Health Bill [HL]

Amendment 52A, which was tabled by the noble Baronesses, Lady Barker and Lady Tonge, would add a specific power for defining consent to use direct payments for healthcare. As I explained earlier, we do not believe that personal health budgets would be right for everyone, or in all areas of the NHS. One of the core principles that we have outlined is that personal budgets will be purely voluntary. Specifically in relation to direct payments, the Bill enshrines the importance of consent at the outset. The very first sentence of proposed new Section 12A gives power to, ""make payments, with the patient’s consent, to the patient or to a person nominated by the patient"." Also, as I mentioned before, 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. I hope that the words "patient’s consent" in that first line and the rights in the constitution will reassure the noble Baroness in relation to the amendment. I now turn to Amendment 55 tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, and Amendment 58, tabled by my noble friend Lord Campbell-Savours. These amendments make particular provision under new Section 12B to regulate whether patients can receive services in addition to those for which a direct payment for health care has already been made. I understand that there have been concerns on this issue from two perspectives. Some noble Lords have been concerned that patients might be turned away from essential NHS care if their direct payment runs out. Conversely, others have raised concerns that patients might spend their direct payment inappropriately and come back for more, diverting NHS resources away from other patients. I hope that I can reassure noble Lords on both counts. First, I should emphasise that direct payments are absolutely not a matter of handing over cash payments and walking away. As we outlined in Personal Health Budgets: First Steps, there would be safeguards at several stages. To start with, we intend that personal health budgets will be offered only where there are potential benefits for the individual. There will be many patients and many services where personal health budgets will not be suitable. They will include circumstances where the patient’s needs are fluctuating or unpredictable so that it is not possible to set a budget sensibly. Alternatively, a budget might be set for only some aspects of the care pathway, not all of it, enabling the patient to receive other services in the traditional way, so having two parallel services, one paid for by direct payments and the other paid for by the NHS through the usual commissioning processes. Secondly, there will be an agreed care plan, as I have said before, for how the personal health budget will be used to ensure that the proposed services are suitable for the patient’s agreed needs and that the budget is sufficient to pay for it. Thirdly, there should be effective arrangements for monitoring and review, looking at both the clinical outcomes and the financial elements of the personal health budget. Only then can PCTs be sure that high-quality services are being delivered, and that the patients are safe and making progress towards their agreed outcomes. Regular monitoring should ensure that any shortfall in the agreed budget or a need for a change in services or provider can be spotted promptly and corrected. If a personal health budget or direct payment proves unsuitable, a patient could be offered traditionally commissioned NHS services in the usual way. To answer the point made by my noble friend Lord Campbell-Savours, paragraph 14 on page 26 clearly states that there will be a "contingency component" so that if the money runs out we will at least be ready to meet the aspirations of the patient. In addition, Personal Health Budgets: First Steps sets out a clear principle that no one should be denied essential treatment as a result of having a personal health budget. There should be no question of patients being turned away from NHS services if they need them. In conclusion, I am confident that the safeguards I have described should avoid problems arising in the way that some people have feared. I now turn to Amendment 56 tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, and Amendment 60 tabled by the noble Baroness, Lady Barker. These amendments relate to the provision for reclaiming a direct payment from a patient. It may be helpful if I explain why we believe we need this flexibility. The provision as it currently stands is designed to allow the NHS to reclaim money if a direct payment is underspent. I envisage that the need to consider repayment will be very rare in practice. Normally, underspend will be carried over and deducted from the next direct payment. However, it may be appropriate to reclaim it; for example, if the direct payment stops, the patient stops that direct payment or opts out of being part of a direct payment scheme. This power is important for managing taxpayers’ funds responsibly. In addition, we expect regulations to require that direct payments be paid into a separate bank account on a regular basis, possibly monthly. This means that where payments are recovered, they would usually be taken from the same dedicated account and would cover only a short period. That should avoid the risk of creating financial hardship for individuals, should such a rare case arise, As we set out in the department’s briefing note for noble Lords, we wish the Secretary of State to be able to use discretion in exercising this power. For example, there might be cases where it would be disproportionate or inappropriate to recover payments. I agree with the noble Baroness, Lady Barker, that that might well be the case where there had been a wrong diagnosis, and that power would not be exercised. However, it is conceivable that there might be deliberate fraud by a patient, which has been touched on before, as well as a mistaken diagnosis. We would not want to rule out recovery in that situation. Misdiagnosis is only one of many potential circumstances where recovery might not be desirable. I would be reluctant to specify that in the Bill. In the unlikely event of fraud, the Bill provides power under new Section 12B(4) for reclaiming direct payments as a civil debt. For serious abuse of the system, criminal sanctions would be available under the Theft Act 1968 or the Fraud Act 2006. Our provisions, which follow the approach taken in the social care legislation, are deliberately flexible to allow for discretion in dealing with these difficult circumstances and to ensure we can learn lessons from the pilots. I turn to the question raised by the noble Baroness, Lady Cumberlege, about top-ups. Personal health budgets must be compatible with the core principle that NHS care is based on clinical need, not ability to pay, so top-ups will not be allowed when it comes to personal health budgets. However, we have debated top-ups on numerous occasions. If, for any reason, the patient wishes to purchase additional care privately, it will have to be taken separately and with clear accountability in line with the response that the Government gave to Professor Mike Richards’s review of additional private drugs. I doubt the issue will arise. I expect most patients to go back to their care manager and negotiate some of their extra needs if the issue arises. The partnership working between the patient and the care manager or provider that the noble Baroness, Lady Campbell, mentioned will address some of these issues. If top-ups come up, we have clear guidance from the Richards review. In the light of these explanations, I hope noble Lords are reassured and will agree to withdraw their amendments.