Health Bill [HL]

My Lords, I, too, rise to speak to Amendment 72. It provides for the regulator, Monitor, to permit exceptions to the private patient cap if, ""in all the circumstances it is appropriate to do so in the interests of the National Health Service"." Clearly, that would be an improvement on the present situation, but I believe that this amendment could be enhanced to provide better protection for NHS patients in particular. One could envisage within this amendment that some detriment might be caused to NHS patients even if overall there would be a benefit to the NHS. We have to be careful that we do not permit private patient work to be developed when this could have a direct detrimental effect on some NHS patients. As noble Lords will be aware, I did propose an amendment on this issue in Committee, and I want to elaborate on the two issues here. One is the prevention of foundation trusts developing work which could be beneficial to the NHS; but also we need to tackle the problem that, within the cap, there are foundation trusts up and down the country which are pursuing private patient work perfectly legitimately, to the detriment of the NHS and NHS patients. The National Health Service Act 2006, which enhanced the 2003 Act—if one wants to use the word "enhance"—stated that private patient work could be developed so long as it, ""does not to any significant extent interfere with the performance by the NHS trust of its functions"." I have concerns about that section, yet that is in place at the moment, and foundation trusts are understandably operating to it. As we discussed in Committee, the private patients cap varies across trusts, as the noble Earl, Lord Howe, has mentioned, from acute trusts to mental health trusts—there is no logic at all. It also depends upon the level of private patient work in 2003. We are all agreed that the structure of the cap, as at present within the legislation, is illogical, unhelpful and unjust. Something needs to be done to introduce a framework for private patient work which achieves a level playing field and, at the same time, ensures that some key principles are satisfied—first, that private patient services will not cause detriment to NHS patients; secondly, that these services will provide net gains to the NHS; and thirdly, that the core values of the NHS will not be diluted or adversely affected. This issue is of substantial significance to the NHS from an entirely different perspective from that alluded to by the noble Lord, Lord Warner. If we can achieve the right framework for private patient services, which properly protects NHS patients, then this country could greatly benefit—and I really do mean greatly—from the export potential of our medical expertise. We could then hope to maintain the development of the NHS and the pace of service improvements which have been achieved over the past 10 years, despite the inevitable squeeze on NHS resources and funding which we can all anticipate over the next decade. Our top universities are substantially subsidised by their foreign students, and British students benefit. There is a clear parallel. Already, top hospitals have begun to get into the export market. Good trusts across the country could follow that lead, but only if the current legislation were amended. We are at the moment blocking off an incredible opportunity, and we could do something about it. I am in discussions with noble Lords about the possibility of bringing back a new amendment at Third Reading. I realise that Third Reading is not the ideal time for amendments. However, if we could find a way to achieve our objectives for NHS patients and for the NHS as a whole, that could transform the prospects for our NHS patients in the years ahead.