Motion Moved on Consideration of Commons Amendment No. 20 20a

– in the House of Lords at 10:00 pm on 18th July 2000.

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Photo of Earl Howe Earl Howe Conservative 10:00 pm, 18th July 2000

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".

Photo of Earl Howe Earl Howe Conservative

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.

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 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.)

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat 10:30 pm, 18th July 2000

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.

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 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.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I believe that there should be minimum standards in all hospitals, be they NHS or private, and that they should be inspected by the same body. There should be standards of infection control in all hospitals. I am sure the Minister knows that many bank and agency nurses and doctors work between NHS and private hospitals. Therefore, infection control standards should be the same. Good standards must be laid down.

I am sorry to say that I have first-hand experience of a private hospital in Leeds in which my husband had to be treated as the local NHS hospital did not have an endocrinologist at that time. After six days in the private hospital, I discovered that my husband had not had a wash. When I inquired why, a representative of BUPA told me that it would hold an inquiry. The answer came back that he had not asked for one. When patients are ill and disorientated, they do not ask. I had taken for granted that ensuring that patients were washed was part of good nursing procedure and care.

At the same private hospital, my husband was discharged on a Friday with a painful thrombosis in his leg. The nurses had taken no notice when he told them about it. The consultant whose care he was under was attending a conference. My husband was then admitted to the local NHS hospital as an emergency on the following Monday. In your Lordships' House, we have a Minister who understands the need for good care standards, and there are noble Lords on all sides of the House who use private hospitals. NHS patients are sent to private hospitals for various reasons. Patients are patients, wherever they go. All patients should be protected by standards of care enshrined in legislation. Therefore, I support the amendment moved by the noble Earl, Lord Howe.

Photo of Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne Liberal Democrat

My Lords, the Minister has worked extremely hard on this Bill. I am very grateful that in the Queen's Speech in November of last year, the regulation of private hospitals was included in the package of legislation which this Government were willing to tackle. I thank him most sincerely for that. But the gravest weakness of this Bill, as other noble Lords and I perceive it both this evening and before, is that despite the Minister's clear and accurate statement that he seeks proper regulation and standards for private healthcare, there is nothing at all on the face of the Bill about clinical or administrative standards of healthcare. Not even the most minor point is deemed worth while to place on the face of this important piece of legislation dealing with healthcare. For example, there is no demand that internal complaints procedures in private hospitals should be triggered by patients as of right. Many of us have had experience that this does not happen in private healthcare. There is no statement that there should be enough staff to perform particular procedures or to staff particular wards. There is no demand that the staff should be qualified appropriately for the tasks which they are being asked to carry out. Nor even is there a statement saying that advertising for private hospitals should be screened and monitored; or that inaccurate advertising, which is often the case now, should not be allowed. In addition, there is the irony that we are talking about taxpayers' money. Many of these private hospitals are registered charities. A handful are even under royal charter. No standards of care are on the face of the Bill. The Minister told us this evening that the consultation body will take care of that. I wonder why, therefore, he has assembled a consultation group to advise on the drafting of the rules and regulations of a Bill which is dominated by private hospital groups and medical bodies, many of which are responsible for the series of tragedies which led to the Bill coming about in the first place. I remind the Minister that there is no representation from genuine patients and victims' groups; those who like many of us here tonight, have personal experience of the effects of iatrogenic injury. Action for Victims of Medical Accidents, for example, could and should be invited to form part of the consultation group. There are a few representative groups on this consultation body. Patients are represented by, for example, the National Health Service Confederation; the Association of Community Health Councils for England and Wales; the Patients Forum; the Council and Care Group and the Consumers' Association. However, these are not patient groups in the way that APROP and AVMA are. AVMA has a patient helpline and deals directly with patients who have been victims of iatrogenic injury in all the areas which the Care Standards Bill addresses. Tonight, the Minister said--I think I heard him correctly--that because the National Institute for Clinical Excellence is included as part of the consultative group, he has covered the ground to which I refer. But what we need are the real patients. Indeed, the consultation group will consult for 12 months. In other words, without anything on the face of the Bill, we are being asked to buy the Bill blind. I do not think that this is good enough. Many of us on this side of the House and, I believe, on the other side of the House, do not think that is good enough. That is why, in March of this year, we tabled the amendment which took the last resort of requesting the Minister to have at least a single body to monitor standards and to drive up standards of care in all our healthcare providers, public or private. That was a last resort. The Government will not do that either. I cannot understand this ministerial anathema to improving the standards of healthcare in the private sector. It is not like private education. In private education, which the Government do not much like either, children go to different schools, fee-paying or state. It is not the same in the medical world. The patients are the same people. We have learnt bitterly that they are the same people. They go to the ITU unit in the National Health Service just the same. For part of their treatment they use public health and, for part, to private hospitals. The consultants are the same people; they just happen to work in the private sector after hours. The nurses are the same people. They move from one health sector to the other. The training is the same. The National Health Service has been providing the training for everybody. The machinery and equipment are the same; except that in the public health sector there is probably more of it, just as in the public health sector there are teams of medical people, not just one, two or three. It is extraordinarily difficult to see why the Government maintain this ideological division, as healthcare knows no boundaries, save those drawn by money. Why is it, therefore, that the Government are so deeply unwilling to grasp the obvious, to move forward and to provide a proper standard of excellence for all patients throughout the United Kingdom and all sectors of health, irrespective of whether the patient pays at point of need for their treatment or it is paid for through the taxpayer? It is sad to see that a recent survey showed that three-quarters of the people of the United Kingdom had no confidence that the Government could adequately run the National Health Service. I have the greatest confidence that the National Health Service will continue to provide the healthcare for all our people for most of the time that they have medical need. But inevitably private healthcare will come into play, if only because many people in the private healthcare sector wish to make a lot of money out of healthcare provision. I urge the Government to take the decision not to move ahead with this amendment tonight; but to support the amendment of the noble Earl, Lord Howe, and go with the flow that this House offered the Government last time we debated this issue and to allow patients at least a common standard of excellence through a common body.

Photo of Lord Laming Lord Laming Crossbench

My Lords, I find myself in complete agreement with all the previous speakers on this subject. It was well captured by the noble Baroness, Lady Masham, when she said that patients are patients wherever they are treated. Because all the points have been made so well, I shall be brief, save to say that, because the Government adopted the stance that they have over CHI, they have now brought forward what seems to be a pragmatic solution. However, I regret that I do not believe it will serve the best interests of patients or their carers. We have spent a long time in this House talking about the difference between the skills and expertise which are necessary to monitor the quality of healthcare services wherever they are delivered and those experiences and qualities that are necessary to inspect social care. Mention has already been made of the fact that the Government said that they have no objection to a greater use of the private sector, though for myself I prefer the NHS not to need that. However, it makes the point that nowadays patients move so easily between the different sectors that there needs to be a single organisation which is responsible for setting the standards and monitoring them across the whole of the healthcare services, wherever they are delivered. Amendment No. 22 blurs the distinction between the Commission for Health Improvement and the National Care Standards Commission. Of course it is right that those two organisations should collaborate and co-operate in the carrying out of their different activities. It may be that their interests coincide at some points; but they do not overlap. Encouraging co-operation should not be seen as meaning that those two activities can be regarded as being interchangeable. I believe that we are in danger of confusing the lines of responsibility; of blurring accountability and, at the end of the day, it will be the patients who will suffer. I hope that, even at this late stage and at this late hour, the Government will pause for further consideration and think again before pressing these amendments.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, this has been a good debate. I listened with great care to what noble Lords had to say. But I am not persuaded. I believe that the Government's case throughout our debates has been absolutely clear and logical. I listened to the noble Lord, Lord Clement-Jones, as he repeated the words of the Secretary of State, Alan Milburn, and found myself wholly in agreement with what he said. The specific and clear point that we are making is this. First, we want effective regulation of the private and voluntary healthcare sectors. I accept the points made by the noble Baronesses, Lady Nicholson and Lady Masham, about issues in relation to the private sector. But the provisions in this Bill will undoubtedly allow for a much more effective regulation of the private healthcare sector than we have ever had before. It will be consistent. Instead of 100 different health authorities doing the same job, in many cases in a rather inadequate way, we shall have consistency throughout the country. Secondly, the Bill is so drafted as to allow much more focused regulation in relation to private hospitals than the existing legislation has ever allowed. Existing legislation has been very much built around nursing homes rather than the specific needs of private hospitals. I believe that the regulation will be improved by the much greater emphasis in these new arrangements that will be given to the quality of what is provided in those establishments. I should point out to the noble Baroness, Lady Nicholson, that, although she is disappointed as regards what appears on the face of the Bill, I believe that Clause 21 (which sets out the regulations that, in themselves, will set the context for national minimum standards) allows for the issues she has raised relating to quality and staffing to be very effectively addressed. I should refer her, in particular, to Clause 21(6)(j), which relates to the establishment of the complaints process within establishments, and to paragraph (k), which clearly sets out issues in relation to ensuring that the appropriate quality and standards are met. In addition, I believe that the great benefit that we see in this Bill is flexibility. The whole problem with previous legislation in relation to registered homes is that it has been inflexible and has not kept pace with developments. This Bill will allow us to keep pace with those developments. Above all, I believe that we shall have a much higher quality of inspections, with inspection officers given the right degree of support and training. I well understand the point made by the noble Baroness, Lady Nicholson. She is right to refer to the external consultation group, which, as she said, includes five people representing patients' interests and five people representing providers. I believe that the mix is carefully balanced. I have taken very careful note of what the noble Baroness said about the two organisations that she mentioned. I can assure her that they will be invited to become involved in the consultation around regulation of acute hospitals, which, of course, is their special interest. I have talked about the regulation of private hospitals. The situation with the NHS is different. We want to ensure high quality and consistent services for the service. That is why we introduced national service frameworks and clinical governance. Indeed, that is why we formed the Commission for Health Improvement. However, CHI is designed to work within the context of a managed system, which is what the NHS is: it is a system that is accountable to Parliament through Ministers. That is very different from the situation relating to independent operators within the private sectors. The whole function of CHI is related to performance management within the NHS in the context of a public, managed healthcare system. I do not believe that it is the right body to deal with the regulation--which is very different from the regulation of the private and voluntary sectors. However, CHI and the commission will not operate in isolation from each another. In establishing minimum standards, CHI is bound to be informed by good practice within the NHS. We have listened most carefully to the debates in your Lordships' House. The noble Earl, Lord Howe, was a little churlish in his remarks on that matter, because we have listened most carefully. I turn now to the remarks made by the noble Lord, Lord Laming. In a sense, he accused us of pragmatism. I do not believe that that is the response we are giving. We are saying that there are very different roles for CHI and the commission. However, there is equally a role for ensuring that they are enabled to work together. The noble Earl, Lord Howe, asked me how that might happen. The national care standards commission could delegate some inspection of private hospitals to the Commission for Health Improvement when CHI is due to review a particular institution as part of its three- or four-yearly rolling programmes of NHS reviews and there is a contractual relationship between the NHS institution it is reviewing and a particular private hospital. The national commission could be asked by CHI to do the same on its behalf. That seems to me to be the right way forward: sensible collaboration and sensible co-operation between two bodies which undertake different roles; the one regulating the independent, private healthcare sector, the other ensuring that issues in relation to quality in the NHS--a managed system accountable to Parliament--are dealt with effectively. The sensible outcome is to ensure that they are enabled to work and to collaborate together. I believe that that is the right outcome. I ask noble Lords to support it.

Photo of Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne Liberal Democrat 11:00 pm, 18th July 2000

My Lords, before the Minister sits down, I welcome the fact that he will invite APROP and AVMA to join the consultative body. I commend the Minister on offering substance, not spin. I commend the Bill for offering a system that is better than in the past and which is consistent countrywide. However, does he not agree that by choosing the words "contracts for national standards" he highlights the fact that this is a non-definitive, non-prescriptive set of statements? The regulations may make provision and may impose requirements. That lies at the heart of the amendment of the noble Earl, Lord Howe, and at the heart of the amendment that the noble Earl, Lord Howe, my colleagues and I proposed in March. We do not seek an open-ended commitment but actual standards and regulations which are prescriptive and definitive.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

My Lords, experience with previous legislation in this area shows that, if one attempts to include all the measures the noble Baroness mentioned on the face of the Bill, it will simply not keep pace with fast moving developments in the healthcare sector. The Bill sets the clear parameters within which we expect regulations to be conducted and allows us to be flexible, to consult and to learn from experience. At the end of the day, I believe that it will be an extremely effective regulatory regime.

Photo of Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne Liberal Democrat

My Lords, will the Minister substitute "will" for "may"?

Photo of Earl Howe Earl Howe Conservative

My Lords, this has been an important debate. I thank all noble Lords who have taken part in it. The Minister's reply was not entirely unexpected. There is no disagreement between us that better regulation of the private sector is both necessary and desirable. There is no disagreement between us about the inadequacies of the Registered Homes Act. However, as he knows, that was not the point I sought to make.

It is disappointing that the Minister did not extend at least a nod in the direction of the arguments that I advanced earlier. It is also disappointing that he should have offered what I fear is a spurious argument in defence of his own position. There is no suggestion in the amendment carried by the House that CHI should usurp the role of the commission as the regulator. The Minister is right to say that CHI's functions are not regulatory, in the accepted sense at least. As far as I am aware, it has not been suggested by anyone--certainly not by me--that under Amendment No. 20 CHI should do more than carry out inspections and in so doing be accountable to the commission as regulator.

The noble Lord admits implicitly in his own amendment that CHI is capable of performing the role I have suggested for it. He concedes that it is possible for the commission to delegate to CHI on a ad hoc basis. So why is there this hang up over a more permanent role along those lines?

I see opposite me the massing ranks of government supporters; by contrast, few such ranks are on this side of the Chamber. But I believe that this is an issue on which the opinion of the House should be tested. I beg to move.

On Question, Whether the said amendment (No. 20A) shall be agreed to?

Their Lordships divided: Contents, 16; Not-Contents, 91.

Division number 3

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Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.