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MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT NO. 20 20A

Earl Howe rose to move, as an amendment to the Motion that the House do agree with the Commons in their amendment, leave out "agree" and insert "disagree".

The noble Earl said: My Lords, I beg to move Amendment No. 20A. I make no apology for moving the amendment. It goes to the heart of our debate during earlier stages about the regulation of acute private hospitals.

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When the House last debated what is now Amendment No. 20 the argument advanced for it was as follows. There is a welcome and necessary agenda on both the NHS and the private sector to drive up standards and the quality of clinical treatment. The part of the Bill that we are now considering addresses the structures to be put in place to ensure that the private acute sector will be subject to a much more systematic and rigorous set of standards in terms of both regulation and enforcement than has been the case hitherto. No one, least of all the private sector, has any wish to stand in the way of those changes.

However, for the patient the issue is somewhat broader. The patient wants to be assured that wherever he or she happens to be treated--whether in an NHS ward or in a private clinic--the standards of care and clinical treatment delivered will be of a consistently high quality. The operative word is "consistently".

In many areas of medicine and surgery the NHS and the private sector are becoming increasingly interdependent. Nowhere is that more true than in the area of mental health where the NHS subcontracts a high percentage of treatment to private establishments. But in recent weeks we have heard an explicit and welcome statement from the Government which made it clear that NHS trusts should, where appropriate, subcontract treatment to the private sector. The Government themselves are breaking down the barriers between the two healthcare sectors.

However, alongside the cross-migration of patients between the NHS and the private sector there is also the cross-migration of clinicians and doctors. Few senior hospital doctors work exclusively for the NHS or exclusively for the private sector; they work for both. In policy terms, that means that when it comes to the setting and enforcement of standards there is less sense in having two separate governing regimes: one for the public sector and one for the private sector. However, that is exactly what the Government say they want. The private sector will be regulated on a national basis by the national care standards commission. On the other hand, the NHS will continue to be a managed service in which clinical governance, backed up by inspections from the Commission for Health Improvement will, it is hoped, deliver the quality agenda.

However, a dual structure of that kind is a recipe for inconsistency. Under those arrangements, how can anyone be certain that the standards of care being delivered in either sector are in any way equivalent? How will it be possible to promulgate best practice from one sector to the other and vice versa? The ideal answer, which the Government have explicitly ruled out on their pronouncements on the issue, is to have a single independent regulator of healthcare responsible for both the NHS and the private sector. There would then be a unified structure of regulation across all types of hospital, both public and private.

That, ironically, is exactly the regulatory structure that the Government are now putting in place in respect of care homes. Under this Bill the Government

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are perfectly happy for there to be a single overarching regulatory framework for both publicly and privately-owned care homes. The same applies to boarding schools, both publicly and privately-owned. But when it comes to acute hospitals, the arguments apparently do not apply.

However, if this is a bridge too far for the Government--and clearly it is--then the question is: how else can the desired consistency of standards be achieved? The amendment which your Lordships inserted on Report was designed with that end in view. The Commission for Health Improvement is the body whose remit it is to spread good practice and identify substandard practice throughout the NHS. If CHI were additionally to perform the same function for the private sector, inspecting private hospitals on behalf of the commission for care standards as regulator, in theory at least we would be one step nearer to a more consistent inspection regime. There is no suggestion that CHI should usurp the position of the commission as regulator.

Since the Bill left this House, as the Minister mentioned, the Government have excised your Lordships' amendment and replaced it with an amendment of their own--Amendment No. 22. That amendment would enable CHI and the commission for care standards to delegate to each other the performance of their respective functions. I have no objection to that idea so far as it goes, although when the Minister replies I should be interested to hear how and in what circumstances he sees that cross-delegation working.

Of course, its most obvious benefit is to get round the completely absurd situation where, in a ward of a particular private hospital, CHI has responsibility for overseeing NHS patients in beds numbers 1, 3, 5 and 7 and the commission for care standards is responsible for beds 2, 4, 6 and 8. That was a consequence of the Bill as it stood previously. Therefore, the amendment at least represents progress. If I were to be mean about it, it is certainly an admission by the Government that they had not thought through the implications of what they proposed initially.

As for addressing the central concern raised by your Lordships, the Government's amendment does not even begin to qualify. A permissive power for CHI and the commission to cross-delegate on an ad hoc basis is nowhere near the same as saying that there is a comprehensive uniform inspection regime across the public and private healthcare sectors.

I am prepared to concede, as no doubt is the noble Lord, Lord Clement-Jones, that the amendment inserted into the Bill by your Lordships is capable of improvement and refinement. What I had hoped to obtain from the Government was an acknowledgement of the central issue. We have not achieved that and I am sad about it. However, I shall listen to the Minister with the greatest care before deciding whether to press the amendment to a vote.

Moved, as an amendment to the Motion that the House do agree with the Commons in their amendment, leave out "agree" and insert "disagree".--(Earl Howe.)

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10.30 p.m.

Lord Clement-Jones: My Lords, as the Minister rightly pointed out, the question of standards of regulation and inspection in the independent healthcare sector has been a long-running issue in this House. As he recalled, we debated this matter during the passage of the Health Act last year and in Committee and on Report on this Bill. As we know, the other place has debated the issue extensively. However, that does not mean that the debate is over--far from it.

In the course of our debates in this House, there was a shift in the Government's position, as evidenced by what the noble Lord, Lord Hunt of Kings Heath, said on Report. Of course, the new clause which effectively is contained in Amendment No. 22 is the product of that assurance made on Report. With regard to the state of play, the amendment and what it means, the Secretary of State, Mr Milburn, said recently:


    "The Commission for Health Improvement and the National Care Standards Commission have very different functions. The Commission for Health Improvement is intended to act as an independent inspectorate for the National Health Service as a managed care system, which is what it is. The National Care Standards Commission has a quite different function. However, the honourable gentleman is aware, as my honourable friends are aware, that we introduced an amendment during the passage of the Care Standards Bill through the House to ensure that there is much closer co-operation and flexibility between the two commissions".

Indeed, the Minister said very similar things when he introduced his Amendments Nos. 20 and 22.

That is an entirely circular argument. The two bodies have been given different inspection functions because that is what Ministers have decided, not because there is any logic in doing so. While we welcome the shift of position by Ministers introducing a degree of flexibility as between CHI and the commission in the discharge of their functions, the new clause after Clause 8 neither guarantees the same level of quality between the NHS and the independent healthcare sector, nor a seamless system of inspection between them.

As we have all acknowledged, the cross-referral of patients between the two sectors is very frequent. The provision of private or independent healthcare has been debated on many previous occasions. Healthcare is provided in NHS private beds and paid for privately. Healthcare is provided in independent acute hospitals and paid for by the NHS. Healthcare is provided in independent acute hospitals and paid for privately.

What is so very different between clinical governance and patient management and treatment in the NHS and the independent healthcare centre? Why cannot one single body be responsible for their quality? After all, the commission, as the noble Earl pointed out, will be acting as a single inspection system for social care. What makes healthcare so different? Why cannot that be dealt with in a single body? Indeed, one of the results of the amendments being made today, which have already been agreed to, is that private and NHS dentists providing treatment under general anaesthetics will have a common system of inspection.

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For that reason, on these Benches we strongly support the Motion to insist on the original clause before us today, where, indeed, that original amendment was proposed from these Benches.

The case against the Government's new clause is that a wholly different set of standards and methods of inspection could apply between the two sectors as a result of it. It is as if the GMC's regime applied only to the NHS, and independent healthcare had a wholly different body. Where is the logic in that?

The Government have now shifted their position back to that taken by the original consultation paper, Regulating Private and Voluntary Health Care, which was published in June 1999, that a regulator might wish to contract with another body, such as the Commission for Health Improvement, in order to carry out local inspections. Yet progress back to that position in the form of the new clause has been painfully slow.

As I emphasised in all our debates last year and this year, on these Benches we have no particular axe to grind for private healthcare. However, we believe that every patient should have the right to common minimum standards of quality, care and safety, irrespective of the sector in which they are treated. My noble friend, Lady Nicholson, as is well known, has campaigned strongly on the issue.

All Ministers, including the Secretary of State, quoted earlier, have consistently recited the reason for not supporting the common system of inspection as being due to the difference between the regulation of the independent sector and the management of the NHS. Yet they have accepted that contracting can take place between the two bodies.

If the new clause is a genuine concession by Government, perhaps the Minister can say when it would not be possible or appropriate to have CHI carry out inspections of independent acute hospitals.

The original formulation of Clause 7 as it left this House had the merit of clarity and simplicity. The new clause has neither and could lead, as the noble Earl pointed out, to complete confusion about which body is charged with what. Patients might well fall foul of this confusion with a lack of accountability and responsibility. Clause 7 as it currently stands would enable CHI to monitor and ensure the quality of the services provided in both healthcare sectors and to identify and promote best practice wherever it may be found.

Common standards between the NHS and the independent health sector could then be ensured. CHI would be in a position to use the expertise gained from inspecting NHS services and facilities, and the same limited pool of expertise could be used in the independent healthcare sector.

The NHS and the independent healthcare sectors should be inspected by the national institution best suited to do the job, and to do it well. That institution

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is the Commission for Health Improvement. In its unamended form, that is what the Bill achieves. Co-operation is not enough; integration is what we seek.


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