My Lords, like the noble Earl, I make a happy, though unexpected intervention in the proceedings of this Grand Committee. I thank him for giving me advance warning that he intended to move an amendment on the question of trust mergers. I certainly would not oppose the amendment, but I should like to put some points to him. As this is being introduced at such a late stage, perhaps I could ask him about the Department of Health’s approach to deregulation, because it is entirely relevant to the amendment.
The noble Earl will know that a later clause in the Bill introduces a new duty for non-economic regulators to have regard to the desirability of promoting economic growth while exercising their regulatory functions. From the list that we have been given by the Government, we understand that the Care Quality Commission is encompassed in the list of organisations to which the new provisions may apply. The Opposition have asked the CQC for its views on the clause, but we have been informed that the Department of Health has told the CQC that it was not appropriate for the CQC to respond to our query, given that it is an arm’s-length body of government. I am surprised by that. As the noble Earl has frequently said to us, the CQC is an independent body. I am surprised that the CQC even approached the DoH for advice, and I am shocked that the DoH should prevent CQC from giving its advice to parliamentarians on the Bill. I do not expect the noble Earl to respond to this point today, because I doubt that he could, but I ask him to respond to me in due course.
What is the Department of Health’s approach to deregulation? My understanding is that it is in favour, and recently told the Health Select Committee that, unless issues of public safety are concerned, it is not in favour of extending statutory regulation to other professions within the health service, which is entirely consistent with what Ministers are saying in the Bill.
The noble Earl will not be surprised that I then want to ask why the department is still attempting to require non-doctor public health specialists to be statutorily registered. I recently asked a Written Question about that. I cannot for the life of me see that public health non-doctors pose any risk to public safety. That conviction has been reinforced by the evidence that the Professional Standards Authority for Health and Social Care, which is the overarching regulator, has now given to the Government, in which it confirms my view that minimal risks are posed by public health specialists. There is a very limited number of them. Whether they are statutorily regulated or not is not a
major issue. The problem is that, by so doing, the Government are threatening the viability of a voluntary register, the UK Public Health Practitioner Register, because it depends on the fees of those non-doctor specialists for its viability. I should have thought that a voluntary register accredited by the Professional Standards Authority is just what a deregulatory approach would lend itself to.
Again, I do not expect the noble Earl to give me a response today, but I wanted to raise with him that there is considerable puzzlement that a Government who brought forward this deregulatory Bill is hell-bent—for some reason that no one can understand—on forcing a statutory approach to non-doctor public health specialists, which will put at risk a voluntary register that is entirely consistent with the deregulatory approach that the Government are taking within the Bill.
I will ask three or four questions about the noble Earl’s amendment. It arises from the issue in Staffordshire. Essentially, the services that were being run by the Mid Staffordshire foundation trust are being transferred to two other trusts: North Staffordshire and the Royal Wolverhampton, one a foundation trust and one an NHS trust. The technical amendment that the noble Earl has brought forward seems eminently reasonable in that context, but I wonder whether he would care to reflect on the process by which that has occurred. He will know of the trust’s special administrators, who were appointed to deal with the problems at Mid Staffordshire. I was very surprised that the estimated cost of that process has been between £12 million and £15 million. Can the noble Earl confirm that and say whether he really thinks that we got value for money from that process?
The second question is whether he can assure me that this new amendment will not make it easier to force through mergers without proper public consultation. Staffordshire health service has a bit of form recently. He will know that the clinical commissioning groups have made some very controversial decisions, including—I think this was announced yesterday—the outsourcing of much of their commissioning responsibility. It is notable that the CCGs are very reluctant to debate or discuss those proposals in public. We have debated Lewisham hospital in south London, which is in a special administration process, and we have had some discussion about how services in Staffordshire are to be reorganised. I have been to a number of meetings in Staffordshire and there is real concern that a lot of these major changes are taking place without adequate public consultation. For instance, in relation to services in Mid Staffordshire, assurances were given—it was called the double-lock assurance—by the Secretary of State that there would, as I understood it, be proper public involvement and support for the changes. I am not entirely sure that that has happened.
I would just like to make two further comments. As I understand it, by statute, mergers have to be approved by Monitor, the economic regulator for NHS foundation trusts—and presumably, for non-foundation trusts, by the NHS Trust Development Authority, acting on behalf of the Secretary of State. In the light of experience, does the noble Earl not think that the Secretary of
State should have to give their approval to mergers even if they involve foundation trusts? I realise that this amendment is based on parent legislation that goes back further than 2006—perhaps to 2003—and that we now have a much more fragmented system than we had then.
A trust merger is not a business arrangement; essentially, what usually happens is that one trust has fallen into a great deal of trouble and has to be rescued. That will often have a dynamic impact on the services to be provided; Mid Staffordshire is a good case in point. Given that, should the Secretary of State, because of his direct accountability to Parliament, not have to sign off that merger? The noble Earl may know of Clive Efford’s Private Member’s Bill, which I think is being debated in the Commons on Friday. There is a clause in the Bill which actually says that the merger of NHS trusts or foundation trusts should require the consent of the Secretary of State, so I am sure that this is a matter to which the department will be giving consideration.
My final point is about the impact of the amendment on PFI schemes. The noble Earl has already explained about the transfer of criminal liabilities, which makes eminent sense, but let us say trust A is being acquired by trust B. As I understand it, trust B takes on the liabilities of trust A. But what happens to the indemnity that the Secretary of State has made in respect of a PFI scheme entered into by trust B? When trust A takes on trust B’s liabilities, including possibly a PFI scheme, does the Secretary of State’s indemnity also now apply to trust A? I understand that the Department of Health has said that it does not and I would be grateful for some clarity on that.