Health and Social Care Bill

Debate between Lord Clement-Jones and Lord Newton of Braintree

Tuesday 13th March 2012 Lords Chamber

[Lord Clement-Jones]

My Lords, I really enjoyed the noble Baroness’s intervention. Today’s news about the change in attitude of the Royal College of General Practitioners shows that we have reached a genuine watershed. It may not have changed its mind absolutely, although it appears that membership pressure is being applied to the leadership of the royal college, but this is a real watershed whereby the acceptance of the fact that the Bill is going through is changing hearts and minds—not just minds but hearts as well. I am far more optimistic than the noble Lord, Lord Owen, because I believe that the other royal colleges will follow suit. They are actually looking at the substance of the Bill, not at some of the alarmist propaganda being put out. They are considering how mergers between foundation trusts will be regulated, how Monitor will do its duty and the additional powers that Monitor will have following consideration by Future Forum and Members of this House. They are also considering the impact of EU competition law following the Pepper v Hart statement that was made the other day. They are looking at the substance, which is exactly the way to look at the Bill. I believe that Part 3 is one of the most valuable parts of the Bill. I did not believe that it was acceptable to start with. That is precisely why I put down amendments in Committee and on Report. I am very pleased to say that it is much improved. The Bill should not be held up because of Part 3. In fact, it should be celebrated because of Part 3.

[Lord Newton of Braintree]

My Lords, those who have been here will have realised by now that this is one of my “good boy” days. At the risk of seeming sycophantic, even beyond being a good boy, I support every word that my noble friend Lord Clement-Jones has just said. I will refer back in a moment to something the noble Baroness, Lady Thornton, said about former Ministers. This chunk of the Bill—Part 3—is largely about Monitor and includes a lot that the House has been pressing for in terms of increasing Monitor’s power to intervene and do sensible things in a sensible way. It also includes all the stuff about pricing and tariffs, which in my view need to be addressed now, not in four years’ time.

My main point concerns what the noble Baroness, Lady Thornton, said about former Ministers knowing about the problems caused by upheaval. We do. I became very much aware that the publication of a White Paper was the start of a process, not the end. Too often Ministers think that all they have to do is publish an edict and everybody on the ground will carry it out. These things take time, trouble and involve culture change. However—this is the point here—what is equally or even more damaging is year upon year of uncertainty, which is what this amendment seeks to bring about.

I have referred on a number of occasions to the merger/takeover proceedings in which I was involved last year with the health trust that I then chaired. That occurred partly against the background of Monitor and the competition matters that are being changed in this Bill for the better. The worst thing was the uncertainty for everybody involved—the way it was dragging on and nobody knew what the future was. Good people started to leave or think about whether they had a future with the organisation. It would be insane to go down this path and I strongly recommend that the House should not do so.

Health and Social Care Bill

Debate between Lord Clement-Jones and Lord Newton of Braintree

Tuesday 6th March 2012 Lords Chamber

[Lord Clement-Jones]

My Lords, it would seem convenient, although it alters the groupings, to talk to my Amendments 186, 187 and 188 at this point.

In Committee—and I am very grateful to the noble Lords, Lord Turnberg and Lord Patel, for supporting these amendments—we flagged our general concern about the risks of EU competition law being applied across the board in the health service. One risk that we considered to be high was the involvement to such a great extent in the Bill of the Competition Commission and, in particular, its role in Clauses 78, 79 and 80, as well as its role in reviewing competition within the health service and the development of competition by Monitor.

On these Benches, we, along with Future Forum and following legal advice, believe that it is necessary and consistent to delete Clause 78, which provides for a review of the exercise of Monitor’s functions and, as I said, the development of competition in the NHS. Government Amendment 185 would of course change this to a review of the effectiveness of competition in the NHS in promoting the interests of those who use the NHS. Nevertheless, we have considerable concerns about the involvement of the Competition Commission. The commission occasionally has to apply non-commission principles in its investigations. It may need to consider, for example, whether media plurality would be undermined by a media merger. However, the commission members and staff are steeped in competition law principles and it is difficult to get them to attribute equal weight to non-competition objectives. The experience of those involved with the commission is that it tends to focus far more on the competition analysis and is often reluctant to accept that it might be required to endorse an outcome that may be suboptimal from a competition perspective in order better to promote other objectives.

Judgments about whether competition or co-operation best promote certain objectives, including health sector objectives, are not clear-cut. Which side of the line people come down on will depend on their standpoints and assumptions about the extent to which competition is helpful in general, as well as on their experience. Regular commission members tend to have a strong bias in favour of the benefits of competition, and that strengthens our view on the inappropriateness of the reviews by the Competition Commission. It is not necessary for there to be a review of this kind either of the NHS or of the operation of Monitor. Indeed, I would argue that its very presence in reviewing both the NHS and Monitor increases the risk of competition law applying more widely.

Following the Future Forum’s report, the purpose of Monitor is no longer primarily to promote competition. Clearly there is now explicit recognition of the overriding importance of the benefits to patients. This is the key determinant of which instrument—competition or integration—is appropriate in the operation of the health service.

I have not put down amendments to the more technical areas where there is Competition Commission involvement. It seems that in many cases that may well be relevant in terms of the tariff and so on. However, we on these Benches believe that Clauses 78, 79 and 80 are a throwback to pre-Future Forum days, and we therefore propose leaving them all out.

[Lord Newton of Braintree]

My Lords, perhaps I may intervene briefly, if only to avoid withdrawal symptoms from not having spoken on any day this week. I want to support my noble friend Lord Clement-Jones on the general proposition without wishing in any way to threaten mayhem if we do not get a satisfactory reply. The House is well aware, as I have referred to it on a number of occasions, that last year I went through what turned out to be the trauma of trying to engage in what was technically a takeover, although we presented it as a merger, with the neighbouring health trust. That involved Suffolk Mental Health and Norfolk Mental Health. We finally achieved it on New Year's Day, so I am, so to speak, out of work.

There was a real problem. One got the feeling that the people on the competition and collaboration panel, or whatever it was called, which overlaps quite heavily with the Competition Commission, saw us in much the same category—how can I put this without upsetting anyone?—as two rival sellers of washing detergents. They did not recognise that health is not like that. There were health issues, patient safety issues and quality of service issues that needed to trump the competition issues. I know that we have been told that that will happen, but it is very important to make sure that the machinery will ensure that it happens and that the health issues trump those narrower competition issues. All I seek from the Minister is an assurance that, one way or another, that will be the case.

Health and Social Care Bill

Debate between Lord Clement-Jones and Lord Newton of Braintree

Thursday 15th December 2011 Lords Chamber

[Lord Newton of Braintree]

My Lords, I will come in very briefly. I declare a past interest as former chairman of the Royal Brompton and Harefield NHS Foundation Trust, which probably has as large a private patient income as any in the country. Frankly, that income considerably benefits the two hospitals and their NHS patients.

I welcome the amendments of my noble friend, and hope that the Minister will give them careful consideration. All of us in this House, not least those of us who are former Ministers of health, have been united in our wish to see a successful and flourishing NHS, and in being really dedicated to it. It would be an oddity if a hospital designated as an NHS trust—whether foundation or otherwise—were treating a majority of patients who were not NHS patients. That is quite a simple proposition, and it is the one advocated by my noble friend Baroness Williams.

The amendments already tabled by my noble friend on the cap on income are extremely welcome and sensible. However, I hope that he might think of—dare I say it—embracing the thoughts of my noble friend Lady Williams as well in some further modification of those amendments so that they refer both to income and to numbers. The numbers thing will be more readily understood by many members of the public. Clearly we do not want NHS trust hospitals to gain most of their income from doing non-NHS work or from treating non-NHS patients. That just does not make sense. It would helpful if we could make that clear.

[Lord Clement-Jones]

My Lords, my noble friend Lady Williams very clearly set out the approach of these Benches to a number of amendments in this group. I simply want to return to EU competition law for a moment. The noble Earl’s amendment regarding limits on the cap goes quite some way to mitigating one of the elements of risk associated with the greater application of EU competition law. As I outlined on Tuesday, there are some really significant issues in the Bill which will introduce EU competition law to a much greater extent if we are not careful. One of those, clearly, is the uncapping of private patient income of foundation trusts. I am very pleased that the noble Earl has gone some way to dealing with some of those concerns. However, I of course very much share the view of my noble friend Lady Williams that we are not quite there yet, and that it would be belt and braces to have the additional safeguard of a limit on the numbers as well as on the revenue.

Generally, four key issues arise from the changes to Sections 43 and 44 of the 2006 Act, quite apart from that of EU competition law. First, there is the question of limits on the cap—what kind of limit is appropriate? Secondly, there is the question of being absolutely certain that any income from private patients is exclusively devoted to the National Health Service. Thirdly, there is the question of prospective transparency—of being well aware of what the plans of foundation trusts will be. Fourthly, there is the question of transparency after the event, in terms of reporting in an annual report.

As far as the limits on the cap are concerned, as I have mentioned, the noble Earl’s Amendment 299ZA is welcome, but it would be useful if he could consider whether any further qualification of that cap was appropriate. There is also the question of being absolutely certain that we are talking about this income going exclusively to the NHS, which is what my Amendment 299A goes towards—that is why I seek to add the word “exclusive” to the changes to Section 43 of the Act.

On the question of prospective transparency, I very much welcome the Minister’s Amendment 299AZA, but that simply provides for reporting after the fact. It is important to share prospectively with the general public and people in the locality the governors’ process for determining the right balance between private income and the NHS activities in a trust. That is what my amendment seeks to achieve by requiring the situation to be set out in an annual plan.

There are four elements. We are some way down the track towards achieving a number of them. At that point, I think that on at least one of the limbs that I and many others are concerned about—the further introduction of competition law to the NHS—we will be satisfied. We will at least have knocked over one of the green bottles, so to speak, with several more to come.