Relevant documents: 18th and 22nd Reports from the Constitution Committee

Clause 22 : The NHS Commissioning Board: further provision

Amendment 71

Moved by Lord Marks of Henley-on-Thames

71: Clause 22, page 24, line 27, at end insert-

"( ) For the purposes of this section a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service."

3:39 pm
Photo of Lord Marks of Henley-on-Thames

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

My Lords, all the amendments in this group have a single theme, although Amendments 294 and 295, to which I shall turn later, are in a slightly different category from the rest, and except for those two amendments all these amendments are supported by my noble friend the Minister. These amendments are intended to put in place a robust failure regime to permit the Secretary of State, or the board where it is the intervening body, to intervene in the operations of bodies within the NHS in the event of a significant failure by such bodies properly to exercise their functions. The purpose of the amendments is to ensure that it is for the Secretary of State to decide whether a body is failing or has failed to discharge its functions in a way that he considers is consistent with the interests of the health service. If he so decides, his intervention powers will be triggered and an intervention will be justified.

However, there is a proviso. The failure must be significant so that the Secretary of State cannot intervene in the case of an insignificant failure, but in practice he will be the judge of significance. Although strictly speaking his view of the significance of a failure could be challenged, in my view such a challenge would be hard to maintain in normal circumstances. I would add that in cases in which it is for the board to intervene in the functions of a clinical commissioning group, it is correspondingly the view of the board that will count.

Without wishing to go into detail about these amendments, perhaps I may canter quickly through the intervention powers with which they are concerned. Amendment 71 is the Secretary of State's power under new Section 13Z1 of the 2006 Act to intervene in the event of failure by the board. The Secretary of State may then step in to give a direction to the board as to the discharge of its functions, and if the board fails to comply with such a direction he may step in and exercise them himself or delegate them to another. Amendment 113 is concerned with the power of the board to require information and documents from clinical commissioning groups or to require an explanation from clinical commissioning groups under new Sections 14Z15 and 14Z16 in the event of failure by those groups to discharge their functions. Amendment 114 concerns the board's very wide powers of intervention to give directions to clinical commissioning groups, to change their accountable officer, to vary their constitution, to dissolve a group or to take over its functions if a direction is not complied with.

Amendment 176 concerns the Secretary of State's power under Clause 69 to intervene by giving directions to perform functions or to perform them in a specified manner in the event of a failure by Monitor. Amendment 258 concerns the Secretary of State's power under Clause 244 to intervene by giving similar directions in the event of failure by NICE. Amendment 291 concerns his power under Clause 268 to intervene by giving similar directions in the event of failure by the Information Centre, and Amendment 296 concerns his power, amended by Clause 290, to intervene by giving directions in the event of failure by the Care Quality Commission under Section 82 of the Health and Social Care Act 2008.

When debating and then discussing the Secretary of State's role and overarching duties under Clause 1, coupled with his duty to promote autonomy under Clause 4, your Lordships will remember how quickly it became clear that the new structure brought with it a considerable difficulty. Gone will be the Secretary of State's direct duty to provide. In its place, the provision of services will now be the responsibility of clinical commissioning groups under Clause 12. It follows that the new substitute duty on the Secretary of State could be a duty to exercise his functions only so as to ensure that services are provided in accordance with the Act.

To achieve that in a way that was consistent with the Secretary of State retaining ministerial responsibility effectively for the health service, it was essential to ensure that the functions accorded to him by the legislation were up to the task, and that really is the point of these amendments. It means that the Secretary of State has to be given effective powers to intervene. Such powers to intervene would not be effective if he could intervene only in the event of a body's failure to discharge its functions altogether. A power to intervene in the event of a failure to discharge them "properly" would not be up to the task either if it was going to be open to the body concerned to argue that it was discharging its functions properly whatever the Secretary of State might think, even if he took a contrary view.

Such a body might then have been able to say to the Secretary of State, "You may disagree with the way we choose to exercise our functions, but we disagree and it is up to us". The Secretary of State might in those circumstances have been left to return to Parliament with the lame and ineffectual excuse that there was nothing he could do because he could not show clearly that the body was not exercising its functions properly, whatever he thought of its conduct.

These amendments address that central difficulty. They do so in each case by making it clear that a relevant body is failing to discharge its functions if it is failing to discharge them properly, and it is failing to discharge them properly for these purposes if it is failing to discharge them in a way that the Secretary of State considers not to be in the interests of the health service.

3:45 pm
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Lord Hunt of Kings Heath (Labour)

My Lords, as this is a government-supported amendment, perhaps I may seek clarification from the noble Lord. In the past three months the Secretary of State has intervened in the health service any number of times: for example, on issues arising from primary care trusts massaging figures on waiting times and on the way in which A&E departments work. If an issue was raised in Parliament, would the Secretary of State be able to intervene without any question or worry about whether it meets the terms for failure set out in the amendment? It is important to clear that up.

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

It is indeed important to clear that up, and the answer is yes. If the Secretary of State considers that the body with which he proposes to intervene is acting in a way that is not consistent with the interests of the health service, then, for the purpose of these amendments, it is not acting properly and the Secretary of State's powers of intervention are triggered. That was the point of our amendment in Committee and it is the point of these amendments, which have now been accepted, as the noble Lord points out, by the Government. So the answer to his question is indeed yes.

A similar test applies in the case of the board's powers to intervene in the conduct of clinical commissioning groups, where a parallel test is applied. It is, then, the board's view of the interests of the health service that counts, just as, where it is for the Secretary of State to intervene, it is his view that counts.

As my answer to the noble Lord's intervention makes clear, the amendment puts the Secretary of State right back in the driving seat. He has of course to have regard to autonomy, and a failure has to be sufficiently significant for him to take the view that an intervention is warranted, but, subject to those two points, if he takes that view, he may intervene in the ways prescribed by the Bill, and his ministerial responsibility and his answerability to Parliament are assured.

I am grateful to my noble friend the Minister for his support and to those in his department who have helped with these amendments. I am grateful also to all those who spoke in Committee on the intervention and failure regime and who took part in the quite involved discussions about it that we had privately. By going carefully through the Bill to pick up all the relevant powers of intervention, and by then applying a consistent trigger within the control of the Secretary of State, we have developed a coherent and effective way of ensuring that the failure regime is workable.

Amendments 294 and 295, in my name and the names of my noble friends Lady Tyler and Lady Barker and the noble Baroness, Lady Murphy, are designed to rectify a small but not insignificant failure in the arrangements in the Bill as it stands. Clause 287 deals with the consequences of a failure to co-operate, a duty imposed by the Bill on Monitor, the Care Quality Commission, the board, NICE, the NHS Information Centre and strategic health authorities. If the Secretary of State is of the opinion that there is a breach, or the risk of a breach, of one of the specified duties to co-operate, he may under the Bill as it stands give a notice setting out the opinion that it is in breach to each relevant body, and he must publish the notice. If the breach continues and it is detrimental to the performance of the health service, he may then prohibit each body from exercising specified functions until the other body with which it is not co-operating agrees in writing what the first body may do. The Secretary of State's prohibition may last for a year in the first instance but can be extended year on year. In default of agreement by the bodies concerned there is a long-stop power to go to arbitration.

Quite apart from the utter complexity of these provisions, there is an Alice in Wonderland feel of unreality about them. With all this activity, there is a serious danger that nothing will get done. The power of the Secretary of State arises only in the event that there is a breach of duty to co-operate-and then it is only a power to stop anything being done. The first problem is that the parties can, honestly and in good faith, co-operate with each other so that there is no breach of the duty, but nevertheless fail to reach agreement so that a conflict persists. The trigger for intervention should not be a mere breach of a duty to co-operate but the existence of an actual or potential conflict. That is the point of Amendment 294.

The second problem is that the power should not be simply a power to stop all action but should instead be a power to act in such a way as to resolve the conflict. In respect of the intervention powers that we have already considered with the other amendments in this group, the power has generally been to direct that the body concerned exercises functions or exercises them in a specified manner. Why is that not an appropriate power here? I suggest that it is and that Amendment 295 would give the Secretary of State a power to give such a direction, thus effectively resolving any conflict.

The power in our amendment is an additional power. If a stop order of the kind proposed in the clause at present is considered likely to be effective in resolving a failure to co-operate or an outright conflict, then let that power be exercised. However, there must be some power accorded to the Secretary of State to step in and resolve a stalemate. That power is not currently in the clause and there is a risk that not only the bodies concerned but the health service, patients and the standing of the Secretary of State may suffer in consequence. I beg to move.

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Baroness Murphy (Crossbench)

My Lords, I will very briefly say that I added my name to two of these amendments because I have, in practice, come across occasions when organisations such as the former Monitor and CQC had difficulties in their relationships, which had to be sorted out with some difficulty. It seems that they could be in the very position that the noble Lord, Lord Marks of Henley-on-Thames, has described so eloquently, and that we need some way of resolving these conflicts to the benefit of patients so that decisions are made quickly. I support these amendments.

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Lord Hunt of Kings Heath (Labour)

My Lords, this is an important debate. I want the noble Earl, Lord Howe, to make it absolutely clear in relation to Amendment 71 that the intervention of the Secretary of State will follow if the Secretary of State considers it to be in the interests of the health service when one of these bodies is failing to discharge a function properly. The wording of this amendment means, in effect, that if issues are raised in Parliament about NHS performance on which the Secretary of State, quite naturally and properly, wished to intervene, the Secretary of State can indeed do that. In the end, only the Secretary of State can, in those circumstances, consider what is in the interests of the health service. It is absolutely right and proper for the Secretary of State to be in that position.

The second set of amendments starts with Amendment 294. The noble Baroness, Lady Murphy, is absolutely right to point out the problem of conflict between the CQC and Monitor, which is almost built in intentionally. The second report of the Francis inquiry into the Mid-Staffordshire trust may have some points to make about that. However, we are also adding to the architecture of the national Commissioning Board, and there is inevitably going to be tension between those three bodies. For instance, the national Commissioning Board and Monitor are to be given roles relating to the tariff, and it is clear that there is confusion over the roles in respect of quality issues. Monitor is now involved in making some inquiries of foundation trusts relating to quality, which is no doubt a defensive reaction to the criticism that will flow from the Francis inquiry. The national Commissioning Board is so powerful in the new structure that there are bound to be some issues about its relationship with the quality and economic regulators. We would like to hear from the noble Earl, Lord Howe, that the Secretary of State will not hesitate to intervene and knock heads together if the natural-and probably useful-tension goes beyond that and becomes a problem.

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Earl Howe (Conservative)

My Lords, this group consists of amendments to the Secretary of State and the Commissioning Board's powers of intervention over health bodies and to the Secretary of State's powers in the case of breaches of duty to co-operate. First, I should like to discuss the amendments relating to the powers of intervention. In doing so, I thank my noble friend Lord Marks for tabling the amendments and presenting them to the House so ably. He committed a great deal of time and effort to developing these amendments and I believe that they will make this a better Bill.

As noble Lords will be aware, the amendments sit within the package of amendments relating to ministerial accountability that was agreed through a process of cross-party negotiation and consensus-building. They address concerns from several Peers that, in the words of my noble friend Lord Marks,

"the bar may be set too high against the Secretary of State's intervention".-[Hansard, 11/10/11; col. 1572.]

I hope they provide reassurance to the House that this will not be the case. I support the amendments and hope that other noble Lords will follow me in doing so.

In answer to the noble Lord, Lord Hunt, my noble friend's amendments clarify that the Secretary of State can intervene where he considers that a national body is failing to discharge its functions consistently with what he considers to be the interests of the health service, provided that he considers that the failure is significant. They also clarify the same point for the Commissioning Board's intervention powers over CCGs and, in addition, where a national body may have functions beyond the remit of the health service, these amendments clarify that the Secretary of State can intervene where the body significantly fails to exercise the function consistently with the purpose for which it was conferred. I hope that that explains fully the point of the amendments and answers the noble Lord's question.

I turn to Amendments 294 and 295, tabled by my noble friends Lord Marks, Lord Clement-Jones, Lady Tyler and Lady Barker. They relate to the Secretary of State's powers to take action where national bodies are breaching their duties to co-operate. Amendment 294 would allow Ministers to issue a formal notice if two bodies were,

"in conflict with each other",

in the words of the amendment, not just if they were in breach of their duties to co-operate. In cases where the conflict between two bodies arises from a failure to co-operate with each other, this extension of the power is unnecessary. However, there may well be legitimate occasions when different bodies have different views, and we would not want to make that situation an automatic cause for ministerial intervention. The onus should be on the bodies themselves to work through any differences in a co-operative way. Ultimately, Ministers would be able to intervene when, and if, intervention is appropriate, as my noble friend's amendments will clarify. Ministers would be able to intervene when a body's significant failure was contrary to the interests of the health service, and if a body's conflict with another body constituted such a failure the intervention route would be open. I hope that that is helpful.

Amendment 295 would give the Secretary of State the ability to instruct bodies on how to carry out their functions in cases where they breach their duties to co-operate. That is also unnecessary. The clause allows the Secretary of State to place bodies under an agreement lock whereby they can carry out specified functions only with the agreement of the other body. The point of that is to ensure that bodies in dispute are strongly reminded of their interdependence as part of a national system and are pressed to resolve their differences without the need for ministerial direction. However, the agreement lock is only one of a number of levers open to the Secretary of State to promote co-operation and prevent conflict, as I have already said. My noble friend's earlier amendments will clarify that the Secretary of State could invoke his intervention powers to direct the bodies in the exercise of their functions if he believes that the bodies are not acting in the interests of the health service. For those reasons, which I hope my noble friend will accept are robust, I cannot support Amendments 294 and 295. I hope that I have persuaded him not to press them.

4:00 pm
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Lord Marks of Henley-on-Thames (Liberal Democrat)

My noble friend the Minister has certainly persuaded me not to press those amendments. I never had any intention that they should go to the vote. However, I still express some concern about the point made by the noble Lord, Lord Hunt, as to whether the stop power can actually involve the Secretary of State in having the power to knock heads together in the way that he describes. Of course, I entirely accept that the intervention powers under the other amendments go a great deal of the way to improving the position, but if he would like to give it further thought that would be very helpful.

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Lord Hunt of Kings Heath (Labour)

I thought that there was a question to the Minister as to whether he would consider the matter between now and Third Reading. Am I not right?

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Earl Howe (Conservative)

My Lords, I should be happy to meet my noble friend to discuss the matter further between now and Third Reading.

Photo of Earl Howe

Earl Howe (Conservative)

I am not giving my noble friend a green light to do that, because I genuinely do not think that these amendments are necessary, but that can be a matter for discussion.

Amendment 71 agreed.

Amendments 72 and 73

Moved by Earl Howe

72: Clause 22, page 25, line 9, leave out "This section has" and insert "Paragraphs (a) to (c) and (h) of subsection (1) have"

73: Clause 22, page 25, line 33, at end insert-

"section 13LA,"

Amendments 72 and 73 agreed.

Clause 24 : Clinical commissioning groups: establishment etc.

Amendment 74

Moved by Earl Howe

74: Clause 24, page 29, line 16, leave out "in writing by" and insert "by order of"

Amendment 74 agreed.

Amendment 75

Moved by Baroness Williams of Crosby

75: Clause 24, page 29, line 23, at end insert-

"( ) The Board must exercise its functions under this Chapter so as to ensure that every person resident in England has access to all services provided by a clinical commissioning group."

Photo of Baroness Williams of Crosby

Baroness Williams of Crosby (Liberal Democrat)

In replying to the last group of amendments the Minister referred to the fact that concern was expressed in many parts of the House about those issues. I am pleased to say that exactly the same is true of this group. Voices from the Cross Benches and from Labour as well as from the Conservative Party have been raised to address the need to ensure that CCGs always cover every resident individual so that we can ensure that the services of clinical commissioning groups are available to all the residents of the United Kingdom-or more precisely of England, although one could extend it to the United Kingdom.

One concern which has been expressed in the House on several occasions is whether, for example, people who are homeless or belong to Travelling groups, such as Gypsies or Didicois, would strictly be covered by the clinical commissioning groups given that there is not total coterminosity as there was in the old National Health Service. The purpose of Amendment 75, in particular, and the related Amendment 94 is specifically to ensure that nobody resident in the United Kingdom is simply left out of the new machinery. It is very important that this should be so as the people likely to be left out tend to be the most vulnerable members of society-the ones who slip through the cracks, if I can use that phrase. I am delighted to see that the noble Lord, Lord Laming, seems to share that view.

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Lord Mawhinney (Conservative)

Can the noble Baroness tell us whether this amendment would also encompass illegal immigrants?

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Baroness Williams of Crosby (Liberal Democrat)

The phrase used, which I think is also used in other parts of the Bill, is "resident in England". It is not for me but for others, particularly the immigration tribunal, to judge whether somebody who is an immigrant to this country counts as a resident, but I would assume that if he was an illegal immigrant he would not be. If he or she were here except as an asylum seeker then clearly they would be covered by the amendment, which does not purport to set out a new set of immigration regulations. It would be inappropriate for the health service to do that. Therefore, let me turn back for a moment to Amendment 94 as well.

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Lord Patel (Crossbench)

Surely, my Lords, if they are illegal immigrants who happen to be sick or seriously ill we would treat them, would we not?

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Baroness Williams of Crosby (Liberal Democrat)

Let us hope so. I simply wanted to suggest that there is nothing about the status of illegal immigrants in this amendment. Of course I share the view, which is accepted, that people who need treatment-and later we will discuss the amendment on HIV-should have access to emergency care, for example. That has always been true. However, this amendment relates precisely to clinical commissioning groups and therefore attempts to set their responsibility in terms of normal residency in the United Kingdom-not nationality, but residency. That seems appropriate.

Amendment 94 tries to do its very best to ensure that this is an absolutely total requirement. Together, Amendments 75 and 94 relate responsibilities not just to the clinical commissioning groups but, crucially, to the national Commissioning Board itself. Ultimately, it will be for the national Commissioning Board to ensure that anybody who is "resident in England" will be covered by all the services available to a clinical commissioning group. The crucial point of principle is that we are not talking here, as we might in some other countries, about emergency care only as a last resort. We are talking about all the services that clinical commissioning groups provide, and we are indicating that that should cover all residents of England. So this is an important group of amendments.

I will not move on to talk about some of the other amendments in this group, which concern themselves with the structure of governing bodies or CCGs. I am sure that the noble Lord, Lord Hunt, or the noble Baroness, Lady Thornton, will address those issues. In some ways they are slightly different; it is rather surprising that they are in the same group, because they address very different issues.

Because time is always shorter than we need for discussions on the Bill, I will not say a great deal more about this. I think that the whole House will agree that it is right and appropriate that there should be an ultimate duty on the board to ensure that every clinical commissioning group makes available the services that it provides to those who are members of it for everyone who is resident in the area, and that the board ensures that that happens across the whole of the nation. I beg to move.

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Baroness Cumberlege (Conservative)

My Lords, my two amendments have also been grouped with this one. In our debate on 13 December, I explained why I felt so strongly that the evidence from patients gained by the work of local healthwatch and HealthWatch England should inform local commissioning. I have since had two very helpful meetings with my noble friends Lord Howe and Lady Northover about local healthwatch and its role. I think that we are moving in the right direction, although there seem to be some outstanding concerns.

Among my serious concerns, and the reason why I brought this amendment back, is that I feel we are not making commissioning robust enough. The process must be founded on evidence. Local healthwatch offers independent local evidence gathered through the unique statutory function of enter and view. This is evidence straight from the experience of patients lying in wards or sitting in mental health units, as well as those who can fill in surveys. Surveys are useful but do not necessarily reflect the views of the most vulnerable, people who may not be able to fill them in due to frailty, language difficulties or other reasons.

The amendment also relates to the experience from HealthWatch England. If the local healthwatch has not done work on a particular provider but those in other areas have, that intelligence will be available to a CCG commissioner who is considering giving the contract to a new provider. It has been pointed out to me that Clause 182(6) already requires CCGs to have regard to those reports and recommendations, and that is very valuable. However, this means only that if local healthwatch produces relevant reports and recommendations, the CCG will have to have regard to them.

It could be that those reports and recommendations arrive at the wrong point in the commissioning cycle or do not arrive at all. Then the CCG will not have an opportunity to have due regard to them. They will be commissioning from providers without evidence from patients of their actual experience, which can come only from local healthwatch, with its responsibilities to enter and view. The amendment was laid to ensure that that could not happen. It was redrafted in response to my noble friend Lady Northover's characterisation in Committee that if local healthwatch had an obligation to feed in such evidence, it would be too burdensome for a small organisation composed of volunteers. I am now suggesting that the responsibility should be with the CCG to take evidence from local healthwatch. It would be helpful if my noble friend could give assurances that CCGs will be guided to seek out from their local healthwatch evidence of the patient experience to inform their commissioning to the standard set out in new Clause 14Q.

We know that local healthwatch will have a seat on health and well-being boards, and that will ensure that the knowledge that local healthwatch has will influence commissioning. Again, I welcome the membership of a lay member. This will have an input into the strategic role of those boards, but how can it give them a say in commissioning when the health and well-being board does not actually commission health services? The board's function is to explore opportunities to integrate services, and this is not the same as deciding whether the outcome of a good patient experience with provider A is better than with provider B. These decisions rest with the CCG under Clauses 140 to 145.

In our debate on 15 December, my noble friend Lord Mawhinney queried whether this amendment was yet another,

"barrier to the commissioning process".-[Hansard, 15/12/11; col. 1505.]

My view is that only a provider with something to hide would see this as a barrier. In market terms, this is market research carried out by experienced, impartial, accountable members of the public at no cost to the provider. No provider worth its salt would quibble with such a resource for its quality assurance, and no commissioner trying to commission for the outcome of a better patient experience should ignore this evidence. The best route from patient reality to commissioning theory is through local healthwatch and the Bill should provide for this.

A report has recently been published on the Forward Look seminars that were held by the public inquiry into Mid Staffordshire NHS Foundation Trust, as has already been mentioned by the noble Lord, Lord Hunt. The inquiry concluded that CCGs need,

"systematic processes for capturing patient experiences",

as well as,

"more robust early warning systems of poor quality care based on qualitative feedback".

My amendment would help to address this. I hope my noble friends will seriously consider the value of this approach and, if they cannot accept the amendment as it stands, seek to achieve it through a government amendment and bring it back at Third Reading.

The amendment is also grouped with Amendment 111, which carries forward the logic of connecting the key evidence-gathering function of local healthwatch, including its enter and view reports, with commissioning by CCGs, as set out in Amendment 95. Just as the health and well-being board, with its strategic function rooted in the community to which it is democratically accountable, should be consulted about the commissioning plan for local people, so should local healthwatch. After all, it is the repository of views and experiences garnered from health services. Both perspectives are indispensable to making commissioning work well. I hope my noble friend will look kindly on this simple amendment, too.

4:15 pm
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Baroness Finlay of Llandaff (Crossbench)

My Lords, I also have an amendment in this group. For the convenience of the House, I have left it there because it concerns the clinical commissioning group's function. On 27 February, the Minister rejected the amendment that I had tabled, which provided that the Commissioning Board must ascertain that clinical commissioning groups commission for less common conditions and that they collaborate.

Today is Rare Disease Day and my amendment specifically addresses rare diseases. In responding to me on 27 February, the Minister cited sources of advice that are available to patients, healthcare professionals and carers, specifically NHS Choices and NHS Evidence. I have been to their websites to find out how they inform commissioning for some of these rarer diseases. They are very helpful websites and they are a resource, but they are enormously complex. Trying to read across from one condition to another to put together a cohesive package for commissioning is very difficult. I am concerned that replicating this in lots of small clinical commissioning groups all around the country will be, in effect, a duplication of effort.

For some of these conditions there is no NICE guidance at all as yet. NICE does a fantastic job by producing the guidance that it does but it is not there for everything. The European Union's recommendation of an action in the field of rare diseases has been published. The Minister informed us that there will shortly be a consultation on the Government's response to that.

What are these conditions? They range across 5,000 to 8,000 different diseases, which occur at an incidence of less than five cases per 10,000 of the population. However, most of these people suffer from diseases that are so rare that they affect less than one person in 100,000 of the population.

The European Union recommends that member states should have plans and strategies in this field and adequate definition, codification and inventories of these diseases and research into them. It also recommends that member states should establish centres of expertise with a European reference network, gather expertise and empower patient organisations. These objectives are compatible with the amendments in the name of the noble Baroness, Lady Cumberlege. The European guidance also states that these services should be sustainable. However, given that the prevalence of these diseases is so low, it would not be cost-effective routinely to commission services in populations of fewer than 250,000.

These amendments are supported by more than 98 patient organisations, 70 of which are members of the Neurological Alliance. There is concern about the application of the appropriateness test to clinical commissioning groups. The biggest area in this context often relates to rehabilitation and aftercare and comprises people with severe anorexia and those who are rehabilitating after a severe head injury or major trauma or stroke and quadriplegia. An increasing number of survivors are coming back from our theatres of war who would previously have died of their injuries. They require complex rehabilitation. Sadly, there are already instances where some of these soldiers are not able to obtain the prosthetic support that they require and are having to raise funds themselves to obtain their prostheses, and some are going to the United States for this provision.

Some people may think that stroke is a common occurrence and therefore does not come into this category. However, some types of stroke are complex and occur infrequently in the population. Stroke comprises a very broad spectrum of diseases. Some of the rehabilitation and services required fall to local authorities to provide. There is concern about the extent to which the appropriateness test will be applied and where discretion will lie as regards these conditions. As I said, the clinical commissioning groups cover relatively small population areas and therefore it is not cost-effective for them to commission services for less common conditions. I am concerned that they will have no duty to collaborate with other clinical commissioning groups in commissioning services. One hopes that they will but there does not seem to be a requirement that they should. If commissioners lack adequate guidance on best practice in commissioning comprehensive and equitable services, they risk commissioning services which do not provide value for money and do not meet the needs of people with these less common conditions. The National Audit Office report on services for people with neurological conditions showed that there is a great need for improvement in service provision for this population, with significant variation in access to services and variation in quality in different areas. Even where there are localised examples of good practice, sometimes leadership is lacking on the outcomes analysis so these bodies are not able to disseminate their good practice for wider implementation.

The Bill certainly provides opportunities for collaboration between clinical commissioning groups, but not encouragement or incentives to do so, and these groups are left to determine when to co-operate. This amendment would provide an important indicator for clinical commissioning groups and would bridge the strategic gap between the commissioning that will be done centrally by the Commissioning Board and that which will be done at a local level. I give a very simple example of a neurology service involving someone with motor neurone disease who requires non-invasive ventilation. That service should be provided in patients' homes or somewhere nearby. If it is not provided to a high standard, patients have a much higher chance of ending up as emergency admissions-in fact, this is almost inevitable-and the cost of that provision is three times that of providing adequate NIV services. It therefore becomes very cost-effective to ensure that there is appropriate commissioning for this group across the piece. The risk is that the disparity in service provision and outcomes will widen. I stress that the difficulty comes because these patients sit in the spectrum between what will be commissioned centrally by the Commissioning Board, what will fall to the clinical commissioning groups and, when patients get into long-term care and rehabilitation and being sustained at home, what will fall to the local authority-and that has not been made clear.

I will listen very carefully to the Minister's response because this matter is so important that we may need to test the opinion of the House. I am hoping that I will get satisfactory answers from him and that these discrepancies will be clarified. If not, I ask him, if he is unable to provide adequate answers, to consider these issues at Third Reading. I beg to move.

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Lord Newton of Braintree (Conservative)

My Lords, perhaps I may briefly intervene, although not in any way to differ from my noble friend Lady Williams of Crosby; I am much too diffident to dare to do that. In fact, I want to raise a few nitpicking points that occur to someone who has had a bit of ministerial experience over a fairly long period. They occur in relation to several of these amendments. First, it is far from clear, in light of the exchange with my noble friend Lord Mawhinney, just what "resident" means in this context. Someone needs to answer that clearly before we go down the path of the amendment. Secondly, on a related matter, does the proposal mean-whatever "resident" means-that people would be entitled to free NHS services, regardless of their status? Under existing law, a lot of people living in this country are liable to be charged for NHS services. That is not clear in some of these amendments.

In particular, it is not clear whether illegal immigrants are liable to be charged. I do not know the answer to that, and I probably ought to. If, however, they are liable, it is another factor to be taken into account when looking at what all this means. If we really mean that clinical commissioning groups must provide services-and I shall come back in a moment to the term "provide", which also occurs in another of the amendments-to everyone resident in their area, how are the CCGs to establish that? Illegal immigrants, along with a number of other people, go to great lengths to stay beyond the radar. They will not be on the electoral register. They will not be registered with doctors. They will be trying to make sure that no one knows they are there. Do CCGs have to set up an immigrant police investigation team to find out who is resident in their area? These may sound like nitpicking points but they would be real issues if an amendment along these lines were passed, even though I am sympathetic to the aim. Parliamentary draftsmen would need to do some work.

What does "provided by" mean? Clinical commissioning groups will not provide many services; they are essentially commissioning groups. Do we mean, "any services commissioned by" commissioning groups, many of which will involve secondary services-certainly-tertiary hospitals, and a whole range of other people? The amendment and several others in the group, however worthy their purpose, require a lot of careful drafting before we can accept them as amendments to an actual piece of legislation. My noble friend may care to comment on that.

Lastly, this rather curious group also includes the amendments of my noble friend Lady Cumberlege relating to HealthWatch England. I cannot see any problem with them. I support her entirely. It seems to be a no-brainer that if we are to set up a healthwatch system, people should have to take account of what their local healthwatches have to say.

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The Earl of Sandwich (Crossbench)

My Lords, before the noble Lord sits down, may I correct him on the question of illegal immigrants? There is no question of illegal immigrants having access to the health service. Certain vulnerable categories, such as mothers and children and so forth, are given access, but it is quite wrong to suggest that that is what is generally happening.

4:30 pm
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Lord Harris of Haringey (Labour)

My Lords, the intervention we have just heard raises a particular point about the position of illegal immigrants. There is a problem here. The number of people who are not here legally varies in different areas. There are concentrations in particular areas where the impact on local health services will be disproportionately high. A simple assumption that this could be lost in the wash does not work. That issue needs to be addressed.

This is a pot-pourri of amendments. Amendment 75 raises an extremely important point, which I hope that we can include in the Bill in some form. The very important Amendment 96, in the name of the noble Baroness, Lady Finlay, raises a completely different set of points.

I want to pick up on Amendments 95 and 111 in the name of the noble Baroness, Lady Cumberlege, and, in particular, the points she made about why she introduced the amendments in this form on the basis of conversations that she had with the government Front Bench and, in particular, the noble Baroness, Lady Northover. She had been led to believe that this would be too burdensome a task for local healthwatch organisations and that they would be too small to carry out the functions that she talked about.

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Baroness Cumberlege (Conservative)

That was not in a private conversation; it came out in Committee and was open to everyone who attended that sitting.

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Lord Harris of Haringey (Labour)

That does not alter the point I was about to make, which is that, on the basis of those remarks, it is important to recognise in the Bill that that is the expectation on local healthwatch organisations. That reflects the growing concern of people outside that, despite the Government's best intentions for how healthwatch will be organised, those organisations will not be anything like as effective as your Lordships would hope. We hear, for example, that there is widespread concern that the Government will remove the statutory nature of local healthwatch organisations-we will no doubt come to that in due course. We are told that the Government are indifferent to the consequence of not ring-fencing their finances. The concerns expressed by the noble Baroness, Lady Northover, in Committee, that those organisations may be too small and unable to cope with some of these loads are real. Therefore, it is all more important not only that we provide a framework which enables healthwatch organisations to be effective but that we make clear in the rest of the legislation the importance of giving a clear statutory role to healthwatch organisations-in particular, in the vital role of commissioning local services.

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Lord Walton of Detchant (Crossbench)

My Lords, this is a disparate group of amendments. I shall speak in particular to Amendment 96, which has been so ably proposed by my noble friend Lady Finlay. I do not propose to redeploy the arguments that I expressed when a similar amendment was discussed recently. One thing that is beginning to emerge as the Bill continues its progress through your Lordships' House is that the size and, perhaps, quality of the clinical commissioning groups will be extraordinarily variable. Some will be large and contain a large number of GPs, and so on; therefore, with the secondary care individuals who will become members of the group and others, some will deploy a wide range of expertise.

However, it is perfectly clear that in some parts of the country the clinical commissioning groups are going to be very much smaller. The range of issues in highly specialised services will be very limited and the smaller clinical commissioning groups will lack the knowledge and expertise to handle those areas well. For that reason, it is crucial that the national Commissioning Board should have the major responsibility for commissioning highly specialised services, in which I include not only the neurological services, about which I spoke in some detail last week, but cardiological services, cardiothoracic services and many other specialties.

On Rare Disease Day, the point that my noble friend Lady Finlay made about rare diseases is very important. There are thousands of rare diseases affecting a very small number of patients throughout the UK. The Rare Disease UK consortium, chaired by Dr Alastair Kent, the former chairman of the Genetic Interest Group, is deeply concerned, as is the Neurological Alliance, about the mechanism by which these diseases will be given attention in this legislation and proper understanding, control and attention by the national Commissioning Board. As my noble friend said, there are several thousand rare diseases, some affecting very small numbers and some larger numbers.

I spoke in detail last week about muscular dystrophy. As an example, last week I was asked by a former medical colleague in Newcastle to see, with him, a patient-not as a consultation but to look at the problem posed by a condition called haemolytic uraemic syndrome. This is due to a genetically determined disorder of the complement system. It is a disease that affects the kidneys, is steadily progressive and is ultimately fatal. However, recent research has identified and produced a licensed medicine which is effective and which in the patient whom I met, with her husband, has proved to be virtually life-saving. The problem is that there are only 200 patients in the UK with this disease and the cost of the medicine for that patient is 250,000 a year. At the moment, it is paid for by the drug company, which is carrying out trials.

That is one example but there is a huge number of genetically determined rare diseases for which new drugs are coming on stream. There are many cases where the causal, abnormal or missing gene product has been identified and where, slowly but surely, drugs which are beginning to have a beneficial effect on these progressive, disabling or ultimately fatal diseases are beginning to emerge. These are called orphan or ultra-orphan drugs. Whatever happens in the future with the National Health Service, the possibility-the probability-of having a special mechanism to deal with the needs of people with these rare diseases, as well as the needs relating to the orphan and ultra-orphan drugs, is going to be a massive problem. It is crucial that there is a very clear indication in the Bill that rare diseases deserve special consideration. For that reason, I warmly support Amendment 96, which has been proposed so ably by my noble friend Lady Finlay.

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Lord Newton of Braintree (Conservative)

Perhaps the noble Lord could comment on one specific point. In my experience, the biggest problem in respect of these rare diseases is not providing the services-although that can be a problem-but the fact that they are not identified in the first place because no doctor has ever seen one before. Identification is at least as big a problem as treatment but that is not addressed in this amendment.

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Baroness Murphy (Crossbench)

My Lords, I quake to disagree with my noble friends Lord Walton and Lady Finlay about Amendment 96 but I do so as someone who has been the chief executive of a very large health commissioning organisation. It is utterly crucial that rare conditions are considered individually and that the level at which they are commissioned is decided by the national Commissioning Board coming together with the clinical senates and the clinicians involved in the area. They are best placed to decide on the best level of commissioning based on epidemiology and public health expertise. In fact, this amendment would achieve the very opposite of what the noble Baroness, Lady Finlay, wanted: to highlight some of these very important rare conditions which we do not want to forget. It is not helpful, however, to have rare conditions identified in this form in the Bill. We must leave it to the clinicians to make a judgment about how they are commissioned in groups. That will protect patients better, in my view, than any statutory guidance of this kind. I hope she will reconsider and not press this amendment.

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Lord Harris of Haringey (Labour)

The noble Baroness is not only disagreeing with the noble Baroness, Lady Finlay, and the noble Lord, Lord Walton, but disagreeing with all the organisations associated with these particular rare diseases. They think that the way forward is in the amendment of the noble Baroness, Lady Finlay.

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Baroness Murphy (Crossbench)

I will respond briefly to that. We all have tremendous sympathy with the fact that very many rare conditions are not currently commissioned to the standard that we would wish. It is also true, by the way, that many ordinary conditions are not commissioned to the standard of service across health and social care which we think would be best for the patients. That is undoubtedly true, but we would not necessarily fix that by having a special focus on the way we say where it is going to be commissioned. What we need are specialists in each of those rare conditions' groups to be consulted, to ask patients and their relatives about how they should be commissioned, and some professional advice about the epidemiology of it.

Noble Lords should remember that the national Commissioning Board has the ability in this Bill to use, for example, the good offices of their local offices that will regionally be able to ensure that clinical commissioning groups can come together to commission properly for rare conditions. That is already happening around the country, and that is more likely to be a way forward than this particular statutory amendment. I am not saying that those rare conditions do not need some focus and better commissioning: they certainly do.

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Lord Patel (Crossbench)

My Lords, my name is on Amendment 96. I feel we might be running the risk of missing the important point in a rush to say whether this amendment should be tested. I would very much like the Minister to accept that there is an issue to be addressed here: it is on how the commissioning would be carried out for patients with less common conditions and rare diseases. The Bill is not clear, hence this debate and the amendments put forward by my noble friend Lady Finlay, previously in relation to commissioning boards and now in relation to commissioning groups.

This amendment alludes to the duties of the commissioning group,

"to ensure the provision of services for patients with less common conditions".

Small commissioning groups may not be able to ensure the provision and may well have to co-operate with other commissioning groups. The direction may well actually have to come from the national Commissioning Board.

The noble Lord, Lord Walton of Detchant, referred to the funding issue. There has to be some pool funding from the national funding pool because the commissioning group may not be able to afford the large amount of money required for treating those people. I am familiar with that, because I was involved in setting up the process for handling it in Scotland. I ask the Minister to accept that there is a lacuna here of how commissioning for rare diseases would be done. He needs to reassure us that it will be robustly done, with clear leadership and responsibility. I hope that he will be able to do that.

I also tabled Amendment 119 in this group. I hope and have no doubt that the noble Earl will deal with it very swiftly. The amendment relates to quality payments. New Section 223K(6) states:

"Regulations may make provision as to how payments under subsection (1) may be spent (which may include provision as to circumstances in which the whole or part of any such payments may be distributed to members of the clinical commissioning group)".

These are quality payments. As I understand it, members of clinical commissioning groups are individual providers of primary care-mainly GPs-so I am puzzled at how the quality payments will be handled. The Bill states that they will be given to individual primary care providers as merit awards or bonus payments-personal gains. My amendment states that they should be given not to individual providers but to commissioning groups, which should use them to improve services. That seems to be more appropriate. I look forward to the Minister's comments.

4:45 pm
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The Earl of Listowel (Crossbench)

My Lords, I support the amendment of my noble friend Lady Finlay of Llandaff. I noted what my noble friend Lady Murphy said. The Minister is aware that I have a long-standing concern about less-than-mainstream services for children and families, particularly in the mental health area. It became apparent several years ago when considering legislation around safeguarding children that there was a great shortage of appropriate interventions for children who sexually harmed other children. The approach was very piecemeal across the country. I became aware of a service working in London with these children. A team with a psychiatrist, a couple of clinical psychologists and a couple of social workers helped children who sexually harmed other children. Its interventions prevented those children going on to become adults who sexually harmed children. A large proportion of children who are sexually harmed are harmed by other children.

This is a very important service, and what I have heard again and again over the years was how the service had struggled to find funding. It appealed to its primary care trust, which simply did not recognise the importance and value of what it did. My concern is that, in a climate where there is such a shortage of resources, the national Commissioning Board may be too far away from these very small services in local areas. Therefore, it is important to do all that can be done to ensure that clinical commissioning groups have the expertise to recognise the value of these niche services and do what they can to support them. I look forward to the Minister's response and hope that he will comfort me.

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Baroness Tyler of Enfield (Liberal Democrat)

My Lords, I rise briefly to support Amendments 75 and 94, tabled and spoken to so clearly by my noble friend Lady Williams of Crosby, which are very important. The nub of the amendments is that they are designed to address the problem that we know still exists of a limited number of people who are not on GPs' lists and who, as has been said, fall through the cracks and often-inappropriately-turn up in accident and emergency units. I can verify this because on a recent weekend I spent 12 hours in accident and emergency with two of my relatives. During that time, time after time people came in with needs that were real but which it was not for A&E to meet. Problems with access lead to some of the inequalities in health outcomes about which we on all sides of the House are very concerned.

When considering the Bill recently, the Minister agreed to new duties to ensure that CCGs and the national Commissioning Board include in their annual report details of how they have met their health inequalities duties. I very much welcome these changes to the Bill, but I am not convinced that this reporting after the event is going to be sufficient to tackle some of these very deep-seated inequalities, which often lead directly from difficulties in access to NHS provision.

Will my noble friend the Minister consider giving some very real teeth to the absolute imperative, as I see it, of universal provision-an absolute founding principle of the NHS, which I know is supported across the House-and see whether these duties could be extended in some way so that CCGs and the board also need to include health inequalities and issues of access in their commissioning plans and in the board's performance assessment of CCGs? I would be very grateful if the Minister could reflect on this in his concluding remarks.

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Baroness Masham of Ilton (Crossbench)

My Lords, I have added my name to Amendment 96. These patients can have very complex and varied needs. Will the Minister give an assurance that they will not fall through the net between the Commissioning Board and the CCGs? There will be a great need to have excellent communication between the Commissioning Board and the CCGs. There is concern, as has been shown here today-and if there is concern here, my goodness, what will be the problem outside when funds have to be found for these patients? I implore the Minister to sort this out.

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Baroness Howarth of Breckland (Crossbench)

My Lords, I wish to add my voice to the need for clarification, as raised by the noble Baroness, Lady Finlay, between the services provided by the national and regional boards for rare diseases and conditions. I declare an interest as a patron and trustee of an organisation that deals with children with hypoplastic left heart syndrome and some similar conditions of right heart defects.

As the Minister will know, a recent Safe and Sustainable review has been looking at how those services should be delivered. Obviously the complex surgical procedures need to be carried out in specialist hospitals, but the aftercare very often takes place locally. The Safe and Sustainable review having stalled during the discussion about this Bill, parents are extraordinarily concerned about how that will be taken forward. I say this as an example but it is true of all families who have children or adult relatives with rare conditions that they want to be absolutely assured that the right service is commissioned at the right level, and need to know how that assessment is going to be made. At the moment it is extraordinarily unclear and I think that is why the noble Baroness, Lady Finlay, has tabled her amendment and the other issues have been raised.

All I am seeking is that clarification, partly because I have got to go and tell the parents this weekend at their AGM.

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Baroness Hollins (Crossbench)

My Lords, I have been reflecting on the amendment tabled by my noble friend Lady Finlay. I declare an interest as one of my daughters has one of the conditions that she mentioned in her speech.

This lacuna must be addressed because the discretionary powers of clinical commissioning groups to apply the appropriateness test provide no assurance for those with these rare diseases. Today's debate shows that it is essential that this is addressed in the Bill. I hope that the Minister will be able to suggest a way in which perhaps a government amendment might be able to address this lacuna.

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Lord Hunt of Kings Heath (Labour)

My Lords, this is a very interesting group of amendments. They do not entirely fit together but all of them raise important points.

I very much support the noble Baroness, Lady Cumberlege, in her comments about HealthWatch. This is my mea culpa moment about the demise of community health councils. It is clear that having a statutory body with the right to be heard and listened to is very important at local level. Of course, I would link the noble Baroness's amendment with the desire for HealthWatch England to be wholly independent of CQC, which is another important ingredient in ensuring that the patient voice is heard as effectively as possible.

We support Amendment 96. There has been a persuasive argument about the need to ensure that services for patients with less common conditions are commissioned effectively. We debated these issues on Monday. We know that primary care trusts have often found it difficult to give proper attention to these services. With clinical commissioning groups, this will become even more problematic. I hope that the noble Baroness will be able to pursue that.

I entirely support the noble Baroness, Lady Williams, on Amendment 75. This is a very important statement of principle. I understand the points made by the noble Lords, Lord Mawhinney and Lord Newton. I am sure that this matter will be put to the vote. The whole point about Third Reading is that it can be used for parliamentary counsel to tidy up the wording of such amendments. I do not think that we should let minor technical difficulties get in the way of passing an amendment which has a very important principle. It may be that the noble Earl, Lord Howe, will agree to it. Let us hope so.

My amendments relate to the corporate governance of clinical commissioning groups. On Monday, I developed my arguments when we discussed conflict of interest issues. I do not want to go over the same ground again, save to say that clinical commissioning groups will have a crucial role to play in the new system. They are to be handed billions of pounds by the NHS Commissioning Board to commission services. Essentially, a clinical commissioning group is not an NHS board as we know it. It is a group of small business people-GPs-who will be able to benefit financially from the decisions of that board. I cannot conceive that the Government could be going down this route if they did not want more resource spent in primary care. That must be one of the end results of the Bill. The Government want to spend more money in primary care and to reduce expenditure in acute hospital services, which is a very fair aim. But that means that the board of clinical commissioning groups will be spending public money and placing it in the hands of GPs who also sit round the board of the clinical commissioning group.

The conflict of interest amendment in the name of the noble Baroness, Lady Barker, which the noble Earl accepted, was very weak and does not provide the kind of assurance that we require. I have to say to him that there will be trouble in the future with clinical commissioning groups in this area. The proper safeguard would be for clinical commissioning groups to have a proper board. Proper boards in the public sector usually ensure that there are a majority of non-executives, people who are appointed independently, who can make sure that the public interest is protected. We have the extraordinary proposal that we are guaranteed only two non-executives on the board of clinical commissioning groups. We are not even guaranteed that one of them will be the chair of that clinical commissioning group. Looking over all the corporate governance difficulties in this country in the past 20 years, can noble Lords imagine that any of those inquiries would endorse the kind of governance arrangements that the Government are putting forward for clinical commissioning groups? I say to the noble Earl, Lord Howe, that I just wonder how long it will be before the first group of members is prosecuted for corruption. This is an open invitation for corrupt action. The Government show no signs of understanding or realising what difficulties they will put the whole service in by these proposals.

I have put forward a number of amendments to put in place proper corporate governance protection. I also believe that the constitution of clinical commissioning groups should be subject to approval by your Lordships' House. In relation to primary care trusts, orders go through. I do not see why the same thing should not happen to clinical commissioning groups. I also endorse everything said by the noble Lord, Lord Patel, about quality payments. It is absolutely abominable that quality payments could be made to clinical commissioning groups where those payments end up in the pockets of individual GPs. That money ought to go into the commissioning of services. Again we see the conflict of interest. There is so much potential for conflict of interest between commissioning decisions in the public interest and commissioning decisions which are to the financial advantage of the members of the clinical commissioning group.

Finally, Amendment 118 would remove the quality premiums altogether. This is very much a probing amendment. I am content to support the noble Lord, Lord Patel, in his argument that, if quality payments are to be made, they should simply be put back into the commissioning pot.

5:00 pm
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Earl Howe (Conservative)

My Lords, if there is a common theme to these amendments, I suggest it might be the fear of falling through the cracks, and I hope I can demonstrate that there are no cracks to fall through. However, there is a lot to cover and I apologise in advance if I speak for longer than normal.

First, perhaps I may say how wholeheartedly I agree with my noble friend Lady Williams as to the crucial role that CCGs will play in meeting the health needs of their entire population. In preparation for today's debate I reacquainted myself with the requirements in the Bill to ensure that this happens. The requirements are robust and I can confirm that CCGs must exercise their responsibilities so that services are commissioned to meet the reasonable requirements of all their patients. My noble friend Lady Williams can be absolutely assured that every person registered with a GP practice or usually resident in England-that is the term-will be the responsibility of a CCG and the board must ensure that the whole of England is covered. This means that Amendments 75 and 94 are unnecessary.

I was asked by my noble friend Lord Newton about charges for patients. Noble Lords need to understand that as regards issues of entitlement to access to the NHS, the Bill does not change the status quo. I listened with care to my noble friend Lady Tyler, and I would like to thank her for spotting the inconsistencies in the Commissioning Board and CCG duties. As she quite rightly says, the inequality duties, if the government amendments on the annual reports are agreed, would be in the unusual position of being specifically referred to in the annual report provisions but with no similar reference in the provisions on the annual plans of CCG performance assessments. I therefore undertake to bring forward amendments at Third Reading to rectify that.

Amendments 95, 108 and 111, which are similar in effect, would require CCGs to have regard to the advice of local healthwatch and HealthWatch England, or in the case of Amendment 111 would require local healthwatch's involvement in developing or revising commissioning plans. HealthWatch England will not advise CCGs directly. Instead its advice will inform the board's commissioning guidance for CCGs. Certainly at the local level, we would expect CCGs to be taking account of local healthwatch; and, to reassure my noble friend, under Clause 182 CCGs already have to have regard to the views made known by local healthwatch when exercising functions relating to healthcare services. As my noble friend said, local healthwatch will also have a key role to play via the health and wellbeing board in assessing local population need-preparing the joint strategy and influencing the commissioning plans of CCGs. Taken together, this represents a robust set of arrangements for the views of patients and the public to feed into local commissioning.

The noble Lord, Lord Hunt, painted a doomsday-like picture of what he sees as the consequences of the arrangements that we have set out in respect of CCG governance. The noble Lord suggests that by not having the more traditional arrangements, as per his amendments, the CCGs will be more likely to run into financial distress, not properly meet their statutory duties, commit fraud or even commission unsafe care. Simply put, I cannot agree with that gloomy outlook, because it overlooks completely the arrangements that are already in place and what would happen if a CCG was to face the risk of running into any of these difficulties.

Let us take financial management, which he focused on. A CCG must have an accountable officer who is responsible for ensuring that the CCG meets all its financial obligations. The appointment must be agreed with the NHS Commissioning Board. A CCG must keep and publish proper accounts, which must be audited in accordance with the Audit Commission Act 1998 and must be sent to the NHS Commissioning Board by a date specified by the board. If the board requests specific information relating to a CCG's accounts, or to its income, expenditure or use of resources, the CCG must provide it. Each CCG must have a constitution that sets out the CCG's arrangements for decision-making. Each CCG must have a governing body, which must meet in public, except when it feels that it is a confidential matter and so not in the public interest.

The governing body must have an audit committee chaired by a lay person who must have the skills, knowledge and experience to assess and confirm that the CCG has appropriate arrangements for all aspects of governance, including financial and risk management. The governing body must ensure that the CCG adheres to such generally accepted principles of good governance as the Nolan principles, which are foremost among these-indeed, the Commissioning Board Authority has been clear that it expects CCGs to adhere to them. Furthermore, if the CCG is at risk of failing, is failing or has failed to exercise its functions, including those in relation to financial management, the board can intervene with a range of powers, from directing remedial action to be taken, removing the accountable officer, to dissolution-although we would expect that to be very much a last resort.

I absolutely agree with the noble Lord that it is essential for CCGs to have strong governance-there is no difference between us on that. This is a topic on which we listened to the Future Forum and made a number of significant amendments last year. We remain open to suggestions that would improve the Bill in this regard, I hasten to say, but I cannot agree that the noble Lord has suggested the right mechanism to achieve that end. To agree to either of his Amendments 76 or 77 would not only fail to meet his stated objective of improving a CCG's governance but would risk introducing additional bureaucracy and confusion with the wide range of existing ways that CCGs are held to a high standard of good governance.

Given the role of the board in scrutinising arrangements and ensuring that governing bodies are effective, I do not accept the need for an additional centralised process of independent appointments to governing bodies, as proposed by Amendment 76, or for asking both Houses of Parliament to approve each CCG constitution. It cannot be reasonable or proportionate to require both Houses of Parliament to scrutinise the constitutions of several hundred local bodies. The board can publish guidance on the form and content of constitutions, and take a view of local circumstances, which Parliament, with the greatest respect, could not do.

Amendment 77 would require a majority of non-GPs on the governing body. This overlooks some important points about CCGs: that they are rooted in general practice and build on the central relationship between GPs and patients. It is GPs who look at patients' needs in the round, making sure that they have access to the services that will best meet their needs and keep them healthy. Our rationale for having governing bodies with non-GP membership was not to put GPs in the minority but to make sure that there are other voices and perspectives alongside those of GPs so that decisions are made in an open, accountable and transparent way. The NHS Future Forum supported that vision. Requiring non-GP members to outnumber the GP membership on a CCG's governing body would not make that governing body any more effective in ensuring adherence to principles of good governance, or in ensuring that the CCG was effective, efficient and economical. As we discussed on Monday, there is extensive provision for managing conflicts of interest.

On the quality payment, the debate today, as in Committee, centred on two questions: what the quality premium should reward and what the premium should be spent on. The payment would incentivise and reward improvements in quality and outcomes and reductions in health inequalities. It is not there to encourage a focus on financial management, and it is not-to answer a question posed by the noble Lord, Lord Hunt, in Committee-a way to reward demand management.

Our intention is that the quality premium will reward performance against the commissioning outcomes framework. The starting point would be the five domains of the overall outcomes framework and could contain measures such as reductions in mortality rates for cardiovascular disease, cancer survival rates, the management of diabetes, stroke and mental health and reductions in the number of cases of healthcare-associated infections. Those are only a few examples. If CCGs commission services in such a way that they achieve excellent outcomes in areas such as those, it is only right that the NHS Commissioning Board should be able to reward them for doing so.

The noble Lord, Lord Patel, has put across a persuasive case that the payment should be restricted to being spent on improving services. I have given that proposal significant thought but on this occasion I am unable to agree with the noble Lord's amendment. We all want to see quality and outcomes improving and inequalities falling, and we are aware of the scale of the challenge. I want the quality premium to be as an effective incentive as it can be in order to best drive those improvements.

Indeed, I was pleased to see last week that this view was shared by Age UK and the National Osteoporosis Society in their report on falls and fracture services, which called for a greater role for financial incentives in the commissioning and provision of services. The report said that,

"the introduction of a Quality Premium payment for commissioners in return for improving health and wellbeing outcomes among patients could reduce falls and fracture rates".

That is a very good example.

There are any number of ways in which a CCG may wish to use such payments. It might wish to spend the money on a new service for patients; to reward provider organisations that have played a major part in helping achieve the improvements; and, yes, it might wish to reward GP practices that are members of the CCG if they have played an instrumental part in improving quality of services and outcomes-for instance, through their work on service redesign. It would be wrong in principle to rule out any one of those options in the Bill.

However, I hope to reassure the noble Lord on his central concern. I agree that great care needs to be taken in designing the mechanics of the payment. We will use secondary legislation to make detailed provisions as to how CCGs can use these payments, including the circumstances in which they may be able to distribute the whole or part of a payment to individual member practices. That is very important and provides flexibility to adapt any rules or principles governing payments in the light of experience.

We have started discussing the potential contents of these regulations with stakeholders and I can confirm that we will extend these discussions to include a broad spectrum of views, including the NHS, patient groups and professional bodies. I hope I have reassured noble Lords sufficiently to enable them to not press their amendments.

Amendment 96 relates to an area with myriad terms that have a slightly different meaning, and I shall set out the crucial differences. Very rare conditions, which often require highly specialised services, will be commissioned by the NHS Commissioning Board. Rare or less common conditions will by and large be commissioned by CCGs, but they will be supported in doing so by the board, clinical senates, networks and the ability of CCGs to work together to pool skills and expertise.

The Bill allows the Secretary of State, through regulations, to decide which very rare conditions the board alone will commission. It is important to set that out at the beginning, because "less common conditions", which is the phrase used in the amendment, is not a term of art. What the noble Baroness, Lady Murphy, said in this connection is very important. I hope that noble Lords will understand that, if we are not careful, we will-if this amendment is approved-confer on CCGs the responsibility for commissioning services that should rightly be commissioned nationally and centrally.

I do not support the amendment, not because I do not accept the fundamental importance of ensuring the provision of services for patients with less common conditions-of course I do-but because it is already, or will be, a responsibility of the board in respect of specialised services and of CCGs in respect of other conditions; and because it is not appropriate to spell out, in primary legislation, every individual possible scenario if it is already covered by the Bill. We discussed similar amendments on Monday, so I will be quite brief in my response.

CCGs already have responsibility for commissioning services to meet the reasonable needs of all those for whom they are responsible, excepting those services that the NHS Commissioning Board is responsible for commissioning. These include services to meet the needs of patients with less common conditions. Amendment 96 would not change this statutory responsibility-in that sense, it gets us no further forward. I am sure the Bill puts in place the right levers to do what we all want, which is a mix of statutory duties and powers. As I have indicated, the Bill provides a framework for collaborative working between CCGs and local authorities, including lead commissioning arrangements, allowing CCGs to come together to commission services at the right level for a particular patient-group or condition.

The board will have a robust authorisation process to ensure that CCGs cover an appropriate area and have made appropriate arrangements to ensure that they will be able to discharge their functions: in particular of course, their overarching function of ensuring they are meeting the reasonable needs of their population- which is where we began with my noble friend's amendment. The authorisation process will include consideration of the extent to which CCGs have, or propose to put in place, collaborative arrangements for commissioning with other CCGs and local authorities. That takes care, I believe, of the cracks. CCGs already have statutory duties relating to securing expert advice, and involving patients and their carers. They will be able to choose to access commissioning support, if they wish, which could equip them to commission effectively for less common conditions.

The board has to publish guidance on commissioning, to which the CCG must have regard. It would be entirely appropriate for this guidance to include provision about the importance of ensuring services for patients with less common conditions. I reassure noble Lords that we would seek to ensure that the board's commissioning guidance for CCGs included guidance on how CCGs can make appropriate arrangements for commissioning in respect of less common conditions, and in particular for securing appropriate professional and expert advice. I hope that the noble Baroness will be satisfied with that reassurance and will not press her amendment when we come to it.

Very briefly, I will speak to the minor and technical government Amendment 92A, which would give CCGs the ability, when executing legal documents, which generally require the use of a seal, to authenticate the seal with the signature of an authorised individual or to use an authorised signature instead of a seal. The amendment also provides that where a document appears to have been duly executed or signed on the CCG's behalf, this is to be accepted in evidence unless the contrary is proven. I hope noble Lords will support this amendment when I come to move it.

5:15 pm
Photo of Baroness Finlay of Llandaff

Baroness Finlay of Llandaff (Crossbench)

Can the noble Lord clarify whether the guidance will also cover the commissioning of services that are currently going to fall within the responsibility of a local authority, at the interface between health and social care, for the long-term maintenance of patients with very severe disability?

I accept the Minister's comments on this amendment and the onus on clinical commissioning groups, and those made by my noble friend Lady Murphy, that the commissioning board may be the central focal point, as was outlined in the amendment that was not accepted, Amendment 63A. However, my second question is whether the Minister would be prepared to meet me to see whether there is a need for a review of the wording to clarify completely that there are no gaps for these patients, who may be large in number but very disparate and heterogeneous, with a very broad range of views. In that event, perhaps we could return to the matter at the last point, at Third Reading.

There are two distinct questions there on which I would appreciate clarification.

Photo of Earl Howe

Earl Howe (Conservative)

On the first question from the noble Baroness, we fully anticipate that NICE will provide quality standards and guidance on services commissioned by CCGs and local authorities jointly. Typically, those are the kinds of service that the noble Baroness has spoken of, some of them in relation to less common and more complex conditions. Therefore, the commissioning guidance would reflect the NICE advice, and I hope that I can reassure her on that point.

Of course, I am willing to meet the noble Baroness between now and Third Reading, although I am not necessarily giving her the green light to bring this amendment back at Third Reading. I have explained that the Bill adequately covers the points of concern. Furthermore, I think that the amendment is flawed. We can achieve what she seeks through provisions already in the Bill and those that are not in the Bill that I have described.

Photo of Baroness Williams of Crosby

Baroness Williams of Crosby (Liberal Democrat)

In moving the amendment, I asked the Minister for an unqualified assurance that all people resident in England would be covered by a clinical commissioning group, and I have to say that I think he gave me that assurance. However, I simply ask that between now and Third Reading, if any Member of this House comes forward with evidence of the exclusion from clinical commissioning groups of anyone resident in England, the Minister will give that careful consideration. I am sure he will. He has won the trust of this House and I take the assurance on the basis of that trust, but if there is a dispute over whether there is any exclusion I hope he will permit me to suggest that his door might be as ever open if any Member of this House wants reassurance on the basis of evidence brought before him. I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

Amendment 76

Moved by Lord Hunt of Kings Heath

76: Clause 24, page 35, line 9, at end insert-

"( ) provide for the chair and non-executive members of each governing body to be appointed using an independent process, the details of which are to be laid out in regulations;"

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

The Minister thought that I was projecting a doomsday view of corporate governance within clinical commissioning groups. It is not doomsday but a warning that if you give enormous power to professionals who can take advantage financially from their decisions, you need strong corporate governance safeguards. The best safeguard is to have independent appointment of non-execs, who should be in a majority on a board. That is such a well known process and a safeguard in all public bodies. I beg to test the opinion of the House.

Division on Amendment 76

Contents 185; Not-Contents 282.

Amendment 76 disagreed.

Division number 1

See full list of votes (From The Public Whip)

Amendments 77 and 78 not moved.

Amendment 79 had been withdrawn from the Marshalled List.

Amendment 79A

Moved by Baroness Barker

79A: Clause 24, page 36, line 1, at end insert-

"14NA Registers of interests and management of conflicts of interest

(1) Each clinical commissioning group must maintain one or more registers of the interests of-

(a) the members of the group,

(b) the members of its governing body,

(c) the members of its committees or sub-committees or of committees or sub-committees of its governing body, and

(d) its employees.

(2) Each clinical commissioning group must publish the registers maintained under subsection (1) or make arrangements to ensure that members of the public have access to the registers on request.

(3) Each clinical commissioning group must make arrangements to ensure-

(a) that a person mentioned in subsection (1) declares any conflict or potential conflict of interest that the person has in relation to a decision to be made in the exercise of the commissioning functions of the group,

(b) that any such declaration is made as soon as practicable after the person becomes aware of the conflict or potential conflict and, in any event, within 28 days, and

(c) that any such declaration is included in the registers maintained under subsection (1).

(4) Each clinical commissioning group must make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the group's decision-making processes.

(5) The Board must publish guidance for clinical commissioning groups on the discharge of their functions under this section.

(6) Each clinical commissioning group must have regard to guidance published under subsection (5).

(7) For the purposes of this section, the commissioning functions of a clinical commissioning group are the functions of the group in arranging for the provision of services as part of the health service."

Amendment 79A agreed.

Schedule 2 : Clinical commissioning groups

Amendments 80 to 82 not moved.

Amendment 82A

Moved by Baroness Barker

82A: Schedule 2, page 281, leave out lines 32 to 34

Amendment 82A agreed.

Amendments 83 and 84 had been withdrawn from the Marshalled List.

Amendments 85 and 86 not moved.

Amendments 86A and 86B

Moved by Baroness Barker

86A: Schedule 2, page 281, line 38, at end insert-

"( ) The constitution must specify the arrangements made by the clinical commissioning group for discharging its duties under section 14NA(1) to (4)."

86B: Schedule 2, page 282, leave out lines 33 to 34

Amendments 86A and 86B agreed.

Amendments 87 to 89 had been withdrawn from the Marshalled List.

Amendment 90 not moved.

Amendments 91 and 92 had been withdrawn from the Marshalled List.

Amendment 92A

Moved by Earl Howe

92A: Schedule 2, page 288, line 12, at end insert-

"Seal and evidence

(1) The application of a clinical commissioning group's seal must be authenticated by the signature of any person who has been authorised (generally or specially) for that purpose.

(2) Any instrument which, if executed by an individual, would not need to be under seal may be executed on behalf of a clinical commissioning group by any person who has been authorised (generally or specially) for that purpose.

(3) A document purporting to be duly executed under a clinical commissioning group's seal or to be signed on its behalf must be received in evidence and, unless the contrary is proven, taken to be so executed or signed."

Amendment 92A agreed.

Amendment 93 had been withdrawn from the Marshalled List.

Clause 25 : Clinical commissioning groups: general duties etc.

Amendments 94 to 96 not moved.

Amendments 97 and 98

Moved by Earl Howe

97: Clause 25, page 37, line 8, leave out from "decisions" to end of line 9 and insert "which relate to-

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

(b) their care or treatment."

98: Clause 25, page 37, line 10, leave out "may" and insert "must"

Amendments 97 and 98 agreed.

Amendments 99 to 102 not moved.

Amendments 103 and 104

Moved by Earl Howe

103: Clause 25, page 37, line 34, leave out "have regard to the need to"

104: Clause 25, page 37, line 36, at end insert-

"14XA Duty as to promoting education and training

Each clinical commissioning group 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 assist the Secretary of State in the discharge of the duty under that section."

Amendments 103 and 104 agreed.

Amendments 105 and 106 not moved.

Amendment 107

Moved by The Earl of Sandwich

107: Clause 25, page 38, line 23, at end insert-

"14YA Duty as to addiction to benzodiazepines, selective serotonin reuptake inhibitors and Z-drugs

(1) Each clinical commissioning group shall have a duty to provide services to those suffering from addiction to and withdrawal from benzodiazepines, selective serotonin reuptake inhibitors and Z-drugs.

(2) In fulfilling this duty, clinical commissioning groups must co-operate with and take account of the good practice of specialised agencies in this field."

5:38 pm
Photo of The Earl of Sandwich

The Earl of Sandwich (Crossbench)

My Lords, this is a non-political amendment. However, by the end of our discussion, it may become more political; it depends what happens in this short debate.

I am very grateful for the support and encouragement I have received from my noble friends and noble Lords on all sides of the House in raising this issue now and on previous occasions; that is, prescribed drugs such as sleeping pills and antidepressants. I moved a similar amendment after midnight on 30 November. In that debate the noble Lord, Lord Alderdice, said:

"I hope my noble friend the Minister will be able to give some reassurance that this is regarded seriously as an iatrogenic disorder that the health service is in some cases responsible for bringing into play through absence of proper monitoring and, in some cases, errant prescribing".-[Hansard, 30/11/11; col. 372.]

If the health service does carry responsibility for iatrogenic disorder-as I believe it does-surely this makes it imperative that it moves faster on the issue than it otherwise would, even during a recession. The Minister did not respond to that point on that occasion. I would be grateful if he could acknowledge it today, if he can.

It may be helpful to remind the House that the singer, Whitney Houston, may have been under the influence of Xanax, which is a popular benzodiazepine, when she died. Without it, she may have survived. She had also taken Ativan and valium-drugs which I am sure are familiar to all noble Lords. Amy Winehouse took Librium. I mention them as two prominent recent examples of what is happening. Many thousands of people-not drug addicts but ordinary, mainly young, people living ordinary lives-are suffering from a diet of benzodiazepines, selective serotonin reuptake inhibitors called SSRIs, and z-drugs that all may initially have been prescribed for very good reasons and for a limited period of between two and four weeks as standard, but now blight their lives to the point of dark despair.

The Centers for Disease Control and Prevention in the US reported 37,485 deaths from prescribed medication in one year, 2009. It is recognised as a leading cause of death, in front of deaths from road traffic accidents, from firearms and from all illegal drugs put together. This information came only in the past few days, and we now hear from the British Medical Journal that sleeping pills, even taken lightly, can treble the risk of an early death.

I know that the Minister takes these issues very seriously and I wish I could say that our own Department of Health is now actively on the case, but I cannot. The Government have not even got the numbers together from their two major reports. The Bill is completely silent on prescribed medication, although the noble Earl did refer in a previous debate to new structures that will help the health service to respond-and he may repeat that today. After all, this is mentioned in the national drugs strategy. We have been waiting for nearly three years for action on an issue that was first publicised more than 30 years ago.

There has been some progress. I have been to see the Minister, Anne Milton, and one or two things have happened since Committee stage, but the noble Earl will himself admit that they are nothing to boast about yet. The withdrawal charities are at last being consulted, thanks largely to pressure from the all-party group in Parliament, and two of them, in Oldham and Bristol, are to receive a ministerial visit.

The Minister asked me in November if I would accept that this was an indication of the Government's good faith. Yes, of course, every little helps, but people in pain are waiting for proper services. At the moment, there is no policy, no proper service, and they have to fend for themselves and depend on dedicated people. Perhaps I may quote from the Minister's previous reply on 30 November, when he was describing existing provision. He said:

"There is access to support and treatment services for addiction to medicines in most local areas".

That is simply untrue. He added,

"but some local areas are woefully short of such services".-[Hansard, 30/11/11; col. 374.]

That is also untrue, because most areas are woefully short of such services. I know that the Minister is conscientious, and that has been demonstrated throughout the Bill, but he has been misinformed. My wife and I have researched this and have given a copy of the research to Anne Milton. The truth is that there are very few areas in the UK with such services, and almost all are voluntary. That is no bad thing, as I argued last time, because support for the voluntary sector may well be the best route towards a new government strategy for prescribed drugs, based on the good practice that already exists. The knowledge is out there to be used.

What we do not want is a pretence that because there are government-funded addiction centres-I know one in Roehampton, for instance-with proper budgets behind them for addiction to hard drugs, and because they are there to help people suffering from hard drugs, such centres cater for prescribed drugs at the same time. They emphatically do not. There is no government budget for that at all. Will the Minister assure me that there will soon be a policy-I am sure that there will be-and that there will be a statement from Anne Milton that preferably has the support of the Royal College of General Practitioners, which is what she is seeking. I can understand that there are little local difficulties at the moment, but this is something that GPs could get behind publicly. That is what she told us; I cannot see what could be the delay for making a statement such as that.

Finally, on a more positive note, I expect the Minister to confirm that the process of consultation on the withdrawal of charities and user groups is properly under way. The expert group at the round-table meeting, which has had two meetings and is meeting again next month, must prepare not for future research or more action points but for a proper programme of services nationwide. That programme will draw on and reflect the genuine success of the voluntary sector, using the direct experience of patients in places such as Bristol, Oldham, Bradford, Belfast and the London boroughs of Camden and Islington-incidentally, those are the only boroughs served in the whole of the London area at present.

The second part of my Amendment 107, which we discussed in Committee, deals with the voluntary sector itself. I will not repeat what has been said by many noble Lords. It requires the CCGs not only to take account of good practice but to co-operate with the sector, because it often knows better. The noble Lord, Lord Rooker, and others, including the Minister, have already made that point forcefully during debate. I endorse that and I beg to move.

5:45 pm
Photo of Baroness Masham of Ilton

Baroness Masham of Ilton (Crossbench)

My Lords, I support my noble friend's amendment. Only yesterday, there were headlines in the press about the American study in the BMJ Open which found that sleeping pills were linked to increased death risks. It was found that death risk among users was about four times higher than among non-users. UK guidelines for NHS staff state that hypnotic drugs should be used for only short periods of time, because of tolerance to the drug and the risk of dependency, but they make no mention of an associated death risk, despite other studies having already reported that potential risk.

Many of your Lordships will know that doctors often do not review their patients' drugs enough. Patients can have repeat prescriptions for years, putting them at great risk. Addiction to prescribed and over-the-counter drugs is an enormous problem. Groups which give support to the unfortunate people who become addicted themselves need support. Will CCGs be able to do that? Does the Minister think that that serious problem will get worse? My noble friend's amendment is an effort to make that worrying situation better. I hope that the Minister will accept the amendment.

Photo of Lord Williamson of Horton

Lord Williamson of Horton (Crossbench)

My Lords, the amendment deals with the distressing and serious problem of addiction to certain prescription drugs and, as is specified in the text, the problem of withdrawal from those drugs, because when such efforts are made, on many occasions they unfortunately fail and result in other difficulties for the patient in question.

Without going into detail about what may happen to the amendment, I hope that the Minister will be able to confirm that there should be an appropriate priority for the services available to treat that distressing problem. I do not press the point more than that, but it would be useful if we could have that sort of assurance from the Dispatch Box. In particular, whether the Minister agrees with this or not, some of us believe that in the past the issue has been allowed to fall into the shadows. That is what has happened in practice. It has been neglected and people have suffered in consequence. Perhaps we are improving but we could improve more, and I hope that the Minister will give an encouraging reply about the appropriate priority that ought to be given to the problem.

Photo of Baroness Finlay of Llandaff

Baroness Finlay of Llandaff (Crossbench)

My Lords, this is a clear example of an iatrogenic condition, very often originating in primary care. When patients have presented with insomnia, instead of being taken through the more complex and time-consuming aspects of sleep hygiene and possibly talking therapies to discover the cause of their insomnia, a prescription has been given all too quickly and readily. If we are looking at responsibility falling back to clinicians in primary care, it seems inordinately sensible that the clinical commissioning group should consider its responsibility to provide support to patients who end up with an iatrogenic problem.

I can see that the Government may feel that this is a very specific amendment targeted at a very specific area, but the guidance that needs to go out to clinical commissioning groups on their responsibility for the behaviour of all those prescribing on their patch may well deal with some of the principles behind this amendment and ensure that the necessary services are provided to patients who, completely inadvertently, fall foul of taking the drugs that they were prescribed and as they were told to take them.

Photo of Baroness Hollins

Baroness Hollins (Crossbench)

My Lords, I pay tribute to the work of my noble friend Lord Sandwich, who has done so much to raise awareness of the often unmet needs of people whose addiction originated in a legal prescription. There is some progress in training doctors-for example, in undergraduate medical education with a new national curriculum on substance misuse. This guidance provides learning objectives on rational prescribing and iatrogenic addiction. The fact that such a curriculum is only just being introduced shows the need for the attention of clinical commissioning groups to be brought to this issue.

There seems to be a special responsibility on the National Health Service to provide better care for people affected by medical prescribing practice, and I hope that the Minister will be able to suggest how such a responsibility could be emphasised in the Bill.

Photo of Baroness Thornton

Baroness Thornton (Labour)

My Lords, I intend to make only two remarks. We have a great deal to get through tonight, so I shall exercise great self-discipline. I think that I will come in at under a minute and a half.

The noble Earl needs to be commended for his determination and hard work in this area. We think that it is an important issue. This is a growing problem and the noble Earl makes very reasonable requests, for which he has widespread support. I agree with the noble Baroness, Lady Masham, in that I fear this problem may get worse before it gets better, but I hope that the Minister will have good news for us about it.

Photo of Earl Howe

Earl Howe (Conservative)

My Lords, we return to an issue of enormous significance for the individuals and families affected. I refer of course to those suffering from addiction, or withdrawal from addiction, to certain prescribed drugs. I am grateful to the noble Earl, Lord Sandwich, for his amendment, which would put in primary legislation a requirement for clinical commissioning groups to provide a specific service and, in so doing, to co-operate with and take account of the good practice of specialised agencies.

I think that the desire for good practice and for improving practice is common ground between us. The noble Earl will know that local areas are currently responsible for the design and provision of treatment and support services. We think that that is right. Having said that, it is clear that we need to do all we can to prevent dependence occurring in the first place. I am fully with him on that. For those who do develop dependence, it is important that they have access to the services they need to help them to recover, rebuild their lives and contribute productively to society. By placing the funding and responsibility for commissioning services to support people to recover from dependence with the local authorities, the Bill will provide local areas with opportunities to improve integration of commissioning and provide more effective joined-up services to meet local needs.

I heard what the noble Earl said about generic drug and alcohol services and his view that they are not appropriate for people who are addicted to benzodiazepines. I beg to disagree with him on that. Drug and alcohol action teams are the people best placed to help people addicted to drugs of whatever kind. They commission to provide help for a wide range of drug users, including people dependent on medicines like tranquilisers, sleeping pills and painkillers. It is not a one-size-fits-all approach. In many cases, services for people dependent on such drugs are provided at different sites or times than those for people dependent on illicit drugs.

The noble Earl has put forward an extremely powerful case and I do not wish to detract from that in the slightest. He is right to highlight the particular needs of this patient group. Nevertheless, we remain of the opinion that it is not appropriate to require in the Bill that CCGs commission particular services for all persons. CCGs are already under a duty to commission services to meet the reasonable needs of all the people for whom they are responsible. As noble Lords will be aware, they have a duty to ensure that they obtain appropriate advice in support of that. That was the theme of the last group of amendments. There are also duties to engage with their health and well-being boards to find out what local needs actually amount to, to prioritise the strategies that are required to address them and to develop those strategies and plans accordingly.

The Government believe that local bodies have greater knowledge and understanding of local health needs and that they are best placed to assess the need for services, including rehabilitation and support services within their areas. Moreover-and this is the most fundamental point-under the arrangements set out in Healthy Lives, Healthy People:Consultation on the Funding and Commissioning Routes for Public Health, local authorities will be responsible in the future for commissioning services to support people to recover from dependence in line with local need.

In terms of the work of my department, I can again confirm to the noble Earl that a great deal of thought and effort is being given to this important issue. As he knows, we are working with a range of experts in doing so. If I may, I would like to write to him to set out fully our future plans in this area. I hope he will understand the stance that we have taken on this. Having received my letter, he is very welcome to meet me, if he would like to, to enable me to update him on the work that we are doing on this important issue.

6:00 pm
Photo of The Earl of Sandwich

The Earl of Sandwich (Crossbench)

My Lords, as the noble Baroness, Lady Thornton, implied, we are moving to the fast-track of this Bill, and I do not want to hang around for too long. I thank my noble friend Lady Masham for bringing to our attention the issue of early death, and my noble friend Lord Williamson, who has a lot of experience, for his support. My noble friend Lady Finlay made the important point that the responsibility falls within primary care, and I am encouraged by what she said about guidance. However, the Minister did not even pick that up. One might have thought that he could have just said, "Yes, we are going to do something in the guidance", but I do not know whether he actually heard the point.

Photo of Earl Howe

Earl Howe (Conservative)

I am happy to pick that up, because it was a point that arose in connection with an intervention from the noble Baroness, Lady Finlay, in the previous group of amendments. Of course, we will be relying on the NHS Commissioning Board to issue guidance in a number of clinical areas. Again, when the noble Earl and I meet, I will update him to the extent that I am able to on the thinking in that regard. The point of such guidance-which will relate to numerous areas of care and services-is that it should inform joined-up commissioning in local services, so that we really do get a step change in the quality of commissioning in local areas.

Photo of The Earl of Sandwich

The Earl of Sandwich (Crossbench)

It is quite true that the CCGs are going to be overwhelmed with guidance from all directions, but I maintain that this is an important aspect.

I thank my noble friend Lady Hollins for the very important point that she made. I did not even talk about prescribing today but I hope to come back and talk about it later-the whole question of training and what young doctors are being told. "Rational prescribing" is a phrase that I will now be able to repeat.

I know that the Minister accepts the arguments, and of course there are many things that we have in common-good practice and the use of the voluntary sector. I take the point about the duty that falls on local authorities, but I still maintain that we have to separate this out from the mainstream of drug addiction and alcohol treatment. It is the kind of treatment that only the very careful, experienced volunteers can describe. I do not think that I can begin to describe the actual treatment. However, the NHS will soon get to grips with what is happening. I welcome the chance of having a meeting. I will of course come to talk, and I hear that there is to be a range of experts. I feel that the Minister has given a little bit of a Civil Service answer, because there are only but one or two people who follow this subject in the department. I do not mind talking only to two people-it will be a very good opportunity to take this further. Meanwhile, I beg leave perhaps to consider this again at a later stage of the Bill, and to withdraw the amendment.

Amendment 107 withdrawn.

Amendments 108 to 111 not moved.

Amendment 112

Moved by Earl Howe

112: Clause 25, page 44, line 17, after "14Q" insert ", 14S"

Amendment 112 agreed.

Amendment 112A not moved.

Amendment 113

Moved by Lord Marks of Henley-on-Thames

113: Clause 25, page 45, leave out lines 24 and 25 and insert-

"( ) For the purposes of this section-

(a) a failure to discharge a function includes a failure to discharge it properly, and

(b) a failure to discharge a function properly includes a failure to discharge it consistently with what the Board considers to be the interests of the health service."

Amendment 113 agreed.

Amendment 114

Moved by Lord Marks of Henley-on-Thames

114: Clause 25, page 47, leave out lines 35 and 36 and insert-

"( ) For the purposes of this section-

(a) a failure to discharge a function includes a failure to discharge it properly, and

(b) a failure to discharge a function properly includes a failure to discharge it consistently with what the Board considers to be the interests of the health service."

Amendment 114 agreed.

Amendment 115

Moved by Earl Howe

115: Clause 25, page 48, line 39, leave out "This section has" and insert "Paragraphs (a) to (c) and (h) of subsection (1) have"

Amendment 115 agreed.

Amendment 116 had been withdrawn from the Marshalled List.

Amendment 117

Moved by Earl Howe

117: Clause 25, page 49, line 24, at end insert-

"section 14XA,"

Amendment 117 agreed.

Clause 26 : Financial arrangements for clinical commissioning groups

Amendments 118 and 119 not moved.

Clause 29 : Appointment of directors of public health

Amendment 120

Moved by Baroness Northover

120: Clause 29, page 56, line 8, after "6C" insert "(1) or (3)"

Photo of Baroness Northover

Baroness Northover (Liberal Democrat)

My Lords, in Committee we had a number of excellent debates about the role of local authorities in public health. A number of noble Lords raised concerns, and I hope that this debate will show that the Government listened very carefully. As a result, we propose to make a number of important changes.

I will begin with Amendments 120, 127 and 129, which are minor and technical amendments to Clauses 29, 30 and 31. These contain lists of local authority functions, including references to,

"functions by virtue of section 6C of the NHS Act 2006".

The amendments change the reference to functions by virtue of Section 6C(1) and 6C(3). The reference to Section 6C(2) is unnecessary as it provides a power to impose requirements for how local authorities should exercise their functions, rather than a power to confer those functions. I look forward to an interesting debate on the other, more fundamental amendments in the group. I beg to move.

Photo of Lord Patel

Lord Patel (Crossbench)

My Lords, I will speak to Amendments 121, 122, 123, 125 and 126 in my name. I will also comment on the Government's Amendment 124.

Amendment 121 covers the appointment of a public health specialist. It states:

"The individual so appointed must be a registered public health specialist who has a broad range of professional expertise in public health".

When we debated this in Committee I made it clear that while doctors-public health specialists who are trained in medicine-not only do medical training at undergraduate level but do several more years of training in public health before they are given a certificate of completion of training that allows them to be registered on a GMC register of public health specialists. The situation is similar for public health dentists; they go through similar training.

The problem is that non-medical public health specialists-of whom there are many-do not go through any specific training. Registration is voluntary. We will come to registration issues at a later date. The amendment states that those appointed must be registered public health specialists with a broad range of professional expertise in public health, which they must demonstrate at the time of appointment. I hope that the noble Baroness, Lady Northover, will comment on that.

The noble Baroness was absolutely right to say in her opening speech that the Government had listened. I am grateful to both the noble Earl and the noble Baroness for the time they took to meet me, and to meet representatives of the Faculty of Public Health. I declare an interest as an honorary fellow of that faculty. As a result, the Government have brought forward amendments and produced a document, which I will refer to at a later stage, that is very helpful in identifying the role of public health doctors in a local authority.

Amendment 125 is linked to this issue. It concerns the appointment of directors of public health. It states:

"Any registered public health specialist or other person who is employed in the exercise of public health functions by a local authority or is an executive agency of the Department of Health shall be employed on terms and conditions of service no less favourable than those of persons in equivalent employment in the National Health Service".

If we are to appoint directors and consultants of public health in local authorities and attract high-calibre individuals, we will have to make sure that they are not disadvantaged by taking a job in a local authority. The amendment merely alludes to that. Currently all specialists in the NHS, be they physicians, surgeons, obstetricians, paediatricians or other specialists, are appointed by an advisory appointments committee. The constitution of that committee is statutorily determined. The committee includes a representative from the appropriate college faculty. In this case it would be the Faculty of Public Health.

Why is that necessary? The Bill states that appointments will be made with the presence of representatives from Public Health England. I have no objection to a representative of Public Health England, who works closely with the director of public health, being on the appointments committee. However, it is important that an external person should be nominated by the faculty to the appointments committee-as happens with other specialists-because external adjudicators will make sure that the person appointed has the appropriate training and experience.

The Government's Amendment 124 concerns appointments of public health specialists. It states:

"A local authority must have regard to any guidance given by the Secretary of State in relation to its director of public health, including guidance as to appointment and termination of appointment, terms and conditions and management".

The important question is: will the guidance be followed? How will the department make sure that the guidance is followed? What does "have regard to" mean in this situation? Why can we not have the same arrangements as for other specialists in the NHS?

I recognise that foundation trusts can offer different terms and conditions to the people they employ-but they do not do so, because before they became foundation trusts they were NHS hospitals, and they were used to appointing consultants through the process that I described. Local authorities do not have this experience. Therefore, it is more important that they should start off by using the same system as for the appointment of consultants in the NHS.

Amendment 123 would require the consent of the Secretary of State to the dismissal of a director of public health. The Bill states that the Secretary of State would be advised. Why is this not adequate? It is likely that a director of public health, who will have responsibility, when it comes to the health of the population that a local authority serves, for making appropriate plans for both preventing disease and responding to emergencies, may come into conflict in particular with councillors who may not like the idea of certain statutory or other requirements and who may dismiss them, despite the fact that they may be doing the right thing. Therefore, it is important that the Secretary of State should have all the information and should agree to the dismissal, rather than just be advised of it.

Amendment 122 states:

"The director of public health shall be a person for whom the head of the paid service is directly responsible and shall be required to report directly to the authority as to the exercise of the post".

This may now be redundant. Perhaps the noble Baroness will reassure me that that is so because the Government have declared that the director of public health will be appointed at senior officer level, and therefore will be directly accountable to the chief executive, as head of service in the local authority.

Amendment 126 is the key amendment in this group. The Bill is quite unclear on how the response to an emergency will be handled, and who will be responsible for making sure that the response is appropriately carried out. The confirmation given in the document that I referred to, Public Health in Local Government, produced by the Department of Health between Committee and Report, was very helpful.

The document says that the director of public health will,

"continue to provide a coordination role to protect the health of the local population when transferred to local authorities",

and I welcome that very strongly. However, although the document provides a great deal of detail about the way in which health protection and emergency preparedness and response are to be addressed under the new system, and clarifies the responsibility of the director of public health within the local authority, the picture at the local level is fragmented, with responsibility resting not with the local authority but across the NHS and Public Health England. I believe this fragmentation places public safety at great risk.

In Committee, the Minister affirmed the need to deal,

"quickly, decisively and in a co-ordinated way with sudden threats to public health",

and asserted that,

"the establishment of the position of director of public health within local authorities will strengthen considerably their capacity to respond to emergencies".-[Hansard, 5/12/11; col. 533.]

I agree, but we must ensure that when incidents occur all the respondents are prepared and fully understand the parts they play. As it stands, the Bill is unclear about the roles and responsibilities of directors of public health and local authority functions in planning for and dealing with an emergency.

It is essential that there be clarity over who within the various local agencies involved has the lead responsibility for ensuring that the response to an emergency or outbreak is effective and appropriate. It is important to establish in this legislation that this responsibility lies at the local level with the local authority-and on its behalf the director of public health-for ensuring that plans are in place. What the Bill currently provides is not sufficient. The local authority has to be in charge.

The inclusion of this amendment in the Bill would remove any doubt or ambiguity and make clear that local authorities will be responsible for protecting and improving the health of their populations at all times, including during outbreak and emergency situations. Of course, the local authority will not normally deliver the response itself-that will normally be provided by Public Health England and supported by the NHS and others in the local community-but the local authority will be responsible for ensuring that an effective, appropriate and integrated response is delivered. It will be able to hold Public Health England and its outposts to account for the local service it provides.

There are two examples that might help demonstrate how this may happen. Let us assume it is next winter and a school has two pupils who develop meningitis. Both have group B infection and one dies. Public Health England recommends the vaccination of all 1,800 pupils in the school. The director of public health agrees this recommendation, as does the local authority. However, there are no school nurses to deliver the immunisation as the commissioner has decided not to commission a clinical service for school nursing.

Another example: three pupils in one secondary school have all developed infectious tuberculosis. Public Health England recommends that all pupils in the school are screened. The director of public health and the local authority agree this decision. However, commissioners have reduced the TB nursing and clinical support services. They now no longer have sufficient staff to enable the students to be tested. How will the disconnect between the advice of the director of public health and commissioning be breached?

These two scenarios illustrate the difficulties posed by the proposed new system. While the director of public health may be given accountability for emergencies, in these clinical emergencies the response has been delivered through the NHS-it is a different scenario. To date, the director of public health has director-level responsibility for NHS resources and so can ensure that these resources are used where necessary to deliver a public health response. However, in the new world neither the director of public health nor the local authority will have any control over either NHS resources or the commissioning decisions.

These examples illustrate the tensions that are as yet unresolved in the design of the new public health system. While I am absolutely delighted with the document the Government have produced, there is some way to go in making sure that we do not fall through this lacuna again about the preparedness for the health of the local population. If the noble Baroness is not minded to accept these amendments-and I will not be surprised if she is not-perhaps she might accept that there is an issue here to be addressed. One way might be to push for a vote, but I am not going to do that. I would much rather she accepts that there is an issue to be addressed here, and is willing to work with the Faculty of Public Health to make sure that the appropriate mechanism is put in place.

6:15 pm
Photo of Lord Brooke of Sutton Mandeville

Lord Brooke of Sutton Mandeville (Conservative)

My Lords, I shall speak to my Amendment 122A. The aim of this amendment is to probe the intended scope of local authorities' public health obligations, with particular reference to areas that are primarily business in character. It does so by seeking to make clear that the directors of public health to be appointed by local authorities and the Secretary of State under this clause will have health responsibilities for those working in their authorities' areas as well as for residents. It may come as no surprise to your Lordships that I have in mind the constituency which I represented in the other place for 24 years, and particularly the eastern portion of it comprising the City of London.

The Bill, through an amendment to the National Health Service Act 2006, envisages that county councils, unitary authorities in the rest of England and London local authorities will be given an additional function: improvement of the health of their communities. In the words of subsection (1) of new Section 2B of the 2006 Act, inserted by the Bill:

"Each local authority-

the authorities I have just referred to-

"must take such steps as it considers appropriate for improving the health of the people in its area".

As to the discharge of that function, Clause 29 inserts a new Section 73A into the 2006 Act. That will require the local authorities in question, acting with the Secretary of State, to appoint a director of public health.

If I may paraphrase the statutory language for a moment to describe the practical consequences of these provisions, the director of public health will be responsible for securing improvement in the health of the people in the local authority's area in accordance with the policies that are adopted by the local authority or otherwise apply there as the result of national health policies.

The scope of the function conferred on local authorities, and through them the responsibility on directors of public health, will of course depend on who is taken to be included in the description of "people in the local authority's area". I am taking the liberty of assuming that this may be taken to include the people who actually live there, but of course there are people other than residents there too. My amendment aims to recognise the fact that the resident population in an area of an authority may be matched or even dwarfed by a non-resident population.

As I have already indicated, the example I have in mind is the City of London, where, as your Lordships are aware, the resident population is very small in comparison with the daytime business population. An indicator of relativity is provided by the current parliamentary register of electors, which records around 6,500, against an estimated daytime business population of 360,000, according to the Office for National Statistics in September 2011. My erstwhile constituency mailbag bore witness to that army.

While my focus is on daytime business populations, I acknowledge that other areas may also experience wide variations in what might be described as their permanent residential populations and their temporary ones. The western portion of my former parliamentary constituency, the southern part of the City of Westminster, has a substantial business component but also many tourists and daytime visitors. At an election, if I spoke to someone at random in the street, I had a one in 15 chance of speaking to an actual elector of my own. Seaside resorts have large temporary populations in the summer. The tourist and daytime visitor populations are, of course, more transitory than daytime business populations made up of people who come during the day, week by week, to the same location, and are not simply transitory. Nevertheless, even visitor and tourist populations would seem likely to generate some public health issues, which may prompt similar questions of scope of the public health functions to the one I am raising here.

I return to the City of London. The City's non-resident population is best characterised as a settled business community. The public health responsibility might therefore be expected to reflect that settled status. The Bill does not, however, indicate whether, or to what extent, the responsibility under the Bill extends beyond resident populations. There are situations in which public health issues might be encountered in people's workplaces rather than at home. Stress-related problems may be one and smoking another. I do not lay claim to a detailed knowledge of workplace public health issues, but noble Lords will, I hope, appreciate the general point of scope which I am making. Scope will, of course, in turn ultimately be relevant to the funding demands generated by the responsibility to be discharged by directors of public health appointed under Clause 29.

I should mention in passing that the question of how far local provision should service the needs of daytime as distinct from residential populations has been raised in other health contexts. It is, for example, reflected in the start of trials to open up registration at GPs' surgeries not only to local residents but also to local workers. This trial is being run in the City of London and certain other areas, including Westminster and Manchester.

As to the form of my amendment, the aim is, as I alluded to your Lordships in opening, to make clear that a local authority's public health function extends to those working in its area as well as its residents. This is achieved by an additional subsection in Section 73A of the 2006 Act dealing with the appointment of directors of public health, which is inserted by Clause 29.

I am aware that discussions have taken place between officials in the City and the Department of Health. I should make clear that I make no criticism of those, which I understand have been helpful. I hope, however, that my noble friend will feel able to take this opportunity to say a little more about the application of the public health function to daytime populations, such as the business community in the City.

6:30 pm
Photo of Lord Turnberg

Lord Turnberg (Labour)

My Lords, my name is attached to Amendments 121, 122 and 126. I will not repeat the wise and reasonable words of the noble Lord, Lord Patel, who presented the case for these amendments very well. As an honorary fellow of the faculty, I am privy to all its innumerable e-mails and newsletters which set out many of its concerns-and it has many, as I am sure the noble Baroness is aware. These amendments will go a little way to assuage some of those difficulties and they fit very well with the Government's intentions.

The publication of the Department of Health's document, Public Health in Local Government,on the role of the director of public health sets out well the intentions of the Government. They may not be strong enough but they are certainly entirely appropriate. Amendments 121 and 122 go some way to putting in the Bill the emphasis that the Government intend from their own document. I hope that the noble Baroness will see fit to accept these amendments.

Amendment 126 deals with the tricky business of disease outbreaks and the role of the director of public health. Again, the noble Lord, Lord Patel, emphasised with examples the sort of problems that can arise in a situation where responsibility for public health is with local authorities but is also with the health service. I am a former chairman of the Public Health Laboratory Service, which dealt with outbreaks of infections around the country and had a very strong co-ordinating role. For example, leaving aside the two examples mentioned by the noble Lord, Lord Patel, if you have an outbreak of food poisoning in two separate parts of the country, you do not know whether they are connected unless you are able to do the special tests-the special serology-that is done centrally and in a co-ordinated way between directors of public health.

What is unclear-Amendment 126 goes some way to help this-is that, in emphasising the need for the director of public health to work closely with Public Health England, the documents that have been produced are a little silent on the relationship that the directors of public health will have with Public Health England. That is a key interrelationship that has to be fostered. It should be much clearer. Perhaps this amendment does not do it far enough but at least it leads us in that direction.

Two other areas are not talked about in the document. There is a rather weak statement about the role of the local authority in ensuring continuing professional development and training and education. We have covered training and education in other amendments and the Government have been very helpful in that regard. Here we have a slightly different situation with the local authorities being responsible for the contracts for directors of public health and their staff. There is a role in education and training for them. How that will be achieved is not entirely clear; nor is it entirely clear how the local authorities will be encouraged to ensure that the directors of public health can undertake research, which is an important element.

The documents that the Government have produced make great play of words such as "innovation", "leading the field" and "keeping ahead". We cannot do that without research, so it is important that research comes in here somewhere. I hope that the Government will listen to this.

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Baroness Finlay of Llandaff (Crossbench)

My Lords, my name is attached to Amendments 121 and 126. I will not repeat the arguments that have already been laid out so clearly by my noble friend Lord Patel. However, as regards Amendment 126, in an emergency clear lines of communication are absolutely essential and must be worked out. Indeed, they must be tested before the event.

We do not need to think only about infections. We need to think about toxins, accidental or deliberate releases of all kinds of chemical substances, and all kinds of contamination that can be a threat to public health. When an emergency arises, the problem is that it is too late to work out those clear paths of communication and access to essential resources. Provision has to be made in national planning.

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Baroness Jolly (Liberal Democrat)

My Lords, I support Amendments 124, 128 and 152, which are all on issues on which I spoke in Committee. They refer to guidance and I welcome the commitment of the Government to supply guidance to local authorities in these areas. Clearly, we have councils already setting up their shadow health and well-being boards. Local public health directors are already moving into place in the local authorities. In some cases, they are already there because they were a joint appointment with PCTs.

Given that Amendment 124 states:

"A local authority must have regard to any guidance given by the Secretary of State in relation to its director of public health",

organisations which are setting up need to be clear about what is expected. Early guidance would be very welcome on the roles and responsibilities of the DPH in the new world. Is my noble friend able to give any indication when this guidance might be available?

Photo of Lord Walton of Detchant

Lord Walton of Detchant (Crossbench)

My Lords, the case for supporting these amendments has been put very clearly by my noble friend Lord Patel and the noble Lord, Lord Turnberg. I do not wish to repeat those arguments but I should like to mention a point or two about history. My reasons for doing so I hope will become clear in a moment or two. When I was a young doctor, medical officers of health in major centres of population were very notable specialists in public health. Indeed, when I was a particularly young houseman, the medical officer of health in Newcastle upon Tyne was John Charles, who later became Sir John Charles and the Government's Chief Medical Officer. He was succeeded in Newcastle by Professor WS Walton-I can assure noble Lords that he was no relation-who later became a very distinguished professor of public health in London.

As the years went by and the National Health Service matured, physicians in public health began to argue that they were actual physicians who, unlike physicians looking after groups of individual patients, were looking after communities. The situation developed until they were no longer directors of public health or medical officers of health. Instead they were transferred into the National Health Service as physicians in community medicine. They became individuals holding consultant appointments, and that was true of doctors and dentists working in community medicine. Eventually the faculty in the Royal College of Physicians grew into the Faculty of Community Medicine. Later it became clear that there were widespread public health functions which were not fully covered by that arrangement and therefore the title reverted to "public health".

The questions I want particularly to ask relate to Amendment 125 about the:

"Appointment of directors of public health".

This amendment seeks to ensure that public health specialists employed,

"by a local authority or in an executive agency of the Department of Health shall be employed on terms and conditions of service no less favourable than those of persons in equivalent employment in the National Health Service".

First, could the Minister go a little further in confirming that medically and dentally qualified directors of public health who are transferred to work in local authorities will retain honorary consultant status in the National Health Service? It is crucial that they should have a formal arrangement whereby they have full access to all the NHS facilities necessary in relation to issues such as the control of epidemics and a whole range of other activities where access to those facilities will be needed.

My other question is one that I have raised before but to which I have not had a satisfactory answer. What is the position of young doctors and dentists who at present are training in the NHS as specialist registrars seeking to become qualified in public health? What is going to be their future? Where will they be employed and how will they continue to undertake a formal training programme if the directors of public health have been transferred into local authorities? This is an important issue that needs to be resolved. Finally, the regulation of non medically or dentally qualified specialists in public health is an issue that also has yet to be resolved.

Photo of Baroness Masham of Ilton

Baroness Masham of Ilton (Crossbench)

My Lords, in supporting these amendments, I want just to say that many demands are made on local authorities. If the Bill becomes law, they will have added responsibilities for public health. The control of infectious diseases is vital. We have increasing levels of drug resistance in conditions such as tuberculosis and sexually transmitted infections. We have the problems of alcohol and drug abuse. Food poisoning is always a risk. One never knows what new infection is around the corner-one has only to look at the recent very worrying virus in lambs. We need senior officers of public health because they are the important link between health and local authorities. They need to be in senior positions and to have a clear voice.

Photo of Lord Warner

Lord Warner (Labour)

My Lords, I have added my name to Amendment 125, and I had intended to add my name to Amendment 123, but somehow that did not work out. I speak in support of the excellent presentation by the noble Lord, Lord Patel. I am still concerned about whether we will end up in a situation where, in pay and in terms and conditions of service, public health staff at senior levels start to lag behind their counterparts in the NHS. It is a real risk and I am not completely convinced that the way the Government have gone about this is adequate to tackle it.

I also share the view expressed very well by the noble Lord, Lord Patel, that the Secretary of State should give his consent to the dismissal of any director of public health. These posts are exposed when the temperature rises in a particular area over a serious incident, so these directors deserve a bit more in the way of safeguards than are provided in the Government's proposals.

I accept that the Government have moved on this, but I am a little concerned about how government Amendment 128 has been framed. I always get a bit wobbly when I see "may" used in guidance, and I wonder whether that could not be strengthened a little. I accept that Amendment 124 goes a long way towards giving an assurance that local authorities will be required to pay attention to the guidance but, as I read it, there is no guarantee that it will necessarily cover all the areas in the kind of detail that noble Lords have expressed their concerns about in this debate. A bit of strengthening of Amendment 128 would not go amiss unless the Minister can assure us that "may" really does mean that all these topics will be covered in the guidance.

6:45 pm
Photo of Baroness Cumberlege

Baroness Cumberlege (Conservative)

My Lords, I have added my name to Amendments 121 to 125, 128 and 152. Noble Lords will be grateful to learn that I am only going to speak to two of those amendments. I want to reinforce the views that are being expressed, and I too pay tribute to the noble Lord, Lord Patel, on the way he has introduced all these amendments in such a comprehensive fashion-but not the government amendments, of course-and other noble Lords who have spoken. I am interested in the situation of the status and accountability of directors of public health. They are going to be very important people. They have access to elected members and senior officers in a new way in terms of recent history. I shall go into that history a little later in my remarks.

Their responsibility is to consult and advise the members and senior officers directly on a range of issues from emergency preparedness to concerns around access to local health services and many other activities, some of which have been mentioned. Acting as the lead officer for health in a local authority and being the champion of health across the whole of an authority's business is very responsible work, along with the day-to-day management of the ring-fenced public health budget, which is going to be delegated to them by the chief executive. They are also statutory members of the health and well-being boards. It is their direct accountability to the chief executive of the local authority and head of the paid Civil Service that I am concerned about.

This is a good measure to be putting forward. I have read the new Public HealthEngland's Operating Model published by the Department of Health, particularly the fact-sheet covering the role of the director of public health. It states that,

"we would expect there to be direct accountability between the Director of Public Health and the local authority Chief Executive for the exercise of the local authority's public health responsibilities and that they will have direct access to elected members".

So far, so good, but I am not sure that that is actually happening. On this occasion I should like to declare an interest, as I often do, as the executive director of Cumberlege Connections, which is a training organisation. Recently we have been working in an area with a shadow CCG. I had a lot of correspondence after the workshop we ran, particularly from the director of public health. He said:

"It is apparent to me that, especially with organisational development plans in ... Council, as in other councils, it is intended to reduce the number of 'senior' directors at the top table ... in many such instances the director of public health will not be a member of the most senior management team nor report to the chief executive, but report to another director. This is not necessarily the likely model everywhere".

Here he mentions another authority, and says that,

"the City Council chief executive is currently proposing that the DPH report directly to him and should be part of the most senior management team. It thus seems likely that there will be different models in different local authorities".

We of course accept that in terms of localism, but there should be some basic principles that all local authorities adhere to, which I believe is the Government's intention. He goes on to say:

"It is also apparent that a number of medically qualified consultants and directors of public health consider that the likely change of status in becoming a local government officer and being made to leave the NHS ... is not what they want".

I can think of at least three directors of public health who have already quit their jobs to return to general practice, to take up a medical director post in the PCT cluster-that seems to be a rather short-term career move, but there we go-or to take very early retirement. The Government need to put out some very strong messages about this and we need a monitoring system to ensure that their intentions are being carried out.

A point has been made about the termination of employment of directors of public health. In Committee, we discussed quite fully the position that used to be the medical officer of health-it certainly existed in my council when I was a local councillor. They would be a person of huge character and have great clout within the council and the whole geographical area. One of the reasons for their being able to be so robust and to say how they really saw the health situation within a geographical area was that the only person who could terminate their employment was the Secretary of State for Health-in those days, he was called the Minister for Health. That was a very good safeguard. I know that the Government are keen to involve the Secretary of State, but I would like to know to what degree, and that it is not just consultation via e-mail or a piece of paper but something that is real and is going to make a difference.

Let us suppose that in an area where childhood obesity is presenting a real problem a fast-food company wants to build a restaurant in close proximity to a school. That could clearly conflict with the director of public health's work to reduce childhood obesity. Local authorities, which will have some strong local interests, will be tempted to influence, with local councillors, situations that may go against the professional view of the director of public health. I hope that my noble friend Lady Northover will be able to give me some comfort on these issues.

Photo of Lord Rea

Lord Rea (Labour)

My Lords, I apologise to the noble Lord, Lord Patel, for not being here when he spoke to his amendment and for wanting to ask the Minister a question that may already have been covered in the debate. It is on the relationship of directors of public health, who are going to be situated in local authorities, with the clinical commissioning groups, which are going to cover very much the same area-although we still do not know exactly what it is going to be. At the moment, directors of public health work closely with primary care trusts. I imagine they will be largely the same people who move to local authorities.

However, many of the activities of PCTs concern directors of public health. I am not sure that we have yet agreed on whether the local authority director of public health will have a seat on the board of the clinical commissioning groups in the same area. We still do not know whether they are going to be precisely contiguous and/or whether there will be several CCGs in one authority boundary. I would be grateful if the Minister could clarify the relationship between local authority directors of public health and the local CCGs.

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Lord Beecham (Labour)

My Lords, two shows in the West End have taken the theatre-loving population of London by storm in the past year. One of them was "Noises Off", a farce that might be thought of as an apt metaphor for some of the relations on the government Benches; the other was "One Man, Two Guvnors", which is perhaps relevant to the position of directors of public health. I am very glad, therefore, that the amendments proposed by the noble Lord, Lord Patel, and some of those which the noble Baroness will propose, reinforce the position and status of directors of public health. It is crucial that they are independent and are employed on conditions that are comparable to those of fellow clinicians in other parts of the health service. Therefore, the Opposition support the amendments of the noble Lord, Lord Patel, particularly in relation to Clause 30 and disease control.

I perhaps have reservations about the requirement for the Secretary of State to consent to the dismissal of a director; it is right that it should be in the form of consultation. It would be a foolhardy authority that ignored the strong views expressed by the Secretary of State. Given the relationship between central and local government, it is right that it should be a question of consultation rather than consent.

I endorse the views of the noble Lord, Lord Turnberg, about the relationship with Public Health England, which is another example of that dual relationship which directors must have. I equally endorse the observations of the noble Lord, Lord Brooke, who seeks to ensure that the responsibilities cover the entire population, resident or working, of the appropriate area.

The Government have moved significantly on some of their amendments. We are on the right track. I hope that they will look sympathetically at the amendments of the noble Lord, Lord Patel, and strengthen further that crucially independent role of the director, who should certainly be a chief officer of an authority and be accountable to the chief executive. It is an important safeguard, which I commend to the Government.

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Baroness Murphy (Crossbench)

I strongly support the stance that the noble Lord, Lord Beecham, has taken on the amendments of the noble Lord, Lord Patel, but I was expecting him to speak to Amendment 163A. I am very disappointed that he has not because it is such a brilliant idea and I was hoping that the Government might listen to it.

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Lord Beecham (Labour)

I am grateful to the noble Baroness for reminding me that I wanted to say a word about that. I was anxious that we should make progress but perhaps a little overanxious. I shall not detain your Lordships' House long on this matter, but the financial side of the arrangements for public health is extremely problematic. At the moment, some 5.2 billion is allocated to public health expenditure out of some 92 billion of NHS expenditure as a whole, of which about 2 billion is directed towards local government. The allocation is based on the existing pattern of primary care trust expenditure, which bears little or no relation to any discernible logic or needs-we heard that at a meeting with the Minister just today.

In addition, there is the new concept of the health premium, which is supposed to be subject to consultation, which has not gone very far and which carries with it a distinct danger that resources will be allocated to areas that can demonstrate an improvement in rather easier circumstances than areas with, for example, a higher instance of poverty, unemployment or other factors that militate against an easy improvement. For example, Easington in the north-east would be a very different proposition from Eastbourne in the south.

The purpose of the amendment, which is a probing amendment, is to try to ensure that the system of developing health premiums should be based on principles that are outlined in the amendment and should be subject to adequate discussion before a new system is put in place.

7:00 pm
Photo of Baroness Northover

Baroness Northover (Liberal Democrat)

My Lords, I thank the noble Lord, Lord Patel, and other noble Lords for their contributions. No doubt I shall do so again in a minute.

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Lord Wolfson of Sunningdale (Conservative)

My Lords, the noble Lord, Lord Beecham, said that the wording used in Amendment 125 was that rewards and salaries should be "comparable". In fact the actual wording is "no less favourable". The two are entirely different: which wording is being proposed?

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Lord Beecham (Labour)

I shall go along with the amendment. I do not see a distinction of the kind to which the noble Lord refers.

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Baroness Northover (Liberal Democrat)

I once again thank the noble Lord, Lord Patel, and other noble Lords for their extremely constructive engagement in this important area. I further thank the noble Lord, Lord Patel, for expressing his gratitude to the Government for the changes that have been brought forward.

Noble Lords have welcomed the moving of public health to a more centre stage. The Government have listened hard and have worked to address a number of the issues that have been raised about how this would work. We have brought forward a number of proposals, and I hope that noble Lords will be reassured that the objectives they seek can be achieved by these means.

We agree completely with the noble Lord, Lord Patel, about the need for high-quality, appropriately qualified public health staff, and it remains the case that appointments of directors of public health must be made jointly with the Secretary of State, who will be able to veto unsuitable candidates. To build on that, the Chief Medical Officer and the Local Government Association have written to local authorities on this issue and given advice covering the run-up to April 2013. This advice makes clear that external professional involvement in the recruitment process is the best way of assuring the necessary professional skills and that it should remain a central component of senior public health appointments.

My noble friend Lady Jolly raised questions about guidance, and she and other noble Lords may find the recent letter from the Department of Health and the Local Government Association reassuring. If they read through that letter they will see that on appointing to vacant posts it states:

"External professional assessment and advice provided by the Faculty of Public Health is a central component of senior public health appointments".

It further states:

"The Faculty of Public Health provides essential advice on the draft job description, draft advert and person specification and we recommend you"-

local authorities-

"contact them at an early stage to benefit from this".

There are a number of other points in the letter which I hope noble Lords will find reassuring.

Amendment 124 states that a local authority must have regard to any guidance given by the Secretary of State in relation to its director of public health, including guidance on appointment, termination of appointment and terms and conditions of management. The Local Government Association agrees that there should be a direct line of accountability between a director of public health and the chief executive. This issue was of extreme importance to noble Lords, who flagged it up in Committee, and we are taking it forward. It was also mentioned that the director should have access to elected members. We intend to produce guidance that reflects that, and it has already been spelt out in the letter to which I have referred.

In response to the concerns raised here, the Government have announced their intention to require non-medical public health specialists to be subject to regulation by the Health Professions Council. We will discuss the implementation timetable with interested parties and expect that the necessary changes will be made under the powers in Section 60 of the Health Act 1999.

During the helpful debates in Committee on the role of the director of public health we discussed how to ensure that directors have appropriately senior status. This is a vital new role-it provides local leadership on health improvement and protection as well as advising the local NHS on public health-and, in reaction to concerns raised, we have brought forward Amendment 152 to add directors of public health to the list of statutory chief officers in the Local Government and Housing Act 1989. This, combined with statutory guidance, aligns them with other chief officers, including directors of adult social services and children services. We hope that that reassures noble Lords and is what they were seeking. Furthermore, Amendment 128 is intended to give the Secretary of State the power to issue guidance on other local authority public health staff. I hope that that will further reassure my noble friend Lady Cumberlege.

The issue of appointment panels was raised and I can confirm that Public Health England, on behalf of the Secretary of State, will be represented on all appointment panels. Further guidance will be issued on the matter but, again, if noble Lords look at the letter to which I have referred I trust they will find it reassuring.

The noble Lord, Lord Patel, and others raised the issue of the requirements for dismissing a director of public health, and I welcome what the noble Lord, Lord Beecham, said about the need for the right balance of responsibilities. Directors will, of course, have the protection of employment law, and local authorities must consult the Secretary of State before dismissal. This will encourage them to ensure that their case is solid and to deter impulsive action. The Secretary of State will now also be able to issue guidance, to which local authorities must have regard, on how the dismissal process works.

Ultimately, of course, it cannot be in anyone's interest for the local authority to be required to continue employing an individual if it believes that it has good grounds for dismissal. The Secretary of State can express his views clearly and robustly, but it is the authority that has the employment relationship with the director and that therefore must make the final decision. However, having regard to what the Secretary of State has to say is obviously an extremely important safeguard. The local authority will need to have very strong evidence to demonstrate why they wish to dismiss a director if they are to carry through their duty properly.

I was asked an important point about an external person on the appointments panel and I have referred to the involvement of the Faculty of Public Health generally. We are actively pursuing the idea of an external person and obviously we will be extremely happy to continue to work with the faculty over this and other issues.

The noble Lord, Lord Patel, and other noble Lords raised the issue of emergency planning and whether there would be an improvement on what exists now. Certainly, in our view, the new arrangements will be a significant improvement on the current ones. For example, in a new pandemic, joint plans will be in place between Public Health England and the NHS Commissioning Board for the important testing and data-gathering that is essential to understand the nature of a new disease in the early stages. The noble Baroness, Lady Finlay, is absolutely right that lines of communication need to be extremely clear and that working out exactly how this is to be done is extremely important. The department is well aware of that and the matter is being taken forward.

The NHS, Public Health England and local authorities will have joint plans in place to establish anti-viral collection points, for example, if needed. Public Health England, as an executive agency, will be able to provide scientific and technical advice and the NHS will have clearly understood mobilisation plans to respond to additional pressures on hospitals and primary care services. Throughout an emergency, the Chief Medical Officer, with Public Health England, will provide the Secretary of State with consolidated scientific advice to inform response and resolution. I trust noble Lords will be reassured by that.

Photo of Lord Patel

Lord Patel (Crossbench)

I am not actually that reassured. The point I was trying to make is that the current arrangements, as specified in the document so far, are flawed. They do not identify a lead person with the local authority who will respond to Public Health England's advice and who also has plans in place not just for a pandemic or national emergency but for a local emergency. I gave two examples. The main problem is the lack of a lead person in charge locally. It might not be solved today but I hope the noble Baroness accepts that there is an issue here.

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Baroness Northover (Liberal Democrat)

The director of public health has responsibility for what happens locally. One of the important issues here is the nature of the epidemic. The response to deal with that will be determined at the appropriate level-that is the key element in this. However, if the noble Lord and the Faculty of Public Health would like to engage further in discussions on this, I am extremely happy to offer that, knowing full well that my noble friend the Minister always has his door open. We look forward to further discussions to make sure that, where we feel it is working well but noble Lords need reassurance, we can address their concerns.

The noble Lord, Lord Walton, brought me back to my history of medicine when he spoke about the history of public health. He emphasised the importance of training and the noble Lord, Lord Turnberg, emphasised education, training and research. I assure noble Lords that all training contracts will be honoured. We are exploring at the moment how public health trainee contracts will be managed in future and are engaging with those who are concerned in these areas. We will set up a stakeholder group of professional bodies, Department of Health policy groups, deaneries, employers and trade unions to develop a framework for supporting public health trainees. I trust that will reassure noble Lords.

I completely agree with the noble Lord that the question of whether directors of public health will hold honorary NHS consultant status is very important and one that we are well aware of. We will shortly publish for consultation a public health workforce strategy to inform decisions on matters such as this.

The noble Lord, Lord Turnberg, asked how directors of public health and Public Health England would work together. Public Health England will have local units to encourage collaboration that will be partners in local planning for public health and will help to join up the system. Public Health England will directly support the public health directors with evidence, guidance and best practice.

I have addressed the senior status of public health directors and the manner of appointments, potential dismissals and emergencies. The noble Lord, Lord Beecham, includes the health premium in his amendment. I realise that he wanted to be extremely brief, so I will be extremely brief in reply and emphasise to him that we intend this premium to support the narrowing of health inequalities. I know-or at least assume-that his amendment is to probe and to find out how we view this. There will be a number of indicators to try to narrow those health inequalities.

We do not want to see anyone disadvantaged by our proposals for conditions of service, and employment law will apply to staff who transfer. Last November, in partnership with employers and unions, we published best practice guidance for staff transfers, followed by further guidance agreed with the Local Government Association. Shortly, we will publish a wider workforce strategy for consultation.

I thank my noble friend Lord Brooke of Sutton Mandeville for identifying a very important issue that has significant implications for a number of local authorities. The Bill gives local authorities a duty to take appropriate steps to improve the health of the people in their areas. As drafted, that duty does not have to be confined to people with a residential address in the area-it could, for example, include a homeless person who is sleeping rough in the area, or, as he says, those who might be working in a particular area such as the City of London.

I can reassure the noble Lord that the current draft of the Bill would indeed allow local authorities to take steps to improve the health of people who work in an area or indeed of any other non-permanent resident. I also reassure my noble friend that we recognise the need for more work on how the needs of temporary populations are reflected in local authorities' funding. We are very grateful for the constructive discussions that the Department of Health is currently having with the City of London, which will continue and will help to ensure that the issue is resolved when final allocations are made.

I hope that I have addressed noble Lords' concerns and am happy for us to have any further discussions, write letters and so on if there is anything else.

7:15 pm
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Lord Patel (Crossbench)

I thank the noble Baroness, Lady Northover, and the noble Earl the Minister, not only for today but for having met me and the faculty in the past. We have come a long way from where we started with public health issues and our long debates in Committee. I think the Government have acknowledged and responded to the need, and I thank them for it. Only two minor issues are left now. She has already alluded to one, about the statutory registration of public health specialists, which it also looks as though we will solve. That leaves one other issue, which we will come to later, about Public Health England, on which I hope the Government's response will be as positive.

Amendment 120 agreed.

Amendments 121 to 123 not moved.

Amendment 124

Moved by Earl Howe

124: Clause 29, page 56, line 40, at end insert-

"( ) A local authority must have regard to any guidance given by the Secretary of State in relation to its director of public health, including guidance as to appointment and termination of appointment, terms and conditions and management."

Amendment 124 agreed.

Amendment 125 not moved.

Clause 30 : Exercise of public health functions of local authorities

Amendment 126 not moved.

Amendments 127 and 128

Moved by Earl Howe

127: Clause 30, page 57, line 12, after "6C" insert "(1) or (3)"

128: Clause 30, page 57, line 20, at end insert-

"( ) A document published under subsection (1), and guidance given under subsection (3), may include guidance as to the appointment of officers of the local authority to discharge any functions mentioned in subsection (2), and as to their terms and conditions, management and dismissal."

Amendments 127 and 128 agreed.

Clause 31 : Complaints about exercise of public health functions by local authorities

Amendment 129

Moved by Earl Howe

129: Clause 31, page 57, line 36, after "6C" insert "(1) or (3)"

Amendment 129 agreed.

Clause 35 : Procedural requirements in connection with fluoridation of water supplies

Amendment 130

Moved by Lord Hunt of Kings Heath

130: Clause 35, page 64, line 32, at end insert-

"(8) That the funds to meet the running costs of fluoridation schemes covered by legal agreements entered into before 1 April 2013 shall be-

(a) met from the identified fluoridation funds within the ring-fenced public health grants to be made by the Department of Health to local authorities with effect from 1 April 2013;

(b) held by Public Health England on behalf of the responsible local authorities in order to meet the costs incurred by water companies in operating those fluoridation schemes;

(c) accounted for by Public Health England to the responsible local authorities in annual reports on the expenditure incurred on behalf of those authorities.

(9) That the funds required to meet the running costs of new fluoridation schemes covered by legal agreements entered into after 1 April 2013 shall be-

(a) met from additional ring-fenced public health grants allocated by the Department of Health to the local authorities requesting fluoridation of all or part of their areas following a public consultation held under the provisions of this Act and its associated regulations;

(b) held by Public Health England on behalf of the responsible local authorities in order to meet the costs incurred by water companies in operating those fluoridation schemes;

(c) accounted for by Public Health England to the responsible local authorities in annual reports on the expenditure incurred on behalf of those authorities.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

My Lords, I shall be brief. I was very grateful to the Minister for a meeting with her and her officials a week ago. I have two concerns about fluoridation schemes. The first is to make sure that where there are current fluoridation schemes, the amount of money being spent on their running costs will transfer to local authorities and that it will be recognised in terms of the allocation that is given. I think the noble Baroness will be able to reassure me on that.

The other question I want to put relates to where new schemes come into being. The proposed system seems rather convoluted, with various bodies involved, including Public Health England at a national level but also many local authorities. I just want some assurance that if a local authority or a combination of local authorities decide to go for a fluoridation scheme, the system of financing will be as smooth and easy as possible and that resources will be available to enable those schemes to go ahead. I beg to move.

Photo of Lord Colwyn

Lord Colwyn (Conservative)

My Lords, I support everything that the noble Lord, Lord Hunt, has said and declare an interest as vice-president of the British Fluoridation Society. I believe in the efficacy of the fluoride ion, and during my own dental career have seen the beneficial results of this public health measure.

I do not want to repeat what the noble Lord, Lord Hunt, has said, but the Government envisage that, in future, local authorities will be the bodies that consult on fluoridation and decide whether to introduce and maintain a scheme. The issue is about funding for existing schemes and for possible future schemes. The Bill as it stands would mean that on 1 April 2013 the money currently spent by the NHS on existing schemes would pass to local authorities, which would then have to pass it on to the Secretary of State via the new organisation, Public Health England, to pay the bills presented by water companies. This would be a complex, bureaucratic process. If, for example, the money got stuck somewhere, the water company affected would quickly get fed up and stop fluoridating. How much smoother and quicker it would be if the money that the NHS is currently spending went directly on 1 April 2013 to the Secretary of State and Public Health England. This would mean that the organisation that will actually pay the bills will have the money in its account and not be reliant on local authorities transferring it.

The Bill as it stands also means that if any of the new schemes are ever voted for by local authorities when they take charge of consultations on fluoridation, the Secretary of State will look to them to pay for those schemes. Yet local authorities are not responsible for dentistry and have no dental budget. So where would they get the money from? In all probability they would not and, as a result, no new schemes would ever be implemented. This amendment means that, although the local authorities will be the decision-making bodies in future, the money for any fluoridation schemes that they support will come from the dental health services budget of the NHS Commissioning Board, the body that stands to benefit from the reduced treatment costs that would follow. The NHS Commissioning Board would transfer funds to the Secretary of State, who would pay the bills submitted by the water companies. I may have got this wrong, but I would be delighted to hear what my noble friend the Minister has to say.

Photo of Baroness Gardner of Parkes

Baroness Gardner of Parkes (Conservative)

Everything that needs to be said has been said; I thoroughly approve of this amendment and ask the Minister to note my support as a former dentist.

Photo of Baroness Northover

Baroness Northover (Liberal Democrat)

I thank noble Lords for that extremely brief and consensual approach to this issue. We debated this in detail in Committee, and I commend all noble Lords for their work in this area.

We certainly agree that the rates of tooth decay in children and adults is an important public health measure. I point noble Lords to the public health outcomes framework, which my noble friend Lord Colwyn might like to have a look at, which is a document to which local authorities will have to have regard.

The noble Lord, Lord Hunt, asked whether, in terms of the public health funding allocation to local authorities, if a local authority has a fluoridation scheme, whether it will be covered within the budget. I can assure him, as I did in the meeting that we had earlier, that indeed it will be covered in the budget, which will look at the public health needs of the area-and that will be reflected in the grant. Those are the current schemes. The noble Lord asked about future schemes. Public health funding is ring-fenced, and the Government look at the needs of the area. However, local authorities will be deciding how they prioritise various issues, so it would not be appropriate for us to say that they must address this issue through a fluoridation scheme. They might be looking at all sorts of other public health issues and seeking to address their responsibilities in terms of dental health in some other way. However, I point out something that I did not know before-and I do not think that the noble Lord knew before-which is that just about all fluoridation schemes currently in place have been initiated by local authorities over their history.

I recognise the commitment of noble Lords to dental health. I appreciate it and realise that noble Lords want to speed it along. I hope that reassurances about the level of funding for current schemes will reassure the noble Lord, Lord Hunt, so that he feels able to withdraw his amendment. We continue to be very keen to engage in this area.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

My Lords, I should have declared in moving my amendment that I am president of the British Fluoridation Society. The noble Baroness, Lady Gardner, reminded me by making her own declaration. I am most grateful to the Minister and beg leave to withdraw my amendment.

Amendment 130 withdrawn.

Amendments 131 to 136

Moved by Earl Howe

131: Clause 35, page 66, line 11, at end insert-

"( ) The duty in subsection (3) does not apply in relation to the proposal if the Secretary of State so directs by an instrument in writing."

132: Clause 35, page 66, leave out lines 14 to 17

133: Clause 35, page 66, line 39, at end insert-

"( ) The duty in subsection (2) does not apply in relation to the proposal if the Secretary of State so directs by an instrument in writing."

134: Clause 35, page 66, leave out lines 42 to 45

135: Clause 35, page 67, line 34, at end insert-

"( ) The duty in subsection (2) does not apply in relation to the proposal if the Secretary of State so directs by an instrument in writing."

136: Clause 35, page 67, leave out lines 37 to 40

Amendments 131 to 136 agreed.

Clause 39 : After-care

Amendment 136A

Moved by Lord Patel of Bradford

136A: Clause 39, leave out Clause 39 and insert the following new Clause-

"Aftercare

(1) Section 117 of the Mental Health Act 1983 (aftercare) is amended as follows.

(2) In subsection (2)-

(a) after "duty of the" insert "clinical commissioning group or",

(b) omit "Primary Care Trust or" in each place it appears,

(c) for "such time as the" substitute "such time as (in relation to England) the clinical commissioning group or".

(3) After subsection (2C) insert-

"(2D) Subsection (2), in its application to the clinical commissioning group, has effect as if for "to provide" there were substituted "to arrange for the provision of".

(2E) The Secretary of State may by regulations provide that the duty imposed on the clinical commissioning group by subsection (2) is, in the circumstances or to the extent prescribed by the regulations, to be imposed instead on another clinical commissioning group or the National Health Service Commissioning Board.

(2F) Where regulations under subsection (2E) provide that the duty imposed by subsection (2) is to be imposed on the National Health Service Commissioning Board, subsections (2D) and (2E) have effect as if references to the clinical commissioning group were references to the National Health Service Commissioning Board.

(2G) Section 272(7) and (8) of the National Health Service Act 2006 applies to the power to make regulations under subsection (2E) as it applies to a power to make regulations under that Act."

(4) In subsection (3)-

(a) after "section "the" insert "clinical commissioning group or",

(b) omit "Primary Care Trust or" in each place it appears, and

(c) after "means the", in the first place it appears, insert "clinical commissioning group or".

(5) In consequence of the repeals made by subsections (2)(b) and (5)(b), omit paragraph 47 of Schedule 2 to the National Health Service Reform and Health Care Professions Act 2002."

Photo of Lord Patel of Bradford

Lord Patel of Bradford (Crossbench)

My Lords, it is with a heavy heart that I find myself speaking here again on this amendment, which attempts to make changes to Clause 39. This amendment is not about politics and is not in opposition to this troubled Bill; it is about the protection of the vulnerable and those in greatest need. I set out in some detail in Committee the reasons and purpose for my amendment, which had the support of not only many Members of this House from all sides but also many leading mental health organisations in this country, such as Mind, Rethink, the Mental Health Foundation, the Centre for Mental Health, the Law Society and the Royal College of Psychiatrists. These are not agencies with vested interests; they do not gain anything from fulfilling their core purpose, which is to advocate on behalf of those who are less able to speak for themselves as a consequence of severe mental illness. We are talking about people who have suffered from severe illness-those who have been so ill and at such risk that the full powers of the Mental Health Act 1983 were used to detain them and keep them in hospital.

These are not lifestyle problems; these are not people who could have chosen a different path. They did not choose to be detained in hospital, sometimes for very long periods of time. No-these are people whom the state, in making use of its considerable powers under the Mental Health Act, has a very clear obligation and duty to protect. That protection must go beyond the time spent in hospital to include their aftercare under Section 117 of the 1983 Act. One crucial thing about that section is that it requires primary care trusts and local authority social services to work jointly together in providing aftercare. This could include a variety of necessary things such as visits from a community psychiatric nurse, attending a day centre, administering medication and providing counselling services-or, most importantly, providing supported accommodation within the community.

Under the current law, a mental health patient can expect that their PCT and local authority provide the aftercare package in an appropriate way, including sorting out the funding between themselves. These vital services cannot be taken away until the PCT or local authority are satisfied that the person no longer needs them. I am not suggesting that Clause 39 would stop the provision of aftercare. What I am saying, and what many other experts in mental health and the law are saying is that that will have profound effects on how that aftercare is delivered and paid for, effects that fall down like dominoes with insidious and devastating impacts. For example, the clause removes the duty of co-operation in delivering aftercare services between the health service, the local authority and the voluntary sector, which makes what is a freestanding duty into a gateway provision. As a consequence, it provides a backdoor route by which aftercare services for detained patients will become chargeable.

I am grateful to the noble Baroness and the noble Earl for making time to meet the noble Lord, Lord Adebowale, and me to discuss our concerns. Unfortunately, this has been to little avail since, as your Lordships can see, there is no change to this clause. With the greatest of respect, I have to say that the Minister and indeed the officials in the Department of Health do not understand the full import of the changes that will be brought about by this clause. At least, I hope it is a misunderstanding because I am at a complete loss as to why our concerns have not been addressed.

Let me briefly give some examples of why I believe this clause will be so damaging. I take these from the Local Government Ombudsman, who became involved following several complaints about the application of the current law. I will explain why this is important in a moment, but let me first give your Lordships some of the detail of these cases. The first concerns a woman, Mrs Wilson, who, following a period of detention under the Mental Health Act, required care in a residential home as part of her jointly agreed aftercare. Yet despite the clear meaning of Section 117 of the Mental Health Act she was charged by the local authority for this care, resulting in the loss of her home. She was also discharged from a Section 117 agreement without her or her mother Mrs Walton, who was her main carer, being either involved or consulted in the decision, which was yet another breach of the clear meaning of the Act. The ombudsman found that the local authority had failed in its duty to provide aftercare, and in its duty to consult the patient and their carer.

The exact same issue-a failure to involve people in decisions, and inappropriate and illegal charging for services-arose in several other cases, such as with Mr Hughes's sister, who was placed in a care home after being discharged from hospital, again under a Section 117 agreement. She, too, was charged for the costs of her social care and lost her home as a result. Despite clear advice from the Department of Health about Section 117 services being free, the council continued to apply charges. The ombudsman decided that,

"the Council's delay in changing its policy amounted to maladministration, and that there was no reason why, with reasonable diligence, the policy could not have been changed some two years earlier than in fact it was. And this was a case where such diligence was required".

It most certainly is required. I could go on and give many examples. The lady in question was being charged 256 a week for her aftercare, even after the legal advisers at the time said that this should have been free. At the time of the ombudsman's decision, Mr Hughes's sister had in fact paid costs amounting to 60,000.

Why are these cases so important? It is because they illustrate, even with the protection of the freestanding duty, that local authorities sought to break their agreements without consultation and did everything in their power to charge the people in their care for services that should most certainly have been free. That is the key to the issue in this argument. If this is how local authorities are applying the current law, what can we expect when they are freed from the duty of this care as Clause 39 seeks to do? They did that in a time of plenty, so what shall we see in the current challenging economic climate? What then for the vulnerable people who are coming out of hospital after having been detained under the Mental Health Act?

My amendment is about ensuring that this does not happen, and that even though it is not perfect we keep the joint duty, so that aftercare can be recognised and responded to in ways that are appropriate and necessary. The Minister has argued that this is about tidying up and aligning the legislation. It is exactly that alignment-that so-called tidying up-that causes the problems. I am reliably informed by legal advisers that introducing reference to the 2006 NHS Act in the way that this clause does will import into Section 117 the power to charge for aftercare services whenever the 2006 Act allows for it. I am in agreement with the noble Baroness, Lady Murphy, who asked in Committee, "What is wrong with the current situation? Why change what are clearly essential arrangements without some serious reasons for the change"?. This does not mean just a tidying up.

My amendment is simple. It retains a clear and unambiguous responsibility on clinical commissioning groups and local authorities to provide appropriate aftercare services. It will retain these duties on the basis that CCGs and social services authorities must act together jointly. It would also ensure that CCGs continue to arrange for the provision of aftercare services under Section 117, in co-operation with the relevant voluntary agencies. Most importantly, it preserves the judgment of the Law Lords of this House in the Stennett case that this is a freestanding duty, and as such cannot be used for the charging of aftercare services under Section 117.

As I said at the start, I move this amendment with a heavy heart because we should never have come to this point on this clause. I am not making trouble and this is not about making political points, but the Government make their case for this Bill so much harder by refusing to listen to those who perhaps know something more about the impact on people's lives, especially those who are marginalised and at serious risk. The current joint duty is essential, because it means that the patient is more likely to get access to the right kind of integrated health and social care services which they need and, most importantly, that the patient has an enforceable right to those services.

Aftercare under Section 117 is free of charge because the people who need these services are incredibly vulnerable and face a very real risk of relapse or self-harm, and of becoming more isolated and vulnerable as a result of not being adequately housed in an environment that offers them the protection they so desperately need. I will not retreat from this. My duty to those who are in such critical need of our support and my conscience will not let me retreat from this. I move this amendment in good faith and I hope that the Minister, whether it is the noble Earl or the noble Baroness who replies to this debate, will accept it.

Photo of Lord Adebowale

Lord Adebowale (Crossbench)

My Lords, I support the amendment moved by the noble Lord, Lord Patel. I am grateful to the noble Earl for the time that he generously gave to me and the noble Lord to meet him and the civil servants. However, I was disappointed by the letter that we received following the meeting. I thought that we had driven home the point and had some sympathy from the noble Earl. I understand the need to tidy up legislation, which is an important thing to do, but I find it faintly disgusting that we are going to mess up people's lives. The legislation might be neater but lives will be made much messier.

I have just come from Manchester-from Turning Point's offices there; and I declare my interest as the chief executive of an organisation that will be directly affected by the Bill-where we have a case of an elderly lady who has been with us for 14 months, at a cost of well over 100,000. We cannot get the NHS to pay it because it claims that it is the responsibility of the local authority, whereas the local authority claims that it is the responsibility of the NHS. That is the reality under the current legislation, even with, as the noble Lord pointed out, the provisions of Section 117.

We are told that, in tidying up, the proposed provisions will allow people who are discharged from mental health institutions to seek a judicial review if they are refused aftercare arrangements in co-operation with health and social services. I was astonished to read that in the letter. I do not know what planet the writer of the letter is on but I would welcome them to join my planet and actually visit and speak to people who are discharged from these institutions, and to talk to their families and friends, and then to come back and tell me whether they are in a fit state to seek judicial reviews against local authorities and the NHS. We must be real when discussing legislation that will affect the lives of real people who may not sit in this Chamber but who will cost us a fortune if we do not get this right.

It is with a very heavy heart that I support the noble Lord, Lord Patel, in his amendment. I hope that, at this late stage, the Government will see the obvious logic. Even in their responses to previous amendments they said that they wished to support the joined-up provision of health and social care. What better example is there of such provision than Section 117 of the Mental Health Act? It is as obvious as gravity. So we must insist-not to make a political point or reference to the Bill, but on behalf of people not in this Chamber who will cost the country dearly if we do not get it right-that the Government accept the logic of the amendment and just say yes.

Photo of Baroness Tyler of Enfield

Baroness Tyler of Enfield (Liberal Democrat)

My Lords, I support this important amendment. The whole basis of the Health and Social Care Bill is to place great emphasis on delivering integrated care as part of the needed reforms, and I am sure that we all support that. As the noble Lord, Lord Adebowale, has just said, though, Clause 36 in its current form will remove one of the few examples of genuinely joined-up service provision between local health and social services. A joint duty on aftercare services for these people, some of the most vulnerable in society, is crucial if they are not to have further lapses and become more and more marginalised. We talked earlier about people falling between the cracks, and that is the danger that we are in.

Photo of Baroness Northover

Baroness Northover (Liberal Democrat)

My Lords, I realise that noble Lords want to move on to other debates, so it might be opportune if I intervene now. We have always expressed sympathy for what the noble Lord intended in his original amendment. We listened carefully to the points put by the noble Lords when they came to see us, even if it seemed that we were not very responsive to what they were saying. We note the considerable emphasis that they place on retaining the duty of co-operation with the voluntary sector that is set out in Section 117. We realise that the clause removes the duty that is currently there, and that is clearly causing concern.

We do not feel that there is anything in the clauses that will bring in charging for any NHS or social care services that are currently provided free under Section 117, and the Government have no plans to bring in measures that would change the position on charging for Section 117 services. However, sometimes tidying up causes concerns. We are all used to dealing with the section as it currently stands and could continue to do so. We are nothing if not a listening team. The Government have therefore decided, and I hope that the noble Lord, Lord Patel, will be pleased, that we will not oppose his amendment. In the light of this, if your Lordships' House agrees and wishes to accept his amendment, the Government will need to bring forward a few technical amendments at Third Reading to make a few consequential changes to the Bill to ensure that the amendment works properly in the amended 1983 Act. I hope that the noble Lord will be pleased that indeed we heard what he and his noble friend were saying.

A noble Baroness:

Now you have to go over and give her a kiss.

Photo of Lord Patel of Bradford

Lord Patel of Bradford (Crossbench)

But a hug is probably more appropriate. That is really good news; I am pleased that the Minister and the noble Earl, who I knew was sincere in all the discussions that we had, have accepted this important amendment. Of course I shall formally withdraw the amendment-

Noble Lords:

No!

Photo of Lord Patel of Bradford

Lord Patel of Bradford (Crossbench)

Sorry, I have lost my flow completely. I meant that I shall formally move my amendment. However, I would like to reserve the ability to see those technical changes and come back if they do not quite achieve what we want.

Amendment 136A agreed.

Amendments 137 to 140

Moved by Earl Howe

137: Clause 48, page 80, line 10, at end insert-

"( ) Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations."

138: Clause 48, page 81, line 6, at end insert-

"( ) Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations."

139: Clause 48, page 81, line 16, at end insert-

"( ) Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations."

140: Clause 48, page 82, line 10, at end insert-

"( ) Subsection (1) does not apply to any function of the Secretary of State of making an order or regulations."

Amendments 137 to 140 agreed.

Consideration on Report adjourned until not before 8.45 pm.