Health Bill [HL]

My Lords, I beg to move Amendment 1A, as an amendment to Commons Amendment 1. It is perhaps understandable that the Government should have seized the opportunity afforded by the Bill to slot into it a raft of provisions by which they clearly set a lot of store, but it is nevertheless unfortunate that we should be considering these important matters for the first time only at the very last stage of the Bill's passage through the House. Nevertheless, we are where we are, and it is, I hope, helpful that we can debate the amendment under the rules of Committee, because it certainly begs a number of fundamental questions. The first question is: why is the amendment thought to be necessary? We are here dealing with the situation in which a foundation hospital such as Mid-Staffordshire NHS Trust is found to be delivering patient care to a seriously inferior standard—an unacceptable standard. We can no doubt conjure up all sorts of imaginary examples of how that might come about. Interestingly, we are not here talking about a foundation trust whose viability is under threat only because of financial failure. We already have provisions in the Bill to deal with that situation. The amendment deals with management failure and what should be done when patients are exposed, for example, to serious clinical risk or serious health and safety shortcomings sufficient to constitute a breach of trust authorisation. Ministers are saying that in such a situation, Monitor should have the option of deciding that the trust should be deauthorised—in other words, that it should lose its foundation status and move back into the jurisdiction of the Secretary of State. What might be the point of that? The only point that would resonate with me is the likely benefit to patients, but where is the evidence that bringing a hospital back under the aegis of a strategic health authority would be more likely to solve its management difficulties than if it were kept under the regulatory eye of Monitor? All the evidence points in the other direction. Take the example of Maidstone and Tunbridge Wells. The fact that Maidstone and Tunbridge Wells was in the direct line of sight of the Secretary of State made no difference to the catastrophe that occurred there. The very serious management problems that emerged in Mid-Staffordshire Hospital were ones that began long before it achieved foundation status. They were there when it was still an NHS trust under the direct scrutiny of the strategic health authority and, by extension, the Secretary of State. By contrast, it is a matter of common agreement that Monitor has an extraordinarily successful record as a regulator. It has extensive powers of intervention, as the Minister mentioned. It has used those powers on a number of occasions to great effect. Where trusts have breached the standards set out in their terms of authorisation, Monitor has, in every case, taken action that has brought them back into compliance. Sometimes, this kind of action need only be informal, but if we look at the provisions contained in Section 52 of the 2006 Act, we are rapidly reminded that there is no shortage of weapons at Monitor’s disposal, should it chose to deploy them. I find it difficult to imagine a situation where to resolve a failure of management, it would be thought better to move a trust out of Monitor’s jurisdiction and into that of Ministers. Therefore, my first question to the Minister is about the evidence that has led the Government to believe that there really is a regulatory gap here. The gap identified by Dr David Colin-Thomé was much more about better co-ordination and communication between the various regulators than it was about deficiencies in legislation. My next question relates to some of the wording in the amendment. New Section 52B covers the conditions governing the serving of a notice by the regulator. To paraphrase this section, it says that the regulator may give the Secretary of State a notice if it is satisfied that a foundation trust is contravening any term of its authorisation or any of its legal obligations and that the breach, whatever it is, is serious enough to justify deauthorisation. If we compare the wording of this section with new Section 65D(1), which deals with the process leading up to the appointment of a trust special administrator, we find a clear difference. New Section 65D states—again, I paraphrase—that the regulator may give the Secretary of State a notice if it is satisfied that a trust has already failed to comply with a notice served under Section 52 and that further exercise of Monitor’s powers under Section 52 is not likely to rectify the problem. In other words, a notice under new Section 65D is there very much as a final resort when all else has failed. There is no flavour of that idea in new Section 52B. There is nothing there that suggests that a notice to deauthorise is appropriate only after Monitor has exhausted its intervention powers. Why is that? For example, it is quite possible to imagine Monitor being satisfied that a trust was committing a serious contravention of its terms of authorisation, while at same time believing that the contravention was capable of being remedied without deauthorisation being necessary. The absence of any provision making clear that Monitor may and, indeed, should treat its powers in new Section 52B as a measure of last resort is slightly worrying. Can the Minister confirm that it does not lay Monitor open to the possibility of judicial review? Let us imagine that at a certain foundation hospital, there was a serious failure of care and the course of action taken by Monitor to remedy it stopped short of going down the deauthorisation route. Let us further imagine that someone thought that that decision was quite wrong and that deauthorisation was the only appropriate course to take. Could Monitor be open to legal challenge? In other words, does new Section 52B send a signal that deauthorisation should be treated as just an alternative to the normal remedial measures that Monitor has at its disposal? I very much hope that the Minister will say that this is not so, but it is not obvious from a straight reading of the text. I turn now to the subject of my amendment. To add greater clarity—as I noticed that the Marshalled List does not print line numbers, whereas the amendment does refer to line numbers— the amendment seeks to leave out proposed new Section 52E in the government amendment. As the Minister has explained, we see at the end of the government amendment proposed new Section 52E, which would give the Secretary of State a statutory power to request Monitor to consider exercising its power to commence the deauthorisation of a foundation trust. I heard what the Minister had to say about this provision. She said that it amounts to a request and no more than that. Monitor is at liberty to decide not to commence the deauthorisation process and all it has to do is publish its reasons for not doing so. All this sounds innocuous, but is it? I think we should consider very carefully whether this is a step we wish to take. When we debated what became the 2003 Act—the Act which established foundation trusts—the one cardinal feature of the new regime, as the Government were keen to emphasise, was that Ministers should not be involved in operational decisions about the delivery of healthcare by foundation trusts. That principle was the very reason why Monitor was created as an independent regulator—accountable directly to Parliament, not to Ministers—and why foundation trusts were made accountable to their governors and members, as well as to Monitor. It was explicitly recognised that, however tempted Ministers might be to weigh in if something ever went wrong in a foundation trust, it would not serve anyone’s interests if they actually did so. Other mechanisms would instead kick in. The independence of foundation trusts, and their freedom from political manipulation, were the key features that would underpin their ability to raise standards and to be responsive to the needs of their patients. I maintain that the power contained in proposed new Section 52E, innocuous as it may look, oversteps the line of political interference to which I have just referred. It is one thing for a Minister to make an informal request to Monitor: nobody can have an objection to that and legislation is not required for it. Here, however, we have not only a statutory power given to Ministers, but also a bit of sleight of hand. If we read the wording carefully, we see that what is termed a "request" is in fact akin to an instruction. Upon receipt of a request from the Secretary of State, the regulator has no choice but to take certain action. It has to go through the process of deciding whether it is satisfied that there is a serious contravention or failure in the trust concerned, and it has to give formal consideration to the matters listed in proposed new Section 52C. It must, then, either serve a notice to deauthorise, or publish its reasons for not doing so. In other words, Monitor cannot just say "no": it cannot just decline to take any action at all. What we see here, therefore—albeit in a disguised form—is a power of direction over Monitor. That, for me, is one step too far. If one thinks of the kind of situation which might give rise to a request from the Secretary of State to Monitor, it is highly likely to be characterised externally by intense media interest and intense pressure on the Government to do something about a reported problem in the hospital concerned. Ministers will find it difficult to protest, in the midst of a media feeding frenzy, that they are not accountable for what may or may not be going on. So their safety valve, politically speaking, is to put public pressure on Monitor. Looked at in the cool light of day, the statutory power contained in proposed new Section 52E is simply a means of allowing Ministers to grandstand on an operational issue for which, as a matter of law, they are not responsible. The proper course is not for Ministers to be given a statutory power to order Monitor about, but rather for us to remind ourselves what we agreed in 2003, which is to let Monitor do its job in the way it was set up to do and which it has proved it can do, free of political second-guessing. I should like to hear the Minister’s reply to this. It will not be lost on her that I think that this entire government amendment has been rushed into the Bill with undue haste and that new Section 52E has been inserted as a result of misplaced ministerial backsliding on a key point of principle. For myself, I do not think that that is the direction of travel we should be taking. I therefore beg to move.