Clause 51 - Licensing of NHS foundation trusts

Part of Health and Care Bill – in a Public Bill Committee at 11:30 am on 23rd September 2021.

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On that point, I noted with interest today yet another Health Service Journal article, which talked about how integrated care partnerships may not be up and running for some time after the ICB has been set up. That raises questions about what their role is going to be in helping to form those capital priorities for an integrated care system.

In other evidence, Richard Murray said:

“The bit that I think is really uncertain is how the big hospital schemes get picked. That is the bit that looks very different. Obviously, there is a manifesto commitment.”—

although we know that, in recent times, the Government have not been so keen to follow those commitments. He continued:

“There used to be a process by which it was determined whether providers could afford to repay—if they could do it through loans, or if there was a need system. That is now going off in a completely different place, and I think that is the bit that is not quite clear. How does that work within this system? Who gets to choose how those projects get picked, so to speak?”—[Official Report, Health and Care Public Bill Committee, 9 September 2021; c. 118, Q158.]

I appreciate that the point is slightly off-piste, but as we are talking about capital expenditure it is appropriate to raise it, and I am sure the Minister will take the opportunity in his response to set out that process in more detail. At the same time, can he set out in more detail what the guidance set out in proposed new section 42C would entail? Hopefully we will be able to set out some broad points in respect of that.

While we are on the Minister’s response, will he consider the broader point we made on Tuesday about foundation trusts’ focus on involvement of patients and the public and whether that needs to be strengthened across the board? He needs to think again about the whole question of accountability on ICBs.

To go back to the essential question, are foundation trusts now any different to plain, old-school NHS trusts? Is a foundation trust now a dodo? Is it extinct or on its way out? If an ambitious young chief executive of a trust were to approach the Minister and say they were thinking of putting in an application for foundation trust status, what would the Minister say to them about the benefits of such an application, both to their trust and to the wider healthcare system?

It could be argued that there is now a negative reason to not go down that route, as foundation trusts face risks that ordinary trusts do not face. They could decide to engage in some important capital works, carefully setting aside resources for a number of years to pay for them—not forgetting that with a £9 billion maintenance backlog there will be no shortage of projects to identify—but they face the risk that all that planning and prudence could be swept aside with a stroke of the pen by NHS England. Where is the incentive for them to invest in the future? What is the appeal process? Is a decision of that nature challengeable by a foundation trust? If the Minister can help us out by answering that, I would be obliged.

On the question of licensing in clause 51, we are none the wiser as to why that is still a requirement. Now that Monitor has gone, is there any longer a need for anything resembling licensing? Why do we need this roundabout way for NHS England to tell foundation trusts what they can and cannot do? Monitor used to be able to allow licence conditions to be modified where that would lead to certain, specifically defined, desirable outcomes, such as improving the quality of healthcare. Will that be possible under the new system?

Monitor has now left this place—it is deceased, it has fallen off the mortal coil—and NHS England will be there instead. It will be able to use its power to enable co-operation between providers of healthcare services without, as far as the Bill is concerned, having any need to explain why it is requiring that. The clause also extends the remit somewhat by applying to the NHS end and forcing it to co-operate with local authorities. Now that the trappings of the market are fading away, we need to understand better what licensing is going to achieve.

In the spirit of our many suggestions to help the Minister ease his workload, why not get officials to work on a new consolidation Act for the NHS? As we have seen, there are many amendments to the 2006 Act as a result of this Bill and other pieces of legislation, and it takes time to cross-reference so many parts, so one piece of legislation would be helpful for everyone, not least overworked shadow Ministers. Maybe the time to do that is when we have the next reorganisation in approximately two years’ time, when the Prime Minister’s latest integration plans come to the fore and we see that something else has to change. In the meantime, can the Minister set out clearly the purpose and function of the licensing process? I am sure we would all be grateful to hear about that.