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Earl Howe moved Amendment No. 1:

("( ) An independent hospital includes a hospital sited on property owned by the health service but which is not managed or controlled by the health service.").

The noble Earl said: My Lords, in moving this amendment, I shall speak also to a further amendment tabled in my name, Amendment No. 3. Amendment No. 1 is a very simple probing amendment, the purpose of which is to clarify the meaning of "independent hospital" in the context of Clause 2. In Committee, the Minister confirmed that pay beds within NHS hospitals are subject to NHS rules. However, there is an element of ambiguity that relates to hospitals that are sited on NHS property but which are not managed or controlled by the health service. There are examples of hospitals that are owned by the NHS but which are leased to a private operator. Common sense and logic would suggest that these are "independent hospitals" and, therefore, subject to regulation by the national care standards commission. But, as we are all aware, the definitions in this Bill are orientated around physical premises. In the case of

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hospitals, we need to be absolutely clear that it is the management and control of a hospital, rather than where it is or who owns it, that determines the regulator.

The Minister will doubtless tell me that the meaning of Clause 2(2) is perfectly clear and that a health service hospital is defined in Clause 97 as having the same meaning as in the 1977 Act. I took the trouble to look up the definition in that Act, which reads as follows:

    "'A health service hospital' means a hospital vested in the Secretary of State [for the purposes of his functions] under this Act",

or vested in an NHS trust. I should be grateful for the Minister's confirmation that the potential ambiguity to which I referred--which, I should add, is a concern voiced by the BMA--is easily dealt with.

I turn to Amendment No. 3, which is another probing amendment. Clause 2(4) makes it clear that GP surgeries carrying out NHS work are exempted from the definition of "independent clinic" and will, therefore, fall within the scope of NHS regulation. However, GPs often carry out private practice work from their surgeries; for example, various types of minor surgery, laser treatment and vasectomies. These treatments frequently involve anaesthesia or sedation. There is an issue here about dual registration. On the one hand, primary care premises where private work--and only private work--is carried out will fall within the remit of the new regulatory framework. On the other hand, GP premises where NHS work is carried out are exempt under Clause 2(4). Can the Minister say whether it is correct to assume that GPs providing NHS services from their premises, where some private work is also undertaken, will not need to register with the new national care standards commission?

At present, GPs must register under the nursing homes regulations should they treat patients other than those on their own lists. Some GP practices provide services such as vasectomies to their own patients, as well as to patients of neighbouring GPs. This is a health service contract that can be paid for out of the waiting list initiative money. Can the Minister say whether, under the regime put in place by this Bill, GPs who provide NHS treatment for patients not on their own lists will need to register with the national care standards commission? I beg to move.

Lord Clement-Jones: My Lords, perhaps I may question the Minister as to what procedure he proposes to adopt at this stage. I make that request because he is not only going to reply to the noble Earl, but will also be proposing some amendments tabled in his name. Before the noble Lord replies to the noble Earl, perhaps I may suggest that he, first, proposes his own amendments and then gives us an opportunity to respond to them.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I should be happy to follow that proposal for the convenience of the House. The noble Lord, Lord Clement-Jones, brought to our attention in

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Committee reservations about the quality of care provided to private patients by call-out doctors, who were contacted by phoning an advertised number. I said then that I would take the matter away and reconsider it.

I thank the noble Lord for raising these concerns. I agree with him that such doctor call-out services should be regulated. Therefore, we have brought forward Amendment No. 2, which introduces a new category to be regulated--independent medical agencies. This will require call-out doctors to be regulated by the commission. Amendments Nos. 4, 10, 31, 32, l54 and 155 are consequential to the introduction of this new provision.

In proposing Amendment No. 2, perhaps I may also say that I believe it would be wrong to think only about the services that are being provided at present; indeed, as the noble Lord, Lord Clement-Jones, said in Committee, we also need to consider the future, as healthcare provision is developing at such a rapid pace. New technologies, such as telecare and telemedicines, may have a very profound impact on the way that illnesses are diagnosed and services delivered in the future. Those technological developments will, in themselves, have an impact on the role of healthcare practitioners and on decisions about where relevant healthcare services can be delivered most appropriately to patients.

We must ensure that the national care standards commission is in a position to react and keep pace with those changes. We have, therefore, brought forward Amendment No. 51 to enable the scope of the independent healthcare regulated by the commission to be extended by regulation, if and when necessary in the future. As the noble Lord, Lord Clement-Jones, pointed out in Committee, the provision of healthcare is changing. So Amendment No. 51, which will give the commission this flexibility, is important.

Lord Clement-Jones: My Lords, I should like to thank the Minister briefly for both those amendments, especially for Amendment No. 2. It was most helpful of the Consumers' Association to point out such an important lacuna in the Bill. I am extremely grateful to the Minister not only for responding by way of that amendment but also for taking it a step further and, in a sense, looking beyond that as to what other flexibilities may be required in the Bill.

Lord Peston: My Lords, before my noble friend the Minister replies to the interesting queries raised by the noble Earl, Lord Howe, I have one point to raise. It is possible that I have misread the second paragraph of Amendment No. 2, but it does not seem grammatically correct. I cannot quite make sense of it. It may be because I am no good at reading legislation and, indeed, that any lawyer would make perfectly good sense of it; but there is either an "it" missing, or something similar. In any event, the sentence starts with the word "but", which I believe to be unacceptable.

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Lord Hunt of Kings Heath: My Lords, I would never dare to suggest that my noble friend cannot read legislation appropriately. I am not sure about the grammar, but if we are talking about an establishment within which services are provided by medical practitioners in pursuance of the National Health Service Act 1977, it cannot be defined as an "independent clinic". My noble friend's point actually takes us on to the issues raised by the noble Earl, Lord Howe, with which I shall now deal.

The noble Earl is right in both the suggestions that he made. He has proposed that the definition of "independent clinic" in Clause 2 should be amended so that it will exclude establishments in which the majority of services are NHS services. He then posed the probing question in that respect. In response, I can tell the noble Lord that the independent healthcare provisions of the Bill are built on the fundamental principle that it will not be the commission's task to be concerned with NHS services. Providers of NHS services will come under the separate arrangements specifically introduced to provide quality assurance in the NHS. Therefore, clinics that provide any NHS service will come under the NHS arrangements, and not under the national care standards commission.

We believe that it would be unnecessary and, indeed, that it would amount to over-regulation to require doctors who have to comply with NHS arrangements to be regulated also by the commission. Perhaps I may point out that the noble Earl's question relates to the issue of the majority of services. It would be difficult to keep track of doctors' practices in order to monitor the 50/50 split. However, I understand that the noble Earl raised the matter more as a probing amendment than anything else.

On similar lines the noble Earl has tabled an amendment to the definition of "independent hospital" in Clause 2, the effect of which would be to include in the definition a non-NHS hospital situated on land owned by the NHS. We see no need for this amendment. Clause 2, as currently drafted, provides that any non-NHS hospital that satisfies any of the other conditions in Clause 2, regardless as to whether it is situated on land owned by the NHS, comes within the definition of "independent hospital" and will be regulated by the national care standards commission.

Earl Howe: My Lords, first of all I thank the Minister for his clear and full explanation of the government amendments, which I welcome. I take this opportunity to thank him for writing to me so comprehensively and on a number of occasions since the Committee stage to explain the meaning and purport of all the government amendments that we shall consider today. That was helpful and has certainly eased my task considerably.

I turn to the two amendments in the group that I have tabled. As I said earlier, they were intended as probing amendments. However, the replies that the Minister has given are unequivocal. Both I and the BMA will be extremely grateful for that. It is always reassuring to find that there is no ambiguity in

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legislation. It is as well that we should spot such potential ambiguities as they arise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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