Health and Social Care Bill

My Lords, if the noble Baroness is calling for evidence beyond the testimony of numerous NHS trusts, I am not sure what more I can offer her. I can write to her on this but there is very considerable evidence—almost a priori evidence—that if you restrict a trust’s ability to earn income which would otherwise go to improve facilities for NHS patients, you are damaging the interests of those NHS patients. That is an argument that we have consistently put forward ever since the 2003 legislation. However, it is also an argument that I recall Ministers in the previous Administration making when we last debated this subject at any length. I was going to point out too that NHS trusts as distinct from foundation trusts do not have a private income cap. A number of them earn private incomes well in excess of many foundation trusts. There is absolutely no evidence that these providers are ignoring NHS patients as their prime responsibility—no evidence at all. A number of noble Lords, not least my noble friend Lady Williams, have tabled amendments in this area to ensure that foundation trusts must protect the interests of NHS patients above all and that public money should not subsidise private care. I wholeheartedly agree with that. I would like reassure noble Lords of the safeguards that the Bill already contains to this end. Some of these safeguards are prospective in nature and some are retrospective. First, foundation trusts will continue to be bound by their principal legal purpose, which is to provide goods and services for the NHS in England. I am going to move Amendment 299ZA today to state explicitly that ““principal purpose”” means that the majority of every foundation trust’s income must come from NHS service provision. That amendment will make it certain that the trusts are NHS providers first and foremost. I admit to my noble friend Lady Noakes that this is something of a belt and braces amendment, but I believe that it directly addresses the main concerns voiced by my noble friend Lady Williams. The second safeguard is that the Bill would make foundation trusts more accountable and transparent to their public and NHS staff. My second amendment in this group, Amendment 299AZA, would support that by requiring every foundation trust to explain in its annual report how its non-NHS income had benefited NHS services. The Bill gives governors, who represent the public and NHS staff, greater powers to hold directors to account and this amendment would help them do so. My noble friend Lord Clement-Jones sought to place additional duties on directors. The Bill would also place an explicit duty on them to promote the success of their foundation trust with a view to maximising benefits for its members and the public. If, for example, directors were to pursue private patient activity against the interests of members and the public, the governors would be able to, and they should, use their new powers to challenge directors or they could use their existing power to remove the chair and non-executive directors.