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Lord Jenkin of Roding: My Lords, I left the debate in Committee in a state of bewilderment. I simply could not understand why the Government had set their face against what the noble Lord, Lord Clement-Jones, has so clearly described. I hope that two recent events may convince Ministers that the amendment should be accepted and that the independent sector of hospitals should be subject to the inspection regime of CHI.

The two events to which I refer seem to have happened more or less together, but are unconnected. The first was a conversion on the road to Damascus over the river. The Prime Minister was confronted by a group of consultants who said that they would be able to do much more to get their waiting times down if they were free to treat more of their patients in beds in independent hospitals. I gather the Prime Minister said, "Whoever told you that you can't?", to which the reply was, "Your Secretary of State, Prime Minister". Indeed, successive Secretaries of State have tried to make it clear that for obviously ideological reasons that was not acceptable. The Prime Minister, to his credit, said, "That's barmy"; I paraphrase. As the noble Lord, Lord Clement-Jones, pointed out, many NHS patients are treated in private hospitals and a great many more could be, particularly at a time when NHS beds are under acute pressure, as they were in January and February.

The second event to which I refer is that in the Budget the Chancellor gave us these wonderful figures of the proportion of the national product to be devoted to healthcare, matched by considerable

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additional finance. What he did not say, but which subsequently transpired, is that the figures he gave include what is spent in the private sector. One now recognises what has long been apparent to a great many people. We have a variety of healthcare systems. The suggestion that somehow the National Health Service lives in an isolated cocoon and that somewhere there is a completely different system treating different people bears no relation to the truth.

There is bound to be more interaction and a higher and higher proportion of healthcare which will be paid for and delivered under the independent sector. One will find more and more people comparing standards and making their choices on the basis of looking and seeing what they can obtain in the different sectors. For the sectors to be subject to an entirely different inspection procedure seems in these circumstances--I use the word which I used in Committee--bizarre. I cannot help feeling that the Government have got themselves hooked in an ideological time warp of saying, "It has to be different because it's the NHS".

Before the last election, when I was chairman of a trust, we made no bones about it; we regularly had patients treated in private hospitals. That was the most effective way to deploy our resources, particularly at times of peak demand. That is now happening more and more. Now that the Prime Minister has discovered that many people thought they were not able to do that, it will happen more.

We need to recognise that we have moved on, even from the date of Committee stage, and are now in a new world. It is now accepted that the figures of total spending on health cover both the private and public sectors. There will be more and more movement between the sectors and we really must have a common inspection system.

I understand the point made by the Minister about inspecting an independent hospital and the management of a health service. However, when talking about standards of care, clinical standards and standards of management, and so forth, there is everything to be said for having a common standard enforced by a single regulatory agency.

Baroness Pitkeathley: My Lords, there will be no argument in your Lordships' House that what is needed is a tough and effective system for regulating private hospitals. The setting up by the Government of a national care standards commission will, for the first time, ensure that that is what we shall have.

I cannot see how the aim of a tough, simple and effective system would be met by the proposal to contract out inspections to CHI. It seems to me that confusion would result, when what is needed, as everybody agrees, is a simple and effective system; leave alone the question of whether CHI--there are a variety of pronunciations for the Commission for Health Improvement in your Lordships' House--has the requisite skills and powers. It seems to me that patients and their families who use the private healthcare system are united in wanting regulation of private hospitals. However, they are also united in wanting the simplest possible system.

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5.15 p.m.

Earl Howe: My Lords, there is little for me to say on the amendment which has not already been said most persuasively by the noble Lord, Lord Clement-Jones, and my noble friend Lord Jenkin. This may have been a mantra rehearsed many times in your Lordships' House over the past year or more but it bears repeating. What we want to see, and what patients nowadays expect, is consistency in clinical standards across the public and private healthcare sectors and consistency in enforcement.

The distinction which the Government seek to draw between the NHS and the private sector is that the NHS is a managed service and the private sector a regulated service, and the two must therefore be subject to different regimes. In one sense I understand the point made by the Minister. The Government do not manage the private sector in the way that the NHS is managed. However, inspection and enforcement are regulatory activities. The Commission for Health Improvement is a regulator. For evidence of that we need look no further than the advertisement for senior staff posts in CHI which appeared in the Health Service Journal on 20th January. The heading states:

    "We will be a developmental, facilitative and regulatory independent body".

Why should it not be CHI that spreads good practice across both healthcare sectors? It is perfectly placed as a regulator so to do.

The practicalities of any other course need to be borne in mind. We know that CHI will, in any event, have responsibility for regulating the care of NHS patients in private hospitals. Are we to suppose that CHI inspectors will be told, when they arrive in a certain ward, "You are responsible for beds 1, 3, 5 and 7 but not beds 2, 4, 6 and 8"? The idea is laughable. In those circumstances, CHI will assess the clinical and care standards in the ward as a whole and, indeed, in the entire hospital. This is a matter in which the Government's position to date has defied reason and common sense; the implied subtext being that if it is not done within the NHS, it is not proper healthcare. I hope that we shall hear something from the Minister today to indicate that a change of heart is possible.

Baroness Gardner of Parkes: My Lords, I rise briefly to support the amendment and ask for clarification. I did not understand the argument put forward by the noble Baroness, Lady Pitkeathley. She stated that she did not believe CHI to be the appropriate body to carry out inspections in the independent sector. Is she saying that inspections should be carried out by one body in both the private and national health sectors; or is she saying that neither sector should be regulated, or both? The argument put forward by my noble friends and in the amendment is based not so much on who carries out the inspection, although that is the wording of the amendment, as on the uniformity of using one regulatory body for both private and NHS hospitals. That is the essence of what we want. The detail of

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which body that would be is of secondary importance. It is the principle of a single regulator that is important.

Baroness Nicholson of Winterbourne: My Lords, I rise to speak to Amendment No. 15, to which I have added my name. I also support all that has been said by my noble friend Lord Clement-Jones and the noble Earl, Lord Howe. Furthermore, I concur fully with the words of the noble Lord, Lord Jenkin of Roding.

This amendment is very important. If passed, it will ensure that the standards of private clinical care match up to those of the National Health Service. Furthermore, it will provide that acceptable levels of professional training and practice will be tested and proved by the same mechanism as that put in place by the Government for the National Health Service. This would enable patients at last to see, assess, monitor and report back, so that actual improvements can be achieved and published against known and agreed standards. The standards would be the same as those established for the National Health Service. In that way, the National Health Service would effectively provide the benchmark--the hallmark--and quality stamp, and the private sector would need to follow suit.

That will be very different from the situation as it is now. Private hospitals today are seriously outclassed by the NHS. Only in waiting times does private healthcare win. In virtually every other health activity measurable by known indicators, the private sector rarely does better than the NHS and frequently offers lower value service at far higher costs--sometimes at rip-off costs, imposed under the name of "charity".

When one looks at the private sector, the problems are obvious: the lack of anaesthetists; insufficient trained staff at all levels; the lack of basic drugs required to be made available for classic procedures and the size of IT units. Often those are far too small and the anaesthetists may be elsewhere. Has the Minister asked why private hospitals are built close to NHS hospitals? That is done so that National Health Service IT units can be used when private IT units fail. Further, NHS units are used and are not reimbursed, so that private patients bump NHS patients off the critical list.

Of course, surgeons working in the private sector are NHS surgeons operating after hours, or retired surgeons, who may rapidly become out of date with the advances in medical care. Furthermore, there is a lack of aftercare. Private rooms can mean that blood pressure checks are not made sufficiently often, with fatal consequences. I have a folder full of reports about miserable incidents of this kind. However, perhaps the extremely high turnover of theatre nurses and IT staff in many private hospitals says it all.

As regards complaints, it is very difficult to complain. Private hospitals may themselves have set up their own complaints procedures, but they do not need to be initiated unless private hospitals wish that to happen. I have been told of instances where patients have been treated with fatal consequences, whose

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relatives have sought to instigate known complaints procedures within private hospitals, but the private hospitals have refused. It is an unhappy situation.

Not all private hospitals are like this. There is, for example, an outstanding hospital in Scotland with perhaps the best facilities of all; BUPA hospitals are not-for-profit institutions and have an enviable track record. However, the standards are so erratic that patients and families simply cannot tell, when they enter a private hospital, what kind of treatment they will receive. On websites one can find promotions for private hospitals offering trained staff throughout their wards and in all their facilities. But when one arrives, that proves not to be so. Alas, in healthcare, when one finds out, it is frequently too late.

Patients are vulnerable. When we are sick, we are dependent on good professionals. In good faith, we buy or receive a certain standard and quality of service from others. In the private sector, we cannot be sure that we will receive it.

Nevertheless, the National Health Service needs the private sector. On 1st March the Prime Minister declared that he was going to use the private sector extensively. He declared that over the past three years, some 20,000 operations had been carried out on NHS patients in private institutions. It is possible that another 200,000 operations could be carried out in this way. That would represent one operation in every 30.

The Bill before us offers only a fragile reliance on hard-pressed NHS staff to check out standards in the private health sector. The Government's paper states that NHS patients will be protected because the National Health Service will check out the private sector. However, unless the same regulatory body--a body that is well accustomed to checking on the NHS--is used for the private sector, who is going to undertake that chore? It does not even happen now when NHS patients go into the private sector. Of course, contracts are drawn up with the private hospitals, but the NHS simply does not have the time to monitor them. So staff in the private sector, whether good, bad or indifferent, are not quality checked in the same way as those working in the NHS. I believe that that checking task rightly belongs to the Commission for Health Improvement.

Why does the Minister choose not to go down this path? This amendment offers the Government another chance to do so. The original Green Paper at least proposed a separate private health commissioner. Alas, the Bill has discarded that excellent opportunity in favour of regulations--still to be discussed, and to be discussed within the private sector. All that is left is a promise to consult. Although the Government promise further consultation "with the private and voluntary healthcare sector" over the next 12 months, it is clear that the resultant regulations will be for the Government to impose, and not for Parliament.

Nor is the Government offering to consult with patient groups, community health councils, Action for Victims of Medical Accidents, the Consumers' Association, APROP and the Patients Association. All of those should be included in such consultation because the regulations will be of critical importance.

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Perhaps the final straw for me and for others is that the Government's paper also acknowledges that it will,

    "not be feasible for NSSC inspectors to be involved in all aspects of clinical detail of all the services that need to be regulated".

Surely these are the very areas that cry out for regulation so that private hospitals can offer the same quality as is ensured by the NHS clinical audit. That is fundamental to the success of any regulatory system.

    "The present Government have a laissez faire attitude towards the private sector".

I have quoted from a statement made by a King's Fund Fellow in an article headed,

    "Private Healthcare: Modernisation Stops Here".

This sits ill with the Prime Minister's inclusion of funds spent in the private sector when making Budget health forecast claims. It does not match up the promise made by the Prime Minister to use the private sector to fulfil his intention to shorten waiting lists for NHS treatment. Of what use to a patient is a bed in luxury surroundings if early death is the result?

This amendment will offer greater patient safety by ensuring that the same standards of protection apply in the private sector as in the National Health Service. I beg the Minister to think again.

5.30 p.m.

Lord Hunt of Kings Heath: My Lords, perhaps I may say at the beginning of my response that I have reflected carefully on the comments made both today and in Committee. I should like to assure all noble Lords that I take neither an ideological nor a bizarre approach to this matter. There are genuine reasons why it is sensible to provide that the regulation of the private healthcare sector should be undertaken using different arrangements from those that provide the effective management of the National Health Service which faces enormous challenges in the modernisation of its services--something that we all want to see. I believe that it is wrong to insist that the national care standards commission must use the Commission for Health Improvement to undertake work on its behalf in the regulation of the private health sector.

However, I equally accept the need for close collaboration between those two bodies. We want to see them working in a sensible and collaborative way and I very much take the point that has been made on the need for consistency of approach by both organisations.

I start by responding to the noble Baroness, Lady Nicholson, who raised a number of important issues concerning the current regulation of the private healthcare sector. There is no doubt that, while arrangements are in place for the regulation of that sector in the Registered Homes Act, there has been an inconsistency of approach and in some parts of the country a lack of sufficient expertise.

I want to assure the noble Baroness and the House that we take the regulation of private and voluntary healthcare seriously. We estimate that over 1,500 providers of independent healthcare will be regulated by the national care standards commission across a wide area of services and providers. They will include

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private acute hospitals, private doctors, abortion clinics, hospices, and clinics where powerful lasers are being used. Of course our fundamental concern is to see that appropriate safeguards and quality assurance systems are in place for the patients who receive services from those kinds of healthcare provider.

In ensuring those safeguards and that quality of care, we do not intend to reinvent the wheel; we aim to have regard to existing good practice. We will take account of the standards that the NHS currently applies. We will have regard to quality assurance programmes that already exist and to which many private and voluntary healthcare providers already subscribe.

The regulations and standards will be developed through consultation, including with the independent healthcare sector, but also with the kind of organisations that the noble Baroness mentioned. We want to see the widest possible consultation in developing the standards and regulations necessary. It will be a thorough process which we envisage will take place from this spring for a 12-month period. Subject to the outcome of that consultation process, we envisage that there will be a number of general standards across the broad range of private and voluntary healthcare and then specific standards for specific areas of service to be regulated. In doing that, we intend to produce regulations and standards that are appropriate, clear and the implementation of which can be effectively monitored.

The relationship between the Commission for Health Improvement and the national care standards commission has been debated in this House on a number of occasions. As I have already intimated, the proposal in the amendment is that CHI should be involved in the regulation of independent healthcare and those are familiar arguments. But the Government remain of the view that CHI's principal role has to be about helping to modernise and improve the quality of NHS services. It was brought into existence solely with that important task in mind. It does not have responsibility for the regulation of private healthcare.

Having said that, we recognise that there is a need for CHI and the national care standards commission to liaise and co-ordinate on common areas of interest; for example, as noble Lords have already mentioned, where NHS patients are receiving treatment in private hospitals. The scoping paper that we produced recently on the voluntary and private healthcare aspects of the Care Standards Bill made that point. However, it may be helpful for me to say a little more about our thinking in this area.

CHI is a key part of our agenda for modernising the NHS. It is independent of the NHS. It was established to strengthen external oversight of NHS activity, to improve quality and to provide reassurance to the public that the NHS is fulfilling its responsibilities for quality. It has a key role in providing robust external scrutiny of clinical governance arrangements put in place by NHS bodies to assure and develop high quality services.

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CHI will look at services provided to NHS patients. Where an NHS organisation has subcontracted with the independent sector to provide care, the NHS organisation will retain responsibility for the quality of care provided to those patients. It therefore follows that CHI will assess how arrangements to assure quality in the NHS organisation are carried through where care is provided in the independent sector. That will usually be through the contract between the two organisations concerned--the NHS organisation and the private sector organisation.

CHI also has powers to require persons to provide information it needs in conducting its reviews and investigations, subject, of course, to the restrictions under the Act to protect personal, confidential information which we have already discussed. Where an NHS trust has pay-bed facilities, it will retain the overall responsibility to put in place robust systems to assure the quality of care.

CHI's interest is in clinical governance systems in NHS bodies; in the impact and implementation of guidance from the National Institute for Clinical Excellence; and in the NHS national strategic frameworks. I am sure that your Lordships can see that, although in some respects it will have common interests with the care standards commission, there are many more differences than similarities in the roles and responsibilities of the two organisations.

In contrast with CHI, the national care standards commission will be purpose built to include in its responsibilities the regulation and inspection of non-NHS healthcare providers. It will regulate those services by reference to regulations and standards which will be drawn up in consultation with the independent healthcare sector and other organisations. It will undertake inspections of each regulated body at least once a year. It may apply sanctions if the regulations and standards are not complied with. It will not be concerned with the NHS. It will have a completely different role and focus from the Commission for Health Improvement.

It is fair to say, therefore, that CHI and the national care standards commission have separate and distinct roles designed to fulfil their separate and distinct responsibilities. But--here I come to the reassurances I should like to give to the House tonight--they should not and will not operate in isolation from each other. For example, I would expect them to liase on their respective activities which involve private and voluntary healthcare when CHI is planning a review of clinical governance arrangements in an NHS trust that has a significant contract with an independent healthcare provider; for example, a mental health hospital. In those circumstances, the national care standards commission should be informed of that review because of its responsibilities as a regulator of the mental health hospital. Such liaison will be necessary not least to ensure that the timetable of CHI reviews and the national care standards commission are co-ordinated in so far as they concern independent healthcare--a point raised by the noble Earl, Lord Howe.

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The second important way in which CHI and the national care standards commission will collaborate is of particular relevance to the amendments. There will be a sharing of expertise between CHI and the national care standards commission. CHI will draw on a pool of around 500 experts to assist in its reviews, many of whom will be seconded from the NHS for short periods. The national care standards commission will be able to have access to that same expertise in order to obtain specialist advice as and when appropriate in its inspections. As noble Lords may recall from Committee stage, the Bill provides for staff to be seconded from CHI to the commission and vice versa.

To complete the picture of collaboration between the two bodies, a third key area concerns information sharing. It is important that information about the independent healthcare aspects of CHI reviews and the care standards commission inspections are exchanged and, subject to the duty of confidence and/or statutory disclosure, we expect the two commissions to share as much relevant information as possible.

I hope that that demonstrates that the Government are keen for the commission and CHI to co-operate effectively. To help facilitate that further, and in answer to the specific point made tonight in relation to the contracting of services, we shall introduce in the Commons an amendment which enables the two bodies to sub-contract work to one another in respect of their interest in independent healthcare. I hope that that will go some considerable way to reassuring noble Lords that, while we consider that it is absolutely right that there are separate functions for both CHI and the national care standards commission, we will expect them to collaborate; to be informed by their respective work; and to enable there to be a consistency of approach. On that basis I invite the noble Lord to withdraw his amendment.

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