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Health And Social Care Bill

Volume 623: debated on Tuesday 20 March 2001

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9.6 p.m.

The Parliamentary Under-Secretary of State, Department of Health
(Lord Hunt of Kings Heath)

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

Moved, That the House do now again resolve itself into Committee.—(Lord Hunt of Kings Heath.)

My Lords, with some reluctance I intervene at this point to express our considerable dismay and disquiet at the fact that we are commencing today's Committee proceedings at this late hour. Yesterday when the Government offered us additional time in Committee for this evening, that offer was presented on the basis that we would be able to begin our proceedings at around 6 p.m. Although that would have been late in the day, nevertheless, it would have been acceptable to us because it would have given us up to five hours of debating time.

It is now after five past nine. In normal circumstances we would have told the Government to abandon any idea of beginning Committee proceedings so late. The only reason why we have not adopted that course is because it suits us to make some headway with the Committee proceedings, bearing in mind that a number of noble Lords have attended especially for this Bill. This is in no way to be regarded as a precedent.

This is a major Bill. It has 75 clauses over 91 pages. By the time we complete the Committee stage we shall not have had more than two-and-a-half days to debate in excess of 330 amendments. That is a ridiculously short time. Members of the Committee may recall that the Social Security Fraud Bill contained 22 clauses over 22 pages, which is one quarter of the length of the present Bill. Although it was relatively uncontroversial, it was nevertheless given two-and-a-half full days in Committee. We are led to believe that we shall not be allocated any more time for this Bill. That is highly regrettable and does no service to an extremely important measure.

My Lords, I do not want to delay the proceedings and was not given notice of what the noble Earl, Lord Howe, wanted to say. However, I agree with him in many respects. My personal estimate, which was not rocket science, was that four days in Committee were required to deal with the number of amendments tabled. I communicated that to the Government Front Bench. That is proving to be the case.

It is not helpful to be proved right, but we are being short changed on the Bill. We shall try to co-operate as much as possible during the time available to us, but a lack of planning has been demonstrated. If a little more time had been made available, we could have sorted things out more effectively.

My Lords, I am responsible for the procedure and the programme and must take full responsibility. If I were the health spokesman in Opposition, and if I had been sitting where the noble Earl is sitting now, I would have made exactly the same point.

However, he will remember that he agreed the Bill could be completed in Committee in three days. We are hoping to achieve that. Today's programme has included the Third Reading of the International Criminal Court Bill. A succession of amendments, which were major items of policy, were tabled by the Opposition at that stage and therefore the debate took much longer than expected. We then had what I can only call a remarkable debate on the order dealing with metrication measures. Again, that took much longer than expected.

Last night I suggested to the usual channels that I hoped to begin the Bill at about six o'clock—a little later if, as we thought there might be, there was a statement on the foot and mouth epidemic. However, the House regulates itself and self regulation requires all Members of the House to regulate themselves.

I am in the hands of the House. I believe that we should now make some progress. I understand the position that noble Lords take and believe that we all want the Bill to receive proper consideration. We have Thursday to deal with it and I know how our Lordships feel about sitting late on Thursday. When I make arrangements I do so in entirely good faith—I am sure that the noble Earl accepts that—but today is the kind of day when self regulation does not quite work.

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]

Clause 15 [ Annual reports]:

Page 12, line 2, after "established," insert "the overview and scrutiny committee, the Patients' Council, the Independent Local Advisory Forum, the Health Authority,"

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 109A. Clause 15 requires patients' forums to prepare and publish a report of their activities on an annual basis.

I am sorry to interrupt the noble Lord, but does he mean Amendments Nos. 109 and 110?

I am speaking to Amendments Nos. 108 and 109A. Clause 15 requires patients' forums to prepare and publish a report of their activities on an annual basis. These reports shall include details of how the forums have sought to obtain the views of patients. That is an important requirement of patients' councils if forums are to fulfil their duty as intermediaries and advisers in the health service in their areas.

For that reason, we believe that the reports should be circulated more widely than is proposed in Clause 15(1)(b). Amendment No. 108 ensures that the annual report is sent to each overview and scrutiny committee established within its area, to the patients' forum, the independent local advisory forum and the health authority. As the Bill is currently drafted, a copy of the report will be sent only to the relevant trust and to the Secretary of State. The bodies which our amendment seeks to include will be important partners in overseeing and maintaining a high standard of health and social care for residents and patients. If they are to play a key role in taking a strategic view of patient services and provision, they will need to be aware of all the relevant data which enable them to carry out their tasks more effectively.

I turn to Amendment No. 109A, which is slightly different. The patients' forums as proposed under the Bill will take over one of the most vital parts of the role now carried out by CHCs. CHCs have statutory powers of inspection in relation to hospitals, NHS premises and premises where NHS care takes place. Under present arrangements CHCs report their findings to health authorities and trusts, and that is a vital two-way process. This amendment places a duty on patients' forums to prepare a report of any matters that arise from the inspection of premises within 60 days of the visit. It is proposed that that report will be sent to the relevant trust's overview and scrutiny committee, independent local advisory forums and the relevant health authorities. Those bodies will again have a duty to respond.

Where the patients' forum is not satisfied with the response from any of the listed bodies, it has the power to refer the matter to the Secretary of State. That is an important safeguard for patients which we believe will lead to a quicker response to patients' concerns. Without sanctions and a public airing of concerns, health service providers may be slow to remedy unsatisfactory situations, or be unable to remedy situations without national input.

Although we do not support the abolition of CHCs, we believe that, if there are to be new bodies to take over their functions, they should have all the tools at their disposal to ensure that patients' views are aired and remedied and maintain a link with all partners in the provision of healthcare. I beg to move.

9.15 p.m.

I rise to speak to Amendment No. 110. I hope that the Minister understands from the wording that this is a probing amendment which is designed to elicit assurances from the Government about the independence of patients' forums from trusts. Clearly, this is one of the issues that run throughout the provisions relating to the forum and the council. This amendment seeks to make sure that the annual report of the patients' forum makes transparent whether such influence has taken place.

I apologise to the noble Lord, Lord Astor, for confusing Amendments Nos. 109 and 109A. The noble Lord was absolutely right.

I turn first to Amendment No. 108. Clause 16(2)(1) already states that regulations may be made in respect of the preparation and publication of reports by patients' forums. For that reason, we do not believe that it is necessary to include this provision within the body of Clause 15; nor do we believe it is necessary to specify the organisations to which the forum should send its report. This is very much a matter for the forum itself. The forum will send its report automatically to the Secretary of State and the trust. It need not be limited to that, and I am sure that it would not be so limited in practice.

Amendments Nos. 109 and 109A both refer to patients' councils, but those bodies will not be responsible for making visits or inspections of premises. That is the function of patients' forums which will work at trust level. Patients' councils will be made up of members of patients' forums in that area and will make reports to health authorities, local authorities and the Secretary of State for a response, if necessary. I understand that there may be an intention here that patients' councils should act as co-ordinating bodies which might prepare reports on their member forums' inspections. But we must avoid duplication of effort in relation to the particular focus of patients' forums in undertaking visits. Patients' councils will wish to keep an overview of the activity carried out by forums in their areas. There is nothing in the Bill to prevent a council referring matters to the Secretary of State.

Forums already have the duty to make reports and recommendations to the trust on the operation of its services and patients' views of those services. To ensure that their views are effective they will appoint a non-executive director to the trust board or a member of the primary care trust. They must also produce annual reports which detail their activities as specified in Clause 15. These arrangements make forums independent of the trust and ensure the transparency of their relationship, while ensuring that the bodies maintain a constructive working relationship. In a sense, that is my answer to the noble Lord, Lord Clement-Jones, in relation to Amendment No. 110. The link between forum and the trust is central to our proposals.

These proposals are not intended to engender adversarial relationships. Patients are the most important part of the health service, and it is intended that patients' forums work in concert with their trust to improve services. I repeat the points I made yesterday in Committee. The forums have the status and the tools to ensure that they have a real influence in the running of the NHS. They will be bodies secure in their independence from the trust to which they relate. It is not necessary to replace a requirement in the Bill for them to record any attempts on behalf of the trust to influence the discharge of their functions.

Again as I said yesterday in Committee, if there are specific problems in the way a trust behaves towards its forums, that would be a matter for referral to the regional office of the Department of Health which would take the appropriate action.

May I ask the Minister a question? The noble Lord mentioned the fear of duplication. Why not have one body combining the patients' forums and the patients' councils? That would help to avoid the confusion, which I am sure will arise, in the public's mind.

There are two points there. First, we have made it clear that there will be a common secretariat between the council and the forums which are covered in the area of that council. That will ensure co-ordination and a pooling of resources.

Secondly, we particularly want to put the emphasis of patients' forums as close as possible to the decision-making point where the patients are particularly affected. We believe that that is best done at the trust level where matters are decided in relation to operational services which affect the experience of patients. That is very much an improvement on the current arrangements. The common secretariat will ensure that there is no duplication of effort. It is important to re-emphasise that it is very much at the patient care level where we want these measures to make an impact.

What happens if there is conflict between the forums and the councils? Who sorts it out?

A council is made up of representatives of the forums. The individual forums will be responsible to each trust for their own actions. If the forum representatives on a council come together, just like any other group or organisation, they will have to work out a way of working which embraces as common a view as possible. Clearly, there may be disagreements. I do not think that we should particularly worry about that matter.

I am grateful to the Minister for that answer and clarification. Although we are slightly disappointed with his response to both amendments, I was happy that the noble Lord on two or three occasions said that patients are the most important part of the NHS. We shall consider his response to both amendments. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendments Nos. 109 to 110 not moved.]

Clause 15 agreed to.

Clause 16 [ Supplementary]:

[ Amendments Nos. 111 and 112 not moved.]

Page 12, line 10, leave out "may" and insert "shall"

The noble Earl said: In moving Amendment No. 113, I should like to speak also to Amendments Nos. 115, 116, 118 and 120. Clause 16 deals with the regulations pertaining to patients' forums and patients' councils. Currently, much of the work of CHCs is governed by regulations. It is important that regulations set out exactly what will be expected of patients' forums and patients' councils and how they will operate. The impact of the work of patients' forums will extend far beyond the boundaries of the trust for which they are established. It is therefore essential that the patients' forums and councils are properly informed, with information being supplied not just by the relevant local trust but also by health authorities and OSCs. Just as CHCs have a statutory right to receive information from health authorities, so the same should apply to the new bodies. That is the purpose of Amendment No. 115.

It was inevitable that we would encounter at least a handfull of amendments proposing the substitution of "shall" for "may". We have had one or two already. Amendment No. 113 does so because in this instance I simply do not understand why there should be any uncertainty about the issuing of regulations in Clause 16. Assuming that the Bill passes into law, we need be

in no doubt that the regulations will be essential. That seems to be borne out by the wording of subsection (4), which begins by stating:

"The regulations must secure".

I am not clear why there should be a permissive power at the beginning of the clause and then a mandatory duty below that.

Amendment No. 120 tries to set out on a probing basis an outline of the membership of patients' forums. Its purpose is to ensure that the membership is balanced, inclusive and representative. There will doubtless be many interest groups that will claim to be representative of an area. But, to me, the key groups are patients, carers and relevant voluntary organisations. It is no use trying to lay down precise numbers for each category of representative, but it helps to set an upper limit to allow for flexibility and to ensure that no single category of member dominates the forum.

The purpose of Amendment No. 116 is to ensure that the comments made by OSCs, as well as by trusts and health authorities, on reports or recommendations by patients' forums and patients' councils are published. I see that as important in the interests of transparency and also to ensure that OSCs make the most of their role. I beg to move.

I wish to speak to Amendments Nos. 119 and 120. Amendment No. 119 would add further provisions for which the Secretary of State may make regulations. In a sense, the amendment is designed to elicit from the Minister answers as to how he sees the patients' forums and patients' councils being funded, how the whole issue of travel and other allowances to members of the patients' forums and patients' councils will be met, and also the provision of information to patients' forums and patients' councils and how that will be organised. There seems to be a gap in the current clause.

The noble Earl, Lord Howe, touched on the issue of representation, which is covered by Amendment No. 120. In our view, the current provisions of the clause are rather sketchy. The noble Earl used the words "representative", "balanced" and "inclusive". I very much agree with that form of words. A scheme such as that included in Amendment No. 120 would meet that description. I do not believe that the concentration on individuals provided in subsection (4) of Clause 16 is adequate in that respect. I look forward to hearing what the Minister says in that regard.

Perhaps I may add a few words at this point. Clause 16(4) states that regulations must secure that the members of a patients' forum include at least one member of a voluntary organisation and at least one patient. If that is interpreted precisely, it could lead to a very unrepresentative membership, including perhaps just one patient or one member of a voluntary group.

In the NHS Plan the intention is set down that there should be 50 per cent of each of the groups. But the regulations do not actually require that. Amendment No. 20 seeks to rectify that. As well as rectifying that possible outcome, it also includes the requirement to have a sizeable group of carers, who might otherwise be unrepresented and who would provide valuable insights.

I should like to support what has been said by the noble Lord, Lord Rea. I hope that the Minister will take serious account of his words.

9.30 p.m.

Clause 16 provides for further regulation-making powers to define the detailed provisions relating to patients' forums and patients' councils. The amendments in this group seek to add requirements to the list of issues about which the Secretary of State can make regulations. However, I believe that some of the amendments deal with issues already covered by the Bill as drafted. The regulation-making powers in Clause 16(2) already apply to both patients' forums and patients' councils, making Amendment No. 119 unnecessary, as subsection (2) covers funding, expenses and the provision of information.

Similarly, the same remarks can be applied to Amendment No. 117. Clause 12(2)(f) allows additional functions to be given to patients' forums, while Clause 13(3)(d) serves the same purpose for patients' councils. Taken together with the general power to make supplementary regulations in Clause 16(2), the powers are already available to ensure that we can equip patients' forums and patients' councils to carry out their functions.

Perhaps I may interrupt the Minister for a moment. He said that this was already covered in the clause. Can he elucidate that for me? As I read it, Amendment No. 119 covers both patients' forums and patients' councils, whereas the paragraphs under subsection (2) in Clause 16 cover only forums.

I believe that it states that:

"(1) The Secretary of State may by regulations make further provision in relation to Patients' Forums and Patients' Councils.
(2) The regulations may in particular make provision as to".
Subsection (3) then states that:
"Subsection (2) applies in relation to a Council as it applies in relation to its member Forums".
I hope that that makes it clear to the noble Lord.

Perhaps I may turn to the issues raised in regard to overview and scrutiny committees. We are anxious not to prescribe a relationship between patients' forums and councils and the relevant overview and scrutiny committee. They have different, if complementary, roles and it is important that local co-operation should determine their relationship. That is why we have not sought to introduce a regulation-making power of the kind proposed in Amendments Nos. 115 and 116. However, we recognise the need to provide for the effective flow of information between patients' forums, patients' councils and health authorities. The noble Earl will have noticed that we have tabled government Amendment No. 114 to that effect.

Amendment No. 118 stems from the view that the local authority overview and scrutiny committee cannot be independent enough to scrutinise services provided by the local authority in partnership with the NHS. I have discussed this issue in earlier amendments and I do not accept that argument. The whole purpose of local authority overview and scrutiny committees is that they will be independent from the local authority executive. Their main role will be scrutiny of the local authority executive's decisions. I see no reason why they should not be able to provide effective scrutiny arrangements of services delivered under the Section 31 partnership arrangements.

In relation to membership issues, I do not accept the approach taken to membership in Amendment No. 120. We have made clear our policy that we want patients' forums and patients' councils to represent patients, carers and voluntary organisations representing patients. We envisage forum membership being 50 per cent patients and carers and 50 per cent voluntary organisations. But surely those are issues best left to regulations, which will allow flexibility to adapt as experience of the new system grows or enable local circumstances to be taken into account. It is very important that I should emphasise to the Committee that, whatever the proportions, we are committed to the NHS appointments commission overseeing all appointments.

Finally, I can reassure the Committee that we will lay regulations in each of the areas in Clause 16(2), so there is no need for Amendment No. 113, which would have no further effect over and above this commitment.

Before the noble Lord sits down, perhaps I may ask him a question. When regulations are drawn up, is attention given to what has been said in debates in your Lordships' House and in the other place?

I am happy to assure the noble Lord that we always pay attention to the debates in this House.

It is very reassuring to hear that from the Minister. It makes me feel wanted. On a more serious note, I am grateful to the Minister for his full reply. I shall have to read carefully what he said because I am not entirely sure that he addressed all the points that I and the noble Lord, Lord Clement-Jones, were seeking to make. In the interests of moving on the proceedings, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Page 12, line 30, after "established" insert "or by a Health Authority"

The noble Lord said: Amendment No. 114 is a minor but important amendment. It relates to the regulations that the Secretary of State can make concerning the information that has to be provided to patient councils and patient forums. At the moment, under Clause 16, regulations can be made concerning the information to be provided to patient forums by the trust for which they are established. The amendment changes the subsection so that regulations can be made about the information both trusts and health authorities have to provide to patient forums and patient councils.

This is particularly important for patient councils because they will have a more strategic role than patient forums and, in addition to accessing information from individual trusts, they will also need to access information at health authority level. Similarly, patient forums will undoubtedly want to work together on a number of issues and may want information from a health authority when they are looking at those wider issues.

Amendments Nos. 121 and 122 are clarifying amendments. Patient forums will not be set up in Wales by this Bill. The effect of both amendments is to make clear that only trusts and primary care trusts in England will have a member of the board appointed by the patients' forum.

Amendment No. 123 is a minor drafting amendment to ensure that the words inserted by the paragraph are inserted in the right place. It ensures that the power to make regulations about the appointment of directors to trust boards in the 1990 Act is qualified by the provision that one non-executive director is to be appointed by the patients' forum. I beg to move.

I have tabled Amendment No. 121A and this may be a convenient moment for me to speak to it.

With the amendment, I return to a matter I spoke about on Second Reading; that is, my very great concern with the proposal that a member of the patients' forum should be appointed by that forum as an executive director of the trust for which the forum exists.

My concerns relate to the difficulties that I foresee, first, with the impartiality of the patients' forum representative; and, secondly, with the appropriateness of someone who has the right of access and investigation to the trust being then a member of the trust board and required to make decisions on the corporate basis that trust non-executive members are required to do.

I had an opportunity of discussing this matter, very briefly, with the Minister shortly after Second Reading. It would be fair to say that he does not share that concern. But the corporate nature of a board is a very real aspect of it, and nothing in the Bill will change the responsibility that is placed on all non-executive directors for the corporate management of a trust. It seems to me that to have a cuckoo in the nest, someone who has a very real lobbying locus, may be difficult not only for that person but also for the trust itself.

Perhaps I may raise two other concerns that I had at Second Reading. The first is that all non-executive directors are currently appointed by the regional chairman after extensive interviews and "Nolanisation". That duty and responsibility will pass to the advisory committee for the region as non-executives will still have to be cleared on that basis. I understood the Minister to say yesterday that members of the patients' forum will also be selected by the advisory committee. If that is right, it will leave the independence of the forums somewhat adrift when they come to nominate someone for a non-executive role.

My third concern relates to the question of whom the non-executive will replace. Under the present legislation, the number of board members is balanced between executives and non-executives. The present number is five, and I believe that that was done by regulation. If the patients' forum is to have an appointment, there are two possibilities: one is that it has to be yet another executive appointment in order to balance out the patients' forum appointment; the other is that that patients' forum non-executive will replace one of the existing non-executives.

I believe that I am right in saying that none of the non-executives has a specific role. We are all there to manage the trust corporately. But it is a fairly heavily loaded job, as I am sure the Minister will accept. Most non-executives do a good job. Within the board there are usually those who develop an expertise in finance, who are responsible for audits, who are dealing with patients' complaints, for example. To have to replace one of those with someone else seems inappropriate.

Not least among the aspects to be taken into account are patients' complaints, which are presently a matter for the board. Patients' complaints are one of the prime focuses of the patients' forums. Therefore, a person would be excluded from dealing with such an aspect if he or she became a member of the board.

I have rather forlornly, and probably not very expertly, tried to get round this by proposing an amendment which would enable the forum to nominate a person from the forum to the board in an advisory capacity. The position would be a great deal stronger than that of the current community health council representative. At present that representative can attend as an observer but has no right to speak unless the chairman of the board enables him or her to do so. My amendment would enable a patients' forum member to be appointed and to be there specifically to give advice to the board about all the things that the patients' forum is there to do.

I must make it clear that I have no difficulty with patients' forums. I believe that the role of protecting the patient is well placed and well meaning. But we do not want to undermine its capacity by this particular move forward. The Minister was concerned about the patient element. I find that very difficult; what on earth is an NHS trust there for if it is not to look after patients and attend to their complaints and worries? It would mean that the patient focus would be brought to the board by right, although the person would then not have the corporate responsibility of NHS non-executive directors. I can add no more to my remarks, and I look forward to the Minister's reply.

9.45 p.m.

I support my noble friend Lady Hanham on this issue. I have been engaged in a good deal of work recently with nurses who are on the boards of PCTs and PCGs—mostly PCGs. One of the issues with which they are faced is that many of them have actually been voted on to the board by nurses within their area. A point for debate with every group that I meet is: what is their role? Are they there to represent the nurses who have voted them on to the board, or do they have a corporate responsibility? Alternatively, are they there in their own right?

We are carrying that dilemma further up into the NHS trusts and the PCTs. I believe that the issue needs teasing out. It is important to ascertain whether these people are representatives of the forum, delegates of the forum or whether they are there in their own right. One of the dangers when one gets into this area and says, "We must have one of those, and then we need another of these", and so on, is that one gets all sorts of people—often very good people—who are well-meaning and form a nice group but who are actually not fit for the purpose. The board is not fit for the purpose because, as my noble friend said, one does not go for the skills that are needed to run an organisation; for example, those of finance, human resources and, indeed, just understanding how a very complex, difficult organisation runs.

These trusts are much more difficult to run than many companies in the private sector because they have both different and difficult accountabilities: they are accountable to politicians; they are accountable to their local communities; and they are accountable to taxpayers. The more that we have representatives, delegates, or whatever, on these trust boards the more difficult it is for them to act effectively. It is in all our interests that they should be both efficient and effective.

We are discussing an important matter. I am grateful to the noble Baroness, Lady Hanham, for raising the point. Of course, she speaks from considerable experience of the NHS. I certainly very much agree with her that the contribution that chairs and non-executives make to the health service is crucial. I am also glad to hear about the work that the noble Baroness, Lady Cumberlege, is carrying out in relation to nurses. I believe that we need nurses to be evermore forceful on the boards of NHS organisations.

I understand the issues that both noble Baronesses have raised. There will be some very interesting challenges ahead both for the board and for the patients' forum person who is on the board to ensure that the body acts effectively, that it has a strong patients' voice at the highest level in the trust and that it also acts in a corporate manner. I do not believe that it is impossible for that to happen. It is absolutely vital that we have the benefit of a board member who has specific responsibilities in relation to ensuring that the patient's voice is fully considered in the deliberations of the trust.

Perhaps I may answer the specific points raised by the noble Baroness, Lady Hanham, about the practicalities of how the process is to be implemented. There is no intention to increase the overall number of trust board non-executive directors. However, it would be wrong to expect a newly-established patients' forum to wait until a convenient vacancy occurred before making the appointment. Therefore, we accept an additional non-executive director, mainly to be appointed temporarily, until such time as a vacancy occurs. Once it is established, the NHS appointments commission (which is due to be established on 1st April of this year) will assume responsibility for appointing trust and health authority non-executive directors. The commission will take that responsibility from the Secretary of State.

However, under the Bill the patients' forum has the power to appoint a non-executive to the trust board. In order to maintain standards of membership and meet basic requirements, regulations will be laid down detailing the selection process. They are likely to contain a reference to qualifying criteria laid down by the NHS appointments commission which will oversee the whole process.

We then come to the crux of the question as to whether such a board can act corporately. I believe that it can. Once appointed, the patients' forum non-executive will assume full board status and will be bound by the corporate governance arrangements, the code of conduct and appraisal arrangements which apply to all trust board members. I was interested in the comments of the noble Baroness, Lady Cumberlege, when she referred to nurses being elected. She talked about the different accountabilities that boards in the NHS have to face up to. I agree with that. There have always been dual accountabilities in the NHS. Board members have always come from various backgrounds to which it might be felt they owed some allegiance.

My first experience in the NHS was as an Oxford City Council representative appointed to the Oxfordshire Health Authority. I soon learned that to be effective within that authority I had to act corporately. I believe that that also applies to nurses and doctors. One might also consider university representatives. A university makes two nominations and the Secretary of State chooses between them. The health service is used to those different kinds of appointment mechanisms and thrives on them. Overall I believe we can be satisfied that our boards act corporately. I also believe that a patients' forum non-executive will add to the performance of a board and that such people will be able to act as corporate members.

Before the noble Baroness responds, will it be made clear to the member representing patients what his or her role is and will there be a substitute should that member be absent for a long period as there is only one of them?

I do not think that it would be possible to appoint a substitute. If a non-executive member were absent for a long period his or her membership of the board would undoubtedly be called into question. As regards the standards expected of all board members, I refer to the code of conduct and appraisal arrangements in the health service and the corporate governance arrangements which would be applicable to all trust board members.

Can the Minister explain how long such a patient representative is expected to stay on the board? Is there a finite length of membership?

The maximum period for each term is four years, although non-executives are sometimes appointed for less than that. One can be appointed certainly for two four-year terms and then I believe there are circumstances in which one can be appointed for another one or two years. I would expect that the kind of limits on appointments that apply to other non-executives would also apply to the non-executive from the patients' forum. However, that will be specified in guidance and regulations.

I am grateful to the Minister for his careful reply. I was not expecting anything more. However, I cannot say that he has reassured me. I am very concerned. The terms for the patients' forum representative are unusual. I can think of no other situation where one has an individual with the right of inspection. That is an unusual right. There is the right of inspection of a trust—the premises and everything that goes with it—and then the turning from poacher to gamekeeper by sitting on the board. The patients' forum representative is a very strange animal.

A secondary issue is the confidentiality aspect. Not much these days is debated in private; it is mostly open and above board but there are issues about patients' complaints and sensitive matters relating to patients.

I shall read what the Minister said. It is one of those rare occasions with this Minister when I do not agree. I believe that he makes a mistake. I shall consider the matter carefully. We shall probably return to the issue if there is a later stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendments Nos. 115 to 120 not moved.]

Page 13, line 10, leave out from "members" to end of line 12 and insert "under paragraph 4(c) above of a Primary Care Trust for which there is a Patients' Forum shall be a person appointed by the Forum."

On Question, amendment agreed to.

[ Amendment No. 121A not moved.]

Page 13, line 15, leave out from "trust" to "and" in line 16 and insert "for which there is a Patients' Forum shall be a person appointed by the Forum.","

Page 13, line 17, leave out "before "any"" and insert "at the beginning"

On Question, amendments agreed to.

[ Amendment No. 124 not moved.]

Clause 16, as amended, agreed to.

Clause 17 [ Independent advocacy services]:

[ Amendments Nos. 125 to 133 not moved.]

On Question, Whether Clause 17 shall stand part of the Bill?

Although we on these Benches wholly support the concept of independent advocacy, I wish to speak to the Question in order to debate the overall shape of provisions regarding patient advocacy, patient consultation and patient representation.

The noble Lord, Lord Harris, made some valuable points yesterday in Committee. He asked the Minister:
"Would my noble friend think it appropriate to place some residual duty on the patients' councils to satisfy themselves that appropriate advocacy arrangements are in place and are strong enough so that, if they are not satisfactory, the patients' council can provide the service?".—[Official Report, 19/3/01; col. 1197.]
We had a considerable debate about how independent advocacy services would be provided. I took no great satisfaction from the Minister's reply. He said:
"It is clear that the independent advocacy services could be provided in the way suggested; alternatively, they could be provided by another public organisation. Indeed, they could even be provided by a voluntary organisation".—[Official Report, 19/3/01; col. 1199.]
It is widely accepted across the Committee that the provisions relating to consultation, representation and advocacy are flawed and highly fragmented. There has been very little give in what the Minister has said about the scheme yesterday and, to some extent, today, despite the fact that it was hurriedly put into the plan at the last minute; and outside the Government there is a universal belief that the provisions taken as a whole are fragmented and unsatisfactory. The Government have given very little extra in Committee apart from the new national patients' council. We welcome that, but the new scheme is flawed and we are not satisfied with it.

The Minister could have given much more of a fair wind to the idea of bolting together independent advocacy with the patients' councils. That would be logical and, in the view of many outside observers and many in this House, it would considerably improve the scheme. Giving patients' councils the right to commission and provide independent advocacy services would be a significant improvement to a fragmented scheme.

I shall not go on at great length, because we have a great deal of business to get through today. I have given an example of the inadequacy of the provisions. As we progress through the Bill, the Minister's approach and his attitude to suggestions for improvement will colour our view on these Benches as to whether the proposals as a whole can be approved. I am in considerable doubt about whether to give any kind of a fair wind to these very fragmented proposals. I look forward to the Minister's reply.

10 p.m.

I do not want to go over all the ground that we covered in our eight-hour debate yesterday on these matters. The Government's case is that the arrangements will result in a stronger, more effective mechanism for user involvement, for dealing with and sorting out problems out and for helping people through the complaints system. At the local level, there will be democratic involvement in the decision-making process. I firmly believe that. I have no doubt that at the end of the day, we shall have much stronger patient and public involvement in and impact on the National Health Service. I am tempted to go back to Mrs Archibald, but I shall resist at this stage. I am convinced that she and her relatives would receive a better service as a result of the arrangements that we are putting in place than they receive at the moment.

I listened with great interest to the noble Lord's comments on independent advocacy. We want some flexibility on how the advocacy arrangements can be made. Patients' councils could be one of the organisations that provide that advocacy, but we believe that we need greater flexibility. I am also convinced that the responsibility should be laid firmly on the Secretary of State, although he will have a duty to consult the relevant patients' councils on the arrangements to be put in place for independent advocacy providers. I also assure the noble Lord that we shall specify criteria that will define best practice for independent advocacy. Those criteria will include the need to make use of existing high-quality local provision; the need for the services to be accessible, including in relation to language—I take to heart the comments made yesterday by the noble Earl in that respect; physical access will need to be open; there must be proof of quality of output; and, whichever service is commissioned, it must be equipped demonstrably to offer advocacy expertise.

I believe that the presence of independent advocacy, established in a way that many people over many years have requested, will prove to be an absolute boon to members of the public who have found failures in the service and who wish their complaints to be addressed. They will find that they receive an enormous amount of support from those services. I believe that the provision will prove to be a very important plank in the new arrangements.

I welcome the Minister's statement that measures will be put in place to ensure that the independent advocacy services are acceptable to people who do not speak English. That is an important concern. I believe that in Tower Hamlets more than 60 different languages are spoken. At the CHC at which I called this afternoon, a Kurd visited with a friend who was a translator. Therefore, I welcome that news.

I should like to know more about the independent advocacy service and to know whether it will be run on a walk-in, non-referral basis. In addition, can the Minister indicate whether the current community health council premises, of which I believe there are more than 100, many of which have recently been refurbished, might be used to house the independent advocacy service? My key concern is whether alternative access will be made available other than through NHS Direct. We spoke about that matter during yesterday's debate. I can see that there is a great advantage in picking up a telephone and being able to reach the service easily. Equally, sometimes delicate matters can be dealt with better in person.

Following on from the points raised by the noble Earl, perhaps I may ask the Minister about the training of advocates. Will a list of advocates who can be called upon be available, and will there be a rota? Different training will need to be given in different parts of the country. The needs in an area such as Herefordshire are quite different from those which one comes across in Tower Hamlets.

Some of those matters will need to be developed as the Bill, if enacted, is implemented. Clearly in terms of the commissioning process for local advocacy services, the criteria that we set will need to tackle many of the issues raised by the noble Earl; for example, with regard to open access. I very much agree with that point.

I understand that when he asks whether a referral procedure will be put in place, he means that a person should not be required to go through a bureaucratic system before gaining access to the advocacy service. I share that point of view. In order for the service to be successful, people must have quick and easy access to it. Whether through a telephone call, through NHS Direct, through telephone booths that may be placed in NHS trusts, or whatever, people must be able to gain access as quickly as possible.

So far as concerns premises, I believe that that matter is for local determination. However, if useful premises existed in the high street, those would clearly be an option.

The noble Baroness, Lady Masham, asked about rotas. I assume that she is inquiring whether an out-of-hours advocacy service will be provided. Again, I believe that that matter must be determined through local discussion. However, we would not want to see the situation which sometimes arises at present with regard to people seeking help in relation to complaints. On certain days it is difficult to obtain help. Clearly, in a society such as ours, we need to provide as much access as possible.

The issue of training is a very important one. We would expect any organisation or service commission providing independent advocacy at local level to have the experts to do so; and part of that would be their own continuing professional development. In addition, if the amendment tabled by the noble Lord, Lord Clement-Jones, is passed today, I am sure that the national body will also have an important role to play in considering the question of training and support for those services.

My Lords, I appreciate much of what the Minister has said about independent advocacy services. We on these Benches believe that the independent advocacy services have great potential. We have previously argued for them, in the context of both care standards and the Health Act 1999. But the services set out in this Bill must be judged as part of a total package of representation and advocacy.

Although I admire the Minister's certainty with regard to how the scheme as a total package will work, I fear that the total package may founder on a lack of willingness of the Government to respond to criticism of their current proposals. That is all it may amount to. However, in the mean time, before we reach the next stage of this Bill, I shall not press my opposition to the Question.

Clause 17 agreed to.

[ Amendment No. 134 not moved.]

After Clause 17, insert the following new clause—


(1) The Secretary of State shall by regulations establish a body corporate ("the national body") to exercise in relation to the health service in England the following functionsߞ

  • (a) advising the Secretary of State, and such bodies as may be prescribed, with respect to arrangements for public involvement in, and consultation on, matters relating to the health service;
  • (b) representing to the Secretary of State and such bodies as may be prescribed, and advising him and them on, the views, as respects the health service, of Patients' Forums, Patients' Councils and those voluntary organisations and other bodies appearing to the national body to represent the interests of patients and their carers;
  • (c) assisting Patients' Forums and Patients' Councils in, and advising them with respect to, the performance of their functions;
  • (d) such other functions as may be prescribed.
  • (2) In carrying out its functions the national body shall have regard to any guidance given to it by the Secretary of State.

    (3) The Secretary of State may by regulations make further provision in relation to the national body.

    (4) The regulations may in particular make provision as toߞ

  • (a) the appointment of members;
  • (b) any qualification or disqualification for membership;
  • (c) terms of appointment;
  • (d) circumstances in which a person is to cease to be a member or may be suspended;
  • (e) the proceedings of the national body;
  • (f) the discharge of any function of the national body by a committee;
  • (g) the appointment, as members of a committee, of persons who are not members of the national body;
  • (h) the provision of information to the national body by a health service body, a Patients' Forum or a Patients' Council, including descriptions of information which are or are not to be provided;
  • (i) the funding of the national body;
  • (j) the payment, to or in respect of members of the national body, of such remuneration, pensions, gratuities and allowances as may be determined in accordance with the regulations;
  • (k) the preparation and auditing of accounts of the national body.
  • (5) The regulations may include provision applying, or corresponding to, any provision of Part 5A of the Local Government Act 1972 (access to meetings and documents), with or without modifications.

    (6) The regulations may authorise the national body to make charges for the provision of advice or other services.

    (7) The national body shallߞ

  • (a) prepare a report in relation to its activities in each financial year,
  • (b) as soon as possible after the end of each financial year, send a copy of its report for that year to the Secretary of State,
  • (c) publish any such report in accordance with prescribed provisions,
  • (d) make such other reports to the Secretary of State, and supply to him such information, as he may require.
  • (8) Before making any regulations under this section the Secretary of State shall consultߞ

  • (a) such persons as appear to him to be appropriate to represent the interests of patients and their carers, and
  • (b) such other persons (if any) as appear to him to be appropriate.
  • (9) In this sectionߞ

    • "carer" has the same meaning as in section 12;
    • "the health service" has the same meaning as in section 7;
    • "health service body" meansߞ
  • (a) a Health Authority,
  • (b) a Special Health Authority,
  • (c) an NHS trust, or
  • (d) a Primary Care Trust;
    • "patient" has the same meaning as in section 12;
    • "prescribed" means prescribed by regulations made by the Secretary of State."

    On Question, amendment agreed to.

    Clause 18 [ Abolition of Community Health Councils in England]:

    [ Amendments Nos. 135 to 139 not moved.]

    Clause 18 agreed to.

    Clause 19 [ Power to abolish Community Health Councils in Wales]:

    [ Amendments Nos. 140 and 141 not moved.]

    Page 15, line 15, after "may" insert "by regulations"

    The noble Lord said: This amendment corrects an oversight in Clause 19. As drafted, the clause does not specify how the National Assembly for Wales can exercise its power under subsection (2) to amend or repeal any legislation if the Assembly decided to abolish CHCs. The amendment makes it clear that the National Assembly and the Secretary of State can, through regulations, amend or repeal legislation concerning CHCs if it decides to abolish CHCs. I beg to move.

    On Question, amendment agreed to.

    [ Amendment No. 143 not moved.]

    Clause 19, as amended, agreed to.

    [ Amendments Nos. 144 and 145 not moved.]

    Clause 20 [ Intervention orders]:

    Page 15, leave out lines 22 to 30 and insert—

    "( ) If the Secretary of State—
  • (a) receives evidence from the Commission for Health Improvement or the Commission for Mental Health or the Audit Commission of serious and persistent failures in the way a body to which this section applies is run or evidence that such a body is not performing one or more of its functions adequately or at all, and
  • (b) is satisfied that it is appropriate for him to intervene under this section,
  • he may subject to subsection (3A) below make an order under this section in respect of the body ("an intervention order")."

    The noble Baroness said: In moving this amendment, I speak also to Amendment No. 154, both of which seek to render this system less subject to the whim of the Secretary of State. Amendment No. 146 provides that the Secretary of State alone should not decide on interventions, should any of the various bodies proposed in the Bill be considered to have failed. Such action should be taken only after receiving the advice of the Commission for Health Improvement, the Commission for Mental Health or the Audit Commission.

    Amendment No. 154 lays down that the Secretary of State should, at the same time, publish a report giving a detailed description of the failure which is the subject of the intervention order. Again, that makes matters far more accountable and open. I beg to move.

    10.15 p.m.

    I shall speak to Amendments Nos. 147 to 151, 153 and 157. Debates in another place established the intention behind this clause, which is that an intervention order would be triggered only as an exceptional measure and in extreme circumstances. We can all be relieved that the use of those new powers will not be frequent nor in any way routine.

    As I said before, the more we can maintain local managerial accountability and build on it, the better it will be for the working of the health service and for the morale of its employees. Much of the present lack of morale in the NHS is directly attributable to the feeling of not being appreciated by those in high places. That feeling of not being appreciated is not just a matter of pay. It originates from a whole variety of reasons. But one reason is undoubtedly the way in which Whitehall insists on directing matters from the centre and loading the health service with objectives and targets, which in some cases distort clinical priorities and erode local accountability.

    Against that background, it is difficult not to be acutely suspicious of Clause 20, which is another centralising power. But the relief generated by the reassurances given in another place is tempered by a further examination of the Bill's language and we must ask whether the Bill's drafting lives up to what Ministers have told us.

    The first issue is that raised by the noble Baroness, Lady Northover; that is, the gravity of the test which is set as a trigger for an intervention order. The Explanatory Notes first explain this Clause in terms of,
    "the most serious and persistent failures".
    However, at paragraph 96, they then speak of the Secretary of State merely having concerns about the management of that body. The subsection makes clear that the Secretary of State needs to be of the opinion that there are significant failings in the way the body is being run. However, in the same breath, the test for failing one or more of that body's functions is described only in terms of the adequacy with which the function is performed.

    It would be a rare health body which did not, on occasion, fall down on one or other of its functions. That is why I believe that we should consider two amendments in that regard. The first is to make clear that the shortcomings in performance should be of a significant order; and the second is to specify that it will be only after all other appropriate avenues have been explored and exhausted that the power of central intervention can be triggered.

    At the risk of appearing contrary, I have also tabled a further amendment which proposes that an intervention order should be linked directly to the quality of care and the quality of financial and general management as revealed by the annual audit.

    I am drawn to that amendment because it is based on the idea of the whole process being triggered by a third party—that is, someone other than the Secretary of State. Once again, transparency is essential in this regard, because if there is not transparency, those sweeping powers will have all the potential to be used as a charter for "scapegoating", to put it at its simplest.

    To follow that sentiment still further and to enable the appropriate lessons to be learned, I suggest that every time an intervention order is made, a report of that fact and the background to it should be published and laid before Parliament.

    But what happens then? The power to intervene in the affairs of an NHS body is couched in very sweeping terms. We need to ask whether it is right and justifiable for that power to be used, as it could be, willy-nilly and without warning. I do not believe that it is. That is why I suggest that there should be a system of prior notification so that the body, if it chooses, can make appropriate representations about the proposed course of action.

    Finally, Amendment No. 151 does not set up a formal appeals procedure. Instead it inserts a process whereby the Secretary of State formally sets down his concerns and his proposed solutions. That process would allow the body to state its case. The health authority, trust, or PCT should have the opportunity to correct unfair, incorrect or misleading statements. I hope that the Minister will be sympathetic to the arguments that I have advanced for tempering these considerable powers.

    I support my noble friend Lord Howe on these amendments, one of which stands in my name. I am divided about the principle behind this matter. I believe that it is absolutely right that the Secretary of State should be able to dismiss his appointees when they fail to satisfy what he feels is a reasonable standard. The Secretary of State should have power to appoint and to disappoint. At the moment the system does not work well at all. It is quite ghastly. The chair of a trust of PCT who fails is taken behind a bike shed at dead of night and is persuaded to fall on his sword, drink hemlock or something similar. If the chair being dismissed seeks to hold out and tries to stand his ground, what is a bad situation locally becomes an impossible situation and a real shambles. I believe that that part of the proposals in the Bill is right.

    However, I have grave concerns that the Secretary of State can seek powers to dismiss an executive director of a trust. Usually such people spend the whole of their careers in the health service or they have a job within the health service and their whole life can be ruined. They can be deprived of their job, their career and their reputation by an idiosyncratic Secretary of State who decides to take action without having the transparency that my noble friend has suggested and without reports going before Parliament and so on. Throughout the Bill we have sought to make people accountable, and the Secretary of State too should be accountable.

    I have some misgivings, but I understand the purpose behind this point. The NHS Confederation, an august body with a distinguished past, has put forward some good proposals. I am not sure whether the Minister, through his various channels, has had an opportunity to see them but the confederation suggests that, where there is an occasion when an intervention order is necessary, followed by an inquiry or an investigation into an incident, it is right that the Secretary of State should present a report explaining the reasons prior to making such an intervention.

    There are some detailed systems laid down that can be adopted in order to make that situation acceptable to those involved. I recommend that the Minister considers whether those are acceptable to him. As the Bill now stands, I believe that it is unacceptable. We have seen cases, particularly at the Bedford Hospital, where there was real anger at the way that the chief executive was treated, not only among the local population but also among the staff in the hospital, particularly among the consultant body, who rose up to support the chief executive, whom they felt had been treated extremely unfairly in being dismissed and in having pressure put upon him.

    When such a case concerns a chair, a non-executive who has been appointed by the Secretary of State, there should be an open, fair, transparent procedure, so that everyone can see how the Secretary of State has acted and why he has acted. In regard to executive directors, dismissal should be by the local board. Such a local board would be on the patch and would know the individual, his reputation and his expertise, or, in cases where that person had failed, it would have become dissatisfied with him. I support the amendment put forward by my noble friend.

    I support my noble friends Lord Howe and Lady Cumberlege. The proposals as drafted are draconian. They would allow the Secretary of State to intervene in almost every trust if he really put his mind to it. The test is only that the trust does not perform one or more of its functions adequately. In my experience, almost every health body does not perform one or more of its functions adequately. That is the nature of managing in such complex environments as health trusts.

    We are looking for a much higher test. The Explanatory Notes mention persistent and serious failure, but that is not how the Clause is drafted. I look for clarification from the Minister on which particular ill he is trying to address in the clause. Is it an ability for the Secretary of State to intervene in any trust he chooses? That appears to be the way in which the Bill is drafted. Is it to intervene in only the most serious cases? If so, I suggest that different wording is used. If that is the case, will the Minister reflect on whether the existing procedures do not adequately allow proper action to be taken in the most "persistent and serious" cases, the language used in the Explanatory Notes?

    I am not clear what the Government are trying to achieve with these provisions and look for further clarification before deciding whether the wording of the Bill is acceptable.

    We return to last Thursday's debate on the balance between national direction and leadership and local autonomy. I listened to the noble Earl's unkind words about centralising power, but every government who have been responsible for the NHS have faced the same dilemma.

    I was interested to read Rudolf Klein's book, The New Politics of the NHS, in which he described in detail the previous government's dilemmas. Dealing with the 1982 reforms when district health authorities were created, he wrote that the rhetoric of delegation had a short shelf life. He stated that Norman Fowler began a series of measures designed to strengthen the grip of central government and that the DHSS moved to a tighter system of control and accountability than had ever existed in the history of the NHS.

    Moving on through those years, Klein concluded that the NHS became a transmission belt for ministerial will and that further reforms in the 1990s, including the abolition of regional health authorities, were further indications of that process of centralisation.

    I do not refer to that by way of criticism of the previous government. I merely refer Members of the Committee to it because I believe that there has always been a genuine problem about the NHS. As the noble Baroness, Lady Cumberlege, said, accountable through Ministers to Parliament is the expenditure of a huge amount of public money.

    Clearly, the Secretary of State must have the ability to manage and direct the NHS accordingly. Equally, I accept that it is important that the people at local level, who are of high calibre and I assure the noble Earl were certainly appreciated by myself and ministerial colleagues for their hard work, are given sufficient ownership and control to do their job properly.

    How does one achieve central balance? That is where earned autonomy comes into play. Earned autonomy is very much about giving greater freedom to those organisations which do well in the health service, while there is greater intervention in those organisations which are not doing well. That is the background to the debate on Clause 20 and the answer to the many philosophical points put forward by Members of the Committee.

    As far as concerns the specifics of Clause 20, the clause creates a new power which enables the Secretary of State to use two types of intervention, either separately or together, in failing NHS bodies: the removal or suspension of all or part of the body's board and the replacement by other persons nominated by the Secretary of State who may then constitute a new management team; and a requirement on the failing NHS body to make arrangements for some other person or body to perform the specified functions of that NHS body. For example, that would enable the Secretary of State to require the body to delegate the exercise of specified management functions to a third party.

    The test that must be met before the Secretary of State can intervene is, as Members of the Committee have said, referred to in new Section 84A(1). The test requires the Secretary of State to be of the opinion that an NHS body is not performing one or more of its functions adequately, or that there are significant failings in the way that the body is being run. In addition, the Secretary of State must be satisfied that it is appropriate for him to intervene. Therefore, the test has two elements to allow for a situation either where there has been a very serious one-off incident or where there has been a failure to provide a satisfactory service to patients over a period of time.

    I assure the Committee that in the second situation clearly it would be inappropriate to use the powers of intervention at the first sign of merely inadequate delivery of services. That would not be our intention. The kinds of situations in which the Secretary of State might use the power could include the failure of trust management to address serious malpractice; for example, carrying out procedures without informed consent. Although in that example there may be only one clinician involved in that situation, if the trust was aware but failed to tackle it, or handled the incident badly, that might be a case for intervention and the removal of board members. A second incident might be the continuing failure of a trust board to take the necessary action to ensure that the trust was in financial balance. A third area might be continuing failure to provide services to an adequate standard. For example, a satellite renal unit might be unable to provide adequate haemodialysis because of nursing shortages. In that instance, the trust could be required to let a third party, such as a better performing green light NHS body, provide the service for a fixed period. We envisage that the use of those powers of intervention would, generally speaking, be a last resort when other actions had failed or were deemed inappropriate because of the seriousness of an incident.

    10.30 p.m.

    I thank the noble Lord for giving way. Can the Minister enliven his presentation by giving examples where the existing powers have failed to enable the Government to take appropriate action when problems within trusts or other health service providers have been identified? I am troubled that the drafting gives the Secretary of State very draconian powers. I am not at all clear in what circumstances the existing powers have failed to allow the Government to take appropriate action. I should be grateful if the noble Lord could enlighten the Committee.

    I can think of a number of examples where a trust fails to deal with a given situation despite many efforts to try to persuade it to perform better. Clearly, one route is the "bicycle shed" to which the noble Baroness, Lady Cumberlege, referred, whereby an attempt is made to persuade the chair of the trust to resign. Other efforts may be made by the regional office to persuade the trust to make a change of management. But there may be real problems where the trust board absolutely refuses to make the necessary changes. It is in those circumstances where this power of intervention might come into play.

    I was trying to probe the Minister on what examples have led the Government to make such a sweeping power to intervene in the management of health bodies. When my noble friend Lady Cumberlege referred to the bicycle shed, she was referring to what happens in many organisations where there are one or more levels of management failure. Obviously pressures are brought to bear on an organisation to achieve management changes or changes in corporate governance generally. Over the past 50-odd years, the NHS has worked rather well to cope with many circumstances. That is why I was trying to press the Minister for some examples of why this additional power needs to be taken in the legislation.

    There may be instances where that has not worked. For instance, although a trust, may have made efforts to pressurise an organisation into making a change, either its management has been unwilling or, because of the way in which it provides services, it is unable to do so. So it is an issue of last resort where it is clear that it is the only realistic way of getting the effective change made.

    I press the Minister yet again; have there been any such examples in recent memory which would lead us to think that this power is an appropriate power to include in the legislation?

    Just recently there was a case. I represent a voluntary organisation. We were very unhappy with a trust because all kinds of matters were going wrong. The noble Baroness, Lady Cumberlege, previously mentioned the trust. The Minister kindly came down to that particular hospital. It was very helpful. There are problems. It is helpful if a Minister can come down to help sort matters out.

    The Minister would not have to visit the hospital to sort out matters because of a provision on the statute book. I fully accept what the noble Baroness has said. There are problems from time to time in many types of organisation. But I am seriously concerned about the making of these sweeping powers to deal with common-place situations relating to large complex managerial organisations.

    I rise to support my noble friend Lady Noakes. Our concern is that already there are powers that the Secretary of State can use. The noble Baroness, Lady Masham, is absolutely right. I referred to a hospital the other day. I know that since then heads have rolled. In the Bedford case, many people thought that very unfair, idiosyncratic and really quite vindictive action was taken to sort out the matter. In the Explanatory Notes we are told that the Secretary of State can intervene,

    "where there has been a one off catastrophe".
    At Bedford it was not a one-off catastrophe for the local population or for the staff working there. They supported the chief executive. It was a catastrophe for the chief executive. He was treated very badly indeed. When these matters are already happening without additional powers having been taken, I am sure the Minister will understand why, as my noble friend has said, we are deeply concerned about additional draconian powers being introduced and used totally inappropriately.

    I want to make two points. First, I shall not engage in a debate about the specific circumstances of Bedford. I do not think that would be appropriate without the full facts of what happened being available for everyone to understand, although I believe that at the end of the day chairs and chief executives of NHS organisations ultimately have to bear responsibility for what occurs in their trusts.

    Secondly, there are actions that can now be taken, there are powers of direction and there is an ability to require non-executives to retire in the interests of the health service. That is true. But there may be occasions—either when there is a specific incident that requires immediate intervention or where a trust is continuing to fail to provide an effective service despite all the pressures and reminders and despite all the performance management systems that are in place—when an intervention would be in order. Surely there is benefit in the sense that, because of the way in which the proposal is made, that is much more likely to be a transparent process than any bicycle shed approach that may have had to be adopted in the past.

    These powers can be considered only as part of a much wider package of performance improvement initiatives outlined in the NHS Plan. We have debated the whole performance management framework, earned autonomy and the traffic light system. The intention is that, as the NHS Plan is implemented, we shall see more and more of the NHS move towards local ownership of targets and freedom to innovate within a clear framework of accountability, with the intervention power very much a last resort.

    I turn to Amendment No. 146. If the amendment were accepted, there would be a requirement that the Commission for Health Improvement, the Mental Health Act Commission or the Audit Commission would have to present evidence to the Secretary of State showing sufficient justification for an intervention order. That would mean that at least one of the commissions would have to inspect the NHS body concerned before an intervention order could be issued. That could lead to delays, which in some cases might be vital. In most cases where an intervention order might be needed, the NHS body in question would probably already be classified as red under the new system of performance traffic lights. That means that it would already have a recovery plan in place and would now most likely be subject to intervention orders because of its failure to carry through the detail of the plan.

    Amendment No. 147 would have the same effect as Amendment No. 146. But it would also alter the first element of the test for intervention, so the Secretary of State would have to demonstrate that an NHS body was failing to perform one or more of its functions "to a significant extent" rather than "adequately". Amendment No. 148 also makes that change. To amend the clause as suggested would mean that, ultimately, there would be no sanction against persistent failure over a period of time if the NHS body was performing its functions to some extent. That is unacceptable since we need to ensure that patients receive the high standard of care which they have a right to expect.

    Amendment No. 149 would stipulate that the Secretary of State should make an intervention order only when all other possible action has been taken. I have no disagreement with the principle being put forward. I have already said that the measures in the clause should be taken as a last resort or at the end of a series of other measures except in the event of an immediate or, as has been mentioned, a catastrophic failure when urgent action must be taken.

    I appreciate the reasons why Amendment No. 150 has been tabled. I understand the concern that the Secretary of State might seek to use these powers of intervention out of the blue and that the NHS body concerned would not be forewarned and might not appreciate why the order was being made. If the Secretary of State wished to use the intervention powers in a case where an NHS body was failing to perform to an adequate standard, it is likely that he would do so if that body had already failed to respond over a period of time to other support mechanisms. In such a situation, the body would already have been working on areas of concern with its Department of Health regional office and the Modernisation Agency. It would have agreed a recovery plan with them and it might also have been visited by the Commission for Health Improvement.

    The body would therefore be fully aware of what it needed to do to improve, which would be set out clearly in the recovery plan. The recovery plan would also specify the timescale that was agreed for the necessary performance improvements. This would vary depending on the nature of the body's problems, but the body would always know what it had to do and by when. It would thus be fully aware that continued failure to make the necessary improvements could lead to an intervention order being applied.

    The other situation in which the Secretary of State might wish to use the intervention powers is when a NHS body experiences a very serious one-off service failure, or if there was a significant failing in the way the body was being run. In such situations, patients and the public would quickly lose confidence in the body if swift action was not taken to ensure appropriate standards of service and patient safety. If we were to accept this amendment, we would introduce unnecessary delay into the process because we would need to use these powers in the most serious of cases.

    Amendment No. 151 follows on from Amendment No. 150 and is concerned with the Secretary of State giving detailed reasons for intervening; in effect, what the NHS body would have to do once it was subject to an intervention order. I have already explained that bodies subject to an intervention order would have to have a detailed recovery plan, agreed with their Department of Health regional office and normally the modernisation agency. As I said, the recovery plan would have set out the areas of failure and what action needed to be taken. It would also agree a timescale over which specific improvements would be monitored.

    It is therefore our intention that the issues raised in paragraphs (a), (b) and (c) of this amendment would be covered by the recovery plan, which would then be reinforced by the intervention order if the body had shown insufficient signs of progress since agreeing the original recovery plan. There would therefore be no need for these paragraphs of the amendment.

    The second part of the amendment is concerned with a period of notice before the intervention order could take effect and with what seems to amount to a right of appeal for the NHS body concerned. I have reservations about a formal period of notice, 28 days or otherwise, from the issuing of an intervention order to it taking effect. This would surely introduce unnecessary delay into the process and might even threaten patient safety in cases where a serious incident required quick application of intervention powers.

    Similarly, I would not wish to introduce what amounts to a formal right of appeal on behalf of the NHS body concerned because of the delay that this would cause to implementation and service improvement. This does not mean that Ministers would not be interested in the views of those representing the body concerned. Indeed, it is hard to imagine a situation in which Ministers would not wish to meet representatives of the body concerned and to discuss the problem and action required.

    Amendment No. 153 is in two parts. The first part of the amendment would stipulate that the Secretary should make an intervention order only when all other possible action had been taken. I have already confirmed that it is our intention that the measures in this clause are to be taken as a last resort. The second part of the amendment would insert a new subsection (5) into the clause requiring a report to be laid before both Houses setting out what action had been taken to ameliorate the situation, why the order was being made and for how long it was expected to be in force. This matter was discussed at some length during the Committee stage of the Bill in another place. My right honourable friend the Minister of State for Health,
    "concluded that it is sufficient to recognise that the Secretary of State will need to state clearly why he has taken action".
    He added that he was,
    "not persuaded that a formal reporting system would add anything to the procedure".—[Official Report, Standing Committee E, 23/01/01; col. 58.]
    I should like to reiterate the Government's commitment that a clear statement of reasons will be given whenever the Secretary of State seeks to use these intervention powers.

    Amendment No. 154 would require a report to be published giving a detailed description of the serious and persistent failure which is the subject of the intervention order. I have discussed this already in answer to the previous amendment. I do not believe that a more formal reporting system is necessary.

    As to Amendment No. 157, which is also concerned with making details of the reasons for intervention available, it would be unusual to make it a statutory duty to lay copies of an intervention order before both Houses as this order is not a statutory instrument.

    So far as concerns the point raised by the noble Baroness, Lady Cumberlege, let me make it clear that, in relation to executive directors, the power does not relate to the dismissal of those directors as employees of the trust. It would ensure that they stood down as directors of the trust; their employment position would clearly then be a matter for the trust concerned.

    All I wish to say in conclusion is that this has to be seen in the round; this has to be seen in the context of earned autonomy. We are seeking to provide a great deal of incentive to organisations to improve their performance and to reward them for doing so. We are also seeking to ensure that those organisations which have weaknesses are given all possible support to enable them to improve their position. At the end of the day, it may be necessary in a few cases for the intervention powers to be used. This is the purpose of the clause.

    May I respectfully suggest that the Minister has demonstrated a sense of schizophrenia about this issue? In one sense he is suggesting that the powers will be used only in very few cases, yet the powers are drawn very widely and would enable the Secretary of State to intervene in a large number of cases. If, as the Minister has done, we link it to earned autonomy, it is potentially 25 per cent of cases; and, if we go into the middle band, it is potentially up to 75 per cent.

    I think that the Minister will accept that the powers are drawn very widely. I find it difficult to understand what he is saying. He said that it is only for a very few cases. We have asked him to explain to us what kinds of case but they seem to exist in his imagination; they are not shared on these Benches. We have severe doubts about the nature of the power being taken, although not about the necessity for intervention in extreme cases. I find it difficult to sign up to the fact that the powers are necessary to deal with the generality of managing the health service from the perspective of the Secretary of State.

    Perhaps I may make two points in response. My first point concerns traffic lights. It is my hope that we shall have very few red light organisations. The whole emphasis of the earned autonomy is on recognising those that are successful and helping those who are less successful to improve their overall standards.

    None the less, I believe that there may be occasions when, in a very few organisations, there is a problem which, despite all efforts, the trust is either incapable of solving or refuses to put right and when some intervention will be necessary. It becomes very much a last resort in this whole context of performance management and earned autonomy.

    Ultimately, the Secretary of State is accountable to Parliament for the NHS. It is right that he should have these intervention powers. Equally, I have tried to assure the Committee that these powers will be used very sparingly indeed.

    This debate has illustrated just how important are the amendments that I have tabled. It is a running theme throughout the Bill that the Secretary of State is seeking to take wide powers. It does not seem to be a conflict, therefore, with what the Secretary of State may be seeking to do to have a back-up sitting alongside the Secretary of State, to have other organisations involved in these decisions, and to have a report-back mechanism built in. So I am afraid that I am not reassured by what the Minister has said. It sounds as if other Members on these Benches are not reassured either.

    Before the noble Baroness decides what to do with her amendment, perhaps I may respond briefly to what the Minister said. As always, I am grateful for the full way in which he addressed the points raised. However, I was disappointed by his response. His language was couched in many cases in reassuring terms, but a great many of my worries remain.

    The Minister said that these powers would be treated only as a last resort measure. That assurance was given in another place. But the Bill does not state that. Legally, the Secretary of State would have scope to take action at any time he liked. I do not think that the drafting is tight enough.

    Equally, the Minister admitted that these powers could be used without warning—something that again worries me. I accept that there are cases where time can be of the essence, but I believe that we should think twice, if not several times, before drafting legislation to cater specifically for the extreme circumstance. In the past, the NHS has always managed to cope with genuine one-offs without special legislation. My strong preference, if we need these powers at all, is to draft the clause with much more routine circumstances in mind.

    The Minister is right to speak of the general tension between control from the centre and local autonomy. I do not dispute that at all. It has been a feature of the NHS, as he rightly said, since it began. But whenever we see before us, as we do now, a new and very wide power, as my noble friend said, to arrogate yet further control to Ministers, that power must be justified fully. We are talking about intervening in the day-to-day affairs of health service bodies.

    The Minister spoke of "earned autonomy", a concept that we discussed earlier in Committee. As I remarked then, it is a somewhat Orwellian phrase. It means autonomy earned in return for achieving objectives that are set by the Secretary of State. If one were not a cynic, that might appear perfectly satisfactory. But the targets and objectives set by the Secretary of State are not, as we all know, always such as the man in the street would regard as beneficial to patients. I hesitate to raise the matter again, but the waiting list initiative is one such example. Politically driven objectives make me feel distinctly uncomfortable in this context.

    I think I shall want to return to this matter at a later stage of the Bill, if indeed there is a later stage. In the meantime, in the interests of allowing the proceedings to continue, I shall say no more.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 147 to 151 not moved.]

    Page 15, line 35, at end insert—

    "(e) Care Trusts"

    The noble Baroness said: This amendment adds care trusts to the bodies appropriately covered by any new arrangement that might replace CHCs. The thinking behind the amendment was to try to produce closer links between health and social services, a subject that is addressed later in the Bill.

    However, yesterday I heard the Minister explain that care trusts would be included in this kind of context. Given the importance of the inclusion of care trusts, perhaps he is willing to comment. I beg to move.

    11 p.m.

    As the noble Baroness suggested, I said yesterday—and I say again tonight—that it is unnecessary to add care trusts to the list of bodies to which intervention orders can be applied. They would be constituted legally either as a primary care trust or as an NHS trust, both of which are already listed in the clause as drafted. Perhaps I may give the Committee an example. If we are talking about a primary care trust that has delegated some local authority responsibilities, it would be a care trust but it would be formally known and recorded in statutory provisions as a primary care trust. However, in similar circumstances, if we are talking about a mental health acute trust that has taken on responsibilities delegated by a local authority, it would be a care trust but in statute it would remain an NHS trust. I certainly agree with the principle behind the amendment, but I believe that its purpose is already covered.

    I am reassured by the position being made explicit. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 153 and 154 not moved.]

    Page 16, line 22, at end insert—

    "( ) The Secretary of State shall agree with the Commissioner for Public Appointments the process whereby individuals are selected prior to being specified in or determined in accordance with the order to replace those removed from office under subsections (2) or (3) above."

    The noble Earl said: I shall deal briefly with two amendments that relate to various consequential aspects of an intervention order. In moving this amendment, I shall speak also to Amendment No. 156. The first concern I have is that there should be a proper process for selecting people to take over boards following an intervention order. Ideally, the full process laid down by Nolan or Neill would be involved. However, with time pressing, I am the first to recognise that that course is impractical. In its place, I have suggested something that I hope is quite flexible; namely, that the process used for making the appointments—not the appointments themselves, but the process used—should be the subject of agreement by the Commissioner for Public Appointments.

    The Minister will need no explanation from me as to why I have chosen that particular route. I do not need to go into too much detail if I simply mention the recent report by the Commissioner for Public Appointments, in which some pretty critical comments were made about the political nature of some of the appointments made by the present Government.

    Perhaps I may ask the Minister a specific question about the sub-contracting provisions. Subsection (5) empowers the Secretary of State to force the body to sub-contract some or all of its functions. The Explanatory Notes say rather baldly that expressions of interest will be selected from an approved list, but there is no mention of how such an "approved list" will be drawn up. It would be helpful to have some detail in that respect.

    In subsection (5), we have a provision that specifies that the health service body itself has to foot the Bill for any sub-contracting. That is not a wholly unreasonable requirement. However, Amendment No. 156 seeks to ensure that the intervention order is not used to specify a price or any other conditions that are unaffordable to the body concerned. In the sections of the 1977 Act, and other Acts that are cited here, the basic financial duty is to break even. With this amendment, the Secretary of State could not force the body to incur a deficit. I beg to move.

    The appointment to the boards of public bodies should be free from political interference. Of course, we very much agree with that aim. That is why the intention was set out in the NHS Plan to establish an independent appointments commission, which will oversee the appointment of lay members to NHS bodies. The commission will start life from 1st April of this year.

    I agree with the noble Earl, Lord Howe. It is absolutely right that we should give the commission a clear role in relation to the appointment of temporary replacement non-executive members of NHS boards. I should stress that we are talking about temporary replacement. If the Secretary of State seeks an intervention order requiring the removal of board members, their replacements would, in the first instance, be appointed on a temporary basis subject to time-scales set out in the recovery plan agreed with the body subject to the order. The remit would be to ensure that the failing body was able to implement the recovery plan in the time specified.

    At that point, and assuming the performance of the body had been turned around, the Secretary of State would want to make regular appointments to the board in question for the normal period of tenure. These appointments, of course, would be subject to the established processes of the NHS Appointments Commission; that is, by advertisement and open competition. The temporary replacement members might wish to apply for the permanent positions but it would not be a case of rubber stamping their appointments.

    The involvement of the Appointments Commission in the appointment of temporary replacement members would be in accordance with standard procedures agreed with the Commissioner for Public Appointments. This means that it would have the responsibility for making the appointments and would ensure that the candidates met the relevant criteria and had the particular expertise needed. The only difference between temporary appointments and long-term appointments is that the former would not be advertised because when the intervention powers are used there will be a need to address a serious matter and therefore one would not want to delay the process. It would be open to Ministers, the Modernisation Agency or the department's regional offices to put forward names for consideration. The NHS Appointments Commission would have to treat those candidates in the normal way and take the final decision on their appointment. In those circumstances it is highly likely that experienced chairs or non-executives already serving in the NHS would be appointed temporarily to fill those positions. I hope that I have given the assurance on that matter that the noble Earl requires.

    Amendment No. 156 would alter subsection (5) of the new Section 84B inserted by this clause. The subsection provides that where functions are to be performed by a third body, such as a better performing green light NHS body—we shall publish in due course details of the approved list—the body subject to the order must meet the cost of those arrangements. The amendment that the noble Earl has put forward stipulates that that could happen only if the directions did not contradict the body's existing statutory financial duties.

    The financial duties to which the noble Earl's amendment refers in essence require NHS bodies to break even. An NHS trust has to ensure that its revenue, taking one year with another, is sufficient to meet its outgoings. Health authorities and primary care trusts must ensure that their expenditure in any year does not exceed the aggregate of the income they receive from various sources. These statutory duties cannot be removed or modified by the directions under the new Section 84B. In essence, directions cannot "trump" the provisions of primary legislation. Indeed, it would be unlawful for the Secretary of State to give directions which conflicted directly with the duty or prevented the body concerned from complying with its statutory duties.

    That is particularly relevant to our discussions last week when discussing Clause 2. I explained that a new performance fund will be available from next year, distributed on a fair shares basis to all NHS bodies. This is additional funding which will be used by NHS bodies to incentivise performance improvement.

    NHS bodies which are traffic lighted as red or poorly performing will have the spending of their share of the performance fund determined by the Modernisation Agency. They will work with their regional office and the Modernisation Agency to agree a recovery plan to turn round their areas of poor performance. Their share of the performance fund will be used to implement the recovery plan. In some situations implementation of the recovery plan may be cost neutral—improvements in performance will result from better ways of working and targeting existing resources. But if money is required to set up new and improved systems of working, the performance fund will be available to pay for it.

    If the intervention order is applied, for instance as a result of a one-off or very serious failure, to a body that was not previously classified as red, we would then expect that body to agree its spend of the performance fund with the Modernisation Agency to make sure the failing was addressed.

    We consider the amendment unnecessary, not only because a performance fund would be able to provide extra money for service improvements but also because it would be unlawful for the Secretary of State to give directions which conflicted with a body's statutory duties.

    I am grateful to the Minister for that helpful reply. I take on board the point that the power of direction could not trump an existing statutory duty. The difficulty would be in cases where it is not entirely clear whether a direction from the Secretary of State puts a trust in a difficult financial position. There would be one view of the matter from the trust's perspective and another perhaps from that of the Secretary of State. Much argument will no doubt take place.

    However, I am reassured by what the Minister said about the availability of the NHS performance fund. I would hope that the existence of that fund will obviate most of the difficulties to which I have referred. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 156 and 157 not moved.]

    On Question, Whether Clause 20 shall stand part of the Bill?

    Perhaps I may ask the Minister a brief question. How will an intervention order be brought to an end? Will targets have to be achieved? Will those targets be known when the order is made? What happens then? Once an intervention order is terminated, does the relevant body return to the status it had previously, run by a board which does not consist of caretaker directors? I believe that that was the implication of what the Minister said. Perhaps the noble Lord could elucidate that very quickly.

    The recovery plan, which has to be seen in relation to the intervention order, will have details of what has to be done to ensure that the trust meets the terms set out in the order. I would expect to be included in that order some targets in relation to timing. The hope and expectation are that these interventions will be of a temporary nature. It would be in everyone's interest to ensure that the organisation got back on an even keel as soon as possible.

    Clause 20 agreed to.

    Clause 21 agreed to.

    Clause 22 [ Vacancies for medical practitioners]:

    Page 18, line 4, after "consultation" insert "including consultation with the local medical committee for its area"

    The noble Lord said: I take advantage of my pole position on this group of three amendments briefly to revise the debate on the abolition of the Medical Practices Committee when I had to break off with a frog in my throat. My noble friend then replied that,

    "we shall debate the Medical Practices Committee later.—[Official Report, 15/3/01; col. 1074.]

    But, apart from this amendment, I do not see any other undebated amendments in which that can be done.

    My noble friend dismissed the suggestion of a national medical practice advisory body, suggested in Amendment No. 225, as recreating the medical practices committee in another guise. I believe that that may have been the intention of the amendment. The new arrangements seem to the British Medical Association and many others, including myself, to be insufficient to maintain and further improve the even spread of GPs throughout the country. That has still not been achieved. Without such a committee or an equivalent body, it is less likely to be achieved Different health authorities or even different regional offices will be able to tempt general practitioners into their areas in various ways even if basic remuneration scales are nationally agreed. The preservation of a national body to continue the role of the MPC in an advisory capacity is highly desirable if only to feed information onwards to the proposed national workforce mechanism.

    I am in favour of golden hellos and golden handcuffs to attract GPs to deprived areas and to keep them there. Those mechanisms will be more effective if an expert national monitoring and advisory body is retained.

    Having got that off my chest, perhaps I can return to my amendment, which would simply require that the local medical committees should be consulted when health authorities—rather than the previous local medical committees or family health service authorities—decide when to create a GP vacancy in an area. That would not only be courteous, but would provide expert local knowledge to the health authority about the situation of general practice in the area.

    I shall finish by quoting the comments of the British Medical Association:

    "Local medical committees have the requisite local understanding to promote the delivery of high standards through their professional contacts with all general practitioners".

    The amendment could be included in the Bill with benefit. I beg to move.

    11.15 p.m.

    I have only two points to make. I am the first to acknowledge that, particularly under the leadership of Ro Day, the Medical Practices Committee has done its best to try to redistribute GPs in the way that we all want. However, for one reason or another, it has not been successful enough. The arrangements that we wish to put in place will be very helpful in ensuring that the local health authority is in prime position to deal proactively with the problems and that the funding mechanism provides the right incentives.

    I accept the principle behind my noble friend's remarks on local medical committees. It is not a matter for the Bill, but I assure him that the regulations will require health authorities to consult with local medical committees before making any determination on whether there is or will be a vacancy for a general practitioner in their area. I hope that my noble friend will accept that assurance.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 159 and 160 not moved.]

    Clause 22 agreed to.

    Clause 23 agreed to.

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

    House resumed.