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Lord Skelmersdale: My Lords, I am grateful to the Minister for giving way. I readily accept what she says, but she is not being asked to legislate now; she is being asked to put on the statute book what one might call a "delayed fuse timebomb", so that should the government of the day, at a particular time in the future, wish to activate it, they can. If they do not wish to activate it, it remains on the statute book and is not activated. It is as easy as that.

Baroness Hayman: My Lords, what I am saying is that, as legislators, we should not legislate at the wrong time and with something that might explode in our face. We should try to get it right.

Perhaps I may point out why I think that we might want to take a number of potential approaches to the regulation of the private sector. One suggested option is that the commission for care standards, which I have just described and which will deal with nursing homes, could be extended to cover registration, inspection and enforcement in the independent care sector. Another option might be to set up a parallel, completely separate body that focuses only on the more acute end of independent healthcare. Another option might be a registration body which contracts with another body to provide a monitoring or inspection function. I should acknowledge that, if that model were adopted, any regulator of independent healthcare might want to take advantage of the particular expertise of the commission of health improvement. There might be a certain synergy between the responsibilities of the regulator and the work of the commission in the NHS.

National Health Service patients in the private sector will be covered by the work of the commission. We will be saying to health authorities that in any contracts that they have with the private sector they must deal, first, with the quality standards and, secondly, not award contracts except with provision for inspection by the commission for health improvement. That is an interesting example of having to use the contract mechanism. Because one is dealing with the private and independent sector, cover cannot be automatic just

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because NHS patients are being treated. In the same way, pay beds and private beds in NHS institutions will be covered by the commission and by clinical governance because, in all their activities, those institutions will be subject to the framework.

I am not ruling out the possibility that the commission might be given some responsibilities in the future. I am trying to explain to the House that there are a wide range of options that we might take forward. I understand that many people feel that the commission might pre-eminently have a role to play and I undertake to the House that we will consult specifically on this point in the consultation document that will be published. We hope that it will be published soon; we hope to be able to complete the consultation over the summer. There is therefore no question of kicking this into the long grass.

However, if we chose to go down that route, we would have to look at the relevant clauses of this Bill that we wanted to apply in some way to the independent sector. We would need to make available the appropriate legislative time at that point. But I understand the concerns expressed that regulation of the independent sector should not be allowed to fall down a crack between the current Bill and any future legislation to implement the proposals in the Government's White Paper Modernising Social Services. I offered some thoughts on this issue at Committee and I hope that what I can say today provides further reassurances that the Government believe this issue to be too important to let that happen.

Any legislative follow-up on the social services White Paper on the regulation of independent social healthcare would of course involve a fundamental revision of the Registered Homes Act 1984. That piece of legislation also governs the regulation of the independent acute sector. Noble Lords will understand that no Minister can give an absolute guarantee of the timing of legislation beyond that which is in the Queen's Speech. But it is our clear intention that any legislation we bring forward to implement our plans set out in the White Paper should be wide enough also to address the sorts of issues that we are discussing today. In that legislation we could make any appropriate consequential amendments to the Bill before us today.

I am absolutely clear in my view that we will not, somehow, miss the boat if we do not include provisions in the current Health Bill. However, it would be precipitate to adopt the amendment as it stands at the moment for two reasons. First, it is anticipating the result of a debate which is not one promised for some time in the future, but one that is ongoing and will come to clear conclusions. Secondly, if we go down this route, we put in place fragments of a system. The whole tenor of the debate this afternoon has been that we need a system that is coherent, comprehensible and enforceable and that it is worth waiting to get it right.

Earl Howe: My Lords, I am grateful to the Minister. Before I respond at any length, perhaps I can seek one point of clarification. Do I understand her to say that the Government are committed in principle to a common set of quality standards for

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both the NHS and the independent sector? That sort of commitment would be important for both sectors to hear, if that is the general thrust of what she is saying. I do not mean to tie her down to any details, but commitment to a common set of quality standards for both is an important principle.

Baroness Hayman: My Lords, the noble Earl cannot expect me to commit the Government as to quality standards that private providers will offer people who are buying services from them. I cannot say whether the private sector will offer single rooms or wards of 20 beds. It is not my responsibility to do so.

On the broad issue of regulation of standards of quality within the private sector--perhaps going beyond the bricks and mortar issues to some of the skeletal issues that have been dealt with in the past--I cannot deliver the commitment required because I have no mechanism of enforcement and no mechanism for stopping people offering services for sale other than those which are safe and to standards which are safe. The noble Earl cannot expect me to take on responsibility for standards of quality across the board and in the wider sense within the private sector. It is a hard enough responsibility to take it on for the NHS.

Earl Howe: My Lords, the last part of the noble Baroness's answer was singularly disappointing; it almost spoilt what she said before. I was not asking about the ability to enforce standards. As the House will recognise, this is an amendment which gives an enabling power only. My question related to standards as a whole, not whether patients should have a single room or bacon for breakfast. We are talking about the standards of medical and clinical care in general terms.

Baroness Hayman: My Lords, that is precisely my point. The noble Lord is talking very broadly of quality standards. I am saying that there is a whole range of quality standards and it would be absolutely wrong for me, at the Dispatch Box, to say now that the Government are taking on responsibility for that. We certainly take on responsibility, through professional bodies strengthening self-regulation, for the quality standards of the people who are working in those organisations. But the noble Earl cannot expect me to take complete responsibility for all of the standards delivered within the private sector. That is a different responsibility. As I was trying to point out earlier, the responsibility as regulator is different from the responsibility as provider.

Earl Howe: My Lords, again I find that answer disappointing. I was with the noble Baroness almost all the way in her main reply. I could see that what she was saying made a great deal of sense. But I am afraid the Government are in a bit of a bind. First, the noble Baroness has not really taken on board the point made not only by me, but by other noble Lords, that the Secretary of State has a duty to promote the health of the nation. That is a clear duty on him. To me that

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implies that, if she promotes quality standards in the NHS, then, ipso facto, those quality standards should be good enough all round. That sort of commitment is one that I hoped to hear from her.

Baroness Hayman: My Lords, I give the commitment to promote the health of the nation across the board. Health promotion will be given to everybody in exactly the same way. I give the same commitment to any NHS patient to whom we are providing services, whether in the private or public sectors. However, I cannot take on responsibility for the services that private contractors provide to someone who contracts with them in the same way as I can for the services provided by the NHS.

Lord Walton of Detchant: My Lords, with the leave of the House, may I ask the Minister a question about the point that has been put very clearly by the noble Lord, Lord Howe? I am sorry, it has just been pointed out to me that I cannot do so.

Earl Howe: My Lords, I realise that I have asked the Minister to rise to her feet to respond quite a few times. I am grateful to her for what she has said. I apologise to the House in that I was out of order in that respect.

Nevertheless, I believe that the Government are in a bit of a bind over this for another reason. They are saying that the functions of the commission will extend to independent hospitals but only as far as the patients who are being treated there under the NHS. That seems to me to be an extraordinary position to take. It implies that what a private hospital does is of little concern, except when there happen to be NHS patients in it. That exemplifies the artificiality to me of the public/private divide about which I spoke earlier.

The Minister talked about taking the opportunity in future legislation to do this. I welcome what she said about taking an early opportunity to legislate, and I accept that the Government have a commitment to do so. But I wonder whether a future Bill covering social care is at all the right place in which to try to regulate the independent hospital sector. These hospitals have little or nothing to do with social care; indeed, they are sophisticated providers of healthcare delivering a huge range of acute and elective treatments. They are not long-stay institutions for the chronically sick and elderly. There does not seem to me to be a very good fit there.

We all look forward to reading the consultation document when it is issued and look forward to the results of that consultation. I do not want the Minister to pre-empt that exercise or, indeed, the findings of the Select Committee in another place. I agree with her in that it may not be appropriate to transpose the framework set out in the Bill in its entirety on to the private sector. That is why the amendment allows for a kind of mix and match approach if that is what the Secretary of State chooses to do.

The way to achieve coherent standards is, in my estimation, to make the duty of quality apply across the board. That is all that this amendment suggests. I recognise that the commission's remit would not

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provide a complete range of enforcement functions but, in a sense, no one ever said that it would. It is part of a continuum of clinical governance which needs to be put in place. It is being put in place as regards the NHS, and I dare say that there will be other elements that need to be found that are appropriate to the private sector.

I am in difficulty over this issue. I recognise the strength of the points made by the Minister. When the noble Baroness was half way through her response I felt that I owed it to her to reflect further on what she had said because there were some extremely powerful points in it. However, I am somewhat dismayed and a little deterred by the latter part of her answer. Therefore, although I recognise that the Minister has gone to a great deal of trouble to respond to the concerns that have been raised this afternoon, I believe that this is an issue which would benefit from taking the view of the House.

4.33 p.m.

On Question, Whether the said amendment (No. 47) shall be agreed to?

Their Lordships divided: Contents, 161; Not-Contents, 113.

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