Health and Social Care (Community Health and Standards) Bill

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Mr. Hutton: I cannot stand here today and say yes or no to that question. That would put me in a ridiculous position. It is for the independent regulator to decide the outcome of applications—his judgment is what matters. However, the process by which the regulator makes a decision is set out in the Bill. It is an iterative process, which includes a series of discussions before a decision is made.

We do not want a re-run of our previous debate, but it is the regulator's decision—not the Secretary of State's—that counts, and which constitutes the body as a foundation trust. For sake of argument, the Secretary of State has a justifiable interest in the

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process—of course he does. The hon. Gentleman will not accept that—he has just voted to remove the Secretary of State from that process—but we won the argument; perhaps we will return to it on the Floor of the House where I have every confidence that we can win it again. I cannot give the hon. Gentleman the answer that he wants—no Minister could—but it is clear in the Bill that it is ultimately the responsibility of the regulator to make decisions. We have constructed a process in which difficulties in the application can be addressed; they can be raised by the regulator and considered by the applicant. That is the best way to avoid the admittedly unacceptable outcome that the hon. Gentleman presented.

Chris Grayling: The last few minutes have served to confirm the impression I had from the first moment I read the Bill: much of it is a complete mess. If the problems that I have highlighted today are not to arise, it can only be because the debate that we had previously was well founded: the regulator will not usually intervene to decide one way or the other, and the word of the Secretary of State will be final. If the regulator does have the final say, this potential mess will be made real. I shall not push the matter to a vote, but I place on record that that the Government are creating a problem for themselves. It is no doubt an issue to which we shall return, but I am deeply surprised that Minister cannot recognise the pitfalls. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dr. Harris: I beg to move amendment No. 170, in

    clause 4, page 2, line 28, at end add

    'subject to the approval of the Commission for Healthcare Audit and Inspection'.

The Chairman: With this it will be convenient to discuss amendment No. 172, in

    clause 5, page 3, line 15, at end add

    'subject to the approval of the Commission for Healthcare Audit and Inspection'.

Dr. Harris: The amendments are consistent with our view that there should be less of a role for the Secretary of State and the centre generally, even during the transition period, and more of a role for the Commission for Healthcare Audit and Inspection, wherever that is possible. That is the reason why we are proposing the measures outlined in amendments Nos. 170 and 172, in which we ask that the rights of an NHS trust, effectively in transition, to do what it needs to do should be subject to some sort of oversight and that would best be done by the commission. I do not believe for one moment that the Minister will accept the amendment and it is not my intention to press it to a Division, but I should be grateful if the Minister could explain what safeguards exist for the appropriate conduct of business in the interim period and ensure that there is some oversight for the actions taken at that time.

Mr. Hutton: The hon. Gentleman rightly foresees how I shall respond to the amendment, so I will put him out of his misery. He asked about the robustness of the application process. We have discussed that issue and I have nothing further to add to debates that we have already had. He has seen the guide, and the

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proposals that we have put forward. He knows that the application process is not just based on the performance, star rating and assessment framework to which he continually alludes, and that the performance assessment framework is not devoid of any reference to clinical outcomes. As the hon. Gentleman knows, 10 clinical indicators are contained in the performance assessment framework—contrary to what he and other hon. Members have claimed today.

The process is robust. We have set it out and debated it extensively in Committee. It would not be sensible to involve CHAI in the process in the way that the hon. Gentleman has envisaged. It is also clear from part 2 of the Bill that CHAI will have an important and continuing role in assessing the performance of NHS foundation trusts. It will be able to bring matters relating to the performance or inadequacy of performance of foundation trusts properly to the attention of the independent regulator. That is its role. That is where it should focus its effort, not at this stage of the process.

Dr. Harris: The Minister is right that none of what he said was a surprise and now is not the time to have the debate that he wants about the clinical nature and the evidence base for the clinical nature of the performance indicators. I am still in doubt about what restraints act in the interim period, either on NHS trusts, which is the main concern, or indeed under clause 5, for any NHS body other than an NHS trust—in the words of clause 4—to do

    ''anything (including the things mentioned in paragraph 16 of Schedule 2 to the National Health Service and Community Care Act 1990''.

If one looks at the National Health Service and Community Care Act 1990, there is a lot that seems to be necessary or desirable for the purpose of preparing for NHS foundation trust status. I am sorry that the Minister did not take the opportunity to set out the restraints and oversights, and say what actions might be taken by an NHS trust that were claimed necessary or reasonable in order to prepare itself for NHS foundation status.

My argument is that throughout the process, however flawed many people may feel that it is, the priority must be good clinical care of patients and an equitable and ethical approach. What concerns me is the fact that there is an additional licence to an NHS trust to act for the purpose of becoming a foundation trust, which, if there were no additional oversight, would mean that everything would go out of the window in a desperate attempt to gain the supposed freedoms and apparent extra funding that will go along with the status. Clearly, given that the Minister did not address that matter in a way that satisfies me, we may need to come back to this later. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 pm

Chris Grayling: I beg to move amendment No. 199, in

    clause 4, page 2, line 28, at end add

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    'as long as it does not affect the trust's ability to deliver the goods and services described in its application'.

The Chairman: With this it will be convenient to discuss amendment No. 198, in

    clause 4, page 2, line 28, at end add—

    '(5) The applicant trust must not use money allocated for clinical purposes to finance the cost of the application.'.

Chris Grayling: The amendments are designed to deal with a simple matter that has already been raised in the debate. I shall not speak at length about them, but I require the Minister's answer. It is clearly important that, whatever happens as part of the process, the loser is not the patient, money is not taken away from clinical services and services are not reduced as a result of the time that will need to be invested in applying for foundation status. However, from where will the money come? Who will pay the bill? Which budgets will foundation hospital applicants use to pay for the cost of application, and how will they ensure that that does not impact on patients and the services that they provide?

Mr. Hutton: It is certainly not our intention that the application process should have any negative impact on the provision of clinical services by NHS trusts that wish to become foundation trusts. That would be guaranteed in a number of different, but related, ways. At all times, the Commission for Health Improvement will have a responsibility to look at the performance of the trust; so will the strategic health authority. It will have a continuing role in relation to the performance management of the trust until it is established as an NHS foundation trust, at which point it will cease to have a direct performance management role.

Ultimately, the Secretary of State must ensure that the performance of the applicant for NHS foundation status does not throw the baby out with the bathwater. The answer to the hon. Gentleman's question lies in the common-sense approach that we now take to performance management in the NHS. He is inviting the Committee to agree with the amendment. I imagine that it is a probing amendment designed to ensure that we discuss that matter. I do not think it is a sensible amendment, given its wording.

We have made it clear that we want to provide additional financial support from Department of Health funding to support the application process, which we obviously need to discuss with the applicants. I want to make it clear that that is not a process of reducing the quality of clinical care provided by applicants for NHS foundation status, but of giving them the means and the tools to raise the quality of clinical care. The operational and other freedoms in the Bill will help in that process.

I can give the hon. Gentleman the assurance that he is looking for in that we will be looking carefully at all stages of the application process to ensure that what he has described will not happen. We have the tools that are at present available to the Department of Health because, until the authorisation comes through, matters are still centrally managed. We will have command of the control system. Neither the hon. Gentleman nor I likes that, but the tools will be there to make sure that the mischief that he has identified as

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a potential hazard does not occur. I accept that that is a clumsy instrument. The command and control mechanisms of the NHS are clumsy. That is why we need to move away from them. However, they will remain in place throughout the application process, and it is our intention that we shall use whatever instruments and tools exist—together with additional financial support that we will be providing for applicants to help them through the process—to make sure that what both the hon. Gentleman and I want to avoid happening does not happen.

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