[Relevant document: The Eighth Report from the Joint Committee on Human Rights of Session 2007-08, Legislative Scrutiny: Health and Social Care Bill, HC 303.]
As amended in the Public Bill Committee, considered.
New Clause 1
Certain regulated activities to be functions of a public nature
‘A regulated activity under this Part shall be deemed to be a function of a public nature for the purposes of section 6 of the Human Rights Act 1998 (c. 42) where it is performed wholly or partly at public expense and pursuant to statutory powers.’.—[Mr. Dismore.]
Brought up, and read the First time.
With this it will be convenient to discuss the following: New clause 2—Human rights framework for Commission—
‘The protection and promotion of human rights shall be central to the performance of the functions of the Commission.’.
New clause 4—Health and social care standards: content—
‘(1) Standards set by the Secretary of State under section 41 shall—
(a) expressly state that all persons for whom health or social care services are provided are entitled to respect for their rights and that service providers (registered in accordance with Chapter 2) have a responsibility to respect such rights;
(b) require that service providers respect the rights of persons for whom health and social care services are provided;
(c) require that service providers provide their staff, whether employed directly or indirectly, with appropriate education and training in relation to respecting the rights of service users;
(d) require service providers to specify and publish the procedures for making a complaint by any person about a regulated activity;
(e) require service providers to put in place appropriate procedures for ensuring that any person who is aware of any failure to respect any other person’s rights in relation to a regulated activity being conducted by that service provider to report such a failure to a designated person;
(f) require service providers to ensure that, where any person is being discharged from a health care service to a social care service regulated under this Part, the rights of such persons are fully respected; and
(g) require service providers to disseminate the standards set under this Part which are applicable to them to users of their services.
(2) The Secretary of State may prepare and publish statements of standards in relation to the provision of health care and social care dealing with matters other than those listed in subsection (1).
(3) In this section, a “designated person” is a person designated by a provider of health or social care services to receive and resolve complaints.’.
Amendment No. 11, in clause 2, page 2, line 13, at end insert—
‘(bb) the availability and adequacy of advocacy services relating to the bodies it regulates,’.
Amendment No. 8, page 2, line 18, at end insert—
‘(da) the need to improve the range and quality of information provided by health care and social care services to users of those services about their rights;’.
Amendment No. 5, page 2, line 28, after second ‘the’, insert ‘rights and’.
Amendment No. 3, in clause 16, page 7, line 28, leave out ‘may’ and insert ‘shall’.
Amendment No. 4, page 7, line 32, after ‘safety’, insert ‘, rights’.
Amendment No. 6, in clause 42, page 21, line 2, after ‘quality’, insert
‘including, without limitation, respect for the rights of any person’.
Amendment No. 7, in clause 92, page 46, line 12, at end insert—
‘“rights” includes human rights under the Human Rights Act 1998 (c. 42).’.
Amendment No. 14, in clause 108, page 54, line 3, after ‘safety’, insert ‘rights’.
Amendment No. 15, in clause 120, page 65, line 25, at end insert—
‘(1A) The appropriate Minister shall by regulations make provision in relation to awareness of, and training in, human rights in accordance with this section.’.
Amendment No. 16, in clause 122, page 66, line 16, at end insert—
‘“rights” include human rights under the Human Rights Act 1998;’.
Amendment No. 17, in schedule 6, page 138, line 29, at end insert—
‘(3A) The OHPA shall have regard to the desirability of improving the awareness of, and training in, human rights of its members.’.
Amendment No. 18, in schedule 9, page 165, line 27, at end insert—
‘(ea) awareness of, and training in, human rights;’.
I also wish to speak in support of new clauses 2 to 4 and amendments Nos. 3 to 18. These new clauses and amendments have been tabled in my name and that of the hon. Member for Oxford, West and Abingdon (Dr. Harris), who cannot be here because he is away on Select Committee business, on behalf of the Joint Committee on Human Rights, which I chair and of which he is a member. As hon. Members will know, we scrutinise all Government Bills for their compatibility with the Human Rights Act 1998 and the UK’s international human rights obligations. We report on the most significant human rights issues, and we have now begun to publish amendments to give effect to our recommendations. Our new clauses and amendments deal with omissions from the Bill. We expect to publish another report on the Bill shortly, commenting on some of the proposals in the Bill, particularly those to do with public health.
New clause 1 deals with the scope of the Human Rights Act—in particular, the meaning of the term “public authority”, which has become somewhat restricted, far more so than originally intended, and is consequently an extremely important issue. My Committee has published two reports in recent years on the meaning of the term “public authority” in section 6 of the Human Rights Act. That section requires public authorities to act in a way that is compatible with the convention rights set out in the schedule to the Act. The definition of the term “public authority” includes
“any person certain of whose functions are functions of a public nature.”
What constitutes a function of a public nature is not further defined in the Human Rights Act. When the issue was discussed during the passage through Parliament of the then Human Rights Bill, it was clearly understood that that provision was intended to cover private sector providers of publicly funded services—public services that had been contracted out to the private sector or wholly privatised, for example.
A series of court cases, starting with the so-called Leonard Cheshire case and culminating in the judgment by the Law Lords in the YL case in June 2007, has narrowed the scope of the Human Rights Act as originally intended, particularly in relation to care homes. The YL case concerned the eviction from a private sector care home of an elderly and frail old lady whose care was paid for by Birmingham city council. By a majority of three to two, the Law Lords ruled that the person concerned could not bring an action against the care home under the Human Rights Act, over the infringement of her rights under article 8 of the convention—the right to respect for her private life and home. They said that her claim lay solely against the local authority that had funded her care. The 1998 Act therefore does not apply to private bodies, and the Law Lords found that that included private care homes, even for publicly funded residents.
In our March 2007 report on this subject, we concluded that there was a strong case for a separate interpretative Act that would clarify the meaning of the phrase “functions of a public nature” in the Human Rights Act. The outcome of the YL judgment has served only to reinforce our concerns and emphasise the need for the Government to act urgently, to reinstate the originally intended scope of the Human Rights Act. That is especially the case given that the Government’s strategy of seeking a positive judgment in a higher court has manifestly failed to deliver the desired outcome.
Since the YL judgment, Ministers have expressed agreement in principle with our position that the current state of the law is unsatisfactory, especially for elderly care home residents, who are an especially vulnerable group that the Human Rights Act should protect. For example, the Minister of State, Department of Health, my hon. Friend the Member for Exeter (Mr. Bradshaw), said in Committee that the Government were
“committed to amending the Human Rights Act to ensure that all independent providers of publicly funded care homes are covered by it.”––[Official Report, Health and Social Care Public Bill Committee, 15 January 2008; c. 200.]
I introduced a private Member’s Bill in the last Session that would have clarified the scope of the Human Rights Act. During its Second Reading debate in June 2007, the then Minister, who is now the Solicitor-General, said that the Government were “committed to taking action” that year. Unfortunately, they have not moved quickly to clarify the scope of the Human Rights Act. Instead, they propose to bring forward a consultation on the issue as part of the Green Paper on a possible British Bill of Rights and responsibilities. We have been told that the Green Paper will be published in the first half of this year, so it seems pretty clear that concrete proposals will not emerge from the consultation exercise before the next general election—no matter when that happens to be.
I want to reinforce my hon. Friend’s point, with which I totally agree. It is almost 10 years to the day since the then Home Secretary, my right hon. Friend the Member for Blackburn (Mr. Straw), said that “public authorities” should extend to private providers fulfilling public functions. Some 10 years on from that commitment, it is time for us to act accordingly.
I think that everyone believed that that was the case until Leonard Cheshire put a question mark over it and the YL case put a lid on it. It is only since last June that we have become significantly aware of how serious the problem is and how urgent it is that we resolve it.
My Committee’s preference remains for the scope of the Human Rights Act to be clarified by means of a separate Act dealing solely with the wider issue of the meaning of “public authority”. That would have the benefit of dealing with the problem of scope across the board, rather than on a piecemeal basis. It would help other vulnerable groups that are deprived of protection by the ruling, the implications of which are very broad. Such people would include tenants of housing associations and social housing, and children under special educational needs statements whose needs are met in independent schools. It would also ensure that the law in this area was consistent throughout the United Kingdom. I have brought forward my private Member’s Bill again in this Session, and I urge Ministers not to delay in tackling what are, I accept, a complex range of issues.
In the absence of a general solution to the problem, however, my Committee supports an interim solution for the health and social care sector, given the urgency of the issue. In our report of last summer on older people in health care and the services provided to them, we found that 21 per cent. of care homes still did not meet basic minimum standards. We set out a catalogue of abuse, neglect, carelessness, lack of privacy, dignity and confidentiality, and downright discrimination against the elderly. The elderly would be protected from all those things by the Human Rights Act, but given the implications of the YL case, those in private sector homes have no such protection under the Act.
My hon. Friend the Member for Luton, North (Kelvin Hopkins) moved an amendment in the Public Bill Committee that would have defined all providers of health and social care as public authorities for the purposes of the Human Rights Act. The amendment had the support of the Equality and Human Rights Commission and most of the non-governmental organisations. My Committee is sympathetic in principle to the substance of the proposal. The provision of health and social care is subject to a stringent regulatory regime that involves registration, supervision and inspection. We agree in principle that that should be sufficient to attract the protection of the Human Rights Act. We are left with an anomaly of two elderly residents in the same care home: one would be protected because she was being funded by the local authority, but the other would not be protected because her assets were more than £21,500. Such a situation was pointed out by Help the Aged in its briefing for today’s debate.
Such an amendment, however, would extend the protection of the Human Rights Act to self-funders and would go well beyond what Parliament intended when it passed the Human Rights Act. It would raise wider questions about rights—something that has become known as “horizontality” in human rights jargon. We believe that such an issue—the question of whether private individuals can enforce their human rights against other private individuals or companies that are not public authorities—should be considered as part of the wider debate on the Bill of Rights. Most people do not realise that the Human Rights Act applies to public bodies, not the private sector generally. There is a strong case for horizontality, but the original Human Rights Act did not provide for that. We are simply trying to restore the position to what it was before the Leonard Cheshire and YL cases.
Yes, that is a consequence of the YL case. During a Liaison Committee sitting, I put that point to the former Prime Minister. He said that such a situation would be severely anomalous, and that people with publicly funded places in the private sector ought to be protected by the Act, as not protecting them would militate against contracting out and privatisation as ways to deliver public services.
Our other concern about the broad amendment moved by my hon. Friend the Member for Luton, North to encompass self-funders in the health and social care sector is that it would do little to fix the problem for other vulnerable groups such as those whom I have described, and might support the false impression that nothing further needs to be done to rectify the anomaly. New clause 1 proposes restoring, for the health and social care sector pure and simple, the Human Rights Act’s original intention, which is that the Act should cover private-sector providers of publicly funded services, under arrangements made pursuant to statutory powers. I hope that the Minister will consider carefully the new clause and its purpose. I hope that he will accept it, but if he is unwilling to do so, I urge him to tell the House today that he will undertake to introduce his own amendments to achieve the same effect in the other place.
The other new clauses and amendments that I have tabled are intended to implement the recommendations in our report, “The Human Rights of Older People in Healthcare”, published last summer. We described how the use of human rights can be a powerful lever to improve the quality of services, as well as guaranteeing in their delivery basic concepts such as dignity and respect for the elderly in hospitals and care homes. As I said, the report gave graphic evidence of abuse and showed that many homes are not compliant with existing regulations. We said that the care standards regulations should require care homes to respect residents’ human rights. The regulations governing the operation of health and social care providers, which deal with matters including staff training and the handling of complaints, require that the health, safety and welfare of service users be secured. We recommended that users’ human rights should also be central to the operation of health and social care providers, and amendments Nos. 3 and 4 are designed to achieve that.
We recommended that the new Care Quality Commission should adopt a human rights framework to underpin and inform its work and make it more effective in fulfilling its statutory duties. We were disappointed that the Government’s reply to our report did not address that issue adequately. New clause 2 and amendments Nos. 5 to 7 would ensure that the protection and promotion of human rights are central to the new commission’s performance of its functions. If the Minister cannot accept the amendments, I should be interested to hear why he thinks our proposals are unnecessary. Help the Aged has said clearly that its main concern is the YL loophole. Notwithstanding that, it believes that the CQC can and should promote and protect human rights through its own work, saying:
“It is vital that the CQC takes a human rights-based approach”,
“this vital remit should be explicit in the legislation…CQC’s work on human rights should go far beyond that of any normal public body. Respect for and promotion of human rights should be fundamental”.
Help the Aged welcomes the amendments that I have tabled.
The outgoing Commission for Social Care Inspection also supports our approach, saying:
“The new commission should place the rights of the people who use services and their carers at the heart of its work and they should have clear rights of access to it.”
Our report on the Bill published in February clearly recommended that the
“merged inspectorate…should adopt a human rights framework”,
and we were disappointed by the Government’s response, which said:
“The Department of Health will not be specifying the precise work programme of the new regulator, but will expect compliance…to form an important element of its work”.
There are three problems with that. First, putting the human rights of health and social care users at the heart of the commission’s work is not equivalent to specifying the precise work programme; it is more fundamental. Secondly, compliance with the Human Rights Act is a legal requirement, not simply something that the Government can expect to happen. Our concern is to ensure that human rights influence the work of the new commission across the board and are not seen simply as a tick-box compliance exercise.
Finally, our report concluded that the Healthcare Commission should not view the 1998 Act as one of the large number of sets of regulations to which it is subject. We said that it should instead regard the framework created by the Act as overarching and fundamental to all its work. We regret that the Department of Health failed to address that point. It simply restated the current position—that the Act is seen as just another statute applicable to public bodies and demanding compliance, rather than as the culture change that we recommended in last summer’s report on the human rights of the elderly.
We have seen the point come through strongly in the evidence that we have been taking on access to services for adults with learning disabilities—an issue on which we hope to report in a few weeks’ time. I am pleased that the CSCI fully agrees with our conclusions. I hope that the Minister will reflect on that and agree with us that it is essential that the issue becomes an overarching part of the commission’s work.
Amendments Nos. 8 and 11 deal with the functions of the new commission. Amendment No. 8 would require it to take into account the
“need to improve the range and quality of information provided by health care and social care services to users of those services about their rights”.
That is crucial. Without clear and accessible information about how human rights apply in hospitals and care homes, service users will not be in a position to challenge how they are treated or to know how to seek redress. We have been particularly concerned about older people and people with learning disabilities, but accessible information is essential to secure the protection of the human rights of us all.
We have all seen the signs in public buildings saying that staff are entitled to be treated with dignity and respect. However, we do not often see signs that say that service users, patients or relatives are entitled to be treated with dignity and respect by staff. That, however, should be part of the information process. A lot of hospitals, including those in my constituency, give leaflets to people as they arrive about how they can expect to be treated, but not about their rights in respect of how they will be treated. Such information is essential if people are to be able to enforce those rights.
We also recommended that in undertaking its work, the new commission should take into account the provision of advocacy services. Amendment No. 11 deals with that issue. The Government share our view of the importance of advocacy for older people in health care as well as in other contexts. The important role that advocacy can play in supporting vulnerable people in health and social care will be reinforced by a statutory reference to advocacy in the Bill.
New clause 4 relates to health and social care standards. The Bill does not require the Secretary of State to publish care standards or indicate what the content of those standards might be. We recommended that the CQC should apply a single set of standards for health and social care in relation to issues engaging the human rights of service users. New clause 4 is our suggestion of what a human rights standard might look like. It includes requirements in respect of: staff training on respecting the rights of service users; the publication of complaints procedures; a duty on people to report any failure to respect human rights that they see; discharge arrangements; and the publicising of the standards that apply. If the Minister sees a problem with those requirements, I would be grateful if he told me what it is.
Finally, we recommended that a basic understanding of how the 1998 Act requires the protection of basic principles such as dignity, fairness, respect and equality should be included in the qualifications, accreditation and re-licensing of health professionals; amendments Nos. 14 to 18 seek to achieve that.
Achieving effective human rights protection requires a combination of different measures operating in different ways to make human rights considerations more central to the decision-making processes of health and social care providers and the new regulator. I urge the Government to accept in principle that the Bill should be amended to reapply the 1998 Act to publicly funded residents of private sector care homes. I also urge him to consider seriously our other amendments, all of which are intended to protect the rights of extremely vulnerable people in the health and social care sectors.
We are debating one of the enduring themes of the Bill. In Committee, Members on both sides made several attempts to beef up its human rights aspects. Most of us were concerned about the fact that 90 per cent. of care homes are run by the private and voluntary sector and are therefore not covered by the Human Rights Act 1998. That was never Parliament’s intention when the legislation was introduced, but case law and decisions in the courts have brought us to where we are today.
It is right and proper that we try to amend that, but there is also a wider problem that probably cannot be dealt with in this Bill. We need to think of ways to avoid a situation whereby people can sit side by side in the same private nursing home with different rights because one person is funding their own care and the other is having it paid for by the state. The Minister has been genuinely sympathetic as regards this state of affairs, and it may be easier to deal with it in stages. However, it is worth pointing out that it has been allowed to exist for far too long. We missed an opportunity with the Equality Act 2006, when several amendments were tabled, and the private Member’s Bill promoted by the hon. Member for Hendon (Mr. Dismore) never saw the light of day. We would not be doing our duty if we were to allow yet another opportunity to slip by. If we leave it all to a consultation as part of a Green Paper on a possible British Bill of Rights, that may be too little, too late.
It is helpful that the Joint Committee on Human Rights has considered the Bill in such detail. I thank hon. Members for tabling the amendments, because they give us a chance to debate the issue once more. In the summary of its report, the Committee says:
“Although the Committee prefers a general solution to clarify the meaning of ‘public function’ in the HRA, it also sees the need for an interim solution in the Health and Social Care Bill. The Committee is sympathetic in principle to an amendment moved in Committee to make all providers of health and social care public authorities for the purposes of the HRA. But this may go beyond what Parliament intended”.
That sums up the situation very neatly. The fact that this presents a difficult challenge does not mean that it is not worth doing.
I welcome new clause 2, which would make it clear that the new commission should adopt a human rights-based approach. It will have to deal with a wide range of legislation, and it is important to many that the human rights aspects are not just a tick-box exercise to be thought about afterwards. The thrust of its work should have human rights principles at its core.
I am disappointed that new clause 3 was not selected—indeed, I am disappointed that several new clauses and amendments were not selected, but perhaps a little more of that later—because its inclusion would have sent a clear message to providers that the CQC could investigate any transgressions of the Human Rights Act. If there is a problem with the amendment, it is that it does not deal with the devolved Governments. I am slightly uneasy about supporting a situation whereby there are potentially weaker human rights in the devolved nations, and I should like that to be addressed.
Certain comments in the Committee’s report do not require legislation to implement but should nevertheless be borne in mind. I was struck by the emphasis on accessible information about human rights, and how that applies to health care settings. Such information will be available for care home residents, relatives, carers, advocates and the public as a whole. At the moment, the professionals involved know what is required of them, but it is sometimes not set out in black and white. Members of the public do not feel empowered, and making more information available to guide them through the process, letting them know what is acceptable and what is not, will do them a great service.
I did not quite catch whether the hon. Member for Hendon planned to press his new clause to a vote. As a matter of principle, we would want to support it, despite our reservation that the devolved nations are not included.
I welcome the opportunity to speak briefly on this group of amendments and new clauses and I say to my hon. Friend the Minister that I support the spirit of the proposed changes.
I would like to consider briefly aspects that relate to the trend of contracting out and privatisation of health and social care services. At a time when an increasing number of public services are provided by the private sector, it is essential that we get the Bill right. I am conscious that this is not the final opportunity that we will have to debate the matter, and I am speaking now to implore my hon. Friend the Minister to take into account my specific concerns on issues of detail, which relate specifically to subsection (2) of new clause 4. If the spirit of that provision were adopted by the Government, the Secretary of State would
“prepare and publish statements of standards in relation to the provision of health care and social care dealing with matters other than those listed in subsection (1)”.
I would like to consider that measure in relation to the provision of non-emergency ambulance services. My concern stems from a particular state of affairs that has existed in north Staffordshire and Stoke-on-Trent for a long time, where patient transport services are contracted out. I seek clarification from the Minister during this debate, and during the course of the progress of this legislation, on the details concerning transport.
I have examined the Bill, but I did not have the privilege of serving on the Committee that considered it. Clause 4(3) refers to transport services for elderly and disabled people as being
“connected with the provision of health…care.”
Therefore, I am assuming that that will be a regulated activity that has to be registered with the commission. The Bill does not make explicit—perhaps the Minister could be helpful by clarifying this so that it will become apparent through subsequent readings of Hansard—whether that will include all the associated facilities for providing such a service, such as staff accommodation and depots.
Clauses 11 and 12 deal with registration regulations, and clause 16, deals with the regulation of regulated activities, and although there is a need to register, I can see nothing elsewhere in those clauses that would require the commission to consult other agencies, such as the local environmental health authority, as to whether the application for registration should be granted or refused. Perhaps I should say at this point that I speak as a vice-president of the Chartered Institute of Environmental Health. I would like the Minister to set out the role that he anticipates for local authorities with regard to information they might have on whether private providers of some regulated services are suitable. For example, I would like to know what account the commission can take of issues such as food safety, hygiene or health and safety matters. If the Minister considered clause 4(3)(b) in detail and perhaps providing for associated facilities after transport, that might be a way in which to tackle some of my concerns and those of others about the matter.
If the Minister could clarify the issue, it would give me some sense of security that depots and staff rooms associated with private ambulance services would be included in the regulated activity and taken into account in the registration process so that we could deal with unhygienic facilities, if necessary. Much legislation relates to health and safety at work and there is a procedure for considering the health and safety at work aspects of the measure. However, when we deal with the most vulnerable people in our constituencies, it is essential that we have all the necessary support. I implore the Minister to give some comfort about section 6 of the Human Rights Act and facilities associated with the private transport provision of non-emergency ambulance services.
I am pleased to support the amendments, which my hon. Friend the Member for Hendon (Mr. Dismore) proposed so competently and ably. Indeed, they reflect amendments that I tabled in Committee, although I tried to go slightly further than my hon. Friend in that they would have covered all residents of private care homes.
Of course, I understand my hon. Friend the Minister’s concern about the difficulty of covering self-funders because the Human Rights Act specifically covers relations between the individual and the state, and self-funders are, by definition, private residents paying a private concern to care for them—the state is not directly involved. However, I believe that we should find a way to ensure that all residents of care homes are covered by the Human Rights Act. At the moment, if one is in a care home that is privatised, or moved from a public to a private care home, one is removed from coverage of the Human Rights Act, and that is unacceptable. Even if the Government tabled amendments along the lines suggested by my hon. Friend the Member for Hendon, the self-funders would still not be covered. I have a possible solution, which I will urge on the Minister later, but I will not spring that surprise on him just yet.
The problems arise from two fundamental factors, about which I was not happy when they occurred. The first is the privatisation of care homes. If they had stayed in the public sector and all care homes were in the public sector, there would not be a problem. The second is means-testing funding. If all funding were public, without means-testing, there would not be a problem. I urge the Government to reconsider the recommendations of the royal commission on long term care for the elderly that all care home residents should be publicly funded out of taxation—progressive taxation at that. There would be no problem with coverage by the Human Rights Act if the Government ensured that all residents of care homes were publicly funded. When the royal commission produced its recommendations, it estimated the cost to the Exchequer at £1 billion a year. That is not much money in the great scheme of things—it is the equivalent of one third of a penny on the standard rate. I have spoken to many people, in meetings and privately, and asked whether anyone would object to the equivalent of a third of a penny extra taxation to pay for long-term care for everyone, including us. Many of us, because we will live longer and are much healthier than we were, will probably finish up in care towards the end of our lives. Indeed, some people might even choose to enter long-term residential care, which should also be an option, rather than having to enter it because of ill health or infirmity. If we could all be assured that, whatever happened, we would be guaranteed long-term care at the end of our lives that was properly funded by the state, we would all be greatly relieved. Indeed, I have heard no one object to that proposition in all my conversations.
The other issue is the privatisation of care homes. Personally, I was deeply opposed to the privatisation of care homes and opposed the effective privatisation of care in my constituency, encountering some difficulties with the local authority at the time. Nevertheless, the changes went ahead, under pressure from the Government and through the use of legislative and financial means to press the authority to move care into the private sector. In effect, that is how things happened—there are still some public care homes, but as the hon. Member for Romsey (Sandra Gidley), speaking for the Liberal Democrats, pointed out, 90 per cent. of care is now in the voluntary and private sectors. That is a matter of concern.
I believe profoundly in the public service ethos—the idea that when people work in care, they do so not for profit, but to care for their fellow human beings, out of a commitment to their interests. If care is in the public sector, that is indeed what happens. One of the care homes in my constituency that closed down was in the middle of a large community from which people went into residential care. The home was staffed by people from that community who were long-term workers there and was democratically accountable to the local authority. That was the ideal situation, yet the home was closed and the care moved into the private sector.
I know that we are not talking about bringing all care back into the public sector at this stage, although there is a mood of nationalisation abroad today that I welcome very much. In the longer term, I hope that the Government will look to public ownership once again and make long-term care part of the overall health provision envisaged by everyone from Nye Bevan onwards, based on the principle of universality so well expressed by Beveridge, Bevan and many other socialists of that time, but perhaps put most brilliantly by Professor Richard Titmuss, who influenced me in my youth in setting out the case for universal provision.
I have made my point. I hope that the Government will consider the possibility of providing free long-term care, which would overcome the problem, and, in the longer term, bringing all care back into the public health service.
It is always a pleasure to follow the hon. Member for Luton, North (Kelvin Hopkins). Nobody can doubt the sincerity and consistency with which he has presented his arguments both on the Bill and over many years, encompassing human rights and his views on the nature of ownership and delivery. I salute him for the consistency of his arguments.
I do not intend to take up too much of the House’s time. I pay tribute to the work of the hon. Member for Hendon (Mr. Dismore) and the Joint Committee on Human Rights, both in championing the rights of those in care generally and in keeping the Government’s feet to the fire on the issue. The Public Bill Committee drew on the JCHR’s work, particularly its 18th report of the previous Session entitled “The Human Rights of Older People in Healthcare”, HC 378. It is important to note that although the Committee was most exercised by the eviction of individuals from care homes, the Government are presiding over a wide range of human rights failings in our health and social care sectors.
The Joint Committee report noted that
“many witnesses, including the inspectorates, providers and organisations supporting older people, expressed concern about continuing poor treatment of older people in healthcare.”
The report charted failings under articles 2, 3, 8 and 14 of the European convention on human rights in respect of, among other things: malnutrition and dehydration, which we shall expand on in the next group of amendments; inadequate assessment of a person’s needs; abuse, neglect and bullying; lack of privacy in mixed-sex wards, which, as it happens, relates to another of the Government’s broken commitments; a lack of dignity, especially for personal care needs; too hasty discharges from hospital; fear of making complaints, an issue that unfortunately has not been selected for debate on Report, despite our best attempts; and age, disability and racial discrimination.
On the basis that it is appropriate to the debate, I should like the House to note the importance of the fear of making complaints in relation to the legislation that we are debating today. This is a cross-party concern. It was raised in Committee by us and by the spokespersons for the Liberal Democrats, as well as by the hon. Member for Luton, North, who said:
“A number of my hon. Friends, not necessarily members of the Committee, are concerned about changes in patient representation and procedures for patients making complaints in recent years.”––[Official Report, Health and Social Care Public Bill Committee, 17 January 2008; c. 346.]
The hon. Member for Tamworth (Mr. Jenkins), who I see in his place today, also sought to hold the Government to account for their shortcomings in this area. Furthermore, the hon. Members for Oxford, West and Abingdon (Dr. Harris) and for Hendon are seeking clarification on this issue.
The remaining unanswered questions on complaints centre on three issues. The first involves resourcing the ombudsman, who is facing an elevenfold increase in work load, yet none of the costs of that increase have been reflected in the impact assessments for the Bill. The second involves monitoring trends. With the Healthcare Commission losing its complaints function, how can we be sure that the early warning signals will be picked up by the regulator? I dare say that we all remember the tremendous work of the community health councils, which were able to use the collective wisdom of all that they had been able to achieve through their inspections and access to hospitals through programmes such as Bedwatch. We discussed that at length when the Government announced that they were axing the community health councils but then had to postpone their abolition and give them a stay of execution for a year. Those functions now appear to be at risk again. I hope that the Minister will address that point specifically.
The third issue involves putting in place a complaints system for privately funded social care. That has just been referred to by the hon. Member for Luton, North. The Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), has said in Westminster Hall that
“it is unacceptable that self-funders should not have the protection that other residents have”.—[Official Report, Westminster Hall, 11 December 2007; Vol. 469, c. 52WH.]
He also told the “File on Four” programme in September that he would be achieving his aim through this Bill. That is all on record. That is a promise, however, that the Government now appear to have reneged on. I hope that the Minister will take note that his colleague has put that intention on the record, and I hope that the Minister has now been persuaded that this is the moment to look at this matter.
In its submission to the Committee, the Commission for Social Care Inspection said that the new regulator should take a “strong rights based approach”. In support of that, the Joint Committee said that the Care Quality Commission should adopt a
“human rights framework with the intention that the framework informs all of the inspectorate’s work and so makes it more effective in fulfilling its statutory duties.”
The Mental Health Act Commission, which was rightly commended by the Joint Committee for its human rights approach, was particularly concerned in its oral evidence to the Committee that the human rights focus would be lost in the merger. The Government have as yet failed to guarantee that that will not happen. The Commission has called for “an overarching principle” of equality and human rights, focusing at all times on the civil, legal and human rights of patients.
In Committee, the Minister confirmed that the frequency of visits—a vital point—would be
“a matter entirely for the new commission”.––[Official Report, Health and Social Care Public Bill Committee, 17 January 2008; c. 323.]
The MHAC, however, wants visits to continue with their current six-month regularity. The choice will be truly free only if the commission is properly resourced to do what it deems important, but the Minister has not as yet given such a guarantee. I hope that we shall be thrilled today by his contribution in that regard.
It is disappointing that we have to have these discussions on amendments to a Bill on Report. We looked at these matters extensively in Committee, as the hon. Member for Luton, North has mentioned. He was supported in Committee by the hon. Member for Tamworth. They both raised a number of these issues, but it was felt by the Minister that campaigners on this issue would be pleased to hear his commitment that the Government were
“committed to ensuring that independent sector care homes are covered by the Human Rights Act.”––[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 135.]
He reiterated the Government’s line that that would be achieved in the Bill of Rights, but if he has committed to that, we question why he is not prepared to pass the amendments now.
Clearly, a cart and horse situation has developed in the Government’s mind—that the Bill of Rights is necessary for proper scrutiny in order to arrive at what would be relevant to the application of such human rights to private sector care homes within a Bill of Rights framework. It seems to us that the right place for a thorough going over of that was in Committee, but that was rejected during the course of our deliberations. It is in Committee, Madam Deputy Speaker, that it is appropriate to go through really intense and detailed scrutiny of these provisions, which provide complex material to interweave and interleave into existing legislation. Having an appropriate debate on these amendments now depended on having a proper Committee stage as a matter of principle. In the absence of any such debate and of the bringing forward of the Bill of Rights in advance, our present debate becomes difficult and it is not easy to form a clear opinion of how the provisions will work.
I notice that a letter in The Guardian today was signed by 33 different national voluntary sector providers of social care services to disabled people and many others, including all in receipt of social care. They state that the Health and Social Care Bill really must put users at the heart of regulation and argue for the rights-based approach, which was very much the evidence revealed by Dame Denise Platt, the head of the Commission for Social Care Inspection, during Committee hearings.
If the new clauses and amendments are pressed to a Division, it would be difficult for us to signal our support, but at the same time we do not intend to vote against them either. We want to register our main point that the Bill of Rights that the Government have prayed in aid absolutely needs to be brought forward fast; otherwise, the Government’s commitments will be revealed as hollow. Clearly, there is a major demand to involve human rights principles, not least those articulated by the Joint Committee, but in the absence of discussion of the Bill of Rights, we are in grave danger of trying to legislate for the cart before the horse has been debated. On that basis, our position is clear.
As has already been said, this group of amendments deals with a number of matters raised in the legislative scrutiny report of the Joint Committee on Human Rights, which was published earlier this month. It has provided a very helpful human rights perspective to the Bill and I would like to take this opportunity to pay tribute to the Committee’s diligent and important work under the chairmanship of my hon. Friend the Member for Hendon (Mr. Dismore). Indeed, I pay tribute to all hon. Members who contributed on the issue of human rights as the Bill went through Committee.
I hope to offer some words of comfort to my hon. Friend and to them, but I also need to say from the outset that we do not believe that most of the amendments in the group are necessary. I shall come on to explain why in a few moments. We agree with the principle behind the Joint Committee’s proposed amendments, but we do not see the need to inscribe everything in primary legislation. I understand that proposing a large number of amendments in this way represents a new approach for the Joint Committee, but in this instance I am not sure that it is the most effective way to proceed. Where the Government are giving undertakings or are already pursuing a particular policy, I hope that the Committee will accept those undertakings rather than pursue the course of specifying every last detail directly in the legislation.
New clause 1 is designed to apply the Human Rights Act 1998 to all public and all independent providers of health and adult social care registered with the new Care Quality Commission if the care is publicly funded either wholly or in part and is pursuant to statutory powers. We heard a great deal in the evidence presented to the Committee and in the Committee’s own deliberations about the case for bringing private and voluntary sector health and social care providers within the scope of the Human Rights Act 1998. I said, and I repeat, that I am sympathetic to the intention of dealing with publicly funded care, be it health or adult social care, that is behind the new clause. I thank my hon. Friend and his Committee for setting out the issues so clearly. As I hope I made clear in Committee in response to a number of proposed amendments, including those tabled by my hon. Friend the Member for Luton, North (Kelvin Hopkins), the Government are firmly committed to amending the Human Rights Act to ensure that all publicly arranged care provided by the independent sector is covered by it. We have agreed with the Ministry of Justice that it would be appropriate to use the Health and Social Care Bill to strengthen regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements in line with the spirit of the European convention on human rights.
However, as I indicated, we have difficulties with new clause 1 as drafted. For example, it links the coverage of the Human Rights Act to “regulated activity”, as defined in clause 4, which would be registered with the Care Quality Commission. That merely provides for regulations to determine what is a regulated activity. Therefore, the scope of the Human Rights Act could be altered by secondary legislation. I am sure that that is not the intention of my hon. Friend the Member for Hendon. I suspect that the relevant Committee in another place would consider it an inappropriate delegation of powers for an Act as important as the Human Rights Act. Moreover, we are also not sure what would or would not be covered by the test within the new clause of care provided
“wholly or partly at public expense”.
Would that cover all residents in a care home where one out of 50 was funded by a local authority? Would it apply to everyone receiving care provided by a charity that received a very small annual grant?
However, as I said, I am sympathetic to the intention behind the amendment and the concerns expressed by evidence givers and by members of the Public Bill Committee and the JCHR. I undertake to consider the issue of publicly arranged health and adult social care and the Human Rights Act in the context of this Bill, with a view to the Government reporting back on that important issue during its passage in the other place. I hope that that offers some reassurance to my hon. Friend that the Government are continuing to consider the issue. In the light of that, I hope that he agrees to withdraw the motion.
Amendments Nos. 3 and 4 would place a duty on the Secretary of State to ensure that regulations under clause 16 include provision intended to secure the rights of those receiving services in addition to their health, safety and welfare. We must be careful not to create an expectation that the new Care Quality Commission will be a quasi-judicial or ombudsman-type body, as the amendments would do. Regulations under clause 16 will set out specific requirements that will be in line with the spirit of the European convention on human rights, but are relevant to the provision of health and social care services. It will be by enforcing those specific requirements on health and social care provision that the commission will support the promotion of human rights.
New clause 2 and amendments Nos. 5, 6 and 7 would require the protection and promotion of human rights to be central to the work of the commission. We had quite a lot of discussion about that in Committee, not least in response to the amendment tabled by my hon. Friend the Member for Luton, North. I confirmed that as a public body, the commission will of course be subject to the Human Rights Act and will have to carry out its functions in ways that are compatible with it. In carrying out its work in checking that providers comply with the registration requirements, the commission will be able to ensure that providers follow the spirit of the European convention on human rights.
We are keen to get the registration requirements right. Rather than this being a “tick-box exercise”, to quote my hon. Friend the Member for Hendon, the commission’s work in ensuring compliance will be a real driver to help to achieve the “wholesale cultural change” that the JCHR’s report seeks. I also encourage all those with an interest in the safety and quality of health and adult social care services to participate in the forthcoming consultation on those registration requirements. That is an open invitation to him and his Committee to do so.
Amendment No. 8 would require the commission to perform its functions in a way that encourages health and social care services to improve the information that they provide to patients and service users about their rights. We agree that it is important that people have information on their rights and entitlements so that they can make informed decisions about their care and treatment, but the amendment is not necessary to achieve that. The Government have already distributed guidance and a toolkit on human rights and health care to the NHS, and that is available to the public. The Human Rights Act makes it unlawful for the Care Quality Commission, or any NHS body or local authority, as public authorities, to act in a way that is incompatible with the convention right. It is therefore for the courts to ensure that they comply. Of course, other bodies, such as the Equality and Human Rights Commission, have a leading role in that.
Amendment No 11 would require the commission to have specific regard to whether adequate advocacy services are available when carrying out its functions. The Government recognise the importance of good advocacy services. Section 12 of the Health and Social Care Act 2001 gives the Secretary of State for Health a duty to arrange the provision of independent advocacy services for those who make complaints about the NHS, and we established the Independent Complaints Advocacy Service to support patients and members of the public wishing to complain about their NHS care or treatment. In the context of social care, we intend to provide equal access to advocacy alongside the new complaints arrangements. We are still examining the details of how that can best be achieved.
While the commission will encourage the provision of good advocacy services through its review functions and by monitoring the adequacy of complaints processes operated by service providers, we do not consider that that should be central to its role. It would therefore be inappropriate for us to include it in the list of the matters to which it must have regard as a matter of course when carrying out its functions.
New clause 4 is linked to clause 41, which enables the Secretary of State to publish statements of standards relating to health care provided and commissioned by primary care trusts. The standards will provide a practical set of benchmarks for different services. The new clause sets out a number of topics to be covered by standards under clause 41, relating to the rights of patients and service users. We intend to hold wide-ranging discussions and full consultation with patients and clinicians on the details of the standards, because we want to ensure that they deliver real improvements in care. We feel that it would be inappropriate to set out the details in the Bill in advance of that consultation; indeed, I am not convinced that such standards should be in primary legislation at all, as it will be necessary to refine them frequently.
My hon. Friend the Member for Stoke-on-Trent, North (Joan Walley) expressed concern about publicly commissioned services provided by private non-urgent ambulance services. I invite her to make the case that she has made today during the consultation on the registration requirements, but I can reassure her that any publicly provided health or social care service will fall within the scope of the Bill, in terms of both human rights and registration requirements.
May I reinforce a point about the training and education of staff? On Second Reading, I raised concerns that had been put to me by Unison and the Royal College of Nursing. They wanted to make absolutely certain that the quality of staff was good across the board, and that there was no danger of a two-tier service developing in time.
I am about to deal with amendments Nos. 14 to 18, which refer to professional qualifications and training. I hope that this will reassure my hon. Friend. The amendments are intended to implement the recommendation of the JCHR about professional regulation, which suggested that
“basic principles such as dignity, fairness, respect and equality be included in qualifications, accreditation and re-licensing for health professionals.”
We do not consider the amendments to be either necessary or appropriate to achieve the objective that I think we all share. They seek to impose various duties on the Council for Healthcare Regulatory Excellence, the Office of the Health Professions Adjudicator and the General Social Care Council. Each of those bodies is a public authority, and as such they must already carry out their functions in a manner that is compatible with the European convention on human rights. We therefore see no need to impose specific duties on them, and do not consider that any benefit would be gained from our doing so.
I trust that my assurance that the Government will examine the issue of publicly arranged health and social care provision and the Human Rights Act again in the context of the Bill will enable my hon. Friend the Member for Hendon to withdraw new clause 1, and I hope that I have persuaded him that his other amendments are not necessary either.
I hope that my hon. Friend does not take exception to the fact that our Committee proposed amendments. We see that as an extension of our general scrutiny role, particularly if the Government do not accept the recommendations in our reports. In that event, inevitably, our only alternative is to bring them to the Floor of the House by tabling amendments, and we may do that rather more frequently in the future, not just in relation to my hon. Friend’s Department, but more generally.
The debate we had on the YL case emphasises the importance of the comprehensive approach that my Committee advocated from an early stage, as exemplified by a private Member’s Bill of mine in the last Session and another Bill of mine in this Session. All the questions and criticisms that have been raised would have been dealt with by such an approach. The question of devolution, which the hon. Member for Romsey (Sandra Gidley) raised, could be dealt with by a comprehensive approach in a dedicated Bill. The question of patient transport services, as addressed in amendments to the Bill, could also be dealt with. My hon. Friend the Member for Luton, North (Kelvin Hopkins) raised issues to do with self-funders, and they could also be dealt with. I am not entirely sure that I agree with him on that point, however, because even if there was no means-testing, the people concerned would still be in a private sector home, so without things being resolved in accordance with the YL case problems would still arise.
My hon. Friend the Member for Luton, North also raised more general issues that stray into the wider Bill of Rights debate. Those of us who are involved in the human rights world come across three major issues. One is horizontality, which I mentioned earlier—applicability between private individuals and companies. His comments strayed into that area, and also into the second big issue: social and economic rights. However, he kept off the third one: third generation rights, which are to do with environmental issues.
I hear what my hon. Friend says, but it is important to get back to where we started before we start to develop our ideas. I have a lot of sympathy with his points, but we must resolve the immediate problem first.
I am pleased that my hon. Friend the Minister has recognised the importance of this matter and that it will be returned to in the other place. I am not entirely sure that he is with us, however, when he talks about looking only at the regulatory powers aspect. Does he therefore exclude the general application of the Human Rights Act 1998 to care home residents, including, for example, their power to take matters to judicial review, as in the YL case and the Leonard Cheshire homes court case? Those cases were brought by individuals who were affected; they enforced their own rights and were not reliant on the commission or another agency to help them do so. I hope that when the Government table an amendment in the other place, it will address the fundamental problem of the definition of what is a public authority in this context, as one of my amendments would do. On that basis, I would be happy not to press this particular matter any further.
On wider issues, the hon. Member for Eddisbury (Mr. O’Brien) raised the important need for a rights-based approach. That is fundamental to the second batch of amendments, if I can use that general term to describe the amendments that are all variations on that theme.
I am concerned that my hon. Friend the Minister says we are raising expectations, because the expectations in question relate to people’s rights that already exist. That takes us back to a point I made earlier: the Government say that they expect certain things to be done, but the rights already exist in law and should be enforced. I am therefore concerned that he feels that they should not be included in the Bill, in the context of a rights-based approach. It is said that the matter will fall under the commission’s general responsibilities, and that it will conduct enforcement and inspections in the spirit of the Human Rights Act, but if that fundamental principle is not included in the Bill in some way, shape or form, the importance of that rights-based approach will be underplayed. All the evidence that we have received supports that argument—as, I think, does the evidence the Public Bill Committee received.
In the spirit of compromise, I do not propose to call for a vote. My hon. Friend has said that these issues can be looked at again in the other place. As he knows, one advantage of the Joint Committee on Human Rights is that we have members from both Houses, so we can keep each other well briefed and informed. If my hon. Friend does not table amendments, particularly on the rights-based approach, I will be very surprised if my Committee colleagues in the other place do not do the job for him again, so that we end up having this debate again, perhaps even on Lords amendments back in this House.
We have had sweetness and light so far today, and I would give the Government a mark of seven out of 10. On that basis, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 15
Code of practice relating to malnutrition
‘(1) The Secretary of State may issue a code of practice about compliance with any requirements of regulations under section 16 which relate to the prevention or management of malnutrition.
(2) The code may—
(a) operate by reference to provisions of other documents specified in it (whether published by the Secretary of State or otherwise);
(b) provide for any reference in it to such a document to take effect as a reference to that document as revised from time to time;
(c) make different provision for different cases or circumstances.
(3) The Secretary of State must keep the code under review and may from time to time—
(a) revise the whole or any part of the code, and
(b) issue a revised code.—[Mr. Stephen O’Brien.]
Brought up, and read the First time.
With this it will be convenient to discuss amendment No. 105, in clause 16, page 8, line 31, at end insert—
‘(7A) Regulations made under this section may make provision for the prevention and management of malnutrition and may include such provision as the Secretary of State considers appropriate for the purpose of safeguarding individuals (whether receiving health or social care or otherwise) from the risk, or any increased risk, of malnutrition.’.
Amendment No. 105 is intended to establish regulations to deal with malnutrition. It is drafted in the same terms as clause 16(5), which is on health care-acquired infections—or health care-associated infections, depending on which of the Government’s definitions one chooses to take. New clause 15 would provide for a code of practice on malnutrition and is drafted in the same terms as clause 17, which provides for a code of practice relating to health care-acquired infections.
The context of the new clause and amendment is necessarily fixed within the area of health care-acquired infection. The Government have put in the Bill the need for regulations about health care-associated infections, as they call them, notably methicillin-resistant Staphylococcus aureus and clostridium difficile, and a code of practice on preventing them. While that is laudable, I fear that it will do little to dent the Government’s ongoing failure on health care-associated infections unless proper infection control measures are put in place in the code.
Although health care-associated infections are falling, the rate is still way off track to meet the Government’s 2004 target of halving MRSA rates by March 2008. The Secretary of State for Health has contradicted the Prime Minister’s promise of screening for C. difficile; bed occupancy is up; deep cleaning is a gimmick with no new money attached; there is no decent search-and-destroy strategy; and Government promises on isolation wards are still being broken. I am sure, moreover, that the House was pretty disgusted by the Health Secretary’s posturing promise that he would prevent a payout to the chief executive of Maidstone and Tunbridge Wells NHS Trust, considering that, on 24 January—just a few days ago—we discovered not only that the Secretary of State never had the power to do that, but that the chief executive received £75,000 of taxpayers’ money for her failure. That is the context in which malnutrition is so important.
As we know, according to the Government’s own figures in “Clean, safe care: reducing infections and saving lives”, published on 8 January, MRSA affected about 6,000 people in 2006-07 and C. difficile about 56,000. By contrast, in 2006-07 no fewer than 139,127 patients were discharged from hospital in a state of malnourishment. The issue is not just about malnourishment; it is also a human rights—we have just discussed human rights—issue. The Joint Committee on Human Rights, in its recent report, “The Human Rights of Older People in Healthcare”, noted that malnutrition and dehydration in care settings breached articles 2, 3 and 8 of the European convention on human rights. Figures cited in the Department of Health’s own nutrition action plan show that the cost of under-nutrition is estimated at £7.3 billion a year, and a recent British Medical Journal study reported that about 20 per cent. of patients in hospital—one in five—are malnourished.
Despite those figures, which reaffirm those provided through BAPEN’s screening week—I assume that everybody in the Chamber knows that BAPEN is the British Association for Parenteral and Enteral Nutrition—an initiative that the Minister claimed to support, the Department chose to rubbish them as
“hopelessly out of date or misinterpreted.”
Furthermore, the Government’s own figures, provided to me through written parliamentary answers, show that the number of undernourished patients being discharged from hospital has risen by 84 per cent. since 1997. There is little evidence that the Government have either the will or the conviction to tackle the problem. Since the new year, they have failed to take the opportunities afforded by the publication of vital signs indicators for primary care trusts, of responses to the payment by results consultation, and of the Bill to demonstrate their intention to do so. Of the 83 vital signs targets, none relates to malnutrition. It has been pointed out to the Department that the lack of recognition of support services, such as those on nutrition, in PBR acts as a barrier to the commissioning of effective care pathways.
Most damning was the voting down in Committee of an amendment that would have put the importance of tackling under-nutrition on the same statutory footing as tackling hospital-acquired infections. Clearly, therefore, the Government see under-nutrition as a peripheral rather than central issue in respect of both health and social care and human rights. The new clause and amendment give the House an opportunity to make a genuine addition and improvement.
Given the Government’s repeated refusal to make use of opportunities to tackle under-nutrition, such as in the NHS’s operational plans and the system of PBR, my view and that of my colleagues is that we simply cannot accept the Minister’s feeble assurance—“feeble” is a strong word, but it is correct in this context—to the Committee that he hoped that malnutrition would be included in the core registration requirements examined by the new Care Quality Commission. He said no more than that he hoped that that would happen. That seems a wholly insufficient and inadequate response to what is patently a major issue, given evidence that was based wholly on the Government’s own information and statistics, and which was published in parliamentary answers. Unless we hear from the Minister an important and new voice on the matter, it will be important for us to register our concern. We shall want to pursue the matter at this stage and certainly as the Bill proceeds to another place. When it does, I hope that this time the Government will support such amendments.
I am pleased that we have a chance to debate this subject. I can understand the irritation of the hon. Member for Eddisbury (Mr. O’Brien) at being denied an opportunity to discuss health care-acquired infection again. Although we did not support some of his amendments in Committee, it was their style, rather than the thought behind them, that was problematic. However, he has used this opportunity to raise an important subject.
The hon. Gentleman mentioned BAPEN, whose survey last November concluded that more than one in four adults admitted for stays in hospitals, mental units or care homes is at risk of malnutrition. He said that the Government have rubbished those figures, but the Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), who has responsibility for care services, said:
“BAPEN’s research has provided us with consistent information on the scale of malnutrition in the community for the first time. This work highlights the fact that on being admitted to a hospital or a care home it is important that every older person is given a nutritional screening which is reviewed on a regular basis.”
That point relates not just to older people. It appears that there is some division on the matter. I see that there is to be a nutrition action plan, but I can find little by way of an update on it since the announcement that it was being set up. I am not clear whether those involved have even met yet.
I was struck by an article called “Behind the Medical Headlines” by Dr. McKinlay, who is a consultant gastroenterologist at Aberdeen Royal infirmary. I do not think that malnutrition is any different a problem in Scotland; in fact, BAPEN said that it was fairly consistent across the four nations. The article was even more damning. It was based on a survey of prospective in-patients at a Dundee hospital and it said that more than 40 per cent. of acute admission patients are undernourished and 75 per cent. of patients lose weight during their hospital admission. That is a worrying statistic. The article goes on to discuss some of the reasons for that and we must also bear in mind that patients are not moving around and burning off energy.
The hon. Lady highlights one of the points that has caused me the greatest anxiety. Since 1997, more people going into hospital are malnourished, either because is their usual state or because it is part of their illness. Not only do more people come out more malnourished or undernourished than when they went in, but the numbers of those who go in malnourished have grown compared with 10 years ago. The incidence of malnourishment as a phenomenon has increased over that period, which is why it is so crucial that the issue is added to the Bill. That would send a message from this place and put the issue on a par with health care-acquired infections.
The hon. Gentleman is right. The figures are set against an average decrease in the length of stay in hospital, so one wonders what is going on.
In 2005, BAPEN published an economic analysis of the cost of disease-related malnutrition in the UK. The total cost was estimated to be £7.3 billion, with approximately £3.8 billion incurred in hospital and £2.8 billion in long-term facilities. I would have assumed that the Government were keen to address that avoidable cost by putting in place some simple measures. We have all seen the programmes with undercover filming in geriatric wards and nursing homes, in which people are not helped to eat or given inappropriate food. Tackling the problem, and ensuring that there is a clear code of behaviour, would also address some of the human rights aspects of the issue. As the hon. Gentleman rightly pointed out, this is a human rights issue, because many elderly people are not getting the care and attention they deserve, however many dignity strategies the Government introduce.
The conclusion of the article to which I was referring states:
“In the majority of inpatients, however, the most important single factor leading to malnutrition is probably loss of appetite and failure of intake.”
If someone is unable to eat for any reason, there are things that can be done to minimise the results. There is little detail behind the amendments, but they are well intentioned. I hope that they will find some favour with the Government, because the problem is real and avoidable. There are no targets to address it and it is too often overlooked.
I wish to contribute briefly to this debate. Traces of minerals and vitamins have been shown, even in the last week, to be of crucial importance in the onset and development of Alzheimer’s and of dementia in general. I urge the Minister to pursue that research because it could make a tremendous difference not only to the lives of millions of people who might not develop dementia if they have the right diet and vitamin and mineral intake, but to those who already have the disease, because it could be prevented from developing further.
We need to be careful not to let the market get ahead of us, because we should be trying to lead on this issue, not follow. Interestingly, the sale of aluminium kettles and pans has collapsed since the suggestion that aluminium deposits in boiled water could contribute to the development of dementia.
We are certainly well aware of the problem with aluminium, but some vitamins and trace elements are positive in their effects. I want to be sure that the Government are aware of the most up-to-date research and promote the use of those vitamins and minerals by those who are healthy as well as by those who are already in care, not only for the welfare of people in general—about which we are all concerned—but for the sake of public expenditure. If fewer people become ill or can be kept healthier when in care, there will be a saving to the public exchequer—
I am sure that we would all agree that it would be beneficial all round. Specifically, it would be beneficial to the public purse, as well as to the general wellbeing of the population. I urge my hon. Friend the Minister to do what he can to pursue the most modern research and promote good nutrition in the healthy, as well as in those who are already in care.
I am pleased to support the amendments as I spoke on the issue in Committee and I have raised it in the House in the past. The Government must take this opportunity.
A code of practice should ensure that people who are sick and who have been admitted to hospital are given a good, nutritionally balanced diet, but it should also go further. It should require that a patient’s particular medical condition is taken into account when balancing their nutrition. If people have suffered serious bone damage, it is important that they get certain vitamins and minerals, such as calcium phosphorus and vitamin D, to enable the growth of new bone. Of course, those vitamins and minerals are also important for healthy people, to try to offset osteoporosis and other problems.
The hon. Member for Luton, North (Kelvin Hopkins) mentioned dementia, and we now know that certain vitamin and mineral deficiencies cause behavioural symptoms that are often misdiagnosed. It is important that a professional takes a close interest in how patients are eating and behaving, as well as in their physical condition. I do not suggest that we want the professionals to have to tick lots of boxes on a piece of paper, because it could become so bureaucratic as to lose its purpose, but I hope that the Minister will be receptive to the firm plea from both sides of the House that a code of practice is included in the Bill.
The issue is not just the food, or even just the quantity, although it is important to monitor significant weight loss in people in residential and nursing homes or in-patients. That can tell a professional that something serious is going on. Also, particularly with elderly people, it is important to ensure that the code of practice identifies what we expect of the home or the hospital in assisting people, who might otherwise be unable to accept what is on the menu, to eat. Of course, that will start to involve assistance with eating and, as we all appreciate, that involves staff time, which is often rare in hospital wards.
In Committee, I mentioned the difficulty of dealing with elderly people in trauma wards who often cannot hold their knife and fork, or even a spoon, and who need somebody to sit with them and help them eat. If the Minister is prepared to be helpful on this point, I hope that the code of practice will consider not only the food and nutrients but what is done to assist people in getting that intake of food. Sometimes, such help is about listening and observing more than anything else.
In my experience of having elderly relatives in hospital, some at the end of their lives, when I have seen best practice—and I have—it has been extremely good. I am thinking particularly about my mother during her last weeks in the excellent Wokingham hospital. As she was unable to take solids, her food was mashed and later pureed. A lot of thought went into what consistency the food should be that she would be able to eat. In contrast, other relatives in other hospitals did not have that experience. It was extremely distressing. As a family—in this country—we felt that we had to work a rota to ensure that elderly, frail relatives were fed at mealtimes in hospital.
My hon. Friend is giving moving evidence, which is an accurate observation that has, I am sure, been shared by many here and outside this place. She will be the first to accept that however important it is for family members, when they exist, to take part in a rota, an adjustment is needed in the expectations placed on nurses. They ought to be given the time to do the difficult task of getting the appropriate types of food into the mouths of those who are most vulnerable and unable to help themselves, and that use of their time should be valued. At the moment, many of the other targets drive nurses away from feeling that they have the time to do that.
That is obviously right. Families who have a loved one in hospital or sick want to do their best for them. I am not saying for one moment that relatives do not want to help, willingly, at mealtimes and other such times. However, there is a difference between the relative who sits by the bed and helps to deliver the meal to the patient and the family who feel that they have to be there at lunchtime and in the evening just to ensure that the patients gets some food. There is a fear that if families do not organise that themselves, the patient will slip through the net. We should not accept that in this country in this day and age.
This is an important opportunity. As MPs, we have to deal with such casework from time to time and it is distressing to have to deal with cases that involve people who have not received help and support on nutrition and feeding, particularly when they become frail and vulnerable. As we get an older population, more people do not have any close friends or relatives. In those cases, it is important that the residential care home, the nursing home or the hospital ward not only protects people’s human rights but has a code of conduct that is in force and inspected to ensure that such cases occur fewer times, not more. The trend is going the wrong way. The Minister is a compassionate man. If he wants to show that compassion during any part of the Bill, now is the time.
As my hon. Friend the Minister knows, I was not going to speak on the Bill. However, alarm bells are ringing in my head as I sit here and listen to people’s speeches. I know that they speak with the best intentions, but clause 16(3)(b) clearly states that regulations may
“make provision as to the manner in which a regulated activity is carried on”.
We are discussing encompassing in that a regulator who will look after people and make provisions on how activity is conducted. I had grave doubts about telling people, “You must stop infecting people as they enter your hospital.” I do not think that any hospital intends to infect people. I do not want to tell doctors and nurses to wash their hands between going from patient to patient. That is a difficulty. If we are now to start telling the people who are running our health service, “You must start feeding patients,” something is dramatically wrong. If we are to start telling residential homes that they must start feeding their clients, that is wrong.
If we list 24 different items that are included, when number 25 comes up we will be unable to blame the bodies, because they will say, “It wasn’t on your list of 24, Minister.” Surely, we are providing a general duty. If the Minister is going to add more to the Bill, he should be careful. Anything left off will be deemed unimportant because of its omission. I acknowledge every sentiment about the problem of malnutrition in our hospitals and residential homes, but I ask the Minister, please, to be careful before he starts telling those organisations what meals they need to have and what vitamins they should put in their food. I felt that concern as I heard the debate; the Minister should be wary of going down that path.
We enjoyed a long and detailed debate on this issue in Committee. As I said then, I have a great deal of sympathy with the motives behind the amendments, but there are good reasons why they are unnecessary. As most hon. Members have recognised, we are making significant progress. We have been working closely with the Food Standards Agency to improve the nutritional quality of hospital meals. We have launched the better hospital food programme, which is having an impact. The patient environment action team assessments show that there has been an increase from 17 per cent. of food being described as good in 2002 to 44 per cent. being rated excellent in 2006-07.
We also recognise that older people in hospital are particularly vulnerable to malnutrition. To identify and deal with that risk, we have introduced protected meal times. We are putting particular emphasis on the screening that has been advocated by a number of hon. Members in this afternoon’s debate. Those two areas of work are being pursued by the National Patient Safety Agency.
The Royal College of Nursing has recently signalled its commitment to addressing the issue and has launched its nutrition now campaign, which aims to help all nurses at all levels to improve the nutrition and hydration of patients. The Nursing and Midwifery Council, the regulatory body for nurses, has identified nutrition as one of the core skill areas to be singled out for special assessment of competence before nurses are admitted to the register, a move that we warmly welcome.
As I mentioned in Committee, last October the Under-Secretary of State for Health, my hon. Friend the Member for Bury, South (Mr. Lewis), launched a nutrition action plan to build further on that work. The plan is being developed with leading stakeholders. Indeed, Opposition Members referred to the Age Concern report, “Hungry to be Heard”, and they will be pleased to learn that Gordon Lishman, the director of Age Concern who is responsible for pioneering work in the field of nutrition, has agreed to chair the national action plan delivery board.
I also described in Committee the detailed standards in nutrition that apply to the NHS under the standards for better health and the national minimum standards that apply for registered health and adult social care providers. They are core standard 15a, which states:
“Where food is provided, health care organisations have systems in place to ensure that…patients are provided with a choice and that it is prepared safely and provides a balanced diet”.
Core standard 15b states the need that
“patients’ individual nutritional, personal and clinical dietary requirements are met, including any necessary help with feeding and access to food 24 hours a day.”
For assessment against core standard 15, the Healthcare Commission will use the criteria, which were signed off by the Secretary of State for Health in 2007-08, that patients should be offered a choice of food in line with the requirements of a balanced diet, reflecting the needs, preferences and rights, including faith and cultural needs, of the service user population.
I also went on to describe how the Healthcare Commission’s national in-patient survey had shown that 53 per cent. of adults now rated the food that they ate in hospital as good or very good. The better hospital food programme, which was launched in 2001, introduced five key improvements: 24-hour service, NHS snack boxes, additional snacks twice a day, a hot meal in the evening and menus including three dishes created by leading chefs. So an awful lot is happening with food and nutrition, but I accept the points made by hon. Members that more needs to be done.
In December, we published our annual operating framework, which recognised for the first time the importance of including regard for the patient experience as one of the NHS’s five main priorities. If there is one thing that comes up time and again in consultations and when hon. Members talk to their constituents about their experience as patients, the quality of food is very high on the list, as well as issues such as how people are treated by staff and receptionists. It is very important that, by including the issue in the five main priorities that the Government have given to the health service, we will see further improvements. Indeed, I held a meeting last week to find out how we could best spread the really good practice that hon. Members are aware of happening throughout the country. I recently visited Cornwall, where the local hospitals are doing an excellent job in serving, I believe, 80 per cent. of locally bought produce, fresh from local farmers, butchers, dairy farmers and fishermen. That is going down very well with patients there, and it is improving recovery rates.
I want to deal with the claim made by the hon. Member for Eddisbury (Mr. O'Brien) both here and in Committee about patients allegedly being discharged with malnutrition. He made that claim, both generally and in Committee, in reference to my local excellent hospital. It surprised me, and it also surprised the chief executive of the Royal Devon and Exeter hospital. It might be based on a misunderstanding of the definition of episodes. If he will bear with me, it is important that this is put on the record, as the allegations are quite serious.
For the purpose of the hospital episode statistics, a patient’s stay in hospital is referred to as a spell and each period under the care of one consultant is known as a episode. So a patient who is under the care of several consultants during the spell in hospital has several episodes. Someone under the care of only one consultant throughout the stay has only one episode. For the purpose of the statistics from which the hon. Gentleman draws his allegations, the first episode is known as the patient admission episode and the last episode is known as the discharge episode.
If someone has only one episode in hospital and if they remain under the care of only one consultant during their stay in hospital, their patient admission episode and their discharge episode would be the same. So someone admitted, for example, for the treatment of a nosebleed would have “nosebleed” recorded as their admission episode and their discharge episode. That does not mean that they leave hospital with a bleeding nose. Similarly, someone whose final treatment episode is registered as being for malnutrition does not leave hospital with malnutrition, as the hon. Gentleman suggested earlier. They are not discharged with malnutrition.
There may be a number of reasons why malnutrition, for example, is not picked up when someone is admitted to hospital. It might be part of a more serious condition for which they are being treated or operated on, and it is diagnosed only when they are recovering from the more serious condition for which they are being treated or operated on. That explains why their final treatment episode might be for malnutrition, when their initial treatment was not. Hence the allegation made by the hon. Gentleman that people were becoming malnourished in hospital is not the case. Similarly, it might be that, when recovering from a serious operation, a patients loses their appetite, so their final treatment in hospital is for malnutrition, but that does not mean that they are discharged with malnutrition. So I hope that that helps to clear up that point.
I wonder whether, as part of a continuing campaign, it would be possible for the Minister to refer all this to the people who invented these phrases. In the end, people ought to understand this information. Although elegant in his presentation, the Minister has made it clear that this is pretty difficult for people to understand. If we are to try to follow this properly, can we not speak in English? The word “episode” does not mean that in any other form. Perhaps the national health service would be kind enough to try to communicate with us more reasonably.
I absolutely agree with the right hon. Gentleman. As a result of my desire for clarity, I went back after our discussions in Committee to try to shed some light on the issue. I am sorry if I have not managed to do it with more clarity. A better phrase for episode is what one is being treated for during a particular period of one’s stay in hospital. As I am trying to say, someone may be treated for a range of different things while they are in hospital. What they are treated for at the end of their stay in hospital might be different from what they were admitted to hospital for. I simply tried to clear up the misunderstanding that has arisen as a result of how the hon. Member for Eddisbury interpreted some answers to parliamentary questions that led him wrongly to suggest that people were being discharged with malnutrition. They are not being discharged with malnutrition.
I very much accept the help that the Minister is giving, but I come back to the point that, if we are to pass on information, the importance of that information and truth is not what leaves the lips but what is heard in the ears. If people cannot understand what is said either in an answer to a question or, more likely, at the heart of the NHS, is it not important that we recast it in such a way that it does not need the Minister’s intervention for anyone to understand it?
The reason why it needed my intervention was the misunderstanding on behalf of the hon. Member for Eddisbury. I hope that, when he reads Hansard tomorrow, he will see that I have cleared it up; but if I have not, I will write to him in a further attempt to do so.
I bore with the Minister right the way through to make sure that he said the whole of what he had to read out. I entirely share the concern of my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) about the use of English, but that is another matter. I am sure that the Minister will be the first to agree that I have based all these malnutrition arguments and the question of whether it has got worse or better over the past 10 years entirely on Government statistics produced in response to my written parliamentary questions, which were then given ministerial answers. From what the Minister has just said and assuming that we can find a common form of language that we are likely to understand, it seems to me that, if I was to retable those questions, he might undertake to give the answers to me in a way that everyone can understand. If he wants to demonstrate that malnutrition has not got worse in hospital stays in this country over the past 10 years, I hope that his answer will bear that out; but as things stand on the record, I am right and, at the moment, he is wrong.
Anyone who has fairly followed my record in this place will know that I always try to answer questions succinctly. Perhaps I tried to answer the hon. Gentleman’s written questions too succinctly. If I had given a little bit more detail, as I have given the House today, he might not have been led to make the claim that he made in Committee and during this debate.
The hon. Gentleman asked why we were making separate provision for health care-acquired infections yet not giving nutrition the same level of importance. The separate provision for health care-associated infections is already in existing legislation. We already have the code of conduct that Parliament approved during the introduction of the code of practice as part of the National Health Service Act 2006. That provides a framework on how services can prevent and control health care-associated infections and has been well received in the field. It would not make sense to remove that vital guide for tracking infections. May I take the hon. Gentleman to task for accusing the Government of failing to get infection rates down? He will know that since we were in Committee, we have reported a 40 per cent. decrease in MRSA since 2003-04 and a 16 per cent. decrease in C. diff in the past year alone.
We do not desire areas such as nutrition to be neglected. Indeed, in everything that I have said about the subject both in the Chamber and in Committee, I have reconfirmed the importance that should be placed on nutrition. We have acknowledged throughout our debates on the Bill that the commission is best placed to set the specific criteria by which providers are assessed for compliance with registration requirements. However, I have said before, and I will say again, that we intend that registration requirements will make reference to nutrition. The Committee was shown examples of how they might look and copies were placed in the Library. Hon. Members will be aware that we will issue consultation on the issue shortly. In that spirit, I invite the hon. Gentleman to withdraw the motion.
I listened very carefully to the Minister. Interestingly, the hon. Member for Tamworth (Mr. Jenkins) unwittingly put his finger on the fact that although health care-associated infections are mentioned in the Bill, malnutrition is not. He suggested that it would be dangerous to add anything more to the Bill. However, malnutrition affects 137,000 people, whereas 6,000 are affected by MRSA, for example. If we want to demonstrate that addressing malnutrition is of equal importance, we will want a reference to it in the Bill. On that basis, I urge my colleagues to join me in the Lobby in support of new clause 15.
Question put, That the clause be read a Second time:—
The Commission’s functions
With this it will be convenient to discuss the following: Government amendments Nos. 143 and 63 to 65.
Amendment No. 142, in page 28, line 26, clause 57, at end insert—
‘(5) The Secretary of State may, after consulting the Commission, by regulations make provision specifying conditions which would result in additional inspections for the purposes of the Commission’s functions under Chapter 2.’.
Government amendments Nos. 66 to 74.
Amendments Nos. 62 to 64 and 143 are Government amendments, so I shall speak to them first. Amendments Nos. 62 and 65 are significant and will be of particular interest to the House.
On amendment No. 62, clause 2 ensures that the commission must have regard in everything it does to the public’s views on the services that fall within its remit, and to their levels of satisfaction with those services. The clause received a great deal of attention when the Bill was considered in Committee. User and carer involvement in the commission’s work was also a recurring theme, and hon. Members from both main Opposition parties tabled amendments on that issue.
As I have made clear on a number of occasions, the Government believe that involving and listening to users, patients, their carers and the public will be a central responsibility for the new commission. The Bill already requires the commission to appoint an advisory committee, and we will expect the commission actively to involve patients and service users as well as others with an interest, such as service providers and commissioners.
There will be a wide range of bodies with an interest in a particular issue or representing particular groups, and we want to ensure that the commission hears their views. For that reason, Government amendment No. 62 proposes to make it explicit that a duty to have regard to the views of the public includes views expressed by representative bodies on behalf of members of the public. That requires the commission to engage with those acting on behalf of members of the public; that might include local involvement networks, charities or other representative groups. I hope that hon. Members will recognise that the proposed measures are a valuable addition to the Bill that will address their concerns and indeed go further, and I hope that they can accept the amendment.
Amendments Nos. 63, 64, 66, 67 and 143 are minor technical amendments designed to ensure consistency in drafting with the Care Standards Act 2000, which will continue to apply to children’s services and services in Wales. Amendment No. 65 is another significant amendment. When we considered the Bill in Committee, the hon. Member for Romsey (Sandra Gidley) tabled an amendment to oblige the commission to publish its inspection reports. I said that I would be happy to consider the matter, and amendment No. 65 is our response to that commitment.
Clause 57 requires the commission to produce a report when it undertakes an inspection and to send a copy to the provider or manager in question. As it stands, the clause allows the commission to choose whether to publish the report. As I said in Committee, there is no explicit duty on the current commission to publish reports either, although it normally makes them available online. However, I made it clear that I agree absolutely that the public should have access to the commission’s inspection findings. Having had the opportunity to review the drafting, I am happy to introduce amendment No. 65, which will oblige the commission to publish its inspection reports. I trust that hon. Members will feel able to accept the amendment.
Amendment No. 68 is a consequential amendment that relates to section 134(6) of the Mental Health Act 1983. It will update a reference to section 121 of that Act. It is necessary because the relevant part of section 121 will be replaced, through schedule 3 to the Bill, by proposed new clause 134A. Amendments Nos. 69 to 74 are minor consequential amendments, necessitated by the Bill, to the list in schedule 5.
I turn to amendment No. 142, the only Opposition amendment in the group. It seeks to allow the Secretary of State to specify in regulations specific circumstances in which the Care Quality Commission would be required to carry out additional inspections; such regulations could be made only after consultation with the commission itself. As I said in Committee, I understand the intention behind the amendment—that is, to allow an ability to set specific triggers for the commission to carry out additional inspections. However, clause 57 already allows regulations to prescribe important aspects of inspection if necessary; there is no need to be more prescriptive.
The Care Quality Commission will be established as an intelligent regulator. It will take account of a whole range of information to assess risks in respect of providers and the services that they provide. Based on that, it will decide when and how frequently to visit providers and which issues require more detailed investigation. That will build on the approach already being developed by existing regulators to target inspection when action is required. It will therefore not be for the Secretary of State, but for the commission, on the basis of its intelligence, to determine the appropriate triggers for inspections over and above what is set out in regulations. I invite the hon. Member for Romsey (Sandra Gidley) not to press the amendment.
We are discussing Government amendment No. 62 and the ensuing ones in the group; again, we have a host of Government amendments. Some are concessions that have arisen from Committee, but the question remains about why they had to appear at this late stage.
In amendment No. 62, the Government are making an important concession on patient and public involvement in health. The Government promised a number of times in Committee to revisit the issue on Report. The drafting of the amendment is, to say the least, disappointingly unambitious. I am concerned that the amendment will open the door for any group that claims to speak on behalf of members of the public to harangue the new commission. We will return to the issue when we discuss the next grouping of amendments, but why are the Government fighting so shy of putting LINks—the bodies that they have created—into the Bill? Surely that is not because they have no confidence in the bodies themselves. Is it that, as the hon. Member for Tamworth (Mr. Jenkins) pointed out in Committee, the Government are worried that the bodies will be disbanded in the near future, following hard on the heels of the community health councils and the forums?
I hope that the Minister will expand on amendment No. 68; in Committee we had a number of discussions on the withholding of mail from prisoners detained under the Mental Health Act 2007, an issue of specific concern to the current Mental Health Act Commission. Can the Minister guarantee that the status quo will not change?
The hon. Member for Romsey (Sandra Gidley) tabled amendment No. 142 to clause 57, which is concerned with regulation. Clause 64 is entitled “Avoidance of unreasonable burdens in exercise of regulatory powers”. We have proposed that when the CQC increases regulation, an affirmative resolution should be brought before the House. We found that the Government were most resistant to that idea; as I have placed that on the record, I hope that the matter will be taken up with alacrity and fierce argument in another place.
The amendments on the CQC go hardly any way towards addressing the many and deep concerns expressed by the Committee and a number of third-party organisations; the letter published in today’s issue of The Guardian testifies to that. It seems to suggest that the Government have lost the confidence of a lot of members of the voluntary sector. There is still no mention of carers among the skeletal functions of the CQC, listed in clause 2. I say “skeletal”, because for the most part this is skeleton or portmanteau legislation—the body is to be added later, by regulations. That is most noticeable in clause 2, which establishes no overarching function. Indeed, the advertisement for the chair of the commission, already online despite the fact that the Bill has not been passed by either House, states that one of the role’s responsibilities will be developing plans for the development of the commission’s functions—an interesting job spec if ever there was one.
There are still real concerns that social care and the work of the Mental Health Act Commission will be squeezed out in the action of the new commission. To ameliorate the problem, we have sought a separate reference board of commissioners and an executive board to run the commission. Despite the Minister’s contention that the CQC is to be free to establish its own direction, the Government have not left space in the legislation for it to establish the most effective system of corporate governance. Furthermore, there are real concerns that the Government are playing politics with the merger, and ultimately with the well-being of patients and service users, through the prevention of special reviews until after 2010—that is, after what will be an increasingly rocky election period for a failing Government and a dithering Prime Minister. We will seek to overturn the issue in another place to prevent that politicking from influencing the important substance of the Bill.
Dame Denise Platt of the Commission for Social Care Inspection has expressed concern that many of the commission’s functions will become permissive rather than statutory, as they currently are, and that they will therefore be the first to be ditched when the Government put on the financial squeeze. The Government seem unable to get the issue right. What guarantees can the Minister give that they will not scrap this in three years’ time?
The 1998 White Paper “Modernising Social Services” proposed structural change. The Care Standards Act 2000 created a single England-wide National Care Standards Commission, which was launched in 2002—17 days later, the Government announced that it was to be abolished. The Health and Social Care (Community Health and Standards) Act 2003 created the Commission for Social Care Inspection, which was launched in 2004, incorporating the social care responsibilities of the National Care Standards Commission, the work of the Department of Health social services inspectorate and the SSI-Audit Commission joint review team. In 2004, the Government’s arm’s length body review ruled out a merger with the Healthcare Commission. In his 2005 Budget statement, the then Chancellor announced the merger that we are debating today. Need I say more? Can the Government guarantee that all the work that we are putting in today will not be scrapped within three years?
This scandalous provision remains in the Bill. It forces the CQC to have regard to such aspects of Government policy as the Secretary of State may direct; as such, it totally undermines the independence of the body. The Healthcare Commission has put on record its concerns about the timing of the legislation and that the costs will be high and the distraction considerable. It was disappointing therefore that the Government chose not to include the cost of the merger with wind-up costs of £140 million in any risk assessment.
The House should also be aware that the merger is saving almost nothing on the efficiency trend that the three commissions themselves have already established just as they were bedding in. Taxpayers are paying £140 million for a merger and rebrand that will probably save them no extra money. Furthermore, parts of the cost savings are due to the commission losing the responsibility for complaints handling. That will be transferred to the ombudsman, but we have had no costings on the increase of her budget in the face of an elevenfold increase in work load. We also have no information on how this will be wound up and transferred.
Despite all their amendments, the Government have yet again not got things right. They have not had sufficient ambition when they have sought to address the concerns that have been raised. I hope that the Government have only put down a marker for what will be truly beefed up, made proper and substantive in another place, so that health care needs are met and patient representation and protection are secured.
When I first read Government amendment No. 62, I thought it a good idea. However, I had a cynical afterthought—I wondered whether it was a spoiling amendment for the LINks amendments tabled by the Conservatives. On the face of it, amendment No. 62 seems to address some of the many concerns raised in Committee about there being an insufficient patient and public voice in the new commission. However, I am not sure that the insertion of the words “or on behalf of” has been fully thought through. They are rather vague. It is not clear, for example, who decides who should speak on behalf of whom.
I can imagine the Government’s reaction if Opposition Members had tabled a similar amendment in Committee: we would have been told that there was no specificity and no clarity about who could speak on behalf of whom. Are we talking about bodies that have a constitution so that it is clear on whose behalf they speak, or advocacy services that may speak on behalf of the individual? Where is the protection for an individual who does not want anybody speaking on their behalf? Some mental health groups are very particular about their views on things, and I can envisage problems where other people might purport to speak on their behalf. I am a little confused by the vagueness and wonder whether any further clarity is yet to come.
I thank the Minister for amendment No. 65, which almost deals with the concerns raised when we discussed amendment No. 239 in Committee. At that stage, his argument against the amendment was that there were occasions when vulnerable children or adults must be protected, and I wondered how that would be resolved. I do not mean to sound churlish. I am delighted to see the amendment, but curious about the reasoning.
Liberal Democrats tabled amendment No. 142 after discussion with Unison. We discussed the relevant issues in Committee, but there is still concern about the triggers for inspection. The Minister claims that that is dealt with in the Bill and that it is not a problem. However, there is a problem where an inspection is due within a prescribed period but there may be factors that would alert people to the need for an inspection to be done more rapidly. There may be risk factors that could, particularly in a care home, lead to the quality of care deteriorating rapidly where a provider had previously been rated “good” and placed on a three-year inspection cycle. Those could include a change of ownership of the provider—we have all seen cases of nursing homes where that has been evident—or a change of registered manager, which can have a huge impact. Adult protection matters may come to light. It might be something as simple as staff turnover, sudden increases in which often indicate that something else is going wrong. If there is to be an automatic three-year inspection cycle, there must be an early warning system. We would not want to go back to a situation where there had to be a number of complaints before somebody realised that there was cause for concern.
The Government have said that the principles of inspection for the CQC will be “proportionate” and “risk based” with a view to lightening the burden of regulation for health and social care providers. We would all agree with that general sentiment. However, the new inspection methodology is much more reliant on paper-based reviews and providers assessing themselves. I have occasionally had that concern in relation to CSCI. Sometimes, the first person who is asked to provide a report when there is a complaint is the manager of the care home whom the report is against, and of course people will try to present themselves in the best light possible. There are concerns that the moves towards light-touch regulation could have significant implications for public and staff safety, at a time when the Government are trying to encourage more private providers into the market.
The Minister said that it will all be okay, but he has a job of reassurance to do. As the hon. Member for Eddisbury (Mr. O'Brien) highlighted, the budget that the new commission will operate with will be 40 per cent. less than what the previous regulators had, so it may be driven by budget imperatives rather than what is best for users of health and social care services. A recent survey of Unison members working for the CSCI found that 76 per cent. believe that the new inspection methodology does not provide a robust assessment of risk to service users. A common belief was that the reduced inspection programme could lead to staffing cuts, and fewer inspectors are less likely to impose enforcement requirements because there will not be enough time to follow them up.
It is not only me that the Minister has to reassure. A body of people out there are committed to doing a good job of work for CSCI, and deal with these problems day in, day out. They are concerned that problems will escalate unless there is a clear framework for alerting people to potential problems at a very early stage in the proceedings.
My hon. Friend the Minister may know that I have been to visit the Minister with responsibility for care homes with a delegation from Unison, and we expressed concern about the risk-based approach to inspection. I know that my hon. Friend gave assurances about this in Committee, but there are ongoing concerns. If, in time, there are cases of care homes where the lighter-touch inspection has led to a lowering of standards of care, or the sense that they will no longer be visited so frequently and therefore do not need to perform quite so well, that could eventually lead back to the Government’s door. My hon. Friend is conscientious and concerned about these matters, but this could come back to haunt the Government unless it works. We have already had reports in the past couple of weeks about care homes where there have been serious infections or the inspection was not sufficient to ensure that they had performed well. While I accept my hon. Friend’s sincerity about the matter, some will continue to have concerns about the light-touch approach and the risk-based inspection system. This may have to be revisited in future unless it works as well as he suggests.
I welcome the fact that the hon. Member for Eddisbury (Mr. O'Brien) recognises amendment No. 62 as an important concession, but it was not clear from his comments whether he was criticising us for going too far or not going far enough. I am not likely to get that clarification at the moment, as he is not here. The hon. Member for Romsey (Sandra Gidley) put her finger on it when she gave an example of how sensitive some patient and user groups are about organisations claiming to speak on their behalf. That is why we have broadened this out significantly to include groups who speak on people’s behalf, not just a single organisation, although I specifically referred to LINks. I urge hon. Members on both sides of the House to give LINks a chance before writing them off.
To reassure the hon. Member for Eddisbury on the retention of the status quo on the Mental Health Act 2007, I draw his attention to amendment No. 68. I could have gone into that in more detail, but that is what that amendment does with regard to the rules on the opening of post.
The hon. Gentleman asked me to guarantee that the new regulatory landscape will not be scrapped again in three years’ time. If, as I hope, there is still a Labour Government in three years’ time, I can give him that assurance. There was a general recognition in Committee that the Bill finishes the job that we began several years ago. In fact, as we discussed at some length, some Liberal Democrats urged this integration on us at the time of the last reorganisation of the regulatory system, but we felt that the timing was not right and that it made sense to allow the existing regulatory bodies to settle down and do their job—and they have done a very good job. Even from the bodies that face abolition, there was a recognition of the desirability of the principle of integration. Once that has taken place, everyone feels that we will need time for the new regulatory system to bed down.
In response to the hon. Gentleman’s question about the complaints process—something we discussed at some length—I draw his attention to the memorandum submitted by Ann Abraham on 14 January, which spells out clearly how she expects to meet this challenge.
Amendment agreed to.
With this it will be convenient to discuss the following amendments:
No. 136, in clause 92, page 45, line 47, at end insert—
‘“Local Involvement Network” has the meaning given to it by section 222 of the Local Government and Public Involvement in Health Act 2007 (c.28);’.
No. 132, in clause 103, page 51, line 8 , at end insert—
‘(aa) Local Involvement Networks,’.
No. 133, page 51, line 9, before ‘bodies’, insert ‘other’.
No. 134, in clause 112, page 56, line 16, after ‘public’, insert—
‘(aa) Local Involvement Networks,’.
No. 135, page 56, line 17 , before ‘bodies’, insert ‘other’.
No. 137, page 66, line 15, at end insert—
‘“Local Involvement Network” has the meaning given to it by section 222 of the Local Government and Public Involvement in Health Act 2007 (c.28);’.
I am grateful to you, Mr. Deputy Speaker, and I apologise for the fact that I had to absent myself briefly from the Chamber towards the end of the debate on the previous group of amendments.
We come now to local involvement networks, and it will not have escaped your notice, Mr. Deputy Speaker, that we had a partial discussion about them in relation to Government amendment No. 62, which sought to make clause 2 read:
“In performing its functions the Commission must have regard to—
views expressed by or on behalf of members of the public about activities to which the functions relate”.
I pay tribute to the co-sponsoring of our amendments by the hon. Members for North (Kelvin Hopkins), for North-West Leicestershire (David Taylor) and for Romsey (Sandra Gidley). Amendment No. 131 would make it explicit that LINks were one of the groups that the commission must have regard to. Amendment No. 132 would include LINks as a group that the Office of the Health Professions Adjudicator must seek the views of, and amendment No. 133 is consequent to that. Amendment No. 134 would include LINks as a group that the Commission for Healthcare Regulatory Excellence must seek the views of from time to time, and amendment No. 135 is a consequential amendment. Amendment No. 136 defines LINks for the purpose of part 1, and amendment No. 137 defines them for the purpose of part 2.
I welcome the concession that the Government have made to the arguments advanced by me and Committee members of all parties that LINks should be consulted by the Care Quality Commission. Unfortunately, having promised a number of times in Committee to revisit the issue on Report, the Minister has been disappointingly unambitious in his amendments, which were accepted without opposition. I will not suggest, therefore, that those amendments show more of the contempt that many, including me, have accused the Labour Government of showing in their treatment of the patient voice in England. They scrapped community health councils, which I was very involved with. I exposed an answer given at Prime Minister’s questions: the Prime Minister said that there had been consultation when it was announced that they would be axed in the July 2000 NHS plan, but there had not.
The patient and public involvement forums are now also to be replaced, and if LINks are not mentioned in the Bill, the Government’s latest solution could appear as a vote of no confidence in them. That perception is held by the hon. Member for Tamworth (Mr. Jenkins), who noted in Committee that the reason for not prescribing LINks in the Bill was
“in case it ceases to exist during the lifetime of the Bill”.––[Official Report, Health and Social Care Public Bill Committee, 17 January 2008; c. 284.]
The hon. Member for Luton, North, who is co-sponsoring the amendments, told the Committee that
“ever since the community health councils were abolished Labour Members have been concerned about the strength of protection for patients and of patient representation”.––[Official Report, Health and Social Care Public Bill Committee, 22 January 2008; c. 412.]
I admire him for saying that. He is right and it needed to be said.
I will not rehearse the arguments made in Committee, but simply note a few essential points in support of the amendments, the most vital of which is amendment No. 131. In December 2005, an independent review of the regulatory framework of the NHS, ordered by the Department of Health, concluded:
“Establishing representative national and regional fora to contribute a reasoned collective consumer perspective to the process of reform could well improve both the efficacy and legitimacy of that reform.”
In their response to the consultation preceding the Bill, the Government stated:
“The Care Quality Commission’s…priority will be to safeguard service users and help improve their experience of health and adult social care services—recognising that it can only do this effectively by involving them.”
I note that Ofcom has a consumer panel that plays a similar role, which convenes a regular consumer forum of interested parties, such as consumer and disability organisations.
In its written evidence to the Committee on this Bill, the Healthcare Commission stated it considered the first “clear principle”
“underpinning the design of a regulatory framework”
to be that the
“regulatory system should focus on the needs of the patients and the public”.
The Commission for Social Care Inspection put it even more strongly:
“It would be useful if there were an explicit expectation that the new care Commission had a relationship with Local Involvement Networks”.
That is precisely what our amendments seek to achieve. It is clear that there is a genuine and grand opportunity for the Minister to accept that the amendments are workable and desirable.
The Government are giving a vote of no confidence to their own system by leaving LINks out of the Bill, which is another nail in the coffin of genuine patient and public involvement. As I said, that process began with the abolition of CHCs. We are disappointed that the Government have not used the opportunity offered by this Bill to steal our policy of creating HealthWatch, a national consumer voice for patients. HealthWatch would provide support to patients at a national level and leadership to LINks at a local level. It would incorporate the functions of the independent complaints advisory body; make representations to the NHS board on such things as the closure of NHS services; and, subject to consultation, it would have a statutory right over guidelines issued nationally concerning the care NHS patients should receive and over decisions that affect how NHS care is provided in an area. Hopefully, the Government will support us when we introduce our NHS autonomy and accountability Bill. That would be welcome, and consistent with what the Government are purportedly seeking to achieve.
Now that the Government amendments have been accepted, I am concerned that the door is open for any group that claims to speak on behalf of members of the public to harangue the new commission, or engage it in some difficult dialogue. We also note that there is no duty to consult, only the weak phrase “have regard to”. That weakness is repeated in relation to other organisations mentioned in the Bill. The hon. Member for Luton, North, who has studied the matter carefully, pointed out in Committee that clause 103, which deals with the OHPA, is entitled “Duty to consult” and contains the phrase “seek the views of”—two very different things. A similar wording is used with regard to the CHRE. The title of clause 112 talks of a duty to consult, but again we find the phrase “seek the views of” in the text of the clause.
Our amendments would beef up the consultation carried out by such bodies by including LINks. I commend the amendments standing in my name and those of my right hon. and hon. Friends, and Members from the Labour and Liberal Democrat Benches. This is a genuine cross-party approach to the matter, so I hope that the Government will feel persuaded.
I have agreed to attach my name to the amendments, alongside that of my hon. Friend the Member for North-West Leicestershire, because Members in my party have been concerned about the strength of patient representation for some time, and it is right that those concerns are raised from time to time so that the Government are made aware of them. The abolition of community health councils and the switch to the patient and public involvement forums—and now to LINks—show that the Government are concerned about patient representation, but I am not sure whether they want to strengthen it, or have had pressure put on them to weaken it in some way.
I know that the then health authority perceived the community health council in my area to be a nuisance. The primary care trust has regarded the patient and public involvement forum in our area, especially its chair, as a nuisance. However, patients’ representatives should be a nuisance. If they make a lot of noise, perhaps there is a basis for what they are doing. I hope that my hon. Friend the Minister and the Government will reconsider giving a role to LINks in the way in which the amendments suggest. Perhaps they will table their own amendments if the ones that we are considering are defeated.
I repeat a point that I have made several times about local authority democratic accountability. When most long-term care homes were in the public sector, there was recourse to local councillors and local democratic representation. With privatisation and subsequent institutional reform, that local democratic accountability was lost. Indeed, many families now come to their Members of Parliament—more than one constituent has approached me—about problems with care homes. There should be a stronger role for patient representation and I hope that that view can be accommodated in the Bill before it receives Royal Assent.
Local involvement networks are the Government’s proposed solution to public and patient involvement. If they are as good as they are cracked up to be, and are to deliver all that the Government claim, why does the Minister not accept the amendments, which would strengthen the role of LINks? Are the Government not 100 per cent. convinced that LINks will prove an effective system?
The Select Committee on Health looked into LINks and public and patient involvement, and it was apparent that, despite the expertise of the range of experts who came to speak to us, there was no clear idea about the final structure of LINks and how they would work in practice, or even what their functions would be. There was disappointment that some of the functions of the old CHCs were missing. That could be explained by the mantra that we want local solutions and that they will be different in different areas. I subscribe to that point of view to some extent. However, I was struck by the uncertainty about how LINks would work.
In the next couple of years, while the networks find their way, it could be said that we face a democratic deficit. Perhaps the Minister can reassure us that our concerns about how LINks will work are unfounded and that they genuinely are the best thing since sliced bread. If they are, there is no reason for not accepting the amendments.
The amendments lead us into territory that is familiar to those of us who sat through the Committee proceedings: the role of local involvement networks. The amendments again try to put LINks on the face of the Bill, in the provisions for the Care Quality Commission, the Council for Healthcare Regulatory Excellence and the Office of the Health Professions Adjudicator. Let me first deal with amendments Nos. 131 and 136.
As we specified in the previous debate and in Committee, we all want the Care Quality Commission to have a clear duty to engage with and be responsive to interested parties. I was therefore pleased to move Government amendment No. 62 to clarify the issue. In Committee, we discussed hon. Members’ desire for the CQC, the CHRE and the OHPA to be independent. However, the amendments would prescribe the bodies to which those independent organisations should pay regard. That is not a sensible way to proceed. Government amendment No. 62 makes it clear that the CQC should have regard to the views of organisations that represent patients. As the hon. Member for Romsey (Sandra Gidley) said earlier, there may be specialist care investigations—for example, organisations might want to pay regard to the users of mental health services or other specialist groups. We do not believe that limiting the groups to which they should pay regard to LINks is sensible. That does not mean that we do not have confidence in LINks—we have every confidence that they will do an excellent job and we expect the CQC to work closely with them.
No. They may well do that and I hope that they will. I do not intend to extend the debate to become one of those that we held at length when LINks were established. The hon. Lady made a good point earlier that some patients and some patient and user organisations sometimes resent other organisations speaking on their behalf. We do not want to prescribe that the CQC should pay regard only to LINks, and not to other patient and user organisations.
Although Government amendment No. 62 was tabled in the same spirit as amendment No. 131, it has the distinct advantage of leaving the door open for other representative groups and for leaving it to the independent commission to determine for itself the most effective way in which to engage appropriate groups. Given the amendment that we have just accepted, we believe that amendment No. 131 and consequential amendment No. 136 are unnecessary.
Amendments Nos. 132, 133, 134 and 135 would insert into clauses 103 and 112 a duty on the Council for Healthcare Regulatory Excellence and the Office of the Health Professions Adjudicator to seek the views from time to time of LINks in addition to other bodies. Amendment No. 137 is simply a consequential amendment to define “Local Involvement Network” in clause 122. Under the Bill as drafted, the CHRE and the OHPA are both required to consult public and representative bodies on exercising their functions. We believe that those independent bodies are best placed to decide from which other bodies they should seek views.
Indeed, the council has already embarked on a programme of work, which will lead to the implementation of a patient and public strategy. That is being designed to ensure that the council can fulfil the proposed statutory function of becoming an authoritative voice for patients.
I reiterate what I said in Committee about arrangements between LINks and the CQC. Although we want to encourage strong relationships between LINks and their key stakeholders, including the CQC, the CHRE and the OHPA, we do not believe that it is appropriate to dictate to those statutory and independent bodies the way in which they should involve LINks in inspections or consultations. I hope that, given our discussion, the hon. Member for Eddisbury (Mr. O'Brien) will withdraw the amendment.
Obviously, I listened carefully to the Minister’s arguments, which are not unfamiliar to those of us who had the pleasure of serving in Committee.
There is a need to recognise the theme of a long absence of understanding the issue at stake. When community health councils were axed, they were regarded by some as a nuisance, which probably means that they were doing their job. Some were not very good, but the vast majority were perceived as doing a good job. They were seen to be independent and therefore to be trusted by people who needed help when they felt most vulnerable and needed to have their hand held when charting their way through the confusing and labyrinthine process of NHS complaints.
LINks are the ultimate successor bodies that we are now faced with. If we could feel that they were being given the necessary importance by being included in the Bill, it would seem that the Government were at last addressing the grave concern that so many of us have about the lack of importance and independence given to representing patients and their concerns, particularly when things are going wrong with the NHS. Most often, those who have a concern about the NHS have a continuing need of it and are most anxious not to get offside with the very people from whom they think they need an immediate and expert public service. Taking the opportunity to demonstrate how much they are committed to patient and public involvement in that way would be the proper manner in which the Government could reflect that commitment.
The Government now have a real opportunity to pick up a policy that they have been urged to adopt, but which they again seem to be resisting, and which we have articulated at length elsewhere and now in a draft Bill—I hope that I will be able to persuade the Minister and his colleagues to support the NHS accountability and autonomy Bill, in which we have a designed patient and public involvement system through HealthWatch, a good model that, despite the Minister’s disparaging so far, I hope will be picked up.
It is vital to recognise—not least because the amendment was not just tabled by the official Opposition, but co-sponsored by Government Members and the Liberal Democrats’ spokesman—that the House now has an opportunity to vote, with a heavy heart and some displeasure, against the Government for not seeking to pick up on a sensible, measured and appropriate way of handling such an essential issue. This is an opportunity to ensure that that is well understood in the Bill, and I shall therefore press my amendment to a Division.
Question put, That the amendment be made:—
On a point of order, Mr. Deputy Speaker. The timetable motion relating to tomorrow’s business, which the Leader of the House told us would be tabled later today, has still not been tabled in the Table Office. It is difficult for those of us who are trying to prepare for tomorrow’s concertinaed business to do so in the absence of an understanding of the timetable. Do you have any knowledge of when the timetable motion is to be laid, or any ability to influence that timing?
I do not have any knowledge of how that matter is progressing, but I hope that the hon. Gentleman’s placing it on the record will be heard. As the House knows, Mr. Speaker is always anxious that information that is vital to the work of the House should be made available as quickly as possible.
Amendment made: No. 143, page 13, line 29, after second ‘registration’, insert ‘, the removal of a condition’.—[Tony Cunningham.]
Urgent procedure for variation or suspension
Amendments made: No. 63, page 14, line 34, after ‘vary’, insert ‘or remove’.
No. 64, page 14, line 43, after ‘varied’, insert ‘, removed’.—[Tony Cunningham.]
Inspections carried out for registration purposes
Amendment made: No. 65, page 28, line 23, leave out ‘may’ and insert ‘must’.—[Tony Cunningham.]
Guidance by the Commission in relation to enforcement action
Amendments made: No. 66, page 41, line 30, leave out from ‘8(5)’ to end of line 31 and insert ‘(variation, removal or imposition of condition in relation to registration as a service provider),’.
No. 67, page 41, line 32, leave out from ‘11(5)’ to end of line 33 and insert ‘(variation, removal or imposition of condition in relation to registration as a manager),’.—[Tony Cunningham.]
Fitness to practise panels
With this it will be convenient to discuss the following amendments: No. 85, page 47, line 6, leave out from first ‘the’ to end of line 7 and insert ‘legally qualified members list’.
No. 82, page 47, line 7, at end insert ‘or the legally qualified members list’.
Government amendments Nos. 24 to 27.
No. 83, page 47, line 17, at end insert—
‘“legally qualified members list” means the list of persons eligible to serve as legally qualified members provided for by section 96(1)(c).’.
No. 87, page 47, line 17, at end insert—
‘“legally qualified” means—
(c) a person with a 10-year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41),
(d) an advocate or solicitor in Scotland of at least 10 years’ standing, or
(e) a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, of at least 10 years’ standing.’.
Government amendments Nos. 28 and 29.
No. 84, clause 96, page 47, line 26 , at end insert—
‘(c) persons eligible to serve as legally qualified members.’.
Government amendment No. 30.
No. 75, page 47, line 37, at end insert—
‘(b) “legally qualified” means—
(i) a person with a 10-year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41),
(ii) an advocate or solicitor in Scotland of at least 10 years’ standing, or
(iii) a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, of at least 10 years’ standing.’.
Government amendments Nos. 31 to 37.
No. 89, in clause 107, page 53, line 26, at end insert—
‘(2A) Any proceedings to which subsection (1) applies must have a legally qualified chair.’.
No. 90, in page 53, line 26, at end insert—
‘(2A) Any proceedings to which subsection (1) applies must have a legally qualified chair or a legal assessor.’.
The amendments will allow the Office of the Health Professions Adjudicator to appoint and use legally qualified chairs for panels hearing fitness to practise cases. The Bill as introduced provided for chairs to be chosen from either the lay or professional lists, with the panel having a legal assessor to advise on points of law. However, I thought that the evidence given to the Committee by Lady Justice Smith and the General Medical Council warranted further thought. Lady Justice Smith said that
“there are many reasons why I think that we should have a legally qualified chair, the main one being that to do the job well requires legal expertise”.
Findlay Scott, the chief executive of the GMC, said that
“if there is an argument for a legally qualified chair, I do not personally believe it lies in the quality of the decisions. There may be real arguments in relation to the ability of a senior lawyer to control the proceedings in a way that constrains costs while remaining fair to doctors, and I think that that is an argument that deserves to be fully explored.”––[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 41-57.]
I therefore agreed in Committee to give careful consideration to that issue, with a view to bringing something back now. That is what these Government amendments represent, and I think that they are a good example of how the evidence-giving process is adding value to the system of parliamentary scrutiny.
Essentially, the amendments require the OHPA to keep a list of chairs, which will include legally qualified chairs as well as lay and professional chairs. The OHPA will then have the flexibility to set out in rules when it will use legally qualified chairs. I am very clear that it would not be right for the Government to impose legally qualified chairs for every case that the OHPA hears, when this is a relatively untried and untested route in this arena. Instead, the amendment gives the OHPA the option of using legally qualified chairs for as many cases as it thinks it appropriate. For example, the OHPA may set out in rules that all cases involving a high number of witnesses or likely to be particularly lengthy should have a legally qualified chair. However, the rules may also set out that in all cases where the health of the practitioner is the central issue, a lay or professional chair should be used.
The essential point is that, although I agree that legally qualified chairs should be available to the OHPA, we do not think it right for the Government to prescribe exactly what kind of chair should be used in which circumstances. I would regard it as particularly inappropriate to require the OHPA to use legally qualified chairs in every case before they had been properly trialled and a decision made in the light of practical experience. I hope that Opposition Members will support the amendments.
Let me deal now with Opposition amendments Nos. 75, 82 to 85, 87, 89 and 90. I hope that the hon. Members who tabled those amendments will agree that the Government amendments very much achieve the same objective and so will feel content not to press their amendments. Amendment No. 85 appears to be designed to ensure that all panels should have a legally qualified chair in all cases. I apologise if I have misunderstood the purpose of the amendment, but it seems to be at cross purposes with amendment No. 82. I do not propose to detain the House by rehearsing my reasons for opposing the amendment, because I have already set out in speaking to the Government amendments why I do not believe it is right to impose legally qualified chairs in all cases.
Amendments Nos. 75 and 87 would set in stone the requirement for legal chairs to have a 10-year general qualification, which is the same requirement as the General Medical Council currently uses for its legal assessors. However, the General Optical Council requirement for its legal assessors is a five-year general qualification. I am concerned about prescribing a narrow requirement on the face of the Bill, especially when I have tasked the “Tackling Concerns Nationally” working group under the chairmanship of Sir Ian Kennedy to consider the introduction of legal chairs and other such details. Ultimately, we believe that it should be for the OHPA to decide how best to run its fitness to practise panels within the framework set by Parliament, taking into account the recommendations of the working group. Rules covering the detail will be laid before Parliament and will be subject to the negative resolution procedure.
Amendments Nos. 89 and 90 would require all health profession regulators using the civil standard of proof to have legal chairs or at least legal assessors in all cases. I remind the House that the majority of these regulators already use the civil standard. I am sure that Opposition Members do not want to push the whole swathe of regulators into the unknown. If the evidence pointed in such a direction, powers under section 60 of the Health Act 1999 could be used after appropriate consultation. As hon. Members are no doubt aware, a section 60 order will be subject to the affirmative resolution procedure. On that basis, I hope that the Opposition will not press their amendments.
This group includes Government amendments as well as those tabled by my hon. Friends and by me. The amendments arose as a result of the evidence-taking sessions. As the Minister pointed out, they help to reinforce the value and benefit of such sessions. I welcome the beginnings of an important concession by the Government to the strength of our arguments on legally qualified chairs. I remind the House that the Committee divided on this matter in order to hold the Government’s feet to the fire during the sitting.
I shall not go over the arguments again at length, as they were covered more than adequately in the Hansard of Committee proceedings from column 372 onwards. However, the provisions on legally qualified chairs arose from recommendation 79 of the fifth report of Lady Justice Smith—then Dame Janet Smith—on the Shipman inquiry. She said:
“In the event that the GMC retains control of the adjudication stage, it should appoint a number of legally qualified chairmen who should, as an experiment or pilot, preside over more complex FTP panel hearings. The results of the pilot scheme should be scrutinised to see whether there are benefits, whether in terms of the improved conduct of hearings, more consistent outcomes, improved reasons and/or fewer appeals.”
All hon. Members felt that there was extraordinarily impressive and persuasive oral evidence relating to effective chairmanship, speed of proceedings, a higher standard of reasoned decision and an ability to deal with the complexities of the civil standard of proof. That evidence can be seen in column 37 of the Official Report of Committee proceedings.
It will not have escaped the notice of the House that one aspect of introducing the civil standard of proof in the hearings is the complexity of its administration as a matter of adjudication and law, not least in ensuring that justice is done and seen to be done. As I shall try to explain, it has variability within it, unlike what we used to call the criminal standard of proof, of being “beyond all reasonable doubt”, or as is more common nowadays, the standard of being “sure”.
I am pleased that the Government have introduced proposals for a list including legally qualified persons. The Minister has outlined that point in speaking to Government amendment No. 23, which was a response, as he knows, to the demands we made in Committee at column 374 of Hansard. Nevertheless, I have to say that our amendments Nos. 82, 83 and 84 are a neater way of delivering what he has sought to achieve in Government amendment No. 23. That amendment is intended to supplant, from the Government’s perspective, our amendments Nos. 82 to 84, so I believe that we should see these as a coupled set of arguments. I am pleased that the Government amendment was designed to draw on the arguments made in Committee, as reflected in the amendments.
A number of concerns remain, however, particularly about the application of the civil standard of proof, the speed of proceedings and the definition of “legally qualified”. On the standard of proof, the Bill moves fitness to practise panels away from the criminal and towards the civil standard of proof. In layman’s terms, it is a move from “beyond reasonable doubt” or being “sure” to a balance of probabilities. We debated that point in Committee, as is shown in column 395, but unresolved issues remain and it is right for us to bring them up again on Report.
There seem to be good reasons for the use of the civil standard and few differences between the parties arose in Committee. Indeed, Opposition Members supported the Government, but we remain concerned about the lack of piloting, particularly with regard to doctors. That problem still needs to be dealt with. I hope those reflecting on the Bill as it goes to the other place will give that issue some further urgent and important consideration.
The concern arises because a statutory application of the civil standard results in a common law interpretation on a sliding scale that is difficult to reflect on the statute book. Consequently, a doctor before a panel faces an ever-rising hurdle in attempting to clear his or her name. The civil standard of proof will not be applied uniformly across the board—a very important point made by Lady Justice Smith in her evidence at column 38. This issue is important not just for the doctor, but for those sitting on the panels. They must have a clear understanding at the outset of what standard of proof on the balance of probabilities actually means on a sliding scale. Until they know the evidence, they cannot be sure of the standard of proof against which the truth must be tested. That is critical in the ultimate case where someone’s livelihood is threatened and their fitness to practise questioned. There is a burden on adjudicators to ensure that their decisions are just and fair, made in a properly conducted way and, above all, not capable of being contested too easily by appeal. People must feel that the system is proper and fair to both parties when these very serious issues come before these panels.
Another reason Lady Justice Smith gave for the use of legally qualified chairs was that it enabled hearings to be dispatched more quickly. We are all interested in securing efficiency and speed in such things, without causing any prejudice to the application of justice. She said:
“Legally qualified people who appear in front of such tribunals are capable of running rings around the tribunal if no one on the panel is legally qualified.”––[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 37.]
The GMC, which has lobbied against the universal application of legally qualified chairs, has failed to answer that point—something to which she also referred. She went on to say that while it is true that the broad quality of judgments currently made is indeed high—I am in no way seeking to criticise the GMC for the conduct of its hearings and how it has trained people—it would be better for all concerned if panels could be conducted no less thoroughly but more efficiently.
It is with the issues of speed, efficiency and the application of the civil standard of proof in mind that we tabled amendment No. 85, which would make all fitness to practise panels subject to a legally qualified chair. Interestingly, to add substance to that point, page 4 of a document supplied by the Government themselves on 7 February in relation to professional regulation shows the cost of a three-person panel with a legally qualified chair for some fitness to practise cases and the cost of a three-person panel with a legal assessor for the remainder. Where legal chairs are used in 10 per cent. of fitness to practise cases, the estimate is £2.565 million. If they are used in 25 per cent. of fitness to practise cases, the estimate is £2.489 million, and it comes down to £2.374 million if they are used in 50 per cent. of such cases. That helpful Department of Health document implies that if we used legal chairs in 100 per cent. of such cases, it would have the same trend in saving money and, as Lady Justice Smith would argue, in the increased dispatch, speed and efficiency of the cases. Therefore, the Department of Health itself has already laid out a good taxpayer value-for-money point on how it would be more efficient to use legally qualified chairs in all cases.
I am disappointed that the Government are unwilling to define “legally qualified” in their amendment No. 30. Amendment No. 75 would help us to have that definition, and links to amendment No. 85, which would ensure that there is a qualified chair for all such cases. The Bill is in many regards a portmanteau Bill, with many of its powers devolved to rules and regulations. More than a quarter of the clauses relate to secondary legislation. It is perverse to leave to regulation what could easily be prescribed on the face of the Bill under the proper scrutiny of the House.
The Bill contains a definition of “legally qualified” in paragraph 6 of schedule 6. Lady Justice Smith noted and commended that definition in oral evidence, at column 39. In Committee, my hon. Friend the Member for Rugby and Kenilworth (Jeremy Wright), who is not in the Chamber but has been assiduous in his attendance of our proceedings, made the excellent point that a legally qualified chairman would need not only legal experience but judicial experience. It is important to reflect on that.
Having taken considerable advice, I had hoped that as Government amendment No. 23 went some way to making a concession on the grounds that we have advanced, I would not have to oppose it. However, I wanted to put amendment No. 85 to the vote, because what it contains is right and many outside this place would like to see it tested. Unfortunately, I am told, on the advice of the Clerks, that I cannot do that, which is much to be regretted. Procedure has overwhelmed what is a fair point, which should be available for testing. However, having put that difficulty on the record, I hope that it will be seen by those in another place who are exercised by such things. Many of them regard themselves as legally qualified and as having judicial experience. They will think that it is important to envisage how these significant proceedings will work, because they could be vital to protect patients and the public.
What we are personally qualified to do is not relevant, because we are trying to frame a Bill that is right for those who do the professional job. As it happens, however, I am a qualified lawyer. I am a solicitor of the Supreme Court of England and Wales. I have not practised for 19 years, but I did practise in the City of London for a number of years. I have no judicial experience, but I had considerable arbitration experience, which is of a judicial nature. What is interesting is that not only has one of the hon. Gentleman’s colleagues sat on one of the GMC panels, but so has one of mine. My colleague is legally qualified; the other is not. That is not to say that either has done the job any worse than the other. On the contrary, they both did it well.
I do not want to enter into a dialogue. What matters is that plenty of people in another place will be very exercised by this issue, given that Lady Justice Smith gave important and compelling evidence in a most reasoned way. When we heard her evidence, hon. Members on both sides of the Committee were at one in thinking that it was impressive and compelling. She advanced the idea that there should be legally qualified chairs for the bodies. That is why it is important that we give the issue an airing.
Procedure does not enable us to vote separately on Government amendment No. 23 and amendment No. 85. Amendment No. 23 is only a partial solution. What it sets out is not mandatory; it simply says that there will be legally qualified persons on a list from which the chairman can be chosen. Amendment No. 85 would have made that mandatory. It would have given earnest to what Lady Justice Smith appeared to be advising in oral evidence, for which all Committee members were present. I therefore recognise that I have to place on the record, with my best efforts, a signal to those who will consider the Bill in another place. I know that this sort of issue has exercised them greatly in the past, and rightly so. I would be surprised if we do not have to deal with it again when the Bill comes back to the House with Lords amendments. I very much hope that it will be given a proper airing in the other place, and I expect them to find a way to achieve what procedurally I have not been allowed to do.
I cannot press amendment No. 85 to a vote, and on the basis of my comments it would be wrong and invidious of me to divide the House on Government amendment No. 23. If anyone sought to put that to a vote, we would abstain because it is better than what we have got, but it is by no means sufficient. I hope that that places on the record our position and that another place will achieve what we have not been able to achieve so far.
Most of what I want to say has been covered by the Minister and the hon. Member for Eddisbury (Mr. O'Brien). We have an interesting example of how the new evidence sessions have been useful. I cannot recall a single submission from the great and good in Second Reading briefings or the like on legally qualified chairs. We raised the issue in what was almost a throw-away question, when I said:
“Would you like to see any other changes to the Bill?”
Lady Justice Smith responded:
“There is one matter, which you might feel is quite small.”––[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 37, Q64.]
It ended up being something that exercised a great deal of time in Committee. I think that that is right, because, as others have pointed out—Lady Justice Smith has been quoted at length—there are good reasons why legal chairs could make a difference. The costs bear that out as well. However, I was also quite taken with the Government’s argument that a legally qualified chair may not be necessary in every case. What I do not think we teased out in enough detail in Committee is where the bar might be set. The document referred to by the hon. Member for Eddisbury gives costings for 20 per cent., 25 per cent. and 50 per cent.—
I am not, as yet, entirely convinced that legal chairs are needed in 100 per cent. of cases. However, I think it a shame that the House’s procedures prevent us from voting on both options, and I am fairly sure that the issue will arise again in another place.
I thank the Minister for listening to all the points that were raised. In Committee he was clearly sympathetic. Amendment No. 23 is unlikely to be put to the vote because there is no opposition to it, but if it had been, I might well have supported it. If the matter returns to us, it would be helpful to be given a little more detail about what might and might not be considered appropriate for a legal chair. I appreciate that to an extent that may be in the hands of the profession and the OHPA, but when we are trying to pass legislation, a lack of clarity about the outcome is not always helpful.
Amendment agreed to.
Amendments made: No. 24, page 47, line 8 , leave out ‘lay members list’ and insert
‘list of persons eligible to serve as lay members provided for by section 96(1)(a) (the “lay members list”)’.
No. 25, page 47, line 9 , leave out ‘professionally qualified members list’ and insert
‘list of persons eligible to serve as professionally qualified members provided for by section 96(1)(b) (the “professionally qualified members list”)’.
No. 26, page 47, line 14, at end insert—
‘(3A) Rules under subsection (3) may in particular make provision requiring the selection in specified circumstances of a chair who is legally qualified for the purposes of section 96(1A)(a), and may provide for pilot schemes under which chairs who are legally qualified for those purposes are, or are not, selected for such proceedings as may be determined in accordance with the rules.’.
No. 27, page 47, leave out lines 16 to 20.—[Mr. Bradshaw.]
Lists of persons eligible for membership of fitness to practise panels
Amendments made: No. 28, page 47, line 24, at end insert—
‘(aa) persons eligible to serve as chairs,’.
No. 29, page 47, line 26, at end insert—
‘(1A) The list of persons eligible to serve as chairs is to consist of—
(a) persons who are legally qualified,
(b) persons who are also included on the list of persons eligible to serve as lay members, and
(c) persons who are also included on the list of persons eligible to serve as professionally qualified members.’.
No. 30, page 47, line 33, at end insert—
‘(3A) Rules made by virtue of subsection (3) must make provision about—
(a) the qualifications which a person must have in order to be “legally qualified” for the purposes of subsection (1A)(a), and
(b) the experience which a person must have and the training which a person must have undertaken in order to be eligible for appointment to the list of persons eligible to serve as chairs by virtue of subsection (1A)(b) or (c).’.—[Mr. Bradshaw.]
Further provisions about listed persons
Amendments made: No. 31, page 47, line 39, after ‘OHPA’, insert ‘—
No. 32, page 47, line 40, at end insert ‘, and
(b) may pay to any person whom it proposes to include on a list such allowances and expenses as it may determine in connection with the provision of training for the person by virtue of subsection (2)(b).’.
No. 33, page 47, line 41, after ‘OHPA’, insert ‘—
No. 34, page 47, line 42, at end insert ‘, and
(b) may provide, or arrange for the provision of, such training for persons whom it proposes to include on a list as it may determine.’.
No. 35, page 48, line 5 , leave out ‘either’ and insert ‘any’. —[Mr. Bradshaw.]
Amendments made: No. 36, page 48, line 21, after ‘make’, insert ‘—
No. 37, page 48, line 22, at end insert ‘, and
(b) provision for a fitness to practise panel not to be advised by a legal assessor if the chair of the panel is legally qualified for the purposes of section 96(1A)(a).’.—[Mr. Bradshaw.]
Fees payable by General Medical Council and General Optical Council
With this it will be convenient to discuss the following: Amendment No. 2, in clause 108, page 53, line 39, at end insert—
‘(2A) In section 25 of the 2002 Act, in subsection (2), after paragraph (d) insert—
(e) to promote the provision of independent advice to members of the public in respect of the reporting of concerns to any of the bodies listed in subsection (3).’.
Government amendments Nos. 38 to 61.
As I am sure the House knows, the General Medical Council is a registered charity. Over time, other health regulators that may also be charities will come under the auspices of the OHPA, and will be required to pay a fee to that body. All registered charities have duties in relation to how they spend their income, and the GMC and other regulators are no exception, but the Bill contains provisions that directly affect the way in which the GMC should spend a significant proportion of its income, while leaving it little if any discretion in respect of how it does so.
Given that the OHPA’s duties will mirror functions that already sit within the charitable body, the funding of a non-departmental public body such as the OHPA—whose purpose is to uphold the standards of a health profession—is clearly unlikely to fall outside the charitable remit. However, it would seem wrong to place a burden on the GMC or another regulator that might have the potential to jeopardise its charitable status without making it clear that that was not Parliament’s intention.
I am not sure how closely the hon. Gentleman has been following the debate. He ought to know that, as has been repeatedly put on record, we have strongly supported a change in the rules. I am a little perplexed about how the question could even have entered his mind, but perhaps he has not been able to follow the Bill’s progress as closely as his question might have merited. We have not voted against the Bill, and we welcome the changes. What I am talking about is charitable status, which I hope is deeply important to the hon. Gentleman. If the GMC is not a charitable body, there will be a series of consequences.
Let me proceed with my argument. It may help to clarify any confusion that may have arisen in the hon. Gentleman’s mind. The Government may argue that we should not bind the hands of the Charity Commission, a body that operates independently of Ministers, but there are clear precedents for such action in other legislation. For example, further and higher education corporations are designated charities under section 41 of the Teaching and Higher Education Act 1998, and common investment funds are classed as charities under section 24 of the Charities Act 1993. Amendment No. 81 is intended to prevent the operation of fees from introducing any ambiguity into the designation of the GMC as a registered charity.
As the Liberal Democrats tabled amendment No. 2, it will be for a Liberal Democrat Member to speak to it. The others are Government amendments. While most of them appear to be tidying-up measures, amendment No. 48 appears to disqualify hon. Members from sitting on OHPA adjudication panels. I do not believe that involvement with the GMC is prohibited by membership of the House of Commons, and I should be grateful if the Minister could explain what changes the Government intend. If the answer is not satisfactory, I dare say that the matter will be pursued in another place, but, as the Minister must be aware, some Members are currently involved in the adjudication processes of the GMC.
We also need to tackle the issue of the costs of the OHPA. I thank the Minister for furnishing us with the report on the costs that we had requested, although I was disappointed that we did not receive it before the Committee stage. I hope that he will be able to provide the independent report by financial advisers engaged by the GMC, which was supposed to be available at the end of January and which is mentioned in column 365 of the record of our Committee proceedings.
The Government report divides the costs into three groups: set-up and transition costs for the GMC, other costs to be paid by the Department, and adjudication and running costs. The set-up costs, the Government finally reveal, will be about £3 million to £4 million over two years, but they are to be “further refined”. The other costs, such as those of High Court referrals or big cases, have not been estimated, and I should be grateful if the Minister could identify the nature of that liability. The adjudication costs are not expected to exceed the current GMC costs of around £11.5 million. The running costs are not identified, which is odd, but the paper does identify a probable increase of between £20 and £30 per registrant per year. That would increase the General Medical Council registration to more than £400 and that of the General Optical Council to almost £200. A full GMC registration on the medical register is to rise to £390 a year with effect from April this year, having been frozen at £290 since 2002, and GOC registration stands at £169 per annum. It also suggests running costs for the OHPA of about £6 million per annum—I hope that the Minister will be able to confirm that figure.
We remain deeply unsatisfied about the independence of the OHPA. We have searched Government amendments for where the Minister might give assurances about the independence of its decision making, but as the organisation is created the Department will needlessly still have its hands all over its finances. That is neither necessary nor desirable. Concerns remain over the civil standard of proof, which we discussed earlier and the Government failed to address. We were also looking for permanent legally qualified chairs, but we have now assented to a different situation.
The Government must recognise that as the Bill progresses a full response is required on professional regulation and the impact that the practice of defensive medicine might have on our NHS, particularly financially—I hope there will be time to provide that when the Bill is considered in another place. I am sure that the Minister recalls that this was one of the areas of greatest contention during oral evidence sessions, and I think all Members were concerned about the BMA presenting the idea that the new regime would create over-defensiveness. I do not wish to be too critical—those giving that evidence must have thought that they were making representations on behalf of their members—but we need to bottom out what has been expressed on behalf of doctors about the impact of what is going on in terms of defensive medicine because we do not want that, and I do not believe it is likely to be a trend or a consequence; I would not be able to support the Bill if I did. Although I do not believe that to be the case, it is important to take such representations seriously and address them, rather than simply dismiss them out of hand. If necessary, we might have to appeal, through the BMA, to make sure that doctors are reassured that they need not be over-concerned about that. I have been getting the impression that the Minister might feel that that is a worthwhile point, which is good.
The Government amendments on professional regulation would give the power through secondary legislation to impose a lay majority on the regulatory bodies. The GMC has been arguing for parity, and that makes sense for the confidence of both the public and the profession. I dare say that that will be pursued in another place.
I have spoken to amendment No. 81 and I have addressed the other issues that arise. If the Minister does not provide a satisfactory response on the charitable status of the GMC, I might need to press the amendment to a Division.
I shall start by speaking to Liberal Democrat amendment No. 2, which would make it a duty of the Council for Healthcare Regulatory Excellence to commission independent advice and information services to assist members of the public who have concerns about the fitness to practise of a health professional. One decision that might have to be made would be whether to report a concern to a regulatory body. If the decision was to go ahead with that, there would be a duty to provide help in reporting the concerns in an effective way, and if the matter were dealt with by the OHPA there would be a duty to support the member of the public through the process.
There is currently no service to inform members of the public of where to report concerns about health professionals or to help them do so. That is a great problem. Let us take the Shipman case as an example. The people who were directly affected by Shipman were not in a position to complain, but his mode of operation might have been slightly different and those who might have had concerns because they felt they were being targeted in some way would have been members of one of the most vulnerable groups in society. Many people who have reached the age of 60 do have the time and ability to deal with such things, but some of them, especially if they are not well and life is a bit of an effort, find it difficult to discover in our complicated society where they should go to get the help they need. There is therefore a feeling that many problems are not brought forward because people do not know how to do that; advice is patchy, and no support is available.
Many stakeholders believe that this need should be met. There would have to be a cap on the system because we would not want there to be an open invitation for everybody to take advice, but provided that certain criteria are met this could provide a useful way of enabling people who would not otherwise bring complaints to bring them early, so that problems are nipped in the bud. This duty would be compatible with the CHRE’s overall duty to serve patients and the public and promote excellence in health professional regulators.
On amendment No. 81, I was somewhat surprised when I discovered that the GMC was a registered charity. I am not sure why a professional regulatory body should have that status, and I am interested to know what charitable works it performs, although that is a side issue. I have listened carefully to the comments of the hon. Member for Eddisbury (Mr. O'Brien), and I could not understand how the creation of fees would definitely have an effect on the charitable status of the regulatory body.
It may be helpful if I clarify that there are precedents elsewhere whereby, when a fee is exchanged of a substantial amount of a body’s income, it is effectively a cost recovery or could even be regarded as a professional commercial transaction, because fees are paid for membership. It has not necessarily been as clear as it might have been that a body in that position can retain charitable status. In the case of other bodies, it has been felt necessary to specify that in the relevant legislation, to ensure that there is no danger to their charitable status. I feel that the GMC deserves to have equal assurance and equal respect paid to it.
I thank the hon. Gentleman for that clarification. I am not entirely sure whether the amendment is necessary, so I shall listen to the Minister’s comments with interest.
The bulk of the amendments seem to be tidying-up amendments to a certain degree, and I have no problems with any of them, so I shall not detain the House any longer.
Amendment No. 81 would provide that neither the making of fees regulations by the Secretary of State nor the payment of a fee to OHPA would affect the charitable status of the regulatory body. I hope to be able to reassure the hon. Member for Eddisbury (Mr. O'Brien). I can go into detail about what justifies the GMC’s charitable status if the hon. Member for Romsey (Sandra Gidley) really wants me to, but perhaps I had better write to her. We are advised that it will not be affected. My officials have been in contact with the Charity Commission, which has indicated that the key issue is a body’s charitable purpose. A requirement in law to make a payment to another body would not of itself cause a body to lose its charitable status, although it could be a relevant factor in assessing its purpose and whether it is for public benefit. I am pleased to confirm that the Charity Commission’s initial view is that
“the proposed changes will not mean that the GMC is no longer in law a charity”.
Amendment No. 2 would insert a new statutory function of the CHRE into section 25(2) of the National Health Service Reform and Health Care Professions Act 2002, through clause 108. The proposed new function is to promote the provision of independent advice to the public on reporting concerns to the regulatory bodies. We fully accept the reasoning behind the amendment tabled by the hon. Member for Romsey, but we do not believe that it is necessary.
Clause 108 already inserts into section 25 of the 2002 Act a new main objective that the CHRE must consider when exercising its functions: how it will promote the health, safety and well-being of patients and other members of the public. That will allow the CHRE to promote and provide independent advice along the lines suggested in amendment No. 2, and to encompass the sentiment behind the amendment. We do not want to be too prescriptive regarding how the CHRE should carry out that objective, because it is important that it work in consultation with patients and the public to determine how best it can achieve it. It has already begun a programme of work that will lead to the implementation of a patient and public strategy aimed at ensuring that it can fulfil the proposed function of becoming an authoritative voice for patients.
In Committee, I confirmed that our reform of the CHRE was intended to ensure that it fits with the new regulatory landscape, including by shifting its role to that of being the independent voice of the patient. I believe that our proposals meet that objective. On that basis, I hope that the hon. Lady will not press the amendment.
I recognise what my hon. Friend the Minister says, but I also recognise the concern of the hon. Member for Romsey (Sandra Gidley). Although we have feedback about the group of patients involved and the provision for them, what can my hon. Friend say about the individual patient who, although not alarmed enough to make a formal complaint, feels alarmed enough to feed their concerns into the system? Will he ensure that there is a mechanism to allow the individual patient to do that, and that if enough individual patients feed in their concerns about a health professional, inquiries can be made into that professional’s conduct?
There are already mechanisms in place, as I am sure my hon. Friend would acknowledge, and it is important that they are sustained. I would encourage all patients and members of the public who have complaints to make to inform themselves of the formal complaints procedure and, if necessary, to escalate that. I also think that more could be done by health care providers to advertise and publicise the existence of complaints procedures. All too often, people are still not aware of their right to complain, where to go or how to escalate their complaints. The new Care Quality Commission and the other independent bodies that we are establishing in the Bill will need to address that as a priority. I hope that that reassures my hon. Friend.
Government amendments Nos. 38 to 61 are, as has been acknowledged, technical and consequential on the changes that we are making to the CHRE and to the OHPA. I am grateful to the hon. Member for Eddisbury for his question on amendment No. 48, because clarification may be necessary. The intention behind the amendment is not to prevent Members of this House from serving on the GMC, and nor is that a result of it, but it would prevent them from serving on the OHPA. I undertake to clarify the issue and respond to the hon. Gentleman. If necessary, it will be addressed in the other place.
I have listened carefully to the Minister and if there is any residual lack of clarity in the way that I raised the issue of Government amendment No. 48, I suspect that it would be helpful to those who will consider this in the other place to be aware of the intention behind it. If the drafting needs perfecting, I am sure that the other place will have an opportunity to do so. I was baffled by the point raised by the hon. Member for Livingston (Mr. Devine) in an intervention.
Amendment No. 81 is the lead amendment and amendment No. 2, tabled by the Liberal Democrats, rides with it, so I think I am right in saying that it will not cause a problem if I seek to withdraw it. The Minister went out of his way to try to give me the assurance that I was seeking in relation to the continuing charitable status of the GMC. I heard him say in terms and on the record that that was what was expected and, above all, was the advice that he had been given. I had suggested that we might need to divide the House, but in the light of that assurance I am happy not to do so. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Powers and duties of Council
Amendments made: No. 38, page 55, line 12, leave out ‘taking action under section 29’ and insert
‘where section 29 applies, taking action under that section’.
No. 39, page 55, line 16 , after ‘recommendations’, insert ‘to the regulatory body’.—[Mr. Watts.]
Amendments of Mental Health Act 1983
Amendment made: No. 68, page 118, line 13, at end insert—
‘( ) In subsection (6), for “section 121(7) and (8) above” substitute “section 134A(1) to (4)”.’.—[Mr. Watts.]
Further amendments relating to Part 1
Amendments made: No. 69, page 136, line 13, at end insert—
‘Audit Commission Act 1998 (c. 18)
63A (1) Section 4 of the Audit Commission Act 1998 (code of audit practice) is amended as follows.
(2) In subsection (7)—
(a) in paragraph (a) omit “the Commission for Healthcare Audit and Inspection and”,
(b) in paragraph (b) omit “the Commission for Social Care Inspection and”, and
(c) in paragraph (c) before “and such bodies” insert “, the Care Quality Commission”.
(3) In subsection (8), for “the Commission for Healthcare Audit and Inspection” substitute “the Care Quality Commission”.
63B (1) Section 7 of the Audit Commission Act 1998 (fees) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a) for “the Commission for Healthcare Audit and Inspection and such other” substitute “such”, and
(b) in paragraph (c) before “such bodies” insert “the Care Quality Commission and”.
(3) In subsection (9) for paragraph (aa) substitute—
“(aa) the Care Quality Commission,”.
63C (1) In section 33 of the Audit Commission Act 1998 (studies for improving economy etc in services), subsection (6) is amended as follows.
(2) In paragraph (c), for “the Commission for Healthcare Audit and Inspection” substitute “the Care Quality Commission”.
(3) For paragraph (d) substitute—
“(d) in the case of a study which has a connection with adult social services (within the meaning of Part 1 of the Health and Social Care Act 2008), also consult the Care Quality Commission; and”.
(4) In paragraph (e) for “that Part of that Act” substitute “Part 2 of the Health and Social Care (Community Health and Standards) Act 2003”.
63D (1) In section 34 of the Audit Commission Act 1998 (reports on impact of statutory provisions), subsection (6) is amended as follows.
(2) For paragraph (ba) substitute—
“(ba) in the case of a study which has a connection with adult social services (within the meaning of Part 1 of the Health and Social Care Act 2008), the Care Quality Commission;”.
(3) In paragraph (bb) for “that Part of that Act” substitute “Part 2 of the Health and Social Care (Community Health and Standards) Act 2003”.
63E (1) In section 49 of the Audit Commission Act 1998 (disclosure), subsection (1) is amended as follows.
(2) Omit paragraph (ba).
(3) In paragraph (bb), for “that Part of that Act” substitute “Part 2 of the Health and Social Care (Community Health and Standards) Act 2003”.
(4) In paragraph (c) omit the words from “or for the purposes of the functions of the Commission” to the end.
(5) After paragraph (ca) insert—
“(cb) for the purposes of the functions of the Care Quality Commission under Part 1 of the Health and Social Care Act 2008;”.
63F In Schedule 2A to the Audit Commission Act 1998 (interaction with other authorities), in paragraph 1(1)—
(a) at the end of paragraph (f) insert the word “or”,
(b) omit paragraph (g) (together with the word “or” at the end of it), and
(c) for paragraph (h) substitute—
“(h) the Care Quality Commission.”’.
No. 70, page 137, line 28, at end insert—
‘Children Act 2004 (c. 31)
In section 20 of the Children Act 2004 (joint area reviews), in subsection (4), for paragraph (d) substitute—
“(d) the Care Quality Commission;”.’.
No. 71, page 138, line 5, at end insert—
‘National Health Service Act 2006 (c. 41)
71A In section 9 of the National Health Service Act 2006 (NHS contracts), in subsection (4), for paragraph (k) substitute—
“(k) the Care Quality Commission,”.
71B In section 35 of the National Health Service Act 2006 (authorisation of NHS foundation trusts), in subsection (3)(a), for “the Commission for Healthcare Audit and Inspection” substitute “the Care Quality Commission”.
71C In section 56 of the National Health Service Act 2006 (mergers), in subsection (6)(a), for “the Commission for Healthcare Audit and Inspection” substitute “the Care Quality Commission”.
72D In section 71 of the National Health Service Act 2006 (schemes for meeting losses and liabilities etc of certain health service bodies), in subsection (2)(f), for “the Commission for Healthcare Audit and Inspection” substitute “the Care Quality Commission”.
71E In Schedule 10 to the National Health Service Act 2006 (audit of accounts of NHS foundation trusts), in paragraph 8(1)(e), for the words from “the Commission” to the end substitute “the Care Quality Commission”.
National Health Service (Wales) Act 2006 (c. 42)
71F In section 7 of the National Health Service (Wales) Act 2006 (NHS contracts), in subsection (4), for paragraph (k) substitute—
“(k) the Care Quality Commission,”.
71G In section 30 of the National Health Service (Wales) Act 2006 (schemes for meeting losses and liabilities etc of certain health service bodies), in subsection (2)—
(a) at the end of paragraph (c) insert “and”, and
(b) omit paragraph (d) (together with the word “and” at the end of it).’.
No. 72, page 138, line 12, at end insert—
‘Safeguarding Vulnerable Groups Act 2006 (c. 47)
73A In section 45 of the Safeguarding Vulnerable Groups Act 2006 (supervisory authorities: duty to refer), in subsection (7)—
(a) for paragraph (c) substitute—
“(c) the Care Quality Commission in respect of its functions under Part 1 of the Health and Social Care Act 2008;”,
(b) omit paragraph (d), and
(c) in paragraph (e), for “that Act” substitute “the Health and Social Care (Community Health and Standards) Act 2003”.
73B (1) Paragraph 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 (regulated activity relating to children) is amended as follows.
(2) In sub-paragraph (10)—
(a) for paragraph (e) substitute—
“(e) the Care Quality Commission;”, and
(b) omit paragraph (f).
(3) In sub-paragraph (11), omit paragraph (a).
(4) After sub-paragraph (13) insert—
“(13A) The exercise of a function of the Care Quality Commission so far as the function relates to the inspection of anything which—
(a) is listed in section 56(1) of the Health and Social Care Act 2008, and
(b) involves the provision of any form of treatment or therapy for children,
is a regulated activity relating to children.”
(5) In sub-paragraph (14), for “or (11)” substitute “, (11) or (13A)”.’.
73C (1) Paragraph 7 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 (regulated activity relating to vulnerable adults) is amended as follows.
(2) In sub-paragraph (6), omit paragraphs (a) and (b).
(3) After sub-paragraph (8) insert—
“(8A) The exercise of a function of the Care Quality Commission so far as the function relates to the inspection of anything which—
(a) is listed in section 56(1) of the Health and Social Care Act 2008, and
(b) involves the provision of social services, care, treatment or therapy for vulnerable adults,
is a regulated activity relating to vulnerable adults.”’.—[Mr. Watts.]
The Office of the Health Professions Adjudicator
Amendments made: No. 40, page 142, line 24, at end insert—
‘Meetings of the OHPA in Northern Ireland
(4) Sections 23 to 27 of the Local Government Act (Northern Ireland) 1972 (c. 9) (which provide for public access to meetings of a district council, the publication of information concerning such meetings etc.) apply in relation to meetings of the OHPA in Northern Ireland as they apply in relation to meetings of a district council but subject to the following modifications.
(5) The modifications are that—
(a) any reference to a district council is to be read as a reference to the OHPA, and
(b) any reference to councillors or members of the council is to be read as a reference to members of the OHPA.’. —[Mr. Watts.]
Adjudication functions under Medical Act 1983 and Opticians Act 1989
Amendments made: No. 41, page 148, line 5, at end insert—
‘(5A) Omit subsection (8).’ .—[Mr. Watts.]
Further amendments relating to part 2
Amendments made: No. 42, page 167, line 33, after first ‘in’, insert ‘Part 2 of’.
No. 43, page 167, line 33, after ‘Schedule’, insert ‘—
No. 44, page 167, line 35, at end insert ‘, and
(b) at the appropriate place insert—
“The Office of the Health Professions Adjudicator.”’.
No. 45, page 167, line 38, leave out from beginning to ‘for’ and insert ‘—
(a) in paragraph 1 (bodies to which in England and Wales Act applies),’.
No. 46, page 167, line 41, after ‘Excellence’, insert ‘;
(bcb) the Office of the Health Professions Adjudicator;”, and
(b) in paragraph 2 (bodies to which in Scotland Act applies), before paragraph (d) insert—
“(ca) the Council for Healthcare Regulatory Excellence;
(cb) the Office of the Health Professions Adjudicator;”.’.
No. 47, page 168, line 3, after ‘disqualified)’, insert ‘—
No. 48, page 168, line 5, at end insert ‘, and
(b) at the appropriate place insert—
“The Office of the Health Professions Adjudicator.”’.
No. 49, page 168, line 8, after ‘disqualified)’, insert ‘—
No. 50, page 168, line 10, at end insert ‘, and
(b) at the appropriate place insert—
“The Office of the Health Professions Adjudicator.”’.
No. 51, page 168, line 12, leave out ‘Part 3 of’.
No. 52, page 168, line 13, after ‘duty)’, insert ‘—
(a) in Part 2, at the appropriate place under the heading “Health” insert—
“The Office of the Health Professions Adjudicator.”, and
(b) in Part 3,’.
No. 53, page 168, line 16, at end insert—
‘ In section 27 of the Dentists Act 1984 (allegations against registered dentists), in subsection (2)(g), after “social care profession” insert “, or by the Office of the Health Professions Adjudicator,”.’.
No. 54, page 168, line 20, at end insert—
‘ In section 36N of the Dentists Act 1984 (allegations against registered dental care professionals), in subsection (2)(g), after “social care profession” insert “, or by the Office of the Health Professions Adjudicator,”.’.
No. 55, page 169, line 16, after ‘authorities)’, insert ‘—
No. 56, page 169, line 18, at end insert ‘, and
(b) at the appropriate place insert—
“The Office of the Health Professions Adjudicator.”’.
No. 57, page 169, line 18, at end insert—
‘Nursing and Midwifery Order 2001 (S.I. 2002/253)
In article 22 of the Nursing and Midwifery Order 2001 (allegations), in paragraph (1)(a)(v), after “social care profession” insert “, or by the Office of the Health Professions Adjudicator,”.’.
No. 58, page 169, line 18, at end insert—
‘Health Professions Order 2001 (S.I. 2002/254)
In article 22 of the Health Professions Order 2001 (allegations), in paragraph (1)(a)(v), after “social care profession” insert “, or by the Office of the Health Professions Adjudicator,”.’.
No. 59, page 170, line 34, at end insert—
‘Pharmacists and Pharmacy Technicians Order 2007 (S.I. 2007/289)
In article 48 of the Pharmacists and Pharmacy Technicians Order 2007 (impairment of fitness to practise), in paragraph (1)(k), after “social care profession” insert “, or by the Office of the Health Professions Adjudicator,”.’ .—[Mr. Watts.]
Repeals and revocations
Amendments made: No. 73, page 188, line 39, at end insert—
‘Audit Commission Act 1998 (c. 18) In section 4(7)— (a) in paragraph (a), the words “the Commission for Healthcare Audit and Inspection and”, and (b) in paragraph (b), the words “the Commission for Social Care Inspection and”. In section 49(1)— (a) paragraph (ba), and (b) in paragraph (c), the words from “or for the purposes of the functions of the Commission” to the end. In Schedule 2A, paragraph 1(1)(g) (together with the word “or” at the end of it).’.
‘Audit Commission Act 1998 (c. 18)
In section 4(7)—
(a) in paragraph (a), the words “the Commission for Healthcare Audit and Inspection and”, and
(b) in paragraph (b), the words “the Commission for Social Care Inspection and”.
In section 49(1)—
(a) paragraph (ba), and
(b) in paragraph (c), the words from “or for the purposes of the functions of the Commission” to the end.
In Schedule 2A, paragraph 1(1)(g) (together with the word “or” at the end of it).’.
No. 74, page 189, line 44, at end insert—
‘National Health Service (Wales) Act 2006 In section 30(2), paragraph (d) (together with the word “and” at the end of that paragraph). Safeguarding Vulnerable Groups Act 2006 (c. 47) Section 45(7)(d). In Schedule 4— (a) paragraph 1(10)(f), (b) paragraph 1(11)(a), and (c) paragraph 7(6)(a) and (b).’.
‘National Health Service (Wales) Act 2006
In section 30(2), paragraph (d) (together with the word “and” at the end of that paragraph).
Safeguarding Vulnerable Groups Act 2006 (c. 47)
In Schedule 4—
(a) paragraph 1(10)(f),
(b) paragraph 1(11)(a), and
(c) paragraph 7(6)(a) and (b).’.
No. 60, page 190, line 2, column 2, leave out ‘(7),’ and insert ‘—
(a) in subsection (7),’.
(a) in subsection (7),’.
No. 61, page 190, line 4, column 2, at end insert ‘, and
(b) subsection (8).’.—[Mr. Watts.]
(b) subsection (8).’.—[Mr. Watts.]
Order for Third Reading read.
I beg to move, That the Bill be now read the Third time.
I would like to begin by thanking hon. Members for their contributions in scrutinising and improving this Bill both in Committee and on the Floor of the House today. I think that the Bill benefited from the evidence-giving process—a young but positive reform of the procedures of this House.
We are not here discussing one of the more controversial or hotly politically contested Bills. In fact, our deliberations have shown a broad consensus of support for the main provisions of the Bill—the integration of the way we regulate health, including mental health and social care, and the modernisation of the way we regulate the medical professions. Central to this Bill is the aim of assuring safety and quality of care for all patients and service users.
The establishment of a new independent, integrated regulator with enhanced powers to succeed the three existing bodies—the new Care Quality Commission—is both timely and right. Patients and service users expect a comprehensive and seamless system of regulation that focuses on the quality and safety of services, rather than their setting.
The Care Quality Commission will bring several improvements. First, it will bring a joined-up system of regulation for health and adult social care, and I emphasise the importance that we expect the new regulator to place on both areas. That joined-up approach has been welcomed by both sides of the House. Secondly, it will extend regulation to the provision of NHS services for the first time ever. Thirdly, the set of new enforcement and sanction powers, which were again broadly welcomed from both sides of the House, will enable the new commission to deal with unsafe practices, such as poor standards of cleanliness and hygiene. Finally, the commission will allow a flexible and proportionate approach to regulation. The Mental Health Act Commission’s existing functions will be set, with some enhancement of the core of the new regulator’s work. All hon. Members who have spoken have stressed the importance of the regulator’s freedom to carry out its functions in the way that it sees fit, through arrangements that encourage its independence.
During our discussions on the Care Quality Commission we listened to the views expressed by Members on both sides of the House and, as we discussed earlier, we made a number of changes. We have clarified that the Care Quality Commission must have regard to those who represent the views of the public. We also listened to the points raised by the hon. Member for Romsey (Sandra Gidley), among others, about the need for the commission to publish its reports. That has always been the Government’s intention, but we are happy to have put that beyond doubt by clarifying it further on the face of the Bill.
As I mentioned earlier, we also intend to address the issue of the application of the Human Rights Act 1998 to health and social care when the Bill reaches the other place. On the regulation of health and social care professions, we have also listened carefully to the representations made, not least to those made by Lady Justice Smith, whose original reports on the Shipman murders helped to inform many of the changes that the Bill will bring about. We have tabled and agreed an amendment just now on the issue of legally qualified chairs for hearings of the new independent adjudicator.
Of course, we fully scrutinised the parts of the Bill that we have not discussed today in Committee, including the health protection elements and the health in pregnancy grant. I am sure that those issues will be scrutinised carefully in another place.
By reforming health and social care regulation, and by introducing tough new sanctions as well as reforming professional regulation, the Bill puts safety and quality at the heart of the health and social care system. I commend it to the House.
This portmanteau Bill is incredibly wide ranging in content and it leaves vast amounts to secondary legislation—both things cause concern to the House in terms of proper parliamentary scrutiny. We have debated only a fraction of the outstanding issues this afternoon, and no doubt further clarification will be sought on a number of points in another place. However, as the Minister rightly observed, the broad thrust of the Bill is right, even if it is not necessarily timely. That makes getting the detail correct even more important.
We have sought many improvements, and we will no doubt seek more as the Bill goes on its way. We were grateful for the 12 sittings in Committee, which included some long sittings in order to bring proceedings to a close. We were able to time that almost to the minute so that both sides felt that the Committee had offered adequate consideration. That was the first time that I have been involved in a Committee of which that could be said.
It was disappointing that the Government did not accept our full witness list for oral evidence, but both sides of the House will agree that that was a useful procedure for the Committee. I dare say that the model will be looked at further—it is yet to be perfected. It is important that the witness list is not just a list of the Government’s bidding—it was not in our case.
I pay tribute to my colleagues in the Committee, and not only to those on the Front Bench. My hon. Friend the Member for Guildford (Anne Milton) guided us through many parts of the Bill during the Committee. Those on the Benches behind me, including my hon. Friend the Member for Tiverton and Honiton (Angela Browning)—[Hon. Members: “Where are they?”] My hon. Friends might not have expected Third Reading to begin at this hour and are not yet in their places, but they have certainly been in evidence for a great deal of the debate and have added a great deal of thought and sensitivity to our deliberations.
It was important to have the presence of my hon. Friend the Member for Preseli Pembrokeshire (Mr. Crabb) in Committee. Despite the Bill’s significant ramifications for the devolved Administrations, he was the only MP in the Committee whose seat is in a devolved Administration. I also pay tribute to the way in which the Committee was chaired and to all the Clerks.
We have won two important Government concessions. We are grateful for the fact that the Minister has if not bowed, then at least nodded to the force of our arguments on, first, the inclusion of a strong patient voice in the CQC. Despite our best efforts, the Government will not include LINks—local involvement networks—in the Bill. No doubt such efforts will continue in another place, and we urge the Government to reconsider. We are also glad that there is now scope for legally qualified chairs and that they will be piloted. However, we remain concerned, particularly given the application of the civil standard of proof, that their role should be universal. Again, I am sure that that debate will be continued in another place.
We have not been able to change the Government’s mind on a number of issues. Obviously those issues will be pursued, particularly those that I raised earlier on Report in relation to HealthWatch. A clear function is required for the CQC, particularly given the concerns about its proposed governance structure. That is not merely a cosmetic legislative issue. The House has an opportunity—indeed, I think that it has an obligation—to send a very clear message to the new commission about what the House expects it to achieve, particularly given, as was agreed, the achievements of the bodies that it will succeed and especially as they were just getting into their stride in a way that was adding value.
Independence and the complaints process remain concerns, as do the reviews and the general ability to give opinions on the basis of the evidence that has been gained and on the basis that visits must be properly maintained, particularly in relation to those who are detained under the mental health Acts.
We have had useful debates on the extent to which human rights and a rights-based approach should be at the core of health and social care in particular. Again, such debates will continue, as will the discussion of malnutrition and the extent of professional regulation, which we have only just discussed.
Public health measures have not featured in today’s discussions, although they have been scrutinised with care and determination by my hon. Friend the Member for Guildford. That needs to be placed on record. Although we broadly welcome such measures towards appropriate legislation to deal with modern-day contingencies, we and others, including the organisation Liberty, remain concerned about the length and reporting of detention under such powers. We hope that the Government will introduce in another place the relevant draft regulations and examples of instances where such legislation might be necessary and that there will be an opportunity to discuss the amendments that we were unable to touch on today. The Government may well want to reflect on those issues, and we might need to consider them again if they come back as Lords amendments, even Government Lords amendments.
The health in pregnancy grant is another area that we have not touched on today. It is therefore appropriate to use Third Reading to highlight the grant, which was discussed at length in Committee. It is an important part of the Bill. Indeed, the Government have made much of what they are seeking to do with the health in pregnancy grant. Unfortunately, although we used an extensive series of arguments, backed by evidence, we never managed to get the Government to accept that there was a better way to approach the benefits that are sought with the grant. Ours is a different way from that proposed by the Government. I encourage hon. Members to read column 455 of the report of the proceedings in Committee. Quite rightly, it would be inappropriate to repeat those arguments now, but the Government need to put more thought into the grant, because the evidence base does not support what the Prime Minister and the Government are pursuing.
Most telling was the Minister’s admission that the nutritional benefits of a cash payment are better in early pregnancy—we entirely agree with that, of course—although the Prime Minister, then the Chancellor, announced at the outset that support was needed in the last months of pregnancy, on the basis that nutrition is most important then. Not only was the Prime Minister wrong, but answers to parliamentary questions suggest that the Minister was initially wrong as well. The change made during the proceedings in Committee was a fair reflection of the evidence. All of us who have looked at the issue carefully—particularly women, who are the ones most affected by such issues—recognise that, when focused on the health of the to-be-born child, the most important time for nutrition to be right is both pre-conception and in the early weeks and months of pregnancy, more than in the last weeks, as the Prime Minister suggested.
The Bill includes a huge number of miscellaneous provisions and refers to much secondary legislation. However, it has received worthwhile scrutiny, and Parliament has done the job that it must do by seeking to improve the Bill and to elucidate what lies behind it so that the right pointers are given on how further scrutiny can take place with the wisdom that those in another place can bring to bear. I hope that many of our debates will flag up the areas on which those preparing for such scrutiny will need to focus their attention. I also hope that the arguments that we have tried to make will help their deliberations.
I thank those who served on the Public Bill Committee, especially my Conservative colleagues and my hon. Friend the Member for Guildford. Although this is not very usual, I pay tribute to those in our research offices who do a lot of work in the background and are often unsung. It is important that we in opposition are supported, given that we must contend with the fact that the Minister is rightly supported by a full Department. I thus pay tribute to the researcher who has helped my hon. Friend and to Sam Barker, who has been a tremendous help to me during the passage of the Bill.
I apologise for not being in the Chamber for about a minute at the start of the debate. We moved on to Third Reading rather more speedily than most people had expected.
Public trust is central to rebuilding public confidence in our system of professional health regulation. However, the way in which the Department of Health has gone about addressing that challenge in the past two years has sometimes had the opposite effect. My contribution on Second Reading and the amendments tabled to clauses 105, 106 and 108 were designed to support the capacity of the Council for Healthcare Regulatory Excellence’s to be, in the words of the White Paper, a truly
“authoritative independent voice for patients on the regulation of professionals, providing expert advice on policy”.
To date, the Government have neglected an important opportunity to renew democratic accountability, perhaps in their desperation to retain central control.
At the citizens councils meeting that I organised in Committee Room 17 on 8 January 2008, underlying a great many issues raised by informed patients and public members, on which reassurance is sought, were five themes that are particularly relevant to the aspirations set out in the original White Paper. I wrote to the Minister about these matters on 6 February and I will no doubt hear from him.
First, astonishingly, the CHRE is yet to agree a patient and public involvement strategy. How will the patient and public arrangements that it puts in place be sufficiently independent and at arm’s length from the Government, regulators and the CHRE itself to provide an assurance that the real concerns of informed patients will be addressed?
Secondly, will the process be sufficiently well resourced to cut through often complex technical jargon so that participants are informed and have a capacity to develop a patient-centred position? Thirdly, how will the CHRE’s PPI arrangements enhance existing public and patient engagement strategies in Scotland, England, Wales and Northern Ireland with a commitment that they will actively facilitate communication among representatives from each country, respect the differences and similarities between each country, and be tailored to meet their specific needs?
Fourthly, we know that the number of the oldest and most vulnerable people requiring care will inevitably increase substantially. What assurances have the Government sought and received from the CHRE that it will be able to ensure that such vulnerable groups are identified and that specific measures are put in place to address their needs?
Fifthly, what further systems of parliamentary accountability will the CHRE and the regulators be subject to if the Bill is passed in its current form? If there is a Division on Third Reading, I shall vote for the Bill. I voted against amendment No. 131, to which I put my name, because I accepted the Government’s reassurances. However, if we are to have a Standing Committee, why is it to be of both Houses of Parliament? What is meant by “oversee”? Does the Minister agree that there is a need for innovative techniques to ensure that the public and patient voice is heard in the process?
Sixthly, is the Minister aware of the implications of the CHRE not putting in place an effective PPI strategy—including independent arrangements and practical support to ensure that a strong patient voice is heard—that will command public confidence and the support of the devolved Administrations in Scotland, Wales and Northern Ireland? The proposed CHRE membership is far too small for the council effectively to reflect the diversity and breadth of views in a sector employing 2 million people and stretching across four countries. In the Bill, officials propose an inappropriate NHS trust-type model, which will have insufficient members to ensure a clear distinction between remuneration and audit committee functions. That is why it is disappointing that the Minister did not respond positively to the amendments to clause 106 tabled in Committee by my hon. Friend the Member for Luton, North (Kelvin Hopkins).
Will the two CHRE executives allowed to be non-executive council members of the public body be a truly
“authoritative independent voice for patients on the regulation of professionals, providing expert advice on policy”,
when all CHRE executives already speak at council meetings? Why has the White Paper implementation website been such a calamity, preventing anyone outside a magic, private policy circle from contributing to debates preparing us for discussions such as this one, despite the promise of inclusivity given at the national White Paper implementation advisory conference on 5 June last year?
The lack of urgency means that work streams have made very little progress, giving the impression that they are window dressing while real decisions are being taken elsewhere. How can Parliament debate health regulatory corporate governance issues properly when the internal report sent to Ministers in November last year is unavailable for this debate? If the report proposed a Standing Committee of both Houses of Parliament, why are we being denied the opportunity properly to scrutinise that recommendation?
Does the Minister agree that it is no longer good enough to continue to define “lay” as “not on our register”? If so, what changes are required in the criteria to be used in appointing new lay and public members to the regulatory bodies and the CHRE, and when will Parliament and the wider public be able to comment on such criteria before the Appointments Commission adopts them? Why are lay and public members expected to “reflect” a wider perspective across the four countries, rather than representing the interests of patients and the public?
It is a well-intended Bill, no doubt, and it will tackle some of the concerns that were well debated in Committee—I attended some sittings, as well as Second Reading and tonight’s debate—with a degree of competence and professionalism, but I shall back the Bill and go through the Lobby, if there is a Division on Third Reading, without significant enthusiasm. I believe that in the Labour Government’s fourth term, in two and a half or three years’ time, another Minister will be back to tackle the matter yet again with community health councils, mark 4. I do not think that the Bill is the way ahead. An opportunity has been missed. Although the Minister has explained the Government’s rationale very well to the House and the Committee, I find it unconvincing.
I thank all those involved with the Bill, including my hon. Friend the Member for Leeds, North-West (Greg Mulholland), who led debate on various aspects of the Bill in Committee. I also thank Conservative Members and the Minister for what have been on the whole—there were a couple of notable exceptions—relatively good-natured proceedings. A genuine attempt has been made to get to the bottom of some of the issues, and I thank the Minister for taking on board some of our concerns. I would also like to put on record my thanks to the Committee Clerks, who were unfailingly helpful and approachable. My only concern is that the selection of amendments on Report left a little bit to be desired. Some of us would have liked to discuss certain aspects of the Bill in greater depth, such as the health in pregnancy grant, but that was not to be; that pleasure has been reserved for the other place.
Although the bulk of the Bill is involved with the setting up of the Care Quality Commission and deals with health care regulation, it is also worth mentioning in passing the bits that were also important but have not attracted as much attention. I am thinking of health care-acquired infections and the public health measures as well as the health in pregnancy grant, which I have mentioned. The Bill also includes provisions on the measurement of childhood growth and the way in which the global sum is allocated to PCTs for pharmaceutical services.
Although the evidence sittings were useful, the Committee stage was somewhat frustrating because not a single Opposition amendment was accepted. However, I have to be fair—when the Minister said that he would reflect on an issue, he sometimes came back with Government amendments. They did not always meet all our concerns, but they were a welcome step in the right direction. Those amendments dealt with reports to the commission, and we have seen movement on legally qualified chairs. We have been promised some movement on the issue of human rights in care homes, which concerned hon. Member on both sides of the Committee.
I should like to conclude by talking generally about the Care Quality Commission. The Liberal Democrats supported the principle of the commission three years ago. As the Minister said earlier, we were asking the Government, “Why do you not do this now?” Both the Healthcare Commission and the Commission for Social Care Inspection are starting to perform well. Although I support the principle of joined-up administration and regulation, there are genuine concerns about how the transition should be handled. In the changeover, we should not lose the efficiency and effectiveness of the two organisations.
We already know that the transition costs are likely to be £140 million. What concerns me more is the massive disruption to the two organisations and the staff involved. At this point, it is pertinent to reflect on Ian Kennedy’s statement for the Public Bill Committee:
“What we will see will be a period of flux: senior staff will need to be recruited and then appoint others; managers will be organising ‘away-days’ and locked in meetings over organisational design and conditions of employment, instead of meeting the accelerating demands and expectations of patients. Morale in existing organisations will be increasingly hard to sustain. Good members of staff are already leaving, taking with them the knowledge that it has taken three years to develop.”
The issue is a concern to us all. The memory of the organisation of PCTs is still fresh: there was a period of stasis in many areas, while people, rightly, fretted about their jobs and reorganised. That put a halt to some parts of what the Government were trying to achieve.
We must not make the same mistake with this reorganisation. Much has yet to be decided by secondary legislation, so there is still great uncertainty. All the people who work in the field and are likely to work for the new commission need as much certainty as possible as early in the process as possible. To deny that certainty would have a knock-on effect on patients and the public.
It is probably worth reminding the House of Ian Kennedy’s concluding remarks:
“the reasons for the Bill are unclear…the costs are high…the distraction is very considerable…the risk of harm to patients is significant. We believe that the Committee should seek to be satisfied that each of these matters has been properly taken account of and that the concerns expressed here are unwarranted.”
While the reasons for the Bill are fairly clear, as regards costs, distraction and potential harm to patients, I am not sure that I can put my hand on my heart and say that we have done full justice to those concerns in Committee. There will be continued scrutiny in the other place, and we may yet see aspects of the Bill come back. I give a cautious welcome to the Bill but seek reassurances that some of these concerns will be addressed.
Along with other Members who are here, I served on the Public Bill Committee, and I want to put before the House one or two comments about my experience of listening to evidence at that stage, which is a relatively new procedure. It was useful in informing our proceedings, not least when we saw the Minister cross-examining people who came to give evidence and then giving evidence himself. That was a useful exercise for him to go through in the knowledge that he would be on both ends of it.
I want to pick up four points, three of which deal with the evidence that we heard. I commend the Minister for the successful way in which he dealt with part 1, which establishes the Care Quality Commission. That is one of the reasons why I wish the Bill well from now on as it leaves this place, in contradistinction to the hon. Member for Romsey (Sandra Gidley). The Liberal Democrats welcome the change in principle and then go on to quibble about the timing of the merger and how it is going to take place, and say that the staff who are being reorganised want certainty.
I am slightly bemused by the hon. Gentleman’s comments about having a boy to do my work for me, but I will not press that point. I think that he is being a little unfair. He was not here for the whole Report stage and has just come in for Third Reading, and he is not doing his own Government a service if he dismisses some of the legitimate concerns that have been raised. I am merely reflecting the concerns of people who know far more about this than he or I ever will.
Three commissions are to be merged—the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission. That is a major step forward. It reduces what people in other places have called the quangocracy. It pools expertise and creates the certainty that has been mentioned. It creates what will grow into a one-stop shop, which will be a major step forward—a place to which the public will know that they can go if they have problems with social services, the NHS or mental health services. It is also consistent with the Government’s rightly made efforts to bring the NHS and social care closer together; it will pool such expertise.
Let me come to the reform of the General Medical Council in part 2. In Committee, one piece of evidence informed that process, but unfortunately it did so in a negative way. Evidence was submitted by the British Medical Association, which tried to persuade the Committee that it would not be right to change the standard of proof in disciplinary proceedings for doctors from the high standard of “beyond reasonable doubt” to the civil standard. The evidence that we heard from doctors frankly bordered on the self-interested. It was not helpful to the Committee, and closer examination showed that it made the case for the change.
A positive, informative and impressive piece of evidence came from Dame Janet Smith, who spoke about the need for legally qualified chairs to help in the restoration of public confidence in the procedure for making complaints about doctors. She made a powerful case. I am pleased that my hon. Friend the Minister recognised that there was a case to be made, as we all did in Committee. I was saddened slightly by a recent article in one of the national newspapers from the GMC that seemed to be still arguing against the reform process. That is a bit of a hangover from the GMC’s previous position. It has recognised that reform is necessary, but it is slightly unhelpful that it is still clinging on to former glories as that reform moves on.
As the hon. Member for Eddisbury (Mr. O’Brien) said, the health in pregnancy grant was not mentioned on Report. I welcome that grant, and from listening to the evidence, it seemed that one could make a case for giving the grant to help a prospective mother at any stage of pregnancy. The Minister gave evidence, which I found credible and persuasive, that that stage should be located at the point set out in the Bill. Prospective mothers will know that they will benefit from the health in pregnancy grant at the 26-week stage, and by accessing the grant, they can access help and information about diet and other factors. That is a good thing and it will help less prepared mothers to look after their children. Once the grant becomes well known, mothers will know that they can get money at that time, and take it into account for their budget during the entire pregnancy. That deals with the point—and the criticism—that it could be done at some other time. In some ways, it does not matter when the money arrives as long as the prospective mother knows that it is coming. It helps to spread the load.
The rights-based approach that the YL case raised was rightly not included in the Bill and was perceived to be part of the governance of Britain agenda, which will be tackled in due course.
I welcome the Bill.
I shall not detain the House. Having sat through many hours in Committee, I can honestly say that I welcome the Bill. I especially welcome the merger of the regulatory authorities, perhaps leading away from the silo mentality to a cross-area concept.
I hope that when the Minister, who now has substantial regulatory powers, meets groups, he will realise that some are self-interested. Although they are professionals who purport to want to do their job and to need some authority and power to do it, I hope that he will bear it in mind at all times that patients are the people whom we look after. That is our current difficulty: we lack a strong patient voice. I therefore ask my hon. Friend not to be a stranger to us in the Chamber, because many of us have at least a little experience of patients’ concerns from their visits to our surgeries.
When my hon. Friend makes the regulations, will he do us a favour? Will he come back to the Chamber and get us on board? Will he tell us what he is doing, and how he is updating and altering the regulations under the Bill? He knows that much latitude has been given to the new regulatory body. Although we all wish it well, it will not do some things. It will be reticent to tackle some matters, and it may need a little pressure to deliver. If my hon. Friend can come back and convince us, perhaps we can give him the authority to exert that pressure to deliver for the right people—the patients. I wish him well.
Question put and agreed to.
Bill accordingly read the Third time, and passed.