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

I beg to move amendment 16 , in clause 11, page 8, line 29, after ‘Trust’, insert

‘and may also provide for an appeals process’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss the following: amendment 190, in clause 11, page 8, line 29, at end insert—

‘(4A) Any overpayment made by the Secretary of State shall not be recoverable under subsection (4).’.

Amendment 191, in clause 11, page 8, line 29, at end insert—

‘(4A) The regulations may make provision for the use of any surplus arising from the direct payment by—

(a) the patient; and

(b) the Secretary of State’.

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

Good morning, Mr. Key. Somewhat to our surprise, but great pleasure, we find ourselves serving under your chairmanship. Thank you for stepping into the breach to ensure that we have a continuing, uninterrupted consideration of the Bill. We look forward to making good progress.

Amendment 16 aims to protect individuals from the unwarranted removal of money from them by the Secretary of State. We have seen how the Government are not beneath top-slicing PCTs to bring them into line, both financially and politically, to generate a central war chest. I am concerned that this provision could be used to do the same to those with direct payments, and I hope that the Minister will reassure us on that.

Amendment 190 comes in the light of the Government’s tax credit and other fiascos. Will the Minister confirm that if overpayments are accidentally made, the Government  will bear responsibility and not the individual, and, above all, that the individual will not be at risk of the cost for such error, inadvertency, incompetence or plain negligence?

Amendment 191 questions what plans the Government have for surpluses in the direct payment. Will the patient be able to transfer some of it for personal use? That might reward and incentivise the efficient use of resources. Would it roll over to the next year, or would it be clawed back by the PCT or the Department? If so, how would efficiency be incentivised? The Minister half covered that, somewhat affirmatively, in the reply he gave last week. So I look forward to his confirming and amplifying that.

I am concerned by paragraph 136 in the explanatory notes, which states that new section 12B(2)(h) means that the Secretary of State

“may or must require all or part of direct payments to be repaid, for example, when a significant surplus has accumulated.”

No cause is given for that, just the fact of accumulation. What does the Minister classify as significant? Surely the circumstances in which the surplus accumulated should be taken into account. The reverse is, of course, when there is not enough money in the tin; in the other place, Baroness Masham pointed out that it had happened to her in social care. I hope the Minister bears that in mind when he responds.

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

May I welcome you to your post, Mr. Key? It is a great pleasure to serve under your chairmanship and I hope that we make speedy progress under your tutelage.

Amendment 16 provides for creating an appeals process where money given in direct payment needs to be reclaimed by the NHS, such as in the event of fraud or abuse. I support the principle that if money given through a direct payment is to be reclaimed, then the process for doing so should be fair and transparent, and the individual should—and does—have the right to redress. That right is clearly set out in the NHS constitution. Any complaint about NHS services should be dealt with efficiently and investigated properly. The NHS complaints procedure has recently been reformed to make it more efficient and robust.

A complaints procedure would apply to any decision to reclaim a direct payment. Moreover, if not satisfied by that procedure, a patient may ask the health service ombudsman to look into the case. Clause 12 expands the role of the ombudsman to cover services delivered through direct payments precisely to ensure that people are suitably protected. It is worth reiterating that PCTs providing direct payments are still providing NHS services, and patients are still covered by all safeguards protecting them and their dealings with PCTs.

Amendment 190 would exclude repayment of a direct payment where the Secretary of State has made an overpayment. We think that if a certain amount of money has been applied, it is for achievement of a particular purpose. If that purpose is achieved, a review will need to be taken into the surplus. This case is different from care cases in that an amount of money has been agreed for a person with a prolonged illness or condition and they would be expected to use that money to manage their condition. If they are able to do that  more efficiently, effectively and cheaply than the PCT, that is fine—the money should be deployed in maintaining and improving that condition. Provided it is for that purpose, it should be possible to negotiate and agree to it. However, it may be that the amount of funding initially agreed is in excess of that required and a mistake has been made, and it is right that a review should take place at that stage and that a determination should be made about whether the appropriate figure was or was not calculated at the beginning. We want to ensure that those who use their funding efficiently are able to retain it for a similar purpose within the context of their care and budget. We do not want a situation where, should there be a miscalculation or an issue arises that should not have arisen, somebody ends up not deploying money for their care.

There is broad agreement that that is the outcome that we want. With regard to the Secretary of State recovering money to build up a war chest, we are not talking about amounts that would make a big difference to the national health budget one way or the other. Initially we are looking at 70 or so projects, which would assess whether the process of direct payments can be refined and expanded or whether we want to change it in some other way. Building up a war chest is unlikely and I assure the hon. Gentleman that the Government would not contemplate that. Frankly, it would be pointless given the sums involved.

Regular monitoring will ensure that any surpluses or shortfalls in budget are identified quickly. It is important that we not only deal with surpluses but also budgets that are underfunded, where the money is insufficient to remedy that; it needs to work both ways. That is the objective and I hope with those assurances that amendments 16 can be withdrawn by the Opposition.

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

I have listened to the assurances and I am glad to say that my concerns are somewhat assuaged. I still have a concern about the building up of a war chest, which the Minister sought to dismiss. Clearly, while we are in the pilot stage, what he says in terms of the sums of money must be right, but if the pilot is to mean anything—we are about to come on to this—when it is rolled out throughout the country, the cumulative amounts of money will be potentially significant. We need to get the principle and the ideas right now; that is the purpose of this scrutiny.

If there is a surplus that can be applied effectively in support of the purpose for which it is given, it is in effect one of the motivators to efficient procurement and the necessary contestability for getting higher quality services. I think that we are at one on that. My remaining concern, which might need to explore on Report, is how one defines purpose, given that at the moment the word “significant” is used. As part of his answer, the Minister sought to distinguish “purpose” from “miscalculation”. In practice this could be important because there will be residual worry for people in receipt of payments that they could suddenly be clawed back. People make their dispositions on the understanding that they have the amounts that they have been granted.

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

Just to reassure the hon. Gentleman, it is not our intention to claw back funding where people have made dispositions and, as a result, created a surplus through efficiency. This is provided that the  surplus is to be deployed for the purpose of the health budget. If, for example, the person’s condition had ceased, that might be a factor that would need to be reviewed. The aim is not to claw back moneys that, because of efficiency, had arisen as a surplus.

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

That added assurance is helpful, and I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 192, in clause 11, page 8, line 29, at end insert—

‘(4A) The maximum period permissible in regulations made under subsection (3) is three years.’.

This deals with limiting pilot length. New section 12C subsection (3) reads:

“A pilot scheme must, in accordance with the regulations, specify the period for which it has effect, subject to the extension of that period by the Secretary of State in accordance with the regulations.”

This is a far-reaching power that would enable the Secretary of State to prolong the pilot, even indefinitely, if he wanted to. The noble Lord Darzi in the other place said:

“We intend the personal health budgets pilot programme to run for at least three years, with direct payments being used for at least two years.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC251.]

This was in response to a reverse point by Baroness Barker about the individual budget pilots. In some places the Government organised those—we would argue—so badly that people had been using them for only a few weeks or months before they came to be assessed. This was admitted by researchers in the IBSEN report. If Lord Darzi is content that three years is the time taken to run a pilot, it seems sensible that it should be on the face of the Bill at least as a benchmark expectation, if nothing else.

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

The hon. Gentleman is right, but my noble Friend Lord Darzi had suggested in the other place that it is our intention to pilot health care payments. The maximum limit will be a period of three years. Most projects with direct payments will take around two. The system will take some time to set up, so we will have a set-up time, the running time and then an evaluation period. The aim is that we should be able to have a three-year block area where about 70 projects can be properly evaluated. They will have slightly different start-up and finish times.

The drafted provisions require the period for which a pilot would run to be defined and we expect most sites to be authorised within two or three years. However, it may be the case that a site takes longer to report than anticipated, either due to local circumstances or an unforeseen complication. We would therefore need flexibility to extend the period of the pilot to more than three years if necessary, in order properly to evaluate that site. The Bill allows for this but the amendment would prevent that from happening, so I hope the hon. Gentleman will feel able to withdraw it.

Essentially, in terms of getting this done, we need to have a block of time where we can set it up, ask for the various bids to be examined and allocate the funding. Then, we can start to run the projects, provide the level  of support that they need, get to the end, evaluate it and have an outturn date which is within approximately three years of the start of the pilot schemes. That is why there is a difference in terms of two to three years.

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

I will not press this to a Division. This exchange is on record, so those who are concerned about understanding the way forward have a clear idea that the maximum limit is expected to be three years, with most taking two. The Minister will be aware that our concern arises because of the Government’s track record in relation to pilots. We have often had pilots without the follow-through, so we now want to ensure that there is a clear programme that is expected not only to evaluate them well, perhaps with this reserve power that if one or two stray over the time they can have their evidence captured for the general application, but above all to make sure that there is an expectation of roll-out. On that basis, I beg to ask leave to withdraw the amendment.

Sandra Gidley (Romsey, Liberal Democrat)

I beg to move amendment 171, in clause 11, page 9, line 14, at end insert—

‘(4A) The regulations must make provision that the pilot schemes are fully completed before a recommendation is laid before Parliament.’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss the following: amendment 172, in clause 11, page 9, line 17, at end insert—

‘(aa) for a review to be carried out that involves patients, staff, voluntary organisations and representative bodies.’.

Amendment 132, in clause 11, page 9, line 26, at end insert—

‘(d) the impact of direct payments on health inequalities.’.

Sandra Gidley (Romsey, Liberal Democrat)

I extend my welcome to you in the Chair, Mr. Key. Amendments 171 and 172 aim to ensure that any pilots of direct payments are completed and would be reviewed, not only by an independent person, but also by patients, staff and voluntary and representative bodies. The number of amendments that have been tabled around review reflects a concern that, very often, pilots are not properly evaluated before they are implemented in the NHS. With regard to amendment 132, about which I shall talk briefly, it is right to consider the impact on health inequality, but all the evidence shows that most public health projects are poorly evaluated and there is little evidence about what works and what does not, although there are lots of well meaning projects out there. This is an attempt to focus attention on the review methodologies beforehand—we need to have in place, at the outset, some idea of what impacts we are looking for from direct payments.

In the other place Lord Darzi said:

“Our general intention is that the pilots should be clearly defined from the start”—

the Minister has just confirmed that—

“I can put on record our intention to evaluate all the direct payment pilot schemes, not just some of them...We intend the personal health budgets pilot programme to run for at least three years with direct payments being used for at least two years. The one-year requirement is surpassed by our policy”.—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC252.]

The Minister did not commit, however, to completing the pilot project, or formally to reviewing, or consulting upon, the outcome of the pilots. The consequences of such a major change to the delivery of health services, especially to the intended group of direct payment recipients, should really not be rushed. A number of concerns have previously been raised about that. Direct payments for social care have been in place for some time, but there are many differences between health and social care, which were highlighted in a previous sitting.

It would be useful to hear from the Government that there will be proper evaluation before a final recommendation is made to Parliament. The reason for including voluntary organisations and staff organisations is that there may be significant unforeseen impacts on NHS staff. It is always useful to consult with user groups—I hate the term “service user”, but it seems to be the current jargon—because they will be aware of the real-life implications that affect people on the ground, which are not always picked up using formal methodologies. These amendments are an attempt to seek the Minister’s reassurance that all these factors will be taken into account.

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

I am happy to support amendment 172, which relates to points that we have made before on LINks, and the hon. Lady includes staff groups and so forth. On amendment 171, we clearly have to get the balance right between making sure that the evidence base is there and that we are not unduly complicating things. I hope the Minister will give us an assurance that the pilot schemes will have a significant period to run before they are reviewed, because of the example we have had. To some degree, it is the mirror image of what we discussed on the last point.

Our amendment 132 concerns the Government’s figures on health inequalities. The reason I am very anxious to include the effect that direct payments have on health inequalities is partly because I think it is common sense that they will have a major effect and it would be something of a dereliction of duty if that were not properly taken into account and measured. We are conscious, as we consider the Bill, that the inequality gap in infant mortality rates has not reduced sufficiently to meet the Government’s target. The inequality gaps in male and female life expectancy at birth have both increased since the baseline, by 2 per cent. for men and 5 per cent. for women. If trends continue, the Government’s targets will also not be met. The relative gap between the routine and manual groups in the population has widened over recent years since the target baseline, and the number of sexually transmitted infections has doubled over recent years. Because of this inability to address the inequality and poverty that have affected areas even beyond health policy—health is a key weather vane in respect of inequalities—a proper measure of effectiveness of direct payments will be the impact that they make on this poor record.

John Horam (Orpington, Conservative)

Further to the point made by my hon. Friend the Member for Eddisbury on health inequalities, the Minister will be aware that  there are considerable differences. Even in an affluent borough such as Bromley, there are areas where health is much worse than the average for the country, never mind for Bromley. This may reflect my ignorance, but what is the size of this pilot project? Does it cover the whole Primary Care Trust or is it a much smaller area? Is it a group of patients attached to one general practitioner? What size is it? This is important. Will the number of pilots reflect the health inequalities throughout the country. Clearly, we need to take bad areas and good areas and average areas in order to get some sort of feel about how direct payments will work.

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

It is our intention that we should properly evaluate all these trials. These pilots are enormously important for assessing the impact of direct payments and it is right that we should have a full and comprehensive evaluation of them. The Liberal Democrats’ amendment would mean that we could not move forward with direct payments until all of the pilots had been completed. Some of the pilots may be delayed for all sorts of reasons. They may go beyond three years. They may have to carry on because of the health condition of individuals. Therefore we want some flexibility in the way in which we deliver the evaluation. We also need to make sure, however, that this evaluation is comprehensive. This is why we have a spread of 70 projects across a range of types of income, area and condition, so that we can have a proper assessment of where these projects would bring benefits from direct payments and where they would not. The hon. Member for Romsey is right to say that we need fully to evaluate this and that therefore we cannot try to rush through the evaluation. The evaluation, however, will be going on alongside the pilot. We do not necessarily always have to wait until the end before much of the work on evaluation takes place. One of the things we have to evaluate is how we get applications in. How well is it done? Who gets them? This can be done early on therefore and it can be evaluated well within the initial year. Therefore, we have a process of evaluation that evaluates the different stages of the pilot and identifies what works and what does not work. The main evaluation, however, will have to wait until the end so that we can look at the impact it has had on individuals.

We want to ensure that we involve all the key stakeholders—the patients, the staff, the voluntary organisations, the representative bodies—in looking at how direct payments work. It will be important in evaluating the impact of direct payments on particular conditions how not only individuals react to the handling of funding for direct payments but also how the various patient groups see the implications of direct payments on that condition. We may end up with an outcome that says that for particular conditions direct payments are beneficial, while for other conditions they are not. That is probably where we will end up, but let us see where it goes. We need to have a broad spread of the various types of direct payment pilots. We then need to have a full and proper evaluation of them. We need to involve the various patient groups, and that is our intention—it is not necessary to spell it out in the Bill. This would not be an effective evaluation of an important step for the NHS unless we involved the patient groups. In our policy statement “Personal Health Budgets: First Steps” we have specified that one of the principles of personal health budgets is to tackle inequalities and protect  equality. Our advertisement for the evaluation, which was published in April, specifically asked research teams, who are now being recruited to conduct those evaluations, to consider how the impact of personal health budgets differs between patient groups, looking not only at health conditions but also socio-economic groups and patient characteristics such as ethnicity. The advertisement also asked teams bidding for the evaluation to consider how easily individuals from different groups can access personal health budgets and the support that they would need to do so. We are in the process of selecting the evaluation teams to do that. They will be responsible for ensuring that the views of all relevant stakeholders are considered in the evaluation process and that the impact of direct payments on health inequalities is comprehensively reviewed.

In summary, we want a broad spread in the size and nature of the different pilots. We want to ensure that we are looking at the different characteristics of both income and condition and that we have a spread, where we are able to get that, of particular conditions.

John Horam (Orpington, Conservative)

How many people will be involved in one particular pilot? What is the normal number that you would expect?

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

The broad concern would be to target direct payments at individuals who have a particular medical condition to see if they can manage the budget in a way that best delivers for them. We are also looking at small groups of people who want to work together to evaluate their budgets to see how that would operate. We want to look at a spread of different types of project to see what works. I suspect that we will find that certain things work and others do not. Unless we have a wide enough spread, geographically and otherwise, we will not be able to carry out that evaluation at the end of the three-year period.

John Pugh (Southport, Liberal Democrat)

What would constitute a good result of a review of a pilot? A valid point could be made that the socio-economic groups exploit private payments in different ways, some to greater benefit and others lesser, and, as has been suggested, that may accentuate health inequities. If there is an improvement in how NHS resources are used, if there is a wholesale uplift in health care and the efficiency in which provision by the state affects health outcomes, the Government could reconcile themselves to that—presumably in the same way that people sometimes argue for tax arrangements that may not produce more equity but produce greater productivity and benefits for the state as a whole. What is a bad outcome for a review? A degree of inequity could be introduced by the wholesale introduction of direct payments alongside a wholesale improvement in the efficient use of resources and perhaps wholesale improvements in health outcomes.

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

That is a perceptive and important question. If direct payments accentuate inequalities, then they have failed. It is likely that some individuals will be better able to manage budgets than others. That may well be attributable to their level of education and various attributes of their medical condition. We will have to evaluate this with care. Our aim is to ensure that we do not accentuate inequalities, particularly social  inequalities, and also that we have an efficient use of resources, but the primary reason we are introducing this is to see whether we can better ensure that the treatment of individuals is carried out so that they will get the highest benefit. It is not either to save money or to spend more. The amount of money is not the key issue; the key issue is, what is the real benefit? If we can, as a result of this, ensure that health service provision for groups of people or individuals, because of the nature of a particular long-term condition that they have, is improved, then we are looking at a success.

The evaluation will be quite tricky; I do not hide that from the hon. Gentleman at all. We will need to balance a number of factors, and at the end of the process we will have to make some judgments as to how and in what circumstances to proceed. That will be the result of the evaluation, which will be open and published and engage the various groups, and then Parliament will have to make a decision about whether it wishes to extend beyond the pilots, and if so, in what form. I hope that with those explanations, the amendments can be withdrawn and we can proceed with direct payments.

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

I was particularly interested in the intervention by my hon. Friend the Member for Orpington, who was asking, in effect, what the scale of the pilots will be. I understand from the Minister that there are about 70 projects currently in mind, of which some will be individuals, some will be groups and some could even be quite large groups. The issue, which I think the Minister was hinting at, is not only that there is an effort to ensure that these pilots have a proper, realistic and tough research-based evaluation—which will be difficult, as the Minister made clear—but that it will be difficult, scientifically, to get a proper statistical distribution that will look across all the various types, conditions, circumstances, socio-economic backgrounds, and levels of educational attainment, and that will make a big difference. The big issue as I see it, which is why our amendment 132 is germane—I shall not press it to a vote, but we may want to come back to it on Report; it may even be something that the Government want to consider in order to improve the Bill on Report—relates to the answer the Minister gave. He confirmed my motive, which was that this is not intended to exacerbate, but to help to address health inequalities, although the primary purpose is on an individual basis, where the ultimate test will be whether this helps to improve patient health outcomes, rather than detract or be high-differential in terms of cost. That is the important area, and a secondary benefit would be to help to address health inequalities.

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

I agree with most of what the hon. Gentleman said, but he said that the pilots can apply to a group of people, even a large group; that is not the intention. They are primarily for personal budgets, but they might extend, say, to a couple of people with a particular medical condition living together, or a group of people with a particular medical condition, who would be able to manage personal budgets and are, perhaps, living in the same accommodation. We are not talking about large groups here; we are talking primarily  about personal budgets for individuals and those who might want to work together as part of a personal budget project. I do not envisage that a large group of people would decide to have the money and run their own health system; that is not where we are at all.

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

I am grateful for that answer to my question. It was the question I was asked on Friday when I visited an excellent care and nursing home in my constituency—Prospect House in Malpas. As there is a large collection of people there suffering from the same age-related conditions, there was a question mark as to whether there would be a pooled set of direct budgets, which would slightly defeat the aim of basing help on a personal needs-based assessment.

I am grateful for that intervention because it is clear the Minister has in mind that help is effectively to be directed at the patients on a personal basis. I hope that will clarify the matter for my hon. Friend the Member for Orpington. I will not press the amendment at this point, but I hope the Government will listen carefully and think about how to address this better in the final shape of the Bill.

Sandra Gidley (Romsey, Liberal Democrat)

The Minister seems to be saying all the right things and there clearly is an intention to evaluate. Lessons could be learnt from social care because some of those early direct-payment trials were not terribly successful. It was only by continuing and modifying that we eventually ended up with a model that is acceptable to more people.

Some key questions have been asked today. My hon. Friend the Member for Southport hit the nail on the head—if you are improving health generally that must be a good thing, but if you are further improving the health of people with a longer life expectancy, is that quite such a good thing? It is an argument we can bat around all day. What I am not clear about is the criteria for these pilots. Although I am happy to withdraw the amendment, it would be helpful if the Minister wrote to us outlining the methodology that will be used for evaluation. It seems that many of the pilots could have been set up in different ways. I am not quite sure how one would compare 70 different pilots, all of which apparently have small numbers of people—something I had not realised. That is difficult. It would be helpful for the Committee to have more information about that before Report. It would also be useful to know how many patients are involved in these pilots. Fundamentally, if—as the Minister indicated—the numbers are small, we could be making some quite significant changes to the NHS in the future with a small evidence base. If the Minister can provide us with that information it will be helpful. However, at this stage I beg to ask leave to withdraw the amendment.

Sandra Gidley (Romsey, Liberal Democrat)

I beg to move amendment 173, in clause 11, page 9, line 33, leave out lines 33 and 34.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss amendment 142, in clause 11, page 9, line 34, after ‘this’, insert ‘Part of this’.

Sandra Gidley (Romsey, Liberal Democrat)

The amendment would delete the entirety of paragraph (8)(b) from new section 12C, which allows any other provisions of the National Health Service Act 2006 to be amended, modified or repealed—for example, where it has become apparent that this is necessary for a general roll-out of direct payments. The reason for tabling the amendment was that new section 12C(8) contains a wide-ranging power to amend or modify the NHS Act. The Delegated Powers and Regulatory Reform Committee commented on that during its examination of the Bill. They described this as a “Henry VIII power” and concluded that it was

“limited to facilitating the exercise of the powers to make direct payments.”

Other organisations have raised concerns that in fact this may not be the case and there is no sunset clause here. Given that the Government would like to start pilot projects this year, it is somewhat surprising; the inclusion of a sunset clause would reassure people that the power was only limited to the direct payments. This is to seek clarification on the Government’s intentions, because it is a wide-ranging power and could have been restricted if that was the sole purpose of its inclusion in the Bill.

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

Both amendments seek to limit the apparently wide-ranging powers introduced for the Secretary of State over the 2006 Act. Subsection (9) clearly limits those powers, but the power is still vast, as the Secretary of State needs only to be able to state that the action is in regard to direct payments to wield it. It is, though, subject to the affirmative resolution. In terms of the amendment, this is a Henry VIII power, although Lord Justice Laws suggested—I think in the 2002 metric martyrs case—that it was unfair to attribute such powers to His late Majesty, who reigned 100 years before the civil war, and longer yet before the establishment of parliamentary legislative supremacy. I hope the Minister can confirm whether the power could be used to remove the measures that restrict this to pilots as much as to remove the pilots from the 2006 Act altogether.

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

Allowing the Secretary of State to make an order repealing the limitation that direct payments may be made in pilot schemes only is the aim of new section 12C of the 2006 Act. It provides a power, effectively, to extend direct payments nationally should the pilots be successful. That is the objective of the exercise. Amendment 173 would remove that provision and amendment 142 would significantly restrict its scope. So the amendments would be made to part 2, and not the other 13 parts of the 2006 Act.

I can assure members of the Committee that the provision is not intended to, and does not, give the Government free rein to rewrite NHS legislation by order—and I am conscious that the words I use can be prayed in aid in any subsequent interpretation. It is intended that the provision would simply allow us to make any consequential amendments to the NHS Act that might be necessary to facilitate the wider roll-out of direct payments following the pilots that are being undertaken. It is not intended to go beyond that, or to create a general power to make any substantial changes beyond making a national provision of direct payments, should that be possible, in a limited number of cases where those limits are constrained by the nature of the  condition and the outcome of the evaluations that will take place at the end of the pilots. The provision is reasonably clear and is aimed at enabling us to do what works as a result of the pilots and spread it throughout the country. We do not intend to give the powers wider application.

As the hon. Member for Eddisbury said, the affirmative resolution procedure would be used in relation to this. That provides a significant safeguard and ensures appropriate accountability to Parliament. That said, I hope that the hon. Lady will withdraw the amendment.

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

On the basis that it is almost 30 years to the day since I last learned statutory interpretation rules—and given that I believe the Minister is right that what he has said is on the record and can be prayed in aid—I am confident that the limitation now rests as written. I am happy not to press the amendment.

Sandra Gidley (Romsey, Liberal Democrat)

There is little more to add and I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 17 , in clause 11, page 9, line 42, leave out ‘Secretary of State’ and insert ‘patient’.

As we canter to a close on clause 11, in this amendment to proposed new section 12D we return to where we started at the top of the clause, putting the patient at the heart of the legislation and indeed the care. I can see that the Secretary of State might want to commission information and support services, but will the Minister explain why legislation is necessary to support that? Surely it comes under the normal general duty and remit of the Secretary of State. The question the amendment poses is whether the individual will be able to commission support and information services as part of his or her care plan.

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

The aim of the power, which would be delegated from the Secretary of State to PCTs, is to allow the NHS to work with other organisations to develop direct payments. A PCT may choose, for example, to commission a voluntary organisation to undertake an assessment and agree a care plan for patients, or it may arrange for a social enterprise to offer support or brokerage services. For example, if a budget is provided to an individual, that person may want to use another organisation either to manage the budget itself or to provide access to particular kinds of care. An example is agency nursing, for which a brokerage may well broker on behalf of a patient.

There are different ways therefore in which we need to have provision for organisations beyond the NHS itself to be able to deal with some of these issues around the budget, but also to make sure the NHS’s finances are safeguarded during that process. It enables us therefore to have some degree of budgetary control overall but also to ensure that the way in which these personal budgets are used gives a degree of flexibility to individuals to handle the budgets in the way that they feel best suits their needs and their element of health care.

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

I am happy with what has been put on the record. I beg to ask leave to withdraw the amendment.

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

New section 12C(6)(c) states that provision as to the review of a pilot scheme may in particular include such matters as

“the effect of direct payments on the behaviour of patients, carers or persons providing services in respect of which direct payments are made.”

The word “behaviour” is the key to the whole section and it is important that we state here that we must re-engage the patient with the whole process of commissioning health care and with the fact that it is a service rightly paid for by the taxpayer. Direct payments should lead to better and more efficient commissioning behaviours and they will also hopefully have beneficial ramifications for lifestyle and wellbeing.