Health and Social Care Bill

House of Lords, 7 November 2011.

Committee (3rd Day)

Lord Rix (Crossbench)

My Lords, five of the-

Baroness Anelay of St Johns (Conservative)

My Lords, I take this opportunity again to remind colleagues that as they are leaving the Chamber they should, in courtesy, not walk in front of the noble Lord, Lord Rix, as they are doing at the moment, but should leave by the other exit. It is considered discourteous to interrupt a speaker.

Lord Rix (Crossbench)

Thank you. Five of the six amendments that I have tabled to the Bill have been grouped together. I welcome the opportunity to raise some specific concerns about the Government's health reforms in relation to learning disability. I should also like to thank the Minister, who recently met the noble Lord, Lord Wigley, the noble Baroness, Lady Hollins, and me, along with representatives from the Royal Mencap Society, of which I am president, to discuss our concerns in more detail.

As I made clear during my contribution at Second Reading, people with learning disabilities already have worse health outcomes than the rest of the general population. Mencap's 2007 report, Death by Indifference, highlighted the neglect that was faced by six people who were treated in the NHS, leading to their deaths, which were entirely avoidable. Since then, many parents have approached Mencap to recount the indifference, prejudice and ignorance that is displayed towards people with a learning disability when being treated by the NHS. The purpose of the various amendments that I have tabled to the Bill is to address this problem.

First, Amendment 13 would ensure that the Secretary of State for Health has a clear duty to improve the quality of services for people with a disability. This is a prerequisite if the health inequalities to which I have previously referred are to be reduced and entirely removed as soon as possible. We hear a great deal from the Government about the importance of local decision-making, empowering patients and more opportunities for clinicians to make their input. In principle, I do not object to these intentions but they must not be at the cost of removing the accountability of the Secretary of State. By placing a duty on the Secretary of State to improve the quality of services for disabled people, I hope greater priority will be given in government to making this happen and seeing improvements on the ground.

My second amendment, Amendment 81, aims to ensure that health services for those with the most complex needs are commissioned by the NHS Commissioning Board. I am concerned that, since the numbers of those with the most complex needs, particularly those with profound and multiple learning disabilities, are likely to be relatively small, clinical commissioning groups may not commission those services that are deemed to be insignificant. We already know that the commissioning of services for people with complex needs by primary care trusts has been patchy. It is questionable whether commissioning led by clinical commissioning groups alone will lead to any great improvement on this issue. My amendment would ensure that the NHS Commissioning Board has oversight in this area, including the co-ordination and commissioning of services and facilities for this very specialist group of disabled people.

The third amendment tabled in my name, Amendment 117, concerns the importance of collecting data on the experiences and outcomes of all patients in the NHS. Where a patient has a disability, it would also ensure a breakdown of disability by impairment type. This will provide a bank of information that could be disseminated and used to inform future NHS decision-making to ensure that it accurately reflects the expectations of those it seeks to serve. It would also help to ensure that clinical commissioning groups, the NHS Commissioning Board and the Secretary of State are more accountable for their decisions and better placed to improve such decisions. Without the collection of this data, including the impairment type for disability, it will be difficult accurately to assess what is happening to people with a learning disability and other disabled people within NHS treatment.

The penultimate amendment in my name in this group, Amendment 143, relates to accessibility in relation to public involvement and consultation by the NHS Commissioning Board. I welcome the direction of Clause 20, to which my amendment relates, because it is essential that the board is accountable to the public to ensure that its functions and decisions are subject to the correct level of public scrutiny, openness and transparency. However, I am concerned that this accountability would be limited if the means by which it achieved draws only on the views of a narrow cross-section of society. I am specifically referring to the need to include people with a learning disability, people with communication difficulties, the elderly, people with visual impairments-which, I regret, I have at this precise moment-and those with hearing difficulties who might require alternative formats or means of communication such as Braille or Easyread in order to influence decisions taken by the board.

Such individuals are disproportionately more likely to be more frequent users of the NHS, and therefore have a particular justification in wanting to have their say in the commissioning arrangements. I am seeking assurances that steps will be put in place to ensure that reasonable adjustments are made by the Commissioning Board to ensure that this participation is proactively addressed.

The final amendment in this group, Amendment 245, tabled in my name, will place a duty on the Secretary of State to ensure that his or her annual report to Parliament on the performance of health services in England includes progress in tackling health inequalities for people with a disability. For example, there has been some progress in improving healthcare outcomes for people with a learning disability, but that progress remains inconsistent and disparate, with variances in equality of health outcomes continuing to exist for many disabled people.

More needs to be done if the NHS is to improve its record in this area. The need to tackle this issue has been acknowledged by the Secretary of State for Health-hence his recent announcement that he plans to provide GPs and the new clinical commissioning groups with the practical support necessary to improve their understanding of the needs of particularly vulnerable groups. This work is to be led by the Royal College of General Practitioners, which is recognition of the importance of trying to provide better healthcare for all. The existence of a statutory duty on the Secretary of State to report on progress made in the NHS in tackling health inequalities would act as an important driver in improving healthcare for all.

In light of the various amendments tabled in my name and those of my noble friend Lady Hollins and the noble Lord, Lord Wigley, I look forward to hearing the Minister's response to the issues that I have raised. I beg to move.

Baroness Hollins (Crossbench)

My Lords, I support the amendments of my noble friend Lord Rix. He made reference to people with learning disabilities and in particular expressed concern about people with complex needs. I should like to say a little more about people with learning disabilities who have challenging behaviour. It is estimated that as many as 40 per cent of people with learning disabilities may present behaviours that are challenging to family and other carers. These behaviours can be so intense and frequent as to have a major impact on the quality of life of the individual and their families.

People who present severe behavioural challenges are among the most disadvantaged and marginalised individuals in our society and are at much greater risk of exclusion, institutionalisation, deprivation, physical harm, abuse, misdiagnosis and exposure to ineffective interventions. Their carers are subject to physical harm, psychological ill-health, physical ill-health and to an increased burden of care and financial consequences. It can also have an impact on their employment prospects and quality of life.

Commissioners, policymakers and providers all face escalating costs and risk undermining national policy. Providers face high staff sickness and turnover, service breakdown, scandals and exposés such as the recent "Panorama" programme about Winterbourne View in Bristol and previous scandals in recent years in Cornwall and Merton and Sutton.

Back in 1993, Professor Jim Mansell emphasised the need for commissioners of health and social care to work together to provide good support and services for this group of individuals. He recommended locally based, individualised packages of care. He suggested that the environments where people are cared for should be skilled and capable of maintaining support for the long term. He revised his report in 2007 for the Department of Health and made the same points because insufficient progress had been made. He and others, such as the Challenging Behaviour Foundation, have made it very clear that large institutional provision is not the answer, yet many people with learning disabilities have care packages commissioned within such institutional care, mainly in the independent sector, funded by the NHS and by social services. These placements are often far from home. They have little guarantee of high-quality, skilled care and are vulnerable to the kind of restrictive practices that have been revealed time and again in a variety of high profile exposés. This care is often very high cost, as well as not delivering good outcomes for people.

A recent publication entitled There Is an Alternative, published by the Association for Supported Living, makes a strong argument for local, community-based support, saying that it is more successful and cheaper than specialist in-patient provision. However, for that to happen requires vision, commitment and a will to make it happen. It cannot be achieved without the will of effective local commissioners, a will that must be expressed in decisions to invest in local community-based services, rather than to farm out problem cases to expensive out-of-area placements-what in the world of learning disability we know as the "crisis Friday afternoon very expensive mistaken placement". Most successful supported living services have their roots in commissioners' decisions to invest in that service model, acting on sound demographic knowledge of the communities they serve and the needs and wishes of the people with learning disabilities who live within them.

I am sure that health and well-being boards will have an important role in thinking about the needs of their population with learning disabilities in that way. However, it is clear that there need to be good lines of accountability in future. There is a worry that local clinical commissioning groups will not be able to commission adequately when specialist services are needed. They will have to be able to address a comprehensive local strategy that can deliver early intervention, timely and skilled professional expertise and support, competent and high-quality providers of individualised support and services, flexible crisis intervention services, such as psychological therapies, which are very underdeveloped for that group of people, and psychiatry, which can build the support required for each individual-real individualised care. The numbers of individuals are relatively small but they can be very high cost if the services are not planned well.

It is essential that the needs of this group of individuals are specifically considered within the new commissioning arrangements. I always say that if we can get it right for people with learning disabilities and complex needs, we can get it right for everybody else. There may be an argument for looking to the National Commissioning Board to take this overall responsibility without compromising the need to find ways to ensure local responsibility-the delivery of creative, flexible and local solutions to meet the needs of individuals and families within their own communities. This is quite a challenge, which is why I have gone to such lengths to explain the problem faced by this complex group of people. I ask the Minister to comment on how such services might be commissioned in the future.

Lord Newton of Braintree (Conservative)

My Lords, perhaps I may intervene briefly in support of the general thrust of the amendments without necessarily saying that I agree with every dot and comma. I also agree, not least, with the remarks of the noble Baroness, Lady Hollins. The noble Lord, Lord Rix, and I have known each other for quite a long while in the field of learning disabilities and, indeed, through my role many years ago as Minister with responsibility for disabled people, so I am happy to lend a sympathetic word on this point.

I ought to declare an interest in that several times I have told the House that I am the chair of a mental health trust. Of course, mental health trusts often deal with learning disabilities as well, as indeed does the health trust that I chair, although happily last year it transferred most of its residents on old-style campuses to Suffolk County Council for a more complete version of genuine living in the community and community care, and I am rather pleased that we did that.

We need to recognise that, although there are overlaps-the word "co-morbidities" is used in one of the amendments-between mental illness and learning disability, they are not the same, and we need to make sure that we take particular and appropriate account of the needs of learning disabilities in all this. I hope that the Minister will be able to assure us that that will be the case.

Lord Beecham (Labour)

My Lords, I begin by congratulating the noble Lord, Lord Rix, who has been such an outstanding champion of people with disabilities, alongside my noble friend Lord Morris of Manchester. The two of them have been in the vanguard of public policy-making and of informing and involving people in this crucial issue.

The noble Lords, Lord Rix and Lord Newton, both implied that learning disability is something of an overlooked condition. The noble Lord, Lord Rix, referred to the degree of prejudice and ignorance surrounding learning disability, which sometimes leads to the rather disgraceful treatment of individuals who suffer from that complaint, as we read from time to time. It is therefore right that they should be included in this broad request for the Secretary of State to have a duty to promote the equality of and improvement in treatment for people with all kinds of disability.

The noble Lord, Lord Rix, and to a degree the noble Baroness, Lady Hollins, questioned whether this might be rather too much of an issue for local commissioning groups to undertake. I am not so sure about that, and think that this area needs exploring. After all, the general practitioners, who will be a significant part of clinical commissioning groups locally, are the first line of service providers for people with a disability, and I am not clear that a commissioning body operating nationally would be the appropriate mechanism to promote such commissioning. Something like the shortly-to-disappear SHAs might have been, and it is not clear-at any rate, to me-the extent to which the national Commissioning Board will be operating at that sub-national level in the future. However, at all events, somebody has to assume an overarching responsibility, and local authority health scrutiny committees should certainly be ensuring that this group is not neglected in their statutory responsibility of reviewing the efficacy of local arrangements and local provision.

The noble Lord referred to the important issue of data collection in Amendments 117 and 143 and of drawing on the experience of people with the condition. I think that he would probably accept my suggestion that both of the amendments would be slightly improved by reference to carers, as their experiences should also be shared and brought into the picture. The amendments suffer a slight defect which I believe the noble Baroness, Lady Hollins, implicitly touched on. The amendments relate very much to the clinical and medical side of the conditions with which the amendments are concerned, but, of course, there are other agencies and other services that are important and must play a part in improving life for people with any of the range of conditions covered by the amendments.

The role of local authorities can and should be very important in this respect. There will be a locus for involvement through the health and well-being boards in the preparation of joint strategic needs assessments which would, of course, cover this group. However, there is a range of local authority services-not least housing, a service carried out by district councils in two-tier areas-which will not necessarily be included in the commissioning groups, a matter to which we might revert later. There is also the question of the provision of aids and adaptations, leisure, educational services, transport, community safety and possibly, pending the introduction of a new structure for welfare reform, access to benefits through the support of welfare rights services. Clearly, all those matters can influence outcomes and the quality of life of a significant number of those whose needs the amendments seek to address.

It will be interesting to hear the Minister's replies to the observations made by noble Lords in proposing and supporting the amendments. It is important that there should be a reference to this group in the Bill, as that would send precisely the right signal to them, to their carers, to society at large and to decision-makers at all levels. If the Minister cannot accede to the amendment today, I hope that he will agree to take it away and come back on Report with something that would satisfy that particular need.

Earl of Listowel (Crossbench)

My Lords, my noble friend Lord Rix's amendment on children with complex needs and the special services that they need reminds me of a visit that I made a few years ago to a service run by the National Society for the Prevention of Cruelty to Children. This service was for a small and unpopular group of children who sexually harm other children and the manager said that it was very difficult to determine who should fund it. The primary care trust did not want to fund it. However, it was a vital service which intervened early in children's lives and stopped them from continuing their harmful behaviour towards other children into adulthood. The matter is relevant to this debate because the victims of sexual harm are often children with learning disabilities, and the children who perpetrate sexual harm are also more likely to come from the learning disabled group. We need to be reassured that services like that will find a home in the new arrangements. I look for reassurance from the Minister that that will be the case.

Earl Howe (Conservative)

My Lords, I am sure that all Members of the Committee will join me in expressing our admiration for the long record of the noble Lord, Lord Rix, in championing the cause of disability rights. They will have had a great deal of sympathy with what he and others have said in this debate.

The Government are committed to improving the lives of people with learning disabilities and the lives of their carers and families. Since we last had a debate of this kind in the context of a health Bill, the legislative backdrop has changed in a very material and important way. I am referring, of course, to the Equality Act 2010. The public sector equality duty in Section 149 of that Act requires public bodies to consider the impact of policies and decisions on particular groups across the protected characteristics. It also requires public bodies to have due regard to the need to eliminate discrimination and to advance equality of opportunity. This general public sector equality duty came into force in April 2011. This means that public bodies such as commissioners, local authorities, health trusts, other providers of NHS services and regulators need to understand how different groups are affected by their policies and practices across all protected characteristics, including disability, and ensure that they routinely use equality data in order to have due regard in their decisions. Furthermore, public authorities need to have a clear evidence base from which they can determine and set clear and measurable equality objectives in line with their specific duties in regulations made under Section 153 of the Act.

Sections 29 and 39 of the Equality Act 2010 prohibit discrimination against disabled persons, whether direct or indirect, by NHS employers, providers of health services and persons exercising other NHS functions. There are, in addition, important duties that apply to the NHS in relation to disability discrimination and reasonable adjustments which public bodies must make. Duties to make reasonable adjustments in relation to employment or the provision of services are set out in Sections 20, 29(7) and 39(5) of the Equality Act. The purpose of these duties is to ensure that employers and service providers have a positive and proactive duty to take steps to remove or prevent obstacles which may place a disabled person at a disadvantage in comparison to a non-disabled person.

This Bill plays its own part in helping to ensure that the care system delivers these commitments and improvements. It introduces new duties in relation to quality and fairness. It creates underpinning legislation for the NHS outcomes framework, which links to the public health and social care frameworks, and that will shine a light on the experiences of all patients and service users, including disabled people. The Bill brings clarity to quality through NICE quality standards that describe high-quality care along a pathway addressing the key issue of co-morbidities. The changes to the regulatory framework give Monitor a role in Clause 59 in relation to improvement in quality and fairness, as well as efficiency. The Secretary of State's annual report will be closely linked to the objectives that he sets for the NHS Commissioning Board and Public Health England. These are likely to evolve over time to meet changing health needs.

Because the new duties relating to quality and the reduction of inequalities apply to a number of bodies in the system, it would seem logical to include these aspects in the annual report. I can give an assurance that we have every expectation that the improvement of quality and the reduction of inequalities will be key reporting themes in the Secretary of State's annual report.

Our starting point is that people with a learning disability are people first. They have the right to lead their lives like any others, with the same opportunities and responsibilities, and the same dignity and respect. There is a clear policy framework towards people with learning disabilities, including those with profound and multiple learning disabilities and behaviour that challenges. Valuing People, published in 2001, set out the previous Government's commitment to improving the lives of people with learning disabilities, and set out the core principles of rights, independence, choice and inclusion. In 2009, that Government reaffirmed these principles in Valuing People Now. The coalition Government have also endorsed them. Key areas include improving outcomes for people with learning disabilities and their family carers around health, housing and employment, in particular enabling people to live healthier and for longer, including by improving access to high-quality healthcare, helping people to secure and stay in employment and supporting people to live in their own homes, including closing NHS campuses.

The first NHS outcomes framework signalled a number of important areas that needed to be included in it in the future. One of those areas was to understand and measure good outcomes for people with learning disabilities. The existing data and data collections do not easily allow outcomes for people with disabilities, including learning disabilities, to be identified. To help rectify this my right honourable friend Andrew Lansley launched the innovation in outcomes competition earlier this year to try to help to fill these gaps. I am delighted that we received some extremely helpful suggestions for how we might incorporate outcomes for people with learning disabilities in future iterations of the framework.

In addition to the NHS outcomes framework, the mandate is a mechanism through which it may be possible to draw attention to the importance of improving the quality of services and outcomes for people with learning disabilities. Improving outcomes for people with learning disabilities and their family carers is about making change happen at a local level for all people. It needs the full commitment of the full range of service providers and agencies across all sectors that need to work in partnership to plan, review and commission strategically.

As was well emphasised by the noble Lord, Lord Beecham, local authorities and health bodies are required to develop a joint strategic needs assessment and to commission services to address those needs. Joint commissioning with local authorities in relation to care and support for people with learning disabilities will help to support them better. We expect services delivering support to people with learning disabilities to act to ensure they are fully compliant with the law, especially the Equality Act 2010.

I turn now to the noble Lord's amendment to Clause 12. This clause allows the Secretary of State to make regulations requiring the NHS Commissioning Board to commission certain services that it would be less appropriate for clinical commissioning groups to commission. One of the reasons for giving GPs within clinical commissioning groups responsibility for commissioning NHS services locally is their unique position as the gateway by which patients access the majority of NHS services. However, there are some services that patients do not access via their GP, and there are others, for patients with rare conditions which are high cost and where clinical expertise needs to be concentrated, that require them to be commissioned and organised separately. For those services we believe that it would be better for the NHS Commissioning Board to take the lead. Dental services and services for members of the Armed Forces and for persons detained in prison or other accommodation of a prescribed description were included in the Bill because there was a clear policy intention for the board to commission the majority of services in these areas, and they could be easily defined in broad terms in primary legislation. This was confirmed by the consultation process on the implementation of the NHS White Paper and in the subsequent Command Paper.

Clause 12 provides that regulations may require the board to commission such other services or facilities as the Secretary of State considers it appropriate for the board rather than clinical commissioning groups to commission. The intention is that this would include specialised services for very rare or rare conditions where different arrangements currently apply because of their low volume and high cost. Currently, these services are either commissioned nationally by NHS London or regionally by primary care trusts working through collaborative commissioning arrangements with their specialised commissioning groups. In deciding what services it would be appropriate for the Commissioning Board to commission directly, the Secretary of State would be required to take into account a number of factors. These four factors are set out in Clause 12.

For services such as those for people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services, it is expected that some services will be considered specialised and therefore should be commissioned nationally. This is the specific question posed to me by the noble Baroness, Lady Hollins. Some services will not be considered specialised and should be commissioned by clinical commissioning groups working with local authorities.

The services included in the regulations could change over time as new services develop, existing specialised services become more common, and so on. The point here is that there is flexibility for the Secretary of State to take account of these changing factors and to require the board through regulations to commission certain services in a way that primary legislation does not.

We do not think it would be suitable to include services for people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services in Clause 12, although I hope that what have said is helpful in this context. We have, however, set up a clinical advisory group to make recommendations on an initial list of specialised services that will be directly commissioned by the board and tested against the four factors set out in Clause 12. That work is progressing and no final decisions have been made, but I can assure the noble Lord that the CAG's considerations have been based on the premise that the specialised services national definition set will form the solid basis for the specialised services included in the regulations. The current SSNDS includes a number of services that people with profound and multiple learning disabilities and people with complex needs whose behaviour challenges services can access. That includes specialised neurosciences services for adults, specialist mental health services and specialist services for children. I am looking particularly in the direction of the noble Earl, Lord Listowel.

On Amendment 117, the general public sector equality duty already requires public authorities to pay due regard to eliminating discrimination and advancing equality of opportunity. The Bill imposes additional, health-specific duties in relation to reducing health inequalities. In practice, this would entail collecting and analysing data to understand the needs and experiences of people using their services according to their protected characteristics. Furthermore, the NHS outcomes framework will include a number of measures of patient experience. Wherever possible these will be broken down by protected characteristics in order to promote a renewed focus on tackling inequalities in outcomes from healthcare services.

The framework provides a mechanism by which the Secretary of State can hold the NHS Commissioning Board to account for the outcomes that it is securing for patients. The board will be under a duty to assess the outcomes achieved by clinical commissioning groups for their local populations. It will be expected to discharge this duty in ways that support reductions in inequalities and promote equality. I am afraid that I do not think it would be appropriate to give greater emphasis in the Bill to some protected characteristics and not to others.

On Amendment 143, the noble Lord, Lord Rix, should be assured by the fact that the Government are committed to involving patients and the public in decisions about health services that are being or may be provided to them. As I have already indicated, the general public sector equality duty already requires public authorities to pay due regard to eliminating discrimination and advancing equality of opportunity. The Bill imposes an additional health-specific duty in relation to reducing health inequalities. The means through which to involve and consult must be capable of reflecting the needs of all members of the community.

The health inequalities duty on the board, as on the Secretary of State and clinical commissioning groups, will require it to act appropriately in order to comply with its duties. The same applies to the board's public involvement and consultation duty at new Section 13P. The board will be required to involve or consult people appropriately in order to fulfil this duty and will have to have its duties in relation to equality firmly in mind when doing so.

It is clearly right that the views of people with any impairments or disabilities are appropriately sought. However, we need to bear in mind that there are other groups in the community for whom reasonable adjustments may need to be made to ensure meaningful consultation, for example those whose first language is not English. I realise that the noble Lord may consider those with learning disabilities to be a special case, but to single out one group over another would be inequitable.

On Amendment 245, I can assure the noble Lord, Lord Rix, that the Secretary of State will include in his annual report a comprehensive account of the state of the health service. I have already mentioned the duty to reduce inequalities in this context. I believe that the existing robust legislative framework, allied with the changes introduced by this Bill, will deliver demonstrable improvements in outcomes for disabled people. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.

Earl of Listowel (Crossbench)

My Lords, I thank the Minister for his helpful response, particularly with regard to specialist services for children. I was interested in his point that the advent of the clinical advisory group will help the Secretary of State in making these decisions. I should be grateful to him if he could provide an assurance that, as the name suggests, this clinical advisory group will have a strong basis of expertise, that its membership will have long practice in the fields of interest and that there will be transparency as regards the members of the group and their experience. Perhaps that is too much to ask, but having discussed these issues with him in the past over the Cassel Hospital specialist service for families with complex needs, it seems that everyone would benefit from being reassured that the people who advise the Secretary of State have a depth of knowledge in the areas and specialist fields for which they are responsible.

Earl Howe (Conservative)

I can reassure the noble Earl that the clinical advisory group is taking and welcomes expert advice from all quarters. It is taking its time to get this right. It is too soon to announce any conclusions from its work, but I have no doubt in my mind that the noble Earl's concerns will be addressed fully.

Lord Rix (Crossbench)

My Lords, after that long, complex reply from the Minister, I shall have to read Hansard from top to bottom tomorrow. He referred to many Acts, which have yet to prove their efficacy in some instances, and to all manner of directives, which I could not write down and take note of at this moment. However, I thank him for his comprehensive response. When I read Hansard, I hope that it will prove to be more than helpful.

I also thank my noble friend Lord Listowel, and my noble friend Lady Hollins, whose expert opinions and advice are both personal and professional. I should also like to say, possibly at great risk because I am surrounded by doctors and nurses, that I fear that it is only people such as my noble friend Lady Hollins who have really worked at learning disability and that students who come out of St George's know more about learning disability than perhaps many other medical students and young doctors who come out of other medical schools. Therefore, if clinicians are to be made to guide the commissioning boards et cetera on the work that has to be done for learning and disabled people, I have to say that I fear that some clinicians are rather short of experience in this area. I say this with due deference to my noble friends who are all around me at the moment and I hope that they will not clobber me when I get into the tea room after the next amendment.

I also thank the noble Lords, Lord Beecham and Lord Newton. I was very glad to have support from both sides of the House. The noble Lord, Lord Newton, and I have discussed learning disability for many years. I was very glad to hear from the noble Lord, Lord Beecham, who is new to me, and to have his support. Without further ado, I look forward to reading Hansard tomorrow and to consulting my colleagues, my noble friends Lady Hollins and Lord Wigley, and all the people at Mencap and other devoted charities. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendment 14 not moved.

Amendment 15

Moved by Lord Patel

15: Clause 2, page 2, line 19, after first "the" insert "health"

Lord Patel (Crossbench)

My Lords, I shall speak to all the amendments tabled in my name, but before I do so I should like to thank all noble Lords who have joined their names to these amendments-and of course there are amendments tabled in their names as well. Given the size and complexity of the Bill and what it covers, my amendments may well appear to address minor issues, but on reading the Bill in detail-I have read it line by line-it occurred to me that there are some fundamental omissions, even if they concern only a single word. I must ask why, when the Bill is supposed to implement a reorganisation of the health service that will deliver world-class health outcomes, such important issues have been missed out.

I shall address each amendment tabled in my name, and take Amendment 15 first. Clause 2 will insert a new clause covering the Secretary of State's, "Duty as to improvement in quality of services".

New subsection (2) states:

"In discharging the duty under subsection (1) the Secretary of State must, in particular, act with a view to securing continuous improvement in the outcomes".

It makes no sense to me if the word "health" is not inserted before the word "outcomes". We are talking about the health outcomes that are achieved from the provision of services. Equally, new subsection (4) states:

"In discharging the duty under subsection (1), the Secretary of State must have regard to the quality standards prepared by NICE".

I wonder why the word "clinical" is not before "quality standards" so as to emphasise that these have to be clinical quality standards. I am well aware that NICE produces technology assessments that are often referred to as technology standards, and that it writes standards in other areas, but they are all for the purpose of refining clinical care or developing eventual clinical quality standards that deliver clinical care.

Perhaps I may say with some humility that I am aware of what clinical quality standards are all about, having for five years had the job of writing them. I am also familiar with some of the clinical quality standards written by organisations that we would regard as being the best in the world, such as the MD Anderson Cancer Center in Houston, Johns Hopkins in Baltimore, Harvard, the Mayo Clinic and others, including some Australian institutions. They all refer to quality standards as being clinical quality standards, because they are what matter in the delivery of care. Apart from that, those are the standards that the Commissioning Board will use to build packages of currency that Monitor will then use to produce tariffs, so if they are not clinical standards, what are they? In my view, it is clinical standards that will deliver the outcomes we seek, so why not call them clinical standards?

Amendment 107 refers to Clause 20, which covers the duties and functions of the Commissioning Board. Proposed new Section 13E is entitled, "Duty as to improvement in quality of services". Subsection (3), which I seek to amend, states:

"The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show-

(a) the effectiveness of the services,

(b) the safety of the services, and

(c) the quality of the experience undergone by patients".

That is the definition of quality standards that we are using, but it does not mention delivering better outcomes for patients. Why are these quality standards that will deliver better outcomes for patients not the standards that we want? If we do, why do we not put them in the Bill? It will alter the culture of people who work in the health service when they read language and words such as "clinical standards" and "health outcomes" for individuals or in practice. My noble friend Lord Warner tabled a similar amendment to which he will no doubt speak.

My Amendment 109 would again introduce "clinical" to new Section 13E(4)(b) of the 2006 Act, so that "quality standards" would become "clinical quality standards". My Amendment 134 again relates to the duties and functions of the Commissioning Board. New Section 13L refers to the, "Duty in respect of research" and new Section 13M to, "Duty as to promoting integration". We have discussed integration previously, when I referred to an example of care for diabetics. New Section 13M(1) states:

"The Board must exercise its functions with a view to securing that health services are provided in an integrated way".

Why does it state "an integrated way" when it means "a clinically integrated way", as my amendment proposes? The patient will benefit from a service that is clinically integrated to deliver individual care, which will make a difference to their outcome.

Amendment 179 again refers to the functions of the NHS Commissioning Board. New Section 14Q is headed, "Duty as to improvement in quality of services". It is very important. Subsection (1) states:

"Each clinical commissioning group must exercise its functions with a view to securing continuous improvement in the quality of services provided to individuals".

Again, it misses out the word "clinical". It is the clinical quality of services provided to individuals that will deliver continuous improvement and better outcomes. Subsection (2) also misses out the word "clinical" when it refers to outcomes, which my Amendment 181 would remedy. I repeat that the use of these words establishes a culture in practice. I know from long experience that these words are important, and these amendments include them.

Lord Warner (Labour)

My Lords, I support the amendments of the noble Lord, Lord Patel. I draw the Minister's attention to the noble Lord's great expertise, of which I am sure he is aware, in the area of setting standards for good clinical outcomes. He has done this in Scotland and the Committee should take careful note of the amendments that he has proposed and which I strongly support. I shall not go over again the ground that the noble Lord has covered, but he has made a compelling case for tidying up the wording of the 2006 Act in the areas that he has suggested.

Amendment 109 is in my name and that of the noble Lord. The words that it would add to new Section 13E(3) are very important to patients. Good and speedy access to services is essential to good outcomes, but it is an issue with which the Conservative Party has played fast and loose in its efforts to distance itself from targets. In doing so, it may have made itself popular with the NHS but it has rather lost sight of the importance that access to services has for patients in terms of their view of the way in which the NHS treats them.

Good and speedy access is critical to good outcomes, and nowhere is that more apparent than in cancer services, which is why a lot of effort was put in by the previous Government, with experts in cancer, to devise the targets that were produced in this area. I am not trying to make a party political broadcast on the success of Labour's access targets, although the temptation is enormous, but to bring out the key difference in approach to access between many parts of the Chamber and the Government Front Bench. I suspect that when the Minister comes to reply, I will get a little lesson on the lines that access is a process and what we should concentrate on is outcomes. I suspect that his brief will tell us a lot about that particular issue.

I suggest that there is a different way of looking at this. Access is not just a process issue because it incorporates one of the requirements for good outcomes. Of course, no one, least of all me, is suggesting that we should be against trying to define outcomes or measuring performance in achieving those outcomes. Some of us have spent the best part of our working lives trying to deal with the subject of outcomes in a whole range of public services. But we usually struggle, as I suspect this Government will, to define the outcome appropriately and to find an appropriate measure. Often we have to wait an indecently long time for the outcome to become apparent. We are often forced back onto proxies, which usually look much more like outputs than outcomes. Performance measures on access are a good example, not least because without speedy access patients are unlikely to get good outcomes.

It is also important that we have speedy access in order to ensure that diagnosis takes place, particularly in areas such as cancer. That is why targets were used by the previous Government to drive improvements to access. One reason why they got involved in the issue of targets and access was the great public concern in the 1990s about the length of time people had to wait before they could get access to services. I am not making a party political point, but trying to get across to the Benches opposite that patients take this very seriously. They judge the NHS to a great extent on whether they can get access to services in a timely way. It is worth bearing in mind that the previous Government's targets were actually less demanding than some of the views that patients had on how long they should wait to get services. Patients were much more demanding than the NHS targets that the previous Government set for the NHS in this area.

A Nuffield Trust comparative study of access targets in north-east England and the lack of them in Scotland revealed that the English experience was better for patients both in terms of speedier access and of efficiency and cost. It also showed that targets were indeed often unpopular with NHS staff. But if we are to make a choice between popularity with NHS staff and popularity with patients, I know which side of that argument I would prefer to be on.

I know that the Government have begun to retreat, to some extent, on the issue of abolition of targets, but we need to keep speedy access to services high on the NHS agenda, particularly as the NHS moves through a period of considerable challenge. Our five little words in Amendment 109 would help to do that, and I hope that the noble Earl will feel able to accept them.

Baroness Bakewell (Labour)

I support Amendment 18B, which is also included under the heading,

"Duty as to improvement in quality of services",

of the proposed new Section 1A to the 2006 Act.

I speak on behalf of particular interest group: the old. I declare an interest. I was for 18 months the government-appointed Voice of Older People. The interest group for which I speak is large and growing larger. Some 10 million people are now over 65 in the UK. In 2034, 23 per cent of the population will be over 65 of whom 3.5 million will be of the older old-over 85. That age, 85, is significant to the amendment. The amendment is to new Section 1A(3), proposed in Clause 2, dealing with the Secretary of State's duty to seek continuous improvement in the outcomes, and it lists the relevant outcomes to be measured: effectiveness, safety and quality. We have already heard from the noble Lord, Lord Patel, and others about the important amendments to that.

Amendment 18B seeks to add a fourth consideration-and a rather odd one-which is that,

"These outcomes should not exclude sections of the population due to age".

That phrase sits uneasily here-it would sit uneasily anywhere-because it is not of a kind like any other. However, it is important for the many people who will be numbered in the data on which outcomes are based-or, rather, not listed in the data.

The NHS Outcomes Framework 2011/12, which sets out outcomes and corresponding indicators, states:

"Where indicators are included which can be compared internationally, levels of ambition will work towards the goal of achieving outcomes which are among the best in the world"-

a laudable aim indeed. However, the document goes on later to state:

"Current data collections are limited in the extent to which this is possible ... We recognise that there are certain groups or areas which the framework may not effectively capture at present, simply because the data and data collections available do not allow outcomes for these groups to be identified".

In the document's charts that show the overarching indicators, it is clear that many of the indicators stop at the age of 75. The indicators specify the mortality rates from cardiovascular disease, respiratory disease and liver disease. Thus, the data on deaths from such causes over the age of 75 are not monitored under the outcomes framework, despite the fact that life expectancy is far higher than 75.

It is also clear that many of the data are under development. I understand that, and there is work to be done. As the document states:

"This is the first NHS Outcomes Framework and ... it is intended to signal the direction of travel for the NHS".

The direction of travel for the population of this country is to have a much higher percentage of older old people. We already have more than 12,000 centenarians. Throughout debates on this Bill, I will be pressing for considerations of age to be written specifically into its provisions.

Why do we need to be so explicit? Surely we are all citizens, we are all taxpayers and, in the end, we are all patients. That is of course the reasonable case, but that is not how care is experienced. A recent report commissioned by the Department of Health concluded:

"Evidence of the under-investigation and under-treatment of older people in cancer care, cardiology and stroke is so widespread and strong that, even taking into account confounding factors such as frailty, co-morbidity and polypharmacy we must conclude that ageist attitudes are having an effect on overall investigation and treatment levels".

That was in a report published for the Department of Health. To give just a simple anecdotal example from broader practice, although the risk of breast cancer increases with age, the general-practice reminders that are sent out to women to invite them to mammograms stop once a woman reaches the age of 70.

My amendment seeks to make clear, and even overemphasise, that all outcomes include all sections of the population. Prevailing attitudes to the old require that to be spelled out in the Bill.

Lord Kakkar (Crossbench)

My Lords, I support Amendments 15 and 19, in the name of the noble Lord, Lord Patel, to which I have added my name. In so doing, I speak as a practising a clinician and I wish to emphasise the wise point made by the noble Lord, Lord Patel, about the need to ensure that the Bill describes important facets of what needs to be achieved to improve culture within the NHS.

At Oral Questions today, we heard a discussion about hydration policy. Clearly, in a healthcare system, it is important that the culture is appropriate. Therefore, an emphasis on specifying "health outcomes" and "clinical quality standards" is also important because that will drive a cultural emphasis on the fact that improvement of health is the purpose of the Bill. The failure specifically to recognise, on page 2 in line 17, the issue of outcomes being specifically those of health, and in line 27 the quality standards to be specifically those of clinical quality, is potentially an important failure that should be recognised. I hope that in responding to this debate the Minister can confirm that with the emphasis on health outcomes and clinical quality standards, the purpose of the Bill will be emphasised in the language used in the Bill.

Baroness Barker (Liberal Democrat)

I follow on from the speech made by the noble Lord, Lord Kakkar, by raising a question for the noble Lord, Lord Patel. Does he accept that if his amendments were accepted, for some of us that would run the risk of medicalisation of long-term conditions? I agree with him when he says that there needs to be a change in culture-culture is all important. What this Bill seeks to do is to break down a lot of the barriers between health and social care so that the health and well-being, in the broadest sense, of individuals, are improved. That is an enormously important step forward, not least because much of the preventive work needs to be done with the population, in terms of lifestyle and so on, to decrease admissions to the NHS. That is what has traditionally been carried out not by healthcare but by other agencies.

I throw the noble Lord a somewhat philosophical question. If his amendment were to be accepted, would that be an acceptance by the medical profession that health and social care need to work in a far more integrated fashion than they have ever done before to achieve what he would term health and clinical outcomes, to which I would add well-being outcomes?

Lord Patel (Crossbench)

My Lords, there is no conflict when I use the word "clinical" in recognising that it would encompass the totality of clinical and social care. The problem will arise that while the evidence exists to be able to write clinical quality standards, the evidence to write social standards is lacking, and we may have to develop those. That is why a distinction is made between the two. In terms of immediate outcomes for patients that are seen for medical care, the clinical quality standards will make the difference. That does not mean that I do not recognise clinical and well-being together-and I think that all doctors would recognise that. It is not medicalisation that I am after by using the term "clinically".

Lord Hunt of Kings Heath (Labour)

My Lords, this has been an interesting series of amendments. The noble Lord, Lord Patel made a very important point about the influence that legislators can have in drafting legislation on the culture of the NHS. He speaks with great experience because of his work in Scotland on the development of clinical standards, and I am sure he is right to emphasise the words "health" and "clinical" in adding to our understanding of what we seek from the National Health Service.

The point raised by the noble Baroness, Lady Barker, is very interesting. This is meant to be a health and social care Bill, although there is very little about social care in it. Indeed, the only provisions ranging around social care are bad provisions. Remarkably, we are proposing to abolish the General Social Care Council, which ought to be an uplifter of standards among social workers. I give notice that I intend to thoroughly oppose these provisions and place the regulation of social workers into a health body. I look forward to the support of the noble Baroness, Lady Barker, on that when we come to it. I would have thought that the way through is either to add well-being to this part of the Bill or to say "health, clinical and other outcomes" to meet the valid point raised by noble Baroness.

My noble friend Lady Bakewell is very keen in her Amendment 18B to ensure that in securing the outcomes set out in the Bill, we,

"should not exclude sections of the population",

on grounds of age. We look to the Minister to give us some reassurance on my noble friend's point about the overarching indicators used extensively in the department and the health service, which go up to only the age of 75. It is not good enough to say that the data are still under development and therefore we will not worry about statistics on the over-75s. One would like to think that those indicators will be revised to embrace people over 75.

Amendment 16A, which is my own amendment, relates to the efficiency of the service. It seeks to add "efficiency" to the criteria that need to be considered. I would be interested to know from the noble Earl why efficiency is not mentioned in line 23 on page 2 of the Bill. My argument would be that a measurement of a service's effectiveness may be of only limited value. One example might be the fraught question of new drugs and treatment being developed by industry and marketed indirectly to patients, for example through the sponsorship of charities that promote the case for the provision of new treatments in the NHS, and there is a strong case to make those treatments improve the effectiveness, safety and quality of experience. However, if you do not also have to consider efficiency, is there not a risk that you will not look at value for money or productivity and, in the end, not give a rounded analysis of a particular new treatment or technology?

Amendment 19, in the name of the noble Lord, Lord Patel, deals with the standards prepared by NICE under Clause 231. I hope that the noble Earl can clarify the status of NICE standards and guidelines. I have a later amendment on this matter, as do my noble friend Lord Warner and the noble Lord, Lord Patel. We have been concerned by suggestions that the Government are seeking to downplay the role of NICE and the statutory nature of its guidance on technology appraisals. I would be very grateful if the noble Earl could reassure me on that.

I remind the noble Earl that NICE was established because of the traditional delay in the health service when a treatment has been proven to be cost-efficient and effective. There was always reckoned to be a long delay from the time when it was proven to be cost-effective, efficient and clinically effective to the time when it is generally available in the National Health Service. NICE guidance was designed to speed up the adoption of such proven new treatments, technologies and drugs. I am concerned about any suggestion of returning to the bad old ways when it was up to each clinical commissioning group simply to decide on a new technology and the group not having to follow the guidance set out in the NICE technology appraisals-if that is what they are called; I think we have probably moved on from that terminology. We will of course return to that later on in the Bill, but some assurance would be welcome.

I turn to my noble friend Lord Warner's Amendment 109. I never understood the Opposition's opposition to waiting time targets in the NHS. I remind the Minister that when his Government last left office they had the patients' charter, which had a waiting time target of 18 months that they did not achieve. We got it down to 18 weeks, which had a hugely beneficial impact on patients. There is no doubt, if you look at regular polling, that the NHS was in very good condition in 2010 because to all intents and purposes the dreadful waiting that had been such a product of the NHS over many decades had been radically reduced.

We know that there is a sense in the health service that the Government are no longer worried about waiting times. I have no doubt whatever that if the pressure is taken off, waiting times will start to rise again. That might suit the Government because of the funding issues that they are confronting the NHS with, and it would certainly suit the private sector, which we know does well out of long NHS waiting times, but it will do patients no good at all. I do not know how far my noble friend Lord Warner intends to take this, either now or at a later stage, but it is important that we say in the Bill that we are concerned about the speed of access to services.

Earl Howe (Conservative)

My Lords, I am grateful to the noble Lord, Lord Patel, and other noble Lords for introducing this group of amendments. I agree with the noble Lord, Lord Hunt, that this has been an excellent debate with a shared commitment to ensuring that quality sits at the heart of the Bill. I find that heartening. I recognise the long experience of the noble Lord, Lord Patel, in defining what quality looks like.

The grouping revolves around the definition of the duty of quality and how the term "quality" is addressed throughout the Bill. As was discussed in earlier debates, the duty of quality enshrined in the Bill is derived from the report of the noble Lord, Lord Darzi, High Quality Care for All, published in 2008. The noble Lord set out that quality could truly happen only when three different factors were present: safety, effectiveness and patient experience. That definition was widely welcomed at the time and over the past three years has become valued across the NHS.

The definition did not come out of the blue. The noble Lord's review was produced with the NHS, with patients, clinicians and managers, using the strategic visions developed in each of the 10 strategic health authorities. Its definition of quality-effectiveness, experience, safety-has survived even the electoral cycle. Indeed, one of our first priorities as a Government when we came to power was to build on the noble Lord's work. We did this through publishing a consultation paper and then following it up with the first NHS outcomes framework, published in December last year. Respondents to the consultation on the outcomes framework were highly supportive of the continued use of the definition of quality and the fact that the framework sought to measure patient-reported outcomes and patient experience as well as clinical outcomes.

The question we have to ask ourselves about the amendments is simple: does the definition need to change? My view is clear: we should stick with the original definition. However well intentioned the amendments are, there would be risks attached to them.

I shall start with Amendments 19, 110, 134, 179 and 181. The intention, if I understand it correctly, is to specify that the duty of quality should be restricted to clinical matters in order to ensure a focus on clinical quality and outcomes for patients. I understand the noble Lord's arguments but my fear is that these amendments would have the effect of narrowing the duty of quality and losing the integrated approach that it embodies. Let us consider this with regard to quality standards, covered in Clause 231. Quality standards, as I have already said, bring clarity to quality, providing definitive and authoritative statements of high quality care that are based on the evidence of what works best. That idea opens up the opportunity for quality standards to cover an integrated care package, from public health interventions in primary care to rehabilitation and long-term support in social care, thereby supporting the integration of health and social care services. I fear that we would lose this integrated approach if we were to restrict the Secretary of State's obligation to looking only at clinical standards.

Similarly, restricting the NHS Commissioning Board's integration duty to services provided in a clinically integrated way would preclude integration where the board considers that it would be beneficial, although not clinically, to the people receiving those services, such as in improving the patient's experience. I was very grateful to my noble friend Lady Barker in this context. Focusing just on clinical outcomes would mean the exclusion of non-clinical outcomes, such as access, reduction in health inequalities, healthy living, health promotion and the health-related services that we want to see integrated in an increasingly effective way.

In a similar vein, I am afraid I am unable to accept Amendment 15, tabled by the noble Lords, Lord Patel and Lord Kakkar. Clause 2 is clear that the only outcomes that can be pursued relate to the definition of quality. By limiting the pursuit of better outcomes just to health outcomes, the amendment would cut out crucial outcomes such as delivering a better patient experience. We need to look at care in the fullest sense when looking at ways to improve integrated care. I cannot help but feel that these amendments risk undermining this principle. Therefore, I hope the noble Lords will think again about them.

Amendment 107 contains a noble sentiment with which I completely agree; the NHS Commissioning Board should focus on delivering better outcomes for patients. However, I hope to reassure the noble Lords, Lord Warner and Lord Patel, that the clause covers this. The outcomes sought in subsection (3) are those specified in subsection (2), which are patients' outcomes.

Amendments 16A and 109 again seek to alter the definition of quality, originally set out by the noble Lord, Lord Darzi, this time in a slightly different manner. The aim of Amendment 16A, tabled by the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, is clear; it is to emphasise the critical importance of efficiency in the NHS. I reassure the noble Lord that the importance of efficiency is well tackled elsewhere in the Bill. Under Clause 20, in new Section 13D, and Clause 23, in new Section 14P, the NHS Commissioning Board and clinical commissioning groups respectively come under a duty to exercise their functions "effectively, efficiently and economically". In this context, "effectiveness" relates to the overall effectiveness of the organisation, rather than to the effectiveness of the outcomes that both organisations must pursue in relation to their own duties to improve quality continuously. Therefore, I hope the noble Lord will recognise that the sentiment behind the amendment is already well covered by the Bill, and that he will be prepared to withdraw the amendment.

Amendment 109 seeks to amend the NHS Commissioning Board's duty in relation to quality under new Section 13E, in Clause 20, to include reference to "timely access to services". The noble Lord, Lord Warner, may be pleased to know that I do not disagree with a lot of what he said about access. It is intimately bound up with the definition of quality. It matters to patients and can be a good way of predicting good outcomes. Timely access to services encompasses all three of the domains of quality. It is important that patients have timely access to services to ensure the clinical effectiveness of treatment. For example, where cancer is suspected, patients should see a specialist within two weeks of an urgent GP referral. Waiting times remain low and we continue to place an emphasis on this in the operating framework.

It is true that without timely access to healthcare you cannot have quality. It is intimately connected with delivering better outcomes for patients, better clinical effectiveness outcomes, better patient experience outcomes, and better safety outcomes. However, while I acknowledge all that, I believe that this all-encompassing definition of quality, combined with the rights that patients continue to have under the NHS constitution on access, makes this amendment unnecessary, and I therefore hope that the noble Lord will feel comfortable in not pressing it.

Lastly, I turn to Amendment 18B, tabled by the noble Baroness, Lady Bakewell. She makes an important point that in pursuing improved outcomes there should be no discrimination on grounds of age. Once again, I could not agree more with the intention and sentiment behind this amendment. None the less, I believe it to be unnecessary. First, the Bill places the Secretary of State, the NHS Commissioning Board and clinical commissioning groups under a duty to have regard to the need to reduce health inequalities between the people of England-the first time that we have had such a duty in statute. It is a landmark provision for a broad duty that encompasses all groups in society.

Secondly, as we discussed in the previous group of amendments, the public sector equality duty at Section 149 of the Equality Act 2010 requires all public bodies to consider the impact of policies and decisions on particular groups across the "protected characteristics"-a term of art in the Act-that include age. This general public sector equality duty came into force in April this year. The noble Baroness mentioned that data are not available to measure outcomes for particular groups such as the elderly. I fully agree about the importance of having good data to drive improvement, but data for the over-75s are particularly difficult to collect. Mortality causes in this group are hard to pinpoint, which is why such data are of somewhat limited value as an accountability measure. The outcomes framework is designed to make services accountable. However, older people's experiences and safety measures are included, and these indicators will of course improve over time. That is our stated ambition.

The noble Lord, Lord Hunt, asked me about NICE-

Lord Winston (Labour)

I listened carefully to the Minister's answers to and rebuttals of many of these amendments, which he made with cogent force, and I found it difficult to disagree with them. However, in the case of the amendment of the noble Baroness, Lady Bakewell, I have a problem. The issue of age is such a special case that there is a strong reason to consider writing her amendment into the Bill at this stage, because it is clear from what has happened historically and recently that aged patients are in a particularly difficult situation in an ageing community. They are often not communicated with and left unable to feed themselves, and people are not there to feed them, and so on. The Minister knows all this very well. Is there not a serious case for a caring Government to think seriously about the issues that the noble Baroness has raised?

Earl Howe (Conservative)

Of course there is, and I am grateful to the noble Lord. We are anxious to ensure, however, that any measures that we put in place in the outcomes framework are robust in terms of their verifiability. As I have said, I completely agree with the need for good data that have to underpin any system of accountability. I strongly feel that the Bill takes a significant step in the right direction. The NHS Information Centre will be the powerhouse for improving data in the NHS. It will look at how we can improve data for all age groups, not just the over-75s. I take on board what the noble Lord said. If I can add to what I have said, I should be happy to do so in writing.

I shall cover briefly the questions from the noble Lord, Lord Hunt, about NICE. NICE is a body for which we have the highest regard. In the Bill, we are widening its duties and placing it on a much firmer statutory footing. I hope that that in itself will indicate to the noble Lord that, far from downplaying the role of NICE, we want to do the opposite. We are giving it responsibility for defining excellence in social care and for producing a library of quality standards, which it has already started to do. In connection with technology appraisals, we see it continuing to have a very important role. What the noble Lord may have heard on the grapevine, if I can put it that way, related to our plans for value-based pricing of medicines. If we succeed in defining a good system-a good framework-for value-based pricing, the role of NICE will inevitably shift somewhat, because it will be asked a slightly different question from that which it is asked at the moment, but it will retain an absolutely central role, particularly in the pharmacoeconomic evaluation of new medicines.

The noble Lord asked me about the concern that clinical commissioning groups would, as it were, be able to take their own decisions and perhaps disregard NICE guidance. We have made absolutely clear that the funding direction associated with NICE-approved medicines will continue, not only up to the end of 2013, which is when the current pharmaceutical price regulation scheme comes to an end, but thereafter in the new world of value-based pricing.

I agree with the spirit of all the amendments, but I hope that noble Lords will accept from me that they are either not needed or would have an unintended and retrograde effect, which I have tried to outline. I hope that, with that, noble Lords will feel able not to press the amendments.

Lord Patel (Crossbench)

My Lords, I thank the Minister for his detailed comments and all noble Lords who took part, although some of them did not quite understand the meaning of my amendments. None the less, it was never my intention to have a narrow definition of "clinical", and I accept what the noble Baroness, Lady Barker, said: that it might give the impression that this is narrowly defined to medical standards. It is not; it takes into account both the well-being of the patient and, beyond that, rehabilitation and even social care, if we can define the standard.

My intention was never to press the amendments, but to try to highlight the issue that standards that are written are important if they are written with a view to focusing on patient outcomes. The phrase "clinical standards" tends to do that, and other standards have to incorporate that. If there was one benefit of this debate, it was that the noble Earl had to define the quality standards that NICE would be expected to write, which incorporates the patient journey of care from access to rehabilitation. That is exactly what I was hoping to achieve. By the way, I am familiar with NICE, having been involved at its inception and having written the paper that established it. Standards, whether they are quality standards of access or others, must focus on what gives a better outcome to the patient. On that basis, I am pleased to withdraw the amendment.

Amendment 15 withdrawn.

Amendments 16 to 17 not moved.

Amendment 17A had been withdrawn from the Marshalled List.

Amendments 18 and 18A not moved.

Amendment 18B

Moved by Baroness Bakewell

18B: Clause 2, page 2, line 25, at end insert-

"( ) These outcomes should not exclude sections of the population due to age."

Baroness Bakewell (Labour)

My Lords, I thank the noble Earl for his thoughtful consideration of my amendment. Because this is so impending a situation, it has to be taken on board for the future. The noble Earl spoke about having data that were robust in terms of verifiability and about evidence for the over-75s being harder to come by. However, life expectancy in this country is 84 for women and 79 for men, so there are data somewhere. I reiterate that there is a growing groundswell of concern, evident in newspapers when the story goes wrong, about the National Health Service failing older people, and I am sure that the Minister is as keen as I am to see that end. I beg to move.

Earl Howe (Conservative)

My Lords, I completely understand the points that the noble Baroness has made and I am sure that there is general sympathy in this Committee for the issues that have been aired through successive reports. I refer not just to the Care Quality Commission's findings but to those of the ombudsman relating to care for the elderly in both the NHS and care home settings. The noble Baroness should be in no doubt that this is very high on the Government's list of priorities but, as she recognised herself, there are particular obstacles that we have to overcome before we can move forward in the way that she has indicated and that we all want.

Baroness Bakewell (Labour)

I beg leave to withdraw the amendment.

Amendment 18B withdrawn.

Amendment 19 not moved.

Clause 2 agreed.

House resumed.

Committee (3rd Day) (Continued)

Baroness Masham of Ilton (Crossbench)

My Lords, Amendment 20 would establish a duty of candour so that any provider of National Health Service services would have to inform a patient, or their family or next of kin if they died or lacked capacity, when something went wrong with their care or treatment that had led to harm or could cause harm.

The principle of "no decision about me without me" has been stressed. If the patient is to be central to the legislation, the amendment should be taken very seriously. I hope that your Lordships agree with me that there are always risks in the treatment of patients, but that there should be openness and transparency, with no cover-ups, when things go wrong.

There is currently no statutory requirement on providers of National Health Service services to tell a patient, or their carer or representative, when something has gone wrong during their care and treatment, while a host of compulsory standards are set out in statutory regulations. The issue is left to guidance and a non-binding requirement in the National Health Service's constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse, actively covered it up.

Organisations concerned with patient safety have campaigned for a statutory duty of candour to rectify this situation. The Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patients' organisations do not believe that that is adequate. It would not include all NHS providers, only those with standard contracts, and would not create access to the sanctions that the CQC has at its disposal.

It is not just patients and patients' groups who advocate a statutory duty of candour. Action Against Medical Accidents presents an impressive list of organisations and leading clinicians who support it. Just recently, at the Mid Staffordshire Hospital NHS Foundation Trust public inquiry, Sir Liam Donaldson, the former Chief Medical Officer for England and internationally renowned champion of patient safety, reiterated his long-held belief in a statutory duty of candour. When asked directly, he said that he had always personally agreed that there should be a statutory duty of candour. He explained that he favoured it because he was of the view that professionals should be encouraged to take responsibility when they have done something wrong rather than withhold instances of harm. I believe that failure to commit to a more meaningful measure in this Bill will not only fail to have the desired effect, but is a snub and an insult to patients, patients' groups and other experts.

There is little if anything in the Bill that is genuinely drawn directly from the priorities and wishes of patients. A commitment to a statutory duty of candour certainly would be. This is an opportunity to show that patients really are being listened to. If the Government agree that the requirement to be open really is fundamental and essential, why on earth would a different approach be taken to this essential requirement, with it being left to the commissioning process? Commissioners are simply not equipped to regulate issues of this kind. If one accepts the argument that this is the appropriate way to proceed, then all of the core standards currently in the CQC regulations could simply be dealt with in the standard contract for providers.

Another key weakness in the Government's proposal is that providers' contracts relate only to NHS contracts with trusts, PCTs and private voluntary providers of NHS services. That would not include primary care practitioners such as GPs. The Government admit in their consultation document that GPs are subject to different arrangements and that the duty could be brought in only in negotiation with their representing organisations. Very significantly, the BMA General Practitioners Committee has already stated that it would not sign up to a duty of candour, but it should not be negotiable. A duty is a duty.

The Government's proposed contractual duty of candour would be weak even where it did apply. It simply would not cover the area where so much NHS care is undertaken-in primary care.

As recently as June of this year, MPs on the Health Select Committee recommended, in their report Complaints and Litigation, that a duty of candour be included in the licensing arrangements with the Care Quality Commission. That is precisely what AvMA and others are arguing for.

Restricting the duty of candour to the contracting process diminishes its importance and impact and is inconsistent with how any other genuine "must do" is regulated. It is also offensive to patients, and undermines the principle of candour, that there is a statutory requirement in the CQC regulations for providers to report patient safety incidents to the CQC but no statutory requirement to report them to the patients affected. Inclusion of such a requirement in the CQC registration regime would cover all providers of NHS services-not just those with a particular form of contract-including dentists and, in due course, GPs.

We believe that creating a statutory duty of candour to provide a right for patients to know when things have gone wrong with their care and treatment is fully justified, would improve healthcare, would put the patient at the centre of health services and could, I hope, gain the support of the House. If the patient is to be central in this Bill, I can see no reason why the Minister should not accept this amendment. I beg to move.

Lord Harris of Haringey (Labour)

My Lords, when I was director of the Association of Community Health Councils, the message from community health councils around the country was that people who complained were seeking not compensation from, or retribution against, those who had perhaps caused the reason for their complaint-for example, the death of a loved one-but information. They wanted to know what had happened, and they wanted some reassurance that what happened to them or their relatives would not happen again.

Always, the most tragic cases were those in which people had not known what had happened and discovered the actual circumstances only much later, perhaps when their relative's case came to an inquest or, in some cases, even long after that. I would like to hope that, in the 10 years or so since I was director of the Association of Community Health Councils, this problem would have become less, but it remains a serious blemish on the health service that, too often, such mishaps are covered up.

In a case reported only three weeks ago-the most recent case that I have come across, but I am sure there are many others-a mother discovered long afterwards that the death of her seven year-old daughter, which she had blamed on herself for not being able to perform the necessary first aid, was actually the consequence of a failure by a paramedic called to the scene. She discovered that only ages afterwards when she became aware of the transcript of the inquiry which led to the paramedic being dismissed. That case, reported in the Doncaster Free Press only three weeks ago, is an indication of the sorts of incidents that one is talking about.

I met the family of someone who had died while detained in a secure mental health facility. They discovered the circumstances in which their loved one had died only when the matter was reported at an inquest. In such incidents, the health service officials knew what had happened and had conducted their own inquiries but did not think it necessary or appropriate to tell the families concerned. That is why it is so important to have this amendment, which would place a statutory duty of candour on the health service, to make it something that runs right the way through the system.

Of course, accidents can never be eradicated. Healthcare is of its very nature a risky business and health professionals are only human, so these things will happen. However, what is unforgiveable is that the fact that something has gone wrong is not told to those concerned. The noble Baroness, Lady Masham, quoted Sir Liam Donaldson, but I thought that she was also going to quote the maxim that he gave:

"To err is human, to cover up is unforgiveable".

That is precisely the concern that motivates this amendment.

In the White Paper Equity and excellence:Liberating the NHS, the Government said that they will require hospitals to be "open and honest" when things go wrong. That stems directly, I think, from the Liberal Democrats' manifesto commitment, but, unfortunately, their manifesto referred only to hospitals rather than to the wider health service. I think that the Liberal Democrats intended that such a duty should be statutory, but my understanding is that the Department of Health is looking at this as something that could be written into contracts. As the noble Baroness, Lady Masham, has pointed out, having a lesser status than a requirement to inform a central agency that something has gone wrong would mean a lesser status in terms of informing the family. It is really important that we look at this issue and take it seriously, so I hope that the noble Earl will accept the amendment.

In 2005, a National Audit Office report revealed that only 24 per cent of NHS trusts routinely informed patients of a patient safety incident-that implies that more than three-quarters of NHS trusts do not do so routinely-and 6 per cent admitted that they never informed patients of a patient safety incident. Quite clearly, there is a "culture of denial". Noble Lords may think that that is rather an alarmist statement, but I am simply quoting from a Department of Health document from 2006.

Lord Mawhinney (Conservative)

My Lords, I am extremely grateful to the noble Lord for giving way. I do not want him to interpret my question as opposition to the general point that he is making, but before he finishes will he say a word about the role of lawyers of health service bodies in these circumstances? I am not a lawyer, as I have told the House before, but in both cases that he has cited I could see legal advisers saying, "Say nothing". If we are to take this amendment seriously, we need to have some idea of what part the law might play if the Bill were to be so amended. As the noble Lord has experience, I would be grateful if he would reflect on that.

Lord Harris of Haringey (Labour)

My Lords, the noble Lord, with all his experience-albeit, like me, as a non-lawyer-is speaking exactly the truth. In many of those cases, the legal advice would be, "Say nothing". There therefore needs to be a statutory duty, because then the responsibility of the lawyers concerned would be to advise, "There is no option but to tell the patients or their families".

An interesting point is that insurers in the United States often require open disclosure policies and practice by health providers to qualify for insurance. The international evidence is that, as well as being the right thing to do morally and ethically, being open and honest when things go wrong can actually reduce litigation and complaints.

My concern is that the Government will say that they are doing enough by saying that the duty of candour can be achieved through a contractual process. However, as the noble Baroness, Lady Masham, has pointed out, this would apply only to hospitals with an NHS contract; it would not apply to GPs, dentists, pharmacists or private healthcare providers. I do not see why the duty of candour to patients and their families should be regarded as of lesser importance and impact than those things where there is direct regulation. I hope that the Minister will say that the Department of Health will take this away and that he will come back to the House with proposals to give a statutory duty of candour to protect the interests of patients.

Baroness Hussein-Ece (Liberal Democrat)

I, too, wish that there was not a need for this duty and that it was unnecessary. However, as we have already heard from the noble Baroness, Lady Masham, and the noble Lord, Lord Harris of Haringey, there is a compelling case that now, more than ever, we need a duty of candour.

As has been said already, we know that accidents will never be eradicated, and nor will human error. We know that healthcare has risks-most people accept that-and that health professionals are only human. However, when things go wrong and they are caught up in things that can cause harm to patients, they need to be supported and helped to deal with a very difficult situation.

There has to be absolute clarity that anything less than complete openness and honesty when things go wrong is unacceptable in modern British healthcare. That is what I understand that the amendment is trying to achieve-a duty of candour.

In my previous life, I was a chief officer in a community health council. Unfortunately, I came across many cases in which a complaint was brought to me and, when we started to look into it, it became apparent that all was not what it seemed. It would often take months, if not years, to establish what had happened. For a family who has lost somebody or when something has gone badly wrong, that compounds the distress that is caused. It makes things worse. As the noble Lord, Lord Harris of Haringey, said, most people want to know. They just want information; they want to know the truth of what happened to their loved one. The last thing that they want is to find out, sometimes months or years later, that there has been a cover-up or they were given the wrong information. Sometimes, deliberately, the shutters simply come down because a trust fears litigation, as we have heard. Because of that fear, parents, patients and families are often left floundering in the dark and running to lawyers.

None of us can imagine losing a loved one as the result of an avoidable error and then finding out how the information had been kept from one. As has been said, there is no statutory requirement. It would come as a surprise and a shock to most of the general public that there is simply no requirement to be told when something goes wrong with any of our loved ones. The onus would be on them to find out and get to the bottom of it. Most patient groups that are campaigning for this are coming at it from real experience of having to take up some of the most tragic cases that we have heard about in recent years. The phrase "having regard to" the principle of openness is in the NHS constitution, but it is really not sufficient. It is not adequate to deal with the sort of cases that we have heard about.

Successive Governments have usually agreed that a duty of candour is a good thing and may be required, but so far there has been a failure to establish what that duty should entail. It is different from the contractual duty built into standard contracts between commissioners and some providers of NHS services. I believe that this is wrong; surely, honesty is the only policy in this instance. This should be a commitment to the protection of patients in healthcare and a legal duty of candour, which places a duty on all healthcare professionals to be open and frank with patients and their families. I was disappointed to read just last week that the GPC said that GPs would not back an openness clause in the GP contract, for example. I found that very disappointing.

There are many tragic examples of where things went wrong and guidelines were not followed-and also, as I have said, where trusts actively covered up. I cite one instance, as citing cases is very important so that we know what we are talking about and how people have suffered. Mayra Cabrera, who was 30, died of a heart attack one hour after giving birth to Zachary, a healthy 8lb baby, in May 2004 in the Great Western Hospital in Swindon, where she worked as a theatre nurse. A drip-bag containing a powerful epidural painkiller had been mistakenly connected into a line into her right hand instead of a saline drip. Although it became clear early on that the drug error had something to do with her death, there was an internal investigation and Mayra's husband, Arnold Cabrera, was told that Mayra had died from a rare but natural event-an embolism. He was given no idea that something untoward had happened. It was not until some 14 months later, after a legal investigation had been instigated by this solicitors, that the circumstances were revealed. The records showed that in May 2004, as had been acknowledged internally, a drug error had been a contributory factor in Mayra's death, yet no one at the trust had informed her husband. It is quite extraordinary that no one had a duty to do that. They did follow guidelines-they just did not do it. This is simply wrong. We need a consistent, strong, statutory procedure, not just guidelines, in order that this should happen automatically. It should run in parallel with a very strong, robust complaints procedure.

We have heard many arguments over the years that creating a statutory duty might make people more likely to cover up. It is simply not a credible argument to suggest that placing a statutory duty on an organisation to do everything reasonably practical to ensure that patients are dealt with openly and honestly will drive people to cover up. Where is the evidence for that? The proposal also includes requirements for organisations to treat their staff fairly and support them. However, everyone needs to understand that it is simply unacceptable to allow dishonesty over medical accidents. Sending the message that cover-ups may be tolerated, as the current arrangements could imply, can in no way support an open and fair culture. We have also heard the argument that the professional duty of all health professionals to be honest with patients means that a legal duty is unnecessary. Again, that does not cover other health professionals. It is contained in codes of conduct that apply only to certain health professionals, whereas it should apply equally to health managers and trust boards.

Many in your Lordships' House will be aware of the case of Robbie Powell, whose family have lent his name to the duty of candour. The GMC in that terrible case maintains to this day that the strong allegations of an attempted cover-up and forgery of medical records were not even important enough for it to waive its five-year rule and investigate. To change culture and behaviour, we need something stronger than just guidelines. It would send out a powerful and clear message about what is acceptable and not acceptable.

The simple principle at stake is the right of patients and their families and carers to know what has gone wrong with their care and treatment. It cannot be right that distressed, bereaved families have to resort to legal remedies for years and find out at the end of it that what they thought had happened had not happened. I have been told by patients' families that I dealt with that it is like having a bereavement all over again. In the spirit of honesty, openness and transparency that we talk about a lot in the Bill, this proposal would ensure transparency-and, importantly, that patients and the public have complete confidence in the NHS.

Baroness Oppenheim-Barnes (Conservative)

My Lords, I intervene at this point because I have all too real personal experience that may be helpful to the movers of the amendment. When she was still a teenager, my daughter was the subject of a terrible made during a simple investigative measure. It was covered up by all concerned, who said what a tragedy it was that such a young girl should have got this illness, which was inexplicable. Because she was a private patient, we were able to bring in other advice that led to a conclusion which was that a very serious mistake had been made. She was hospitalised for three months. She suffered several operations as a result and, when she was finally recovering, we sought in law to get some kind of satisfaction.

We were not without means or influence, but no single lawyer would take the case. They said it was not in their interests because their main clients were usually health service providers or medical providers and therefore our case was not going to be taken. The noble Lord, Lord Harris of Haringey, made the point that these people may or may not want to follow legal processes. I make the point that if that is one of the objectives of the amendment-which I hope it is not-they would have no chance whatever.

Lord Campbell-Savours (Labour)

My Lords, I intervene briefly to do precisely what the noble Baroness has just done; namely, draw attention to an individual case that might influence the judgment of the Committee. In a former incarnation as a Member of Parliament, I received in my post an anonymous letter from a person in the north of England, which made major allegations about a hospital in the north of England where a child had been badly brain-damaged as a result of negligence in that hospital. The letter was unsigned, as I say, and the child's name was not included. I had the task of asking around in the community to find out whether anyone knew who the child might be or knew anybody in the hospital who knew about the incident that had taken place. I suspected that the letter had come from a member of staff.

After some time, I managed to identify a family. I knocked on the door and a lady answered. She said, "Yes, it was our child and the health service has basically converted our garage and put a bed in it"-for this boy who was very badly brain-damaged and remains so to this day. The family had been to lawyers and been advised that that was the best deal they could get. The reason why that happened was because there was no duty of candour and because the health service covered up what had happened. I told the family that they should go to Manchester and pick a very smart lawyer whom I knew and ask him to handle their case. It took six years, at the end of which there was a multimillion pound settlement covering a lifetime's provision of care for this child.

There are many cases of negligence in the National Health Service. I have probably spent more time in hospital in my lifetime than a large number of Members of this House put together and I have seen it myself. You hear stories in hospitals all the time when you are sitting in a bed, although some of them are not so much about negligence as stupidity. I wonder whether we are really being sufficiently transparent in the way we ensure that the information is made available to patients and their relatives. I hope that the amendment goes through.

Lord Winston (Labour)

My Lords, I congratulate the movers of the amendment on the sincerity with which they and the people who supported it spoke. I think that I am going to make myself deeply unpopular both inside and outside this House by saying that I am implacably opposed to the amendment. It is a profound mistake and its wording is quite inadequate and actually very dangerous for patients.

I say this because I have spent some 25 or 30 years of my practice in a secondary referral centre, where I have seen patients from all over the United Kingdom and outside it being referred because they had surgery and other treatments that were botched, mistaken or not properly done and that caused problems. From my serious experience of occasions when I was much younger, telling patients that the thing had not been properly done was often a profound error. It caused immense distress and continued to cause problems afterwards when there was no legal redress possible in any case, as there often is not. By presenting patients to a court, you often add to the distress that might be caused to them and the tensions that they have to go through. The problem with this amendment, good though its intentions are, is that it will increase that risk in the health service.

I do not wish to be anecdotal because I do not think it is appropriate. I could tell numerous anecdotes, rather than just one or two, from a surgeon's perspective to show why I am highly suspicious of this amendment. I will say one thing about why I think so strongly about this. When you as a doctor give a second opinion on somebody who you believe has been badly treated, there is invariably a degree of subjectivity in your assessment because you are not in the situation that the previous person was. The amendment refers to,

"any incident or omission in or affecting their care which may have caused harm".

This is highly dangerous. I believe that it would cause massive problems to a large number of patients and I hope that the noble Lords who tabled it will think seriously before pressing it this evening.

Lord Mawhinney (Conservative)

My Lords, I join the noble Lord, Lord Campbell-Savours, as a former Member of Parliament. I am guessing that anyone who was a Member of Parliament for any length of time could, through their constituency casework, repeat the sort of story to which he referred; so I will not burden the Committee by adding similar types of anecdote, other than to say that we cannot all be wrong. Up and down the country, people are going to see their Members of Parliament and saying, "We have a problem that we can't get past". There has to be something in the system that is not working right. Like other ex-Members of Parliament, I have from time to time tried to intervene, but the fact that I was a Member of Parliament made virtually no difference whatever to the health authorities. Maybe you would argue that Members of Parliament were the last people they would tell, but they were not going to tell anybody.

Having said that, I also agree with one thing that the noble Lord, Lord Winston, has just said. I hope that the noble Baroness, Lady Masham, will not take this amiss-I will come to my view in a minute-but I do not think that this amendment is the right amendment. Perhaps I may read to her just a few words:

"full information to patients, their carers or representative about any incident or omission",

that may affect their care. That has been taken to refer to a major problem-a life-threatening problem; a permanent disability or disfigurement problem-but, actually, it could also refer to the numerous stories that appear in our national newspapers, week in and week out, about the absence or inadequacy of nursing care to the elderly. Those are incidents and omissions that affect their care. An amendment that is that wide in its potential scope seems to me to require further thought. It might be described, to use my example, as inadequate nursing care-and, incidentally, I speak as the husband of a qualified nurse-but the nurses do not appear to think that it is inadequate, because it keeps on happening. The management does not think that it is inadequate, because it keeps on happening. The boards of the hospitals do not seem to think that it is inadequate, because it keeps on happening. So, identifying at that level what this amendment might mean seems very difficult.

I come to the central point. I share the view of those who believe that more candour is required. I hope that my noble friend will take this away and look at it again in the context of reaching out to those delivering NHS services, not just to some of them. The legal point is a real stumbling block. If you are a professional paying a lot of insurance against medical cover or if you are running a big hospital and paying a lot of insurance health cover, then lawyers are important. We can be dismissive of lawyers and say "transparency reigns, OK", but in the real world lawyers also reign, OK. If I may say so to my noble friend, your Lordships' House needs help on this issue. Do not make us pick between the reality of the need for candour and the reality of the professional job that lawyers are doing to protect their clients. Instead, I ask my noble friend to bring forward a more comprehensive view, perhaps with mediation at its heart. Even in this debate we have heard about people who did not want a lot of money or retribution; they just wanted to know. That rings bells in my head about mediation. Perhaps if a mediation type of arrangement was included in all of this, the problems with the lawyers would be so reduced that the NHS could handle it.

Let me cheer up my noble friend. I can remember my time in Richmond House, with the escalation of money that we had to set aside year by year as more legal cases went to the courts. That was a genuine problem; it was money that was not going to be available for patient care on a day-by-day basis. There are two real issues here. I think we can solve them not in terms of the Bill, either in the way it is written or, with due respect to the noble Baroness, Lady Masham, in the way that she is seeking to amend it, but rather by asking the Minister if he can come back with a more comprehensive and coherent strategy for dealing with this problem. I hope that he will put mediation somewhere near the centre of it.

Baroness Morgan of Drefelin (Crossbench)

My Lords, I agree with the noble Lord, Lord Mawhinney, who has given the Minister some very positive and practical advice. When the Minister responds to this debate he will probably say something similar to what he said at Second Reading, where he was very clear that the Government agree that there should be a duty of candour. The question is about how best to deliver that. As I understand it, the Government have launched a consultation about how to deliver a duty of candour through the contractual means that noble Lords have already alluded to. There seems to be agreement around the House; the noble Lord, Lord Winston, suggests that he is unpopular, but he too accepts that there is an issue we need to address.

I believe that the consultation on the contractual route finishes on 2 January. I do not know how that fits in with our Committee timetable, but it would be helpful for the Committee to see how my noble friend's amendment could be worked through in a more practical way. My noble friend Lady Masham has spoken very eloquently about issues of deep concern to patient organisations in this country, and we have to do better than a contractual route. Patients have a right to know when something goes wrong, and in this country's NHS we need a system, a process, that allows health professionals to admit when something goes wrong in an environment that can learn from those mistakes. Where there are errors and where professional misconduct takes place then of course action must be taken, but it is important that there is openness so that the system can learn and these errors can be stopped from happening again. The noble Lord, Lord Harris, made the point about patients and others not always seeking legal redress but in many cases looking for an apology and an assurance that the mistake will not happen to anyone else.

I am sure that the Minister will be persuaded by this debate that we need a more practical and constructive way forward. I appreciate his comment in his response at Second Reading where he said that it would be inappropriate to pre-empt the consultation that finishes on 2 January and to amend the Bill before the Government have a chance to respond to the consultation. That may coincide very well with Report stage-I do not know what the timetable is like-but I hope that the two can dovetail and help my noble friend Lady Masham with her cause in this amendment.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, I welcome the amendment introduced by the noble Baroness, Lady Masham, and others, and applaud the powerful and eloquent way in which she opened the debate and in which others have spoken.

I wish to make a brief contribution regarding the litigation consequences of a lack of transparency. Over a number of years, though not in the immediate past, I conducted clinical negligence cases, many of which concerned allegations of negligence against practitioners and organisations within the health service. I am not one of those who regard such litigation as frequently the result of an unwelcome development of a compensation culture within this country, approaching the situation in the United States. Without generalizing, in most of the cases in which I was involved-certainly those that came to trial-there has been a real basis for concern on the claimant's part, whether or not the claimant has ultimately been successful.

With respect to the points made by the noble Lord, Lord Winston, I remember cases where the process of litigation itself demonstrated not only that that particular claimant had been poorly served but that there had been systemic failings within aspects of the health service that required changes to be made. When those changes were then made, they brought substantial benefit to subsequent patients.

A feature of much of the early litigation in which I was involved, though, was that it was frequently very difficult to obtain full records and a full account of the history from the point of view of the defendants within the NHS providers, and of course they alone were in possession of the relevant information. That is against the background that for many years there has been a procedure for obtaining the disclosure of relevant documents from potential defendants to these actions, even before the actions are commenced.

In recent years, procedures have been greatly improved by the impact of the clinical negligence protocol, introduced in 1999 as part of the Woolf reforms. However, the protocol is not binding although it introduces a code of good practice and provides a partial answer to the points made by the noble Lord, Lord Mawhinney. The code requires a comprehensive system of what it calls adverse outcome reporting. It requires clear and comprehensible information to be given to patients, and for advice to be provided to patients on any serious adverse outcome and the options available to them. In such cases, access to records is to be given to patients within 40 days of a request. The protocol has done a great deal when it is fully observed. However, the fact that it is not always observed is clear from many of the speeches that we have heard this evening.

A further point is that the protocol applies only in cases where there is a serious adverse outcome for patients. Furthermore, it is only a code and does not impose statutory requirements. Even in serious cases, and where the code is followed, requests for documents and pursuit of the procedures generally involve lawyers, and this process can be lengthy, time-consuming and expensive. If not well handled, the process can tend to harden and entrench positions, making conflict and, therefore, contested proceedings more likely. Furthermore-this is another point I make to the noble Lord, Lord Mawhinney-the process is not effective in less serious cases but this amendment would apply in such cases, although there is a limit to it. It refers only to cases that,

"may have caused harm, or may in the future cause harm".

The cost of negligence cases to the NHS is simply staggering. According to a Written Answer given in the other place on 8 June this year, the total in damages paid to successful claimants in 2010-11, including in periodical payments cases-which are treated in the figures as lump sums-exceeded £1 billion. The total of claimants' costs paid out was around £214 million, and the total of defendants' costs was £72 million. If improvements in transparency can be made to reduce these vast amounts, particularly the costs, they would be very welcome. As my noble friend Lord Mawhinney pointed out, all the money spent on costs is money that might have been made available for healthcare.

In a large number of cases, as the protocol recognises and as the noble Lord, Lord Harris of Haringey, and others have pointed out, what claimants and potential claimants want is to know at a very early stage what has happened to them-to have someone explain frankly exactly what has gone wrong and then, where appropriate, to have someone apologise for any errors. Anything that helps to bring about a more effective way of ensuring that that happens would avoid many cases that currently end in litigation. As a result, many patients would be far better served. Therefore, there is much to be said, across a range of cases, for establishing far better procedures than there are now to ensure that full explanations are provided in a timely fashion.

Lord Lea of Crondall (Labour)

Would an apology affect the litigation?

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, often it would. If there is to be litigation, an apology tends to suggest an admission of liability. Generally speaking, people do not apologise when they do not think that anything has gone wrong. An important exception to that-one that I have come across-might be where there is an admission of liability and that something has gone wrong, but a dispute over the consequences or what damage might have been suffered. If there would have been adverse consequences to an operation in any event, the fact that it went wrong might not make a difference. However, in those cases the apology might well avoid the litigation because of the difference in attitude and spirit between the parties that results from the apology being made and the recognition that something has gone wrong.

I suggest that we should welcome this amendment. It elevates good practice, as shown by the code, to an enforceable statutory duty of candour, as the noble Baroness points out, backed up by sanctions. It may be that this precise wording is not what is required but I invite the Minister to consider the statutory duty of candour as an important help for future patients. I welcome this amendment as going some way to helping that to happen.

Lord Walton of Detchant (Crossbench)

My Lords, I shall be extremely brief in my contribution. As a former practising doctor and neurologist, I am fully aware of the immense distress and concern that patients, and often their families, have experienced as a result of medical accidents in the broad. It is clear that there are certain circumstances in which episodes construed as being so-called medical accidents have been the inadvertent effects of treatments that have had completely unforeseen complications, for which no one could possibly be held responsible.

When I was a young doctor, the medical protection groups-the Medical Defence Union and the Medical Protection Society-always recommended that if an error occurred, under no circumstances should one apologise in such terms as to constitute accepting liability. However, when I was president of the General Medical Council, the concerns that have been so eloquently expressed around this Committee, particularly by my noble friend Lady Masham in her opening speech, led to a gradual and significant change in attitude. After regular consultations with the medical protection bodies, the General Medical Council eventually recommended, and still recommends, a duty of candour on doctors to apologise and explain in depth if accidents and errors have occurred. This is, I believe, still part of the advice that the GMC gives.

Having said that, I understand and sympathise deeply with the purpose that underlies this amendment. However, in several respects it is very difficult to make its wording the basis of a statutory requirement. In particular, proposed new paragraph (b) states that,

"regulations are introduced to enable the Care Quality Commission to take action against a registered person or body who fail to disclose details of such incidents as set out in those regulations".

This could cut across the responsibilities of the statutory regulatory authorities-the General Medical Council, the General Dental Council and the Nursing and Midwifery Council-and I simply could not accept the wording of that part of the amendment. Therefore, I have great sympathy with the view that something might well be done to reinforce the advice that is being given by a regulatory authority such as the GMC to enforce the duty of candour. However, sadly, the amendment in its present terms would not fulfil that very worthy objective.

Lord Lucas (Conservative)

My Lords, an apology is not, of itself, an admission of liability. I am very grateful to the noble Baroness, Lady Ashton of Upholland, for allowing me to put that into English law, if I can update the noble Lord, Lord Marks, on it.

I come at this question from a slightly different angle. My familiarity is with doctors who have blown the whistle and had their careers destroyed as a result. That, too, has its roots in a lack of internal candour. I want to see the health service become more constructively self-critical, and for the mistakes and wrong judgments that have been made to be the subject of ordinary conversations within a hospital or other medical organisations, so that better care is provided in the future. This is the way it is in schools. Teachers are generally pretty open about things that have gone wrong and look to find ways of doing things better, but they do not tell parents about it. You can look at schools that have improved from 20 per cent to 80 per cent of students achieving five GCSE grades of between A and C. The kids are the same and the intake is the same. That school has failed thousands of children but no one has ever admitted that to the parents, which is very hard to do. In fact, it would tend to freeze any kind of internal self-critical attitude, particularly if the duty was drawn as widely as it would be in this amendment.

I therefore find myself siding with the noble Lord, Lord Winston, in this, although I am very committed to candour. Candour needs to be there, particularly in something as dangerous as medicine, where you are skiing down the edge of a precipice for half the time. You cannot be blamed when things go wrong because mistakes are bound to happen under those circumstances. Downhill skiers crash; they do not intend to do that and are well trained not to-but it happens. This spreading of blame for every slight mistake or wrong judgment taken in the circumstances of surgery or something with a longer timescale, such as pharmacology, is not the right way to approach the issue. We need to find ways of being open and of encouraging professionals, in particular, to be open with each other in a culture of self-improvement. To expose all this to litigation and in effect to encourage patients to go to law whenever something goes wrong, under circumstances where it is inevitable that a large number of things will go wrong, would be a mistake.

Lord Harris of Haringey (Labour)

The experience within the NHS is that people go to law only because they feel that that is the only way in which they are going to get some clarity into what has actually happened.

Lord Winston (Labour)

That is not so.

Lord Harris of Haringey (Labour)

I am sorry; I hear someone behind me saying that that is not so. My experience in my 12 years of leading the national consumer organisation representing patients in the NHS was that that was precisely the circumstance in which many people went to law. They went to law because they wanted to get the information. That was the fact, and I suspect that that is the reality.

Baroness Williams of Crosby (Liberal Democrat)

Perhaps I may add a few words on an aspect that was touched upon only a moment or two ago by the noble Lord, Lord Lucas-the role of people who act as whistleblowers, particularly regarding patients who, for one reason or another, are not capable of standing up for themselves, are perhaps in institutions where they get little attention paid to them, and are not much listened to. They would be heavily dependent on the willingness of NHS staff to blow the whistle when bad standards are being allowed to continue.

One thing has always worried me about the NHS. As a parliamentarian of many years' standing, I have received many letters from junior members of NHS staff asking me to look into some aspect of a hospital or care home in which they work, and almost invariably saying at some point in the letter, "I dare not do this myself because my job would be at risk". This is a very serious aspect of the amendment of the noble Baroness, Lady Masham, but we have not talked about it very much at all.

I tend to favour the idea proposed my noble friend Lord Mawhinney for having an element of mediation, as well as an element of court behaviour, in the way in which we deal with such cases. However, it rests on us all to give high priority to thinking of the ways in which we can protect whistleblowers and distinguish the genuine whistleblowers from those who are complaining merely about their personal position. For example, if we included private as well as NHS hospitals and care homes, the kind of position that the noble Baroness, Lady Oppenheim-Barnes, talked about-she described a terrible case with regard to her daughter-would not arise so readily.

I ask the Minister to say something about the view that mediation is one way forward, as well as court cases. At least as importantly, perhaps he can say whether the General Medical Council or others would now seriously consider protection for whistleblowers within NHS staff, who are often the most effective inspectors that we can find-much more effective than people with no clear knowledge of the way in which medical and health services work.

Baroness Hollins (Crossbench)

Perhaps I may raise a couple of issues that have been touched upon. The first is that I do not know how far the consultation that is looking at the duty of candour will tease out the role played by whistleblowing. I should like some clarification about that.

The General Medical Council's document, Good Medical Practice, in paragraph 31, makes it clear that doctors must be honest and open and act with integrity. I mention that because my noble friend Lord Walton spoke about the GMC's role and said that he was not sure how far the medical defence unions currently adopt the same approach to encourage doctors, when they are aware of an error, to be open and honest. I decided to telephone my medical defence union before this debate and ask it for its current advice. It said that it refers doctors to Good Medical Practice and reminds them of paragraph 31, which states that they must be honest and open and act with integrity. I hope that the House will be reassured to hear that.

In my experience, a culture of openness and honesty leads to a culture of learning. That point has been made by a number of noble Lords. We should not be afraid of the idea that apologising will in some way lead to a greater culture of litigation. It is certainly my experience that being open and apologising does not necessarily imply negligence; it reflects the fact that something harmful has happened and that the lessons from mistakes must be learnt from in order that other people will not be harmed by the same mistakes in the future. That is what this is really about.

Lord Winston (Labour)

Does the noble Baroness not agree with me, however, that this is not what this is about? The problem is that any persons providing healthcare-someone who is seeing a patient but is not concerned with the original treatment-would be required to be open and candid. The problem with that is that it is likely to be highly dangerous and damaging to patients in that situation, as extensive medical experience over many years has shown to the many people trying to do an honest and open job within the health service. The matters of each case have to be looked at on an individual basis.

Baroness Hollins (Crossbench)

I absolutely agree with the comment of the noble Lord, Lord Winston. Commenting on another practitioner's practice and making judgments is fraught with error. That is why it is important when looking at the duty of candour to understand the role that whistleblowing plays. A great deal more could be said but it is extremely dangerous to make assumptions about another person's practice.

Lord Warner (Labour)

My Lords, I was not intending to intervene in this debate, but after listening to the discussion I want to remind the Minister of the many happy hours that we spent taking the NHS Redress Bill through this House six or seven years ago. Can he tell us the extent to which some of the measures in that Act may or may not have helped to deal with some of the concerns that have been expressed in this debate, because that legislation was an attempt to give patients more satisfaction without going to court and to encourage a greater culture of openness and apology on the part of the NHS when it made mistakes?

Baroness Wheeler (Labour)

My Lords, I begin by paying tribute to the excellent work of the charities, Action against Medical Accidents, National Voices and the National Association of LINks Members on this important issue. I also thank the noble Baroness, Lady Masham, and other noble Lords who have supported and sponsored the amendment and have spoken so forcefully in favour of it. They have put forward the strong arguments for a statutory duty of candour, and I do not intend to go over them or to repeat the detail of the many harrowing cases that have led to the huge support among the general public and patients' organisations for the measure.

The instances of serious failure in care and treatment that have led to the campaign in support of a statutory duty of candour are dramatic, shocking and deeply tragic. The need to ensure openness and transparency of instances of patient care which lead to harm or adverse impact on the patient's future care quality of life apply to both those major cases and to everyday care and treatment solutions. I am sure that, in respect of the latter, many of us will have had personal experience of pursuing instances of poor care and treatment, communication and ordination of services, through the PALS hospital complaints system, only to find how quickly the shutters come down, as has been said, and how hospitals can seem to go into automatic denial and obfuscation as soon as an event occurs.

This is a probing amendment. On behalf of the Front Bench, I urge the Government to look closely at the issue and respond positively on how the Bill can be strengthened to enshrine the right of patients, their carers and families to know when things have gone wrong. In April 2010, my Government established responsibility for the Care Quality Commission to require health providers to report incidents which harm patients to the national reporting system of the National Patient Safety Agency. We recognise that that was a first step. The requirement to report the incident to the patient within a specified period would be a major second step that should be considered to ensure that all information about such incidents is shared with the patient and their family.

Many, both inside and outside the Chamber, have worried about the extent to which patients actually feature in the Bill and whether it will really achieve the Government's objective for patients of "no decision about me without me". Surely, underlining in the Bill the rights of patients to be truly involved in decision-making about their care, to participate in decisions about their future treatment, and to be told honestly and openly when something goes wrong should all be part and parcel of the "no decision about me without me" mantra.

There is clearly growing momentum and enthusiasm for the current CQC regulations to be extended to provide a related duty to share all information about incidents which cause harm with the patient concerned or their family. As we have heard, the House of Commons Health Select Committee in June of this year specifically recommended that a duty of candour to patients from providers also be part of the terms of authorisation from Monitor and of licence by the CQC.

As for the Government's consultation on how a proposed contractual duty of candour should be implemented, it is regrettable that the consultation does not allow for consideration of whether the duty should have a different status. The concerns of the Health Committee and patient groups that a contractual duty alone will not be effective need to be addressed. A powerful argument for the duty being in the CQC registration requirements is that that would then cover all providers, not just those with a standard NHS contract.

The consultation document does not adequately address a number of issues in relation to the proposed contractual duty. For example, it does not make clear how the Government envisage a contractual duty working in practice; or how commissioners should act when a provider has failed to be open; or what effective remedial measures they will be able to take.

We recognise that further work needs to be undertaken on the amendment. For example, the CQC powers should not interfere with or duplicate the role of the health staffs' professional regulatory and disciplinary bodies. The noble Lord, Lord Winston, and other noble Lords have spoken about their concerns. This is a probing amendment. It is designed to raise issues and to seek ways to take the matter forward.

It has been an excellent debate. We strongly support the suggestions that noble Lords have made on taking this matter forward, and we urge the Minister to give urgent consideration to them.

Earl Howe (Conservative)

My Lords, Amendment 20, introduced by the noble Baroness, Lady Masham, looks to place a new duty on the Secretary of State to ensure transparency when something goes wrong in the treatment of a patient. I hope that she feels gratified by the quality of the contributions to which we have listened this afternoon.

I absolutely agree with the noble Baroness, the noble Lord, Lord Harris, and other noble Lords that ensuring full candour on the part of the medical, nursing and allied professions and NHS organisations is essential. We know that achieving an open and honest system is vital to ensure that the health service learns from its mistakes and that patients and their families are treated with the dignity and respect they deserve. I take no issue with the powerful arguments from noble Lords about the need for openness and candour between health professionals and patients. That is a real concern.

To emphasise that, in our response to the Future Forum's report we made a clear commitment to introduce a duty of candour-a new, contractual requirement on providers to be open and transparent in admitting mistakes. This will be the first time that such a requirement has been specified in contractual agreements with providers. Contracts are increasingly the key way in which providers will be held to account for the quality of the care that they are providing by those who best understand local healthcare-clinicians and patients. The contracts give the people who are actually spending NHS money on behalf of their populations the power and the levers to require quality improvement and to scrutinise the performance of providers. Therefore, placing a duty of candour in the NHS and contracts reflects the importance we place on the issue. I cannot agree with the noble Baroness that it is somehow a snub or an insult to patients, as she put it. Nor do I think that it is an obligation with a lesser status than a statutory obligation would be.

Accordingly, I support the intention behind the noble Baroness's amendment, but I do not agree that the most effective way to achieve it is through a duty set out in the Bill. The amendment suggests that the Care Quality Commission should have a role in ensuring that health service providers comply with a duty of candour. However, we do not believe that the CQC overseeing compliance would be the most effective way to underpin a new requirement. The CQC itself has said that it would not be able to enforce such a duty routinely and that it would not fit in with its role as a risk-based regulator.

The Government want the duty of candour to be as effective as possible in promoting openness. Rather than rushing to insert what may be an ill-thought-through and impractical duty in primary legislation, we are currently consulting on how best to implement a duty of candour through contracts with commissioners. The consultation explores how we can best support patients and clinicians to demand candour from healthcare organisations and how commissioners would enforce and report publicly on it. If appropriate, there may be an opportunity in future to include such information in the CQC's quality and risk profiles. Incidentally, I encourage the noble Baroness to take part in the consultation, if she has not already done so. The consultation also explores what we should expect commissioners to report publicly in terms of their enforcement of the requirement. As I said, if appropriate, there may be an opportunity in future to ask the CQC to report on that.

Transparency is important, but I assure noble Lords that measures are already in place to ensure transparency within the NHS. For example, as has been mentioned, clinicians have a professional duty to act openly and admit mistakes. In addition to their professional duty, the NHS Constitution sets out the responsibility of health service staff to aim to be open with patients, their families, carers and representatives, including if anything goes wrong. The majority of clinicians are open with their patients and will, despite the difficulty of the conversation, admit mistakes to patients, so patients receive an apology. Where openness does not happen, it is usually as a result of a closed culture that exists within an organisation rather than a case of individual clinicians simply covering things up. I agree with the noble Baroness, Lady Hollins: clinicians must be able to work in a supportive environment where they are encouraged to admit mistakes and learn from them. It is this culture that we aim to foster in the NHS. The question is how best to promote that culture.

Baroness Williams of Crosby (Liberal Democrat)

I am grateful to the noble Earl for giving way. Before he leaves the commissioning issue, would the conditions on candour laid down in the contracts apply to contracts with new providers who came from the private sector as well as to those from the old NHS sector?

Earl Howe (Conservative)

Our intention is that any provider supplying services to NHS patients should be subject to this duty of candour in the contract, but my noble friend will know that we are consulting on how best to do this.

Baroness Wheeler (Labour)

Perhaps I may ask the same question about clinical commissioning groups and GP contracts.

Earl Howe (Conservative)

I will come on to talk about GPs and primary care providers in a moment, if the noble Baroness will bear with me. I listened with great care-

Lord Campbell-Savours (Labour)

Will this cover private contractors where they provide a service to the National Health Service? What would happen in a dual provision facility whereby, let us say, half the clients were private and the other half were from the National Health Service? Would this provision apply only to those who were in effect being funded by the National Health Service?

Earl Howe (Conservative)

Clearly, our concern is for NHS patients. We cannot legislate for private patients who may have completely different terms in the contract. However, the point is that if an independent provider comes forward as an accredited provider for the health service, we should subject that provider to exactly the same kinds of duties that apply to an NHS provider.

I was about to say that I listened with great care to the noble Lord, Lord Winston, and my noble friend Lord Lucas, who I thought spoke wise words in their respective speeches. We have made it clear that we think that services should be commissioned by those who are closest to patients and who best understand the needs of their patients-the clinicians. Therefore, we think it is right that the duty of candour is set out in the contracts that clinical commissioning groups will enter into with service providers. CCGs will be responsible for holding providers to account and therefore will in any case need to consider patient safety events in doing so. In future, the Secretary of State will ensure that this contractual duty is introduced consistently, as the Bill already contains powers for the Secretary of State to set standard contractual requirements where necessary using "standing rules" regulations under new Section 6E of the National Health Service Act, inserted by Clause 17.

The noble Baroness, Lady Masham, suggested that there was nothing in the Bill about patients. I confess that I am disappointed that she has come to that conclusion, as the Bill is all about creating a patient-centred health service-for example, through placing clinicians at the forefront of commissioning, strengthening patient involvement and ensuring that quality is at the heart of all that the NHS does. She suggested that if a duty of candour were in the contracts, perhaps all CQC standards should also be in the contracts. I disagree. A duty of candour is best suited to the contract because, first, the CQC has specifically stated that it is unable routinely to enforce such a duty, unlike the contents of its core standards. Secondly, the issue is very difficult to monitor effectively. Placing the duty closer to patients and clinicians maximises the chances of it working, and placing it in contracts does exactly that.

I would not want the noble Baroness to think that we have chosen the contracting route as in some way a lesser option, showing that this issue is not of importance to the Government. That is absolutely not the case. We propose a contractual duty of candour because we feel strongly that it has the best chance of working. If I may say so, I believe that the noble Baroness has been rather too quick to dismiss the Government's proposals, which, I say again, represent a considerable advance on the current position.

It has been pointed out that the contractual duty will apply only to providers with an NHS contract and that GPs, for example, without a standard contract will not be covered. We have explicitly acknowledged that primary care contractors will not be covered under the current proposals for a requirement in the NHS standard contract, and we have asked for views on this as part of the ongoing consultation. We recognise that we should aim for an holistic system that applies to every provider of NHS-funded services, but we still need to consider what legislative and contractual changes will work best within primary care.

It should also be remembered more widely that the policy of openness still applies to all NHS services, regardless of the existence of any contractual requirement. For example, primary medical services contractors must have regard to the NHS constitution, the professional codes of conduct and any guidance issued by PCTs or the Secretary of State. Once they are registered with the CQC, a failure to be open with patients will contravene clear expectations set out in CQC guidance. Therefore, not including a requirement in primary care contracts now does not provide a reason for primary care contractors to avoid telling their patients about things going wrong with their healthcare.

My noble friend Lord Marks spoke with his customary experience and legal background about the effect of a duty of candour on negligence claims. He made some very interesting remarks about this, and I think he would agree that it is a complex issue. The evidence is split on the effect of a duty of candour. We are aware of studies from the United States on this topic, including work undertaken at the Veterans Affairs Medical Center in Lexington, Kentucky, and we will continue to monitor this area as further evidence becomes available. However, I can cite one example that is also from the United States. Pennsylvania has a duty to notify patients in writing if a serious event has occurred. Feedback from the Pennsylvania Department of Health on that duty to notify suggests that there are unintended consequences. Experience suggests that a likely behavioural change is towards challenging definitions of a serious event and not apologising. Lawyers may try to twist the definition of a serious event so that the hospital is legally not required to send a letter. In the case of Pennsylvania, the cause of this seems to be an ambiguous definition of serious event. Therefore, this is not without its hazards.

Lord Walton of Detchant (Crossbench)

On the noble Earl's point about GPs who are not employed by the National Health Service and the issue raised by the noble Lord, Lord Campbell-Savours, about NHS patients and private patients, does he agree that the professional regulatory authorities impose a duty of candour on those professionals, irrespective of whether they work in the NHS or in the private sector? The same duty imposed by the recommendations of regulatory bodies applies to all.

Earl Howe (Conservative)

I agree with the noble Lord. In fact, the GMC sets out in its Good Medical Practice the following:

"If a patient under your care has suffered harm or distress, you must act immediately to put matters right, if that is possible. You should offer an apology and explain fully and promptly to the patient what has happened, and the likely short-term and long-term effects".

Therefore, the noble Lord is quite right: this would apply whether a doctor was treating an NHS patient or serving in a private capacity.

The noble Baroness, Lady Hollins, asked-

Lord Harris of Haringey (Labour)

I am grateful to the noble Earl for giving way yet again on this perhaps longer than expected debate. Although we have clarity about the duty placed by the General Medical Council on individual doctors, which is obviously helpful, the noble Earl gave us an example from the United States where in essence it is not that doctors conspire to keep material from the patients but that the management of the institution finds different ways to get round the duty to report an incident. The reason for saying that a very clear duty needs to be placed on them is management cover-up, which so often takes place when things go wrong.

Earl Howe (Conservative)

That is exactly why I referred to the need for a culture of openness rather than encouraging a situation in which we simply try to catch people out when they are not open. The amendment tabled by the noble Baroness looks to me like yet another way for people to get into trouble, rather than a way in which an organisation can take ownership of things that go wrong, encourage openness and look in-house to put things right. That is my fear about the amendment.

The noble Baroness, Lady Hollins, asked whether the consultation that we are undertaking covers whistleblowing. No, the consultation is focused on the duty of candour; whistleblowing is a separate, but linked, issue. Since coming to office, we have, as she may know, taken a number of important steps to promote it in NHS settings.

The noble Baroness, Lady Morgan, asked about the timing of the consultation response. She is right to say that the consultation finishes on 2 January. The government response will follow in due time after that. Unfortunately, I cannot be more specific. I shall be happy to write all noble Lords upon publication of the government response and I encourage noble Lords to take part in the consultation before it closes.

My noble friends Lord Mawhinney and Lady Williams referred to mediation. I take their point. They will know that mediation can mean a number of different things. As part of the proposed contractual requirement, we suggest that providers will have to offer an apology and an explanation and provide further information as appropriate, all in person with the patient, their representative, the relevant clinicians and other hospital or trust representatives as appropriate. That might well involve a mediator. I am all for mediation if legal fees and all the expense and heartache that goes with them can be avoided.

Lord Campbell-Savours (Labour)

Following up on what the noble Lord, Lord Walton, said in his intervention about professional bodies, why can we not build into consumer law a requirement on private providers to provide a contractual obligation to their private customers?

Earl Howe (Conservative)

My Lords, unfortunately, I am not an expert in consumer law. My noble friend Lord Marks might be able to enlighten us on this, but there are, of course, consumer protection laws, which every organisation has to abide by, as provided for in the Consumer Protection Act. I think there are probably consumer protection aspects to contracts relating to healthcare services, but we have to tailor the contracts to ensure that we cover the issues that healthcare gives rise to.

The noble Lord, Lord Warner, asked me about the NHS Redress Act and whether the provisions of that Act were capable of taking forward some of the issues raised in the debate. I understand why he has asked that question, but there is a difference between redress for negligence and openness and it is important to distinguish between the two. As such, some of the issues raised this afternoon fall into the remit of redress and associated legislation rather than being specifically linked to a duty of candour. However, I note that, notwithstanding the long hours that we spent debating the NHS Redress Bill some years ago, the previous Government chose never to bring it into force; it is potentially on the statute book, but it is not in operation.

I shall reflect carefully on the points made in this debate. I hope that I have in some way reassured the noble Baroness, Lady Masham, that we are putting systems in place to introduce the duty of candour. To answer my noble friend Lord Mawhinney, we have a strategy. There are good reasons for the contractual route that we have chosen as well as a real potential downside if we were to go down the statutory route proposed here. So against that background, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Hussein-Ece (Liberal Democrat)

The Minister's comments on mediation prompt me to ask a further question. When I dealt with many of these cases, the complaints procedure was on three levels and the first, immediate level was when the patient or the patient's representative came forward with a complaint to seek local resolution, and often mediation was used to bring the parties together to give, as far as possible, full information. This is very patchy and I was wondering whether, within the consultation and the contractual duties to which the Minister has referred, that will be extended so that things can be resolved at the first level before they get to the litigation stage. Is that being considered?

Earl Howe (Conservative)

I shall have to get back to my noble friend on whether it is specifically mentioned in the consultation. I can say that it is absolutely pertinent to the subject matter on which we are consulting. It would be extremely helpful if some of the response to the consultation covered issues such as mediation. We need to factor that in and perhaps my noble friend, with her experience, will feel able to send us her views on the subject.

Baroness Masham of Ilton (Crossbench)

I thank all noble Lords who have supported, or not supported, the amendment. I say to the noble Lord, Lord Winston, that the last thing one wants is to make a difficult situation more dangerous. One wants to achieve accident prevention. It is vital that patients have trust in the doctors, nurses and other professionals who are treating them. Something has to happen now about the culture. We have to look at what happened at the Mid Staffordshire General Hospital. I sincerely hope that something will be learnt from that. I know that the Government want to improve things. I think that all doctors in the House are trusted by their patients, but there are doctors who have lost their patients' trust. That is why I feel very strongly that whatever the Government try to do will have to be done by statute. Many doctors just follow the book and do not do what they should do.

I feel very strongly that your Lordships' House, with all its expertise, as displayed tonight, must find a way. I sincerely hope that that will happen with the blessing of the Minister and the Government. I hope that we can work together and, before Report, get something that is acceptable to everyone, especially to patients. One must remember the patients who have suffered so badly and who are suffering today. Every time I open a newspaper, I see something about the culture of nursing, and something has to be done. It is the Government's responsibility. We should go for a statutory obligation to protect patients. With that, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Clause 3 : The Secretary of State's duty as to reducing inequalities

Amendment 21

Moved by Lord Warner

21: Clause 3, page 2, line 33, leave out "must have regard to the need" and insert "is required"

Lord Warner (Labour)

My Lords, my name is on this amendment along with that of my noble friend Lord Rooker, who cannot be with us this e0ovening. I also support many of the other amendments in the group aimed at strengthening the Bill's provisions relating to reducing inequalities.

The problem of health inequalities has bedevilled the NHS since its inception. There are very considerable variations in health outcomes around the country and even in the same area between different groups. That variation was graphically illustrated by my noble friend Lord Darzi in his excellent report on London's health services in 2007, just before he became a Health Minister. That report showed that, as you travelled the seven stops on the Jubilee line between Westminster and Canning Town, so male mortality worsened by seven years. Of course, some of this deterioration is to do with income, housing, education and environmental issues. However, good access to services, good health education and good-quality treatment can have a strong mitigating effect. Therefore, we should be unequivocal in the duty we place on the Secretary of State to work to reduce inequalities. The wording that the noble Lord, Lord Rooker, and I propose is-if I may put it as gently as I can-much less weaselly than the Bill's current wording in proposed new Section 1B. Our wording effectively strengthens the impact of the other more detailed provisions in this group. I hope, therefore, the Minister will look sympathetically on our more dirigiste wording. I beg to move.

Countess of Mar (Crossbench)

My Lords,I support this amendment. If ever there was a case against inequality of treatment, it is for people with ME. I am saying ME rather than ME-CFS because that is too long. The postcode lottery for people with ME has been highlighted in two inquiries by the All-Party Parliamentary Group for ME over the last five years. People are constantly writing to Ministers complaining; the noble Earl himself knows, because I keep complaining about it. In 2002, the Chief Medical Officer announced an award of £8.5 million to set up specialist centres for ME. These have just fizzled out. Once the £8.5 million ring-fence money had been spent, the first thing that was cut was services for people with ME. The trouble is, they are blighted with the distinction of being yuppie flu sufferers-people who swing the lead. They are not: this is more and more often now being proven to be a physical disease with mental side effects, as cancer and MS and a whole lot of other chronic diseases are. It is time the inequality of treatment for people with ME-CFS was obliterated.

Perhaps the worst inequality is in services for children. There are virtually no ME services for children in the UK, particularly children who are bed-bound and housebound, and this is a disgrace on our society. These children-very often high-achieving children-are suddenly struck down; they can no longer have social relationships because they are too ill or too tired to cope; they cannot continue with their education and yet there is no medical attention for them. I am sorry-I am suffering myself at the moment, so I am not being very comprehensive in what I am saying-but it does need to be said that these people need to be looked after. I support the amendment in the name of the noble Lord, Lord Warner.

Baroness Thornton (Labour)

Eight noble Lords have amendments down in this group about inequalities. Many of them seek to do the same kinds of thing. I intend to speak to Amendments 22, 25A, 27A-I mention in passing that my noble friend Lord Beecham has his name against Amendment 29-31, 32, 68A, 68B, 69B and 120A.

I will quickly run through these amendments. Amendments 21, 22, 23 and 25 strengthen the duty on the Secretary of State to reduce inequalities in the health service. The Bill currently requires the Secretary of State simply to "have regard to" this need. Amendment 21 says "is required"-the strongest of these amendments-followed by Amendment 22 with "seek", and Amendment 23 with "act with a view". Amendment 25A says it is the Secretary of State's duty to reduce inequalities between people and "between communities" in England. I will return to that in a moment. In Amendment 27A, we on this side are seeking to add detail to the inequalities that the Secretary of State has a duty to reduce. We argue that,

"inequalities in health status, outcomes and experience, ... the outcomes achieved ... by ... those services",

and,

"ability to access such services",

must be taken into consideration. My noble friend Lord Beecham has added his name to the amendment in the name of the noble Lord, Lord Rooker. It adds a qualifier to the duty to reduce inequalities:

"to ensure that greater patient choice is not accorded a higher priority than tackling health inequalities".

Amendment 31 says that, in an instance of a conflict of duties on commissioners or regulators, the duty to reduce inequalities is paramount. Amendment 32 says that, as part of this duty, the Secretary of State must publish comprehensive, publicly available data on the extent to which inequalities have been reduced across the NHS. Amendment 68A says that the duties of the NHS Commissioning Board as to the improvement of public health should be extended to cover the duty to reduce health inequalities. Amendment 68B concerns each local authority having to take steps to reduce health inequalities between people and between communities. Amendment 69B again relates to public health: the Secretary of State must also seek to reduce health inequalities between people and communities. Finally, Amendments 120A, 190A and 190B are about the national health Commissioning Board having a duty to reduce inequalities in health status. Noble Lords will get the theme that is running through here.

Clause 3 places a duty on the Secretary of State to have regard to health inequalities, and that is an aim and aspiration that we would, of course, support. However, the problem with this clause is that that duty is not capable of effective fulfilment. For example, public health analysis and needs assessment require comprehensive area-based population data. This is the basis of the current health system mechanisms for resource allocation and for the commissioning of public health measures designed to prevent or ameliorate systematic inequalities both between groups of residents in an area and across and among areas, with respect to the access of resources, services, and their use and outcomes. Census estimates, adjusted for factors such as age and deprivation, are used as the denominator for the population in such analyses. Our problem with this Bill is-and I would be grateful if the Minister would address this issue-that public health analysis will not be able to be carried out in this way in future because of the proposed shift from area-based PCTs to GP-listed clinical commissioning group structures. Therefore, denominators which allow GP registrations to promote reductions in inequalities might be inherently problematic because of continuous enrolment and disenrolment, which affect accuracy, as does patient selection. The denominator will not be representative of all the people in a geographically bounded area. Without a geographic population focus, it will not be possible to monitor inequalities. I realise that part of these issues is also addressed in amendments needed to Clauses 7 and 10, but they are points which we would like to have addressed here.

Amendments 120A and 190A address the argument that local authorities and clinical commissioning groups should have a duty to reduce inequalities not only in their areas, but also in England. We think this makes sense because, for example, somewhere like Lambeth or Bradford-where I come from-could make huge improvements within area inequalities but still lag miles behind the rest of the country. Amendment 25A calls on the Secretary of State to act to reduce inequalities between people and communities. The word "communities" is important in this context because it speaks to local authorities. Given that public health inequalities are going to be in their jurisdiction, it seems that this is an important matter. Therefore, we would like the Bill to address within-area geographical inequality because it refers to inequalities between groups and communities of groups, not just an individual's access and receipt of services. We believe that the Government should set out how they intend to use non-legislative levers and incentives to translate the duties in the Bill into practical action and how the NHS will be accountable for progress in reducing health inequalities. Our Amendments 31 and 32 tie in with this. We think we need to understand where those levers will exist, how they will be used and how the Government will measure inequalities.

As noble Lords will realise, Amendments 120B and 190B also arise directly out of the Equality Act and concern individuals and discrimination in terms of the receipt of services. I know the noble Baroness, Lady Greengross, will address Amendment 33, which is tabled in her name. We believe that Amendment 120B addresses the general duties of the national Commissioning Board, which are vital parts of the picture. If the duties to deliver and secure provision of the health service are split between the Secretary of State, the board and CCGs, corresponding duties to reduce inequalities must also be exercised by all three, and these amendments seek to put that in the Bill.

Lord Turnberg (Labour)

My Lords, I had not intended to speak to these amendments, but it is clear that we have had problems associated with inequalities for a very long time, and they persist. Many years ago, we had the Black report on inequalities in health, which was a major landmark, and since then we have had Sir Michael Marmot and his marvellous book The Status Syndrome pushing away at the inequalities in health, and my noble friend Lord Layard and his book on happiness and the inequalities in life in general. There is no doubt that the effects of inequalities are very severe. We see quite marked differences in health and life expectancies in communities adjacent to those where life expectancy is very high. We have some communities where several years of life are lost. The effects are very severe indeed. The reasons why there are such inequalities are multiple. They are certainly way beyond the ambit of a health Bill. Clearly there are factors outside health services that make the difference. Nevertheless, it is important that we have within a health Bill recognition of that fact and of the need for those within a health service to take account of inequalities and make recommendations as a result of them, so I am very much in favour of these amendments. We should have them in the Bill.

Baroness Williams of Crosby (Liberal Democrat)

My Lords, I am grateful to the noble Baroness, Lady Thornton, for so clearly analysing the different amendments. I shall keep to those that are grouped together. As she said, the gravamen of the amendments is towards the view that the duties of the Secretary of State and, indeed, of other bodies involved in the NHS should be strengthened and put in rather more forceful terms. Whether one prefers "require" or "with a view to", those words strengthen the position with regard to health inequalities from the rather low-level pressure of "with regard to".

I say right away that my noble friend Lord Howe said, and I thought said very strongly, that this Bill contains a great many references to inequalities. It is also absolutely true that, as the noble Lord, Lord Turnberg, said, doing something about them is a very difficult exercise. One of the striking findings of the wonderful book The Spirit Level, which I have referred to before in this House, is that where there are grave inequalities in society, there are almost invariably grave inequalities in health as well. As the noble Lord, Lord Turnberg, said, the two are very closely related. Blame cannot be put entirely, or even largely, on the health service for the continuing inequalities. We know that there are very grave inequalities, both geographical and generational, between different parts of our society. To take only one example, lifestyles that feed bad health tend to be rather different between one section of society and another. I shall quote the words of the King's Fund on the attempt made by the previous Government, to whom I give due credit, to deal with inequalities using the quality and outcomes framework. There was not much effect. The King's Fund dismissed the whole effort with slightly contemptuous phraseology. It referred to,

"a medicalised and mechanistic approach to managing chronic disease",

which is fairly damning. In addition, we know that economic differences between regions are very often reflected in health outcomes and, therefore, that looking at health outcomes has to be related to other outcomes: educational, income and social.

Let me therefore speak very quickly about some of the practical steps that can be taken to make the ethos and goal of this Bill more effective. The very first, which we will come to later, is crucial. It is taking public health from the Cinderella role it has had for many years to being seen as an essential part of a holistic health service. I refer to a series of articles in the Health Service Journal, the most recent of which appeared two weeks ago, about the failure to use modern communications much more effectively to get across to the public their own share in creating a better health outcome for themselves. All over London at the moment one can see in the windows of pharmaceutical companies, drug companies and so on abjurations to all of us to get ourselves a flu jab as quickly as possible. We also see, more widely, references to the dangers of smoking. Those are very simple examples of communications, but they could go a great deal further. If we can persuade our colleagues in public health and in individual clinical commissioning groups to use communications of the latest kind much more broadly and proactively, we would find one way in which to reduce the heavy demands made on the health service's clinical and medical aspects.

Let me give one example. Nowadays quite a few people with chronic illnesses have formed networks of patients. They exchange an extraordinarily advanced and sophisticated level of mutual knowledge and understanding about the use of new drugs, new techniques and even about how the way in which one lives can reduce the risks inherent in particular chronic sicknesses. I think that is absolutely right. At the heart of public health is not only treatment but, perhaps more importantly, education. We still have a long way to go in that respect to bring patients into the business of helping to look after themselves, so my first question to the Minister is: how far are we putting emphasis on new communications technology as part of the future of public health?

The second thing I want to mention is the importance of clinical commissioning groups looking at the real danger, which was spelled out by Mr Dalton, the director of a PCT cluster, of creating what he called sink estates: clinical commissioning groups that end up with all the tough cases in an area. As we move towards coterminosity, I hope we will move away from that risk, but one cannot completely rule it out. It is something that a very close eye will have to be kept on by the clinical Commissioning Board to ensure that we do not see the creation of groups that are underfinanced, or at least, perhaps, underqualified, ending up with the hardest cases in the community.

I promise that I am not going to go on for very much longer, but thirdly, I believe it is of great importance to ensure that as far as possible-and this is caught up in the amendment to which the noble Baroness, Lady Thornton, referred-publicity is given to the inequalities continuing in health so that we become more aware of the extent to which health inequalities could be tackled, possibly by methods other than simply health itself.

In that context I say rather loudly and clearly that I find it rather hard to understand the distribution of funds to local authorities on the basis of the so-called non-chronic expectation of life figures-which seem to have bitten very hard on some of the poorest communities in the country-and to emphasise that it is important for those who are dealing with a health service to look at their relationships with other government departments to ensure that the one objective is supported and helped by the others. I am worried that areas such as Knowsley, Merseyside and Manchester appear to be among the heaviest losers at a time when we are trying to bring social care and health together.

The final instance I want to give, which I think is also very important, is the crucial role in this respect of the health and well-being boards. I pay tribute to the Government for the role they have given to health and well-being boards. We are only at the very beginning of the development of the strength and influence of them. To take one example, I hope we will move towards a situation where the health and well-being boards not only are consulted by the clinical commissioning groups but their support and approval is required before a clinical commissioning group can go ahead with the business plans it has for its neighbourhood.

To conclude, the mobilisation of health and well-being boards behind the concept of a fairer and more equal health service is an absolutely crucial potential we all need to help realise.

Lord Patel (Crossbench)

My Lords, I support these amendments and I have my name on two of them. I particularly associate myself with the comments that the noble Baroness, Lady Williams of Crosby, made on the need to address the issues within public health to reduce inequalities.

We must all be very encouraged to see the recommendations of the Health Committee in its report of 2 November on public health. One of the recommendations says:

"We do not understand why the Secretary of State's new statutory duty to reduce health inequalities under the Bill appears to apply only to the exercise of his functions in relation to the health service. We recommend that the Bill be amended to make it clear that the Secretary of State's duty to reduce health inequalities applies in the exercise of all his functions, including those applying to public health".

The noble Baroness, Lady Williams, already referred to the inequalities in health that occur because of lifestyle-related diseases. In previous discussions we have noted that 40 per cent of acute admissions are related to lifestyle-related diseases. It must be right that the statutory duty of the Secretary of State includes functions relating to public health.

Baroness Greengross (Crossbench)

My Lords, I will speak to Amendment 33 in my name. I am pleased to follow the noble Baroness, Lady Williams, and the noble Lord, Lord Turnberg, because a lot of my work is concerned with the sort of inequalities they have spoken about. The noble Lord, Lord Turnberg, mentioned Professor Sir Michael Marmot. I have been privileged to chair the advisory group for the longitudinal study on ageing that he established. I have done that since it started. It demonstrates so clearly the terrible, almost life-or-death sentences that health inequalities impose on different groups in terms of their life expectancy. This is really something that is quite impossible for us to continue.

My other role as the lead commissioner on age at the Equality and Human Rights Commission means that I hope very much that we can, if we amend this Bill, achieve more positive healthcare outcomes. The Bill, in order to achieve that, must be explicit that improvements have to be achieved across the whole population, not just some parts of it. We know that one group whose needs are currently very often underprioritised and underrecognised is older people, particularly within the NHS. Sadly, ageism persists in clinical practice-very often older people lag behind other groups in terms of better healthcare outcomes. I am very concerned that unless a clear obligation to demonstrate that improvement is being achieved across the whole population, the specific needs of older people will continue to lag behind those of other groups or sometimes to be ignored and similar existing health inequalities may even be maintained and strengthened.

My amendment would define the Secretary of State's duties to reduce health inequalities against three different criteria: the definitions of equality contained in the Equality Act 2010; different parts of England; and different socio-economic strata. In any subsequent reporting of progress towards reducing health inequalities, the Secretary of State would have to demonstrate consistency in the progress made against the three criteria.

My amendment would clarify the Secretary of State's duties in relation to reducing health inequalities. I am afraid that without this in the Bill health service improvement may not reach everyone. There may be a failure to improve services for specific groups such as those mentioned within the list of protected characteristics. Clause 3 currently requires the Secretary of State to have regard to the need to reduce inequalities between the people of England with,

"respect to the benefits that they can obtain from the health service".

The amendment to this clause would ensure that access to health services and improving health outcomes were an intrinsic part of the Secretary of State's duties. Without guaranteeing improvement in access to services, there is a risk that there could be high levels of variation in the kinds of services the NHS provides across the country.

I have listed the equality characteristics detailed in the Equality Act 2010 which is not necessarily Members of your Lordships' House. Too often it has been the case that health inequalities exist in part because people belong to one of the groups listed here and there is actual discrimination against a patient. In relation to specific treatments, patients are treated differently not purely on the basis of clinical decisions but on the basis of one of the protected characteristics, particularly age. For example, despite improvements in cancer outcomes, a 2007 study of breast cancer patients in Manchester found that older women are less likely than younger women to receive "standard" management for breast cancer and less likely even after accounting for differences in general health and co-morbidity to have surgery for operable breast cancer.

My amendment will ensure that the Secretary of State's duties are clear and specific and that people across England can be sure their access to healthcare and the quality of the healthcare they need will be assured regardless of who is providing the service. The areas where the Secretary of State can demonstrate improvement in reducing inequalities should be balanced and fair in their focus. The risk otherwise is that commissioners will be incentivised to invest their efforts in improving health outcomes for those groups where they believe they can make the easiest and quickest gains and some groups, including older people, risk being shunted to the sidelines. This must not happen.

Baroness Murphy (Crossbench)

My Lords, I have a great deal of sympathy with those who want to beef up this duty on the Secretary of State. I want to ask the Minister to explain why the public health function was left out-it is very specific about NHS responsibilities. I suspect the answer is that public health is in relation to other departments of state. He is shaking his head so perhaps that is not the answer. Working in the NHS one cannot but be aware of these profound inequalities. Within the first week of going as chairman to the east London health authority, three facts hit me in the face. First, in Hackney, people had only a 25 per cent chance of referral for a hip replacement as per the norm for England. Secondly, in Newham, mortality rates for bowel cancer after treatment were 30 per cent worse than elsewhere. It clearly emerged that there was a failure of referral to access, for, particularly, certain of the ethnic communities. Thirdly, on a visit to the community podiatry service, every patient was white in an area where the population was 25 per cent black and minority ethnic. Simply, no one had ever asked them the relevant question. Addressing inequality seems to be profoundly difficult on the ground: you must have the information and the wit to discover whether there is a problem of access, referral or discrimination and treatment, or whether there are underlying features of the illness that make inequalities difficult to address.

This clause, which fundamentally is a great improvement on what has gone before, is important because it gets the matter into the Secretary of State's duties. The phrase "have regard to" is quite powerful but I wonder whether it quite reflects the determination that we have all felt over the years when we have read the work of Michael Marmot and various groups, going right back to the Black report, and to ask why we do not have something a little stronger that gives teeth to local commissioning groups to examine these issues very carefully locally.

Lord Ribeiro (Conservative)

I want to pick up on something that the noble Baroness, Lady Greengross, mentioned; namely, elderly patients perhaps being denied treatment. There is a real danger in not recognising that the clinical decision is based on the quality of the patients rather than their age, which is important. We are all aware of 60 year-olds who are basically crumbling with significant code morbidity and who would not be considered for surgery. Yet, there are many fit and self-caring people in their late 80s who may fracture a hip and would be worthy of surgical treatment. In fact, many people in your Lordships' House in that age group may have benefited from that type of treatment. It is very important that we should see this in the context of clinical need rather than just one of age.

Similarly, as regards cancer and the point I made about the older generation, not that long ago in the United States a carcinoma of the prostate was open season for anyone to have a radical prostatectomy practically at any age, be it 80 or 90 years old. The morbidity and mortality associated with that radical surgery was very high. The American College of Surgeons, at recent meetings I attended, recognised that patients over the age of 75 should not be offered this type of surgery unless there is a very good reason. It is also a well known fact that 80 per cent of males aged 80 and over actually have-not just probably have-carcinoma of the prostate. But on whether they should have treatment for it, they are more likely to die from other conditions than from their cancer. Although age is important, it should not be a specific criterion for determining whether treatment is given or not.

Baroness Tyler of Enfield (Liberal Democrat)

My Lords, I, too, should like to speak in support of this raft of amendments which are all designed, to use the words of the noble Baroness, Lady Murphy, to give greater teeth to reducing health inequalities. We have already heard various statistics from a number of noble Lords and those for life expectancy are generally the most stark. The statistic that means the most to me relates to London, probably because that is where I live; namely, that the life expectancy of men ranges from 71 years in one ward in the London Borough of Haringey to 88 years in one ward in Kensington and Chelsea. That is a huge difference of 17 years. It is worth also pointing out that even within Kensington and Chelsea, there is a difference of nearly 12 years in life expectancy across different parts of the borough.

As many noble Lords have said, there is a whole range of reasons for this, including the social and the economic. It is one of the things that underline the critical need in our debates to put more focus on public health interventions. I also very much welcome the establishment and the role of Public Health England, and the fact that the public health function at a local level will sit with local authorities.

In discussing the need to strengthen these duties, it is important to recognise and welcome that having explicit duties placed for the first time on the Secretary of State, the NHS Commissioning Board and the clinical commissioning groups is a landmark, representing a major shift from the current position. There is something very significant about the whole raft of these NHS reforms.

The phrase "have regard to" health inequalities for the clinical commissioning groups is not sufficient because we need to make sure that they act and behave to secure real improvements, which need to be in both access to NHS services and in outcomes. I want those CCGs to account publicly for their progress, not simply as part of normal accountability but as part of sharing good practice and workforce development, and in the training of NHS employees. It should become part of the everyday currency and language of the NHS, part of the DNA of the way in which the health service operates. I believe that this strengthening is necessary if the NHS reforms are to become a real game-changer for some of the most disadvantaged group in society-to borrow from the words of the public health White Paper, Improving the Health of the Poorest Fastest.

Perhaps I may give an example in relation to homeless people who experience some of the worst health inequalities of any group in society. They are more likely to die young, live with a long-term condition, have multiple health problems and have mental health or substance use issues. They are also far less likely to have regular contact with a GP or other health professional and are much more likely to access healthcare through A&E, which is inappropriate and, as we know, causes all sorts of problems for A&E departments. In short, they are the most likely to have very poor health and the least likely to benefit from what the NHS has to offer.

Of course, many services are needed to help homeless people to improve their outcomes, including housing, employment, family support and other things. But it is particularly important that the NHS is able to cater for the needs of these groups. Appropriate services are far more likely to be commissioned where clinical commissioning groups have a duty to take account of these health inequalities in their plans and reporting mechanisms and the standards to which they are held to account, and that they are ensuring that these arrangements are incentivised through the commissioning arrangements.

I very much support the principle of the amendments put forward and I look forward to hearing the Government giving an even stronger commitment to tackling health inequalities and to making this a key outcome of the overall package of reforms that we are discussing.

Baroness Armstrong of Hill Top (Labour)

My Lords, I seek only to intervene briefly on this. The whole issue of how to tackle inequalities in health is an extremely complex and difficult one. When I was a Member of Parliament, I looked forward to receiving from the department reports on a regular basis on how inequalities had been addressed and how health had improved throughout the constituency. What was clear was that the more effective our public health interventions were, such as on reducing smoking, the more difficult it was to tackle inequalities. The people who automatically responded best to those interventions were those on higher wages, with better qualifications and who were likely to be in higher class groups than those in the poorest parts of the constituency. That could always be seen clearly in those reports. The amendments that support better information are very important because clinical commissioning groups in particular are not well placed instinctively to tackle inequalities. It is generally not part of the training of GPs to look at these issues and work out how to address them.

We have already discussed the second issue today, and it is important-the issue of access. Unless we open up access much more sharply to the disadvantaged we will not have a chance of addressing inequalities. The noble Baroness opposite talked about homelessness. I have discussed this issue with the Minister on a number of occasions, and I am not content that the Bill deals with it adequately. It is not fair to ask clinical commissioning groups to address this issue. Sometimes they will simply be too small to do so. Also, homeless people tend to be fairly mobile, so in London they will cross authority areas. From my experience in the north-east of England, a single PCT-or what will now be the smaller clinical commissioning groups-does not have the people available properly to offer the sort of services that are needed to open up access effectively to those who are not normally registered on a GP list.

I am also concerned that clinical commissioning groups may be responsible for areas with poor GP coverage and there will be a need to bring in salaried GPs. It will need someone other than a clinical commissioning group to address the issue of GP shortages-and it is always the poorest areas which have the poorest access to GPs. It is an issue that continues to have to be addressed time and time again. I was pleased when the last Government introduced many more salaried GPs, but we have to keep on top of that agenda.

I also support the amendments that look to the responsibilities of the NHS Commissioning Board. There will be occasions when the board has to come in specifically to address inequalities in a range of ways. I am not sure that it is really geared up to do that at the moment. But because I certainly do think that clinical commissioning groups are not going to be able to do this on their own, and indeed it would not be appropriate for them to address some areas of clinical commissioning, it is very important that the department, the Secretary of State and the Commissioning Board think about how they are going to do this effectively.

Baroness Hollins (Crossbench)

My Lords, I particularly welcome the amendments which are designed to strengthen the duty to reduce health inequalities between people and communities, the emphasis here being on inequalities not between "the people of England", but between individuals as well as groups. I draw attention to this because in 2008 the Department of Health drew up a policy on health inequalities, and I sat on the group which developed it. I was pleased when the document was published in June 2008 because it talked about the group that I am interested in, which is people with learning disabilities. I shall read out a short paragraph from the executive summary because it makes my point very nicely:

"Progress on health inequalities will be judged against how public services treat especially vulnerable groups. The recent Disability Rights Commission report made it clear that people with learning disabilities often receive a poorer level and quality of service from the NHS. If services and health outcomes are improving for people with learning disabilities, they are likely to be improving for other groups at risk of health inequalities".

The report goes into some detail about the importance of measuring the improvement in health inequalities for particularly vulnerable groups. That is a good measure to measure progress in the NHS.

Baroness Thornton (Labour)

My Lords, perhaps I may respond very briefly from these Benches. I took the Committee through our amendments at a gallop, so perhaps I may make two points very quickly. This debate has illustrated the problem that these amendments seek to address, and indeed it was illustrated by criticism from the King's Fund and the Commons Health Select Committee, referred to by the noble Lord, Lord Patel. The duties, although welcome, are too narrowly drawn and, crucially, do not extend to local authorities. I might say that the noble Earl's party does have form in this matter. We know how a previous Conservative Government treated the Black report, ready in 1980 just after the Conservatives came to power. It was not to Mrs Thatcher's liking and was never printed. Only 260 photocopies were distributed in a half-hearted fashion on bank holiday Monday-my noble friend says that he has two of them. I know that the coalition Government would not allow that to happen and I welcome the change of heart that is shown in this part of the Bill.

However, my understanding is that the weighting given to health inequalities in the formula of allocating NHS funding has been reduced from 15 per cent to 10 per cent. Can the Minister confirm that that is indeed the case? What signal does it send about the Government's priorities and their commitment to dealing with health inequalities? It seems to me that the commitment to dealing with health inequalities could be remedied. There is a need for a widened definition of health inequalities to include reducing inequalities in the health role, and of access for the Secretary of State, the NCB and clinical commissioning groups. There is a need to specify and define inequalities, particularly inequalities between groups and communities rather than individuals, and there needs to be a strong duty on local authorities as public health duties are transferred to them.

Finally, the message here is that the Minister needs to look carefully at these amendments and that the Committee is very interested in engaging with the Government to strengthen this part of the Bill. I look forward to the noble Earl's remarks.

Earl Howe (Conservative)

My Lords, the Government are committed to reducing health inequalities, to ensuring equity and fairness across the health service, and to improving the health of the most vulnerable in our society. On top of the pre-existing general public sector equality duty, for the first time the Secretary of State will have a specific responsibility to,

"have regard to the need to reduce health inequalities",

whatever their cause. This duty will be backed by similar duties on the NHS Commissioning Board and clinical commissioning groups. Taken together, these duties will ensure a focus on the reduction of health inequalities throughout the system, with special consideration paid to outcomes achieved both in relation to NHS services and to public health.

While many noble Lords seek to amend these new duties, we believe that they are right as they stand. The duty will not be an add-on or an afterthought. The Secretary of State, the Commissioning Board and clinical commissioning groups will be required always when carrying out any and all of their functions to have regard to the need to reduce inequalities. I should also point out here that the duty is purposefully non-specific. Amendments 21, 22, 23, 25, 27 and 27A all aim in different ways to strengthen the wording of the Secretary of State's duty. While I fully accept that the reduction of health inequalities must be a priority for the Secretary of State, it must also be recognised that the causes of health inequalities and the remedies to them are complex and multidimensional and require a multisector approach. Factors such as poverty, education, employment and culture require solutions which extend far beyond the Secretary of State's or the Department of Health's remit or capabilities. The duty on the Secretary of State must recognise the nature of the challenge we face in reducing health inequalities, and it must be deliverable. We should hold the Secretary of State to account only for the things that he is responsible for. The duty in the Bill is drafted with these factors in mind.

For the same reasons, I am afraid that I cannot accept attempts to amend the wording of the duty to "act with a view to" or "seek to reduce". While I understand the noble Lord's attempts to make the duty as strong as possible, "have regard to" captures the intention of the legislation; that is, that the Secretary of State must consider the need to reduce inequalities in every decision that he takes about the NHS and public health. The approach that the unamended clause sets out is the right way to achieve this. As it stands, the Secretary of State would have to have regard to the need to reduce inequalities in any decision that he made. Contrary to what some have thought, having regard is a strong duty which shows the Government's commitment to the reduction in health inequalities. The duty to "have regard to" has established meaning and has been used in other important legislation, such as the duty to have regard to the NHS constitution in the Health Act 2009. The courts can and do strike down administrative actions in cases where decision-makers have not had regard to something in contravention of a statutory duty to do so. For example, they have struck down decisions of public authorities for failure to have due regard to their equality duties. The courts have said in relation to public sector equality duties that the duty to have due regard must be exercised with rigour and an open mind-it is not a question of ticking boxes. The duty has to be integrated within the discharge of the public functions of the authority. It involves a conscious and deliberate approach to policy-making and needs to be thorough enough to show that due regard has been paid before any decision is made.

Perhaps I could clarify for the benefit of the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, that the duty in Clause 3 already applies to public health functions. The expression,

"functions in relation to the health service",

covers both NHS functions and the Secretary of State's public health functions. "The health service", as that term is used in the 2006 Act, is not limited to the NHS.

Amendment 27, tabled by my noble friend Lady Williams, would have the effect of making the Secretary of State and the Department of Health responsible for reducing inequalities generally, beyond those relating to health. We cannot accept the amendment because there are many areas, such as wealth inequality, which are rightly not within the department's responsibility, and therefore to place a duty on the Secretary of State for Health to reduce these would not be practical.

Amendment 27A, tabled by the noble Baroness, Lady Thornton, would specify that the Secretary of State's duty in reducing inequalities should be in relation to health status, outcomes achieved, experience and the ability to access services. The amendment is modelled partly on the wording of the Commissioning Board's and CCGs' inequality duties. While I agree with the intention behind the noble Baroness's amendment, I can reassure her that the reference to "benefits" in the unamended clause already covers these aspects and so the amendment is unnecessary. The reason that the Secretary of State's duty talks of benefits that people can obtain from the health service is that it includes public health as well as the NHS. The Secretary of State's duty is deliberately broader than the duty of the board and CCGs.

Amendment 29, tabled by the noble Lord, Lord Warner, aims to ensure that promoting patient choice is not given a greater priority than reducing health inequalities. I understand that some people have concerns that greater choice and competition could exacerbate inequalities, and I am aware that there are particular concerns that choice could benefit the better-off at the expense of others. However, our proposals on choice are intended to ensure that all patients are given opportunities to choose. We do not believe that the assertion that the better-off will benefit more from choice is borne out by the evidence. Indeed, recent evidence suggests that choice has the potential to improve equity. For example, some noble Lords may have seen the study published recently by the Centre for Health Economics at the University of York, which found that,

"increased competition from 2006 did not undermine socio-economic equity in health care and, if anything, may have slightly increased use of elective inpatient services in poorer neighbourhoods".

So I do not believe that there are any grounds for thinking that improving choice and tackling health inequalities are incompatible. They should be mutually reinforcing.

Amendment 31, tabled by the noble Baroness, Lady Thornton, would introduce wording to ensure that if the duties placed on commissioners or regulators came into conflict with any other duty, the duty to reduce inequalities would prevail. I fully share the intention of making sure that these organisations do not ignore the goal of reducing inequalities. However, the inequality duty must already be complied with when bodies are exercising all their other functions. Therefore, I cannot agree that other duties placed on commissioners or regulators would conflict with their general duty to have regard to the need to reduce inequalities.

Amendment 32, also tabled by the noble Baroness, Lady Thornton, seeks to place on the Secretary of State a duty to publish evidence about the extent to which inequalities have been reduced annually. I fully agree that the NHS and the Secretary of State should be accountable for their efforts to reduce inequality. Clause 50 already places a duty on the Secretary of State to report annually on the NHS. Since tackling inequality will be such an important legal duty throughout the NHS, we have every expectation that inequalities will be a key reporting theme in the Secretary of State's annual report.

Amendment 33, tabled by the noble Baroness, Lady Greengross, would place a duty on the Secretary of State to give particular regard to certain factors and characteristics when having regard to inequalities. Amendments 120B and 190B, tabled by the noble Baroness, Lady Thornton, would amend the Commissioning Board's and clinical commissioning groups' inequality duties, in new Sections 13G and 14S of the 2006 Act, to include the same list of characteristics and factors. I hope that I can persuade the noble Baronesses that there is no need for these amendments. First, it is unnecessary to prescribe the characteristics and factors to be covered by the Secretary of State, the Commissioning Board and the clinical commissioning group duties. The current, unamended duties would already cover health inequalities arising from any characteristic or factor. On top of this, as we have already discussed, the Secretary of State and the NHS are already bound by the general Equality Act 2010. Section 149 of that Act lists the characteristics covered in paragraphs (a) to (i) of the amendments. Therefore, the Secretary of State and NHS bodies will already have to give specific consideration to these characteristics. In not being specific in the duty on the Secretary of State, Commissioning Board or CCGs, we are keeping the duty with regard to health inequalities as broad as possible, so that no characteristics which drive health inequalities are inadvertently omitted.

As the noble Baroness made clear, there are two new factors not listed in the Equality Act but proposed by the amendments. These are geographical variation and socioeconomic variation. However, it is unnecessary to specify these factors either. They are already well-established dimensions of health inequalities and will be taken into account under the duties on the Secretary of State, NHS Commissioning Board, and CCGs. They are also already specified in the NHS outcomes framework, subject to data considerations.

Apart from being unnecessary, the amendments are also in a real sense undesirable. While I am sure that this is not the intention, their effect would be to give pre-eminence or priority to certain characteristics or factors. We are dealing here with the perennial problem of "the list"; by implication, anything not on the list is less important. Instead, the Government are committed to ensuring that all dimensions of health inequalities are encompassed by the proposed duties, a principle that I am sure all noble Lords can agree with. All factors leading to health inequalities should be considered, with the weight given to them depending on particular circumstances.

Amendments 25A, 68A, 68B, 69B, 120A and 190A have been tabled by the noble Baroness, Lady Thornton, and focus on health inequalities between communities. The amendments to Clause 9 would alter the duty on local authorities to take steps to improve the health of the people in their area and the equivalent power for Secretary of State.

Amendment 25A would amend the existing duty of the Secretary of State to reduce inequalities. While I share the noble Baroness's concerns about the reduction of health inequalities between communities, the unamended Secretary of State's duty already covers this. The current duty applies to inequalities between the people of England, and communities are made up of people.

Amendments 120A and 190A would place a similar duty on both the NHS Commissioning Board and CCGs, when exercising their functions, to have regard to the need to reduce inequalities between people and between communities, not only in access and outcomes, which includes the patient experience, but in health status, which is intended, as I understand it, to mean a standard of health and well-being.

Moreover, the amendments would require CCGs to have regard to the need to reduce inequalities between individuals and communities in their area, and in England as a whole. The board, similarly, would need to reduce inequalities between individuals, and between communities across England.

However, the amendments go beyond this simple replication of existing duties on commissioners by including a reference to health status. This would place a significant additional burden on CCGs and the NHS Commissioning Board, as neither is directly responsible for commissioning for public health.

Amendments 68A, 68B and 69B would amend new Section 2B of the National Health Service Act 2006, which relates to functions of local authorities and the Secretary of State in the improvement of public health. The amendments would add duties to reduce health inequalities as well as to improve health. While I fully appreciate the noble Baroness's intentions in highlighting inequalities, we do not think that the amendments are necessary or appropriate. I hope to reassure the noble Baroness that tackling inequalities in health is a priority for public health professionals and for the Government.

At a national level, Public Health England will be a source of information, advice and support for local authorities and clinical commissioning groups as they develop local approaches to improving health and well-being and communicating intelligence to local commissioning about how best to tackle the public health challenges that they face.

As the Committee may be aware, Public Health England will carry out the Secretary of State's functions. This means that the Secretary of State will already be closely involved in matters of public health. In exercising these public health functions, the Secretary of State is already under a duty to have regard to the need to reduce inequalities between the people of England with respect to the benefits that they can obtain from the health service, as set out in Clause 3.

Amendment 69B would amend the Secretary of State's power to take steps to improve the health of the people in England. The amendment would be intended to give the Secretary of State additional powers to take steps to improve health and reduce health inequalities between people and communities as well as steps to improve health. We think that such a power is unnecessary. In exercising his powers to improve health, the Secretary of State must have regard to the need to reduce inequalities, as a result of Clause 3. This means that he would be able to take steps to reduce inequalities in exercising his health-improvement powers. Reducing inequalities should be an integral part of how other functions are exercised, so this amendment is not the best way of achieving the noble Baroness's aim.

Amendment 68B would amend the local authority duty to take steps to improve the health of the population. The amendment would require local authorities to take steps to improve the health of the population and to reduce health inequalities between people and between communities.

Local authorities are independent democratic bodies that are accountable to their populations in a different way from NHS bodies. We have used different levers such as the grant circular to ensure that a reduction in inequalities is the fundamental driver of the public health system. We believe that these non-legislative levers will be at least as effective as any duty, although of course local authorities are already subject to the provisions in the Equality Act 2010.

The noble Baroness indicated that without area-based populations for CCGs it would be too difficult to measure public health data and tackle inequalities. She is incorrect about that. We disagree that the reforms will hinder the collection and usage of public health data. First, in response to her specific point, CCGs will continue to have a strong geographical basis, as we discussed at length last week. CCGs will play an active role in tackling inequalities. Secondly, the functions of bodies that are currently responsible for public health information and intelligence will also be brought into the department, such as the public health observatories and the cancer registries. This will enable Public Health England to make the most of opportunities for synergies across different services and to eliminate gaps in information to support the better delivery of public health interventions at a national and local level.

Finally, the noble Baroness asked about the reduction in the disability-free life expectancy component of the resource allocation formula. The DFLE adjustment is retained as part of our commitment to reducing health inequalities. The size of the adjustment determines the weighting of the main formula, which aims to fund equal access for all and funding for work to support work to reduce health inequalities. The main formula already includes weighting for additional need to access healthcare in elderly and/or deprived populations.

In the last allocations round, ACRA could find no technical basis for the weighting of the DFLE adjustment and left it to ministerial decision. Until further work on allocations to GP clinical commissioning groups and the public health service has been completed, it is being set at 10 per cent to ensure that funding for work on health inequalities continues.

I apologise for the length of my remarks, but it was important to set out the Government's position on each of the amendments. I hope that I have persuaded noble Lords that the Government are committed to reducing health inequalities, and that the current duties in the Bill are the most effective way of supporting this aim. In the light of my explanation, I hope the noble Lords will not press their amendments.

Lord Warner (Labour)

My Lords, this has been an interesting debate. I do not want to prolong it. The mood of the House was to strengthen the wording in Clause 3 on the Secretary of State's duties on reducing inequalities. A key factor that the noble Earl may have overlooked is the relationship of that duty to the Secretary of State being more active on the subject of access, which is a key part of securing inequalities. In the mean time, I will withdraw my amendment, but I must tell the noble Earl that we may return to this at a later stage.

Amendment 21 withdrawn.

Amendments 22 and 23 not moved.

House resumed. Committee to begin again not before 9.07 pm.

Lord Phillips of Sudbury (Liberal Democrat)

My Lords, Amendments 24, 30 and 299B are tabled in my name and those of the noble Baroness, Lady Finlay of Llandaff, and the noble Lords, Lord Kakkar and Lord Darzi. I hasten to state the obvious, which is that I am a relative ignoramus as regards the refinements of the delivery of health within a hospital. The other three noble Lords who have added their names to this amendment are by contrast as distinguished a trio of consultants as one could find. I must at once, as requested by the noble Baroness, Lady Finlay, give her apologies to the Committee for her inability to be here. She is well out of London.

Amendments 24 and 30 add to Clause 3 which in turn adds to Section 1 of the National Health Service Act 2006. Clause 3 is headed: "The Secretary of State's duty as to reducing inequalities" but refers to NHS patients in different parts of England, not to differences between NHS and private patients within a single NHS hospital.

Other parts of the Bill which talk of equality of access and outcomes are similarly limited. Nowhere in this 445-page mammoth is there any clear statement, let alone requirement, as to equality of clinical treatment and healthcare between NHS and private patients within an NHS institution. Amendments 24 and 30 clarify that. Amendment 299B also clarifies that inessential care such as what one might call the hotel services-the quality of the accommodation, drugs prohibited by NICE standards and indeed treatment and care that is not a clinical priority-can still be provided privately on the basis of privilege. Those matters are, as I say, non-essential and we have put in-the four of us whose names are to these two amendments-Amendment 299B to make very clear that we are not seeking to row back on the status quo.

It was Aneurin Bevan during Second Reading on what would become the National Health Service Act 1946 who said:

"If people wish to pay for additional amenities, or something to which they attach value, like privacy in a single ward, we ought to aim at providing such facilities for everyone who wants them".-[Official Report, Commons, 30/4/1946; col. 57.]

For example the state will provide a certain standard of dentistry free but if a person wants to have his teeth filled with gold the state will not provide that. It is in that vein that Amendment 299B stands in our four names but, and this is a big but, where there are two patients with the same essential clinical health needs-one an NHS patient, another a private patient; one in a public ward, the other in a private ward-the one with the fat wallet can buy priority and buy his way to the top of the queue. That cannot be allowed in our National Health Service. It would be fundamentally against the spirit of the NHS and directly contrary to the ideals on which it was founded.

In a Britain that is becoming more divided in terms of living standards at a rapid rate the maintenance of the ideals of the original NHS for many of us are absolutely integral to our sense of citizenship and sense of comfort in an increasingly differentiated and diverse society. We must not on any account allow under the new regime a-no doubt inadvertent-two-class service to develop in NHS hospitals with regard to essential care. In saying that, I want to make it abundantly clear that neither amendment will touch private institutions that have no NHS connection-they are free to carry on doing what they will, how they will. That is an aspect of freedom in this country on which I would not for a minute seek to trespass.

The dangers are that the privatising and commercialising, as they are fairly called, will, as I say, bring into the NHS a much wider and deeper engagement with the private sector and that could, and I again say inadvertently, develop into a two-class NHS. Let us be clear: the NHS and the private sector march to different drums. The NHS is concerned solely and only with equal free treatment and fair access to any of us who go to its institutions. The private sector, which I do not wish to unduly disparage-which is made up of public companies and many very commercial entities-is none the less first, secondly and thirdly in the business of profit. It is no good saying that doctors and consultants working within the private sector, unless they are sole traders so to speak, will be immune from that commercialisation, the managerialism that goes with it and the pressures that are inevitably engaged when working for a commercial entity.

Amendment 30 strengthens the original ideals of the NHS. Perhaps I may say to my noble friend the Minister what I have said to him previously: I believe that it will cement public support for what is good in this Bill. There is much that is good and I am not for a minute saying that extending the contact with the private sector is wrong. In many respects, it can be good and can bring new resources into the NHS. But that is all at risk unless we put firmly and clearly in the Bill that we will not allow a two-class service of clinical treatment and healthcare within an NHS institution.

I want briefly to refer to the deluge of letters, petitions and the like which everyone in this House has received. In my 14 years here, there have been far more letters on this Bill than any two others put together. My noble friend Lord Razzall mumbles that there were more for hunting. I have to say to him that I do not think there were, but be that as it may. I just mention the Coalition of UK Medical Specialty Societies, which saw the issue that my amendment is designed to address. It wrote:

"Choice must be for patients rather than provider; the provider choosing the simple cases and leaving the unprofitable, more complex cases (elderly, chronic illness, disabled) to fight for remaining funds will disadvantage patients".

A petition from more than 400 public health doctors and specialists from within the NHS and academe said:

"As public health doctors and specialists",

we think that the Bill could usher,

"in a significantly heightened degree of commercialisation and marketisation that will ... widen health inequalities".

It is to prevent that widening that this amendment is put down.

Finally, the BMA, which has informally backed this amendment, in one of its key points states:

"Increasing patient choice should not be a higher priority than tackling fair access and health inequalities".

We all say amen to that. I hope very much that the Government will accept these amendments. It may well be that on Report I will want to bring forward something to make clear that there should be some oversight of the provisions that these amendments seek to entrench, which might be through the monitors. But, for the time being, I hope that the House will warm to these amendments and the sentiments behind them. I beg to move.

Lord Kakkar (Crossbench)

My Lords, I support this group of amendments and in so doing remind your Lordships of my interest as consultant surgeon at University College London Hospitals NHS Foundation Trust, an institution with private healthcare facilities that I would be entitled to use if I ever decided to do so. This group of amendments is very important because it deals with an area of anxiety with regard to potential consequences that will follow removal of the private patient cap. Removing that cap may well provide important opportunities for NHS foundation trusts in the future, opportunities that they may well need to exploit. But in so doing, we need to be certain that access to clinical facilities in NHS institutions from either NHS patients or those in private healthcare facilities in NHS institutions is based purely upon clinical need and that no other factor influences access to those facilities.

I believe that in the majority of circumstances that will always be the case, as it has been to date. But with the important changes in this Bill with regard to the role of potential private practice in NHS institutions, we need to be absolutely certain that any anxieties or opportunities for misunderstanding are dealt with at an early stage. So in bringing forward these amendments at this stage, one hopes that there is an opportunity for the Government to explore how they plan to deal with any potential tensions and what security the current Bill as we consider it, and any potential amendments in the future or well established working practices in the NHS to date, would protect against a situation developing where access to facilities was determined by anything other than absolute clinical priority. For this reason I strongly support the amendments being brought forward at this stage in the hope that the noble Earl might be able to provide some clarity on the approach that Her Majesty's Government might take in regard to these matters.

Lord Walton of Detchant (Crossbench)

My Lords, 53 years ago, after seven years in full-time clinical research followed by 18 months as a first assistant in a neurological department with an honorary senior registrar contract, at the age of 35 I was appointed as a consultant in the NHS. But since at the time I had not even reached a salary of £2,000 a year, on being appointed as a consultant I chose to take a maximum part-time contract to do limited private practice, if only for financial reasons. In fact, it was a very interesting experience. I only did this for a few years before I became a full-time academic.

At that time every NHS hospital had a private ward or had the opportunity, as was the case in the regional neurological centre in Newcastle Upon Tyne, that on my ward of 28 beds I was entitled, if I so wished, to use four single rooms for private patients. The advantage of that arrangement, which was widespread throughout the country, was that the consultants working in that kind of hospital had the right to be geographically whole-time at the hospital. They were not being diverted away to distant private hospitals. They could look after their patients, both private and public, on the same ward and give them equal standards of care. The only real advantage for the private patients was that they had single rooms.

Many years later, along came Barbara Castle, who was the Secretary of State for Health and who later became the much respected Lady Castle. By that time I was a full-time academic with no private practice. I took private patients under my care into hospital, as I had to do if they came from overseas. In order to take advantage of the research facilities in my department, they had to be treated as private patients. However, under pressure from the trade unions, the Government worked through a process of gradually removing private patient beds from NHS hospitals so that, in the end, in the three major hospitals in Newcastle Upon Tyne we had one private bed in each hospital. The result was that, as an academic with major research facilities for the investigation of neuromuscular disease, I had to refuse patients referred to me from the United States, Canada, Australia and elsewhere because there were no private hospitals which could provide the facilities needed for the investigation of these patients, and there were no private beds into which they could be admitted. I look back on the period before that, when there were private beds in NHS hospitals, with great interest. I think that it was an excellent arrangement.

This is why I strongly support the proposal that the cap on private patient beds in NHS hospitals, foundation trusts and so on be removed, but I agree that there should be a restriction so that the opportunity for such beds to be established for private patient care must not be excessive. However, the advantage is that the NHS will gain substantially from the income derived from those private beds. The noble Lord, Lord Phillips, has enunciated the principle that the standards of clinical care for public and private patients in those hospitals should be entirely comparable. The only advantage for private patients would be a better standard of accommodation, as Amendment 299B indicates, which is wholly acceptable. The quality of medical care should be identical. For that reason, I support the principle.

On the other hand, the wording of Amendment 30 is not satisfactory. Although I accept the principle of equal standards of clinical care, the amendment would make it impossible to provide the improved standards of accommodation to which Amendment 299B refers. The principle is important and I would support it in general, but the amendment needs a little adjustment.

Lord Ribeiro (Conservative)

My Lords, I agreed with everything that the noble Lord, Lord Walton of Detchant, said. His historical perspective reflects my own experience, both as a young trainee working at the Middlesex Hospital, where we had a separate private wing, and then post the decision made by Mrs Barbara Castle when the private wings lost their beds. The net result was that, when I became a consultant in 1979, there were very few private beds in my own hospital. I was a maximum part-time consultant as well. We saw a proliferation of new private hospitals in Brentwood-the Nuffield-Chelmsford and Southend; the whole area sprouted new private hospitals. I would see my private patients at the beginning of the day and then again at night while fulfilling my NHS commitment, which I am quite happy to say I did. I could travel 100 miles in a day seeing private patients, whereas previously those patients were in the same hospital. The junior doctors knew where the consultants were and if there was a problem on the ward they could consult them and bring them back.

There is another dimension to moving private beds out of the NHS, which is that I used to be able to take my trainees with me to the private hospital to assist me with my operations. That was a level of learning that they would often not have the opportunity to access, particularly if it was related to overseas patients with conditions that they had not previously seen. It was a learning opportunity which is now more or less lost. Junior trainees are very rarely able to escort their consultants to work in the private sector.

As to the private cap, it will not surprise your Lordships that two big hospitals in London, the Royal Marsden and Great Ormond Street, have a massive number of private patients who seek treatment from those hospitals because they are the best in the world. A cap in that situation is against the best interests of those hospitals. Robert Naylor, the chief executive of UCLH, has been quoted as saying that it is entirely transparent where the money from private patients treated in the NHS goes: back into supporting services within the NHS. Maintaining the cap on private earnings in the NHS will damage the NHS. Patients who come in to have their treatment privately in the NHS are treated by consultants who treat both NHS and private patients. There is no difference between the two. To deny those hospitals the opportunity of attracting patients from overseas and the benefits going back to the NHS would be a disservice.

I have looked at this amendment and, clearly, the intention is to ensure equality of care. I was watching the monitor upstairs in my office and heard the introduction to this debate. I am sorry that I was not here. The meaning behind the amendment is right. There should be equality. I am not sure whether it can be achieved in the way that has been described. The noble Lord was quite right in saying that the clinical treatment-this is not about food, beds or those sorts of facilities-that is provided should be the same.

As a working consultant until just three years ago I would say this. We used to have a system in the NHS whereby we had block booking for outpatient appointments. Four patients would be booked at 9 am, another four patients at 9.05 am, another four patients at 9.10 am and so it went on until all the patients were booked in until 11 am. Clearly, they did not have two minutes each. Patients were left sitting in the clinics waiting and waiting and waiting until they could be seen. I decided after some time that that was not acceptable and made the point of giving my NHS patients appointments in exactly the same way as my private patients. They all had 15 minutes each. It was exactly the same as in the private sector. Some private patients might just have a mole so it might take me only five or 10 minutes to make a diagnosis. For someone with bowel cancer it could take 30 minutes. That way, you can manage your practice. There is a requirement for individual consultants to be conscious of the fact that they must deliver the same standard of care irrespective of how that patient finances their treatment.

Baroness Armstrong of Hill Top (Labour)

I intervene to dispel the view that it has always been even and equal for private and non-private patients in the NHS. When I was an Opposition Member of Parliament, before the 1997 election, the largest complaint that I had, which I had regularly, surgery after surgery, was from people who had some serious condition. They had eventually got in to see the consultant, frequently having had to wait a long time. Then they were told, "Yes, you need an operation but the waiting list is 18, 20 or 24 months. However, if you come in to see me next week in my private practice, I can do the operation in two weeks' time". People found that offensive.

That is why, during the passage of the Bill on foundation trusts, there was outrage on the Back Benches that we were going to revert to the situation where it seemed not to matter whether people were public or private patients.. That came because Back-Benchers insisted that they did not want to return to the old system.

I am actually in favour of varying the cap and the noble Lords who tabled the amendment actually had the right idea. But for us to pretend in this House that there was once a glorious age where everyone was treated equally is quite honestly offensive to all those people who knew that they were getting a poor service and were not getting adequate access to the healthcare they needed and had the right to receive.

Lord Patel (Crossbench)

I rise briefly to comment on this amendment. As far as declaring an interest is concerned, I have not seen private patients because my contracts were such that academics did not do private practice. I have a family member who is a consultant. My daughter is a consultant at the Marsden where I hear there is a high percentage of private patients. I have no idea whether she does private practice or not. I have not seen any benefits of it. Maybe they will come.

However, I remember when I was a student and was training in King Edward VII Hospital in Windsor, in Ascot and other places there were private wings in the same hospital. Yes, the care provided was equal for NHS and private patients. However, one difference today is that NHS patients now receive quite a significant part of their care provided by doctors in training. If we are to ask for equality in how patients are looked after, we must say not only that those patients in private wings cannot jump the queue but that there must be the same quality of care provided by all the medical staff who work in the NHS.

I have one other question, which I would like to put to the noble Lord, Lord Phillips of Sudbury. How would we manage his amendment when there are to be qualified providers, which might provide care not only for NHS patients but for private patients under their own terms and conditions? How would we manage those qualified providers to ensure that they behave in the same way in dealing with NHS patients?

Lord Phillips of Sudbury (Liberal Democrat)

On the question addressed to me, I do not know whether I can give an off-the-cuff precise answer to the noble Lord, but my apprehension is that, in NHS hospitals with private facilities or a private ward, there is an attempt to deliver comparable clinical care to private and NHS patients. As the noble Baroness has just said, there are cases where that plainly does not happen, but that is the ideal and it is achieved in many hospitals-I suspect that the Royal Marsden is one of those. All that the amendment seeks to do is to put that ideal into the Bill so that it is also law.

I do not want to waffle on now about the delivery of that ideal in practice-I say "waffle" because what I would say might not be impressive to you gentlemen who are treading the wards-but I believe that it is possible and can be done. I am encouraged by my three co-signatories to the amendments to believe that this can be done and delivered. As I said, that may require an amendment to the provisions of the Bill that deal with Monitor so as to give Monitor an explicit role in policing this requirement of equality of clinical treatment and care.

Lord Hunt of Kings Heath (Labour)

My Lords, I hope that the noble Lord, Lord Phillips, will continue to waffle on, because it seems to me that he has put his finger on the real concerns that so many have about this Bill and why people are so opposed to it. The continuing puzzle is why we have this Bill at all when the NHS was in such good condition at the time of the last election. The noble Earl, Lord Howe, might get cross that I come back to this point, but that puzzlement is shared by almost everyone working in the National Health Service and certainly by most patients.

We do not understand what this Bill is all about, unless the noble Lord, Lord Phillips, is right that, essentially, this is about taking the NHS on a journey to become a second-rate service for the poor and needy. One can see the building blocks that are being put in place. First, the Secretary of State seeks to downplay his or her responsibility for the provision of services. Secondly, we see the NHS starved of resources.

The NHS-I should perhaps remind the House that I chair an NHS foundation trust-is supposedly receiving a real-terms increase in its resources, but I can tell the noble Earl, Lord Howe, that that real-terms increase has not reached the service. I do not know where that money is. Either the money is being kept as a bung for GPs and clinical commissioning groups or for the costs of the reorganisation and redundancies that will need to be paid, or, perhaps, it is being held in a fund that will be let out when the NHS reaches crisis point this winter. I do not know, but I can tell the noble Earl that, up and down the country, NHS trusts are facing considerable financial challenges. It can be the only explanation for why the Government are putting so much less emphasis on dealing with waiting times. We had the amendment from my noble friend Lord Warner early on. I do not think the noble Earl was able to convince the House that this Government really are concerned about the waiting times for patients. The risk is, as my noble friend Lady Armstrong said, that we will go back to the bad old days of long waiting times, when consultants faced with patients encouraged those patients to go for private treatment. There are so many examples of this perverse practice that I fear we are going back to it again.

Another factor in where we are going is the noble Earl's refusal to refer to NHS trusts and foundation trusts. All we hear from the Government is this generic term "provider". Of course we understand that, because it is the mantra of Ministers that there is no distinction; the qualification is qualified providers. So the NHS institutions are simply to be seen as a provider, no different from private sector providers. No wonder Ministers are prepared only to talk about commissioning as being part of the NHS. It is almost as if the provider side has been completely written out of the script when it comes to the National Health Service. It is quite clear that, notwithstanding the fact that Monitor will also have to have a role in integration, its real emphasis is on promoting competition. When one considers the issue of the private patient cap, one has to do it in the context of where one thinks the Bill is going.

I must say that I disagreed for once with the noble Lord, Lord Walton. I have very great reservations about the removal of the private patient cap. I certainly understand that there is a need to review how it is working. If there is local support through the members of foundation trusts or the governing body, maybe even through the local health and well-being board, to remove the cap to that extent, I can see that there may be a case for it. However, there needs to be some control to ensure that NHS organisations do not go mad and seek to have a huge increase in their private patient income, because that would be bound to distort their whole behaviour and how they approach NHS patients. I well remember when I first worked at the Nuffield Orthopaedic Centre in Oxford, where we had a private patient ward-it was called the Mayfair ward, for some reason. I am sure that the doctors and nurses there would say that the clinical care was just the same, but my goodness me it was very interesting to see the succession of the matron, the senior physiotherapists and the senior consultants walking down to that ward and the amount of time they spent there.

Having a large amount of private care within an NHS organisation is almost certain to distort how that organisation approaches NHS patients. That is why this group of amendments is very important. I hope that the Minister will consider coming back on Report and taking part in our further discussions about the private patient cap. The noble Earl, Lord Howe, should be in no doubt that there is widespread suspicion throughout the National Health Service at the Government's motivations in relation to this Bill. This is one of the core issues that lead to that suspicion.

Earl Howe (Conservative)

The noble Lord, Lord Hunt, should be a little bit careful before he comes to this Committee and speaks as though it were Second Reading and as though he were not chairman of the Heart of England trust, which I do not doubt has a goodly number of private patients in its midst. He should bear in mind that it was the last Labour Government who introduced private sector involvement into the NHS in 2007; the independent sector was paid on average 11 per cent more than the NHS price.

Baroness Armstrong of Hill Top (Labour)

My Lords-

Earl Howe (Conservative)

I am sorry, but I am going to finish. The private sector was paid £250 million for operations that never happened. I have a very interesting quote here:

"The private sector puts its capacity into the NHS for the benefit of NHS patients, which I think most people in this country would celebrate".-[Official Report, Commons, 15/5/07; col. 250WH.]

That is a quote from none other than Andy Burnham. It is absolute hypocrisy on the part of the noble Lord, Lord Hunt, to introduce matters to this amendment that have nothing to do with my noble friend's point. My noble friend's point was quite separate from the point that the noble Lord was talking about.

Lord Hunt of Kings Heath (Labour)

I do not know why the noble Earl mentioned the Heart of England NHS Foundation Trust. I declared my interest but I am clearly speaking on behalf of the Opposition here. I thought that was a really unworthy remark. As for the general point being made, yes, we invested in the private sector. Why did we do that? It was because we wanted to tackle waiting times. Why did we have to tackle those? It was because there was a real issue in some hospitals with consultants and their productivity. That is why we introduced independent sector treatment centres and why waiting times were reduced to 18 weeks. As for this issue, the noble Earl says that I have gone outwith this amendment but I refer him back to the comments of the noble Lord, Lord Phillips, who talked, quite rightly, of the risks of a two-tier service. That is exactly the issue of concern that I have with the heart of the Bill.

Earl Howe (Conservative)

I have no issue with the private sector acting to provide services for NHS patients, and never have had. My point was that it is a bit rich on the part of the noble Lord to attack the private sector in the way that he did. It is also a bit rich to say that the NHS has been starved of money. If the country had been foolish enough to elect the Labour Government at the election last year, the NHS budget would have been cut. It would not have been kept abreast of inflation, as we have done. It is absolutely monstrous for the noble Lord to pretend otherwise and the caricature that he has given us of this Bill, and what it does, does him no service whatever.

I would like to move on to my noble friend's amendment. Amendments 24 and 30, introduced by my noble friend, would impose on the Secretary of State a duty to have regard to the need to prevent inequalities of treatment and healthcare developing between NHS and private patients. To start with, it is helpful to have clarity around the definitions as there is sometimes scope for misunderstanding. I believe that the amendments are referring to the potential for inequality between services that are paid for by the NHS and those that patients can pay for privately within an NHS hospital. As my noble friend knows, that is of course not the same as the issue of NHS-funded services being provided by private or voluntary organisations. A patient funded by the NHS is an NHS patient, wherever he or she is treated.

In addressing the issues raised by my noble friend, I feel that I have to begin with a basic point. I am not sure, although my noble friend may yet convince me, that it is a matter for public policy to have a target of narrowing the outcomes between NHS and private-funded healthcare. I understand that many people feel uncomfortable at the idea of private-funded healthcare, especially within an NHS hospital. It has always been a controversial subject for Parliament yet the truth, as we heard from my noble friend Lord Ribeiro, is that private healthcare has always co-existed alongside the NHS. Some people will always wish to pay to be treated in more comfort or more quickly than a publicly funded healthcare system can afford and, at the margin, there will always be some treatments that are clinically available but which are not considered cost-effective for the NHS to fund. Some people will want to pay for those and, in a free country, I do not believe that it is the role of the Government to stop that.

However, I do not believe that there is a gaping chasm between the types of clinical treatment offered by the NHS and by private healthcare. The NHS aims to offer a comprehensive health service and, by comparison with many other countries, the private-funded healthcare sector here is relatively small. This illustrates the high degree of public confidence in the NHS as an institution, in that relatively few people decide to pay for a private alternative. Furthermore, rather than making comparisons with private healthcare, we believe that the Secretary of State should be focusing on improving the quality and equity of the services available to those who use the NHS. That is why the Bill introduces for the first time a duty to have regard to the need to reduce health inequalities, and that clearly emphasises our commitment to fairness across the health service. It also recognises the reality that there are many stark variations in quality and access within the services that the NHS funds before we start looking at the comparison between NHS and private healthcare.

In addition, the Bill places a new duty on the Secretary of State to exercise functions with a view to securing continuous improvement in the quality of services. The Secretary of State will therefore be responsible for doing all that he can to ensure that the NHS provides the best quality care to all its patients, no matter what treatment they are receiving or when they are receiving it. The aim of the Government and the Bill is to create a system that delivers world-class healthcare and healthcare outcomes for all NHS patients.

I understand that there is some residual concern that private healthcare might represent a better deal for patients treated by NHS providers but we do not believe that this is the case. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would do that. We have in place a robust system of service quality regulation that the Bill strengthens and makes more accountable. Fundamentally, the GMC's Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor's first concern and never discriminating unfairly against patients or colleagues. This means that if a doctor were treating private patients to a better clinical service, they would be in breach of these principles and could therefore be putting their registration at risk.

Similarly, any doctor who inappropriately attempts to persuade patients to use private services for their own gain would be in serious breach of medical ethics. For example, the department guidance on NHS patients who wish to pay for additional private care says this:

"NHS doctors who carry out private care should strive to avoid any actual or perceived conflict of interest between their NHS and private work".

Indeed, the GMC's own guidance states:

"You must give patients the information they want or need about ... any conflicts of interest that you, or your organisation, may have".

It makes the point again, in Good Medical Practice:

"You must not put pressure on patients to accept private treatment".

Lord Phillips of Sudbury (Liberal Democrat)

If the Minister is correct in his description of the status quo, why does he think that three distinguished consultants, who are in the thick of it, asked to add their names to my amendment?

Earl Howe (Conservative)

My Lords, I have yet to hear from at least one of those consultants. Clearly it is for them to explain why they added their names. I am trying to explain to my noble friend that I see grave problems in accepting an amendment of this kind because in practice it is a non-issue, and because the idea that this is a matter for public policy is one that we should perhaps have a further conversation about. I am not convinced that my noble friend is introducing a matter that should go into statute. It is probably best if we defer further debate on this subject. I have listened carefully to my noble friend and other noble Lords who have spoken. I am happy to have a conversation with him after the Committee stage. I understand the issue that he has raised and I hope that he will accept that, but I see considerable difficulties in trying to frame an amendment in a way that will do precisely what he wants.

Lord Willis of Knaresborough (Liberal Democrat)

Could I help my noble friend? A sensible suggestion was made that this was more a role for Monitor than anything that should be in an amendment to the Bill. Would my noble friend agree that when this comes back, either later in Committee or on Report, we should look at whether Monitor should carry out the new duty, proposed in the Bill, to reduce inequalities? That might be a better way of moving forward.

Earl Howe (Conservative)

I shall be happy to look at that. Of course, Monitor has a role in making sure that a foundation trust adheres to the conditions of its authorisation, one of which is that its principal purpose will be to serve NHS patients. There could be mileage in that and I would be happy to look at it.

Lord Phillips of Sudbury (Liberal Democrat)

My Lords, I thank the Minister for his careful response to the debate. I also warmly thank all noble Peers who have taken part in it. It is worth putting on the record that not a single person spoke against the amendment; I think all but one spoke warmly for it. My noble friend said twice that I sought to introduce an inappropriate policy matter into the Bill. This is not a policy, it is a principle-a very fundamental principle. Indeed, the Minister himself, earlier in his response, talked with some pride of the fact that the Secretary of State has to reduce inequalities. That is the same principle, although the area of the Bill that deals with it is not about inequalities between NHS patients and private patients but about those between NHS patients in different parts of the country. It does not cover what is covered by the amendment.

However, I am grateful for the Minister's offer of conversations afterwards, which I will happily take up. I will certainly want to co-ordinate not only with the three noble consultants who have added their names to the amendment but with others in the House who I know feel strongly about this. I feel sure that the wish and will is that this matter should be brought back at the next stage of the Bill, perhaps with better wording-several Peers referred to that. With that, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendments 25 and 25A not moved.

Amendment 26

Moved by Baroness Gibson of Market Rasen

26: Clause 3, page 2, line 34, after "England" insert "in rural and urban areas"

Baroness Gibson of Market Rasen (Labour)

My Lords, I shall be brief, bearing in mind the hour. What I have to say about Amendment 26 applies to all the amendments in this group. Their aim is quite simple: to ensure that those working in the health service and those who are its patients in rural areas are not forgotten as we plough through this enormous Bill. I hope that we will be able to improve the quality of services, protect and improve public health and reduce inequalities in rural areas as we do so. The Bill has not been rural-proofed. Although it is about the National Health Service, too often when we discuss the NHS the emphasis is on urban, rather than rural, areas.

I have declared my interest, as I did at Second Reading. I am the honorary patron of the Dispensing Doctors' Association and, as such, am very proud to raise issues for dispensing doctors-in other words, rural doctors and their colleagues. Dispensing doctors dispense from their surgeries. They live and work in rural areas, giving a service that is vital to rural patients. Without their dispensing from their surgeries, those living in the more remote areas of our countryside would have to travel first to their doctor's surgery and then to the nearest pharmacy to get their prescribed medicines. These two places might be many miles apart. Mostly, this would be in areas where public transport services are very few and far between or, more likely, where there are none at all. Therefore, without the care and supervision provided by dispensing doctors, patients would face even more difficulties in getting the analysis of what they need and the correct medicine than they do at present.

Many patients in rural areas do not drive, especially women, older patients, those with disabilities, those with longer-term illnesses and those with small children. In addition, families increasingly cannot afford to run two cars. Therefore, if the main breadwinner needs the car to travel to and from work, the remaining partner finds it difficult to travel distances to collect medicines or prescriptions. That is why the one-stop shop of a dispensing doctor's surgery is so necessary. Rural areas must not be forgotten in the turmoil of changing the National Health Service in the fundamental ways outlined in the Bill.

This weekend I had the pleasure of attending the annual conference of the Dispensing Doctors' Association in Chester. I heard at first hand the worries that dispensing doctors and those who work with and for them face. They need to be consulted as changes are proposed. They feel-rightly or wrongly-that they are not given a fair crack of the whip at the present time and that their needs appear to be subsumed under the viewpoint of those working in the overall NHS. If the term "rural" is spelt out in the Bill, it would be much more difficult in future to pass over the needs and aspirations of those working in the health service in rural areas and of the patients themselves, whose involvement is so important.

I feel particularly passionate about these issues, and hope that the Minister will understand my reasoning and have sympathy towards it. I beg to move.

Baroness Jolly (Liberal Democrat)

My Lords, given the hour, I shall be brief. I understand exactly why the noble Baroness, Lady Gibson, has tabled the amendment. I come from the south-west and my GP practice is 25 miles from where I live. The hospitals are 25 or 50 miles away. The noble Baroness and I share that sort of background. The amendment would work in the south-west, the north-west, the north-east, or even north-east Lincolnshire. We have factors of distance, sparsity and rural poverty which are often hidden in poorly measurable clusters.

Before I came here I had a view about policy and legislation being made in a bubble in the south-east and being very metropolitan-based. I had hoped that when I arrived here I would find to the contrary, but I confess that I have not. For a while I was linked with a Defra team and corresponded with a Defra Minister about rural-proofing legislation. It is fair to say that he was not hugely optimistic, but someone really needs to say, "Would it work in a rural area?". My noble friend Lord Greaves has already started this job on the Bill and has tabled an amendment-and I fear there may be more-about district councils. They play a hugely vital part in areas of rural England that have not become unitary authorities. In one or two areas of the Bill-perhaps in a few more-there are instances where district councils need to be factored in.

Perhaps the Government should have some sort of rural policy champion-I hesitate to use the word tsar. I should be grateful if the noble Earl would give us his assurance that that will happen for this Bill.

Baroness Thornton (Labour)

My Lords, my noble friend Lady Gibson is to be congratulated. I particularly indentify with her remarks about dispensing chemists. As she knows, I supported her on this when I was on the other side of the House, and the issue is close to my heart. She and the noble Baroness, Lady Jolly, have raised a very valid issue and I look forward to hearing the Minister's remarks.

Earl Howe (Conservative)

My Lords, the amendment tabled by the noble Baroness, Lady Gibson, and all the amendments in this group, highlight the importance of ensuring that neither rural nor urban areas are affected by health inequalities. I quite understand the noble Baroness's concerns-especially given that rural areas have unique circumstances that affect their health needs, such as a diffuse population and long travelling times for patients.

I therefore acknowledge that some significant issues face rural and urban areas, as was highlighted by the Marmot review. In particular, there are concentrations of shorter life expectancy and greater illness, and these tend to occur in some of the poorest areas of England, most of which are urban areas of deprivation. There are particular challenges with the provision of services in rural areas due to the higher cost of delivering services in more locations and the greater sparsity of rural communities.

However, although I am very sympathetic to the noble Baroness's intentions, I do not feel that the amendments are the most effective way to achieve her aims. Existing reference to "England" or "its area" in the Bill already includes every type of population, including rural and urban populations. The responsibilities for commissioning are absolute across all the communities and individuals for whom they have responsibility. There is no discrimination between different areas. That principle runs throughout the legislation. Moreover, the fundamental and unique change we are making to commissioning is to give local GPs responsibility for securing services for their patients. That vital principle, above all others, will make a decisive break from the past by ensuring that the needs of much smaller groups of patients can be taken into account by the commissioners.

A CCG will be exercising its statutory functions appropriately only if it is meeting the reasonable needs of all the people for whom it is responsible, not just those in particular demographic areas. The guidance on commissioning which the board must issue under the power in new Section 14Z6 could, of course, cover issues relating to commissioning in rural and urban areas.

Although the noble Baroness's amendments are unnecessary, they could also be damaging. That is because there is the potential under some of the amendments, however inadvertently, to limit the scope of the responsibilities which the Bill places on CCGs. Amendments 188 and 114 could limit the effect of the scope of the duty on reducing inequalities to a duty only in relation to reducing inequalities and access between rural and urban areas. That would not include the duty to tackle the variety of factors which can affect a person's ability to access the care that they need, such as socioeconomic background and ethnicity. The changes proposed to the Secretary of State's duty in new Subsection 1B are particularly problematic in their impact. The Secretary of State may no longer have regard to the need to reduce inequalities between the people of England but only between people in urban and rural areas. Similarly, Amendment 190 could limit the duties regarding reducing inequalities in outcomes to inequalities in outcomes between patients in rural and urban areas only. So I have concerns about the limitations that the amendments may impose.

Despite all that, I hope that I can reassure the noble Baroness that the Bill adequately provides for her worthy intentions-due, in particular, to its coverage of the whole of England. With that in mind, she may consider withdrawing the amendment.

Baroness Gibson of Market Rasen (Labour)

My Lords, I thank the noble Baroness, Lady Jolly, and my noble friend Lady Thornton for their involvement in this short but important debate. I thank the Minister for what I think was his sympathetic reply and his explanation of the amendments, which was very helpful. Under the circumstances, I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendments 27 to 33 not moved.

Clause 3 agreed.

Clause 4: The Secretary of State's duty as to promoting autonomy

Amendment 34 not moved.

House resumed.