Report (6th Day)

Part of Health and Social Care Bill – in the House of Lords at 12:56 pm on 8th March 2012.

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Photo of Lord Phillips of Sudbury Lord Phillips of Sudbury Liberal Democrat 12:56 pm, 8th March 2012

My Lords, in moving this amendment I shall speak also to Amendment 220BB. If passed, they will amend Section 44 of the National Health Service Act 2006, which deals with private healthcare. I am supported in these amendments by three highly distinguished consultants: the noble Baroness, Lady Finlay of Llandaff, and the noble Lords, Lord Kakkar and Lord Darzi of Denham. Indeed, I would not have had the confidence to persevere with the amendments if it had not been for their support, which I did not canvass. Each of them volunteered to support the amendment and I am much reassured by that because, if I can put it this way, they know what they are talking about and I do not. They live in the health world and have a great deal of engagement with the National Health Service, and for at least two of them, I think, they have a private engagement as well.

The fact is that there is an abuse which should be dealt with more effectively than it is at present: the abuse which some might call queue jumping. I am not in a position to say that it is widespread. I would like to think that it is not and that it happens only rarely. However, there is no doubt that there is queue jumping, and I know from many doctors-I have relatives who are doctors-that it is a phenomenon of the status quo. My position is that, on any reckoning, this legislation-this 450-page statute-is a major upheaval of the National Health Service. It seems bizarre that it should at no point include a clear statement of this fundamental principle of the National Health Service. I should say that the wording of Amendment 220BB is somewhat different from the wording in the amendment-Amendment 299B to Clause 162-that the four of us tabled in Committee. The amendment now talks of,

"equality of access to essential clinical care and treatment".

As I say, that is a principle which I do not think anyone disagrees with. It is a paradox as clear as the nose on your face to have a National Health Service that actually favours private clients over national health patients. To be fair to my noble friend the Minister-who, as always, has been extremely accommodating in discussing this-he accepts absolutely that the Government wholly support the principle and wish to uphold it. The difference, I suppose, lies in how to do that.

The Minister said on one occasion during our discussions that the amendment would infringe on clinical independence. I do not think that that is the case. For a start, it does not touch what might go on in a purely private hospital; and in any event, if the Government are right in saying that there is no need for the amendment because it is upheld in other ways, then the concern about infringement of clinical independence is redundant.

This amendment affects the way that an NHS institution functions and does not touch on the issue of independent clinical judgment. I am sure that it will have been noticed that, crucially, it affects only essential clinical care and treatment. If it is argued that there is no definition of "essential" then I would say that if you look through this mammoth Bill, you will find plenty of words and phrases that are individually defined. As a lawyer, I am more than content to leave the definition of "essential" to the consensus of the medical profession itself. If it had to be taken to court, it would be judged in the same way as, for example, the issues of what is "reasonable conduct" or "negligent behaviour". Both of those are undefined phrases. Let me make it clear that the amendment does not affect issues of what one might call hotel accommodation or inessential care. That is important to note.

In another of the arguments with which they have so far resisted this amendment, the Government say that it is covered by the various codes, particularly GMC codes. In a letter to me, the noble Earl, Lord Howe, referred me to a point about good medical practice. He said:

"I was especially struck by the provision that clinicians must, at all times, 'act in your patients' best interests when making referrals and when providing or arranging treatment or care'".

He continued:

"I think it would be generally agreed any clinician giving substandard care in the hope of persuading a patient to become a private patient would be acting contrary to this duty".

I think that we can all say amen to that. However, the amendment does not deal with the issue of substandard care. It deals essentially with queue jumping.

The noble Earl then pointed me to another piece of guidance, Conflicts of Interest-Guidance for Doctors, paragraph 72(e) of which states:

"You must not put pressure on patients to accept private treatment".

Again, that is stating the obvious. The problem is how to define "putting pressure on a patient". If, for example, you truthfully say to a patient, "If I treat you under the NHS, the waiting list will be six weeks, but if I treat you as a private patient within this NHS institution you could be operated on within a fortnight", then that would not constitute putting pressure on a patient. It would be in answer to the patient's question, "What will happen, doctor, if I go private?". None of the guidance presently covers that example or the others that the Minister cited. None of it covers the evil that my amendment seeks to address. There is a lot of stuff about the relationship between clinicians and their patients, but in no case that I am aware of does it deal with what one might call the strategic position of a doctor and the health service. It is always the relationship between an individual doctor and an individual patient, not about the general policy of a hospital, for example.

I sought to find out whether there was any instance of disciplinary proceedings being brought under the GMC codes against a doctor for breaching any one of the paragraphs to which the Minister referred me. The answer is that there was not one. The only case that was produced to me in which a doctor had been disciplined in respect of queue jumping was one where the doctor had been dishonest when answering the patient's question, "How much sooner could I be treated if I go private?". The doctor in that case had given a dishonest answer, which is a clear breach of any principle you would like to consider. But the fact remains that I have seen not one example showing the disciplining of a doctor in respect of this code, and I have asked at a high level within the GMC.

There are, at best, ambiguous rules that the Government rely on to prevent queue jumping, rare though it may be. Our position in moving the amendment is that it must surely be right to put on the face of the Bill a principle as fundamental as,

"equality of access to essential clinical care and treatment".

It is right in theory and right in practice, so that everybody knows exactly where they are.

This is by no means an issue only for doctors and clinicians. As noble Lords will hear from some of my colleagues who support this amendment, it applies at least as much to hospital managements. I will say no more about that now because you will hear from them exactly what I mean.

I hope the Government will accept the amendment because there is great concern about the issue, as I need hardly say-it was raised in the first group of amendments today by the noble Lord, Lord Campbell-Savours. There is great concern in the country about the totality of the reforms that the Bill will introduce and the possibility that it will do so in a way that breaks the great underlying principle of the original health service. That is particularly so as privatisation in various forms is foreshadowed, and indeed promoted, by the Bill, albeit within limits that seem very sensible.

For those reasons and others which noble Lords will no doubt hear from my supporters, I hope that the Government will think that this amendment underpins what they are trying to do, salves public anxiety and gives clear guidance to hospitals, hospital managers and clinicians about what is and is not permissible. I beg to move.