Health and Social Care (Community Health and Standards) Bill

Part of the debate – in the House of Lords at 8:34 pm on 13th October 2003.

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Photo of Baroness Noakes Baroness Noakes Conservative 8:34 pm, 13th October 2003

In moving Amendment No. 136, I shall speak also to Amendments Nos. 147 and 189, which seek to insert the ability of a prospective or actual foundation trust to make representations to the regulator. One of the things that is missing from the scheme for the regulation of foundation trusts is the right of appeal. I believe that regulatory systems set up elsewhere have included appeal rights. A regulatory system without appeal rights has no remedy, other than judicial review, against a regulator who may be acting perversely or, simply, may not have understood a point of importance to the appellant. The amendments go nowhere near as far as full appeal rights, but offer a middle way.

Amendment No. 136 introduces into Clause 6 the right for a prospective foundation trust to make representations to the regulator about the terms of its authorisation and requires the regulator to reply in writing. A foundation trust applicant is not only interested in whether it has passed or failed the regulator's tests for becoming a foundation trust. It will also have an interest, for example, in the restriction on private patient income, under Clause 15, in assets designated as protected property, under Clause 6, or in its authorised services, under Clause 14. If the applicant thought that the regulator was likely to authorise it on terms that the trust would find difficult or even unacceptable, it would need an outlet for its concerns. Amendment No. 136, which falls far short of an appeal mechanism, allows the issues to be raised and dealt with on a semi-formal basis.

Amendment No. 147 deals with Clause 9, under which the regulator can vary an authorisation. This is curious. Under Clause 9(2), the regulator is required to consider what a local authority overview and scrutiny committee or the Commission for Patient and Public Involvement in Health think, but he is not obliged to consider what the foundation trust thinks. Since technically alterations can be made whether or not the foundation trust agrees with them, this amendment is important because the regulator would then have to consider the representations of the foundation trust.

Lastly, I turn to Amendment No. 189, which deals with Clause 23. If a foundation trust is threatened with a notice that it is failing to meet the terms of its authorisation, it has the right to appeal in writing to the regulator. This is stronger than simply making representations as sought in my other amendments because what is at stake is greater. Even here, however, we have not suggested a major appeal process involving outside parties.

When this matter was considered in standing committee in another place, the Minister said that there was no issue to be dealt with because regulators have a duty under general public law to act proportionately and reasonably. While that is all very well, it means that the only remedy would be judicial review. Most would consider that remedy rather akin to using a heavy and blunt instrument, difficult both to use and to achieve effective results. It would also significantly restrict the ways in which a foundation trust can properly be heard.

We were minded to draft a full-blown appeals mechanism for this part of the Bill. Whether we do so at a later stage will depend on the Minister's response. I beg to move.