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Session 2002 - 03
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Health and Social Care (Community Health and Standards) Bill

Health and Social Care (Community Health and Standards) Bill

Column Number: 277

Standing Committee E

Tuesday 20 May 2003


[Part II]

[Mr. Peter Atkinson in the Chair]

Health and Social Care (Community Health and Standards) Bill

[Continuation from column 276]

5.58 pm

On resuming—

Mr. Lansley: If amendment No. 75 is accepted, amendment No. 105 would also be desirable as a consequential amendment to provide the Secretary of State with the opportunity at least to object to an application if he had reasonable grounds for doing so, although that is not integral to whether an application can be made. It should be written into the clause that the regulator must have regard to that.

Dr. Harris: The hon. Gentleman proposes that at least the Secretary of State should have a veto. Does he think—I am interested in his views—that the local community in the form of a PCT patient forum or the overview of the scrutiny committee should be given at least the same right of veto over the proposal as the Secretary of State?

Mr. Lansley: I confess that I am not fond of vetoes and do not subscribe to them. I note that the hon. Gentleman's amendment No. 246 reflects the same groups of people that paragraph 7.11 of the guide to NHS foundation trusts foresees as having to show that they had undertaken a consultation. I am sure that if the consultation uncovered strongly held objections of substance, the independent regulator would have to have regard to them and could not ignore them.

I am not fond of the concept of vetoes, but I accept the case for a veto for the Secretary of State. It is difficult to contemplate substantial institutions in the NHS no longer being under the control of the Secretary of State, as that would be directly contrary to his valid objections. The objections must be valid, but under the clause, the Secretary of State would control and choke off applications in the first instance.

Who decides who will become an NHS foundation trust? [Interruption.] The hon. Member for Oxford, West and Abingdon gives the correct answer from a sedentary position: the Secretary of State decides. Ministers may have us believe that it is the independent regulator, but I do not believe that. The Bill sets out that the independent regulator determines the nature of the authorisation for who becomes an NHS foundation trust.

My evidence for that proposition is not merely an interpretation of the Bill: the Government have given us the evidence because only the other week on 14 May the Secretary of State for Health unveiled the foundation trust shortlist. He told us which trusts would be permitted to become first-wave applicants. That is fine. I had understood that and it is consistent

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with the Bill that the Secretary of State waves people through. In this instance, he waved through 29 trusts. However, I then read the extract on the No. 10 Downing street website. The second paragraph says,

    ''The trusts will submit their applications by autumn 2003.''

The timetable in paragraph 7.5 of the guide is presumably the September 2003 closing date for second stage applications. I note that the shortlisted applicants were supposed to have been announced in March 2003, but were announced in May. The closing date for second stage applications seems to have been foreshortened by two months to make life easier for the applicant trusts.

The second paragraph of the website says,

    ''The trusts will submit their applications by autumn 2003. Ministers will then decide which applicants will become NHS Foundation Trusts in April 2004.''

It does not say anything about a regulator. I searched to the end of the column, but it did not appear to say anything about a regulator at all. So, who knows? One finds a reference in the guide to the independent regulator after the second stage applications—the establishment phase—but so far as I can tell the decision is the Secretary of State's, which the Government acknowledge. Ministers will decide who becomes an NHS foundation trust and all the details of how that will be implemented will be left to the independent regulator. That does not seem to be what we are setting out to do, which is one reason why I support amendment No. 75, as others do. My hon. Friend the Member for Epsom and Ewell (Chris Grayling) was right to move it.

Let us get things into proportion. If we are making this a trust-led operation, the trusts should be able to apply. If their applications are being independently scrutinised, let us take the Secretary of State out of the process and make the regulator the person who takes those decisions.

Dr. Murrison: We are obviously discussing who decides which hospitals will become a foundation trust. As the Minister knows, I have a particular interest in the Royal United hospital, Bath. It does not take a star rating to be able to say that that hospital will not be at the top of the Minister's list of hospitals that will become NHS trusts when it applies for that status. The Minister will rely on what is an inherently flawed system. In an answer to me last Wednesday, his right hon. Friend the Prime Minister demonstrated a lamentable ignorance, if I may say so in all candour, of what the star-rating system was about. The right hon. Gentleman claimed in the House that it was something to do with clinical outcomes. It is not, but if it were, perhaps one would be more inclined to accept the star system as a basis for determining which hospitals will apply for foundation trust status. It is clinical outcomes, not the star-rating system, that matter to patients. Star-ratings manifestly do not reflect clinical outcomes.

I would be interested to hear from the Minister on what basis he will exercise the powers under the Bill. Perhaps he might like to reflect on whether an independent regulator, who would hopefully be divorced from the star-rating system and would

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depend on more reliable evidence to determine which are to become foundation hospitals, would be a better arbiter than the Secretary of State.

Mr. Hutton: The four amendments are broadly designed to do the same thing: remove the Secretary of State from having any locus whatsoever in the process in which an NHS trust becomes established as an NHS foundation hospital. Amendment No. 246, which was tabled by the hon. Member for Oxford, West and Abingdon, would require the local agreement of a range of parties identified in his amendment before the location can be considered by the regulator.

The issue is simple: does the Secretary of State have a legitimate role to play in establishing NHS foundation trusts? It is crystal clear to me that he does and that he should have the role that we set out in the Bill. I could partly understand the concerns of the hon. Member for South Cambridgeshire about the role of the Secretary of State, if it were Government policy for just a handful of NHS trusts to have the opportunity to become foundation trusts. He might then legitimately argue that to require the approval of the Secretary of State would somehow act as a barrier to the many taking advantage of the things he thinks might be offered to the few. He knows well and true that that is not the Government's intention.

Mr. Burns: I remind the Minister that his argument is somewhat flawed; that policy is, I suspect, being made up as the Government go along. The original intention, before the Government had a rebellion on their hands, was that only three-star hospitals would be able to apply and seek NHS foundation trust status. It was not intended that all hospitals would be able to do that within five years—that was a concession.

Mr. Hutton: I do not want to go down that road today. We have more important and pressing issues to discuss. The provisions in the Bill that require the Secretary of State's approval are not predicated on the assumption that the freedoms are for the few only and not the many. The hon. Member for South Cambridgeshire did not put his argument in those terms, but they are fundamental to his concern that the requirement for approval will act as a stranglehold and an unfair, unnecessary and unreasonable brake on the transition in status from NHS trust to NHS foundation trust. I do not believe that to be true.

Any fair-minded, objective, reasonable observer would say that it is entirely reasonable for the Secretary of State to have the role that we envisage. The primary purpose of NHS foundation trusts is the delivery of NHS services. Under the 1977 Act, the Secretary of State retains ultimate responsibility for the national health service—he is, of course, principally responsible for its funding. The Secretary of State will need to be able to advise on the development and number of NHS foundation trusts. It would be to suspend one's understanding of the real world to say that having given the Secretary of State the statutory responsibility under the 1977 Act of providing a comprehensive, free and effective national health service we should decide now that he should

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have no say in the process of delivering those important hospital-based services.

I have the greatest regard for the hon. Gentleman—I keep banging on about that and I promise that that is the last time I say it. Perhaps I ought to bring to an end this elegant courtship developing between he and I. [Interruption.] I was inadvertently wooing the hon. Member for South Cambridgeshire, but I have now stopped doing that—I am all right now, thank you, Mr. Atkinson.

Given the Secretary of State's statutory responsibilities and his responsibility to this House for how NHS resources are used, it is ridiculous to argue that we should not give him any role whatsoever in deciding which NHS trusts should become NHS foundation trusts.

Mr. Lansley: That was the point that I made. If the Minister cares to look at amendment No. 105, he will recognise that, in my view, the role of the Secretary of State should be retained—because of his statutory duties, if he has a valid reason he should be able to object to a trust becoming an NHS foundation trust, rather than being the gatekeeper to an applicant in the first place.


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