Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 13th December 2011 Lords Chamber

[Baroness Thornton]

The point I am making concerns what we need to do for the future. What happened in Mid Staffs has some bearing on that and I said “instructive”.

The tests that we are suggesting should be applied to any organisation wishing to supply clinical services to the NHS around probity and can be enforced through contracts and licensing. Meeting the conditions without trying to argue commercial confidentiality is now the price of doing business with the NHS, in our view.

Finally we have reservations about the interaction between the licensing regime and the use of standard contracts. Why have both as enforcements? What would be appropriate for each? What is the role of Monitor as regards the contracts? What happens to disputes between providers and commissioners? Do they all go to court? What is the role for Monitor in the resolution of disputes? We have accepted that if you have a licensing system then you have to build a bureaucracy to support it, moving from a top-down management bureaucracy to a regulatory bureaucracy. To keep this to a minimum while remaining effective is not simple, as the CQC is finding. But the system set up in the Bill is very complicated and our amendments seek to simplify it. The nature of the operation as to whether it should be a light-touch risk-based approach or continuous direct inspection is another issue which has plagued the CQC and will have to be resolved by the new Monitor. That is a question we need to put on the table.

I now turn to our amendments. In Amendment 260EB Monitor is to take on duties in relation to authorising through licensing any person who provides healthcare services for the purposes of the NHS. Amendment 279A is to remove any potential ambiguity and stress that providers of primary medical services for the purposes of the NHS must hold a licence. Clause 82 stand part is to facilitate a discussion about who can be exempt from the requirement for health service providers to be licensed and who makes those decisions. In Amendment 282A, since this a strong power granted to Monitor to revoke a licence, we add qualifications that in the case of a foundation trust Monitor must consult the Secretary of State, and the Secretary of State may veto any revocation if it is deemed not to be in patients’ or taxpayers’ interests. In Amendment 282B the Secretary of State, not Monitor, should determine the principles or framework behind the licensing conditions and Monitor must then have regard to these. Amendment 283 specifies that the standard conditions included in each licence must set out various minimum standards such as for governance arrangements, meeting in public, employment conditions, co-operation with local-authority overview and scrutiny functions. Amendment 283A contains the issue of there being no need to have different standard conditions for different descriptions of licences.

Amendments 286ZA, 287ZA and 287ZB set limits on Monitor’s functions to set and modify the licence conditions, simplifying its role. Amendment 287BA leaves out the roles of Monitor relating to licence conditions, price and charging. Amendment 287F requires licence holders to be fully subject to the overview and scrutiny functions of local authorities. In Amendment 288ZB Monitor has the power to modify the standard conditions applicable to all licences, and in doing so there should be no need for a vote among providers but consultation and consent from the Secretary of State is required. In Clauses 99 and 100 stand part we raise the issue of minimising the bureaucracy surrounding licensing. In Clause 101 stand part we argue that the requirements for fair eligibility and transparency in selection should be covered under the PRCC. This is a probing amendment designed to strengthen the clause instead of deleting it on Report. We think that that should be a matter for discussion. Amendment 288DZA regards Monitor’s power to impose discretionary requirements, including fines, on providers and licence holders if they fail to provide required documents or information, which can only occur with the consent of the Secretary of State. Any fine must be held by the local CCG for reinvestment in services in that area. Amendment 288DA states that if any provider is in breach of a licence Monitor may take action against them, including the imposition of fines, but only with the consent of the Secretary of State. I beg to move.

[Baroness Williams of Crosby]

I would like to address just one of the amendments in this group, which is in my name and that of my noble friend Lord Marks of Henley-on-Thames. Unfortunately my noble friend has been taken ill and is unable to be here. He extends his profound apologies to the Committee.

This amendment is significant in strengthening the general approach towards competition under Section 3 of the Bill, by making it quite plain that the requirements that have to be met, which we will come to in Part 4, must also apply to licence holders. I am in a slight difficulty, as my noble friend Lord Howe will appreciate, as the Government have tabled amendments on aspects of foundations trusts which will arise at a later stage in the Bill, particularly under Clause 161, which are related to the amendment to which I am now speaking. I will therefore do my best to navigate around Clause 161 in so far as I can. However, I may have to make limited reference to it in order to make clear what my own amendment is about. My own amendment is essentially one that would support, and indeed further improve, the proposals put forward in this particular amendment. They should therefore be read together with Clause 161 and Amendments 299ZA and 299AZA in the name of the Government.

We want to make two requirements as a fundamental part of the requirements that licence holders have to meet. We appreciate that, in many ways, the licence-holding requirements are fundamental to the way in which the Bill operates, because it must be the case that providers are brought within the general structure of the Bill itself. Our amendment makes two particular points about that. The first is that the revenue from private patients, as a percentage of the licence holder’s total revenue, must be kept below 50 per cent. Secondly, and at least as importantly, the number of private patients in a foundation trust hospital must also be kept below that proportion.

The main point of this amendment—I think that it is an important one—is again to establish that we are looking at foundation trusts that are part of the provision under the NHS and that a minority of both income and patient numbers would be required for any provision made. We hope, as I think the noble Baroness said, that this set of requirements continues well beyond 2016 as part of the structure of the relationship of foundations trusts to the health services, and that this is therefore not standing alone but a crucial part of the whole strategy.

If the noble Lord, Lord Owen, were in his place, I would say that if this is not the rail track of the French railways, it is at least the rolling stock, and we need both to have an effective railway service. However, I wanted to say one other thing. The first part of the amendment tabled this morning by the noble Earl, Lord Howe, goes a very long way. We will talk about this in more detail later so I shall only sketch it out now, given the time. I think that the first part of the amendment, with regard to income—and indeed the requirement that income must exceed the costs of providing that income, and that it must be used for the purposes of patients within the health services—is a very full and useful advance. It is very close to the phrasing of the 2006 Act, which is a point that I am sure will come across to the noble Baroness, Lady Thornton, and her colleagues, but with the additional wording that makes it, if anything, even stronger.

The noble Earl, Lord Howe, will know from discussions which I and my colleagues have had with him that we would want to see this supplemented, if possible, by a reference to the proportion of patients in foundation trust hospitals. Quite broadly, that is something the public can understand, whereas references to quite complicated percentages of income, although equally important—if not more so—are perhaps less transparent and less apparent.

I will not pursue further the new amendments beyond welcoming them, but I want to advance this particular, although limited, amendment as thoroughly as I can, as I think it would ensure that licence holders were held to the same kind of requirements that we are imposing upon Monitor, the national Commissioning Board and the CCGs. It must be the case that this should be a common approach across the front.

[Lord Clement-Jones]

My Lords, I shall be brief. I wish to speak to Amendments 281A and 288ZA, to support my noble friend on Amendment 287EA and to speak to Amendment 287A.

Amendments 281A and 288ZA deal with what are clearly major decisions that will be made by Monitor. The first is the exemption from licensing, which requires notice to be given, and the second deals similarly with the particular standard licence conditions that may be modified. Currently the Bill provides for 28 days’ notice to be given, but these are major issues, and although this is a probing amendment, I hope that the Minister will be able to give a good explanation as to why this period should be so short. Obviously one does not want to have undue delays, but there are quite a number of stakeholders who are bound to be involved in this and it does look rather like a rushed job. So this amendment provides for 90 days to be the standard term for notice to be given.

I move on to Amendment 287A. This amendment simply permits—indeed, requires—the insertion of a standard condition in the licence that the licence holder should,

“abide by the seven general principles of public life set out in the First Report of the Committee on Standards in Public Life”—

the so-called Nolan principles—and requires,

“the declaration of any financial interest the licence holder may have in a commissioning decision by a clinical commissioning group”.

Nowadays that is increasingly standard. I will not prolong the debate, as we have already had considerable discussion in the course of this Bill about conflicts of interest and the need for transparency in these circumstances. However, I would have thought that licence holders, who essentially will be providers across the whole service, should be under a heavy duty of transparency in order to ensure that they do not have a conflict of interest.

Coming to Amendment 287EA, my noble friend Lady Williams has eloquently set out the issues. What is really required in these circumstances is for the Minister to rebut the presumption that we not only need a provision about the actual total revenue, but also about the number of patients actually treated by a provider. This provision is a belt and braces against the provisions of EU competition law. It is extremely well drafted. I take no credit at all for that, it is my noble friend Lord Marks at work here. We will be discussing the Minister’s very welcome amendment later, but it does not contain the second limb of this particular amendment. It would be useful if the Minister could address this in due course, whether under this group or in the later group, as I recognise the difficulty that my noble friend Lady Williams has also recognised, that this is not grouped with Amendment 299A and probably should be.