Health and Social Care (Community Health and Standards) Bill

Part of the debate – in the House of Lords at 11:30 pm on 13th October 2003.

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Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 11:30 pm, 13th October 2003

There may be a misunderstanding. The primary purpose of an NHS foundation trust does not change over time. As I said on the previous amendment, the primary purpose is to provide NHS services to NHS patients based on need and not ability to pay and free at the point of use. That purpose is unchanging. The fact that the NHS foundation trust may acquire new properties and develop new services does not alter that fundamental primary purpose. The regulator will need to take that into account over time. That is not meant to be a disincentive; there are clear provisions when NHS property is surplus to requirements.

As I have outlined, Clause 14 includes provisions which allow the regulator to require the provision of essential NHS services. The provisions in Clause 16 complement the powers of the regulator in setting the terms of authorisation by giving him the powers he needs to protect the assets required for provision of these essential NHS services. These assets will have special protections applied, so that NHS foundation trusts will not be able to relinquish control over them without the independent regulator's consent, although he has to behave reasonably and proportionately as we have discussed previously.

Amendment No. 173 would mean that property which an NHS foundation trust has acquired, and which is used to provide a service which over time has become an essential local NHS service, would not be protected. This would put in jeopardy the continuity of provision of essential services about which many Members of the Committee have expressed concern. The independent regulator needs powers to ensure that the primary purpose of these organisations is, as I said, to provide NHS services to NHS patients. To ensure continuity of NHS services, protections must also apply to essential NHS assets in the event that an NHS foundation trust is dissolved, but we will discuss those issues in relation to Clause 25.

Amendment No. 174 is unnecessary. The independent regulator will be required as a matter of administrative law to exercise his powers fairly, hearing both sides of the case. The views of an NHS foundation trust will always therefore be sought and considered by the regulator before designating property as protected. I hope that gives some reassurance to the noble Baroness.

Amendment No. 175, which would give the regulator powers to remove—"de-classify"—protected property, removing restrictions on its use and disposal, is unnecessary. The regulator already has powers to do this by varying a foundation trust's authorisation under Clause 9. The regulator is under a common law duty to act reasonably and discussions with foundation trusts would naturally form part of the process for determining (and revising) the list of protected assets.