Sandra Gidley (Romsey, Liberal Democrat)

I beg to move amendment 165, in clause 3, page 3, line 3, after ‘public’, insert

‘in formats accessible to people with disabilities’.

Edward O'Hara (Knowsley South, Labour)

With this it will be convenient to discuss amendment 168, in clause 5, page 4, line 17, at end insert

‘, including in formats accessible to people with disabilities.’.

Sandra Gidley (Romsey, Liberal Democrat)

These are a couple of simple amendments to try to further the debate on Second Reading about the availability of the constitution for those who may have some sort of disability. I am particularly mindful of people with a visual impairment. I perhaps should declare some sort of interest here. My husband is registered blind, so I am acutely aware of some of the difficulties faced by people in trying to access information. The Minister could argue that the issue is covered by equality legislation anyway and that existing legislation should ensure that the information is made available. However, the facts do not bear that out.

Research undertaken by the Royal National Institute of Blind People shows that a large percentage of patients did not receive information in an appropriate format. In many cases, that information might have been available with a little thought, but nobody thought to provide something usable. The statistics are stark. The group that came out best was community pharmacists—I probably ought to declare another interest—although information about prescriptions came out worst, so the picture is slightly mixed. In urgent care, perhaps nobody minds too much if the information is not readily available in an accessible format.

Given the interest in health and the drive towards self-care, on which the Government seem keen, it is more important than ever that information is available. If we start with the constitution by including access to information in accessible formats in the Bill, it will help to drive improvements in all other areas of the health service. The Minister could also argue that the Equality Bill, which is going through Parliament at the moment, might be a more appropriate place for such provisions, but people who work in the health service take far more notice of legislation in a health Bill. Given the failure to put existing legislation into practice, that is another reason for putting the measures in this Bill. In a letter to Lord Low, the Solicitor-General said:

“We are not persuaded of the case for making specific reference to the provision of information in alternative formats on the face of the legislation”

—a reference to the Equality Bill.

The amendment is a simple amendment that should not need to be included in the Bill, but the evidence is overwhelming that we must do something, as the provision for an increasing group of people is inadequate. Given our ageing population, many of whom have eyesight problems, such an amendment is even more important.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I can see where the hon. Lady derived the impetus for the amendments, and I agree with the principle behind them. It is certainly right that every citizen, taxpayer and service user should be able to access the constitution, the handbook and all the other associated documentation and rules. I worry slightly that the duty as drafted might apply only to people with more than one disability, but presumably that was not her intention.

I am slightly concerned that by its very inclusion—I think that this is the second point that the hon. Lady was seeking to make in the amendment when she said that the equalities legislation will cover all such issues—the amendment would open up a divide in the public discourse between patients, staff and members of the public and people with disabilities, which is something that we have all been seeking to combat for years. I am not suggesting that that was the hon. Lady’s intention, but we need to be careful lest we create separate categories. All patients are patients, and some of them, I accept, have disabilities. The same goes for staff and members of the public. As long as we are clear that there is no such intent, as I am sure is the case, we are allied in backing the spirit of the amendments.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I begin by reassuring the hon. Member for Romsey that the constitution and the handbook will be, and are, readily accessible to patients, public and staff. The constitution is available in a number of alternative formats in addition to translations in 11 languages. It is available in Braille, large print and audio format, and there is an easy-to-read version that can be used by children and those with learning disabilities. The handbook is available in Braille to those who request it. Those formats are available through the internet, over the phone and by post. NHS bodies have also accessed the hard copies of the document, and are being supported by the Department of Health in promoting the constitution locally. We fully intend to keep the formats, so there is no need to put that in the Bill. The Disability Discrimination Act 1995 already requires public authorities to take reasonable steps to provide disabled people with an auxiliary aid if that would facilitate the receiving of any benefits. I believe that further duties are unnecessary.

The point that the hon. Lady reasonably makes is that we may have legislation, but it is not always delivered in practice. I accept that, but the original legislation must be enforced rather than compounding the problem by saying that it was not always enforced when it should have been under the 1995 Act, so we will repeat it. That does not resolve the issue. The way to resolve it if the law is not being complied with—this does not seem to be the case—is to enforce the existing law. We should not pretend that we can do something just by repeating the same effect in new legislation.

Law making and law enforcement are different, and the option of using the law subsequently to ensure that organisations enforce previous legislation is available to citizens and various representative organisations such as RNIB. It is therefore right that they should use the existing legislation and the new equalities legislation when appropriate to ensure that the various pieces of information are available in the necessary forms. Repeating it in subsequent legislation—we could do that in every piece of legislation—is not the way forward. We have generic legislation, and it should be used.

I submit that the NHS constitution is available in the ways that the hon. Lady hopes, and I hope that she accepts that we agree that it should be readily available in the appropriate format for people who need it. I believe that it and the handbook are available in those various forms.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

Why will it be produced in so few languages, when NHS Direct provides a translation service in 175 languages? I am not suggesting that the constitution should be produced in 175 languages, but if NHS Direct is translating into so many languages, the limited number in the provision will not be suitable for the members of the population who need to read it.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I will take that back to those who are responsible for the matter, and tell them it was suggested in the Committee that 11 languages are insufficient, and that 175 seem to be necessary.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

I want to clarify whether 11 is sufficient; 175 means that a ridiculous amount of taxpayers’ money is being wasted by NHS Direct.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

Having advocated 175 languages, the hon. Gentleman is now withdrawing that and saying that that number is ridiculous. I am not sure where he is on this, but as far as I am concerned we must try to make the NHS constitution readily available to those who may need to access it. I will leave it to others to determine how that ready availability should be determined. The hon. Member for Romsey raised issues concerning people with visual impairment, and I am anxious to ensure that they will have access to the NHS constitution in an appropriate form.

Sandra Gidley (Romsey, Liberal Democrat)

I am obviously pleased that the constitution is available in many formats, and habitual users of Braille, which requires a lot of training, will not have second thoughts about asking for information in their format of choice. My concern is that those whose eyesight has failed as they have grown older may not be used to asking for information in an alternative format or even aware, in many cases, that it is available. It is a bit of a cop-out to say, “Well, it’s the DDA that’s not working so there’s no point in putting it the Bill”, because reinforcing the DDA on numerous occasions may make that Act more effective.

The statistics show that a lot of patients are not given access to suitable formats. The staff seem to be the missing links who, perhaps because they do not have a disability, are probably not aware of the difficulties faced by others in accessing information. I intend to withdraw the amendment, but I think that there should be a little more in the handbook aimed at staff to give them a responsibility to ensure that information is provided in the format most useful to any individual. That is on a slightly wider point than just the constitution, but an early review of the handbook may be the best way to address this matter.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

The hon. Lady has made a useful point about the handbook, and I will certainly give it due and full consideration. Thanks to the wonders of  modern technology I can add that there are 180 countries in the world, and NHS Direct provides language interpreters rather than various translations.

Sandra Gidley (Romsey, Liberal Democrat)

There is another chance to debate the matter further with a new clause tabled later in the Bill, so, for the moment, I am happy to withdraw the amendment.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

I want to clarify the situation regarding the languages in which the document will be available and NHS Direct’s ability to use interpreters, especially for languages as obscure as Cherokee, which the British taxpayer is paying for. We are using interpreters in the UK to help people access the NHS facilities, so where does the figure of 11 languages come from?

Edward O'Hara (Knowsley South, Labour)

Order. Perhaps the Minister would write to the hon. Gentleman.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I am happy to do so.

Sandra Gidley (Romsey, Liberal Democrat)

I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I beg to move amendment 11, in clause 3, page 3, line 3, at end insert—

‘(2) The Constitution must be revised whenever its constituent parts cease to be consistent with legislation.’.

With two O’Briens and an O’Hara in the room it is a blessed relief that we are not speaking Irish or double-Irish. Amendment 11 would revise the constitution whenever the legislation underpinning it changes in such a way as to bring legislation and the constitution into contradiction. Earlier, I set out our commitment to the core principles of the NHS as established in the NHS plan, which was the subject of amendment 5. We will continue to seek to enshrine those principles in legislation—we had some enjoyable teasing out on amendment 7. I believe that the Government intend to continue to believe in that too. However, there is explanatory paraphernalia in the constitution itself, and I am thinking particularly of the responsibility under section 2b which runs:

“You should keep appointments, or cancel within reasonable time. Receiving treatment within the maximum waiting times may be compromised unless you do.”

Sound stuff, leaving aside the somewhat Orwellian veiled threat that it seems to encompass, or perhaps not, although it sounds commanding.

The Secretary of State has just taken up his post and promised a bonfire of the targets. Given the enormous volume of regulations that have indeed been introduced on this Government’s watch, even if the bonfire is as fierce as it was at Buncefield in the constituency of my hon. Friend the Member for Hemel Hempstead, as extensive as the fire of London, or even as destructive as the very fires of hell, I cannot see any of those regulations being burnt to a sufficiently small number. So much legislation seems to be being produced, not least by regulation, that I hope that the Minister will confirm what will happen in the event that the constitution ceases to be underpinned by legislation. It is important that we have a backstop, which this amendment is  intended to provide, in case there is a mismatch—as one can envisage happening quite easily—between the legislative underpinning and the constitution, even as amended, in the overlapping Venn diagram, which I referred to earlier.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

Amendment 11 obliges the Secretary of State to revise the constitution whenever its constituent parts seek to be consistent with legislation. Let me reassure the Committee that it is already our intention to revise the constitution if it ever becomes inconsistent with the law or departmental policy. My noble Friend Lord Darzi put that on record in the other place. I do not believe that a new statutory requirement in the Bill is necessary. Indeed, I would say that, because it is not necessary, putting it in would amount to over-regulation. In fact, the amendment would inadvertently limit the Department’s flexibility and impose an overly bureaucratic approach to how that was done. Indeed, on the face of it, this seems to be an attempt from the Conservative Front Bench to ensure that we do a little bit extra. It will impose extra bureaucracy on the NHS that we just do not need. For example, there could be two changes in legislation in short succession that affect the constitution. It would clearly make sense, therefore, to deal with both of them together rather than be forced, as this additional regulation would do, to revise and republish the constitution twice over, with full consultation each time.

Similarly, it would be perverse to force the Government to make minor and purely technical changes only a few months before a major 10-year overhaul of the constitution, as required in the Bill. The more sensible approach would be to make a clarification in the handbook, which is designed to be easily updated. In principle, the hon. Gentleman’s objective is a reasonable one, but I do not believe that a duty in the Bill is the right way to achieve it. I hope he will therefore feel that he can withdraw the amendment, because he is fulfilling precisely that fault that he criticises, which is over-regulation. This, indeed, if it was passed, would be over-regulation.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

Be it never said, I hope, that I am in favour of lots of regulation. Indeed, I am sufficiently enough of an anorak to have produced three pamphlets on deregulation. I hope that, as a result of the Minister’s reassurance, the Committee will recognise that there is an attempt to ensure that there is not an unnecessary administrative burden, in an effort to have an almost rolling update of the constitution. I can see that there is a need to ensure that some de minimis rules apply, but at the same time it was important to explore it to make sure that this will not fall foul of anything becoming inconsonant with the legislative underpinning, because that is—if I can go all the way back to our first discussion—the ratio decidendi of the Minister, in saying that this contains no new legal rights or causes of action. Therefore, it is absolutely vital that however much we want to maintain a lack of extra bureaucracy, the point is made. As he said, it was a reasonable point and it is very important, because the underpinning of the constitution and the way it is intended to operate is that we do not leave any gaps between the legislative underpinning and the constitution. On that basis, I am happy to withdraw the amendment. I beg to ask leave to withdraw the amendment.

Sandra Gidley (Romsey, Liberal Democrat)

I beg to move amendment 166, in clause 3, page 3, line 4, leave out subsection (2) and insert—

‘(2) A review of the NHS Constitution shall be carried out on the anniversary of its first year of operation by the Secretary of State and at least once in any period if 10 years thereafter (referred to in this Chapter as a “10 year review”).’.

The amendment is simple. It merely places a statutory requirement on the Secretary of State to undertake a review of the NHS constitution one year after its inception. Attempts were made in the other place to secure an annual review, which we would concede is probably a little onerous. However, a number of concerns have been raised about how things will work in practice. In the other place, one of the concessions was that local authorities should be consulted in any review of the constitution. It seems fairly sensible to have a review a year after the implementation date to ensure that we have done our job properly and things have not slipped through the net.

Some groups have raised concerns and suggested that, despite the wide consultation process on the constitution, they might like to make some fairly small amendments. One example is the Proprietary Association of Great Britain, which is responsible for the licensing and promotion of medicines that can be bought over the counter. It would like to extend the section on responsibilities, which includes the part that says:

“You should recognise that you can make a significant contribution to your own, and your family’s, good health...and take some personal responsibility for it.”

It wants to beef that up by saying that health care can start with people looking after and treating their families in the home; in many cases, people can be responsible for preventing ill health, maintaining good health and looking after members of their family with common illnesses in the home. That is quite important because the constitution is very heavy on staff responsibilities and patients’ rights and there is a thinner section—it might be too thin—on the responsibilities of patients. If they are to be true partners in health, patients should accept more responsibility.

Other organisations may want some strengthening of existing provisions and, if there was a review after one year, they could make their feelings known. I would not want the process to be too long-winded or onerous, but some things may not be working as well as intended. It therefore seems sensible to have an early review and then to have a later review at some stage during the 10 years. That is all that the amendment is designed to do.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

Amendment 166 would require the Secretary of State to conduct a review of the NHS constitution one year after it came into effect. The review would be additional to the reviews already proposed to be conducted at least at intervals of 10 years and additional to any review occasioned by the need to alter the constitution because of a statutory change.

I appreciate that the hon. Member for Romsey wants to ensure that the constitution remains appropriate and fit for purpose in a year’s time. However, the amendment is unnecessary. We consulted widely on the draft constitution less than a year ago and we now have a document that carries broad support. That was a very wide and a not inexpensive consultation on the constitution. People would be surprised if one year into it, the consultation  was undertaken again, with great expenditure of time and effort by the organisations involved. We need to be aware that people did engage very seriously. It required a lot of effort from them. Putting that burden on them again needs to be done with a reasonable amount of care. It is not that it should not be done, but there needs to be a reasonable time scale. We consulted very widely and the consultation specifically asked whether legislation should require the Secretary of State to review the constitution every 10 years. There was broad support for that proposal. Very few responses suggested that the constitution should be reviewed more regularly. Most respondents were simply concerned that the constitution should be updated as it became necessary.

I can assure the hon. Lady that it is our full intention to ensure that the constitution does not become out of date. The process in clause 4 for revising the constitution allows us to do that. Indeed, if it becomes apparent that a fuller review is needed within the first year, clause 3 is drafted to allow us to do that. I do not agree, however, that we should mandate now an early review of the constitution and put pressure on the various organisations to participate in another major review. So I should like to reassure the Committee that the Government fully intend to monitor the impact of the constitution on an ongoing basis. The most meaningful way to do that is to collect data on a regular basis rather than wait for the three-yearly report on the impact of the constitution. That will allow us to see how the constitution is taking effect on the ground and to act if necessary.

The hon. Lady asked me about patient responsibilities. We listened carefully to last year’s consultation and the constitutional advisory forum’s view was that the balance of rights and responsibilities was about right. The constitutional advisory forum recognised that we need to be careful not to deter people from getting the services that they needed. Feedback from NHS staff suggests that they are very supportive of the patient responsibilities and they are the group most likely to want to extend. I hope that reassures the hon. Lady and she will withdraw her amendment.

Sandra Gidley (Romsey, Liberal Democrat)

I thank the Minister for that clarification. I am reassured that if things are missed and there are problems there is a mechanism for review. It may be that this would be unnecessary. However, I am unclear about who would initiate such a review. Would it be the Government responding to concerns raised by patients and the public or is there some external mechanism?

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

The Secretary of State would initiate and undertake the review. The Secretary of State would need to make a decision that circumstances required that to happen and that could result from a change in the legislation. It could result from pressure from various groups or it could result from a view that because there had been a number of minor changes it was appropriate to begin the consultation. So there are a number of circumstances in which the Secretary of State could take the view that a new full round of consultation needed to be undertaken rather than waiting for the 10-year period or just review the operation after three years. It is a matter for the Secretary of State.

Sandra Gidley (Romsey, Liberal Democrat)

I am happy with that further clarification. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I beg to move amendment 12, in clause 3, page 3, line 14, after ‘(5)’, insert—

‘(fa) Local Involvement Networks.’.

This causes some grave concern and it may take us a tiny bit longer than the previous couple of amendments. The amendment seeks to add to the list of bodies that must be consulted about the NHS constitution on a 10-year review. Amendment 167 tabled a few days later by the Liberal Democrats does exactly the same thing in exactly the same way. They have added their names to this and will not be moving their separate amendment. I thank them for their support. I find it sad that the Government have consistently sought to undermine the patient voice. It has been a 10-year journey almost to the day for me as part of my experience of the House.

The Government decided to get rid of community health councils. That was announced just a day before we rose for the summer recess in 2000, when they published the NHS plan. Hidden away in the middle of the document was a phrase stating that after consultation, the Government were going to axe the CHCs for not being effective as advocates of the patient voice and for a number of other reasons. They were pretty strident criticisms of the CHCs. I think I am right in recalling that there were 107 of them, of which 4 had been criticised, and well over 100 were regarded as being extremely important to the local communities.

It was something of an outrage, because during Prime Minister’s Question Time, I challenged the then Prime Minister Tony Blair on the matter. He said that the Government were certainly getting rid of them, but of course, only as a result of a widespread consultation. It was perfectly clear that they needed to be got rid of, and that was what was supported. Within minutes, I received a handwritten, three-page, “Dear Stephen. Love, Tony” letter, which was basically a grovelling apology written quickly by someone called Alastair Campbell, saying that the House had been completely misled House: there had been no consultation whatsoever, and it was a complete misrepresentation in the NHS plan document.

We managed to get a stay of execution for a year. But as a result of that, we discovered that the true motive that lay behind that was a real concern on the part of the Government that if there was any ability to have credible criticism of the NHS, it would be regarded as a personal slight to the Labour party. Therefore, the Government replaced CHCs with patient and public involvement forums. Then they found those to be too outspoken as well, particularly through the Commission for Patient and Public Involvement in Health, or CPPIH, commonly known as “chippy”—that seemed to be the way the Government saw them. So the Government abolished those as well, and replaced them with local involvement networks. We had quite a run-out on that during the course of the Health and Social Care Bill just over a year ago. The contempt in which the Government hold the patient voice was shown in tagging the issue of local involvement networks on to another portmanteau Bill—the one about local government.

The reason it is so important—why I am making something of an issue of it—is because lately, the tragedy of Mid Staffordshire hospital has been in part attributed to the cull of LINks, and the lack of a strong local patient voice in holding trusts, NHS executives and  ultimately Ministers to account. It is right that the LINks should be able to comment on the constitution. They provide the most independent and local voice on how Government policy is operating on the ground.

Interestingly, part of the Government’s problem with CHCs was that they were genuinely independent. The trouble with all the successor bodies—we have had many relevant debates in the House on a number of Bills—is that the Government have brought them into the ambit of the NHS, to cease to allow them to be independent. We cannot say that that is an unintended consequence, because the debate has been held over and over again. The trust and confidence of people, particularly those who need their hand held—often at their most vulnerable time—to chart their way through the labyrinthine processes of the NHS, is because they trust something that is independent from it, not something that is from within it. That is the key to this—to try to find the new way forward with something that is independent.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

Just to reassure the hon. Gentleman before the batters the living daylights out of the straw man, it is not the Government’s intention to not consult LINks. On the contrary, we have an amendment in the Bill that ensures that bodies or other persons representing patients will be consulted during the 10-year review—precisely what he is requesting. It will happen in any event.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I am grateful. The Minister says that there is an amendment in the Bill, but I do not see a Government amendment in the marshalled list, which is the only reason why I am asking my questions. I have been waiting to see it, and I hoped that because we put down the amendment, the Government would want to do that.

I believe that I am operating from the latest marshalled list—unless I am wrong—and I will certainly look to receive any advice I can. But I cannot find any Government amendment. If there is an intended amendment, I will be extremely pleased that that has provoked the Minister to intervene and confirm that in advance.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

It is an amendment that was taken in the other place, so the provision is already in the Bill.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

That is helpful. I had thought that it ought to appear in this list of those who have to be consulted. Perhaps we should ensure a read-across. When the Minister replies, we can look at the technical drafting, but this is clearly the most obvious place for the provision. I shall listen to what he has to say with interest. Even if LINks is already included, it is something that needs to be perfected. It would certainly help to demonstrate the Government’s credentials if they are serious about accountability in the health service.

In December 2005, an independent review of the NHS regulatory framework was ordered by the Department of Health. Its chairman, David Currie, wrote to the then Secretary of State, saying that

“the importance of consumers/patients in the values of Health Service reform is frequently expressed but not always so effectively mobilised. Establishing representative national and regional fora to contribute a reasoned collective consumer perspective to the process of reform could well improve both the efficacy and legitimacy of that reform.”

That is clearly important. I suspect that the Minister will pray in aid those words as showing the import of what the Government have tried to do; it gives us a clear steer on what needs to happen. Having done away with the national forums, the Bill gives us the opportunity to reinforce and strengthen the role of LINks. Will the Minister explain exactly how they are meant to work and whether we need to strengthen them, as I would certainly be in the market for that?

Another factor should be recognised. If the Government are earnest about LINks and the whole process of local involvement, they must give patients individual help and advocate their interests within the NHS—and, indeed, in social care, which is equally important for many people, particularly when they are most vulnerable. That also gives us a real opportunity to find developing patterns of behaviours, which is something that gave the community health councils such authority. Through the casualty watch and bed watch schemes, they were able to identify those areas that were causing real problems, and discover patterns of activity across the health service.

Something has recently come to our notice, and I shall use this opportunity to ask the Minister about it. If LINks are to be celebrated by the Government as a powerful and accurate voice, acting as advocates, they should be involved in the constitution and the consultations. However, I am a little disturbed to discover that £3 million has been top-sliced from the budget earmarked to support LINks, and is being used to pay for the time and costs incurred by civil servants, distributed among regional offices, who are doing their best to ensure that LINks are established and encouraged. However, that completely bypasses the National Association of LINks—NALM—which is having some difficulty in ensuring that it is an allowed representative body.

It may be remembered that we had an allowed representative body in the Commission for Patient and Public Involvement in Health, and before that the national council that represented community health councils. Those bodies were important in bringing together the collective wisdom that comes from the individual, atomised experience across such a complex organisation. We can demonstrate how much we want to involve LINks. I am grateful to the Liberal Democrats for their support. Given the Minister’s interventions, I look forward to his confirming that that is indeed what he intends to do, and that we need to perfect the drafting to ensure that it is explicit.

Sandra Gidley (Romsey, Liberal Democrat)

I wish to add only a few brief points, as I agree with much of what the hon. Member for Eddisbury said. It is a great disappointment that LINks in many areas of the country have been slow to get off the ground. The public are not relating to them yet, their powers seem to have been eroded, and they are poorly funded. The Government’s drive over the past few years seems to have decreased the importance of some of these independent groups. Some of the community health councils were not very good, but those that were good were excellent. It has always been a mystery to me why we did not build on the strengths and beef up that structure rather than trying to create something new and then, just when that was starting to work, create the LINks concept. Nevertheless, that is what we have at  the moment. Although the Minister said that the Government were going to consult, I cannot see LINks specifically mentioned in the Bill.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

The hon. Lady is quite right. What we referred to was

“bodies or other persons representing patients”.

The amendment was tabled in the other place as a result of concerns raised in relation to LINks. We do not know what the set-up will be in 10 years’ time, but we want to ensure that patients’ representatives will be consulted.

Sandra Gidley (Romsey, Liberal Democrat)

The Minister is referring to clause 3(3)(a), which is where LINks would fit into the Bill. I am slightly disappointed because it should be a given that LINks are included. However, there are ways in which patients, bodies and “other persons representing patients” can be consulted without going to LINks themselves. Perhaps the Minister is admitting that the LINks experiment has not been an overwhelming success.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

LINks are successful. They are clearly independent of the NHS. They are funded through local authorities and attached to local authority areas. However, it is our intention to ensure that the representatives of patients are fully and properly consulted during the whole course of the 10-year review. We have already consulted local organisations representing patients as part of the review that resulted in the introduction of the constitution. My noble Friend Lord Darzi put on the record in the other place the fact that we would consult LINks in any review of the constitution, just as we did during the initial consultation. It is our intention to work with LINks both on 10-yearly reviews and on any more minor revisions. The amendment is therefore unnecessary. We listened to the debates in the other place and to concerns raised by LINks and others that we needed to refer specifically to patients bodies in the consultation. The amendment was then tabled requiring the Secretary of State to consult

“bodies or other persons representing patients”

during each 10-yearly review of the consultation, and, as the hon. Lady said, that provision is in clause 3(3)(a).

Hon. Members will be aware that it is not necessary for legislation to list in detail every organisation and every body that needs to be consulted. It was agreed in the other place that the phrase,

“bodies or other persons representing patients”

strikes the right balance. It ensures that patients and their representative organisations are specifically consulted while respecting concerns about listing large numbers of organisations. Although we refer to LINks, there are other organisations that represent all sorts of groups in the NHS. LINks address both health and social care issues. It was for that reason that they replaced CPPIH and patient forums, both to link public concerns and to ensure that social care and health can be dealt with together and considered in the round. Therefore, we want to ensure that local organisations are fully consulted during the course of a 10-year review and any other revisions.

Patrick Hall (Bedford, Labour)

For the record and for the sake of clarity, while there are many private, voluntary and charitable patient groups in this country, it is important to make it clear that LINks are intended to be a public as well as a patients’ voice.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

My hon. Friend is right. I entirely accept that. LINks are a primary source of much of the patient and public reaction to Government initiatives on health and were important to the consultations that we have recently undertaken.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I am pleased that through that exchange we have ensured that there is complete absence of any uncertainty about the Government’s intention to include local involvement networks—their own creation—in clause 3(3)(a). The fact that has been put in generically perhaps reflects the fact that successive bodies have represented patients under the Government’s watch and that the Government did not want to bind their commitment to LINks necessarily being the last word.

I met representatives from LINks during the interval between today’s Committee sittings. One of the things that we discussed is how they could transit to the health watch that we have proposed for a number of years, ensuring that that independent and powerful patient voice can have real influence in how services are delivered and how we consult on the constitution .

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

Did I hear the hon. Gentleman right? He wants to reorganise patient groups again, having complained previously about their being organised.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

No, the Minister did not hear right. I was very careful to say “transit”, because we have made it clear that the last thing that we would do is to unpick LINks. However, we would enhance and reinforce both their role and what they do.

I was pleased to hear the hon. Member for Bedford make a contribution. I am happy to put on the record the fact that he fought an at times lonely but noble fight on CHCs a decade ago. He has made a valid point about the public role, as well as the role for the individual patient.

In light of our exchanges, I need not press the amendment to a vote. We need to make sure that there is not only involvement but a real attempt to understand how important the independence of the voice concerned is, in order to engender the trust and confidence that enables patients to feel that they are being well represented in the right way. LINks also have the broader role of identifying the pattern of experience and behaviour, and of spotting if anything goes wrong. All of us have the tragic and worrying experience of the Mid Staffordshire trust in mind as we consider such matters. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I beg to move amendment 13, in clause 3, page 3, line 24, after ‘NHS’, insert ‘or social care’.

We can be a bit briefer on this amendment, which questions the definition of “carers” in the Bill, something of particular interest to all of us in light of Carers Week having taken place last week. Currently the Bill defines “carers” as

“persons who, as relatives or friends, care for other persons to whom NHS services are being provided”.

A somewhat strange contradiction seems to exist in that definition of “carers” being put forward by the Government.

The Committee should note that carers were only put in the Bill in the other place. That was very welcome, and I am glad that the Government were prepared to show acceptance. However, we need to be sure that the amendment that was made in the Lords is seen through in both spirit and letter. Amendment 13 would change the Bill to refer to

“persons who, as relatives or friends, care for other persons to whom NHS or social care services are being provided”.

The important addition is the words “or social care”.

Section 5(4)(b) of the Health and Social Care Act 2008 already has a statutory definition of “carers”. In that Act, which the hon. Member for Romsey and I spent many hours debating in a room just along the corridor, the definition is

“people who care for service users as relatives or friends.”

What seems strange is that that is not the definition used in the Bill, provoking the question why it is not being used. Is something intended by changing the definition, or are we in danger of spreading confusion?

I hope that the Government are not worrying about the numbers—whether that is 5 million or 6 million carers. I think that there are 5 million in England and 6 million in the UK as a whole, but that is often thought to be an underestimate, as is the number of 175,000 child carers. I do not believe that the Government seek to use the definition to change anything to do with the numbers, but it is important to recognise that there was a fairly settled position in the Health and Social Care Act which seemed to be accepted by all the carer organisations.

It is fitting to raise that point, particularly when we have just had carers week. Like so many stakeholders, carers are yearning for the publication of the Government’s social care Green Paper. That has been promised by spring this year, so technically no later than 25 June. As we know, carers bridge the gaps in a system which have remained unaddressed for too long.

I hope that the Government take the point seriously, and in the spirit in which it is intended. The amendment seeks to ensure that we have a clear definition and an explanation as to why, if the Minister wishes to pursue the matter, he has not adopted the same definition as that proposed by the Government a year ago.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I certainly agree with the hon. Gentleman that carers are an important group in our society. We have the highest regard for them and for the work that they do. We are not changing our definitions in relation to the Health and Social Care Act.

Amendment 13 would expand the definition of “carers” to include those who care for persons to whom social care, as well as NHS services, are provided. We propose a duty on the Secretary to State to consult carers, in their capacity as carers for those who receive NHS services. Where a carer cares only for someone who receives social care services, the constitution would not be relevant. That is because the constitution is for the NHS, not for social care. There would be a responsibility to consult NHS services, but not in relation to a non-existent constitution relating to social care.

Sandra Gidley (Romsey, Liberal Democrat)

It would be helpful for the Minister to clarify the definition of “NHS care”. Does he refer only to that element of care in a nursing home, for example, that is funded by the NHS? The difficulty with nursing homes is that there is not always a clear division between health care and personal care. There are endless debates with funding panels over that issue. It is difficult enough for commissioners to provide absolute clarity on that, and a patient or carer might have great difficulty in differentiating between health care and social care. People often feel aggrieved when their loved one has needs that are related to a health condition—in cases of Alzheimer’s, for example—and those needs are deemed as being related to personal care rather than to health care. Will the Minister provide greater clarity about where that boundary will be drawn? It is a difficult issue.

Edward O'Hara (Knowsley South, Labour)

Order. That is rather a long intervention. I call Stephen O’Brien. I mean Mike O’Brien.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

Thank you, Mr. O’Hara. Having more than one O’Brien can get a bit confusing. Of course we accept that health care and social care are interlinked. It remains a Government priority for the NHS and social care systems to work together on the constitution, and it highlights the importance of joined-up services.

For example, principle 5 reads:

“The NHS works across organisational boundaries and in partnership with other organisations in the interest of patients, local communities and the wider population.”

The constitution also contains a pledge to make the transition as smooth as possible when patients are referred between services such as the NHS and social care or where services are jointly provided. It is particularly relevant to transitions between health and social services. Anyone who cares for someone in receipt of an NHS service is captured by this and is therefore able to be consulted.

NHS services must be paid for out of NHS funds. The obligation is on the Government to consult the carers on the NHS constitution. It would therefore be rather odd to seek to consult those merely receiving care services about a constitution that does not directly apply to those care services. Where there is a factor of NHS provision in the patient’s component of care—some of it might be social care and some might be NHS care—there is a requirement to consult representative organisations.

The concern that the hon. Member for Romsey expressed about the situation is being addressed, because we are looking at who needs to be consulted and what they need to be consulted on. They need to be consulted on the NHS constitution, because it applies to them. If it does not apply to them directly, there is no obligation to be consulted on the social care itself. That will happen separately. Indeed, the Government will in due course publish a major Green Paper on the reform of the care and support systems. That is a different issue. It is interlinked, but is not about the NHS constitution.

It is appropriate to say that carers will be consulted when there is an NHS factor in the care provided. I hope that that reassures the Committee that the Government theme of partnership is clear. We want to work closely with those providing social care, which is an important component. We want to ensure that carers  are properly consulted, but that they are consulted on a particular thing—the constitution. They will be consulted only on that. In relation to other matters, such as social care, consultation will take place in other ways. I hope that that reassures people that it will be relevant to consult only those who care for people receiving NHS care.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I have listened to the Minister and recognise that he does not intend to do anything by sleight of hand. I dare say we will come back to the issue when we deal with direct payments in chapter 3, but the more that we look at packages of care that straddle the NHS and social care, it becomes more important, because it is difficult, as was mentioned, to disentangle care services that are provided by the NHS and those that are an extension of care packages.

We have about 30,000 people under continuing care, which is an NHS provision that carries forward into the social care context, but that is becoming more fungible as we look at the growth of direct payments, individual budgets or personal health budgets. That is the direction that I think hon. Members on both sides of the House wish to see pursued. It is appropriate and relevant to individual patients and those who need care, and it is something to which we will need to return. In the meantime, I am prepared to postpone some of the discussion until we get on to direct payments and I will take the Minister’s assurance at face value. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

We could discuss staff and contracting at this point, but to some degree we have dealt with that satisfactorily. Prompted by my experience in Cheshire, I want to cover something raised by provisions in subsection (8), although it does not warrant an amendment. Because of Government edict, we ended up having to abandon the historic county of Cheshire and impose two new unitaries—the East Cheshire unitary authority and the West Cheshire and Chester unitary authority. I want to ensure that the Minister knows that the list in subsection (8) includes county councils, district councils, London borough councils, the common council of the City of London and the council of the Isles of Scilly, but not unitary councils. Where, therefore, in that list do the new East Cheshire unitary authority and the West Cheshire and Chester unitary authority sit? That might be a drafting point, which has a consequential effect on Government legislation in other areas. If the Minister does not have an immediate answer, I am happy to accept a letter.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I am glad that the hon. Gentleman is happy to accept a letter. I will look at it.

Edward O'Hara (Knowsley South, Labour)

Indeed, in the north-west we have to learn to refer to the Cheshires.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

But the Cheshires will only get one allocation of money.