Andrew George MP: Extracts from the Health Bill Debate
Extracts from yesterday’s Health and Social Care Bill debate in Parliament.
Andrew George MP, (St Ives) (LD): I entirely endorse the Secretary of State’s point about the biased way in which the last Government advanced the private sector, but may I make a point about the changes that have resulted from the listening exercise? The Secretary of State has sought to reassure the House about Monitor’s role of integration and promoting collaboration. Would he be prepared to respond to, and perhaps even accept, amendments that I have tabled—for example, amendment 1226—which propose, I think reasonably and in a balanced way, that promoting the importance and the role of integration should be among the principal duties?
Mr Lansley: As we said in our response to the recommendations of the NHS Future Forum, we recognise the importance of integrating health and social care services—while concentrating on the needs of patients and their families—to the achievement of our aims. However, I do not believe that we would further those aims by changing Monitor’s name, as amendment 1225 suggests. Although I agree with the aims of my hon. Friend the Member for St Ives (Andrew George), we have an alternative approach.
Rather than making it explicit that the Secretary of State could impose requirements on commissioners in key areas through regulations, as my hon. Friend suggests in amendment 1209, the Bill proposes that commissioners should have clear statutory duties to reduce inequalities between patients, in relation to both access and outcomes. That is covered in clauses 20 and 23. Commissioners would also have to promote integration of services in carrying out those duties. That is covered in clause 20, which inserts new section 13M of the National Health Service Act 2006, and in clause 23, which inserts new section 14Y. Those clauses refer respectively to the NHS commissioning board and to clinical commissioning groups.
The Bill would also establish clear duties for Monitor to allow the integration of health care services and the integration of health care with other relevant services, including social care. We have already amended the Bill to make clear that Monitor should not promote competition for competition’s sake: this is all about quality. However, integration can only ever be a means to that end, not an end in itself. Integration, like competition, is designed to secure continuous improvement in the quality of services and a reduction in inequalities, as clauses 20 and 23 make clear.
Although I understand the point that my hon. Friend is making, I ask him to not to press amendments 1225 to 1228 when we reach the appropriate moment.
Andrew George: I entirely endorse the point that my right hon. Friend makes about the need to uphold standards and the role of Monitor in that respect. However, with regard to the Secretary of State’s response to me about the sustainability of essential services—acute emergency trauma centres—does he agree that Monitor must safeguard those services and not allow them to be eroded by the competitive environment in which they will operate?
Mr Dorrell: I agree that the sustainability of essential services—or, in the Government’s wording, the continuity of essential services—is a key role of Monitor. If I may interpret what my right hon. Friend the Secretary of State said, the patient’s interest is continuity of service, but not necessarily from the same provider for ever more. There has to be a commitment to sustain the service, and if there is to be a change of provider, the service has to be sustained through the change of provider, but the service does not necessarily have to be sustained by the same provider. Nor has there ever been such sustained service. There are not many people who rely on the service once provided by the Westminster hospital, as it is now a block of flats. I believe, however, that the service delivered to patients in this part of London is better as a consequence of the change that resulted from that decision.
Andrew George: I hope that the hon. Lady shares my disappointment that, despite the fact that we have debated this issue for four hours and that I have tabled nine selected amendments, I have not had the opportunity to explain the purpose of those amendments—even though the Secretary of State referred to them in his opening remarks. Does she accept, for example, that amendment 1207 relates to clause 58(3) and balancing competition versus anti-competitive behaviour? The other amendments seek to give integration a greater priority for the regulator to enforce.
Liz Kendall: I understand why the hon. Gentleman tabled those amendments and I understand his concerns. Opposition Members have consistently argued that the Bill threatens to pit doctor against doctor and service against service when they should be working together in the best interests of patients. Our view is that a far better approach than seeking to amend the Bill would be to delete part 3, because it is a fundamentally wrong
way to treat our NHS. A few small changes to Monitor’s duties would not alter what the Bill seeks to do, and that is why amendment 10 proposes deletion of part 3.
The Bill will guarantee that the NHS will be treated as a full market, and the providers of services will, for the first time, be treated as undertakings for the purpose of competition law. The Secretary of State said that the Bill would not increase the applicability of competition law, but the Minister of State confirmed it when he told the Committee:
“UK and EU competition laws will increasingly become applicable…in a future where the majority of providers are likely to be classed as undertakings for the purposes of EU competition law, that law…will apply.”––[Official Report, Health and Social Care Public Bill Committee, 15 March 2011; c. 718.]
If the Government wish to claim that that would not be the effect of the Bill, they should publish any legal advice they have taken. Again, we have two different stories. The Minister of State says that the Government have taken legal advice, but in answers to parliamentary questions we hear that the Government have not taken legal advice. Members deserve to know what the advice is about the implications of this Bill.
NHS staff, patient groups and members of the public have very real fears about the consequences of the Government’s proposals and the full market that is envisaged in the Bill. The previous Government saw that giving patients more choice and a greater say in their treatment, and bringing different providers into the system—including from the private and voluntary sectors—can bring real benefits, including improving outcomes and efficiency, especially in elective care. But we always did that using clear national standards that this Government are abolishing and with the ability to manage the consequences that choice and competition bring.
One of the problems with this part of the Bill is that it does not recognise what some hon. Members have talked about—the interdependency of services. If we remove one service from a hospital, it has a knock-on effect on others. The ability to get the benefits of diversity and competition without destabilising services is a tricky balance, but the Bill does not acknowledge that balance. I am not just talking about the clauses we are discussing now. The Government are also abolishing key organisations, including primary care trusts and, in particular, strategic health authorities, which have an important role in managing the consequences of choice and competition in the system. The two biggest challenges facing the NHS are to specialise and centralise some services in specialist hospitals and to shift other services from district general hospitals out into the community. These changes will have consequences for hospitals. The Bill will make the changes harder to make, and the clauses that we are discussing will prevent the kind of close working and involvement of patients, the public and elected representatives that we need in order to make these changes happen.
The clauses also have consequences and implications for taxpayers. We come to the issue of Monitor’s costs. Chris Ham, the head of the King’s Fund, the well-respected health think tank, wrote in a British Medical Journal article in February that
“the government’s proposals run the risk of replacing the bureaucracy of performance management with the red tape of economic regulation. Monitor will need to employ large numbers of economists,
lawyers, accountants, and managers to deal with competition issues, providers who fail, price setting, licensing providers, and other work.”
That is not just a risk; it is a reality. The Minister of State kept changing his position in Committee. Initially he told us that the costs of Monitor would rise from £21 million a year at present to £130 million a year, but he then revised that figure down to £80 million. Of course, however, because the Government have not bothered to publish their impact assessment for the Bill, we have no idea what the costs of setting up this huge new regulatory body will be. It is not just Monitor that will end up having to employ lawyers, accountants and managers; clinical commissioning groups in hospitals will probably need to do it too. They could even be forced to take out expensive insurance in case they are fined, taken to court or even sued because they have fallen foul of competition law.
It is for all those reasons that we are so concerned about the Bill: because we do not think that the NHS should be remodelled along the same lines as the privatised utilities; because we think that competition is not the panacea that the Government think; and because we think that there are very real risks that the legislation will stop hospitals working together and developing their own community services because it could be seen as anti-competitive behaviour.
I turn to Government new clauses 2 and 6 and the series of Government amendments on their new failure regime. It is important that we are clear from the start about the purpose of these amendments, even though we have had only a very brief time to look at them—none of the professional bodies, health experts or managers have had a chance to scrutinise them properly. The Government claim that they are about securing continued access to services for NHS patients. That is an admirable attempt to spin what this is about. In fact, it is a fundamental part of the Government’s plan to create a market in which more services will be likely to fail because that it is a way of getting new people into the system. That is the reality of what is happening. The future of local services and whether they will be allowed to fail will be determined not by local clinicians, not by local patients and the public and not by locally elected representatives—I shall explain to the Secretary of State in a moment why his own policies will not do that—but by the new economic regulator, Monitor. I do not believe that this is what people want for their NHS, and it is not supported by Labour Members.
We have heard a lot from some Government Members about how bail-outs and bungs to NHS services have to end. I would just say that many services have received money because we want those services to continue. In my own constituency, Leicester hospitals are facing challenges and problems, and it would be useful to know whether, if their current £11 million deficit was covered by money found within the local health economy, it would be considered a bail-out or bung that would not be allowed under this system. I would be interested to hear from the Secretary of State whether that would be the case. Some Members will have an entire hospital in their constituency at risk of failing financially. We know this because Sir David Nicholson, the chief executive of the NHS, told the Public Accounts Committee on 25 January that there were 20 failing trusts—trusts that cannot become foundation trusts. I have asked the Minister repeatedly for a list of these trusts so that hon. Members who have patients who use those hospitals will know which ones they are and what the Government’s plans for them are. Once again, however, the Government have failed to be open about that, which is a mistake because difficult changes can be made only if the Government genuinely engage with patients, the public and Members of the House on the decisions being taken.
The Bill also proposes removing the ability for foundation trusts to revert to NHS status and the ability to transfer assets and staff from the NHS, including to the private sector. Far from ending cherry-picking, as Government Members claim, it allows Monitor to vary prices for NHS services, including to private providers. That is what these new amendments state. The Government have made much of their claims to the Future Forum that cherry-picking will be ended. We did not get to discuss the cherry-picking amendments, and the new amendments now allow Monitor to do just that, which is a matter of great concern. These issues have not been scrutinised by doctors, nurses, managers, other NHS staff or local councils—and not even by the economic regulator, Monitor, which is running the process, or the Future Forum. It will therefore fall to Members of the other place to ensure that they hear the views and concerns of those bodies when they are scrutinising the Bill.
The situation is even more concerning because of the Government’s poor track record—that is a polite way of putting it—on this issue. They got it badly wrong the first time round with their proposals for Monitor to designate which services are essential for patients and which would be allowed to fail. In the first Bill Committee, we argued against designation because it failed to ensure proper local democratic accountability; because it failed to understand that allowing one NHS service to fail would have a knock-on effect; because it failed to recognise the in-depth local knowledge required to make these decisions; and because it was a cumbersome and bureaucratic process. Above all, we argued that the process was wrong because it should be driven not by the economic regulator, Monitor, which is unelected and unaccountable, but by local people, patients and staff. The Government refused to listen, denying that any of our concerns were valid. I am glad that when the Future Forum made the same arguments as Labour Members, the Government put aside political prejudice and agreed to delete their designation clauses. However, they are making the same mistakes again. The new failure regime will be driven not by clinicians but by the economic regulator, Monitor. It will not give patients and the public a strong voice and it will not ensure effective local democratic accountability.
In reality, Monitor will take the lead in deciding which services are essential for local people and therefore whether they should continue in any form; whether and how it should intervene to try to prevent services from failing; and, if a service cannot improve and needs to close, what will be put in its place. The NHS Confederation says in its briefing for this debate:
“under these proposals Monitor will make fundamental decisions affecting the sustainability and future of individual services…the pattern of local NHS provision and we are concerned that it is unclear how Monitor will take decisions and how it will be held accountable.”
Andrew George: I will be as brief as I can—there is no pressure on me. I tabled nine of the amendments in this group, and I had hoped to spend a little more time on them than I have this evening. I accept new clause 2, which I shall be supporting; the purpose of my amendments is primarily to rearrange the deckchairs on the Titanic, so that they do not get in the way of the lifeboats. I am happy to support new clause 2, although I have already made clear my views on the Bill and the general direction of the Government’s policy. I am not persuaded by many aspects of the Bill; indeed, I am very unhappy about them. I was very persuaded by the coalition agreement and felt that the balance of policy proposals in it was pretty much right. There were a number of debating points about the role and dynamics of “any willing provider”, but apart from that, the themes were absolutely right. However, they were not reflected in the White Paper.
That said, the purpose of my amendments—the right hon. Member for Holborn and St Pancras (Frank Dobson) articulated this point far better, I am sure, than I am about to—is primarily to ensure that Monitor’s role to ensure that anti-competitive behaviour is kept in its box is balanced by looking at the impact of competitive behaviour that might undermine the ability of NHS services to collaborate.
The underlying purpose of amendments 1207 and 1208 is to neutralise or balance the new duty on Monitor to prevent anti-competitive practices that are against the interests of the people who use the services—in other words, patients—by also applying a duty to prevent anti-collaborative practices that would have the same effect. The Government say that that would result in Monitor preventing all practices that were against the interests of patients, but I disagree. Some unsafe practices would be neither competitive nor anti-competitive. The amendments would result in there no longer being a focus mainly on dealing with anti-competitive practices. I believe that that would strengthen the role of the regulator. This is a question of putting competition in its box, and it is important to ensure that it is put properly in its box, properly defined, and that the lid is put on. The purpose of the amendments is to achieve that outcome.
The Secretary of State told me, in response to an intervention relating to amendments seeking to secure a far better ability for Monitor to regulate the integration of services, that it should not be Monitor’s role simply to sustain services that are presumably unsustainable. The problem with that, in relation to my amendments 1205, 1209, 1229 and others, is that we need to ensure that we sustain the essential services. The important point here, which others have articulated, is that certain services clearly need to integrate. An example is acute emergency trauma centres. If the orthopaedic, paediatric or ophthalmology services were removed from such essential centres, their ability to deal with a wide range of emergencies would be fundamentally undermined. They serve populations of between 250,000 and 500,000 people—sometimes more—and they are absolutely essential. We must ensure that we do not end up with a regulator that allows them to be undermined by imposing a duty on them not to act in an anti-competitive manner.
The purpose of the amendments is to probe these issues, but the Government have made it clear that the NHS will no longer be the preferred provider, which
leaves a question mark over the future of those essential and acute services. I will sit down now in order to give the Secretary of State more time than you requested for him, Madam Deputy Speaker, but I want to emphasis that I shall support the Government’s new clause. My amendments are probing amendments, but I wish that we had more time to debate these issues. This is very frustrating.
Mr Lansley: I am grateful to my hon. Friend the Member for St Ives (Andrew George) for the additional time, and I appreciate what he said in his speech. On securing continuing access to essential services, we are in exactly the same place. If a service is essential, it will be the responsibility—and, indeed, the objective—of the commissioners of that service to make it clear that they expect the regulator, or the administrator on the regulator’s behalf, to secure access to those services.
That was one of the three points that the hon. Member for Leicester West (Liz Kendall) mentioned. I thought that she made rather a good speech, but its basic premises were flawed. She also said that Monitor would be responsible for making decisions on what happened to services in the event of a failing or failed provider, but that is simply not true. The whole point of this group of amendments, including new clause 6 and amendments 198 and 199, is to make it clear that commissioners will lead in those circumstances. The proposed structure in the event of failure, through the administrator and the regulator, must be led and approved by the commissioners, who will be clinically led. The fact that the hon. Lady can look at the consultation with, for example, clinical advisors and clinical senates, does not preclude the fact that it will be local clinicians leading the process. Nor does it preclude the fact that local authorities will have an opportunity to intervene, through the scrutiny powers that the amendments will bring in. Indeed, even the Secretary of State will have the opportunity to intervene. It will not simply be a matter of Monitor doing this; the process will be led by commissioners and clinicians, and local people will have the opportunity to intervene.
The hon. Lady also mentioned competition. The Labour party seems somehow to have turned against competition, in a complete shift from where it was in 2006. My hon. Friend the Member for Southport (John Pugh) said that we were bringing in Blairite health reforms-plus, but I think that we are doing something altogether more coherent, purposeful and positive. I would far rather that the comparison involved the focus on quality that the noble Lord Darzi brought in when he was a Health Minister. In so far as Mr Blair pursued these objectives when he was Prime Minister, I think that we are doing it much better.
The amendments, and the Bill, will not allow discrimination in favour of the private sector in the way that the last Labour Government did. We are going to stop that. We are going to stop cherry-picking, because variation in price could not be by virtue of the specific characteristics of the provider. Clause 58(10) makes it clear that Monitor cannot discriminate in favour of the private sector. When the hon. Lady’s predecessor as
Member for Leicester West, a previous Secretary of State, set a target for the private sector’s proportion of activity in the NHS, she was wrong. We are not going to do that. The only objective is to secure providers that deliver the best quality for patients. That is what we are all about.
I am grateful to other colleagues for their contributions to the debate, to which I cannot do justice. My hon. Friend the Member for Boston and Skegness (Mark Simmonds) asked whether commissioners would lead improvements in quality. The commissioning board will sort out disagreements, monitoring the commissioners, and together they must draw up plans to deal with providers that have failed.
My hon. Friend the Member for Southport asked whether Monitor or the Office of Fair Trading would deal with mergers. If we were to decide that it should be Monitor, the OFT would still have jurisdiction through its merger regime, so we would be duplicating that regime. I can assure my hon. Friend that, when the OFT is involved in any FT mergers, it will seek sectoral advice from Monitor, and that patient’s interests will always be central to the considerations during the merger.
The hon. Member for Easington (Grahame M. Morris) and other Labour Members were going on about the takeover of failing hospitals by foreign companies. Let me make it clear to them that the last Government, in the National Health Service Act 2006, enabled the franchising of an NHS trust to a private company. That is the legislation under which the last Government initiated the franchising of management at Hinchingbrooke hospital. The last Labour Government then passed legislation in the form of the Health Act 2009, which would have enabled exactly the same thing to be done for foundation trusts, following de-authorisation. Our proposals would specifically prevent that, because we prevent de-authorisation in that way and we are withdrawing the 2006 legal framework for NHS trusts, which, in the long run, of course, will cease to exist.
This group of amendments is part of ensuring that the NHS is and always will be there when we need it. Through this Bill, we will strengthen our confidence in continued access to the services patients need. By contrast, the Opposition would leave the NHS stranded; they would take it back; they are by turns reactionary and opportunist. I invite the Opposition to withdraw their amendments and, if not, I invite the House to reject them. I understand the positive intentions of my hon. Friends who have tabled amendments, but I also ask them to withdraw them. Strengthened by our continuing commitment to listen and to respond, I invite the House to agree to the Government new clauses and amendments.
Madam Deputy Speaker (Dawn Primarolo): With this it will be convenient to discuss the following:
New clause 22—Private health care: rules—
‘(1) Section 44 of the National Health Service Act 2006 (Private healthcare) is amended as follows.
(2) Insert new subsection (A1) as follows—
“(A1) NHS Foundation Trusts must act in accordance with the following rules when carrying out their functions under this section—
(a) NHS Foundation Trusts are not permitted to operate NHS functions or contracts in a manner which promotes their private healthcare operation;
(b) any private healthcare service offered should only be within the provision of the services and procedures which are not also duplicated by the Trust’s NHS functions or contracts; and
(c) the Trust should at all times operate any private healthcare interest in a manner which in no way conflicts with its responsibility to provide unfettered access of its NHS patients to its NHS services.”’.
Amendment 1165, page 159, line 24, leave out clause 168.
Andrew George: The new clauses deal with a totemic issue that has bedevilled the debate throughout and raised concerns. The question whether to raise the cap or leave it where it is is a ham-fisted reaction to our current situation in the Report stage of a re-committed Bill. There should be an opportunity for further consideration, and I hope the issue will be examined in another place.
There has been much hyperbole about the privatisation of the NHS and other themes that have run through the debate. The general concern is that, as a result of various genies being let out of bottles and caps being lifted, we will end up with an NHS driven more by concern with private profit than by concern with matters of patient care. There is a slippery slope, of which that issue is symptomatic, throughout the Bill.
The purpose of the new clauses is to address that issue and retain the cap to ensure that the matter is kept under appropriate control. The rough and tumble of political debate means that we will end up scoring points off each other and asking who introduced foundation trusts and so on. We have been through that playground before and I do not intend to go in that direction, but I want to make sure that we have an opportunity to explore the matter. We do not have much time so I will not detain the House unnecessarily.
The removal of the cap will give more scope for NHS trusts to compete in the market, which will make them more likely to be considered undertakings for competition law purposes, even in respect of NHS services which the hospitals claim their private work subsidises, thus allowing competition law to reach further and more firmly into the NHS. The Government briefing does not even dispute that fact, as far as I can see. Also, if NHS foundation trusts can muscle in on the private market, rather like the BBC, private providers will feel more justified in arguing for the right to compete for far more NHS services, and the courts may well agree.
New clause 19 recognises that pay beds in the NHS represent a challenge, both ethically—it is about how beds can be reserved for paying patients in the same hospitals where poorer patients with higher needs must wait—and with regard to competition law. It would phase out the reserving of beds for paying patients in NHS hospitals by 2015.
New clause 22 would put a bar on foundation trusts offering private services where that would compete with their NHS provision. I certainly know, having undertaken surveys of the NHS 12 years ago, that the specialties with the longest waiting times—I will not say which, but Members might guess—happened to be those in which the most private practice was going on. One might argue that the private practice resulted from the long waiting times, but the long waiting times could have been part of a system that enabled the private sector to flourish. I fully accept—to save the Minister a lot of time in his response—that the new clause is technically very deficient, so I will not press it to a vote, but I want to express my concern and probe the issue in debate.
I know that there are ethical considerations here and that the General Medical Council and others would not only frown on the kind of practices I am implying might go on, but would rule against them. The concern is that the trusts, or those working for them, might be seduced into behaving in ways that drive their NHS patients into the arms of their private wings. Once we go down that road, many conundrums will arise and will need to be sorted out. I do not believe that the Government entirely have a handle on the issue, which is why I believe that simply lifting the cap, despite all the justifications they have given, needs a serious rethink.
I do not question Ministers’ intentions, which I think are honourable, but I do think that they have the wrong policy. I do not think that they, as some claim, want to push privatisation across the NHS, but I do think that this could end up being a catastrophic policy that unleashes something that, once it goes through, we will be able to regret at our leisure. On that basis, I simply
wanted to raise these matters and ensure that we have an opportunity to debate them, primarily for the purposes of probing the issues.
Mr Simon Burns: I am grateful to my hon. Friend the Member for Cornwall—I mean the hon. Member for St Ives (Andrew George)—for moving the new clauses and amendment, especially for the constructive and reasonable way in which he did so. He raised several issues and, if I understand him correctly, he sees the amendment as a probing amendment that also puts across several of his concerns about this issue. I hope to deal with the main thrust of his concern in my contribution.
I am also grateful to the hon. Member for Islington South and Finsbury (Emily Thornberry) for her contribution. Her amendment and indeed her comments were more controversial and I have far more disagreement with several of the contentious things that she said, although she will be unaware that I am saying that because she is not listening. She might argue that she is not missing much.
I shall start with a fact. It may have got lost in the telling, but I assume that the hon. Lady realises that there is no cap at the moment for NHS trusts. There is only a cap for foundation trusts. She has not seen the difficulties that she forecasts in NHS trusts, and I hope—although I am not confident of success—that I will convince her that her fears are unfounded.
The Government believe that keeping the cap would damage the NHS and patients’ interests. Removing it would allow foundation trusts to earn more income to improve NHS services, and I will address the safeguards that will be in place to ensure that the armageddon that the hon. Lady predicted will not happen and that my hon. Friend’s concerns are needless.
Removing the cap will enable foundation trusts to earn more money to improve NHS services, and those trusts are telling us that they must be freed from what is an unfair, arbitrary, unnecessary and blunt legal instrument. I do not want to go too far down memory lane, but I must remind the House that there was no intellectual case for bringing in the cap in the first place. It was introduced in 2002-03 in the relevant legislation as a sop to old Labour. The right hon. Member for Holborn and St Pancras (Frank Dobson) says that he has moved on, but he still has the Neanderthal tendencies of old Labour—[ Interruption. ] Before the Opposition Whip says anything, I should point out that the right hon. Gentleman takes that as a compliment. I am being very nice to him and probably enhancing his street cred. He would not thank the Whip for diminishing that.
The point is that the cap was not brought in after some coherent intellectual argument about protecting the NHS or preventing private patients from overrunning the NHS. It was brought in because the then Health Secretary, Alan Milburn, and the then Prime Minister, Tony Blair, were having considerable problems with some of their Back Benchers on this issue. To avoid a defeat on the Floor of the House, they brought in the cap as a sop to those Back Benchers to buy them off. But it was not introduced consistently for both NHS trusts and foundation trusts—just for the latter.
The cap is arbitrary and unfair. Several NHS trusts that are not subject to the private patient income cap have private incomes well in excess of many foundation trusts. Last year, four of the top 10 private income earners were NHS trusts—that is, without a cap. A few FTs have high private incomes simply because they did a few years ago. The cap locks FTs into keeping private income below 2002-03 levels and means that last year about 75% of FTs were severely restricted by caps of 1.5% or less. Meanwhile, patients at the Royal Marsden benefit from its cap being 31%, and it has consistently been rated as higher performing by the Care Quality Commission.
Andrew George: The Minister is making an interesting point. Will he elaborate further on the proportions of the private work to which he refers? Is that private work for private patients or private work for research, innovation and training, which are important functions of hospitals but are often lost in the debate?
Mr Burns: The hon. Gentleman raises an important point, but the simplistic answer is that it is a combination of both.
The cap is unnecessary. I remind Opposition Members that the original proposal was not to have one. To suggest that NHS patients would be disadvantaged if the cap was removed, as the hon. Member for Islington South and Finsbury did, is pure and simple scaremongering. Existing and new safeguards will protect them. NHS commissioners will remain responsible for securing timely and high-quality care for NHS patients. The Bill will make FTs more accountable and transparent to their public and staff, allowing us to require separate accounts for NHS and private income and giving communities and governors greater powers to hold FTs to account in performing their main duty, which is to care for NHS patients.
Chris Leslie: Will the Minister give way?
Mr Burns: No, because others want to speak.
I can assure the House that FTs will retain their principal legal purpose—to serve the NHS. This means that the majority of their income will continue to come from the NHS. With no shareholders, any profit they make will have to be ploughed back into the FT, and so will support that purpose of caring for NHS patients. The vast majority of FTs have little, if any, potential to increase private income, never mind the desire to do so. For them, NHS activity will remain the overwhelming majority of the work they do, if not all of their work. It is extremely unlikely that even the most entrepreneurial FTs with international reputations would seek to test the boundaries. Their commissioners, public and NHS staff governors would hold them to account in fulfilling their duties and serving their NHS patients.
For these FTs, however, the cap is a blunt instrument that harms NHS patients. FTs tell us that there is potential to bring extra non-NHS income into the NHS, for example, by developing the NHS’s intellectual property, from innovations such as joint ventures and by using NHS knowledge abroad. Additional demand and income can help organisations to bring in leading-edge technology faster, including in the important area of cancer treatment. I hope that that goes some way to helping my hon. Friend the Member for St Ives. Opposition amendment 1165 would harm the NHS, and new clauses 19 and 22 would stop FTs providing private health care altogether. Many of the other protections proposed would be almost as damaging and reduce income.
We want to ensure that safeguards are appropriate, not harmful. For example, a prohibition on FTs offering privately the same services that they offer on the NHS would rule out most of their current private health care. It could even create perverse incentives to stop providing some services for some NHS patients. We are confident that private income benefits NHS patients. On reflection, we are proposing to explore whether and how to amend the Bill to ensure that FTs explain how their non-NHS income is benefiting NHS patients. We will also ensure that governors of FTs can hold boards to account for how they meet their purpose and use that income. I believe that that is an important move forward.
Simon Hughes (Bermondsey and Old Southwark) (LD): Will the Minister give way?
Mr Burns: I hope that the right hon. Gentleman will forgive me, but I will not give way, because other hon. Members wish to speak and the debate finishes in 20 minutes.
To my mind, the private patient cap and the proposed new restrictions are both unnecessary and damaging. Indeed, I know that this will drive some Opposition Members potty, but the former Labour Minister responsible for the cap, Lord Warner, repented his sins in the other place, describing it as
“wrong and detrimental to the NHS.”—[Official Report, House of Lords, 12 May 2009; Vol. 710, c. 936.]
I urge Opposition Members not to repeat that mistake and to heed Lord Warner’s advice. I appreciate that the Opposition Benches are not full of champions of Lord Warner—particularly not at that end of the Chamber from which we heard the earlier comments about him—but he is a respected former Labour Health Minister and I would suggest that he knows what he is talking about.
Let me deal briefly with two final points that were made by the hon. Members for Islington South and Finsbury and for St Ives about the safeguards that are in place to offer protection and ensure that NHS patients would not lose out with the removal of the cap. First, the NHS commissioning board and clinical commissioning groups would be responsible for ensuring that NHS patients are offered prompt and high-quality care, and that good use is made of NHS resources, whoever provides care, through robust contracting arrangements. NHS patients will also maintain their right in the NHS constitution to start treatment within 18 weeks of referral. Secondly, as foundation trusts do not have shareholders and cannot distribute surpluses externally, and as their principal legal purpose will remain to serve the NHS, all proceeds from non-NHS work would be reinvested in the organisation, ultimately adding to the level and quality of the NHS service.
The Bill will make FTs more accountable and transparent to their public and NHS staff. Our commitment that FTs will produce separate accounts for their NHS and NHS private-funded services—as well as Monitor’s use of its regulatory powers to ensure a level playing field between providers—will also help to avoid any risk of NHS resources cross-subsidising private care, thereby protecting NHS money. I believe that those five safeguards will protect NHS patients and the NHS, and will not lead to the situation that the hon. Member for Islington South and Finsbury described in her speech.
Andrew George: It is a pleasure to follow the hon. Member for Kingston upon Hull North (Diana Johnson), but I do not think she did herself or her party any favours in trying to persuade my Liberal Democrat colleagues and me to follow her or her party’s lead by launching a completely unacceptable attack on my hon. Friend the Member for Southport (John Pugh).
The Minister seemed to be trying to win me over by describing me as “the hon. Member for Cornwall”. His description stimulated my Cornish imperialist tendencies, and I was tempted to change that to “Cornwall and bits of England”. However, I shall leave it for another Bill, perhaps one relating to boundary reviews.
In his response, the Minister said that the cap was a “blunt instrument”. I acknowledged that in my opening remarks: it is indeed a blunt instrument, which does not achieve what I think we all want it to achieve. However, although the current situation is not satisfactory, nor is the proposal to lift the cap. That too is a blunt instrument, as was made clear by many speakers this evening. I do not think the Minister entirely acknowledged that this is a conundrum that needs to be resolved. As I have said before, the Government are right to address the issue and are doing so with the best of intentions, but they have come up with the wrong answer. Indeed, lifting the cap is not an answer at all. Further work is needed, and deleting clause 168 would be a good start.
As I have said, mine are probing proposals. I will support amendment 1165, but I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.