Mental Health (Approval Functions) Bill

Baroness Murphy Excerpts

Wednesday 31st October 2012 Lords Chamber

[Baroness Murphy]

My Lords, I give my general wholehearted support to this. I am very sympathetic to the difficulties in which the Government find themselves and I wholly understand the need for the emergency legislation. It seems to me quite astonishing that these four health authorities should have made this decision. I say that because at that time in 2002, I also became chairman of a strategic health authority. I want to reassure the noble Baroness, Lady Jolly, that we had a very long list of our legal obligations, of which one was clearly the approval of Section 12 approved doctors. It was discussed. It is very difficult and time consuming to set up the training programmes to ensure that the right wisdom is in place and to supervise those being approved by the authority itself. I quite understand that people might have thought that it would be easier to delegate it but the 1983 Act is so clear that I cannot understand how these four authorities could have thought that they could delegate that.

Speaking as a former vice-chair of the Mental Health Act Commission in the 1990s, I would like to ask why that commission did not pick up that these Section 12 approved doctors were being approved by the wrong authorities. I find that quite astonishing. While I can see the need for this legislation and the reason for the emergency, I hope that we will look carefully at how they got this so wrong.

I have a suspicion that the difficulty may arise because of an attitude in some authorities to treating with less gravity the detention of mental health patients than perhaps it is in others. As you travel around the country, regrettably it is true that this appears to be a lesser function for some authorities than they want to undertake, which is seriously worrying.

I share the anxieties that the noble Lord, Lord Pannick, has outlined that there could still be quacks or quite unsuitable doctors who have discharged the functions of an approved doctor; yet in this catch-all Bill their decisions would not allow patients to challenge them. After all, we are talking about right up to the present day. Therefore, we are talking about patients who perhaps are coming out of hospital in the next month or two and still want to challenge the legality of the detention because of the approval of the Section 12 approval. We are going to be ruling that out. I wonder how that sits well with our assurances that we will take this process more seriously, and as seriously as Parliament intended when it passed the 1983 Act.

Health and Social Care Bill

Baroness Murphy Excerpts

Monday 19th March 2012 Lords Chamber

[Lord Wilson of Dinton]

It is not for me to advise the Government on what to do, but I hope they will appeal, because the issue involved is of huge importance. I read the Information Commissioner’s first judgment and I do not find it satisfactory. It is written in a way that suggests that it does not understand the issues in government. I think the issue at stake is of sufficient importance for the Government to fight its corner, and for this House not to add its weight to it.

[Baroness Murphy]

My Lords, I declare that I am a member of the British Medical Association and a fellow of the Royal College of Psychiatrists.

The risk register is a complete red herring and we all know that this is an attempt to delay the implementation of the policies in the Bill. The Bill has received extraordinarily careful scrutiny. In fact, it has received better scrutiny and a warmer response from government Ministers in addressing amendments proposed by all sides of the House than any Bill with which I have been associated in the past eight years. At the moment, I can think of nothing worse for the National Health Service than to have these policies delayed yet again by further uncertainty and greater procrastination.

The risk register saga was so obviously a political ruse from the beginning that I did not even bother to speak on it when it was first introduced. It was so obviously a red herring, produced for the benefit of the House to debate a slowing down of the Bill, that it was not worth addressing.

[Baroness McIntosh of Hudnall]

Would the noble Baroness explain to the House whether it is her view that the Information Commissioner has deliberately delayed the progress of the Bill? That seems to be the implication of her remarks.

[Baroness Murphy]

That is not the implication of my remarks at all. The Information Commissioner has not released his full judgment and will not release his reasons for some time, so we cannot debate that.

This comes back to what my noble friends Lord Birt and Lord Wilson and the noble Lord, Lord Fowler, said about what these risk registers contain. I know very well because I have written risk registers for the National Health Service. I have sat down with my chief executive, and with my chairman when I was a chief executive, and we have written these things for public consumption. The Cabinet Office has a very nice risk register, but it is for public consumption; it is not to do with the private discussions between senior civil servants or advisers. I have worked as an adviser at the Department of Health, and this is not the kind of thing that comes up in conversations between Ministers where you want to be really frank.

We now have an out of date, almost two years’ old risk register that will not be relevant to the passage of the Bill. We have assessed the detailed risks of the Bill better in this House than in any other forum I can imagine. Those who have sat through the progress of the Bill, line by line and word by word, know very well that we have improved it. I am sure there are areas that many of us would still like addressed, but for all kinds of reasons we are not able to do so. I beg the House not to delay the Bill. If we delay it further we will have no guarantee that we will be able to get it through before Prorogation. I see this simply as a ruse not to implement these polices. We would gravely let down the National Health Service by not implementing them, and I urge noble Lords not to support the Motion of the noble Lord, Lord Owen.

[Lord Falconer of Thoroton]

I support the Motion of the noble Lord, Lord Owen. I understand that he is saying, “Let us look at the reasons for saying that the risk register should be made public”. He understands that it must be done before Prorogation, so I am not entirely clear why the noble Baroness, Lady Murphy, is saying that this will cause delay. I hear what the noble Lord, Lord Wilson, says—you do need to strike a balance between appropriate confidentiality in relation to what the Government do and the need for openness.

The Freedom of Information Act was passed so that it would not be government Ministers or civil servants who determined what was kept confidential but an independent tribunal. We have reached the position on this issue at which Professor Angel, who is regarded as probably the best chair of an information tribunal that there is, has struck the balance. Take it from me that Professor Angel very well understands the need for proper confidentiality in relation to government. He and his tribunal are not remotely people who would make everything public. They well understand that lots of government matters have to be kept under wraps for the purpose of good government. If a tribunal chaired by Professor Angel said that we should see this, and he reached that conclusion on the basis not of politics but of good government, my instincts are that we should listen more to what he said than noble Lords around this House who have an interest in trying to rush the Bill through. I am struck by the modesty of the amendment by my friend, the noble Lord, Lord Owen. It says that we should see what Professor Angel said before we reach a conclusion. I strongly urge the House to take that course.

Health and Social Care Bill

Baroness Murphy Excerpts

Thursday 8th March 2012 Lords Chamber

[Baroness Murphy]

My Lords, it is evident that everyone around this House who has participated in the discussions on the Bill in effect wants the private patient and other private income to be of benefit to and contribute to institutions whose primary focus, not just their duty, is to public patients. That is what we have all been trying to achieve and it is a matter of finding the right words. Actually, I was going to say to the noble Baroness, Lady Finlay, that I quite liked her Amendment 220. The amendment might not have the right wording but it encapsulates exactly the principle that we are trying to get into the Bill. The amendment is admirable.

I do not have any problem at all with Amendment 218A, which is about accounts, because foundation trusts already produce very detailed accounts in order to indicate to Monitor how near or far they are from meeting their existing private patient cap, which is carefully monitored. Those sorts of accounts are already there. The only difficulty is that accounts, being made up by accountants, do not always reflect which service line is supporting another service line. Therefore, I am not quite sure that requiring this great detail will do quite what the opposition Benches hope. However, in principle, I see nothing wrong with the amendment.

It is worth while remembering all the time during these debates that we are talking about a situation where the vast majority of hospitals—apart from a handful of internationally renowned specialist hospitals in London and the suburbs and in one or two other cities outside—have a private patient income of about 2 per cent. That is not likely to change very much. However, we need to add something that is reassuring because we all understand the anxieties out there. Amendment 220BZB, in the name of the noble Earl, Lord Howe, is an excellent solution. The change to a 5 per cent limit during the year means that there will be no great energy thrown at changing this area, which is the most important thing. We want the board of the hospital and the governors to focus on public patients. If they have some other income coming in from private activity, that is fine, but we do not want them suddenly to throw a lot of energy at it. Therefore, I think that 5 per cent is about right. I know that some foundation trusts have asked for 10 per cent, but 5 per cent is fine.

Requiring hospitals to warn everyone in advance what they are going to do is also helpful. I seek reassurance from the Government that that will still protect the confidentiality of plans, because I know that trusts have expressed anxiety about that. However, I cannot see any problem with it.

The reason that I prefer the amendment of the noble Earl, Lord Howe, to Amendment 220C is because his amendment involves the governors. Crucially, they are the people responsible for the institution, whereas Amendment 220C involves the much wider membership—often 10,000, 12,000 or 20,000 members. That is just too unwieldy a group to be seriously involved in the governance of an organisation. They are vital people in getting local communities to be involved in and have knowledge about the hospital but they would not be the right people when it comes to these sorts of changes.

I support much of what the noble Lord, Lord Marks of Henley-on-Thames, has said, but I am attracted to the Government’s amendment, which solves the problem that we are all looking for a solution to.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this has been a good and constructive debate on NHS foundation trusts. It is right that we should focus on the removal of the private patient income cap, as I am acutely aware that that is where the majority of noble Lords’ concerns lie.

We need to focus on one core point at the outset. Fears have been expressed that removal of the cap could see foundation trusts increasing private income at the expense of NHS patients—in other words, that it could create a two-tier NHS, with those who can afford to pay going to the front of the queue. That is wrong and, I believe, alarmist. There are robust safeguards in place to prevent that kind of outcome.

Allowing a foundation trust to generate more private income does not release it from its prime duty to its NHS patients. Foundation trusts will still have to meet their legally binding contractual obligations on waiting times and provide the highest standards of care for NHS patients. Foundation trusts themselves are very clear about that. Removing the private patient income cap would allow them to bring extra investment in infrastructure and leading-edge technology to benefit NHS patients. Today, foundation trusts can be prevented by the cap from treating private patients who wish to be treated at the trust even when the income that the trust would earn would support its NHS services. The point made by the noble Baroness, Lady Finlay, was absolutely spot on. The cap leads to the ridiculous situation where NHS consultants are forced to get into their cars to drive to independent providers to perform private patient work in their non-contracted hours. Removing the cap would improve clinical safety for all patients in NHS hospitals, because doctors would be more likely to remain on site for longer.

It may well be, as the noble Baroness, Lady Murphy, pointed out, that most foundation trusts will not be affected at all by the removal of the cap. Many of them are earning below their caps at the moment. It is worth noting that NHS trusts, as distinct from NHS foundation trusts, which are not subject to a cap at all, are not earning proportionately more than corresponding foundation trusts. The point is that removing the cap gives the most innovative organisations the opportunity to boost income for NHS services.

I can also assure the House that we have put in place substantial safeguards to protect NHS patients. NHS foundation trusts will remain first and foremost NHS providers. Their principal legal purpose, to treat NHS patients, has been in legislation since 2003. I tabled an amendment in Committee to clarify its legal meaning. A foundation trust’s principal purpose requires it to earn the majority of its income from the NHS. That is very different from saying that 49 per cent of the work of foundation trusts will be with private patients, as some have misinterpreted it. The Bill does not mention 49 per cent, as I hope the noble Baroness is aware. Amendment 220A would remove the clause. That would be most unfortunate, because its effect would be to leave governors and local communities unclear that foundation trusts must remain predominately NHS providers.

There have been worries that the internal governance of foundation trusts will not be strong enough to exercise the requisite control in that area. I hope that I can provide reassurance on that point. As the local community's representatives, it is the responsibility of the governors to hold the board to account for its management of the trust. The governors should also consider whether the level of private activity is in the best interests of their organisation. The Bill will ensure that governors are better able to do that. It strengthens their arm by giving them new powers to hold directors to account and, if necessary, to remove the chair and non-executives of the board of directors. It would be entirely appropriate for the governors to use these powers if they felt that non-NHS activity was not operating in the interests of NHS patients.

At this stage, I should like to thank my noble friend Lord Clement-Jones for setting out a very persuasive case for adding to governors’ powers to oversee a foundation trust’s private income. I have tabled an amendment, which I hope will address his concerns, requiring directors to detail in the trust’s annual plan—that is, the forward look—any proposals to earn private income and the income that they expect to receive. By law, directors already have to take into account governors’ views in preparing this plan, but this amendment would place an explicit duty on governors to consider the plan and be satisfied that any proposals to increase private income would not significantly interfere with their foundation trust’s principal legal purpose to treat NHS patients.

With regard to the point raised by the noble Lord, Lord Campbell-Savours, a plan to increase private income substantially—that is, to increase by 5 percentage points or more the proportion of total income earned from non-NHS activity—must secure agreement by a majority of governors in a vote. For example, governors would be required to vote where a foundation trust planned an increase in non-NHS income from 2 per cent to 7 per cent or more of its total income, or from 3 per cent to 8 per cent or more. To make it quite clear, the vote would be triggered by plans for large increases in non-NHS income. Other matters, such as significant transactions, are for foundation trusts to decide. These proposals would complement the amendment that we introduced in Committee to require directors to explain in a foundation trust’s annual report how private income had benefited NHS patients.

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[Baroness Northover]

I remind my noble friend that he can reply on his amendment at the end. I am sorry to keep on intervening on my noble friends in defence of the noble Lord, Lord Warner, who wanted to continue his argument, as he did. My noble friend has the opportunity to respond at the end.

[Baroness Murphy]

I have concerns similar to those of the noble Lord, Lord Warner, but this amendment is different from those that I have seen floating around from the noble Lord, Lord Phillips. I also have questions, but we must be very clear about what we mean by “queue-jumping”. If an NHS patient goes to an ordinary NHS hospital consultant and is told that they need an operation, it is completely legitimate for them then to ask to go privately and pay for the operation. That is, as the noble Lord, Lord Warner, said, enshrined in the NHS Act of 1948, and completely legitimate. Queue-jumping is when a patient sees a private consultant who then inserts the patient into the NHS list ahead of other NHS patients. That is what we want to avoid, and it is already completely illegal and highly frowned on. Most hospitals do what they can to exclude it, but I take the point made by the noble Lord, Lord Phillips, that it goes on, and we know that it does. It is an unpleasant practice and should be stamped out, but I do not know whether this amendment does that.

As the noble Lord, Lord Kakkar, reminded us, the conundrum of private units in NHS hospitals must be borne in mind. That may be the most constructive way in which to ensure that NHS consultants are available to NHS patients when they need to be, as the noble Baroness, Lady Finlay, said. But often private patients have operations that go wrong—and then, if there are two patients in need of an NHS intensive care bed, the patient who takes priority is the person with the clinical need. It is very much the same as someone on a battlefield. It does not matter whether it is an enemy soldier or a domestic soldier.

[Lord Hunt of Kings Heath]

I thought that the amendment was focused not so much on clinicians but on the board of the trust. That is a slightly different argument.

[Baroness Murphy]

The noble Lord may be right. If the change in wording applies to how the management behaves but makes no change in clinical priorities—the noble Lord, Lord Kakkar, said that it would not interfere with clinical priorities—I would support it. It is necessary to ensure that management acts like that, as long as it does not cut across the clinical priority that the sickest person comes first, whether private or NHS.

[Lord Ribeiro]

I have one question for the noble Lord, Lord Phillips of Sudbury. I agree with the comments made about management. When I worked as a surgeon, during a period when we were desperate to get patients into hospitals because we had already completed our NHS quota of work by January and had from January to April to make money, pressure was often placed on us as consultants by management to bring private patients into the NHS so that we could make the income. I hear “Oh!” from the other side. However, one problem that came from separating and withdrawing private beds from the NHS was that most consultants have established private practice in private hospitals outwith the NHS. The point that the noble Baroness, Lady Finlay, made was that part of the reason for removing or adjusting the cap and why she supported earlier amendments was to try to get integration of care to allow consultants to be on the spot.

The amendment refers to NHS foundations trusts. As we know, there are trusts that are not foundation but ordinary. What would apply to them? Would they therefore be free to undertake private work in a way that has been described here? This refers only to NHS foundation trusts.

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[Lord Warner]

My Lords, it gives me great pleasure to follow that sterling contribution by my noble friend Lady Pitkeathley. The real problem with the Government’s approach is that they really have not properly defined the functions of this body. One of the great strengths of this amendment is that it sets out what the functions of a truly independent body should be in this area. I make no defence of the previous Government’s attempts to wrestle with this idea, but I think that we have continued to go backwards in this area since the days of community health councils, despite their patchiness.

I was very optimistic when the Government made their first announcements about healthwatch, and I was a great supporter of the brand name that they had created, which I thought was very powerful. Unfortunately, the functions that they have given it and the way they have set it within the CQC do not enable it to live up to the strength of that brand.

I was full of admiration for the creative way in which the noble Baronesses, Lady Cumberlege and Lady Jolly, loyally tried to make the sow’s ear a bit more of a silk purse. However, it really does not cut the mustard. I think that we need to pay attention to the points made by my noble friend Lord Whitty, who emphasised very well the extent to which the model that the Government are pursuing has failed in a number of other areas of public policy. The Government should learn from that evidence and rethink this matter before we get to Third Reading.

I have one other point which concerns the rather spirited exchange that we had in Committee with the noble Baroness over the issue of campaigning. I shall return to that for a few moments. The whole point of having a body like healthwatch is to enable it to join forces with other people when there is a serious challenge to the public interest and to patients’ interests in this area and allow it to campaign. I cannot see how it can be very easy for a committee of the CQC to join in that campaign. I asked the noble Baroness whether it would be able to campaign and, to her great credit, she said that yes, it would. Most of us who have knocked around the public sector for any length of time would find it very difficult to believe that a committee of the CQC would be able, despite what the noble Baroness says, to join in a campaign that was highly critical of the CQC. We need to be clear on whether it can campaign; and if it can, I would like, as the noble Baroness said, a very convincing explanation of how it will be able to when it is sitting within the structure of the regulator and it is the regulator's deficiencies that it is campaigning against.

[Baroness Murphy]

My Lords, I hope I shall be allowed to put a contrary point of view to that of the noble Lord, Lord Warner, and those who have tabled Amendment 223. First, I apologise for not contributing in Committee on this area; I happened to be away during the debates on this, but I read the reports with much interest.

This area of patient and public involvement is one that, as many noble Lords have said, we have struggled with for many years. I hark back to the CHCs with some nostalgia. They were a very mixed bag of organisations, but those that were good worked very effectively. I too pay tribute to the noble Lord, Lord Harris of Haringey, for the work that he did in supporting CHCs around London, which made my life an utter misery, as they were intended to do. I am very grateful for that.

Unfortunately, the arrangements that were put in place after their abolition have not worked. I say to the noble Lord, Lord Whitty, who is very persuasive in his arguments, that we have been there, done that and it did not work. As the noble Baroness, Lady Pitkeathley, said, the Commission for Patient and Public Involvement in Health was a total disaster. It was an extremely expensive quango—it was bureaucratic, totally isolated from other health bodies, the Department of Health did not know what it was up to and I do not think it knew what it was up to itself. It fell out with all the local patient and public forums. It was a disaster. It did not have any symbiotic relationships with those who make the health and social care services work; it was not in any way linked in with local authorities, which is a huge difference from these arrangements; and it seemed to me then that you had to have a structure in which all the core patient and public involvement organisations locally were crucially interlinked with what makes things work.

Health and Social Care Bill

Baroness Murphy Excerpts

Tuesday 6th March 2012 Lords Chamber

[Lord Skelmersdale]

My Lords, the House seems to have gone remarkably silent after those two introductory supporters of this particular amendment. As some of your Lordships will remember, when I returned from Northern Ireland as the ex-Minister responsible for health and social services, I came as a great fan of combined health and social services. Yet I discovered in my experience there that it would never, ever work unless you had one organisation in total and utter control. This may seem like a Second Reading speech, but it is not intended to be. The Secretary of State mentioned in the amendment means any Secretary of State, and currently we have two Secretaries of State. That is why the notable ambitions of this amendment—and they are notable—will always fail. Therefore, I encourage my noble friend, until a higher authority than himself, senior as he is, gives the imprimatur to take social services away from local government, to resist this amendment.

[Baroness Murphy]

My Lords, I think that the noble Lord, Lord Warner, is having us on. There is an urgent need to press the Government on bringing forward their White Paper on social care reform, which is the pressing economic and social care issue of our day—more important than this Bill. But we have to get it right. We are expecting a White Paper, and there are many arguments to be had about the recommendations from the Dilnot commission, although there is quite a consensus of opinion, and about the right and wrong and who will pay and when. I hope that we can have those debates in this House. But this issue requires a full Bill. This amendment gives a new Bill inside the Health and Social Care Bill on Report, and I do not really think that it will fly. I can imagine what the noble Lord, Lord Warner, would have done if it had been proposed when he was Health Minister. He would have given it very short shrift—and I urge the Government to do so again. We need a proper recommendation and discussion in the White Paper.

I also remind the House that last year the Law Commission came out with a report on adult care social services that said that we had had endless piecemeal bits of legislation over and over—and this amendment does it all over again. Let us not make the mistake of supporting this amendment. I am very sympathetic to what the noble Lord wants to do, and we all feel very impatient about it, but let us have a proper Bill and proper debates and get it right for the next generation. Frankly, it is our generation and the next one that will benefit from a proper social care reform Bill. Let us get it right and not do it this way.

[Baroness Barker]

The noble Lord, Lord Warner, asked what was to disagree with—what was not to like—and the answer is nothing at all. However, that is not to say that this amendment is not deficient and there are not an awful lot of questions that it begs.

The noble Lord is right that my party, along with others, has agreed with the Law Commission review and supported the efforts to see the Dilnot commission brought into law. However, he will know as well as I do that the history of social care law reform is littered with failed attempts to deal with one of the biggest issues that our society faces—the Royal Commission on long-term care. The Wanless report was largely about the NHS, but a significant chunk of it was about the need to reform social care to drive down future demands on the health service. Noble Lords have been critical of this Bill, and many of their criticisms are justified, but they overstate the extent to which the latter parts of the Bill, with the placing of public health into local government and the creation of health and well-being boards, attempt to deal with that agenda, decrease health inequalities and raise levels of preventive health promotion. I, too, think that this is an inadequate response, particularly to the Law Commission report, which was a good and detailed piece of work. It deserves extensive scrutiny and to be brought forward in law in a way that is far more comprehensive than this.

I will not have a go at the noble Lord, Lord Warner, for keeping the issue on the agenda, but I say to him that the Care Services Minister, Paul Burstow, has made it clear throughout his tenure that he is doing all in his power to keep social care to the fore. I come back to the £2 billion that was invested in social care at the beginning of the Government’s term. The Government are mindful of the need to deal with this, not least because the noble Baroness, Lady Murphy, is right to say that, as she often reminds this House, no one has a social care need unless they have a healthcare need—the two things are indivisible—and if the Bill is about anything, it is about tackling the health needs of the population as a whole over time.

I do not disagree with the noble Lord, Lord Warner, but I do not think that this is quite the way to go forward. I hope that all Members of this House will continue to uphold the consensus that there has been over the past two years behind the work of the Law Commission and the Dilnot report to bring this issue forward in a way that means that it can be determined successfully once and for all.

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[Lord Turnberg]

My Lords, I wonder whether I could comment on that. It depends on the timescale between admissions. If it is longer than two months, I think that you get a second shot.

[Baroness Murphy]

My Lords, this is a disparate group of amendments. I support the principles that underline Amendments 164, 165 and 166. The Bill has been amended since the Committee stage and may address some issues, and that is one of the difficulties when we discuss competition, collaboration, integration and co-operation. We will have yet another amendment later today or on Thursday from the Government on the duty of co-operation that will further strengthen the role of Monitor in regard to these issues. That, I think, will meet some of the arguments.

My feelings are consonant with those of the noble Baroness, Lady Williams. I am furious at some of the debates in the press about whether we are marketeers or pro-NHS. In fact, the vast majority of people in this House steer a course in order to do what is in the best interests of patients in terms of competition, collaboration and integration. I acknowledge that many of us must feel the same as the noble Baroness in her frustration about that.

The intervention of my noble friend Lord Adebowale was helpful in that it reminded us of how competition has worked in mental health services and substance misuse services. For many years collaboration between organisations to deliver services in both acute care and for long-term conditions has been helpful. I have no difficulty thinking of dozens of situations where commissioners have decided to commission services in areas where there has been collaboration between a group of service providers. They may involve social care services, residential care homes being run independently and so on. Commissioners might seek to put together an improved ortho-geriatric service especially for people with multiple disabilities in later life. There are examples of successful collaborative services which have been competitively tendered for. However, I do not want to take up the time of the House at this stage by mentioning too many examples.

I have a question to ask of the Opposition in relation to Amendment 163BA. This is the first amendment in the group, and perhaps the noble Baroness, Lady Thornton, could help me in one respect. I am not quite clear whether this amendment would return Monitor to the position it is in now—where we would continue with the two-tier system of foundation trusts and other trusts with a simple economic regulator for foundation trusts—and would rule out the rest of the new economic regulation functions. If it has that effect, it would seriously wreck the main purpose of the Bill. However, I may well be reading it incorrectly, so before I decide which way to go, I wonder whether the noble Baroness, Lady Thornton, could reassure me that that is not the purpose of the amendment.

[Earl Howe]

My Lords, there is a clear purpose to Part 3. It is to strengthen sector regulation of healthcare in England by building and improving on Monitor’s existing role as the regulator of foundation trusts. It does that in three main ways. First, it makes clear that Monitor’s overriding duty would be to protect and promote patients’ interests. Secondly, it makes sector regulation more comprehensive by extending Monitor’s remit to all providers of NHS services. Thirdly, it makes sector regulation more effective in realising benefits for patients; for example, by monitoring the NHS Commissioning Board setting fairer prices for NHS services. Fair pricing is important for a whole host of reasons: to strengthen incentives for improvement, to enable better integration and to reduce the risk of cherry picking.

I shall deal with a simple point. Monitor will continue as the regulator of NHS foundation trusts. The Bill makes that crystal clear in Chapter 1. However, I am most grateful to my noble friend Lord Clement-Jones for highlighting the need for greater clarity on what intervention powers Monitor would have over foundation trusts on an enduring basis as against what would be transitional. I shall say more about that when we come to debate his amendments in a later group.

Before going on, let me address Amendment 167 from the noble Lord, Lord Hunt, on the specific issue of patients’ rights to refuse consent for treatment in the NHS. I can absolutely assure the noble Lord that these rights must be protected and nothing in the Bill would change that.

Returning to Part 3 and the role of Monitor, its overarching duty will be to promote economy, efficiency and effectiveness in the provision of healthcare while maintaining or improving quality for the benefit of patients. I underline those last words. This is the single overarching purpose for which Monitor would carry out all its functions, including its continuing functions under the NHS Act 2006 as the regulator of foundation trusts. Monitor’s overarching duty is clear, unequivocal and focused on improving outcomes for patients. I stress that point since as this is its guiding principle for resolving potential conflicts, there is no need to separate Monitor into two organisations, as the noble Baroness, Lady Thornton, proposes in her amendment. I suggest that she has raised an issue that in reality is not a substantive one.

Let me briefly address Monitor’s role in ensuring that where there is competition in the provision of healthcare it operates in the interests of patients. We will have an opportunity to consider this issue in more detail later. Decisions on whether and when to use competition will be a matter for clinical commissioners. As I have already said, there have always been private and voluntary providers in the NHS. Anyone who reads Part 3 will see that it does not create markets for NHS services, despite what some others have said. This is not the same Bill as that which was debated in the Committee of the House of Commons in March 2011. It has changed significantly as a result of amendments tabled by the coalition in response to the NHS Future Forum.

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[Lord Patel]

My Lords, I support the amendment. The noble Lord, Lord Warner, and the noble Baroness, Lady Williams of Crosby, have said all that needs to be said. I had my name to Amendment 217. To relieve the anxiety—if they had any—of the noble Lord, Lord Warner, and the Minister, I will not move that amendment either. I strongly support Amendment 196ZA.

[Baroness Murphy]

My Lords, I also add my support to the very practical solution given in Amendments 196ZA, 214G and 217 that will provide Monitor with a mechanism to deal with future, upcoming failure and intervene early. That is very practical. I hope that it will be attractive to the opposition Benches because, in part, it deals with their anxieties about special administration orders. None of us wanted to see those special administration orders used early. We want them as a very rare fallback position, and to use them maybe once in a decade not once a year. If there were a mechanism like this one, enabling a practical way of targeting and getting local commissioners to address local failure, we could avoid some of the draconian measures that it is necessary to have in the Bill but which none of us wants to see used frequently. I hope that the solution will commend itself to the opposition as addressing their concerns about this regime.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, I want to speak to my amendments, to express my thanks to the Minister for the amendments that he has tabled, and to give a little rationale for why we were concerned but are now satisfied by the Minister’s amendments. On these Benches we were very concerned about the deregulation of foundation trusts in 2016. We believed that putting foundation trusts on the same footing as all other provider licensees was not only dangerous because of the risk of wider application of competition principles, but undesirable since district general hospitals—essentially foundation trusts—are the core of public provision in the health service. They are public assets, funded either conventionally by the Government or by PFI. Sadly, many of us argued at the time that PFI would be an expensive and inflexible method of financing healthcare infrastructure. Nevertheless, district general hospitals are an essential part of the NHS.

Therefore, we proposed amendments that removed Clauses 111 to 114 and retained Monitor’s special powers over foundation trusts unless terminated by the Secretary of State with the authority of an affirmative resolution of both Houses of Parliament. We were not saying “never” but the Secretary of State, after some years of the new structure, clearly needs to satisfy Parliament as to why particular foundation trusts no longer need to be subject to regulation by Monitor in this way. It may be possible to make the case for the deregulation of foundation trusts in the future, but currently the assumption should be that foundation trusts will be treated differently from other providers in regulation—not just in the transition period but in the medium term—so that Monitor will have the right to appoint and dismiss directors and governors in that period.

To that end, we very much welcome the amendments tabled by the Minister to meet our concerns. Our amendments talk of an order passed by the affirmative process and the Government’s by the negative process but I do not want that to stand between us. The Minister has gone a very long way to meet our concerns, for which I am extremely grateful, as are all my colleagues on these Benches.

[Baroness Murphy]

My Lords, I have added my name to four of the amendments in this group and I am wholly content that the Government have addressed them satisfactorily.

[Earl Howe]

My Lords, I am very grateful to my noble friend and the noble Baroness, Lady Murphy, for their comments.

--- Later in debate ---

[Lord Warner]

My Lords, I support my noble friend’s Amendment 201D and I do so for a few simple reasons. I am afraid that I am a bit of a heretic on price competition. It has always seemed to me that, if you want to have competition, simply excluding all aspects of price will not necessarily be in the best interests of any public service, health or otherwise. Therefore, I do not start from the position where I think that a blanket refusal to have any competition on price is a sensible way forward. However, that is not what my noble friend’s amendment does. It is, if I may say so, uncharacteristically modest in its approach.

Although I shall not name the person or the circumstances, I should like to share with the House a recent discussion that I had with an innovative GP running a big group practice in something which looks remarkably like an Ara Darzi polyclinic. This practice is innovating the way that it responds to its patients’ needs and it is doing so by providing services without reference to an acute hospital. However, it is caught in a bind. It is making substantial surpluses, about which it is almost embarrassed, simply because it is required by its commissioners to accept the tariff payments. That is a nonsense in the circumstances in which the NHS finds itself, and I am certainly prepared to talk to the Minister privately about some of those circumstances. I am not fabricating this; it is a real case happening day in and day out. I suspect that, on the basis of what I was told, it is not alone in the country in being in that position.

If one thinks about it, this is bound to happen. If we are really serious about driving services outside hospitals and providing them in a facility where a lot of the things that would be done in hospitals can be done on a more out-patient basis but without reference to any in-patient costs, it is likely that we will get ourselves into difficulty with a tariff which at the moment is very hospital-driven. It is a tariff which is set on a basis of acute hospital costs. For a few years, we are likely to throw money at innovators who do not necessarily want that volume of money simply because we have ruled out the ability to pay below tariff, so that people can provide perfectly adequate, perfectly good services for their patients, protecting their interests, but they will actually be paid more than they need to be paid for providing those good quality services. I think that the Government have to look again at this issue. My noble friend has produced a way forward with many safeguards.

Perhaps I could also say a few words about the Secretary of State setting prices. I do so from my experience as the Minister who was involved in the first sets of price setting, when we introduced them across the country back in 2005 and 2006. In those circumstances, one of the places where we looked for experience was Germany. Germany has a separate organisation which sets the prices and collects and analyses the data. That happened because it was thought that there was a lack of trust in Ministers setting the prices. We got a fair amount of criticism in the beginning from the NHS about the price setting not being transparent. At that point, once we had established the tariff system—the payment-by-result system—we were inclined to move the setting of the price away from the Department of Health so that there would be more confidence in the process of setting prices.

In so far as there is a case for the Secretary of State to be involved, it seems to me that the case is stronger, not in relation to Monitor’s pricing, but in terms of the Secretary of State driving the change in the definition of currencies, which is the function that has been given to the national Commissioning Board. Making changes in the currencies is probably the most significant way in which we can improve the way that the tariff operates. I do not have any particular problem with that being with the national Commissioning Board now, but it is certainly an area where I think the Secretary of State will need to keep a close eye on the national Commissioning Board to see that it addresses the need to move away from episodes of care to patient pathways in the way in which the tariff is set.

I am not so sure that I agree with my noble friend on the Front Bench that we want the Secretary of State to set a price, but I think that the Secretary of State should take a healthy interest in the way in which the currencies are set with the tariff.

[Baroness Murphy]

My Lords, the noble Lord, Lord Warner, has said more or less what I was going to say. It seems to me that if you remove price setting from the regulator of healthcare, you do not have an economic regulator. From my experience of watching prices and types of funding formula go up and down over the past 20 or 30 years, it is crucial and admirable to remove it into a system that can be independent and transparent.

As the noble Lord, Lord Warner, says, after the Future Forum amendments, we have a system now whereby the shape of the tariff and the bundling systems, if you like, which will enable the sort of integration and co-ordinated care to be effective, will be firmly with the national Commissioning Board, and Monitor will respond to those design structures. I think that working together will be very healthy indeed. I do not underestimate the difficulties of getting it right; it is an ongoing developmental programme. Nevertheless, I think it is a good way forward. I do not like the idea of removing the price setting from Monitor.

I will briefly say that I am quite attracted to the amendment of the noble Lord, Lord Davies. One cannot not be if one wants value for money. I remember seeing the noble Lord’s face when he first realised that there was going to be no competition on price, and having a good deal of sympathy for where he was coming from. However, the matter is one of transition, and of when the public will feel confident that the way that the Bill intends to introduce competition on the basis of competitive tender will improve quality.

I worry about the response that the media could make to a significant change of this kind, even though I agree with the noble Lord that some services—as the noble Lord, Lord Warner, said—are overpriced and that there are opportunities for driving down these prices. That may come through the way that the national Commissioning Board and the regulator together set prices. After all, the price of a tariff will be a moving thing; it will be negotiated; it will change over time; and we will be able to address areas where there is obvious overpricing. I am attracted to the amendment of the noble Lord, Lord Davies, and it may be that eventually we will need to introduce something of the sort. However, I would be nervous of doing it at the moment in this form, even though it seems quite sensible.

[Earl Howe]

My Lords, the case for regulating prices for NHS services is strong. Many academics agree that competition should be on quality and not price and that this will increase the standard and quality of healthcare services and protect patients’ and taxpayers’ interests. This requires prices to be fixed. Therefore, it is vital that there is an effective system of price regulation that can deliver these improvements and help sustain a universal and comprehensive NHS, free at the point of use. However, a number of problems with the current system have been identified, including by the previous Administration, which mean that it is not as effective as it could be.

In particular, I will mention two things. First, prices are subject to potential political interference. This means that providers are more risk averse. That inhibits investment and innovation in the sector. As the noble Lord, Lord Warner, said, the methodology for setting prices is not transparent. This makes the system unpredictable—again, inhibiting investment and innovation. Secondly, prices can be inaccurate and may not always reflect best practice models of clinical service delivery. This may result in cherry picking and may hinder providers from expanding and improving quality. Therefore, the case for change is clear and compelling. The Government’s vision is for an independent, fair and transparent system of NHS price regulation that reflects best practice and extends the scope of the tariff when it is in the interests of patients; that ensures that competition is based on quality and choice, and not on price; and that addresses the problems of cherry picking. To deliver this vision, prices will continue to be regulated through a national tariff. This will build on and improve the system of payment by results—which the previous Government said that they would improve but failed to do so.

Perhaps it would be helpful for me to explain in a bit more detail how the Bill will support this vision. In other healthcare systems around the world—for example, in the Netherlands—Governments have delegated price setting to independent organisations. The noble Lord, Lord Warner, cited another example: that of Germany. Such bodies create a transparent and stable environment for pricing.

Health and Social Care Bill

Baroness Murphy Excerpts

Wednesday 29th February 2012 Lords Chamber

Moved by

[Baroness Murphy]

148B: Schedule 4, page 320, line 4, at end insert—
“( ) After subsection (5) insert—
“(5A) The Secretary of State may by directions to the Board specify the minimum amount which the Board must spend in a financial year in making payments under—
(a) this section;(b) subsection (1) of this section;(c) subsection (3) of this section.(5B) The Secretary of State may by directions to the Board specify—
(a) a body or description of bodies to whom payments under subsection (1) or (3), or under either or both of those subsections, must be made by the Board in a financial year;(b) functions or activities, or descriptions of functions or activities, in respect of which such payments must be made by the Board in a financial year;(c) the minimum amount that the Board must spend in a financial year in making such payments—(i) to a body or description of bodies specified in relation to the year under paragraph (a);(ii) in respect of functions or activities, or descriptions of functions or activities, specified in relation to the year under paragraph (b);(iii) to a body or description of bodies specified in relation to the year under paragraph (a) in respect of functions or activities or descriptions of functions or activities so specified under paragraph (b).””

[Baroness Murphy]

My Lords, the noble Baroness, Lady Cumberlege, expressed what we psychiatrists call a transient situational emotion of delight.

[Lord Patel]

That is a serious mental condition.

[Baroness Murphy]

Just as she was delighted at having her amendment accepted, I too am delighted that the Minister has expressed the fact that the Government will accept this amendment. I beg to move.

Amendment 148B agreed.

Health and Social Care Bill

Baroness Murphy Excerpts

Wednesday 29th February 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

It is indeed important to clear that up, and the answer is yes. If the Secretary of State considers that the body with which he proposes to intervene is acting in a way that is not consistent with the interests of the health service, then, for the purpose of these amendments, it is not acting properly and the Secretary of State’s powers of intervention are triggered. That was the point of our amendment in Committee and it is the point of these amendments, which have now been accepted, as the noble Lord points out, by the Government. So the answer to his question is indeed yes.

A similar test applies in the case of the board’s powers to intervene in the conduct of clinical commissioning groups, where a parallel test is applied. It is, then, the board’s view of the interests of the health service that counts, just as, where it is for the Secretary of State to intervene, it is his view that counts.

As my answer to the noble Lord’s intervention makes clear, the amendment puts the Secretary of State right back in the driving seat. He has of course to have regard to autonomy, and a failure has to be sufficiently significant for him to take the view that an intervention is warranted, but, subject to those two points, if he takes that view, he may intervene in the ways prescribed by the Bill, and his ministerial responsibility and his answerability to Parliament are assured.

I am grateful to my noble friend the Minister for his support and to those in his department who have helped with these amendments. I am grateful also to all those who spoke in Committee on the intervention and failure regime and who took part in the quite involved discussions about it that we had privately. By going carefully through the Bill to pick up all the relevant powers of intervention, and by then applying a consistent trigger within the control of the Secretary of State, we have developed a coherent and effective way of ensuring that the failure regime is workable.

Amendments 294 and 295, in my name and the names of my noble friends Lady Tyler and Lady Barker and the noble Baroness, Lady Murphy, are designed to rectify a small but not insignificant failure in the arrangements in the Bill as it stands. Clause 287 deals with the consequences of a failure to co-operate, a duty imposed by the Bill on Monitor, the Care Quality Commission, the board, NICE, the NHS Information Centre and strategic health authorities. If the Secretary of State is of the opinion that there is a breach, or the risk of a breach, of one of the specified duties to co-operate, he may under the Bill as it stands give a notice setting out the opinion that it is in breach to each relevant body, and he must publish the notice. If the breach continues and it is detrimental to the performance of the health service, he may then prohibit each body from exercising specified functions until the other body with which it is not co-operating agrees in writing what the first body may do. The Secretary of State’s prohibition may last for a year in the first instance but can be extended year on year. In default of agreement by the bodies concerned there is a long-stop power to go to arbitration.

Quite apart from the utter complexity of these provisions, there is an Alice in Wonderland feel of unreality about them. With all this activity, there is a serious danger that nothing will get done. The power of the Secretary of State arises only in the event that there is a breach of duty to co-operate—and then it is only a power to stop anything being done. The first problem is that the parties can, honestly and in good faith, co-operate with each other so that there is no breach of the duty, but nevertheless fail to reach agreement so that a conflict persists. The trigger for intervention should not be a mere breach of a duty to co-operate but the existence of an actual or potential conflict. That is the point of Amendment 294.

The second problem is that the power should not be simply a power to stop all action but should instead be a power to act in such a way as to resolve the conflict. In respect of the intervention powers that we have already considered with the other amendments in this group, the power has generally been to direct that the body concerned exercises functions or exercises them in a specified manner. Why is that not an appropriate power here? I suggest that it is and that Amendment 295 would give the Secretary of State a power to give such a direction, thus effectively resolving any conflict.

The power in our amendment is an additional power. If a stop order of the kind proposed in the clause at present is considered likely to be effective in resolving a failure to co-operate or an outright conflict, then let that power be exercised. However, there must be some power accorded to the Secretary of State to step in and resolve a stalemate. That power is not currently in the clause and there is a risk that not only the bodies concerned but the health service, patients and the standing of the Secretary of State may suffer in consequence. I beg to move.

[Baroness Murphy]

My Lords, I will very briefly say that I added my name to two of these amendments because I have, in practice, come across occasions when organisations such as the former Monitor and CQC had difficulties in their relationships, which had to be sorted out with some difficulty. It seems that they could be in the very position that the noble Lord, Lord Marks of Henley-on-Thames, has described so eloquently, and that we need some way of resolving these conflicts to the benefit of patients so that decisions are made quickly. I support these amendments.

[Lord Hunt of Kings Heath]

My Lords, this is an important debate. I want the noble Earl, Lord Howe, to make it absolutely clear in relation to Amendment 71 that the intervention of the Secretary of State will follow if the Secretary of State considers it to be in the interests of the health service when one of these bodies is failing to discharge a function properly. The wording of this amendment means, in effect, that if issues are raised in Parliament about NHS performance on which the Secretary of State, quite naturally and properly, wished to intervene, the Secretary of State can indeed do that. In the end, only the Secretary of State can, in those circumstances, consider what is in the interests of the health service. It is absolutely right and proper for the Secretary of State to be in that position.

The second set of amendments starts with Amendment 294. The noble Baroness, Lady Murphy, is absolutely right to point out the problem of conflict between the CQC and Monitor, which is almost built in intentionally. The second report of the Francis inquiry into the Mid-Staffordshire trust may have some points to make about that. However, we are also adding to the architecture of the national Commissioning Board, and there is inevitably going to be tension between those three bodies. For instance, the national Commissioning Board and Monitor are to be given roles relating to the tariff, and it is clear that there is confusion over the roles in respect of quality issues. Monitor is now involved in making some inquiries of foundation trusts relating to quality, which is no doubt a defensive reaction to the criticism that will flow from the Francis inquiry. The national Commissioning Board is so powerful in the new structure that there are bound to be some issues about its relationship with the quality and economic regulators. We would like to hear from the noble Earl, Lord Howe, that the Secretary of State will not hesitate to intervene and knock heads together if the natural—and probably useful—tension goes beyond that and becomes a problem.

--- Later in debate ---

[Lord Newton of Braintree]

Perhaps the noble Lord could comment on one specific point. In my experience, the biggest problem in respect of these rare diseases is not providing the services—although that can be a problem—but the fact that they are not identified in the first place because no doctor has ever seen one before. Identification is at least as big a problem as treatment but that is not addressed in this amendment.

[Baroness Murphy]

My Lords, I quake to disagree with my noble friends Lord Walton and Lady Finlay about Amendment 96 but I do so as someone who has been the chief executive of a very large health commissioning organisation. It is utterly crucial that rare conditions are considered individually and that the level at which they are commissioned is decided by the national Commissioning Board coming together with the clinical senates and the clinicians involved in the area. They are best placed to decide on the best level of commissioning based on epidemiology and public health expertise. In fact, this amendment would achieve the very opposite of what the noble Baroness, Lady Finlay, wanted: to highlight some of these very important rare conditions which we do not want to forget. It is not helpful, however, to have rare conditions identified in this form in the Bill. We must leave it to the clinicians to make a judgment about how they are commissioned in groups. That will protect patients better, in my view, than any statutory guidance of this kind. I hope she will reconsider and not press this amendment.

[Lord Harris of Haringey]

The noble Baroness is not only disagreeing with the noble Baroness, Lady Finlay, and the noble Lord, Lord Walton, but disagreeing with all the organisations associated with these particular rare diseases. They think that the way forward is in the amendment of the noble Baroness, Lady Finlay.

[Baroness Murphy]

I will respond briefly to that. We all have tremendous sympathy with the fact that very many rare conditions are not currently commissioned to the standard that we would wish. It is also true, by the way, that many ordinary conditions are not commissioned to the standard of service across health and social care which we think would be best for the patients. That is undoubtedly true, but we would not necessarily fix that by having a special focus on the way we say where it is going to be commissioned. What we need are specialists in each of those rare conditions’ groups to be consulted, to ask patients and their relatives about how they should be commissioned, and some professional advice about the epidemiology of it.

Noble Lords should remember that the national Commissioning Board has the ability in this Bill to use, for example, the good offices of their local offices that will regionally be able to ensure that clinical commissioning groups can come together to commission properly for rare conditions. That is already happening around the country, and that is more likely to be a way forward than this particular statutory amendment. I am not saying that those rare conditions do not need some focus and better commissioning: they certainly do.

[Lord Patel]

My Lords, my name is on Amendment 96. I feel we might be running the risk of missing the important point in a rush to say whether this amendment should be tested. I would very much like the Minister to accept that there is an issue to be addressed here: it is on how the commissioning would be carried out for patients with less common conditions and rare diseases. The Bill is not clear, hence this debate and the amendments put forward by my noble friend Lady Finlay, previously in relation to commissioning boards and now in relation to commissioning groups.

This amendment alludes to the duties of the commissioning group,

“to ensure the provision of services for patients with less common conditions”.

Small commissioning groups may not be able to ensure the provision and may well have to co-operate with other commissioning groups. The direction may well actually have to come from the national Commissioning Board.

The noble Lord, Lord Walton of Detchant, referred to the funding issue. There has to be some pool funding from the national funding pool because the commissioning group may not be able to afford the large amount of money required for treating those people. I am familiar with that, because I was involved in setting up the process for handling it in Scotland. I ask the Minister to accept that there is a lacuna here of how commissioning for rare diseases would be done. He needs to reassure us that it will be robustly done, with clear leadership and responsibility. I hope that he will be able to do that.

--- Later in debate ---

[Baroness Northover]

My Lords—

[Baroness Murphy]

I strongly support the stance that the noble Lord, Lord Beecham, has taken on the amendments of the noble Lord, Lord Patel, but I was expecting him to speak to Amendment 163A. I am very disappointed that he has not because it is such a brilliant idea and I was hoping that the Government might listen to it.

[Lord Beecham]

I am grateful to the noble Baroness for reminding me that I wanted to say a word about that. I was anxious that we should make progress but perhaps a little overanxious. I shall not detain your Lordships' House long on this matter, but the financial side of the arrangements for public health is extremely problematic. At the moment, some £5.2 billion is allocated to public health expenditure out of some £92 billion of NHS expenditure as a whole, of which about £2 billion is directed towards local government. The allocation is based on the existing pattern of primary care trust expenditure, which bears little or no relation to any discernible logic or needs—we heard that at a meeting with the Minister just today.

In addition, there is the new concept of the health premium, which is supposed to be subject to consultation, which has not gone very far and which carries with it a distinct danger that resources will be allocated to areas that can demonstrate an improvement in rather easier circumstances than areas with, for example, a higher instance of poverty, unemployment or other factors that militate against an easy improvement. For example, Easington in the north-east would be a very different proposition from Eastbourne in the south.

The purpose of the amendment, which is a probing amendment, is to try to ensure that the system of developing health premiums should be based on principles that are outlined in the amendment and should be subject to adequate discussion before a new system is put in place.

Health and Social Care Bill

Baroness Murphy Excerpts

Monday 27th February 2012 Lords Chamber

[Lord Warner]

My Lords, so near, yet so far. Amendment 42 is very simple. It requires the Secretary of State to include in his mandate to the national Commissioning Board the requirement to set out two things. First,

“the priority and scope for … service redesign and reconfiguration”,

in the NHS,

“in the light of the best clinical advice available”,

and secondly,

“the priority and scope for transferring resources to adult social services to improve service integration and achieve best value for health services”.

These are two big issues for the NHS and how it meets the Nicholson challenge of £20 billion of savings by 2015 and how it improves service integration. The proposals in this amendment are very much in line with the recommendations of the Health Select Committee in its two recent reports on public expenditure and social care, which were mentioned on the last group of amendments. As the Public Expenditure report said on page 30:

“The Nicholson Challenge can only be achieved through a wide process of service redesign on both a small and large scale”.

It went on to say,

“we are concerned that savings are being made through ‘salami-slicing’ existing processes instead of rethinking and redesigning the way services are delivered”.

Since I put this amendment down, I am pleased to say that the Minister has responded in a most constructive way. On the first part of the amendment, regarding service reconfiguration, he has entered into most constructive discussions on this issue and the related Amendment 217 in my name and the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Williams, regarding a pre-failure regime. The Minister has undertaken to have an alternative to that amendment prepared before Third Reading. I would be glad to hear more today on how that work is progressing.

On the second prong of the amendment, the Minister has had prepared an alternative approach for transferring money from the NHS to adult social care by amending Schedule 4. This gives the Secretary of State power to direct the board to make payments for community services, which, I understand, include adult social care. This is Amendment 148B, in the name of the noble Baroness, Lady Murphy. It would have been in my name as well if I had not been dallying in India when the noble Earl wanted to discuss it with me. I am very supportive of that amendment on the assumption that, as drafted, it is wide enough to cover adult social care, because that term is not mentioned specifically, and on the assumption that there are no vires issues with the Treasury on the matter of using NHS money for social care. Perhaps the Minister could provide some assurances on this when he responds.

These issues are important for the NHS and for patients in the particular financial and demographic challenges that services face. I am pleased with the Government’s constructive response. In the mean time, in order that we may debate these issues, I beg to move Amendment 42.

[Baroness Murphy]

My Lords, I will interject here with regard to my amendment to Schedule 4, tabled as Amendment 148B in the supplementary hymn sheet. First of all, I thank the Minister very much for the discussions that I had with him and the Bill team last week. As a result, I tabled this amendment. Unfortunately, I omitted to let the Whips’ Office know that it was to be discussed with Amendment 42, otherwise they could have been tabled together.

As I understand it, the important thing about this amendment is that it addresses the issues that we have just spent another hour discussing of how in practice you get money flowing from health to social care, and how you promote integration of services through some practical mechanisms on the ground. Over the last 60 years, there has been too much money held in the NHS—I say this as a health service person—when it should have been better transferred in to social care services to support people with long-term conditions. It has been extremely difficult to get mechanisms that work well. The importance of this is that we do not have to have it repeated in the mandate, which was in the amendment tabled by the noble Lord, Lord Warner. I was very supportive of that, but it is much more flexible to have it as the Secretary of State’s direction. It also covers wider organisations than adult social care, although we expect that to be the main route to which the Secretary of State would wish to ask for moneys to be transferred. My amendment is slightly superior in that respect to the amendment proposed by the noble Lord, Lord Warner. However, it does not address the most important issue that the noble Lord brought up in the first part of our amendment—that of the reconfiguration of services and how you can prepare and work towards dealing with issues around failing organisations and services. I know that, as the noble Lord said, the Minister has been looking at that issue and may be able to come back to us with some mechanisms for that—but on this one I wish to speak in support of my Amendment 148B, which addresses the Secretary of State’s direction in Schedule 4.

[Lord Patel]

My Lords, I have added my name under that of the noble Lord, Lord Warner, and I would also have supported Amendment 148B under the name of the noble Baroness, Lady Murphy, if I had not been in India at the same time—not, I hasten to add, with the noble Lord, Lord Warner.

I merely wish to speak about reconfiguring hospital services. It is quite clear that in the long term demographic changes and the shifting burden of disease require a fundamental shift away from acute care in hospitals to supporting people with long-term conditions in the community. The recent financial pressures and shortages among some parts of the workforce and the need to improve quality and safety mean that changes to hospital services in some parts of the country are already a necessity. The Government have argued that service change should be locally led. In Committee, the Minister stated that,

“we should be cautious about any process that would significantly weaken both local commissioner autonomy and public engagement”.—[Official Report, 13/12/11; col. 1271.]

I agree that clinicians and local communities must be fully engaged in the process of service change. However, local involvement and strategic leadership are not mutually exclusive. For example, the reorganisation of the successful stroke services in London proceeded with strong support from clinicians and the public. It is not clear how strategic reconfigurations of specialist services will be led. Again in Committee, the Minister stressed that the NHS Commissioning Board,

“will be able to support clinical commissioning groups by providing support and advising on the possible effects of larger changes”.—[Official Report, 22/11/11; col. 1046.]

A recently released paper outlining the design of the NHS Commissioning Board confirmed that involvement in large-scale reconfigurations will be one of the functions of the four regional sectors that will be established as part of the board. But I am not too sure whether the NHS Commissioning Board has the necessary capacity or experience to do that. The lack of clear responsibility for driving forward strategic reconfigurations of services is the most significant omission from the Bill. We need a clearer explanation about how these reconfigurations will be taken forward under the new arrangements, otherwise the risk is that the NHS will not be equipped to meet one of the bigger challenges, as is necessary to reconfigure some of the acute services.

Health and Social Care Bill

Baroness Murphy Excerpts

Wednesday 21st December 2011 Lords Chamber

Moved by

[Baroness Murphy]

349: Before Clause 278, insert the following new Clause—
“Mental Health Act: members of ParliamentRepeal of section 141 of the Mental Health Act 1983
Section 141 of the Mental Health Act 1983 (members of Parliament suffering from mental illness) is repealed.”

[Baroness Murphy]

My Lords, Section 141 of the Mental Health Act 1983 provides that where a Member of Parliament is detained under the Act, the Speaker must arrange for two registered medical practitioners—psychiatrists appointed by the president of the Royal College of Psychiatrists—to examine the Member of Parliament and report. Six months later, the Speaker must arrange for a second assessment by psychiatrists, and if in their opinion the Member is still suffering from mental disorder, the Speaker lays a report before the House of Commons and thereupon the seat of that Member shall become vacant. There is no appeal mechanism. This provision also applies to Members of the Scottish Parliament and the Welsh Assembly, but not to the House of Lords. There have been times in this Committee when I have wondered about that.

This clause has never been invoked. In fact, the last use of the preceding section was for the removal of Reverend Charles Leach MP in 1916. It was very interesting to read about his case. He was clearly suffering from what we would call multi-infarct dementia and was not actually refusing to give up his seat, although it is clear to me that he would not now be detained in the way he was in those days. The Victorian legislation was introduced by the Lunacy (Vacating of Seats) Act 1886, a Private Member’s Bill to deal with one particular issue, although it was too late for that and therefore post hoc. The legislation was transferred, word for word and process by process, substituting lunacy commissioners with two psychiatrists in 1959 and again in the 1983 Act, and here we have it still.

We know from a survey conducted by an all-party parliamentary group in 2008 that one in five Members of Parliament admits privately to having had personal experience of mental ill health. That is not significantly different from the general population. The majority of those would be mild forms of mental distress, but some of us are aware of serious breakdowns where Members of Parliament have recovered fully and returned to work with few people being much the wiser. Surprisingly, there is a very inclusive, supportive environment in the Commons for people who have suffered periods of mental ill-health.

There is widespread agreement that this stigmatising and discriminatory legislation is not fit for purpose. None of us would tolerate such discrimination against people with physical ill-health who were away from the Chamber of the Commons for six months or more—for example, with a cancer or following a stroke. I am sure that the Minister will remember his own words along these lines in our debates on the Mental Health Bill in 2007, when the noble Baroness, Lady Wilkins, tabled an amendment similar to this one. Unfortunately, we did not have an opportunity in those 2007 debates to pursue the matter at great length because the previous Government reached the end of their term.

The repeal of this section was recommended by the Speaker’s Conference in January 2010—I think that 68 per cent of those who voted were in favour. In February this year, Deputy Prime Minister Nick Clegg announced that it would be repealed when a suitable vehicle could be found. I pay tribute to him and to the Cabinet Office Minister, Mark Harper, for their continuing commitment to this cause. This Bill is a suitable vehicle. I thank the clerks in the Public Bill Office for finding the right place to include it.

We should get this measure off the statute book and demonstrate the House's commitment to the continuing campaign to reduce the stigma to which the voluntary organisations and the Royal College of Psychiatrists have given so much time and energy to make a success. It is time for change and I hope that the Government will respond positively.

The noble Lord, Lord Stevenson of Coddenham, has introduced in this Chamber an important Bill to repeal four pieces of legislation that discriminate against people with mental health problems, of which this was one. The others refer to jury service, governors of schools and directors of businesses. I am totally supportive of that Bill and hope that it is successful. I understand, however, that it is unlikely to be able to proceed through the Commons this Session and will therefore have to be reintroduced in the new Session. If this amendment were accepted today, it would require a simple revision to that Bill, but the major practical provisions are of much more widespread significance and would, I believe, continue to attract government support.

I had considered withdrawing the amendment and waiting for next Session to get that whole Bill through, but my anxiety is, as Harold Macmillan said, “Events, dear boy, events”. We have an opportunity now to get this right and we do not know for sure whether the opportunity will appear again soon. I would very much like to see the repeal of this section enacted this Session. What a Christmas present for the mental health world that would be. I beg to move.

[Lord Deben]

My Lords, the parallel is that things amazingly go on in this country until they are stopped. The Girls’ Friendly Society long ago lost any reason for existing because the girls with whom it was friendly no longer existed in the situations and houses in which they were, yet it took a good 40 years to decide that it was time for it to go. I remember sitting next to a person who explained to me that the trains from Ipswich did not go to Manchester direct but went down to London because there was a row in about 1850 between the Great Eastern Railway and the Grand Central Railway. No one knew that that was the reason, so the trains still went along that route. It was only on privatisation that people started to look again and discovered why that was.

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[Baroness Northover]

My Lords, I remind the Committee that the Government are publicly committed to the repeal of Section 141 of the Mental Health Act 1983. On 3 February 2011, the Government announced that it would be repealed when a suitable legislative vehicle became available. Section 141 sets out a process by which an MP’s seat is vacated if they are authorised to be detained under mental health legislation for a period of six months or more. There is, however, no parallel provision for the automatic disqualification of those who might be hospitalised or on sick leave with physical ailments for six months or more, as the noble Baroness has indicated, even if those people might be equally incapable of fulfilling their duties. The noble Baroness is absolutely right in that regard.

Even those who are imprisoned are not automatically disqualified unless their sentence is more than 12 months. This is an unwarranted discrimination against those with mental illness. With the repeal of Section 141, being detained in hospital for mental health reasons would no longer lead to the automatic loss of a MP’s seat.

However, the Government believe that the most suitable vehicle for this reform would be a stand-alone Bill, allowing both Houses the chance to debate this important issue. There are some outstanding questions on the extent and effect of repealing this provision, which we are still discussing with the devolved legislatures. The Government do not feel it is appropriate to accept this amendment while these questions remain unanswered.

The Private Member’s Bill of the noble Lord, Lord Stevenson, the Mental Health (Discrimination) Bill, had its Second Reading on 25 November 2011. The Bill aims to repeal various pieces of legislation that discriminate against the participation of those with mental health conditions in public life, including Section 141. At its Second Reading, the Government indicated their support for this Bill and we continue to support the Bill as an appropriate means for removing several pieces of discriminatory legislation.

We have already announced our intention to repeal, setting out the Government’s position that this sort of discrimination is not acceptable. While I applaud the noble Baroness’s intention, this important reform should be part of a stand-alone Bill, not inserted here at Committee stage. I am sure that noble Lords will agree that the issue should be given the parliamentary attention it deserves, and I hope that the noble Baroness will be prepared to withdraw her amendment.

[Baroness Murphy]

My Lords, I am profoundly disappointed but beg leave to withdraw the amendment.

Amendment 349 withdrawn.

Health and Social Care Bill

Baroness Murphy Excerpts

Monday 19th December 2011 Lords Chamber

[Lord Beecham]

In the first place, I am grateful to the noble Lord, Lord Mawhinney, for recognising when I am on my feet, given that there is not much of me to be seen. In relation to his question, I am not suggesting that they should be voting members. That is the point. There is a difference. The voting members—I do not mean executive members—should be confined to elected councillors and those representing the other partners, the clinical commissioning groups and the trusts. It is a partnership arrangement. You have this sort of arrangement in care trusts and the like. It is an acceptable one, but at the very least there should be equality of arms between the elected members and those from other organisations.

[Baroness Murphy]

Can we be quite clear that the noble Lord, Lord Beecham, is asking for a health and well-being joint board on which the director of social services and the director of public health—two crucial people contributing to the board—have no vote?

--- Later in debate ---

[Baroness Williams of Crosby]

My Lords, we on these Benches have strongly supported the many references to integration that have been made in Committee, and it is obviously central to the whole of the attempt to deal with the major problems that confront us all over the next few years. However, I completely agree with the noble Lord, Lord Warner, that it is not very clear what this is, other than a nice word. The more flesh that we can put on it, the better all round, and the clearer the position of local authorities will be.

Many local authorities have of course already delivered, on behalf of the primary care trusts, the kind of approach that the noble Lord, Lord Warner, has been advocating, but the situation has to go a great deal further. We are particularly attracted by his Amendment 336 because it is very clear and precise in what it suggests about the relationship between CCGs, particularly those who wish to devolve some of their responsibilities, or in some cases are unable to deliver on those responsibilities.

I would like to say, from these Benches, on behalf of my noble friend Lady Jolly and myself, is that it is crucial that at an early stage health and well-being boards are able to mount mechanisms for early decision-making. If a CCG is unable to meet part of its responsibilities—and that may happen at relatively short notice—it is critical that the health and well-being boards have structures within their own management which would enable them to deal with the issues rapidly. It would be no good at all if there is a long interregnum when services to patients are put at risk.

I would advocate, in addition to what the noble Lord, Lord Warner, has said, that the new health and well-being boards should make an early approach to seeing how they would deal with what might be, if not an emergency, at least the beginnings of an emergency in the particular aspect of what the CCGs are proposing to deliver.

[Baroness Murphy]

My Lords, I have added my name to these amendments. Like the noble Lord, Lord Warner, I have come back time and again to this issue of what we really mean by integration, and what it will mean for patients, clients, and people living in the community. It must be a seamless service. They do not mind, of course, where the services come from, but it has to be utterly without gaps. It has to operate 365 days a year, year after year after year, if it is to work.

It seems to me that these health and well-being boards have two huge areas that they will have to work in: the public health and well-being functions around housing, the health of children, and the education of children, for example; and the delivery of services. These two arms are quite difficult to meld together in any joint planning arrangements. The joint strategic needs assessment will try to produce these two focused blocs, but it is actually quite difficult. I am sure I am not the only alumnus, or graduate, or perhaps I should say survivor, of joint planning arrangements. I am even a survivor of a health action zone. I know how difficult it is, and how many hours of work go into properly well-functioning joint planning arrangements, which can commit funds. It takes hours of time and extraordinary leadership from health and local authorities to make them work properly.

I am not sure that I think these health and well-being boards are an inspiration, as the noble Baroness, Lady Cumberlege, does. They are a bit of an improvement on what went before, but to work properly they are going to have to work very hard locally to get it right, and get the structures right. I think it would help enormously if they were working towards something real. For me the real thing would be the integration of the working of health and social care, both at the patient level and at the public health and well-being end of the population. Our Amendment 336 provides one option for a way of working together—an option that local organisations might want to take up. It is an idea, and I am sure that we can think of many others that would also fit the bill. I want these boards to be real and their functions to be made practically useful on the ground, so I support these amendments.

[Lord Patel]

My Lords, I have my name on these amendments. Of course, we have had an opportunity to discuss integrated care at length at other times. However, I agree that integrated care and the delivery of it is one of the key challenges in the Bill. I agree with what the noble Lord, Lord Warner, said. To a patient, integrated care is the care they need: primary care, secondary care, social care and care in the community.

What leverages will there be for the commissioners to promote the integration of health and social care? They will have the budget, but what other incentives will they have? There is some evidence that contracting of provision of care to a population, particularly the elderly, the frail and those with complex diseases, will require much more care but also use more resources and services. It is not only value for money, but improved patient experience and patient outcomes. How will the commissioners be encouraged to do this? Does the Minister think that three separate outcomes frameworks in health, social care and prevention will help or hinder integration of care? There is also an issue about who will lead this change, if we think that this is the key challenge in the Bill. I agree that putting a clear definition of what we mean by integration, or what a patient means by integration, into the Bill will give a clear message to all those who commission and deliver the care, to know exactly what they have to do.

Health and Social Care Bill

Baroness Murphy Excerpts

Thursday 15th December 2011 Lords Chamber

[Lord Warner]

My Lords, I will just raise a couple of points about Amendments 300 and 301, tabled by the noble Baroness, Lady Williams, in relation to the Secretary of State's role in mergers. The other day, I tried to express a little about my concerns, which I continue to have, about the speed at which the Government are expecting some of these trusts to become foundation trusts. One thing that I am beginning to see happening in the NHS—this will lead to some questions to the Minister for clarification—is the rush to merge. Mergers can take a number of forms, and a good example is in north-east London, where there is a proposal to merge Barts and The London with Whipps Cross and Newham. These three hospitals have failed to become foundation trusts but it seems to be thought that by some osmotic process, which I am not altogether clear about, such a merger will improve their prospects of doing so.

Discussions are also going on in other parts of the country about merging non-foundation trusts with successful foundation trusts. The evidence here is that there are some very high-risk ideas floating around regarding trusts which so far have not been good enough to become foundation trusts, and causing risks to stable foundation trusts by merging them with trusts which are in some degree of difficulty. However, I can see that the NHS might feel under pressure to try to get people to secure foundation trust status by the deadline that the Government seem to have in mind.

As I said the other day, trusts have had eight years to get themselves ready to become foundation trusts and they have failed to achieve it so far. You have to be one of life’s great optimists to believe that somehow, because the Secretary of State has set a deadline for 2016, it is going to happen. There is a serious question about whether the necessary checks and balances are in the system to stop what I would call silly and fruitless behaviour. Is the Minister confident that the Co-operation and Competition Panel will be a sufficient bulwark to stop what I am calling silly behaviour in relation to mergers, or do we really need the kind of strengthening that I think is implicit, if not explicit, in Amendments 300 and 301? This is a serious issue. We are beginning to see behaviour which may not be in the public interest as people try to get foundation trust status without the necessary skills and competences, or indeed the necessary financial situation in their locality, to achieve this.

[Baroness Murphy]

My Lords, I echo many of the words of the noble Lord, Lord Warner, although I wish to put a slightly different slant on the issue. It is crucial that we press on with the project to get all trusts to foundation status. There is no doubt in my mind that having this two-tier system, which we have allowed to continue for too long, has led to difficulties in foundation trust hospitals becoming more self-reliant, more seriously entrepreneurial in the way that they think about their services, and more responsive to the local agenda, and so on. They have not had to bother because they have always had Big Brother watching. The de-authorisation process, which threatens to drag them back to the Department of Health, has acted as a sort of brake on their thinking. That has been quite difficult. I seriously think that we should move trusts to foundation status. The noble Baroness, Lady Thornton, is looking puzzled, but I think that it has been a really serious problem.

[Baroness Thornton]

I was looking puzzled only because I wondered what evidence there was for some kind of break in the system.

[Baroness Murphy]

Some kind of break in the system? I shall continue with my theme: it is crucial that we move all trusts to foundation status. I quite agree that the dates that have been set before have come and gone, but quite often they have come and gone because the strategic health authorities have not provided the necessary support to move trusts to foundation status. In fact, some strategic health authorities were positive blocks in the system to the development of expertise within the foundation trust. I accept that there are some at the moment which, as the noble Lord, Lord Mawhinney, has mentioned, face the PFI problem. Te recharge is too great for them to subsume and the debt is too great. Others have long-standing debts that cannot be written off. Some are not viable because of the populations they serve. Unless we have a definite aim and objective to get them there, they will never get there. We can get there if there is a concentration on the problem. Each hospital is different. I share the concerns of the noble Lord, Lord Warner, about some of the projects to merge one failing hospital with another, or one failing hospital with a less than successful one.

The evidence from NHS trusts’ failing hospitals merging has been that they continue to fail in a bigger way. The Barking, Havering and Redbridge three-trust hospital merger was a striking example of one that did not work and never could. I have that anxiety. If we are going to move away from the process that we have put into this Bill and retain de-authorisation and NHS trusts, we accept that we are continuing with a two-tier system for ever. That would be seriously detrimental to trying to get everyone moved over into a properly regulated system. It is going to be difficult. Certainly, the role of governors needs strengthening. Governors in some places are wonderful. In other trusts, they are mixed-ability classes, let us say. They will need considerable support and development to get there. Nevertheless, it would be catastrophic to have a two-tier system continuing to run after the introduction of the Bill. We need a fixed end point to work to.

[Lord Warner]

I totally support the idea of getting everybody into foundation trusts. I am questioning whether the processes that we have in place will actually deliver that in the time scales that are being set by the Government. I suspect that in practice you can make the kind of progress required to achieve the Government’s objective only if you reconfigure services rather than just pursuing merger mania.

[Baroness Murphy]

I wholeheartedly agree with the noble Lord’s final point.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this has been an extremely valuable short debate on Part 4. I hope it will be helpful if I explain briefly why I feel that the provisions of this part of the Bill are so important.

They are very much part of our overall vision of modernisation and improvement to meet the needs of changing circumstances: changes in demands, in resources and in innovation. They are about ensuring that foundation trusts are accountable, transparent and autonomous in the way they operate so that they can innovate and provide high-quality and responsive patient care.

Part 4 of the Bill will reform the legal basis of foundation trusts to bring them in line with the new system of sector regulation. Protecting patients’ interests will be at the heart of the system and we will strengthen the governance of foundation trusts to ensure that this happens. We are also taking steps to ensure that all trusts become foundation trusts as soon as they are able. This will mean that all patients can benefit from services provided by organisations that put them first and provide high-quality, accessible care. It will also mean that all NHS providers would be able to take their own decisions on organisational change, such as mergers, acquisitions and separations, based on what is best for patients.

To ensure the best use of taxpayers’ money and the continued delivery of high- quality services, we will make the financing system more transparent and rules-based. Foundation trusts will be required by Monitor to report separately within their accounts their NHS and private-funded income and expenditure, increasing transparency about whether private patient activities are making a profit or a loss. We intend that foundation trusts should decide matters such as which partners they will invite to appoint their governors and how best to equip their governors with the skills they need for their role. Foundation trusts should develop their own good practice to ensure that their governors have the training they need and build up close working relationships with the board of directors so that governors have the information they need to hold the directors to account on behalf of the members whom they represent: the public, staff and patients.

I understand the intention of my noble friend Lady Williams in proposing that the NHS Commissioning Board should appoint a governor to each foundation trust, but I agree with my noble friend Lord Mawhinney because I believe that the right kind of close partnership working between foundation trusts and their commissioners can be achieved in a whole lot of ways and that trusts should be able to develop this relationship in the way that best works for them. To mandate an arrangement such as the one that my noble friend proposes would not be the right way to do it. I also quite agree that it is important for the provision of integrated services that foundation trusts should work closely with their partners in local authorities and other healthcare sectors. However, again, foundation trusts should be free to set up the most effective ways of doing this, including executive and professional collaboration. Similarly, we would not want to prescribe governor attendance at all parts of the directors’ board meetings. It is for foundation trusts themselves to decide how to deal most effectively with discussions and decisions on sensitive and confidential matters so that the trust’s interests are best served.

I also feel strongly that it would not be appropriate for the Secretary of State to become involved in the approval of mergers and separations of foundation trusts. Foundation trusts are themselves best placed to decide what will work well for their patients and staff, and to involve the Secretary of State would be to add an extra layer of bureaucracy for no good purpose, in our view.

The amendments tabled by the noble Baroness, Lady Thornton, seek to preserve the current position where foundation trusts can be subject to terms of authorisation applied by Monitor and, if they fail to meet their principal purpose, they can be de-authorised and returned to central control. The obvious point to make about this idea is that it would be incompatible with our proposal to repeal NHS trust legislation once the foundation trust programme has been delivered. The more deep-seated objection is that these amendments would depend on an infrastructure which we propose to replace with a comprehensive new regulatory system. There would be no obvious body to manage the performance of reverted NHS trusts, including measures for dealing with providers at risk of becoming unsustainable. We have looked at this from a different angle. Our proposed system would shift the emphasis from maintaining the existence of an unsustainable provider, often at great cost to the taxpayer, to ensuring continuity of essential services to local populations. That is surely what matters. It is surely right for the system to be geared towards continuity of service provision.

A further amendment by the noble Baroness, Lady Finlay, proposes that abolition of NHS trust legislation and repeal of Monitor’s authorisation powers should not happen before 2020. We are taking a stronger, more testing and more transparent approach than before to managing the foundation trust pipeline, and we expect the vast majority of NHS trusts to become foundation trusts by 2014. This would give patients a clinically and financially sustainable NHS provider system, by definition, because otherwise the trust would not have been authorised as a foundation trust. I am afraid that the noble Baroness’s amendment would not support the change in momentum and mindset that is now evident within the NHS. I very much agreed with the cogent points raised on that topic by the noble Baroness, Lady Murphy.

The noble Baroness, Lady Finlay, quoted the HSJ saying that some foundation trusts plan to make major reductions in staffing. I have not read my HSJ this week yet but I think that foundation trusts themselves are best placed to make decisions about how to provide services efficiently and effectively, which includes ensuring that they have the right levels of staff. What matters are those services. It is always regrettable if front-line staff posts are reduced, but if the service can be maintained in as good a way or better, that is surely what should matter in the end.

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I refer briefly to Amendment 299 in the name of my noble friend Lord Beecham, which is a probing amendment. His concern was that the regulator must be satisfied that any application for FT status is able to provide goods and services for the purposes of the National—National—Health Service in England. In parts of the Bill, that is not absolutely clear.

[Baroness Murphy]

My Lords, I welcome the comments of the noble Baroness, Lady Thornton, that her opposition to the Clause standing part of the Bill is for probing purposes, as are some of the other amendments. We have all welcomed the review of the private patient income cap introduced by the previous Government following the judicial review by Unison of Monitor’s interpretation. The Government’s amendments go a long way to addressing our concerns about the extension of private income diverting NHS hospitals into private activity. I understand and have great sympathy with the amendments tabled by the noble Baroness, Lady Williams, and the noble Lord, Lord Clement-Jones, in that respect.

I ought to say that I have never, as an NHS consultant, practised privately. This is both an ideological and a practical matter. As I mentioned before in Committee, my own professional activity simply could not be done effectively without working in conjunction with social services, housing and the voluntary sector. It would not, therefore, have sat very easily with my activities. I have, of course, seen the very important role that private income plays in swelling the NHS coffers in many foundation trusts. However, it is worth reminding ourselves how dreadfully unfair that private patient cap has been. Hospitals like the Royal Marsden have a cap of 30 per cent, but they manage to do that work without any diversion of activity from their brilliant NHS service. Many acute FTs and all mental health foundation trusts have a cap of zero. For NHS FTs as a whole, the average PPI cap is 1.5 per cent of their income. The overall figure is therefore tiny. Foundation trusts’ private income was less than 2 per cent of their total income across the board. However, this income can be very welcome to individual hospitals. Anything that makes the system fairer for hospitals is extremely important. It is of course worth saying that ordinary NHS trusts do not have a cap and can make as much income as they like.

We need a mechanism to enhance FTs’ commitment to remaining focused on NHS patients. I believe that all existing foundation trusts are focused on that, but if we approve the government amendments—Amendment 299AZA and one other—they will go some way to ensuring that at least the majority of activity remains as it is. In reality, private practice is not likely to extend very much. The provisions will prevent the kind of unfairness and terrible bureaucracies that have been associated with joint ventures and the complexities of the current rules which even the judge in the judicial review of the private patient income cap admitted were real practical difficulties for foundation trusts that needed to be addressed.

The government amendments are strong, but I would not entirely not support some of the stronger amendments tabled by the noble Baroness, Lady Williams.