Health Bill [HL]

My Lords, the world has moved on considerably since we last debated these matters in your Lordships’ House in May. When the Lords amendment was passed at Third Reading, the Government were not prepared to countenance a variation of the current rules on the private patient income cap because a judicial review about the operation of the cap was underway in the courts. Not only have the Government now changed their mind on that point and decided that there is no issue of principle at stake here, they have also felt able, of their own volition, to make a concession in respect of mental health trusts, as we now see in the Commons amendment before us—a concession I naturally welcome. It is instructive to read the remarks of the Minister in another place, Mr Mike O’Brien, who said on Report on 12 October: ""We take the view that the way the system operates now is not the way we want to see it operate. It is not fair. We concede that argument immediately".—[Official Report, Commons, 12/10/09; col. 70.]" Referring to the honourable Member for Eddisbury, he said: ""He asks whether we have changed our mind: yes, we have. Have we considered the matter again? Yes. Have we taken the view that we can go ahead with the change now? Yes, we have".—[Official Report, Commons, 12/10/09; col. 77.]" We are now in a strange situation. There is no issue of principle at stake any more. The Government agree that the system is not fair and needs revision; they admit they have changed their minds and accept that the system can be changed now. If all that is true, there is absolutely no argument for resisting the amendment of the noble Baroness, Lady Meacher. The amendment does its level best to defer to the Government by not asking for too much. In all honesty, the figure of 1.5 per cent which the Government have alighted upon as a concession to mental health trusts is completely arbitrary. One could argue that it simply perpetuates the arbitrary nature of the entire private patient income cap regime. There is absolutely no logic to the figure of 1.5 per cent, but it is the percentage that the Government now feel comfortable with. As an interim measure, this is certainly better than nothing. The noble Baroness, Lady Meacher is to be commended for advancing a proposal which is both moderate and reasonable. I find it difficult to imagine what rational argument the Minister can put up against it. At Third Reading, the noble Lord, Lord Warner, focused on one aspect of this issue which we would all do well to bear in mind: ""We are moving into a financial climate where the NHS …will need every penny that it can get to meet public expectations".—[Official Report, 12/5/09; col. 936.]" The noble Lord was absolutely right. The problem with doing things as the Minister suggests is that if we let this Bill go without inserting this amendment into it, it is likely to be a long time before another legislative opportunity comes before us. As the noble Baroness said, it is likely to be 2011 at the earliest before Parliament is able to revisit this matter. That is not acceptable. More to the point, the Government should not regard it as acceptable given that they now agree that the current rules cannot remain in place. The Government have announced a rapid review of the private patient income cap and have issued a paper calling for evidence about it from the NHS. This review is unlikely to bring much to the table because the Government already know the system needs to change pretty radically. A key point is the need to provide foundation trusts with a breathing space, which is just what this amendment would do. Some 75 per cent of existing foundation trusts have a private patient income cap of less than 1.5 per cent. A lot of trusts are not being permitted to meet the needs of their NHS patients as fully as they would like to do by investing in new services, trusts whose NHS budgets are stretched to breaking point because they are barred from generating any additional private patient income whatever. The perversity of the situation is well exemplified by Great Ormond Street children’s hospital, which cannot apply for foundation status because if it did so it would be instantly in breach of its cap. It carries on as it is, with no restriction whatever on the amount of private patient income it can generate. Is that really what we all want? Even at this late stage, it is not too late for the Government to change their mind yet again. I hope they will do so by accepting the amendment of the noble Baroness. I shall not hesitate to follow her should she choose to test the opinion of the House.