My Lords, it is a great pleasure to follow the noble Lord, Lord Alton. When he speaks about the frailty of the NHS supply chain—I must declare my past presidency of the Health Care Supply Association—I am sure he is absolutely right to put these penetrating questions to the Minister.
I have two amendments in this group, Amendments 171 and 172, but I also want to speak to Amendments 3 and 173 in the name of the noble Baroness, Lady Brinton. She has rightly pointed to the potential confusion between two pieces of legislation in relation to the National Health Service and the procurement regime that it is to adopt in the future. The difficulty is compounded because, of course, we have not seen the draft regulations in relation to Clause 111, nor have we seen the draft regulations in relation to the amendment made in the Health and Care Act 2022 to the National Health Service Act 2006, after Section 12ZA. The 2022 Act gave huge powers to Ministers to establish their own procurement regime through regulations.
Clearly, there is every potential for confusion as to how these two sets of legislation are to work together, particularly if only NHS clinical services are to be covered by the disapplication in the Bill. That leaves a lot of questions for those working in the health and social care sectors as to how they are to operate the new processes. Given the nature of NHS commissioning and services, there are big questions about what happens if a contract incorporates clinical and non-clinical services. Under which set of regulations is procurement to be undertaken? Large hospital contracts—PFI contracts—often contain a mixture of clinical and non-clinical services, and the terms of the contract can sometimes last for 20 or more years.
Indeed, the more fundamental question is how we define “clinical services”. Some hospitals contract with private sector operators to provide, say, laboratory services the staff of which are employed by the private sector contractor. I would have called those clinical services; they are clearly directly related to clinical outcomes for patients. I am not at all sure how that is going to be covered by the two separate pieces of legislation. Of course, the NHS Confederation, which represents the bodies that operate the health service at the moment, including integrated care systems and NHS trusts, is obviously concerned about the confusion and potential distinction between the two sets of legislation.
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We are in a situation where the 2022 Act was bringing in, as I understand it, a new set of collaborative arrangements, following the legislation from the noble Lord, Lord Lansley, in 2012, which focused more, I believe, on a marketised approach to health. At the local level, integrated care systems are meant to draw together not just the NHS but local authorities to develop common services and to integrate services as much as possible. Again, it is perfectly possible that a service could be clinical, social care or a combination
of both, and in many cases it would be desirable to speed up the flow of patients through hospital to give them better provision and support in the community. In my view, that would be a clinical service but some of those services would be applied to social care, and under this provision I assume that social care services are outwith the curtail of this legislation. What is an integrated care system to do if it is attempting to agree a contract which applies to both services? Listening to Health Ministers is exactly what integrated care systems are meant to do.
I do not know when Third Reading is but there needs to be an awful lot of information provided and work done between now and them so that we can fully understand the implications of what is contained in Clause 111. There has been no impact assessment, as I understand it, in relation to the interrelationship between these two pieces of legislation. At the very least, those people working in the health and social care sector need to have some assurance that before this Bill becomes an Act much more information and awareness are made known. In the meantime, the noble Baroness, Lady Brinton, is right to pursue what she is seeking to do in her amendment.