Health and Social Care Bill

My Lords, I have added my name to Clause 4 stand part. We have had a very good debate, to which my noble friends Lord Darzi and Lady Wall have brought an element of reality. However, their remarks do not take us from the point of wondering whether this is the right clause in terms of autonomy. They have both succeeded in pointing to the problem that exists, and I am not sure that the Bill solves it. Autonomy, from the ancient Greek, means, "““one who gives oneself their own law … In medicine, respect for the autonomy of patients is an important goal … though it can conflict with a competing ethical principle, namely beneficence””." It might be thought that a health and social care Bill would reflect the second part of the above definition—culled, I have to say, from Wikipedia—given the concern for the interests and dignity of patients. However, such is not the case. Clause 4 seeks to insert a new section into the National Health Service Act 2006 under the rubric: ““The Secretary of State’s duty as to promoting autonomy””. The clause requires the Secretary of State when exercising functions in relation to the health service, so far as consistent with the interests of the health service—not, it may be noted, in the interests of patients—to act with a view to securing certain things that the clause then goes on to list. I had a discussion about this clause with the noble Baroness, Lady Murphy, yesterday or the day before. I say to her that the fact that we both seem to have completely different views of what this clause seeks to do actually tells us something about it and its drafting. We totally disagree about what we think this clause seeks to achieve. That alone should make us think that perhaps we need to go back to look at this clause. Clause 4 places upon the Secretary of State a duty to promote autonomy, as we have said. We feel that this clause is part of the general shift of the Bill to denude the responsibilities of the Secretary of State, because—viewed alongside of the removal of the Secretary of State’s current powers under Section 8 of the 2006 Act to give directions to PCTs and SHAs—it significantly dilutes the Secretary of State’s powers to influence the provision of health services. Independent legal advice from Stephen Cragg QC, for example, commented on the consequences of Clause 4: "““If the Secretary of State attempts to use his or her powers to impose requirements on commissioning consortia, for example, then there could well be a judicial review challenge from a consortium which opposed the requirements on the basis that they infringed the principle of autonomy in the new Section 1C and could not be justified as necessary or essential. This approach replaces the, more or less, unfettered power that the Secretary of State has to make directions currently to be found in Section 8 of the NHS Act 2006 with a duty not to interfere unless essential to do so””." The emphasis on autonomy links to the change in the role of the Secretary of State, as was explained wonderfully and adequately by the noble Lord, Lord Marks. Since the founding of the NHS, the Secretary of State has always had powers of direction and intervention over NHS bodies, which enabled him or her to control the system. While some providers such as foundation trusts could be given earned autonomy—as was referred to by other noble Lords—the Secretary of State retained control through commissioning and the nature of contracts with foundation trusts. This is a very important clause, and nothing that has been said in this debate makes me think that I was wrong to put my name on behalf of these Benches to the Question relating to clause stand part of the Bill. I appreciate that we will be having a broad discussion of these matters along with Clauses 10 and 1 but, unless the Minister has something very significant to say about how he sees this clause evolving, I absolutely have to agree with the noble Lord, Lord Marks, that this can come out of the Bill because of all the other powers that remain in it, which we will look at in due course. Finally, I thank the Minister for his letter to me, which was circulated around the House. I thank him and his staff and the noble Baroness, Lady Williams, and her colleagues for the fact that we are finding a way forward to having a discussion which I hope and trust will bear fruit.