§ 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 458 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 Both are currently regulated under the 1984 Registered Homes Act which is now badly out of date.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 459 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.)
My Lords, the noble Baroness has taken a great deal of trouble to set out the Government's 460 thinking on this amendment; as, indeed, she did in our earlier debates on Report. I should like to ex press my appreciation for that. What she has said undoubtedly takes us further forward. There was much in her speech which gives me cause to think that at least some of the points of principle that I and other noble Lords tried to articulate at earlier stages have not fallen entirely on deaf ears. Nevertheless, the amendment carried by your Lordships, which gave the Secretary of State power to extend to the independent hospital sector both the duty of quality and the remit of the commission for health improvement, reflected, I believe, some extremely important issues of principle. It was approved by a very significant majority of your Lordships and won the support of noble Lords from both sides of the House.
Although the Government have chosen to overturn that amendment in another place, their amendment bringing about that deletion has not been debated in another place by the whole House of Commons. It has only been debated in Standing Committee where the majority in the Government's favour was the narrowest possible one. If an amendment to a Bill is approved by your Lordships—especially one of this significance—I believe that the Government owe it both as a duty and as a courtesy to this House to allow the issue to be debated on the Floor of another place. The fact that this was not done is, I respectfully suggest, most regrettable.
I started with the thought that it would be by no means unreasonable of your Lordships to ask the other place to look at the Lords' amendment again. The logic of the case that it advanced remains clear. Day to day, the NHS and the independent sector work hand in glove; indeed, in many areas, the NHS would simply not survive without the ability to contract out to the private sector. In mental health, for example, 30 per cent of the beds in the independent sector are funded by the NHS. There are many thousands of doctors who divide their time between the NHS and private work. If the duty of quality is to apply to one part of the healthcare system in this country, it should apply across all parts of it.
From the point of view of the patient, there is no case whatever for seeking to draw artificial divisions between the NHS and the independent sector in terms of the standards of care that each should be delivering. Those standards, and the standards of clinical governance overarching them, should be consistent right the way across the board. If they are not, it is difficult to see how the Secretary of State's duty to safeguard and promote the health of the nation—that is to say, the nation as a whole—is being properly fulfilled. But that is the rub for this Government.
I would never accuse the noble Baroness of being ruled by dogma. Her message today was couched in balanced and reassuring tones. But those were not the tones of the press release that accompanied the publication of the consultation document on Tuesday. The headline says:Regulatory Body to Tackle Failures in Private Health Care".The release continues:Mr. Dobson said, `Today's document responds directly to widespread patient concern about poor care in parts of the private sector. The small number of people who go private deserve protection'".461 If that is what the Secretary of State believes this debate to be about, he really has lost the plot. But, of course, he does not believe it. He knows perfectly well that the concern of doctors and clinicians in the private sector is to see standards of care raised across the healthcare system as a whole. There is not a word in the press release to acknowledge that it is the private sector which has been campaigning for this regulation; not a word about the huge strides that it has made in establishing a coherent quality agenda alongside that being developed in the NHS.
"The small number of people who go private", in Mr Dobson's words, actually numbered 850,000 surgical patients in 1998. The total turnover of the private health and social care sector is £17 billion a year—a figure that includes 20 per cent of all acute elective surgery performed in this country. The truth is that the very existence of the independent sector is offensive to old Labour. If we want even more graphic evidence of that proposition, we need look no further than a recent statement by the chairman of the Health Select Committee in another place, Mr. Hinchcliffe. When asked to comment on doctors and other professionals who work in private practice, he replied:I hate the bastards, and you can quote me".That is the sort of mindset we are dealing with. That is why I approach the new consultation document with a degree of scepticism. The whole thrust of the document is to propose what might be termed a "bargain basement" system of clinical standards for the private sector—a safety-net approach rather than a proper, fully-fledged quality agenda. That was not at all the thrust of the amendment approved by your Lordships.
In deciding my attitude to this amendment, I need to ask the Minister a few questions. Does she accept the suggestion that this consultation document, even if it does not usher in the kind of level playing field of clinical standards that I have been pressing for, nevertheless opens the door to such a level playing field. In other words, will she confirm that nothing in these proposals stands in the way of the adoption by the independent sector of clinical governance arrangements on a par with those in the NHS?
To be positive about this document, it does at least open up as a possibility that a new independent regulatory body could contract with the commission for health improvement, as the noble Baroness mentioned, to carry out inspections. It also suggests that clinical and professional standards in the private sector could be the subject of regulations or a statutory code of practice. All that suggests that there could be a de facto, if not a de jure, unitary framework of regulation. That is what the independent sector wants. It wants to come under the wing of CHIMP and NICE. It wants better regulation. It wants nationally consistent quality standards. I am the first to recognise that there may be more than one way of achieving those aims and I look to the noble Baroness for some further reassurance.
§ Lord Clement-Jones
My Lords, the motives of these Benches in supporting the original amendment 462 were clear. Where healthcare and our hospitals are concerned, it seemed to us to be completely illogical and unfair that patients might be entitled only to minimum standards depending on whether or not they are treated in the NHS or the independent sector, or even whether or not they are an NHS or private patient in an independent hospital. Throughout the debates in both Houses our view has been that there should be consistency of standards between NHS pay bed units and independent hospitals and consistent standards when NHS and private care are provided alongside each other in independent hospitals, such as medium-secure psychiatric hospitals. We on these Benches believe that every patient should have the right to minimum standards of quality care and safety irrespective of the sector in which they are treated.
As we have seen from the consultation paper, which we read with considerable interest when it was published on Tuesday, the Government are moving towards consistent standards of clinical governance so that, for instance, suspensions can take effect in the independent sector on receipt of an "alert" letter. There is therefore a strong prospect of seamless clinical governance between the two sectors which we welcome.
Moreover, we on these Benches look forward to further moves. We look forward to a prospect of wider consistency of quality of treatment. While not agreeing with the precise mechanics suggested in the consultation paper, we welcome the commitments the Minister has given and some of the statements in the consultation paper, for instance the clear recognition of the inadequacies of the existing regulatory structure and the commitment to protect all members of the public, including private patients as well as patients in NHS hospitals. Further, we welcome a recognition that it is important that patients who choose to use the independent sector are reassured that they receive services that are safe. We welcome the further statements made today by the Minister explaining the paper, and the preference for a single regulator for the acute independent healthcare sector rather than putting him under the regional commissions. We believe that is at least a step in the right direction.
We also welcome the recognition that that single regulator of independent healthcare might well want to take advantage—and be able to take advantage—of the particular expertise of the commission for health improvement. We believe that there is considerable potential synergy between the responsibilities of that single regulator and the work of the commission itself. However, we believe that some further assurances are needed. For instance, we need the assurance that NICE guidance for doctors in the NHS on the treatments that they use can also be adopted by the new independent regulator, and that the independent regulator could also introduce all or part of the national service frameworks.
The Select Committee on Health in another place has carefully considered the matter, as the noble Baroness mentioned. However, we seek the assurance that if it recommends—it certainly appears to be moving in this direction—that a common duty of quality is extended across the two sectors, the Government will carefully consider that proposal as part of the consultation 463 exercise. We realise that the Minister cannot give an undertaking to provide legislative time to introduce a new system of regulation for the independent sector in the next Session but we hope that we have grounds for optimism on that score.
§ Baroness Carnegy of Lour
My Lords, the Government's response to this amendment which your Lordships have made to the Bill is to me both disappointing and also surprising because it seems to me an astonishingly out of date attitude to have taken to the way private medical institutions should be brought up to quality. I am sorry now that we did not have a separate amendment relating to Scotland. If I remember rightly, the debate was a fairly general one. I expected the Government's response to be rather different and that Scotland would be able to follow what was decided for south of the Border. But in view of the fact that there is nothing about Scotland here—that is of course understandable—I wonder whether the noble Baroness can tell us the way the wind is blowing on this subject in Scotland, if she knows that, and whether the Government have been talking to the Scots Parliament about the matter. I hope she can tell us whether any consultation paper will he issued in relation to Scotland because it seems to me that this is an urgent matter north as well as south of the Border. I would have thought that potential—
§ Lord Patel
My Lords, I thank the noble Baroness for giving way. I reassure the noble Baroness that as far as I am aware there is no bar to the remit of the clinical standards board for Scotland extending to the private sector. It is responsible for quality standards in Scotland. I speak as a chairman of the standards board.
§ Baroness Carnegy of Lour
My Lords, I am grateful to the noble Lord for reassuring me on this matter. He is a neighbour of mine and he knows everything about what happens in Scotland. However, I am not sure that everyone in Scotland is completely happy about this situation. However, perhaps those comments exonerate the noble Baroness from replying to my question. I apologise if I have wasted noble Lords' time.
§ Baroness Hayman
My Lords, I am grateful for those comments. I always believe in cutting out the middleman if necessary!
Serious issues have been raised today and were raised in earlier debates we have had in regard to regulatory standards and how we ensure the protection of patients without there being any of the artificial divisions to which the noble Earl, Lord Howe, referred. I hope that I can give some assurances that the Government are not being ideologically obdurate in these areas. What we have said—I have said this to the House on many occasions—is that we must ensure that the processes that we have in place to ensure patient protection, quality of care for patients and the safety of patients, are appropriate to the environment in which they are receiving care. The processes and the structures which are applicable within the NHS—a managed service—will be different from the structures and processes that are in place within the independent sector. That is the argument I have been trying to propose.
464 I say to the noble Earl that it is neither his fault nor mine that these issues were not debated on the Floor of the House in another place. I suggest in the gentlest of terms that if Members in another place had not decided to spend four hours debating the timetable Motion out of the five and a half hours that were available on Tuesday of this week, we might have been able to have a debate on these issues.
My Lords, I am most grateful to the noble Baroness for giving way. Is she suggesting that Madam Speaker in another place was not regulating the Chamber as she should have been, because if she is suggesting that it is a disgraceful thing for her to say?
§ Baroness Hayman
My Lords, I would never suggest that. Madam Speaker was active on these matters. I believe that the Opposition had to be called to order 21 times in the course of Monday's debate. However, the allocation of time as between the timetable Motion and other discussions was in the hands of Members. Fortunately such considerations do not apply in your Lordships' House and we can return to the substantive issues before us.
The debate has focused on standards of care and the quality of care that is available and is to be ensured for all patients. In our consultation document we propose that as part of the regulatory framework we would establish a range of standards that would apply either to all private and voluntary establishments or to a particular kind of establishment. These might be set out in regulations or in a statutory code of practice but it will be a responsibility of the regulatory body to make sure that they are delivered.
We believe that this is much more than a safety net approach and that it addresses one of the weaknesses of the current regulatory regime: that standards and inspections tend to focus on facilities rather than on the quality of care available to patients. We are proposing that standards might be developed in a number of areas which relate more closely to the care delivered and which ensure that, where appropriate, there are parallels with the protection that is provided within the NHS.
Perhaps I may give specific examples. At present, staff working in private and voluntary healthcare can be employed in private and voluntary hospitals as, for example, chiropodists or physiotherapists, without being properly qualified and registered. The Government believe that all private and voluntary hospitals should ensure that they employ only state registered staff, as is already the position in NHS hospitals. So here we are bringing in a parallel that will increase protection.
It is also important that patients, their relatives and carers should have access to a comprehensive range of information about services being provided in a hospital or clinic where they may be treated. The Government consider that this should cover clinical as well as non-clinical services. It might include information on staffing, facilities available and the range of services provided. We propose that the provision of information for patients should be one of the standards for the new regulatory system—again ensuring some sort of parallel with what is available elsewhere.
§ 6 p.m.
§ Baroness Masham of Ilton
My Lords, perhaps I may ask the Minister a question. There are assistants to physiotherapists who do valuable work both in the health service and in the private sector. It is well known that there are not enough therapists. It might be very serious if the private sector and the National Health Service were not allowed to employ such assistants, who work under a qualified physiotherapist.
§ Baroness Hayman
My Lords, I hope that I can reassure the noble Baroness that there is no intention that appropriate services should not be provided by staff who are not necessarily state registered within their profession. The issue is about protection of title, to which I am sure my noble friend Lord Morris of Manchester will respond. It is also about an assurance to patients that they are being treated by someone who, if he says he is a chiropodist, is indeed a state registered chiropodist. That is not to undervalue the assistance that can be given by aides both in the public and private sector, but it should be at the appropriate level and no one should be in any doubt.
The issue of the complaints procedure within the private sector has been raised. A number of patients have written to me about that issue. We propose that, as a condition of registration, private and voluntary healthcare establishments should be required to make available a complaints procedure to patients and their relatives. That procedure must allow, as does the NHS system, for independent review of both clinical and non-clinical complaints.
We also believe that providers in this sector should be required to publish information annually on complaints received and that patients should have the right to make representations to the regulatory body if they are dissatisfied with the way their complaints have been handled. This would give private patients access to a wholly independent mechanism comparable to that provided for NHS patients by the Health Service Commissioner.
The Government expect there to be appropriate standards set out for the care of vulnerable groups, including children. It is extremely important that staff working with children are subject to proper recruitment and vetting procedures, that appropriately qualified nursing staff are employed and that children are treated in suitable, preferably dedicated, facilities. Again, this is common practice in the NHS.
The noble Earl, Lord Howe, used the expression "a level playing field". We are ensuring that the areas where protection is given to patients in the NHS are also covered by an appropriate mechanism in the private and voluntary sectors. A good example of this concerns the issue of suspensions, to which the noble Lord, Lord Clement-Jones, referred. It is obviously not possible for an NHS employer formally and legally to suspend a doctor who is working for somebody else. But in terms of protection for patients it is important that other employers of that doctor are aware of the situation and are under an obligation to take appropriate action. That is what we intend to put in place.
466 I was asked specifically about ensuring that there were no obstacles to looking at and learning from the NHS in terms of overall quality improvement. I agree with the noble Earl that it would be quite possible. What we are doing on clinical governance is very open; we believe that it is the right thing to do. It would be appropriate for a private sector provider to take it into account and to adopt similar structures of clinical governance that would give reassurance to the regulatory body that it was taking appropriate measures to ensure high clinical standards.
In exactly the same way, the noble Lord, Lord Clement-Jones, asked me about the possibility of NICE guidelines proving of relevance to the regulatory body when in the course of its regulatory and inspection work it looked at quality standards in the private sector. Equally, existing clinical guidance, good practice or relevant sections of national service frameworks might be the common source of material drawn upon by the regulator of the private sector in implementing clinical governance, as it is by NHS trusts.
But we cannot import wholesale the system of one area into the system of another; they are designed for different purposes. We accept that we have a responsibility for fundamental standards—for example, in relation to staff qualifications and premises. Were there to be wholly inappropriate clinical practice by an individual clinician within the private sector, that would be a matter for the relevant professional regulatory body. Whether or not a particular procedure was an appropriate treatment to provide is not properly a decision for the Secretary of State. In areas where there is such doubt, the professional regulatory body must take precedence.
The professional standards of those bodies apply to individual health professionals regardless of where they work. That is another element of commonality between the two sectors. Good professional practice is good professional practice, whether within the NHS or the private sector. Doctors, nurses and other health professionals are bound by the same professional standards wherever they work. The drive to strengthen and modernise professional regulatory mechanisms, which this Bill underpins, will have a positive impact across the board.
I hope that I can reassure the House that the Government are happy to acknowledge that they have responsibility both for patients treated in the NHS and for patients treated in the private and voluntary sectors. The Government's responsibility for NHS patients are patently different. In that context, they are themselves the care manager and the provider of services. We need to use different mechanisms for the two sectors-a matter of horses for courses, if you like-but the underlying intention is to protect all patients and to ensure that the same high quality care is available for all patients.
As I said at the beginning, healthcare provision cannot be an unregulated, unmanaged free-for-all. We believe that all patients need to be confident that wherever they are treated they will receive care that is safe and of good quality. We are taking action to ensure that that is the case.
467 I hope that my explanation of the Government's thinking on these issues and our intention that the legislation for the commission for care standards should also cover the regulation of the private and voluntary sector will reassure noble Lords that we have made progress since our earlier debates.
§ On Question, Motion agreed to.