Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 12th March 2012 Lords Chamber

[Earl Howe]

My Lords, I think back to numerous debates that we have had in this House, which of course are recorded in Hansard. Many of the risks that I articulated on 28 November last have been gone through by your Lordships almost ad nauseam.

[Lord Marks of Henley-on-Thames]

What steps have been taken to draw to the attention of the tribunal the urgency of receiving the reasons for this decision, bearing in mind the imminence of Third Reading?

[Earl Howe]

I have personally seen to it that the tribunal has been made aware of the urgency of releasing its reasons, and it has acknowledged that urgency.

Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Thursday 8th March 2012 Lords Chamber

These principles are sound. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, this group of amendments is on the question of foundation trusts’ private income cap. All of us are agreed that the number of private patients and the amount of private income are important considerations for foundation trusts. The risks to the NHS of too much private income and private treatment in foundation trust hospitals are clear and perhaps do not need rehearsing at length. If too many beds in such hospitals are taken up with private patients, unless we are very careful, that may limit accessibility of those beds to NHS patients. The development of foundation trust hospitals with an unusually great proportion of private income may—again, unless we are very careful—threaten to undermine the commitment to reducing health inequalities that runs through the Bill. Emergence of “star hospitals” could threaten other hospitals in the region.

Finally, the threat of foundation hospitals being subject to EU competition law would have been greater if it were possible to have foundation trust hospitals a majority of whose income was private; that, at any rate, is our view. This is one of the principal reasons for the cap on caps, by which the principal purpose of foundation trust hospitals can only be fulfilled if more than half of foundation trusts’ income is NHS income. That is the so-called 49 per cent.

I say to the noble Baroness, Lady Thornton, that the only reason that that majority provision can be said to send the wrong message is that, sadly, some in her party have taken to the airwaves to say that there is a hidden agenda to the Bill by which the Government seek to make national health foundation trust hospitals have 49 per cent of their income from private patients. There is no such hidden agenda. Frankly, it has not been responsible politics to raise people’s fears by going around the country suggesting the contrary.

[Baroness Thornton]

Does the noble Lord think that it was necessary to put 49 per cent in the Bill? Why did the Government have to put a percentage in at all? Does he think that the communication issues, as it were, around this were handled very well?

[Lord Marks of Henley-on-Thames]

My Lords, on these Benches we take the view that it was sensible to include this provision. The advice that we have is that the risk of the application of competition law is reduced by ensuring that the majority of income for NHS foundation trust hospitals will always be for the purpose of treating NHS patients. It is not an absolute guarantee but it is a sensible risk-reduction exercise and it was put in for that purpose. There is no point in taking a risk unnecessarily. The communication problem has frankly been the result of the efforts of opponents of the Bill, partly in the party of the noble Baroness, in stressing the 49 per cent and suggesting that it is the purpose of the Bill, which, as I say, it is not.

That is not to say that private income in NHS foundation trusts is bad. The Labour Government recognised that throughout. In her speech, the noble Baroness herself very properly recognised it. Private income represents an opportunity for foundation trusts to attract innovation, to buy new and expensive equipment and to develop world-class centres of excellence. We recognise and applaud those features of private income. However, when tabling Amendment 220B, we were concerned that there should also be an individual arrangement for foundation trusts by which individual limits would be subject to agreement with Monitor.

[Lord Campbell-Savours]

Will the noble Lord explain, in very simple language that people outside can understand, what is to prevent a central London teaching hospital with an international reputation ending up taking almost half its business from overseas patients who pay by private means?

[Lord Marks of Henley-on-Thames]

I take the noble Lord’s question to mean: why should a proportion not exceed 50 per cent? As I have explained, the reason is that we regard that as having a risk. If the question is why should a central London hospital not take nearly half its income from private patients, the maximum taken at the moment is, I believe, some 39 per cent. There is a limit of 5 per cent on any increase to be proposed, more than which the governors would have to agree to by a majority. It could not just be a simple majority; a majority of the governors must vote to approve the change. It may well be that some hospitals will wish to go nearer to 50 per cent, which is why there is a reference to 49 per cent.

[Lord Campbell-Savours]

So that we can have it absolutely on the record, is the noble Lord saying that a teaching hospital in central London—

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[Baroness Rawlings]

My Lords, it must be a brief question.

[Lord Marks of Henley-on-Thames]

My Lords, I believe that I have answered the question. I accept that it is important. We believe that the provisions that are now to be in the Bill, given the government amendments and an assurance that I hope to receive from the Government, will cover the position.

I was explaining that, when we tabled Amendment 220B, we believed that there should also be an individual arrangement for agreement with Monitor so that all considerations could be balanced when considering any substantial increase in private income. However, in discussions, the Government agreed to respond to amendments that Liberal Democrat Peers tabled in Committee on the involvement of governors. Those amendments that the Government now pursue—Amendments 220BZA and 220BZB—represent that response. They ensure that any increase of more than 5 per cent would have to be approved by the governors voting, as I say, by a majority. The governors have to be satisfied that the plans put forward by the foundation trusts for attracting private income would not interfere with the treatment or welfare of NHS patients. I suggest that that scheme represents a devolved, local scheme that is consonant with the structures in the Bill and the desire to keep local decision-making at a local level.

There may still be concern that the governors of individual foundation trusts will primarily have in mind the concerns of their own foundation trusts. However, under amendments that have been agreed, Monitor is now to have continuing powers of supervision and intervention over foundation trusts. If we are assured that in every case where the governors approve a proposal for an increase in private income in excess of 5 per cent Monitor will consider whether the interests of NHS patients as a whole are to be safeguarded, and if it is not so satisfied it would intervene, I suggest that that assurance will meet that concern. We will not move Amendment 220B but we seek that assurance from my noble friend the Minister.

[Baroness Finlay of Llandaff]

My Lords, I have an amendment in this group. I recognise that it is badly worded and simplistic and I shall not be moving it. However, I would like to address other amendments in this group which are far better worded than mine. The adversarial debate that we have had has been unconstructive in view of the importance of the amendments we are discussing. Amendment 220C has the great advantage of involving all stakeholders. Some people will be affected when the balance of provision within a foundation trust changes. I am concerned about the amendment to which the noble Lord, Lord Marks, has just spoken because, as he admitted, the concerns of the foundation trust governors may be paramount as it is in their interests to look after their foundation trust and therefore the interests of others will be secondary in their minds. However, it is important to know what the local health and well-being board thinks about a proposed change, and that the clinical commissioning groups are involved and consulted on what could effectively be a change of provision.

I make it clear that I am not opposed to foundation trusts having private patient business. Indeed, I can see that it would be beneficial to all patients if we were to revert to the position that applied 30 years ago when these bodies were completely integrated. If highly specialised consultants provide outpatient and inpatient services to private patients on one set of premises in an area, they are on hand when things go wrong or an opinion is needed on a patient who has come in as an NHS patient. By driving some private provision outside that hospital campus, those consultants may be unavailable when they are needed because they are on premises down the road or they are on the end of a phone and cannot run down the corridor, see the patient and plan what is to happen strategically with the rest of the team and then monitor it.

An issue that has been resolved is the situation where a UK patient receives private treatment but something goes wrong and they need to go into intensive care, a renal unit or some other unit provided by the NHS. That previous episode of care has finished, they are now in a new episode of severe critical care and they go in as an NHS patient. That integration is therefore solved. But I hope that the Government will look kindly on Amendment 220C, despite some of the tone of the debate, because it ensures that all stakeholders are involved in the discussion. The change in provision is therefore planned and can happen smoothly and that decision is not taken on business grounds alone but can be for the benefit of the whole population that is being served.

Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Tuesday 6th March 2012 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I do indeed recall the debates that we had during one of the many health and social care Bills that have gone through your Lordships’ House in the past few years. It was indeed Lord Weatherill who raised the issue with me. Essentially, it was about standards in nursing homes where there was some concern that an insensitive regulator would take action against a home that was actually respecting the wishes of a member of the Christian Science religion. We were able to reach a satisfactory solution. An appropriate amendment was put forward and I think the noble Earl, Lord Howe, was also part of what I like to think of as the “second Weatherill agreement”. We may need another one in a couple of years’ time—who knows? I ask the Government for an assurance that the position that we then agreed will continue under the new Bill.

[Lord Marks of Henley-on-Thames]

My Lords, I will speak briefly, in addition to what my noble friend Lady Williams of Crosby said, to the amendments in our names concerning the Secretary of State giving guidance to Monitor: Amendments 163C, 166B, 173A, 173B and 173C.

These are further amendments concerning the role of the Secretary of State and are intended to ensure that the Secretary of State has a practical and effective influence over Monitor’s overall approach to the work it does. The Secretary of State would exercise that influence by issuing statutory guidance to Monitor that will have to be published and laid before Parliament. The guidance in each case could be revised but the revised guidance would also have to be published and laid before Parliament.

The heart of the scheme is Amendment 166B. The duty referred to in that amendment under Clause 61(9) is the duty on Monitor to exercise its functions consistently with the Secretary of State’s duty to promote a comprehensive health service. The amendment allows the Secretary of State to publish guidance to Monitor on the objectives specified in his mandate to the board and to set out guidance on how those objectives are relevant to the separate work carried out by Monitor. Monitor is, of course, required to have regard to such guidance.

Amendments 173A to 173C empower the Secretary of State to give guidance to Monitor in line with any guidance that he has published under new Section 13E of the 2006 Act. That is the so-called outcomes document issued by the Secretary of State to the board in connection with securing continuing improvement in the quality of services and outcomes achieved by the health service. These amendments make it incumbent on Monitor to have regard to that guidance, which must also be published and laid before Parliament. Amendment 163C concerns reporting by Monitor so that in its annual report Monitor would be required to state what it did to comply with the guidance, envisaged by these amendments, given by the Secretary of State in relation to the exercise of its functions.

These are modest but important amendments. They seek to weave into the fabric of the Bill a clear role for the Secretary of State to give strategic guidance to Monitor in line with the Secretary of State’s overarching duties, in particular with the objectives set out by the Secretary of State in his annual mandate to the board, and in line with the outcomes document that he publishes that is designed to ensure the board’s performance of its duty to secure improvement in the quality of services.

These amendments are part of creating a coherent and consistent framework within the new structures established by the Bill, to ensure a single and purposive approach by all the bodies within the NHS, with the Secretary of State remaining in charge of setting the strategic objectives for the service. In those circumstances I suggest that they are very welcome.

[Baroness Meacher]

My Lords, I rise with some trepidation, not having been involved in Committee on this Bill but having been upstairs in Grand Committee on another Bill. I therefore have not done the learning that I know noble Lords around the House have done during that process.

Many noble Lords have referred to the term “competition” without distinguishing between competition within the NHS between public sector organisations and competition between public sector and private sector organisations. It is perhaps relevant for me to quote recent research by Zack Cooper and colleagues at the London School of Economics. It came out in February, since Committee, which is my justification for introducing research at this late stage of the Bill. That research looked at competition between public service NHS organisations on the one hand, starting in 2006, and between the different forms of organisation, the private and the public, on the other hand, starting in 2008.

This considerable research looked at 1.8 million patients, 161 public sector hospitals and 162 private sector hospitals and should be taken seriously. It showed that the result of public sector competition was a reduction in lengths of stay both pre-surgery and post-surgery. Those results were significant. As the Minister knows, I support strongly competition in the public sector. I really believe that human beings thrive on competition. Therefore, if the research showed that public and private sector competition worked, I would support it because I believe in the best possible service for patients.

This research also shows that when you look at the competition between the private and public sector organisations, you will find an increase in the length of stay in the public services, albeit that there perhaps is a marginal improvement financially. If you look at the whole policing and monitoring apparatus that you need in far greater proportions once you have all this competition, I am not sure that you would even achieve a financial benefit. However, you find a reduction in quality, most particularly for people with long-term conditions. That is why I needed to speak in this debate.

I hope that whatever happens on these amendments, great care will be taken to protect public service provision. If we do not prevent the cherry picking, which happened in the provisions studied by this research and has occurred in other settings examined by research, without any question we will achieve a two-tier service with the private sector cherry picking the easier and healthier patients and the public sector having the complex care. I know that this issue will have been rehearsed at length in Committee. I do not want to go on further but it is important that we do not just use the word “competition” without clearly differentiating the competition that we are talking about.

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Moved by

[Lord Marks of Henley-on-Thames]

163C:Schedule 8, page 368, line 17, after “functions” insert—
“(b) include a statement of what it did to comply with the duty under section (Secretary of State’s guidance on duty under section 61(9))(2) (duty to have regard to Secretary of State’s guidance on duty under section 61(9)), and(c) include a statement of what it did to comply with the duty under section 64(1)(ja) (duty to have regard to Secretary of State’s guidance on relevant parts of document on improving quality of services).”

Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 29th February 2012 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

71: Clause 22, page 24, line 27, at end insert—
“( ) For the purposes of this section a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service.”

[Lord Marks of Henley-on-Thames]

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

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

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

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

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

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

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

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[Lord Hunt of Kings Heath]

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

[Lord Marks of Henley-on-Thames]

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

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

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

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

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

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

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

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

[Baroness Murphy]

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

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

[Lord Marks of Henley-on-Thames]

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

[Lord Hunt of Kings Heath]

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

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Moved by

[Lord Marks of Henley-on-Thames]

113: Clause 25, page 45, leave out lines 24 and 25 and insert—
“( ) For the purposes of this section—
(a) a failure to discharge a function includes a failure to discharge it properly, and(b) a failure to discharge a function properly includes a failure to discharge it consistently with what the Board considers to be the interests of the health service.”

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Moved by

[Lord Marks of Henley-on-Thames]

114: Clause 25, page 47, leave out lines 35 and 36 and insert—
“( ) For the purposes of this section—
(a) a failure to discharge a function includes a failure to discharge it properly, and(b) a failure to discharge a function properly includes a failure to discharge it consistently with what the Board considers to be the interests of the health service.”

Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 27th February 2012 Lords Chamber

[Baroness Williams of Crosby]

My Lords, owing to the need to make progress I shall speak briefly, but my noble friend Lord Marks of Henley-on-Thames will be speaking in greater detail about the amendment.

It is short, perhaps deceptively short, but it has real significance and is related in this group specifically to Amendment 94A. The government amendments respond to aspects of these amendments, too. Amendments 49A and 94A set at the very centre of the Bill, which has the full support of all of us who want to see the NHS thrive, that the interests of patients should be paramount. The importance of that phrase is that in every single aspect of what we try to do, it shall always be the case that this is the way in which we think—whether it is how CCGs operate or how foundation trust hospitals operate. This has emerged in our debates increasingly as the central concept—the one to which we should always refer back. That will give us the guiding light that we need for the Bill.

It is significant because, in many cases, patients can be very vulnerable. They can be vulnerable through lack of information and in some cases by not being consulted. They can be vulnerable, as the noble Baroness, Lady Hollins, has mentioned, through the lack of advocacy by people who understand the basis of the choices they have to make. This phrase about the significance and the importance of patients’ interests being paramount therefore also affects a recognition that where patients are vulnerable they need the help of counsellors, advisers and in some cases advocates, so the concept behind this covers those areas as well.

I want also to point out briefly that government Amendment 56 is helpful in spelling out the matters on which patients should be particularly consulted. I will not repeat them but the amendment is helpful in setting out very clearly issues of treatment and the way in which patients should be offered different forms of treatment and then to make choices among them.

I do not intend to keep the House. I shall conclude my remarks. Whatever side of the House we may be on, I hope very much that the concept of the paramountcy of patient interest will be something that all of us can support, understand and advocate with respect to the future of health services. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, the reasons for Amendments 49A and 94A have been briefly—as she explained—and eloquently expressed by my noble friend Lady Williams of Crosby. One of the fundamental principles which the Government have assured us runs right through this Bill is that the NHS, as reformed by this legislation, will be committed to putting patients first. That is a critical matter for most of us in this House and the public at large. Why do I believe that this principle needs stating in the Bill? It is because the Bill introduces an entirely new structure for commissioning services, with commissioning by clinical commissioning groups within a framework established by the board to requirements and objectives set by the Secretary of State. However well understood here, this proposed structure is widely mistrusted outside this place.

I believe that a legislative statement that the commissioning process will put patients first is very important, both because it will enshrine in law this fundamental principle and because it will give the public an assurance that this is indeed the aim and purpose of the new commissioning process. My noble friend the Minister was kind enough to write to me in relation to this amendment to say that while he completely agrees that we must always put patients first, the Bill already provides for that and that there are “technical reasons” why our amendments should not be accepted.

The Minister is entirely right to point to the commitment to the comprehensive health service in the Bill and to the duties of the board and the clinical commissioning groups, now enshrined in the Bill, to promote the NHS constitution. I agree that those are powerful provisions. The NHS constitution is an important and extremely valuable document. It does indeed contain a commitment to putting patients first. At the back of the document in the expression of NHS values it says:

“Working together for patients. We put patients first in everything we do, by reaching out to staff, patients, carers, families, communities, and professionals outside the NHS. We put the needs of patients and communities before organisational boundaries”.

No one could fail to regard that expression of values as admirable, but it covers the whole sweep of NHS functions and is very general. The provisions that we seek by way of these two amendments are specific to the commissioning process. They will impose a binding obligation on the board and the CCGs of which they will at all times be aware. Moreover, our amendments are directed particularly at responding to what is probably the principal concern that members of the public have about these reforms: that the new commissioning process may lead to the marketisation of the NHS and that patients’ interests may be lost in that process. I do not believe that, but I do believe that these amendments would help make it crystal clear that this concern is unfounded.

The other problem we face is this: all the evidence, even that emanating from within the NHS, suggests that there is widespread unawareness of the very existence of the NHS constitution, let alone of the detail of its provisions. At the very least, therefore, given the emphasis that we are putting on the NHS constitution, it is crucial for the Government to make it quite clear that a great deal is expected of the board and of CCGs in the exercise of their respective duties under the Bill to promote awareness of the NHS constitution. In addition, the department should commit itself to an even wider, more effective campaign to publicise both the existence and the content of that constitution.

As to my noble friend’s second point, I regret that I do not understand the technical reasons which are said to require the rejection of these amendments. It is perfectly true that the NHS will always have to face resource constraints which may necessarily determine many, even most, commissioning decisions, but our amendments accept entirely that the paramountcy of patients is always subject to resource constraints. The board or a CCG must, so far as resources allow, exercise its functions on the basis that the interests of patients are paramount. Nor do our amendments, either expressly or impliedly, reduce the ability of commissioning groups or the board to prioritise the treatment of particular groups of patients where they think appropriate. They simply make the interests of patients in general paramount or, to use my noble friend the Minister’s phrase, make sure that commissioners put patients first.

The use of that word “paramount” in these amendments was modelled on the Children Act 1989 and the principle which runs like a golden thread through that legislation that the interests of children are paramount. That legislation has been widely applauded for embodying that principle, which firmly governs its interpretation and its implementation. It is precisely because it is embodied in the legislation itself that that Act is so well respected.

I still hope that my noble friend the Minister might reconsider whether he is not prepared to accept in this Bill the expression of the principle which he has so often expressed: that, throughout the commissioning process, the interests of patients must be paramount.

[Baroness Cumberlege]

My Lords, my Amendment 142 has been grouped with this amendment. I have brought it forward because I am anxious that when we talk about “patient and public involvement” we should be clear as to exactly what we mean by it. I am grateful to my noble friend Lady Jolly, who has also put her name to the amendment.

I am also anxious that we embed what I will call PPI for shortness—patient and public involvement throughout healthcare in all its forms. I say so in the knowledge that few people understand what this means. However, no one understands it better than my noble friend Lord Howe. He was a doughty fighter for community health councils, those much beloved organisations that knew how to campaign and influence the delivery of services. The culprit sits before me on the opposition Benches.

When I was chair of the Brighton Health Authority I had a huge respect for my CHC. Indeed, we even commissioned it to carry out surveys within the NHS. The effect was electric: no punches were pulled and the pressure on us was irresistible. It really knew what was being delivered, where the glitches were and where services were inadequate and needed improving, and it was not shy in making our shortcomings very public indeed. The CHCs had power and could refer proposed changes in services directly to the Secretary of State. The subsequent inheritors of their responsibilities—patients’ forums and LINks—have been systematically neutralised to ensure that they do not have the power to be really effective; that they are not inconvenient bedfellows; and that, despite the undoubted commitment of individuals, they can be largely ignored.

At last we have an opportunity to put matters right and to show that we have genuine credentials in making patient and public involvement a force for good, ensuring that patients and the public are the heart of their NHS. I was encouraged when in one of our earlier debates my noble friend, in answering an amendment, mentioned that the Secretary of State required four tests for the reconfiguration of services, one of which was robust PPI.

I had an interesting letter from my noble friend dated 2 February which again showed his clear commitment to effective PPI. However, the Bill does not seem to match up to that commitment. Different wording is used for PPI in different parts of the Bill—a court of law would surely assume different intentions—and the wording is weak in places. There are three types of involvement. The first is shared decision-making with individual patients on their care, to which the remainder of these amendments relate. The second is the HealthWatch England and local healthwatch structures through which patients and the public feed in their views—the way in which people start a conversation with the NHS. The third is PPI by the service in its decision-making—the way in which the service starts a conversation with local people and the subject of this amendment.

No business would attempt to plan its products or its services without doing market research. If it did, it would fail. We expect the same for the NHS. However, PPI is more important than just market research: it imports the values that we as a society expect from the NHS, making sure that it thinks as we think. PPI must be in the DNA of the service so that those who plan and run it feel as if they are planning and running it for their own families and looking after their own mothers in that hospital bed.

The PPI requirement was introduced in the Health and Social Care Act 2001 in response to the Bristol Royal Infirmary public inquiry. At Bristol, between 1991 and 1995,

“one-third of all the children who underwent open-heart surgery received less than adequate care”,

and up to 35 children under one died as a result. As Bristol concluded,

“vulnerable children were not a priority, either in Bristol or throughout the NHS”.

What an indictment. These are catastrophic failures and we must not forget them. Sadly, evidence shows that we have not yet succeeded in making the NHS as a whole think as we think. We need look no further than Mid Staffordshire.

Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 8th February 2012 Lords Chamber

[Earl Howe]

My Lords, I shall speak also to Amendments 9, 34, 53 and 54.

This group of amendments deals with the role of the Secretary of State in the health system. As noble Lords will be aware, our proposals for the NHS involve a fundamental shift in the balance of power away from politicians to patients themselves and to doctors and other professionals. Greater local autonomy is one of the key things that will enable local front-line services to become more responsive and innovative, in turn delivering greater efficiency and quality. The Bill makes clear that Ministers are responsible, not for direct operational management, but for overseeing and holding to account the national bodies in the system—backed by extensive powers of intervention in the event of significant failure.

The amendments we are debating here cover some of the key concerns raised by the Constitution Committee and Peers from across the House, as part of our wider discussions about ministerial accountability. These are the autonomy duties on the Secretary of State and the Commissioning Board and the link between the functions of clinical commissioning groups and the Secretary of State’s duty to promote the comprehensive health service. I will speak to each of the amendments tabled in my name, as well as the amendments tabled by the noble Baroness, Lady Thornton, which seek to remove the duties of autonomy on the NHS Commissioning Board and the Secretary of State.

Amendments 8 to 10 and 52 to 54 concern the autonomy duties placed on the Secretary of State and the board. Government Amendments 8 and 53 re-phrase the duties of autonomy on the Secretary of State and the Commissioning Board as duties to,

“have regard to the desirability of”,

autonomy, rather than duties to,

“act with a view to securing”,

such autonomy. The desirability of autonomy is therefore a factor for the Secretary of State and the board to consider when exercising their functions, rather than an end which they must seek to secure or promote. That should allay the fears of those who felt that the autonomy duties would prevent Ministers and the board intervening when they needed to.

In addition, changing to a duty to have regard necessarily means that the autonomy duties are subsidiary to the primary duties of the Secretary of State in Section 1 of the NHS Act: to promote the health service and to exercise his functions so as to secure the provision of services. To that extent, there is no further need to state that the duties of autonomy are “subject to” his Section 1 duties. However, government Amendments 9 and 54 make a further change to address this point. Rather than simply say that the autonomy duty is “subject to” the duty of promoting the comprehensive health service, they set out an explicit test, which makes clear that promoting the health service and securing the provision of services takes priority over autonomy, if there is ever a conflict between the duties. We think that this more clearly indicates how the Secretary of State and the board should resolve any tension between autonomy and the interests of the health service. I hope that noble Lords will agree that this provides helpful clarity and avoids any possible doubt.

Having said that I would address the amendments of the noble Baroness, Lady Thornton, I think that on reflection it would be discourteous of me to do so before she has introduced them. I shall therefore retain my remarks for later in the debate if she chooses to speak to those amendments. Meanwhile, I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, perhaps I may explain why I support the Government’s amendments on the autonomy clauses to which I have added my name—that is, Amendments 8, 9, 53 and 54.

The autonomy clauses were at the heart of the Government’s consultation with other noble Lords about the Secretary of State’s duties. During Committee and thereafter, at the very helpful discussions that we have had with my noble friend the Minister and with Peers across the House and, indeed, at the meeting of lawyers in which I took part with my noble and learned friend Lord Mackay, the noble and learned Baroness, Lady Scotland, and the lawyer advising your Lordships’ Constitution Committee, a substantial consensus was reached.

The concerns that we sought to address, which I regarded then and still regard as significant, were twofold. The first was that I believed there would be an inherent conflict between, on the one hand, the Secretary of State’s duties under Clause 1 to promote a comprehensive health service and to exercise his functions so as to secure services and, on the other hand, an unfettered duty to promote the autonomy of others. Secondly, if the Bill went unamended, there would exist a risk that a Secretary of State who was unwilling to intervene when things went wrong would be handed a justification for inaction. Such a hands-off Secretary of State could say, “I will not intervene because I am bound by my duty to promote autonomy”. In my view, with the Bill as it stands it would be very difficult to mount a successful legal challenge to such a failure to intervene.

Those were the two flaws in the Bill that the amendments were required to address. In relation to the board, the unamended Bill was flawed in exactly the same way as it is in relation to the Secretary of State.

The consultations that we held outside the Chamber during Committee led to the formulation of the Government’s amendments. As the Minister has pointed out, the effect of Amendments 8 and 53 is that the duty to act with a view to securing autonomy is reduced to a duty to have regard to the desirability of securing it. That is still subject to the limitation that the duty applies only so far as it is consistent with the interests of the health service. Therefore, what is currently an absolute duty to follow the autonomy line is to be replaced with a more nuanced and, I suggest, a more appropriate obligation to accord to the desirability of autonomy its proper place in the balancing exercise which all discretionary decision-making involves.

However, it is Amendments 9 and 54 that are decisive in addressing the concerns that we identified. Those two amendments provide that in the case of conflict between the Secretary of State’s or the board’s duties in relation to autonomy and their overarching duties under Clause 1 or the board’s overarching duties to secure the provision of services, those overarching duties will prevail. Those four amendments taken together fully address the two flaws of which I spoke and, I suggest, completely resolve the issues that they pose.

I turn now to the two amendments of the noble Baroness, Lady Thornton, directed at deleting the two autonomy clauses. Indeed, at the earlier stages of this process, I believed that the autonomy clauses could and should be deleted from the Bill. However, my view now is that with the problems that they presented having been addressed, we should support the government amendments and retain the two clauses as amended. Promoting autonomy is, in principle, to be welcomed as many who have spoken from all sides of the House both on Second Reading and in Committee have stressed. It is fundamental to the architecture of the Bill, and its great merit that it establishes a clear, decentralised structure for the health service. It is entirely welcome that future commissioning decisions, in particular, will be made locally to meet local needs, locally assessed.

Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 30th November 2011 Lords Chamber

[Lord Warner]

My Lords, I just wanted to make a couple of observations and ask the Minister a question on this group of amendments. First, this is a not a new area that we are getting into. The same issues arose with GP fundholding and with practice-based commissioning. We have managed, as I recall, to sail through those two areas where we have involved GPs in the commissioning of services where there was potential for conflicts of interest without any great scandals. Has the department looked at the experience on this issue of conflicts of interest with practice-based commissioning and GP fundholding and seen whether there was a major issue? My recollection of all this from the research on GP fundholding was that there was not an issue and it was handled perfectly sensibly.

Secondly, if we actually have bigger clinical commissioning groups—and I promise the Minister I am not going to reopen the debate we have already had, no doubt to much relief in your Lordships’ House—the smaller the risk, I would suggest, of conflicts of interest. There is a different set of considerations if you have got a clinical commissioning group for a population of 18,000, where inevitably there is going to be much greater potential for a conflict of interest, to one in which you are commissioning for 400,000. There is a different order of magnitude and I wonder whether that is an issue that the Government have looked at.

Thirdly, if there is concern about sanctions, the thing which really counts with doctors is the prospect of being reported to their professional bodies. It is the GMC and professional misconduct which is the big issue. We should not invent a system which is based too much on local government. It should be bedded into the professional body and the misconduct issues, because that is likely to be the way that it will have most effect with doctors involved in commissioning.

[Lord Marks of Henley-on-Thames]

My Lords, I rise to speak to Amendments 175E, 176AA to AD, 213C and 220A, all in the names of my noble friend Lady Williams, the noble Lord, Lord Patel and myself, and in the case of 220A in the additional name of my noble friend Lord Clement-Jones. The purposes of these amendments are first to secure on the face of the Bill a thoroughly robust regime to avoid conflicts of interest sullying the commissioning process, and secondly to ensure transparency in the commissioning process to the greatest extent that is commercially possible. Taking the point made by the noble Lord, Lord Warner, a moment ago, that this is not an entirely new area, I suggest that the arrangements for commissioning proposed in this Bill risk raising the threat level from conflicts of interest in the commissioning process from “moderate” to “severe”, if I may use the intelligence services’ scale. That is because of the greater involvement of practitioners in the commissioning process, which is of course to be welcomed for many reasons, and the increased likelihood that many practitioners may also be providers of other healthcare services or have interests in such providers.

Our task is to reduce the threat at least to “substantial”, and then to manage the threat in such a way as to avoid commissioning decisions ever being skewed by the private interests of those making the decisions. Much of what we propose ought to be uncontroversial, and merely represents good practice, but we suggest, and in this I agree with my noble friend Lord Greaves, that it is important that our commitment to best practice is made clear on the face of the Bill. Amendment 220A would impose on any provider of medical services who is also a member of a CCG a duty to declare any financial interest in a commissioning decision—a bare minimum proposal, I suggest. Amendment 213C would impose on the NHS Commissioning Board a duty to refer a member of a CCG to his or her relevant professional body for material breach of the provisions or of the guidelines we propose. I entirely agree with the further point made by the noble Lord, Lord Warner, that this is an appropriate way of dealing with offending by practitioners. It should not be for the board to act as, or to set up, a disciplinary tribunal, but it is sensible and a greater deterrent, I suggest, for the professional bodies to do so.

However, the meat of our proposals is in Amendments 176AA to 176AD. We propose a thoroughly transparent regime as the best and most effective way of protecting commissioning from the insidious effects of conflicts of interest. I say insidious—and this is a point in which I pick up on what was said by the noble Baroness, Lady Finlay—because it is not only when a public decision-maker acts deliberately to favour his private personal interests that conflicts arise and threaten the system. It is also when the decision-maker at least persuades himself that his interests and the public’s interests coincide. It is only public scrutiny of the process that can properly test that.

The provisions in the Bill permitting some public access to the meetings of governing bodies of commissioning groups are, I suggest, over-cautious and too limited. The system should be made more open. The public should not be excluded from governing body meetings during the all-important discussions involving a choice between potential providers. I entirely accept that that would involve a new openness about commercial transactions and decision-making. However, these decisions are about choices between providers at public expense; I question the need for meetings to be held behind closed doors in relation to them.

Secondly, in the case of other decisions where the public are excluded from governing body meetings in the public interest, then a record of decisions made should at least be published, and quickly. That is the subject of Amendment 176A.

Our amendments set out a code for dealing with conflicts of interest in new paragraphs to go into the schedule. There would be a requirement for a register of interests of all CCG members. That register should be kept up to date. It should be kept available for public inspection. Then there would be a provision to exclude from the governing body of any CCG a director of a healthcare organisation or anyone with a significant financial interest in such an organisation if there is a contract in existence between that CCG and that organisation.

Thirdly, there would be a provision to ensure that a member of such a governing body who would be excluded if such a contract came into existence would have to stand down from the governing body while any negotiations for such a contract were in progress.

Finally, our amendments import the admirable guidelines produced by the General Medical Council, entitled Good Medical Practice. Those are the guidelines to which the noble Baroness, Lady Finlay, referred. I am grateful to the GMC for producing a document of such clarity and for welcoming our use of it in these amendments. The emphasis of the guidelines is on honesty and openness; that is what we are trying to achieve in this Bill. I believe it is what the Government are trying to achieve in this Bill. These are probing amendments, intended to give the Government an opportunity to consider how they might import such guidelines into the Bill at Report stage. However, our central point is this: we believe that the present provisions of the Bill do not display the seriousness, the clarity or the robustness that are required to meet the risks posed by the new arrangements. I suggest that the Bill cries out for a code in this area such as the one we have proposed.

[Baroness Finlay of Llandaff]

My Lords, there is an additional area which I think means that the provisions in this Bill have to be different from other previous legislation. We face a huge financial challenge across the whole of healthcare, with budgets squeezed in a way they have not been squeezed before. So the potential for conflict of interest will go up as very difficult decisions are made. One can envisage the situation where somebody on the governing body of a clinical commissioning group will have a relative with a certain condition—and I refer back to the example I used previously, motor neurone disease. Say that person needs end-of-life care, and say that is a clinical commissioning group that has decided that it is not commissioning it in its area. There would be a direct personal conflict of interest, because that person would obviously want that care for their relative, but they would need to stand back. With the financial stringencies, the proposed amendments become even more important. While they are probing amendments, I hope the Minister in responding will recognise the importance of this area and agree to come back to it—hopefully, with a Government amendment—at a later stage.

Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 30th November 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords, may I offer a quick explanation to the noble Lord, Lord Hunt, and the Members of the Committee, as to why we have asked for these amendments to be separated? I am very conscious, as I sit in the Committee, of what is often said on the “Today” programme, when somebody is asked the question “How would you improve the health of the entire population”, and the interlocutor says “Please answer briefly”, which means “You have four seconds”. I shall be as quick as possible.

This amendment, along with Amendment 152—which we are not debating at present, as I am merely explaining why we have separated them—is deeply significant. This will emerge much more clearly when my noble friend Lord Marks of Henley-on-Thames speaks in a few moments’ time, but it is important because it deals with the fact that the earlier Amendment 152—I have to refer to it to make any sense of my current remarks—would actually remove all powers of intervention in the current Bill. The powers of intervention associated with the Secretary of State are directly related to the failure of the board or of the CCGs.

The deletion that the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, have moved, would take the whole of the failure regime out of this Bill. It would therefore be directly in conflict with one of the principles of the Bill, which is the principle of decentralisation. It moves back to the Secretary of State only the direct intervention with the board and the CCGs. It is well known now, from the long and explanatory speeches around this whole debate, that the Secretary of State passionately believes that decentralisation is one of the major principles of the Bill.

Therefore, my noble friend will explain why Amendment 153 is not on the same lines at all as Amendment 152. It is a different argument: there should be the right of intervention by the Secretary of State, but it should be limited in a way that saves the decentralisation principle. Why does it do that? It does that by referring back to the Secretary of State’s overall responsibilities for the health service as a whole—which we all accept as a crucial element of the constitutional discussions now going on—as distinct from a direct intervention at the level of the board and the clinical commissioning groups, which would be to restore the very central principle that the Bill has rejected. This is not a deceptive amendment simply about some powers; it is in fact to make it clear that there is a distinction between decentralised responsibilities by the board and the CCGs and the essential, ultimate right—expressed, for example, in the amendment of the noble and learned Lord, Lord Mackay of Clashfern, at an earlier stage—of the Secretary of State to have responsibility for a comprehensive health service while not intervening in a detailed way in the clinical commissioning groups or the Commissioning Board. I will now pass the further part of the argument on to my noble friend Lord Marks of Henley-on-Thames. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, this is a most significant area of the Bill, as my noble friend Lady Williams of Crosby has said. This group concerns the regime whereby, in the event of a significant failure, the Secretary of State can intervene in the board’s exercise of its functions. That is in Amendment 153. The board in its turn can intervene in the exercise by a clinical commissioning group of its functions. That is the purpose of Amendments 220ZAA and 220ZAB. I would add Amendment 220ZA, which is not currently in the list of the group, which simply amends the title of the proposed new Section 14Z19. Also in the group is Amendment 277, which removes the restriction on the Secretary of State’s intervening where there has been a significant failure by Monitor to act in relation to a particular case.

May I first address the question of the Secretary of State’s intervention in the board’s exercise of its functions? When we debated at some length Clauses 1 and 4 and the proposed new Section 13F, noble Lords were clear that whatever may be the outcome of those discussions and debates on those clauses, this House must ensure that the Secretary of State will have powers and functions that are up to the job of enabling him or her to carry out those overarching duties. Those duties involve him or her in carrying ultimate responsibility and accountability to Parliament and in the courts for the NHS. We should remind ourselves that my noble friend the Minister and my honourable friend Mr Paul Burstow have repeatedly assured Parliament that the Government are determined to make it clear that the Secretary of State will remain responsible and accountable for the NHS in Parliament and at law.

--- Later in debate ---

[Lord Mawhinney]

My Lords, the contributions of the noble Lords, Lord Marks and Lord Owen, demonstrate again why this Chamber is frequently held in the highest regard for the strength, clarity and coherence of the arguments that are advanced within it. I am not going to repeat what they said because I agreed with both of them. My noble friend Lord Newton and I are in danger of becoming Tweedledum and Tweedledee when it comes to trying to persuade the Government that there is a real world out there with around £130 billion worth of responsibility. Lots and lots of people are doing their best, but human beings have the inescapable ability of getting things wrong from time to time, no matter how good their intentions.

I have to say to the noble Lord, Lord Warner, that one of the interesting things about this Bill is that it talks about a mandate. I think of my time in Richmond House when something had gone seriously wrong and civil servants came in to say, “Well, there’s a mandate, Minister,” and I would say, “Isn’t that fantastic?”.

Let us get down to the reality of what we are going to do about this latest mishap. That is not an argument for not having a mandate, it is an argument for not putting all your eggs in one basket, even if this particular basket is as widely constructed as the noble Lord, Lord Warner, thinks. I have not resiled from what I have previously said in this Committee in that the Secretary of State is responsible. He has to be responsible to Parliament, he has to be responsible in law, and in reality he has to be responsible in the health service. I am relaxed about the Government putting in place arrangements which they believe—it will all have to be tested over the next few years—will provide a more coherent way of delivering a better and more efficient service than we currently enjoy. I do not resile from the fact that when push comes to shove—and it will, because that is one of the characteristics of the Department of Health, more than any other single department in Her Majesty’s Government in my 30-odd years in this building, one end or the other—it must be clear that the Secretary of State can act, and in a way where the people of this country believe he is acting for them and on their behalf.

[Lord Marks of Henley-on-Thames]

My Lords, if the noble Lords, Lord Mawhinney and Lord Newton, are Tweedledum and Tweedledee, they make a splendid double act in this Chamber. It has been heartening to hear the support for these amendments from all sides of the House. Adding to what the noble Lord, Lord Hunt, said about the observation made by the noble Lord, Lord Warner, the simple distinction is that the mandate and the regulations are intended to be and should be—if they are not to be entirely unwieldy and inappropriately used—prospective. They should set objectives and requirements as to how the strategy of the health service is to be implemented. The intervention powers are intended to be, and must be, reactive. It is the power to react effectively that is important, and as the noble Lord, Lord Hunt, pointed out, it has been used on a number of recent occasions.

May I make one observation to explain our position on Amendment 152, and the difference as we see it? It is not over what is included so much as in what is left out. What is left out is effectively the whole of the intervention regime and what is substituted is a general power to give directions which would take us back to Section 8 of the 2006 Act, which I know that the Government believe is undesirable. I also suggest it is undesirable because it reverts to an unacceptable kind of micromanagement, even though I quite accept the point made by the noble Lord, Lord Owen, about that term being difficult to use in legislation.

Finally, the noble Lord, Lord Hunt, suggested that I might explain why we used the words,

“in the best interest of the National Health Service”.

It is right, I suggest, that there should be a criterion for the intervention by the Secretary of State. The criterion that we have chosen is the interest of the health service. It is, of course, what the Secretary of State considers to be in the interest of the health service. That phrase finds repetition in the Bill, so amendments are consonant with the wording of the Bill elsewhere. I am bound to say that if I was called upon in a court of law to challenge the Secretary of State on what he or she considers the interest of the health service to be, on judicial review I would be very cautious about advising my clients of any prospect of success.

[Lord Hunt of Kings Heath]

My Lords, does not the noble Lord make my point for me, apart from believing that the 2006 Act is perfectly formed in every way? Surely the point is that it should not be open to any doubt whatever. In the end, if a Secretary of State intervenes, it must be because he considers it in the best interest of the National Health Service. Why should we complicate matters by potentially giving at least an argument for judicial review when, in the cases mentioned, the Secretary of State simply will need to, or be required to, intervene?

[Lord Marks of Henley-on-Thames]

The answer is that we are not at one about the vulnerability of my amendment to judicial review. I rather hope that that is never tested; nevertheless, I hope that the amendments are accepted.

[Earl Howe]

My Lords, the policy of the Government and the vision that we have consistently set out is that Ministers will be responsible for overseeing and holding to account the national bodies, backed by extensive powers of intervention in the event of significant failure. I say to my noble friend Lord Newton that that is what the Bill provides for. These powers are essential if Ministers are to be able to retain ultimate accountability for the health service, for the very reasons that he stated. I have to say that some of his phraseology was, in my view, unnecessarily extravagant, if I may use that phrase. The Secretary of State will not stand back; nor will he wash his hands of what is going on, as my noble friend put it. The Bill enables the Secretary of State to intervene where he believes that Monitor, the board, the Care Quality Commission, NICE, HealthWatch or the Information Centre are failing or have failed to exercise their functions, and that failure is significant. In the event that Ministers use these intervention powers, they will be required to publish the reasons for doing so, including an explanation of why they consider the failure to be significant. These requirements will provide transparency to the decision-making process.

I will deal with the question posed by my noble friend Lord Marks. Why should we use the word “significant”? The clear aim of its use is, exactly as my noble friend suggested, to stop Ministers intervening in inconsequential matters. There is no case law on the meaning of “significant failure”. The Secretary of State will need to decide whether a failure is significant. However, cases have considered the meaning of “significant” in other contexts and have taken the approach that, while a dictionary definition of “significant”—

“noteworthy; of considerable amount or importance”—

is not to substitute a different expression for the statute, it remains a helpful indication of what the term means. There is a degree of flexibility inherent in the term “significant”, and I believe that that is helpful in the context of the arguments put forward by the noble Lord, Lord Owen—who is not in his place—and my noble friend Lord Mawhinney.

I will first deal with Amendment 152. I respectfully suggest that there is a gap between that amendment and that of my noble friends Lord Marks and Lady Williams. Amendment 152 seeks to amend the Bill to give the Secretary of State wide powers to direct the board and clinical commissioning groups in how they carry out their functions. I said “wide powers”, and that fundamentally cuts across the vision of a health service free from political micromanagement. It therefore gets us back into exactly the territory that we want to get away from.

Of course it is important, as I have said, that there are intervention powers if things go wrong and those powers are in the Bill. The Bill also sets out a robust system by which the board will hold CCGs to account. I will come on to that in a moment. Creating a sweeping power of direction would seriously undermine the autonomy of the board and local commissioning groups and allow Ministers to use directions or indeed the threat of directions to second-guess operational decisions. In addition, any direct power over CCGs would duplicate and undermine the role of the board which is responsible for overseeing local commissioning.

Amendment 153 makes a more subtle point. It seeks to enable the Secretary of State to direct the board should he consider it to be failing to carry out its functions in the best interests of the health service. Let me reassure my noble friend of what I am sure he does not need to be told. We would always expect the board to act in a way that is consistent with the interests of the health service. This is made clear by the duty on the board to promote the NHS constitution and the duty set out by proposed new Section 1E(2), which ensures that the board is also subject to the duty to promote the comprehensive health service. If the board were acting in a way that was not consistent with those duties, then it would be acting unlawfully. That may constitute a significant failure by the board to exercise its functions properly or indeed at all in relation to which the Secretary of State would consider intervening.

[Lord Marks of Henley-on-Thames]

My Lords, I am sorry to intervene at this stage but does my noble friend the Minister not accept that there may well be two divergent views of what the best interests of the health service are, and that the board may hold one view, the Secretary of State an entirely different view—or, on the other hand, CCGs may hold one view and the board an entirely different view—and that undermines any notion of accountability if the Secretary of State has to stand up in Parliament and say, “I do not believe what the board has done is in the interests of the health service but the board does and I cannot do anything about it”? That is the mischief at which these amendments are directed.

[Earl Howe]

I take the point but I hope my noble friend will agree that I have an answer. The crucial point is that, while we would expect the board to have a clear shared understanding of what the interests of the health service are, the Secretary of State has mechanisms over the board which he can use if necessary to clearly set out what these interests are. He can do that by setting objectives and he can hold the board to account for those. So he has other levers.

Amendment 277, also in the name of my noble friend Lady Williams, would prevent the Secretary of State from intervening in specific cases where he considers that Monitor has failed or is failing to perform its functions. We believe that it is important for the Secretary of State to be able to intervene in the event of a significant failure by Monitor to perform its functions. That intervention power does not exist at all under current legislation, and we believe it should. We do not believe Ministers should have the power to intervene in individual cases. Such a power would risk politically motivated interference and undermine the independence of the regulator. That point is extremely important.

However, there is an important exception to this rule in relation to the continuity of services. Amendments introduced in another place allow the Secretary of State to intervene in relation to proposals for securing access to services where a provider has become unsustainable. The Secretary of State would be able to exercise a veto if Monitor and clinical commissioning groups have failed to discharge their functions, to follow the proper procedures or to secure access to services.

We are clear that the wording of the clause as it stands strikes the right balance, enabling the Secretary of State to intervene when necessary to address systemic failure, while ensuring that Monitor is able to carry out its functions free from potentially time-consuming and politically motivated interventions relating to individual cases. The NHS Commissioning Board will also have powers of intervention, as set out in new Section 14Z19, to support CCGs and take action where necessary if there is evidence that they are not meeting their statutory duties or that there is a significant risk of them failing to do so.

I recognise that the intention behind Amendments 220ZAA and 220ZAB, which look to ensure that the board only intervenes in a CCG when it is satisfied that the CCG is failing, or is at significant risk of failing, is to exercise a function in the best interests of the NHS. However, as the Bill is drafted, the board can determine when a CCG is not exercising its functions properly and that is surely the better approach. We are giving the board discretion to determine when intervention is necessary, based on the terms of each statutory function that CCGs have, not in relation to a separate criterion. The amendment would actually narrow the grounds on which the board would have power to intervene, which I do not think would be at all helpful.

Finally, I would like to address the point put to me by the noble Lord, Lord Hunt, about waiting time objectives. The noble Lord implies that Ministers would be powerless in the face of waiting times. That is simply not the case. Ministers’ main weapons on this issue would be the standing rules and the NHS constitution. Current contractual requirements relating to waiting times, such as 18 weeks, are covered by the constitution through the handbook and will form a key feature of the standing rules pending passage of this Bill. If the Secretary of State wanted to act on a new waiting time issue, the option is there for the NHS constitution handbook to be revised and the standing rules updated accordingly.

I hope that I have provided enough detail on these clauses to enable my noble friend to withdraw the amendments.

Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 28th November 2011 Lords Chamber

The key messages are that both senior managers and senior clinicians need to demonstrate that patient safety is their top priority. They will do so if they are obliged to report all incidents and take note of the learning that comes from the national learning and reporting system. I hope that the Minister will accept that the amendment is apt. If he can convince me that without it in the Bill, we can achieve the same, I would be grateful.

[Lord Marks of Henley-on-Thames]

My Lords, I start by adding my support for the amendments that change the duty to reduce inequalities by strengthening the wording from having “regard to the need” to reduce such inequalities to “acting with a view” to reducing such inequalities. Those are Amendments 112 and 113, in relation to the board, and Amendments 186 and 187 in relation to clinical commissioning groups. I do not want to add a great deal to what the noble Baroness, Lady Finlay, said in that regard, except merely to observe that the commitment to reducing health inequalities in the Bill is one of its great advantages and will be one of the great advantages and achievements of the legislation, if it is passed. I suggest that saying it loud and clear and imposing the stronger duty on the board and the Secretary of State would be the better way to achieve it.

I want to address the other amendments to which I have put my name, Amendments 153ZZA and 153ZZB, which concern the permitted disclosures of information by the board in proposed new Section 13Z2 on page 24 of the Bill. It is important to observe that the starting point for this clause is proposed new subsection (2):

“This provision has effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure”.

This proposed new subsection is about permitting disclosures by the board of information whose disclosure would otherwise be unlawful, which from the wording I take to include any disclosures that would be actionable either in tort or in contract. My concern is about how far this provision would sanction a breach of confidentiality owed to patients or others.

Most of the examples or circumstances outlined in proposed new subsection (1) are anodyne or obviously called for. The first, for instance, is that the information is already in the public domain; the second is where the disclosure has to be made pursuant to regulations, and so forth. However, the amendments are concerned with two sets of circumstances that are, I would suggest, entirely too wide. The first is under paragraph (d), where the suggestion is that disclosure should be permitted where,

“the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual”.

As drafted, paragraph (d) is without regard to the wishes of the individual concerned or, in the case of an individual suffering from incapacity, to that individual’s care. I would suggest that that smacks of a certain arrogance that ignores the rights of the individual to choose whether information about him or her is released by the board. It is for that reason that our amendment suggests that the words,

“and is made with the agreement of that individual or of a person having legal responsibility for that individual’s care”,

should be placed as a qualification to the unfettered right to disclose based on the board’s view of what is,

“necessary or expedient for the purposes of protecting the welfare of”

that individual.

The second area where we say that the disclosure provision is far too wide is under paragraph (f), which suggests that disclosure should be permitted where,

“the disclosure is made for the purpose of facilitating the exercise of any of the Board’s functions”.

That permissive subsection would give the board an overall right to disclose any information it chose, notwithstanding that it was otherwise unlawful, on the basis that it was,

“made for the purpose of facilitating the exercise of any of the Board’s functions”.

It does not even go so far as to say that it would have to be necessary for the exercise of those functions. In the view of those of us who have put our names to this amendment, those lines should go. They are an unwarranted intrusion into the confidentiality of the individual, and they give far too wide a discretion to disclose information whose disclosure would otherwise be unlawful.

[Lord Harris of Haringey]

This is an extraordinarily wide group of amendments—I think there are 27 in this group. I sympathise—well, almost sympathise—with the Minister in terms of how he will respond to them.

I wish to comment on just three of the amendments. The first is Amendment 144, which the noble Lord, Lord Patel, has just spoken to, about the importance of sharing information collected on the safety of services provided by the health service. Particularly in the context of what I think we will see as a fragmentation of the service, where a pattern becomes apparent that suggests that particular practices or processes challenge patient safety, it is important that that information is disseminated.

--- Later in debate ---

The second issue on which I want to speak is Amendment 153ZZA. I am pleased that I gave way to the noble Lord, Lord Marks of Henley-on-Thames, because I thought that this amendment was not going to be spoken to by any of those who had put their names to it. It concerns the disclosure of information for the purposes of protecting the welfare of any individual and says that this disclosure should take place only with the agreement of that individual. I think that the amendment might be misguided because the health service has a particular duty regarding the welfare of individuals and there may well be circumstances in which the disclosure of information is necessary as a matter of urgency to safeguard the right to life of that individual. For example—this is informed by the work that I do as chair of the Independent Advisory Panel on Deaths in Custody—the board will, I think, have responsibility for commissioning medical services for prisons and custody services. Where an individual may be transferred from one entity to another, repeatedly and at short notice, it will be potentially unwise to expect that individual to have given prior approval of the disclosure of information which may be important for their safety, either because of their medical condition or because they are at risk of suicide.

[Lord Marks of Henley-on-Thames]

If the Minister were inclined to concede our amendment, subject to a proviso dealing with emergencies of the sort that the noble Lord has suggested might be important, would that meet his objection to the amendment?

[Lord Harris of Haringey]

No, the reason being that it may not be an emergency situation; it may be that an individual is being passed from one agency to another. The point at issue is a risk and the mitigation of that risk. The risk may be that an assessment has been done suggesting that a person is at risk of suicide. They may well not commit suicide; there may well not be an emergency; or there may well be things that the receiving agency can do which will reduce that risk. However, there is no emergency so there would not be circumstances in which you could say it is in response to a particular situation; it is to avoid a situation arising. I am sure that there could be a form of words which would both deal with the concerns the noble Lord has highlighted and permit the sensible passing on of information to safeguard the right to life of that individual. I do not think Amendment 153ZZA quite deals with that point, and the Minister may want to respond to that when we get to that stage.

The final amendment I wish to speak to, very briefly, is Amendment 299C in the name of the noble Baroness, Lady Finlay of Llandaff. I, too, think it is extremely important that NHS services explicitly in the Bill must not use NHS business to recruit private patient business. In a context where again we will see the fragmentation of services, the arrival of all sorts of new providers and the possible blurring of distinctions between NHS provision and that provided privately by NHS practitioners, this needs to be made explicit. It is already an issue. I will cite my personal experience. The last but one time I visited my general practitioner—I think it was the first time for some five years—he declined to make the referral for secondary care I wished to have, saying that I probably had not looked after myself as well as I should have done, but then he pushed across the table a card advertising his Chinese medicine service. I thought that was extremely inappropriate—disregarding whether it was an appropriate treatment; as far as I am concerned it is non-evidence-based medicine.

Under any circumstances for there to be a blurring of the NHS responsibility of a practitioner and their private concerns seems extremely dubious. It is important it is made explicit that this is not permitted. In a previous series of exchanges the noble Earl has said it is quite clear what should happen under those circumstances. However, it does happen and what is permitted becomes increasingly confused. Even if medical practitioners are not abusing their position, or there is no blurring of those lines and everyone has been quite proper, it is perfectly feasible that patients will be confused and will not be clear as to what is happening, and that will colour future relationships they have with people providing medical services to them. It certainly coloured my relationship with that GP because on the last occasion I saw him I was extremely dubious about receiving any advice from him. I confess I referred to him as being patronising. This was perhaps inappropriate; it was certainly unwise as he was about to perform a rectal examination. None the less, it certainly coloured the relationship we had. In the interests of both patients and medical practitioners the amendment of the noble Baroness, Lady Finlay of Llandaff, should be in the Bill.

--- Later in debate ---

[Baroness Murphy]

My Lords, I rise to add a number of comments to one or two of these amendments. I have my name on Amendment 196, also in the name of the noble Lord, Lord Patel, which is about making choices real for patients. My experience is exactly the same as his—that patients have actually benefited very little from the wide range of choices they could have if they understood the information about accessibility, about the sort of provider, about the range of other services that that provider might have and about the performance of that provider. If you are skilled you can use information available on the internet now to find details on the various providers you have been offered under the “Choose and Book” system used by general practitioners. However, the vast majority of patients simply do not have the skill to negotiate the choices. Making that choice a reality is therefore vital.

I also support the amendments proposing that patients, wherever possible, should carry their own records. To cheer up my noble friend Lord Patel, I say that he will be reassured to know that most maternity units now do have the patient carrying their own records, and that has proved to be of great benefit because they hang on to them when the NHS loses them. It has worked very well in maternity services and I certainly support it. There should be more of that in mental health services, where there has been too much holding on to information—not always accurate information—in patients’ records. It would be much better if the patient held on to those data and was able to carry a great deal of the data with them. Of course, it would be much better if people had access to information on simple records but they do not because we do not have electronic patient records in every place. The more information the patient can carry with them, the better it is for those who are going to encounter them in the future; it is also better for the patient to have accurate data about their condition.

I come now to the question of whom the clinical commissioning groups should consult in the way of secondary providers when commissioning care. I do not support the amendment of the noble Baroness, Lady Finlay, which suggests that the specialist on the clinical commissioning group should be local rather than a person from another area. No doubt when you have too much conflict of interest, specialists on a clinical commissioning board, and a PCT which engages with the local providers and takes account of their desires, local institutions become favoured. We have seen that many times. It is simply the institution the provider belongs to. That is when you are making a decision, so it is very important that the decisions should be made by somebody who can input and hold in their heads all the necessary secondary specialist information. The decision should nevertheless not be made by a local person with an interest in secondary care.

However, when it comes to gathering local information, local institutions and specialists in those institutions should be consulted about what is possible in the area, what has been done before and what could be thought about in the future. That is where primary care trusts in some parts of the country so often, unfortunately, have not appreciated what they could benefit from locally in terms of academic health partnerships and how they could use their academic health science groups to assist them with the commissioning function. They need to take account of what is available locally, and need to understand and get help and consult with local academic institutions and providers, but when the decision is made it should be made by individuals who do not have a conflict of interest locally.

[Lord Marks of Henley-on-Thames]

My Lords, I shall speak briefly to Amendments 193 and 197, amendments to proposed new Sections 14T, on promotion of involvement of each patient, and 14U on the duty as to patient choice.

The Bill and our debates on it have been characterised by a recognition of the importance of patient involvement and patient choice, and a great deal has been said about those two things in this debate. It is important that we recognise and welcome the new Sections 14T and 14U to the NHS Act, which will enshrine those in statute, but it is also important to note that this is not an entirely new idea. In many areas of medical care, patient choice has been with us for some time. Patients currently have a choice of GP practice; they have a choice of hospital; they have a choice of the GP whom they wish to see within a practice; and they have a right to be informed.

However, there is in practice all too often a gap between the theory and reality. The reality is that although people may theoretically have the choice, they do not know that they have the choice. They do not know despite the excellent section on choice on the NHS website and the literature that is put out about choice at the national level. The amendments are designed to impose on clinical commissioning groups at the local level the duty to take steps to inform patients about their right to be involved and their right to make choices. They state, in certain terms, that each group,

“must take steps to inform patients, their carers and their representatives of the right to be involved in such decisions”,

and, in the other cases,

“to make such choices”.

They are simple amendments, and it may be a matter of regret that they are necessary, but simply having the right in the statute book will not do unless we can also ensure that patients are informed of those rights.

[Lord Walton of Detchant]

My Lords, I rise briefly to support the principle underlying Amendment 198, so ably proposed by my noble friend Lord Kakkar, relating to the crucial importance of making clear that there must be a relationship between the NHS Commissioning Board, local commissioning groups and academic health partnerships. In using that term, I want to be quite clear in what I mean. I am not referring simply to the five academic health science partnerships which have been created within the past few years specifically in certain areas of the country by the NHS; I am talking about the crucial importance of being involved with everyone who is concerned with the teaching of medical students and the training of young doctors and other healthcare professionals.

There is no doubt that years ago, when the health service began, there was an article of faith to the effect that professors, lecturers and readers in the medical schools and universities employed by the universities, those that had clinical contracts, had a duty to spend half of their time on service to patients. In other words, they had honorary clinical contracts, they saw patients and they carried on in that capacity giving services to the NHS, in return for which there was also an article of faith that consultants employed by the National Health Service in teaching hospitals had a duty to involve themselves in the training of medical students and the supervision and training of young doctors who were being prepared for work in a variety of different professions.

There has been a total transformation of the scene over the course of the past 20 or 30 years, because academic appointments are no longer restricted to a small group of hospitals, which used to be called the teaching hospitals. They also take place and are based, in many instances, in other hospitals, sometimes in old regional hospitals at a distance. In those hospitals, not only do we have academic people employed by the university involved with teaching, but many of those hospitals are now called university hospitals. It is a recognition of the fact that medical students now are trained across a huge number of hospitals in what were the regions. Many of them spend considerable periods away from the centre around the medical school. Therefore, a crucial relationship must arise between the academic doctors working in those other hospitals outside the main centre and the commissioning groups.

We must also not forget the crucial importance to the NHS, as we heard a few days ago in discussion of the amendments of the noble Lord, Lord Willis, relating to research, of not only the academic departments but also the consultants working in general hospitals and others who have significant responsibility for being involved in clinical research. As I said when we discussed those amendments, today's discovery in basic medical science brings tomorrow's practical development in patient care. In particular, these academic relationships are crucial when one begins to consider the importance of clinical trials of new procedures, new drugs, and so on, which may be carried out across not only a wide range of hospitals but in the community. A great deal of teaching is now going on in general practices, which makes the relationship between academic doctors in academic centres and commissioning groups even more important. I therefore support the principle and the purpose underlying Amendment 198.

Health and Social Care Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 9th November 2011 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, as my noble friend the Minister points out, the autonomy clauses are to form part of the Government’s discussions with other noble Lords about the Secretary of State’s duties. These clauses are of considerable significance. In my judgment, Clause 4, relating to the Secretary of State’s duty, and the new Section 13F, relating to the Commissioning Board, threaten the Secretary of State’s primary duty to secure provision of services, however that is ultimately worded after discussions are concluded.

In principle, promoting autonomy is to be welcomed; so is avoiding micromanagement within the NHS, as my noble friend Lady Cumberlege so eloquently pointed out in her speech. One of the best features of this Bill is that it establishes a well-defined decentralised structure in which decisions about arranging and commissioning services are made at a local level in accordance with local needs and conditions. However, as the Government have recognised, it is also essential that final responsibility, both for the quality of the health service and for the very large sums of taxpayers' money spent in providing it, should rest with the Secretary of State, and that he or she should be accountable not only to Parliament for the exercise of that responsibility but answerable in the courts for failure to exercise it in accordance with the law.

I will say a few words now about how the difficulty arises in drafting provisions that strike the right balance between decentralisation and the Secretary of State’s ultimate responsibility. As we all know, under Section 1(2) of the National Health Act 2006, the Secretary of State had a primary duty to,

“provide or secure the provision of services”.

That was underpinned by a direct duty under Section 3 to provide a list of specific services such as hospital accommodation. That duty was in turn supplemented and buttressed by powers under Sections 7 and 8 to delegate and give directions to other NHS bodies. So there was under the 2006 legislation a simple linear structure down from the Secretary of State. Under the Bill, the position is more complex, because under Clause 10 the Section 3 duty to provide the specific services is devolved to the clinical commissioning groups, and the general powers to delegate and give directions are removed. That is why it is challenging to provide for an overarching duty on the Secretary of State to secure the provision of services under Clause 1, and to provide for the exercise of all his other functions to that end. It is that challenge that is principally to be the subject of discussions.

If the Secretary of State is bound by a duty to promote autonomy, as proposed in Clause 4, the force of his duty to secure provision of services is weakened, because his failure to intervene in any given case would be very difficult to challenge on judicial review, except in an extreme case. Generally, the Secretary of State could respond to any challenge regarding a failure to act on his part by claiming in his defence that he was declining to act pursuant to his duty to promote autonomy. It does not help that the Secretary of State would only be bound to promote autonomy,

“so far as is consistent with the interests of the health service”,

in the context of any such challenge. That is because the arbiter of what those interests were would be the Secretary of State himself. A court would not substitute its own view of the interests of the health service for his unless it was satisfied that his view was irrational; and that is too high a bar. It follows, in my view, that there is an inconsistency between the proposed duties to promote autonomy and fulfilment of the Secretary of State's overall responsibility, however it is to be expressed.

The problem with proposed new Section 13F is that it is proposed that the board, with regard to its autonomy provision, be similarly bound to promote the autonomy of the commissioning bodies and others. So the board can argue that it should decline to intervene with the commissioning bodies in accordance with its duty to promote autonomy. That could be relevant if the board were challenged by judicial review on its failure to exercise its intervention powers or, alternatively, relevant if the Secretary of State wished to exercise his powers in respect of the board on the board's failure to intervene where the Secretary of State thought that the board ought to intervene. Thus, while it is desirable— and I entirely agree that it is—for the chain of responsibility to allow plenty of slack as a general rule, when the chain needs to be tightened in the event of failure or threatened failure, the danger is that the chain will be found to be weak in two important links.

I look forward to the discussions to be held with my noble friend the Minister and pay tribute to his and his department’s willingness to hold those discussions on a cross-party basis. I hope that we will see some way as to how this conundrum may be resolved, to retain a strong legal chain of responsibility without encouraging or permitting micromanagement of the bodies in the NHS, to which powers are rightly to be devolved. If we find a solution, that in itself will do a great deal to assist in the confidence that my noble friend Lady Cumberlege rightly points out is lacking among the public and the NHS in the political process.

I add only this. In my view, these two clauses could simply be deleted without doing any violence to the purposes of the Bill. That is because the principles of decentralisation and autonomy and the avoidance of micromanagement are defined and limited by the Secretary of State’s powers woven into the very structure of the Bill and into the way in which the bodies relate to each other under the provisions of the Bill. I suggest that these clauses merely serve to muddy the waters.

[Lord Mawhinney]

I noticed that the noble Lord, Lord Davies of Stamford, pointed to me when he talked about making a theological point about a besetting sin. Because I was going to compliment him and say how pleased I was that he did so, I will happily share that endorsement with the right reverend Prelate.

The noble Lord also made an extremely important point, and around that point I want to speak for a few minutes, with the House’s indulgence. His second point was right; the problem with the health service is bureaucracy—it is not anti-liberation or shackles, but systems and procedures and a pressure coming from all sides that nobody should rock the boat. I listened to my noble friend Lady Cumberlege, and I shall come back in more detail in a moment on what she said, but I suspect that I cannot be the only one in this House to think that, for every case where outsiders did not like some political intervention, outsiders, including patients, did not like the lack of intervention from inside the health service.

On the whole, my experience of over 30 years at both ends of this Corridor has not been that patients come to me and say that the problem with the health service is the politicians. They more frequently say that the problem with the health service is the management or, as we discussed the other day, the doctors who will not admit when they have got something wrong, or the nurses who simply do not provide even the most basic care for the elderly in today’s health service. So the noble Lord, Lord Davies of Stamford, did us a favour when he pointed out that bureaucratic point.

I remain extremely grateful to the Minister for the willingness that he expressed the other day to take away Clauses 1 and 4. Those in the House for that debate will know that it was a widely held view across all the Chamber—and the Minister not only agreed to do it but did it with a tone and spirit that was widely admired. I thank the noble Baroness, Lady Williams, for her contribution in support of that. I would not want anything that I or others say to make my noble friend feel as though the House was reneging on the request made to him to take Clauses 1 and 4 away, which he showed a willingness to do. My contribution to this particular debate is to suggest a few of the things that he might like to think about when he does so which may need to be clarified, resolved or excised, so that when we get back to this on Report he will have a much smoother run—one which I and I suspect other noble Lords hope that he will be able to enjoy.

When the noble Lord, Lord Warner, made his comments, I intervened to say that he is not the only one in the House who thought what he thought. I was referring to a very pertinent phrase which he used. He said that he was not clear whether the purpose of Clause 4 was for the Secretary of State to be engaging or disengaging. I think that is part of the problem of the drafting of this clause. Those of us with some knowledge of the health service are still unclear whether this is meant to help the Secretary of State engage or disengage.

That takes me to my noble friend Lady Cumberlege. She and I served happily together in the department. We conspired for the common good on many an occasion, both in public and over a cup of coffee in our offices. She knows it to be true that there are few people in the health service who I hold in higher regard for a lifetime of work. But I am going to add a “but”. On this occasion, while I admired the tenacious adherence to what she read as the spirit of this clause, most of the rest of what she said left me wondering exactly where she was trying to go. Nobody is claiming that democracy is a clean and simple process. It can be messy. Part of my noble friend’s argument was that Ministers were not to be trusted and that it would be much better to hand it over to the professionals. I respect my noble friend for that view but I do not think it carries a lot of weight. I, too, read the NHS Confederation’s paper. In fact, I have it with me. Every time I read what it said on Clause 4, I thought to myself, “There is just the chance, Brian, that you are giving these people more credit than they deserve”. Perhaps this is a politically incorrect thing to say, but I was reminded just a smidgen of Mandy Rice–Davies in the sense of, “Well, they would say that, wouldn’t they?”.

The problem with this debate is that you have the masses of the health service with their procedures and bureaucracy intermingled with outstanding professionals who, I know from my experience, feel as frustrated with their colleagues as sometimes Ministers feel with the bureaucrats. On the other hand, you have this messy democratic process that occasionally shifts Ministers. Listening to my noble friend, you would be amazed by the claim that the NHS is the envy of the world. I think it is only the envy of the world in certain aspects and that there are other aspects where the world thinks it can do a better job than the NHS. The health service is right up there competitively but given the history of the past 40 years, in which Ministers have played a leading role, it is hard to envisage the outcome that my noble friend talked about. Therefore, I have to say to her that I had a real problem with what she was trying to convey to the Committee. If you do not have democracy, you do not have any public accountability.