Health Bill [Lords]

Public Bill Committee, 16 June 2009.

Clause 2

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 3, in clause 2, page 1, line 16, after ‘Constitution’, insert ‘, Handbook, and Statement of Accountability’.

I am trying to multi-task by turning off my phone at the same time as I introduce amendment 3. This is a probing amendment to tease out the status of the handbook, particularly the statement of accountability. The amendment would ensure that NHS bodies have regard not only to the constitution, but to the handbook and statement of accountability.

Will the Minister explain why the statement of accountability is not in the Bill, when the handbook is? In purely legislative terms, that gives equal status to the handbook and the constitution and lesser status to the statement of accountability. If de jure the documents are of different value, conversely they seem to be de facto of the same value. The constitution cannot stand alone, which can only undermine it, because it needs the 148-page handbook and the 20-page statement of accountability to support it. Alternatively, the Minister might argue that the constitution is, in fact, superior to the handbook and the statement of accountability. If they are different, how is that so and why are they different from one another in that respect? Why has one but not the other been included in the Bill?

Furthermore, although paragraph 7 of the constitution states that

“the Government will ensure that there is always a clear and up-to-date statement of accountability for this purpose,”

there seems to be no legislative responsibility or mechanism for doing so. Why is that the case and how will it work?

Sandra Gidley (Liberal Democrat, Romsey)

I rise to support those points. One issue debated in the other place was that, in the handbook, there is a greater degree of information that is not available in the constitution itself. If one were to open the “Handbook to the NHS Constitution” at random, one might read:

“you have the right to make choices about your NHS care and to information to support these choices. The options available to you will develop over time and depend on your individual needs.”

However, when one looks at the explanation of what that means, a number of persons are excluded—for example, those detained under the Mental Health Act 1983, military personnel and prisoners. A number of services are also excluded. For some reason, maternity services are excluded, which is quite alarming, as are mental health services. That will be of concern to a number of people who may already have issues with the mental health services that they receive. That is a contentious area where service users sometimes have a different perception from health professionals regarding what treatment they might benefit from. I certainly support the amendment, because it seems that the handbook will be revised, and it would be much more useful if it were referred to in the legislation.

Mike O'Brien (Labour, North Warwickshire)

Amendment 3 would oblige those bodies that must have regard to the NHS constitution to also have regard to the handbook and the statement of accountability. The hon. Member for Eddisbury has indicated that he wants to know why one is in the Bill and the other is not.

It may help if I set out the purpose and intentions behind the handbook and the statement of accountability. The handbook is an explanatory guide designed for patients, members of the public and members of NHS staff. As the words in the constitution are necessarily at a high level, the handbook outlines in practice what each right, pledge and responsibility in the constitution means. In a sense, it is a description. That intent is clear in the introduction to the handbook, which states:

“this Handbook is designed to give NHS staff and patients all the information they need about the NHS Constitution for England.”

The handbook is not an instruction manual or guidance for the NHS. It does not create any new policy or law; it merely describes what currently exists; and it does not contain guidelines to which people must have regard. The handbook does not ask anything fundamentally different of NHS organisations. It merely sets out policy and law with which organisations should already be familiar.

For those reasons, it would be inappropriate to impose a duty for bodies to have regard to a patient and staff-facing explanatory guide. It is just a document for members of the public to glance at in order to get some idea of what the constitution means in practice, and no more. We would be somewhat concerned if some sort of legal effect were given to a handbook that can be rewritten from time to time.

Furthermore, imposing a duty to have regard to the handbook would create a case for a more formal process for updating it, such as a requirement to consult on any revisions, which might merely reflect current departmental policy or law. Strengthening the legal status of the handbook would make it a much less helpful guide for patients, the public and staff, as the process of making minor or primarily technical amendments to it would become bureaucratic and time-consuming, potentially requiring extensive consultation. Essentially, what we are looking for in the handbook is something that can be amended whenever it needs to be and that will not have any legal force, but will just help the patient or NHS member of staff know what the constitution, to which bodies must have regard, is all about.

The statement of NHS accountability, on the other hand, was published alongside the constitution on 21 January as a response to last year’s consultation, in which we heard that patients and the public would find it helpful to know the system of responsibility and accountability for taking decisions in the NHS. We believe that it is vital that the public know how the NHS is accountable at a local level and how they can get involved. The statement of accountability is also a public-facing document and explains roles, responsibilities and accountability in the NHS. It is a short summary of the current structure and functions of the NHS in England. There would be little value in requiring NHS bodies to have regard to a factual document detailing the structure of the NHS.

For that reason, although it is permissible to refer to the documents in regulation, we do not want them to have any statutory force, be referred to during court cases or add a large amount of documentation to an NHS constitution that we want to be fairly straightforward. People will require some explanation. They will ask, “What does this mean?” or “What does this sentence in the constitution mean?” Therefore, we want to provide a handbook, but we do not want to give it a lot more weight than it needs. Giving it that extra weight would add complications, and the courts might then start to take a keener interest in it than we want them to. It is not for judges or lawyers; it is for patients and members of staff.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the Minister. He has tried to explain why the handbook is effectively a subsidiary operational document rather than a framework, strategic and standard document. I am also grateful for the support of the hon. Member for Romsey.

One thing that is easily recognised is that the Minister’s explanation is consonant with that of Lord Darzi, who said in his speech on the provisions in the other place that the handbook is “the explanatory guide”, which is exactly where the Minister arrived in the end after saying that it was not guidance or guidelines, to be used by patients, the public and staff. He went on to say:

“Similarly, the Secretary of State has the power to make minor and technical revisions to the handbook at any time in line with changes in departmental policy or law.”—[Official Report, House of Lords, 26 February 2009; Vol. 708, c. GC151.]

As I had seen that reference by Lord Darzi, I was concerned that due to changes to the law, there might have been a reference to say that that had legal effect. The Minister confirmed the negative just now—it is not intended for the handbook to have legal effect. The fact that we have had this exchange on the record is helpful.

Lord Darzi went on to say:

“We do not think that it would be proportionate to have to consult on such changes, and I think that most noble Lords agree. However, any significant changes to policy or law that affect the handbook are in themselves likely to trigger consultation requirements.”—[Official Report, House of Lords, 26 February 2009; Vol. 708, c. GC155.]

Patently, he must have had in his mind that consequential changes would come into the handbook as a result of changes to the law. I wanted to make sure that, given the way that it has been expressed in the other place, we do not have any confusion in the record that could have any potential legal effect. Unless I misinterpreted the Minister—I think that I have understood him accurately—it does not currently have legal effect and is not intended to do so. He has not intervened to correct me, and so, for the record, that has been cleared up. Therefore, I do not need to press the point. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 7, in clause 2, page 2, line 2, at end insert—

‘(a) the NHS board’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: amendment 8, in clause 2, page 2, line 8, at end insert—

‘(h) the National Institute for Health and Clinical Excellence’.

Amendment 164, in clause 2, page 2, line 8, at end insert—

‘(h) Children’s Trusts;

(i) Sure Start Centres;

(j) any other organisations providing NHS services.’.

Stephen O'Brien (Conservative, Eddisbury)

Amendment 164 was tabled by the Liberal Democrats. I will make my few points before the hon. Member for Romsey catches your eye, Mr. O’Hara. Amendment 7 would put the NHS board as the first body that must have regard to the constitution. It seems wise that the NHS as a whole should adopt the constitution, rather than simply the bodies listed.

The Committee will be aware that Conservative Members favour the incorporation of an independent NHS board—incidentally, the Prime Minister also favoured that precise option when he was on the campaign trial for the Labour leadership just a couple of years ago. That approach would remove politicians from responsibility for the day-to-day running of the NHS, which, over the past 11 years, has inevitably led to many accusations of day-to-day politically inspired meddling, which we believe have stuck. The amendment is clearly consistent with the approach that we have taken to the architectural structure of the NHS, which we have published, and we very much hope to have a legislative opportunity to deliver that. There may be a need for the Minister to examine whether the bodies listed do not include something that encompasses the whole of the NHS.

While the phrase is “NHS services and those who are contracted to it”—we will deal with the question of contracted persons and subcontractors shortly—there is a question that the Minister touched on in discussing a previous group of amendments in relation to how that flows through to the sense of obligation and behaviour of NHS employees and the expectations and requirements of their conditions and terms of employment. The Minister has said that although he sees the NHS constitution as binding on institutional bodies, he does not see it as binding on individual employees. We need to be clear that there is a flow-through that is capable of affecting the way in which individuals in the NHS behave, which will help the delivery of the constitution. Those bodies will therefore not be let down because their employees do not work within that spirit, let alone to the letter. Amendment 7 explores that area.

Amendment 8 would—importantly, I think—add the National Institute for Health and Clinical Excellence to the bodies that must have regard to the constitution. The amendment is an opportunity to explore the Government’s rationale for the list of bodies. None of the Department’s arm’s-length bodies are on the list, even though many of them have a huge impact on what NHS services are delivered to patients, and all of us know from our postbags know that none has a bigger influence than NICE.

The £195 million price tag on the NHS constitution is due to its impact on

“improving the timeliness of NICE guidance and increased uptake of NICE approved drugs”,

according to the impact assessment. Can the Minister explain how the constitution will deliver the assumed uptake of NICE-approved drugs and how the costings have been made? If that information is not to hand, I hope that he will give a commitment to make it available to all members of the Committee, so that we can return to the matter if we have an opportunity to do so.

It would also be interesting to know whether the parameters that NICE uses to make its cost-benefit assessments are compliant with the NHS core principles. As the Committee will know, the Government have consistently refused to published the so-called quality assisted life years formula, so there can be no independent corroboration of the assurance that I am about to seek from the Minister, but can he tell the Committee to what extent the QALY formula conforms to the principles set out in the NHS constitution? He will be under no misapprehension as to why that is a serious and important question.

Liberal Democrat amendment 164 adds children’s trusts, Sure Start and some other organisations to the list. I am grateful to the hon. Member for Romsey for picking up on a point raised by my hon. Friend the Member for Basingstoke (Mrs. Miller) on Second Reading. If the Department has neglected its own arm’s length bodies in relation to the constitution, as I described in relation to amendment 8, it is little surprise that it has neglected bodies that are overseen by the Department for Children, Schools and Families. What evidence can the Minister provide that his Department sought to break out of the silo of its departmental responsibilities, and that the Government really have looked across all Departments to make sure that the policy is not hindered by having a single departmental viewpoint?

Sandra Gidley (Liberal Democrat, Romsey)

The amendments provide a useful opportunity to probe whether the list of bodies in the Bill that must have regard to the constitution is sufficient.

Amendments 107 and 108 widen the remits. The point about arm’s length bodies is valid, because many organisations within the NHS that do not have direct patient contact are or should be responsible for driving forward quite a bit of change. We could perhaps include a body such as the National Patient Safety Agency. It is not clear how such organisations fit into the wider picture. Some clarification would be useful.

The hon. Member for Eddisbury is quite correct: I was taken by the remarks made by the hon. Member for Basingstoke on Second Reading. She made some very good points. She said:

“The Apprenticeships, Skills, Children and Learning Bill establishes children’s trusts as statutory bodies that have an important, if not vital, role to play in the commissioning of services, including NHS services, for children in local communities.”—[Official Report, 8 June 2009; Vol. 493, c. 581.]

I cannot see the difference between a primary care trust and a children’s trust in that role, if they are both commissioning NHS services. The Minister made much earlier of the fact that there was almost a catch-all, because the PCTs would be commissioning services and those services would effectively be covered by the constitution. By extension, therefore, one could argue that services commissioned by a children’s trust would not be covered by the constitution. I find that slightly alarming. It could be that we are not doing as well for our children as we could.

Sure Start centres, although they do not commission services, have been a key part of delivering services to children, many of which are public health-related. I struggle to see why NHS trusts, which provide services, must have regard to the constitution, but Sure Start does not seem to have to. I am also unclear where organisations or establishments such as independent sector treatment centres fit. Clearly, they are delivering treatments paid for by the NHS, albeit under an independent banner, so it seems somewhat perverse that, apparently, they do not have to have regard to the constitution.

The amendments are designed to tease out a little more of the thinking and to seek reassurance that there are no parts of the health delivery service, or even the more strategic parts of the health service, that are falling through the gaps.

Mike O'Brien (Labour, North Warwickshire)

The amendments are interesting, and they do probe whether the NHS constitution reaches the parts that other constitutions do not reach. Amendments 7, 8 and 164 would place a duty on something called the NHS board, NICE, the children’s trusts, Sure Start centres and other organisations providing NHS services.

Turning first to the point about the obligations of NHS employees. I hoped that I had made this clear, but let me reiterate. An NHS employee does not have any new legal obligations as a result of the constitution. Boards will be in a position where they are required to comply with the constitution: they will have to have regard to it. An NHS employee will have the duties of an employee of an NHS trust or board, or whatever the organisation in the NHS is. As part of their contract of employment, they will have to deliver what they are obliged to do under that contract, but they do not, as individuals, acquire any new legal obligation under the constitution themselves. The board will and they are employees, therefore the board will have an obligation to ensure that they deliver the constitution. Were they to fail to do so, they would be dealt with in the normal manner as employees. It does not impose an additional duty on employees that does not exist today. I hope that makes the position very clear.

In relation to amendment 7, I need to point out that there is no such thing as an NHS board, so there is therefore no point in referencing one in the legislation. However, I understand that in their policy document the Conservative party have the objective of creating such an NHS board. They are getting a bit presumptuous—they think they are going to win the next general election. I say wait for the electorate’s opinion before proposing amendments that are supposed to take effect after the election. I suspect that the hon. Member for Eddisbury may find that the electorate will make their own mind up and he should not try to jump ahead. Let me be clear that I do not think that the amendment and that reference to the NHS board is necessary.

We do not want to have a broader, longer debate about greater operational independence for the NHS. Suffice it to say, however, that I do not agree that the NHS should be completely removed from any meaningful, democratic control. The NHS is responsible for spending more than £100 billion of taxpayers’ money every year. As long as policy and spending decisions are taken by democratically elected Ministers who are accountable to Parliament, there will be an obligation to subject their decisions to proper scrutiny. We believe that there must be a continuous thread of accountability through the system to the Government of the day and, through them, to Parliament.

The NHS needs a period of stability. We do not believe that now is the right time to impose further top-down changes to its structure. It is more important that there should always be clarity and transparency in the accountability of the NHS. The statement of NHS accountability published alongside the constitution will help to achieve that.

None of that is to say that the Government are in favour of centralising power in Whitehall. We have consistently demonstrated our commitment to a more devolved system: for example, through the establishment of NHS foundation trusts, through devolving commissioning responsibilities to PCTs and GP practices, and by looking at ways to put more control in the hands of patients, which we will discuss later under the proposals on direct payments.

Amendment 8 is unnecessary because NICE is already included. It is a special health authority and is therefore captured in subsection (2)(d). Our aim is to ensure that all organisations that are part of the NHS are obliged to take proper account of the NHS constitution. NICE will have that obligation. A number of special health authorities will be covered, including the National Patient Safety Agency, the NHS Blood and Transplant organisation and the NHS Litigation Authority.

The right to NICE-approved drugs articulates the existing legal duty on the NHS to provide such drugs when clinically appropriate. NICE will therefore be obliged to have regard to the constitution. NICE will also be obliged to ensure that QALYs, where they are used, are in compliance with the constitution.

Turning to amendment 164, I am aware that the Apprenticeships, Skills, Children and Learning Bill requires local authorities to establish children’s trust boards. I assume that the hon. Member for Romsey was referring to those bodies, rather than to children’s trusts. I assure her that we at the Department of Health are working closely with colleagues in the Department for Children, Schools and Families to make children’s trust boards a success.

The hon. Lady’s interpretation of children’s trust boards is incorrect. Although they will become a statutory entity, subject to the approval of Parliament, they will be strategic bodies. Their only functions will be to prepare, publish, review and revise local children and young people’s plans and to monitor their implementation. They will not be involved in their delivery, which she suggested we should have regard to. Children’s trust boards will not hold budgets for commissioning, nor will they provide services, so it would not be appropriate to place them under a legal obligation to have regard to the NHS constitution.

Sure Start children’s centres will also be given a specific statutory basis through the Apprenticeships, Skills, Children and Learning Bill. However, like children’s trust boards, they will not be providers or commissioners of health services. It is important to be clear that children’s centres, as provided for in that Bill, are places where services are provided by a range of organisations. They are not bodies with an identity or functions separate from the organisations that provide those services. A legal duty will therefore not be placed on children’s centres.

It is the responsibility of the relevant local authority and its statutory partners, including primary care trusts, to ensure that children’s centres provide integrated services for young people and their parents. Of course, all providers of children’s NHS services, and primary care trusts as commissioners of children’s NHS services, are captured by clause 2. When a service is delivered by or for the NHS, it will be captured. However, organisations such as children’s trust boards and children’s centres are not to be subject to the constitution because they are not part of the NHS.

Finally, let me make it clear that clause 2 already captures any other organisations providing NHS services, either directly or through the commissioning functions of the NHS bodies listed in clause 2. I hope that hon. Members agree with me that in the absence of an NHS board—for the time being or otherwise—there is no need for amendment 7; that NICE is already captured by the clause and a duty on children’s trust boards and Sure Start children’s centres would be inappropriate. So I hope that they will withdraw their amendment.

Stephen O'Brien (Conservative, Eddisbury)

I said at the outset that I was hoping to tease a number of things out of the Minister, and tease I certainly did. I slightly regret amendment 7 now, on the basis that it gave rise to an unsolicited party political broadcast on behalf of the Labour party, which I will not respond to because it would detain us too long, as I would like to have challenged almost every sentence. That said, I was only seeking to be helpful. It might be a very efficient way of providing the means to put an NHS board in place, should the contingency arise. We have had an opportunity to air that and I have no difficulty in begging to ask leave to withdraw amendment 7.

With regard to amendment 8, it was important to make sure that we understood that the special health authorities encompass the National Patient Safety Agency, the NHS Blood and Transplant organisation and the NHS Litigation Authority, as well as NICE. I do not think that the Minister said that was the exclusive list. I assume he read those out as examples. It might be helpful to make a list available.

Mike O'Brien (Labour, North Warwickshire)

For the record, yes that is correct.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful to the Minister because it could be helpful to the Committee. I do not need to press this to a vote but it has helped to make sure there is clarity as to why those particular categories have been used in the Bill. It would be useful to have a list of the current special health authorities to know where we start and to have a baseline of information for the future. When anyone invents any other new bodies—NHS boards or otherwise—they will have to consider when drafting whether it is a special health authority or not.

I will wait to see whether the hon. Member for Romsey wishes to press amendment 164, but it was helpful to have that discussion. It was fascinating to hear the Minister say that the Government do not believe in any further top-down processes in the NHS, knowing that we are also totally against further unnecessary organisational change. It looks as though the NHS can take some comfort if those words are to be believed, and I regard him as someone who does not use his words lightly.

Most importantly, it is clear, at least from the Department of Health’s perspective, that the bodies referred to, such as the children’s trust bodies and Sure Start, are non-commissioning, non-provider bodies and are therefore strategic in nature rather than those that need to be brought within the ambit. It might be helpful to ensure a bit more cross-departmental discussion. My hon. Friend the Member for Basingstoke, with responsibilities relating to another Department, had been led to believe that there were to be some commissioning processes from these children’s trust bodies. She raised the point on Second Reading because she had been given the impression that that was to be the case. As they would have some commissioning responsibility they would potentially be in the place of a PCT with regard to some health services for children. As long as there is absolute clarity we do not need to bring them within the ambit. If there is no clarity, the Minister might want to reflect on that. In the light of those comments, I beg to ask leave to withdraw the amendment, and I am happy if the Liberal Democrat spokesman does not press her amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 10, in clause 2, page 2, line 25, at end insert—

‘(5A) Each person who is sub-contracted by persons in sub-contracting arrangements under section (5) must, in delivering that contract, have regard to the NHS Constitution.’.

This is a probing amendment to investigate how far down the food chain the NHS constitution bites. In the Bill, any private or third sector organisation which contracts with the NHS must have regard to the constitution. Likewise, any body which they subcontract to

“provide or assist in providing”

must also have such regard. The amendment would require that any body subcontracted by a subcontractor would also have to have regard to the constitution. Amendments could be tabled to deliver a body subcontracted by a subcontractor’s subcontractor and so on, like Russian dolls ad infinitum, ad absurdum.

I hope that the Minister will take this opportunity to clarify how many iterations of subcontraction the provision affects. I assume that the main contractor takes an obligation to bind all those who are suppliers in a contractual chain—that the intention is to bind everyone to have regard to the constitution. I will leave him to have fun with the legal niceties of that one.

Can the Minister also clarify the wording

“provide or assist in providing”?

What, in terms of law, does it mean? Does it include a subcontractor named on the contract? Does it apply to every contractual relationship the contractor holds, whether it pertains to the NHS contract or not? I am not talking about common sense but about the force of the statute. For example, if a cleaning contractor fails to have regard to the principles because their paper supplier fails to deliver, can the NHS constitution be brought to bite on the paper supplier?

I recognise from our earlier discussion that the clause is not intended to lead to new courses of action, but, when the Minister described the intended effect of the constitution on all those who supply services, he said that it was intended to bite. Indeed, that was precisely the word that the noble Lord Darzi used throughout his defence in the other place of the drafting of the Bill. If we are not talking about direct legal courses of action, we need to understand what is meant by “bite”, and how far it goes down the chain.

Can the Minister also provide some examples of joint contracting under subsection (8)? The fact that that provision is in the Bill seems to betoken that it has been thought through, because there must be a particular concern, opportunity or even mischief in mind. Furthermore, will the duty “to have regard” be inserted in all contracts that the NHS has with its contractors? Will the NHS mandate the insertion of the duty in all its contractors’ contracts? To some degree, that is the same point as the first one.

One issue that often comes up is that private sector providers to the NHS feel they cannot compete with, for example, the public sector pension fund, which makes the attraction and retention of staff difficult. I am yet to be convinced of that argument. I believe that the flexibility of the private sector usually allows it to suffer the differential on VAT happily, because its efficiencies amply recompense it for such difficulties. The question is whether the staff of private and third sector providers would have grounds to claim against their employer, using the constitutional right to the fair pay and contracts framework. Furthermore, will contractees have to warn the contractor of this duty before entering into a contract, or will they operate a tick-box exercise on the paper trail afterwards to show that they were “having regard to”, as we discussed earlier? We must also consider the argument of justiciability, and whether it should be inserted into contracts. What assessment has the Minister made of whether that will become a justiciable area in contract law? If the contractor fulfils his contract but fails to have regard to the constitution, is that now, or might it become, a ground for termination or some other form of contractual remedy?

The next point was raised earlier by the hon. Member for Romsey and then picked up by my hon. Friend the Member for Hemel Hempstead, particularly when he spoke about air ambulances. We need to cast our minds to clause 3(7), which raises the interesting question of the position of volunteers within the contracting and subcontracting organisations—and, indeed, within the NHS itself. I do not want to teach the Minister grammar or how to suck eggs, but he will be aware that there is no contractual basis for enforcement between two parties intending to create a legal relationship, if there is a failure of consideration for money or money’s worth.

With volunteers, there is by definition an absence of money or money’s worth. One could argue that some sort of time element might be of value, but the fact is that the time is given voluntarily and without the expectation of reward or compensation, which means that there is an absence of consideration. There is the question of whether it might be misleading to encompass volunteers within the term “staff”, which is how the Bill is currently drafted. If so, there can be no ability to enforce—or, if that is too strong a word, to lay up the expectation that they should have had regard to the constitution. The last thing that we want to do is to create perverse incentives on volunteering, and I dare say that the Minister entirely shares that sentiment. I am sure that in all our constituencies we can find great examples of volunteers helping hospitals and other NHS facilities.

The amendment brings to light a further possible illogicality. It seems that foundation trusts are bound to have regard to the constitution only in respect of their NHS patients and not their private patients. To a degree, we have already discussed that matter. However, many people receive dental services under contractual arrangements made through general dental service contracts. Although the dentist will be a contractor under subsection (4), or possibly subsection (5), and thus be covered by the duty, patients increasingly pay for their services through Denplan. A private patient in hospital is not covered by the constitution, whereas a private patient in a dentist’s surgery is.

I make no argument for both or either, but the legislation should be consistent. Given the multiplicity of ways in which all of us, as citizens of the devolved countries of the United Kingdom, can gain access to primary care and other health services, we should have thought the matter through in a careful and detailed way with specific examples. I hope that the Minister understands the thinking that lies behind the amendment and that he will take the opportunity to assure us that these things have been thought through and are going to work.

Mike O'Brien (Labour, North Warwickshire)

Amendment 10 proposes that those persons providing NHS care that are subcontracted by a subcontractor must have regard to the constitution. I applaud the thoroughness of the hon. Member for Eddisbury in trying to ensure that we do not neglect the subcontractors of subcontractors, who are important people. However, the amendment is unnecessary, as subcontractors are already covered by subsection (5)(b), which states that each person who

“provides or assists in providing NHS services under sub-contracting arrangements”

must have regard to the constitution. That includes those who are assisting.

Andrew Slaughter (Labour, Ealing, Acton and Shepherd's Bush)

On subcontractors, I wonder whether my right hon. and learned Friend can help me on the issue of telephone services. I know that the issue is fresh in his mind, because during the short adjournment he was engaged with one of my constituents, Mr. David Hickson, who is involved in an assiduous campaign against the use of 084 numbers. I will ask my question in two parts. First, is there any conflict between what the constitution states in relation to services being provided free of charge and the profit that is made either by NHS institutions or by the private providers of telephone numbers? Secondly, given that the widespread consultation, which may of course resolve the issue depending on the Department’s response, concluded on 31 March 2009, when does he expect the response to it? It highlights considerable disquiet about the use of 084 numbers in relation to NHS services.

Mike O'Brien (Labour, North Warwickshire)

My hon. Friend tempts me down the line of discussing 0845 numbers, 084 numbers and a number of other numbers. We could debate the issues at some length, but he is right to say that a consultation has been completed. We will shortly announce the outcome, but I do not have the date for that announcement. I hope to look at the issue in some detail in the near future, and I hope that we will then be able to announce how we intend to pursue it.

It is important to recognise that there are a number of areas in the NHS where organisations have the ability to not only provide services, but to jointly fund them through patients’ contributions; I gave the obvious example of prescription charges earlier. That is allowed within the terms of the constitution. Particular problems arise on telephone numbers, however, which I want to look at with a great deal of care. As my hon. Friend has said, a considerable degree of concern has been expressed by patients about the way in which certain premiums have been charged in relation to such numbers. If he bears with us, I hope that we will be able to deal with the issue at greater length.

Andrew Slaughter (Labour, Ealing, Acton and Shepherd's Bush)

I thank the Minister for that. It would be helpful to know when he has an indication of when we can expect a departmental response to the consultation. By mentioning prescription charges, he tempts me to push the point on the constitution, which clearly notes

“the right to receive NHS services free of charge, apart from certain limited exceptions”.

Prescription charges are a clear example of that, but, as far as my constituents and I are aware, telephone services are not. Does he therefore agree that that inconsistency would be best addressed by not allowing the use of 084 numbers within the health service?

Edward O'Hara (Labour, Knowsley South)

Order. I have heard the hon. Gentleman’s point, but he is straying a little far from the terms of the amendment.

Mike O'Brien (Labour, North Warwickshire)

My hon. Friend is tempting me not only to stray from the amendment, but also to pre-brief people on the outcome of a consultation, which ought to be dealt with in a more appropriate way and announced at a more appropriate time. If he will forgive me, I will duck the question, valid as it is, and turn to amendment 10.

As we go, as the hon. Member for Eddisbury has described it, ad nauseam through the various ranks of subcontractors, it becomes, to use another legal term, somewhat otiose as to whether the constitution applies; it will at some stage become a matter for contract as to whether it does or not. To put volunteers’ minds at rest, where there is no contractual liability, tortious liability may arise, but that duty is normally imposed not on the individual volunteer, but on the trust itself. No new duty will arise that does not already exist in relation to volunteers. He is quite right that volunteers do an enormously important job for the NHS and, as a result of that, we do not wish to impose any new burden on them. In our view, the provision will not do so.

Bodies under a duty to have regard to the constitution must have regard to it when performing their commissioning functions. Therefore, whenever they contract with the NHS from a non-NHS organisation, we propose that they will be legally obliged to ensure that the organisation acts in compliance with the constitution when providing services. We have chosen a deliberately broad approach to the duty to have regard to the constitution in order to avoid contracting being a way of getting around that duty. We want all those connected with the provision, regulation or commissioning of health services to have regard to the constitution and to uphold the values and ethos of the NHS.

In terms of the example given of the provision of paper supplies, the provision of NHS supplies will potentially bring into effect, as far as the person purchasing them is concerned, the NHS constitution, if they are otherwise covered by it. If someone is merely supplying a product from the private sector, they are not otherwise bound by the NHS constitution. As I have indicated, there are no new causes of action. When the hon. Gentleman asks “where does it bite?”, it bites where it bites already, but with a tiny bit of extra energy—no more than that. I do not want to be too deliberately opaque, but the aim, as I have said, is not to create a new cause of action.

As far as employees, fair pay and contractual obligations are concerned, we are not creating any new way in which negotiations on pay can be conducted. There is no new legal obligation. As far as subcontractors, and subcontractors of subcontractors, are concerned, it is entirely a matter for them to delineate in terms of their contracts. If they wish to take a particular view, that is a matter for them. The constitution imposes no new obligation on them.

Stephen O'Brien (Conservative, Eddisbury)

I take the point about the volunteers and the duty of care under tortious liability, which is one that would always focus on an institution more quickly than it would on particular individuals, subject to an individual having an express or ostensible authority to commit a particular body in relation to its actions, which would be unusual. It would be pretty unusual for it to be given to a volunteer, although not impossible. I am happy to accept the reassurance on that, as indeed I was on fair pay.

As far as the paper suppliers example is concerned, what one needs to note rather than press is if the NHS employee—who is part of the process, whoever the employer body is within the NHS—has to have regard to the constitution, it is possible that through various contracting arrangements they might seek to impose conditions on the supplier to ensure that they themselves can conform to the expectations under the constitution. They can therefore help to demonstrate—perhaps through an audited paper trail that I suspect they will want to keep—that they have indeed had regard to the constitution and that they feel that they have complied with it. That is a possible way that the procurement contracts will flow through. I suspect that we will have to wait and see. That might be an actual example of the bite with a bit more energy rather than a greater cutting power, if one wants to take the analogy far too far.

As for the broad point made by the Minister on subcontractors, I can see that there is an intent, which I think that I am satisfied with. The approach taken to contractors, subcontractors and the chain of contracted supply is effectively intended to be an anti-avoidance measure, so that people cannot avoid having to have regard to the constitution. There is a genesis at the top of the chain—someone who will be covered and intends to be covered by the Bill, once it is enacted. Following those reassurances, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 9, in clause 2, page 2, line 41, after ‘service’, insert

‘paid for out of public funds and’.

I do not think that this matter will detain us for long. The amendment would clarify the ambit of NHS services by including

“paid for out of public funds”

in the definition. That seems a much neater way of demarcating NHS services than the Bill’s entanglement with specific enactments, an issue which we covered earlier. I hope that the Minister will, of course, continue to support health care paid for out of public funds. As we have discussed, we have concerns about some of the issues where the core principles have been taken away from what was proposed by the Government. The Minister has sought to assure us that that is because those values are represented elsewhere. As he knows, we have not taken that to the nth degree, but there is still a concern. He might want to reflect on whether that particular area will need further discussion among the new ministerial team.

Mike O'Brien (Labour, North Warwickshire)

Section 1 of the NHS Act 2006, to which the clause refers, makes it absolutely clear that NHS services must be entirely free of charge subject to the conditions in relation to, for example, a contribution where prescription charges are involved. I do not see any need to repeat section 1 of the NHS Act 2006 now.

The hon. Gentleman may be concerned that the Government no longer believe that public funds should be devoted to NHS patients. That is not the case, as I explained in my responses to previous amendments. I will not repeat my points here. It is the case that NHS funds will be applied to NHS patients. That is the objective, the aim and the way in which we wish to proceed.

Stephen O'Brien (Conservative, Eddisbury)

I was, of course, referring to section 1(3) of the NHS Act 2006, which was picked up by the Minister. In relation to the reference in the 2006 Act to

“the services so provided must be free of charge except in so far as the making and recovery of charges is expressly provided for by or under any enactment, whenever passed”,

it was my concern that we would end up with a chain of legislative provision that uses the phrase “any enactment”. I was concerned that we would end up with a series of pieces of legislation that would contain the phrase “any enactment” and then “under an enactment”. My point is that one has the grave danger of never specifying where the chain of legislative line follows. I shall not press the amendment to a Division, but the point has been made that we should be careful not simply to rely on the phrase “any enactment” or “enactments”, because it will become very vague to those who will succeed us over time.

Clause 3

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment 165, in clause 3, page 3, line 3, after ‘public’, insert

‘in formats accessible to people with disabilities’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment 168, in clause 5, page 4, line 17, at end insert

‘, including in formats accessible to people with disabilities.’.

Sandra Gidley (Liberal Democrat, Romsey)

These are a couple of simple amendments to try to further the debate on Second Reading about the availability of the constitution for those who may have some sort of disability. I am particularly mindful of people with a visual impairment. I perhaps should declare some sort of interest here. My husband is registered blind, so I am acutely aware of some of the difficulties faced by people in trying to access information. The Minister could argue that the issue is covered by equality legislation anyway and that existing legislation should ensure that the information is made available. However, the facts do not bear that out.

Research undertaken by the Royal National Institute of Blind People shows that a large percentage of patients did not receive information in an appropriate format. In many cases, that information might have been available with a little thought, but nobody thought to provide something usable. The statistics are stark. The group that came out best was community pharmacists—I probably ought to declare another interest—although information about prescriptions came out worst, so the picture is slightly mixed. In urgent care, perhaps nobody minds too much if the information is not readily available in an accessible format.

Given the interest in health and the drive towards self-care, on which the Government seem keen, it is more important than ever that information is available. If we start with the constitution by including access to information in accessible formats in the Bill, it will help to drive improvements in all other areas of the health service. The Minister could also argue that the Equality Bill, which is going through Parliament at the moment, might be a more appropriate place for such provisions, but people who work in the health service take far more notice of legislation in a health Bill. Given the failure to put existing legislation into practice, that is another reason for putting the measures in this Bill. In a letter to Lord Low, the Solicitor-General said:

“We are not persuaded of the case for making specific reference to the provision of information in alternative formats on the face of the legislation”

—a reference to the Equality Bill.

The amendment is a simple amendment that should not need to be included in the Bill, but the evidence is overwhelming that we must do something, as the provision for an increasing group of people is inadequate. Given our ageing population, many of whom have eyesight problems, such an amendment is even more important.

Stephen O'Brien (Conservative, Eddisbury)

I can see where the hon. Lady derived the impetus for the amendments, and I agree with the principle behind them. It is certainly right that every citizen, taxpayer and service user should be able to access the constitution, the handbook and all the other associated documentation and rules. I worry slightly that the duty as drafted might apply only to people with more than one disability, but presumably that was not her intention.

I am slightly concerned that by its very inclusion—I think that this is the second point that the hon. Lady was seeking to make in the amendment when she said that the equalities legislation will cover all such issues—the amendment would open up a divide in the public discourse between patients, staff and members of the public and people with disabilities, which is something that we have all been seeking to combat for years. I am not suggesting that that was the hon. Lady’s intention, but we need to be careful lest we create separate categories. All patients are patients, and some of them, I accept, have disabilities. The same goes for staff and members of the public. As long as we are clear that there is no such intent, as I am sure is the case, we are allied in backing the spirit of the amendments.

Mike O'Brien (Labour, North Warwickshire)

I begin by reassuring the hon. Member for Romsey that the constitution and the handbook will be, and are, readily accessible to patients, public and staff. The constitution is available in a number of alternative formats in addition to translations in 11 languages. It is available in Braille, large print and audio format, and there is an easy-to-read version that can be used by children and those with learning disabilities. The handbook is available in Braille to those who request it. Those formats are available through the internet, over the phone and by post. NHS bodies have also accessed the hard copies of the document, and are being supported by the Department of Health in promoting the constitution locally. We fully intend to keep the formats, so there is no need to put that in the Bill. The Disability Discrimination Act 1995 already requires public authorities to take reasonable steps to provide disabled people with an auxiliary aid if that would facilitate the receiving of any benefits. I believe that further duties are unnecessary.

The point that the hon. Lady reasonably makes is that we may have legislation, but it is not always delivered in practice. I accept that, but the original legislation must be enforced rather than compounding the problem by saying that it was not always enforced when it should have been under the 1995 Act, so we will repeat it. That does not resolve the issue. The way to resolve it if the law is not being complied with—this does not seem to be the case—is to enforce the existing law. We should not pretend that we can do something just by repeating the same effect in new legislation.

Law making and law enforcement are different, and the option of using the law subsequently to ensure that organisations enforce previous legislation is available to citizens and various representative organisations such as RNIB. It is therefore right that they should use the existing legislation and the new equalities legislation when appropriate to ensure that the various pieces of information are available in the necessary forms. Repeating it in subsequent legislation—we could do that in every piece of legislation—is not the way forward. We have generic legislation, and it should be used.

I submit that the NHS constitution is available in the ways that the hon. Lady hopes, and I hope that she accepts that we agree that it should be readily available in the appropriate format for people who need it. I believe that it and the handbook are available in those various forms.

Mike Penning (Conservative, Hemel Hempstead)

Why will it be produced in so few languages, when NHS Direct provides a translation service in 175 languages? I am not suggesting that the constitution should be produced in 175 languages, but if NHS Direct is translating into so many languages, the limited number in the provision will not be suitable for the members of the population who need to read it.

Mike O'Brien (Labour, North Warwickshire)

I will take that back to those who are responsible for the matter, and tell them it was suggested in the Committee that 11 languages are insufficient, and that 175 seem to be necessary.

Mike Penning (Conservative, Hemel Hempstead)

I want to clarify whether 11 is sufficient; 175 means that a ridiculous amount of taxpayers’ money is being wasted by NHS Direct.

Mike O'Brien (Labour, North Warwickshire)

Having advocated 175 languages, the hon. Gentleman is now withdrawing that and saying that that number is ridiculous. I am not sure where he is on this, but as far as I am concerned we must try to make the NHS constitution readily available to those who may need to access it. I will leave it to others to determine how that ready availability should be determined. The hon. Member for Romsey raised issues concerning people with visual impairment, and I am anxious to ensure that they will have access to the NHS constitution in an appropriate form.

Sandra Gidley (Liberal Democrat, Romsey)

I am obviously pleased that the constitution is available in many formats, and habitual users of Braille, which requires a lot of training, will not have second thoughts about asking for information in their format of choice. My concern is that those whose eyesight has failed as they have grown older may not be used to asking for information in an alternative format or even aware, in many cases, that it is available. It is a bit of a cop-out to say, “Well, it’s the DDA that’s not working so there’s no point in putting it the Bill”, because reinforcing the DDA on numerous occasions may make that Act more effective.

The statistics show that a lot of patients are not given access to suitable formats. The staff seem to be the missing links who, perhaps because they do not have a disability, are probably not aware of the difficulties faced by others in accessing information. I intend to withdraw the amendment, but I think that there should be a little more in the handbook aimed at staff to give them a responsibility to ensure that information is provided in the format most useful to any individual. That is on a slightly wider point than just the constitution, but an early review of the handbook may be the best way to address this matter.

Mike O'Brien (Labour, North Warwickshire)

The hon. Lady has made a useful point about the handbook, and I will certainly give it due and full consideration. Thanks to the wonders of modern technology I can add that there are 180 countries in the world, and NHS Direct provides language interpreters rather than various translations.

Sandra Gidley (Liberal Democrat, Romsey)

There is another chance to debate the matter further with a new clause tabled later in the Bill, so, for the moment, I am happy to withdraw the amendment.

Mike Penning (Conservative, Hemel Hempstead)

I want to clarify the situation regarding the languages in which the document will be available and NHS Direct’s ability to use interpreters, especially for languages as obscure as Cherokee, which the British taxpayer is paying for. We are using interpreters in the UK to help people access the NHS facilities, so where does the figure of 11 languages come from?

Edward O'Hara (Labour, Knowsley South)

Order. Perhaps the Minister would write to the hon. Gentleman.

Mike O'Brien (Labour, North Warwickshire)

I am happy to do so.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 11, in clause 3, page 3, line 3, at end insert—

‘(2) The Constitution must be revised whenever its constituent parts cease to be consistent with legislation.’.

With two O’Briens and an O’Hara in the room it is a blessed relief that we are not speaking Irish or double-Irish. Amendment 11 would revise the constitution whenever the legislation underpinning it changes in such a way as to bring legislation and the constitution into contradiction. Earlier, I set out our commitment to the core principles of the NHS as established in the NHS plan, which was the subject of amendment 5. We will continue to seek to enshrine those principles in legislation—we had some enjoyable teasing out on amendment 7. I believe that the Government intend to continue to believe in that too. However, there is explanatory paraphernalia in the constitution itself, and I am thinking particularly of the responsibility under section 2b which runs:

“You should keep appointments, or cancel within reasonable time. Receiving treatment within the maximum waiting times may be compromised unless you do.”

Sound stuff, leaving aside the somewhat Orwellian veiled threat that it seems to encompass, or perhaps not, although it sounds commanding.

The Secretary of State has just taken up his post and promised a bonfire of the targets. Given the enormous volume of regulations that have indeed been introduced on this Government’s watch, even if the bonfire is as fierce as it was at Buncefield in the constituency of my hon. Friend the Member for Hemel Hempstead, as extensive as the fire of London, or even as destructive as the very fires of hell, I cannot see any of those regulations being burnt to a sufficiently small number. So much legislation seems to be being produced, not least by regulation, that I hope that the Minister will confirm what will happen in the event that the constitution ceases to be underpinned by legislation. It is important that we have a backstop, which this amendment is intended to provide, in case there is a mismatch—as one can envisage happening quite easily—between the legislative underpinning and the constitution, even as amended, in the overlapping Venn diagram, which I referred to earlier.

Mike O'Brien (Labour, North Warwickshire)

Amendment 11 obliges the Secretary of State to revise the constitution whenever its constituent parts seek to be consistent with legislation. Let me reassure the Committee that it is already our intention to revise the constitution if it ever becomes inconsistent with the law or departmental policy. My noble Friend Lord Darzi put that on record in the other place. I do not believe that a new statutory requirement in the Bill is necessary. Indeed, I would say that, because it is not necessary, putting it in would amount to over-regulation. In fact, the amendment would inadvertently limit the Department’s flexibility and impose an overly bureaucratic approach to how that was done. Indeed, on the face of it, this seems to be an attempt from the Conservative Front Bench to ensure that we do a little bit extra. It will impose extra bureaucracy on the NHS that we just do not need. For example, there could be two changes in legislation in short succession that affect the constitution. It would clearly make sense, therefore, to deal with both of them together rather than be forced, as this additional regulation would do, to revise and republish the constitution twice over, with full consultation each time.

Similarly, it would be perverse to force the Government to make minor and purely technical changes only a few months before a major 10-year overhaul of the constitution, as required in the Bill. The more sensible approach would be to make a clarification in the handbook, which is designed to be easily updated. In principle, the hon. Gentleman’s objective is a reasonable one, but I do not believe that a duty in the Bill is the right way to achieve it. I hope he will therefore feel that he can withdraw the amendment, because he is fulfilling precisely that fault that he criticises, which is over-regulation. This, indeed, if it was passed, would be over-regulation.

Stephen O'Brien (Conservative, Eddisbury)

Be it never said, I hope, that I am in favour of lots of regulation. Indeed, I am sufficiently enough of an anorak to have produced three pamphlets on deregulation. I hope that, as a result of the Minister’s reassurance, the Committee will recognise that there is an attempt to ensure that there is not an unnecessary administrative burden, in an effort to have an almost rolling update of the constitution. I can see that there is a need to ensure that some de minimis rules apply, but at the same time it was important to explore it to make sure that this will not fall foul of anything becoming inconsonant with the legislative underpinning, because that is—if I can go all the way back to our first discussion—the ratio decidendi of the Minister, in saying that this contains no new legal rights or causes of action. Therefore, it is absolutely vital that however much we want to maintain a lack of extra bureaucracy, the point is made. As he said, it was a reasonable point and it is very important, because the underpinning of the constitution and the way it is intended to operate is that we do not leave any gaps between the legislative underpinning and the constitution. On that basis, I am happy to withdraw the amendment. I beg to ask leave to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment 166, in clause 3, page 3, line 4, leave out subsection (2) and insert—

‘(2) A review of the NHS Constitution shall be carried out on the anniversary of its first year of operation by the Secretary of State and at least once in any period if 10 years thereafter (referred to in this Chapter as a “10 year review”).’.

The amendment is simple. It merely places a statutory requirement on the Secretary of State to undertake a review of the NHS constitution one year after its inception. Attempts were made in the other place to secure an annual review, which we would concede is probably a little onerous. However, a number of concerns have been raised about how things will work in practice. In the other place, one of the concessions was that local authorities should be consulted in any review of the constitution. It seems fairly sensible to have a review a year after the implementation date to ensure that we have done our job properly and things have not slipped through the net.

Some groups have raised concerns and suggested that, despite the wide consultation process on the constitution, they might like to make some fairly small amendments. One example is the Proprietary Association of Great Britain, which is responsible for the licensing and promotion of medicines that can be bought over the counter. It would like to extend the section on responsibilities, which includes the part that says:

“You should recognise that you can make a significant contribution to your own, and your family’s, good health...and take some personal responsibility for it.”

It wants to beef that up by saying that health care can start with people looking after and treating their families in the home; in many cases, people can be responsible for preventing ill health, maintaining good health and looking after members of their family with common illnesses in the home. That is quite important because the constitution is very heavy on staff responsibilities and patients’ rights and there is a thinner section—it might be too thin—on the responsibilities of patients. If they are to be true partners in health, patients should accept more responsibility.

Other organisations may want some strengthening of existing provisions and, if there was a review after one year, they could make their feelings known. I would not want the process to be too long-winded or onerous, but some things may not be working as well as intended. It therefore seems sensible to have an early review and then to have a later review at some stage during the 10 years. That is all that the amendment is designed to do.

Mike O'Brien (Labour, North Warwickshire)

Amendment 166 would require the Secretary of State to conduct a review of the NHS constitution one year after it came into effect. The review would be additional to the reviews already proposed to be conducted at least at intervals of 10 years and additional to any review occasioned by the need to alter the constitution because of a statutory change.

I appreciate that the hon. Member for Romsey wants to ensure that the constitution remains appropriate and fit for purpose in a year’s time. However, the amendment is unnecessary. We consulted widely on the draft constitution less than a year ago and we now have a document that carries broad support. That was a very wide and a not inexpensive consultation on the constitution. People would be surprised if one year into it, the consultation was undertaken again, with great expenditure of time and effort by the organisations involved. We need to be aware that people did engage very seriously. It required a lot of effort from them. Putting that burden on them again needs to be done with a reasonable amount of care. It is not that it should not be done, but there needs to be a reasonable time scale. We consulted very widely and the consultation specifically asked whether legislation should require the Secretary of State to review the constitution every 10 years. There was broad support for that proposal. Very few responses suggested that the constitution should be reviewed more regularly. Most respondents were simply concerned that the constitution should be updated as it became necessary.

I can assure the hon. Lady that it is our full intention to ensure that the constitution does not become out of date. The process in clause 4 for revising the constitution allows us to do that. Indeed, if it becomes apparent that a fuller review is needed within the first year, clause 3 is drafted to allow us to do that. I do not agree, however, that we should mandate now an early review of the constitution and put pressure on the various organisations to participate in another major review. So I should like to reassure the Committee that the Government fully intend to monitor the impact of the constitution on an ongoing basis. The most meaningful way to do that is to collect data on a regular basis rather than wait for the three-yearly report on the impact of the constitution. That will allow us to see how the constitution is taking effect on the ground and to act if necessary.

The hon. Lady asked me about patient responsibilities. We listened carefully to last year’s consultation and the constitutional advisory forum’s view was that the balance of rights and responsibilities was about right. The constitutional advisory forum recognised that we need to be careful not to deter people from getting the services that they needed. Feedback from NHS staff suggests that they are very supportive of the patient responsibilities and they are the group most likely to want to extend. I hope that reassures the hon. Lady and she will withdraw her amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Minister for that clarification. I am reassured that if things are missed and there are problems there is a mechanism for review. It may be that this would be unnecessary. However, I am unclear about who would initiate such a review. Would it be the Government responding to concerns raised by patients and the public or is there some external mechanism?

Mike O'Brien (Labour, North Warwickshire)

The Secretary of State would initiate and undertake the review. The Secretary of State would need to make a decision that circumstances required that to happen and that could result from a change in the legislation. It could result from pressure from various groups or it could result from a view that because there had been a number of minor changes it was appropriate to begin the consultation. So there are a number of circumstances in which the Secretary of State could take the view that a new full round of consultation needed to be undertaken rather than waiting for the 10-year period or just review the operation after three years. It is a matter for the Secretary of State.

Sandra Gidley (Liberal Democrat, Romsey)

I am happy with that further clarification. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 12, in clause 3, page 3, line 14, after ‘(5)’, insert—

‘(fa) Local Involvement Networks.’.

This causes some grave concern and it may take us a tiny bit longer than the previous couple of amendments. The amendment seeks to add to the list of bodies that must be consulted about the NHS constitution on a 10-year review. Amendment 167 tabled a few days later by the Liberal Democrats does exactly the same thing in exactly the same way. They have added their names to this and will not be moving their separate amendment. I thank them for their support. I find it sad that the Government have consistently sought to undermine the patient voice. It has been a 10-year journey almost to the day for me as part of my experience of the House.

The Government decided to get rid of community health councils. That was announced just a day before we rose for the summer recess in 2000, when they published the NHS plan. Hidden away in the middle of the document was a phrase stating that after consultation, the Government were going to axe the CHCs for not being effective as advocates of the patient voice and for a number of other reasons. They were pretty strident criticisms of the CHCs. I think I am right in recalling that there were 107 of them, of which 4 had been criticised, and well over 100 were regarded as being extremely important to the local communities.

It was something of an outrage, because during Prime Minister’s Question Time, I challenged the then Prime Minister Tony Blair on the matter. He said that the Government were certainly getting rid of them, but of course, only as a result of a widespread consultation. It was perfectly clear that they needed to be got rid of, and that was what was supported. Within minutes, I received a handwritten, three-page, “Dear Stephen. Love, Tony” letter, which was basically a grovelling apology written quickly by someone called Alastair Campbell, saying that the House had been completely misled House: there had been no consultation whatsoever, and it was a complete misrepresentation in the NHS plan document.

We managed to get a stay of execution for a year. But as a result of that, we discovered that the true motive that lay behind that was a real concern on the part of the Government that if there was any ability to have credible criticism of the NHS, it would be regarded as a personal slight to the Labour party. Therefore, the Government replaced CHCs with patient and public involvement forums. Then they found those to be too outspoken as well, particularly through the Commission for Patient and Public Involvement in Health, or CPPIH, commonly known as “chippy”—that seemed to be the way the Government saw them. So the Government abolished those as well, and replaced them with local involvement networks. We had quite a run-out on that during the course of the Health and Social Care Bill just over a year ago. The contempt in which the Government hold the patient voice was shown in tagging the issue of local involvement networks on to another portmanteau Bill—the one about local government.

The reason it is so important—why I am making something of an issue of it—is because lately, the tragedy of Mid Staffordshire hospital has been in part attributed to the cull of LINks, and the lack of a strong local patient voice in holding trusts, NHS executives and ultimately Ministers to account. It is right that the LINks should be able to comment on the constitution. They provide the most independent and local voice on how Government policy is operating on the ground.

Interestingly, part of the Government’s problem with CHCs was that they were genuinely independent. The trouble with all the successor bodies—we have had many relevant debates in the House on a number of Bills—is that the Government have brought them into the ambit of the NHS, to cease to allow them to be independent. We cannot say that that is an unintended consequence, because the debate has been held over and over again. The trust and confidence of people, particularly those who need their hand held—often at their most vulnerable time—to chart their way through the labyrinthine processes of the NHS, is because they trust something that is independent from it, not something that is from within it. That is the key to this—to try to find the new way forward with something that is independent.

Mike O'Brien (Labour, North Warwickshire)

Just to reassure the hon. Gentleman before the batters the living daylights out of the straw man, it is not the Government’s intention to not consult LINks. On the contrary, we have an amendment in the Bill that ensures that bodies or other persons representing patients will be consulted during the 10-year review—precisely what he is requesting. It will happen in any event.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful. The Minister says that there is an amendment in the Bill, but I do not see a Government amendment in the marshalled list, which is the only reason why I am asking my questions. I have been waiting to see it, and I hoped that because we put down the amendment, the Government would want to do that.

I believe that I am operating from the latest marshalled list—unless I am wrong—and I will certainly look to receive any advice I can. But I cannot find any Government amendment. If there is an intended amendment, I will be extremely pleased that that has provoked the Minister to intervene and confirm that in advance.

Mike O'Brien (Labour, North Warwickshire)

It is an amendment that was taken in the other place, so the provision is already in the Bill.

Stephen O'Brien (Conservative, Eddisbury)

That is helpful. I had thought that it ought to appear in this list of those who have to be consulted. Perhaps we should ensure a read-across. When the Minister replies, we can look at the technical drafting, but this is clearly the most obvious place for the provision. I shall listen to what he has to say with interest. Even if LINks is already included, it is something that needs to be perfected. It would certainly help to demonstrate the Government’s credentials if they are serious about accountability in the health service.

In December 2005, an independent review of the NHS regulatory framework was ordered by the Department of Health. Its chairman, David Currie, wrote to the then Secretary of State, saying that

“the importance of consumers/patients in the values of Health Service reform is frequently expressed but not always so effectively mobilised. Establishing representative national and regional fora to contribute a reasoned collective consumer perspective to the process of reform could well improve both the efficacy and legitimacy of that reform.”

That is clearly important. I suspect that the Minister will pray in aid those words as showing the import of what the Government have tried to do; it gives us a clear steer on what needs to happen. Having done away with the national forums, the Bill gives us the opportunity to reinforce and strengthen the role of LINks. Will the Minister explain exactly how they are meant to work and whether we need to strengthen them, as I would certainly be in the market for that?

Another factor should be recognised. If the Government are earnest about LINks and the whole process of local involvement, they must give patients individual help and advocate their interests within the NHS—and, indeed, in social care, which is equally important for many people, particularly when they are most vulnerable. That also gives us a real opportunity to find developing patterns of behaviours, which is something that gave the community health councils such authority. Through the casualty watch and bed watch schemes, they were able to identify those areas that were causing real problems, and discover patterns of activity across the health service.

Something has recently come to our notice, and I shall use this opportunity to ask the Minister about it. If LINks are to be celebrated by the Government as a powerful and accurate voice, acting as advocates, they should be involved in the constitution and the consultations. However, I am a little disturbed to discover that £3 million has been top-sliced from the budget earmarked to support LINks, and is being used to pay for the time and costs incurred by civil servants, distributed among regional offices, who are doing their best to ensure that LINks are established and encouraged. However, that completely bypasses the National Association of LINks—NALM—which is having some difficulty in ensuring that it is an allowed representative body.

It may be remembered that we had an allowed representative body in the Commission for Patient and Public Involvement in Health, and before that the national council that represented community health councils. Those bodies were important in bringing together the collective wisdom that comes from the individual, atomised experience across such a complex organisation. We can demonstrate how much we want to involve LINks. I am grateful to the Liberal Democrats for their support. Given the Minister’s interventions, I look forward to his confirming that that is indeed what he intends to do, and that we need to perfect the drafting to ensure that it is explicit.

Sandra Gidley (Liberal Democrat, Romsey)

I wish to add only a few brief points, as I agree with much of what the hon. Member for Eddisbury said. It is a great disappointment that LINks in many areas of the country have been slow to get off the ground. The public are not relating to them yet, their powers seem to have been eroded, and they are poorly funded. The Government’s drive over the past few years seems to have decreased the importance of some of these independent groups. Some of the community health councils were not very good, but those that were good were excellent. It has always been a mystery to me why we did not build on the strengths and beef up that structure rather than trying to create something new and then, just when that was starting to work, create the LINks concept. Nevertheless, that is what we have at the moment. Although the Minister said that the Government were going to consult, I cannot see LINks specifically mentioned in the Bill.

Mike O'Brien (Labour, North Warwickshire)

The hon. Lady is quite right. What we referred to was

“bodies or other persons representing patients”.

The amendment was tabled in the other place as a result of concerns raised in relation to LINks. We do not know what the set-up will be in 10 years’ time, but we want to ensure that patients’ representatives will be consulted.

Sandra Gidley (Liberal Democrat, Romsey)

The Minister is referring to clause 3(3)(a), which is where LINks would fit into the Bill. I am slightly disappointed because it should be a given that LINks are included. However, there are ways in which patients, bodies and “other persons representing patients” can be consulted without going to LINks themselves. Perhaps the Minister is admitting that the LINks experiment has not been an overwhelming success.

Mike O'Brien (Labour, North Warwickshire)

LINks are successful. They are clearly independent of the NHS. They are funded through local authorities and attached to local authority areas. However, it is our intention to ensure that the representatives of patients are fully and properly consulted during the whole course of the 10-year review. We have already consulted local organisations representing patients as part of the review that resulted in the introduction of the constitution. My noble Friend Lord Darzi put on the record in the other place the fact that we would consult LINks in any review of the constitution, just as we did during the initial consultation. It is our intention to work with LINks both on 10-yearly reviews and on any more minor revisions. The amendment is therefore unnecessary. We listened to the debates in the other place and to concerns raised by LINks and others that we needed to refer specifically to patients bodies in the consultation. The amendment was then tabled requiring the Secretary of State to consult

“bodies or other persons representing patients”

during each 10-yearly review of the consultation, and, as the hon. Lady said, that provision is in clause 3(3)(a).

Hon. Members will be aware that it is not necessary for legislation to list in detail every organisation and every body that needs to be consulted. It was agreed in the other place that the phrase,

“bodies or other persons representing patients”

strikes the right balance. It ensures that patients and their representative organisations are specifically consulted while respecting concerns about listing large numbers of organisations. Although we refer to LINks, there are other organisations that represent all sorts of groups in the NHS. LINks address both health and social care issues. It was for that reason that they replaced CPPIH and patient forums, both to link public concerns and to ensure that social care and health can be dealt with together and considered in the round. Therefore, we want to ensure that local organisations are fully consulted during the course of a 10-year review and any other revisions.

Patrick Hall (Labour, Bedford)

For the record and for the sake of clarity, while there are many private, voluntary and charitable patient groups in this country, it is important to make it clear that LINks are intended to be a public as well as a patients’ voice.

Mike O'Brien (Labour, North Warwickshire)

My hon. Friend is right. I entirely accept that. LINks are a primary source of much of the patient and public reaction to Government initiatives on health and were important to the consultations that we have recently undertaken.

Stephen O'Brien (Conservative, Eddisbury)

I am pleased that through that exchange we have ensured that there is complete absence of any uncertainty about the Government’s intention to include local involvement networks—their own creation—in clause 3(3)(a). The fact that has been put in generically perhaps reflects the fact that successive bodies have represented patients under the Government’s watch and that the Government did not want to bind their commitment to LINks necessarily being the last word.

I met representatives from LINks during the interval between today’s Committee sittings. One of the things that we discussed is how they could transit to the health watch that we have proposed for a number of years, ensuring that that independent and powerful patient voice can have real influence in how services are delivered and how we consult on the constitution .

Mike O'Brien (Labour, North Warwickshire)

Did I hear the hon. Gentleman right? He wants to reorganise patient groups again, having complained previously about their being organised.

Stephen O'Brien (Conservative, Eddisbury)

No, the Minister did not hear right. I was very careful to say “transit”, because we have made it clear that the last thing that we would do is to unpick LINks. However, we would enhance and reinforce both their role and what they do.

I was pleased to hear the hon. Member for Bedford make a contribution. I am happy to put on the record the fact that he fought an at times lonely but noble fight on CHCs a decade ago. He has made a valid point about the public role, as well as the role for the individual patient.

In light of our exchanges, I need not press the amendment to a vote. We need to make sure that there is not only involvement but a real attempt to understand how important the independence of the voice concerned is, in order to engender the trust and confidence that enables patients to feel that they are being well represented in the right way. LINks also have the broader role of identifying the pattern of experience and behaviour, and of spotting if anything goes wrong. All of us have the tragic and worrying experience of the Mid Staffordshire trust in mind as we consider such matters. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 13, in clause 3, page 3, line 24, after ‘NHS’, insert ‘or social care’.

We can be a bit briefer on this amendment, which questions the definition of “carers” in the Bill, something of particular interest to all of us in light of Carers Week having taken place last week. Currently the Bill defines “carers” as

“persons who, as relatives or friends, care for other persons to whom NHS services are being provided”.

A somewhat strange contradiction seems to exist in that definition of “carers” being put forward by the Government.

The Committee should note that carers were only put in the Bill in the other place. That was very welcome, and I am glad that the Government were prepared to show acceptance. However, we need to be sure that the amendment that was made in the Lords is seen through in both spirit and letter. Amendment 13 would change the Bill to refer to

“persons who, as relatives or friends, care for other persons to whom NHS or social care services are being provided”.

The important addition is the words “or social care”.

Section 5(4)(b) of the Health and Social Care Act 2008 already has a statutory definition of “carers”. In that Act, which the hon. Member for Romsey and I spent many hours debating in a room just along the corridor, the definition is

“people who care for service users as relatives or friends.”

What seems strange is that that is not the definition used in the Bill, provoking the question why it is not being used. Is something intended by changing the definition, or are we in danger of spreading confusion?

I hope that the Government are not worrying about the numbers—whether that is 5 million or 6 million carers. I think that there are 5 million in England and 6 million in the UK as a whole, but that is often thought to be an underestimate, as is the number of 175,000 child carers. I do not believe that the Government seek to use the definition to change anything to do with the numbers, but it is important to recognise that there was a fairly settled position in the Health and Social Care Act which seemed to be accepted by all the carer organisations.

It is fitting to raise that point, particularly when we have just had carers week. Like so many stakeholders, carers are yearning for the publication of the Government’s social care Green Paper. That has been promised by spring this year, so technically no later than 25 June. As we know, carers bridge the gaps in a system which have remained unaddressed for too long.

I hope that the Government take the point seriously, and in the spirit in which it is intended. The amendment seeks to ensure that we have a clear definition and an explanation as to why, if the Minister wishes to pursue the matter, he has not adopted the same definition as that proposed by the Government a year ago.

Mike O'Brien (Labour, North Warwickshire)

I certainly agree with the hon. Gentleman that carers are an important group in our society. We have the highest regard for them and for the work that they do. We are not changing our definitions in relation to the Health and Social Care Act.

Amendment 13 would expand the definition of “carers” to include those who care for persons to whom social care, as well as NHS services, are provided. We propose a duty on the Secretary to State to consult carers, in their capacity as carers for those who receive NHS services. Where a carer cares only for someone who receives social care services, the constitution would not be relevant. That is because the constitution is for the NHS, not for social care. There would be a responsibility to consult NHS services, but not in relation to a non-existent constitution relating to social care.

Sandra Gidley (Liberal Democrat, Romsey)

It would be helpful for the Minister to clarify the definition of “NHS care”. Does he refer only to that element of care in a nursing home, for example, that is funded by the NHS? The difficulty with nursing homes is that there is not always a clear division between health care and personal care. There are endless debates with funding panels over that issue. It is difficult enough for commissioners to provide absolute clarity on that, and a patient or carer might have great difficulty in differentiating between health care and social care. People often feel aggrieved when their loved one has needs that are related to a health condition—in cases of Alzheimer’s, for example—and those needs are deemed as being related to personal care rather than to health care. Will the Minister provide greater clarity about where that boundary will be drawn? It is a difficult issue.

Edward O'Hara (Labour, Knowsley South)

Order. That is rather a long intervention. I call Stephen O’Brien. I mean Mike O’Brien.

Mike O'Brien (Labour, North Warwickshire)

Thank you, Mr. O’Hara. Having more than one O’Brien can get a bit confusing. Of course we accept that health care and social care are interlinked. It remains a Government priority for the NHS and social care systems to work together on the constitution, and it highlights the importance of joined-up services.

For example, principle 5 reads:

“The NHS works across organisational boundaries and in partnership with other organisations in the interest of patients, local communities and the wider population.”

The constitution also contains a pledge to make the transition as smooth as possible when patients are referred between services such as the NHS and social care or where services are jointly provided. It is particularly relevant to transitions between health and social services. Anyone who cares for someone in receipt of an NHS service is captured by this and is therefore able to be consulted.

NHS services must be paid for out of NHS funds. The obligation is on the Government to consult the carers on the NHS constitution. It would therefore be rather odd to seek to consult those merely receiving care services about a constitution that does not directly apply to those care services. Where there is a factor of NHS provision in the patient’s component of care—some of it might be social care and some might be NHS care—there is a requirement to consult representative organisations.

The concern that the hon. Member for Romsey expressed about the situation is being addressed, because we are looking at who needs to be consulted and what they need to be consulted on. They need to be consulted on the NHS constitution, because it applies to them. If it does not apply to them directly, there is no obligation to be consulted on the social care itself. That will happen separately. Indeed, the Government will in due course publish a major Green Paper on the reform of the care and support systems. That is a different issue. It is interlinked, but is not about the NHS constitution.

It is appropriate to say that carers will be consulted when there is an NHS factor in the care provided. I hope that that reassures the Committee that the Government theme of partnership is clear. We want to work closely with those providing social care, which is an important component. We want to ensure that carers are properly consulted, but that they are consulted on a particular thing—the constitution. They will be consulted only on that. In relation to other matters, such as social care, consultation will take place in other ways. I hope that that reassures people that it will be relevant to consult only those who care for people receiving NHS care.

Stephen O'Brien (Conservative, Eddisbury)

I have listened to the Minister and recognise that he does not intend to do anything by sleight of hand. I dare say we will come back to the issue when we deal with direct payments in chapter 3, but the more that we look at packages of care that straddle the NHS and social care, it becomes more important, because it is difficult, as was mentioned, to disentangle care services that are provided by the NHS and those that are an extension of care packages.

We have about 30,000 people under continuing care, which is an NHS provision that carries forward into the social care context, but that is becoming more fungible as we look at the growth of direct payments, individual budgets or personal health budgets. That is the direction that I think hon. Members on both sides of the House wish to see pursued. It is appropriate and relevant to individual patients and those who need care, and it is something to which we will need to return. In the meantime, I am prepared to postpone some of the discussion until we get on to direct payments and I will take the Minister’s assurance at face value. I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Conservative, Eddisbury)

We could discuss staff and contracting at this point, but to some degree we have dealt with that satisfactorily. Prompted by my experience in Cheshire, I want to cover something raised by provisions in subsection (8), although it does not warrant an amendment. Because of Government edict, we ended up having to abandon the historic county of Cheshire and impose two new unitaries—the East Cheshire unitary authority and the West Cheshire and Chester unitary authority. I want to ensure that the Minister knows that the list in subsection (8) includes county councils, district councils, London borough councils, the common council of the City of London and the council of the Isles of Scilly, but not unitary councils. Where, therefore, in that list do the new East Cheshire unitary authority and the West Cheshire and Chester unitary authority sit? That might be a drafting point, which has a consequential effect on Government legislation in other areas. If the Minister does not have an immediate answer, I am happy to accept a letter.

Mike O'Brien (Labour, North Warwickshire)

I am glad that the hon. Gentleman is happy to accept a letter. I will look at it.

Edward O'Hara (Labour, Knowsley South)

Indeed, in the north-west we have to learn to refer to the Cheshires.

Stephen O'Brien (Conservative, Eddisbury)

But the Cheshires will only get one allocation of money.

Clause 4

Stephen O'Brien (Conservative, Eddisbury)

I wish to address subsection (3). What assurance can the Minister give that the Secretary of State will ensure that those who will be consulted will include

“patients, staff, members of the public and other persons as appear to the Secretary of State to be affected by the proposed revision”?

I am not aware of how that will be done objectively. At the worst end, a whole load of yes-men would be selected, who might give the answer that the Secretary of State first devised, and at the other, it would be a completely random unrepresentative body of people. If we are going to have other revisions, it is important that the consultation process is seen to access not only stakeholders and appropriate patient groups. Given the other discussions that we have had in relation to LINks and those in the list in clause 3(3)(a), it is important that some assurance is given, even if only by placing on the record at this point that the selection is intended to be objective, and that there is no possibility of either cronyism or of trying to select the people to consult in order to produce the first answer thought of by the Secretary of State.

Mike O'Brien (Labour, North Warwickshire)

The appropriate word in subsection (3) is “include”. There is a non-exhaustive list of those who need to be consulted. Particular attention is drawn the requirement to consult those who are directly affected by the revisions. However, there are others who are generally consulted on revisions who would also need to be consulted. The list is not exhaustive; on the contrary, it merely draws attention to the obligation on the Secretary of State to ensure that those directly affected are directly consulted.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful for that perfectly fair response. I dare say that the Minister will be aware of others in addition to LINks and patients having a voice, which we have discussed. For instance, on the Health and Social Care Bill we took evidence, because it was not a Bill generated in the House of Lords, from, among others, institutions such as Which?, and consumers who might have a patient’s view. That is an interesting point and could therefore be included.

The other point relates to where formal staff representational positions are in place. I am sure that the Minister is as aware as I am—those of us from the north-west, Mr. O’Hara, are particularly aware of this—that the Association of Professional Ambulance Personnel continues to rail against the fact that it is never consulted. There has always been a great turf war between various effective union representations of ambulance staff, and the association continues to fail to be represented. That is an example of how a real effect could be achieved. Therefore if the association were to be included it would be extremely pleased, as that would be an improvement in its position that it has sought for many years.

Mike O'Brien (Labour, North Warwickshire)

I hesitate to get involved in turf wars. We intend to undertake the appropriate broad-based consultation and ensure, in particular, that those who are directly affected are consulted.

Clause 5

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 110, in clause 5, page 4, line 16, leave out ‘continues’ and insert

‘and the Statement of Accountability continue’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: amendment 111, in clause 5, page 4, line 19, after ‘Handbook’, insert

‘and the Statement of Accountability’.

Amendment 112, in clause 5, page 4, line 21, after ‘Handbook’, insert

‘and the Statement of Accountability’.

Stephen O'Brien (Conservative, Eddisbury)

The amendments are brief. They do the same thing and would insert the statement of accountability into clause 5 on the same terms as the handbook. Clause 5 is about the availability, review and revision of the handbook. Through the amendments, the statement of accountability would also have a legislative foundation for its availability, review and revision. We had many discussions about that when we debated amendment 3 and I will not rehearse those, except to ask the Minister why the handbook is in the clause when the statement of accountability is not. Logically, it should be both or neither. I hope his reply will clarify that.

Mike O'Brien (Labour, North Warwickshire)

There is no need to place a duty on the Secretary of State to make available, review and update the statement of accountability because the Government are already committed to it. Principle 7 reads:

“The system of responsibility and accountability for taking decisions in the NHS should be transparent and clear to the public, patients and staff. The Government will ensure that there is always a clear and up-to-date statement of NHS accountability for this purpose.”

The seven principles in the constitution, including that one, cannot be changed except by regulations laid before Parliament. Therefore, no Government can renege, without parliamentary approval, on the commitment to keep the up-to-date statement of accountability. That provides ample clarification. It would be unhelpful in terms of timeline to insert into the Bill when the statement of accountability needs to be reviewed, since it describes the structure of the NHS, which might not change at all in any three-year period, or conversely might change sooner. Flexibility is needed to keep the statement up to date and so keep it useful for the audience with which it is supposed to engage.

The answer to the hon. Gentleman’s key concern is that the issue is covered by principle 7. The three-year period would just add unnecessary bureaucracy. Why, if the statement of accountability has been reviewed after two years and nine months, review it again after three years? It does not make sense. There is an obligation; it is required to be constantly updated and that is the best way to deal with it.

Stephen O'Brien (Conservative, Eddisbury)

I am satisfied with the explanation. I beg to ask leave to withdraw.

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 113, in clause 5, page 4, line 20, at end insert:

‘and may address the impact of the Handbook on National Health Services including—

(a) dentistry;

(b) audiology

(c) podiatry’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: amendment 114, in clause 5, page 4, line 20, at end insert:

‘(3A) The review may assess the cost savings made as a result of the NHS Constitution.’.

Amendment 115, in clause 5, page 4, line 20, at end insert:

‘(3A) In reviewing the Handbook and the Statement of Accountability the Secretary of State must consult the bodies listed at section 3(3).’.

Stephen O'Brien (Conservative, Eddisbury)

This series of amendments seeks to put in the NHS handbook strong indicative markers for performance. They might also be markers for any report on the effect of the NHS constitution under clause 6. Amendment 113 takes three areas in which the Government have consistently underperformed; I am sure that hon. Members could add others—health inequalities, malnutrition, single-sex wards and superbugs, for instance.

With regard to dentistry—a subject on which my hon. Friend the Member for Hemel Hempstead has repeatedly called the Government to account—the failure of the Government is becoming a byword. Access has declined since the Government’s new dental contract was introduced in 2006. Patient outcomes have worsened considerably and the dental professional is feeling, somewhat justifiably, disfranchised. More than 36,000 children with tooth decay are admitted to hospital each year and the figure is rising. It is now the third most common reason children are admitted to hospital, with a 13 per cent. rise in the incidence of hospital admissions relating to tooth decay in five years.

My hon. Friend and our party have pledged to restore access to an NHS dentist for the million patients who have lost it under the Government’s current failed system, by slashing bureaucracy and cutting waste and creating new incentives for dentists to spend more time on preventive dental care, improving oral health and reducing long-term costs. It is important to use money that is currently spent on carrying out unnecessary treatments to reintroduce dental screening for children in schools, so that children aged five can have their oral health addressed. That is also part of a scheme that would give dentists the freedom to charge patients who repeatedly miss appointments—a counterpoint to what we were discussing a moment ago—and ensure that taxpayer-trained dentists work for the NHS for at least five years. If this were a benchmark for the performance of the handbook and the constitution, we might get a real sense of what improvements they can bring.

To take another example, in January 1,849 people were still waiting more than 18 weeks for digital hearing aids, 585 of whom had waited more than a year. That has been a long-running scandal which has particularly affected older people. The ability of the constitution and the handbook to deliver on that would also be a mark of their value; failure to deliver would be a mark of their failure.

To emphasise the need for the three amendments we also need to look at podiatry services, where older people have long been neglected. Age Concern has been campaigning for years on podiatry services and its “Feet For Purpose” document, published in August 2007, shed light on the horrific circumstances of many people. It found that one in three of the 2 million people in England over the age of 65 cannot cut their nails. Lack of even the most basic foot care can lead to complications resulting in dangerous falls, severe restrictions on mobility and social isolation. Proper foot care is key to the dignity and freedom of so many older people and, yet again, the dignity challenge is silent. The press has reported that at least 12 PCTs have cut podiatry services, and the Government’s national service framework for older people in 2001 highlighted the need for podiatry as part of old age specialist care. Functioning podiatry services would make a real difference to older people and the NHS, and would be a good benchmark for measuring the effectiveness of the constitution and the handbook.

I also pay tribute to Diabetes UK, which made a particular point of emphasising the need for better and more accountable podiatry services. One of the many unseen challenges and afflictions that affect the many people who suffer from diabetes is the difficulty, not only in making sure that they can cut their nails, but in keeping healthy feet when facing so many other challenges.

Amendment 114 would enable the Committee to explore two intriguing statements in the Department of Health cover note to the impact assessments on the Bill. Paragraph 3 states:

“The benefits of each of these proposals are expected to outweigh the associated costs.”

Paragraph 7 of the NHS constitution states:

“These may have both costs and benefits; there is currently insufficient data to make a realistic estimate.”

I hope the Minister can explain that contradiction and tell the Committee how much the constitution has cost to date; otherwise he might want to add that to his letter pile.

Finally, as with so much in the Bill, the review seems to be left at the potential whim of the Secretary of State. Amendment 115 would ensure that all the bodies and persons who feed into the tenure review of the constitution also support the review of the functioning of the handbook. It is right that such a review should be open, informed and honest, and I hope that the Minister will accept that and our other amendments.

Sandra Gidley (Liberal Democrat, Romsey)

While I cannot argue with the hon. Gentleman, I find amendment 113 a little confusing. It is fairly weak because the wording states that it “may address the impact”, so it hardly seems worth putting in the Bill. It seems to be a “do it if you want to” approach. He mentioned areas of neglect and quite rightly highlighted three that are of concern. However, by putting those into the Bill, he may be neglecting other important areas. For example, we could easily add “access to talking therapies” or “availability of NICE medicines”—it would be interesting to force a review of that because implementation is patchy. Others may prefer “access to IVF services” to be listed. Those three examples immediately sprang to mind, but if we brainstorm—I am not sure that we are allowed to use that phrase anymore—we could come up with a long list of underfunded services. I am concerned about supporting the amendment, although I recognise the intention behind it.

Similarly, I am concerned about amendment 114, which again contains the weasel word “may”. I have sat in many Committees in which the Conservatives tried to strike out each “may” and replace it with “must”, so I am surprised to find the word here. I would not necessarily support a “must” in this case. The constitution is not about finance, and the unnecessary bureaucracy involved in assessing the financial implications of the constitution runs counter to everything we hear about the Conservatives wanting to reduce regulatory burdens, but I may have missed something. I find it difficult to support the amendment.

Amendment 115 is perfectly sensible. It may be superfluous, but I have no difficulty supporting it.

Andrew Turner (Conservative, Isle of Wight)

I am concerned about dentistry, because it is very poor on the island, despite attempts by Ministers to do something about it. The problem is that the recording system is based entirely on the number of appearances before a dentist. We no longer have a system that looks at each person; instead it looks at the number of visits. That tells us how many appearances, not how many people, there are before the dentist. That is the wrong system and it gives the wrong impression. It appears that more people have inspections, but in fact they are the same people—the same people are going to the dentist more and the same people are going to the dentist less. We must fix that problem by recording the number of visits that each person has, not just the smaller number of people who have regular visits.

Mike O'Brien (Labour, North Warwickshire)

Amendments 113 and 114 would allow the Secretary of State to address the impact of the handbook on national health services, including dentistry, audiology and podiatry, during the first three-yearly review of the handbook, and to assess the cost savings made as a result of the constitution during each three-yearly review.

The hon. Member for Eddisbury set out on a general rant about the NHS. Let me remind him that the NHS now has the shortest waiting lists since its records began. Across England, the NHS has met its target to treat patients within a maximum of 18 weeks from referral by their GP to consultant, including audiology patients referred to ENT departments. The hon. Gentleman mentioned audiology: the NHS is also ensuring that patients do not wait a long time to access a non-consultant-led audiology service, and the median waiting time from referral to direct access to audiology treatment is now just 4.6 weeks. He mentioned podiatry: foot care services for older people have been reviewed as part of the prevention package announced in May 2008. The package is due to be launched later this year, with the publication of guidance for commissioners and providers of foot care services for older people, and self-care guidance for the public.

The hon. Members for Isle of Wight and for Eddisbury mentioned dentistry services. There are a number of issues in relation to those services and the hon. Member for Isle of Wight raised a particular point. I am not sure that the handbook is the way to address it, and I hope he forgives me for not going down the route he invites me to take. In general terms, we have invested a record £2 billion in dentistry and set up a national access programme. We have also commissioned an independent review of NHS dentistry led by Professor Jimmy Steele. The review will report later in the summer and give an independent view of how we should further develop dentistry in the coming years.

Amendment 115 would oblige the Secretary of State to consult on reviews in relation to the handbook and the statement of accountability. The Conservatives ask how the constitution will be a cost-saving exercise, but it is not intended to be a cost-saving exercise. All too often, the Conservatives are obsessed with how to make cuts in the NHS. They have recently made statements that indicate how they want to make cuts across the board—

Stephen O'Brien (Conservative, Eddisbury)

Anything but.

Edward O'Hara (Labour, Knowsley South)

Order. The Minister has got away with enough so far.

Stephen O'Brien (Conservative, Eddisbury)

I can but try, Mr. O’Hara. You quite rightly bring me back to order.

The aim of the reviews is not to cut costs; it is to empower patients and staff through greater understanding of their rights and responsibilities. We do not want to single out particular areas or services in the reviews—they must be looked at as a whole. As the hon. Member for Romsey pointed out, if we start picking services, we could leave others off the list. She rightly identified some services that the Conservatives have left off their list.

Sandra Gidley (Liberal Democrat, Romsey)

The Minister reads his briefing notes very well, but I must admit that his mention of podiatry rather incensed me, because podiatry services are non-existent in some parts of the country. I am sure that he wants to get out and about to meet people, so I invite him to Hampshire to witness podiatry services—I would not quite use the phrase “in action”. He will see that there is a problem. It is not the thrust of the Bill, but after we have finished our deliberations on it, it might be nice for him to get out a little more.

Stephen O'Brien (Conservative, Eddisbury)

I welcome the hon. Lady’s offer to take me out, but I will decline for the moment. I remind her that the aim is to launch a podiatry services package later this year, with the publication of guidance for commissioners and providers of foot care services. When that happens, perhaps she will see that the Government are focused on the issue as she would like.

Amendment 114 would be out of kilter with the purpose of the reviews of the handbook. It is not designed to go further than assessing the helpfulness of the document itself. A review is not a broad review of every service, and the measure is about looking at the document and determining whether it fulfils the role that was intended for it.

On amendment 115, the Secretary of State may make minor changes to the handbook at any time to bring it into line with current departmental policy or changes in the law, to ensure that the handbook is always up to date. It would not be appropriate to impose a requirement on the Secretary of State to consult on such changes. The handbook is not intended to be a legal document as such; it is merely guidance for the general public. Any changes to the law or to departmental policy that are more significant would, in themselves and by their very nature, trigger consultation requirements, either by virtue of statute, or to comply with the Government’s code of practice on consultation, or because we would be expected to consult. We have therefore decided not to include that as part of the requirement.

When reviewing the handbook, we will certainly continue informally to involve patients, the public and other groups and parties who have contributed to its development. However, we do not want to impose a formal duty to consult every time that there is a minor change. It is important that the handbook is regularly updated. On the statement of accountability, as I have previously mentioned, it is a public-facing and factual document that explains roles, responsibilities and accountability in the NHS. To require the Secretary of State to consult on it would be inappropriate, and the changes would merely bring it in line with the current structure of the NHS. Such changes, not the document itself, should be the subject of consultation. I hope that those explanations will lead to the withdrawal of the amendment.

Stephen O'Brien (Conservative, Eddisbury)

I listened to the Minister with some care. He was unusually opportunistic in suggesting that I am obsessed with cost savings. I will not go down the wholly inappropriate and erroneous route that that he went down. The Government have been keen to reverse the declining productivity in the NHS, and we thought that it would be helpful to discuss that.

I would also like to draw attention—I could do this during the stand part debate, but I might as well cover it now—to something that is not the subject of an amendment. Paragraph 86 on page 18 of the explanatory notes centres on clause 5 and mentions how the Department intends to use the reports on the effect of the NHS constitution to assess what further measures are required. I am a little concerned by the use of the word “Department”, because normally it is either the Government or the Secretary of State who are involved. I will not press the issue—I dare say that there is an explanation—but I wanted to ensure that it was highlighted.

I am particularly grateful to my hon. Friend the Member for Isle of Wight for highlighting the situation of members of an island community who do not want to have to travel by ferry to access services. It is important that that is seen as a community interest that needs to be supported by public services. He also made the important point about access to NHS dentistry services. We want to ensure access to services, rather than simply concentrate on the quantity of particular people’s visits and the absence of access by others.

I am also pleased that the Minister made a semi-announcement that Diabetes UK’s campaign on podiatry services will bear some fruit and that an announcement will be made later this year. That will be extremely welcome news to Diabetes UK and the many others who have vigorously and rightly campaigned for such a focused and strategic uplift of such services.

I remain concerned that we have not received the strong answer for which I had hoped in response to the amendments. Indeed, I had hoped that the Minister would adopt the amendments.

Mike O'Brien (Labour, North Warwickshire)

Perhaps I could strengthen my answer by mentioning a point that I did not refer to earlier. The total cost from the inception to the completion of the constitution was just under £1 million.

Stephen O'Brien (Conservative, Eddisbury)

I am grateful for that, because it means that I will not have to ask that question again. The figure is useful and is now on the record. I also want to address the implied criticism from the hon. Member for Romsey when she said that she did not fancy the word “may”. It would not be appropriate for the Government, as the Bill’s promoters, or for my hon. Friend the Member for Hemel Hempstead and I, as the amendment’s proposers, to bind the hands of any kind of review. Inevitably, that is in the conditional, or the subjunctive to be more precise, and it is important to note that it is about guidance, rather than legal force. I made the clear distinction of saying that there were three items, but that is inclusive—it was not intended to be exclusive. I thought that those were three good examples that would help to highlight the matter. In considering that we should flag up our intent, perhaps for no other reason than emphasis, and despite recognising that the Minister has given some partial answers, I would like to press the amendment to a vote.

Clause 6

Stephen O'Brien (Conservative, Eddisbury)

I beg to move amendment 116, in clause 6, page 4, line 26, at end insert—

‘(1A) The Secretary of State must report every year on the delivery of the pledges in the NHS constitution.’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following: amendment 117, in clause 6, page 4, line 27, after ‘report’, insert ‘(a) under subsection (1)’.

Amendment 14 , in clause 6, page 4, line 27, leave out ‘5 July 2012’ and insert ‘31 March 2010’.

Amendment 118, in clause 6, page 4, line 27, at end insert—

‘(b) under subsection (1A) must be published not later than 31 January 2010.’.

Stephen O'Brien (Conservative, Eddisbury)

The clause states:

“The Secretary of State must publish a report every 3 years on how the NHS Constitution has affected patients, staff, carers and members of the public, since the last report was produced under this subsection.”

Were the amendments to be made, the clause would require the Secretary of State to report every year on the delivery of the pledges in the NHS constitution, and that the first report must be published not later than 31 March 2010, or, under proposed subsection (1A), not later than 31 January 2010. The amendments are designed to strengthen the review of the NHS constitution.

Amendment 116 takes issue with the concept of a pledge in the constitution, which is rather weakly indicated by the word “pledge” in brackets. How effective would the US constitution be if it stated, “We the people establish this constitution for the United States of America (pledge)?” Surely a constitution is something one either does or does not do. What place do pledges have? I hope that the Minister will be able to give us the benefit of the thinking that lies behind that, because “pledge” in this context is a relatively weak word, although in other contexts it is not.

It seems fitting that the Secretary of State should have to report every year on the delivery of the pledges, which would be achieved by amendments 117 and 118, which propose that the date for the first report should by 31 January, one year after the constitution was signed with great flourish in Downing street by the Prime Minister before it appeared in the Bill, and indeed before consideration by either House of Parliament.

Amendment 14 seeks to have the first review undertaken and published on or before 31 March 2010 rather than 5 July 2012. Clearly, that is designed to make real what is contained in the Bill and to ensure that there is public accountability in advance of the general election. That date has been chosen to ensure that the matter is not shuffled off until after a general election and that the accountability that is envisaged under the Bill is produced in time for the public to have their say in the general election, which we all know must be no later than June 2010.

Sandra Gidley (Liberal Democrat, Romsey)

I have no problem in principle with amendments 116 and 117, but I was curious about amendments 14 and 118. I am glad that the hon. Member for Eddisbury has explained that the intention is for this to take place ahead of a general election. I think that is the wrong approach to take because, yet again, it makes the NHS a political football at a time when Conservative Members keep telling us the NHS is too politicised. There seems to be some contrary thinking on those Benches.

My major objection to the proposed date is that it is far too early to have a realistic review. I would support a little bit of electioneering if I felt that it was fair to the NHS staff, but it takes a little while for something to bed in, so any date that is within a year of the enactment of the Bill is too early and any information gleaned would be of limited value. There will be far more important debates to be had at the general election than the NHS constitution.

Mike O'Brien (Labour, North Warwickshire)

To some extent the point has already been made by the hon. Member for Romsey, but the situation is even worse than she has suggested. The duty in the Bill with regard to the constitution is not expected to come into force until January 2010, subject to its progress through the House, so the Conservatives appear to be proposing that the NHS should undertake a new layer of bureaucracy so that, a mere two months after the duty on the organisation comes into force, it has to review and publish an examination of its effect. They are not even allowing time for the constitution to be read and digested by those who work for the NHS, never mind having to perform the significant administrative task of reporting back.

We do not want to place an excessive administrative and regulatory burden on the NHS, as the Conservative proposal would do. Reporting once every three years will maintain momentum while still allowing time for the constitution to embed and to gather some meaningful evidence. The amendment is mere political opportunism by the Conservatives, who think they will perhaps get something out of it when, in fact, they would be imposing an administrative burden on the NHS.

As for amendments 116 and 118, there is no need to create a separate reporting process for the pledges. That would again create an unnecessary bureaucratic burden on the NHS. Three-yearly reports will cover the pledges as well as every other part of the constitution. We must not forget that the pledges represent existing departmental policy. Many of them therefore have their own reporting requirements, such as waiting times and cleanliness pledges. We know what they are. Why impose an extra bureaucratic burden? If the Conservative Front Benchers want to talk about regulation, let them look at the mote in their own eye; they are creating more administrative regulation than the NHS can stand. Let us deal with these issues in a much more sensible way and not try to use them for mere political opportunism.

Stephen O'Brien (Conservative, Eddisbury)

If the Minister is asking me to remove the mote from my eye, I hope that he will remove the three oak facsimile beams from his own eye. I dare say he knows precisely where that comment comes from—it is from the great big book.

I listened with care to what the Minister said, which was an interesting exposition of what I wanted to establish, which was the nature and quality of the pledge that lies behind the measure. Although it is important to recognise that, to a degree, we need to be conscious that, whatever we do and however much we may wish to remove so much of the discussion about the NHS from the political fray, as the hon. Member for Romsey said, there is of course the reality of electoral time scales, over which most of us have very little control. I simply wanted to establish the quality of the pledge that is in place, to ensure that the measure is outward-facing rather than self-serving, either within Government or within the Department, and to ensure that there is a degree of accountability that would refract back on to the people who sent us here.

Sandra Gidley (Liberal Democrat, Romsey)

I would have some sympathy with the hon. Gentleman’s arguments if an election was a year hence and an amendment was tabled to bring a report after a year, which is not an unreasonable length of time to have an early review. However, I am sure that he must accept that a period of two months—I had not realised that it was quite so short a time—is unhelpful and would provide little meaningful information.

Stephen O'Brien (Conservative, Eddisbury)

The point that I was about to conclude on is this. Having had this discussion, it is clear that there are some grave difficulties about the timetable, simply because we are bumping up against the final moment at which the Prime Minister has to make up his mind about when he is prepared to call upon the country to endorse his position or not endorse it. It strikes me that it would be inappropriate to press the matter to a Division, because I think that it has been a useful discussion, so I beg to ask leave to withdraw the amendment.

Clause 7

Stephen O'Brien (Conservative, Eddisbury)

I do not intend to revisit any of the issues that we have discussed. However, it would be helpful to place on record my concern that the Bill, and in particular the drafting that we have looked at in relation to the constitution, do not give fair weight to an important issue—one to which I certainly give weight and, judging from the Minister’s earlier response, one to which he also intended to give weight. We must show that we genuinely value social care as much as we do health care. Because we are dealing with NHS services in NHS provision and therefore with an NHS constitution, there is a real danger, simply by referring to the document, of making a social care a second order area. It is difficult to attach an equivalent importance to social care in the absence of a social care constitution.

I recognise that we are all governed by the very high expectations that the Government have encouraged us to have of the Green Paper, whose publication is imminent. That said, however, we need to recognise that social care is likely to be regarded as an untouched and slightly under-discussed subject; it may even be the Cinderella of the two aspects of care, even though it is so important to so many people. Although primary care deals with 95 per cent. of people who access health care, in the end social care tends to affect all of us, in one way or another, during the course of our lifetime. It is vital that we place on record—the point is best made in a stand part debate—that we want the social care aspects of the Bill to stand on equal terms with health care. Although it is difficult to see how that could be incorporated on the same footing, through our discussion of the Bill and this stand part debate, we can at least make sure that our intention is on the record. I shall be interested to see whether other members of the Committee feel equally strongly about that.

Mike O'Brien (Labour, North Warwickshire)

We certainly regard social care as enormously important and on a par with health care. For much of the time, the two are inextricably linked. We take the view that that needs to be an important focus of Government policy, which is why we have been preparing the social care Green Paper. Given the importance of the issue, we will be publishing that shortly to ensure that we have a full and appropriate national debate.

As far as the issue of an NHS constitution is concerned, we do not propose to have a social care constitution because we do not have a national social care service; we have a national health service, and that requires a constitution. However, that should in no way diminish the key importance that social care should, and does, have to the Government.