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Lord Peyton of Yeovil moved Amendment No. 290:

The noble Lord said: My Lords, this case can be put briefly, but the amendment is serious. Enough has already been said during our proceedings to suggest that the partnership between the department and CHAI will not be all that comfortable or loving a relationship. I hope that the Minister will give the matter his serious attention.

We must face a harsh fact that endures through all governments: they are readier by far to delegate than to trust. They invariably move, as they have in the Bill, to do what looks to them like the right thing, but then get worried and hedge round what they have done with unnecessary and tiresome restrictions which only ensure one thing: that their original purpose will be frustrated.

As your Lordships are aware, the department's role concerning standards is set out in Clause 45. It is for the Secretary of State to prepare standards. CHAI's role is defined in Clause 47. It,

    "has the general function of encouraging improvement in the provision of health care by and for NHS bodies".

I hope that I am not being too slow, but I thought that that was and remains the function of the department. Subsection (2) states that CHAI will be particularly concerned with,

    "availability of, and access to, the health care; . . . the quality and effectiveness of the health care; . . . the economy and efficiency of the provision of the health care; . . . the need to safeguard and promote the rights and welfare of children; and . . . the effectiveness of measures taken for the purpose of paragraph (d) by the body in question".

Surely, all those measures will remain the active concern of the department.

I do not find it easy to imagine the department saying, "Now that the Government have set up CHAI, we are content to leave it at that", and not be constantly looking over its shoulder with advice and instruction, which may not be all that welcome or helpful. It is in the nature of the beast that a department is readier to expand than to retract its frontiers. I hope that the Minister will consider whether there is a way to improve those two clauses. My amendment would merely leave out subsection (1) of Clause 47. I have not suggested an alternative form of words because I thought that the Government would prefer to do that.

As the Bill stands, there is every possibility of misunderstanding and conflict between the two bodies. I hope that the Minister will bear in mind

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patients' needs and interests—I am sure that he will want to—and the concerns of those who, from time to time, make somebody feel slightly better. On the whole, government departments have no particular talent for making anybody ever feel better, and I doubt whether CHAI will either. It is important that there should be no conflict or friction between the two bodies, although I fear that there will be. It would merely make life even more impossible for those at the sharp end who look after patients and make them feel better.

Whatever the Minister may have thought previously, I am not being frivolous in any way. It is more than likely that there will be much friction between the two bodies. I hope that, while the Government have the opportunity, the Minister will think carefully about the need to remove that possibility in so far as he can. I beg to move.

Earl Howe: My Lords, my noble friend Lord Peyton made some extremely powerful points, which I hope the Minister will consider carefully. Although my noble friend did not dwell long on Amendment No. 359, it reinforces the compelling argument advanced in Committee that, once the Bill comes into force, the NHS and the independent healthcare sector should be judged according to a uniform set of standards. There was a wide measure of agreement from all noble Lords who spoke in favour of that level playing field. Amendment No. 358, which I have tabled, focuses on that issue.

As I see it, the case rests on two main planks: the fact that both healthcare sectors will shortly fall under a single regulator, and the fact that in recent years the NHS has moved from being a monolithic managed service to being much more a healthcare system commissioned to provide services in the round, as the noble Lord, Lord Hunt, pointed out. In so far as the taxpayer can access state-funded care either through NHS facilities or the independent sector, it makes sense to ensure that, wherever a patient is treated, the care that he receives will be assessed against exactly the same benchmarks and standards. The concordat and the Government's policy to give patients greater choice in where they are treated are both factors that strengthen the case for having that consistency.

It emerged from our previous debate and it was pointed out by the Minister that it is not always possible or appropriate to have identical standards operating in both sectors. For one thing, the range of activities provided by the NHS is much greater than that in the independent sector. Some NHS standards will be irrelevant to a private hospital. Some of the minimum standards applicable to an independent hospital may not be quite suitable for an NHS hospital.

The amendments that I moved in Committee did not find favour with noble Lords. I accept that they were unrealistic, for the reasons that I have given. I have therefore reformulated the amendment so that, although it speaks of a timescale within which CHAI must apply a uniform set of standards, it allows CHAI

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some discretion in how it applies that uniformity by reference to what is both practical and relevant. That is a better formulation.

The Minister said that over time he expected a common set of standards to be developed for the NHS and independent healthcare providers. That was welcome, but I am sure that he will have picked up the sense from the Committee that "over time" was not a phrase that carried the degree of urgency that some of us sought. We may not be able to be as prescriptive about the timescale as I would like; nevertheless, it ought to be possible to estimate fairly clearly how long it will take CHAI to introduce a common regime. The Minister said that he would take the matter away and consider whether he could be a little more reassuring on the point. I very much hope that he can.

5.45 p.m.

Lord Clement-Jones: My Lords, I shall speak to Amendment No. 362, which is in many ways similar to the amendment to which the noble Earl, Lord Howe, has just spoken. Although they are in the same group, they are different considerations to those raised by the noble Lord, Lord Peyton.

Celebrations of the announcement that CHAI would inspect the independent healthcare sector and the NHS were premature given the sting in the tail regarding the two sets of standards. That was certainly our motive in moving a similar amendment in Committee. The Minister's reply is interesting. My construction is different from that of the noble Earl, Lord Howe—he thinks that the glass is half full, while I think that it is probably half empty. I did not understand the Minister's reply as the noble Earl interpreted it. It seemed that the Minister accepted more or less the case for a common set of standards. No doubt, this is where the Kremlinologists will have to come into play. He started by saying:

    "It is not our intention that NHS care standards will totally subsume the national minimum standards for independent healthcare providers but we expect that over time a common set of standards"—

a common set of standards—

    "covering both NHS and independent healthcare providers will be developed".—[Official Report, 20/10/03; col. 1385.]

I take it from that that there are common standards. Obviously, where independent healthcare providers do not provide particular services, they cannot be subject to standards, but common standards will apply where an independent healthcare provider chooses to provide a set of services that the NHS also provides.

I understand exactly what the Minister said about not having a prescriptive timetable. The interesting thing about the noble Earl's amendment and mine is that they are not prescriptive; effectively, they invite the Government to set down a timetable. I do not regard that as prescriptive. Surely, it is sensible to have a planning framework for the adoption of a common set of standards rather than giving people the impression, for example, that the common set of standards is being drafted, that it is just around the corner, or that it might be a long way off. The Minister has indicated at various times that a common set of

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standards is currently being drafted and that it is fairly realistic to expect that they will emerge sooner rather than later. I very much hope that he can shed more light at 5.50 p.m. than he was able to do at 10.15 p.m. in Committee.

Lord Warner: My Lords, I think that I am always better at 5.50 p.m. than at 10.15 p.m., so I hope that I can reassure the noble Lord. He does not need to be too worried about Kremlinologists; you do not need them in interpreting what Department of Health Ministers say.

Before responding to the amendments tabled by the noble Lord, Lord Peyton, I wish to reassure him that I do not think that there will be friction between CHAI and Department of Health Ministers, as he suggested. Early discussions with CHAI suggest that there will be a businesslike working relationship in which each side knows its different roles. I do not expect many problems in that area. The noble Lord seemed unduly pessimistic.

The noble Lord, Lord Peyton, also implied that there was a spirit of expanding territory by the Department of Health. I remind him that we have already committed ourselves to shifting the balance of power, with a reduction of 38 per cent in the number of staff in the Department of Health. That is hardly aggrandisement; if it is, it is inept. We are not starting from those positions.

Amendment No. 290 goes against a fundamental purpose of inspection. Wide public consultation by the Better Regulation Task Force and the Office of Public Services Reform suggested that inspection is valueless without seeking to secure improvement. The functions with which we are providing CHAI under the Bill will influence and improve healthcare. CHAI will identify and report areas of significant failure; issue annual performance ratings; work co-operatively with other inspectorates in health and social care to ease the burden of inspection on front line staff; and demonstrate to the public how the additional investment that we are making in the NHS improves healthcare. Although we continue to believe that CHAI could not but help to encourage improvement in healthcare as part of its day-to-day functions, we feel that subsection (1) should remain, as a clear signal to healthcare providers, patients and the public of CHAI's primary purpose.

We also reject Amendment No. 357. It is entirely proper that the Bill should state clearly that CHAI has a more general duty to keep the Secretary of State—who is, as we have said, accountable to Parliament for the regulation of the independent health sector—informed about the general provision and the availability and quality of independent healthcare provision. That is a significant role for CHAI, and I envisage that it will want to use all the information that it has to hand about the performance of independent healthcare providers to advise the Secretary of State of issues relating to the availability and quality of care. I remind noble Lords that such provision is, in many cases, also used by NHS patients.

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The National Care Standards Commission is already under a similar duty under the Care Standards Act 2000. Tellingly, the noble Lord offers no viable alternative as to who should take the function forward, once CHAI has subsumed the commission's independent healthcare responsibilities.

Amendment No. 359 would place a duty on CHAI to encourage the improvement of the quality of independent health services provided in England to a level similar to that achieved by organisations in the NHS. That is similar to the intention behind Amendment No. 358 and the new clause proposed in Amendment No. 362. In short, the amendments propose a convergence of the quality standards and criteria for monitoring standards applied to the NHS and local authority services with those applied to the independent sector under the Care Standards Act 2000. The amendments are unnecessary. I repeat what I said with regard to an earlier amendment: it is not for CHAI to set standards for the health service, as Amendment No. 358 proposes. That is a role for the Secretary of State, and Clause 45 makes that clear.

First, the standards applied to independent services and local authorities are, under the Care Standards Act, already consistent. So, for example, an independent care home or children's home provider has the same quality standards applied to it as a local authority provider. There is no substantial difference. Furthermore, the National Care Standards Commission regulates local authority providers and independent providers against the same criteria, when determining whether standards are being met. That will remain the basis upon which CSCI will take over the regulatory work to be transferred to it by the National Care Standards Commission under the Bill. For that reason, the new clause is inappropriate to social care.

We will ensure that there is a significant read-across between the standards for NHS and independent healthcare, particularly as the latter will often provide independent care under contract to the NHS. In the draft standards that we will publish, there will already be considerable convergence. I shall not repeat all that I said earlier. We are trying to ensure that the standards apply, wherever possible, to the independent sector.

I repeat what I said in Committee: there will, inevitably, be some areas in which it is inappropriate to apply the same standards to the independent sector as apply to the NHS. Such differences will apply. A good example would be public health and accident and emergency services, which are not a function of the independent healthcare sector. We will provide for standards for the NHS in those areas.

As I said, we intend to consult on the NHS standards, and that consultation will include the independent sector. There will thus be ample opportunity for interested parties to comment on the proposed standards. They will be out in the public area well within the next six months—much sooner, in all probability. There is no need for the five-year

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timescale that noble Lords suggest in the amendments. I have given that assurance, and I am confident that the standards will be available for consultation in the near future.

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