My Lords, I shall speak also to Amendment 65. In Grand Committee, a number of us raised concerns about the rolling out of pharmaceutical needs assessments and, in particular, what we saw as the lack of readiness within PCTs to implement the new system in the way that the Government clearly intend. The noble Lord, Lord Faulkner, and I expressed the worry that PCTs are not yet well equipped to gauge the needs and preferences of those who live in rural and less densely populated areas.

A few months ago, the Government published a White Paper, Pharmacy in England: Building on Strengths—Delivering the Future. I thought that it was a very well written document but in it the Government made a very frank admission about PCTs in relation to pharmaceutical needs assessments. They said that there was,

“considerable variation in the scope, depth and breadth of PNAs”.

We can read between the lines on that. They went on to say:

“The Government, however, concludes that commissioning development within PCTs is not yet at a stage where PCTs can be charged with full responsibility for contracting. A different approach is required while important developmental work to build commissioning systems and structures is under way”.

My concern is that the Government now appear to be formalising a process that is not yet fit for purpose. Unfortunately, I do not think that it is being oversensitive or overcritical to sound a note of warning about PCTs’ competence in this area. In Grand Committee, I highlighted the concern about the ability of PCTs to commission enhanced and advanced services. Data from the NHS Information Centre tell us that between 2006-07 and 2007-08 the number of out-of-hours services commissioned by PCTs from community pharmacy declined by 9 per cent; in the same period the number of home delivery services commissioned from pharmacy declined by 47 per cent; and only 138 community pharmacies out of more than 10,000 were commissioned to provide prescribing services to GPs. Those figures do not tell one that PCTs are very adept at implementing change with the necessary element of speed.

Noble Lords who read the Pharmaceutical Journal may have seen a recent article which lambasted two particular PCTs in the Home Counties, which I shall not name, for the snail-like pace at which they deliberated and then further deliberated over the provision of emergency hormonal contraception, a service that is already accepted as an enhanced community pharmacy service to be rolled out nationally. The same PCTs came up with a bizarre formula for promoting smoking cessation services, which made no sense at all to the local LPC.

On PNAs, I am worried that we simply do not yet know enough about how the needs assessments will actually work. It will take time for PCTs to get up to speed with them, just as it has in other fields of activity. The amendment that I spoke to in Grand Committee would have obliged PCTs to take into account the needs of rural populations when carrying out a pharmaceutical needs assessment. One runs into difficulties when trying to define what “rural” really means in this context, so I have not brought that amendment back again. Instead, I have tried to reflect the underlying concern voiced by a number of noble Lords, which was the perceived risk to dispensing doctors posed by the PNA process. We know very well how highly valued the services of dispensing doctors are to communities in less densely populated parts of the country. The fear is that, in allowing a new pharmacy to open in a particular area, a PCT may not fully take into account the impact that that may have on existing services delivered by dispensing GPs. About 4 million people are currently looked after by such GPs and, while I would not want to suggest that the livelihoods of dispensing doctors should be insulated against all possible competition, the knock-on effect of a narrowly based PNA decision could be very serious.

Three months ago, the Commission for Rural Communities published a bulletin in which the special challenges of delivering healthcare in remote rural areas were well articulated. Although on average those who live in rural areas have a high quality of life, the poorest and most disadvantaged residents, of whom there are many, experience consistently lower levels of physical and mental health. To make life more complicated, much of this rural deprivation is hidden. The rural elderly are not only more reliant on health services but also reluctant to use them because of the long travel times involved. Public transport, as we know, can be quite poor. It is significant that GPs and community nurses undertake more home visits in rural areas and see a lower number of patients per day than their urban counterparts, largely because of travel distances. Also, out-of-hours services may be located further afield than is ideal.

At the back of it all is the funding formula: per capita NHS funding for more affluent rural areas is 30 per cent lower than it is for more deprived urban areas. That is because the age profile of different areas has considerably less weight in the funding formula than is perhaps appropriate and right.

This is not an amendment that is appropriate to press to a Division. However, I would ideally like an assurance from the Minister that the regulations to be published on this subject will include a mandatory requirement that the needs of rural populations, the needs of the elderly and the needs of the disabled must be fully taken into account in future PNAs. I hope that this is something that can be considered. I beg to move.

My Lords, the noble Earl, Lord Howe, seeks to put a requirement in the Bill for primary care trusts to refuse a new application under the proposed new entry test if that application has an adverse affect on existing primary care services.

For the last 20 years, as noble Lords may be aware, whether a pharmacy contractor provides NHS services has been largely determined by the regulatory system known as “control of entry”. An application will succeed only if a PCT considers it necessary or expedient to grant it in order to secure adequate provision of NHS pharmaceutical services locally. Over the years, this test has been subject to considerable review by the courts.

The test is set out in Section 129 of the National Health Service Act 2006. Clause 24 amends that section to replace the test so that PCTs will in future determine whether a new prospective provider will be admitted to a PCT’s pharmaceutical list—or whether an existing listing can be amended—by reference to, and determined against, its pharmaceutical needs assessment. Regulations will set out the detailed requirements of what must be contained in those assessments and may prescribe matters that a PCT must consider when making a decision on an application.

One of our key concerns in proposing this new regime is that it should not be used in such a way that PCTs can simply refuse applications without sound and objective grounds, but I fear that that could well be a consequence of the amendment. It would unduly restrict new entry if it enjoyed special status above all other considerations. I understand that the noble Earl is probing how the regulations will work, how they will be applied and, indeed, the competence of PCTs to ensure that this is done in a proper and appropriate fashion. We must strive to achieve the right balance between appropriate PCT controls and contractor freedoms without imposing undue restrictions or burdens and without severely restricting choice and competition, ensuring that the right considerations are taken into account in terms of rural matters, the elderly and the other issues that the noble Earl identified.

Nevertheless, we recognise those concerns, which revolve around the detail of the new regime. That is why we proposed, when we consulted on these measures last autumn, to carry forward a number of factors introduced in the 2005 regulations that help PCTs to reach their decisions. These factors are: the level of access; the choice and diversity of providers or of services; innovation; the services available to specific populations or to meet specific health conditions or disease needs; and the overall long-term impact of approving new applications. We are in fact already addressing the concerns raised by the amendment in the new regulatory framework. Nevertheless, we cannot accept the amendment. There is another reason why we find it difficult to accept. Each application will need close evaluation and the evidence to be weighed. As I have said, the amendment appears to give pre-eminence to one specific factor over all others.

The noble Earl also talked about rural areas and asked how those should be taken into consideration. I stress that the safeguards that exist will also continue under the new regime. He asked about PCT capacity. Subject to parliamentary approval, new regulations to be derived from the powers of the Bill will set out the requirements for how and when the assessment should be made, including a time period by which a PNA should be produced and requirements for consultation. Guidance on commissioning pharmaceutical services and more detailed advice and information on the needs assessments and what they should contain were published on 31 March. They are designed to provide a comprehensive support programme for primary care trusts to achieve the necessary capability to be commissioners of high-quality pharmaceutical services. The toolkit on pharmaceutical needs assessment will be published shortly. It is important to give the right kind of support in this area.

We believe that our proposals are the right path for pharmacy to follow—otherwise it will remain rooted in the last century. Equally, we recognise that all parties should be given the opportunity to be involved in the technical details of the regulations to come and their implementation. We therefore expect to work closely with interested parties, including NHS and contractor representatives. I hope that I have given the noble Earl sufficient assurance that, as we move forward to a new system such as this, safeguards will be built in and that there is no need to add the specific matters in the amendment. I therefore ask the noble Earl to withdraw his amendment.

My Lords, I am grateful to the Minister for her reply, which was in large measure reassuring. She acknowledged that there is a concern about the readiness of PCTs. The pharmacy White Paper included a further statement at paragraph 8.67:

“Given the Government’s conclusion that commissioning development within PCTs is not yet at a stage where PCTs can be charged with full contractual responsibilities, there will remain a ‘control of entry’ regime”.

I would feel much easier about PNAs, which in principle I think are a perfectly sound idea, if we could be more definite that they would not be rolled out until it is absolutely clear that PCTs have the capability to properly implement them. From what the Minister said, I think that the Government are conscious of this. I hope that we will not see any unexpected disasters along the way. It is something that we need to monitor fairly closely, and I think that we can do that from this Chamber. In the mean time, I beg leave to withdraw the amendment.

My Lords, since Grand Committee I have consulted widely—and indeed internationally, as I was recently in the medical world in the United States of America. Noble Lords may have noticed that I have changed this amendment since Grand Committee to suggest that a drug costing more than £10 should have its value clearly marked on the packet. The objective of the amendment—some noble Lords may remember that I tried to move it during the passage of the previous Health Bill in 2006—is to ensure that the patient realises what value for money they are getting which, I strongly believe, would encourage them to finish the prescription and thus save having repeat prescriptions. That in turn would save money. Another school of thought suggests that general practitioners would be encouraged to prescribe a cheaper drug at a higher dosage instead of a more expensive drug at a lower dosage. That, too, would save money. I beg to move.

My Lords, I will speak to Amendment 67 in my name. It is a classic transparency amendment: my argument is that the provision of information will alter conduct. I follow modestly in the footsteps of the noble Lord, Lord Palmer, who has been a doughty campaigner and persistent advocate on this matter for a number of years. He whetted my appetite in Committee, since when I, too, have carried out wide consultation.

My amendment does not set a threshold, as does that of the noble Lord, Lord Palmer. His amendment is more practical; my objective is slightly different. I am trying to secure a more fundamental review of prescription-charging policy by provoking argument over the costs of generic medicines to the public in circumstances where generic drugs often cost but a few coppers, yet the patient can pay more than £7 for a prescription.

To understand the impact of my amendment, we must go back to the complicated arrangements for remunerating pharmacists, and also consider what options are available to the patient who wants to avoid paying a high prescription charge where exemptions do not apply. As I understand it, pharmacists receive a dispensing fee of 90p per item from the Department of Health. They can receive a practice payment of about 70p from the PCT. There is a container allowance of about 3p and an establishment fee of approximately £25,000 a year. I understand that a few additional sums are available, and that reimbursement for the cost of drugs is made by the Department of Health through the PCTs. Item-purchasing costs to the pharmacists vary, but they fall into two broad groups; the costs of generic medicines under the tariff, and the costs of branded products under the PPRS. To defend the interests of NHS budgets and the taxpayer, the Department of Health exerts pressure on reimbursement costs by applying a discount system. This is published in the tariff, which I have studied in some detail.

A cursory examination of the tariff quickly reveals the wide discrepancy between the price of some products and the prescription costs to non-exempt patients. Sometimes the cost is far higher than the prescription cost; sometimes it is far lower. Yet the cost of most generic prescriptions is lower.

Doctors and pharmacists have devised different arrangements for lessening the impact of prescription costs on non-exempt patients. Some pharmacists stock a special category of medicines that substitute for prescribed drugs. These can be sold to the patient at a price that is less than the cost of a prescription as a sort of over-the-counter product. Some have tried to get round the prescription costs by simply selling the prescribed drugs to the patient at a tariff/branded product-plus price, but that has been stopped by the Department of Health on the basis that the prescription form used is for NHS prescription use only. Some doctors give their patients private prescriptions that bypass the NHS prescription arrangements. By using a private prescription, a patient can make substantial savings on the NHS prescription price, but only of course when the retail price is less than £7.20.

What would my amendment do? It would amend the National Health Service (Pharmaceutical Services) Regulations 2005 by making it a requirement to include on the packaging of any drugs or appliances a label showing the reimbursement price. There would also need to be some further amendment in the schedule under the section dealing with terms of service for pharmaceutical contractors. By inserting the words in the amendment, we would add an additional line on information that is provided to the patient indicating reimbursement costs. That being the case, we would have to define within the interpretation provision what is meant by reimbursement price. Retail costs would be meaningless for the purposes of my amendment. For generic products the price would be the tariff price and for branded products it would be the manufacturer’s list price.

In its report on Department of Health: Prescribing Costs in Primary Care of January 2008 the Public Accounts Committee recommended:

“The Department should do more to make patients aware of the costs of drugs, and hence the importance of not wasting them, for example by displaying on dispensed drugs information such as the cost of the specific items dispensed or an indication of the typical cost of items to the NHS”.

I presume that that comment must have followed an investigation by the PAC, itself following a report by the National Audit Office. I hope that the department will take that into account.

Is it practical to do all this? Yes, because the technology is there; it is already used on private prescriptions. What would the impact be? There would be greater transparency; it may well reduce the element of wastage; it would save the patient money; there would be some unquantifiable cost to the Department of Health, and perhaps Ministers can put a figure on that. However, that has to be set against the potential for reduced wastage. Since 1997, there has been a 59 per cent increase in the number of prescriptions issued by doctors. Some useful work has been done on wastage, sponsored by the Department of Health, by a joint team from York University and the School of Pharmacy in London.

I understand that the report, which is due to be published later this year, will deal with the psychology and behavioural effect in medicine-taking. It should give us an insight into issues of wastage and, I hope, it might even point towards the scheme that I am advocating. Equally it might point the other way. On that point, I thank my noble friend Lord Darzi for the letter that he sent to the noble Lord, Lord Palmer, and me, prior to this debate, setting out the department’s position.

In many ways, price labelling might have a far more interesting knock-on effect, particularly on sub-prescription-charge generic products. It could provoke a real discussion on the future of prescription charges. Is it fair to levy such a high cost on the non-exempt groups for low-cost generics? I suggest that it is not.

My Lords, I had not anticipated playing a part in the debate on either of these amendments, but about 25 years ago, as a Minister in the then DHSS, I played a part in the move towards generic substitution.

I have a positive view about the ambitions of both amendments, but there was one problem that struck me in the comments of both noble Lords. A difficulty might arise when you have to deal with a drug which is under patent; it will be extremely expensive in its early days. When the patents run out—I do not remember exactly how long, but three or four years after the time—the labelling to indicate the cost will be markedly different between the drugs that are under patent and those that are not. That could be quite misleading to all concerned, although I entirely take the point made by both the noble Lord, Lord Palmer, and the noble Lord, Lord Campbell-Savours, about the need to ensure we are talking about the sort of things that patients who use the drugs, whether they be under patent or generic, understand.

My Lords, that will be dealt with in the review, which takes place on the price as marked in the tariff.

My Lords, I applaud the commitment of both noble Lords to this issue, but I am afraid I am not going to satisfy at least one of them. Possibly I might give some comfort to my noble friend, but it is not favouritism: there is an argument here.

The noble Lord, Lord Palmer, has added the words,

“actual cost if over £10”

to the amendment he tabled in Grand Committee. His intention in adding these words is that it will be very clear to patients what good value for money they are getting from the NHS, including those who pay £7.20 for their prescriptions. My noble friend Lord Campbell-Savours has the shared intent of making provision for adding a label to medicines and appliances dispensed to patients by community pharmacists, to indicate the cost of the product.

While both of these approaches raise practical implementation issues, our primary objection is the impact these amendments might have on patients. As noble Lords know, further to this issue being debated during the passage of the Health Bill in 2006, we commissioned a piece of research on medicine labelling. The findings of this research provided clear evidence to support our case—to reject this proposition. The research, entitled Medicine Labelling Research, was published in 2007, and looked specifically at the effects of pricing information appearing on medicine labels, and addressed the question: would people continue to waste such high levels of medicine if they were aware of the actual cost of these products?

The key outcome of this research is that labelling medicines with prices has a much more complex impact on patients’ attitudes toward their medicines than may be expected. Both amendments would present a risk to patients who need their medicines to treat their condition effectively, because higher and lower prices on medicines are linked by patients to the quality of the drug, the seriousness of the illness, the importance of the condition and the patient’s own self-worth.

The research indicates that, for expensive medicines over £10, labelling may deter patients—probably the elderly—from taking their medicine, because of the uncertainty about the price or fear of being a burden to the NHS if the price is particularly high. These and other findings contributed to a conclusion in the report that, given the various routes of wastage, there seemed to be little possibility of reducing wastage by including pricing information, and that other ways had to be found. The patient’s perspective, we believe, must come first on this issue, and therefore I cannot support these amendments.

In addition, there are several significant practical concerns. It was clear in Committee that a number of noble Lords recognised such issues. Let us take the practical considerations. While it might be possible in most cases to provide an indicative cost by using the drug tariff reimbursement price, this will still, as my noble friend Lord Campbell-Savours recognises, be of limited value, because the drug tariff reimbursement price list is affected by such factors as out-of-pocket and broken bulk expenses that pharmacists can claim. It is also affected, conversely, by the amount that is deducted from pharmacists to compensate for the discounts they have received when purchasing items from suppliers.

There are many other practical considerations. In reality, implementation would be very complex. Dispensing contractors’ IT systems would need to have increasing functionality to put a price on a dispensing label; pricing databases would need to be up-dated, and dispensers would need to discuss the price with patients. For the amendment of the noble Lord, Lord Palmer, such changes would be required in a wide variety of NHS settings and the complexity would be increased by the intention to exclude prescriptions with a retail cost of less than £10, although some might come in and out of that band.

Furthermore, it would be difficult to justify such an approach in relation to EU single market law—I appreciate that that may not go down terribly well with the noble Lord, Lord Palmer—which describes the primary purpose of packaging and labelling as the identification and safe use of medicines.

The noble Baroness, Lady Barker, rightly recognised in Committee that the waste of medicines in the NHS has a resonance with the public. The department shares the very valid concerns of the noble Lords and others on this issue and is taking action. Medicines use reviews and repeat dispensing are in place. The department has also commissioned a very broad piece of research to establish the scale and cost of medicines that are not used and hence wasted, and to determine the varied and complex reasons why people do not take their medicines as intended. The outcome of this research, available later this year, will inform future policy development in an attempt to influence both health professionals and members of the public to reduce waste.

I listened very carefully to what my noble friend Lord Campbell-Savours said about reimbursement. I will study carefully the detail of the noble Lords’ comments in relation to pharmacies, remuneration, reimbursement and medicine-labelling, and will provide a briefing on this. In the light of those comments, I hope that the noble Lord will feel able to withdraw his amendment.

My Lords, I thank the noble Baroness very much for that full reply, and I thank the noble Lord, Lord Glenarthur, for his comments. I believe that this is a terribly important subject, and I am honoured that I whetted the appetite of the noble Lord, Lord Campbell-Savours, in putting forward his amendment. I have been contacted by several GPs, who have also said that I should take this a step further. For example, when a patient is sent for a scan or an MRI, which, as we all know, costs in the region of £1,000, he should be made aware of how very costly it is.

I have it at the back of my mind that I should like to get together with the noble Lord, Lord Campbell-Savours, and perhaps jumble together the two amendments and bring them back at the next stage. However, in the mean time, I beg leave to withdraw the amendment.

My Lords, I shall speak also to Amendment 69. These amendments have been suggested by the Joint Committee on Human Rights. As a former member of that committee, I am very happy to move the amendment in the unavoidable absence of the noble Lord, Lord Dubs. Perhaps I may give a brief explanation of the point at issue here, and I hope that the Minister will look favourably on the modest suggestion made in the amendments.

Clause 31 gives effect to Schedule 5, which will extend the remit of the Commission for Local Administration, which runs the three Local Government Ombudsmen, to enable it to consider complaints about privately arranged or funded adult social care. The Commission for Local Administration may investigate action taken by an adult social care provider or complaints that it receives. The Joint Committee on Human Rights welcomed this provision, which, it said,

“has the possibility to enhance human rights for service users”.

However, the committee raised concerns with the Minister about one aspect of the provision—namely, that the person who complains is unable to comment on the representations made in response to his or her complaint.

In replying to the committee, the Minister pointed out that the proposed new scheme is modelled on the existing procedure for dealing with complaints about local authorities and that the procedure would be largely a matter for the commission to determine. However, he noted that the usual procedure was for the complainant to be provided with the local authority’s representations and the commission’s provisional conclusions so that the complainant’s views might be taken into account before a final decision was made. He said that the Commission for Local Administration intended to adopt a similar procedure in relation to its enlarged function. Therefore, the Minister implied, there really was no problem, as good practice was likely to be followed. The Joint Committee on Human Rights felt that this was not good enough on the basis that an individual retains due process rights under the common law of procedural fairness at all times. This amendment would make the procedure fairer and put the requirement on a legislative basis, rather than leave it to the ombudsman’s discretion. I hope the Minister will accept this small improvement.

My Lords, I thank my noble friend, Lord Dubs, who is not in his place, and the noble Baroness, Lady Stern, for tabling this amendment, which would place a requirement on the ombudsman to provide individual complainants with the providers’ representations and allow them an opportunity to comment. The amendment would also require the ombudsman to send its draft statement to the complainant, the provider and any other person who may have taken the action complained about, and take any comments into account before a decision on the complaint is concluded. I fully understand the desire to try to ensure that all parties are treated fairly under the new scheme. The ombudsman considers general human rights and the principles and values of equality as part of the overall approach to its job. The ombudsman is a public authority so it has to abide with the laws on human rights.

As noble Lords are aware, the ombudsman currently operates a scheme relating to complaints made by people about local authorities. Our general approach to the new scheme is, wherever appropriate, to design the detail of the scheme to be consistent with the way the existing local authority scheme works. We are confident that the ombudsman operates the existing scheme in a way which is fair to both authorities and complainants. In the current local authority scheme, the ombudsman generally shares representations with the complainant. It will take a similar approach in the new scheme. Its aim is to establish the facts of each case fairly and reasonably. It would normally be difficult to do so without seeking the views of the complainant about what a provider has said about the matter complained about.

However, sometimes the provider’s comments on a complaint may not be relevant, or are already known to the complainant, such as previous correspondence between the provider and the complainant. Or a provider may make a large number of comments, many of which, because they identify third parties, cannot be passed on to the complainant for reasons of confidentiality. Giving the ombudsman discretion over the information to be sent to the complainant helps to avoid making the process bureaucratic and time-consuming. It is, of course, in the complainant’s interest not to slow the process down.

With regard to the requirement to send copies of all statements out in draft to the complainant, which the amendment also seeks, I should point out that statements have to be produced for all complaints, including those that the ombudsman is not going to investigate, so it would serve little or no purpose for the ombudsman to have to share draft statements simply saying that there was nothing to investigate. There would be little that the ombudsman could do if the complainant then said they disagreed, but it would add another layer of activity to the process. Under the current local authority scheme, the ombudsman generally allows parties to see its provisional conclusions following an investigation in the interests of fairness. This system works well and avoids undue bureaucracy or delays in the process.

It is very likely that disregard for the ombudsman’s decision will be a pointer to poor performance generally and will attract the Care Quality Commission’s close attention. This is both an incentive to providers to comply and a lever to improve their services. In addition, there are significant powers in the Bill for the ombudsman to make public information about providers which do not comply with the recommendations.

While it is absolutely right that the procedure must be fair to the complainant and the provider, the amendment would require something that will in practice happen anyway, while risking a layer of additional bureaucracy and removing essential flexibility. It would also mean making a legal provision that would be a departure from the current local authority scheme and the legislation governing other UK public sector ombudsman schemes. I hope that I have been able to provide sufficient explanation and reassurance to the noble Baroness, Lady Stern, and that she will feel able to withdraw her amendment.

My Lords, I am grateful to the Minister for that full reply. It was reassuring enough for me to take account of the lateness of the hour and seek leave to withdraw the amendment.

My Lords, in Committee, this amendment had wide support from all sides, for which I am grateful. The noble Lord, Lord Tebbit, is a supporter, but is taking his wife to hospital today. The noble Lord, Lord Carlile, supports it too.

A spinal cord injury can happen to anyone at any time. It can be you, your dearest and nearest, your sons, daughters or grandchildren. You can fall from a fruit tree while pruning it, have an accident playing rugby or riding a horse, or dive and hit the bottom of a pool or a submerged object. You can have a road traffic or industrial accident; you can fall downstairs or down a mountain; or you can be injured on military service. It can happen in a split-second.

If your spinal cord is severed or squashed, you can remain paralysed from the lesion down. Both my noble colleague Lady Wilkins and I have to declare an interest: we are both paraplegics as a result of accidents and were treated in spinal units, otherwise we would most likely not be here today.

I have added “cord” to the amendment. In Committee, the amendment said only “spinal”, which is far too wide. The damage to the cord is the vital element which makes these patients different and in need of specialised care, otherwise disasters happen—such as pressure sores, contractures and depression, costing extra billions of pounds to the National Health Service—because medical and nursing staff in general hospitals are not trained in this field and do not have the correct equipment and expertise.

The amendment has been tabled because the current system is failing spinal cord-injured patients. Newly injured patients are not being admitted to a specialist spinal cord injury centre in time to limit the damage and prevent further complications. Readmitted patients, too, receive inappropriate treatment in district general hospitals. While the nine spinal cord injury centres in England and Wales are doing good work with limited resources, the current system is failing to use them to the best effect.

Research has shown that two-thirds of those who sustain complete spinal cord injury as a result of cervical dislocation while playing rugby and who receive specialist treatment within four hours of injury will make a full recovery. Only 5 per cent of those receiving treatment after four hours will make a useful recovery, and none will recover fully.

There are no national data on the number of people with spinal cord injuries, but there are estimated to be 40,000 in the UK. Seven hundred traumatic spinal cord injuries are estimated to be sustained every year. A further 300 or more non-traumatic spinal cord-injured people need access to a spinal cord injury centre.

The amendment is asking for a national bed bureau for spinal cord injuries, which would enable accident and emergency teams to identify where there was a bed available in an appropriate spinal cord injury centre, so that newly injured patients could be admitted without delay. It is not a case of asking for more money to be spent on spinal cord injury care, but rather that it should be spent in a different way. A national bed bureau requires a single commissioning service. Currently a national bed bureau might identify a bed vacancy, but unless a commissioning arrangement were in place the bed could not be used. A single commissioning body would work towards a national standard of care, ensure that all spinal cord injury centres were funded to provide the same level and quality of service, and so remove the current postcode lottery. Audit funds allocated by the commissioners to ensure that funds are used by the spinal cord centres provide a framework for the exchange of knowledge, plan for the long-term future of the spinal cord injury centre service and identify gaps in service provision.

I thank the noble Baroness, Lady Thornton, for all her help. She is a Minister who understands the situation. The director of the Spinal Injuries Association, the noble Baroness, Lady Wilkins, the chair of the spinal injury parliamentary group—Kevin Barron MP—and I had a meeting with the National Health Service National Commissioning Group for Highly Specialised Services which was hopeful and useful. Ann Keen, the Minister involved, wrote that she was very pleased to hear that our team had proposed some practical solutions to improve the situation, which included co-ordinating the establishment of an England-wide strategy group for spinal cord injuries, strengthening commissioning arrangements, developing and disseminating best practice, resolving information requirements and testing the feasibility of a bed bureau approach for spinal cord injuries. We from the Spinal Injuries Association would like to see appropriate, good-quality treatment and care for all. It is cost-effective in the financial sense and vital for the patient’s well-being and for the families, who can also be devastated.

James Servars, who had a sporting injury in December and broke his neck, was in the Norfolk and Norwich University Hospital for four months on a respirator in intensive care. He has just been transferred to the Sheffield Spinal Unit. His sister tells me he feels safe for the first time since breaking his neck. He is off the respirator and has started making progress. What a wasted, expensive four months. He is now with people who know how to treat him with the correct equipment and attitude. He says he would like to help in any way he can and he thanks the Spinal Injuries Association for its help.

Because we have a very serious situation, it seems to me that there should be something written in the Bill, as it is possible there might be a change of government, a change of Ministers—they might not understand the situation—and a change of civil servants. Might the Minister therefore bring his own amendment at Third Reading so that we can be assured that progress will continue? I beg to move.

My Lords, as the noble Baroness, Lady Masham, has demonstrated so clearly, the NHS is currently failing to provide spinal cord-injured people with the care that they need. The provisions set out in this amendment would go far to improve the situation. Early admission to a spinal cord injury centre is vital to ensure that patients have the best chance of recovery to their spinal cord, and to prevent them having to be subject to further unnecessary complications such as pressure sores and contractures. Such complications can not only extend patients’ initial hospital stay by months or even by years but reduce the quality of the rest of their lives.

I declare an obvious interest as someone who was injured more than 40 years ago. Incidentally, the woman in the bed next to me when I arrived at hospital had already been there for six months, healing a pressure sore that she had received in a general hospital. She was still there in the same bed when I left. I am only too aware that my excellent initial treatment has dictated my whole experience of living with spinal cord injury. Within two days, I was flown to the Stoke Mandeville Hospital spinal centre, and despite having been catapulted into a bewildering new state of being where I could neither feel nor move, I was totally reassured that I was being given the best possible care by people who had long experience of my condition. Most importantly, my family and friends were reassured, too. I was the norm, surrounded by people in the same position as me and who were now learning how to manage their new bodies and get back to everyday life.

What a stark contrast to the fate of someone for whom a spinal bed cannot be found. They face becoming the single, depressed tragedy on a district hospital ward, with no role models to learn from, watching other patients get better and walk out, and being treated by staff who may be as new to spinal cord injury as they are. As the noble Baroness, Lady Masham, has said, since we put forward this amendment in Committee we have had a very useful meeting with the acting director of the National Commissioning Group and her colleagues. In the correspondence since, we have been given assurances that positive progress has been made to include the monitoring of beds in spinal units in NHS emergency bed services. That will be reported on by the end of May. It is also proposed that the current south of England strategy board will be extended and strengthened to include all the specialised commissioning groups.

We are extremely grateful to my noble friend Lady Thornton for all that she has done to enable this to happen. We will keep a close watch to see that progress is maintained, and I hope that my noble friend Lord Darzi can give us every assurance that he will make sure that it is, otherwise I have no doubt that this matter will be raised again when the Bill passes to the Commons.

My Lords, I have a lot of sympathy with this amendment, not least because I have had endless discussions over many years with the noble Baroness, Lady Masham, and others on these issues. Indeed, as a DHSS Minister in the 1980s, I visited a number of spinal injury units. I also had some fairly broad experience as chairman of St Mary’s Hospital, in which the noble Lord, Lord Darzi of Denham, was particularly eminent. We had a problem with the allocation of beds, particularly with the beds that were allocated to particular specialties. St Mary’s was not expert at dealing with spinal injuries; we all recognised that. One therefore had to look at the very difficult question of the intake of people through the emergency system and how they could best be moved to the places that could best deal with them. The key to much of this seems to lie in the phrase “to limit the damage”, because the same could be said to apply to those who suffer from strokes or cardiac problems. This issue may not apply solely to spinal injuries.

The identification of beds always seemed to me to be one of the more complex issues with which any of us who dealt with the administration of big DGHs such as St Mary’s had to deal, although St Mary’s is a big teaching hospital as well. It is complicated anywhere, and it will certainly be complicated in a hospital with a big emergency intake. I make no criticism of DGHs; they do their best, but they are not all equipped to do everything for everyone.

The amendment, or something along its lines, would be very welcome. It would go a long way towards helping those who have this particular affliction. It might even go a little further. I certainly have had experience of people with huge spinal lesions who were perhaps paraplegic and suffered from acute pain that might not be particularly related to that issue, but which afflicted them massively in later life for one reason or another. Such an affliction might best be treated by those with a special interest and the expertise in dealing with these things. I therefore have a great deal of support for the amendment which both noble Baronesses have put forward.

My Lords, I, too, want to put on the record my strong support for this amendment. In view of the late hour, I shall not extend the debate, but the speakers have put the case very well.

My Lords, Amendment 70, tabled by the noble Baronesses, Lady Masham and Lady Wilkins, and by the noble Lord, Lord Carlile, seeks to establish in statute a new national bed bureau to oversee the commissioning of services for spinal injuries. I am, again, grateful to those noble Lords for raising this important issue of spinal injury services, and for the helpful background information provided through the Spinal Injuries Association. In particular, I wish to commend the energy and unstinting perseverance of the noble Baroness, Lady Masham, on behalf of spinal cord injury sufferers.

As has been pointed out, the noble Baroness, Lady Masham, met the Director of National Specialised Commissioning on 21 April to discuss a range of concerns that were raised during a debate in Grand Committee. I know that the national director of specialised services was much persuaded by the accounts of patient experiences and pledged co-ordinated action by specialised commissioners; that was set down earlier this week in a letter to the noble Baroness. I hope she will forgive me if I restate some of the key points that have been agreed.

Under the auspices of the National Specialised Commissioning Group, it is proposed that a national strategy group for spinal cord injury services be established, composed of the 10 specialised commissioning groups in England, the eight specialist spinal injuries centres, and the appropriate stakeholders representing patients and the public. That strategy group will offer a co-ordinated overview of commissioning arrangements across England, and promote much closer collaborations across traditional boundaries to ensure that patients have improved access to specialised beds. Existing work on quality standards and best practice, initiated in the south of England spinal injuries consortium, will be further developed, promoted and disseminated through that group. I hope that this forum for commissioners and providers offers new ways for all stakeholders to work positively and openly together, to effect the improvements to services that we all wish to see.

It has also been proposed that a rapid feasibility assessment be undertaken to establish whether a bed bureau function for spinal cord injuries could be established using the infrastructure of the existing emergency bed bureau service that is managed by the London ambulance service. Initial discussions have already taken place, and we will keep stakeholders up to date with those developments. The debate in Grand Committee and briefings from the Spinal Injuries Association clearly identified some significant gaps in capturing accurate and reliable data. While the SIA surveys have given helpful indications, we do not yet have the full picture necessary to inform the long-term strategic directions of service planning. While specialised commissioners and their south of England consortium have taken a useful step forward, we recognise that a more systematic approach is needed across England so that our decisions are soundly based. We will, therefore, look to develop a set of data requirements with the specialist centres that could inform future strategy. This will also build on the existing programme of England-wide work supporting payment-by-results development sites.

I would also like to take this opportunity to welcome Professor Keith Willett as the Government’s new national director for trauma. Professor Willett has extensive experience in trauma care and medical management; his appointment sends a clear message of intent from the Government on these issues. I understand that the noble Baroness, Lady Masham, briefly met Professor Willett at a recent Lords’ debate.

Although the full scope of the work in which the national clinical director will be involved has yet to be finalised, an overall review of post-trauma rehabilitation— something that we hope to investigate as part of work on major trauma networks—should include spinal cord injury.

In addition, the Department of Health has recently commissioned the development of good practice clinical guidelines for adult acute and critical care services. This is led by clinicians in the field and involves a range of stakeholders. The guidance will focus on outcomes and aims to set out good clinical pathways. The scope of the guidelines will include patients with spinal cord injuries. It will include arrangements for the transfer of critically ill patients—including those with spinal injuries—between hospitals for specialist care or diagnostic services.

We have also heard from the noble Baroness that my honourable friend the Parliamentary Under-Secretary for Health has written to Ruth Carnall, the chair of the National Specialised Commissioning Group, asking for her ongoing support for the measures that we have outlined today, and for her continued commitment as part of future priorities.

I am grateful to the noble Baroness for bringing this important issue to our attention, and I hope that the proposed programmes of work will provide her with reassurance. I therefore ask her, if she feels able, to withdraw the amendment.

My Lords, I thank all noble Lords who have supported the amendment. The problem will not go away. I thank both Ministers for their help on the matter. I sincerely hope that the amendment has been useful. I think that it has. I look forward to seeing how Professor Willett can help on this matter. One thing that is certain is that there is a shortage of bed capacity for people with spinal cord injuries. That is something that the department responsible for everybody’s National Health Service will have to look at. It is a very serious problem.

Will the Minister also look at the research needs for people with spinal cord injuries? I know that the Department of Health has money for research. Rugby accidents are a research project in need of looking at.

I look forward, as does my colleague the noble Baroness, Lady Wilkins, to inviting both Ministers to the launch of a report by the Spinal Injuries Association, which will take place next month in the other place.

I thank everybody concerned. We will be watching very carefully. With that, I beg leave to withdraw the amendment.

My Lords, once again the amendment comes from a report of the Joint Committee on Human Rights. It is more limited than the other amendments in the group, but it addresses the same problem of access to healthcare for some asylum seekers.

I feel that it is not necessary to go over the ground that was extensively covered in Grand Committee. However, I will try to bring the discussions on the matter up to date. On 30 March, the Court of Appeal ruled that refused asylum seekers were not entitled to free NHS treatment. It also held that the Department of Health guidance was,

“not clear and unambiguous and in so far as it purports to be dealing with … the failed asylum seekers who cannot be returned, it is seriously misleading”.

The department responded with a promise of redrafted guidance, which would be ready in the autumn, and suggested that NHS trusts should take into account the likelihood of a timescale for a person returning to his or her country of origin when considering whether to provide free treatment. So the position is still not clear.

The Minister said in Grand Committee that:

“we recognise and respect our duty to ensure that the provision of healthcare is fully compliant with human rights principles”.—[Official Report, 17/3/09; col. GC85.]

That statement is welcome and will lead her to accept that there needs to be some movement on the issue. Those who came here seeking asylum who have been refused and yet have nowhere else to go, should surely have access to the healthcare they need. This principle needs to be clarified and set out for healthcare providers and professionals to understand. I hope that the Minister will be able to give us some reassurance on the matter tonight. I beg to move.

My Lords, I support Amendment 71, and speak also to Amendments 73 and 74 in my name and the name of the noble Baroness, Lady Barker, and the noble Lord, Lord Judd. The point I wish to make to enlarge on the remarks of the noble Baroness, Lady Stern, is that her comments dealt with those asylum seekers who have failed the test to stay here but cannot be returned home. There is also another group who can be returned home but have to wait for all sorts of reasons. As I said in Committee, having had a constituency near Heathrow Airport, I know that many such cases were being appealed and the appeals take a long time. It may be years before they are eventually deported. I am incredibly concerned about that group of people.

Following the latest court ruling, failed asylum seekers are still not to be considered as residents of the United Kingdom and are liable for charges for all secondary healthcare except emergencies, whatever they may be, and compulsory mental health care and infectious diseases. There is a list of infectious diseases that they must be treated for. This list excludes HIV/AIDS, which I will address later.

So we have a situation where they can access primary care but because they are told that they must pay for secondary care, many of them do not dare to access primary care because they think that some terrible thing will happen and they will be revealed to the authorities, or they will be charged even though they were told it was free. So among this group there is a great fear of charges and of being ill. A failed asylum seeker who has diabetes has a chronic condition that can become an emergency at any stage if it is not treated. Are we to say—they are not on the list of infectious diseases—that a diabetic should not be treated except in an emergency? Are they supposed to lurch from diabetic coma into diabetic coma, just being treated as an emergency? Those patients are also susceptible to infections such as TB, which they may contract, which would be a danger to the general community. Diseases such as HIV/AIDS make patients particularly vulnerable. It seems to me extraordinary that we keep people in our community who are a danger to the public health of that community, let alone inflict on them an extremely unkind abuse of their human rights.

My Lords, I am glad that the noble Baroness, Lady Tonge, made the remark at the end of her intervention about the Government’s position on overseas aid and development. The commitment of the Prime Minister while he was Chancellor was exemplary. The whole Government have followed in tune and we have reached a stage where, as far as I can see, no major political party will go into the next general election without a determination to maintain that tradition. This is a transformation, and I say that as a former overseas development Minister; it was certainly not the case in my time.

Behind all this is not just technical theory, but compassion. It is extraordinary that a Government who have shown so much spirit of compassion in this context are still dragging their feet on this issue. I hope that even at the eleventh hour plus, my noble friend may feel able to respond in a positive way to meet the arguments that have been put forward.

I can sum this up quite simply. I put the points in no particular order of priority, but, first, there is the stress caused to the medical profession. Many members of the profession feel deeply unhappy about the situation in which they find themselves. Of course, as the noble Baroness argued, it should be a clinical decision. When I was on the Joint Committee on Human Rights, which was a little while ago now, we heard direct evidence of the administration intervening when clinical teams were treating a patient and the treatment had to stop. There is evidence on the record of the medical profession being thwarted in its commitment.

Secondly, the situation is counterproductive and illogical because, as the noble Baroness argued, if you wait until there is an emergency the costs may be much higher in the long run than if you had intervened effectively at an earlier stage.

Thirdly, it seems to me that on HIV, we are failing to fulfil our specific international obligations under conventions. It also seems to me—this point has been covered—that we are putting our own population at risk in some instances by not treating these issues properly. The present situation is totally unacceptable. We have to put it right. There have been indications from the Government that they intend to put something better in place. I am sure that what the noble Baronesses, Lady Stern and Lady Tonge, have argued this evening is right, that this is urgent and should be in the Bill. Even at this stage I hope my noble friend is able to respond.

My Lords, I shall respond to the three related amendments. I believe they have a common principled intent of protecting the human rights of vulnerable groups with regard to the provision of healthcare. First, I emphasise that we recognise and respect fully our duty to ensure that the provision of healthcare is fully compliant with human rights principles. Noble Lords have raised genuine concerns about treatment being denied and have pointed to the recent Court of Appeal judgment in the case of YA as an example of where the department’s guidance was not clear. It has never been the department’s intention that necessary treatment should be denied, delayed or restricted, but we have accepted fully the court’s judgment, and indeed have welcomed the opportunity to act further to ensure that these rights to treatment are enforced.

That is why we swiftly issued interim guidance on 2 April in a letter to the NHS clarifying that decisions on whether or not treatment should be considered urgent must necessarily take account of the patient’s plans and intentions to return home and their ability to do so. This interim guidance also stated that urgent treatment should always go ahead even if payment has not been received. If the patient genuinely has no funds or resources, hospitals may decide not to ask for deposits or may write off any debt. We expect hospitals to act reasonably when asking for payment or recovering debts.

We have also committed to a redraft of the full guidance in the autumn, after assessing the initial impact of the interim guidance. We will consult with key stakeholders to ensure that the final guidance is clear, operable and compliant with the Court of Appeal judgment. Our consultation will include counsel and representatives of YA, as well as medical professionals and hospital managers and could also include interested Members of both Houses.

In proposing Amendment 71, the noble Baroness, Lady Stern, has raised specifically the case of Section 4 failed asylum seekers, those whom the UK Border Agency accepts have a legitimate temporary barrier to leaving the UK. I know that my noble friend Lord Dubs feels strongly about this group of failed asylum seekers. Indeed, he raised their case specifically when he met with me recently. He and the noble Baroness make a strong case that it is unfair and indeed inhumane that access to healthcare should be restricted when they are willing but temporarily unable to return. I should point out that in these circumstances urgent treatment should not be denied. It would be subsequently chargeable, but of course such a charge is highly unlikely to be followed up. Indeed, any free treatment that had commenced before an asylum claim had been refused would continue free of charge.

However, the Government have sympathy with the view that some special provision should be made for this particular group, and we are actively examining this issue in the context of our current review of rules on migrants’ access to free NHS services. I cannot pre-empt the outcome of that review today, but I can reassure the noble Baroness that my noble friend’s clearly expressed views will be taken fully into account. Any resulting change to the charging arrangements would be enacted through secondary legislation, and reinforced through the published charging guidance that is issued to the NHS.

I recognise the noble Baroness’s intentions to ensure that the basic rights of this potentially vulnerable group are protected. I hope I have been able to demonstrate the department’s recent actions and continued intentions to address the specific concerns that Peers have raised in this context.

Amendment 73 relates to refugees and failed asylum seekers. There are two distinct parts to this amendment: an addition to the existing category of refugees, and an extension to refugees and other human rights applicants to those whose applications have been refused—failed asylum seekers.

On the addition to the existing category of refugees, this definition is intended to cover any person who is seeking refuge or protection, whether that be under the 1951 United Nations convention—an asylum seeker—or through any other route, including the European Convention on Human Rights. The trigger, therefore, is not whether a person is designated an asylum seeker but whether they are formally deemed to be seeking refuge. This therefore already captures most human rights applicants. A small number may seek leave under other ECHR criteria, such as family life or marriage, but if they are not in need of immediate protection, we should not extend full rights and benefits unless or until leave to remain is granted.

I can confirm that the department is reviewing the regulations and guidance on charging and will ensure that the intended definitions are made fully clear when these are laid, which I hope will be later this year.

On the proposal to extend free hospital care to failed asylum seekers, as I explained in Committee, the issue of whether all failed asylum seekers—not just those who are unable to return home—should receive free and unrestricted treatment has to take account of a range of complex issues, and this should be left to the current review of access to the NHS for foreign nationals. That remains our principled position, but with two important caveats.

First, I have already indicated that the Government are sympathetic to the case for Section 4 failed asylum seekers, and the department will actively examine this issue with government colleagues. Any resulting change would be enacted through secondary legislation and is not required to be linked with this particular Bill.

Secondly, I have also referred to the actions that the department has taken following the recent Court of Appeal judgment regarding treatment guidelines. These should ensure that no failed asylum seeker is unreasonably denied necessary treatment, irrespective of ability to pay.

It is also worth noting that any course of treatment that commences prior to an asylum claim being refused should continue without charge. For people who are appealing to remain, the treatment also remains free until the appeal is still being heard. In response to the noble Baroness, I confirm that it has always been a clinician’s decision; this has been clarified to me by my noble friend, and I suppose that he should know.

When treating diabetes, treatment must take into account how long the asylum seeker is likely to be in the community. However, there is no question that people will be denied such treatment. That would be counterproductive. If they are unlikely to be returned home within a reasonable time, the guidelines say that they certainly should be treated.

My Lords, I think that I have just heard some very good news but, because it is late and I have been listening very hard for a very long time, I cannot say whether I am absolutely sure that it is very good news until I have read it very carefully tomorrow and until I have read between the lines, too. I thank the Minister very much indeed for her help and consideration on this matter. It seems to me that the Government are living up to their—dare I say it?—humanity at last on this issue. I thank her very much, but I reserve a little bit of judgment until I have looked at it again tomorrow morning.

My Lords, I, too, am grateful to the Minister for what I am fairly convinced was an extremely helpful reply. I have no doubt that she takes this matter very seriously, and her efforts and commitment have been widely appreciated on all sides of the House. We are all grateful to her. On that basis, I beg leave to withdraw the amendment.

My Lords, I bring us back to an issue that we debated in Grand Committee on an amendment tabled by the noble Baroness, Lady Meacher. I am referring to the private patient income cap. The cap applies only to foundation trusts. Its effect is to prevent a foundation trust from generating a higher proportion of its income from private patients than in 2002-03—the year before foundation trusts were authorised. The cap was seen as a necessary restriction because of anxiety expressed during the passage of the 2003 Act that foundation trusts might quietly and with impunity change their character and become less than fully fledged NHS bodies.

In Grand Committee, the noble Baroness, Lady Meacher, made a powerful case for allowing the restriction to be relaxed. Foundation trusts are well and truly part of the NHS and will continue to be so. There is no risk of them ceasing to regard NHS patients as their prime concern and responsibility. The terms on which foundation trusts are authorised to operate, their supervision by Monitor, their governance arrangements and other safeguards all see to that. However, foundation trusts are now saying that the private patient cap is denying to a substantial and growing part of the NHS income from privately funded work that could be invested in improving services and delivering innovation for NHS patients.

This is not an issue of empire-building or generating private income for the sake of it. It is about enabling foundation trusts to invest in new services for NHS patients where the business case for that investment stacks up only if an element of private patient income can be assumed. In other words, it is about deploying additional private income in order to give a better standard of service to NHS patients. It is also about enabling foundation trusts to fulfil some of the Government’s more general objectives; for example, delivering the well-being agenda and ensuring continuity of care for patients who choose to top up their NHS treatment with privately purchased services.

The quantum of the private patient cap varies tremendously, and there is often no logic behind it, apart from the fact that it happened to be the product of a trading pattern of seven years ago. One feature of the cap is that it skews the playing field within the NHS: different foundation trusts have different caps, and ordinary NHS trusts are not subject to the cap at all. Some foundation trusts have a cap of 30 per cent, some work to only 5 per cent, and mental health foundation trusts have a cap of zero. The argument for these different and arbitrary income ceilings no longer holds good—if it ever did. I would like to believe that there is sympathy for this argument across political parties.

I am particularly glad to see the noble Lord, Lord Warner, in his place. In his admirably frank and open way, he has publicly spoken out against the private patient cap. He did so last month in an interview with the Health Service Journal. As the Minister who took the 2003 Act through this House, it was particularly courageous of him to call this part of the Government’s policy a mistake.

In Grand Committee the Minister said that she was not minded to give the amendment tabled by the noble Baroness, Lady Meacher, favourable consideration. I feel that it is right to ask her to think again. My amendment would enable exceptions to the private patient income cap to be permitted by Monitor when Monitor was satisfied that the requested departure from the cap would be in the interests of the National Health Service. It would be open to the Government to lay down any further conditions that were felt appropriate. A formula roughly along those lines is workable as well as desirable. I hope that the Minister can give me some encouragement that she will look constructively on it. I beg to move.

My Lords, I rise to confess my sins and to support the noble Earl’s amendment. Before doing so, I should declare an interest. I am a paid adviser to the General Healthcare Group, but I am very even handed as I am also the chairman of NHS London Development Agency and am trying to get more trusts into foundation trust status in London.

It would be honest to say that the provisions in the 2003 Act, as the noble Earl has rather eloquently described them, are a bit anachronistic. They were put in for another time because of the anxieties at the beginning of the foundation trust idea. If we are absolutely honest, they were put in as much as sops to parts of the Labour Party as for any other reason. We need to face up to the fact that we were in that position.

I have confessed my sins. Briefly, because the hour is late, why do we need to change? First, as the noble Earl said, the present provisions are absolutely arbitrary on their impact on different trusts around the country. There is an equity issue on why we should change. Secondly, on occasion they stop particular trusts becoming foundation trusts because part of their business case rests on the fact that they have a particular expertise or specialism. Great Ormond Street would be one such case. It cannot get its business case through in a way that will satisfy Monitor because of the arbitrariness of the cap on its business case. It is counterproductive in some instances.

Thirdly, as the noble Earl said, it is potentially a source of income for trusts that they can use for the benefit of NHS patients. Something that was put in to protect the NHS is in practice often damaging to the NHS because of a trust’s inability to conduct its affairs in a way that generates income that can be invested in the development of new services for NHS patients. Fourthly, there is the small matter of UK plc. Some of these hospital trusts have international reputations. People are prepared to come from abroad for services in this country, for which they are prepared to pay and without any detriment to NHS patients. The cap restricts some of that activity so we are at a difficult time in our economic circumstances in denying people the ability to generate foreign earnings. That is a bit counterproductive. Given the challenges that the public finances will face in the next few years, I should have thought that it was a shot in the foot to carry on restricting a public body’s ability to generate income for the benefit of NHS patients. That is why I support the amendment.

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.

My Lords, given the late hour, I have just put red lines through most of my speech, and will only give the edited highlights. The amendment tabled by the noble Earl, Lord Howe, seeks to maintain the existing rules governing the private patient income cap for NHS foundation trusts, but allows the Secretary of State to make regulations so that the foundation trust regulator, Monitor, can make exceptions to the general rule if it believes that it is in the interests of the NHS to do so. The regulations can specify conditions upon which such exemptions may be permitted.

I start by making a technical comment, though I hesitate to do this to the noble Earl. The amendment amends part of Section 15 of the Health and Social Care Act 2003. This has been consolidated into the NHS Act 2006 as Section 44, and repealed. The amendment therefore has to be to Section 44 of the Act. It is not often I get the chance to say something like that to the noble Earl. He is so perfect in these matters.

Noble Lords will know that there is a difference of opinion about the interpretation of the existing legislation—in particular, about what income is caught by the cap. This is the subject of judicial review proceedings and, in those circumstances, I do not propose to comment in detail on the interpretation of the current provisions. However, I stress that we understand the intention behind the amendment.

During the debate in Committee, we examined the rationale behind the probing amendment laid by the noble Baroness, Lady Meacher. As noble Lords will recall, her amendment was introduced to initiate a debate about how best to reform the private patient cap. We understand the concerns that have been expressed regarding the cap. In Committee, I made clear the Government’s desire for a wider debate on the cap in the context of evolving health policies—particularly, for example, my noble friend’s next-stage review of the NHS with its emphasis on innovation, the development of intellectual property, and greater collaboration and partnership working.

As a general rule, we consider that it is better to have a consistent set of rules set out in legislation which is applicable to all NHS foundation trusts, rather than a discretionary system of exemptions, which might well be perceived as unfair and could lead to uncertainty. As I outlined in Committee, the fact that the cap is reported to impact adversely on some NHS foundation trusts and patients is a concern to us. However, it is plainly evident from both amendments which have so far been tabled in this House on the subject that the cap is controversial and that reforming it is far from straightforward.

We believe that a lasting solution to the question of restricting foundation trusts’ private patient income cannot be achieved by introducing amendments to the legislation without having a broader public debate about the longer-term direction. In general, we do not believe that the best way to reform the cap is by introducing a discretionary system of case-by-case exemptions to the present rule. That would not create a uniform system of rules for all NHS foundation trusts and could lead to perceptions of unfairness. However, we accept that this area needs attention and debate, and therefore I hope that the noble Earl will withdraw his amendment.

My Lords, I take the rap over the knuckles about the drafting of the amendment. I have to admit that I did it in rather a hurry and I completely confess my sins.

I am slightly disappointed by the Minister’s reply. She was gracious enough to say that the Government recognise that this is an issue that we have to tackle. It is a pity that there has to be widespread public debate about it, because I think that the public view is fairly settled. Of course, there are noble Lords, some of whom may be present, who would not agree with that. However, the point of building in a regulation-making power to the amendment was to enable the regulations to set out those matters that the Government felt should apply to any exemption or departure from the current rules. I say to the noble Baroness, Lady Meacher, that that regulation-making power would enable the kind of principles that she articulated to be built into the rules. I have a lot of sympathy with what she said on that score.

Between now and Third Reading, a number of us could confer on how best to take this matter forward—whether we do so in the context of this Bill or not, I do not know. However, in view of the hour, it is appropriate for me now to beg leave to withdraw the amendment.