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Local Government and Public Involvement in Health Bill

Volume 694: debated on Monday 23 July 2007

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Allenby of Megiddo) in the Chair.]

Clause 222 [Health services and social services: local involvement networks]:

238KBA: Clause 222, page 154, line 29, leave out from beginning to “specified” and insert “, establishing and supporting Local Involvement Networks to perform the functions”

The noble Earl said: I shall speak also to Amendments Nos. 238KBB, 238KCA and 238LF.The Minister may be glad to have reached Part 14 of the Bill, if only because the end of her marathon stint in Committee is in sight. I would also not be surprised if she were to view the change of subject matter as a welcome shift of focus. From these Benches, we look forward to a constructive debate on patient and public involvement, although these matters arouse considerable concerns and difficulties in the minds of many of us. I am sure that she will, in her customarily helpful way, do her best to try to reassure us, but I suspect that in some cases that will not be easy or straightforward.

I start with a group of amendments designed to pose a simple question. The Minister will know from our debate at Second Reading that, in the eyes of many of us, the over-riding defect of this part of the Bill is that it appears to have been put together by a cryptologist. From reading it, it is impossible to decipher what on Earth it all means. The Minister clearly knows what it means and we may think we know as a result of all the background material and Explanatory Notes.

As a starting point, it is worth asking this very simple question: should not part of the aim of all legislation, including this Bill, be to be comprehensible in its own right? We understand that, arising from the Bill, there will be new bodies called local involvement networks or LINks. It is understood that the function of LINks will be analogous to that of patient forums, except that the LINks will extend to social care. Certain members of LINks will be authorised to perform certain functions. While the exact form and membership of LINks will be up to local determination and, therefore, are not to be laid down in the Bill, we can safely say that LINks will, at least, have members.

But when we read the Bill, what do we find? We find that we are led around in a kind of dance, the aim of which is to go to fantastic lengths to avoid making any sort of descriptive reference to local involvement networks, to avoid any mention of their functions or powers and to omit all reference whatever to the fact that they are supposed to have members. Instead, in Clause 222 we have “arrangements”, along with “activities”. We do not have members of LINks; we have people. LINks are not even given any powers. The powers of LINks are only visible, as it were, in the mirror because they take the form of other people having duties in relation to LINks. Indeed, LINks are not bodies at all. The only clue as to what a LINk is comes in Clause 223(2), where we are told:

“In this section, a reference to a ‘local involvement network’ is to a person”.

That reference to a person is the nearest we ever get to a definition of a LINk in the Bill. But who on Earth refers to a network as a person? A “person” is not a word that makes any sense in this context at all; it may make sense to a lawyer, but who in the ordinary world can understand it? I do not think that any of this language is helpful. I ask the Minister why we have this rigmarole. Why can we not have, as the amendments propose, a definition of a LINk, however loose, on the face of the Bill, together with clear statements about its functions?

There is a serious point here about accountability. Many of us will have seen the press report last week telling us that the Government intend to reduce the number of central targets for the health service and to make local bodies responsible for setting their own targets. That is fine, but what follows is more local accountability, and patient and public involvement in the planning and delivery of healthcare is a terribly important part of what we mean by local accountability.

What are the mechanisms for delivering it? As far as I can make out, it is not even going to be a contract. The arrangements referred to in Clause 222 are arrangements not with a LINk but with somebody else—namely, a host organisation. If the mechanisms for delivering patient and public involvement do not include having independent statutory bodies with defined functions, and if LINks themselves are not subject to a contract, how can we truly say that we are setting up a system that delivers robust local accountability? I believe that it is very difficult.

In her letter of 9 July, the Minister confirmed that we cannot prejudge what LINks will look like. As with a creature from Lewis Carroll, we may know a LINk when we see it, but we cannot, for the moment, define one. Whatever LINks seem to be, we see from the Bill that they will not have functions. If we cannot define a LINk and it does not have functions, the obvious questions arise. How will it be able to enforce its rights in law and, from the opposite perspective, how will people be able to enforce a complaint against a LINk about what it is or is not doing, and on what legal basis?

I do not know whether the Minister can give us any satisfactory answers to all that. The point is not just that the Bill is vague but that it does not appear to deliver a sound basis for what most of us think patient and public involvement should truly be. I beg to move.

I support very strongly the words of the noble Earl, Lord Howe. Since I think that we agree on everything, I just want to add a little more weight to what he has said. Perhaps it is good for the Minister to hear that, across the Cross Benches, the Conservative Benches, the Lib Dem Benches and some of the Labour Benches, we are united in some of our concerns about this part of the Bill.

When we first saw the Bill, many of us were deeply concerned because we could not find any clarity in it; we could not work out what it really meant. However, as the weeks have passed, we have learnt more about, for instance, what the early adopters of the LINk model were doing. I was truly shocked that they were given a set of objectives that asked them to focus on particular aspects—this is from evidence that was given by Meredith Vivian to the Health Select Committee—without a clear list of duties.

So much of it, in everything that we could find, was process driven. It was all about,

“how we can make sure we reach as many people as possible and are as engaged as possible with voluntary community sectors, how we can make sure that what we do is well-known in terms of communication and visibility”.

But what the objectives are remains, to most of us, singularly unclear.

It is not just me saying that. The Health Select Committee, in its report, said:

“The ‘early adopter’ projects appear less an objective trial than a discussion with stakeholders, and a key point—what can be expected from Hosts—is not being addressed”.

It went on to recommend full trials of LINks to assess the practical requirements for running them. Indeed, it listed evidence from Elizabeth Manero of Health Link, suggesting that a model for LINks would be the best practices of the patient forums, where a core group will perhaps run the LINk,

“make decisions about the LINks activities, can sit in on trusts’ boards and meetings, and undertake surveys or visits. They produce reports and challenge trusts if they are unhappy with the response”.

She added:

“They would also do everything they could to connect with local groups and find out a wider public view”.

Her worry about LINks, as presently imagined, was that,

“the proposal is to have a very, very large, ‘perhaps thousands of people’, involved in the Health Service”.

She continued that she was worried that this focused on a process rather than on refining an outcome.

I already had real concerns about all this, as did many members of forums who have contacted me separately and together in the past few weeks. But my concerns have been strengthened considerably during the past week. The Minister kindly sent all of us involved in the Second Reading debate the drafts of two guidance documents for the establishment of LINks. The first was the model contract specification and the second was a document that sets out,

“what we expect an effective LINk would look like, based on what we have learned so far from the work of the Early Adopter Project sites, as well as from other networks in the community”.

I am grateful to the Minister for sending us this material, but the second document made me almost lose the will to live. It is, indeed, all about process—what it will be like—including a rather offensive list of what it will not be like. The document states:

“A LINk is not … a group of volunteers who are solely responsible for inspecting NHS and social care premises and services … a method of performance managing health and social care services … a method of dealing with individual complaints about local care services … a network that duplicates other networks and initiatives”,

and so on. That list is, rather, a suggestion that forums have not lived up to expectations and that they are somewhat like these theoretical groups that LINks are not to be.

The real clue lies in the statement that the detail of the powers of LINks will be provided in the future regulations that the Government intend to consult on in the autumn. There is no clarity, just the suggestion that,

“LINks have a role in … promoting and supporting the involvement of people in the commissioning, provision and scrutiny of local health and social care services … obtaining the views of people about their need for, and experiences of, local health and social care services … enabling people to monitor and review the commissioning and provision of care services … making their views known to the people responsible for commissioning, providing, managing and scrutinising those services”.

We are then told:

“This will be achieved by establishing a flexible framework, which can be tailored in each area”,

according to local circumstances. There follows a series of diagrams from early adopters—Kensington and Chelsea, and Durham. While I could understand Kensington and Chelsea’s simple membership diagram and begin to comprehend its more complicated model of how it would work with no central hub membership, the Durham model left me wholly baffled. In each case, the text tells us that the models are under development. I am not surprised. This way of thinking is absurd. The first decision must be about the objectives, powers and duties of LINks. What are they to do? What must they do? What can they do? Only then should this discussion of process even begin.

This has seemed to me to show that the Department of Health is more concerned with process in this area than outcome and is more concerned with breaking down the present structure of patient forums than developing them and creating a smooth transition into LINks. It is not concerned about creating a huge cadre of disaffected volunteers, who will look at all this and ask, quite sensibly, what it really means. For those reasons and many others, I strongly support this group of amendments.

I, too, support this group of amendments, particularly Amendment No. 238LF. I received an e-mail about the Bill at the weekend, which pointed out that as things stand, since local involvement networks have no independent legal personality, their members could be personally liable for their actions, even though they are discharging statutory functions. This contrasts sharply with the present position whereby patients’ forums are legal entities.

Amendment No. 238LF changes the definition of a LINk in Clause 223(2) from a person carrying on the activities specified in Clause 222(2) to,

“a body set up in pursuance of the arrangements specified in”,

Clause 222(1). The amendment, therefore, would change LINks from groups of persons coalescing around a particular function or set of functions to a corporate legal entity. I submit that this is a much more satisfactory situation for the members of these local involvement networks and I believe, therefore, that this constitutes an ungainsayable argument for inserting Amendment No. 238LF into the Bill.

I, too, would like to support the making of a LINk, if we are to have LINks in the way that has been suggested by the noble Earl, Lord Howe, and re-emphasised by my noble friend Lord Low. What really concerns us is that we have no real conception of what the future holds. The noble Baroness, Lady Neuberger, has spelt it out extremely well.

I have to admit that I have another worry. It seems extraordinary that this Bill has been going on for so long now in the background without coming to Parliament. The Commission for Patient and Public Involvement in Health has been extended about nine times since it began. That is a fairly extraordinary figure. We have heard from some of the earlier doctors that very good work has been going on with more or less the same members as exist in the forum. I find it really rather upsetting that, even if the time has come to say goodbye finally to the Commission for Patient and Public Involvement in Health, nobody has thanked it for the work that it has done. Considering it was set up and abolished almost at once, it was a pretty disturbing commission to have been in charge of and to have been on the staff of. I would like the Minister to take this opportunity to say something rather more positive than we have heard so far.

There are obviously reasons for moving in this direction, particularly on the social care side, as I understand it, which cannot so easily be joined with the health side. I believe that the health side is rather bossy and dominant. It will take some persuading that we will have a sufficiently strong social care side for them to be on a par and in partnership; many other Bills put through by the Government rightly aimed to achieve partnerships at all social levels. I just wanted to say that, by way of a background to my concerns. I did not take part at Second Reading because of other commitments later in the day but I was there for most of the time and I have followed, as far as I can, what has been going on since.

The House of Commons Select Committee on Health called LINks woolly. What Members of this House have said today bears out what they felt. Members of health forums have been treated very badly. These are volunteers. They need support, not putting down. Will members of LINks be treated any better? We need good public involvement in health. I hope that the Minister will comment on that.

I want to ask one or two questions. I apologise for not being able to take part on Second Reading. I, too, am bemused about this but could not have put the position more eruditely than did the noble Earl, Lord Howe; it is always a joy to listen to him but this afternoon was a particular joy.

My questions are about how ordinary people who will become part of LINks—or at least those whom the Government hope will become part of LINks—will understand what they are engaging in. I say that having talked to some ordinary folk who regretted the loss of their community health councils, but continued stalwartly to join patient forums—I declare an interest as a rather distant member of the St Thomas’s forum—and would like to continue to work in these areas. They do not understand two things, the first of which is about governance. How do these strange bodies, which are so ill defined, fit into the total governance structure of the health service? Do they have any power? Are they just sounding boards? What is their value? How will they be appreciated and understood? How will you get that message to ordinary people to maintain their interest?

Secondly, because of all this, I do not really understand what the objective is for the new groups. That may be my lack because I was not able to engage in Second Reading or listen to all of it, although I read a certain amount. I understood the community health councils; the Government may not have liked what some of those groups did in terms of challenging issues in the health service. I have begun to understand—just about—what the patient forums were doing. I cannot understand what LINks are going to do. I am afraid that, even after listening very carefully to the noble Earl, Lord Howe, who usually illuminates me, I still do not understand—probably because he does not know either—what the organisations, bodies or people will do. I would be grateful for clarification from the Minister. A great deal depends on this in relation to local involvement, particularly, as my noble friend Lady Howe said, if we are to try to engage people in understanding LINks in relation to social care, with which I have a strong connection. It would be a great help if local communities could understand LINks. If they cannot understand the structures, they will never understand the services.

I am tempted to welcome this new cast to Part 14 of the Bill. We have had a splendid time so far but we have an even better time in prospect.

I am challenged by the “enigma code” version of the Bill proposed by the noble Earl. I am happy to do what I can to decrypt the Bill. I hope to inspire noble Lords to have confidence in where we are and why we are there. We give additional information in the hope of clarifying and supporting people’s understanding. Given what has been said, it might be useful if I give a bit of background about why we have come up with this formulation.

The amendments explore our changes and why we made them, the relation between the host and the LINk and the form and function of what is planned. Those issues go to the heart of what we are trying to do. I understand what noble Lords are saying about the absence of a statement of objectives at the front of the Bill. We have that debate over and over again in the House; we had it recently on mental health.

I refer noble Lords to the Minister’s foreword to Creating an Effective LINk, a draft document which has been circulated. It can be summed up very simply: the establishment of local involvement networks gives communities the chance to influence all health and social care services. Whether they are run by councils or the NHS, LINks will give citizens the chance to have their say in a much wider range of ways, which I will come to discuss later. It may be, for example, by investigation or commissioning reports that will be put together by a much wider range of participants than has ever been possible before, because of the extension to social care. It may be through the “enter and view” function, which is very clear in the Bill. It could be by gathering voices to exert greater influence on a particular decision in the local health service.

Part 14 is not a convenient afterthought; it is brought forward from a genuine conviction that there must be better and less exclusive and forbidding ways for people to exert influence over health and social care in all areas of communities and to become more involved in what matters most to them. The substance of Part 14 is to put forward those more extensive and inclusive ways of involving the widest range of people to influence and improve healthcare. This debate has a long history; noble Lords around the Chamber will have engaged in it.

I know that change is not comfortable; neither is acknowledging that what served once has been overtaken by different imperatives, but that is part of the debate that we are having. The first thing that I want to say, particularly to the noble Baronesses, Lady Masham and Lady Howe, is that I thank those who have served on patients’ forums for their work. The Minister thanks them in the foreword to the document; they have been thanked in different ways. Without their expertise and commitment, which have been built up and demonstrated, we would have a far worse health service. They have performed an extremely important function, so much so that we are determined that that expertise will not be lost, devalued or wasted. As I explained, as we go through the amendments, we want passionately to build on the best of what has been achieved and, indeed, to extend it.

It is important to stress that these requirements are in this Bill because they belong here. First, their new role in local government will go far beyond the notion of a traditional delivery service, taking local authorities to the threshold of a new role in which they will shape the whole local environment—the place in which people live, work and thrive. In terms of health, that is expressed first in the new duty that we propose for local authorities to put in place an independent structure to empower local people. Secondly, the Bill will enable services to work together in ways that have eluded us so far, closing gaps between social care and health in the design and delivery of services. Thirdly, the Bill breaks new ground in healthcare by finding a way to involve local people in providing services that go far beyond the interrogation of institutions, which is what the patients’ forum specialised in. They therefore go beyond the expertise of a small and dedicated group. The Bill goes into the wider community, across the entire patient journey and the experiences people have as part of that long journey.

I know that noble Lords are asking, “Why this Bill?” and “Why now?”. In the past five years, the landscape of healthcare has changed, and it continues to change. The institutions have changed; foundation trusts and primary care trusts have changed; the configuration of PCTs and the patterns of provision have changed. Healthcare is offered in different ways and places. Priorities have changed; people have changed. Patients have become far more used to choice and far more used to being heard. System regulation has become more sophisticated. We have the wherewithal, capacity and vision to join up services. The health service role of overview and scrutiny committees has changed. I could go on.

Just as the system for health and social care has changed, the opportunities must change so that local people can shape the services that they experience. I am not saying that patients’ forums failed, but the context and demands on services changed and the remit of the patients’ forums was narrow: they covered only health; they focused on institutions; they were very inflexible; and they were inextricably linked in legislation with the Commission for Patient and Public Involvement in Health. That was determined centrally, so what they did and how they were made up, supported and funded was all set out in legislation. That is why we have come forward with a proposal which, I believe, provides the security of a legal framework and guarantees that an independent organisation—a host—will have a way of collecting and amplifying the voices of people who might otherwise not be heard.

At all levels of the system we have built in accountability between the local authority and the host in terms of the contract—the host is the servant of LINks, much as officials serve Ministers—and between LINks themselves and the wider community. I am sure that we will explore that in due course.

For very good reason, we have not put in the Bill details about the form that a LINk might take, although its functions are set out clearly in Clause 222. We have not included those details because that ties in with the culture of the change that we are trying to make and because in the consultation that preceded the Bill it was made clear that local people wanted to decide the form of the organisation and to determine the scope of the network and its membership and governance arrangements.

Amendments Nos. 238KBB, 238KCA and 238LF would put a duty on the local authority to establish a LINk directly rather than through the procurement of a host. Having set out the context, I hope that the Committee will recognise that I appreciate the sentiment behind that aim and the fact that noble Lords are searching for an explanation of this structure. I also fully appreciate the difficulties that can be brought about by a lack of detail in the Bill. Many Bills are icebergs: all the interesting stuff is underneath and the legislation has to be interpreted in different ways. I can see the attraction of putting in a definition of an organisation with legal substance and form; apart from anything else, it would seem to give noble Lords a degree of security that a tangible organisation would emerge. However, I stress that, in not doing that, we are not being perverse; we propose that a LINk should be created as a result of a contractual arrangement not so as to weaken, lessen the impact of or sideline a LINk and not because we think that it is a better philosophical model. Above all, we are taking this approach because, given the new relationship between a local authority and a local area, we need a means of ensuring that the LINk is separate from the local authority.

A fundamental premise of patient and public involvement is that arrangements must be independent. I can understand the desire to simplify arrangements by cutting out the need for a host, but the host will perform a critical function: it will support independence. Without that arm’s-length body holding the budget, facilitating the early stages of forming the network—I shall come later to the point raised by the noble Baroness, Lady Howarth—and enabling LINk members to generate a common agenda and distinguish priorities, the LINk might become no more than a reflection of or extension of the local authority. These amendments would reverse that principle by creating a LINk which, I fear, could become a creature of a local authority. That is why we are trying to build in independence.

Perhaps I may write to the noble Lord, Lord Low, on his question about the limited liability company. That was an interesting point, but I cannot answer it from the Dispatch Box.

The noble Earl, Lord Howe, asked why there was not more substance, with more detail about form and functions, in the Bill. The noble Baroness, Lady Neuberger, said that it is all about process. I hope that I have set out the reasons why the objectives are clear. The process is there to deliver objectives, and we are doing this to expand opportunities for people to have a greater say over their health and care. I was asked why, for example, we cannot substitute the word “functions” for “activities” in the Bill. They are described as activities because they allow a LINk to have some discretion, whereas “functions” suggests that they would be mandatory. We refer to people in the Bill, rather than to LINks themselves, because LINks are collections of people—collectives, in a way. A LINk has no set definition; we will talk about that in a moment. The legislation does not describe what LINks should do, because we want them to make their own judgments about what is more important for their areas.

In framing the legislation, we have tried to reflect the need for flexibility and autonomy. I understand the frustration, but this is a better way forward. The noble Baroness, Lady Neuberger, referred to two of the three diagrams at the back of the report; one is definitely more complicated than the other, but that has been a local choice. Sometimes democracy is complicated and diverse; indeed, I can tell the noble Baroness, Lady Masham, that it is sometimes very worrying. Yet if we give people the power to choose what to prioritise, they will come up with some hard choices that will challenge the local health and care services.

There are different models in development. One LINk could have a host that provides all the staffing and support that we could think of, while another may say, “No, just hold our funds. We want to employ our own staff”, and it will be able to do that. In either case, the network of participants will decide. One reason for this determination is that we did not want to repeat past mistakes. Over the past few years, officials at the DoH have received countless requests for clarification about the legislation surrounding PPI forums—whether they can do this or that. Usually, the answer has been no because the legislation has not allowed them to. We wanted to avoid that so, for now, abstract and enigmatic though it may be, we are providing the chance for LINks to be created in ways that are relevant to people and places.

I will briefly flesh out the bones before I finish. LINks will create coherent arrangements for governance, more likely comprising a small group of people and user organisations as their heart and soul. LINks will have a clear identity, with known contact points. Once it is contracted, the host will first map out who is liable to want to join in the area—some local authorities have already begun that process. As well as the usual organisations, such as self-help groups and so on, there could be youth organisations, for example, because there are issues regarding youth health. LINks will be able to relate directly to NHS and social care organisations and to enter and view premises. Noble Lords will see that in Clause 225. LINks will be able to request information, to make reports and recommendations, and to receive a response. Critically, they will be able to refer matters of concern to the relevant overview and scrutiny committee. These important powers and functions are clearly laid out, and we think that they score highly on those grounds.

I hope that I have been able to provide some reassurance. Clearly, it is a starting point for the rest of our debates on the detail. I hope that noble Lords will feel that the objectives are clear, that the process is necessary and that we have laid out as much as is possible of what we expect in the Bill.

The noble Baroness has made a brave attempt to respond to the points made in this extremely interesting debate, but I am afraid that I remain pretty unconvinced that we have anything comprehensible here. In these amendments, I was trying to pin down a sense of what legal identity, if any, LINks would have. I am puzzled by that because while the Bill tells us that a local involvement network is a person, we are told that it cannot be a statutory body. It seems an odd contradiction to state in the Bill that a LINk is a person while we are told that it has no legal identity. Can the Minister clarify that, before we go further?

As I understand it, the contractual legal arrangement is that exemplified in the contract held between the local authority and the host. The LINks themselves are networks, rather like local strategic partnerships; they are arrangements of local people taking part and coming together for different purposes, without having a formal or fixed legal structure.

All this is very strange. I should have thought that that would indicate that a LINk could not therefore be a person. No doubt we will have time to resolve these matters.

I thank the noble Lord for that very interesting and illuminating observation. I will have to see how relevant it is to the Bill; I am not quick enough to know whether it is.

The vagueness in the wording of this part of the Bill is in danger of letting down the Government. Let us look at the word “activities”. It struck me on reading this that there may be nothing to prevent more than one LINk in a local authority area. It would be possible, for example, for a host to support several bodies calling themselves LINks in a particular area, rather than just one. I do not think that is what the Government have in mind. It would be extremely undesirable and confusing to have more than one LINk in a local authority area. The Bill appears to allow for it. Do the Government want to rule out that possibility? If so, why does the Bill not do so?

That is an interesting point. I am fairly certain that, by definition, we do not want to see more than one LINk because the area should be coterminous with the local area. We certainly will look at any element of drafting that we need to.

On the legal point, like all voluntary organisations it is possible for a LINk to form itself into a company limited by guarantee, and even in due course to set itself up as a charity. Therefore it can have a legal status, rather than just being a completely amorphous collection of people. That goes some way in identifying the legal profile.

I am grateful to the noble Baroness, and, indeed, I picked up from her remarks that a LINk can have a legal identity in that sense. What I was trying to get closer to is whether it has a statutory identity.

I confess I was puzzled by some of the other things the noble Baroness said. She said that if we try to include functions in the Bill, the language of functions would mean that whatever we included in the Bill would be mandatory. I am not sure that that is a show-stopper. If we believe that these bodies should have functions then why should we not say so? We need to reflect carefully on that.

The point about accountability and powers is a key part of all this. If an organisation has no powers conferred on it in statute, and not even any direct contractual obligations, it is very difficult to see how it can be part of a chain of accountability for local public services. It will amount to being no more than a talking shop. That is what some of us suspect LINks may turn into. A suspicious mind before this debate might have believed that that is what the Government were hoping to set up by means of the Bill, but I take the noble Baroness’s word that it is not.

The Minister has indicated that the department has been in receipt of representations about the shortcomings of patients’ forums. I do not doubt that, but I am tempted to reflect on the question of whose legislation it was that set up the forums in the first place. I think that we all know the answer to that. It is time to move on after nearly 45 minutes, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 238KBB not moved.]

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.