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Lord Clement-Jones: Amendment No. 168 may be strangely grouped with the amendment tabled by the noble Earl, Lord Howe, but the common factor is to substitute "United Kingdom" for "England". The amendment deals with the limitations in Clause 15 as regards private health care. On reading Clause 15(1), the limitation of restriction to,


seems to be providing a loophole as regards the rest of the United Kingdom.

As I read the clause, it could be argued that an NHS foundation hospital could provide goods and services on a private basis for patients in Scotland and Wales—or, for that matter, overseas—but not for those in England and not be subject to any restriction or any power of the Secretary of State to prevent it. That seems to be a rather large coach and horses on which the Minister may care to comment.

Lord Roberts of Conwy: I rise to support my noble friend on the Front Bench and to express my concern about the interests of the people of Wales. My noble friend has put the case strongly; namely, the particular concern that those Welsh people currently served by English hospitals will continue to be so served.

However, we have further concerns arising from the fact that Wales is excluded from the NHS foundation trust concept. I have spoken briefly with Jane Hutt, the Assembly Minister for Health and Social Services, about this. She takes the view that the NHS in Wales is in the process of being reorganised on different lines and that further change is unnecessary at this stage. I can well understand her point of view; the NHS seems to be in a state of perpetual reorganisation.

Health commissioning in Wales is to be dealt with through our 22 local health boards, which comprise local authority representatives as well as health professionals. The local health board system is anchored in the idea of partnership and seeks to harness the powers of local authorities to healthcare promotion and appropriate provision. It represents a holistic approach.

The Minister is convinced that the different system that is to operate in Wales will work well and bring about much-needed improvements. I am bound to say that our inordinately long waiting lists in Wales, with over 5,000 people currently waiting longer than 18 months for hospital treatment, are certainly proof

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of the need for improvement. So I trust that the Assembly Health Minister is right in expressing the hope that the new system will work.

Nevertheless, the Welsh system was heavily criticised by Labour as well as Conservative Members as being overly bureaucratic when it was pushed through this Parliament and subsequently. It is not as directly geared towards obtaining better health outcomes as the foundation trust system appears to be. I accept that it is too early to pronounce judgment on the performance of the new system in Wales, but let us suppose that it does not come up to the Minister's expectations and that the NHS in Wales continues to perform below par. Of course, voluble expressions of regret will be made that Wales did not follow the English lead and embrace the foundation trust concept, especially since some 15 trusts are already in place. Some, I understand, are already envious of the new possibilities and independence opening up under this legislation for English trusts.

I believe that statutory provision could be made for major Welsh hospital trusts to achieve foundation status where that is patently desirable without unduly disrupting the local health board system. I seek to avoid the growth of the disparity between the NHS services available in Wales and those in the rest of the United Kingdom with no prospect, let us remember, of correction without fresh legislation being brought forward in Parliament.

The Government may say that all this is an inevitable consequence of devolution, but that, I suggest, is a dangerous argument. Devolution was sold to the Welsh electorate on the basis that public services would improve rather than deteriorate, but many would argue that, since devolution, the health service has deteriorated.

To reiterate, I think it would be a mistake to close off the possibility of establishing foundation hospitals in Wales and I therefore support my noble friend's probing amendment in the hope that the Minister may be able to give me some comfort.

Baroness Finlay of Llandaff: I rise briefly to support the amendment. The noble Earl, Lord Howe, has outlined eloquently the problems encountered by people from Wales. When this point was raised in another place, reassurances were given by the Minister. However, many people in Wales fear that those reassurances were not strong enough.

It may be extremely difficult to prove that patients coming from Wales to be treated within a managed clinical network for the provision of care are receiving anything other than equal care to that offered to patients arriving from England. If patients are made to feel that they are a bit of a nuisance simply because they have come from across the border, either that of Wales or of Scotland, that may be impossible to prove. Further, patients will be reluctant to complain about such attitudes because they will feel vulnerable.

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There must be enshrined in the legislation a principle of equity that is made very clear in law. Reassurances may not be adequate to deal with the subtleties of the ways in which people might be made to feel that they are unwelcome.

The Lord Bishop of Portsmouth: The longer that I listen to the speeches in this part of the debate, the more I feel that this amendment needs to be considered with care. I am particularly grateful to the noble Baroness for what she has just said about the difficulties in the present system.

Lord Warner: As the noble Baroness, Lady Finlay, has just pointed out, Ministers in another place have already given assurances on this issue and I sought to repeat those assurances as forcefully as possible in my remarks at Second Reading.

Clause 14(2) provides that the principal purpose of an NHS foundation trust must be the provision of healthcare services to NHS patients in England; services are to be provided according to NHS standards and principles free at the point of use. The powers set out in Clause 15(1) provide that the independent regulator can ensure that the requirement in Clause 14(2) is met, so I do not think that we have the loophole that concerns noble Lords.

It would be totally inappropriate to make the principal purpose of these new trusts the provision of healthcare across the UK. As noble Lords have pointed out, healthcare is a fully devolved area. The devolved administrations were consulted on the proposals on NHS foundation trusts and were content for them to be England-only bodies. I am surprised, therefore, to see amendments that seek to give responsibility in relation to foundation trusts across the whole of the United Kingdom. In effect, they would reverse devolution on healthcare.

If I have understood the noble Earl, Lord Howe, correctly, the amendments aim to ensure that NHS foundation trusts can treat patients from Wales and elsewhere in the United Kingdom. However, in our view that is unnecessary. Under Clause 14(1), all NHS foundation trusts must be authorised to provide,


    "goods and services for purposes related to the provision of health care",

including services to the NHS in Wales, Scotland and Northern Ireland. So this would be part of the authorisation from the independent regulator.

Where an NHS foundation trust provides cross-border services of the kind referred to by the noble Baroness, Lady Finlay, it is likely that that trust will continue to provide those services as before, provided that the local health board in a devolved administration area continues to contract with that NHS foundation trust. Ultimately, it is a question of whether the commissioning body wants to continue to receive services from an NHS foundation trust located, from the Welsh perspective, on the wrong side of Offa's Dyke.

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The regulator will not and should not be able to protect the provision of services to Welsh patients. That is a matter for the National Assembly for Wales, and the Bill tries to make that separation.

5.30 p.m.

Baroness Howarth of Breckland: The Minister has raised a concern in my mind which he may perhaps be able to clarify. I had always understood, and therefore was not concerned, that people in Scotland and Wales who needed specialist treatment—for example, for single ventricle heart conditions in children—could go to specialist hospitals within the foundation trust concept because many will be foundation trust hospitals. I was concerned when the Minister said that it will depend on the commissioning body. One of the concerns that I have about the whole set up is that the commissioning body may decide not to support this kind of specialist treatment. I seek reassurance that that is not so.

Lord Warner: The example given by the noble Baroness is no different from any other kind of specialist care. There is nothing in the Bill to stop NHS foundation trusts from continuing to provide specialist services from an England base to people from Northern Ireland, Wales and Scotland.

The point I was trying to make, without worrying the noble Baroness, is that on all these issues the commissioning authorities in the devolved administrations will have the ultimate responsibility for providing healthcare for their citizens. Where they get that healthcare from is a matter for them to decide in relation to the specialist services that are available across the whole of the UK—or, indeed, increasingly in future, possibly across the EU and elsewhere. Increasingly, there is no requirement always to get healthcare from within the UK.


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