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The one obvious thing that we have not done, and still have no plan to do, is to keep records of just how far back in generation terms the pattern of criminal behaviour began in such families. It is almost as if as a nation we are too nervous of the results to do the necessary research. There is some research in existence showing that a staggering 63 per cent of boys with a convicted parent go on to offend and that children of prisoners are three times more likely to show delinquent behaviour. Surely the time has come to provide adequate research funding to ensure that these figures are available-and backward looking-in the future so that a sensible package of family support can be a first step.

Thankfully, all political parties have now accepted Frank Field's and Graham Allen's principle of early intervention as a necessary educational starting point and one which will save money in the long run, whether it is used for assessing and providing the support needs of children with SEN, who would otherwise fall behind their academic attainment level, or for deciding what support is needed for children from deprived or inadequate backgrounds. Funds for the necessary research to provide evidence of success rates among youngsters who have benefited from this kind of early intervention and support will also be essential. My own belief is that the sums saved will be considerable.

However, that should not of course mean that help and support for those who have ended up being imprisoned should be abandoned as if they were hopeless cases. Again, there are savings-financial and personal-that can be made, and why not follow up the idea suggested a year or two ago of setting up a young offender academy as part of the resources for this age group? The Government's plans for more job training and actual work in prisons will be an important step in the right direction, but so, too, will be the need for help and support in finding a job and accommodation for those who have no families, particularly when they have served their sentence and need to settle back into the real world. This is another area where not nearly enough support is currently given.

On that note I shall end, as we are all much looking forward to hearing what the Minister will say in reply to this fascinating debate.

8.52 pm

Baroness Shephard of Northwold: My Lords, I am more than grateful to slip in for two minutes at the end of this debate. I congratulate my noble friend Lady Linklater on securing the debate and my noble friend Lady Shackleton on her moving maiden speech.

The House will be aware that some secure children's homes are used for emergency admissions in cases of extreme family breakdown or other circumstances, which can sometimes include offending. The House will also be aware that, because many local authorities need to reduce budgets overall, they are

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currently streamlining such facilities by outsourcing them and sending children who need this care out of county or out of authority. The House will also be aware of the link between some of those children and the risk of future offending.

Are the Government taking any account of the delayed effects of this policy on costs, bearing in mind that these privately owned facilities can be between two and five times more expensive than those provided in-house? However, it is notoriously difficult to predict the level of that expense because the facilities obviously have to respond to emergency admissions, which cannot be predicted. More seriously, I hope that the Government are taking into account the incalculable risks for children at the extreme limits of their vulnerability-vulnerability described by the noble Lord, Lord Judd, and my noble friend Lady Shackleton-of being moved away from all that is familiar to them. I hope that they are also taking into account the effect on their subsequent life chances, which may include going on to offend. It is for this reason that I raise this category of concern within this debate.

8.54 pm

Baroness Gale: My Lords, I thank the noble Baroness, Lady Linklater, for bringing forward this very important debate. Ever since I have been in the House, I have admired her. A few years ago she took part in a debate that I initiated on women in prison. I was impressed with her knowledge then, and I have been impressed with her great experience in this area tonight. I congratulate the noble Baroness, Lady Shackleton, on her wonderful maiden speech and thank her for sharing her experiences with us. I certainly look forward to many more contributions from her in the future. My noble friend Lord Judd called her a strong and formidable woman, so I welcome her to the team of strong and formidable noble Baronesses in the House.

How we care for children is of immense importance to everyone, but it is especially important to vulnerable children such as those who are held in secure children's homes. Any measures that prevent children getting into crime should be welcomed by us all. The fact that there will be fewer places in secure children's homes, as the number of children in custody is falling, is welcomed by people such as Frances Done, chair of the Youth Justice Board, who in May this year said:

"We are pleased that fewer children and young people"-

especially in the younger age group-

However, other experts in the field, such as Frances Crook, director of the Howard League, have said that if children are to be locked up, then secure children's homes are the best place rather than sending them to a young offender institution or a secure training centre, as they have higher reoffending rates and lower levels of educational achievement.

The Ministry of Justice announced in June that the Youth Justice Board is to be abolished as part of the Government's drive to reduce the number of quangos, and despite the excellent work that it has done to reduce the level of crime and reoffending. Your Lordships'

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House voted by a large majority not to include it in the Public Bodies Bill. At that time, the noble and learned Lord, Lord Woolf, said:

"It would be real sacrilege if we took out of the criminal justice system something that works, whatever the motives that are put forward, and introduced something that has not worked and has not been tried".

Under the new system which will be transferred to local government with the youth offending teams, the Government say that there needs to be a local joined-up approach to address the multiple disadvantages that many young offenders have and the chaotic lifestyles that many lead. It seems to me that local authorities will in future play a bigger part and bear more of the costs. As criminal justice is not a devolved matter, but local government is, how will that work in England and Wales? Will there be separate and different standards in England and in Wales? For example, will English and Welsh children be treated differently? How will standards be set and who will set the standards to ensure that all of our children will be treated in a similar manner?

What discussions have the coalition Government had with the Welsh Government on this matter, and if there have been any, can the Minister say what has been the result? How can the Ministry of Justice operate in Wales on this matter if it cannot dictate terms to local authorities in Wales? If we are to move over to that system, what thought has been given to that?

Work in the community to prevent criminal activity among young people has to start at an early age, working with parents and schools. However, with different systems in place in the two countries of England and Wales, much discussion must be held on these matters before the Youth Justice Board is abolished. For everyone's sake, I hope that this system works as well as the Youth Justice Board has in reducing crime and reoffending rates among children.

I would love to speak for longer and tell the House about my experiences with community policing and the way that it has helped to reduce crime and keep children out of trouble, but I am not able to. However, I look forward to hearing what the Minister has to say.

8.59 pm

The Minister of State, Ministry of Justice (Lord McNally): My Lords, I am not sure whether it is me or my colleagues in the choice of debates, but I am faced with the same problem I had a few days ago when replying to the debate on magistrates initiated by my noble friend Lord Dholakia; I now have six minutes to reply, rather than 12. However, I make no complaint because this has been a very good debate in which a number of specific issues have been raised. I will reply to all noble Lords on the matters that I cannot cover in this restricted time. The noble Baroness, Lady Gale, will be delighted to know that in a few days' time, the question of the YJB will be brought back to this House for further debate. She has given me many good warnings that I must be ready to speak about Wales at that time.

I congratulate my noble friend Lady Shackleton on her outstanding maiden speech. I now consider her fully equipped to play a full and active part in the

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Legal Aid, Sentencing and Punishment of Offenders Bill-LASPOO to its friends-which will be here on 21 November. I expect that she will be getting her name down early to participate in that debate. I have a suspicion that I am going to need all the friends I can find.

As for the speech by my noble friend Lady Linklater, I got what I expected: a thoughtful introduction, full of useful statistics, and based on a deep commitment and wide experience. That is always the daunting thing for me when replying from this Dispatch Box to this kind of debate: that this House brings together great experience on these matters. I can assure the House that I will specifically respond to everything that has been said today, including all the suggestions and questions.

Secure children's homes play a key role in the provision of suitable secure accommodation for young people on remand or serving custodial sentences. I have a long-standing admiration for the way in which they look after those placed in their care, so let me be clear that the Government remain committed to this sector. Secure children's homes take children from both the criminal justice system and welfare placements. In respect of children from the criminal justice system, the homes are generally used to accommodate 12 to 14 year-olds; girls up to the age of 16, and 15 to 16 year-old boys with particular needs. As has been mentioned, the key point is that the staff-to-child ratios are good and help secure children's homes to focus on attending to the physical, emotional, educational, health and behavioural needs of children in their care. It therefore comes as no surprise that nine out of the 10 secure children's homes inspected by Ofsted this year received a rating of "good" or "outstanding", with only one rated as "satisfactory".

A number of noble Lords have talked about the problem of reoffending. The right way to improve public safety and reduce the number of victims is to reduce reoffending. There are a number of ground-breaking initiatives designed to help bring down the reoffending rate. Together with the YJB, we are piloting a number of financial incentive schemes to explore how we can further incentivise local authorities to reduce reoffending. We are setting up and encouraging the expansion of regional resettlement consortia to promote closer working between custodial establishments, youth offending teams and their partners in the voluntary sector. This will provide the opportunity for joint planning and commissioning of resettlement services.

The noble Baroness asked specifically about the work of secure children's homes in reducing reoffending. Unfortunately, the present reliable statistical data showing the reoffending rate for each type of accommodation used in the secure estate is not a straightforward matter. As we have heard, secure children's homes range from very small establishments housing only eight young people to larger buildings with a capacity to accommodate 38. Where small numbers are concerned, there is a greater risk that the statistical results may be skewed in exceptional cases. Furthermore, the placement of children in young offender institutions, secure children's homes and secure training centres is based on their needs. The age of the individual is also a factor. As a

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consequence, it is difficult to make meaningful comparisons across the three types of accommodation and say whether one is better than another.

The safeguarding and welfare needs of all young people admitted to custody are taken extremely seriously across each sector of the secure estate. The placement of young people and their subsequent care are based on an assessment of their needs and risks conducted by their youth offending team and updated in conjunction with staff in the secure estate. These assessments focus on the young person as an individual and the range of factors that may have led to their offending.

Initiatives, such as the Keppel Unit, which was mentioned by my noble friend Lady Linklater, show that we are focused on improving outcomes for young people within the youth secure estate. The Government published their secure estate strategy in July 2011, and the consultation closed on 11 October. The Youth Justice Board is now carefully considering the responses received, so my comments on the future of the secure estate are necessarily curtailed until the consultation response is published early in the new year.

However, it is important that the fall in the number of children and young people in custody has not been distributed equally across all age groups. The biggest decrease has been seen for young people aged between 10 and 14 years old. It is the younger age group that is most likely to be placed in secure children's homes and secure training centres.

I hope this very brief response has reassured the noble Baroness that the Government are fully committed to maintaining the secure children's home sector and to reducing reoffending. In January we will see the outcome of the consultation and will issue our response. I can assure the noble Baroness that we will continue to give the highest priority to those in our care.

Health and Social Care Bill

Main Bill page

Committee (3rd Day) (Continued)

9.07 pm

Amendment 24

Moved by Lord Phillips of Sudbury

24: Clause 3, page 2, line 33, after "need" insert-

"(a)"

Lord Phillips of Sudbury: My Lords, Amendments 24, 30 and 299B are tabled in my name and those of the noble Baroness, Lady Finlay of Llandaff, and the noble Lords, Lord Kakkar and Lord Darzi. I hasten to state the obvious, which is that I am a relative ignoramus as regards the refinements of the delivery of health within a hospital. The other three noble Lords who have added their names to this amendment are by contrast as distinguished a trio of consultants as one could find. I must at once, as requested by the noble Baroness, Lady Finlay, give her apologies to the Committee for her inability to be here. She is well out of London.

Amendments 24 and 30 add to Clause 3 which in turn adds to Section 1 of the National Health Service Act 2006. Clause 3 is headed: "The Secretary of State's duty as to reducing inequalities" but refers to NHS

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patients in different parts of England, not to differences between NHS and private patients within a single NHS hospital.

Other parts of the Bill which talk of equality of access and outcomes are similarly limited. Nowhere in this 445-page mammoth is there any clear statement, let alone requirement, as to equality of clinical treatment and healthcare between NHS and private patients within an NHS institution. Amendments 24 and 30 clarify that. Amendment 299B also clarifies that inessential care such as what one might call the hotel services-the quality of the accommodation, drugs prohibited by NICE standards and indeed treatment and care that is not a clinical priority-can still be provided privately on the basis of privilege. Those matters are, as I say, non-essential and we have put in-the four of us whose names are to these two amendments-Amendment 299B to make very clear that we are not seeking to row back on the status quo.

It was Aneurin Bevan during Second Reading on what would become the National Health Service Act 1946 who said:

"If people wish to pay for additional amenities, or something to which they attach value, like privacy in a single ward, we ought to aim at providing such facilities for everyone who wants them".-[Official Report, Commons, 30/4/1946; col. 57.]

For example the state will provide a certain standard of dentistry free but if a person wants to have his teeth filled with gold the state will not provide that. It is in that vein that Amendment 299B stands in our four names but, and this is a big but, where there are two patients with the same essential clinical health needs-one an NHS patient, another a private patient; one in a public ward, the other in a private ward-the one with the fat wallet can buy priority and buy his way to the top of the queue. That cannot be allowed in our National Health Service. It would be fundamentally against the spirit of the NHS and directly contrary to the ideals on which it was founded.

In a Britain that is becoming more divided in terms of living standards at a rapid rate the maintenance of the ideals of the original NHS for many of us are absolutely integral to our sense of citizenship and sense of comfort in an increasingly differentiated and diverse society. We must not on any account allow under the new regime a-no doubt inadvertent-two-class service to develop in NHS hospitals with regard to essential care. In saying that, I want to make it abundantly clear that neither amendment will touch private institutions that have no NHS connection-they are free to carry on doing what they will, how they will. That is an aspect of freedom in this country on which I would not for a minute seek to trespass.

The dangers are that the privatising and commercialising, as they are fairly called, will, as I say, bring into the NHS a much wider and deeper engagement with the private sector and that could, and I again say inadvertently, develop into a two-class NHS. Let us be clear: the NHS and the private sector march to different drums. The NHS is concerned solely and only with equal free treatment and fair access to any of us who go to its institutions. The private sector, which I do not wish to unduly disparage-which is made up of public companies and many very commercial entities-is none the less first, secondly and thirdly in the business of

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profit. It is no good saying that doctors and consultants working within the private sector, unless they are sole traders so to speak, will be immune from that commercialisation, the managerialism that goes with it and the pressures that are inevitably engaged when working for a commercial entity.

Amendment 30 strengthens the original ideals of the NHS. Perhaps I may say to my noble friend the Minister what I have said to him previously: I believe that it will cement public support for what is good in this Bill. There is much that is good and I am not for a minute saying that extending the contact with the private sector is wrong. In many respects, it can be good and can bring new resources into the NHS. But that is all at risk unless we put firmly and clearly in the Bill that we will not allow a two-class service of clinical treatment and healthcare within an NHS institution.

I want briefly to refer to the deluge of letters, petitions and the like which everyone in this House has received. In my 14 years here, there have been far more letters on this Bill than any two others put together. My noble friend Lord Razzall mumbles that there were more for hunting. I have to say to him that I do not think there were, but be that as it may. I just mention the Coalition of UK Medical Specialty Societies, which saw the issue that my amendment is designed to address. It wrote:

"Choice must be for patients rather than provider; the provider choosing the simple cases and leaving the unprofitable, more complex cases (elderly, chronic illness, disabled) to fight for remaining funds will disadvantage patients".

A petition from more than 400 public health doctors and specialists from within the NHS and academe said:

"As public health doctors and specialists",

we think that the Bill could usher,

It is to prevent that widening that this amendment is put down.

Finally, the BMA, which has informally backed this amendment, in one of its key points states:

"Increasing patient choice should not be a higher priority than tackling fair access and health inequalities".

We all say amen to that. I hope very much that the Government will accept these amendments. It may well be that on Report I will want to bring forward something to make clear that there should be some oversight of the provisions that these amendments seek to entrench, which might be through the monitors. But, for the time being, I hope that the Committee will warm to these amendments and the sentiments behind them. I beg to move.

Lord Kakkar: My Lords, I support this group of amendments and in so doing remind your Lordships of my interest as consultant surgeon at University College London Hospitals NHS Foundation Trust, an institution with private healthcare facilities that I would be entitled to use if I ever decided to do so. This group of amendments is very important because it deals with an area of anxiety with regard to potential consequences that will follow removal of the private patient cap.

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Removing that cap may well provide important opportunities for NHS foundation trusts in the future, opportunities that they may well need to exploit. But in so doing, we need to be certain that access to clinical facilities in NHS institutions for either NHS patients or those in private healthcare facilities in NHS institutions is based purely upon clinical need and that no other factor influences access to those facilities.

I believe that in the majority of circumstances that will always be the case, as it has been to date. But with the important changes in this Bill with regard to the role of potential private practice in NHS institutions, we need to be absolutely certain that any anxieties or opportunities for misunderstanding are dealt with at an early stage. So in bringing forward these amendments at this stage, one hopes that there is an opportunity for the Government to explore how they plan to deal with any potential tensions and what security the current Bill as we consider it, and any potential amendments in the future or well established working practices in the NHS to date, would protect against a situation developing where access to facilities was determined by anything other than absolute clinical priority. For this reason I strongly support the amendments being brought forward at this stage in the hope that the noble Earl might be able to provide some clarity on the approach that Her Majesty's Government might take in regard to these matters.

Lord Walton of Detchant: My Lords, 53 years ago, after seven years in full-time clinical research followed by 18 months as a first assistant in a neurological department with an honorary senior registrar contract, at the age of 35 I was appointed as a consultant in the NHS. But since at the time I had not even reached a salary of £2,000 a year, on being appointed as a consultant I chose to take a maximum part-time contract to do limited private practice, if only for financial reasons. In fact, it was a very interesting experience. I did this only for a few years before I became a full-time academic.

At that time every NHS hospital had a private ward or had the opportunity, as was the case in the regional neurological centre in Newcastle Upon Tyne, such that on my ward of 28 beds I was entitled, if I so wished, to use four single rooms for private patients. The advantage of that arrangement, which was widespread throughout the country, was that the consultants working in that kind of hospital had the right to be geographically whole-time at the hospital. They were not being diverted away to distant private hospitals. They could look after their patients, both private and public, on the same ward and give them equal standards of care. The only real advantage for the private patients was that they had single rooms.

Many years later, along came Barbara Castle, who was the Secretary of State for Health and who later became the much respected Lady Castle. By that time I was a full-time academic with no private practice. I took private patients under my care into hospital, as I had to do if they came from overseas. In order to take advantage of the research facilities in my department, they had to be treated as private patients. However,

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under pressure from the trade unions, the Government worked through a process of gradually removing private patient beds from NHS hospitals so that, in the end, in the three major hospitals in Newcastle Upon Tyne we had one private bed in each hospital. The result was that, as an academic with major research facilities for the investigation of neuromuscular disease, I had to refuse patients referred to me from the United States, Canada, Australia and elsewhere because there were no private hospitals which could provide the facilities needed for the investigation of these patients, and there were no private beds into which they could be admitted. I look back on the period before that, when there were private beds in NHS hospitals, with great interest. I think that it was an excellent arrangement.

This is why I strongly support the proposal that the cap on private patient beds in NHS hospitals, foundation trusts and so on be removed, but I agree that there should be a restriction so that the opportunity for such beds to be established for private patient care must not be excessive. However, the advantage is that the NHS will gain substantially from the income derived from those private beds. The noble Lord, Lord Phillips, has enunciated the principle that the standards of clinical care for public and private patients in those hospitals should be entirely comparable. The only advantage for private patients would be a better standard of accommodation, as Amendment 299B indicates, which is wholly acceptable. The quality of medical care should be identical. For that reason, I support the principle.

On the other hand, the wording of Amendment 30 is not satisfactory. Although I accept the principle of equal standards of clinical care, the amendment would make it impossible to provide the improved standards of accommodation to which Amendment 299B refers. The principle is important and I would support it in general, but the amendment needs a little adjustment.

Lord Ribeiro: My Lords, I agreed with everything that the noble Lord, Lord Walton of Detchant, said. His historical perspective reflects my own experience, both as a young trainee working at the Middlesex Hospital, where we had a separate private wing, and then post the decision made by Mrs Barbara Castle when the private wings lost their beds. The net result was that, when I became a consultant in 1979, there were very few private beds in my own hospital. I was a maximum part-time consultant as well. We saw a proliferation of new private hospitals in Brentwood-the Nuffield-Chelmsford and Southend; the whole area sprouted new private hospitals. I would see my private patients at the beginning of the day and then again at night while fulfilling my NHS commitment, which I am quite happy to say I did. I could travel 100 miles in a day seeing private patients, whereas previously those patients were in the same hospital. The junior doctors knew where the consultants were and if there was a problem on the ward they could consult them and bring them back.

There is another dimension to moving private beds out of the NHS, which is that I used to be able to take my trainees with me to the private hospital to assist me with my operations. That was a level of learning that they would often not have the opportunity to access,

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particularly if it was related to overseas patients with conditions that they had not previously seen. It was a learning opportunity which is now more or less lost. Junior trainees are very rarely able to escort their consultants to work in the private sector.

As to the private cap, it will not surprise your Lordships that two big hospitals in London, the Royal Marsden and Great Ormond Street, have a massive number of private patients who seek treatment from those hospitals because they are the best in the world. A cap in that situation is against the best interests of those hospitals. Robert Naylor, the chief executive of UCLH, has been quoted as saying that it is entirely transparent where the money from private patients treated in the NHS goes: back into supporting services within the NHS. Maintaining the cap on private earnings in the NHS will damage the NHS. Patients who come in to have their treatment privately in the NHS are treated by consultants who treat both NHS and private patients. There is no difference between the two. To deny those hospitals the opportunity of attracting patients from overseas and the benefits going back to the NHS would be a disservice.

I have looked at this amendment and, clearly, the intention is to ensure equality of care. I was watching the monitor upstairs in my office and heard the introduction to this debate. I am sorry that I was not here. The meaning behind the amendment is right. There should be equality. I am not sure whether it can be achieved in the way that has been described. The noble Lord was quite right in saying that the clinical treatment-this is not about food, beds or those sorts of facilities-that is provided should be the same.

9 pm

As a working consultant until just three years ago I would say this. We used to have a system in the NHS whereby we had block booking for outpatient appointments. Four patients would be booked at 9 am, another four patients at 9.05 am, another four patients at 9.10 am and so it went on until all the patients were booked in until 11 am. Clearly, they did not have two minutes each. Patients were left sitting in the clinics waiting and waiting and waiting until they could be seen. I decided after some time that that was not acceptable and made the point of giving my NHS patients appointments in exactly the same way as my private patients. They all had 15 minutes each. It was exactly the same as in the private sector. Some private patients might just have a mole so it might take me only five or 10 minutes to make a diagnosis. For someone with bowel cancer it could take 30 minutes. That way, you can manage your practice. There is a requirement for individual consultants to be conscious of the fact that they must deliver the same standard of care irrespective of how that patient finances their treatment.

Baroness Armstrong of Hill Top: I intervene to dispel the view that it has always been even and equal for private and non-private patients in the NHS. When I was an Opposition Member of Parliament, before the 1997 election, the largest complaint that I had, which I had regularly, surgery after surgery, was from people who had some serious condition. They

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had eventually got in to see the consultant, frequently having had to wait a long time. Then they were told, "Yes, you need an operation but the waiting list is 18, 20 or 24 months. However, if you come in to see me next week in my private practice, I can do the operation in two weeks' time". People found that offensive.

That is why, during the passage of the Bill on foundation trusts, there was outrage on the Back Benches that we were going to revert to the situation where it seemed not to matter whether people were public or private patients.. That came because Back-Benchers insisted that they did not want to return to the old system.

I am actually in favour of varying the cap and the noble Lords who tabled the amendment actually had the right idea. But for us to pretend in this House that there was once a glorious age where everyone was treated equally is quite honestly offensive to all those people who knew that they were getting a poor service and were not getting adequate access to the healthcare they needed and had the right to receive.

Lord Patel: I rise briefly to comment on this amendment. As far as declaring an interest is concerned, I have not seen private patients because my contracts were such that academics did not do private practice. I have a family member who is a consultant. My daughter is a consultant at the Marsden where I hear there is a high percentage of private patients. I have no idea whether she does private practice or not. I have not seen any benefits of it. Maybe they will come.

However, I remember when I was a student and was training in King Edward VII Hospital in Windsor, in Ascot and other places there were private wings in the same hospital. Yes, the care provided was equal for NHS and private patients. However, one difference today is that NHS patients now receive quite a significant part of their care provided by doctors in training. If we are to ask for equality in how patients are looked after, we must say not only that those patients in private wings cannot jump the queue but that there must be the same quality of care provided by all the medical staff who work in the NHS.

I have one other question, which I would like to put to the noble Lord, Lord Phillips of Sudbury. How would we manage his amendment when there are to be qualified providers, which might provide care not only for NHS patients but for private patients under their own terms and conditions? How would we manage those qualified providers to ensure that they behave in the same way in dealing with NHS patients?

Lord Phillips of Sudbury: On the question addressed to me, I do not know whether I can give an off-the-cuff precise answer to the noble Lord, but my apprehension is that, in NHS hospitals with private facilities or a private ward, there is an attempt to deliver comparable clinical care to private and NHS patients. As the noble Baroness has just said, there are cases where that plainly does not happen, but that is the ideal and it is achieved in many hospitals-I suspect that the Royal Marsden is one of those. All that the amendment seeks to do is to put that ideal into the Bill so that it is also law.



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I do not want to waffle on now about the delivery of that ideal in practice-I say "waffle" because what I would say might not be impressive to you gentlemen who are treading the wards-but I believe that it is possible and can be done. I am encouraged by my three co-signatories to the amendments to believe that this can be done and delivered. As I said, that may require an amendment to the provisions of the Bill that deal with Monitor so as to give Monitor an explicit role in policing this requirement of equality of clinical treatment and care.

Lord Hunt of Kings Heath: My Lords, I hope that the noble Lord, Lord Phillips, will continue to waffle on, because it seems to me that he has put his finger on the real concerns that so many have about this Bill and why people are so opposed to it. The continuing puzzle is why we have this Bill at all when the NHS was in such good condition at the time of the last election. The noble Earl, Lord Howe, might get cross that I come back to this point, but that puzzlement is shared by almost everyone working in the National Health Service and certainly by most patients.

We do not understand what this Bill is all about, unless the noble Lord, Lord Phillips, is right that, essentially, this is about taking the NHS on a journey to become a second-rate service for the poor and needy. One can see the building blocks that are being put in place. First, the Secretary of State seeks to downplay his or her responsibility for the provision of services. Secondly, we see the NHS starved of resources.

The NHS-I should perhaps remind the House that I chair an NHS foundation trust-is supposedly receiving a real-terms increase in its resources, but I can tell the noble Earl, Lord Howe, that that real-terms increase has not reached the service. I do not know where that money is. Either the money is being kept as a bung for GPs and clinical commissioning groups or for the costs of the reorganisation and redundancies that will need to be paid, or, perhaps, it is being held in a fund that will be let out when the NHS reaches crisis point this winter. I do not know, but I can tell the noble Earl that, up and down the country, NHS trusts are facing considerable financial challenges. It can be the only explanation for why the Government are putting so much less emphasis on dealing with waiting times. We had the amendment from my noble friend Lord Warner early on. I do not think the noble Earl was able to convince the House that this Government really are concerned about the waiting times for patients. The risk is, as my noble friend Lady Armstrong said, that we will go back to the bad old days of long waiting times, when consultants faced with patients encouraged those patients to go for private treatment. There are so many examples of this perverse practice that I fear we are going back to it again.

Another factor in where we are going is the noble Earl's refusal to refer to NHS trusts and foundation trusts. All we hear from the Government is this generic term "provider". Of course we understand that, because it is the mantra of Ministers that there is no distinction; the qualification is qualified providers. So the NHS institutions are simply to be seen as a provider, no different from private sector providers. No wonder

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Ministers are prepared only to talk about commissioning as being part of the NHS. It is almost as if the provider side has been completely written out of the script when it comes to the National Health Service. It is quite clear that, notwithstanding the fact that Monitor will also have to have a role in integration, its real emphasis is on promoting competition. When one considers the issue of the private patient cap, one has to do it in the context of where one thinks the Bill is going.

I must say that I disagreed for once with the noble Lord, Lord Walton. I have very great reservations about the removal of the private patient cap. I certainly understand that there is a need to review how it is working. If there is local support through the members of foundation trusts or the governing body, maybe even through the local health and well-being board, to remove the cap to that extent, I can see that there may be a case for it. However, there needs to be some control to ensure that NHS organisations do not go mad and seek to have a huge increase in their private patient income, because that would be bound to distort their whole behaviour and how they approach NHS patients. I well remember when I first worked at the Nuffield Orthopaedic Centre in Oxford, where we had a private patient ward-it was called the Mayfair ward, for some reason. I am sure that the doctors and nurses there would say that the clinical care was just the same, but my goodness me it was very interesting to see the succession of the matron, the senior physiotherapists and the senior consultants walking down to that ward and the amount of time they spent there.

Having a large amount of private care within an NHS organisation is almost certain to distort how that organisation approaches NHS patients. That is why this group of amendments is very important. I hope that the Minister will consider coming back on Report and taking part in our further discussions about the private patient cap. The noble Earl, Lord Howe, should be in no doubt that there is widespread suspicion throughout the National Health Service at the Government's motivations in relation to this Bill. This is one of the core issues that lead to that suspicion.

Earl Howe: The noble Lord, Lord Hunt, should be a little bit careful before he comes to this Committee and speaks as though it were Second Reading and as though he were not chairman of the Heart of England trust, which I do not doubt has a goodly number of private patients in its midst. He should bear in mind that it was the last Labour Government who introduced private sector involvement into the NHS in 2007; the independent sector was paid on average 11 per cent more than the NHS price.

Baroness Armstrong of Hill Top: My Lords-

Earl Howe: I am sorry, but I am going to finish. The private sector was paid £250 million for operations that never happened. I have a very interesting quote here:

"The private sector puts its capacity into the NHS for the benefit of NHS patients, which I think most people in this country would celebrate".-[Official Report, Commons, 15/5/07; col. 250WH.]



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That is a quote from none other than Andy Burnham. It is absolute hypocrisy on the part of the noble Lord, Lord Hunt, to introduce matters to this amendment that have nothing to do with my noble friend's point. My noble friend's point was quite separate from the point that the noble Lord was talking about.

9.45 pm

Lord Hunt of Kings Heath: I do not know why the noble Earl mentioned the Heart of England NHS Foundation Trust. I declared my interest but I am clearly speaking on behalf of the Opposition here. I thought that was a really unworthy remark. As for the general point being made, yes, we invested in the private sector. Why did we do that? It was because we wanted to tackle waiting times. Why did we have to tackle those? It was because there was a real issue in some hospitals with consultants and their productivity. That is why we introduced independent sector treatment centres and why waiting times were reduced to 18 weeks. As for this issue, the noble Earl says that I have gone outwith this amendment but I refer him back to the comments of the noble Lord, Lord Phillips, who talked, quite rightly, of the risks of a two-tier service. That is exactly the issue of concern that I have with the heart of the Bill.

Earl Howe: I have no issue with the private sector acting to provide services for NHS patients, and never have had. My point was that it is a bit rich on the part of the noble Lord to attack the private sector in the way that he did. It is also a bit rich to say that the NHS has been starved of money. If the country had been foolish enough to elect the Labour Government at the election last year, the NHS budget would have been cut. It would not have been kept abreast of inflation, as we have done. It is absolutely monstrous for the noble Lord to pretend otherwise and the caricature that he has given us of this Bill, and what it does, does him no service whatever.

I would like to move on to my noble friend's amendment. Amendments 24 and 30, introduced by my noble friend, would impose on the Secretary of State a duty to have regard to the need to prevent inequalities of treatment and healthcare developing between NHS and private patients. To start with, it is helpful to have clarity around the definitions as there is sometimes scope for misunderstanding. I believe that the amendments are referring to the potential for inequality between services that are paid for by the NHS and those that patients can pay for privately within an NHS hospital. As my noble friend knows, that is of course not the same as the issue of NHS-funded services being provided by private or voluntary organisations. A patient funded by the NHS is an NHS patient, wherever he or she is treated.

In addressing the issues raised by my noble friend, I feel that I have to begin with a basic point. I am not sure, although my noble friend may yet convince me, that it is a matter for public policy to have a target of narrowing the outcomes between NHS and private-funded healthcare. I understand that many people feel uncomfortable at the idea of private-funded healthcare, especially within an NHS

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hospital. It has always been a controversial subject for Parliament yet the truth, as we heard from my noble friend Lord Ribeiro, is that private healthcare has always coexisted alongside the NHS. Some people will always wish to pay to be treated in more comfort or more quickly than a publicly funded healthcare system can afford and, at the margin, there will always be some treatments that are clinically available but which are not considered cost-effective for the NHS to fund. Some people will want to pay for those and, in a free country, I do not believe that it is the role of the Government to stop that.

However, I do not believe that there is a gaping chasm between the types of clinical treatment offered by the NHS and by private healthcare. The NHS aims to offer a comprehensive health service and, by comparison with many other countries, the private-funded healthcare sector here is relatively small. This illustrates the high degree of public confidence in the NHS as an institution, in that relatively few people decide to pay for a private alternative. Furthermore, rather than making comparisons with private healthcare, we believe that the Secretary of State should be focusing on improving the quality and equity of the services available to those who use the NHS. That is why the Bill introduces for the first time a duty to have regard to the need to reduce health inequalities, and that clearly emphasises our commitment to fairness across the health service. It also recognises the reality that there are many stark variations in quality and access within the services that the NHS funds before we start looking at the comparison between NHS and private healthcare.

In addition, the Bill places a new duty on the Secretary of State to exercise functions with a view to securing continuous improvement in the quality of services. The Secretary of State will therefore be responsible for doing all that he can to ensure that the NHS provides the best quality care to all its patients, no matter what treatment they are receiving or when they are receiving it. The aim of the Government and the Bill is to create a system that delivers world-class healthcare and healthcare outcomes for all NHS patients.

I understand that there is some residual concern that private healthcare might represent a better deal for patients treated by NHS providers but we do not believe that this is the case. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would do that. We have in place a robust system of service quality regulation that the Bill strengthens and makes more accountable. Fundamentally, the GMC's Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor's first concern and never discriminating unfairly against patients or colleagues. This means that if a doctor were treating private patients to a better clinical service, they would be in breach of these principles and could therefore be putting their registration at risk.

Similarly, any doctor who inappropriately attempts to persuade patients to use private services for their own gain would be in serious breach of medical ethics.

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For example, the department guidance on NHS patients who wish to pay for additional private care says this:

"NHS doctors who carry out private care should strive to avoid any actual or perceived conflict of interest between their NHS and private work".

Indeed, the GMC's own guidance states:

"You must give patients the information they want or need about ... any conflicts of interest that you, or your organisation, may have".

It makes the point again, in Good Medical Practice:

"You must not put pressure on patients to accept private treatment".

Lord Phillips of Sudbury: If the Minister is correct in his description of the status quo, why does he think that three distinguished consultants, who are in the thick of it, asked to add their names to my amendment?

Earl Howe: My Lords, I have yet to hear from at least one of those consultants. Clearly it is for them to explain why they added their names. I am trying to explain to my noble friend that I see grave problems in accepting an amendment of this kind because in practice it is a non-issue, and because the idea that this is a matter for public policy is one that we should perhaps have a further conversation about. I am not convinced that my noble friend is introducing a matter that should go into statute. It is probably best if we defer further debate on this subject. I have listened carefully to my noble friend and other noble Lords who have spoken. I am happy to have a conversation with him after the Committee stage. I understand the issue that he has raised and I hope that he will accept that, but I see considerable difficulties in trying to frame an amendment in a way that will do precisely what he wants.

Lord Willis of Knaresborough: Could I help my noble friend? A sensible suggestion was made that this was more a role for Monitor than anything that should be in an amendment to the Bill. Would my noble friend agree that when this comes back, either later in Committee or on Report, we should look at whether Monitor should carry out the new duty, proposed in the Bill, to reduce inequalities? That might be a better way of moving forward.

Earl Howe: I shall be happy to look at that. Of course, Monitor has a role in making sure that a foundation trust adheres to the conditions of its authorisation, one of which is that its principal purpose will be to serve NHS patients. There could be mileage in that and I would be happy to look at it.

Lord Phillips of Sudbury: My Lords, I thank the Minister for his careful response to the debate. I also warmly thank all noble Peers who have taken part in it. It is worth putting on the record that not a single person spoke against the amendment; I think all but one spoke warmly for it. My noble friend said twice that I sought to introduce an inappropriate policy matter into the Bill. This is not a policy, it is a principle-a very fundamental principle. Indeed, the

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Minister himself, earlier in his response, talked with some pride of the fact that the Secretary of State has to reduce inequalities. That is the same principle, although the area of the Bill that deals with it is not about inequalities between NHS patients and private patients but about those between NHS patients in different parts of the country. It does not cover what is covered by the amendment.

However, I am grateful for the Minister's offer of conversations afterwards, which I will happily take up. I will certainly want to co-ordinate not only with the three noble consultants who have added their names to the amendment but with others in the House who I know feel strongly about this. I feel sure that the wish and will is that this matter should be brought back at the next stage of the Bill, perhaps with better wording-several Peers referred to that. With that, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendments 25 and 25A not moved.

Amendment 26

Moved by Baroness Gibson of Market Rasen

26: Clause 3, page 2, line 34, after "England" insert "in rural and urban areas"

Baroness Gibson of Market Rasen: My Lords, I shall be brief, bearing in mind the hour. What I have to say about Amendment 26 applies to all the amendments in this group. Their aim is quite simple: to ensure that those working in the health service and those who are its patients in rural areas are not forgotten as we plough through this enormous Bill. I hope that we will be able to improve the quality of services, protect and improve public health and reduce inequalities in rural areas as we do so. The Bill has not been rural-proofed. Although it is about the National Health Service, too often when we discuss the NHS the emphasis is on urban, rather than rural, areas.

I have declared my interest, as I did at Second Reading. I am the honorary patron of the Dispensing Doctors' Association and, as such, am very proud to raise issues for dispensing doctors-in other words, rural doctors and their colleagues. Dispensing doctors dispense from their surgeries. They live and work in rural areas, giving a service that is vital to rural patients. Without their dispensing from their surgeries, those living in the more remote areas of our countryside would have to travel first to their doctor's surgery and then to the nearest pharmacy to get their prescribed medicines. These two places might be many miles apart. Mostly, this would be in areas where public transport services are very few and far between or, more likely, where there are none at all. Therefore, without the care and supervision provided by dispensing doctors, patients would face even more difficulties in getting the analysis of what they need and the correct medicine than they do at present.

Many patients in rural areas do not drive, especially women, older patients, those with disabilities, those with longer-term illnesses and those with small children.

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In addition, families increasingly cannot afford to run two cars. Therefore, if the main breadwinner needs the car to travel to and from work, the remaining partner finds it difficult to travel distances to collect medicines or prescriptions. That is why the one-stop shop of a dispensing doctor's surgery is so necessary. Rural areas must not be forgotten in the turmoil of changing the National Health Service in the fundamental ways outlined in the Bill.

This weekend I had the pleasure of attending the annual conference of the Dispensing Doctors' Association in Chester. I heard at first hand the worries that dispensing doctors and those who work with and for them face. They need to be consulted as changes are proposed. They feel-rightly or wrongly-that they are not given a fair crack of the whip at the present time and that their needs appear to be subsumed under the viewpoint of those working in the overall NHS. If the term "rural" is spelt out in the Bill, it would be much more difficult in future to pass over the needs and aspirations of those working in the health service in rural areas and of the patients themselves, whose involvement is so important.

I feel particularly passionate about these issues, and hope that the Minister will understand my reasoning and have sympathy towards it. I beg to move.

10 pm

Baroness Jolly: My Lords, given the hour, I shall be brief. I understand exactly why the noble Baroness, Lady Gibson, has tabled the amendment. I come from the south-west and my GP practice is 25 miles from where I live. The hospitals are 25 or 50 miles away. The noble Baroness and I share that sort of background. The amendment would work in the south-west, the north-west, the north-east, or even north-east Lincolnshire. We have factors of distance, sparsity and rural poverty which are often hidden in poorly measurable clusters.

Before I came here I had a view about policy and legislation being made in a bubble in the south-east and being very metropolitan-based. I had hoped that when I arrived here I would find to the contrary, but I confess that I have not. For a while I was linked with a Defra team and corresponded with a Defra Minister about rural-proofing legislation. It is fair to say that he was not hugely optimistic, but someone really needs to say, "Would it work in a rural area?". My noble friend Lord Greaves has already started this job on the Bill and has tabled an amendment-and I fear there may be more-about district councils. They play a hugely vital part in areas of rural England that have not become unitary authorities. In one or two areas of the Bill-perhaps in a few more-there are instances where district councils need to be factored in.

Perhaps the Government should have some sort of rural policy champion-I hesitate to use the word tsar. I should be grateful if the noble Earl would give us his assurance that that will happen for this Bill.

Baroness Thornton: My Lords, my noble friend Lady Gibson is to be congratulated. I particularly indentify with her remarks about dispensing chemists. As she knows, I supported her on this when I was on

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the other side of the House, and the issue is close to my heart. She and the noble Baroness, Lady Jolly, have raised a very valid issue and I look forward to hearing the Minister's remarks.

Earl Howe: My Lords, the amendment tabled by the noble Baroness, Lady Gibson, and all the amendments in this group, highlight the importance of ensuring that neither rural nor urban areas are affected by health inequalities. I quite understand the noble Baroness's concerns-especially given that rural areas have unique circumstances that affect their health needs, such as a diffuse population and long travelling times for patients.

I therefore acknowledge that some significant issues face rural and urban areas, as was highlighted by the Marmot review. In particular, there are concentrations of shorter life expectancy and greater illness, and these tend to occur in some of the poorest areas of England, most of which are urban areas of deprivation. There are particular challenges with the provision of services in rural areas due to the higher cost of delivering services in more locations and the greater sparsity of rural communities.

However, although I am very sympathetic to the noble Baroness's intentions, I do not feel that the amendments are the most effective way to achieve her aims. Existing reference to "England" or "its area" in the Bill already includes every type of population, including rural and urban populations. The responsibilities for commissioning are absolute across all the communities and individuals for whom they have responsibility. There is no discrimination between different areas. That principle runs throughout the legislation. Moreover, the fundamental and unique change we are making to commissioning is to give local GPs responsibility for securing services for their patients. That vital principle, above all others, will make a decisive break from the past by ensuring that the needs of much smaller groups of patients can be taken into account by the commissioners.

A CCG will be exercising its statutory functions appropriately only if it is meeting the reasonable needs of all the people for whom it is responsible, not just those in particular demographic areas. The guidance on commissioning which the board must issue under the power in new Section 14Z6 could, of course, cover issues relating to commissioning in rural and urban areas.

Although the noble Baroness's amendments are unnecessary, they could also be damaging. That is because there is the potential under some of the amendments, however inadvertently, to limit the scope of the responsibilities which the Bill places on CCGs. Amendments 188 and 114 could limit the effect of the scope of the duty on reducing inequalities to a duty only in relation to reducing inequalities and access between rural and urban areas. That would not include the duty to tackle the variety of factors which can affect a person's ability to access the care that they need, such as socioeconomic background and ethnicity. The changes proposed to the Secretary of State's duty in new Subsection 1B are particularly problematic in their impact. The Secretary of State may no longer have regard to the need to reduce inequalities between

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the people of England but only between people in urban and rural areas. Similarly, Amendment 190 could limit the duties regarding reducing inequalities in outcomes to inequalities in outcomes between patients in rural and urban areas only. So I have concerns about the limitations that the amendments may impose.

Despite all that, I hope that I can reassure the noble Baroness that the Bill adequately provides for her worthy intentions-due, in particular, to its coverage of the whole of England. With that in mind, she may consider withdrawing the amendment.

Baroness Gibson of Market Rasen: My Lords, I thank the noble Baroness, Lady Jolly, and my noble friend Lady Thornton for their involvement in this short but important debate. I thank the Minister for

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what I think was his sympathetic reply and his explanation of the amendments, which was very helpful. Under the circumstances, I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendments 27 to 33 not moved.

Clause 3 agreed.

Clause 4: The Secretary of State's duty as to promoting autonomy

Amendment 34 not moved.

House resumed.

House adjourned at 10.09 pm.


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