Direct payments for health care

I beg to move amendment 186, in clause 11, page 7, line 7, leave out

‘securing the provision to a patient of’ and insert

‘enabling a patient to secure’.

We are forging rapidly through the amendments, and we have reached clause 11. The Minister will recognise that we are likely to find ourselves engaged for a while, as we have reached the subject of direct payments. It is known across the House to be an extremely important development in health policy. However, it raises a number of concerns because it relates sensitively to some of the most vulnerable people in our society—be they the elderly in need of care, or those with long-term conditions who need the confidence of knowing that their care packages will be sustained and that they will receive them in a quality way.

The amendment addresses the heart of the principle behind direct payments. The substantive question is whether the Secretary of State is still in charge, or whether patients are truly empowered to commission their own care. We would argue that the Government have come somewhat late to the party on direct payments; we have been calling for them since 2004. The Government rejected them as recently as 2006, when we debated the White Paper entitled “Our health, our care our say”. The then Secretary of State for Health—there have been several—the right hon. Member for Leicester, West (Ms Hewitt), called them a

“revival of the patient’s passport”.—[ Official Report, 30 January 2006; Vol. 442, c. 29.]

She could think of nothing ruder. Can the Minister explain his party’s change of heart?

In fairness to the Minister, the Government are going only as far as piloting direct payments. I think that that is a way of saying that they are the right thing to have, but I also think that they have been concerned about a number of issues that have been raised with them, not least by those on the Government Benches and some people outside the House who represent groups of interests.

Given that we know where the two major parties stand on the issue, it will be useful, in the course of this process, to have equal clarity from the Liberal Democrats. I know that there are a number of amendments to the clause that the Liberal Democrat spokesman will be  leading on. I have been concerned that perhaps we have not been completely as one in our approach to direct payments, which has always struck me as being absolutely in the line of Hobbes and Hume. I would be very surprised if the Liberal Democrats did not support this, but we shall see as the debate proceeds.

The point is about enabling the patient—the person who needs the care—to be empowered and, as the expert in their own care, to be in charge of the care with which they are provided. In addition, we should not forget that often the family and friends who are their carers are equally expert.

It is interesting to note that the former Health Minister, Lord Warner, said in Committee in the House of Lords:

“I have often thought that the NHS, which, as a Minister, I sometimes found a somewhat inward-looking organisation, is rather slow to learn from local government, which has often been much more innovative”.—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC212.]

I hope that the Minister will agree with his noble Friend’s assessment of our NHS, that we can now move rapidly to much greater clarity and expansion of the principle of making direct payments, and that that will become much more central to Government policy. As we shall develop the point through succeeding amendments, I shall not take up the time now, but we need to ensure, in relation to the patient being in charge, that we have the ability to make direct payments effective and move beyond the current pilot stage to something more full-blown.

We want to develop a more personalised style of care from the NHS, and last year my noble Friend Lord Darzi announced a pilot programme to explore the potential of personal health budgets in his document “High Quality Care For All”. We are all aware of the success that has come from the Government’s initiative in relation to community care direct payments. We want to ensure that these direct payments will enable people to benefit to some extent in the same way that they have in community care from controlling a greater degree of their health care.

We are approaching the matter with caution. We think that it is worth exploring in a series of pilots. Giving people who have particular conditions the ability to manage their own health needs through control of the budget will, we think, appeal to a limited number of people who want to exercise the level of control over their care that is needed. We see that happening in the following way.

A patient would go to their provider—probably their GP initially—say that they want to have a health care package that does a particular set of things and then negotiate the budget with the health care provider. There may be more than one provider. The person could then ensure that that was delivered. It will not involve the handing over of money. It is about a budget being made available to meet the needs of a particular individual. Those needs may be unique; perhaps the person has a long-term disability or a particular condition. They could have control over their own lives and be able to make decisions about how and when they want particular services delivered. That must be done in negotiation with their health provider; we see that being done primarily through their GP probably, although it will not always be their GP. They will agree that process, the health care will be delivered and we shall be able to  evaluate whether it has been successful. There should be about 70 pilot projects, to see how it would operate, and then we shall evaluate whether any expansion is the right way forward.

I know that the Conservative Opposition take the view that direct payments are a way, effectively, of giving some sort of private ability to control money—spend it—whichever way the person wants to. I am not sure how far the Conservatives would go with that, but I want to be clear how far the Government propose to go, and that has its limits. Where appropriate, where negotiated with health providers and where there is agreement about what will be delivered in a way that suits the personal needs of a patient with a particular condition, we want to run some pilots to see how direct payments will operate. Then we shall evaluate the outcome of those pilots before deciding either to continue with such payments or that the system had not operated correctly and that we needed to look at it again. This is a bit more than an experiment; it is a pilot that we hope will enable us better to ensure that personalised health care is delivered to those individuals who particularly need it.

I am glad that the Minister has said that it is more than an experiment, because his immediate predecessors in the Health Department made it clear that it was very much more than an experiment; that it was very much the direction of travel. To pick up on a couple of his phrases, the expressions that his predecessors used were a touch less cautious and perhaps emphasised less that the system applied to such a limited number of people. It is important—not least because it appears in the legislation—and is very much seen as one of the central bricks in the wall of the future of care .

As we move through the amendments, we need to be clear that we are talking about what is written in the Bill—direct payments—and put that in the context of what the Minister calls personal health budgets, which were originally described by us as individual budgets. The nomenclature is neither here nor there, but the point is that within the budgetary process there will arise the question of who makes the payment and handles the cash. The Minister strayed perilously close to making an unnecessarily contentious point, but there is no one—across the House—saying that this is anything to do with enabling a private approach. His own side has been very conscious of not wanting it branded as some form of voucher scheme. Interestingly, a consensus has developed across the House that the right forward direction should not be impeded and hindered by the prejudice of a number of people—again across the House—who are fearful of the implications of anything that could be equated to a voucher scheme. We are very much at one with that careful approach.

I hope therefore that we shall not find, as we proceed with the clause, that our discussion is itself impeded by such a mental map on the Minister’s part. I am prepared, of course, to withdraw amendment 186, because we shall find plenty of opportunity to explore how this works. As we proceed, it is vital that we ensure that patients feel in control of their destiny when it comes to their care and that they can command the quality in accessing that care. Everything we can do to enhance the provisions in this chapter will be vital in ensuring  that what is intended to be delivered can be delivered. As I have said, we have urged the Government to introduce these measures for years, so I hope that they realise that they have our support. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 106, in clause 11, page 7, line 28, at end insert—

‘(7) Health care provided in accordance with this section constitutes a function of a public nature for the purposes of section 6 of the Human Rights Act 1998.’.

I am sure that hon. Members are aware that we touched on human rights when considering the Health and Social Care Act 2008. A number of colleagues of the hon. Member for Hendon (Mr. Dismore) from the Joint Committee on Human Rights were members of that Public Bill Committee and they put forward ideas that had arisen in the Select Committee. To some degree, those issues read across to these provisions. We should bear it in mind that we are trying to empower patients. The quality of the care of the elderly should be the benchmark test for this legislation.

Lord Dubs raised this issue in another place and questioned whether, in light of YL v. Birmingham city council—which admittedly is a social case—the provider of services commissioned and/or paid for through a direct payment constitutes a public authority under the Human Rights Act 1998, an Act with which the Minister is very familiar. Lord Darzi argued in response that the Government consider that all independent providers of health care that provide services to the Secretary of State in fulfilment of his duty to provide health care are carrying out a public function. They are therefore all public authorities for the purposes of section 6 of the 1998 Act. He argued that because the patient would sit in the same legal position as the Secretary of State, independent providers commissioned through a direct payment would similarly be covered by the 1998 Act.

That argument, of course, has not been tested in the courts in the manner of YL v. Birmingham city council. Lord Dubs remained less sure than Lord Darzi that the Law Lords would agree if pushed to a decision. That debate is on the record, and I will not trouble the Committee with references to it. I would be grateful for the Minister’s views on that.

More interesting are cases in which a patient commissions a type of care that the Secretary of State would not normally commission, or care from a type of provider that he would not normally commission from or is prevented from commissioning from. Under the large tranche of amendments that we are about to discuss, we will debate the different forms that direct payments might take. If the patient is left totally free within his agreed care plan, can the Minister guarantee that anybody he commissions from will come within the ambit of the Human Rights Act 1998, simply as a result of the act of commissioning? I am sure that he is as aware as I am of the consequences that will flow from his answer. That issue was at the heart of much of the consideration of the Joint Committee on Human Rights when trying to protect the rights of the elderly and those most in need of care in particular.

Hon. Members from all parties are genuinely deeply concerned about many campaigns on these issues, such as “Action on Elder Abuse”. If there is one function that we must all fulfil as MPs, it is to give a voice and effective action to people so that some of the greatest abuses do not take place.

I hope that the Minister sees that this point is seriously made and that he assures the Committee that the human rights aspect of the legislation will be in place.

I shall be brief. I support the amendment. It is important and well intended. I welcome the Conservative party’s support for the Human Rights Act 1998, which is not always forthcoming from its Benches.

I share the hon. Lady’s welcome for the repenters; it is always nice to hear. The hon. Member for Eddisbury is broadly right in the sense that it is our view that the Secretary of State’s duty to provide a comprehensive and free health service under the National Health Service Act 2006 is a core public function. The Government consider that, when providing services in fulfilment of that duty, independent providers of NHS-funded health care are carrying out public functions. They are there for public authorities for the purposes of section 6 of the Human Rights Act 1998.

The Government do not consider that any distinction can be drawn between the situation where the Secretary of State directly enters into a contract with an independent provider of health care services—as permitted by section 12 of the NHS Act 2006—and the current situation, where the patient enters into a contract with an independent provider of health care services under the proposed legislation.

The Government know that services provided under the proposed direct payment arrangements will ultimately be met by public funds. They note that there would be a strong public interest in ensuring that services are properly provided. They believe that stating explicitly that providers of health care procured by direct payments are carrying out public functions for the purposes of the Human Rights Act would cast doubt on whether independent providers of health care services acting under other relevant sections of the NHS Act 2006 were exercising functions of a public nature. We would rather it were not stated here, because it seems clear that the Government are aware of concerns on the matter raised by the Joint Committee on Human Rights, and they remain committed to consulting on the scope of the Human Rights Act in due course.

As I have indicated, providing services in the fulfilment of the Secretary of State’s duty under the 2006 Act, the Government consider that independent providers of health care are carrying out public functions—if they take the queen’s shilling they have a duty, which includes ensuring that the Human Rights Act is complied with. I hope that provides reassurance. I do not think, for the reasons that I have given, it would call into question other provisions where we believe the Human Rights Act would apply. We do not want to call into question those provisions, so it is better not to put the provision in the Bill as if it needs to be stated; we think that it is clear that it applies.

I have listened to the Minister and I think he has taken the point seriously. However, I am not sure whether I buy the argument that if the  amendment were added it might imply that other provisions were not included within the overall approach of the NHS Act 2006. That is not the most powerful argument that the Minister has advanced in the course of our proceedings. I think that that area is engaging us to such a degree that it makes considerable sense to put it to the test, and I will therefore press the matter to a vote.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 8.

Question accordingly negatived.

I beg to move amendment 187, in clause 11, page 7, line 31, at end insert—

‘(a) as to the balance of risk between the patient’s autonomy to use the direct payment and the Secretary of State’s accountability for the appropriate use of public funds.’.

With this it will be convenient to discuss the following: amendment 170, in clause 11, page 7, line 34, at end insert—

‘(aa) as to whether a patient wishes to use direct payments as a means of obtaining health care;’.

Amendment 15, in clause 11, page 8, line 5, at end insert—

‘(fa) as to circumstances in which the patient might pay a carer with a direct payment,’.

Amendment 188, in clause 11, page 8, line 7, after ‘payments’, insert ‘and the notice period required’.

Amendment 123, in clause 11, page 8, line 18, at end insert—

‘(l) as to arrangements to be made where the patient exercises a direct payment alongside a top-up.’.

Amendment 189, in clause 11, page 8, line 18, at end insert—

‘(l) as regards the procurement of maternity services.’.

Amendment 124, in clause 11, page 8, line 18, at end insert—

‘(l) as to the retention of savings made as a result of a direct payment by the Primary Care Trust;

(m) as to the granting of money for direct payments to the Primary Care Trust by the Secretary of State.’.

Amendment 125, in clause 11, page 8, line 18, at end insert—

‘(l) as to the commissioning of emergency, urgent and intensive care with a direct payment.’.

Amendment 126, in clause 11, page 8, line 18, at end insert—

‘(l) as to the commissioning of palliative care with a direct payment.’.

Amendment 127, in clause 11, page 8, line 18, at end insert—

‘(l) as to the responsibilities of the patient as an employer.’.

Amendment 128, in clause 11, page 8, line 18, at end insert—

‘(l) as to the purchase of community services at tariff prices.’.

Amendment 129, in clause 11, page 8, line 18, at end insert—

‘(l) as to the use of direct payments by prisoners.’.

Amendment 130, in clause 11, page 8, line 18, at end insert—

‘(l) as to the use of direct payments to fund complementary therapies.’.

Amendment 131, in clause 11, page 8, line 18, at end insert—

‘(l) as to the use of direct payments to purchase care in from another health system—

(a) in the United Kingdom;

(b) in the European Union’.

I think that in reading that out, Mr. O’Hara, it is the first time that you have had to make a speech in this Committee.

This is a large bunch of amendments, and it will obviously detain us for a while. They try to press on a number of points to get complete clarity, and to explore the nature of the pilots of direct payments. There is a general question why it is necessary to frame the legislation in pilot terms. We have heard the Minister pray for a degree of caution, but that might need to be contrasted with the phrases that have been used by his former ministerial colleagues.

Section 7 of the regulatory impact assessment notes:

“Some benefits of increased contestability may arise during piloting; however, the full benefits are unlikely to arise unless the policy is introduced nationally.”

It will be neater to make the legislation underpin the provision of direct payments, with the Secretary of State retaining powers of guidance over when those powers might be used for, say, the first three years. Removing such legislation from the statute book would be no greater palaver than removing this, if Parliament rejects direct payments after piloting. If direct payments were accepted, no legislative changes would be made. As I think that I have already indicated, it may be of some interest, or even comfort, that the official Opposition are committed to the direct payments anyway.

The question of timelines might be something in people’s minds, in giving the options for the future. A couple of questions arise from the impact assessment regarding that. The first is a quick aside as to which Minister signed the RIA. For the first time, none of us can work out which signature has been used. It is an odd RIA, because words rather than figures predominate next to the pound signs. Will the Minister explain how the net benefit of pilots is higher than the net benefit of straight introduction, and how the cost of straight introduction can be uncertain when the costs of pilots is established as a rather precise £23 million? I am interested that the RIA also mentions a notional health budget, which is currently legal. The patient would not have the money—we have almost discussed that already—but  would be able to see the pot, rather like the indicative budgets in practice-based commissioning. The Committee may be aware that, when he was a Health Minister, the Secretary of State for Health proposed giving people an indicative bill at the end of their NHS treatment. I am therefore interested to find out whether that is something the Minister would support, because it is patently relevant to the process of pilots and the particular arrangements on direct payments.

Before we debate the amendments, it is appropriate to remind the Committee that, under the Bill as currently drafted, regulations made under this section will be introduced according to the negative resolution procedure. That means that the House will not have the chance to debate the substance of the pilots. It is unlikely that we would want to vote down the regulations supporting the pilots, but it is likely that we would want to amend them, depending on whether the Government act on the debates we are about to have.

The Committee will be aware of amendment 140, the purpose of which is to bring the regulations under the affirmative resolution. These debates will, no doubt, condition our approach and treatment of that. I would also be interested if the Minister could explain the Executive provenance of this section of the Bill. Lord Warner told the Committee that he thought

“the regulations about direct payments in new Section 12B were drafted by the Treasury.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC212.]

Lord Darzi said that the PowerPoint presentations that he was using came from the policy strategy unit. I hope that the Minister will confirm whether the No. 10 strategy unit is calling the shots or whether the measure originated in his Department, although that might be a moot question.

Amendment 187 goes to the heart of the issue that we, as politicians, face in this and similar policy areas—the balance of risk. The amendment would ensure that regulations are published on the balance of risk that is acceptable to the Government after consultation. I submit that broadly, as a class, politicians are not the best and most practised at handling risk. I inevitably speak from personal experience, but that is partly because it is not usual for politicians to have had hard-line commercial experience, which is obviously almost completely predicated on the calculation of risk, and partly because the single event can be catastrophic for politicians in media terms when, in fact, it may mark only a small deviation from the norm.

The two major risks with direct payments are that the patient commissions the wrong care and suffers as a result, or that the patient commissions, to put it pejoratively, a holiday in Spain. There is also the more subtle risk that the patient commissions something that delivers a better health outcome for them, but that it is seen as a holiday-in-Spain option by the media. Obviously such risks will be mitigated by the presence of an agreed care plan. I argue that the patient should be constrained as little as possible, but—I put this in estimated terms—it is right that, in this day and age, we should seek to legislate not for the 2 per cent. who will do the wrong thing, but for the 98 per cent. who are the experts in their care and will do the right thing.

If we get the understanding of risk right, we are more likely to get the pilots and the direct payments right. What is clear is that every possible permutation should be piloted. Baroness Barker, who speaks for the Liberal Democrats in the other place, said:

“one of the great benefits of direct payments is that they enable people to take risks if they choose to do so.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC228-229.]

Individual budget pilots have shown that it is the empowerment that comes from being allowed to take the risk almost as much as the care that is commissioned that contributes to the individual’s health and improving well-being. That ties in strongly with another common agenda across the House: that the sense of dignity of independence should be an overwhelming driver of well-being and, indeed, community and family-based care.

That covers amendment 187. I will reserve my position on amendment 170 until the hon. Member for Romsey has made her case. I shall move straight on to amendment 15. On 13 January 2008, the Government trialled something called a carer’s wage, which was mentioned in the newspapers. It was reported in The Sunday Times under the headline, “Cash reward plan for forgotten army of carers”, and in the Daily Mail on 14 January under, “Brown promises a decent wage for family carers”. Reports said the proposal was at an early stage and that it could form a key element of the carers strategy. Needless to say, there was nothing to that effect at all in the carers strategy when it was published. I hope that the Minister will therefore take the opportunity to clarify whether a patient will be able to pay their carer with money from a direct payment, and if not, will he state whether the Government will deliver on the promise of a carers wage?

The amendment also touches on the question of budget pooling. In the other place, Lord Warner expressed the hope that

“we will not get into a situation where this innovative change that the Minister and the Government are introducing is stymied by very restrictive regulations in the inevitably blurred boundary area between health and social services.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. 213.]

I dare say that that is something with which we are all familiar from countless constituency cases. Budget pooling, meaning a single direct payment funded by NHS and social care, which the Opposition support and have argued for, while fully recognising that it carries with it some complexities and complications, would enable the patient to negotiate that blurred boundary and close the gap between the two. It would also prevent direct payments from being chipped away by PCTs keen to cost-shunt their responsibilities on to local authorities. I am therefore keen to hear what plans the Minister has to pilot pooled budgets. Will the legislation allow pooled budgets to be piloted under this Government or, indeed, a future Government?

Amendment 288 can be dispatched quickly, as I am just looking for an assurance from the Minister that patients with direct payments will not find them stopped suddenly for PCT budgetary reasons, and particularly not without notice. What circumstances is that section intended to cover, and what is the notice period likely to be?

Amendment 123 allows us to explore the relationship between direct payments and top-ups. Will the Government be piloting direct payments in cancer care, which can be  almost akin to a long-term condition in some cancers? In addition, would a patient be allowed to top up their direct payment privately in order to get services not available on the NHS. That, as I am sure the Minister recognises, was part of the process under discussion in the report that the previous Secretary of State commissioned and on which he then made a statement to the House. Will the Minister be looking to pilot that process?

As the old joke goes, all of us have been touched by a midwife at some stage in our lives, and amendment 189 is looking for the assurance from the Minister that midwifery services can being procured through direct payments. In the other place, Lord Darzi said:

“I would certainly be very interested in proposals for maternity services”.—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. 222.]

That gives the Minister the opening. However, how does he propose to cater for unpredictability, such as the need to transfer from a home birth to a consultant-led obstetric unit in the event of unforeseen difficulties?

That also bears on the question of independent midwives. Will the patient be able to commission an independent midwife, particularly where a local service is not available from the NHS? On that, Lord Darzi said:

“There is plenty of evidence, not only in this country but elsewhere, where we have seen independent midwives working very well, such as in New Zealand and certain parts of England where such a service exists.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. 222.]

Will there be a requirement that patients must buy an indemnity for that, or indeed for any service that they buy? I hope that the Minister will be able to give us a view on the question of indemnity.

Amendment 124 is framed to reassure PCTs that they will, with regard to subsection (1), not face a clawback of any savings that they make through piloting direct payments. Under proposed new paragraph (m), they will be able to supplement their budgets if they lose money at that stage. I do not for one second underestimate the complexity of that area. The amendments might seen rather counterintuitive in a sense, as surely either the Department should keep the savings and sub the deficit, or the PCTs should do so. However, such a system would create perverse incentives in the pilot phase, and I dare say that the Minster and his officials have been thinking about that.

Will the Minister clarify whether PCTs will be able to keep any savings and whether they will be subsidised for any loss? That is linked to a point made in the other place by Lord Darzi, who said that

“where PCTs do not wish or are unable to apply to be pilot sites, I do not want to force them to do so. We are looking to harness existing enthusiasm in the NHS for personalisation, rather than to impose pilots on PCTs by selection by the Department of Health.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC247.]

I admire the commitment to local choice, but I would be very concerned if direct payments were limited to PCTs with effective visionary leadership. Is there a case for pilots to assess how unenthusiastic bureaucrats—let us not pretend that there are not some—can also be encouraged to roll this out? Western Cheshire PCT in my constituency is set to pilot a range of continuing and end-of-life care services, but I note—perhaps it has  moved on rapidly since I last checked—that the Minister’s PCT in Warwickshire is yet to do so. We need to compare and contrast areas to find out why there are such differences.

On amendment 125, will the Minister explain why he is not piloting the commissioning of urgent care with a direct payment? On amendment 126, what sort of end-of-life and palliative care commissioning pilots will he be running? As I am sure he is aware, that question has been asked by many outside this place who take a grave and well-informed interest in such things.

On amendment 127, Lord Darzi said:

“Will patients be employers? The answer is yes; they could become employers, as I said earlier, with all the employment regulation that comes with that.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC239.]

The Government should set out clearly the nature of this employment status. Administering direct payments can be very difficult for patients or their delegates. Baroness Barker recounted the comments of someone who said that the direct payment

“is brilliant, because it enables me to go on working...However,” the local authority

“doesn’t tell you anything about insurance or national insurance. It doesn’t tell you anything about what to do if it does not work out with the person whom you’re working with. It doesn’t tell you whether it’s up to you as the employer to deal with it and, if you are, how you do that. There was an organisation that helped us a lot, but unfortunately it’s packed in and there’s nothing now.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC204.]

I can also report—this is the reason for the amendment—that we had an hour at the end of the health debate at the last Conservative party conference on caring for our elderly population, which I accept the Minister did not attend. I am told that that is the first such debate at any party conference. We were privileged that Sir Terry Pratchett came to make one of his first big speeches about the early onset of Alzheimer’s.

During the course of a conversation, which a former newscaster mediated, a wonderful woman called Marianne Talbot gave testimony from her experience. She is known for her punchy contributions to Saga blog and is also a lecturer at Oxford university. She has looked after her father and, most recently, her mother, who have gone through dementia and Alzheimer’s respectively. She looked after her mother, who only recently went into a home, as her carer for two years. With all her intelligence and capabilities, she said that she hit the brick wall when one of the package of six carers wanted to go on maternity leave. She felt that she did not have the capacity, knowledge, expertise or confidence to deal with that.

If we are going to make the direct payments really work, we have to recognise that support and advice services have to continue to be provided and ensure that such services are still available and operating properly. That is what the amendment deals with. Local authorities are immediately in the frame to support such a service. By doing that, one can expect to see direct payments come through better.

On amendment 128, the 2008 Budget announced the extension of the tariff to community services in mental health. When will that work be done and how much is it predicted to save? The Minister may choose to write to us about that. Will direct payments be extended to  community services as they are currently? If not, will they be extended to direct payments when the tariff is introduced?

Amendment 129 raises the question of direct payments and prisoners. The Government have completely failed to get to grips with prison health—we have had quite a lot of contentious discussion on that—and they have let down our prison population as a result. We might have liked to have a debate on that today, but I suspect that that is not quite appropriate. If public and mental health issues were addressed in relation to prisoners, that would go a long way towards reducing reoffending rates. There is a lot of common ground across the House, particularly among those who are concerned that many prisoners might, had they had mental health and drug treatment as a priority, not have found themselves so much on the wrong side of the criminal justice system.

In the other place, Baroness Masham of Ilton asked:

“Will drug and alcohol services be included in direct payments? So many people are sitting in prison now and not getting the right treatment, because it comes from another budget and health or social services simply do not want to pay for it.” —[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC219.]

The noble Lord Darzi, somewhat unusually, failed to give an answer on that point, so I hope that the Minister will take the opportunity to do so.

With amendment 130, I wish to probe the Minister as to whether direct payments will be used to fund complementary therapies. There was some discussion about this in the other place, and not necessarily because many of their lordships are of a different generation. Lord Darzi confirmed:

“Any intervention that will improve the health and well-being of the patient that is signed off by the care manager within the care plan would be implemented.” —[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC223.]

The big “if” in that statement is that it will be allowed if it is signed off by the care manager—so it is not whether the therapy will improve the health and well-being of the patient, but whether it will do so in the opinion of the care manager. Lord Campbell-Savours said:

“I can imagine circumstances in which the patient might say, ‘I want a £200 mattress’. The manager might say, ‘It is in your care package, but we think you should have this mattress’,” —[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC231.]

not that one. Whom does the Minister’s team envisage will be the care manager? Will it be the GP or a PCT worker? What are the perverse incentives of having budget holders signing off care plans? Will the care manager be someone open-minded who supports the patient’s choice, and will they be constructive?

Baroness Cumberlege made the helpful point:

“I remember when we had GP fund-holding. It was very interesting to see the enormous difference that that made to complementary therapies and the number of people who went to their GP. We should remember that it was the last time that patients really had some power over their care. The GPs wanted to respond to patient choice because it affected their income. A number of people—the figures are quite startling—chose to have complementary therapies, and, so far as I know, no damage was done. As soon as GP fund-holding was done away with, those figures fell.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC216.]

As the Minister is aware, we certainly pledge to return to real budgets for GPs.

Some complementary therapies, such as acupuncture and hydrotherapy, have brought benefits to many people, whereas most of us would regard some other therapies as being a touch more wacky. Even if some of them are regarded as being a bit off-norm, if they deliver improvements in health and well-being, and in doing so make a saving to the NHS, the question will arise whether they are likely to be included in a care package. Any clarification that the Minister can give on that would be helpful.

To some degree, this issue ties in with the long-running campaign, with which many Members have been strongly engaged, about supplements as a matter of patient choice, particularly because it seems that what appears to be the norm across the rest of Europe could damage access to supplements and in certain concentrations in this country.

Amendment 131 addresses the purchase of care across national borders. I shall not take long over this, but I want to make sure that it is not overlooked as the last amendment in this group. This issue is particularly relevant to those of us who have constituencies that abut a national border, as I do with Wales, which is a completely different nation for health purposes. Many issues are daily of great stress to the Countess of Chester hospital, which receives lots of blue-light admissions from Wales, partly because it is in the interests of those people to benefit from the shorter waiting times. Many of my constituents who live in Farndon wish to cross the River Dee by the old Roman bridge to get to a pharmacy in Wales to get free prescriptions, but it is not quite as simple as that because the GP with whom one is registered has an effect. Those issues are causing considerable worry, and we are worried, particularly in relation to this clause, that the Government are dragging their feet over putting in place guidance on health care at the European level. Presumably, individuals could request that their PCT commissions care from within the EU through the direct payment. I am talking about care that, if commissioned abroad, could be topped up. Will anything prevent them from commissioning care outside the UK? That will probably be a tough question for the Minister to answer off the top of his head, but perhaps he has the answer to hand.

I conclude my remarks on a very long group of amendments covering a very broad range of necessary questions, although I have not touched on the Liberal Democrat amendments.

This is a useful string of amendments that tries to tease out some of the detail behind direct payments. Liberal Democrats have always supported direct payments in social care, and we very much welcome them in health care. However, a number of complexities need to be addressed. Before I turn to the Conservative amendments, it might be appropriate to direct my comments slightly more widely, but I promise not to speak during the stand part debate.

I shall turn to amendment 170. We are very much in favour of direct payments in health because they provide patients with autonomy. Social care departments have been very enthusiastic about direct payments, but on occasions people have been put under pressure to go down that route, which clearly is not right either. In some ways, therefore, the amendment is an attempt to predict the future, which is always difficult—and we  attempt it at our peril. However, for argument’s sake, let us say that the pilots for direct payments are successful and a trust decides that a particular form of health care is best delivered by a direct payment.

The amendment would establish the right of a patient to say, “Actually, no, I don’t want to go down that route.” Some slight confusion has arisen over this already. In response to an amendment tabled in the Lords Grand Committee to define the right to refuse direct payments, the noble Lord Darzi stated that

“the NHS Constitution makes clear that patients have the legal right to accept or refuse treatment that is offered to them and not to be subjected to any physical examination or treatment unless they have given valid consent.”—[Official Report, House of Lords, 2 March 2009; Vol. 708, c. GC242.]

That misses the point. Payment is not the same as treatment.

I think that I can short-circuit this: it is not intended that anyone should be obliged to take a personal health budget.

I am grateful for that remark, because it has cut short my comments. When the Minister sums up, perhaps he would like to clarify why he feels that it is not necessary to put that in the Bill. On occasion, it has been a problem in social care.

I shall deal more generally with the Conservative amendments, many of which are worthwhile, because they provoke a very useful debate. Given the complexities in health care, it is right to pilot these direct payments and not rush headlong into something that has not been thought through. Health care is not quite the same as social care. People react to treatments and medicines in different ways. There is no one-size-fits-all solution. Also, some people do not respond well to best-practice guidelines from the National Institute for Health and Clinical Excellence. They might just not work for them. At the heart of this, we must think about what works for individual patients.

One of my concerns about the GP having to sign all that off is that we are not giving patients as much autonomy as we could, and there is a question to be asked about that. Most of us have a GP we are fairly happy with. However, I have come across cases of a patient being unhappy with a GP because they are either too into alternative medicine or too against it—there is a whole host of reasons. A number of people make decisions to access other forms of health advice, and it seems that the GP as the gatekeeper could still be a barrier to patient autonomy.

Amendment 187 is important. The hon. Member for Eddisbury said, I think, that we should not get too obsessed about the 2 per cent. of patients who get it wrong, and that we should think about the 98 per cent. of patients who get it right. A few minutes later in another context he went on to mention the Daily Mail. I wonder if this is the Daily Mail fear test for any Government who seek to introduce this. There are 98 per cent. of people doing it right, but we all know that the Daily Mail will hone in on those examples of someone who has had a holiday in Spain or bought the wrong sort of mattress. Understandably, the Government want to avoid that, and I am not unsympathetic to that. I would like  some reassurance on that point, as I think that amendment 187 gets to the heart of the matter if we are truly interested in giving autonomy to patients.

I also have problems with the tariff and how it will be priced. It is not always easy to price a bog-standard course of health care because personal variations are involved. Some people will cost more and some less. Some people will have other co-morbidities that complicate their situation.

From my time on the Health Committee it is also clear that in the past, trusts— PCTs in particular—have not been good at working out the cost of care. One has only to compare the costs of treatment of different illnesses across a range of trusts, to realise what widely differing budgets are available for what should ostensibly be the same sort of care.

I think that there is now much better financial management in the NHS, and some of those differences have been ironed out. However, it worries me slightly that a patient in one part of the country might not have as much money available to them as a patient in another part of the country. It is not a north-south thing; there are sometimes widely differing variations between trusts that sit side by side.

It occurred to me—particularly in light of coming financial pressures, which we all acknowledge—that direct payments could be used by some trusts as rationing by the back door. The cost of a certain type of care might escalate, but the cost over a period of time might be increased only by inflation. Those two things can be widely differing. Therefore, I seek assurances that there will be not just an annual uplift but reviews of the budget.

The hon. Member for Eddisbury raised queries about money or savings running out, and it is useful to clarify what will happen if, for very good reasons, the budget comes to an end. I am not clear how that will be tracked or how the patient will know how much they have left. Who will monitor that? I gather that in some parts of the country, there have been experiments in social care with a card that allows people a monthly budget that they can use. I do not think that we have the technology for that, but it is an interesting idea. Will it be a yearly budget? What happens if it runs out after six months? Will it be divided into monthly sections?

I was pleased to see amendment 189 on maternity. I raised the issue of maternity services on Second Reading. I think that the ministerial response at that stage was, “I don’t really understand that. We have choice, anyway.” I can assure the Minister that women do not have choice in all parts of the country. In some areas women are still denied a home birth. Obstacles are put in their way. A lot of community maternity units have closed down or consolidated in recent years, and increasingly people might be looking to the independent midwifery sector. It creates an interesting precedent, but one that is worthy of discussion. I would not want this to be seen as a wholehearted rush towards embracing the private sector, but in maternity specifically there are quite broad issues around the use of independent midwives.

Amendment 127 is useful. The hon. Member for Eddisbury mentioned Baroness Barker’s comment that she was not told about insurance or whatever. My experience with social care shows that it is the big barrier to the adoption of direct payments. Direct payments work brilliantly where you have people who are confident  about what they are doing and it is fairly simple. They work brilliantly for people who have clear ideas about what they want to do and want to take absolute control. They work less well, unfortunately, in people who might be a little older or frailer, or might for many reasons have difficulties in understanding a complex situation.

Quite serious issues can arise if someone suddenly becomes an employer. It is sometimes quite difficult for Members of Parliament to understand the vagaries around employment law, if one has staffing problems. So direct payments will only really work if advice and support is clearly available to people.

Finally, it was pertinent to raise the problem of prisoners, and particularly drug and alcohol treatment. There is an opportunity here for people with alcohol problems who might not be in prison and who have trouble accessing services, because many services rely on drug money and it is more difficult to access services if the problem is purely to do with alcohol. If people were given a budget to manage their condition, it would save the NHS a lot of money in the long term, because a lot of evidence shows that some interventions do work in a good proportion of people, and if people have budgets available, services that are currently lacking in many areas of the country might be developed.

Direct payments are a fascinating proposal. We need to retain enough flexibility so that if pilots go in the wrong direction, we do not stop completely. Also, the analysis of the pilots—what went wrong and what went right—has to be open to wide public scrutiny. An underlying concern is that it looks good on paper but does not give patients as much autonomy as some of us might wish.

I remember once I was asked to arrange a meeting between a senior social worker and a fundholder who had his own care budget. He had in effect a surplus on that budget and wanted to deploy it to further care. The social worker took the view that the money had to be returned. The person, who had considerable disabilities, took apart the social worker’s arguments and clearly established that it was his budget, which he would continue to run. He was doing so perfectly competently, which everyone conceded, and the budget provided him with the liberty and the capacity to make decisions about himself and his disabilities, which was very important to him. Both the social worker and I learned that, in the appropriate circumstances, individual budgets can provide freedom and enhancement for individuals. So I very much favour the piloting of such budgets to see how we can extend them into health and whether they can provide that same freedom.

However, as the hon. Lady said, it depends on the circumstances of each individual. We certainly must not get into a position where we give a budget to people who do not want one. We will not oblige people to have a budget. Also, if people have particular infirmities or disabilities that make it inappropriate for them to have a budget but they still make a request for one, an evaluation will have to be made to establish if it is appropriate for them. Furthermore, it may well be that a carer of an individual requests a health budget for that individual’s care. Again, an evaluation would have to be made to establish whether that carer was the appropriate person either to hold a budget or to deliver it.

The budget will be supervised and people will have access to advice. Furthermore, there will be someone who has to supervise the way in which that individual budget is used. There will be a care plan—in effect, a health plan—that will set out the parameters for the use of public money. If the money is deployed appropriately and there is a surplus, it is envisaged that the individual will be able to identify, within the terms of the care plan, ways in which that surplus could be deployed. However, if that individual found that there was a deficit in their care plan, an evaluation would again have to be made. Was that deficit the result of an inappropriate pricing of the plan, or was it the result of the inability of the individual, their carer or whoever was managing that budget to manage it properly? At that point, a review would have to take place about the way in which the health budget was going to progress.

A number of questions have been raised by the hon. Member for Eddisbury. First, he asked who signed the regulatory impact assessment. It was my noble friend, Lord Darzi, the Under-Secretary of State. I will pass on to him the concern that was expressed—that his signature needs to become a bit more legible—but he is, after all, a doctor so we have to make allowances.

I was asked a number of other questions. I was asked whether any difficulties in the budgets for PCTs might lead to individuals in one area finding that they did not receive the appropriate budget while individuals in another area did. The individual circumstances of a PCT should not determine an individual patient’s budget; it is the health care needs of that individual patient that should determine that budget. Therefore, the area where an individual lives should not determine whether they are able to get a certain amount of money.

It will be up to PCTs to determine the number of pilots that they conduct. They will have to make that judgment and they will have to conduct the pilots within their budgets. It has been indicated to us that a number of PCTs are very interested in taking this process forward. So we are very encouraged by the interest that has been shown.

I was also asked who had made some of the rules and in particular whether it was the Treasury. In fact, the rules were made by the Government, who have collective responsibility. In practice, however, most of the work was done by the Department of Health policy and strategy unit. So that is the answer to that question.

Some pilots are specifically investigating the idea of pooling social care budgets and health budgets. If we can get the handling of the issue right, there is an opportunity for pooling budgets. However, the handling is the key and the devil is in the detail. We must work out how pooling can be done. Ideally, individuals with quite complex care and health needs must be able to ensure that they have a single budget for them, and we want to pilot how that might be delivered.

I am conscious of the time, so I shall go through the amendments briskly. First, amendment 187 is about

“the balance of risk between the patient’s autonomy to use the direct payments” and attaining proper spending accountability. We aim to put the power into the hands of patients and to give them the support they need to exercise it. Essentially, we  want an agreement about how the patient will spend the money, supervision and negotiation of that agreement and then allocation of a budget. I am not talking about a bunch of fivers in the hand but about access to a budget so that health care can be purchased appropriately. I hope that deals with amendment 187.

Amendment 170 relates to what the hon. Member for Romsey said about ensuring that a patient has to give consent, and I hope I have dealt with that matter. We do not want such a provision in the Bill because we want to see how things develop in the pilot. The amendment relates both to the individual and to those who have the ability and the right to make decisions on their behalf. Some individuals may have disabilities, but it may none the less be appropriate for them to have individual budgets because of the complexity of their care needs. It is essential that the decision should be arrived at by them. I cannot envisage a situation in which people who do not want a budget are somehow obliged to manage it, because they clearly would not do it. There has to be consent and, more than that, there has to be a seriously informed level of consent behind the administration of the budget.

Moving to amendment 15 and whether a direct payment can be used to pay a carer. The answer is yes, but we are concerned about situations in which resident family members are living with someone and in control of the budget. We need to exercise a certain degree of care. Except in exceptional circumstances, regulations on social care direct payments do not allow carers to be paid through direct payment if they are spouses or other relatives who live in the same house. Social care direct payments may be used for some family carers if they are non-resident. We intend to follow that example with health care direct payment.

We are concerned about evidence from social care that suggests that resident family members can become dependent on direct payment as a significant source of their household income. The effect of that is to limit people’s independence and choice, as they feel obliged to continue to employ a resident family carer even if that is not the best way to meet their personal needs. We need to exercise a high degree of caution in that area.

I understand the need for some caution, but I should like to mention a particular constituency case. A mother has a son with health and social care needs who is in a wheelchair. The mother is a nurse and would like to provide the nursing care and use some of the money to get other help around the house. She is not allowed to do that. She has to employ a nurse and do other work herself. I know that not many families are in that position, nevertheless, the mother has been deprived of a choice that would not make her financially dependent. The same amount of money is coming into the family, but there is a lack of flexibility over who delivers a particular type of care. As a mother, she is quite clear that she would like to do it herself, and she seems to be deprived of it under the present rules, which seems a shame.

The hon. Lady raises a valid point. There are always exceptions to a rule, but it is there because we must avoid unpleasant things happening to individuals who may be vulnerable. The rule that protects vulnerable people may also fail to give them the  higher level of care that may be provided by a close relative. I accept that her constituent would seem to be such a case. However, it is necessary to balance the risks. At the moment, we believe that caution is needed. A mother’s care may be greater, given the nature and the extent of her qualifications, but we intend to exercise care about that in the pilots. It does not mean that rules might not be developed at some stage in future should the proposal become a long-term project that would allow a more detailed evaluation of the balance of risk.

I appreciate that we are pressed for time, but the Minister will be aware that I asked whether there was any sign of a carer’s wage. I pointed out that the Government’s promise had created some expectation.

We are pressed for time, and I want to ensure that we get through some of the issues briskly. Perhaps the hon. Gentleman will forgive me if I return to him on that question.

Amendment 188 would set a notice period. We do not envisage any direct payment being stopped because of a PCT’s budgetary problems, and certainly not as part of the pilot schemes. We do not envisage that any PCT would be so crass that an individual budget would make a great difference to its overall circumstances. The straight answer is that we do not foresee that happening.

On amendment 123 and whether people may top up their direct payments, our view is that that should not happen. Patients may not top up their personal health budgets from their own resources, given the health plan that has been put in place. If they want to buy something additional, such as health care outside the budget plan, that is a matter for them and they will, in effect, be paying privately for additional health care. However, if they have a health budget that they manage, it should be done within the terms of the funding provided by the public. The NHS is not there to subsidise private medicine. NHS money should be used to provide necessary NHS care, not to provide the wealthy with a way of obtaining a little additional money from taxpayers for something that they would otherwise pay for privately.

On maternity services, we want to give women more choice in maternity care, and the matter was discussed at length in another place. We are very interested in the principle and we are pleased that one of our provisional pilot sites at Eastern and Coastal Kent PCT has included maternity services as part of its proposal for exploring personal health budgets. However, we have said that PCTs must decide locally where personal health budgets might bring the greatest benefits for patients.

On whether we are prepared to consider private sector maternity providers, we will consider the details of particular circumstances and see how the pilots operate. A private maternity programme may be developed in the future and benefit some women, but it is not in place at present. Let us see how things develop and what the circumstances are. We do not have a closed mind. We are willing to look at how that develops.

I was asked whether people would need to buy an indemnity. That is a problem. If people are producing an entirely privately funded provision, they would have to consider the implications. An additional budget will not be provided from outside to ensure that something the NHS would not otherwise have to provide will be  provided because someone has decided to get a service from the private sector. People will have to bear that in mind. On amendment 124, the benefits of any cost savings would be deployed in the personal budgets.

I was asked whether we would pilot in areas that are unenthusiastic. We are not planning the pilots in those terms. We want to see whether the scheme can be a success. It is not just about testing in enthusiastic areas. If it can be successful in some areas, it may then need to be tested in less enthusiastic ones. We will see how that works. It will be a matter of working out how we engender enthusiasm in those areas.

On amendment 125, we do not envisage that the scheme could be used to commission emergency and intensive care, because it would be difficult to set a meaningful budget. In many cases, there could be a lack of clinically appropriate treatment choices for people to make. Our personal health budgets are unlikely to add any significant benefit in that area at present and could even introduce some complexities, so we are not envisaging that being part of the pilots.

With regard to palliative care, we could see some significant progress in terms of individual budgets. Personal budgets could give patients greater choice and control in designing support to give them the best possible quality of life. Several of our provisional sites propose to explore aspects of palliative care, especially end-of-life care, and supporting people with long-term conditions. We are keen to explore that further. However, we are also aware that people may not wish to manage a budget during what can be a stressful, difficult period. No one should be forced to take more control of their care than they feel comfortable with. It is vital that we get the balance right.

Rather than just saying, “Here’s a budget plan, now get on and do it,” which we might do with some people, we would not exercise such a hands-off approach in that area. There needs to be a level of support for people, particularly in end-of-life care, that may go beyond that available in some other areas. It is about ensuring that we get the level of support right in such circumstances, but the personal budgets really could provide a significant advantage and could improve the circumstances of individuals.

Amendment 127 relates to individuals who become employers. People who receive direct payments will need to understand and fulfil their obligations as employers. Primary care trusts involved in the pilots will need to ensure that patients and carers have the information and support they need to act as responsible employers. We know from recent research that care workers employed using social care direct payments may not receive sufficient training opportunities. However, other people receiving direct payments to employ care workers are keen to ensure that their staff have not only good, appropriate terms and conditions, but access to training. There are issues that we will need to explore through the pilots, but, yes, there are obligations on employers and, if people decide to employ others, as part of their budget they are taking on the things that go with that.

Amendment 128 relates to the use of community services tariffs when using a direct payment to purchase care. Where local tariffs exist for community purposes—we  are encouraging their development—they may provide the pilot sites with a useful basis for calculating a direct payment or other type of personal budget.

Amendment 129 relates to prisoners. I do not envisage that direct payments would become available to prisoners. I appreciate what the hon. Member for Eddisbury said about prisoners having mental health problems, but the NHS and the services within the Prison Service are a better way of dealing with that, rather than giving the prisoner a budget with which he then buys his own care. That is not an area in which I envisage direct payments being appropriate, although I hear what he says.

Amendment 130 relates to complementary therapies. We do not intend to rule out the use of direct payments to purchase such therapies. Many people find complementary therapies useful as part of a wider package of care—for example, using acupuncture as part of a package of pain relief that includes drugs and traditional physiotherapy. The whole aim of personal health care budgets is to allow a flexible and personalised approach, not to draw up a national list of eligible treatments in some kind of regulation. However, any therapies would have to be agreed as part of the health plan as likely to meet the person’s health care needs. No money would be spent on services that are not in the agreed health plan.

Amendment 131 relates to the purchase of health care from devolved Administrations or from other countries in the EU. The hon. Member for Eddisbury referred to his personal circumstances and his constituency having a proximity to another country. We do not intend to introduce any specific restrictions at this stage. In principle, a direct payment or other personal health budget could be used to purchase care from providers elsewhere—in other countries in the UK or in the European economic area—in the same way as a traditionally commissioned service. Any use of overseas providers would have to be agreed with a PCT as part of the health care plan. Direct payments should not be a way to get access to treatments that other patients in the UK would not be entitled to receive. We would need to look carefully at all these issues.

I hope that I have covered most of the many questions raised and I hope that, on that basis, the amendment will be withdrawn.

The Minister has done his best to tackle all the issues that were raised. I am sure that he recognises that it took us some time to put them together to make sure that they were properly explored. The devil will be in the detail—he used that phrase in relation to pooling, which is interesting—and that is why it has been important to look through the provisions. It is also why there is justification for pilots and there will be concern to make sure that they can convert into a roll-out once lessons are well learnt. On that basis, we have had a useful exercise, which is the purpose of the Committee, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Mary Creagh.)

Adjourned till Tuesday 23 June at half-past Ten o’clock.