Health and Social Care Bill

My Lords, we have spent a good deal of time in debate on this Bill discussing the issue of patient involvement, and for good reason. Patients rightly expect to experience responsive health services where they are treated as individuals. It is central to the Government's vision for the NHS for patients to become genuine partners in decisions about their health and treatment, with services designed around their needs. The Bill will lay the foundations to achieve that. So I understand completely the motivation behind my noble friend Lady Williams's suggestions in Amendment 49A and 94A to place an additional duty on commissioning bodies when taking decisions to put the interests of patients above all other considerations, as far as resources allow. On the face of it, this sounds obvious, and I am deeply sympathetic to the principle. However, I think that I am going to have to seek to persuade my noble friend that it would be extremely hard to get this right. In the first place, I think we would all agree that the primary duty in the Bill is the duty to promote a comprehensive health service, free to all at the point of use, as set out in Clause 1 and as agreed and debated at length by your Lordships' House. We should certainly not, I suggest, wish to detract from or conflict with that. The second reason why I suggest that the amendment is not right is that the NHS has to plan and cater for the health needs of the population as a whole, not just those who are currently patients. That is why the duty on CCGs is to commission services to meet the reasonable requirements of all those for whom they are responsible. In addition, the board and CCGs will be under further duties in relation to improvements in quality, promotion of integration, the involvement of patients in decisions and as regards public involvement, duties which all serve in different ways the interests of patients. Above all, in addition to the duty to have regard to the NHS constitution, they will be under new duties, as my noble friend Lord Marks rightly pointed out, in relation to promoting the NHS constitution. Surely that should be the place for drawing together the fundamental rights and principles that patients should expect from the NHS. As my noble friend knows, the Bill embeds the NHS constitution firmly in the NHS of the future and will ensure that all NHS bodies comply with and uphold it. I say to my noble friend Lord Marks that the new duty means that when exercising their functions, the board and the CCGs must act with a view to securing that services are provided consistently with the NHS constitution and to promoting awareness of the constitution among patients, staff and the wider public. In the past, a number of noble Lords have spoken about wanting to have some kind of touchstone in this area of the Bill. I think that the NHS constitution fulfils that precise role. In Amendment 142, my noble friend seeks to establish additional requirements that would apply to the exercise of the duties to the public. Although I also agree with the sentiment behind those proposals, I hope to convince my noble friend that they are already appropriately covered by the duties as they stand. The duties as currently drafted allow scope to determine the best method of involvement in each instance. The board, or a CCG, would need to be able to demonstrate that it had acted reasonably when exercising this duty. They are not restricted to the involvement of individuals only by way of consultation or by the provision of information, as my noble friend seemed to imply. They would apply throughout the planning stage and the development and consideration of proposals. They would also apply to anyone, "““to whom … services are being or may be provided””," and would therefore encompass carers or other representatives. To provide further reassurance on these points, we have already amended the Bill to require CCGs to set out in their constitutions what arrangements they will make for exercising this duty and the principles that will underpin their approach. This will therefore be assessed as part of the establishment process. The board will also have powers to produce guidance for CCGs on the exercise of the duty, which CCGs would have to have regard to and which could set out what might be reasonable in different situations. Of course, the views of patients should also be integral to the evaluation of the performance of health services. The duty on the board and CCGs as to improvement in the quality of services already requires that specific consideration must be given to the experience of patients. The views of patients and the public on the effectiveness of any change in services would therefore be captured in the normal way as part of this ongoing assessment. One area where there is a deliberate difference is that the wording of the duty on the board and CCGs is intended to reflect the distinction in the Bill between bodies that commission services and those that provide them. Both the wording of the new duty and the current provision in Section 242 of the 2006 Act apply to arrangements to commission health services which are to be provided by others. This would therefore capture any changes that are a result of the commissioning decision. At present, however, PCTs also provide some services directly, whereas the board and CCGs will not. Neither will they have managerial oversight of NHS providers in the way that PCTs and SHAs do now. The difference in wording is therefore intended to reflect this. NHS trusts and foundation trusts will be directly accountable for ensuring that they involve and consult the public under Section 242. In relation to foundation trusts in particular, there will be a stronger role for governors and members in holding them to account. I am also unable to agree that it would be appropriate to extend the application of this duty to the exercise of all the functions of the board or a CCG that might relate to the provision of services. The matters to which the duty applies are the same as those in Section 242 of the 2006 Act. Certainly the board and CCGs could choose to involve people in other aspects of their work, and no doubt they will do so where this would add value, but creating a duty to involve people in every detail of the board's work would not be practical. I hope that I have been able to offer sufficient reassurance to my noble friends for them not to press their amendments. Finally, I should like briefly to explain Amendments 56, 97 and 98 in my name on the Marshalled List. I was struck by a point that the noble Baroness, Lady Finlay, made in Committee about the importance of differentiating between public engagement and the involvement of each individual patient in the management of their care and treatment—and that is surely right. It is for precisely this reason that we have included in the Bill new duties for the NHS Commissioning Board and CCGs in relation to promoting opportunities for patients to be fully involved in decisions about the services they receive as individuals. Nevertheless, it was apparent to me from our debates that the purpose of these new duties was not quite clear enough. This point was raised in the meetings that I have held with many noble Lords in recent weeks, in particular the noble Lord, Lord Warner. I am therefore proposing these amendments to new Section 13H, inserted into the 2006 Act by Clause 22, and new Section 14T, inserted by Clause 25. They put it beyond doubt that the duties on the board and CCGs in relation to promoting the involvement of each patient apply to decisions related to the prevention and diagnosis of illness in the patient and any care or treatment that they receive. This drafting follows the language that is used in defining the health service so as to encompass the full range of activity that could be provided as part of the health service. I was grateful for the supportive remarks of the noble Lord, Lord Harris of Haringey, on these amendments. The amendments also impose an obligation on the NHS Commissioning Board to issue guidance to CCGs on the discharge of their duty under new Section 14T, to which CCGs must have regard. This will ensure that support will be made available to CCGs on best practice in securing effective patient involvement. I hope that it indicates the Government's clear commitment to this objective. I am pleased that the Health Foundation and National Voices have strongly welcomed these changes as representing, "““a clear signal that commissioners should be making sure patients are more engaged in their own care and treatment””." I am extremely grateful to them for their support in ensuring that the Bill is as strong as possible on this point.