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("(1) A person who, without lawful authority, knowingly or recklessly discloses information which--
(a) falls within section 19(2), and
(b) has been obtained by the Commission in accordance with any condition mentioned in section 19(2),
is guilty of an offence if the disclosure is made during the lifetime of the individual to which the information relates.
(1A) A person who, without lawful authority, knowingly or recklessly discloses information which--
(a) relates to and identifies an individual,
(b) has been obtained by the Commission on terms or in circumstances requiring it to be held in confidence, and
(c) does not fall within subsection (1),
is guilty of an offence if the disclosure is made during the lifetime of that individual.")
43

Page 24, line 1, leave out from ("person") to ("liable") in line 2 and insert ("guilty of an offence under this section is")


44

Page 24, line 9, leave out from ("form") to ("or") in line 10 and insert ("in which the individual to which the information relates is not identified")


45

Page 24, line 23, leave out ("or any person authorised to act on his behalf")


46

Page 24, line 33, leave out paragraph (g) and insert--


("(g) in a case where the information appears to the Commission to reveal--
(i) that the performance of a health professional in his capacity as such has or may have fallen substantially below that which is expected,
(ii) that a health professional has or may have been guilty of serious professional misconduct, or

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(iii) that the fitness of a health professional to practise as such is or may be seriously impaired by reason of his physical or mental condition,
and the person to whom the information is disclosed is a person to whom the Commission considers that it should be disclosed in order for appropriate action to be taken, or")
47

Page 24, line 36, leave out ("relates to a person who") and insert ("reveals that a person")


48

Page 24, line 40, at end insert--


("(5A) For the purposes of subsection (1A), information obtained by the Commission is to be regarded as identifying an individual if the individual can be identified--
(a) from that information, or
(b) from that information and from other information obtained by the Commission.
(5B) For the purposes of subsection (3)(a), information disclosed by a person is not to be regarded as being in a form in which an individual is not identified if the individual can be identified--
(a) from that information, or
(b) from that information and from other information disclosed--
(i) by the Commission, or
(ii) by any member or employee of the Commission.
(5C) Any reference in subsection (1), (1A), (5A) or (5B)(b)(i) to the Commission includes a reference to any person authorised by the Commission under section 19.")
49

Page 24, leave out line 42

Baroness Hayman: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 27 to 49. I have already spoken to these amendments.

Moved, That the House do agree with the Commons in their Amendments Nos. 27 to 49.--(Baroness Hayman.)

On Question, Motion agreed to.

COMMONS AMENDMENT

50

Leave out Clause 22.

Baroness Hayman: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 50.

In moving Amendment No. 50 I shall speak also to Amendment No. 144. I am grateful for the opportunity of explaining the actions of the Government in removing from the Bill the former Clause 22 on the independent healthcare sector which was inserted during the Bill's passage through your Lordships' House. We had a lengthy debate on the issue at that time, but events have now moved on in ways which I believe--and I hope the House will agree--demonstrate the Government's clear commitment to meaningful action on private and voluntary sector regulation. I hope that much of what I have to say will reassure those who expressed concerns in this area.

Clause 22 essentially attempts to permit the Secretary of State for Health, by regulations, to extend some or all of the functions of the commission for health improvement to private providers of acute healthcare. The rationale behind the amendment was principally that the commission for health improvement might have an important role in the regulation of the independent

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healthcare sector, forming part of a new system to replace the current arrangements. Indeed, there are those who suggested that the commission would be an appropriate body to take lead responsibility for regulating the sector.

Perhaps I can say at the outset that I believe there is no disagreement that the current system for regulating the private and voluntary healthcare sector is inadequate. I should like explicitly to reassure the House that the Government believe they have a duty to ensure that private and voluntary healthcare is properly regulated and that we are committed to improving on the current arrangements. In particular, we believe that regulation is necessary to protect patients and to reassure those using private and voluntary healthcare sectors that they will receive safe services. Healthcare is not a service which should be bought and sold in an unregulated market, with individual patients being required to satisfy themselves about the safety of services being provided.

When we last debated these issues, I explained that our White Paper, Modernising Social Services made a commitment to establishing new arrangements for the regulation of both residential and nursing homes. Both are currently regulated under the 1984 Registered Homes Act which is now badly out of date. We have set out specific proposals to establish new commissions for care standards to inspect and regulate private and voluntary residential care premises and I can assure the House that when we legislate to implement this proposal, we intend also to make appropriate new arrangements for the regulation of private healthcare and the independent health sector.

Noble Lords will recall that I announced during our earlier debates the Government's intention to issue a consultation document on options for the regulation of the private and voluntary healthcare sector. I am pleased to say that this document, Regulating Private and Voluntary Health Care was published on Tuesday of this week. I should also like to pay tribute to the way in which debates in this House helped us in shaping and framing that document.

The consultation document re-emphasises the Government's commitment to effective regulation of the private and voluntary healthcare sectors and seeks views on three main sets of issues: first, the scope of regulation and specifically the range of establishments which should be covered by the new arrangements; secondly, the regulatory standards which should be applied and the sanctions which might be brought to bear when these are not met. The Government believe that those standards should go beyond those in the existing regulatory system which focus primarily on facilities. We suggested that they should include other issues such as complaints, information for patients and staff registration. Thirdly, we seek views on the regulatory structure for administering the process. Our favoured option here is a new independent statutory body, purpose-designed to perform this function.

The arguments against using the commission for health improvement to administer the new arrangements are well rehearsed and I shall not labour them this

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afternoon. Quite simply, the commission has been designed to operate as part of a managed healthcare system--the National Health Service. It is quite a different matter to perform a regulatory function in the context of a system which operates primarily on the basis of private contracts between individuals and healthcare providers. The same basic argument applies in respect of the duty of quality.

I know that it has been said in defence of Clause 22 that it does not compel the Secretary of State to act and that it merely leaves the door open for the commission to have some future role in the regulatory process should this be thought appropriate. I can only re-emphasise a point I have been at pains to stress since we first debated the issue: we cannot sensibly legislate in anticipation of a system we do not yet know. If we attempt to do so, we will in all likelihood get it wrong and have to amend the legislation again at a future date. I think that that point is amply illustrated by the extent to which Clause 22 harks back to elements of the 1984 Act, which I believe everyone will agree is becoming a little long in the tooth. For example, the effect of that Act is to define rather narrowly the healthcare providers to be regulated. We are consulting on whether the new arrangements should in fact cover a more extended range both of bodies and of premises.

Noble Lords will wish to note that, in line with the commitment I gave during our earlier discussions, the consultation document does, however, acknowledge that a regulator might wish to contract with another body, such as the commission for health improvement--or, indeed, the Commission for Care Standards or another private or public sector body--in order to help carry out local inspections. That is an issue on which we explicitly invite views.

The consultation will run until 17th September, which I believe is ample time for all relevant interests to make their views known. We shall consider very carefully the responses to this document before taking further action. Of course, we will also have the benefit of the report which is due to be made by the Health Committee in another place.

I hope that I have been able to explain to noble Lords' satisfaction why the Government felt it was right to remove from the Bill the new clause inserted by the House. Since we last discussed these issues, there has been significant progress. In line with both the White Paper commitment and my own assurances to the House, and with the benefit of your Lordships' debates on these issues, the Government have brought forward concrete proposals for addressing just the matters with which this House was rightly concerned. We are taking action to assure quality in the private and voluntary healthcare sector. I believe that there is little or no ground between us on many of the fundamentals. Given this progress, I hope that your Lordships will feel able to allow the amendment made in another place to stand.

Moved, That the House do agree with the Commons in their Amendment No. 50.--(Baroness Hayman.)


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