagine the messiness this contractual process created in a local housing estate which had had poor health provision for years, because in practice the local GPs were not held accountable. This was not good for patients and it was certainly not good for business.

I recognise that this first amendment has limitations as to what it can achieve in practice but, because I am not allowed under competition law to put down an amendment that guarantees the social enterprise sector a fighting chance of winning a percentage of contracts, it is an attempt to push the boat along. It is a piece of a bigger jigsaw.

What I have to say through these two amendments builds on the practical points that I attempted to make in my Second Reading speech on 27 January on the Public Services (Social Value) Bill. It is good to see in his place the noble Lord, Lord Newby, who led on this Bill in your Lordships' House. These matters are all connected with the question of how in practice we add real social value to the processes of public sector procurement, and today we are particularly focusing on the health service.

I noticed in a recent newspaper article that Stephen Allott, who was appointed by Francis Maude in February to give smaller suppliers,

"a strong voice at the top table",

told a journalist recently that work is well under way to create a fairer playing field for smaller businesses. Of course, many of these smaller businesses are social enterprises, because social enterprises are businesses. I welcome this but Mr Allott conceded that the slow pace of change meant that many companies were still unable to take advantage of the opportunities which Francis Maude promised them and continued to grapple with major hurdles, such as lengthy and burdensome pre-qualification questionnaires or PQQs, high financial thresholds and high levels of liability insurance. Mr Allott said that he continued to hear about problems faced all over the country in both central government and the wider public sector. Mr Allott also rightly said that a cultural change among the 6,000 procurement professionals in central government was likely to be the biggest barrier to SME involvement. I agree.

On 20 November, Francis Maude also announced a plan for a commissioning academy. On 7 February it was announced that a 7 million leadership academy, run by Oxford University's Sad Business School, would be set up with a focus on large-scale infrastructure procurement-for example, a new rail route to Birmingham and so on. We are told that the top 50 civil servants will attend. Oh dear! If the process for the procurement academy gets it so wrong, it shows the depth of the problem. The chosen focus is solely on high-profile mega-contracts and a handful of senior staff. While we clearly need to get these right as well, where is the focus on the 6,000 central government staff and, I believe, the 60,000 local authority and health authority procurement staff? This is where the focus is needed on this detail, because these are the people who spend large amounts of taxpayers' money, which has a profound implication for local communities across the country. Billions of pounds-worth of contracts are procured through them, and these are the people who in my experience keep getting it wrong at the front edge and often have a very limited understanding of what social enterprise is about.

More seriously, my colleagues and I are trying to do what we can to help the Government with these changes. Indeed, I am talking to the HR department of one central government department in Whitehall at the moment to try to second staff to take a view up the telescope and discover for themselves, for example, the unintended consequences of unreasonably high levels of liability insurance, and here I suspect that I must declare an interest. These two amendments are trying to encourage government to take a few further practical steps down this road. The Minister knows, as we all do, that there is still a long way to go.

The present procurement processes are broken and affect not just social enterprises. A pharmacist whom I know in an inner-city area has a highly innovative approach. He has been mentoring young people from a local school in the middle of a housing estate, some of whom have gone on to read pharmacy at university. However, he is finding that his approach and skills are not recognised by the local health service. The PCT recently ran a procurement exercise for a new pharmacy nearby. Clearly, it would have been to the benefit of the local community and local health services if this pharmacist had been able to extend his work, take over this new outlet and grow further linkages with social enterprises locally. Clearly the PCT cannot just give him the contract but you would have thought that it might make sure that he knew about it by perhaps putting him in touch with someone who knew about PQQs, or ensuring appropriate weightings for added-value services and an in-depth knowledge of the local community. Not a bit of it. The PCT did not even tell the pharmacist about the PQQ process until 24 hours before the deadline. He thus did not even get shortlisted after the PQQ stage.

That says everything that is wrong with public sector procurement and why I have little confidence that any of the legislation, from the Localism Act to NHS reform, will achieve very much in practice if there is not a profound culture change in the way in which procurement teams think and operate. By the way, I could also if there was time, which there is not, illustrate the same problem from the major corporate's point of view. That very good company has taken the time and trouble to grow a partnership with the local social enterprise over many years. The company has understood the arguments as to why it makes good social and business sense to give greater weightings to the development of skills in local communities, only to find itself losing contracts because the procurement team in one major contract, despite all the talk in government, was simply ticking boxes and had no idea what the words meant in the real world on the ground or how meaningless the weightings were in practice.

I am sure that the civil servants who then gathered the numbers together in this contract felt that the procedures had been followed to the letter and every box was in fact ticked. In reality, something quite different happened. Perhaps some of us could offer some support to the NHS in running another procurement exercise, with the goal this time that when the PCT or its successor body commissions another pharmacy the staff get out of the office and discover the local context in which they operate and respond to it, and incidentally improve the quality of their working lives in the process by getting to know better some of the patients and professionals in the area.

I know from experience how well-meaning speeches can appear to press a green button in No. 10 or the Department of Health only to find that what happens in practice down in the machinery of government is something quite different. Unintended consequences are very real in this area of the machinery of government. We all know that healthcare markets are in their infancy. Philip Collins rightly said in the Times recently that they need to grow. It is time for many of the people writing to me to do what Mr Collins suggests and put aside sentimentality about the NHS and embrace patient choice, otherwise those who profess to be angels protecting the NHS will kill it. Social enterprise is up for this journey and wants to help and work with this and any successor Governments. Healthcare markets in England are in their infancy with regard to both supply and demand sides of the equation but both are underdeveloped. We need competition but it needs to be a level playing field based not on theories or half-baked notions of fairness and equality but on real practice.

To tackle this we need more than grants to build capability in the social enterprise sector; we need fundamental change in the procurement culture of the NHS. It is about more than just creating guidelines. It is much more fundamental than that. These two amendments offer the Government a few further pieces of the jigsaw and seek to help Ministers create more social value from public service procurement. I beg to move.

11:00 pm
Photo of Baroness Tyler of Enfield

Baroness Tyler of Enfield (Liberal Democrat)

My Lords, the hour is late but I wish briefly to explain why I have added my name to this amendment moved so compellingly by the noble Lord, Lord Mawson, whose credentials in this field are second to none.

In Committee it was argued that the Bill, as currently framed, could have serious unintended consequences both for social enterprises and for the wider voluntary and community sector. In my remarks, I want to focus on the wider voluntary and community sector. The basic concern expressed was that staff working on the NHS Commissioning Board, and indeed more widely, would interpret the Bill to mean that capacity building and other measures to support the development both of social enterprises and of voluntary and community organisations would be outlawed. A consequence of this would be to make it harder for charities and community groups, which are often very small with tiny management capacity, to provide the services and support that many people, particularly the most vulnerable and the hard-to-reach, rely on.

I know that many charities and community groups are particularly effective in reaching out to the people who the statutory sector finds hard to reach and they then can advocate on their behalf and indeed can help provide an authentic user voice in the system. In Committee the Minister gave assurances that essentially these concerns were unfounded and that the Government will,

"ensure that procurement practices do not unfairly restrict the opportunities for charities, voluntary organisations and social enterprises to offer health and care services".-[Hansard, 28/11/11; col. 108.]

When I followed this up afterwards with very helpful officials at the Department of Health they said that the NHS Commissioning Board would be publishing guidance on this issue for commissioners. That guidance I am sure will be helpful but is it enough? There is always a danger that guidance will not be adhered to, will be misinterpreted or indeed will not be seen.

I want to refer very briefly to my own experience in this field. Until a month ago I was chief executive of the charity Relate. Our local centres which are very small with very limited management capacity found themselves in a commissioning exercise in relation to the talking therapies part of the NHS services. It was not an encouraging experience, to be frank. These local centres often found that potential NHS commissioners would wrongly assume or argue that the local Relate centres would be quite unable to mesh with the NHS's systems, data, outcomes measurement or requirements. Often this simply was not the case but it reflected a lack of understanding on the part of the commissioners. I know that this has been the experience of a number of other charities both big and small.

In conclusion, this modest amendment would be more effective than simply guidance in preventing these unintended consequences. I very much look forward to hearing the Minister's concluding remarks.

Photo of Lord Newby

Lord Newby (Liberal Democrat)

My Lords, it is with very considerable diffidence that I rise to speak at this hour and for the first time on this Bill. Tomorrow we have, I hope, the Third Reading of the Public Services (Social Value) Bill which I introduced at Second Reading in your Lordships' House. That Bill will require all public bodies, including health service bodies, to consider the broader social value of tenders when deciding on who to place the tenders with. At one level, therefore, it could be argued that these amendments might not be necessary. What concerns me is what happens after, as I hope will be the case, this Bill passes tomorrow. What change will take place in the health service and elsewhere? One of the absolutely key changes that has to take place is the one set out in Amendment 64B; namely, that weightings must be attached to social value at the point at which companies, social enterprises, charities and so on are submitting their tenders. Unless the procurement regulations are changed to provide for such weightings it will be very difficult to have the kind of change in culture and practice which the Public Services (Social Value) Bill seeks to achieve.

I wonder whether the noble Earl, who has already very helpfully in a debate on a previous amendment committed the Government to giving guidance in respect of one matter, will be prepared to commit the Government now to the extent that the Department of Health would require NHS bodies commissioning services covered by the Public Services (Social Value) Bill to include within the tender document a weighting in respect of social value.

11:15 pm
Photo of The Earl of Sandwich

The Earl of Sandwich (Crossbench)

My Lords, having worked in the voluntary sector for many years, I could not resist saying one word in support of my noble friend. The only word that I missed from his speech and that of the noble Baroness, Lady Tyler, was "innovative". The voluntary sector is ahead of the National Health Service in so many ways, as are other sectors.

We are coming to an amendment, if not tonight then probably on Wednesday, regarding addiction to prescribed drugs. This is a field where we have practitioners who are the people who do it; they are not the bureaucrats behind. It is an area where the Bill needs strengthening. The noble Lord, Lord Rooker, and I tabled a very important amendment on this matter last time around. I can hear him saying, "Let us take every opportunity to strengthen the Bill when it comes to the voluntary sector and bureaucracy".

Photo of Lord Beecham

Lord Beecham (Labour)

My Lords, I warmly congratulate the noble Lord, Lord Mawson, not only on the substance of his amendments but on his sense of timing, because we are now very familiar with complaints from the voluntary and community sector in relation to the welfare-to-work programme. It was anticipated that the sector would be heavily involved in helping to place people into work, but, in practice, we have seen most of that endeavour carried out by much larger companies, with the sector playing a very limited role. It is precisely to avoid that outcome that the noble Lord has tabled his amendments. In particular, I am attracted to and wholly support subsection (2) of the new section proposed by Amendment 64A, which would confer on the board the capacity to,

"take specific action to support the development, including capacity building, of the voluntary sector, social enterprises, co-operatives and mutuals".

That seems to me the kernel of the two amendments, which we very much endorse. In a mixed economy of provision, that sector needs to be developed and supported.

A further potential opportunity is raised by new Section 13W, on page 23 of the Bill, which confers on the board a power to, "make payments by way of grant or loan to a voluntary organisation which provides or arranges for the provision of services which are similar to the services in respect of which the Board has functions". That may be implicit in subsection (2) of the amendment, although new Section 13W appears to limit that power to grant or loan to a voluntary organisation, which would not necessarily include the social enterprises, co-operatives and mutuals referred to in the noble Lord's amendment. Perhaps the Minister, if he is sympathetic to the amendment, will look at whether the provision about grants and loans in new Section 13W might be expanded.

It is never too late for a little pedantry. I want to raise with the noble Lord, Lord Mawson, a couple of questions about the wording of parts of his amendments. Proposed subsection (1) of the new section proposed by Amendment 64A refers to the board exercising its functions,

"so far as it is consistent with the interests of the health service".

I think that he means the interests of patients, rather than the service as such, which I would have thought more consistent with the general approach.

There is also a potential problem with subsection (3), which seeks, understandably, to provide that the board should take such steps as might produce,

"a level playing field between providers ... meaning that one sector of provision is not more disadvantaged than another and relative benefits can be taken into account".

That seems potentially to conflict with Clause 146 of the Bill, which would appear to rule out such a deliberate adjustment in favour of the sector. That is one good reason why my noble friend Lady Thornton will move an amendment to delete that clause and I hope that the noble Lord will support it.

A further question relates to a matter touched on by the noble Lord, Lord Newby, and relates to the second amendment, which, I confess, I do not quite understand. The amendment provides that the board may promote the inclusion of weightings in the procurement process,

"which reflect wider social, economic and health outcomes for each local health area".

Does that relate to the conditions that exist at the time of the procurement rather than outcomes-I do not see how outcomes would fit-and I am not clear what are the weightings? They cannot be only financial weightings. Is it to be a consideration to encourage the letting of contracts to the voluntary and social enterprise sector because of the particular nature of the locality? It is not clear and perhaps when the noble Lord replies he will-at least for my benefit- touch on that.

Interestingly, the two amendments relate to the part of the Bill dealing with the functions of the National Commissioning Board but purely to the health service provision, whereas proposed new Section 13M on page 19 refers to both health and social care provisions. I can understand why the amendment is limited in the way that it is, but I assume-again perhaps the noble Lord will confirm this-that he would envisage ultimately the same principle being applied to the provision of social care services. Is it not an illustration of the failure to develop the social care part of the Bill, which we touched on earlier?

Having said that, I strongly support the thrust of the noble Lord's amendment and repeat my congratulations to him.

Photo of Earl Howe

Earl Howe (Conservative)

My Lords, my noble friend Lady Tyler was quite right because the noble Lord, Lord Mawson, has spoken compellingly, as he always does, and I, for one, am grateful to him for the insights that he gave us.

I begin with an observation which I hope is incontrovertible: voluntary organisations, staff mutuals, co-operatives and social enterprises all play vital roles in delivering innovative, high-quality, user-focused services within their local communities. The Government firmly believe that such organisations have a strong role to play in the health and social care system. This is due to the experience, expertise and insights that they can offer to commissioners and the system more widely.

As I hope your Lordships will recognise, the Bill shows the Government's commitment to fair competition that delivers better outcomes and greater choice for patients and better value for the taxpayer. We want to see providers from all sectors delivering high-quality, person-centred health and care services: we do not want to favour one type of provider over another.

The Government are also supportive of everything that the noble Lord said about the importance of social value and the key role that social enterprises and other organisations can have in building and promoting it. On my visit a few months ago to the Bromley by Bow Centre with the noble Lord I was able to see first hand the excellent work that Andrew Mawson Partnerships has done in reviving and stimulating the local community. One cannot fail to be impressed by this model and vision, which we know works and want to see more of.

Having said that, we need to pause and reflect because these amendments are unnecessary. Amendment 64A is not appropriate because it cuts directly across the role of the NHS Commissioning Board. Simply put, the role of the board is to be a commissioner, not to build providers. We are clear that no provider, whether due to its size or organisational form, should be given preferential treatment in the new system. The provisions introduced by Clause 22 prevent the board, and the Secretary of State and Monitor likewise, giving preferential treatment to any particular type of provider, be they public, for profit or not for profit.

I know that this has generated some concern among voluntary and community organisations. I would like to assure noble Lords and the sector that the board will still be able to make grants and loans to voluntary sector organisations. It will not be able to do that for the sole purpose of increasing the proportion of services provided by the voluntary sector. The board could, however, invest in voluntary organisations where they bring the credible voice of patients, service users and carers to inform commissioning and the development of care pathways, or where the sector's expertise could contribute to the commissioning support required by CCGs and the board. Those are just some examples. The power-which we included in the Bill through an amendment in Committee in another place-mirrors the power that the Secretary of State has now under Section 64 of the Health Services and Public Health Act 1968, which is exercised by strategic health authorities and PCTs. Equivalent provision is also provided in the Bill for CCGs in Clause 25, inserted as new Section 14Z4 of the National Health Act 2006. Voluntary organisations should therefore have no reason to fear that they will be unduly affected by the new system. However, as drafted, Amendment 64A would disadvantage NHS trusts and foundation trusts for profit providers. As a result, I cannot accept it.

Photo of Lord Beecham

Lord Beecham (Labour)

I thank the Minister for giving way. Could he clarify the situation? Does the voluntary sector, as he has described it, relate also to social enterprises, co-operatives and mutuals; or are they regarded as being in a different category and therefore not eligible to receive grants and loans under the provisions of the Bill as it now stands?

Photo of Earl Howe

Earl Howe (Conservative)

My Lords, as regards grants and loans, we are clear that voluntary sector organisations and social enterprises-and I include bodies of that kind in the same grouping-are and will still be eligible for grants. The key is that those grants must not be given solely because they are voluntary sector organisations or social enterprises. It is a nice distinction, but really it means that voluntary sector organisations and social enterprises will still have to compete fairly for a contract on a fair playing field with other providers. As I have indicated, that means that NHS providers and others are not disadvantaged in the market for NHS-funded services. Nevertheless, the scope will still be there, and they are indeed classed as voluntary sector.

I am also grateful to the noble Lord for raising the important issue of social value. I can assure him that the Government are sympathetic to these principles. That is why the NHS procurement guide already enables NHS commissioners to take account of social and environmental outcomes in their procurement. The Department of Health has also, through its social enterprise fund, invested more than 80 million in the health and social care sector. To answer my noble friend Lord Newby, I am also fully aware of the support for these principles in the Public Services (Social Value) Bill currently being considered by noble Lords. Put simply, if that Bill receives Royal Assent, Amendment 64B will not be necessary. The Public Services (Social Value) Bill will make NHS organisations have regard to economic, social and environmental well-being in procurement, and the Government welcome that. The NHS procurement guide, as I said, already enables NHS commissioners to take into account other outcomes in procurement, and we will continue to encourage them to do that, so I think, in the NHS at least, commissioners will notice little change in the guidance that is given to them. Make no mistake, we see a valuable role in the future healthcare system for voluntary sector organisations, social enterprises, staff mutuals and co-operatives. However, that cannot be at the expense of other types of provider, including particularly NHS providers. I hope very much that your Lordships will agree that these two amendments are therefore unnecessary.

Photo of Lord Mawson

Lord Mawson (Crossbench)

My Lords, I am most grateful to the Minister for what he has had to say. I am trying not to be difficult but to be practical. The future of the health service depends on practical details being got right in the machinery of the NHS, which is where I seek to draw the Minister's attention. For me it is not about words about whether it is the health service, or patients, or words in an amendment; it is about what is actually going on in the machinery. I fear that the practice is still too little understood and that there is more work to be done here. I know that this is the beginnings of a journey and that we have further to go with the various elements of the jigsaw.

The purpose of the amendments was really to draw the attention of the Minister and the Government to this and to encourage them to focus on the detail, and to encourage colleagues within the NHS to spend a bit of time with practical entrepreneurs who have to try to make this work. We want them to examine in a few details some real pieces of work where people have attempted through weightings and other mechanisms a level playing field-because people like me do not want special favours, but we do want a level playing field. All that I can say is that in practice it is not level. If the Government want many of their aspirations for a broader involvement in the health service with social enterprise and others in the voluntary sector, unless those practical details are better understood and addressed, I fear something quite different will happen.

Having said that, I thank all those who have taken part in this debate and who helped me with the amendments-particularly the noble Lord, Lord Rooker, who is not in his place, but who has been very helpful. The noble Baroness, Lady Tyler, has also been very helpful. This is not a party-political debate; it is a practical matter that seeks to help to move the NHS on into new, more patient-focused reality. The amendments are simply an attempt to flag up yet again the issues. I beg leave to withdraw the amendment.

Amendment 64A withdrawn.

Amendments 64B to 66 not moved.

Amendment 66AA, in substitution for Amendment 66A, not moved.

Amendment 67 had been withdrawn from the Marshalled List.

Amendment 67A not moved.

Amendment 67AA, in substitution for Amendment 67A, not moved.

Amendment 68

Moved by Earl Howe

68: Clause 22, page 22, line 16, after "13E" insert ", 13G"

Amendment 68 agreed.

Amendment 69 had been withdrawn from the Marshalled List.

Amendment 70 not moved.

Consideration on Report adjourned.

House adjourned at 11.34 pm.