Health Bill [HL]

My Lords, I rise to support the amendment of the noble Baroness, Lady Meacher, to the Commons amendment. I do so as the Minister who took through this House the 2003 legislation setting up foundation trusts and imposing what I can only describe as the arbitrary private patient cap. Later I was also the Minister responsible for policy on foundation trusts but have no current public or private interest to declare in speaking to this amendment. I recognised at an earlier stage of this Bill that we had got the 2003 Act wrong on the private patient cap. I am pleased that my colleague, Mike O’Brien, in the other place appears to have had a Pauline conversion since our discussions at Third Reading here. We also know that lurking in the background is the attitude toward private patient income and the private patient cap of UNISON and other public sector unions. They have rather forgotten that the patron saint of the NHS, St Nye of Ebbw Vale, himself wrote into the NHS founding legislation provision for trusts to obtain private patient income and indeed for NHS patients to secure more privacy by buying a space in amenity beds. There is a long tradition of using private patient income in the NHS for the benefit of NHS patients and the development of services. We now have a situation where some FTs have a cap of 30 per cent, some of five per cent and some zero per cent. I welcome the fact that in the other place the Government have improved the situation in relation to mental health trusts. However, this still leaves some 75 per cent of foundation trusts below that cap, according to the excellent piece of work circulated to Members of this House by the Foundation Trust Network. I find it extremely disappointing that, for reasons of their own, the Government are unwilling to apply the 1.5 per cent ceiling consistently across foundation trusts. The Foundation Trust Network’s excellent briefing sets out some of the missed opportunities presented by these new, equally arbitrary, arrangements from the Government, both for foundation trusts and for NHS patients. As that briefing paper illustrates, the Government’s position is a bit of an own goal in that it thwarts its own policies on well-being and top-up of NHS services. The amendment of the noble Baroness, Lady Meacher, is a moderate attempt to introduce greater coherence into the capping of FT private patient income while also protecting the interests of NHS patients. It also gives foundation trusts a good slug of additional income. I would suggest, on the Foundation Trust Network’s calculations, something of the order of £200 million a year in extra income, which buys quite a lot of extra services for people. As the noble Baroness, Lady Meacher, mentioned, it creates extra jobs at a time of difficulty in and around public finances. I would be a bit more convinced about the Government's review if the Department of Health had supported Monitor rather more vigorously over the judicial review sought by UNISON. I was concerned to find that recently, the Department of Health, acting as an "interested" party in that judicial review, is giving evidence to the High Court supporting an even more restricted position than Monitor is in now. I do not think that that bodes terribly well for an objective review of our private patient income cap. I am sorry to be sceptical but I operate on the basis of the evidence in front of me, and I do not find that terribly convincing. If they had wanted to, the Government could have dealt with this legal challenge differently by acknowledging that there were problems and by setting out their plans to deal with the arbitrary and inconsistent nature of the 2003 cap. This rather last-minute call for evidence does not totally convince me. It could have been done a long time ago and the case could have been made in plenty of time for an amendment to this Bill or earlier legislation. The amendment moved by the noble Baroness, Lady Meacher, is a practical way to improve matters while the Government make up their mind about what they want to do. I am not at all clear from the call for evidence what they want to do in this area, apart from setting out some principles with which most people would find it difficult to disagree. The amendment moved by the noble Baroness, Lady Meacher, does good for NHS patients and FTs alike and, in a modest way, helps implementation of government policy. If she wishes to press her amendment to a Division, I shall certainly join her in the Lobby, and I encourage my noble friends to do likewise.