Health Bill [HL]

My Lords, I bring us back to an issue that we debated in Grand Committee on an amendment tabled by the noble Baroness, Lady Meacher. I am referring to the private patient income cap. The cap applies only to foundation trusts. Its effect is to prevent a foundation trust from generating a higher proportion of its income from private patients than in 2002-03—the year before foundation trusts were authorised. The cap was seen as a necessary restriction because of anxiety expressed during the passage of the 2003 Act that foundation trusts might quietly and with impunity change their character and become less than fully fledged NHS bodies. In Grand Committee, the noble Baroness, Lady Meacher, made a powerful case for allowing the restriction to be relaxed. Foundation trusts are well and truly part of the NHS and will continue to be so. There is no risk of them ceasing to regard NHS patients as their prime concern and responsibility. The terms on which foundation trusts are authorised to operate, their supervision by Monitor, their governance arrangements and other safeguards all see to that. However, foundation trusts are now saying that the private patient cap is denying to a substantial and growing part of the NHS income from privately funded work that could be invested in improving services and delivering innovation for NHS patients. This is not an issue of empire-building or generating private income for the sake of it. It is about enabling foundation trusts to invest in new services for NHS patients where the business case for that investment stacks up only if an element of private patient income can be assumed. In other words, it is about deploying additional private income in order to give a better standard of service to NHS patients. It is also about enabling foundation trusts to fulfil some of the Government’s more general objectives; for example, delivering the well-being agenda and ensuring continuity of care for patients who choose to top up their NHS treatment with privately purchased services. The quantum of the private patient cap varies tremendously, and there is often no logic behind it, apart from the fact that it happened to be the product of a trading pattern of seven years ago. One feature of the cap is that it skews the playing field within the NHS: different foundation trusts have different caps, and ordinary NHS trusts are not subject to the cap at all. Some foundation trusts have a cap of 30 per cent, some work to only 5 per cent, and mental health foundation trusts have a cap of zero. The argument for these different and arbitrary income ceilings no longer holds good—if it ever did. I would like to believe that there is sympathy for this argument across political parties. I am particularly glad to see the noble Lord, Lord Warner, in his place. In his admirably frank and open way, he has publicly spoken out against the private patient cap. He did so last month in an interview with the Health Service Journal. As the Minister who took the 2003 Act through this House, it was particularly courageous of him to call this part of the Government’s policy a mistake. In Grand Committee the Minister said that she was not minded to give the amendment tabled by the noble Baroness, Lady Meacher, favourable consideration. I feel that it is right to ask her to think again. My amendment would enable exceptions to the private patient income cap to be permitted by Monitor when Monitor was satisfied that the requested departure from the cap would be in the interests of the National Health Service. It would be open to the Government to lay down any further conditions that were felt appropriate. A formula roughly along those lines is workable as well as desirable. I hope that the Minister can give me some encouragement that she will look constructively on it. I beg to move.