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With this it will be convenient to discuss the following: Amendment No. 413, in
clause 49, page 17, line 27, at end insert—
'(bb) the availability and quality of information for patients about the health care;'.
Government amendment No. 285.
Amendment No. 374, in
clause 49, page 17, line 30, at end insert—
'(dd) the need to safeguard and promote the rights and welfare of vulnerable adults;'.
Amendment No. 398, in
clause 49, page 17, line 32, leave out 'purpose of paragraph (d)', and insert
'purposes of paragraphs (d) and (dd)'.
Amendment No. 165, in
clause 49, page 17, leave out line 31.
Government amendment No. 286.
Amendment No. 166, in
clause 49, page 17, line 34, at end add—
'(f) the clinically appropriate prioritisation of healthcare interventions;'.
Amendment No. 377, in
clause 49, page 17, line 34, at end add—
Amendment No. 167, in
clause 49, page 17, line 34, at end add—
'(g) the delivery of healthcare in line with correct ethical practice.'.
Amendment No. 375, in
clause 100, page 40, line 9, at end insert
'and the need to safeguard and promote the rights and welfare of vulnerable adults.'.
I will deal first with the Opposition amendments. The Government amendments are largely technical, and I shall return to them.
The Opposition amendments propose to add substantially to clause 49 by seeking to extend the matters that CHAI will have to consider when carrying out some of its functions. I remind the Committee that CHAI is there to deal with the
availability of and access to health care; the quality and effectiveness of health care; the need to safeguard and promote the rights and welfare of children; the economy and efficiency of provision; and the effectiveness of measures taken for the purposes of the body in question and any other person who provides health care for that body.
Amendments Nos. 166 and 167 would effectively require CHAI to consider whether doctors made the right decisions in their treatment of patients and whether their decisions were ethically correct. Amendment No. 166 would require CHAI to consider whether clinical priorities determine health care interventions. I hope that Opposition Members know that clinical priorities are a matter for clinicians to determine; it is not the role of an inspectorate to second-guess clinical decisions.
CHAI will, however, be interested in the outcomes of clinical decisions, and we expect that in undertaking its functions under this chapter it will want to work with clinicians. That, in turn, will influence its review and investigation methods and other criteria.
Amendment No. 167 will result in CHAI examining the application of ethically correct practice, which is fundamentally a matter for the General Medical Council, the medical royal colleges and other professional associations. I am sure that CHAI will work closely with them in carrying out this and other functions.
Moreover, I am certain that, had the Government proposed the amendment, several Opposition Members would—quite rightly—have been up in arms. The medical profession has since Hippocrates had a tradition of self-regulation, and that must be right. There have been, unfortunately, a few notable exceptions such as Harold Shipman and Beverley Allitt, but by and large that self-regulation has been exercised very well. I am sure that GMC hearings are going on as we speak.
If CHAI becomes aware of or suspects something amiss with the behaviour of NHS professionals, it will report that to the appropriate body, which can investigate further. Clause 126(2)(g) explicitly provides for CHAI to disclose information to another body for the purpose of its statutory function, including bodies such as the GMC. To the extent that amendments Nos. 166 and 167 concern the broader issue of the quality of health care, they are already covered by subsection (2)(b). The amendments are, therefore, unnecessary.
Amendments Nos. 374 and 375, and No. 165—a consequential amendment—respectively propose to extend the list of factors to be taken into account by CHAI in clause 49 and to extend in clause 100 the duty placed on CHAI in the discharge of its functions, under the Care Standards Act 2000, to have particular regard to the need to safeguard and promote the rights and welfare of vulnerable adults.
I have some sympathy with those proposals, but we must draw a line somewhere in listing patient groups to which CHAI should pay particular attention. That was, to some extent, debated in Committee last week, and I do not want to revisit the arguments. We have,
therefore, chosen to continue to ensure that the most vulnerable group in society, which is identified in the Care Standards Act as children, is effectively covered. However, singling children out for particular attention does not mean that CHAI will not have the rights and welfare of other vulnerable groups in its sights. CHAI will be expected to focus on them as well.
Amendment No. 377 seeks to place a duty on CHAI to ensure that the NHS fully discharges its legal function of providing continuing health care under the National Health Service Act 1977, but the Secretary of State can already issue directions to NHS bodies on how they exercise their health service function with a view to ensuring that they provide appropriate health care for patients.
Furthermore, it seems that Opposition Members have failed to grasp the significance of the duty of quality introduced by the Health Act 1999. As a consequence of that duty and its replacement in clause 40, which we debated last week, NHS bodies are under obligation to put, and keep, in place arrangements to monitor and improve the quality of the health care that they provide. Under clause 53(2), CHAI already has the function of reviewing the arrangements made by NHS bodies to discharge that duty of quality.
Government amendment No. 284 is, effectively, a technical amendment, which makes it clear that the factors with which CHAI is to be concerned under clause 49(2) apply to its function under clause 49(1) of encouraging improvement.
Last Thursday, I made it clear that we would consult parliamentary counsel with a view to tabling an amendment on Report to ensure more generally that the factor is taken into account in the exercise of functions other than those in clause 49(1) and clauses 50 to 54.
It is also our intention that CHAI, as the inspectorate of health care, should focus on health care. It is right that CHAI's primary focus should be on how economically, efficiently and effectively NHS care is provided. That does not mean that CHAI's resources should be diverted to examining NHS accounts: that is clearly a matter for the Audit Commission. The Audit Commission identifies clearly the examination of accounts and other management functions as an audit consideration outside the value for money exercise.
Amendment No. 285, therefore, is a technical one that seeks to clarify that position by removing financial and other management functions from the primary focus of clause 49. Of course, it does not mean that CHAI will be unable to consider those matters if they impact on the quality of patient care.
Finally, amendment No. 286 is simply a drafting amendment proposed by parliamentary counsel. On further advice from counsel, we have decided not to proceed with it.
I am grateful to the Under-Secretary for outlining the purpose of the Government amendments, and for hearing in advance the Government's response to my amendments.
I have served on several Committees, and it is interesting to listen to the reasons that are often given by Ministers in rebuttal of amendments. Although, on occasion, specific reasons are given for an amendment's being unacceptable to the Government—perhaps even an issue of principle—several tactics are employed quite frequently. There is the list defence, where too many items on a list make it overly burdensome, so Bills should not contain long lists. There is the technically defective defence, where a Member has drafted an amendment in such a way that it is technically impossible to include it in the Bill. There is also the defence that an amendment is unnecessary because it is already covered. The Under-Secretary cited that defence in response to amendments that my hon. Friends and I wanted to move. He said that they were dealt with largely under quality provisions elsewhere in the Bill.
A new innovation in the Committee is the flexibility defence, where it would be inappropriate to have anything further in the Bill because that would in some way fetter CHAI's discretion to discharge its purpose without too much encumbrance from this place.
I am sure that hon. Gentlemen have noticed other defences. However, those are the four that seem to be used most often as part of the art of dealing with Opposition Members' amendments.
The group of amendments that I want to deal with in this larger group of amendments concerns vulnerable adults and the question of continuing NHS health care. I will speak briefly on amendments that concern clinically appropriate interventions and ethical practice, which the Under-Secretary also addressed. However, as the Under-Secretary said, we spent considerable time last Thursday addressing clinical efficacy and the role of clinicians in health care. I do not, therefore, propose to go into great detail on those matters today.
However, with regard to amendments Nos. 374, 375 and 398, which deal with vulnerable adults, I want to reiterate simply Liberal Democrat's concern. It is entirely right for the Government—whom we supported during the passing of the Care Standards Act 2000—to have alighted upon the requirement to give specific statutory recognition to the need to safeguard and promote the welfare of children, but when we are talking about vulnerable adults who lack capacity, it is essential that we give a similar statutory basis to safeguarding and promoting their rights and welfare.
That omission from the legislation continues to trouble me and many other people from the regulatory and voluntary sectors. There are serious concerns about the extent to which the writ of human rights legislation in this country runs with regard to our care system. The regulator can cross the threshold of a care home, but the application of the Human Rights Act 1998 does not provide for that—unless there is a specific stipulation in the contractual arrangements between the local authority and the care home. I and others are concerned that the legislation does not apply in those instances. We will return to those concerns in future meetings. Before you call me to
order, Mr. Chairman, that is part of the concern felt for vulnerable adults.
I want to probe the Government on amendment No. 377, which addresses a long-running concern of mine about the scandal of the NHS's discharge of its responsibilities to provide and fund continuing health care. In responding to amendment No. 377, the Minister seemed to speak about directly provided or directly commissioned health care by the NHS.
Through amendment No. 377, however, I aimed to address the ongoing legal responsibility of the NHS to fund the continuing health care needs of older people and those in other care settings, such as nursing and residential homes. This issue was recently the subject of a critical report to Parliament by the health service ombudsman, and it goes back to the foundation of the NHS. How the line is drawn between health and social care responsibilities is a concern. Today's debate is not about whether the Government should fund personal care; it is about whether the Government should continue to fund health care. The concern about definitions, and whether continuing care is being funded, is one that CHAI should be empowered and required to examine.
In 1957, a similar concern led the Department of Health to issue guidance, setting out the responsibilities of hospital authorities. The guidance is fairly old, but it pertains to what I want to go on to say. Those responsibilities included:
''Care of the chronic bedfast who may need little or no medical treatment, but who do require prolonged nursing care over months or years; convalescent care of older sick people who have completed active treatment but who are not yet ready for discharge to their own homes or to welfare homes; care of the senile, confused or disturbed patients who are, owing to their mental condition, unfit to live in a normal community life in a welfare home.''
That guidance was issued in 1957, but since then legislation has not changed—the legal basis upon which the Department of Health tells the NHS how to discharge its continuing care responsibilities is the same. There have been no amendments to primary legislation or any ministerial statements. The Minster referred to directions, but there have not been any directions since that guidance in 1957, and there have been no announcements curtailing entitlement to NHS continuing care.
What has happened is that a succession of Governments have acquiesced and connived in the erosion of the fundamental right to have access to health care on the basis of need rather than means. That has been achieved by stealth and neglect. Periodically, that erosion has been checked through reports by the ombudsman and, significantly, through the courts—the most recent occasion being a few years ago. The ombudsman and the courts provided occasional hiccups in the erosion of the right to continuing health care, but successive Governments have issued guidance that has contributed to confusing and eroding the responsibility of the NHS. Successive Secretaries of State have signalled that the NHS should focus primarily on acute care.
The health service ombudsman's report revealed that guidance issued in 1995 was ''misapplied'' by health authorities. The ombudsman found little evidence that the Department of Health took any positive action to require health authorities to redraft their continuing care policies. Indeed, looking at the evidence, it appears that, if anything, health authorities were encouraged not to be proactive. At best, they were encouraged to take their own legal advice on these matters. There was no direct guidance from the Department of Health, no attempt to ensure that there was consistency and no attempt to ensure that the law was being complied with properly.
The findings from the health service ombudsman followed a 1999 Court of Appeal judgement, known as the Coughlan case. The Court of Appeal found that entitlement to NHS continuing care rose not only when a patient's health care needs were complex—that is all too often the language used in Government guidance—but when they were substantial. Interim guidance was issued by the Department soon after that court case, in July 1999, which did little more than say that this was a holding position and told health authorities to expect more guidance later in the year. In fact, it took two years to get that guidance from the Department of Health, and when it was published in 2001, it was not subject to consultation.
This is part of the context in which amendment No. 377 comes into play, because it is about trying to understand and to ensure that the NHS is adhering properly to the legal position as established in the Coughlan case, and not just relying, in its entirety, on guidance issued by the Department. That guidance was a travesty. It suggested that the Coughlan judgement merely confirmed the status quo. To be charitable, it might be fair to say that if one constructed that as being the status quo, established when the NHS was set up, that is what the Coughlan judgment did: merely affirmed the status quo. However, the construction that most people placed on the notion that the Coughlan judgment defended the status quo was that the previous guidance was okay and that there was no problem with the guidance that had been published.
The truth is that the Court of Appeal only narrowly avoided finding the 1995 guidance unlawful. It considered it to be idiosyncratic and flawed by virtue of its significant shortcomings. What circulars do not contain are clear statements that just because a person does not qualify for in-patient treatment does not mean that the person concerned should not be the responsibility of the NHS.
The judgment called for a reappraisal. Amendment No. 377 calls for a reappraisal of what the NHS is doing to discharge its continuing care responsibilities. [Interruption.] The Minister of State seems to be a little agitated by my remarks.
I seek to explain why CHAI must have this responsibility. In having this responsibility, it
needs to understand the context in which amendment No. 377 is being moved and why it is necessary. It is necessary because, through a succession of guidance, the NHS's responsibility for continuing NHS care funding has been obscured. As we know from the ombudsman's report that was published this year, a consequence of that is that there are many cases throughout the country of people who should have been entitled, under the Coughlan judgment in 1999, to their funding being met fully by the NHS, but were not.
There is now a hiatus in the Department of Health while it awaits the outcome of an analysis. It has asked every strategic health authority to ascertain how many people since 1996 have been treated unfairly and have had to use their own means to pay for their health care. That analysis should have been concluded by 28 March. Since that date, the Department has refused to publish the information.
I apologise, Mr. Atkinson, if I am doing that. I shall endeavour to come back to order.
The amendment, therefore, seeks to give CHAI the responsibility to examine this area, to ensure that the health service is discharging its legal responsibility properly and not leaving older people to pay for health care, which is currently the situation in all too many cases.
I hope that the Under-Secretary, in responding to those concerns, will tell the Committee whether there are plans to issue further guidance to the health service and to the Commission for Healthcare Audit and Inspection, because the current process is far from transparent and far from being open to scrutiny by Members of Parliament. Consequently, that has led me to conclude that the only way to ensure fairness for older people in accessing their rights to continuing health care is to have a specific power in the Bill to allow CHAI to follow that issue.
The issue is a long-running concern of many, and I hope that the Under-Secretary's comments can give some cause for comfort that—after many years of eroding that responsibility—this Department of Health under this Administration will take its responsibilities for continuing care seriously and give the commission the power to ensure that the entire NHS does so as well.
I want briefly to mention amendment No. 166. Clause 49 gives CHAI the function to encourage improvement in the provision of health care. Subsection (2) lists several issues that must be considered in seeking to exercise those functions. Amendment No. 166 seeks to add to that list of considerations
''the clinically appropriate prioritisation of healthcare interventions.''
I listened carefully to the Minister's introductory comments. He rightly pointed out that the duty is on doctors, as medical practitioners, to prioritise treatment on clinical need. That is a fact. However,
the Government's obsession with targets and waiting lists has become a problem in recent years, and that gives validity to the amendment and the duty that it places on CHAI. Clinical decisions and prioritisation in non-emergency treatment have been distorted so that trusts and health authorities have in the past been able to meet the Government targets.
Because of the politicisation of numbers in the health service, the Government have, since 1997, seen the meeting of targets as a benchmark in trying to keep their promises, especially on waiting numbers. That has led to a distortion of clinical priorities, not through any willingness of doctors and consultants but because of the system and the determination of the management of trusts to ensure that they do not fall foul of waiting list numbers and the inexorable pressure placed upon them to reduce those numbers. That is why it is important that CHAI be given the responsibility in the Bill to ensure that doctors are free to carry out their professional duties in a way that they want and which is free from political pressures.
In discussing amendment No. 377, I certainly have no intention of being out of order. All I shall say is that although I have sympathy with the Under-Secretary, I am not convinced that it is absolutely necessary to have such a proposal in the Bill. The amendment does, however, raise the problem of having to wait to find out what is happening as a result of court judgments.
To strengthen the case that the amendment is unnecessary, will the Minister share with the Committee any information that he may have on the results of the strategic health authorities' investigations and reviews into how many cases there are of problems with continuing care as a result of the court judgment? We would find that very useful, because I suspect that several hon. Members have constituents who have written to them asking whether they come within the ambit of this ruling due to some confusion by the local health trusts and authorities that have failed to understand the guidance and rulings from Whitehall. If he were able to give us information about progress so far, it might help to allay my fears and those of other hon. Members who may find amendment No. 377 superficially attractive but possibly unnecessary.
Amendment No. 166 seems to be perfectly reasonable. The difficulty arises in determining what is clinically appropriate. In general, we can say that a coronary artery bypass graft is probably of higher priority than a varicose vein operation. However, life is much more complex than that, and most medical procedures lie somewhere in the middle. Prioritising in the way that the hon. Member for Sutton and Cheam (Mr. Burstow) appears to be suggesting would be far more problematic, and I doubt whether amendment No. 166 would be of great help in ascribing priorities that would do away with the distortion of health care that has occurred under this Administration and its obsession with waiting lists.
We have a mechanism for ascribing some type of priority and rationing—we are reluctant to use the word rationing, but that is effectively what it is—and that is the National Institute for Clinical Excellence. It sets out clear guidance about what it thinks is appropriate and increasingly does so on a vast range of treatments; perhaps the best-known example is beta interferon.
I was interested to receive information recently from an organisation called the Medical Technology Group, which is exercised by the fact that the health service seems preoccupied with pills and potions rather than with devices and procedures. It has a point, and it is very concerned that, for example, cardiac stents are recommended for use in certain circumstances and that that advice has not percolated down to the front line. It is concerned that there in nothing in the Bill that puts an onus on the various inspection mechanisms to ensure that the advice that NICE gives gets to the front line and that what happens at the front line is not being audited against that advice. Perhaps a provision in the Bill to emphasise the importance of auditing against the advice given by NICE would solve some of the difficulties that the hon. Gentleman rightly raised.
In amendment No. 167 the hon. Gentleman refers to
''the delivery of health care in line with correct ethical practice.''
What does he understand by the converse? What would comprise incorrect ethical practice? I am trying to get over the tautology that he has introduced, and I suggest that the word ''correct'' be deleted.
As regards amendments Nos. 374 and 375 and the definition of vulnerable adults, the Care Standards Act 2000 does not define vulnerable children. The role of a children's rights director is specific to children who are living away from home, for example in children's homes and boarding schools.
It recognises that children are particularly vulnerable. Part of the problem of defining vulnerable adults is the lack of a consistent definition of a vulnerable adult. There is a definition in the Care Standards Act, which is about the services that people receive and which covers all services for adults registered under that Act. However, there are other definitions, such as that in the Police Act 1997, which covers persons in receipt of a particular service who suffer from particular disabilities.
The hon. Member for Sutton and Cheam does not say what he would do for vulnerable adults who lack capacity. Many younger adults fear being included in a definition that does not take account of their wish to have an independent lifestyle. He knows that there are disabled adults who do not like the suggestion that they are somehow vulnerable because of their disability. I chose to raise those important issues previously and I hope that they answered the hon. Gentleman's points.
subject to rulings from the courts. That cannot be left to CHAI. The hon. Gentleman knows that he is choosing to pass the responsibility from the Secretary of State to CHAI because he takes a certain political position on the issue, and that cannot be right.
The Coughlan judgment required NHS bodies to reassess their guidance to ensure that it complied with the law, as one would expect. CSCI will be concerned with the continuing health care needs of people in nursing homes, and CHAI will work with the CSCI. There is a duty of co-operation under clause 116 to ensure that the inspectorates review all aspects of care.
I come now to amendment No. 166. The previous Conservative Administration introduced the first waiting time target of 18 months, and they would not have accepted that targets distorted clinical priorities then. Their 2001 manifesto included targets on maximum waiting times—they gave that undertaking to the electorate. Why was it okay to have targets then, but not now? I suspect that it is because there is a bandwagon concerned with ensuring that the Government focus on a range of targets; some on capacity and capability, others on the public's concerns and on clinical priorities. I do not accept the spurious arguments that were made about amendment No. 166.
If the hon. Gentleman had been listening, he would have heard me say that there is a range of targets. He suggested that there were problems with targets for waiting times and waiting list numbers. It is right that the Government have such targets, as they have other targets. That makes amendment No. 166 redundant, and the hon. Gentleman knows it. I had hoped that we could do away with the political point scoring.
I listened carefully to the Under-Secretary and I am now picking up on another defence—the definition defence—which is that either the proposal is not defined at all in current legislation or that the definition would have unintended consequences.
If the Department had an intention or desire to legislate in this regard, a definition would be forthcoming. There are definitions in place. That there are a variety of definitions of the term ''vulnerable adults'' is not in itself a reason not to seek to have a definition in this part of the Bill. That is the case not least because when it comes to the issue of personal care, for example, there are several definitions that operate in different pieces of legislation. Indeed, in previous debates on that very issue in other Committees, Ministers were entirely relaxed about the multiplicity of definitions: it did not seem to be a problem.
The question of passing responsibility from the Secretary of State to CHAI, which is the argument that the Minister advanced for not accepting my amendment regarding continuing care, misses the point that was picked up on by the hon. Member for
West Chelmsford (Mr. Burns). He rightly put his finger on a concern that I suspect that hon. Members on both sides of the Committee have. As a result of the coverage of the health service ombudsman's report that was published earlier this year, constituents are contacting us to ask whether they or their relatives fall on the right side of the line and whether they are entitled to free funding of their health care and all their accommodation costs in the nursing home or, in some cases, the residential care home in which, as a result of their circumstances, they find themselves.
As hon. Members, we are not equipped to give that answer. However, the concern is that that answer would vary across the country. In some parts of the country people have to be at death's door before they are entitled to continuing health care funding. In other areas, the rules are more generous.
At the moment, we have an NHS with stipulated statutory entitlements that are not being followed faithfully through by all health authorities in a consistent way, and a Department of Health that does not seem at all bothered by that and that does not seem to wish to inquire too closely into what is being done in the Government's name around the country.
Having listened to what the Minister has had to say about the amendments, it is an issue to which those of us on these Benches will wish to return. I am not certain that it would aid the progress of the Committee today to push the amendment to a vote, because I am not certain that Ministers are really listening to the anxiety that many people have about this issue.
On the issue of the proper use of the word ''correct'', which the hon. Member for Westbury (Dr. Murrison) raised, I take his point entirely and in future drafting I will draw that to the attention of my hon. Friend the Member for Oxford, West and Abingdon. I will ensure that we do not make such grammatical mistakes again, which can lead to the construction that the hon. Gentleman placed on that amendment.
We are not minded to press any of the amendments to a vote today. However, we will probably wish to return to some of these issues at a later stage.
Amendment agreed to.