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Clause 48

Volume 580: debated on Monday 12 May 2014

Provision of “care and support services”

With this it will be convenient to consider the following:

Lords amendment 32A to Commons amendment 32, and consequential Lords amendments 32C and 32D.

Commons amendment 40, Government motion not to insist, Lords amendment 40B in lieu, amendments (a) and (b) thereto, Lords amendment 40C in lieu, amendment (c) thereto and Lords amendments 40D and 40E in lieu.

Commons amendment 42, Government motion not to insist and Lords amendments 42B and 42C in lieu.

Commons amendment 46, Government motion not to insist and Lords amendments 46B to 46E in lieu.

I would like to start by placing on the record my sincere thanks to all right hon. and hon. Members for a real spirit of collaboration that has existed throughout the Bill’s consideration and for the constructive criticism that has characterised both our formal and informal discussions leading up to this moment. Many of the suggestions have been taken up, and I believe we now have a better Bill as a result. This scrutiny has influenced not only the Government’s amendments, but the surrounding policy, and our proposals for forthcoming secondary legislation and guidance. Indeed, the approach we have taken so far of working collaboratively with those in the sector will continue throughout the consideration of the secondary legislation and guidance.

Hon. Members may recall that some weeks ago on Report I undertook to consider further the matter of the application of the Human Rights Act to social care. Government amendments 11B and 11C represent the fulfilment of that promise. They respond to the excellent report by the Joint Committee on Human Rights, and follow discussions that Earl Howe, the Parliamentary Under-Secretary of State with responsibility for quality, and I have had with a number of Members of the House of Lords and with my right hon. Friend the Member for Sutton and Cheam (Paul Burstow). I am grateful to the Joint Committee and to those parliamentarians with whom we have had such constructive discussions.

As has been said in this House and in the Lords throughout the passage of the Bill, this Government need to send out a strong message to the sector not to allow abuse, neglect or harm. Our priority must be preventing harm, abuse and neglect from happening in the first place. We very much believe that there are already, as a result of the steps this Government have taken, strong deterrents to abuse and neglect, and many of the Care Quality Commission’s fundamental standards will include human rights dimensions. The standards will apply to all registered providers of health and social care, and failure to comply with these standards which relate to harm could be a criminal offence. We are, however, aware of the strength of feeling on this matter, which is why Earl Howe offered a Government amendment in the Lords.

The amendment does not extend the scope of the Human Rights Act into the purely private sphere, where there is no state involvement, which clause 48, removed in the Public Bill Committee, did. It would, though, make it explicit that care providers who are regulated by the Care Quality Commission in England, or by equivalent bodies in the rest of the United Kingdom, when providing care and support arranged or funded in whole or in part by local authorities, are exercising a public function for the purposes of the Human Rights Act. In welcoming the amendment, Lords Members agreed that it meets the objectives of the Joint Committee on Human Rights. The amendment has also been welcomed by the Equality and Human Rights Commission. The amendment makes it clear that providers of publicly arranged or funded care and support—both residential and non-residential—provided on behalf of a local authority to an individual are bound by the Human Rights Act.

As hon. Members may recall, I was unable to accept the JCHR amendment, in the way it was drafted, for technical reasons. The Human Rights Act is an entrenched enactment, which the devolved legislatures cannot modify, but its application should be the same across the UK. The Government’s amendment therefore applies the legislative clarification to Wales, Scotland and Northern Ireland. It is important to bear in mind that the scope of application of the Human Rights Act matters to lots of other people beyond the care sector. The Government believe it is not appropriate to pick and choose which people or bodies are expressly made subject to the Human Rights Act; it should always be based on clear principles. That is why I want to make it clear that this amendment would not set a precedent for any future occasions where there are perceived to be gaps in the coverage of the Human Rights Act. The House of Lords warmly welcomed this amendment, and I hope that this House will do the same.

The Delegated Powers and Regulatory Reform Committee has recently reported on the amendments made by this House to the Care Bill. It made two recommendations, which, I am pleased to say, the Government have accepted. Amendment 46B addresses the first recommendation and ensures that the first set of regulations establishing the care and support appeals process—something that in itself has been very much welcomed—will be subject to the affirmative procedure. The remaining amendments are minor and technical and address a concern from the Committee about confusing drafting.

On Lords amendments 40A to 40E, and 42A to 42C, I am sure everyone will agree that there is an urgent imperative for the trust special administrator’s regime to be clear, workable and effective, and I commend the scrutiny undertaken by this House and the other place of clause 118. It has led to sensible, further improvements in the way in which the regime will operate. In particular I thank my right hon. Friend the Member for Sutton and Cheam for raising on Report the issue of commissioner parity.

The Government agree that all affected commissioners and the essential NHS services they commission must be placed on an equal footing during the TSA regime. For that reason we tabled these amendments in the other place, which would ensure that recommendations by an administrator at a foundation trust that affect other trusts do not harm their essential NHS services. We are pleased that the amendments were accepted in the other place, and that they were so warmly welcomed outside Parliament.

The legislation already requires the trust special administrator to obtain from each commissioner of a foundation trust in administration their agreement that the administrator’s recommendations achieve his or her legal objective to secure the continuation of essential services of the failing trust. Clause 118 would extend that to each affected commissioner of other trusts.

The Lords amendments will require any commissioner of affected services provided by another trust to agree that the recommendations will achieve that legal objective and do so, critically, without harming essential services at the other affected trust. Therefore, essential NHS services will be equally protected under the regime irrespective of where they are provided.

As now, in default of all local commissioners agreeing, the TSA must seek agreement from NHS England. Under our amendments, its decision would, additionally, be based on whether the recommendations harmed essential NHS services at other affected trusts, taking into account the views of all the commissioners.

My hon. Friend is setting out the important changes that have been made in the Lords on the trust special administration process. He might consider giving further emphasis to the point that Earl Howe made in relation to all the steps that would be taken prior to the consideration of a trust special administration process being put in place, not least the intervention powers of Monitor and others.

Given that time is tight, I simply confirm that I strongly support what Earl Howe said in the other place, and reinforce the points that my right hon. Friend has made.

For NHS trusts, clause 118 already requires the Secretary of State to produce guidance on seeking commissioner support and involving NHS England, and we will ensure that the key principles of parity between affected commissioners and the essential services they commission are captured in the guidance. I urge the House to support the Lords’ amendments.

Our amendments to Lords amendments 40B and 40C are designed to protect patients, improve transparency and decision making, and ensure that health service reconfigurations do not result in a restriction of access to services for patients. I give notice that I wish to press amendments (a) and (b) to Lords amendment 40B to a vote.

This is probably the final piece of health legislation that will come before this Parliament. To date, this Bill marks four years of chaos and confusion in the NHS—chaos inflicted on the service by the Prime Minister and his two Secretaries of State for Health. What a four years it has been! The Prime Minister promised no top-down reorganisation of the national health service, then introduced the biggest and most chaotic, expensive and wasteful reorganisation that the service has seen in its entire history. He promised a bare-knuckle fight against hospital closures—a fight that not only never appeared, but was knowingly untrue from the outset. We have seen Ministers admit that the 111 service was not ready to be rolled out, but who went ahead, scrapped NHS Direct and rolled it out anyway. We have seen one of the most important schemes for the future of the country and the NHS in the shape of the scheme being bungled, botched and brought to the brink of collapse by ministerial incompetence. We have seen military hospital field tents outside accident and emergency units and police cars being used as makeshift ambulances, queuing outside hospitals for hours on end.

My hon. Friend mentions the supposed attack on bureaucracy by the Conservatives. Is he aware that since their reorganisation there is actually more bureaucracy? Many of the people who have been sacked, and who received redundancy payments, are now working in the commissioning support organisations.

My hon. Friend is entirely right, and the Lords amendments will only make that situation worse.

Now, as this zombie Parliament limps towards the finishing line, we are asked to consider a Frankenstein Bill—a badly stitched together Bill—which began with good intentions, but which, for the most part, will not end well. The Care Bill should have remained just that. On the face of it, part 1, building on the work of the last Labour Government, makes some modest improvements which we welcome, but let us be under no illusions. For all the Government’s bold claims, this Bill is a modest Bill. We support the rights for carers and many of the provisions and principles contained in part 1. Even though we believe that these could have gone much further towards the creation of a properly integrated model of whole person care, the real issue is that the Government have hijacked the Bill to push through a back-door reconfiguration tool that undermines the principle of local commissioning by centralising hospital closure and service removal decisions. It exposes as a sham the Government’s rhetoric about local clinical commissioning over the last four years.

Before I address the trust special administrator clause in more detail, let me touch on Lords amendment 11B, relating to human rights. Hon. Members may remember this issue from our debates on Report. The amendment will ensure that all users of publicly funded or arranged care have direct protection under the Human Rights Act 1998. Under the law as it stands, the fundamental protection and access to individual redress offered by the Act are not applied equally in all care settings.

This measure has a long history. In the other place, Lord Low tabled and passed a new clause which sought to close the loophole. But the Government removed it in Committee in this House, and then voted down an Opposition amendment on Report that would have restored it. The Minister did, however, say that he would go away and look at the issue again. The result is the amendment that we have before us today. For our part, we welcome the Government’s U-turn on this. It is good that Ministers have seen the light, having voted against this kind of protection at every previous stage of the Bill’s passage.

The amendment is clear that any care that is paid for out of public money

“directly or indirectly, in whole or in part”,

or which is arranged by a public authority, will now be covered by the Human Rights Act. However, I have a couple of questions for the Minister. First, he knows that personal budgets are absolutely critical in giving people greater choice and control over their lives, and enabling people to make their own decisions about how their care is delivered. It is important that personal budgets are covered by the amendment. Will the Minister confirm that that is the case, and that social care provided by a regulated provider and paid for by direct payments is included?

Secondly, it would be good if the Minister could clarify for the House whether so-called non-personal care is covered by the amendment. The definition of care used in the Lords amendment is that used in the Health and Social Care Act 2008. This is quite a narrow definition, and it is possible that it could exclude some very important types of care for people with learning disabilities or mental health problems, such as assisting them to participate in activities or to get to appointments. The Opposition amendment tabled on Report, which was drafted by the Joint Committee on Human Rights, would have covered this non-personal care, but as the Government’s amendment contains a narrower definition, we are concerned that they may be excluding quite broad categories of publicly provided social care services that may not be defined as personal care. We would be grateful if the Minister could allay our fears on that point, and confirm that those extremely important types of care for some very vulnerable people will be covered by this amendment. I look forward to his reply.

This is an important point for disabled adults in residential care, for example, who may receive care from one private provider, but access other services and facilities through another provider. Does my hon. Friend agree that it is important that all activities, including going out to participate in social and learning activities, need to be covered by the Lords amendment?

Indeed. My hon. Friend knows about these issues in detail. That is why we have asked the questions that we asked and tabled our amendment on Report.

With reference to parts 2 and 3 of the Bill, the insertion of the hospital closure clause—the Lewisham clause, clause 119, formerly clause 118, call it what you like—is extremely regrettable. It is because of this that the comparison with Frankenstein’s monster has been made, and because of this that we have tabled further amendments today. This House, the people of this country and every hospital league of friends, local hospital action group or other such groups working for the benefit of health services local to their area—and I include in that the magnificent campaigners in Millom and around the West Cumberland hospital in Whitehaven —will never forget the genesis of the major policy change that this clause represents, namely Ministers’ attempts to close good services at a well performing hospital against the wishes of the locally affected public, patients and local clinical commissioners.

On attaining office, the Government made a series of grand promises about future changes to hospital services. The coalition agreement stated:

“We will stop the centrally dictated closure of A&E and maternity wards, so that people have better access to local services.”

GPs were meant to be placed in decision-making roles and given the power to shape local services. As with so much that this Government do, the rhetoric could not be further from the reality, and far from stopping centrally dictated closures, they are now legislating to make it easier to close local hospitals and remove hospital services.

Clearly, a failure regime is essential and when things go wrong, they must be put right, but to attempt to short-circuit the existing reconfiguration framework, and to actively seek to disfranchise patients and the public, is not the way to improve services. Riding roughshod over local commissioning in order to reconfigure an area’s health services is not the way to build support for change. Deliberately ignoring the voices of local patients is a recipe for more expense, uncertainty and delay.

Take the example of Lewisham. Much has been said in this place about the process, the legal judgments and the amazing work undertaken by local campaigners there, so I shall not go into too much detail. Suffice to say that the Government’s attempts to use the law for a purpose for which it was never designed were described as “strained and unnatural” by Lord Justice Sullivan when dismissing the Government’s appeal against their original defeat. I would be grateful if the Government could explain why they believe the most effective way to deal with a failing trust is to alienate local commissioners, the local community and local health professionals. Rather than bringing stakeholders to the table to form a solution with regard to Lewisham, the Secretary of State dragged them through the courts and lost, twice.

Having been beaten by the law, the Secretary of State has decided to change it. The simple truth of the Government’s hospital closure clause is that a successful local hospital, the type that the Secretary of State enjoys getting his photograph taken in, can be closed without due process, simply because the one down the road is in trouble. It is as logical as removing a patient’s leg to cure a headache. Despite their valiant defence of the clause as it stood on Second Reading, the Government have been forced to make what they call major concessions, which are in reality very minor concessions.

Lords amendments 40B to 40E seek to ensure that “essential services” are not harmed. We are told this would mean that if a local commissioner believed that the trust special administrator’s recommendations would harm essential services, they would not be implemented—unless, of course, NHS England overruled the local commissioner. Our amendments to Lords amendments 40B and 40C would ensure that any recommendations would not be able to go ahead if they in any way restricted access to services, and that all correspondence between commissioners and the trust special administrator would be made public. Making it harder to use services is the very antithesis of the principles underpinning the NHS, which the Government claim to support—but only when it suits them.

We should judge this Government not by their words, but by their actions. They promised no top-down reorganisation. They delivered the biggest, most wasteful, most expensive and chaotic reorganisation in the history of the service. They promised a bare knuckle fight to protect local services. They delivered a back-door reconfiguration tool that could facilitate the largest ever hospital closure programme. They promised that local decisions would be made by local commissioners. They delivered a power for the Secretary of State and NHS England to overrule local commissioner vetoes. All this was done against the advice of medical professionals, against the wishes of the public and against every pre-election promise, and therefore without a shred of legitimacy.

The TSA process was introduced in 2009 and was intended, as the High Court ruled, to be used to make quick changes to management structures in order to address financial failures, not to make widespread service reconfigurations possible without public input.

I will make some progress.

The only way to build sustainable services is to have widespread ownership of changes and a robust process of community engagement. The Government’s disfigurement of the TSA process will mean that they have to give no regard to patients’ wishes, and in practice it will mean that they can disregard the views of local commissioners. If the Secretary of State wants to close a hospital, it will be done. It is as simple as that.

In 2003 Labour created the independent reconfiguration panel, a non-departmental body to advise on service change. The IRP’s terms of reference when reconfigurations are proposed state:

“The panel will consider whether the proposals will provide safe, sustainable and accessible services for the local population, taking account of:

1) Clinical and service quality

2) The current or likely impact of patients’ choices and the rigour of public involvement in consultation processes, and

3) The views and future referral needs of local GPs who commission services, the wider configuration of the NHS and other services locally, including likely future plans.”

Why does the Minister think reconfigurations of whole health economies should not be subject to independent scrutiny by the IRP? Why does he think that this should be bypassed without local agreement? Given that quality issues are subject to a number of investigations before a TSA would be appointed, such as Care Quality Commission investigations and being placed in special measures, why cannot a thorough investigation of reconfiguration options be put to the IRP and the public?

If the point of centralising a reconfiguration decision is to provide a quick solution, why are not the Government open to consultation with the public on the future of their local health services during the process of inspection by the CQC or the extended period of time during which a trust is in special measures? Speedy resolution of care failures is essential, but to go along with the Government’s proposals would be to suggest this sense of urgency appears only after months of work trying to address the problem. That is wrong, and it is little wonder that so many hospitals and so many communities believe that this legislation is setting them up to fail.

The Government’s position on this is intellectually dishonest. In reaching the conclusion that the TSA process should be hijacked to provide a back-door reconfiguration tool, they have wilfully ignored professional, legal and medical advice, and have disregarded existing procedure. They have cost the taxpayer hundreds of thousands of pounds in defending their decision in the courts and they have added to the chaos into which they have already plunged the NHS. On Report we offered to work with the Government on a cross-party basis to produce a reconfiguration process and a TSA process that would have commanded broad public and political support. This offer was rejected.

The Opposition’s amendments seek to make a bad law slightly better, but the truth is that more lifeboats on the Titanic would not have stopped it sinking. In case any Government Members ever actually believed the coalition agreement, a vote against our amendments today is a vote against that agreement. At their heart, our amendments are an attempt to help the Government to help themselves, but more importantly, to help all of those communities who expect to have a say in the future commissioning of their local hospital services. The next Labour Government will ensure that their voice is heard.

Listening to the hon. Member for Copeland (Mr Reed), it struck me that the Care Bill could be described as a Bill that was full of ideas that were proposed by the Labour party when it was in government, but was a modest measure. In some ways, I find those two positions contradictory, unless of course the last Government were not the bold, revolutionary Administration whom they often told us they were when they were in office. If we are indeed in a zombie Parliament, that is characteristic of the languid nature of opposition offered by the Labour party.

I hope the hon. Lady will forgive me, but I will make some progress, just as the hon. Gentleman did earlier.

Amendment 11B concerns the Human Rights Act, and I thank Ministers for keeping an open mind and for listening seriously to the concerns raised by Lord Low and others, and to me and other hon. Members who were concerned that an opportunity was being missed to close a gap. Legislation under the previous Government partially but not completely closed the gap, as a result of which those cared for in their own homes did not have the benefit of Human Rights Act protection. The amendment, which was agreed without a vote in the other place, gives that protection. It is the end of a story of seven years of dealing with a gap in the law that was opened by a court judgment. I am grateful that, notwithstanding the difficulties of our bicameral parliamentary process, it has worked at its best on this occasion, because it has meant that concerns raised through the Joint Committee that I chaired, through the Joint Human Rights Committee’s report and by Members in the other place, have now been comprehensively addressed.

Having said that, will the Minister confirm that a person who avails themselves of provisions in the Bill that allow them, as a self-funder, to ask their local authority to arrange their care at the point at which they start to benefit from the means-testing arrangements, and therefore have some support from the local authority, will then be covered by the Human Rights Act?

I would also like to thank the Minister for listening carefully to what has been said at each stage in the passage of the Bill, in both Houses, in respect of the trust special administration regime. It is important to emphasise that the approach set out by the previous Labour Government recognised that trust special administration was a last resort. Earl Howe has emphasised that in the other place. He was very clear that there are powers available to the Trust Development Authority and to Monitor to intervene as necessary in order to avoid trust special administration ever being triggered in the first place. I commend to Members the passage in House of Lords Hansard in which he sets out clearly all the steps that would need to be taken:

“Trust special administrators would be appointed—and I make this point emphatically—only when all other suitable processes to develop sustainable, good healthcare have been exhausted.”—[Official Report, House of Lords, 7 May 2014; Vol. 753, c. 1496.]

It is worth picking up on the point made by the hon. Member for Copeland. Having been given the opportunity to chair a committee looking at the guidance, I think that some of the points he made in his amendments today are exactly the sort that ought to be given proper consideration in the guidance. I hope that he, other Front Benchers, and indeed other hon. Members who have experience of the only two trust special administration processes that have taken place to date, will offer the committee their views and insights so that we can ensure that the advice we give the Government on guidance is as good and as clear as possible.

As was made very clear in the other place, we are not talking about a power that will effectively enable a wholesale reorganisation of the health economy. The Bill is very clear that this is about those matters that might require necessary and consequential changes. The amendments that were agreed in the other place, without a vote, make it clear that the essential services of trusts that find themselves drawn into a trust special administration process will be a proper consideration in the decision-making process.

It is curious that the Labour party now seems to want us to look at access in a different way from the way in which the trust special administration process that it put in place provided for. In other words, why was there no test on access with regard to the trust that was in special administration under its arrangements? Why did that not matter then but does matter now?

I think that the Government have listened very closely to what has been said and changed the Bill in a way that reflects the concerns that I described on Report. We will have the chance to comment further on the guidance—I hope that the hon. Member for Lewisham East (Heidi Alexander) and others will offer input into that—which will give us another opportunity to ensure that it is as tight and effective as possible on those very rare occasions when it is used.

I hope that consideration of the Bill will be concluded today and that it will make the difference to well-being, as a central principle, and to parity between those who receive care and those who give it. That is what the Bill does, and they are great things, and it is about time that they were on the statute book.

My hon. Friend the Member for Copeland (Mr Reed) has already set out the case for the Opposition’s amendment in lieu of their lordships’ amendments regarding the TSA regime, and I wholeheartedly agree with all that he said.

I would like to focus my remarks on why I believe that their lordships’ amendments do not undo the damage that lies at the heart of clause 119. While some people—I would probably include the right hon. Member for Sutton and Cheam (Paul Burstow) in this—seem to think that their lordships’ amendments are something of a cause for celebration, in my view the changes fall far short of what is really needed, which is the complete deletion of clause 119. Even with these latest amendments, clause 119 removes the legal protection for hospitals that face the axe because they happen to be located next to a failing trust that has been placed into administration. We know that this legal protection was vital in the case of Lewisham. The Government, having been told by the courts that they broke the law, are now simply changing the law so that in future they can close much-needed services in successful hospitals to deal with financial problems in others.

It has been suggested that the Lords amendments to clause 119 arose from discussions sparked off during debate on Report in this place. Yet the new clause we discussed then, which was tabled by, but then not supported by, the right hon. Member for Sutton and Cheam was very different from what is before us today. Of course, we all remember what happened last time: the Lib Dems were simply bought off with the offer of chairing a committee. It is therefore worth comparing what we discussed on Report and what we are debating now. If I recall correctly, the new clause that the right hon. Gentleman had in his name a month or so ago proposed that the commissioners of services in hospitals that fall outside a trust in administration should have, in effect, a power of veto over recommendations put forward by an administrator.

No, it did not. It provided for parity of esteem between commissioners of affected trusts compared with the commissioner of the service that was failing.

I am grateful for the right hon. Gentleman’s intervention. I pressed him on this very point on 11 March, when I asked whether his new clause

“would provide a direct veto to commissioners of services at a hospital located outside the trust to which an administrator has been appointed.”

He responded:

“That is the intention, so the new clause has been drafted to have that effect.”—[Official Report, 11 March 2014; Vol. 577, c. 244.]

The new clause proposed in March—we had a full debate and discussion about it—suggested that if the commissioners were content with the proposals put forward by a TSA, full public and patient consultation would kick in, whereas if the commissioners were not content, they would call a halt to the process. As I said, I pressed the right hon. Gentleman on that, and he was clear in the remarks that he made at the time.

That is not what we are debating now. The amendment that was passed in the other place last week gives statutory consultation rights to commissioners of services in hospitals that fall outside the trust to which an administrator has been appointed. It suggests that changes to essential services that are proposed by the administrator but delivered outside the failing trust should not be caused harm, while seemingly leaving the definitions of “harm” and “essential services” to NHS England. The amended clause states that, should there be a difference of opinion between commissioners, NHS England will act as some sort of referee and have the final say.

I contend that what we have before us today is very, very different from what was mooted in this place on Report. The changes to the Bill that the Government have introduced in the Lords are minor at best, and confusing and irrelevant at worst.

The right hon. Gentleman is shaking his head, and I can see that he disagrees with me about this, so let us look at the committee which has been set up and which he is chairing. Is it actually going to make any difference? My fear is that it is just camouflage for the fundamental damage that will be caused by clause 119. The committee will supposedly look at the rules that govern the use of the trust special administration regime. The most important rules that govern the use of the TSA regime are being set today, in this House and by this Bill.

I am grateful to the hon. Lady for giving way; she is being very gracious. The reason the Lords amendment is important is that it makes it clear that essential services in other trusts are now relevant to the guidance at which my committee will be looking.

One person’s definition of “essential” might not be the same as that of another person.

The Lords amendment tinkers at the edges of clause 119. Although it offers some marginal improvement on the Government’s original clause, it does not go far enough. I would vote for deletion again if I could, but parliamentary procedure does not afford me that opportunity. There is no doubt in my mind that this clause, even with the latest amendment, will allow more fast-track hospital closures in future. It removes the protection that existed in law, which allowed Lewisham council and the Save Lewisham Hospital campaign to take a case against the Government and win.

The latest amendment may guarantee another layer of consultation, but it contains no overall guarantee that services will not be closed at successful hospitals to balance the books elsewhere. Is the Minister or the right hon. Member for Sutton and Cheam able to say unequivocally that had this amended clause been on the statute book at the time of the TSA regime in south London, the future of Lewisham’s A and E and maternity service would have been secure? They cannot, because it is not the case.

In conclusion, I do not accept that their lordships’ amendment provides the protection that some believe it provides. The amended clause still extends and augments powers for TSAs and NHS bureaucrats. Even with the increased checks and balances contained within their lordships’ amendments, the TSA process is still a chaotic and rushed mechanism for closing hospital services. It plunges local health economies into desperate uncertainty and takes power away from the public and clinicians.

I do not believe this is the way to make the sorts of changes our health service requires to meet the challenges of the 21st century. I have maintained that position throughout the passage of the Bill and I make no apology for sticking to my convictions to the end. The public do not want more fast-tracked hospital closures, but this Bill legislates for them.

Before I turn to the amendments, I want to put on record my thanks to hon. Members for their contributions to today’s debate. I also want to express my thanks once again for all the contributions made by hon. and right hon. Members throughout the passage of the Care Bill and, indeed, for the contributions made by noble Members of the other place.

The hon. Member for Lewisham East (Heidi Alexander) made a characteristically robust contribution in standing up for her local health care services. I also pay tribute once again to the contribution made by my right hon. Friend the Member for Sutton and Cheam (Paul Burstow), not only today, but at the Bill’s inception, during its scrutiny by the Joint Committee and throughout its passage through this House and the other place. He has done a tremendous amount of work to ensure that the Bill is much better than it used to be. He deserves considerable praise for what he has done and the help he has given the Government in securing a Bill that is not just fit for purpose, but which will make significant changes and improvements to our health care system.

It is worth bearing in mind that the Bill represents the most significant reform of care and support in more than 60 years, putting people and their carers in control of their care and support for the first time. The Bill will also put a limit on the amount that anyone will have to pay towards the costs of their care. It is a very big step forward and one that was long overdue. The Bill also delivers key elements of this Government’s response to the terrible events that took place in Mid Staffordshire and the recommendations of the Francis report by increasing transparency and openness and helping to drive up the quality of care across our NHS and social care system. I am pleased that the Government were able to table amendments that have been accepted in the other place, and I hope that those amendments will enjoy support in this House today.

Before I turn to the substantive amendments tabled by the hon. Member for Copeland (Mr Reed), I want briefly to address the points made about human rights legislation and the issue of direct payments. It is important to highlight that like clause 48 of the Bill, as originally drafted, and section 145 of the Health and Social Care Act 2008, which was the preceding provision, Lords amendment 11B relates to providers of social care registered with the Care Quality Commission, covering personal care provided at home and in residential care settings. The amendment covers physical assistance—for example, prompting someone to take their medication, dress, eat, drink and perform activities of daily living—but not non-personal care. To answer the question asked by my right hon. Friend the Member for Sutton and Cheam, I am happy to confirm that when self-funders start to receive support from the local authority, they will indeed be covered by the Human Rights Act 1998.

To turn to the amendments tabled by the hon. Member for Copeland, it is worth highlighting to the House that, contrary to what he asserted, the TSA regime—let us remember that the regime was laid down by the previous Labour Government—has been substantively improved by the amendments made to the Bill. In particular, clause 118, which has been debated as clause 119 at various points, will extend the requirements on the trust special administrator to consult not just the public, staff of the failing trust and its commissioners, but other provider trusts, their staff and their commissioners, local authorities and local healthwatch organisations. There is therefore a comprehensive duty of consultation and engagement in the TSA regime, and that will be further strengthened by the amendments we are now discussing.

Amendment (a) to Lords amendment 40B and amendment (c) to Lords 40C amount to wrecking amendments and, as I shall outline, amendment (b) to Lords amendment 40B is unnecessary and unworkable. Amendment (a) to Lords amendment 40B and amendment (c) to Lords 40C would mean that the recommendations of a trust special administrator could not restrict access to any services of another affected trust. Like previous ones, they are in effect wrecking amendments that would make it impossible for the administrator to do their job.

Both Houses recognise that the NHS is a network and that no hospital is an island, and have already agreed that clause 118 must allow the administrator to take a holistic view of the local health and care economy to find the very best solution for a failing trust. That is of course in the best interests of local patients. As my right hon. Friend the Member for Sutton and Cheam outlined in Committee, it is right that a trust and its patients in particular are not thrown to the wolves when the quality of care is unsustainable or letting patients down, but that a holistic and broader view of the local health care economy can be taken. That was the previous Government’s intention in setting up the TSA regime, and it is our intention now. The previous Government were not the first Government who did not necessarily make their legislation accord perfectly with the intentions they outlined in impact assessments for the TSA regime. That is why we are now in the position of having to correct and improve the regime through the Bill.

The amendments tabled by the hon. Member for Copeland would undo the effects in relation to the trust special administrator’s regard to the wider health economy, and they would reverse the effect of clause 118, such that the administration regime would not be able to create a complete and workable solution to intractable problems or failures of patient care in the NHS. I am sure hon. Members will agree that that would be entirely undesirable, and that it would not be in the best interests of NHS patients, who must be protected where a hospital cannot deliver safe or sustainable care.

Amendment (b) to Lords amendment 40B would give the trust special administrator significantly less time to finalise his or her draft recommendations about the future of a failing trust by requiring the publication of all correspondence between the administrator and commissioners at least 10 working days before publication of the draft report. Hon. Members will be aware that we have extended the time for the trust special administrator to draw up the report from 45 to 65 days and for the consultation from 30 to 40 days, because those processes need to be done properly.

I remind hon. Members that transparency is already built into such processes at every stage. The administrator is required to publish the draft report submitted to Monitor and is expected to include in it the commissioners’ statement in agreement or disagreement to the report. Following consultation, the administrator’s final report is submitted to Monitor for a decision. That report, which Monitor must publish and lay before Parliament, again needs to present to the regulator the views of all affected commissioners. The administrator is required to attach to the final report a summary of all responses to its draft report that were received during the statutory consultation. That would include the views of all affected commissioners as respondents and explain what consideration was given to those responses. There is full transparency at every stage of the process. Quite apart from being wrecking amendments, the Labour amendments are therefore completely unnecessary.

The administrator, working closely with all affected commissioners and providers, may need to communicate in writing in the 10 working days before the draft report is published and submitted. Amendment (b) would therefore significantly reduce the time available to the administrator to develop and finalise the draft report and seek commissioners’ agreement. The hon. Member for Copeland said that he was concerned about that process, but his amendment would make it more difficult.

Clause 118 will extend the time that is available to the TSA to develop the draft report. Amendment (b) would reverse that. That is irrational, undesirable and goes against the very point the hon. Member for Copeland made about having time to consider the best interests of commissioners and the local health economy. I thought that that was an unintended and unwanted consequence of the amendment, but having heard the comments of the hon. Member for Leicester West (Liz Kendall), I am not so sure. However, I hope that the hon. Gentleman will not press the amendments.

In conclusion, the Government are committed to a TSA regime that is workable, transparent and in the best interests of patients. In cases of exceptional and significant care failure, lives are put at risk if a problem is not dealt with swiftly and effectively. It is for that reason that we are strengthening the regime in the Bill. I am very proud of the Bill and the opportunity that it offers to improve the health of and, the quality of care for, many people, particularly the frail elderly, those with disabilities and those with long-term care needs. It represents the most important step forward in integrating and better joining together health and social care for well over a generation. I hope that hon. Friends and hon. Members will support the Bill and the amendments that have been made to it.

Question put and agreed to.

Lords amendments 11B and 11C in lieu of words left out by Commons amendment 11 agreed to..

Lords amendment 32A to Commons amendment 32 and consequential Lords amendments 32C and 32D agreed to.

Clause 118

Powers of administrator etc.

Amendment (a) proposed to Lords amendment 40B.—(Mr Jamie Reed.)

Question put, That the amendment be made.

Proceedings interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83G).

Lords amendments 40B to 40E in lieu of Commons amendment 40 agreed to.

Lords amendments 42B and 42C in lieu of Commons amendment 42 agreed to.

Lords amendments 46B to 46E in lieu of Commons amendment 46 agreed to.

Order. Will Members who have no interest in the forthcoming debate and are leaving the Chamber please do so quickly and quietly? Not to do so is a gross discourtesy to those who wish to speak.