Health Bill [HL]

I shall speak also to Amendments 5 and 6. What does this mean in practice? That is the key question that everyone who has read what is termed ““the NHS Constitution”” has been trying to figure out. Great supporters of it are adamant that it will make a real difference to staff and patients within the NHS. They believe that it sets out a recognised framework for the way in which the NHS deals with individual patients and that it also sets out expectations which patients do, and should, have of how the NHS will treat them. Even its most staunch supporters and, indeed, some of its authors, cannot yet answer the question: what will be different in practice? I think that they would admit that, although they have high hopes and aspirations for it; however, they are unclear about what it will mean in practice. The question of what the Bill is intended to do as a document which enhances practice within the NHS keeps recurring. It is answered to a limited degree by the handbook to the constitution. The purpose of these amendments is to try to come at some of the same issues that we discussed on the previous amendment, but from a different angle, and to try to incorporate what is in the handbook—not to incorporate its every word into the primary legislation, but to ensure that practitioners have regard for what is in the handbook and to increase its status. The most important lines in the handbook are those that ask what the principles mean in practice. The handbook endeavours to exemplify what the principles will mean. Why go about it this way? In part, because I, like the noble Earl, Lord Howe, and other Members of the Committee, am a veteran of the Mental Health Bill and the Mental Capacity Bill. I take this opportunity to challenge the version of history of the noble Lord, Lord Warner. The reason that there was a great deal of argument about the inclusion of principles in the Mental Health Act and the mental health code of practice was not because the Mental Health Act 1983 was being updated; there was a great degree of consensus on that. There was intense argument because the Government were proceeding with a piece of legislation which they claimed rested on a set of principles—which it did—but unfortunately only the Government and a few of their advisers thought that they were right and relevant. Everyone else from mental health users to the Opposition thought that the principles were wholly wrong. Regarding the Mental Capacity Act, the noble Lord, Lord Warner, was right to say that because the principles were so novel in legislation it was important that they were included in the Act and they have been reflected in the many documents that have flowed from that piece of legislation. It is important that we try to reach a middle way whereby it is a legislative requirement that providers of services have regard to the handbook without putting its detail into the legislation, because it is clear from the Government’s actions so far that the heart of how the legislation will work will be embodied in the handbook, rather than in the constitution. I invite noble Lords to look at the constitution and the relevant bits of the handbook and draw the distinctions between them. I pick one principle, which states: "““You have the right, in certain circumstances, to go to other European Economic Area countries or Switzerland for treatment which would be available to you through your NHS commissioner””." That is stated in the constitution. However, the handbook goes on to state: "““What this right means for patients””," and sets out the limits of what that means in practice. In the spirit of this legislation and of what the Minister is trying to do, which is to be fair to be patients about what their expectations of the NHS should be, it would be beneficial to the NHS and its users that they are not misled by the simplicity of the NHS constitution and are openly directed towards the practicality of what that principle will mean for them. That applies as much to staff as it does to users. Another example—a very topical matter this week—was the commitment on screening. If one were to read only what the constitution says about screening, one would not immediately understand that there are policies around screening programmes which have been worked out by the department on the grounds of their efficacy in certain groups. The more you can draw patients into an understanding of how this document will work in practice, the more you will minimise unnecessary litigation and disruption to services. The three amendments are necessary because they place the duty of having regard to the handbook not only on providers of NHS services but on those who provide NHS services under contractual arrangements and on subcontractors. That is a deliberate thing on our part. I continue to have an ongoing and interesting dialogue with the department about its interpretation of the 2010 competition for services regulations and the Part B derogation for health. At this point I know that noble Lords’ eyes will start to glaze over, but it is extremely important European legislation. I and many other people take the interpretation that it means that many areas of healthcare and social care are public services which have to be open to competitive tendering. Some people in government cling to a view that it does not. One day one of us will be proven right in a court of law but, whichever way one chooses to interpret it, it is an important matter, not least for the parts of the Bill dealing with direct payment and beyond. We have tried to make sure that this obligation rests not only with direct providers because we believe that in future a great many more healthcare services will be provided by subcontractors. This is a slightly different way of making these principles have a meaning in the NHS as it is now. It is a commendable way of doing so because it does not tie down indefinitely in primary legislation the detail of the handbook, which remains capable of being changed and altered as it becomes relevant without amendments to primary legislation. This approach has worked, in slightly different ways, under the Mental Health Act and the Mental Capacity Act and I commend it as a good way forward. I beg to move.