Health Bill [HL]

Amendments 73 and 75 seek clarification on how the powers will be used in relation to triggering the regime and the powers to direct the trust special administrator. Amendment 73 seeks to limit how the Secretary of State could use the provisions outlined in the Bill. In drafting the legislation, we have drawn on the existing text in the National Health Service Act which relates to orders dissolving NHS trusts, where the test for making the order is that the Secretary of State considers it, ""appropriate in the interests of the health service"." The amendment removes some of the flexibility that exists in the application of the regime. Using "necessary" rather than just "appropriate", as the amendment proposes, imposes a higher standard before the Secretary of State can appoint a trust special administrator. This means that if there were other options for addressing a trust's problems that were deemed to be appropriate, the appointment of a trust special administrator could not be said to be necessary, even if doing so might offer the best outcome. The noble Baroness, Lady Cumberlege, mentioned that in terms of timings and appointments. We do not want to be prevented from using the regime where it is most needed. Let me clarify what we mean by "appropriate". The established term, used in existing legislation, is, ""appropriate in the interests of the health service"." In making the decision, the Secretary of State will be guided by the principles of the regime, particularly that patients’ interests must come first. That is a judgment that the Secretary of State will take into account with other relevant factors. As I have said, the vast majority of hospitals and trusts are performing well, providing high-quality services to patients and managing resources effectively. Where they are not, interventions will have to be made through the NHS performance framework or Monitor’s compliance framework. In the very rare cases where these interventions are unsuccessful or the strategic health authority is not able to get plans agreed on how to address the situation, that may include recommendations from the independent reconfiguration panel, which I believe comes well before a trust reaches the stage when a trust special administrator might be appointed. Let me also reassure noble Lords that these provisions outlined in the Bill will not simply be used to tackle management issues; earlier stages of performance intervention will address such issues. They might, however, be applied to address fundamental, perhaps systemic issues, where local interventions have not been successful. Amendment 75 attempts to make it clear that the Secretary of State is not able to direct the trust special administrator with regard to the preparation of the draft report, the consultation process, or the final report. Let me reassure the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, that I understand their concerns. For this reason, I would like to place it on record that although the Secretary of State has general powers of direction in the 2006 Act, this applies only to direct the trust itself and not to direct the trust special administrator. The Secretary of State has no powers of direction on the outcome of the trust special administrator’s final report. The Secretary of State will issue guidance under new Section 65N, but this will act as an aide to the trust special administrator. It will cover general issues in relation to persons to be consulted, the factors to be taken into account and relevant publications to consider when preparing reports and information on the publication of notices. It will not be an instrument for dealing with specific cases, as trust special administrators will be required to use their judgment to adapt to the individual situation. The noble Baroness, Lady Cumberlege, referred to the independent reconfiguration panel. That panel plays an extremely important role, as we know, in advising the Secretary of State. I acknowledge that many local reports have ended up with the independent reconfiguration panels, and some have been rejected. The trust special administrator’s guidance will make that information available if the independent reconfiguration panel has carried out a review and that review has not been implemented, as a result of which the trust has ended up in the failure regime. I hope that I have been able to give sufficient explanation and background to allow the noble Earl to withdraw the amendment.