House of Lords
Tuesday, 25 March 2008.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Ripon and Leeds.
Disability: Independent Living
My Lords, the Government published their five-year, cross-government strategy for independent living on 3 March. The strategy sets out a five-year plan which aims to extend self-determination and choice to all disabled people and to enable greater access to housing, employment, health, education, transport and other opportunities.
My Lords, I thank my noble friend for that reply. Is she aware that the Government’s strategy document is an outstanding piece of work except for its recommendation that the Government should wait for five years before deciding whether they will need legislation? I am convinced that it is important to have legislation now. The case for that was spelt out in the debates in this House in recent weeks on my Bill on independent living. If the Government were to accept the aims of my Bill it would be widely approved throughout the country and in Parliament—with the exception, of course, of the Chancellor of the Exchequer. I do not expect him to agree initially but I hope that when he sees how beneficial the Bill could be, he might be persuaded to change his mind.
My Lords, my noble friend knows that he is held in the highest regard in this House and elsewhere, particularly for his work on independent living. The Government support the principles underpinning the Disabled Persons (Independent Living) Bill but there are two important reasons why we do not think it is necessary at this stage. First, significant progress is being made in support of people with disabilities through the strategy that was announced earlier this month, individual budgets, additional support for carers, support for user-led organisations, Putting People First and the housing strategy. Secondly, the independent living strategy sets out in detail how progress will be measured and provides a commitment to take action if this annual measurement indicates that barriers to independent living remain. It is important that the implementation and monitoring of the new strategy means that year on year we will be able to assess whether it is necessary to return to this issue, including legislation, and, indeed, that may be before five years.
My Lords, on measuring progress, the noble Baroness will be aware that the Prime Minister’s Strategy Unit recommended in 2005 that a centre for independent living or an equivalent user-led organisation should be established in every local authority by 2010. What action has been taken with the Local Government Association and/or individual local authorities with a view to delivering that commitment? Are the Government on course to meet it?
My Lords, user-led organisations are local organisations that are run and controlled by disabled people. The focus of Department of Health-led work is on organisations of adults, including older people, and families of disabled people. We are committed to supporting them. Funding has been made available to provide information and advice, advocacy and peer support, assistance with self-assessment, support in using individual budgets, support to recruit and employ personal assistants, disability equality training and consumer audits of local services.
My Lords, the strategy was launched on 3 March. The review was conducted over the previous 18 months using a principle of co-production involving disabled people at every stage. The strategy is jointly owned by five government departments. This partnership between disabled people and the Government does not end with the publication of the strategy; it will be equally, if not more, important as we move forward to implement and monitor its progress. The Government have launched a consultation process that will run until June. Disabled people and their organisations will be involved in working out the detail of how to implement the strategy, how the annual monitoring should take place, who will be involved in it and how progress will then be assessed.
My Lords, does the Minister agree that what she has just said about monitoring the strategy proves how difficult it has been so to do? We already know that best practice in this field will address most of the problems. Are the Government convinced that there is any point in waiting if the same problems are going to be identified?
My Lords, the Government’s strategy is not about waiting; it is about implementing and getting on with this. It is about tackling barriers that have prevented disabled people having full choice in and control over how they go about their lives. It is about ensuring that health, social care and other services are delivered in ways that enable disabled people to have choice in and control over how their needs are met. It is intended to make a real impact on the lives of disabled people now, but it will be monitored annually.
My Lords, my noble friend Lady Andrews recently announced funding of £4.9 billion over the next three years to support people through our housing strategy. That will help more than 1 million vulnerable people each year, including older people, disabled people and those with mental health problems, to live independently in their own accommodation. In addition, the Government recently announced increases in the disabled facilities grant. It will increase by £25 million in 2008-09, which represents a significant rise of 20 per cent.
My Lords, I do not think that there are significant shortcomings in the legislation, but it is clear, and will be particularly so following the Second Reading debate on the Health and Social Care Bill today, that there is a great deal of work to be done. There is no doubt that services are patchy; there is no doubt that access to advice is very important. That is why monitoring is so important.
My Lords, do the Government still agree that for some of our most intellectually impaired people the most independent form of living can be in our intentional and village communities? If so, will the Government continue to support those under their new plans?
My Lords, due to fragmentation among rebel movements and intensified fighting between the Government of Sudan and rebel groups, there has been no recent progress in the political process. At a meeting convened in Geneva on 18 March by the UN and AU envoys, the UK set out proposals for a cessation of hostilities and actions to revitalise the political process, including the urgent appointment of a single chief mediator and deeper engagement with civil society.
My Lords, I thank the Minister for that reply. In January our Prime Minister met the Chinese Premier. Subsequently, in February, our Foreign Minister made a statement in China. It is said that China can perhaps do more to achieve peace. What is the Minister’s assessment of Chinese involvement? Can we influence the situation in any way?
My Lords, China continues to be constructive on the immediate issues ahead of us in Darfur. The Chinese envoy for Africa and Darfur, having visited London, went on to Sudan and put constructive pressure on the Government to accelerate the deployment of UNAMID and to prioritise political negotiation. Obviously, at a broader level, we are all concerned that not enough has been done to insist to the Government of Sudan that they must make and keep the peace in Darfur.
My Lords, will the Minister confirm that it is now seven months since the United Nations Security Council’s resolution authorising the deployment of the hybrid force; that the UNAMID force is still 15,500 personnel short; and that there are reliable reports detailing the recent bombing of the civilian population of Darfur by the Sudanese Air Force? With 2 million people displaced and some 300,000 dead already, when will the international community show the urgency and commitment to ensure that some kind of peaceful settlement prevails?
My Lords, the noble Lord is completely correct: the facts are bleak. Against them I would say that the pace of UNAMID deployment is slowly and painfully picking up, and there is pressure on the Government of Sudan to stop the current attacks. But that is the continued chronic problem with Darfur: not enough and always a little too late.
My Lords, I welcome the Government’s recent recruitment by the Government of five consultants to enhance the capacity of the Darfur dialogue in Khartoum. Although the immediate prospects are bleak, as my noble friend has said, how does he envisage this Darfur dialogue developing as part of a longer-term peace strategy?
My Lords, the Darfur dialogue, as my noble friend refers to it, is an effort to draw Darfuri civil society into the peace-making process. While the rebel leaders often seem more attached to the baubles of office and to grand schemes, the civil society leaders are refreshing for their focus on the basics of security for the people of Darfur, the opportunity to resume their living as farmers and the right to go home. The more we can bring those dimensions into the negotiation, the better prospect there is of peace in the longer term.
My Lords, we all share the Minister’s pessimism about what is happening. The situation seems to be getting darker and darker. I noted a particularly grim figure of 70 children dying a day amidst all the hundreds of thousands referred to by the noble Lord, Lord Alton. Is there anything specific we can do to speed up UNAMID getting its forces into operation? It seems to be a very slow business indeed. Also, following on from what my noble friend Lord Sheikh said, is there more we can do to encourage the Chinese and, indeed, the Japanese, who showed a strong interest in this area, to use their considerable resources and influence to help us meet this hideous and worsening tragedy?
My Lords, we are clearly not doing enough; the noble Lord is correct about that. However, our diplomacy is extremely active. We are continuously convening or participating in meetings in New York and Geneva to try and get the required troops and helicopters deployed more quickly. The United Nations Secretary-General met with President al-Bashir twice over the past several weeks to press for an acceleration of the UNAMID deployment. Every diplomatic stone is being turned to try and accelerate this frustratingly slow process.
My Lords, since the JEM—the principal rebel movement—has said that it does not object to the UN-AU process as such but to the cumbersome structure of the joint representatives, and that it would like Kofi Annan to be the single mediator, can I take encouragement from what the Minister has said about the process in Geneva, which may lead to the appointment of a single mediator? Is that now acceptable to the Sudanese Government?
My Lords, the idea of a single mediator to co-ordinate in one person the activities of the UN and AU is, I think, accepted. Names have been bandied about—regrettably not including Kofi Annan who, I think, has his hands full at the moment. The fact that the noble Lord cites JEM—a group largely responsible for the flare-up in fighting in Darfur because of its backing from Chad—shows the complexities of this. Nobody means quite what they say in Darfur.
Food: Grain Stocks
My Lords, I thank the noble Earl for this Question, which I think is the first time that this matter has been raised in either House at Question Time.
The current situation is that world grain stocks are forecast to decrease to 247 million tonnes this year, as a result of two successive lower wheat harvests and the increased demand for cereals from the food, feed and fuel sectors. The main impact on the United Kingdom and globally has been sharply higher prices, which, combined with policy changes such as the removal of the set-aside requirement for the 2008 harvest, will undoubtedly stimulate grain production in the UK and, we hope, elsewhere.
My Lords, it is not national as the noble Earl accepts. As I have said, removing set-aside, for starters, should stimulate grain production and we hope help to contain prices. The EU has taken other measures, including the temporary suspension of import duties on feed grains until the end of this growing season in June and the reselling of all the remaining intervention public stocks of grain. In the longer term, we expect set-aside to be abolished. As far as the UK is concerned, the Home Grown Cereals Authority—one of the levy boards—has been conducting, with the Cereals Industry Forum funded by Defra, risk-management training, so that all parts of the food chain can understand their particular role in that part of a very volatile situation, and one which we expect to remain volatile for some years to come.
My Lords, there is no doubt, that there have been some issues, particularly the effect on the harvest in the European Union and Australia. So far as the use of grains for biofuels are concerned—although the question relates to America—the EU has not been affected; some 2 per cent of production has been used for biofuels. The American situation is slightly different in the sense that in 2007-08 it used 80 millions tonnes of maize for biofuel and that is projected to rise to 110 million tonnes in 2008-09. There is some doubt as to whether that is sustainable, but it is not being done just to create fuel; there are other reasons. The subsidy, of course, is quite unacceptable.
My Lords, to what extent do the Government see pressure on grain supplies as a permanent shift? There is increased demand for livestock products worldwide, a drive to biofuels, and a refinery to be opened in the north-east of England shortly that will take over 5 per cent of our wheat crop in 2009. Does that mean that grain production will be at a premium in future? Other than the set-aside proposals, what policy changes do the Government have in mind to deal with that?
My Lords, the noble Lord is right in terms of policy changes. The basic reason has been the last two harvests. Three years ago the grain stocks were 330 million tonnes, so 80 million tonnes have gone in three years, generally speaking as a result of those two poor harvests. That caused the Ukraine and Russia to stick on export controls, which had an adverse effect as well. There will be volatility regarding animal feed stocks for some time. Relatively speaking, all livestock producers will be similarly affected, although pigs and poultry are obviously more dependent on the crops than cattle and sheep. The difficulties will all be treated the same, because this is a world commodity with world prices.
My Lords, does the Minister agree that, although there is no need to panic, we need a thorough examination by government and officials of the consequences of the extremely high world prices for wheat and, even more significantly, world record prices for rice, the principal food of the human race? Does he also agree that some countries have imposed export bans or intervened in the market already, and others plan to set up emergency stockpiles, so clearly the issue goes wider now than UK food prices and supply and is likely to affect food hunger, food aid and possibly political stability in some countries?
Yes, my Lords, to a greater or lesser extent, all the factors that the noble Lord mentioned will be relevant. There is no question about that, but there is no easy answer. The countries that have imposed export restrictions, including some in South America as well as the Ukraine and Russia, have done that for domestic purposes, trying to keep inflation down in their own countries. That has had added effect because of the adverse weather conditions; we have volatile weather conditions, as everybody knows. However, the actions taken will probably bring more land into production. So far as the EU is concerned, I mentioned set-aside. There will be a need to look at using land for biofuels. An inquiry was announced during the passage of the Climate Change Bill, in which the chairman of the Renewable Fuels Agency will have a look at the environmental impact and the impact on food prices of using food crops for biofuel. That is important, no doubt. Also, diets are changing round the world, especially in Asia and India, requiring more of the crops. Therefore, there will be more pressure on prices if we do not supply more crops. Clearly, no one Government can deal with that matter, but it is being looked at in the EU and on a world basis.
My Lords, the Conservatives have had two speakers on the Question, so it is our turn.
My Lords, I do not know the full figures at present. It was a late decision last year; by and large, farmers had set their cropping plans for this year before the EU announced zero set-aside for one year. Long term, our aim is to abolish set-aside. It was 10 per cent, but not all of it will go back into production. The estimate is that about half of it has gone back into production this year. Do not hold me to the last 10th of a per cent, but about 5 per cent extra land will be for crops. We want to take account of that, but not to lose all the environmental benefits that came from set-aside. However, one has to remember that set-aside was not an environmental measure in the first place, but a production measure. Now that we need more production, it makes sense to question why set-aside is there.
My Lords, is it not worth considering the following calculation? If every Chinaman eats one more chicken a year and it takes something like 10 pounds of grain to produce one chicken, that 10 pounds multiplied by 1.3 billion people is an awful lot of grain. Does that very simply not show why there is a terrible pressure on the grain market?
My Lords, yes, and indeed those calculations have been done. If you then combine them with two bad harvests in both Europe and Australia, you get the doubling of prices which we have seen in the past year. Those have not all come through in food prices at the retail end of the market; there are still quite a few more. At present, the world stocks of wheat are at less than 70 days of consumption and the world stocks of maize are at less than 50 days of consumption. A lot of people around the world are looking at these figures in order to form a plan to deal with the issue.
My Lords, as the Prime Minister said in his letter to the Fabian Society last week, we recognise that a time will come when an inquiry is appropriate, but we are not prepared to make a proposal for a further inquiry at this time, while important operations are under way in Iraq to support the Government and people of that country.
My Lords, although this is not the Minister’s direct responsibility, does he not think it a bit fresh, to say the least, that the Tories have launched a motion about an inquiry into the Iraq war when they were so gung-ho at the launch of the war in 2003? By contrast, some excellent Bills have been announced over the past few days in the other place by our Liberal Democrat colleagues, and the Bill of my noble friend Lord McNally had its First Reading on Thursday. Remembering the words of Hans Blix, is the Minister—a former UN man with many years’ distinguished experience—going to persuade the Prime Minister at long last to change tack on this matter? Is it not about time that the British public were given justice as well with an immediate inquiry following the immediate withdrawal of troops from Iraq?
My Lords, noble Lords may recall that it was in this House that we agreed that it was not a matter of “if” there should be an inquiry but “when”. There remains a precedent, since the rather abortive Dardanelles inquiry of 1916, that inquiries wait until after the conflict is over.
My Lords, I am no soothsayer but just today in Basra hostilities have resumed around an effort to disarm the militia. So there is still—today, at least—a sufficiently active level of military action in both Basra and the country at large to make it seem premature for such an inquiry.
My Lords, that will weigh heavily on those who design this inquiry. We have already had four independent inquiries into the war, 60 parliamentary debates and a slew of important books, so any new inquiry, while asked to take a more holistic view, nevertheless has a lot to start with.
My Lords, we realise this is a difficult and delicate issue and certainly too serious to be the subject for silly party-point-scoring and rivalries, but does the Minister accept that the difficulty is that the longer we wait, the more of a problem there will be in providing some really useful conclusions, both for the policy-makers where policy has obviously gone wrong and for the military who are all the time looking with General Petraeus and our own military for new and better ways of dealing with this kind of warfare? There is a strong case for “soon”. He or others say that we must wait until troops withdraw but has he noticed that Senator McCain, who may shortly be—who knows—President of the United States, has talked about a military presence for another 100 years? Would he like me to come back in 2108 and raise the issue again?
My Lords, I think I can certainly assure the noble Lord that it will happen in our lifetimes, rather than in 100 years. Let us acknowledge the fact that we have generals in Iraq, most notably General Petraeus, who are showing that they are acutely able to learn the lessons of earlier mistakes and fashion new strategies and approaches. I very much doubt that this kind of inquiry will contribute to the day-to-day management of the war at this stage. What it can do is give us lessons for the future to make sure that, when we embark on interventions of this kind, they are done in the correct way, which enjoys full support internationally and domestically.
My Lords, I understand that it is intended that the inquiry should be held when the British forces’ work is done. In the event that the American forces remain for some time after the British withdrawal, would the inquiry be affected by the presence of American forces?
My Lords, did the Minister note last week that the Prime Minister in the other place, the noble Baroness, Lady Taylor, here, and a Labour Back-Bencher justified the war on the basis of regime change? Will the Minister confirm that conducting a war on the basis of regime change is against the terms of the UN charter? Does he not think that a war that has already cost 100,000-plus lives—many more have been maimed and many millions have become refugees—and which has turned Iraq into a training camp for international terrorism, should be learnt about now and quickly?
My Lords, on the noble Lord’s point about regime change, the defence rested more on the case of the terrible role that Saddam Hussein played in his country towards his own people and the fact that, whatever other disagreements there might be in this House or elsewhere about the war, we could all agree that the removal of Saddam Hussein from office was a net plus for the people of Iraq and the people of the world. More broadly on the issues that the noble Lord raises, much has already been written and debated, and that debate will continue. An official inquiry is not needed to throw light on those issues.
My Lords, the noble Baroness is aware that the Prime Minister has sought to lay out a timetable for a reduction in the number of British troops and has made it clear that the exit strategy rests on putting the Iraqi security forces in Basra on their own feet, enabling them to carry out the job without active British support, except, perhaps, in a training role.
Retail Development Bill [HL]
My Lords, I understand that no amendments have been set down to the Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved accordingly, and, on Question, Motion agreed to.
Children and Young Persons Bill [HL]
My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Adonis.)
My Lords, the welfare of children in the care of the state is of the highest importance, which is why we welcome the ambitious intentions of this legislation, although there are still issues to be resolved and much of its success will depend on a well motivated workforce and good practice. It is a reflection of how much the Minister has listened and a tribute to him and the Bill team for working so constructively with the whole House that we send a better Bill to the other place. I wish it well.
My Lords, I thank the Minister for the various concessions that he made during the passage of the Bill, which will certainly improve the lives of children in care. He would have been gratified to see the avalanche of correspondence that I have received over the last few days about the Government’s concession on paying fees to foster carers who are being investigated over allegations. There are some impressive stories—perhaps I will pass them on to the noble Lord. We will watch carefully to see how the Government handle this important matter at the other end and look forward to seeing what comes of it. I am grateful to the Minister for agreeing to deal with it.
My Lords, I, too, shall say a few words of thanks. Last week, the Minister, with support from others in the House, moved what I consider to be one of the most important amendments to any Bill addressing disability that has passed through this House in the last few years. I am most grateful to all who supported the amendment. I apologise for my absence—unfortunately, my temperature was slightly higher than it is today. I thank everyone who spoke in support of the amendment and, in particular, the Minister and the Government for making that amendment possible.
My Lords, I understand that the noble Lord, Lord Rix, is holding in his hand the Bevin Boys medal that he was awarded earlier today. The congratulations of the whole House should be conveyed to him as he displays that wonderful medal. I promise the noble Baroness, Lady Walmsley, that I will not perpetuate the avalanche of letters that I have inflicted on her and on other noble Lords during the passage of the Bill. I thank her and the noble Baroness, Lady Morris, for their kind personal remarks and for their praise for the Bill team, which was well merited. I also thank noble Lords in all parts of the House, including my noble friends behind me and noble Lords on the Cross Benches, for their invaluable contributions to improving this Bill. I echo the opening remarks of the noble Baroness, Lady Morris—there is no more important priority in society than improving the regime that the state puts in place for children in care. This cross-party measure that we have forged over the last few months will improve the lot of children in care. That will be an immensely valuable thing for us to do as a society.
My Lords, I can confirm it. However, there has been some discussion about the exact moment to do what the House was willing to do—namely, to consider what the Bill has done. The issue is whether that should be done at Third Reading or on the Question whether the Bill do now pass. The Clerk and I will deliberate further on this, because different instructions are given at different times, and we will come back to the House on it.
On Question, Bill read a third time; an amendment (privilege) made; Bill passed, and sent to the Commons.
Health and Social Care Bill
My Lords, I beg to move that this Bill be now read a second time. The Bill contains a number of vital measures to improve and enhance the regulatory arrangements for health and social care. I am pleased by the number of noble Lords who are due to speak today, as that demonstrates the amount of interest in these important issues. The Bill has enjoyed a full debate in the other place, where it benefited particularly from the informed comment during evidence-giving sessions. I know that the Bill will further benefit as it makes its progress through this House from the wealth of knowledge and expertise that so many noble Lords have in this field.
The primary concern of the Bill is to improve and enhance the quality and safety of the care that patients and users receive. Its focus is on regulation, both of the health and adult social care system and of health and social care professionals who work within that system.
As noble Lords will be aware from the interim report that I published in advance of the next-stage review, I am passionate about the quality of care received by patients and service users. I understand that some concerns have been raised about the timing of the Bill and how this will fit in with my next-stage review. It is my view that this is the right time for the Bill, as it will introduce a framework that focuses on reforming regulation so that it is adaptable to the changing priorities of patients and users. The next-stage review will build on this vital regulatory framework to ensure that quality becomes the connecting thread running through everything that we do.
I turn now to the specific provisions in the Bill. Part 1 creates the Care Quality Commission, which brings together the existing Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission. The commission will be an independent, responsive and proportionate regulator with safety and quality at its core.
I believe that this move is very positive. The creation of the integrated regulator is a necessary step in creating the right legal framework for the development of high-quality health and adult social care services. The existing systems have worked well, and we are building on their achievements, but changes to the way in which health and social care services are delivered through the reform programme mean that a more integrated, flexible regulator is needed.
Increasingly, the boundaries between health and adult social care are becoming less defined. A person’s treatment will often require care in a range of settings. Patients want to receive the same protection from the regulatory system wherever they receive that treatment. Bringing the regulation of health and adult social care together will ensure that the same levels of quality and safety can be expected for all users of health and adult social care.
It is necessary to stress the importance that the Government place on the role of the Care Quality Commission in dealing with social care matters. There is no question but that social care will be at the very core of the regulator’s functions. The Commission for Social Care Inspection currently regulates around 24,000 services, so the regulation of social care will represent a significant proportion of the work of the new regulator. The Care Quality Commission will be responsible for ensuring that all registered services—whether in health or social care—are safe and of a suitable quality.
Equally, I place on record the importance that we attach to the commission carrying out the functions currently carried out by the Mental Health Act Commission—a body chaired by my noble friend Lord Patel of Bradford. Clause 2 states explicitly that the Care Quality Commission’s functions will include those currently carried out by the MHAC. We will work with all three commissions to ensure that the organisational structure, leadership, culture and ways of working that the commission develops are effective in protecting the rights of all vulnerable groups under its remit, including those detained under the Mental Health Act. We will stress how important it is that the skills and expertise required to carry out the MHAC’s statutory functions, including appropriate visiting arrangements, are retained within the new body.
Chapter 2 of Part 1 of the Bill introduces a new registration regime, which, for the first time, will include the registration of NHS providers. This is an important step. It is right and proper that NHS services should be subject to the same rigorous registration regime as applies to providers in the social care or independent sector setting. Providers will be able to offer regulated health or social care services only if the regulator assesses them as meeting the registration requirements, giving patients an assurance of safety and quality wherever they choose to be treated across the health and adult social care system.
A key component of the registration regime will be the scope of registration which Clause 4 and the registration requirements in Clause 16 provide for. The Government have today published a consultation on the framework for the registration of health and adult social care providers. Noble Lords will be able to draw on this consultation document when considering the registration elements in the Bill and I urge all those who have an interest in this important area to contribute to the consultation.
The Bill also gives the commission a wider range of enforcement powers than those available to the existing regulators, giving it greater powers to ensure compliance, as well as being able to cancel registration where absolutely necessary. The regulator will have the freedom to decide how to use its powers of enforcement where services are failing, including for breaches of infection control requirements. The new powers will, for example, allow providers to be fined up to £50,000 for each individual breach of a registration requirement.
The Care Quality Commission will also continue to carry out assessments of providers and commissioners. This will provide an independent view of performance and support both patient choice and local decision-making. These powers, set out in Chapter 3 of Part 1, include measures to ensure that periodic reviews are carried out of health and adult social care provision.
I also want to touch on an issue that has been raised by the Joint Committee on Human Rights and others in connection with the Care Quality Commission—namely the Human Rights Act and its application to publicly arranged health and adult social care. I can confirm that we are currently considering this issue again, in the context of the Bill, in consultation with key stakeholders, with a view to reporting back as the Bill progresses through its Committee and Report stages. In addition, we intend to use the Bill to ensure that the Care Quality Commission can enforce regulatory requirements which are in line with the spirit of the European convention.
Part 2 of the Bill focuses on professional regulation. As a practising clinician, it is appropriate for me to declare an interest at this point. I should also declare that I have an academic interest in the field of the objective technical competency assessment of clinicians, and my clinical department advises the GMC and other bodies on the subject.
I remind your Lordships that the Shipman inquiry, under the chairmanship of Lady Justice Smith, found that in the 24 years during which Harold Shipman worked as a doctor, in addition to the 15 patients of whose murder he was convicted, he killed 200 patients. In a further 45 cases, real cause was found to suspect that Shipman might have killed the patient. These shocking facts, along with the findings of the Ayling, Neale, Kerr/Haslam inquiries, seriously questioned the trust that patients have in the system that is there to protect them. I know from my own experience that the vast majority of healthcare professionals are dedicated to the caring of their patients to the very best of their ability, but these measures will help to identify earlier and tackle more robustly that small number of professionals who pose a threat to patient safety.
The Government therefore consulted on what changes needed to be made to professional regulation, both in light of the recommendations of the Shipman inquiry and the need to modernise the system more generally across the whole health and social care workforce. The White Paper, Trust, Assurance and Safety, published on 21 February 2007, reflected that consultation.
The creation of the Office of the Health Professions Adjudicator responded directly to Lady Justice Smith’s Recommendation 51 of the Shipman inquiry that the adjudication function of the General Medical Council should be undertaken by a body independent of the GMC. The General Optical Council has also indicated its support for this new body. The OHPA will be a statutory body, which will undertake fully independent adjudication of fitness to practise cases initially for doctors, and in due course for opticians and optometrists. Independent adjudication, carried out by the OHPA, will mean that patients and professionals can have confidence in the impartiality and consistency of fitness to practice decisions.
Related to fitness to practise cases, the Bill changes the standard of proof to be applied to the finding of facts in fitness to practise proceedings from the criminal standard of “beyond reasonable doubt” to the civil standard of “on the balance of probabilities”. That responds to Recommendation 81 of the Shipman inquiry and reflects the fact that eight out of the 11 existing regulators already use the civil standard of proof. This will build on existing best practice in other sectors such as police complaints and child welfare.
Having followed carefully the debate in the other place on this issue, I am aware that certain organisations have suggested that the change to the standard of proof could lead to doctors practising more defensively; that is, to be less likely to choose more risky, but potentially more effective, clinical interventions. I do not believe that this is true. As a clinician who has the privilege of treating patients, I tend to focus only on what is likely to make my patients better. I am sure that it will not affect the way my colleagues do their jobs either.
To help to close what has often been called the “regulatory gap” between national regulators and local clinical governance arrangements, the Bill seeks to put best practice in clinical governance on a statutory footing by creating the role of responsible officers. Responsible officers will be senior doctors in healthcare organisations responsible for dealing with local professional performance and conduct issues for medical staff, in liaison with the national GMC.
The Bill also removes the restriction preventing a Section 60 order of the Health Act 1999 introducing a lay majority for the regulatory body councils. In addition, Part 2 introduces the following important measures: first, it enables the removal of the regulatory functions of the Royal Pharmaceutical Society of Great Britain and the transfer of those functions to the proposed new General Pharmaceutical Council, which creates a much-needed separation of professional leadership and professional regulatory function; secondly, it strengthens the Council for Healthcare Regulatory Excellence to help it become an authoritative voice for patients; and thirdly, it creates a regulation-making power to allow changes to the regulation of social care workers by secondary legislation, which will allow the regulation of social care professionals to keep pace with the regulation of healthcare professionals.
In relation to Part 3 of the Bill, the Public Health (Control of Disease) Act 1984 consolidates earlier legislation, much of it dating from the 19th century. Not surprisingly, many of its assumptions, both about risks and about how society operates, are now out of date. It provides for only a limited range of actions when other measures could be more effective in terms of protecting public health, and more convenient and less intrusive for those concerned. In addition, internationally, the World Health Organisation has set out the case for taking an all-hazards approach to dealing with health threats. This is reflected in the new International Health Regulations (2005), which are concerned with infectious disease and with contamination from chemicals or radiation.
We consulted widely on updating the 1984 Act. In light of that, the new legislation contained in Part 3 will provide for a comprehensive set of public health measures to help prevent and control the spread of disease caused by infection or contamination which present, or could present, significant harm to human health. This will enable a quick response to new or unknown diseases or threats, such as the ones we have seen in recent times, for example SARS or Polonium 210. Some of the measures proposed could impact on an individual’s human rights. That is why we have provided significant safeguards in the legislation to protect individuals. Human rights require a balance to be struck between the freedom of the individual and the health and safety of other people; we are confident that we have struck the right balance.
Part 4 introduces the health in pregnancy grant. This will be a one-off payment of £190, available to all expectant mothers ordinarily resident in the UK, which can be claimed from the 25th week of pregnancy. The grant will be payable per pregnancy, and entitlement will be conditional on mothers receiving maternal health advice from a health professional. We know that women face additional costs during pregnancy and that there are competing financial pressures in the final trimester, which can lead to some difficult spending choices. The grant will provide support to all expectant mothers, in recognition of these extra costs. Linked to the requirement to receive maternal health advice from a health professional, the health in pregnancy grant is designed to help pregnant women to invest in their pregnancy to meet their individual needs, while providing them with flexibility to choose where they spend this money.
Part 5 contains a number of smaller miscellaneous issues relating to: the financial arrangements for pharmaceutical services; indemnity schemes in connection with the provision of health services; direct payments in lieu of provision of care services for people lacking in capacity; abolishing the liable relatives rule; the definition of ordinary residence, as applied to the National Assistance Act; payments to social enterprises; the creation of a national information governance board; and the functions of the Health Protection Agency in relation to biological substances. I shall not go into further details here, but I look forward to these issues being discussed in more detail in Committee.
The Health and Social Care Bill contains a number of important measures that will enhance the regulatory system to ensure that first-class professionals are able to work in a first-class organisation. By putting safety and quality at the very heart of the agenda, the Bill will be crucial for service users and patients alike. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Darzi of Denham.)
My Lords, I declare a number of health interests, unpaid, save for my company, Cumberlege Connections. I thank the Minister for taking this Bill through your Lordships’ House, and for the clear and concise way in which he introduced it. It is long and it is complicated. With the Minister’s professional background and his responsibility for reviewing the NHS, we could not have a more distinguished or well-informed Minister at our Dispatch Box. We are indeed most fortunate. I also thank all those organisations which have been so diligent in their briefing for this Bill. I enter this debate with trepidation. I am fearful of overregulation. I am distrustful of those legislators whose tidy minds tie up all possibility of innovation and the freedom to act appropriately but differently. Life is untidy.
My most recent experience has been working with the Catholic Church on safeguarding children and vulnerable adults—visiting 22 dioceses and meeting the most remarkable people, many of whom are volunteers working with children or visiting the old and infirm. These people are now subjected to CRB checks. The impact has been costly, both financially and—much worse—in the loss of some remarkable people who have been respected and trusted within their parishes for decades. As one middle-aged woman told me, “I only sharpen the pencils for the children’s liturgy. I loved the children and I think they loved me”.
My husband drives for the old people’s day centre. He was out one day when someone rang me, asking, “Is Paddy there? We have been let down”. I said, “I’m afraid he isn’t, but I can do it”. “No, you can’t”, was the reply. I have lived in my village since the age of four. My father was the local doctor, and as a former parish, district and county councillor, I am known to the village. At the moment, I even have a clean driving licence. But there is a presumption that I will mug the old folk because I do not have the right CRB certificate. I am not to be trusted, and they, poor souls, are left languishing in the day centre wanting to get home. Of course, the safety of children and vulnerable adults is of the utmost importance, but we the legislators can get carried away. In Section 59 of the Safeguarding Vulnerable Groups Act 2006, we widened a perfectly sensible definition of a vulnerable adult to, among many other things, a person who receives,
“any form of health care”,
including medication and so on, and to a person who has,
“particular needs because of his age”.
I suppose that we are a House inhabited largely by vulnerable adults, but it has never felt like that to me.
Four years ago legislation was introduced requiring residential homes to comply with such high environmental standards that at a stroke we successfully closed countless small, comfortable places that were truly home to their residents. Later the law was relaxed but the damage was done. I am wary of the overconscientious. For me, less means more. Regulation should have a light touch; it should be proportionate, flexible, fair, and risk-assessed; and, above all, it should allow for judgment. Regulation is only necessary when all else has failed. For me, part of that all else is professionalism. When chairing the task force for the Royal College of Physicians, Doctors in society—Medical professionalism in a changing world, I was struck by the evidence we received from many quarters, but particularly from Harry Cayton—then the patient tsar and now a regulator—who told us, “Opinion polls suggest that doctors are among the most trusted people in society … My own observation is that leaders of medical colleges and organisations are resolutely and seriously self-critical in a way that no other group of employers, experts, workers or advisers have shown themselves to be”.
We carried out a survey of 2,000 trainees, 98 per cent of whom thought medicine was a profession; 80 per cent thought it a vocation; and that altruism was essential as was humility. I understand that the world is increasingly complicated. We have international mobility, new emerging professions, an evolving health and social care market and an emphasis on human rights in a demanding but ageing consumerist society. Human beings are frail. We can err and stray, but society requires standards to be set and kept. Surely as legislators it behoves us to simplify and clarify legislation to make it understandable to those who are protected and to those who are to be regulated. The Bill does not do that.
The regulation of three distinct parts of health, social welfare and mental health are being scrambled into a single pot. Those three very different entities have three different cultures, and deal with three different markets. There could be a case for bringing these regulators together—but not now, for, unlike the Minister, I believe that the timing is all wrong. In the short time that these regulators have existed, they have shown themselves to be effective and respected. They have driven up quality standards and, above all, are modest enough to insist that they still have a lot to learn. Yet again, however, it is all change. On the whim of the Chancellor who is now the Prime Minister, disruption is the order of the day.
We will seek to do our best on these Benches, of course, to ensure that the Bill respects the progress made and does nothing to jeopardise the future. There is much in the Bill that we will support, but we will seek to ensure that the principles and objectives are on the face of the Bill, that it protects the independence of the Care Quality Commission, strengthens the involvement of patients, carers and service users, dismisses the idea that independent reviews should be held in abeyance until after the next general election, clarifies the impact of appeals to the ombudsman and studies the consequences of a new registration system. We will, no doubt, have debates on the standard of proof and the role of the office of the health professions adjudicator, although the GMC has, to a large extent, already gazumped the Government on that initiative.
We will examine the responsibilities of the responsible officer; tease out the territory between Monitor, the new Care Quality Commission and the trusts; consider the future implications of the competition panel to be established in the autumn; examine the impact of this Bill on public health; ensure the public accountability of commissioners; and, as we are all guardians of the public purse, scrutinise the additional resources required to enact the Bill and the opportunity costs of more disruption. Later, my noble friend Lord Howe will add detail to these themes in his usual exemplary manner.
In conclusion, I foresee long, happy hours in Committee—days, weeks, or even months. Who knows, before this Bill is enacted we might have grown so old that we, too, will qualify as being vulnerable adults.
My Lords, I, too, thank the Minister for clearly laying-out of the territory of the Bill. I also thank all organisations and individuals who have sent briefings and advice in advance of this debate, in which the huge number of us who clearly wish to speak is evidence of the great concern that this legislation is causing in this House. Many of us here have considerable experience in both the health and social care fields; I must declare a few interests here as a former member of the GMC, a former chair of an NHS trust, former chief executive of the King’s Fund and various others—I do not wish to detain the House with the list, for all of them were unpaid except at the King’s Fund.
I also profoundly thank the Minister and the noble Baroness, Lady Thornton, for organising the meeting last week with the Minister in the other place and the Bill team, which many of us attended. It gave us a chance to ask some questions and to get responses, if not always ones that we could regard as wholly satisfactory given our concerns.
Given the pressure on time, I will make six quick points. I remain puzzled by the Government’s wish to press forward now with this legislation. First, we would have to travel a long way to find people who are seriously critical of the present commissions’ work. Of course, things could always be improved, but all the commissions have done sterling work—and made considerable cash savings, as the Government have required of them. Regulation is complex and detailed; it requires long and painstaking work. To destabilise these three commissions now, when they are at the point where they are working so effectively, begs a much broader question; is it really being done because the Government feel that it will improve the regulatory landscape? Or, is it in fact being done because of the pressure of the NHS’s review of its arm’s-length bodies and the desperate desire that exists within the Department of Health to hit the target of reducing their number? If, as I suspect may be the case, it is the latter, this House should ask some fundamental questions about whether that is an aim worth pursuing and whether, provided the commissions work together sensibly and constructively—as they do—that is not enough of an efficiency saving in itself. That question is bothering many of us, quite apart from the question that the noble Baroness, Lady Cumberlege, raised about why this is happening now. Some of us are very puzzled about why the Government should wish to proceed now when the Minister’s review of the NHS is not yet complete. It does not make very good sense. Why merge the organisations at all and, particularly, why now?
Secondly, not only are the Government seeking to merge these organisations, but before the Bill has even gone through Parliament, they have advertised for a chair of the new body. That chair is to be comparable in remuneration terms to the chair of an NHS strategic health authority, which is not senior enough and does not recognise that in order to attract someone of sufficient experience, seniority and stature to chair this huge, unwieldy and probably at first very uncomfortable body, the Government need to offer far more. It is worth asking whether Ministers are serious about remuneration at such a low level and whether they cannot see that other arm's-length bodies pay far more, as do the present commissions—as they should, given what is required of those chairs—Ofcom, the post of First Civil Service Commissioner, the Food Standards Agency and others. There is a real problem about how serious a job Ministers think this is and how much status they wish to give to this new commission and its chair. That advertisement and the thinking that underpinned it suggest a lack of seriousness about how difficult, important and challenging the job is, and therefore suggest a lack of understanding about how important and serious the new commission will have to be. Last week, there was some reassurance from the Minister in another place but it would be good to hear rather more from the Minister here.
Thirdly, there is the worry about structural change per se. The Prime Minister and the Secretary of State for Health promised last summer that they would not disrupt the NHS with another round of expensive structural change. Any of us who have been involved in any of the previous rounds of changes, mergers and reorganisations, or who have commented on them, shouted out a private “Alleluia”. We all know that mergers and reorganisations take some two years to bed down, distract the key players from the very important job in hand and mean that staff start looking for new jobs the minute the legislation goes through, which disastrously disrupt present work. Governments always imagine that the savings from mergers will be enormous, but the evidence is not there, and the bodies concerned can learn to work together and share some back office functions, as those of us in this House and in another place suggested when the merger of the Human Fertilisation and Embryology Authority and the Human Tissue Authority was mooted in the legislation we were scrutinising last summer. Indeed, the Government accepted our view, and that is what will happen. Why go for the merger of those organisations and put up with the disruption that will ensue as sure as eggs is eggs at a time when Ministers are deeply concerned about infection rates in the NHS after Kent and Canterbury hospital case and others?
Fourthly, there seem to be gaps in the legislation. Like the noble Baroness, Lady Cumberlege, I think that we need principles in the Bill, which we argued, only too recently, in the mental health legislation. We need clear, overarching regulatory objectives. I was a member of Sir David Clementi’s review advisory group that looked at the legal services. Sir David is on the record as saying that the first step in defining a regulatory regime should be to make clear what its objectives should be. That is critical for those charged with regulatory responsibility since the objectives represent the criteria against which they must determine the appropriate regulatory action and against which they will be held accountable. Where is that statement of objectives? The present CSCI governing legislation has encouraging improvement in various areas written into its governing legislation, as does the Healthcare Commission. Where is the absolute duty on the new regulator to encourage improvement in services? I cannot find it in the Bill, where it should be. If it is not there, we have cause for concern.
I am sure that Ministers will say that they want lighter touch regulation, and none of us would support heavy-handed, poking-the-nose-in regulation that distracts organisations and staff from their job. But we are talking about regulation for the benefit of patients and service users. This is for the benefit of the public, especially but not only on the social care side for the benefit and protection of the most vulnerable service users and patients. There has to be a duty on the new regulator to encourage improvement in services as well as an assurance that the new regulator will be able to test pathways of care across the piece within PCTs, hospitals, social care and elsewhere. That means being able to look at the purchasing of pathways of care as well.
I can see within this legislation new penalties for the providers of care for breach of contract. Are we not talking about more than contract here? Should not the new regulator have a duty to test these pathways of care across the piece, given that those who are usually caught in the fissures between providers are all too often the very old, the very frail and the very vulnerable? I would be grateful for an assurance that the new regulator will have such a duty and that the penalties will go further than simply those provided for breach of contract.
Fifthly, I am extremely worried that, as I read it, the Bill contains no special measures as it stands for when the regulator carries out an investigation, as it must have the power to do when things are going really wrong. Where special measures exist—they are there for the Welsh NHS and English local authorities but not for the rest—recommendations are made directly to the Secretary of State by the regulator. This is not about breach of contract where the penalties now lie but about really worrying practice. Of course the Secretary of State does not want to know about every dropped bedpan up and down the line. Yet, as in the cases of Northwick Park or Kent and Canterbury hospitals where something went seriously wrong, the regulator needs the power to say so and make sure that the PCTs, SHAs, trusts and any other players get involved in sorting it out immediately. How can that happen given the Bill as it stands? Where the regulator carries out an investigation or a wider review, will it have the power to make recommendations for an instant remedial action across the whole health and social care economy? The burden of proof should not rest purely with the regulator.
My last point has already been made by the noble Baroness, Lady Cumberlege, on the role of users, patients and carers who are not sufficiently represented in the Bill. It is not adequate. We went through all of this in the Local Government and Public Involvement in Health Bill. The patient and user voice is not strong enough here. I have run out of time. Others have much more to say; I look forward to hearing reassurances from the Minister.
My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Lord Chancellor in another place. For the convenience of the House, I should make it clear that in reading this Statement, where a reference is to “this House”, it refers to the other place.
“With permission, Mr Speaker, I should like to make a Statement about our programme of constitutional renewal. With this Statement are published a White Paper, the draft Constitutional Renewal Bill and an analysis of the responses to our consultations. Copies of these are available in the Vote Office and on my Ministry’s website.
“The accountability of government is fundamental to the health of our democracy. Arbitrary action and lack of transparency can subvert that, but, for decades, the royal prerogative has been used by successive governments to expand executive power. Last July, my right honourable friend the Prime Minister announced his determination that the Government he leads would reverse this process and surrender significant executive powers to Parliament or otherwise limit them. Following my right honourable friend’s July statement and the accompanying Governance of Britain Green Paper, five consultation papers were issued. I am grateful to all who responded. We have taken account of their views in the White Paper and the draft Bill.
“The draft Bill is in five Parts. Protest around Parliament: in July the Prime Minister undertook to consult widely on managing protests around Parliament to ensure that people’s right to protest was not subject to unnecessary restrictions. Our view is that Parliament itself is best placed to decide what needs to be secured to ensure that Members are able freely to discharge their responsibilities. Clause 1 of the draft Bill therefore repeals Sections 132 to 138 of the Serious Organised Crime and Police Act 2005. We invite the views of Parliament on whether additional provision is needed to keep open the passages leading to the Palace of Westminster and to ensure that, for example, excessive noise is not used to disrupt the workings of Parliament.
“The Attorney-General: Part 2 of the Bill sets out major reforms to the role of the Attorney-General and the management of prosecutions, to make the arrangements more transparent and to enhance public confidence. The proposals involve recasting the relationship between the Attorney and the prosecuting authorities. In particular the Attorney will cease to have any power to give directions to prosecutors in individual cases, save in certain exceptional cases which give rise to issues of national security. The Attorney will have to report to Parliament on any exercise of that power.
“By Clause 3 there would be a protocol which will set out how the Attorney and the prosecuting authorities are to exercise their functions in relation to each other. This will be laid before Parliament, as will an annual report. We do not propose changing the Attorney’s role as chief legal adviser to the Government or his or her attendance at Cabinet.
“Judicial appointments: Part 3 of the Bill builds on the significant reforms introduced by my right honourable and noble friend Lord Falconer to reinforce the independence of the judiciary. The Bill proposes to remove the Prime Minister entirely from making judicial appointments, and the Lord Chancellor from appointments below the High Court.
“Treaties: Part 4 of the Bill makes it a statutory requirement that treaties must be laid before both Houses of Parliament before ratification. If this House were then to vote against ratification the Government could not proceed to ratify it.
“While this is obviously a matter for Parliament, the White Paper suggests that a valuable role could be played by committees of either or both Houses in the scrutiny of treaties prior to ratification. I should just say these proposals do not affect the current arrangements for EU and tax treaties which already have a statutory procedure attached to them.
“Civil Service: Part 5 of the Bill will for the first time put the Civil Service on a statutory footing by enshrining the core values of the Civil Service—impartiality, integrity, honesty and objectivity—into law, as well as the historic principle of appointment on merit. The Bill makes provision for special advisers and the Civil Service Commission. The Bill has benefited from the detailed comments on the draft Civil Service Bill in 2004 and from the work of the Public Administration Select Committee. I am grateful for their help.
“I now turn to the other key proposals in the White Paper.
“War powers: there was a widespread welcome in July for my right honourable friend the Prime Minister’s proposals that the Government should limit the Executive’s powers to deploy Her Majesty’s Armed Forces into conflict situations. As well as from those who responded to the consultation document we have also benefited from earlier Select Committee reports from both Houses. In the event there was significant support for the recommendations from the Lords Constitution Committee.
“What we are now proposing is that Parliament’s role should be both enshrined and guaranteed by a resolution of this House. A detailed draft of this is set out in the White Paper. It would require the Prime Minister of the day to seek the approval of this House before deciding to commit forces into armed conflict abroad. It requires him to lay a report before this House setting out the terms of approval sought and information about the objectives and legal matters relating to the armed conflict. There are exceptions to this in relation to emergencies and operational secrecy, with a requirement in such cases to inform but not to seek retrospective approval. Special forces would be exempt from any of these provisions. These changes, if agreed, would define a clear role for Parliament in the most critical of all decisions to face a nation, while ensuring that our nation’s security is not compromised.
“Public appointments: last July’s Governance of Britain Green Paper contained proposals on increasing parliamentary scrutiny of some public appointments. Since then, this has been considered by the Liaison Committee. We will respond to its recommendations shortly.
“Dissolution and recall of Parliament: on the dissolution and recall of Parliament, proposals have already been made to the Modernisation Committee. We look forward to hearing its views.
“The Intelligence and Security Committee: last Wednesday in his Statement on the national security strategy my right honourable friend the Prime Minister said:
“We will … immediately go ahead to introduce a resolution of both Houses—in advance of any future legislation—that will enshrine an enhanced scrutiny and public role for the Intelligence and Security Committee”.
The White Paper sets out these arrangements in detail.
“Executive prerogative powers: the Government are committed to reviewing the prerogative power with regard to issuing passports. Draft legislation will be published in due course.
“The Government are also reviewing the remaining executive prerogative powers; for example, the prerogative to grant mercy. The Government will consider the outcome of this work and will consult on how we plan to proceed.
“Appointments to the Church of England: the Government remain committed to the establishment of the Church of England, and greatly value the role played by the church in our national life. Appointments to senior church positions will continue to be made by Her Majesty the Queen, who should continue to be advised on the exercise of her powers of appointment by one of her Ministers, who will usually be the Prime Minister. We are very grateful to the General Synod for its proposals on how new appointments procedures should work and the Government are discussing with the church future long-term arrangements.
“Flag-flying: the Government received more than 300 responses to consultation on the flying of the union flag. In line with the majority of responses, we have decided that the interim change made to the guidance to allow government departments to fly the union flag whenever they wish should now become permanent. There are no plans to change the arrangements for flag-flying in Northern Ireland.
“Modern constitutional arrangements: good law is imperative to accessible and modern constitutional arrangements. For 40 years, the Law Commission has played a vital role in this regard. I intend to strengthen its role by placing a statutory duty on the Lord Chancellor to report annually to Parliament on the Government’s intentions regarding outstanding Law Commission recommendations and by providing a statutory backing for the arrangements underpinning the way government work with the Law Commission. These changes sit alongside those which the Leader of the House announced last week, which will strengthen the scrutiny of laws after they have been enacted by Parliament.
“We are ensuring that our constitutional arrangements continue to meet the needs of the public we serve. On reform of the House of Lords, I should tell the House that discussions in the cross-party working group are proceeding well. We are on track to publish a White Paper before the Summer Recess.
“Over the coming months, we will publish a Green Paper on a British Bill of rights and responsibilities, and on the values which should bind us together as citizens. Today, my right honourable friend the Secretary of State for Scotland has announced that Professor Sir Kenneth Calman has agreed to serve as chair of a commission to review the Scotland Act. Such a commission was proposed in and approved by the Scottish Parliament. The Government welcome that Parliament’s support for the aim of strengthening devolution and securing Scotland’s place in the union. We are giving our full support to this cross-border, cross-party review.
“The proposals in the White Paper and draft Bill go to the heart of how power in a modern democracy should be exercised. They are not a final blueprint, but part of the much wider programme towards a new constitutional settlement. They will strengthen the role of Parliament in our democracy, for it is Parliament, the seat of our democracy, which is central to this programme of constitutional renewal. I commend the Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I hope that your Lordships will forgive me for not having read the three-volume edition of the Government’s latest views on the constitution, which arrived on my desk some 20 minutes ago. My reaction will have to be based on what the Minister said.
There are some things in the Statement that we welcome, in particular the decision of the Government to reverse the legislation in the Serious Organised Crime and Police Act 2005 about protests around Parliament. We fought against this vigorously, and we are glad that the views that we expressed then have now been adopted by the Government.
We also give a more cautious welcome to the changes involving the Attorney-General. I say “more cautious”, because the Attorney-General is accountable to Parliament for the prosecution authorities and for prosecution policy generally. While I can see the force of the proposal to remove the Attorney-General in certain circumstances from individual cases, there remains the issue of how that will be integrated with the noble and learned Baroness’s overall responsibilities. I note from the Statement that there is to be a protocol, which I hope will be laid before the House. We await it with keen anticipation, and I trust that it will provide the answer to my concerns about accountability.
We of course welcome the principles to be enshrined in legislation for the Civil Service. It is a great shame that these principles should not simply be, as they have always been up to now, part of our constitutional conventions. But, alas, since they have mostly broken down, I suppose that statute is the only substitute. Nevertheless, I am glad that the principles that the Minister adumbrated are to be included. I am also pleased at his announcement about the Intelligence and Security Committee and the appointments to the Church of England.
Nevertheless, I would not like the noble Lord to escape without some observations of a more critical nature on what he has said. Early on in the Statement he read the sentence of the Secretary of State for Justice:
“But, for decades, the royal prerogative has been used by successive governments to expand executive power”.
In fact, historically, the opposite has been the case: the royal prerogative has been steadily eroded for the past 200 years by statute; and the real basis for the expansion of executive power in this country has not been the abuse of the royal prerogative; it has been the passage of Bills giving the Executive increasing delegated legislative powers to make orders and statutory instruments. That is the way the Executive has undermined Parliament, and that has led to the growth of executive power.
Although there are many Statements about rebalancing the Executive against Parliament, they are meaningless unless Parliament gains real control of the Executive in another place. Simply to say that you are going to hand over to Parliament a particular power from the Executive without bothering to mention that, by the way, the Executive are in complete control of what Parliament does, is—if I may say so—an abuse of process. So this is a very unconvincing Statement.
In the one document that I have read, simply because it was published last July and not today—The Governance of Britain—I note that the Government state that one of their concerns is that power remains too centralised and too concentrated in government. There is nothing in the Statement that alleviates any concern about that. Where do the Government in this Statement tackle overcentralisation?
The Minister has talked about war powers. As the Minister knows, we had a long and extremely fine debate in your Lordships’ House at the end of January on this issue. I fully endorse the importance of Parliament giving its consent before troops are deployed abroad. Quite apart from the value of parliamentary authority to the troops themselves and, indeed, to the nation, we now have the added problem of the international convention of the criminal court and the requirement that soldiers should be confident that they are involved in a legal war. I am sure that the Government’s proposals are absolutely right.
However, the vote will be based on a report, as I understand it, laid before Parliament by the Government. Security matters by their very nature do not allow for Parliament to be told the whole story. That is perfectly understandable, and I make no complaint about that. But Parliament, to take its decision, must be confident that the people who know about those things, the unelected part of the constitution, the intelligence services, the military authorities, the Foreign Office and the Ministry of Defence, have all done what they ought to have done and made the checks that they ought to have made in order to give advice confidently to Parliament. That is the area that the Government should be focusing on. They should be sure that the constitutional arrangements below Parliament, if you like, are working properly, as they manifestly did not do at the beginning of the Iraq war, as we well know from the Hutton and the Butler reports. I respectfully suggest to the Minister that, with the draft Bill, this is one of the things that the Joint Committee should concentrate on very carefully.
The Minister talked about reviewing the prerogative power with regard to the issuing of passports. I would be grateful if the Minister could tell me what the passport review means. I thought that freedom of travel, both internally and externally, was one of the hallmarks of English liberty. Is it not disturbing that freedom of travel is now becoming dependent on attendance at expensive interrogation centres and that the passport is being enmeshed with the Government’s flawed ID project? What part of constitutional renewal is it for travellers at Heathrow to be compulsorily fingerprinted?
The question of the review of Scottish matters by Professor Sir Kenneth Calman, who has kindly agreed to serve as chair of a commission to review the Scotland Act, is of course welcome; but will it be part of his remit to look at the role of Scottish MPs determining policy in England?
The Minister talked about the discussions that are going on over House of Lords reform at the moment. He has led us to believe—I have no basis on which to doubt his word, although I have no information one way or the other—that those discussions are going well. Quite what that means—“well” from whose point of view?—he may or may not enlighten us about later on. If the discussions are going well, does he not think that now is the time to make a Statement to the House about what stage they have reached? The House, after all, has an intimate interest in this matter; it has expressed its views in no uncertain terms. Will the Minister give an undertaking, at the earliest possible moment, to come to your Lordships’ House and give us an up-to-date account of where the discussions are?
The Minister also spoke about a Bill of Rights. The noble Lord says that over the coming months the Government will be publishing a Green Paper on a British Bill of rights and responsibilities, and on the values that should bind us together as citizens. Does that mean that the European Convention on Human Rights is in some way inadequate for our purposes and that it needs filling out or perhaps even amending? If so, which particular aspects of the convention are not—to quote a former Minister in his Government—“fit for purpose”? It may well be, for example, that the Minister might like to enshrine the right to jury trial in a new Bill of Rights or perhaps the presumption of innocence, which has been so savagely eroded by a series of criminal law measures over the past 10 years by the Government. I am extremely curious to know what particular issues—specific issues—the Minister has in mind on a Bill of Rights.
I have reacted to what the Minister said. I have not had the opportunity to read the various documents, which no doubt will be gone over in great detail by the Joint Committee that will be appointed.
My Lords, we, too, on these Benches thank the Minister and his colleagues for giving us a little advance notice of a very detailed Statement, White Paper and draft Bill.
At the beginning of this process, the Prime Minister in his first speech in the other place said:
“The right of all the British people to have their voice heard is fundamental to our democracy”.—[Official Report, Commons, 3/7/07; col. 818.]
We certainly agree with that. We are encouraged to see, in the foreword to today’s White Paper, that the Lord Chancellor said that the objective is to,
“deliver the fairest possible distribution of power in our society”.
In that context, frankly, the Statement today—along with the White Paper and even the draft Bill—is a mouse. To wait for so long—from last July—for their gestation has been a frustrating exercise. We had hoped for more, because the purpose of the exercise is not a little tidying up, but to re-engage our fellow citizens in the democratic institutions of our country—both local and national—and to “reinvigorate our democracy”. I do not think that there is quite enough here to do that.
I shall turn to the detailed points in the Statement and the White Paper. We certainly support the abolition of the ridiculous crime that was introduced of a protest in and around Parliament. The Minister will recall that my noble friend Lady Miller of Chilthorne Domer introduced a Bill at the beginning of the year that would have done that very neatly; we would not have had to wait for a Joint Committee or a draft Bill, or had any other delay. This is yet another example of where legislating for a knee-jerk reaction means that we all repent at leisure.
We have some concerns—they were expressed again by the noble Lord, Lord Kingsland—about precisely to whom the Attorney-General is to be responsible and accountable. Is it to Parliament as a whole, or is he or she still adviser to the political party that happens to be in government at the time? There are clearly circumstances where the exclusion for national security, which was referred to in the Statement, might include such highly charged political issues as the BAE Systems contract with the Saudi Government or the difficult situation that arose in the run-up to the Iraq war. The White Paper does not adequately address the concerns that came from the resignation letter of Elizabeth Wilmshurst, which noble Lords will recall raised important questions about apparent political bias in the way in which the Attorney-General gave advice to the Government.
We have an anxiety that, for public and to some extent judicial appointments, Secretaries of State—not just those who happen to be heads of quangos or have other appointments under the state—should have to answer to parliamentary scrutiny and accountability. The Secretary of State should be the one brought to a Select Committee—perhaps a joint one—on the appropriate department, so that there could be a proper interrogation of his or her intentions in that department. If we are to have new, confirmatory hearings, surely they should be within Parliament, of parliamentarians.
It was significant that the Minister had to make a mini-introduction to his Statement to emphasise that, every time “this House” was referred to in the Statement to the other place, it did not mean your Lordships' House. It is true that the Statement and the White Paper do not explain the exact role of your Lordships' House in relation to the ratification of treaties. It is clear that the other place has a right to veto ratification, but what is the responsibility of your Lordships' House in that matter? I hope that we can have an explanation. Similarly, on war powers, I was a Member of the other place at the time of the debate on the decision by the Government to go to war in Iraq. I have no regrets whatever for voting against that, but I was conscious at the time that there was expertise and great concern in your Lordships' House. What role will there be in future if that proposal goes forward and the prerogative power is modified or removed?
There will be wide concern about the role of special advisers in possible instruction or direction of professional civil servants. I do not see a clear statement of what change is to take place on that in the draft Bill when we put the Civil Service on a statutory basis, welcome though that obviously is. As has already been said on the role of Parliament in relation to dissolution or recall of Parliament, assuming that the Government of the day have a majority in the other place, it is to some extent a fig-leaf and not a real change. In certain circumstances, it might constrain the role of the monarch. If the other place has no overall majority, as is the case in your Lordships' House, that might be a more meaningful vote; perhaps we should have a vote in this House as to whether the other House should be dissolved or recalled.
The gaping hole is the lack of a single reference to the very recent and very useful government report on voting systems, which must surely be at the heart of a representative democracy. As became apparent when we had a debate just 10 days or so ago, it is extraordinary that only about a third of those elected to the other place these days can claim to represent a majority of those who voted in their constituencies, and not one single Member of Parliament now can claim to have a majority supporting him from the whole of his registered electorate. If we are going to have a British Bill of Rights, surely a very basic right of a British citizen is to be able to see his or her vote as having equal value to everybody else’s.
Can the Minister confirm or deny the report on the front page of yesterday’s Guardian that the Government are considering a reform of the voting system? If so, why was that leaked to the media rather than given as a Statement to your Lordships’ House when the Minister addressed us on 13 March? True or false, perhaps he would like to confirm that there have been no discussions or consultation with other parties—certainly not with the Liberal Democrats. If Parliament is to be,
“the seat of our democracy”,
as the Statement says, surely the confidence of our fellow citizens that they are truly and fairly represented in Parliament is a critical factor if we are to renew confidence in our parliamentary systems. This Statement goes a very small way to reviving interest in our parliamentary institutions but that revival will not be sufficient to re-engage the public unless it is a great deal more radical in future.
My Lords, I welcome the comments of the noble Lords, Lord Kingsland, and Lord Tyler. I congratulate both noble Lords on their perceptive remarks, with such short notice. I welcome the support that the noble Lord, Lord Kingsland, has given to a number of the proposals encompassed within the debate. In relation to the SOCAP legislation, as the Statement suggested, it is important that access to Parliament is kept open. Therefore, we will be consulting Parliament on any additional measures that might need to be taken in the absence of the legislation which the draft Bill makes provision for repealing. I welcome his general comments on the question of the changes to the Attorney-General’s position. He is right about the accountability of the prosecution authorities and our intent is that that would be covered in the protocol that will be laid before Parliament in due course. As far the legislation of the Civil Service is concerned, I do not agree with him that the system has broken down. I pay tribute to the Civil Service and the integrity of those people who work for the Government. On the expansion of executive power, this White Paper, the draft legislation and the various other developments of policy that the Government have involved themselves in since the original Statement last July are intended to ensure that Parliament can properly hold the Executive to account. I believe that the measures contained in this document allow that to happen. On the development of pre-legislative scrutiny, the fact that this draft Bill that is published today will be considered by a Joint Select Committee in pre-legislative scrutiny is an example of how parliamentary influence has been developed. He may have seen a Statement made by the Leader of the House of Commons last week on the Government’s position in relation to post-legislative scrutiny, which I know is a matter close to the hearts of a number of noble Lords, not least the noble Lord, Lord Norton. So we see this as being consistent with the way in which Parliament has been and is continuing to be given more say and influence in the detail of the legislative programme.
As far as decentralisation is concerned, I would point the noble Lord to the new arrangements for local area agreements for local authorities as a real and genuine effort by the Government to give greater discretion to local government. There will be many other examples.
The noble Lord is right to point to the importance of the section on war powers. We had a splendid debate on this matter in your Lordships’ House only a few weeks ago and the Government have paid careful attention to the issue by balancing the need, as the Government have seen it, to involve Parliament in such a decision with that of ensuring that that cannot happen at the expense of the safety and security of this nation and its troops. I take what he said about the integrity of the information brought before Parliament. I am confident that that will prove to be the case. Our proposed changes to make the important work of the Intelligence and Security Committee more transparent will enhance public confidence in the integrity of the information that will be provided.
The noble Lord asked about the commission that Sir Kenneth Calman has agreed to chair. Perhaps I may read the terms of reference, which are:
“To review the provisions of the Scotland Act 1998 in the light of experience and to recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to serve the people of Scotland better, that would improve the financial accountability of the Scottish Parliament and would continue to secure the position of Scotland within the United Kingdom”.
Those terms of reference are pretty broad.
The noble Lord asked me about reform of your Lordships’ House. The Statement made it clear that the talks in the cross-party group are going well; I am sure that his noble friend, the noble Lord, Lord Strathclyde, would be happy to provide him with further details. In terms of making an early Statement to your Lordships’ House, I always welcome an opportunity to discuss Lords reform with Members of the House. The intention is, as set out in the Statement, that we will make a formal Statement on the progress of the cross-party group by the Summer Recess. I do not think that I can say anything further on that matter. It is very important that, as far as possible, we can reach consensus; and then we will of course be happy to make such a Statement.
The proposal for a British Bill of rights and responsibilities is not a reflection of the inadequacies or otherwise of the ECHR, but will help the people of this nation to focus on the values that we share, the rights we enjoy and the responsibilities that we acknowledge to be a foundation of our society.
I turn to the comments of the noble Lord, Lord Tyler. He welcomed the Statement and then said that it was not perhaps as profound and exciting as he would wish. I am sorry about that, because I believe that the Statement and the related work suggest that there has been considerable progress not only towards reporting to the House on the prerogative powers but in terms of enhancing parliamentary scrutiny of the Executive. The changes that I announced today are substantive, but also have to be seen in the context of other measures, such as devolution, the Bill on human rights and the Freedom of Information Act. One has to consider these issues in the round.
I welcome the noble Lord’s support on SOCAP. We will ask Parliament for its further views on this matter, particularly in the context of the use of sessional orders in the future. The Attorney-General is accountable to Parliament and is the chief legal adviser to the Government. That dual role has served this country and Parliament well. The arrangements that I have announced today will ensure that that takes place within a more transparent process. There is a real advantage in a Government Minister heading the service that is headed by the Attorney-General.
The British Aerospace decision was taken by the SFO director and not by the Attorney-General. No doubt we will be debating the role of the House of Lords in due course. Any decision on war powers would have to be taken by the House of Commons, as the elected Chamber, reflecting the primacy of that Chamber. I agree that the advice that the House of Lords can make available through a debate would be extremely valuable. With treaties, the intention again is that the Commons should have primacy, but that the view of the House of Lords would be valuable. On the question of special advisers, my right honourable friend the Prime Minister revoked the Order in Council that allowed special advisers to give executive orders. My understanding is that the draft Bill reaffirms the position taken by my right honourable friend. As the White Paper makes clear, special advisers are already subject to a code. As we take forward legislation in relation to the Civil Service, that will have legislative backing.
I suggest that we await the view of the Modernisation Committee in another place on the recall of Parliament. On voting systems—nice try, but of course I will not comment on speculation in the Guardian on bank holiday Monday. We launched the report on voting systems that has been widely applauded for the quality and objectivity of its work. We welcome debate on that matter.
My Lords, I make a very short point. It is a great relief that the changes to the role of Attorney-General are much less than had been foreshadowed in some quarters. Above all, it is a huge relief that she will remain responsible for giving independent advice to the Government and to Parliament, as she and her predecessors have always done, and that the role will not be transferred to a QC, who would not be a member of either House. I hope in consequence that that we will see more of the present noble and learned Baroness the Attorney-General than we have done in the past few months—she has been much missed—and that she will be present on the Government Front Benches whenever there are difficult legal questions at issue.
My Lords, I have two questions for my noble friend, the first of which is on public appointments. Can he confirm that whatever proposals the Liaison Committee comes up with on parliamentary involvement, they will not cover judicial appointments, which will be treated separately, and that the Judicial Appointments Commission will continue to have its considerable role in making or advising on appointments, so that there will be no question of an advise and consent arrangement, as operated by the United States Senate? Secondly, the noble and learned Lord, Lord Lloyd of Berwick, was concerned about the position of the Attorney-General. May I assume from the brief references in what we have read today that he or she will continue to be either a Member of this House or a Member of the House of Commons? Does my noble friend agree that that has become particularly important for the chief legal adviser to the Government now that the Lord Chancellor may, by law, no longer be a Member of either House or, indeed, a lawyer of such standing as we have been accustomed to in the past?
My Lords, on the latter point, as the White Paper makes clear, we considered that it would be extremely valuable to have a Minister occupy the role of Attorney-General in terms of the legal advice to be given to Ministers and the Government, as chief legal adviser, and drawing on his or her ministerial role and understanding of the wider ramifications of policies. It follows that the contribution that that person can make by being a Member of either your Lordships’ House or another place is clearly very important. Therefore, I very much accept and endorse the remarks of my noble friend.
Although the Government are very keen to see progress on pre-appointment hearings, I confirm that, for the reasons stated by my noble friend, they will not involve judicial appointments.
My Lords, the fact that the Minister is able to say with a serious face that the proceedings of the cross-party working group are progressing well can lead one to only one conclusion—that the working group is manifestly unrepresentative of the diversity of opinion that exists on this topic. That statement brings to mind the clock that strikes 13 times and casts doubt on the reliability of the rest of its evidence.
Turning to the more substantial aspect of what he said, the agenda that he has presented to us is hugely ambitious—in fact, I would say that it is hopelessly over-ambitious and potentially very dangerous. It starts off as a programme of constitutional renewal but that includes in some cases “reviewing” and in other cases “building upon”, “underpinning”, “recasting” and “enshrining”—a whole range of propositions which, as he acknowledges, are fundamental to the working of our constitution and have evolved historically into conventions which are not always perfect but are well understood in practice. I suggest that there is very grave danger in seeking to transform all these enormously important and extensive matters into legislation—above all, astonishingly, for the most part in one Bill.
The noble Lord, Lord Tyler, appeared to be disappointed at the modesty of this programme and was looking for a more extensive and exciting one. I take exactly the opposite view. It seriously underestimates what Lord Moulton, a distinguished Liberal Peer, said in, I think, 1920, when he stressed the huge importance of unwritten law to almost every aspect of every constitution of this kind—above all, given our history. I take one example—the proposal to produce a protocol which will set out how the Attorney-General and the prosecuting authorities are to exercise their functions in relation to each other. That reminds one of the protocol that emerged from the catastrophic legislation which led to the disappearance of the Lord Chancellor, as we had come to know that role. In that legislation, as the House will recall, describing the conventional relationships between the Lord Chancellor and the Lord Chief Justice required 150 separate provisions in the appendices to the Bill. At the end of that, it was discovered that 50 further aspects needed to be provided for in additional statutory form. If that is an insight into the way in which these matters are to be handled, that really frightens me.
I do not for a moment suggest that the questions addressed by the White Paper, the Green Paper and the Statement are not hugely important.
My Lords, I am bound by convention to comply with what the noble Baroness says. Does not the Minister—and indeed the Government—realise that this overambitious agenda is likely to lead us into ill-considered and ill-thought-out conclusions on a range of matters which deserve immensely detailed and careful consideration? Does he not agree that the agenda taken here exceeds in huge proportion the modest items which President Giscard d’Estaing had to address in drawing up the treaty of Lisbon? That was child’s play. Does he not agree that this is infinitely more ambitious and therefore infinitely more dangerous?
My Lords, it is ambitious and I do not underestimate the importance of conventions and unwritten law. The noble and learned Lord is right that the development of a protocol to be laid before Parliament on the relationship between the Attorney-General and the prosecution authorities will require very careful drafting. I am sure that I can rely on my noble and learned friend to ensure that that is undertaken very carefully indeed.
However, I would also say to the noble and learned Lord that our constitutional arrangements are not set in stone for ever and it is important that they should be developed and renewed as this country develops and renews itself. The questions that that raises about how power can be made accountable are important at the moment as is the need to ensure that we uphold both the rights and responsibilities of citizens. However, I agree with the noble and learned Lord that this needs to be done in a careful and considered way. The establishment of a joint Select Committee and the publication of a draft Bill and pre-legislative scrutiny is surely a sensible and careful approach.
I am well aware of the noble and learned Lord’s views about House of Lords reform. The cross-party group has been established in the context of the vote in the other place for an 80 per cent or 100 per cent elected House. We know from our past history that unless there is political consensus, it is very unlikely that any progress will be made—hence the membership of the cross-party working group.
My Lords, I welcome the Government’s announcement on the repeal of those SOCPA clauses clamping down on protests around Parliament. However, I should like to add that it is slightly unfair of the noble Lord, Lord Kingsland, to claim that the Conservative Benches fought vigorously against them. That tribute has to go to the activists out there with their lone demonstrations—particularly on Wednesdays—showing that the legislation was unreasonable, unworkable and unworthy of this country.
Before I get to my main question, perhaps I may ask the Minister about the people who since 2005 have been given a criminal record for a crime as minor as reading out in front of the Cenotaph the names of those who have lost their lives. What about those whose prosecutions are pending? I come to my main question to the Minister. Are there any examples pre-2005 of access to Parliament being seriously disrupted that the sessional orders did not cope with? It is our understanding that the legislation was introduced to deal with issues of terrorism and not with access to Parliament, the argument which has subsequently been developed.
My Lords, on the substantive question that the noble Baroness raises on sessional orders, there has clearly been a lot of concern about whether some provisions of the SOCPA are necessary and whether they are an inhibitor to legitimate protests and demonstrations outside Parliament. However, there is also concern that if those provisions are simply repealed and problems arise in the future with regard to open and free access to Parliament and issues around noise there will not be sufficient powers to deal with those problems sensibly and effectively. We need to look at sessional orders in relation to the past experience of such orders. We have said that we will look to Parliament to give further advice on those matters and I am happy to take into account the noble Baroness’s comments on that.
My Lords, the consensus that I talk about is consensus between the political parties on the basis of the votes in the other place. Those votes were for two options: an 80 per cent or a 100 per cent elected House. That is the consensus that we seek. The Government have said that they aim to publish the White Paper, as I have already said, before the Summer Recess. Clearly, it is a government White Paper, but we hope that we shall have as much consensus as possible among the other political parties leading on to the next election, to manifesto commitments and, I hope, to legislation. We seek political consensus.
My Lords, I welcome my noble friend’s characteristically clear exposition of the relationship between the two Houses on war powers and treaties and his view, quite rightly, that in these areas—particularly war powers—the primacy of the Commons should be unarguable, if only for the practical reason that it would be a very bizarre constitution that provided for one House to agree to war powers and the other House to disagree. That is not the kind of subject that can be resolved by means of ping-pong. Can my noble friend assure us that the relationship between the two Houses, the powers of the two Houses and the subject of the Cunningham report will need to be central to any discussion—I hope it is to the all-party discussions that are taking place—and to any future discussions about a fundamental reform of this House?
My Lords, I am not unaware of my noble friend’s strong views on this matter. He is absolutely right that, of course, war powers or international treaties must be subject to deliberation about a relationship between the two Houses were this House to be substantially or 100 per cent elected. However, I say to my noble friend that there is no reason why one cannot have a substantially elected second Chamber which, none the less, enables the primacy of the Commons to be maintained.
My Lords, I welcome the comments in the Statement about the senior posts within the Church of England. Will the Minister reaffirm, in the context of the comment on no change to establishment, both the importance of the responsibility of the Church to the nation expressed partly, but by no means wholly, in membership of this House and the importance of some greater independence for the Church of England in making those recommendations to the Crown for senior appointments? There is still a good deal of work to be done with the General Synod in putting together those two important requirements.
Yes, my Lords, the Government would very much welcome further discussion with the General Synod on the practical details of the new appointments procedures. I repeat what I said in the Statement. The Government remain committed to the establishment of the Church of England and greatly value the role played by the Church of England in our national life. The right reverend Prelate will know that Lords reform depends on whether the 80 per cent or 100 per cent elected option is chosen but, of course, we are ever mindful of the contribution that bishops of the Church of England make to your Lordships' House.
My Lords, in the context of the intention of Her Majesty’s Government to repeal statute law in relation to the protection of Parliament from protests in its environs and precincts, I invite the Minister to study an episode that occurred in the first half of the 19th century. I think it was in the context of the bread riots. A volatile mob had gathered outside the House of Commons and, as Members entered, they were kicked, punched and thrown to the ground. They immediately sought to censure the Speaker, who had ordered a squadron of cavalry to clear the approach to the House. They were furious because they considered that the sovereign rights of Parliament, as the High Court of Parliament, had been trespassed upon. That principle is still entirely valid today. It is not a matter of legislation; it is a matter of the sovereign right of Parliament, in its own right, to protect itself in that way.
My Lords, as my noble and learned friend Lord Howe has indicated, this is very much a pudding without a theme. Therefore, the disparate measures encompassed in it will need extensive scrutiny by Parliament. Some specific proposals are to be welcomed. I very much agree with the proposal to place a statutory duty on the Lord Chancellor to report on Law Commission recommendations. In the Statement, this is separate from the Constitutional Renewal Bill. If it is to be a statutory requirement, would it not make more sense to include it in the Constitutional Renewal Bill?
On Lords reform, the Minister said that the intention of the cross-party group is to work towards getting the parties to put proposals in their election manifestos. In other words, it is a party aim. As such, the proceedings of the group are not covered by any of the exemptions in the Freedom of Information Act. Can we now see the papers, not least because they seem to have been released to the Financial Times?
My Lords, I am grateful to the noble Lord for his comments about the Law Commission. We have already heard from the noble and learned Lord, Lord Howe, about the dangers of covering issues in too comprehensive a way. Clearly, we will need to feel our way forward as to how best to take forward Law Commission proposals. The noble Lord did not mention post-legislative scrutiny; he might have done because that was contained within a statement made by the Leader of the other place last week. The proposal that a law be reviewed by the relevant government department, and then by Parliament, three years after it has been passed, is an important one. I suspect we will debate that in due course.
As for Lords reform, the noble Lord will know that there have been some freedom of information requests, which have not found favour with my department. It really is important that the participants in the cross-party talks can talk freely in seeking the agreement that I have already referred to. I urge noble Lords to ignore leaks and speculation, and to be a little more patient. When the White Paper is out, we will have many happy hours debating it.
Health and Social Care Bill
Second Reading debate resumed.
My Lords, I am tempted to start by agreeing with the words of the respected noble Baroness, Lady Cumberlege. The words I am referring to are in relation to what she had to say about doctors, but maybe that will not be helpful.
I welcome the Bill and support much of it. However, there are areas, particularly in Part 1, that require greater clarity. My brief comments at this stage will be confined to Parts 1, 2 and 4. Time will not allow me to comment on other parts.
On Part 1, I strongly support the creation of a single regulator—the Care Quality Commission—with power to regulate for public and private providers of care and to impose penalties for breach of regulation. On the whole, the public favour having regulators and wish to see the regulator as independent, working in the best interests of patients and public, and with powers to deal with breaches. The regulator has to be able to demonstrate improvement. While having a regulator may in itself act as a lever to encourage care providers to achieve higher standards, the robustness of the regulatory requirement and threat of penalties will bring about the greatest change for the better.
The Bill appears to give the regulator power of independence and power to impose penalties, but is the scope of the powers wide enough and what will be the outcome indicators by which the regulator’s effectiveness will be judged? The very helpful document from the Department of Health says:
“The role of the regulator is to provide independent information and assurance that systems for safety and quality are in place and working well”.
In my view, when patient safety is compromised often the whole system of the care pathway needs to be examined. For example, the noble Baroness, Lady Neuberger, mentioned the case of Northwick Park where the maternal death inquiry had implications for lessons to be learnt by the trust, the PCT, the strategic health authority and community care.
I am aware that the department has had helpful consultation in this and other areas, and the Committee stage will allow us to consider that consultation and explore further what is in the Bill. We need to be clear about the standards that the healthcare organisations need to meet with regard to patient safety. I declare an interest here—I should have declared many interests past and present both in health and academia—as I am currently the chairman of the Patient Safety Agency in England and Wales. Currently all organisations have some system in place for patient safety, as defined in the current basic standards, but they fall far short of the organisation having to demonstrate that it has effective systems of reporting of patient safety incidents, learning from such incidents, implementing change and demonstrating improvement of care. We need to define the standards that the organisations have to meet.
Part 2 deals with the regulation of health professionals. I support the proposals but have concerns about one—the appointment of responsible officers for monitoring locally the conduct and performance of doctors. I support the creation of the Office of the Health Professions Adjudicator. My brief experience of sitting on adjudication committees of the GMC makes me certain that this is the right way. If I have any concerns about OHPA, they are about costs and how they will be contained when OHPA itself does not have to raise finances.
Although others will no doubt have concerns about the civil standards of proof in relation to fitness to practice proceedings, I do not. I agree with the civil standards of proof, particularly as they will be applied flexibly. The medical profession, too, seems to be divided in its views—colleges and the GMC on the one hand and the BMA on the other. My concern about the appointment of a responsible officer is how effective that post will be, particularly if it is not properly resourced. It is not a role that can be combined with that of medical director, as proposed by some. I cannot see excellent clinicians rushing to become responsible officers.
I want to comment briefly on a matter that is currently being consulted on, but which is not yet part of the Bill—the current statutory education committee of the GMC becoming part of the GMC. I believe that the proposal is right, particularly as the role of the GMC—more so now than in the past—is moving towards medical education in all its stages from undergraduate to continuing medical education. The current education committee does a fantastic job, particularly given that, in the past, the council of the 120-member GMC was dysfunctional. With the new and expanding role of the GMC in education, it is right that the education committee should become part of it and not separate by statute, particularly as PMETB could also now be part of the GMC. I also believe that it would enhance the GMC’s role in working with universities—another area than needs to be explored. I know that my noble friend Lord Turnberg, who is not in his place, had qualms about that. I would go further: it should also carry out national assessments of undergraduate and early-phase specialist training. Again, it would be important for the education committee to be part of the GMC.
It would be surprising if I did not now comment on Part 4, which relates to the health in pregnancy grant. A grant of £190 will be payable from the 25th week of pregnancy to provide support for general health and well-being in the later stages of pregnancy. The evidence that financial costs leading up to birth are a major concern for women comes from a study by the charity Tommy’s. The grant is payable for a pregnancy, but approximately one in 35 children born is a twin or triplet. The costs for parents of twins are more than doubled; believe me, I know. Mothers carrying twins or triplets also have higher nutritional and other needs. Often, they have to stop work earlier and are at greater risk of complications. Should the grant not be for the number of children and not per pregnancy, and why choose 25 weeks when their nutritional needs start much earlier in pregnancy?
Time does not allow me to comment on other parts of the Bill. I look forward to examining the Bill’s many proposals in detail in Committee.
My Lords, I thank the Minister for his concise introduction to this debate, and to welcome the Bill. I want to do that primarily in terms of how it aspires to draw together the provision of healthcare and of social care. There has long been a regrettable division between the provision of health and social care, particularly for elderly people. I believe that the Bill will be a major contribution to closing that gap.
The Care Quality Commission will have a major task in that area, and my first concerns lie with whether it will be adequately resourced to achieve that. It has a hard act to follow—particularly, perhaps, in social care. The Commission for Social Care Inspection has gained a good reputation in that field, and the new commission needs to build upon the work of CSCI and the other commissions, rather than starting again from scratch. In that respect, I hope that the Bill may be strengthened to make it still clearer that this drawing together of health and social care provision needs to happen at local as well as at national level. I am still made aware, far too often, of situations where one branch of local provision fails to co-ordinate its activities, visits or knowledge with that of another. There is work to be done if we are to provide the co-ordinated service that we crave.
Two particular points would greatly enhance this part of the Bill. First, there needs to be a better and more independent complaints procedure. That omission from the Bill, if I have deduced it rightly, seems eccentric. For there to be, in many cases, no recourse except to an ombudsman means either an expensive bureaucratic nightmare or, effectively, no provision at all. Secondly, and more crucially, I join with those who stress the need to use this opportunity to extend the Human Rights Act to private and voluntary sector care providers. The Minister referred briefly to that in his introductory remarks, and I hope that he will return to it when he sums up. These providers are performing functions of a public nature by any ordinary definition, but the Leonard Cheshire case ruling in 2002 means that elderly people do not have the rights to which they believed they were entitled and to which the Government intended them to be entitled. I applaud the care and love that is provided within the private and voluntary sector in health and care provision. That needs to be in the context of human rights legislation, and I am not reassured by the indication by the Minister in another place that that might be better left to a bill of rights. This is a particular, urgent situation. It needs to be dealt with now.
I note and welcome two further points. First, I support the changes in the professional regulation of clinical governance. The Office of the Health Professions Adjudicator is a major advance, provided that it is properly funded, and I welcome the Government working with the GMC on this issue to increase public accountability and public confidence. Secondly, I follow the noble Lord, Lord Patel, in giving a particular welcome to the health in pregnancy grant. I, too, wanted to make the point that it would be good if it were based on the number of children rather than on the pregnancy itself. I hope that in the long debates that will take place on the Bill there will be no attempt to go back from the commitment to a general and universal grant for health in pregnancy. Pregnancy is a time when many women face or fear particular worries, especially in the light of the current pressure on the midwifery service. Anything we can do to help and support women at that time in their life is very welcome, and this provision will help and encourage that.
This is a good Bill. With small but crucial amendments, it could become a landmark Bill, particularly in the collaboration of health and social care services. I hope that the Government will respond to those needs, particularly by looking at ways in which that can be emphasised in the local context through the work of the Bill and of the commission.
My Lords, I rise broadly to support the Bill and to raise a few concerns about Part 1 on the Care Quality Commission. At the outset, I should declare my interests and confess some of my sins in previous incarnations. I am currently the part-time chairman of the NHS London Provider Agency. I also advise a number of organisations that work in healthcare, all of which are in the Register of Members’ Interests. While I am making a clean breast of things, I should own up to being the Minister who conducted the arm’s-length bodies review which in 2004 recommended that the Healthcare Commission and CSCI should be merged, so it is not my noble friend Lord Darzi who noble Lords should blame. I think that was part of the right policy of the Government to reduce the number of public sector regulators. When listening to the noble Baroness, Lady Cumberlege, who wanted light-touch regulation, it is worth bearing in mind that a smaller number of regulators might be a good start in that direction.
It should therefore come as no surprise that I support the unified Care Quality Commission. I understand some of the concerns of those who work in social care that they might be swallowed up by the health leviathan—I have been a director of social services—but having separate inspectorates has hardly produced equality of treatment in terms of attention and financial resources. With an ageing population, health and adult social care are locked into a symbiotic relationship whether they like it or not. As the right reverend Prelate said just now, this kind of change will ultimately benefit service users and make it easier to ensure we provide adequate access to social care expertise. No doubt in Committee we shall get into the issues around how we can safeguard and ensure that social care expertise is available to the new commission, as well as dealing with some of the serious human rights issues in relation to those in social care outside public provision.
I recognise that the chairs of the Healthcare Commission and CSCI have reservations about the timing. I have great regard for Sir Ian Kennedy and Dame Denise Platt—who have done fantastic jobs—but there is never going to be a right time for merging these commissions. Once you have announced the decision in principle and have the legislative slot, you inevitably create some uncertainty both among service users and staff. It is important that we move forward as speedily as possible on this, particularly as there are a number of areas which have been outside regulation, in many ways inadequately for so long. We badly need more consistency in this area in Part 2. I am pleased that we are going to make those changes in and around the healthcare professions outside medicine.
I note with a great deal of interest the special pleading of the BMA in its briefing on this Bill, but doctors are completely out of line with their own special dispensation of a criminal standard of proof on the facts before a GMC fitness to practice panel. As the GMC now recognises, those panels are not criminal courts; they are there to protect patients when there is evidence that a doctor’s health, conduct or performance calls patients’ safety into question. The GMC, under the skilful leadership of Sir Graeme Catto, has handled well the negotiations and discussions within the profession in this area. I hope that we will support the Government’s approach to this and not spend too long discussing these issues in Committee.
I will spend the rest of my time on some of my concerns with Part 1. Let me be frank; it is disappointing that we have reached this stage of the Bill with so much uncertainty around the scope and regulatory requirements under Part 1. I am pleased that we have at least now the Government’s consultation document on the framework for the registration of health and social care providers. I have not had time today to study in detail this 100-page, complex document, but from a quick flip through it I am still left in doubt about the definitions affecting scope in Clauses 4 and 5. I welcome the fact that in this new document the Government are moving towards including GPs and primary care in the new regulatory framework. Yet the issue should not still be in doubt. Some 85 per cent of the public’s contact with the NHS is through GPs and primary care. If we are to have a risk-based regulatory system, as the Government rightly want, there can be no doubt about the inclusion of this sector in the regulatory framework.
Where do we stand on some other areas, particularly preventive health activities and commissioning of services? The new consultation document seems to be all about providers of care and not about commissioners. The latter can do more damage to a population’s health through their lack of competence than any provider can. In the diagrams in the original 2006 consultation document, and in the Secretary of State’s response in November 2007, the integrated regulator still had a significant role in respect of commissioners. It was certainly always my view as a Minister that the regulator should be able to intervene when a PCT commissioner was consistently failing the local population and the SHA’s response was inadequate. It would be helpful to know where health Ministers stand on this issue now.
I do not have time to go over in great detail some of the issues around regulatory requirements and their relationship to standards, but it is an area we need to explore carefully in Committee. I am particularly concerned that we do not rush to abandon the standards for better health which came out of the 2003 Act. I am pleased to see the noble Earl, Lord Howe, in his place because he and I laboured long in the vineyards on that Act and he will be participating in this Bill.
I need to mention briefly three other areas. First, on the status of the chairman of the new commission, advertising the post at a salary of less than half that paid to the current chairmen of CSCI and the Healthcare Commission gives, if I may put it in the most understated way, the wrong signals. I commend to my noble friend and his ministerial colleagues a quick look at the salaries paid in the Financial Services Authority, Ofcom and Monitor, to name but a few.
Secondly, a significant failure of performance over time often involves both the use of resources and quality standards. It is important that the new regulator should have the authority, comparable to that of Monitor in relation to foundation trusts, to intervene when there are continuing problems over both finance and quality of care issues. There is a strong relationship between trusts that get into financial difficulties and the quality of care. They often take incompetent decisions on quality of care as a result of financial difficulties.
Lastly, there is the important issue of the position of patients, service users and carers in the role and work of the new commission. Given the volume of briefing that we have all had on this, we will need to spend some time on it in Committee. There are a number of issues. One is whether there should be something on the face of the Bill; another is how to define the duty of the commission; and a third relates to the membership of the commission and some of its committees. These are complex issues but we need to give a stronger signal in the legislation about the duties of the regulator to patients, service users and carers, who do not get much of a look-in in this legislation. I commend the Bill to the House, but I believe that we will need to spend some time on Part 1 in Committee.
My Lords, I am always happy to follow the noble Lord. Many of the points he made I wished to address in some ways.
Before starting, let me declare my interests as president of the Abbeyfield Society, a charity with several hundred homes across the country providing care and special care for elderly people; as a non-executive director of BUPA; and as a consultant in an executive search firm involved in many of these areas—although, unfortunately, not in the search to find the chair of the Care Quality Commission. If we had been involved, the advertisement would have been much more punchy and would achieve the result we all want. About that I dare say no more.
The Minister in his opening comments said that he wanted quality to be the connecting thread that runs through all we do. That is fine. But how we get there is a different matter and the Bill is all about the devil being in the detail. The rhetoric is fine; the reality is extraordinarily complicated. A number of noble Lords—to many of whose views I will give great weight—will today offer important contributions, but I am particularly disappointed by the absence of the noble Lord, Lord Currie. He was responsible for the integration of the five regulators covering telecommunications, broadcasting, radio and the spectrum industries, as well as taking on new powers, in an extraordinarily effective way.
The Minister is not surprised that there is a cynicism within the sector and that change fatigue is widespread as there have been so many reorganisations of the health service since 1997 at considerable cost, perhaps £3 billion. Two of the bodies to be merged, the Healthcare Commission and CSCI were created only in 2004. CSCI was announced just 17 days after one of its predecessor bodies—the National Care Standards Commission—began work. This helps the Minister to understand why he has an audience which is slightly jaundiced about these matters.
The National Audit Office produced an excellent report recently which examined the creation of Ofcom and identified the lessons for public sector mergers of regulatory agencies. I commend the checklist of recommendations to the Minister. I hope that he will say that he has addressed all of them. They include basing the decision to merge on a balanced judgment of whether the projected benefits justify the costs of carrying out the merger; clearly identifying and accounting for the costs and setting a separate budget; carrying out targeted due diligence as early as possible; establishing relevant measurable benefits to be achieved, and measuring and monitoring progress against these objectives; ensuring regular communication with staff and stakeholders, reinforcing the merger rationale and providing regular updates; avoiding a decision-making vacuum by clearly defining those accountable for each phase; and appointing senior managers early, especially the board, chief executive, and finance and HR directors. I commend those lessons since it is evident that the result at Ofcom has been remarkably successful.
I agree with the noble Lord, Lord Warner, about the appalling lack of detail about scope and regulatory matters. The rhetoric, again, is fine, but the sectors of social care, healthcare and mental health activities are extraordinarily different. I applaud the right reverend Prelate’s saying that the proposal will bring health and social care closer together, but will it? How do we know? Different sectors are being pushed together, but the detail of how that will work in practice leaves many of us needing to be convinced.
The impressive Dame Denise Platt, chair of CSCI, commented that the Bill,
“lacks a clear set of objectives to work towards and hence the new body risks a loss of direction and a loss of focus on the views and experiences of the people who use services, their families and carers in particular”.
Again, I say that the voice of carers is so important.
I echo the points made about how GPs’ primary care organisations are to be included. They represent 35,000 separate organisations. I again draw attention to the scale of what the Government are seeking to do; that is, to move from small, singleton practices to massive medical institutions such as Barts and the Royal London—Imperial being the alma mater of the Minister. We also need much clearer boundaries of regulation.
I endorse a point made by the Healthcare Commission about proportionality. If too many low-risk activities are brought within the regulator’s scope without a sufficient increase in resources, there will be a limited capacity to focus on the key risks and promote improvement. What consideration has the Minister given to providing other sources of assurance for lower-risk services?
At the same time, is the Minister satisfied that the new framework will be sufficiently flexible to accommodate and respond to the rapid ongoing transformational change in service provision and patient pathways? It is well understood that, perversely, regulation can have a fossilising effect. It is enormously important that the new structures do not inhibit change and innovation.
Is the Minister satisfied that the Bill reflects the fundamental shifts that are under way in the boundaries, organisation and delivery models in care services? We seem to be witnessing a move to 100 per cent foundation status for public sector hospitals and mental health trusts. There is likely to be more vertical integration between foundation trusts and primary care. New models and entrants are being developed in community and home-delivered care. Taken together, they will redefine the scope, shape, integration and aggregation of services, making it even more difficult to achieve a consistently level playing field for regulation.
One or two other concerns were raised by my colleagues. The independence of the regulator is critical, as the noble Lord, Lord Patel, pointed out. For the same department both to fund and regulate the service is not ideal. Therefore, it is all the more important for there to be proper safeguards for the regulator’s independence; otherwise, where resources are constrained, difficulties can arise, as well as a perception of a conflict of interest, even if hotly denied in practice.
The Minister needs to give more detail on penalties. Do we always expect deregistration to result in closure? I doubt it. In some of the big institutions, that would involve patients travelling long distances. The sums of money—one penalty is identified at £50,000—seem to have very little comparison, for example, with those measured by the Health and Safety Commission.
The noble Lord made a point about the importance of commissioning. Surely that is critical. Will the CQC have powers to make specific recommendations to the primary care trust, the local authority, the local health authority and the Government? What will its powers be in relation to commissioning?
I echo the points made about the importance of patients and users having a voice. The National Consumer Council rightly said that we do not expect the CQC to become a consumer advocate. But it needs to consider and involve the public in reaching decisions that affect us all. Healthcare is increasingly a partnership between the professionals and the public. Critically, in a mixed economy, the Minister's briefing states that,
“the public rightly expects the health and social care services they pay for through their taxes or privately to be safe and of the highest quality”.
That again is so much easier said than done. Is the Minister content that the protection will be the same whether the care is privately or taxpayer funded? There is a real concern about the watering down of the regulator’s role to make information available.
In conclusion, I would like the Minister to look again at the protection of the special expertise of the Mental Health Act Commission. The work that it does is entirely different from the work of the social care and the health regulators. It is critical that a sector that experiences 400 deaths a year, a quarter of which are said to be unlawful, does not lose and find itself ignored in this process of change.
I welcome the Bill. It needs a great deal of attention. I hope that Sir Kenneth Calman, who has recently been appointed to chair the commission for the review of the Scotland Act, and who worked so closely with my noble friend Lady Cumberlege and me, is pleased that at long last the Public Health Act 1984 is to be updated and modernised.
My Lords, I, too, congratulate the Minister on introducing the Bill, and I thank the many organisations for their excellent briefings.
The Health and Social Care Bill seeks to improve the regulation of health and social care by building on the experience of the current regulatory systems in practice. At the same time, the Minister is conducting a review of the NHS. Disraeli once said that change is constant in a developing country. That is never more so than in the NHS. However, there is another constant; there are always patients and users requiring a quality care of some sort, but necessarily in the traditional patterns of care.
The Bill sets out a framework, but, having read briefings from various organisations and from my own observations and experience in the NHS, I suggest that it requires considerable strengthening to ensure that high-quality care is delivered within a rapidly changing health and social care sector that is designed to meet the needs of individuals, including involving people in planning and managing their own care, and ensuring that there is a seamless service crossing the pathways of various organisations. As noble Lords have already said, the Bill requires very detailed scrutiny to support such an agenda. The briefing papers of several organisations refer to the need for a clear statement of the regulatory objectives.
Clause 2(3) sets out the need to involve patients and services so that their views are central to an assessment of healthcare needs. But the regulator needs to have an explicit statement of appropriate mechanisms and channels through which the commissioners can communicate with the public and service users. While appreciating that the Government do not wish to be too prescriptive, there is a need to communicate the commissioners’ independence and means of engagement.
In Clause 2(5), I question the description of the function of the commission. Just to “encourage” the improvement of activities is a rather weak description of its purpose. I hope that the Government will consider strengthening the function to “promoting” improvement, especially with regard to safety and quality of care. I, like the Minister, have a passion for improving patient care.
Clause 16 allows for the scope of registration to be set by regulation. That is a fundamental step so that public expectations on the appropriate scope of the regulations are clear. They need to be clear, for example, on the risks to patients and service users. The Department of Health’s set of core standards are not optional. Parliament needs to be reassured that this section of the Bill will provide a level of assurance to patients, at least as high as the minimum core standards. These minimum core standards need to be of a high quality, emphasising the requirement for safe and effective care. Again, it is important that there is a “care line” of management of the service as well as a “service line”. Those two lines—“care line” and “service line”—are needed for the rigorous monitoring of effective care.
Past experience of the Healthcare Commission has shown that a deficit of sound systems in place and deficient checks and balances often leads to the eye being taken off the ball, and disaster follows. Like the right reverend Prelate the Bishop of Ripon and Leeds, I believe that removing the functions of receiving and dealing with complaints from the regulator to improve the local handling complaints is a retrograde step. Experience over many years demonstrates to me that despite every endeavour to deal satisfactorily with complaints, there will be occasions where a complainant is genuinely not satisfied. The suggested referral to the ombudsman is the only route of appeal in the Bill.
The commissioners will be well placed to adjudicate on whether there is substance in the complaint—usually pointing to a level below that of minimum core standards—to explore quickly and to avoid a spread of poor practice. I hope that the Minister will reconsider removing the right of the commissioner to investigate complaints that involve a level below the minimum core standards.
Under Clause 42, the regulator of healthcare needs to be able to take a joined-up view of performance covering commissioning, provision, quality and value of health care. How the pathway of care operates across organisations, GPs, hospitals and social care is concerning to patients. Under Clause 42, as well as suggesting periodic reviews, the commissioner is able to investigate specific incidents that put the health and safety of patients at risk. That will include looking into the decisions that have led to the situation arising, such as the commissioning.
The standards set by the Secretary of State in Clause 41 have no regulatory back-up. Implementation is dependant on commissioning as a lever. The standards should be linked to the periodic reviews undertaken by the regulator. So that the performance of healthcare organisations against those standards is clear to the public and patients, this should be linked with the regulators duty to promote improvement.
Clauses 44 and 46 need to be strengthened to deal with the identified failure in the system, not just by the provider. When problems arise, experience has shown that the issues are usually complex and that all parts of the health economy—including the strategic health authorities, Monitor, PCTs as well as providers—need to take action. The regulator needs powers to act in such circumstances. The performance manager is responsible for rectifying the issues and not the regulator. The regulator needs powers to make recommendations to all bodies. The regulator needs to be able to move quickly to protect patients and clients where there are significant concerns.
Clause 107, on the standard of proof in the fitness to practice, amends the Health Act 1999 by imposing a civil standard of proof for all regulatory bodies and the Office of the Health Professions Adjudicator. The Royal College of Nursing and UNISON are suggesting that where the facts of the alleged misconduct point to a criminal case, a criminal standard should be applied. My experience as a chairman of the UKCC Professional Conduct Committee and as a lay member of the GMC means that I am inclined to agree with that, although I am open to suggestion. So many Peers have already said that the civil standard should go forward that I am willing to be persuaded.
I look forward to taking part in the passage of the Bill. I am sure that this is going to be a long and interesting debate. I apologise to Members of the House for leaving before the conclusion of the debate. The Minister is aware of my early departure—I am going to be experiencing, I hope, a high quality of care.
My Lords, I begin by declaring my interests as set out in the Register of Lords’ Interests, in particular my role as chairman of BUPA, which provides independent health and social care to 8 million people worldwide. I also passionately believe in and support the National Health Service. Both elements—publicly owned and independent—are, and always will be, indispensable parts of a single national system for taking care of all the citizens in our country.
When we debate healthcare in the UK, all too often the focus is on the NHS alone. Yet the independent sector is more important than ever, providing services directly to patients, residents, insurers, and to the NHS itself. Going forward, all of us must think in terms of partnership, not rivalry.
Sir Thomas Beecham once remarked at dinner, “This pudding has no theme”, but I believe that this Bill has a very clear theme. To my mind, the theme here is precisely one of breaking down redundant barriers and replacing confusion with continuity. In particular, I hope that this legislation will help consign to the dustbin of history the false dichotomies between public and private, and also between healthcare and social care.
Though I may, in due course, raise slight doubts about some of the detail, I offer the principles underpinning the Bill my wholehearted support. In future, all healthcare and social care service providers will be covered by a single body using consistent methods as that encourages, in the words of the Bill,
“the improvement of activities to which its functions relate”.
The word “improvement” is critically important. The new Care Quality Commission must build on established best practice within its predecessor bodies, while also remaining flexible and ready to devise new approaches in response to the new challenges as they inexorably emerge. That will enable it to develop its critically important core responsibility; namely, guaranteeing minimum standards of acceptable care for everyone. The people of this country—all the people of this country—deserve nothing less.
I am mindful that CSCI in particular has expressed reservations, not so much about the principle of amalgamation but more about its timing. I support the proposed schedule for the merger, while also recognising that there is attendant risk if the merger process does not run smoothly. We must be alert to that risk. From bitter personal experience in many mergers over time, I know that they always take longer than you expected, they are always more complicated than you expected, and the surprises that they spring are always unwelcome. A merger as important as this one must go smoothly and to plan. That will necessitate everyone going into the process with both their eyes and their minds open. Exemplary management will be essential for success and the immediate priority must be to ensure continuity of effective but judicious regulation.
In the medium term, we must also ensure that social care is not treated as the Cinderella of this story. Social care providers are under considerable financial pressure, having received a substantially lower average increase from local authorities than the NHS has received in the coming year. The state inevitably creates considerable strains when it places additional requirements on providers without commensurate increases in income. We all know that demand for care will go on rising relentlessly. We must acknowledge, however, that the NHS and social care are now entering a period in which the annual growth in their budgets will roughly halve compared with the extraordinary surges of recent years. In 2006, a BUPA report forecast that scenario and explored how pressures on funding were likely to build up further in future. Given the likely constraints on public expenditure, the report predicted a 10 per cent funding shortfall by 2015. Those fundamental numbers have not changed. Good regulation is therefore essential, but health and social care in this country cannot and will not improve sufficiently through better regulation alone. Financial carrots and regulatory sticks work best not independently of one another, but in tandem.
Nor will our care sectors achieve the high ambitions we set for them if the new Care Quality Commission takes too narrow a view of its remit. For instance, the commission must give due priority to looking at how more effective prevention of ill health can be achieved. Prevention is better than cure, and cheaper for the nation. One of the best opportunities to influence people's well-being comes while they are at work. The Government's initiative on health at work, headed by Dame Carol Black, has been very timely and her positive conclusions must not be allowed to gather dust. Preventing workplace accidents is of course important, but on its own that is a slightly old tune. The key now is also to engage employers fully in a positive and active campaign to promote better health in and through the workplace.
When at its best, care in this country is already as good as you will find anywhere. That excellence at the cutting edge must be maintained and developed, but we must also endeavour to reduce the inequalities in the standard of care. That is why the new commission is so important. It will ensure that all care comes up to an acceptable minimum standard, through rigorous inspections, especially of the weakest performers. It will apply common minimum standards across different operators, sectors and regions. Those minimum standards should be just that—no more, no less—but providers should routinely seek to exceed them as the general standard of care improves over time.
To conjure with that great Liverpool manager Bill Shankly's famous quip, I say that health and social care policies are not just matters of life and death—they are even more important than that. They enshrine our nation's social contract with the sick, vulnerable and infirm. They create a healthier nation, and a healthier nation is not only a happier nation but a more competitive and productive nation. The Bill represents a crucial step on a long, arduous and endlessly challenging journey. Of course that journey never ends, but our aspiration must be for the United Kingdom to have nothing less than the best health and social care anywhere in the developed world. We must aim to deliver that. The Bill marks a significant milestone on that critical journey for our country. On that basis, it is my sincere hope that it will enjoy the broad support it deserves from all parts of the House.
My Lords, I am pleased to contribute to today's debate on such an important Bill. Not only have I worked in social care policy and, in a more limited capacity, health service policy, but I declare an interest as a constant user of health and social care services.
For too long, health and social care services have been provided in fragmented systems that put process before people. Disabled and older people, who are the main users of these services, often suffer the consequences of divided provision. A single regulatory body for health and care services could be a welcome step in ensuring closer co-operation. When I am going to bed, I need both my ventilator and a personal assistant. The ventilator is healthcare, and the person is social care. Both are equally essential to my life.
However, as former chair of the Social Care Institute for Excellence and a founder of the National Centre for Independent Living, I share a little concern that social care may become the junior partner in the new inspectorate. Healthcare has always enjoyed a substantially higher political profile, significantly greater funding and strong public understanding and support. In contrast, frankly, social care has had to work its socks off to gain a fraction of health's economic and political power and public attention. That has always baffled me. Like millions of others, I could not function without social care in exactly the same way as I could not function without healthcare. However, the Bill has inherited the imbalance between the status of health and social care. We will have to think carefully in Committee to combat that and make it work effectively and equally.
Today, I will confine my remarks to two areas of concern. First, I question whether the Bill does enough to secure and build on the achievements of the Commission for Social Care Inspection. As it stands, the proposed Care Quality Commission is slightly more concerned with health services, as I said before. I am particularly anxious that the potential imbalance will result in a medical response to society's social care needs; we in the trade call it the medical model. Medicine is generally about curing or easing one's condition, which is important. Social care is much more about removing barriers and providing external support. In social care, there is a long history—much longer than in healthcare—of empowering and involving service users to find solutions to their own problems. When I look at the Bill, I am struck by the lack of a strong duty to involve people who use health and social care services.
The Bill requires the Care Quality Commission to “have regard” to the views of the public. It also allows for advisory panels to be established. In my long experience in the field, that is simply not enough. One need only look at the work of the Commission for Social Care Inspection’s “experts by experience” to see the benefits gained from maximising user involvement. There, CSCI involves service users directly in quality assurance and inspection processes. The Care Quality Commission needs to build on that but go much further. We should expect something more robust in the Bill to ensure that service users are not only partners but coproducers in the work of the Care Quality Commission.
Thankfully, we live in an age when patients and service users are no longer passive recipients of professional care services. With the advent of direct payments, and now the personalisation agenda, thousands of people who benefit from social care support have taken control and responsibility for the care they receive. Thousands—nay, millions—more will do so over the coming years. The Expert Patients Programme is also empowering people to manage their conditions. It is, therefore, essential that a modern integrated commission adopts the principle and practice of user involvement in significant and clear ways. The Bill must surely be the place for the principle to be stated.
That brings me to the second and last principle that I would like the Bill to underpin. It is the need for a clear and unequivocal commitment to embedding human rights principles throughout the CQC. The Joint Select Committee on Human Rights recently reported on the Health and Social Care Bill. In relation to the new commission it said:
“We recommended that the proposed merged inspectorate for health, social care and mental health should adopt a human rights framework to underpin and inform the new inspectorate's work and make it more effective in fulfilling its statutory duties”.
I wholeheartedly endorse that and will be looking for it.
During the passage of this Bill in your Lordships’ House I hope that human rights are given adequate attention. I refer, for example, to the urgent need to ensure that residential care homes inspected by the new Care Quality Commission will be subject to the Human Rights Act. As a commissioner at the Equality and Human Rights Commission, I believe that health and social care services must actively uphold the Human Rights Act and the dignity of people using services. To date the Human Rights Act has been undermined in social care. For example, public funds are used to support people in care homes which have no obligation to uphold their residents’ human rights. There are moves afoot to cover residents who are not self-funders but not those who self-fund. Surely this is unacceptable. How can the Care Quality Commission inspect and regulate a care home where of two residents sitting side by side one is found to be protected by human rights law and the other not? There is broader evidence of human rights failures in health and care services. I need not detail the cases of abuse and neglect exposed by the Healthcare Commission and the CSCI at an NHS Trust in Cornwall in 2006 and the Sutton and Merton PCT last year. These cases are relevant to this Bill. The existing pattern of failure will continue if equality and human rights do not underpin the work of this new inspectorate.
My Lords, I start by congratulating the Minister on his introduction of this very important, complex Bill with such economy of words and such clarity. I intend to speak only to Part 2 in relation to regulation. From these Benches, subject to some tuning of Part 2, we propose to give it our general support.
My father’s grave has two non-biographical words on it—family doctor. Those words seemed to us to combine a description of the work he did with the respect in which he was rightly held by the community in which he worked. But of course he flourished at a time when, incredibly, there were more doctors than administrators in the health service in the county borough in which he worked—an idea so fanciful now as to seem completely ridiculous. His general expression of surprise that I was capable of anything useful turned to a look of pained consternation when I told him a few months before his death that I had been appointed as a lay member of the General Medical Council.
I remained on the General Medical Council as a lay member for 10 years. I shared that experience with my noble friend Lady Neuberger, who was there at the same time as me, as well as the noble Baroness, Lady Emerton—although we were not there at the same time—and the noble Lord, Lord Christopher, with whom I served. I think we all found it an interesting and educational experience. I observed from that experience that professional self-regulation was actually not a soft option for the doctors who appeared before the General Medical Council’s disciplinary committees. I often had to restrain the doctors on the committee from passing the most vicious sanctions on doctors who, it seemed to me, had simply made mistakes. That brings me to mistakes. I do not think anybody should assume that mistakes are over. The old system made mistakes and I am afraid the new system will make mistakes. Mistakes, and openly discussing the effect of those mistakes, are part of the dynamics, I fear, of the open government to which we aspire.
However, there always was a problem with the old General Medical Council, which had such distinguished chairmen as the noble Lord, Lord Walton, and others who sit in this House. The major problem was its size and its ridiculous diversity but the problem from the professional self-regulation viewpoint was its credibility to members of the public. Those of us who have regarded professional self-regulation as actually quite a good system, if properly administered, have had to recognise that its time came and its time has now gone. As Lady Justice Smith in her wonderful report on Dr Shipman recognised, an independent body is now needed, and I congratulate the General Medical Council, and particularly its president, Sir Graeme Catto, on approaching these changes so realistically, objectively and constructively.
The Office of the Health Professions Adjudicator is an appropriate response to meeting aspirations and the need for public confidence. However, I invite the Minister to reflect that the new body should retain some of the strengths of the old General Medical Council—for example, the strength of having real expert doctors serving on it and not merely as expert witnesses. To those of us who have sat as jurors judging the facts of cases, the presence of people who really understood clinical treatment was invaluable. Furthermore, the privy council system that appoints lay members should not simply go for a cross-section of the lay community. It is right that they should be lay members but it is important that they should have a range of experience which will contribute to a reasonably expert debate on the issues being faced by the committees when they are judging the behaviour of doctors.
As to the standard of proof, I disagree strongly with the British Medical Association. The civil standard of proof now applies across the professional regulation world. It is more flexible than it sounds. The more serious the allegation, the higher the civil standard of proof required. It provides the judicial flexibility which enables tribunals to consider cases in proportion to the seriousness of the issues presented.
The Bill provides for legally qualified chairs. I do not object to the use of legally qualified chairs for some tribunals for some cases. As a lawyer I would not be expected to and I do not. However, in some cases of real medical complexity, the use of a medically qualified chair with an appropriately qualified legal assessor may provide a better dynamic for the fair decision of the case than simply having a legally qualified chair. It sounds superficially attractive but it certainly is not a cure-all for all cases. I am sure that there will be some cases in which it would be appropriate to have a legally qualified chair—for example, a case involving very complex issues of law. In those cases, however, it is important that the legal assessor and the legally qualified chair should not come into conflict. I suggest that in those cases where there is a legally qualified chair, there is no need to have a legal assessor as well, and there is a consequent saving of money in that approach.
My final point about the new structure for professional regulation relates to case management. Building the structures is only part of the picture. Those of us who are experienced, for example, in fraud cases in the criminal courts and those who are involved in terrorism cases in the criminal courts and the more complex cases know that case management is as important as the structure. Whatever rules are promulgated, they should ensure that the chair, if necessary with appropriate legal advice, should be able to avoid the overformalisation of hearings. There should be power within the tribunal itself to request and even demand evidence which will help to resolve the issues, thus not merely relying on types of evidence which the adversaries choose to present. Preliminary proceedings should seek to resolve simple cases by the simplest of procedures and preparatory hearings should be aimed at shortening proceedings, not lengthening them.
In the end, this requires resources. For cases of professional discipline to be resolved fairly, there has to be a well-resourced prosecution, as it were. The presentation of the case should be on a basis that serves the consumer and is fair to, for example, a doctor if he is in the “dock”. There also have to be resources for the tribunal to be able to pay for the time of those involved in the adjudication without placing them under undue pressure. Those who remember it will recall vividly the pressure placed on the system by the Bristol case. It was intolerable for everyone involved. The lesson from that must not be forgotten.
My Lords, I thank my noble friend for setting out so clearly the aims of this Bill and I hope to be able broadly to support its passage through your Lordships’ House, provided we use the time here to address some of the significant concerns I have about it. I want to say at the outset that, along with others, I believe that we are considering this Bill at the wrong time. I share the views of CSCI that we are creating a single regulator prematurely. However desirable it is in the long term to have a single regulator, it would have been better not to create the unavoidable turbulence created by such proposals at this particular time. The current system has been in place for too short a time and was set up as the result of great turbulence and change only four years ago. Doing things too quickly does not normally lead to good regulation; and mergers, as those of us who have been involved in them in public and voluntary sectors know only too well, carry their own disruption and inevitably lead to lack of focus on the issues and too much focus on structures and positioning.
In addition, the Bill was somewhat rushed through the other place with insufficient time for proper debate. Certain other actions—notably the inadequate and ill-considered advertisement for CQC officials—leads one to think that there is a hurried and ill-thought-out air about the Bill. However, we are where we are and I am a pragmatist, so I am confident that the Bill will emerge from this House more fit for purpose than I consider it to be at present. In that regard, I am delighted that it is to be committed to a Grand Committee, which allows for productive and helpful exchanges, and I am delighted that Ministers have expressed willingness to accept changes for improvement.
I accept that the current framework for regulating adult health and social care is fragmented and that it may be unsuitable for the pace of change that we are seeing in these services. We are seeing more and more care provided across boundaries of health and social care. I welcome the fact that social care is finally emerging from the shadows and being seen as less of a poor relation of, and more an equal partner with, healthcare. The Government have taken a lead on this, promoting debate and confronting the policy challenges of providing social care to an ageing population in which living with major disability is more common.
In matters such as human rights, tightening eligibility criteria, the position of carers in our society and independence for people who use these services, the Government have shown a real willingness to listen. But they must now ensure that these lessons are carried forward where the regulation of social care services is concerned. We can do this in two ways—by championing and driving improvement in social care and by ensuring that the voices of users and carers are as strong as possible.
The CQC, when established, must drive the improvement of social care. It should have a clear mission statement enshrined in legislation, which makes clear its independence from government. This mission statement would set out clear regulatory objectives and a clear duty on the new body to drive improvement in the health and social care sectors. The Healthcare Commission and CSCI currently have such a duty; under the Bill, the CQC would not have such a remit, but instead would focus on the narrower objectives of registration and inspection. It is all very well to have a lighter regulatory touch, but we do not want to throw babies out with the bathwater.
In producing its reports such as The State of Social Care in England, CSCI has provided real direction to the sector and has highlighted areas where implementation of policy has not been successful, as well as providing concrete evidence about the performance of services. For example, this year’s report highlighted the problems caused by eligibility criteria for social care services and recognised the heavy strains that this places on families and carers. CSCI’s expertise and the way it involves services users and carers in its activities is well respected across the sector, as colleagues have said.
The Care Quality Commission should not be a passive observer of the way that services are delivered but should have a proactive role in supporting the reform of social care and demonstrating excellence. This work should include the publication of independent reviews, which the CQC should be able to issue as soon as it is established without the permission of the Secretary of State. It is essential that the CQC is given sufficient power and resources to maintain a focus on social care that is not dominated by health—building on the valuable expertise developed by the CSCI. This could be achieved by creating specific posts with responsibility for social care on the board and in the senior management team of the CQC. Although Ministers have stated on several occasions that social care should have parity in the new commission, none of the amendments that would help to achieve that were accepted in the Commons stages of the Bill.
I turn now to issues involving users and carers. The Minister of State for Health said on Report in the other place that,
“the Government believe that involving and listening to users, patients, their carers and the public will be a central responsibility for the new commission”.—[Official Report, Commons, 18/2/08; col. 77.]
However, Carers UK, in which I declare an interest as its vice-president, is concerned that measures to achieve this vision are not present in the Bill in its current form. Carers should be recognised in the Bill as key stakeholders in the provision and regulation of health and social care services, and the CQC should be given duties to consult and involve them alongside patients, users and the public. At the moment the Bill does not mention carers once. It is essential that we change this, given that the health and social care system relies to a huge extent on the unpaid care provided by families, friends and neighbours. There are more carers than there are health and social care professionals, and the replacement cost of the unpaid care is £87 billion a year. The fact that I give that statistic endlessly does not make it any less important, because it is equivalent to the entire budget of the NHS in England. Carers are more likely to have a thorough knowledge of the quality of services through their role as an advocates and negotiators for the person for whom they care. I remind your Lordships that often carers are responsible for funding care on behalf of a family member.
The Putting People First concordat, published by the Government in December 2007, which sets the direction of policy for social care, recognised the responsibility of service providers in treating carers as experts and partners in care. The Bill should reflect this and other policy developments, not least the forthcoming national strategy for carers to be published in June of this year, which will recognise carers’ places at the heart of the health and social care system.
The new commission must take full account of particular perspectives of social care in this country, putting human rights values and the views and experiences of people who use these vital public services at the centre of its activities. Otherwise, as currently drafted, the Bill runs the risk of moving the health and social care sector backwards by setting up a regulator that works to yesterday’s policy agenda, to the detriment of those who use such services. These are big issues to be confronted, but we can and must confront them as the Bill passes though your Lordships’ House.
My Lords, I congratulate the Minister on his extremely lucid introduction to the Bill. Because of time constraints, I shall not devote any of my speech to Part 1, except to say in passing that the new Care Quality Commission will have a colossal task in trying to fulfil the responsibilities of the three regulators that will merge to form that single body. Members of that new commission will have to be told that they will have a colossal burden of work if they are to carry out its responsibilities properly.
I turn particularly to Part 2, which deals with the regulation of the medical profession and perhaps eventually of the optical profession. I declare an interest as president of the General Medical Council between 1982 and 1989. I remember Lord Hailsham, when Lord Chancellor, giving a lecture entitled “How to ruin the professions”. In it, he said that professional self-regulation was one of the glories of a learned and civilised society and that the alternative—namely, regulation by the state—was too fearful to contemplate. However, as the Minister and the noble Lord, Lord Carlile of Berriew, have indicated, a number of situations over the past few years eroded to some degree public confidence in that principle of self-regulation. From time to time, in response to perceived crises, the Government have indulged in the creation of large numbers of new quangos intended to regulate medical matters. Do we really need, for example, the Council for the Regulation of Healthcare Professionals—or as it now is, the Council for Healthcare Regulatory Excellence? Do we need a continuing National Clinical Assessment Authority at a time when the revised GMC is going to undertake the new powers defined in this Bill?
That is water under the bridge and I say that there are many helpful clauses in the Bill. When I was president of the General Medical Council, following the Merrison royal commission, we had a majority of elected members. The revised GMC will have 24 members—12 lay and 12 medical. They are all to be appointed. That is appropriate, though it is paradoxical that the Government have decreed that there shall be no election of doctors to the new body at a time when they are looking towards a wholly elected upper House—but that is another matter entirely. The present Medical Act requires that the president of the General Medical Council should be a registered medical practitioner. I hope that that will be maintained.
I approve of the proposal made by Lady Justice Smith in her excellent report that we should have an office for the regulation of health professionals and that this should involve panels appointed by that body to hear cases where, for instance, a doctor is alleged to be no longer fit to practise, either because of behaviour or even because of health. When I was president of the GMC, I chaired many hearings of the discipline committee—later the conduct committee. It was an article of faith that on every panel where a doctor’s future was being considered, there should be another doctor from the same branch of practice, on hand to give advice. This is an issue of considerable importance. Some, though not all, paediatricians believe that if doctors in the field of child protection had sat on the panels that heard the cases of Sir Roy Meadow and Professor David Southall, the outcomes may have been different.
In Clause 98 of the Bill, there is, as the noble Lord, Lord Carlile, said, a very helpful proposal relating to legal assessors. I agree that it is not necessary on every occasion to have a legally qualified chairman of the fitness-to-practise panel. That chair could, on different occasions, be held by an experienced doctor or by a lay person. Where I disagree, bearing in mind the fact that the legally qualified chair could be a highly qualified solicitor, is in thinking that in all instances there should be a highly qualified Queen’s Counsel as a legal assessor advising the panel. Clause 99 concerns clinical and professional advisers. I trust that the Minister can assure me that on these panels the clinical and professional adviser will have a status comparable to that of the legal assessor, who is there to advise on points of law. I believe that these advisers should have the authority to advise the panel on issues relating to the field of practice of the doctor who is being examined by that body.
The question also arises of the standard of proof. I, too, believe that the civil standard, applied flexibly, is appropriate. My understanding is that the BMA has begun to recognise that this is likely to be the case. When we come to the responsible officer, the burden of responsibility on the medical director of a regional trust would be enormous. Will the Government consider going back to the old Three Wise Men process, where the responsible officer was a senior doctor, with a lay member, perhaps of the authority, and a doctor, perhaps in another capacity, to advise? To have a single individual is probably going a little too far.
Finally, I comment on the educational issues to which my noble friend Lord Patel referred. The Medical Profession (Miscellaneous Amendments) Order 2008, which I understand from the Minister is likely to be incorporated into the Bill, will remove from the education committee of the General Medical Council responsibility for the oversight and regulation of medical education at all stages. It will hand that over to the General Medical Council. My understanding from consultations with Sir Graham Catto is that the education committee will appoint three committees with the appropriate academic members, looking at undergraduate education, postgraduate education—taking that over from the Postgraduate Medical Education and Training Board, which has not been as successful as we wished—and continuing education. I hope that the Government will approve this.
I end by saying that I welcome the provisions of the Bill. I look forward to hearing more about the Darzi report on the future of the NHS. When I was privileged, in 1996, to give the BMA lecture celebrating the 50th anniversary of the passage of the National Health Service Act in 1946, I said that I had lived through 14 reorganisations of the National Health Service. Since 1996, in the past 12 years, there have been 24. May we take it that, if and when the Darzi proposals on the future of the National Health Service are accepted and brought into law, we can look forward to a period of stability and that the Government will leave the NHS alone to get on with its job without developing more quangos? With that comment, I welcome the Bill.
My Lords, I welcome the Bill in principle, if it is to provide a seamless, well organised service better to integrate health and social care and to provide substantial improvements in the quality and level of service provided. There is no question that for many individuals and for many public health issues, better outcomes can be achieved by health and local public services working together. The problem at this stage is that the Bill provides a framework for the establishment of the Care Quality Commission, leaving the detailed implementation to regulations that are to follow. However, as others have said, we appreciate the efforts of the Minister and of the department in providing us with adequate briefings.
Structural reorganisation is complex and takes time. I fully agree with the Healthcare Commission that the transition to a new regulatory system needs to build on momentum established so far, with a consistency of purpose and of approach. I shall concentrate my remarks on Part 3, so far not discussed, and the widening of public health powers. I shall then talk briefly on the regulations governing registration and standards, the patient and the public, and the health and pregnancy grant. I declare an interest as chair of the Independent Advisory Group on Sexual Health and HIV. My first concern with the widening of the public health powers to include all infections—the all-hazards approach—is that, for the first time, this will include sexually transmitted infections instead of confining the application of public health powers to a list of named infections, such as cholera, plague, smallpox and typhus, as was previously the case. HIV was not subject to these powers.
Of course, public health powers are vital to control serious contagious diseases which are spread by everyday contact, and it is understandable that the Government wish to have an extensive set of powers to deal with any future health emergency. It is less clear, however, why such powers should be applied to sexually transmitted infections such as HIV, infections which are not transmissible through everyday contact. Significant human agency from two people is required for the transmission of HIV, and the risk of transmission from a single incident is very low.
Unfortunately, HIV remains highly stigmatised, and Clauses 123 and 124 of the Bill extend significant coercive powers to include HIV without appropriate justification. I am sure that HIV was not in the Government’s thinking when drafting the Bill but, as it stands, it will have consequences for people living with HIV, as there is no provision to stop the proposed powers being used in relation to such people.
In addition, the coercive powers available to JPs in relation to the risk of infection of disease are extended by the Bill. Under the old legislation, a JP could make an order for a medical examination, the removal of someone with a notifiable disease to a hospital or the detention of a person in a hospital. In this Bill, a JP can now additionally quarantine, restrict where an individual goes or with whom they have contact, order disinfection or decontamination, absent them from work and require an individual to attend training or advice sessions on risk reduction.
The absence of any reporting and monitoring mechanism will have significant implications for civil liberties, particularly given our obligation under the Human Rights Act. It is crucial that there is the means to ensure that the use of these powers is effective, proportionate and consistent. I understand that officials are in discussion with the National AIDS Trust and I hope that a proper monitoring process can be introduced in the regulations that are to follow.
At Second Reading in the other place the Secretary of State said that it is essential that the Bill ensures that the regulatory system can accommodate future patterns of service delivery and that, to do that, the Bill must establish a level playing field for healthcare consumers through registration of all service providers based on common standards. That, for me, raises two questions. First, how will the proposal for a single set of requirements for registration be applied across all regulated activities? Although the compliance criteria supporting the requirements will be specific to the type of service that is being regulated, I still believe that this unified approach to the registration of both social care and health bodies may be difficult to achieve in practice. Only in the most general sense can one relate a large acute hospital to a community contraceptive clinic or a small private care agency. They have differing pathways of care, differing service provision and differing patient requirements. I support the idea that NHS providers should be subject to registration for the first time but a great deal more thought needs to be given to how the registration process will work.
Secondly, Clause 41 gives the Secretary of State the power to prepare and publish statements of standards in relation to the provision of healthcare by PCTs and to amend these from time to time. Under Clause 133, PCTs will have a duty to make arrangements to secure continuous improvement in the quality of healthcare provided by them. The standards will be benchmarks of expected behaviour and good practice, and I believe that they should be defined in the Bill. Against that background, can the Minister clarify for me the commission’s role in monitoring and assessing compliance with these centrally determined standards, and can he say whether the appropriate funding will be made available so that the standards can be met and risk reduced?
One criticism of the Bill is that it is too provider-focused and does not concentrate sufficiently on the needs of patients and the public. A purpose of the legislation is to provide a truly patient-and-people service, covering all healthcare providers in the public and independent sectors. However, it can fulfil that purpose only if patients and the public have confidence in the work of the regulatory body and in its ability to maintain the public interest and hold professionals to account. The regulator needs to have a stronger duty to involve patients and service users. Currently, the Bill requires the Care Quality Commission only to have regard to the views expressed by, and on behalf of, members of the public. As Which? forcefully expresses in its briefing, there is a crucial distinction between merely “having regard to” and proactively going out to engage with users.
The advisory committee proposed in the Bill will, in the main, be comprised of providers of services, but they will in no way provide the views and experiences of the patients, their carers and their families. In the words of the noble Baroness, Lady Campbell, that does not go far enough. Allied to that, there has to be an adequate complaints procedure which is clearly defined so that people understand the process. Providers should have a statutory function for dealing with complaints, and that function should be part of the registration requirements.
Finally, I wish to say a brief word about Part 4 of the Bill, which provides for the payment of the health and pregnancy grant as a universal benefit. There is clear evidence that universal benefits are likely to reach more women than are grants that have to be applied for. It is encouraging that the financial costs of pregnancy for women and their families have been recognised, possibly for the first time. It is hoped that, with support and advice from health professionals, the grant will encourage pregnant women to lead a healthier life. I had some reservations about the timing of the grant but, having talked to possible recipients, I am persuaded that 25 weeks into pregnancy is about the right time and that it ties in well with other maternity support.
There are many issues still to be resolved, whether they relate to the period of transition and the hiatus caused, the inspection and enforcement regime, the powers and sanctions of the commission, funding concerns or the guarantee of independence from government. All those points will be considered in detail in Committee to ensure that the Bill brings about a more integrated approach to health and social care provision to provide a safe and quality service for the people who use it—the patients.
My Lords, I congratulate the noble Lord, Lord Darzi, on the way in which he introduced the Bill, and I apologise to other noble Lords for missing some of their speeches. I had to try to juggle my appearance upstairs at the committee of the noble Lord, Lord Sutherland, taking evidence on taxonomy and systematics, and being present to hear the excellent speeches in this Chamber.
The Bill contains fundamental changes to the way in which healthcare organisations and practitioners are regulated. Some of these changes are of great concern and there is a very real risk that a number of the provisions in the Bill—particularly the reduction in the standard of proof and the creation of responsible officers—will seriously undermine the confidence of healthcare professionals. Patients must be confident that they will receive the same standards of care whether treatment is delivered in a primary or secondary care setting. The Minister must convince us that bringing primary medical care into a national regulatory framework is the right approach.
I declare an interest as a registered dental practitioner who is indemnified by the Medical Protection Society.
A further concern is the establishment of the Care Quality Commission. I note that the Government’s response to their consultation paper, The Future Regulation of Health and Adult Social Care in England, suggested the possibility of bringing NHS primary medical care providers within the regulatory framework of the CQC. The quality of NHS primary medical care is currently monitored, but not regulated, by the Healthcare Commission. The Government have suggested that this additional layer of regulation would be justified because general practice is becoming increasingly complex, with more services being delivered by a diverse array of providers.
I would be concerned if an additional tier of regulation for primary medical care services was so onerous and intrusive as to interfere with the day-to-day care of patients. I also question how the new framework would relate to the new proposals for local regulation in the form of “responsible officers” at PCT level and the existing national system of professional regulation. Changes to the delivery of primary care have already changed the personalisation of the doctor-patient relationship—the provision of out-of-hours care is a good example—and further regulation could make this even worse.
Clause 116 enables the Secretary of State to make regulations requiring healthcare bodies to co-operate with each other, particularly in connection with the sharing of information which relates to the conduct or performance of any healthcare worker and which may show that that worker is likely to constitute a threat to the health and safety of patients. Any policies introduced to overcome the current limitation in information-sharing must include safeguards to protect innocent healthcare professionals from being unjustifiably accused of being a potential risk to patients. I hope that the Minister will be able to specify the type of information that will be recorded, who will have access to it and in what circumstances, and whether it will be publicly available.
Can the Minister also provide some assurance that the regulations will set out the categories of information that can be held and to whom it can and cannot be disclosed? Sharing and collating relevant information is important to protect the health and safety of patients, so the regulations will need to be accompanied by clear guidelines for the quality of information to be included and assurance given that unsubstantiated, subjective rumour and gossip will not appear on the practitioner’s record.
The Minister will surely agree that information should only be disclosed where there is a legitimate justification in the interests of patient health and safety. Unrestricted access without regard to confidentiality is not in the public interest as it will only damage relations between employers and employees and could unjustifiably damage individual reputations. It takes many years to build up a reputation and only days to destroy it.
I have serious reservations about the proposal for the creation of a new role of responsible officer which I understand, in practice, would be the organisation’s medical director. While there are benefits in establishing consistent, transparent and fair mechanisms of regulation at a local level, I would like to see provision in these reforms for a better use of existing clinical governance processes and structures at a local level to enhance mechanisms for the early identification and rectification of problems.
The new role of responsible officer will entail a significant extension in a medical director’s responsibility, authority and workload. It is contemplated that responsible officers will be respected, senior doctors who will have the credibility and support of doctors, managers and patients. On a practical level, I cannot see how there will be a sufficient number of senior doctors with the professional standing envisaged who will be not only willing, but able, to assume such onerous responsibilities.
An experienced clinician will not necessarily be endowed with the skills needed to be a successful manager or leader. The wrong approach at local level can have disastrous consequences, including a protracted and adversarial process which is destructive rather than constructive in outcome.
There is currently a lack of high-quality and consistent training for the role of medical director. I hope that the Minister will agree that it is essential that responsible officers are properly trained and bring the necessary qualities of fairness, objectivity and investigative robustness that will enable them to command colleagues’ confidence and respect.
It is crucial that the Office of the Health Professions Adjudicator commands the confidence of the profession by ensuring that proceedings are procedurally fair. To this end I agree with the noble Lord, Lord Walton, and support proposals made in another place for there to be a legally qualified chair of fitness to practise panels which, in my view, would be sufficiently experienced to ensure effective case management and that standards of procedural fairness are met in hearings which are particularly complex. The importance of a legally qualified chair is even greater as panels will have to grapple with the application of the sliding civil standard of proof.
In conclusion, I am pleased to see provision in the Bill for the appointment of legal assessors to advise fitness to practise panels on points of law. Legal assessors bring essential legal expertise, guidance and an element of independence to the proceedings. I hope the Minister can assure me that the legal assessor will continue to be available to panels even where a legal chair has been appointed.
Many of the reforms set out should be welcomed, but it is already obvious that there will be some late evenings during the subsequent stages of the Bill.
My Lords, as the train manager apologised for the inconvenience caused by a faulty goods train ahead of us, my heart sank and the inevitable happened. I apologise to the Minister for missing his opening sentences today, despite running as fast as I could through the Underground. I appreciate the House allowing me to speak.
I declare my interest as a person registered with the GMC and a practising clinician. This Bill is very important. It brings together three organisations which have effectively been doing a good job in recent years and have been seen to be driving up standards. However, I have a concern that the merging may have happened with undue haste. The new regulator’s £150 million budget will save possibly 25 to 30 per cent of the current cost of regulation. However, I feel that we risk losing the memory of those individual organisations—an organisation with a memory is often the key to the detection of problems. Piecing together the little bits of the jigsaw puzzle often reveals an imminent problem, which is preferable to waiting for one to explode across the headlines.
It is partly for that reason that, like others who have spoken this afternoon, I feel it is important to have the principles in the Bill—a mission statement that includes principles that do not bind the commission to do, or not to do, one or other action. Rather, it should underpin the whole philosophy: equality; non-discrimination; the dissemination of good practice to drive up standards; and supporting research into different patterns of patient care to improve that and to cover the patients in whichever sector, be it healthcare or social or mental health. Patients move between providers and are often—as my noble friend Lady Campbell said so eloquently—simultaneously supported by more than one provider. Are we really sure that this legislation is proofed to look at the whole patient pathway?
I turn to one of the most important sources of information; that is, the patients and users. I am not sure whether simply consulting them is enough, and I am certainly not at all convinced that carers are being adequately consulted here. Another group of carers that often finds it extremely difficult to express its opinion is that of underage carers. There are many underage carers in the country and I do not see them using any of the mechanisms laid out here at all.
As the noble Baroness, Lady Pitkeathley, said, unpaid carers provide care that would be costed at about £87 billion, or the whole NHS budget for England. Carers have knowledge of the quality. They are the eyes and ears of the service—they observe the service on a day-to-day basis and are often the advocate, negotiator and funder for the person for whom that care is being provided.
I am concerned that the Care Quality Commission may not be as independent as it ought to be. It should be able to publish completely independent reviews without the Secretary of State’s permission. It needs to be independent from Government to expose outcomes of poor funding, mistaken policy or inappropriate commissioning—after all, we spend £85 billion on commissioning. An encouraging improvement is probably not enough; I would prefer to see a duty to ensure that standards are taken up. Of course, as noble Lords have said, there must be minimum standards in place. However, that is not enough—it will not drive up quality of care.
Quality in social care is measured by the patient experience, often without the hard outcomes that can be measured in healthcare. Philosophically, the process of inspection and driving up standards needs to be subtly different in approach. My noble friend Lady Campbell has brought her enormous experience to this area and I am sure she will bring it into further debates on the Bill. Like others, I question how those in self-funded care are protected. Are we setting up a two-tier social care system with unequal human rights, depending on where people’s funding comes from when they are in receipt of care?
Another concern I have is the delay in the implementation of new processes that could leave a gap in which poor practice could grow unnoticed and where work to introduce improvements could go on the back burner for financial, or other, reasons. In this hiatus year before full implementation, can the Minister say how adverse incidents will be detected and investigated?
My noble friend Lord Walton dealt in great depth with the change in regulation of healthcare professions and I agree with almost everything that he said. However, we must not lose the feedback that comes from learning through the investigation process and the ability to set standards, so that when adjudication occurs all that has been gained during the investigation is not forgotten.
There are great complexities in different areas of clinical practice; medicine is not a universal field. I would certainly agree that technical knowledge needs to be represented on a panel. With a majority of lay members, there is a danger that the experience may be too limited. We have seen that happen with local research ethics committees, where lay members end up focusing on consent forms because they do not have the expertise to understand the science of the projects put before them. It is never more important to have that in-depth understanding than when a doctor’s long-term livelihood is on the line. In addition, perhaps the chair of the adjudication panel should just be appropriately trained rather than assuming that a legal qualification equates to appropriate training.
The responsible officer system will probably work reasonably well in secondary care, but there are huge challenges in primary care and even more so for those working wholly in the private sector. The medical profession has grave concerns about the civil burden of proof. In part, I believe that is the fault of the GMC and the BMA, in that the situation has not been explained adequately to the profession as a whole. There is a problem in selling the change to the whole profession, but the profession must be keen to instigate remedial action very early against its own members.
The last area I want to address is primary care itself. The regulation of primary care is difficult and the Bill seems to have avoided it, although the consultation document published today implies that primary care will be brought within the scope of the Bill. The Royal College of General Practitioners has done a lot of work on setting standards for general practice, but not all GPs are members of the college and the college has no levers on them.
It is important that complaints, adverse incidents and near misses are collected and examined, as they are in secondary care. Otherwise there is a real danger that patients in the community could effectively be disempowered if there is poor governance of primary care services and no formalised mechanism for feedback, not only from patients but also from carers. The Picker Institute has suggested mechanisms such as the Service User Panel. I commend that concept to the House because we need feedback. Indeed, the devil is in the detail and we need to examine that detail.
My Lords, I start with a health warning. I have swollen tonsils, which refuse to disappear, and I hope that I shall not fade out.
This Bill is being debated against a background of increasing hardship for many thousands of disabled and older people who are being refused essential health and social care support for independent living. Three-quarters of local authorities in England are restricting their services only to people with critical or substantial needs according to CSCI’s State of Social Care in England report. Meanwhile many of those still eligible for state funding have little choice and control over their lives because we have a system still rooted in notions of welfare and dependency.
This Bill gives us the opportunity to create a regulatory system and a legislative framework that is concerned not merely with the quality of care that people receive but also with enabling all those who need state support to live with dignity, to enjoy real autonomy and control over their lives and to contribute to their communities. After all, that is the vision that underpins the Government's recently published Independent Living Strategy and the adult social care concordat. The challenge now is to embed that vision in health and social care law and to support the major culture change that we seek in the delivery of public support services.
The remit of the Care Quality Commission needs to reflect and support that government commitment to independent living. However, the current duty set out in Clause 2 to have regard to,
“the need to safeguard and promote the rights and welfare of children and vulnerable adults”
is too weak to enable the CQC to play the role it could and should play in empowering those who use health and social care services to be full and equal citizens, enjoying maximum choice and control over the support that they receive and full respect for their human rights. I agree with other noble Lords that this goal should be elevated to a principal or overarching duty for the new regulator so that all stakeholders have absolute clarity as to its purpose.
Moreover, as other noble Lords have said, we should ensure that the CQC is given a strong duty to involve patients, service users and the public, in place of the rather weak duty to have regard to the views of the public. Involvement is the new standard. It is about those who use services participating in policy making as equal partners. Evaluation of involvement programmes—for example, CSCI's Experts by Experience programme which involves service users in inspections—demonstrates that involvement adds value and leads to improved services. Will the Minister ensure that CQC maintains and builds on the involvement of service users in future social care inspections?
A fundamental principle of the disability equality duty is that public authorities involve disabled people in setting priorities for action and assessing the impact of policies. Most recently, the Local Government and Public Involvement in Health Act 2007 heralded new measures, including the establishment of local involvement networks and a duty to involve local people in joint strategic needs assessments to ensure that users of health and social care have a much stronger voice in the running of local services. The CQC needs to play a major role in supporting those changes and monitoring their effectiveness.
With regard to the new regulatory framework, I hope that the Government will accept the need to ensure that it also reflects current aspirations for promoting equality and human rights. This is the approach adopted in my noble friend Lord Ashley's Disabled Persons (Independent Living) Bill which makes all private and voluntary care homes and agencies subject to the Human Rights Act, with duties on providers to inform service users of their human rights.
In the 21st century our expectation must be not simply that we will be cared for and spared indignity should we need support, but that we will all, whether living in the community or in a residential care setting, be able to continue to enjoy time with our families, to make friends and to access leisure and educational opportunities—in other words, to have a life. I hope the Government will want to make progress on this and adopt the amendments suggested by the Joint Committee on Human Rights. In particular, I welcome the Minister’s assurance that the Government are working to resolve the loophole which deprives people in private and voluntary-sector care homes of the protection of the Human Rights Act.
Right at the end of the Bill—in Part 5, entitled “Miscellaneous”—is a welcome, if limited, set of social care reforms. I welcome, in particular, the extension of direct payments to those without capacity. The voluntary organisation Sense, for deafblind people, is particularly concerned that the regulations address some of the difficulties which their members have faced. I shall return to that in Committee.
Sadly, other outstanding social care reform commitments are not addressed in the Bill; for example, the commitment in Improving the Life Chances of Disabled People strategy to revise the definition of a disabled person for community care purposes. As noble Lords will know, the current definition under the National Assistance Act 1948 refers to the “handicapped” and to “cripples”. The strategy argued that:
“This definition is out of date, offensive and does not provide a useful starting point for enabling disabled people to fulfil their roles as citizens”.
We were promised consultation on a more appropriate definition, followed by a change in the law.
Finally, I understand the Government have pledged, in their proposals for modernising complaints Making Your Experience Count, that advocacy should be a right for all across health and social care. I would be grateful if the Minister could give me any information on what progress is being made in that area.
My Lords, the Minister was so quick off his mark this afternoon that, without the same excuse as the noble Baroness, Lady Finlay, I missed the first couple of minutes of his introduction, for which I apologise. However, I heard enough to enable me to join in the congratulations of other noble Lords on his lucid presentation of the Bill. I just hope that he will not feel by the end of the debate that he has been given too much of a poisoned chalice. I hope, too, that I will be able to get through without coughing and spluttering so much that I need to invoke the Minister’s assistance. I add my thanks to those of other noble Lords to all those who have furnished us with such a wealth of valuable briefing in advance of the debate.
I am not one to bash the Government merely for the sake of it. Except, perhaps, when talking about criminal justice, one usually wants to welcome the broad principles of a Bill and suggest how it might be made even better. Alas, it is not so easy for me to do that today. I very much doubt that the Minister will be able to say at the end of the debate, as I know Ministers like to, that the Bill has been broadly welcomed on both sides of the House. One would have to say, having listened to about half of those who have put their names down to speak, that the Bill has received, at best, a mixed reception. Even those who have supported it at the highest level of generality have indicated their concerns about the lack of detail, and the fact that quite a bit of the detail that is there is wrong and will need to be returned to in Committee.
There are, to be sure, things to be welcomed in the Bill. I was going to mention the provisions in Part 3 on public health, until I heard the speech of the noble Baroness, Lady Gould. One can certainly welcome, with others who have spoken, the extension of direct payments, with safeguards, to people who lack—or may have fluctuating—capacity. I shall mainly concentrate on Part 1 and the Care Quality Commission, which takes up a good half of the Bill. There are even things to welcome here, such as the more focused and better targeted enforcement powers, and the fact that the new chair of the CQC will be subject to pre-appointment scrutiny by a Select Committee. But these are just minor alleviations of something which is fundamentally flawed. Greater integration of health and social care services is doubtless a good idea, as the noble Baroness, Lady Campbell, has so graphically illustrated, but it does not follow from this that you ought to integrate the systems of regulation. One size does not necessarily fit all. The needs of health and social care regulation are very different, as Sir Ian Kennedy said in a statement provided to the Health and Social Care Public Bill Committee in the other place. His remarks concerned not only timing, but substance:
“The health and social care sectors are significantly different, so different models of regulation will remain appropriate, despite the new legislation. Dominating the healthcare sector are large publicly funded providers with many highly technical services. The social care sector comprises 26,000 mostly smaller, privately funded providers, mostly concerned with care which is non-technical in which matters such as dignity are at the fore. As a result, regulation in healthcare is more information-based, and can, therefore, be more confidently risk-based, than in social care, which is more based on visits by way of inspection”.
In merging health and social care regulation, the Government have added two and two and come up with five. Perhaps it would be more correct to say that they have tried to put 11 into four and found that it does not go. This merger of the Healthcare Commission, CSCI and the Mental Health Act Commission stems from the Government’s mania for rationalisation—specifically, in this instance, a bee in the bonnet about merging 11 public service inspectorates into a Procrustean bed which is only big enough for four. This will be the third or fourth major reorganisation in six years, depending on how you count them. The second, as we have heard, was announced just 17 days after the first had taken effect. We saw with this the demise of the Commission for Patient and Public Involvement in Health and patients’ forums, whose abolition was announced just six months after they were set up, except that they had to be extended no fewer than six times because the Government could not get their act together.
This is no way to run a railroad. Nothing is given a chance to bed down properly before it is uprooted again. Even those who support the merger in principle have made it clear that they think the timing is wrong. The present commissions are working well and were just getting into their stride. Can the Minister say in what way he thinks the regulation of health and social care will be improved by this merger? Have the Government followed the recommendations of the National Audit Office regarding the merger of public sector regulators? Have they undertaken due diligence, cost-benefit or risk analyses? Have they established measurable success criteria for the merger? The upshot may be worse than a failure to produce a benefit: it may do harm. CSCI and the Mental Health Act Commission have major concerns that they will be the Cinderellas of the new CQC and be rolled over by the health juggernaut. The Government need to go back to the drawing board and rethink the whole thing.
If they are bent on proceeding with the idea in some form, at the very least there need to be safeguards in governance and structure for social care in the form of a separate committee, or at least a dedicated commissioner. I prefer a statutory committee, such as the Equality and Human Rights Commission has for disability. There must also be a senior director for social care, reporting directly to the board.
There are other problems with the Bill. If it is to be fit for purpose, it needs to contain a clear set of regulatory objectives, such as other commissions have. Clause 2(5) is not nearly clear enough. There needs to be a set of principles, enshrining in the Bill such core values as the promotion of equality, non-discrimination, a human rights approach and due regard for the interests of social care. The voice of users also needs to be much stronger. They should be involved and not only had regard to. No one thinks the present advisory committee is nearly strong enough. The independence of the commission needs to be much more firmly anchored. The obligation in Clause 2(4) to have regard to the directions of the Secretary of State is unpromising in this regard. The Bill delegates too many detailed matters to secondary legislation and requires ministerial approval for a substantial range of matters where it has not been required before.
I need to say a word about just one more matter. The Bill will give us another chance to discuss the problems caused by ordinary residence disputes. I raised this last year, with the support of the noble Baroness, Lady Howarth, and others, during proceedings on the Local Government and Public Involvement in Health Bill. The Minister was as helpful as she could be. She promised to make three small changes to legislation and these are in the Bill. But they are largely technical and I do not think they will change a great deal. The Government promised to update guidance in 2004. Could the Minister please tell the House when they expect to fulfil that commitment? Guidance cannot eliminate disputes completely, so I am also concerned that when disputes arise they can drag on for months, and even years. I hope the Minister will be willing, in Committee, to look constructively at some suggestions for how we might improve the process for authorities and care users alike.
My Lords, I declare an interest as chairman of the Mental Health Act Commission. While, as a rule, turkeys do not vote for Christmas, I support the broad intentions of the Bill. My concern is not to retain the commission as a separate organisation, but rather to ensure that its essential function of protecting the rights of detained psychiatric patients is not lost in the transfer of responsibilities to the new regulator, the Care Quality Commission. It is this aspect of the Bill that I will speak to briefly, covering five key areas.
It is important to note that the Mental Health Act Commission is more of a watchdog than a regulatory body. It is the eyes and ears of Ministers, and indeed Parliament, in relation to psychiatric detention. It monitors the ways in which Mental Health Act powers are used to detain and care for psychiatric patients. There are 107 part-time public appointees, who regularly and frequently visit hospitals, mainly unannounced or at short notice, and meet detained patients in private, reporting concerns to the hospital’s management. In many ways, it might be thought of as the psychiatric equivalent of the prisons’ inspectorate, although the detainees that it watches over are, for the most part, not offenders, but people with the misfortune to suffer from a serious mental disorder that warrants the deprivation of their liberty. They are some of the most vulnerable people in our society.
I was heartened by the Secretary of State’s speech in another place, in which he said:
“I emphasise again that the Bill brings the vital role carried out by the Mental Health Act Commission into the heart of the care quality commission. That will strengthen the monitoring of the Mental Health Act 1983, and offer increased oversight of the treatment of patients subject to compulsory detention. I know that the MHAC places great emphasis on its visiting programme, covering each hospital and each ward that accepts detained patients. I expect the new commission to continue that approach”.—[Official Report, Commons, 26/11/07; col. 38.]
I am glad that the Government intend that the commission’s visiting approach should survive its organisational demise, and I recognise that its visiting powers are replicated in the Bill. I also thank the Minister for echoing those issues in his opening remarks. Nevertheless, empowering the Care Quality Commission to visit detained patients, or expecting it to do so, is not the same thing as requiring it to do so. The Care Quality Commission will have a very broad and varied focus and many pressures on its resources. I therefore want to be assured that it will be required, rather than empowered or expected, to maintain a focus on the legal and human rights of detained patients, to visit hospitals regularly and frequently and to meet in private with detained patients. Regular and frequent visits to providers are the only way to ensure that patients’ rights are protected and that the potential for abuse or poor treatment of patients is minimised.
Recent scandals such as those in learning disability services in Cornwall, Merton and Sutton, where MHAC visits did not extend because of the legal status of the patients concerned, illustrate only too well what can happen if services are not visited regularly. Although, unfortunately, we cannot say how many abuses or incidents we prevent through visiting, even with a commissioner-visiting resource that equates to only 15 whole time equivalent staff, the MHAC finds misuse of the law and extremely worrying aspects of poor patient care on a weekly basis. In addition, many services are unsafe for the very patients they are designed to protect. We make numerous reports of ligature points on wards with seriously ill and suicidal patients, and frequently see overcrowding and high occupancy levels, well above 100 per cent with sleeping-out practices and a severe lack of space.
Being a member of staff working in this type of environment is very stressful, yet there are many dedicated people who work hard and contribute a great deal to caring for this population. Many staff welcome the MHAC’s involvement, without which they might not be able to bring some of these serious issues to the attention of their managers. Regular and frequent visiting is required as a matter of course for this group of patients, and it is not enough to visit only where some risk assessment or other intelligence indicates a specific need. Visiting cannot simply be undertaken by generic inspectors; it requires a team of staff who are appropriately trained and skilled in meeting mental health patients who, on occasion, may be highly disturbed. They must be able to offer patients, carers and professionals advice or discussion over difficulties with the operation of the Mental Health Acts. Will the Minister reassure me that regular and frequent visiting with an experienced staff team will continue in the new organisation?
Secondly, as we have already heard, the Care Quality Commission will be expected to register all health and social care providers in the public and private sector. The registration criteria are not yet known, but given the wide range of services, they are likely to be fairly broad, and could easily overlook the specific needs of detained patients. I will therefore be arguing that such licensing should explicitly include operation of legal powers of detention or deprivation of liberty under the mental health and mental capacity legislation, which can be used to judge the performance of providers.
Thirdly, the Care Quality Commission should also have a statutory duty to collect certain information on the use of compulsory powers and the care of detained patients. As with visiting, the Bill currently empowers the Care Quality Commission to require certain types of information, but does nothing to direct that such powers must be used to inform a focus on specific aspects of the care of psychiatric patients. It should be a requirement that such notifications encompass as a minimum all formal admissions and discharges under the Act, including compulsion in the community; all serious or untoward incidents involving psychiatric patients; all deaths of detained patients as well as unnatural deaths of informal patients. The noble Baroness, Lady Bottomley, said that we are talking about 80 unnatural deaths every year; that figure has been consistent for a number of years, but we have not looked into that issue enough.
It is also essential that information provided allows monitoring of ethnicity, age, gender, sexuality, faith and disability, as currently collected under the Government’s delivering race equality census project. The MHAC has been at the forefront of raising the issue of the disproportionate admission and detention rates of black and minority ethnic patients and about the plight of children and adolescents inappropriately detained on adult psychiatric wards. We need to collect that information to continue to monitor those issues. It should be mandatory for the Care Quality Commission to report on such matters every year to help ensure that the operation of Mental Health Acts powers continue to be monitored by an independent body.
Fourthly, the Care Quality Commission must be at the forefront of protecting patients’ rights and freedoms and ensuring that the Act is applied without adverse discrimination, having a clear focus on rights. The 18th report of the Joint Committee on Human Rights last year commended the MHAC’s approach to human rights. It states:
“In our view, lessons can be learned from the more systematic approach pioneered by the Mental Health Act Commission”.
“MHAC state that their purpose was to … ‘incorporate a human rights framework fully in the work of the MHAC, so that it becomes a recognised part of regular activity across the organisation’”.
It goes on to say:
“We are encouraged by the fact that the MHAC is to be merged with the Healthcare Commission and CSCI and urge that the highest common denominator should prevail”.
To this end, the new regulatory framework must pay sufficient attention to patients’ rights as well as quality and safety. I would like the Bill to be amended to include an explicit reference to patients’ rights in Clause 2(5) with a provision to the effect that the Care Quality Commission will perform its functions for the general purpose of encouraging the protection of the civil legal and human rights of all persons subject to health and social care provision.
Finally, I, too, am concerned that the Bill does not set an explicit requirement for service users and care involvement in the organisation and work of the Care Quality Commission. The Mental Health Act Commission has a proud record of having mental health service users appointed to its membership, and for the past two years it has operated an explicit strategy to reach out and involve service users who might otherwise not come forward, including patients currently detained under Mental Health Act powers. The Mental Health Act Commission will publish a report on this aspect of its work next month, and I look forward to discussing with Ministers and officials how our gains can be built upon in the new organisation. In the mean time, the statute establishing the Care Quality Commission should establish that such involvement should be a core part of the organisation in general, and in its monitoring of mental health services in particular.
My Lords, I wish to speak on Part 1 of the Bill on the development of the Care Quality Commission. Like many noble Lords who have already spoken, I have grave concerns about the merger of three successful regulators into one, particularly now, and I believe fervently that we should at least wait for the Minister’s review before going forward.
I remind the Minister that we are here not because we think it is a good idea to merge health and social care, as he said, but because, as the noble Lord, Lord Warner, pointed out, a regulation rationalisation brought a number of commissions together, and that was part of that rationalisation. I should say that rationalisation of regulators is not necessarily rational regulation. The two are not necessarily the same thing.
Structural reorganisation without clear objectives, defined values and an understanding of different cultures, such as is proposed in the Bill, will not bring about the improvements the Government hope for in the delivery of services to some of those most in need of health and social care services in our communities. Indeed, those of us who have lived through reorganisation after reorganisation, and seen through merger after merger know that, while change can bring valuable benefits if introduced with consideration and consultation, it can also, without due involvement of stakeholders or for unclear reasons, simply bring interference and distraction to those involved. I have watched organisation after organisation concentrate on structural change, where the next desk should be, or whose job comes next, rather than the delivery of services, which is what truly concerns us.
Both the health and social care regulators have hardly had time to bed down. As my noble friend Lord Low explained, some have not come to the point where they can think through some of the detail. As the noble Baroness, Lady Bottomley, said, the devil is in the detail. I say this with some exasperation, because I was part of the National Care Standards Commission—its vice-chair, indeed—when, 19 days after becoming operational, it was announced that we were to be abolished. It was a miracle that we managed to benchmark every organisation in the country under the National Care Standards Commission’s care and ensure that we did not lose all of our staff despite their being threatened by that reorganisation. The abolition of the Commission for Social Care Inspection was announced some 364 days after it became operational, so, as I said in the debate on the Queen’s Speech, let us hope that if this Bill is passed, the new Care Quality Commission will make it to its first birthday.
This new body, regulating a sector with some £105 billion and employing 2.9 million people, will have extraordinary significance for a large swathe of the public sector. My noble friend Lord Walton pointed out the detail and size of the task that this organisation will have. At the moment, however, many of us on different sides of the House are dispirited by the shape in which the Bill has come to us from the other place. I hope that the Government will accept that it is right for this House to fulfil its constitutional functions; that is, to sharply scrutinise, revise and improve this Bill so that it is indeed fit for purpose.
Unlike the picture the Minister painted, social care and health are rather different. In the main, health is a universal, publicly provided service and free at the point of need while social care services are means-tested, subject to eligibility criteria and delivered primarily by the private and voluntary sector. We know that they do not mix; in a recent reply to a Question from the Floor of the House it was pointed out that people who had private prescriptions would not necessarily get public health care. Social care services mainly aim to provide a homely environment, or are delivered to people in their own home to support an independent lifestyle. That typically impacts on the quality of people’s lives as a whole, rather than taking place in acute environments or over episodic periods, as much healthcare does. Health and social care services, as many of your Lordships have pointed out, are not cut from the same cloth and the Bill needs to take account of that.
Had there been time, I would have referred in detail to the letter published in the Guardian on 18 February from 15 charities representing hundreds of stakeholders. I will simply point out that that joint letter said that the Bill must be improved so that the new commission is mandated to take full account of the perspectives of social care, puts the views and experiences of people who use those services at the centre of its work—as my noble friend Lady Campbell so eloquently said—and takes a proper human rights-based approach to all its activities. The charities concluded by saying,
“Otherwise, as currently drafted, this bill runs the risk of moving the health and social care sector backwards by setting up a regulator that works to yesterday’s policy agenda, to the detriment of all those who use such services”.
One concern about which many of your Lordships have spoken is the lack of principles in the Bill—criteria against which we can determine the appropriate regulatory action and against which the regulator can be held accountable. Objectives need to be clear to those being regulated, and to other interested parties. There have been several references to the recent National Audit Office guidance on public sector mergers; that also states that strategic objectives are important. What is the reason for such a glaring omission, and is the Minister prepared to look at amendments that put principles and objectives into the Bill?
There is a real opportunity to set down some principles in this Bill that should underpin the provision of social care and health services in this country to recognise the core values of dignity, respect and human rights and to give people more control, direction and say over their services. I hope and expect that amendments in this regard will be tabled in Committee; otherwise, the good work undertaken by CSCI in involving people in the delivery of services will be lost. I also wonder whether the Minister would think such involvement appropriate in the delivery of health services.
I hope that the House will support these approaches on behalf of those who rely on social care services. They depend upon a regulator who has not only the legal power to stand up for their interests and concerns but the internal culture, means and willingness to do so—and the capacity to speak out without the permission of the Secretary of State.
My Lords, I begin by declaring an interest as a member of Unison’s parliamentary group and as a General Medical Council fitness-to-practise panellist. While I welcome this Bill’s broad intent, it is clear that practicable changes in regulation on this scale can be rolled out only infrequently, so it is imperative that we get both the framework and the substance right at the outset. It is also important, as has been said, to draw on our collective experience and memory to date and—perhaps most crucially—to make a clear case for the advantages that will flow from the new regime. At its core, patients and service users must be persuaded that it will deliver safer and higher quality care. That is the test and the challenge.
In this context I have some concerns, first, about how the lighter touch regulation will work in practice. As the chair of a housing association, I have seen first-hand how an impending visit from the regulator drives up standards in preparation for the assessment. I am not convinced that a written questionnaire, however detailed, can substitute for direct observation and contact with patients and staff.
There are already concerns on the social care side that cuts in inspections are letting poor service providers off the hook. A recent survey of staff in this sector showed that 78 per cent felt that new arrangements were not improving care and 76 per cent thought that the methodology for risk assessment was flawed. In addition, 31 per cent said that they had been bullied to meet performance standards and 35 per cent knew of care services that had been registered but did not meet the national standards. That is not a happy picture and will not give much comfort to the relatives and users of care facilities, which is why there is still a need for regular and random visits to be a central feature of the new provisions. There is also a strong case for inspections to be automatically triggered under certain circumstances, such as the change of a care home manager, a new owner taking over a home or an unusual increase in staff turnover. We know from experience that these are often the first sign of problems and I hope that the Minister will feel able to consider this proposal sympathetically.
Secondly, at a time when limited resources are available for the new merged Care Quality Commission, we need to be assured that the focus of activity will be toward those at greatest risk. There is a danger that by adding new groups to be covered by the regulator without increasing resources, the inspection regime will become even more stretched. Arguably, then, there is a strong case for including GPs in the provisions because of their widening responsibilities but perhaps less of a case for including dentists.
Thirdly, I am concerned that the Bill as it stands differentiates between the regulation of the public and the private sectors. At a time when a wide variety of providers are entering the market, there is a strong case for the public to have unified assurances about the safety and quality of care, wherever it is provided—and whether by the public or private sector. However, the current proposals have different requirements for the NHS and the independent sector, and for primary and secondary care. Surely we should be aiming for an even-handed approach based on the risks to patients and service users. Equally, as has already been said, there is a strong case for the regulator to consider patient pathways where interdisciplinary packages of care are involved as all too often the real breakdowns occur between providers which can be both public and private.
Fourthly, I share the concern expressed by others today about the changes to the complaints procedures, which mean that the regulator will no longer be responsible for responding to individual complaints about service providers. I agree very much with the research produced by Which? showing how reluctant patients are to complain and, in particular, how they fear that complaining could have a negative effect on future care. Those fears are arguably even more acute where longer term care is involved.
Emphasising the need for local handling of complaints sounds laudable but, in practice, it could exacerbate the fear of coming forward. What is really needed is a fast-track route to a genuinely independent body that is able to investigate individual cases as well as to co-ordinate information about the overall range and nature of complaints. That would have the added advantage of providing redress for the 35 per cent of care and nursing home residents who fund their own care and cannot access the Local Government Ombudsman or the Health Service Ombudsman.
It seems to me that at the heart of these proposals is a contradiction. On the one hand we want lighter touch regulation of service providers, while on the other hand we want more stringent regulation of professional staff. Staff now, quite rightly, have to go through periodic revaluation to carry on practising while care providers will now have to produce less evidence of competence to continue working in the sector. I welcome the fact that the GMC has embraced the introduction of the more stringent civil standard of proof in fitness-to-practise cases but, as I have said before in this House, I am not entirely convinced that the other changes being proposed to adjudication are really justified. My own experience on fitness-to-practise panels is that the training and decision-making abilities of the panellists were of the highest standard and were rarely able to be successfully challenged in court. I remain to be convinced that the introduction of legally qualified chairs to fitness-to-practise hearings will enhance the quality of decision-making, and I share the GMC’s concern that legal advice and decision-making should remain separated. However, I understand that there could now be a more limited introduction of legally qualified chairs where the complexities of the case require it. I would certainly favour that approach.
Finally, there is the small matter of the costs of setting up the Office of the Health Professions Adjudicator. I understand that undertakings have been given that the Government will meet the set-up and transitional costs of the OHPA, but there may well be other costs arising from the establishment of the new organisation that could fall on the GMC. I hope that the Minister will be able to confirm today that doctors will not be expected to fund those changes.
In conclusion, as the variety and scope of service providers in the health and social care sectors continue to increase, there is clearly a value in having joined-up regulation. The challenge now is to provide a level playing field of quality standards combined with a duty to raise standards across the sector. I look forward to exploring ways that can be achieved as the debate on the Bill continues in the coming weeks.
My Lords, I thank the Minister for so clearly explaining the Bill. He will know that there has been a great deal of interest outside your Lordships’ House in this very important Bill from organisations concerned with the health and safety of patients and the well-being of clients who can be the most vulnerable people dependent on others.
Some members of the public were only just beginning to understand what the Health Care Commission and the Commission for Social Care Inspection were about. Three years is not long for an organisation to get established and for systems to start working well, but now this Bill will merge those two bodies, plus the Mental Health Act Commission, into a new regulatory body to be known as the Care Quality Commission. I hope that the best, most experienced people working in those organisations will not be lost in the reorganisation of the amalgamation.
It is hoped that the regulatory body will deal equitably with both the public and independent sectors. There is such variation in the quality of care in care homes. I was once written to by a lady in a home in Leeds. She said that her letters had to be smuggled out otherwise they were read. She was in a room with an alcoholic and her story of the care in that home was deplorable. I contacted somebody I knew who was able to investigate, and sometime later I received a letter from the woman to say she had been moved to a home in Harrogate. She said, “It had been like leaving hell and going to heaven”. I recently met an elderly nurse who was brought up in Ireland and spoke with a distinctive Irish accent, although she said that she was English. She was working in care homes from an agency in Cambridge. One night a lady with Alzheimer's came out of her room and said she was freezing. The Irish-speaking nurse went to the nurse in charge, who was a Filipino, and asked for another blanket as there was only one on the lady’s bed. The nurse in charge said, “Don't bother. The English are always moaning. Go and have your break”. The Irish-speaking nurse, who found another blanket and who really cared for the welfare of those unfortunate patients, implored me to bring up the need for better, kinder care in many of the homes she worked in. She said that nobody listens and nobody cares.
I hope your Lordships will make the Bill more able to give better protection to thousands of vulnerable people who survive behind closed doors. Many organisations for disabled and elderly people believe that it is unacceptable that disabled and old people living in private or charity care homes have fewer legal rights and freedoms than those living in publicly-run residential homes. They want to see the Human Rights Act 1998 extended to cover explicitly all disabled and older people living in private or voluntary sector residential care services. A legal loophole currently exists that means that those homes are not legally bound by the Human Rights Act 1998. I hope your Lordships will support an amendment to the Human Rights Act that will close that loophole. Then perhaps some people who feel that nobody listens will feel that your Lordships do.
When dealing with mental health issues, specialised skills and knowledge are needed. Will there be the necessary training for members of the Care Quality Commission? Many people believe that the CQC should have a clear mission statement enshrined in legislation making clear its independence of government. That mission statement would set out clear regulatory objectives and place a clear duty on the new body to drive improvements in the health and social care sectors.
Do the Government want patient and public involvement? First, they closed down the community health councils and set up health forums, which they have also closed down. They now want to set up LINks, which seem vague and unstructured. Volunteers who have been interested in patients’ well-being have been badly treated and many members of those groups must have lost confidence. They certainly feel let down. It seems that once an organisation gets established, it is closed down. Will the duties of the CQC include monitoring the implementation of nutritional standards in hospitals and care homes and ensuring that standards are driven up, health is promoted and that help with eating and drinking is a top priority? So many modern nurses seem to have lost the basic skills of patient care. Good food that tastes good helps patients to get better quicker and it gives them a morale boost and something to look forward to.
The CQC’s responsibilities should include protecting and promoting the interests, health, safety and well-being of the public, patients and users of healthcare and social care services. Many people are concerned by doctors and nurses giving the wrong amounts of drugs and treatments to patients. Recently a nurse working in a hospital in Leeds killed several patients with insulin just because he did not like nursing elderly patients. Patient safety should always come first. There should be a clear statement of purpose in legislation.
One message that has got through to the public is that hospitals are dangerous places because of hospital-acquired infections, which are now also in care homes. The Sunday Times Magazine this week had an interesting article on MRSA and Clostridium difficile. The head of medical microbiology at Stavanger in Norway said:
“What works is screening. You test everyone, and you isolate and treat everyone you find with it. In England you can’t do that now because you have too many cases”.
This is one of the dilemmas that will face the CQC and now we have the first case of the extremely drug-resistant strain of tuberculosis in the UK. I hope that infection control will be a top priority for the new commission. Unless it has adequate funds it will not be able to achieve all its goals.
What is going to be the CQC’s role in the complaints procedure? For years there has been a need for a clear, uncomplicated and quick procedure that people understand. Which? has undertaken research on this issue and found that only half of those with concerns about their hospital care had raised them. Only one in three who felt they had cause for complaint about their healthcare had made a formal complaint. There are many barriers to complaining. Which? is correct in saying that there should be improved communication between providers and patients. This could be achieved by having a panel for service users, patients and the public. This could have a positive impact on regulation.
Will providers have effective systems for resolving complaints from patients, service users and carers? Will this be made part of the registration requirements? Will the scope of registration—the range of services and organisations it covers—cover all services posing significant risks to patients? Will the Minister ensure that following an investigation the regulator can tackle failure and has powers to make recommendations to all NHS bodies involved, not just the provider where the problem arose? I hope the Minister agrees that safety and quality of care should come first.
My Lords, this Bill is an important one, recognising that, for those who use them, health and social care should be part of a seamless whole. The Bill provides a welcome opportunity to ensure that the interests of patients and service users are genuinely at the heart of the regulation of providers and professionals.
The service user’s experience is not compartmentalised. Many people will move at various times in their lives, or during the duration of one episode of illness or disability, from one sector to another—from healthcare to social care and back again, or from mental health care to social care. These transitions should be seamless. It is reasonable to expect that similar standards of care should be provided and that the regulatory regime should be comparable. That in a nutshell is the rationale for the merger of these three organisations, which have already achieved much in their different ways with their different remits. Such a merger provides an opportunity for the levelling up of standards and for the best features of each of the three regulatory regimes to be extended to all.
There are, however, dangers. The new Care Quality Commission will have a massive management task in achieving the effective regulation of all the different providers, of creating consistency and coherence across the different areas previously regulated by separate bodies, each with their own styles and approaches. Critical in all of this will be the resources being made available to the new commission. Maybe I am cynical, but I have seen too much legislation passed with many high hopes invested in the new organisations being created as part of that legislation, only to see effectiveness stifled by the nascent organisations being short-changed in terms of funding by their parent departments. I hope your Lordships will agree that the effective regulation of health and social care is far too important to be done on the cheap.
Much has been made of the ethos of the new commission. Ministers have said that involving and listening to users, patients, their carers and the public will be a central responsibility for the new commission. That is as you would expect. It is then all the more surprising that the responsibilities placed in this Bill on the new Care Quality Commission are so weak and watery. Again, it may be my cynical side but I have noticed that some Bills that come before your Lordships’ House seem to be drafted more clearly than others. I come from the school of thought that suggests that if you want something to happen it helps to make clear what it is you want it to happen. Alas, in this Bill there is simply no clear statement of the new commission’s core objectives.
The best we seem to have is in Clause 2 and this has a wonderfully mealy mouthed formulation:
“The Commission is to perform its functions for the general purpose of encouraging ... the improving of activities to which its functions relate, the carrying on of such activities in a way that focuses on the needs of those for whose benefit the activities are carried on”.
Is not one of the concerns that some facilities are in effect being run for the benefit of the people running them? If you are a for-profit provider, are not the activities being carried out to benefit the owners of the facility? Why could not a clearer and more uplifting set of objectives have been set for the new commission? What would be wrong with a simple, direct and clear statement along the lines of, “The Commission shall encourage the provision of health and social care services that are safe, are of high quality and meet the needs of service users”?
There is the rather underwhelming duty—again in Clause 2—to,
“have regard to ... views expressed by or on behalf of members of the public ... [and] levels of satisfaction amongst members of the public”,
and so forth. Why cannot there be an explicit duty on the Commission “in respect of the public, patients and users of healthcare and social care services, to protect and promote their interests, health, safety and well-being, to involve them in all aspects of its work and to inform them about standards of service provision”? The Food Standards Agency has a clear remit,
“to protect the public from risks ... and to protect the interests of consumers”.
Other regulators have similarly clear statements of purpose. Why is health and social care to be the poor relation in this regard? I hope that my noble friend will enlighten us when he replies to this debate.
Involving individual patients in the decision-making about their care leads to better outcomes. It is more likely that the treatment or care offered best meets the patient’s needs, the patient is more committed to it and has greater faith in it. As a result, compliance is better as, in turn, are the outcomes. Similarly, if service users, their carers and families are fully involved and engaged in the planning of services, those services are more likely to meet the needs and aspirations of those for whom they are being provided, and the services themselves are more likely to be effective and efficient.
So it is with regulation. The purpose of regulation should be to achieve the best outcomes, and regulators will be more effective in overseeing those things that matter if they are listening to the end users of the service concerned. In this context, the Bill’s phraseology of “to have regard to” is clearly inadequate. The Bill needs to set a clear expectation on the new commission that it will be proactive in seeking out the views of service users and in listening to and engaging with them.
NICE has established a citizens’ council, whose recommendations NICE must consider and respond to. Likewise, Ofcom has a statutory duty to establish and maintain effective arrangements for consultation with consumers. Again, I ask my noble friend: why are the users of health and social care being short-changed in this respect?
There is, of course, provision in the Bill for an advisory committee, but this will be dominated by providers of service. There needs to be a parallel advisory structure which will clearly articulate the views of service users and the public.
The problem for the present Government is that they have “form” in respect of patient engagement and health and social care. There was the abolition of CHCs. I declare an interest as a former director of their national association. In just a few days’ time, their successors, patient forums, are also to disappear to be replaced by LINks. If the creation of LINks was any more than a fig leaf to obscure the downgrading of patient and public involvement in health, I would have expected it to have a major role in influencing the new regulator. So it was with eager anticipation that I scoured the Bill to find how the views emerging from the new LINks system would be taken into account by the new commission. My scouring was in vain: there is no such mention. If I was not a cynical person, I would have been shocked. So again I ask the Minister: why is there no reference to LINks?
Indeed, would it not make sense to place a duty on the new commission not only actively to seek the views of LINks on the services in a particular locality, but also to report on the quality of the LINks arrangements in each locality, with a power to require the relevant local authority to improve on that quality where necessary?
Let me be clear, the Bill is welcome and will make a positive contribution to the quality of health and social care in this country, but it is a nonsense to suggest that what is before your Lordships’ House contains sufficient to guarantee the aspiration expressed by Ministers that involving and listening to users, patients, their carers and the public will be central to the new commission’s work. However, the changes to make that aspiration a reality are modest. I look forward to hearing my noble friend say that in Committee the Government will bring forward the changes that are necessary.
My Lords, in my spare time I am a social historian. One of my topics of interest is 19th and 20th century health and social care regulatory bodies from the Madhouses Act 1828. It is fascinating to discover that parliamentary discussions were just about the same then as they are now in regard to these crucial issues. How boundless are the hopes that successive Governments have for the power of regulation, and how quickly hopes are dissipated, often brought about by Governments’ own meddling and reorganisation. The truth is that no regulator can substitute for good management and professional education and we should not have false hopes that the new Care Quality Commission can.
As we have heard, the new commission follows hot on the heels of the barely toddler-aged Healthcare Commission and CSCI, both organisations having made significant strides in establishing themselves as effective businesslike organisations. Of course we can all find admirable reasons why processes across the health and social care spectrum are sensibly examined together along care pathways, and why some of the new provisions improve the inspectorial work of the Mental Health Act Commission, but whether this justifies abandoning the good work of these three bodies and starting all over again so soon, I am not so sure.
Although I am not a betting person, I would like to offer the House a wager that within three years further debates will be about the reorganisation of this commission because it does not cover the entire spectrum of provision and functions, including financial functions. There is yet a great deal to do.
I realise there is little appetite for opposing the overall thrust of the legislation—let us face it, it seems to be a done deal—but somehow we must ensure that what emerges has the chance of being something other than a new version of the NHS-focused Healthcare Commission. We have debated in this House many times—it has been eloquently expressed again today—the inverse care law, if you like: the hierarchy of socially desirable diseases that places acute medicine and hospital care at the top, social care for older people way down underneath, and lurking even further underneath the social care of seriously mentally ill people and people with learning disabilities.
I was very concerned to see that it has already been decreed that the new CQC will focus on hospital-acquired infection as a number one priority in its first year. That does not suggest to me that the priorities for those most at risk of care failures are going to be considered in that first year. Is that not of serious concern to those interested in the 25,000 units providing social care to the most dependent individuals in our society? Will such patients get a look in? It is a very poor statement of intent for the first year.
Turning to a few specifics—I declare an interest as I was for seven years vice-chairman of the Mental Health Act Commission—I am as concerned as the noble Lord, Lord Patel, to ensure that the Bill affords detained mental health patients at least as good protection for their human rights as the current arrangements, if not better, and I will be supporting amendments brought forward to that end. At the moment, of course, it is all just not clear.
Secondly, I am a board member of Monitor, the NHS foundation trust regulator, which does not figure much in the legislation but plays a crucial role in the regulatory framework of the NHS now that almost half of NHS trusts are foundation trusts. We therefore have a keen interest in ensuring the effectiveness, cost efficiency and total clarity of the regulatory regime. I shall be seeking reassurances about the way the system will work in practice.
I am a keen supporter of the Government’s healthcare reforms and I believe a system of devolved, autonomous and competitive providers from a mixed economy can flourish only where there is clear, strong but light-touch regulation. But any lack of clarity in this respect will be disastrous.
Like many people in the House today, I was delighted to hear that the Government are exploring the introduction of amendments to the Bill to recognise the Human Rights Act in relation to residents of private care homes placed there by the public purse. I hope they will also recognise the Human Rights Act in relation to those paying for themselves. As a geriatric psychiatrist I know of numerous instances where older people have been evicted, quite callously, from their places of residence in the face of increasing disability. This flies in the face of the Human Rights Act and has to stop. I hope we will find an opportunity to solve the problem this time round.
I understand the seduction of a universal registration system but in some other countries it has established a lowest common denominator of standards and has not raised the game. I want to be reassured that it will be different here. We need reassurance that registration standards will build on the care standards and the minimum standards currently used by the three commissions. Surely we are not going to register organisations of lesser quality which could not meet these standards. We must build on the improvements that these standards have brought about.
I wish to comment briefly on the fines to be imposed for offences. Even the highest possible fine—£50,000—will have a negligible financial impact on NHS trusts or many private healthcare companies. Can the Minister tell the House how shovelling public money around the system will do the slightest good? I am trying to think how the financially beleaguered Maidstone and Tunbridge Wells NHS Trust would have better addressed its C. difficile problem by being fined £50,000. I cannot see it myself. It was already preoccupied with that problem; it was too busy looking at its financial balance and not busy enough looking at its patients.
One or two other issues complete the picture. I strongly support the Government’s intention that all healthcare professional regulatory bodies use the civil rather than criminal standard of proof, including the GMC, and the proposals for organisations to appoint a responsible officer in cases of fitness to practise. I declare an interest as being registered with the GMC. It would have made my life much easier as an NHS manager in dealing with some of the most difficult cases. The GMC failed to deal adequately with them because of its criminal standard to proof.
I shall probably make myself deeply unpopular with many people in the House, but I question whether it is wise to give extra money to women in the 25th week of pregnancy. I know that it is a popular procedure, but it is a small proportion of people who fail to attend antenatal care. We do not usually bribe patients to take health measures. Given the Healthcare Commission’s recent report on maternity services, I wonder whether it is the best way to spend public money when so much more money is needed to provide continuity of care in midwifery.
I would like us to be absolutely sure that the powers of intervention in private lives for the sake of public health will be used wisely, and that we have adequate safeguards, appeal mechanisms and independent review for the new powers. I look forward to working on this interesting Bill through its Committee stage.
My Lords, never have I had more extensive or better briefing on a Bill from a very wide range of interested parties. Others have dealt with the important points covered. As a former dentist, I have a particular interest in this aspect of healthcare, and because of limited time, I shall deal mainly with dental topics.
I declare a non-pecuniary interest as a dentist in general NHS practice for 35 years. I was a member of the General Dental Council, elected by general practitioners. Former members of the GDC meet annually. I know that many feel strongly about the registration issue, as I do.
I describe myself as a former dentist because the opportunity of calling myself a “retired dentist” or a “non-practising dentist” was taken away from me in 2004, when I was told that the age-related reduced fee of £65 was abolished and that, unless I paid the then new fee of £388, which represented an increase of 122 per cent, I would be struck off the register. It was estimated that 2,500 dentists were struck off at that time, although most of them would willingly have paid £100 to remain on the list. These lost fees would have given the General Dental Council an extra quarter of a million pounds. It also soon became obligatory to carry out continuing professional development involving courses and study, even if one never wished to treat a patient again.
The General Medical Council is entitled to hold a list of non-practising doctors on its register. It makes very clear whether a practitioner has a past record of good practice. In 2004, when the change in dentistry took place, the GMC made no charge to the retired doctors on its list—I do not know whether it remains free.
One could be struck off the dental register either for misconduct or simply because one no longer wished to continue in practice. This lack of distinction between the honourable and the dishonourable absence from the register is invidious and upset many dentists. I took it up with the GDC at the time of my leaving and again last week. I am told that it no longer sends letters stating you will be “struck off”; it now says that “your name will be removed from the list”.
It is possible the GDC may not wish to have such a list, and if so, has been hiding behind the lack of legal powers as an excuse. The person to whom I spoke raised the point that dentists who wish to remain on the list as not practising may be doing so for their own personal reasons and not in the public interest. It is a good point.
I know that I have a personal interest. I recall my father, who was believed to be the world’s only Minister for Health and Motherhood—in the New South Wales Storey Government—paying his registration fee as a pharmacist to the day he died.
I was interested in the health in pregnancy grant. I would like to hear more from the noble Baroness, Lady Murphy, about her point on that.
There is a public interest in non-practising dentists remaining on the list, as many non-practising dentists continue to work on boards, trusts, charities and other bodies, public and private. If they claim to have been dentists with an honourable record, it should be verifiable. I was vice-chairman of North East Thames Regional Health Authority and later chairman of the Royal Free Hampstead NHS Trust after I had ceased dental practice. Had the age-related registration which I enjoyed not applied at that time, no one would have had any idea of my dental status.
The General Dental Council might also wish to consider some difference in fee for those dentists who do not wish to practise at all, but who are employed in some capacity that requires them to retain registration. At the very least, people who carry on little if any dental treatment for patients should be allowed to pay in instalments rather than having to produce the full £438 at the beginning of the year.
It is surprising that there is no mention of dentistry or the Dentists Act 1984 in the Bill. It brings to mind the Sherlock Holmes dog that did not bark. The president of General Dental Council referred in his winter message to a,
“new look, smaller, fully appointed Council with an increased lay membership”—
emerging when a,
“Section 60 Order—amending the Dentists Act 1984—is published, hopefully in 2008”.
I am sorry to see that a fully appointed council is proposed as I thought it very healthy and desirable that a number of dentists were elected by their fellows. I am disappointed that the General Dental Council does not appear in the Bill, when the General Medical Council and the General Optical Council do so.
I have always been told that the General Dental Council lacked the legal powers, which exist under medical legislation for the GMC, to have non-practising dentists on a separate list. The dental legislation was claimed to be defective. As I doubted the accuracy of that remark, I wrote to the Department of Health, which confirmed that a change in the law would be required.
Looking at the changes proposed under Clause 60 of and Schedule 8 to the Bill, I am convinced that, had the GDC wished to make changes, it could have applied at any time under Clause 60 of the Health Act 1999. I intend to bring forward an amendment in Committee. With these powers, the GDC would have the right to make a decision, which it claims is presently denied to it. Is it just hiding behind the Government and a legal technicality?
In his winter message in the GDC Gazette, the president mentions that from 1 August continuing professional development will be compulsory for all dental care professionals. He states:
“Patients can now expect the whole dental team to maintain their knowledge and skills”.
This must be good, but it is important that some flexibility is applied. I took the point made by my noble friend Lady Cumberlege.
Until the first registration date, anyone who is working as a dental nurse is entitled to registration on the basis of their experience, but, after that, they will have to have a qualification. When I was in practice, dental nurses, then known as chairside assistants, were trained on the job. The dentist was always fully responsible for his or her staff and their actions. Some went to evening classes and got extra qualifications, but they were optional, not mandatory. Running a dental practice is like running a small business, and there are always holidays and sickness periods when additional cover is needed. There were instances when some of my children, on school or university holidays, stepped in to fill these gaps. Now the BDA News tells me that even if a receptionist covers only lunch breaks amounting to two hours a week, they will still need to be registered and that the registration fee is more than £90. Some practices use probationary periods, but they will all have to pay a registration fee. I can remember when there was full employment and it was extremely difficult to get anyone to work as a chairside assistant—it is not a job that has an instant appeal and it is quite hard work. I am concerned that the time might come when it will be hard to attract enough applicants. To have proper well trained dental nurses is good for everyone: for the nurses who will have achieved a high standard, for the dentists they work with and for the patients. How can we ensure that we have enough of these qualified nurses? I suppose that agencies play a part, but that is not the ideal answer. The dentist has a medico-legal requirement not to treat patients unless another adult is in the surgery with them, because they can be accused of attacking the patient, for which I have seen dentists struck off. What will the dentist do if his nurse is ill and there is no one to step in? Will he simply send the patient away, even though he or she is in great pain? There must be some degree of flexibility in these things.
Sixth formers came to our practice for work experience. Indeed, the splendid dentist who looked after me last week decided on her dental career after such an experience. What legal provision will there be for young people to work in a dental surgery or any other health field as work experience to see whether they would like to enter these professions?
I have run out of time so I shall not continue. I served on a GDC disciplinary committee, and I served as a national health adjudicator. I welcome the fact that now dental treatment, private or national health, will be able to be inspected, as we saw cases where there was wonderful national health work done, but we could not comment on the atrocious private work done by someone, who admittedly was dying, so I hope it was not typical of his work. It meant that for people doing private work, no patient had any way of seeing whether they were right or wrong.
I agree with the civil level of proof that has been mentioned. I thought that the noble Lord, Lord Carlile, made a very interesting case for legal or non-legal chairmanship. The noble Lord, Lord Walton, made a particularly important point in saying that wherever a case is being heard someone with specialised knowledge of that particular aspect of medicine should be on the board. I know of cases currently under way where that is not the case. The GMC is conducting cases without anyone specialising in the field alleged against a particular doctor. It is always good to move to a higher level in standards and training, but there must be flexibility.
I hope that the Bill will operate effectively and do much to help patients and their families. The Healthcare Commission, when referring to Clause 16, said that,
“the scope of regulations should cover all services posing significant risks to patients and not create unnecessary burdens for low-risk activities”.
I think that that summarises my view.
My Lords, as the noble Baroness, Lady Finlay of Llandaff, ran past me on the Underground, I, too, feared that I would not be in time to hear the complete speech of my noble friend Lord Darzi in his opening address. I genuflect and grovel that I have to apologise for not hearing the whole of his speech.
However, my time down from Chester today was usefully employed by talking to the Reverend Brian Holroyd of the Chester Abbeyfield Society which provides home care for older folk. He tells me that the noble Baroness, Lady Bottomley, is a marvellous chairman, and that he looks forward to welcoming the noble Baroness, Lady Neuberger, tomorrow when she addresses the Abbeyfield Society.
I enter this field of which I am largely unknowledgeable. The Care Quality Commission brings together social care and the National Health Service, and I fear that the social care element will lose out at the expense of the National Health Service. I am also concerned about the role of small businesses in the social care area. While the care sector is, unlike the health service, a small independent sector organised for the large part, it is absolutely essential that the new CQC is able to differentiate properly between the sectors in its regulatory activity, and to accept that the two sectors are not cut from the same cloth. Indeed, CSCI notes in its State of Social Care Report for the years 2006-07, published in 2008, that there are some 80,500 care homes for adults of all ages, with more than 4,500 domiciliary care and nurses agencies registered with the commission, and a further 133 adult placement schemes around the country.
There has been a slight decrease in the number of care homes—there are still 442,000 places—but there has been an increase of 112 home-care agencies over the past year. That adds up to about 24,000 services employing care staff. Most provide care directly, some organise care, and some do a combination of both. The essence to understand is that three in five are very small—that is, they employ 10 people or fewer—and one in three is small, employing between 11 and 50 staff. Some 13 per cent are of a larger nature.
Over recent years, there has been some consolidation in the care-home market resulting in fewer homes, but with the same number of places available. Just four operators own some 80,000 places out of that 442,000, compared to 10 operators in 2004. Yet again it should be noted that the remaining providers provide 70 per cent of the work. They are defined by having fewer than three homes.
The CSCI publication on domiciliary care, Time to Care?, likened domiciliary care to a cottage industry. The domiciliary care sector is predominantly run by small providers, often highly dependent on a small number of council contracts. That has an impact on the workforce because, although found in smaller enterprises, it is as large as that found in the National Health Service. I hope that the Minister thoroughly understands that. Indeed, according to the Skills for Care 2008 report, there are something like 1.4 million people in paid employment; 1.3 million directly employed; 78,000 who were “bank”, “pool” or agency staff; and some 100,000 people employed by recipients of direct payments.
In contrast to healthcare, social care in the voluntary and private sectors is provided predominantly by the independent sector. It employs 70 per cent of that 1.3 million workforce; councils employ something like 16 per cent; and the NHS employs some 7 per cent.
The age range is varied; 57 per cent of the workforce was aged 30 plus when they first worked in social care; and 32 per cent were aged 40 plus when they started in social care. So they come in relatively late. Social care is often seen as a sector with a very high turnover—60 per cent of the workforce has been working in care since 2000, but 40 per cent started before that, with 13 per cent starting before 1990.
This all adds up to recognising that the sector of social care is differently composed from that of the NHS. If this commission is to bring the three previous commissions together, it is imperative that it recognises those differences exist. So one of the questions to my noble friend is this: when we have the Care Quality Commission, what efforts will be made to ensure that its members have knowledge of those different sectors? What is important is not just the sector that will require inspection of the various enterprises that find themselves there, but a sensitivity to those who run these small businesses. Not only are there the problems associated with the fact that these are small enterprises and therefore sometimes more vulnerable to the requirements to be properly inspected and brought up to full value and full standards, but there must be some sympathy to the understanding of those who are providing within that sector.
Likewise, is the training of the staff who are going to inspect in this area adequate? Are we sure not only that they can spot the problems, but that they can be sympathetic to some of the real problems that emerge in that sector from time to time? Is the Minister happy with the expertise that he hopes to bring within the commission—that it will be able to fully recognise that small business sector?
I, like others, think that a clear statement in the Bill of the regulatory objectives would be useful in many ways, not least so that the independent sector organisations understand what standards they have to recognise and live up to if they are to fulfil what we require of them.
I shall end on the need to ensure that the human rights of people who find themselves in these smaller care homes and with care agencies and so on are respected. It has been brought to my notice that there is a loophole in the human rights legislation, which perhaps takes away some of the rights that those in the care system should be enjoying. Is the Minister content and happy that where a complaint is registered in, say, a smaller home, those who are not satisfied with the answers that they get in the first instance can ask the question higher up the ladder so that they ultimately get satisfaction? I hope that with those points in mind, and a reiteration that the workforce is as represented in the social care sector as it is in the healthcare sector, the Minister can go forward with the Government’s plans, to which I would otherwise give a generalised welcome.
My Lords, the Bill has clearly attracted considerable attention and with that in mind I shall try to confine my remarks to one or two issues only. I apologise to the House if other noble Lords have already more than adequately dealt with these, but with the number of Bills currently going through the House, and other essential meetings to attend, it has not been possible to be present in the Chamber for as long as one would have wished. It is clear, too, that, as well as the criticism that the House has heard today, there is support for what is seen as the Bill’s potential to deliver a more joined-up approach for health and social care regulation, and for its attempts to remove some existing unfairness; for example, the liable relatives rules. However, even on that issue, the charities and specialist organisations involved remain concerned that some local authorities are not giving the relatives of handicapped or elderly patients the help or the choices of help that they may be entitled to.
The proposed new regulator—the Care Quality Commission—while welcomed, is criticised by a number of organisations. We have been beautifully briefed by those organisations—Which?, the National Consumer Council and the Picker Institute among others. The main concern, as many noble Lords have said, is that the new regulator is not being provided with a clear set of regulatory objectives. Some progress was apparently made on that point in the other place. However, the phrase “have regard to” patients’ views is seen as far too passive and unimaginative an approach.
What is needed, it is argued—with considerable justifications, I, like other noble Lords, would have thought—is for the new commission to be given a duty in the Bill to engage with and involve service users during its regulations and inspections. As my noble friend Lady Masham of Ilton has mentioned, Which? has also argued that the CQC should be required to appoint a separate independent—and I stress independent—advisory committee of service users and members of the public, including carers, which would help the regulator choose themes for reviews and set priorities. Perhaps it would be something along the lines of Ofcom’s consumer panel, which does just that. The Picker Institute and a number of other charities, as the noble Lord, Lord Harris, has said, point to the contrast between the Government’s intentions for the CQC and for the three other new regulators created since 1997, where user interest also required strong protection.
I return to Ofcom as an example. Its principal duty is stated at the top of the Act; that is, to further the interests of citizens and consumers. As someone much involved with the Communications Act 2003 and subsequently as a member of the House of Lords Communications Select Committee, I can tell your Lordships that hard-fought-for addition to the Act—and, not least, its acknowledgment of citizens’ and consumers’ somewhat different interests—has had a profound effect on that regulator’s subsequent work and priorities.
As the noble Lord, Lord Harris, also said, it is not just Ofcom. The Financial Services Authority also has its four regulatory objectives printed at the beginning of the Act, which again focus on end-user interests. Similarly, the Food Standards Agency, set up in 1999 has its main purpose set out at the beginning of the Act, which is, “to protect” the public,
“from risks which may arise in connection with the consumption of food … and … to protect the interests of consumers in relation to food”.
In light of all this, I hope that the Minister will be able to give the House some encouragement that the Government are undergoing a change of heart, particularly as other Members of your Lordships’ House have mentioned it so many times.
The other major issue that I wish to mention and support is the concern raised by Age Concern, Help the Aged, Radar, the RNID, the RNIB and many other organisations over the Human Rights Act. The fact that this Act currently does not protect the elderly and disabled living in voluntary or privately run homes, which currently cater for some 90 per cent of those needing this kind of care, is, I would have thought, a huge concern. I am sure that, like me, noble Lords will have visited homes that deliver excellent, loving care. However, your Lordships will also have read in the press appalling stories of ill treatment and seen the recent disquieting report from the Joint Committee on Human Rights which, I am afraid, highlights that excellent care is far from universal.
I hope that the Minister, when he replies, will be able to confirm unequivocally that the commitment given by the Minister, Ben Bradshaw, in another place that all private and voluntary sector providers will be brought securely within the ambit of the Human Rights Act. I think that he has given some indication that he is going to be able to do that at the end of progress on the Bill.
I would like to end on a more general note. I confess to not being a totally enthusiastic supporter of what I call the giantism blueprint for regulators of the noble Lord, Lord Carter of Coles, which has been applied by the Government to almost every aspect of public life. He has managed to achieve that by getting the Government to merge existing regulators in a particular field into a single, giant body. Ofcom and the Equality and Human Rights Commission are two good examples.
In this case, as we have heard, the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission are to be merged to form the CQC. There is special concern here because it is the third such proposed change for the national regulation of social care since 2002. Somebody suggested that it was the fourth, which would be even worse. CSCI has done a huge amount of valuable work on the rapidly growing social care side of things, and its view is that another structural change in the regulation of social care and health services is premature; that view may be understandable. However, as was said by my noble friend Lady Murphy, this looks like a done deal. Many involved can see potential benefits from having a closer working relationship between health and social care. However, it is crucial that both be seen as equal partners. Just as those with responsibility for disability rights were reluctant to join the Equality and Human Rights Commission until satisfied of an equal standing with race and sex equality, so this will be crucial for the CQC. Organisations have stressed—I quote Carers UK—that:
“It is essential that the CQC is given sufficient power and resources to maintain a focus on social care and that”,
its work is “not dominated by health”.
One further concession is needed from government—apart, of course, from guaranteeing sufficient resources for what will inevitably be the growing social care side of the CQC’s work. It is argued by Carers UK and others that the CQC should have powers to publish independent reviews of its work without first needing to ask for permission from the Secretary of State, but will the Government have the confidence to grant that? I very much look forward to the Minister’s reply.
My Lords, I welcome much in the Bill and join in congratulating the Minister on his clear and concise introductory words. I have a few reservations, but I am sure that those and everyone else’s will be well discussed in Committee. I will be very brief; much has already been mentioned. I want to talk about two areas: that relating to self-funders seeking social care, and the vexed issue of human rights. I apologise in advance, with a very heavy head, if I do not make it to the end of the evening; I hope that the Minister will forgive me if I do not.
I was pleased to hear the Minister confirm that the Government were considering how best to achieve the same rights under the Human Rights Act for people receiving contracted services as for those who receive services from the state. Only 37,500 care home places are provided by local authorities out of 420,000 places in the United Kingdom. The other 373,000 are in private or charitable care homes. The majority of those residents are not covered under the Human Rights Act, as we know, but we have a duty to protect those people.
As my noble friend Lady Howe mentioned, the recent Joint Committee on Human Rights report highlighted how vulnerable people in homes can be to lack of respect and dignity, and even to abuse. Of course many homes have excellent facilities, and most provide adequate if not good care, but many give us cause for concern. Malnutrition and dehydration, lack of privacy and dignity, neglect and bullying are just a few of those concerns, not to mention the fear of eviction if a resident or relative makes a complaint, if someone becomes increasingly frail or ill, or if the care home is sold or closed rather suddenly. There is a fairly straightforward way to close this loophole. It could be achieved through this Bill with less recourse to other departments of state—in particular to the Ministry of Justice—than might be the case if we have to wait for a Bill of Rights. If we wait for a Bill of Rights there are many very frail, very vulnerable and very old people who will be dead by the time that Bill becomes law. There should be a duty in this Bill to assess any person entering a care home. Such a person should be assessed either by a GP or by a hospital doctor if they are in hospital or by a qualified social worker. After such an assessment, which would be carried out by somebody in the public sector, the human rights protection would follow that person wherever they go, whether it is to a public, a private or a voluntary care home. I hope that the Minister will consider a government amendment to the Bill to achieve this fairly simple change.
I turn to the issue of self-funders. We are a country of homeowners. Many people have saved throughout their lives to buy their home. Quite a few managed to do so by taking advantage of the right-to-buy legislation. They are not wealthy people but it is very difficult to own a home worth less than £21,500 in this country, whatever sort of home you have. These people are in trouble if they go into a residential or nursing home. Nearly one person in five has to sell the family home to fund a place in a care home. Often they are charged more than other residents who are paid for by the local authority because the local authority can negotiate lower fees than an individual or a family can. The care home can sometimes compensate for those lower fees by charging an extra fee to self-funders and/or their relatives—a top-up or, in my view, an unauthorised tax on those self-funders. That discriminates against self-funders.
We cannot say that two people in adjoining rooms in a care home have different rights, either in terms of their human rights being protected or being treated equally. When working to receive social or health care, it is often difficult to differentiate between what is health and what is social care and what can be funded one way and what can be funded another. People just do not know what they have a right to receive. People who have worked and saved, often over many years, must no longer be excluded from the advice, the help and the necessary and adequate services they need because they happen to have saved some money during their working lives. I hope the Minister can assure us that these situations will be remedied.
My Lords, we have heard many expert contributions today, not least from the noble Baroness, Lady Greengross. As it happens I have a little expertise, or knowledge anyway, in this area, both as an ex-member of various regulatory bodies and an ex-member of the Royal Commission on Long Term Care for the Elderly chaired by the noble Lord, Lord Sutherland. But I want principally to contribute a different kind of expertise as someone who has long been steeped in Whitehall life, both as a political adviser and as a political journalist. Two syndromes that I spotted through this long life are relevant to this Bill.
The first is what I would call the “my greatest hits” syndrome, where the Government introduce a Bill, often very heavily opposed, which is thereafter acclaimed to be a success and so goes on the “my greatest hits” list. Whenever a problem in any way analogous arises, a Minister picks it off the shelf and says, “My greatest hit was this. I will do that again”. This Government started off with their greatest ever hit which was the amalgamation of the financial services regulators under the Financial Services Act. Until Northern Rock recently it was proclaimed the most wonderful success. Then nearly as good, they tried it again with their next greatest hit, Ofcom. That was a pretty good success, too. Then—I am cutting the story a bit short—a few years later they tried it with the Equality Commission. It is too early to say whether it is a success. I personally have my reservations but it went on the list nevertheless. So here we are with health and social care. Let us have another greatest hit in the form of a new regulator. This does not mean of course that it is wrong to do this. It does mean that the House and the country should look at this issue with the greatest care because in my experience of popular music, which is even less than my experience of this field, one decade’s greatest hit is the next decade’s greatest flop.
Another syndrome that I identify in the Bill lies in Ministers’ eternal desire, which is true of all Ministers of all parties at all times, to get the best of all worlds. In regulation it has worked like this: all Ministers of all parties, all times and all worlds are signed up to the better regulation agenda, by which is meant the less regulation agenda. However, they find a real difficulty with this. On detailed examination, they find that many of the existing regulations, if not most, are either justified or politically jolly difficult to get rid of. I am thinking of, for example, the way that we are told at one time that the regulations on school trips are so tough that they prevent children being taken to other countries or places where they would benefit from those experiences, and then some poor child suffers a misfortune and the same people explode into print, demanding tougher regulation to make sure that it does not happen again. So what is a poor Minister to do?
In the field of regulation, the answer is that if you cannot get rid of the regulations, get rid of the regulators. So the present Prime Minister, as Chancellor, announced a big cut in the number of regulators, of which the Bill is one fruit. Again, that does not make it wrong, but it means that we should look at it with particular care. Legislating by rote law is not a good way of legislating. When we do, we find a great flaw, such as that that lies at the heart of the Government’s case for this Bill—at least for Part 1. The Government rightly point out that health and social care must come more closely together. The noble Lord, Lord Sutherland, and I have advocated that for years. But from that the Government leap to the conclusion that the two should be regulated in the same way and that the regulations should come more closely together. Regulating healthcare and social care are very different activities.
Noble Lords should think about what is required if you are regulating a large hospital. You need data, facts and figures, statistical risk-assessment—for example, comparison of whether one hospital is doing better than another regarding its heart bypasses—and you need ultimate sanctions such as closing down the bloody place if it is failing. That is how health regulation works. Think what is required if you are regulating, say, a residential home for four elderly people, run, as many are, by an ex-nurse. Of course you need to be firm, but you need also to be flexible—to educate rather than instruct; to incentivise rather than penalise; and to help people achieve a higher standard. Remember that the ultimate sanction of closure may be all right for a hospital but is not all right for old people’s homes, because the evidence is that old people die if you move them in their extreme old age.
I am reminded, too, of the Government’s previous venture into regulation in this field—the regulation of old persons homes. It stands out in my mind. I remember a proposal to metrify that Bill, whereby a room with two elderly people should measure at least 10 metres by 10 metres, instead of 10 yards by 10 yards, until it was pointed out to the Government that this measure would close a large number of uneconomic old persons homes up and down the country. The Government eventually backed off. Thank God they did, but that does not exactly reinforce one’s faith in the Department of Health as a regulator in this field.
Anyone reading this Bill will see the emerging dominance of the health mode within it. Healthcare will run the show. As the briefing on this debate from Action on Elder Abuse states:
“There must be a retention of an inspection regime that carries out personal inspections and visits to services, rather than a data-trawling and survey-led approach as is currently used in health regulation”.
We should consider also the costs of reorganisation. I was brought up in government in the 1970s in the Department of the Environment, where the mantra was: “If there is one thing worse than local government reorganisation, it is local government re-reorganisation”. This is not a reorganisation, nor is it a re-reorganisation. It is a re-re-reorganisation—the third since 2002. The National Care Standards Commission, recommended by our royal commission, started work on 1 April and its abolition was announced on 17 April. This is madness. Reorganisations involve back-minding, turf-grabbing and office politics of every kind. What convinces Ministers that the two-year hiatus in effective regulation that will accompany this merger justifies it? The only regulator in this field that I know well is CSCI and I think that it has done a first-class job.
In conclusion, we should have one test and one test only for this Bill—will it improve services for users of healthcare and social care? Some of us believe that the case is not proven and that the legislation is therefore palpably premature. At the very least, big changes will have to be made to the Bill in this House—with ministerial agreement if possible; with the votes of your Lordships if not.
My Lords, I apologise to the Minister for missing the start of his speech. Perhaps my next sentence might explain why I was late. I declare an interest as the paid chief executive of Turning Point, which promotes health and social care and social enterprise and is regulated by the Commission for Social Care Inspection, the Healthcare Commission, the Housing Corporation, the Charity Commission, the Audit Commission, the Housing Inspectorate and the National Treatment Agency. I start by saying that if there is any possibility of regulation that can make sense of my day, I must support it.
In supporting the Bill, I point out that all change involves huge risk. If one is too risk-averse to attempt any change, then nothing happens at all. The issue is whether this change is worth the struggle. Is it worth the struggle for those people who are not in this Chamber? I speak with my mother in mind. She has been poorly for some time, she has been seeing a GP, she has been in hospital and she may well need social care. Having done battle with various parts of the NHS and social care system on her behalf, I have to say that it is worth struggling for a joined-up health and social care system. I think that it is worth the struggle to have one phone number instead of 100, and I think that it is worth the struggle in the interests of those people who need a clear route of complaint and of redress.
That statement is somewhat visionary and I have listened for some time to a number of noble Lords commenting on this Bill from a position of—how shall I put it?—gentle scepticism about whether the Government are going to achieve that vision. But I believe that we must try. I say that with due regard to the excellent work of the Commission for Social Care Inspection and the Healthcare Commission, with which I and my organisation work closely. But I see the gaps between those organisations reflected in the unmet needs of many people. I also note the many comments pointing out the risk of social care being rolled over by the huge behemoth of clinical care and the NHS. I have much sympathy with that view and I have often argued with the Minister for social care to have a much greater role in his thinking on NHS reform. The Bill needs a much greater guarantee of that—but this is not a reason for the reforms not to go ahead. It is a reason instead for those who support social care to get their act together and carry on struggling to ensure that it plays its full part in the new arrangements.
It is probably worth summarising the concerns that have been expressed so far. I apologise if I do not do justice to everyone’s comments but I think that there are three main concerns. One is that—certainly in relation to Part 1, which is where most of my remarks are focused—we will not keep pace with change, the risk being that the new regulatory framework will take insufficient account of the transformation and change in service provision, patient pathways, customer care, client needs, service user involvement and engagement. That is a real concern, which is not reflected in the Bill.
A second concern relates to size, scope and disparity—that is, that the differences in scale, scope, character and accountability within health and social care and mental health will not be reflected in the new regulatory framework. Again, there is much work to be done on the Bill to ensure that those things are integrated within the regulatory framework.
The third concern is: where is the benefit to service users clearly expressed in the Bill? People talk about values and principles being set out in the Bill but I prefer to talk about the need to express in the Bill the vision and values of customers or users. It seems to me that those concerns are still valid and it is on those that I base my meagre contribution to the debate.
One concern with which I have some sympathy is that the role of commissioning is not mentioned in the Bill. We spend £90-odd billion on health and social care in this country, most of it through the process of commissioning. Commissioning is the means by which you understand the needs of an individual and/or the community in which that individual lives and thus provide the platform for procuring health and social care services. If you do it badly, believe you me, no amount of regulation will help—I have seen it. All those health and social care deserts are not necessarily the result of a lack of funding; they are the result of poor commissioning. Therefore, frankly, I am amazed that commissioning does not form part of the Bill.
I am equally amazed at the advertisement for the chair of this new regulatory body. It has been said that a signal is being sent by this advertisement and the salary for the post. Surely a mistake must have been made, in which case the signal is that not enough thought has been given to the Bill and to the leadership that is necessary to put in place Part 1. Alternatively, thought has been given to those matters but they are not considered to be as important as, say, the Audit Commission or the FSA. I, for one, beg to differ.
Finally, I support the comments of the noble Lord, Lord Patel of Bradford, regarding mental health. I happen to advise the Minister on delivering the race equality programme and mental health. The impact of mental health on black and minority-ethnic groups is disproportionate and severe. It goes unnoticed and is a national disgrace. Despite the concerns and critiques that I have heard, the Bill provides an opportunity to create a truly world-class health and social care regulatory framework. If we lose the opportunity to redress a glaring imbalance in the provision of mental health services, we will rue the day, not just in terms of clinical and social care methods but in terms of social unrest and unease.
Therefore, once again, we are at a tipping point between an opportunity and a risk. On the one side, there is the risk of complete and abject failure, because I suspect that the Bill will go through to achieve a vision for my mother and people such as her. On the other side, we have an opportunity to create a world-class beacon of regulation and inspection that will make my daily life easier—I said that I had a self-interest—and, more importantly, to ensure that people not in this Chamber get better care outcomes and better value for money.
My Lords, the trouble with having one’s name pulled out of a hat and finding oneself number 33 on the speakers list in a debate of this kind—although I am not sure that it is that scientific—is that most of the points have already been made. If I repeat things which have already been said, please forgive me.
I welcome the Bill and the setting up of the Care Quality Commission. It is a clear attempt by Government to improve the health and social care system through a single, regulated body. It also addresses the important role of those who work within the system. The Bill will also do away with many outdated provisions that are currently in place which many within the system would argue are no longer appropriate to meet the needs of both patients and service users.
The new Care Quality Commission, to be created by the Bill, will replace the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission. As has already been pointed out by the Minister, this rationalisation is a sensible move forward but, by itself, I stress that it is clearly not enough.
It is far from clear that the new regulator, as it is spelt out in the Bill, has a clear enough framework by which to judge the effectiveness of the commission in its operation. For instance, will the commission have the specific objective of promoting provision of health and social care services that are safe, high quality and will meet the service user’s needs? One could talk about the protection and promotion of health, safety and well-being of the public, patients and users and so on for some time but a lot of those points have already been stressed in the debate, so I will not go down that path.
Having separate systems for health and social care has created confusion, so the fusion of the services working together could be a good thing. Regulation can help the process of delivering what the other services wish to bring about. Although the Bill deals only with the regulation of health and social care, I suggest that we must consider it in the context of other pieces of legislation in this area which have passed thorough both Houses in the past few years. I refer in particular to the legislation that I introduced, namely the Carers and Disabled Children Act 2000, which came into force in April 2001 in England and Wales and which was an important step forward. I was helped enormously before I arrived in this House by my noble friend Lady Pitkeathley, with her wealth of knowledge on the problems carers face within our society. She helped steer the legislation through this House. I will always be grateful to her for that.
The Carers and Disabled Children Act 2000 enshrined the right of carers to have their own needs assessed independently of the person they care for, regardless of whether that person had had an assessment themselves. This is an important principle. It ensures that carers are viewed as individuals in their own right, something which carers feel very strongly about, and rightly so. The Act also gave local authorities the power to provide services directly to carers. Councils in England now provide an average of 20,000 holiday breaks to carers each year.
My Act was the second of three Private Members’ Bills concerning carers which became Acts of Parliament. The first was the Carers (Recognition and Services) Act 1995, introduced by Malcolm Wicks MP, and my 2000 Act was further strengthened by the Carers (Equal Opportunities) Act 2004, introduced by Hywel Francis MP. It stated, among other things, that local authorities must inform carers about their right to an assessment.
As well as assessing and providing services to carers in their own right, councils are starting to do better at recognising the vital contribution that carers make. Most care to elderly and disabled people is provided by carers, not by professionals. We still need to go a long way in truly recognising carers within our society. Although I believe that the Bill has good intentions, I equally believe it needs strengthening. There is a danger that because carers are not mentioned even once, it could mean that the good work being done by the Government—namely, the New Deal for Carers—might be a casualty of the Bill. Perhaps giving local authorities and health services additional requirements on carers outside of the provisions of this Bill might undo some of the good work that has been done by the three carers Acts to which I referred and which are now on the statute book. It is true that in another place Alan Johnson, the Secretary of State in charge of the Bill, implied that the new commission would have responsibility for involving and listening to carers. I am sure that he was in earnest when he made that statement, but it is not shown on the face of the Bill. The commission must have that pledge written into the Bill for it to have real meaning. I hope that it is not too much to expect that, with all its good intentions, the Bill would be further strengthened by such an inclusion rather than rely on secondary legislation.
We cannot take the risk that important priorities of government and Parliament are left out in the confusion of setting up the commission and the onerous task of registering all providers of health and social care services. The commission will have so many other calls on its time and resources, that I am concerned that carers will be forgotten. Of course, the combined budget will be less than that of the existing commission, meaning that finances may be tighter and that anything not specifically included by Parliament will be left out.
As the Bill passes through this House, we should consider carefully what exactly we want it to do. Other regulators have a much clearer mandate and the public can therefore see whether they are doing their job properly. In this area, which is crucial to the lives of all our citizens, it is essential that the new body will be held to account. For that to happen, we need to be clear about what it is intended to achieve. I do not believe that is the case with the Bill in its current form and, in my view, it must be improved in Committee.
My Lords, I welcome the Government’s commitment to reduce the number of regulatory and inspectorate bodies in the area of health. I declare an interest as a former Mental Health Act commissioner and current chairman of a foundation trust.
I shall focus my remarks on Part 1 of the Health and Social Care Bill and the creation of the Care Quality Commission. I want to talk about the apparent duplication of the powers of the new body and those of Monitor, the independent regulator of foundation trusts. I then want to touch on a few other issues which I hope we shall address in Committee and on Report.
I welcome the fact that the Care Quality Commission will be a patient and user-friendly organisation with a priority to safeguard service users and to help improve their experience of health and social care services. That will build on the very considerable improvements in recent years of the best health providers, and no doubt social care providers, in involving patients in planning services, staff selection and in raising standards across the piece.
I come to this debate from a foundation trust perspective—I want to be straightforward about that. Again, I applaud the Government for introducing a healthcare model which, for the first time in my 25 years in the health service, has significantly improved the quality of services in many trusts up and down the country. It is vital that the regulatory and inspectorate system fully takes on board the implications of this massive change—I would call it a revolution—in the health provider organisational model.
Unlike NHS trusts, foundation trusts have unitary boards accountable to their local constituencies through their locally elected boards of governors. They have legally binding contracts with their primary care trusts for the first time and are regulated by Monitor and inspected by the Healthcare Commission. We also report to our PCTs, and so on. As we know, there are some 53 inspectorates, monitoring and regulatory bodies. The trust that I chair has saved about £15 million in efficiency savings during the past two years simply because we had to become efficient. Monitor demanded that. The degree of waste in the preceding era was absolutely breathtaking. I was not aware of it; I was part of the system, but had no idea of quite how inefficient the trust was. Now the trust is on a firm financial footing and is investing many millions of pounds in completely new and improved services. That is a first-time experience for me in more than 25 years.
In the previous world of NHS trust status, we lived in a reporting nightmare. I asked our finance director for a note about this because I was aware of his experience. In a single year he had to provide six different, but very similar, annual plans: one to the Department of Health, another to NHS London, another to the strategic health authority as a due diligence exercise, another to Monitor and a further two to different firms of accountants. Each of the plans was based upon different assumptions, leading to different results, requiring different monitoring. You could not even send a duplicate to all six bodies; every single one of these lengthy, detailed reports had to be different. For the DoH and strategic health authority, these returns were monthly. As our finance director said, the work was mind-numbing, thwarted forward thinking, paralysed decision-making and defeated entrepreneurship. “Other than that”, he said, “I suppose it was okay”.
Perhaps noble Lords will understand my anxiety that if this Bill remains unchanged, foundation trusts will face two regulators, Monitor and the CQC, which will have potentially overlapping powers. There will be a lack of clarity. We will once again be in this complete nightmare of duplicating reports and regulation, sending things in different directions, with nothing adding up and every single report being different. There are strong arguments for Monitor to retain the primary regulatory responsibility for NHS foundation trusts. It has proved remarkably effective in raising standards. It was quite painful to meet its requirements. We replaced five board members in order to meet the standards required. The Department of Health has argued that to provide a level playing field, all providers, including NHS, private and voluntary sector organisations, must meet the same standards and face intervention by the same body. Of course, all organisations should, ideally, meet the same standards, if those services can be compared in any realistic sense. I confess that I have my doubts about that. I am not convinced that a small domiciliary visiting service can really meet the same standards, for the sake of argument, as a foundation trust. I am sure that we will return to these issues in Committee.
I turn briefly to the incorporation of the Mental Health Act Commission in the CQC. I have already declared an interest. I am not opposed to this move, so long as the distinctive role and focus of the Mental Health Act Commission in safeguarding the interests of all people detained under the Mental Health Act is preserved. These patients are unique in that they have lost their liberty. They are, in a sense, very much akin to prisoners in terms of how they feel about their health service. They have also lost the freedom to make decisions about their treatment. We know that the Government acknowledge the fine work done by the Mental Health Act Commission. Along with others, I will be seeking a change to the Bill to provide, perhaps, for a mental health sub-committee within the CQC, to make sure that a body of people within that organisation ensures that the interests and needs of detained patients are fully met in the future.
A number of people have already spoken about carers, not surprisingly. On Report in the House of Commons, the Minister of State for Health, Ben Bradshaw, emphasised that,
“the Government believe that involving and listening to users, patients, their carers and the public will be a central responsibility for the new commission”.—[Official Report, Commons, 18/02/08; col. 77.]
Carers UK is rightly concerned that the Bill, as drafted, does not include any measures to achieve this vision. I hope we in this House will ensure that there will be full recognition in the Bill of the role of carers, and the duty of the CQC to consult and involve carers, along with patients and others.
Finally, I turn to two related issues: the need for a set of guiding principles in the Bill—many other Peers have spoken about that—and a clear duty for the new organisation to drive up the quality of service across the country. At present the Bill has neither. Yet the Healthcare Commission and CSCI both have a duty to drive up quality, and the legislation establishing Ofsted and the Legal Services Board both included a strong statement of purpose for the organisations. Why should the Government leave the new organisation with a much narrower focus upon registration and inspection? Having been involved in running the Police Complaints Authority, I remember well that we vastly improved the quality and reputation of that organisation once we started producing reports on the general level of service, whether it was to do with deaths in custody, firearms incidents, the use of CS spray, or whatever. It was really only those reports that began to lift the quality of service across the police services. I am clear that this organisation must have that capacity—indeed, not just the capacity but the duty to provide those reports.
I welcome the Health and Social Care Bill in principle, and believe that with the changes to which I have referred, and the many others suggested by Peers, this could be a fine piece of legislation.
My Lords, I declare an interest as leader of a local council, and I shall try to reflect those perspectives in my remarks today. I apologise to my noble friend; he must be feeling that with friends like these, who needs enemies? There are lots of things in the Bill that we support but we ought to concentrate on our concerns. I have four, and I am not sure whether they are fully consistent with other areas of government policy.
I agree with my noble friend and many other noble Lords about the need for a supervised seamless service between social services and health. Whether that needs the same regulation because of the differences in culture, I am not sure. Many noble Lords have explored the differences, but one factor has not been accounted for, and I hope that my noble friend will reflect on it. Local government is about to be subjected to a totally new and different inspection regime—a radical change. A comprehensive area assessment will measure how local authorities respond with partners to the local needs of their communities. That is a far cry from the traditional top-down, tick-box inspections, and will involve inspectors working closely with local authorities in identifying needs as well as monitoring performance.
Will the Care Quality Commission, following the reorganisation, with all the potential problems to which noble Lords have referred, be able to support local authorities in this radical change? I hope that it will, but it is possible that it will not. In the debates in another place, the Secretary of State for Health recognised the need for parity with social care, but I hope that we can have something stronger than that statement when the Bill leaves this House. We need to ensure that the new commission is independent, has clear objectives and has a board that reflects its work in its entirety, not just one element.
Part 3 deals with a new approach to public health. We all welcome the modernisation in the Bill, but I am confused about the relationship between this Bill and the Civil Contingencies Act. Section 1 of that Act refers to any event or situation which threatens serious damage to human welfare in a place in the United Kingdom. Any serious public health issue would come under the scope of the Civil Contingencies Act, but the processes described in that Act are radically different from that prescribed in this Bill. There is no involvement of a justice of the peace. Local authorities with emergency and health partners can go ahead and do what is necessary under the Civil Contingencies Act. I hope that my noble friend can end this confusion. If there is a serious occurrence affecting an area’s public health, which Act do local authorities turn to—the Civil Contingencies Act or public health legislation? The procedures are quite different. I remind your Lordships that the Civil Contingencies Act was brought in because of the inadequacies of public services in dealing with foot and mouth or other emergency matters. We need to end that confusion.
I will now do what other noble Lords have done and refer to things close to my heart. Clause 133, in Part 5, places a duty on PCTs “to secure continuous improvement”. I have two concerns about that. First, that clause goes on to say that it is subject to the standards laid down by the Secretary of State. I am never really convinced that improvements in public services are produced by a command and control method. If we want to change the culture of an organisation, we have to encourage innovation, focus on individual needs and encourage localities to respond to their individual circumstances—rather than simply following the lead of the Secretary of State, which by its nature is bound to be generalised. Secondly, reflecting in the 1950s on his creation of the health service, Aneurin Bevan admitted that one of his mistakes was in removing the role of local authorities in health provision. I hope that my noble friend will have the opportunity to correct one of Nye Bevan’s mistakes by asking the Care Quality Commission to encourage pilots that will allow commissioning by a single, local agency—the local authority—rather than assuming that we need the duplication of PCTs and local authorities in all areas, which is a waste of resources.
Finally, I remind noble Lords that in July last year, the Government produced the subnational review, which looked at developing a single, regional strategy for parts of England and improving the scrutiny of regional bodies. I think that while that review left it unsaid, Members of Parliament have assumed that health should be included in that scrutiny. Clearly, health has a major part to play in developing a strategy for a UK region. Its contribution to the economy and social welfare of its area means that it should be a major player in developing such a strategy. Can my noble friend give some encouragement that strategic health authorities could be involved with other regional bodies to develop that regional strategy and be subject to the scrutiny that Members of Parliament will wish to see applied to regional bodies? The Bill has missed an opportunity there.
Given the time of night, I have tried to summarise what I was going to say. My noble friend needs to be in listening mode, not just during Second Reading but at the next stage of the Bill. We can improve this Bill to make something that will stand the test of time.
My Lords, I thank the Minister for his clear and helpful introduction to the debate and to this Bill. I also apologise to those speakers who followed immediately thereafter, as I had to leave to chair an evidence-taking session of a Select Committee; I have since been back and benefited from many fine speeches. It is late at night and I will try to be brief, but I would like to tell a little story that I hope can set the context for the questions that I would like to put for answer by the Minister either this evening or, more probably, in Committee.
After 34 other speeches, the story has of course been told more than once, but it is late at night and this is a bedtime story; good bedtime stories bear repeating, so I shall briefly repeat. Once upon a time, a long time ago, there was a young, thrusting, forward-looking and joined-up thinking Government that came upon the scene of social care regulation and found it all over the place. Some was being carried out by a variety of local authorities, some through the Department of Health, and so on. However, this fine, young, thrusting Government put through a Care Standards Act in 2000 that swept much of that aside and created the National Care Standards Commission to regulate care services, the public, private and voluntary sectors and private and volunteer healthcare services. That left the Social Services Inspectorate to assess the performance of local councils and social services. That fine, new, joined-up body got going with much enthusiasm, vigour and planning, but after three weeks of operation, the Government announced that it was to be abolished and replaced by the Commission for Social Care Inspection. CSCI incorporated the former Social Services Inspectorate, and started operations in 2004. In the 2005 Budget, the Chancellor announced the creation of yet another new inspectorate to include the functions of the Healthcare Commission, the Mental Health Act Commission and so on, and here we are today. Incidentally, at the same time the Chancellor also announced that childcare and social care functions would be taken from CSCI and moved to Ofsted. That took effect from April 2007.
Here we are once again with a tale of change and mergers. It has been pointed out that mergers are very consuming of time, energy, creative thinking and direction. That tale set in my mind a number of questions. If I were a pessimist, I might see it as a tale of serial meddling or muddling, but I am not a pessimist. I want to join the ranks of the optimists, and we have heard two fine optimistic speeches in the latter stages of this debate. I hope that the Minister can help me move into the mode of optimism by answering the following questions in a way that creates a positive frame of mind. The first question is: have we got it right this time? If we have, how will we know? Can the Minister give an answer to that question that is different from the answers we might have had in 2000, 2004 and in 2005? The Government are very good at setting targets and measures, but what targets and measures will they set for the success of this merger and this legislation? One measure might be a period of stability—if it lasts three weeks without the announcement of a new merger, that would be pretty good going. Perhaps the Minister can give us greater hope than that. Perhaps there will be years rather than months of stability. By what criteria will we judge the success of the proposals before us? Have we got it right this time? What period of stability will we have?
I shall close now as I promised to be brief but how much did these successive mergers cost? Was there huge expenditure on the relocation of staff and the replanning and rekitting of offices, let alone on the notepaper? Oh, the notepaper—how we agonise over the headings! What was the cost in real terms? The real terms costs were the opportunity costs of focusing the energy of some of our brightest and best on merging rather than on regulating and creating care of a high quality. I leave these questions for the Minister to answer to the House.
My Lords, I, too, thank the Minister for his succinct introduction to the somewhat disparate group of measures drawn together in the Bill. I also thank noble Lords all around the Chamber who added the points that need to be said, which could not possibly be said by the Government Front Bench.
When I worked for a major voluntary organisation for older people, one of my colleagues used to say that when the last director of social services would, of his or her own free will, consent to live in a residential home under the terms of a care package funded by his or her local authority, the charity would be obsolete. I am sad to say that that day is not yet in sight, and that is the reason why this Bill, stuffed as it is with tedious organisational detail, is so important.
I now work as a consultant and advise organisations on how to manage strategic change. I often advise them that when they face something called a merger but there is no obvious stated objective and it is not possible to tell what the eventual organisation will look like, then it is not merger. It is an acquisition of one organisation by another. I also give them the standard business advice that there may be many good reasons for a merger but saving money is not one of them. In 95 per cent of mergers, that never happens.
Why are people so sceptical about this merger? For one thing, it confounds the hope that while permanent organisational turmoil is now the norm for health and social care providers, there might have been a chance for stability and consistency somewhere in a system which is responsible for the expenditure of £105 billion per annum. Sadly, that is not the case. The real source of the scepticism is that the regulator is, as it stands at the moment, to be responsible for regulating healthcare not health. That is an important distinction. This body is going to be responsible for regulating three radically different services, each with a different legal basis. Healthcare is determined according to notional universal entitlements. There are comparatively few providers. Care is free but demand is managed by waiting lists. Mental health is dealt with in much the same way. Yet in social care there is no entitlement nor agreement about what should be provided. There are many different, disparate providers and demand is managed by eligibility criteria.
Without an express objective of this regulator being to improve health, it is inevitable that the commission will focus mainly if not exclusively on acute healthcare. That is easy to manage and can be determined objectively within the short periods that suit political convenience. I have thought all afternoon about what is wrong with this and what the analogy could be to explain it to those watching our debates. I have come to the conclusion that this merger is a bit like somebody in the world of sport suddenly announcing that there would be the same governing body for Formula 1, horseracing and athletics because they are all about getting from A to B.
The big problem is that it is difficult to see how this regulator can work with health and social care as it is now, never mind how it is going to be in about five years’ time. Huge, radical changes are about to take place in health and social care. The noble Lord, Lord Darzi, said in his introduction that his review is due shortly. If, as expected, his main recommendations follow the pattern that he set in his review of services in London, there will be a greater flow of patients between primary, secondary and tertiary care. There will be a greater need to focus on standards of care and patient outcomes in terms not of the institutions where people are but of their pathway and journeys between different institutions. This regulator, perhaps above all, needs to have the function of assessing the flow of patients, patient information and practitioners between different institutions.
In social care there is fundamental change, too. The extension of individual budgets and self-directed care to people who lack capacity and older people is going ahead rapidly. It is incredibly difficult to stand up and criticise individual budgets; they are so important and such an article of faith within certain parts of the social care world. Yet there is a growing concern that forms of care which work for people with learning disabilities may not be suitable for other groups of people who require social care. That includes older people. As has been said already, many older people fund their own care. However, there is no assurance in the Bill that either their care or, crucially, the advice that they may need is going to be regulated and inspected properly.
People who need social care have very few legal rights. The one they do have is the right to an assessment of their needs. I am already starting to pick up instances where local authorities have given up the pretence of carrying out assessments and are simply handing out to people a self-assessment form. A number of noble Lords have spoken today about the need for the commissioning of services to fall within the auspices of the regulator, which is absolutely right, but unless assessment services are also covered in the legislation it will be almost impossible to determine whether what is being provided by way of service is right and of good quality. Without the duty to inspect assessment and a narrow focus on healthcare, it is easy to see how this legislation will lead to a great focus—perhaps an exclusive focus—on acute interventions in health and social care only. That is not healthy for the population.
When the noble Lord, Lord Warner, the arch serial critic of the Government, laments the lack of detail in the Bill, I have to say to the Minister, “Game, set and match”.
It is absolutely right that the regulator cannot be independent and cannot fulfil its duty unless from the outset it has a clear set of objectives and regulatory requirements and, as the noble Baroness, Lady Meacher, said, the duty from day one to produce reports. That is what will give it its unique importance in providing strategic information across the whole of health and social care; it is essential.
We agree with the many noble Lords who have criticised the extent to which the regulator will be influenced by the Secretary of State and we will resist requests from wherever they come—even from lobby groups—to try to define closely what the priorities of the regulator should be. However, we believe that it is right for Parliament to set overarching thematic functions for the regulator. These should include a duty to ensure fair access to services and to uphold compliance with human rights legislation. In addition, the regulator should have a duty to ensure that the services the NHS and social care commissioners and providers purchase, procure and provide are carried out sustainably. Sustainable delivery of healthcare is probably one of the most important health contributions that one the biggest purchasers of public services in western Europe can provide.
Together with the noble Earl, Lord Howe, I had the joy of working on the Care Standards Act. It has left me with a firm belief that it is possible and right to make sure that regulation is of a light touch only if inspections are unannounced. We can ensure that vulnerable service users are protected by monitoring community treatment orders and those patients who have their liberty deprived because of Bournewood restrictions, but, throughout mental health or simply in care homes, the one thing we have to do is ensure that there are unannounced visits.
Many noble Lords have received representations about the Care Quality Commission having a responsibility to deal with complaints. We on these Benches are not convinced that it is right that the Care Quality Commission should deal with individual complaints. However, it is clear that there needs to be some body in the middle of the NHS with a duty to report on, and hopefully sort out, the royal confusion and mess that is the complaints system within the NHS at the moment.
Many things have been said about user involvement. I do not disagree with that; I believe that the Care Quality Commission should set an example by having user involvement at its heart. However, let us not forget that the real signal to us all that the CQC is doing its job and is fit for purpose will be the day when it turns up at a major hospital or a small care home to get rid of incompetent managers or practitioners, only to find that it is too late, because other professionals or users will have beaten it to it.
I agree with what the noble Baroness, Lady Gould, said about Part 4 of the Bill and public health. We will be with her in her attempts to clarify what is clumsily written legislation with good intentions.
We will support the health in pregnancy grant, because it is an extension of child benefit, which is a known way of addressing health inequalities. We will, however, wish to seek to extract from it the maximum health benefit and want to look closely at the way in which it is paid, particularly whether it should be paid as a lump sum.
I shall not detain the House at this late hour with a detailed discussion of Clauses 141 to 148, but I ask the Minister to explain to me in writing why the NHS should fund social enterprises, which are profit-making business albeit with an ethical social conscience, to take on services from a universal service, which is funded by the taxpayer. That seems not so much cherry-picking as selecting the cherries oneself and presenting them gift-wrapped with a bow to one’s competitors. I do not understand it.
We are about to spend a great many afternoons in the Moses Room. When we find attention wandering and focusing on Moses’ sandals, I ask noble Lords to return again and again to one simple question: will the provisions of the Bill make the life of a vulnerable person in a care home any safer or better? As the noble Lord, Lord Lipsey, said in his typically understated way, that is the test of this legislation. If any provision, whether it applies to health or social care, does not do that, we should not pass the Bill. This could be a good Bill; it is not yet. We have a great deal to do.
My Lords, after such an excellent debate as this, the amount of value added by a summing-up is perhaps questionable, but I begin by making the observation that the overriding characteristic of the speeches we have heard today has been one of support for the Bill as regards its principal aims, but constructive criticism as to its detail and likely implementation. My own view of the Bill is indeed of that kind, but the emphasis which noble Lords have placed on some of the detail is one reason why we can look forward to the later stages of our deliberations with particular interest.
This is a Bill of varied content, but which can be said to have a unifying theme: the well-being and safety of the public and a desire to promote the highest standards of care for those who, in whatever way, are in receipt of it. In that sense, the aims of the Bill cannot be faulted; the question, as so often, is about means rather than ends.
Perhaps the greatest amount of attention today has been focused on Part 1, which deals with the creation of the Care Quality Commission. With the single exception of the noble Lord, Lord Lipsey, few noble Lords have argued against the idea of bringing together the regulation of health and adult social care under a single structure. The concerns are all about when and in what manner this is done.
This is the fourth Bill in 10 years to deal with the regulation of health and social care. The old Commission for Health Improvement lasted just four years before it was abolished in favour of the Healthcare Commission. My noble friend Lady Bottomley reminded us that the National Care Standards Commission was a mere 17 days old when plans were announced for its replacement by what is now CSCI. Those two replacement bodies are today barely four years old and are now to be scrapped. Ministers may justify this in terms of the evolving delivery of health and social care, but it does seem extraordinary that we have needed four bites of the cherry before arriving at what is now trumpeted as being the last word in regulation. Ten years ago, and again in 2003, I remember asking the Government why it was not possible for the NHS and the independent healthcare sector to work to an identical set of standards. The answer I got was that there was a fundamental difference between a managed service and a regulated service: ergo, the standards to be applied in each context could not possibly be the same. Suddenly it seems that the apparently insuperable differences between a managed service and a regulated service are not so insuperable after all. I welcome that conclusion, but it is a pity that nobody could have reached it a bit sooner.
The regrettable prospect we are faced with, as so many noble Lords have pointed out, is regulatory disruption. When the chopper comes down on the three existing regulators, the excellent work being done by those bodies is going to be halted in its tracks. Whatever attempts are made to ensure continuity of work programmes and working practices, it is inevitable that the first two years of the life of the CQC will be devoted in large part to organisational issues. Many people feel that if the Government really had put the welfare of patients and the public first, they would have done much better to wait until the systems and working methods which the Healthcare Commission and CSCI have introduced had had a chance to embed themselves properly. But no: the Government decided that they were in too much of a hurry. I was reassured but slightly surprised to hear the noble Lord, Lord Darzi, say that he was happy with this degree of speed in the context of his own next stage review. Every other proposal for change has been put on hold in case it should pre-empt the noble Lord's conclusions; but for some reason not this one. The timetable for bringing the CQC into being really is extraordinarily tight.
What sort of a body is it going to be? We do not yet know the scope of its remit. Ministers say that they want it to be an independent voice acting on behalf of patients and the public. But how independent will the commission really be if it has no objectives defined in statute, other than a duty to have regard to government policy; if it is subject to powers of direction from the Secretary of State; if its freedom to set its own work programme is to be curbed for at least the first 18 months of its life; and if its chairman is apparently to have the status, judging by the salary on offer, of a medium-ranking civil servant? Taken together, these are worrying features; so I am at one with other noble Lords in wanting to see the independence of the commission clearly safeguarded in the Bill, together with a much greater emphasis on the need to involve, and listen to, service users and the public.
We are all conscious of the increasing overlap that exists between health and social care, which is one good reason for having a single regulator. But we should not exaggerate that overlap. The noble Lords, Lord Low and Lord Lipsey, pointed out that the regulation of healthcare is largely information-based, whereas the regulation of social care is based much more on inspection and talking to people. Of course, the two methodologies can draw from each other, but the essential differences will surely remain. A small care home is a closed community of the vulnerable where the user experience is everything. A large general hospital is assessed on a whole range of technical indicators, which may or may not give rise to an inspection. In a real sense, the purpose of each sort of assessment is quite different. Equally, as the noble Lord, Lord Patel of Bradford, reminded us, the work undertaken by the Mental Health Act Commission is of a different nature again from that of the Healthcare Commission or CSCI.
It is partly with that thought in mind that, again like other noble Lords, I believe we need to find a way of reassuring ourselves that within its unified regulatory structure proper weight is given by the CQC to all three of its main areas of activity, without any one of them assuming an undue ascendancy over the others. A number of speakers have been eloquent on that theme, not least the noble Baroness, Lady Barker. It was unfortunate that the advertisement for the chairman of the commission displayed a blatant bias towards healthcare while downplaying social care. It would be more than unfortunate if that sort of bias were to be translated into the operational priorities of the new body. When we come to Grand Committee, I believe that there are various ideas that we can explore to try to prevent that from happening.
There has been a general welcome for Part 2. For my own part, I believe that the principle of what is proposed is right. With the creation of the Office of the Health Professions Adjudicator, we will have a visible separation of fact-finding from fault-finding—a principle that the Government fiercely resisted in the NHS Redress Act.
The real issue is to make certain that the changes work and are seen to work fairly. Even without this Bill, fitness-to-practise committees at the GMC are moving to the civil standard of proof, so that change will go through no matter what we decide here.
There are some perfectly legitimate concerns about the way that the sliding scale will operate and how the Office of the Health Professions Adjudicator will relate to other bodies such as the CHRE, the GMC itself and, crucially, the Government. The whole point of setting up OHPA is to have an independent adjudicating body. So, just as it is important for it to be seen to be operationally separate from the GMC, it is important for it to be seen to be operationally independent of Ministers and the Department of Health. We need to satisfy ourselves that it will be. There are some practical questions about the transition from the present system to the new one. All these are issues that we can look at in more detail in Grand Committee.
Noble Lords have devoted comparatively little time to the other matters in the Bill, and I feel that I need mention only a few. I feel sure that we will wish to debate the role of the responsible officer and, in particular, how the new arrangements will embrace those practitioners who work independently.
On Part 3, I join the noble Baroness, Lady Gould, in believing that we need to consider carefully the extent of the powers to be vested in justices of the peace in relation to public health hazards. We also need to look at whether it is appropriate for there to be further transparency in the way that these powers are exercised, since at the moment the Bill is largely silent on that issue. We shall certainly need to look in some depth at the proposals in Part 4 for a health in pregnancy grant.
The health of pregnant mothers is, of course, of enormous importance, but what evidence is underpinning the policy? The grant will be available from the 29th week of pregnancy, apparently on the grounds given by the Prime Minister who said that he had received powerful representations that nutrition was “most important” in the last months of pregnancy. However, when giving evidence in the other place, the Minister, Mr Bradshaw, admitted that Mr Brown was wrong about the nutritional benefits the grant would give in the later stages of pregnancy, and that the payment would have been more beneficial in the early stages of pregnancy. Well, if that is the position, we have to ask the obvious question: are the Government satisfied that this grant represents the best use of £100 million? I shall be very interested to hear the Minister’s reply.
In common with other noble Lords, I look forward to the later stages of the Bill with considerable anticipation. In doing so, I am confident, on the basis of today’s debate, that with the benefit of constructive contributions we will be able to shape and refine some of the Bill’s rougher edges and, in so doing, perform the task that we are put here to do. I hope that the Minister, for his part, will show himself to be a willing listener.
My Lords, we have had an interesting and wide-ranging discussion on this important Bill. It is clear that the Bill will greatly benefit from the depth of insight and expertise that we have heard today. Before turning to the specific points raised, I take the opportunity to say how pleased I am that there has been general support for some of the key principles of the Bill. There appear to be some differences in the exact detail of the provisions, and I hope that I can offer some reassurances and clarifications on the specific points raised. Given the time limitations that I face and the number of speakers whom we have had the benefit of hearing today, I will try to answer the key points raised thematically and, of course, write to address any points that I am not able to cover now.
I shall deal with the Care Quality Commission first. I was pleased to hear the support for a more intelligent, light-touch approach to regulation. Most importantly, I take the opportunity to once again reassure those who doubt that social care will be properly represented. The Care Quality Commission will build on the good work of all three current regulators. I emphasise that, in fact, the social care world has a head start—it has more providers and much greater familiarity with registration, which will be completely new to the NHS. I also reassure the noble Earl, Lord Howe, that we are working hard with the current regulatory bodies to make sure that we minimise disruption in the landing of the helicopter, and to ensure that the new commission builds on the success of its predecessors.
It seems paradoxical—to me, at least—that there has been so much emphasis on what distinguishes social care from health and how important it is that those differences are preserved, alongside just as great an emphasis on the need for integration of services at both national and local level. However, that paradox is irrelevant, because what matters to patients is the seamless provision of services and the regulation of such, as has been eloquently described. What matters is not the virtual boundary that healthcare and social workers create, but what is perceived through the patient’s eyes.
Points were raised about the salary of the chair. I agree that appropriate remuneration is necessary to attract suitable candidates, and recognise that that is an important job in a significant new organisation. I reassure the House that I will do my utmost, because principally we all agree that we are trying to attract the best talent with the right leadership, unbiased to either social or health care. I am happy to look into that further.
The noble Baroness, Lady Cumberlege, questioned how independent the commission would be. The Healthcare Commission and CSCI represent models of independence in public sector inspection. We are committed to maintaining that independence and, in some areas, are giving the commission more freedom than its predecessors. For example, the commission will publish the guidance that will set out how providers can meet the registration requirements under Clause 16, the consultation on which was launched today. Crucially, the commission will also be able to tackle independent enforcement action if any provider is failing to meet those requirements.
I shall deal with the relationship between the commission and Monitor, the Independent Regulator of NHS Foundation Trusts. Registration of NHS providers will be separate from the authorisation process to obtain FT status, will offer independent assurance of safety and service quality and will be a requirement for all providers wishing to offer health and/or adult social care services. FT authorisation is a separate bar very successfully set up by Monitor to ensure that FTs are legally constituted and have the quality of governance and financial strength to operate autonomously as public benefit corporations. The greater autonomy that comes with FT status creates the need for an independent body to regulate them in these respects. This independence would be compromised were it also that body’s role to monitor safety and quality.
The right reverend Prelate the Bishop of Ripon and Leeds and my noble friend Lady Wilkins highlighted the need for a better complaints procedure for those who use services. I should like to reassure the right reverend Prelate that this is precisely our intention by strengthening complaints handling at a local level. The consultation launched today includes requirements from providers in relation to complaints handling and I would encourage noble Lords to engage in this consultation. That consultation also seeks views on when primary medical care, as pointed out by the noble Lord, Lord Colwyn, could be brought within the scope of the new Care Quality Commission and how best this could be done.
Many noble Lords sought reassurances that the commission will involve patients, people who use the service, carers and the wider public in its work. The Government believe strongly in the importance of engaging the public and professionals in its work. For this reason Clause 2 requires the new commission to consider the views of the public as well as the patients and service user representative groups in all aspects of its work and there will be formal mechanisms to enable this. I appreciate the extent of concern on this subject and recognise that our effort to reassure in the other place has not won over some noble Lords in this House. I hope we can explore these issues in more depth in Committee.
The noble Baroness, Lady Neuberger, raised the issue of whether there should be regulatory objectives in the Bill. I should like to highlight that Clause 2 sets out three particular outcomes that the commission should encourage through carrying out its functions. One might say that these are its objectives, one of which is the improvement of services. The noble Baroness, Lady Neuberger, and many other noble Lords also queried whether the commission will be able to take effective measures against commissioners. In its periodic reviews the commission will assess how well the service commissioners provide and commission to meet the needs of their local population. However, it is important to differentiate between regulation and the publication of information for public accountability and performance management. In the case of PCTs it is the role of the SHA and in that role the SHAs will be expected to use information from the commissioners’ review.
As a number of noble Lords have raised the issue of the Human Rights Act, let me stress again what I said in my opening speech. We undertook in the other place to consider the issue of publicly arranged care in the context of this Bill with a view to reporting back on this important issue during the further passage of the Bill. That is still very much our intention and we are currently discussing with stakeholders how best to do it.
I turn now to professional regulation. I am pleased that there was so much support for the move to civil standards of proof. I know there were concerns from some quarters that the civil standard of proof will force healthcare professionals to practise more defensively. As I said in my opening speech, I do not believe this will happen as I truly believe in the commitment of health professionals to care effectively for their patients which will guard against this risk.
While strongly welcoming the principle of an independent adjudicator, a number of noble Lords have asked for clarification about the funding and the cost of the Office of the Health Professions Adjudicator. The Government are providing funding for set-up and a transitional cost for the OHPA. I want to reassure the House that the Bill sets out proper safeguards to ensure that the OHPA’s costs remain reasonable and proportionate. In response to my noble friend Lady Jones, who queried the costs that might fall to the regulators, I assure the House that the department is continuing to discuss the figures with the GMC and the GOC, and I hope to return to this in more detail during Committee.
A number of noble Lords have spoken on the provision for legally qualified chairs and legal assessors for the OHPA. Let me clarify that the Bill will allow the OHPA through its rules to dispense with legal assessors where there is a legally qualified chair. It will be for the OHPA’s experts to decide which case merits which kind of legal support. The Bill requires them to consult fully before making those rules.
Related to the composition of fitness-to-practice panels, the noble Lord, Lord Walton, asked why the Bill does not require a doctor of the same specialty to sit on the panel. I hope that I can clarify the matter for him: it is not the role of the professional member to advise the panel on professional matters. If the panel needs specialty-specific advice, the Bill allows that to be provided by a specialist advisor, or by means of expert reports or witnesses, which is currently the case for the GMC and the GOC.
The noble Lords, Lord Patel and Lord Colwyn, expressed concerns about the role of the responsible officer—in particular, on combining that with the role of the medical director. I reassure the noble Lords that the responsible officer role strengthens clinical governance. In the best organisations across the country much of that role is played by the medical director. We are building on what is already working well by putting current best practice on a statutory footing. However, I agree with concerns regarding how we organise that type of provision within the private sector or in areas where there might be an independent practitioner. I look forward to discussing that issue with the noble Earl, Lord Howe, in Committee.
The noble Lord, Lord Colwyn, raised the issue of sharing unvalidated concerns about healthcare workers. I emphasise that we have thought carefully about the balance to be struck between protecting patients and being fair to professionals. I am confident that we have the balance right. There are circumstances in which healthcare organisations that have received serious allegations about the conduct or performance of a health worker will judge that they need to share that information with another organisation. I fully accept the need to safeguard and protect healthcare workers against unfounded or even malicious allegations, and we will set out those safeguards in detail in the regulations and guidance.
My noble friend Lady Gould raised concerns that the public health protection powers can be used against individuals with HIV/AIDS. She suggested that the powers should be restricted to diseases that can be casually transmitted. However, there is no way to predict how a disease could mutate. For example, avian flu is not currently casually transmittable between humans, but there are significant concerns that it could mutate into that type of disease. If we carve out a specific disease list from the reach of this legislation, we are putting public health at risk. The all-hazard approach to dealing with infection and contamination recommended by the WHO and the international health agency is essential.
I thank the noble Baroness, Lady Murphy, for raising the issue of safeguards in Part 3. I note that the Joint Committee on Human Rights today published its amendments to this part of the Bill covering these concerns. I look forward to further discussions on this issue as well in Committee.
I turn to the health and pregnancy grant. The noble Lord, Lord Patel, and the right reverend Prelate the Bishop of Ripon and Leeds, both raised the important question of why the grant will not be paid per expected child. First, the health and pregnancy grant is not solely about nutrition. It aims to support a woman’s wider health and well-being during pregnancy. Secondly, I have clear advice on this subject from the Royal College of Obstetricians and Gynaecologists and from the Scientific Advisory Committee on Nutrition, which is an advisory committee of independent nutrition experts that advises all UK Governments. Both have told me that there is no reliable evidence that increasing nutritional intake has any effect on the outcome of multiple pregnancies. In light of the expertise of both these organisations, I hope I have reassured the House on this point.
The noble Lord, Lord Low, raised the issue of guidance about ordinary residence disputes. It is an important issue that we want to look at as part of a comprehensive review of care and support. A Green Paper that will consider these issues is due to be published next year.
The noble Earl, Lord Howe, asked how this Bill will fit in with the next stage review. I can reassure the House and the noble Lord, Lord Walton, that the review should not lead to a change in the organisational structure of the NHS. It builds on the reforms of the last few years, looking at how we can continue to improve the quality of services that the NHS and social care provide. One key feature of the new regulatory framework is flexibility. It will be able to provide the framework needed to support the work of the next stage review.
The noble Lord, Lord Smith, made a point about the overlap of the legislation with the Civil Contingencies Act. The new provisions create a set of powers tailored to dealing with a significant threat to public health. These powers will introduce specific safeguards and set out the types of provision that might be made. The legislation does not overlap with the Civil Contingencies Act, which is used where other legislation is not available. This legislation provides a tailored public health protection measure.
The noble Baroness, Lady Barker, raised the question of the social enterprise fund. Social enterprises have demonstrated a capacity to provide an enhanced quality of health and social care that ensures better health and well-being outcomes for patients and users. They also tend to be more innovative and flexible than traditional providers. Social enterprises have social objectives and reinvest their profits in the company or in the local communities in which they deliver services. This means that the public money spent on commissioning social enterprises can often achieve social benefits beyond the services directly procured, through regeneration and improved social inclusion.
I hope that I have responded to as many as possible of the points raised in this useful debate. I will of course write to clarify any issues that I have been unable to cover in this speech. For example, I will write to the noble Baroness, Lady Gardner, about her concerns about the General Dental Council and to my noble friend Lady Gould regarding the operation of these measures in relation to people with HIV and AIDS.
This debate has demonstrated the importance of quality and safety in health and adult social care, and the huge potential that these measures have to change things for the better. We have before us a Bill that will enhance and improve the regulation of the health and adult social care system as well as the regulation of health and social care professionals. It will update important healthcare protection measures so that they are relevant and fit for the purpose of the 21st century and will also introduce a new health and pregnancy grant to help to improve the health and well-being of pregnant women.
In today’s debate, it has been made clear that the Bill will continue to have the benefit of detailed scrutiny as it passes through your Lordships’ House. I look forward to those further debates and I know that we will have a better Bill at the end of that process.
On Question, Bill read a second time, and committed to a Grand Committee.
House adjourned at 10 pm.