Baroness Thornton
My Lords, what links the two parts of this debate are the unintended consequences and the need for second and third thoughts about things. My noble friend Lord Patel, the noble Lord, Lord Adebowale, and the noble Baroness, Lady Hollins, expressed concern about this clause. That is frankly good enough for me. It has been suggested elsewhere in the way of things that some enthusiastic civil servants, in the process of tidying up this Bill, have actually brought about what could be serious unintended consequences. The noble Baronesses, Lady Murphy and Lady Barker, also have some important points to make about the amendment in the name of the noble Baroness, Lady Barker. This House spent many hours constructing the architecture through the Mental Capacity Act and the Mental Health Acts, not all of it right. I do, however, remember the duty of co-operation being an important part of those Acts; those rights, protections and duties are very important and we need to check that we have not damaged them through the construct of this Bill.
On Clause 51 stand part, we on these Benches are pleased to support the important amendment put down by the noble Baroness, Lady Finlay, about the problems that might occur when the responsibilities of primary care trusts for the certification of deaths are transferred to local authorities. I do not intend to read out the whole of this note because the noble Baroness, Lady Jolly, has referred to most of it, but we are very concerned that these proposals will mean delay and an increase in cost when people are at their most vulnerable and least able to withstand that. I do not think that anybody in this House would want that to happen. I suspect that the Government would not want to place in jeopardy the trust and confidence in the system as it is, and I think there is a danger that Clause 51 does that. We on these Benches support the amendments in this group.
Baroness Northover
My Lords, noble Lords have spoken passionately about the need to support patients who are particularly vulnerable. These are complicated areas, and I am happy to write to noble Lords to clarify what is intended in the Bill and to address their specific questions if I do not answer them in what I say here.
The Bill makes a number of essentially consequential amendments to the Mental Health Act 1983. The Government are also taking the opportunity to remove a few redundant powers and to make a small number of changes to that Act. That is the intention. This is not a major shift; these are meant to be tidying-up changes. However, if they have unintended consequences, it is important that they are flagged up, and I hear what the noble Lord and other noble Lords said.
The principal changes are the change in the responsibility for commissioning independent mental health advocates from the NHS to local authorities and the change in the requirement that a second opinion must be given even where patients on supervised community treatment consent to their treatment. This condition does not apply to patients who are detained in hospital and is contributing to the major difficulties that the Care Quality Commission is experiencing in managing the second opinion appointed doctors service.
The Government are also taking the opportunity afforded by the Bill to make a number of changes to the Section 117 of the 1983 Act. The first amendment in this group, which was tabled by the noble Lord, Lord Patel of Bradford, addresses that. The main change is to transfer the duty on primary care trusts to commissioning consortia, but the clause also takes the opportunity to align the duty in Section 117 more closely with mainstream NHS legislation. That is the intention. For example, it gives the Secretary of State the power to make regulations that say which consortium is to be responsible in any given case. That will allow us to end the current anomaly that sees some PCTs responsible for Section 117 aftercare for patients whose other needs are the responsibility of a different PCT.
Regulations could also say that, in particular circumstances, the NHS Commissioning Board is responsible rather than the consortium. That would allow us to prevent consortia ending up having to commission services that are normally commissioned by the board just because the patient happens to qualify under Section 117. The noble Lord, Lord Patel, spoke very persuasively about the need to avoid this clause having unintended side effects, and I can confirm that that is certainly not the Government’s intention. I am very happy to meet the noble Lord to discuss these issues further.
On co-operation with the voluntary sector, we need to consider consistency with other services that CCGs will commission in order not to give in some way a distorted picture of when CCGs should work closely with the voluntary sector. Nevertheless, I am happy to have further discussions on this point.
On charging, which is clearly a significant concern of the noble Lord, the Bill does not change the current situation. Patients will not have to pay for any care under Section 117. I hope that I can reassure the noble Lord on that point.
The second amendment in this group was tabled by my noble friend Lord Marks and is about access for children who come under the 1983 Act to the services of an independent mental health advocate. Section 130C of the Mental Health Act 1983 already gives the same right of access to such an advocate to all qualifying patients, including children. Making special provision for minors might give the impression that other qualifying patients should have lower priority for access to such services. Our aim is that every vulnerable person who comes under the major provisions of the 1983 Act and wants the support of an advocate should have one. That should, of course, include every child and young person, but it should also include everyone else as well. The current law not only supports the aim of this amendment in respect to children but does so for all vulnerable people of all ages.
Baroness Barker
I understand entirely my noble friend’s response to my amendment. I am very pleased with that. No doubt I and other noble Lords will spend at least part of 2012 making sure that we hold the Government’s hand to the flame on that review. I wanted to respond to what she said about the amendment in the name of the noble Lord, Lord Patel of Bradford, which I very much support. The first scenario that the Law Society and others were trying to probe in that amendment was one where it was unclear whether or not a patient came under the auspices of a CCG. The second was what would happen if a CCG decided not to commission a particular type of service—for example, some kind of psychological therapy—and it did so independently and not in discussion with the social services authority. I was not clear from the noble Baroness’s answer whether in her discussions with the noble Lord, Lord Patel, she would be covering both those eventualities.
Baroness Northover
My Lords, I am happy to cover both those eventualities in the discussions. Moving on to Clause 51 concerning death certification reforms, this amendment to the Coroners and Justice Act 2009 places responsibility for the appointment of medical examiners and related activities on local authorities in England instead of the PCTs. The Government are committed to implementing the reforms of the process of death certification set out in the Coroners and Justice Act 2009. These are important and long overdue reforms, which will involve a medical examiner providing an independent and proportionate scrutiny of cause of death in all cases not investigated by a coroner. The reforms will improve the quality of information on cause of death, increase transparency for bereaved families, and strengthen local clinical governance and public health surveillance arrangements. As your Lordships will be aware, these reforms form part of the response to the recommendations of the Shipman inquiry and, of course, the noble Baroness played a key role in taking these changes through.
The clause moves responsibility for the appointment of medical examiners from PCTs to local authorities and makes similar changes to the arrangements for performance managing and funding the medical examiner service. This change is needed because of other provisions in the Bill which will abolish PCTs from April 2013, despite the quote that was made earlier. Establishing the medical examiner service in local authorities should enhance the availability and accessibility of important public health information and intelligence. It will also align the service with other existing local authority responsibilities, including coroner and registration services.
I now turn to the fee payable for death certification, which, clearly, is a very difficult and immensely sensitive issue. Many people, including my noble friend Lady Jolly, have questioned whether there should be a fee at all and whether the state should pay for certification of death. It is the Government’s policy in line with the proposals set out by the previous Government in 2009 that the medical examiner’s independent scrutiny and confirmation of cause of death stated on the certification should not result in an increase in costs. It is also important to remember that the payment of the fee is already the case as regards the 70 per cent of people who are cremated, with this fee forming part of undertakers’ fees.
The current economic situation means hard choices are inevitable and the need to ensure that certification of death is cost neutral is one of those challenges. With regard to how the fee is paid by individuals, I am aware of the problems. Let me make it clear: it is neither the Government’s desire, nor intention, that this fee should be paid upfront. We would like to come to a solution that fully recognises how difficult a time this is for families and we do not want to add to the heavy burden which is felt at such a time.
As such, we have already started discussing with stakeholders and others how to arrive at an appropriate method for payment of fees. We will be consulting fully on this topic and want to hear the full range of views before making a decision. Given the sensitivities, if any Member of the Committee would like to discuss these issues further with me or officials, we would be very happy to take that forward. In due course, I will move that this provision stands part of the Bill.
Lord Patel of Bradford
I am very grateful to the noble Baroness for her response. I am particularly grateful to noble Lords who have contributed on the amendment standing in my name. We have had the benefit of the huge expertise and experience not only of the voluntary sector but of eminent psychiatrists who understand what happens to patients detained under the Mental Health Act. We should not simply ignore those views or brush them under the carpet. My problem is that we have heard a number of times in this Committee that, “Such-and-such is not an intention of the Bill, and the new arrangements will ensure that quality and outcomes are the prime drivers in decision-making rather than cost or expediency”. No doubt that is what is intended, but as we all know, the road to hell is paved with good intentions.
This is not a technical issue, or an issue that can be left alone in the hope that matters will resolve themselves and things will work out. This is about a fundamental principle of law that seeks to protect the vulnerable. The noble Lord, Lord Adebowale, gave a perfect example of what happens to real patients. If we cannot act now in the best interests of those who cannot speak for themselves by virtue of being detained under the Mental Health Act, who are by definition vulnerable and dependent on the state to make the right choices for them, then I do not know what we are doing here today.
The amendment tabled by the noble Baroness, Lady Barker, exemplifies why we have to be very careful about decisions that we make for this group of patients—the unintended consequences could be enormous. It is wonderful that the Minister said that the Government will review this next year. That is welcome. However, how many more lives will be ruined in the next 12 months? We have made mistakes in the past and we continue to make them. In terms of this amendment and Section 117, the danger with simply moving forward and saying, “This will be okay—that is not what we intend”, does not sit comfortably at all.
My amendment is very simple: it will ensure that CCGs and social services authorities continue to have a joint duty. I cannot see why we should not insist that CCGs and local authorities should have a joint duty in relation to this very vulnerable group of people. It will ensure that the joint duty includes maintaining co-operation with relevant voluntary agencies. We are asking the voluntary sector, “Please take over services and help us deliver”, and all the rest of it. Why can we not maintain the co-operation that exists?
The amendment will also ensure that the duty remains free-standing, as was the clear intention of the Appellate Committee of this House, so that aftercare services are not limited to other provisions but can actually meet the patient’s needs. By doing so it ensures that patients who have been detained under the Mental Health Act and require aftercare services do not find themselves having to pay for those services.
The noble Baroness said that there is no intention regarding payment. However, I think that I gave enough examples in my speech to show why I think that will be challenged. I am not a lawyer or an expert on these things but I did look at the judgment. What is interesting about the judgment that was given way back in 1999—when we did not have austerity measures and there were plenty of resources—was that, on three occasions, three local councils tried to force four people detained under the Act to pay for aftercare services. They had three different appeals. By the time they got to the fourth appeal in this place, one of the patients had died. That emphasises my point about how long people have to wait. If they were trying to charge then, what is going to happen now when we are desperate for resources in health and social care? People are really going to be pushing this.
I am afraid that that does not hold water for me at all. I tabled this amendment in good faith but I am concerned that clauses in this Bill will clearly have unintended and detrimental consequences. We chose not to reject this Bill out of hand under the rightly justified position that it is the proper place of this House to amend and improve legislation through a robust process of scrutiny. I believe that my amendment is the right and proper way to correct the Bill and to prevent significant harm arising.
Baroness Northover
I did not directly address the Stennett case and I must do so. The Stennett case indeed makes clear that such services have to be provided free of charge and the Bill in no way overturns that. It does not challenge that. What comes under Section 117 remains as it was—what is provided by it is still free of charge. This does not in any way challenge the Stennett conclusion.
Lord Patel of Bradford
The clause actually says—again, I am not a lawyer; I am looking at this in layman’s terms—that you do not need to have this consultation. As the noble Lord, Lord Adebowale, said, Mr Bloggs could then leave hospital and receive some accommodation, daycare and counselling through the health service, but the local authority could then decide unilaterally to say—as it can—“Right, the daycare and the accommodation have gone. We are not going to pay for them”. It does not even consult the patient or the CCG. It can do that. The legislation states that. The clause says that local authorities can do that now. It is okay.
We are being foolish if we think that local authorities or CCGs are not going to opt out of this where they can. They will opt out of providing bits of services. The voluntary sector will be lumbered with them. It will be told to pick up the tab, but organisations such as Turning Point do not have the resources to pick up the tab.
Baroness Northover
I repeat my invitation. The noble Lord makes a cogent case. I invite him to come into the department and make that case. I am saying that his worries are ill founded, but if he is right and there are things that need to be done to ensure that the case that I am making is indeed watertight, please will he help us to do that?
Lord Patel of Bradford
The noble Baroness is almost as persuasive as the noble Earl. I gratefully accept the invitation, and I am sure that the noble Lord, Lord Adebowale, will also be very happy to sit with officials. Like I say, I do not think for one second that the department is being malicious. There are some unintended consequences that are worth exploring further to see if we can make this legislation better. I beg leave to withdraw the amendment.
Baroness Thornton
My Lords, this small group of probing amendments concerns itself with primary care services and the directions that would provide for those primary care services. I will briefly outline each of the amendments and ask the Minister's reactions to them.
On Amendment 239, if directing the board to exercise the Secretary of State’s functions relating to the provision of primary medical services, the Secretary of State must set out how the performance of the board in relation to these functions will be managed and how the interaction with the appropriate health and well-being board will occur. How will that be supported and how will it occur?
On Amendment 239ZZA, the Secretary of State may not direct the board to exercise the Secretary of State’s functions in Section 114 of the 2006 Act, which relates to dental services and the provision of accommodation. Amendment 239ZZB is very similar. It relates to ophthalmic services. Amendment 239ZZC relates to pharmaceutical services. The Clause 205 stand part debate relates to the list of performers of pharmaceutical services and particularly addresses the question of how the Government would intend to support the provision of community pharmaceutical services in the future through the Bill. That is another probing amendment.
I want to hear what the Minister has to say about how local services being commissioned nationally will work in terms of relationships with the health and well-being boards and in terms of the provision and support of community pharmaceutical services. I beg to move.
Earl Howe
My Lords, Amendment 239 raises the issue of performance management of the board. Noble Lords will recall the debate on Clause 20, in which I sought to reassure the Committee that new Section 13A of the National Health Service Act 2006, introduced by Clause 20, already enables the Secretary of State to specify the manner in which he proposes to assess the performance of the NHS Commissioning Board. It is not appropriate to set out performance management processes in respect of each and every direction issued to the board by the Secretary of State. I agree about the importance of the NHS Commissioning Board developing its commissioning responsibilities in a way that complements and supports other local health and social care commissioning, as the amendment proposed by the noble Baroness seeks to ensure. As I have indicated previously, the NHS Commissioning Board will be under a duty to have regard to joint health and well-being strategies. It would confuse lines of accountability and would actually be unworkable if we forced a duty on the board to agree with the health and well-being boards on how it will deliver its functions. I hope very much that your Lordships will agree that it is right that health and well-being boards do not have a right to veto plans for the provision of those primary medical services, which the Secretary of State has determined are necessary for patients. The NHS Commissioning Board will also have responsibility for commissioning primary dental services, primary ophthalmic services and pharmaceutical services.
Directions from the Secretary of State—usually of a technical or administrative nature—are currently made to primary care trusts and others in respect of primary care services under existing powers in the 2006 Act. So the provisions in this part of the Bill are not new powers; they are replacement powers adjusted to reflect the new organisations created by the Bill. These amendments would remove essential administrative and operational flexibility to enable those primary care services to continue to be provided efficiently and effectively for the ultimate benefit of patients. I realise that they are probing amendments and that the noble Baroness has no intention of pressing them, but clearly they are not appropriate.
Clause 205 enables regulations to be made that require the board to prepare, maintain and publish performers lists of pharmacists and pharmacy technicians on the abolition of primary care trusts. It replaces those provisions of the 2006 Act that currently relate to fitness to practise for pharmaceutical services performers. It also amends the Act so that, where a performer of local pharmaceutical services is included in a local pharmaceutical services performers list, they can be automatically included in an assistants list of performers and vice versa. We have yet to take a view on implementing performers lists for local pharmaceutical services performers and for those who assist pharmaceutical contractors in the provision of pharmaceutical services. We expect to do so during the coming months. In the mean time, this clause is needed to ensure that, if we do decide to introduce them, the primary legislation will adequately enable this.
The noble Baroness asked how, logistically, the board will manage approximately 8,300 GP contracts. We recognise that the NHS Commissioning Board could have difficulty in appropriately managing primary medical services contracts throughout England without help. The proposals to establish a significant field force as part of the board’s establishment will assist, but it will remain the case that the board’s ability to undertake this task will be enhanced if it can utilise the important local expertise and knowledge that will be available to the clinical commissioning groups. We have put in the Bill an explicit duty for all clinical commissioning groups to support and assist the board in securing continuous improvement in the quality of primary medical services. That is in new Section 14R in Clause 23. Alongside this, direction-making powers in Clause 46—
Baroness Thornton
The Minister mentioned field forces that will help to make this work, and I can see that that will almost certainly be the way to do it. But would there be an intention to have expertise in each of the different areas or across the piece? The Minister does not need to answer the question now; he can write to me. But the community pharmaceutical industry would be interested in an answer on how that would be delivered.
Earl Howe
I would be happy to write to the noble Baroness in the interests of time, but I was about to explain that as regards primary medical services the direction-making powers that I mentioned will also enable the board to arrange for clinical commissioning groups to carry out some contract monitoring functions and limited commissioning functions on its behalf should it so wish. So the board can enlist the help of the clinical commissioning groups themselves to do some of the monitoring function. That will not alter the board’s overarching responsibility for commissioning general practitioner services and holding their contracts. But I will write to the noble Baroness, as she asks.
Lord Warner
Can the Minister explain something to us, if necessary in writing in order not to detain the House? I am very confused about what happens in areas where historically there have been great problems with health inequalities in securing a volume of primary medical services to meet the needs of those communities. I am very unclear who we are expecting to ensure that there is a sufficient volume of primary medical services and what the relative roles of the Commissioning Board, the CCGs and the health and well-being boards are in that context. It is a longstanding problem for the NHS. I do not expect the Minister to answer now, but it would be helpful to have some thoughts in a letter on that issue.
Baroness Thornton
I thank the Minister for that answer. We will return to discuss issues about the community pharmacies, possibly not in Committee or on Report but outside the Chamber, because there are some areas of concern where clarification is required. I thank the Minister for his answer and beg leave to withdraw.