Monday, 21 April 2008.
The Committee met at half-past three.
[The Deputy Chairman of Committees (Baroness Gibson of Market Rasen) in the Chair.]
Health and Social Care Bill
If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
1: Before Clause 1, insert the following new Clause—
“The regulatory objectives
In this Part a reference to “the regulatory objectives” is a reference to the objectives of—
(a) protecting and promoting the public interest;(b) protecting and promoting the interests of people who use health and adult social care services and their families and carers, including in particular the need to safeguard and promote the rights and welfare of children in relation to their health and health care;(c) promoting safe, high quality and personalised health and adult social care services;(d) protecting and promoting the exercise by people of choice, control and power over the health and adult social care services they receive;(e) protecting and promoting the human rights, dignity, welfare and independence of people who use health and adult social care services;(f) protecting and promoting the rights of people detained under the Mental Health Act 1983 (c. 20), or otherwise deprived of their liberty on the grounds of their mental health or capacity;(g) encouraging improvement in the quality and provision of social care services in England;(h) encouraging improvement in health for all citizens and in the provision of health care by regulated bodies and, in doing so, ensuring that standards set by the Secretary of State under Chapter 3 of this Part are given effect.”
The noble Baroness said: It is an honour to open the batting. I welcome the noble Baroness, Lady Thornton, to her first Grand Committee as a Minister. I am sure that she will enjoy it immensely. There is no need to extend the same courtesy to the noble Lord, Lord Darzi, because he is by now a veteran.
In addressing this group of amendments, I take the Committee back to Second Reading, which was held just before the recess. As noble Lords will recall from that lengthy debate, in which a great many speakers took part, there is consensus that the underlying aim of the Bill is to be welcomed. The bringing together of health, social care and mental health care is something with which noble Lords agree. However, since the Bill entered another place, there has been persistent and underlying concern that the framework as set out in the Bill is insufficient to carry the expectation of bringing together the regulation of three considerably different activities—health, social care and mental health—in a way that would not only ensure that the ongoing work being done by the individual commissions was to a very high standard but set a framework for the future.
It is customary on these occasions in this Room for the Opposition to spend many hours insisting that to ensure that Parliament’s intentions are implemented, measures must be in the legislation. It is equally customary for the Government to argue that the inclusion of any such measures in statute is unnecessary, either because that would be too detailed or because, following a classic line of legal argument, it is preferable to omit stuff from law as putting it in that means you are being exclusive. This time, that argument will not stand; it was comprehensively and fatally undermined by the Government when they published the job description and the recruitment materials for the chair of the Care Quality Commission. The bias in that job towards healthcare and acute healthcare was unmistakable. The job was described in terms equivalent to the chair of a strategic health authority. The bias was unmissable in that it completely failed to require that candidates have any experience or knowledge of local government and failed to mention the introduction of comprehensive area assessment, the key measure under which most social care services will be commissioned and which will stand from next year.
The message could not have been clearer that this was going to be a health body and that social care and mental health care would be tacked on—not quite as an afterthought, but very much as poor relations. As anyone who sat through Second Reading knows, that is simply not acceptable. It is not the basis on which health and social care services are going to be developed in this country in the foreseeable future, not least because all political parties and almost all practitioners and users are of the view that health and social care and mental health care services should be brought together but that this needs to happen on a basis of clarity.
In light of that job description—one of the most memorable of all time— opposition Members might have reacted to the Bill in ways that were understandable but inappropriate. It would have been reasonable for opposition Members to insist on tying down the nature of the commission in great detail, but I hope the Minister will agree that the amendments we have tabled, with the exception of those probing specific issues, show that we have not done that. We have sought to address what remained as the key outstanding issues on what an independent regulator for these three functions should be like.
I hope that on that basis we can dispense with our traditional arguments and proceed to a worthwhile discussion about exactly what the purpose, nature, structure and remit of this organisation should be. It has a hugely important job to do. It will regulate expenditure of more than £100 billion—10 per cent of our gross domestic product. It will oversee the registration and performance of 28,000 providers of care, which vary from acute teaching hospitals, such as the ones over the water, through to tiny little independent care homes. That is a massive job. If this regulator fails to do its duty, that will impact on the lives of pretty well every older person, most children and a fair percentage of adults in the country.
Many of the amendments that we will discuss in the coming days reflect the reality outside, which is that at all levels, from the strategic development of policy on the future of public services down to local operational decisions, healthcare, particularly acute healthcare, receive greater attention and a greater amount of public funding. Yet, as the Wanless report showed so clearly, it is important that social care be funded and organised in such a way that it promotes well-being, particularly for older people, rather than concentrating solely on the treatment of acute illness. If we had a regulator doing that, its priorities, as set out in the legislation, would be very different from those in the Bill.
In this Bill, the House has a unique opportunity to ensure that the future of our largest public service is focused on long-term improvement of the health of the nation, rather than on acute illness. It is an opportunity that we should not let pass by.
I turn to the amendment. The existing bodies, CSCI and the Healthcare Commission, have regulatory objectives set out in statute. CSCI has the objective of encouraging improvement in the provision of English local authority social services; the Healthcare Commission has a similar duty. As it stands, the Bill gives the Care Quality Commission a very weak set of duties that are tantamount to it being a registration, review and reporting body without clear objectives, and which is insufficiently independent of the Secretary of State. Were the Bill to pass unamended, it would be remarkable that a regulator would exist without objectives. All other major regulatory bodies in this country have clear objectives set out in statute. In his review of legal services—the precursor to the Legal Services Act 2007—Sir David Clementi said that,
“the first step in defining the regulatory regime should be to make clear what the objectives of the regime should be. This is critical … since the objectives represent the criteria against which they must determine … regulatory action; and against which they will be held accountable”.
I have proposed in Amendments Nos. 1 and 3 a new set of regulatory objectives for the CQC. This will bring about clarity, not just for those who will be responsible for carrying out the regulatory function, but for all the other players in the health and social care field who will interact with this body. It will not be the only body that has concerns about improvement, complaints or user involvement, nor will it be the only one responsible for inspecting healthcare—about 60 different bodies are responsible for inspecting the NHS. It is important that the role, duties and the whole basis for the actions which the regulator will take need to be understood and clearly set out.
One of the key issues addressed in the amendment is what I call “risk versus rights”, which is shorthand used by people who work in social care. Principally, the regulation of healthcare, as it stands, is based on risk. This is not surprising given the serious nature of the work undertaken and its consequences for individual patients; it is a risk-based organisation. In social care, however, things have moved on greatly. The rights of people not only to services but to be treated in ways which ensure their autonomy, dignity and well-being are becoming so fundamental to the whole of provision that if the risk-based approach the Government are proposing for the CQC were to go ahead, the regulatory framework would represent a major step back for the development of social care services.
I draw to the Committee’s attention the duties set out in Amendment No. 1 and the fact that the words “protecting and promoting” those issues on behalf of the public run throughout it. That is the way in which the amendment addresses the issue of rights versus risk.
Amendment No. 3 is different and gives to the Care Quality Commission a duty to promote those objectives. There is no such duty in the legislation as it is set out. It would be strange if in any other field we were to set up a regulator, give it a set of objectives and then not expect it to promote those objectives within its work. If, for example, Ofsted were simply given the job of ensuring that education was not bad as opposed to promoting higher standards and improvement, we would all have something to say. The amendment builds on the work which CSCI and the Healthcare Commission have done in promoting those regulatory objectives during their short time in existence.
Amendment No. 14 seeks to delete much of the wording of Clause 2, most of which is replaced by other amendments. In particular, it seeks to delete subsection (4) and has a similar effect to Amendment No. 22, tabled by the noble Earl, Lord Howe. The regulator has to be independent of government and if subsection (4) were to remain, that independence might be compromised. Why is it of such importance that a regulator should be independent? I give the example of the FSA and the Treasury, where it is of importance that the bodies have demonstrable independence and different functions in relation to the world of finance. As long as the Department of Health retains a direct involvement in the provision of health services, as it does at the moment, there is a need for the regulator to be strongly independent. That kind of check and balance is only sensible. For all these reasons, I beg to move.
I shall speak in particular to Amendment No. 1, to which I have added my name. It is crucial that the objectives should be on the face of the Bill so that everyone knows why the inspectorate is there. There are powers given and the duties and responsibilities which go with them must be clearly laid out. Patients can move between different sectors and may often be in healthcare and social care—and possibly in mental health care—simultaneously. It makes sense to bring the regulators together, but that makes it all the more important that the objectives of the different branches that are now going to be jointly inspected are clear and consistent.
As patients move between different sectors, they need to know that all the care they receive, wherever they are, is of a uniformly high standard. In health, they need consistency across the NHS, especially for emergency care provision—not only emergencies occurring outside in the community that cause them to be taken into hospital but also emergencies that arise as a complication of the treatment or investigation that they undergo. It is no good for a patient to be in a unit which is fine at dealing with something until it goes wrong and then have to be taken a long way in a helicopter and put at risk by inordinate delays because there is no adequate infrastructure to deal with complications.
The word “dignity” is rightly used in the amendment, because there is now good evidence that care given in a way that enhances people’s sense of personal dignity, worth and well-being improves their recovery time. If anyone has any doubt about that, I refer them to the work of Harvey Chochinov, who has published several papers on the subject and done sound research into how care is given. Dignity is not an internal construct; it depends on the way that others interrelate with us, react to us and make us feel of value, and on the way that we are asked our opinion, consulted, and how our needs and fears are listened to and addressed.
The word “improvement” comes up in two parts of the amendment, which is crucial. It is too gentle a word to describe what really needs to happen. I would like it stated clearly that “improvement” must encompass research and development, and the educational infrastructure that provides it. Improvement does not happen unless people continually reflect on practice, learn from it, and put in place education and training to improve standards and audit their care.
When we talk about promoting independence, we have in mind particularly those services which sit between health and social care, such as occupational therapy, and which are of key importance. Physiotherapy and occupational therapy are often the services which help patients get home. If they are not in place, patients do not get home. The speed with which improvements in occupational therapy in particular are put in place can make all the difference between someone languishing in hospital and deteriorating and their getting home and beginning to resume independent living, with a raft of infrastructure support then being given.
I anticipate the Minister flagging up some difficulties regarding the fourth objective, and I have some sympathy with him. I was unable, however, to come up with better wording. My difficulty is with that word “choice”. In some aspects of service provision in health, it is extremely difficult, if not nigh-on impossible, to promote the exercise of choice and still provide appropriate clinical care, because there is always an outcry when local services are closed or rationalised. The only way to deliver new technologies cost-effectively and use them appropriately is to develop a critical mass and invest in them. A clear example of that is positron emission tomography, or PET as it is known. To turn on the PET scanner is inordinately expensive. The scans that one gets are brilliant and will influence clinical decision-making hugely, but it is not feasible for people to choose to have a PET scan rather than something else if it is not clinically indicated; nor is it appropriate for people to demand that their local service develops PET scan provision because of the complexities of delivering that technology, including the radiation source, which needs to be near a cyclotron. It is true that patients often ask for scans in the mistaken belief that a scan is some kind of magic investigation that can come up with all the answers, whereas the reality is that scans, whether they are CT scans, MRI or even, occasionally, PET scans, are undertaken to confirm a clinical suspicion of a diagnosis. A negative scan does not mean that disease is not present; it simply means that the amount of disease was not big enough to show up or cast a shadow on a scan.
So there are some difficulties around the word “choice”, but there is an important role for advocacy for patients. Choice is much stronger in social care, where people have a much better knowledge and awareness of what they need to continue living independently. However, even in the health service people need choices over what to wear, what to eat, whether they want to be in with other people or whether they desperately want to be in a single room on their own. It is surprising how many patients feel more comfortable surrounded by other patients in a four-bedded bay because of the security of having others around rather than the loneliness of being in a side room.
There are other choices that even in healthcare must be made available, such as the timing of medication. It is tragic to hear of Parkinson’s disease patients who are not given a choice over the timing of their medication and whose condition deteriorates hugely during a hospital admission because they do not get their medication on time.
In proposed paragraph (d) of the new clause, I wonder whether we need to look at the wording to make sure that people get the best quality care within the resources available and that there is a just allocation of resources to meet need rather than simply to respond to demand. With that caveat, I give my wholehearted support to having the objectives in the Bill. I could live with the wording as it is in the amendment rather than the alternative of not having the objectives there.
I add my strong support to Amendment No. 1, to which I have added my name. Clear objectives are probably more important for this body than for almost any other one can think of. As the noble Baroness, Lady Barker, said, the CQC will have to regulate tens of thousands of little businesses, along with very large hospitals. I do not think that we underestimate the enormous challenge that this will present to the organisation. Inevitably, the CQC will prioritise its work. It will probably focus very strongly, initially, on certain areas of work, but it is crucial that neither the CQC nor Parliament ever loses sight of the full breadth of the work that it needs to do.
Will the Minister confirm the Government’s support for all the objectives set out in the amendment? There is the objective of promoting public interest and the interests of users and carers and for users’ choice. I recognise the point made by the noble Baroness, Lady Finlay, that inevitably there are types of treatment where choice is impossible. If somebody needs a top security place in Broadmoor, one obviously cannot offer them the choice of going to the hospital down the road. The objective of choice is fundamentally important, although I am not sure whether it really needs to be adjusted to allow for that.
Then there are the objectives of promoting children’s health, of safety, high-quality care, dignity, welfare, independence, the rights of detained patients, social care and public health. I do not believe that any of us could disagree with any one of them, but for the CQC to deliver all of them will be a massive challenge—there is no question about that. For Parliament to keep an eye on all those objectives, it needs to have them in the Bill.
I hear rumours that the Government want the CQC to concentrate on the most basic safety and care standards to have a single set of standards that can be met by the multitude of independent and voluntary sector provisions and the little, tiny homes, as already referred to. That is a very long way from the excellent work being done by Monitor and the Healthcare Commission with trusts to achieve a gold standard of care. Are the Government committed to ensuring that the CQC works with Monitor to take the gold standard agenda forward along with all its other responsibilities? One could lose all that so easily. That is a very alarming thought for people on the front line, as it would be for patients and service users if they were aware of that danger. It would be an appalling catastrophe for the health service.
We need to know whether the Government are committed to this gold standard agenda or whether the rumours are correct. Is the Government’s primary concern to go along at this low level, achieving a basic standard across the very wide area of provision in social care and healthcare? It is not clear to me that in that case the CQC would have any relevance to most health trusts or any NHS trust and certainly not to foundation trusts, because most of them are way above that level of care and safety.
In fact, I am sure that the Government will want the CQC to be ambitious in raising standards. If that is so, I am sure that the Minister will agree with the words of Sir David Clementi which have already been quoted by the noble Baroness, Lady Barker, in relation to the Legal Services Board. As we heard, he underlined the absolute primacy of objectives in setting out to establish a regulatory body. Not surprisingly, many other regulatory bodies have sets of objectives defined in statute: Ofsted, the Food Standards Agency, the Financial Services Authority and Ofcom. Having the objectives in the Bill lets us all know the modus operandi of the organisation. It is clear and transparent but most importantly it enables Parliament to monitor and care for the delivery of those objectives and ensure their fulfilment.
The alternative approach in Amendment No. 4 in the name of the noble Earl, Lord Howe, provides, as I understand it, a single focus on the interests of service users and their families and carers. There is of course much to commend in that clarity. However, in view of the considerable risk—I emphasise that it is considerable—that areas of work will be lost by this huge organisation, there is great merit in a fuller statement of regulatory objectives in this context. I hope that the Minister will recognise the strength of the arguments in this case.
I should like to think that this amendment or something very like it will commend itself to the Minister and that the arguments ably put forward by all the noble Baronesses will resonate strongly with him. Building a set of overarching objectives into this part of the Bill is, to my mind, tremendously important. There are various ways in which we can do that and there is no doubt that there is a discussion to be had on the precise detail of the objectives, but leaving the first part of the Bill as it is seems to me unacceptable if we want this new body to be a force for public good and to govern its own agenda rather than simply being a tool of the Department of Health or the Ministers of the day. Giving the commission some well defined objectives is part of the buttressing that we need to create to enable it to have independence from Ministers. The less specific the Bill is on what the commission is expected to be and to do, the more scope there is for the sponsoring department to influence its activities.
The other key point was well made by the noble Baroness, Lady Barker. This will not just be a body that registers people, reviews what they do and then reports back. If it works as it should, it will be one of the positive influences that we can look to in the system to ensure that standards of care across the piece are maintained and improved in accordance with the kind of values that the amendment articulates.
The present improvement duties set out in Clause 2 are quite vague, whereas the duties under which CSCI currently operates are much more specific. CSCI will say that that is helpful, as it enables it to be more focused in what it does and more consistent in the decisions that it takes and to be and feel more legitimate when exercising its powers. If we are clear about what the commission is for, I think that we are being fair to everyone. We are being fair to those on the receiving end of regulation who are in a better position to know what to expect and why; we are being fair to the commission, which will have a better sense of direction from the outset; and we are being fair to ourselves as legislators, because we will be able to hold the commission more accountable than we might otherwise be able to.
I understand the point made by the noble Lord, Lord Darzi, at Second Reading—that we want a regulator capable of adapting to changes in the delivery of health and social care over time. We do not want to come back to the Moses Room after five years to invent yet another sort of regulator, merely as a result of having been too prescriptive about this one. But I do not think that we are talking about being prescriptive here. The values set out in the amendment are manifestly enduring. They should apply, whatever the manner in which care is delivered or received, so I do not think that we need to fear that the amendment would create a hostage to fortune in the way that some might suggest. Indeed, if that were so, one would have to ask why other regulators established by primary legislation in recent years have been given this kind of directional underpinning. There are good precedents. Ofcom has been mentioned and has an overarching principal duty, and below that a set of specific statutory objectives that it is required to secure, such as plurality of providers and the protection of the public. In fulfilling its principal duty, Ofcom must have regard to an array of detailed aims—for example, the desirability of promoting competition, encouraging innovation, taking account of the interests and needs of different people, taking account of the needs of the disabled and of other vulnerable members of society, and furthering the interests of consumers, including the need to have regard to choice and quality. While we may think that Ofcom is a different sort of beast from the Care Quality Commission, it operates to a set of aims and values that are directly analogous, if not identical, to the aims and values set out in the amendment. That should give us confidence.
Sometimes, when regulators are created by statute, certain Acts of Parliament confer a general duty, not just on the regulator, but on the relevant part of the Bill as a whole. The Climate Change Bill does this, as does the Sustainable Communities Act 2007, which states in Section 1:
“The principal aim of this Act is to promote the sustainability of local communities”.
That is the model followed in the amendment, although it takes the precedent of Ofcom and makes the overarching duty more detailed and specific.
The thought that lies behind my Amendment No. 4 is similar; it applies a single principal objective to the commission. It is the same idea that was adopted for the Food Standards Agency. If that formulation were adopted, it would be possible to set out below it a series of detailed aims similar to those in Amendment No. 1 and require the commission to adhere to those aims in the fulfilment of its principal objective.
Clearly there are various ways in which the end result could be achieved. I am not wedded to any one of them in particular, but we need to agree on one formula or another from the many available options.
I support the first amendment and will speak to Amendment No. 3, to which I have added my name.
What are the objectives of the Bill? Are they to improve regulation or reduce the number of regulators or are they an attempt to improve services or save money? Perhaps there is an element of all those in the Bill, but there was a lot of confusion at Second Reading, when a number of contributors seemed to believe that by putting the Bill together we would improve services per se. That is not necessarily so. It takes a great deal more to do that, as we have seen in relation to local authority services and the difficulties that occur in providing a continuous service in housing benefits and care services. In its present form, the Bill does not do that. However, if we have a set of objectives in the Bill that give a direction and sense of purpose to the commission, that may help the commission to promote and move forward regulation that enhances services. That is what is behind the amendment: promoting those services might move us forward.
I do not want to repeat what has been said, as the noble Earl, Lord Howe, has covered many of the points that I was going to make about comparisons with other organisations. For seven years, I was a member of the Food Standards Agency. Having an overarching principle driving us forward and being independent of government enabled us substantially to change the attitude to food in this country from one of total suspicion to one of acceptance, involvement and understanding. Because social care has many of the same elements, as does healthcare generally, in arousing the suspicion of the general public, we need the same sort of drivers to provide enhancement and promote the public’s understanding of and engagement with those services.
The one point that I want to emphasise—it was an issue raised by the noble Baroness, Lady Barker, and others—is the great fear among the consumers of social care services that this will reduce standards in social care and that the health service will devour the currently sparse resources for social care. One has only to look at areas of clinical service in which acute services work alongside community services. Usually it is the acute services that devour the finances and the community services have to make do and mend. As for preventive services, we now have excellent services for the prevention of cancer, with women being screened regularly. However, if you are an old person needing a home help, you have to be in dire circumstances to have any hope of anyone crossing your threshold to assess you, never mind give you a service. There may be a duty to assess but there is no duty to provide the service. That is a very strange anomaly, but there you are. As a clinician, you can be held responsible if you fail to diagnose and treat someone who has crossed your threshold, but the situation is very different in relation to social care, where you can die behind your front door for lack of a service.
I can only repeat a point made by the Relatives and Residents Association, because those are the people whose voices should be heard. The association said:
“We are concerned that bringing together health and social care under a single regulatory system will mean that the interests of care homes residents and other users of social care services will be marginalised. We are concerned that lack of detail in the Bill”—
here it links into the two amendments—
“means the new regulatory body, the Care Quality Commission, will be left to determine the details of the regime it will put in place and that social care will be overlooked”.
Time and again that concern arises.
Why do I feel so strongly about this? During the passage of a previous Children Bill, when the inspectorate for children was amalgamated with Ofsted, I raised the issue of the need to ensure that children’s services and the focus on children were highly maintained. I am sure that in certain areas that has happened, but I have personal experience of Ofsted-type inspections that do not—as with the Commission for Social Care Inspection—look holistically at the situation but have a checklist that gives a score. That does not enhance the atmosphere in which people are cared for. I think that is what we are looking for. Sometimes—Denise Platt has been heard to say this—it does not matter how many rooms you have in a home; what matters is what the atmosphere and the care feel like to the residents.
That leads me to my last point. Unless we have objectives and principles in the Bill and the power to promote those objectives, the voices of those who are in these services will not be properly heard. My experience is both in the delivery of social care and as a recipient, on behalf of some of my service users and myself, of healthcare. One’s voice in and usage of both services are very different. In healthcare I sometimes get to fill in a questionnaire about what it was like—and I might even be asked by my doctor whether I thought that something that had happened to me was good or bad—but in social care there is an attempt to involve the users fully, to hear their voices and to involve them in inspections. This is to ensure that lay people who have experienced the services can tell about it at first hand. Having these principles in the Bill and the power to pursue the objectives will help in that. I support the amendment.
I declare an interest as chairman of the Mental Health Act Commission. I was also a non-executive member of the Healthcare Commission for several of its first and formative years.
Amendment No. 1 establishes principles which will have important practical consequences. In particular, paragraphs (e) and (f) seek to ensure that the Care Quality Commission maintains a human rights perspective in its general monitoring of health and social care services, and that it does so specifically by protecting and promoting the rights of patients detained under the Mental Health Act or otherwise deprived of their liberty.
I anticipate that a counter argument against the proposal to set out these matters as explicit regulatory objectives is that surely the Care Quality Commission will be a public body and, as such, will be required to operate in accordance with the Human Rights Act, including when exercising the powers given to it for monitoring the use of psychiatric detention, and that adding these regulatory objectives would add little to the existing legal state of affairs were the Bill to pass unamended. However, I would guard against the assumption that public authorities will quietly comply with their Human Rights Act requirements without active monitoring and intervention.
The weakness of such an assumption became apparent to me last week when I was speaking to one of my Mental Health Act commissioners who had just come back from a visit to a secure ward where she had met 11 detained patients. The hospital detaining those patients had a duty to comply with both the Mental Health and Human Rights Acts. It had a duty, for example, to provide detained patients with information about their legal status, including their right to appeal against a decision. Nevertheless, the commissioner felt that at least eight of the 11 detained patients had little or no knowledge about their legal rights. Indeed, two of the patients did not even know that they were detained. Therefore, we cannot assume that services will comply with legal duties just because those duties exist.
As many members of the Committee know, the duty to give information to detained patients has been on the statute book for nearly a quarter of a century, and yet the Mental Health Act Commission frequently finds that it is inadequately met by detaining authorities today. The only way to uncover such inadequacy is by going to the hospitals and meeting the patients directly. As I pointed out at the previous stage of the Bill, my worry is that the Care Quality Commission’s wide and complex task of regulating general health and social care services will leave insufficient emphasis on resources for exercising that methodology. The one most likely to be employed by the Care Quality Commission in its general task will be ill suited to the protection of detained patients. The Minister in another place has stated that he expects the Care Quality Commission to continue the approach of the MHAC in visiting hospitals and meeting detained patients. I welcome the amendment as a means by which the law will ensure that such an expectation is met without being overly prescriptive.
The amendment would also help the Government to fulfil their obligations as a signatory to the Optional Protocol to the Convention against Torture—or OPCAT, as it is known. The Government must sooner or later designate a “national preventive mechanism” of visits to detained patients to prevent their ill treatment. The Care Quality Commission, at least in so far as it takes over the role of the Mental Health Act Commission, will by necessity be a part of this mechanism.
The guidance for establishing national preventive mechanisms recommends that legislation should include a provision that states its purpose and incorporates the language of Article 1 of OPCAT. In particular, it should require that “regular” and “preventive” visiting is undertaken as a part of any monitoring system. The guidance is clear that such preventive visiting must be recognised as different in purpose and methodology from other types of inspection or visit, especially in being proactive rather than reactive. It is designed to stop abuses of patients, not to investigate such abuses after they have occurred.
Let us learn from experience. Fifty years ago, the Royal Commission, under Lord Percy of Newcastle, recommended the abolition of the independent visiting of mental hospitals on the grounds that those hospitals were now a ministerial responsibility and that their inspection should,
“rest squarely on the shoulders of the Minister”.
Then, it was seen to be anachronistic that there should be special arrangements for the inspection of mental hospitals by the Board of Control, which was the direct descendant of the Lunacy Commission, when other hospitals were subject to nothing more than informal visits by officers of the ministry.
After much consultation and correspondence, it was decided that the Board of Control should be abolished. For two decades from the end of the 1950s, no specialist visiting body was concerned with psychiatric detention. Within 10 or so years of that abolition, the first of a number of hospital scandals erupted. In 1969, there was an inquiry into patient abuse in Ely Hospital, Cardiff. After that came similar scandals at Farleigh in 1971, at Whittingham in 1972 and then a number more. Those inquiries provided part of the rationale for the re-establishment of the Mental Health Act Commission as a visiting body at the beginning of the 1980s. I know that my noble friend the Minister has no intention of repeating the mistakes of our recent history and that it is the wish of the Government that Mental Health Act Commission-style visits to psychiatric hospitals should continue under the Care Quality Commission. But what will be the situation 10 or 20 years from now?
For these reasons, I hope that the Minister will support the principle of stating regulatory intentions at the start of the Bill and that he will look sympathetically at other means of ensuring that the Care Quality Commission gives adequate attention to its role in protecting the most vulnerable patients in the health and social care system throughout its existence.
The role of regulators in our society has grown significantly during the past two decades, which has on the whole been helpful and positive. However, being a regulator is not easy. All sorts of questions arise, one of which is what is it that one is supposed to do and regulate. Another is: is one independent? Regulators are by and large appointed by the Government and owe their pay and rations to them, so when a judgment comes out suggesting that someone be criticised, a natural reaction is to say, “It’s the Government’s cat’s paw”, which is often very unfair.
However, it means that, for the job to be done properly, two things are essential, both of which are brought out for further discussion in Amendments Nos. 1 and 14. The first is to know what the job is: one must be sure that those who are regulated know what the objectives and purposes are, that those who are the beneficiaries of the services that are regulated equally know what the purposes of the regulator are, and that Parliament and government know exactly what to expect of regulators. That is the thrust of the first amendment. I support those who want to see more detailed clarification of the purpose and therefore of the objectives of the regulator, thereby avoiding the dangers of having to redesign the legislation in a year’s time. Only thus will we be able to assess whether the job is being done properly. Although it is very unlikely that we will redo this in 18 months’ time, the track record suggests that it is not impossible, so it would be good to know the criteria against which how the regulator does the job is assessed.
More specifically, in relation to Amendment No. 14, Clause 2(4) states:
“In performing its functions, the Commission must also have regard to such aspects of government policy as the Secretary of State may direct”.
That is ambiguous, loose and potentially dangerous. Even if it is not in fact dangerous, it will be thought to be by those who disagree with what the regulator pronounces at various times. Again, the danger is that the regulator will be thought to be working for political masters rather than with full independence.
I suggest, partly drawing on my experience with Ofsted, that there are at least two separate functions that should reasonably be put before a regulator in taking account of aspects of government policy. One is that a regulator regulates the implementation of that policy. That is perfectly proper; it is what, in part, it is there to do. Equally, a regulator must have the capacity to give advice to government if it thinks that policy is not well grounded. Ideally, I should like that advice to be public; with the best regulators, it is. Equally, in Parliament and through ministerial offices, there should be opportunity and encouragement to give independent advice.
That was sorted out in relation to Ofsted by identifying two distinct functions, rather than having a catch-all and ambiguous subsection of this sort. One was the role of the regulator in advising the Government on education policy. These are the people who will see the conditions in detail in GPs’ surgeries, hospitals, care homes and the provision of care in the home. They surely will have something to contribute to the correct and proper formulation of policy if it is to be evidence-based. We need to ensure—I do not think that the subsection does so—that there is a natural channel of communication for that advice to be given.
Equally, in the case of Ofsted, certainly in the early days, there was agreement that there would be so many service days, as a service level agreement, available from those who worked with the regulator to the appropriate government department to provide advice on specific points which the Minister might seek from the regulator, rather than reinventing the wheel by using external consultants who may not have the day-to-day, hands-on experience that good regulators will have.
For that reason, it is important that we find resolution on the objectives so that we are clear about the purpose. We should also clarify what I regard as an ambiguity in subsection (4) to ensure that the regulator is not only independent but is seen to be independent.
If a regulator does not do its duty and leaves out some areas that it should be looking at, what will happen? Also, what will happen if there are not enough available trained people to fulfil the duties?
My name is attached to Amendment No. 4. I am sure that the noble Lord, Lord Darzi, knows better than most people in this Room how important safety and quality is. He may not know that some places are very substandard. To give an example, last night, I was telephoned to be told that a man with a new spinal lesion had been shunted between four different London hospitals. He was on a waiting list to be admitted to the spinal unit at Stoke Mandeville Hospital. He has at last been admitted but he has pressure sores and MRSA. In addition, at one of the London hospitals he had a plate put in his spine and it has been found that one of the screws holding it in place was screwed into a damaged vertebra. He now has to have another operation.
Something must be done to achieve high standards throughout the NHS and social care. It is vital that patients go to places where their problems are known and where they can be treated appropriately. I declare an interest as president of the Spinal Injuries Association. Lately, we have been hearing of more and more such cases because there is too much pressure on these specialised units and too many patients, many of whom are older, require treatment there. I hope that something can be done.
I suspect that this Committee is more or less at the stage where everything has been said but not everyone has as yet got round to saying it, so I shall try to be brief.
I bring to this matter my experience of trying to work with departments in local authorities that have merged and, in the very different field of policing, of trying to produce an integrated service across a range of different policing tasks. There must be clarity of purpose for this new body so that everyone engaged can refer back at regular intervals to what they are there to perform and what they are trying to achieve. The point was very well put that it is also helpful if the users of the ultimate service and those who are regulated are aware of that clarity of purpose.
Similarly, if seamlessness is to be achieved, it is important that those standards and purposes are applied to all the various sectors. That is what motivated me to table Amendments Nos. 12 and 13, although that is not to say that I disagree wholeheartedly with some of the other amendments. The Government need to be aware of the extraordinary strength of feeling that exists that the new regulator requires a clear set of objectives and a clear set of purposes; otherwise, it will not be able to succeed.
Unless the breadth of that responsibility is set out, the danger is that the regulator will in practice start to focus on narrow areas or will move from one area to another, depending on the public pressures that may have arisen in the immediate short term. Returning to the policing comparison—it may not be immediately apparent but there is a very clear comparison—when there are problems of serious or organised crime or terrorism, the police are urged to put all their resources into that area. When the consequence of that is that the rate of so-called low-level crime increases, the police are urged to put their resources into that, and the result is that they move from one extreme to the other. The real danger is that the new regulator will operate in the same way. There will be some appalling scandal in a social care establishment and social care will become the current issue, which may mean that acute care or community services are not looked at in the way that they should be. This should be done holistically, with a clear set of objectives and purposes.
I have heard two sets of arguments as to why amendments along the lines of those that we are considering are not necessary. The first is that everything is here in the Bill but we have not appreciated that Clause 2 covers all the points; the other is that we should not specify matters too much, otherwise, as changes occur and the nature of provision changes, the regulator will be left with a fossilised set of objectives. However, apart from the fact that those are two contrasting and conflicting reasons why some change is necessary, the reality is that all these amendments are couched in terms that will enable the new commission to respond to the changes in care patterns that will no doubt arise over the years. If—and it is a big if—the objectives in Clause 2 encompass all the points that we want, it is a very poor example of parliamentary drafting. The objectives and functions of the regulator are set out for other regulatory bodies—the noble Earl, Lord Howe, referred to Ofcom and the Food Standards Agency, and we have heard about Ofsted—but a Bill setting up a body with the dreadful name of “Oftenant”, which is shortly to come before your Lordships’ House, is a model of clarity for the way in which its regulatory objectives are spelt out. No one needs to be a lawyer; any individual tenant will be able to pick up the objectives and understand the responsibility and focus of the new regulatory body.
I do not know whether there is an A team or a B team in parliamentary drafting, but I suggest that comparisons should be made with the drafting that has been carried out for other regulatory bodies before we come back to this issue on Report.
On the proposal to leave out Clause 2(4), I understand the arguments about independence but there is no point in a regulatory body which does not take some account of the framework of the government policy in which it is operating. It must move within the grain of government policy, but that does not mean that it must always agree with it. It may well be that the words here are not the best form of parliamentary drafting but it would be wrong to omit any reference to government policy. It is important that any regulatory body should make at least some recognition of the governmental environment in which it is operating and tender its advice as a part of that.
I am spurred on by the fact that I want to get this right and the House wants to get this right—and by the fact that the noble Lord, Lord Sutherland, thinks we might be back here in 18 months’ time.
I am sure that the Minister and the Government are aware of the great concern among parliamentarians, the current regulators, those working in health and social services and the voluntary groups associated with health and social care which have given us comprehensive briefings. I take the point of the noble Baroness, Lady Howarth. There is a concern that if we do not get this right, we shall see health take over the whole agenda of the new commission. For example, if something goes wrong at St Thomas’s Hospital and something goes wrong at “The Laurels” down Acacia Avenue, which is going to get the attention? I am afraid the National Health Service hospital will get the attention. We need to get this absolutely right.
I agree with other noble Lords that if we are to win the confidence of those who are wary of the Bill, we have to instil clarity and certainty. I agree that we need the principles, the underlying philosophy, the purpose, the duties, the mission and, above all, the vision that should underpin the Bill.
Looking wider, other organisations—well-run companies, law firms, universities, NHS trusts, charities and many others—not only articulate their vision and their principles for the benefit of those whom they serve, their customers or their users, but equally they instil in their staff the vision and values that drive them. One hears phrases such as, “These are the things that matter to us”. This is what we believe in; this is what we want to achieve. It is the anchor, it is the clarity, it is the something against which to test the appropriateness of an action, the probity of a decision, the legitimacy of a new policy or innovation. It is necessary to keep the organisation fit for purpose.
I am very impressed by Cancer Research UK, of which I was a trustee for 10 years. It is the largest cancer charity in the world—it raises £1 million every working day—and it has to be very clear about what it is doing, otherwise it will not raise that kind of money. Its vision statement is very simple: “Together we will beat cancer”. Bill Gates, the founder of Microsoft, had as his vision a computer on every desk.
When I was pioneering nurse prescribing, I had to have a vision, which took 20 years to bring about: a prescription pad in every nurse’s hand. Changing Childbirth was much more difficult. After much thought, we decided our vision was that the woman giving birth should have three things: choice, continuity and control. That was adopted as the “three Cs”. I used to go to conferences where people would not even say those words; they would just say, “It’s the three Cs”. The Medical Professionalism project is more difficult still. What is it? Do we care about it? Does it exist? Medical professionalism signifies a set of,
“values, behaviours and relationships that underpins the trust the public has in doctors”.
Imperial College Healthcare NHS Trust has a mission statement, which I am sure that the pioneer of minimal invasive surgery can recite in his sleep—although I shall not tempt him this afternoon. It states:
“Our mission is to lead the world in improving human health and to be universally recognised as one of the world’s top academic health centres. We will achieve this by providing world-class healthcare for our patients, through excellence in research, education and training”.
That is clear and to the point.
I am sure the Minister understands what we are trying to get at. We believe that the Bill lacks a clear statement of purpose. There is no clear framework and no criteria by which to judge the effectiveness of a regulator. Members of the Committee have put down eight amendments and more have spoken to those amendments. Many have thought about this issue deeply and have used the words “objectives”, “principles”, “duty” and “functions”. According to the Oxford English Dictionary, an objective is something that exhibits actual facts,
“uncoloured by feeling or opinions”.
I find that a bit difficult. A principle is a “fundamental source”, a “primary element”, a fundamental truth based on reasoning. That is better.
I am sure that in replying to this debate, as the noble Lord, Lord Harris, has said, the Minister will point us to Clause 2, which concerns the commission’s functions, and say, “That’s it. That’s what noble Lords are looking for”. But it is not. Functions are something else, although it is necessary that they are included in the Bill. I am delighted to see in Clause 2(3)(c) the words,
“the need to ensure that action by the Commission in relation to such activities is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed”.
During the passage of the Bill, those words will be a constant refrain of mine. They underline my thinking that less means more. However, functions are not about vision, principles and duty. The OED describes a function as an activity, a mode of action which fulfils its purpose. We are searching for a clear description not of the activity but of the purpose these functions are to fulfil.
My noble friend Lord Howe has used the word “duty”. I like that word. It is defined as a binding force of what is right and a moral or legal obligation. It is what one is bound or ought to do. To me that has clarity; there is no messing about. I believe that, in years gone by, soldiers could be shot for failing to do their duty, although that would be a bit extreme in today’s world. I like the idea that a duty is a binding force of what is right and a moral or legal obligation. I think the noble Lord, Lord Harris, used that in his amendment. I go with Amendment No. 4. It is comprehensive and succinct.
The new clause would give the commission a clear mandate to act on behalf of patients, service users and the public. It would provide them with an explicit assurance that the regulator is acting on their behalf and would enable it to resolve conflicts of interest between stakeholders. It would also clarify what Parliament would like the commission to achieve rather than merely state its functions.
We should not be precious about the wording as the Government are perfectly able to craft their own words, but it needs to encapsulate all that we are trying to achieve. This is not a novel idea—noble Lords have pointed to other organisations, such as the FSA and Ofcom. But I hope that the Minister and his colleagues will be sympathetic to the force of the arguments put not only by those in this House but by those whose concern has been so evident in the many briefings that we have received. I hope that the suggestions on wording are helpful, as they are sincere, and that we see clarity and certainty in the principles and duties that underlie the Bill.
I approach the amendments from a different perspective from that of other Members of the Committee. I own up to being the Minister responsible for the policies, although only for six months in the second half of 2006, when I was roped in to try to tackle some of these areas. This is an extremely complicated area and a difficult one; it is not an easy area in which to formulate policy. However, it is with some sadness that I support the main amendments in this group.
We must listen to the volume of concern that has been expressed about the absence of something like these amendments at the beginning of the Bill about the objectives of the regulator. The noble Earl, Lord Howe, said that we do not want to be back here in five years’ time. In fact, it was only about five years ago that the noble Earl and I were dealing with these issues in debates on the 2003 legislation. Five years seems to be about the time it takes to come back to this kind of issue.
It is rather sad that we need something of this ilk and that the Bill has been allowed to progress as far as it has without this issue being addressed. It did not need to be like that. When we looked at the policy in 2006, Patricia Hewitt and I made it very clear that we needed to look at other regulators. Indeed, we brought in the chairman of Ofcom to help us with the design of some of these issues. He chaired a small group for us to help us identify some of the issues that we had to tackle. Ofcom is a good model of how to set out in legislation what is required of a regulator.
I am sure that my noble friend has his briefing on the strengths of Clause 2. I do not blame him for having that briefing; he was not the Minister responsible for this policy area. But as someone who has been there and got the T-shirt, I gently say to him that Clause 2 does not do the job. It simply does not meet the requirements of a regulator. The three things that you need to do in a framework Bill, if you are to satisfy Parliament and the public, is to be clear about the purpose, functions and scope of a body. The Bill does not yet do that job. There are uncertainties about the scope, which we will come to later; there are definitional problems in Clauses 4 and 5, to which I have put down amendments and which we will debate later. However, those definitions are linked into the objectives to the regulator. We cannot get into that detail until we are clear about the regulator’s purpose.
I am sure that there are probably ways in which the wording of the amendments could be improved. All Members of the Committee have indicated a willingness to be flexible about the precise wording, but something of the kind of what is in the main amendments that we are debating needs to be met.
It is very difficult to argue, as the Government are trying to do, that the devil will always be in the detail of regulation and to say, “Trust us. We just need a framework Bill”. I accept that we were always likely to have a framework Bill, but the question is not whether we have a framework Bill with a lot of detail in secondary legislation—most people would accept that that is inevitable—but whether the framework is adequate. The Bill does not have an adequate framework. I shall not go down the path which my noble friend Lord Harris of Haringey mentioned; I think parliamentary draftsmen are wonderful. They are quite capable of producing a wonderful beginning to the Bill, drawing on the amount of expertise that we have enunciated today.
I was quite attracted to Amendments Nos. 12 and 13 in the name of my noble friend Lord Harris of Haringey—in typically pithy style, they do a great deal to improve the drafting of the Bill—but we need to go a bit further than that. We need a more detailed statement of objectives of the kind that is put forward in the other amendments. While I do not want to quibble about such drafting, I have a bit of a hang-up about the word “promote”. Regulators are not social marketing organisations; they are not marketing organisations at all. “Encourage” and “support” are fine; but I doubt whether it is the job of regulators to go around promoting anything. I agree with my noble friend Lord Harris that it is fanciful to believe that a regulator can totally ignore the policies of the Government of the day. They cannot be allowed to do that—we may have got the wording wrong. A regulator cannot decide to set up an approach that is totally independent of whatever Parliament has decided in legislation for a particular set of services. That is not the job of regulators either.
I have enormous sympathy for the Minister regarding the case he will no doubt be asked to argue. I hope that he will be willing to take away the form of words put forward by people who I think are not overly proud of them and see whether, with all the skills that parliamentary draftsmen can exercise, we cannot come up with something that looks like a more suitable framework for taking forward what everybody accepts is much-needed legislation.
I have two reasons for supporting the thrust of the amendments. First, if we do not have some statement of regulatory objectives in the Bill, we are in danger of setting up a regulator which focuses on the narrow objectives of regulation and inspection. We have in front of us a fine example of the splendid influence of the Commission for Social Care Inspection on the development of social care policy, which I certainly would not want to lose.
My other reason for supporting the amendments is their mention of users, families and carers. Family carers should be recognised in the Bill as key stakeholders in the provision and regulation of health and social care services, with the commission given a duty to consult, involve and generally have regard to carers in its work. I know that Ministers have indicated that that is their intention, but the Bill does not mention carers once, which is a grave omission. The proposed arrangements are not sufficiently strong. Using the catch-all term “the public” does not cover it; we have to have something stronger. As we know, carers play a vital mediation and negotiation role. Their lives are considerably influenced by the quality of care services, and regulation should reflect the fact that patients and carers do not exist in a vacuum, but within families, many of which provide a high level of care. Social care policy is finally recognising that carers should be seen as partners in care, consulted and involved. I recognise and rate the Government for their tremendous work on that, but we need something more in the Bill.
Very briefly, I endorse what has been said about including some statement in the Bill; the wording does not have to be exactly what is proposed. I especially endorse the words of the noble Baronesses, Lady Howarth, Lady Cumberlege and Lady Pitkeathley. I am especially concerned that the status and function of the current social care regulator should not be lost or diluted in any way. All three noble Baronesses have pointed to areas where that is likely to happen. We know that that is likely to happen if we are not very careful.
My other point is that only by having a very clear statement of the breadth and range of duties of the new regulator can we ensure that such areas as preventive services are included. We have heard many examples of how they are unobtainable now and becoming more so. I strongly support that point, and the point about carers made by the noble Baroness, Lady Pitkeathley. I am very pleased to have been part of the task force looking at future policy about carers. If that is not in the Bill, we have more silos—more separation—than we need, so it is very important that this is stated clearly at the beginning of our work.
Without repeating everything that has been said so far, I support most of the amendments. I agree completely with the issue raised by my noble friends Lord Harris and Lord Warner about the performance and function of the commission with respect to the Secretary of State.
I declare an interest as a chair of an NHS acute trust which, regrettably, was on the receiving end of an improvement notice late last year. I emphasise—although I am sure that the detail may be upsetting for some people—that we need to ensure that not only the actions taken by the commission referred to in paragraph (c) but the process within which the regulator will be operating is very clear. The big issue for my trust, which is important for all issues around patient care, is that the Healthcare Commission knew exactly what it was serving the improvement notice on, but beyond that, it did not know how to deal with it. It did not have the same rigour in ensuring that a step forward for patient care and understanding was made. I agree with everything said about the robustness of the regulators’ understanding needing to be in the Bill, but we must also understand the effect of whatever regulation is implemented.
At Second Reading, many noble Lords raised thoughtful and heartfelt points about the need for the Bill to set regulatory objectives for the Care Quality Commission. That is an integral part of our debate on the new commission and it is therefore timely that we are discussing this at the start of our Committee deliberations. Given the nature of our discussion, I intend to focus my remarks on the broader issue of the nature of the commission's objectives and functions.
I want to be clear from the outset that an overarching regulatory objective for the Care Quality Commission, with a clear reference to both social care and healthcare, is something with which I have a great deal of sympathy. It is important that we are able to discuss the best approach to setting any regulatory objectives for the commission in the Bill. The contributions that we have already heard today have been a valuable input into that discussion.
As the debate has demonstrated, there are a number of models to draw on as to how such regulatory objectives can be set out in legislation. The aim should be to set out clearly the reasons why the commission is there, and its purpose, and to provide us all with a clear, shared understanding of how to gauge how successful the commission is in carrying out those functions.
The model proposed in Amendments Nos. 1 and 3 mirrors the approach taken in the Legal Services Act 2007 for the Legal Services Board. This would appear to be an alternative to the current Clause 2 and be linked to Amendment No. 14, which would remove much of Clause 2.
The noble Earl, Lord Howe, and the noble Baroness, Lady Masham, have in Amendment No. 4 suggested, I think eloquently, an overarching principal duty for the commission in carrying out its functions,
“to protect and promote the interests of people who use health and adult social care services, including their families and carers, in relation to the safety and quality of those services.”
This is along the lines of approaches used for the Food Standards Agency in the Food Standards Act 1999, and for Ofcom in the Communications Act 2003. My noble friend Lord Harris in Amendments Nos. 12 and 13 has proposed a general duty also closely aligned to that set out for Ofcom in the Communications Act.
The Bill draws on yet another of the models raised at Second Reading—that set out for Ofsted in the Education and Inspections Act 2006—on the basis that this was probably the most similar regulator to our new commission. As is becoming apparent, noble Lords will recognise that we have each, in our differing approaches, picked up many repeating themes.
It may be helpful to set out the rationale behind the Government’s approach to the key functions of the Care Quality Commission—those in Clause 2—and then come back to some of the recommendations made by noble Lords. In Clause 2, we have set out those key functions: first, by assuring that health and adult social care services are providing care to the levels of safety and quality—words that we heard many times in this debate—that patients and service users are entitled to expect, and in taking appropriate actions where they are not, through the registration and enforcement provisions in Chapter 2; secondly, by providing comparable information to patients and services users through the reviews proposed in Chapter 3; and, finally, through the vital role currently carried out by the Mental Health Act Commission in monitoring the use of provisions in the Mental Health Act.
Moreover, in Clause 2 we have made it clear that in carrying out its functions, the commission must in everything it does have regard to a number of crucial issues in performing those functions. Noble Lords would agree that it is vital that the commission must have regard to the need to safeguard the rights of children and vulnerable adults when it carries out its functions. The commission must listen to the views of those who use services—patients, service users, carers—including representative bodies such as LINks. The commission must also be required to take account of the Government’s five principles of good regulation, under which regulatory activity should be proportionate, accountable, consistent, transparent and targeted where needed. In relation to the point raised by several noble Lords on Clause 2(4), I echo what my noble friend Lord Harris has said, but we will of course enjoy a longer debate on this issue when we reach Amendment No. 22. Lastly, Clause 2 makes clear that the commission is to carry out its functions for the general purpose—the regulatory objectives—of encouraging improvements in care service, user-focused care and the efficient and effective use of resources.
Many of those current provisions, some of which would be removed by Amendment No. 14, would be reflected to some degree in the alternative model proposed in Amendments Nos. 1 and 3 by the noble Baroness, Lady Barker, and supported by other noble Lords. While I am very sympathetic to the issues that the noble Baroness is keen to highlight in these amendments, I have concerns about how prescriptive Amendment No. 1 is, when combined with Amendment No. 3, which would require the commission to act in accordance with these objectives. We all want the new commission to practise what it preaches, but I argue that it forms part of a broader system of other players and other mechanisms. I would not want to detract from the roles and responsibilities of those other players—not least service providers themselves—in delivering, for example, high-quality personalised services.
Although noble Lords no doubt support the good intentions behind these and related amendments, they will recognise that there is a balance to be struck here. Setting too many or too specifically worded objectives may dilute the effectiveness of some or all of them, create unintended inflexibility or create difficulty for the commission in establishing its priorities as circumstances change from time to time. Overall, I would not support regulatory objectives that reached the levels of specificity set out in the model of Amendments Nos. 1 and 3.
Linked to those amendments are Amendments Nos. 101 and 109, which suggest mechanisms for ensuring that the commission reports to both the Secretary of State and the public in its annual reviews on how well it is delivering against those objectives. Indeed, Amendment No. 101 would require the commission to tell the Secretary of State how it has taken the views of patients, users and carers into account in its work and how it and those whom it regulates have contributed to the efficient and effective use of resources. I believe that it is more important for the commission to tell the public directly—hence, we have already set out in Clause 79 the requirement for the commission to report annually on how it has carried out all its functions. Of course, the Care Quality Commission will already keep the Secretary of State informed—for example, through the provisions in Clause 49.
It is worth restating that Clause 2 was crafted very carefully to include all the key responsibilities that we felt this new organisation should have, recognising that the commission will operate as just one part of a broader system. I am therefore unconvinced of the benefit of removing the bulk of provisions in Clause 2 as proposed by Amendment No. 14. However, I recognise that Clause 2 may need to be enhanced to be clearer, and I shall look at this matter again.
As I mentioned, I am sympathetic to the cause of setting a clearer, more easily understood purpose for the new commission, but that purpose must allow the commission some flexibility. I would want to reflect carefully on how this could best be framed, but the thinking proposed by my noble friend Lord Harris of Haringey in Amendments Nos. 12 and 13, and by the noble Earl, Lord Howe, and the noble Baroness, Lady Masham, in Amendment No. 4 is worth exploring further in conjunction with enhancing Clause 2.
I turn to the point raised by my noble friend Lord Patel regarding the rights of detained patients. At this stage, I express my overall agreement with his intention, but I hope that he understands that I will elaborate further on these issues when we reach the group beginning with Amendment No. 19, tabled by the noble Baroness, Lady Stern. The noble Lord, Lord Sutherland, also asked whether the commission would have any route for advising Ministers. As I said earlier, Clause 49 makes it clear that the commission can advise the Secretary of State on aspects of the provision of care.
In summary, I genuinely believe that we are all working towards similar goals here. We are all using slightly different approaches in setting out the primary objectives and functions of the commission but ultimately we all want patients, service users, carers, those being regulated, the commission and, indeed, us, to have a clear, shared understanding of why the commission is there and of how well it is delivering against the overarching aims. With that in mind, I ask noble Lords to permit me to take away the views expressed today with a view to bringing back on Report a revised, clearer approach to the Care Quality Commission’s overarching regulatory objectives, which your Lordships' House will, I hope, be able to support. I reassure noble Lords—and specifically my noble friend Lord Harris—that I am working with the A team, and I shall make sure that they craft their words as closely as possible to meet noble Lords’ aspirations. I therefore hope that noble Lords who have spoken to their amendments will feel able not to press them today.
I make one point for when the Minister takes this issue away. The forceful point that he made in his reply was about the capacity for the new commission to be able to change its priorities to meet the requirements set for it. I have every sympathy, having been a regulator in four different kinds of services. I understand that point, but what the Minister has not addressed and what I hope he takes away is the real concern that that change of priorities might result in the health service taking over social care and social care being lost in the mire of all the other services’ demands, which are huge. I hope that the noble Lord will hear that point, as he has not addressed it in his reply.
I hear that point very strongly. I am currently busy carrying out the next stage review. We need to stop looking at healthcare and social care as separate entities and start looking at them through patients’ eyes. If we achieve one thing, it should be to break the barriers between the two, as the importance of one cannot be at the expense of the other. I strongly believe that and will take that point back.
This has been a lengthy but immensely valuable debate. In summing up, I begin by saying that those of us who chose to put down amendments did so in the certain knowledge that before the ink is dry on this Bill, when it becomes an Act, there will be major change within the health service. Every one of us knew that, so what we proposed to the Committee did not fall into the trap of being time-specific or inappropriate. The only certainty in the NHS is that there will be change at an ever-increasing pace.
One of the most helpful contributions was that of the noble Baroness, Lady Howarth of Breckland, when she repeated the statement that she made at Second Reading that this Bill is not about improving services but about improving regulation in order to improve services. That is a key point; it summarises the need for the Healthcare Commission to have not only functions but objectives, because those objectives will be realised only by other organisations. It cannot achieve them on its own. That is why I went down the route that I did, rather than the one proposed by the noble Earl, Lord Howe, whereby the duties are put on the commission itself.
It is important that those objectives are explicit and are there for all to see. That includes providers who, as the Minister said, have to share those objectives, too. I disagree with him about there being too many objectives and that they are too tightly worded, but then I would.
It was useful to listen to the experience of the noble Lord, Lord Sutherland, about the role of regulators and the key point about regulators providing advice to government. He will, I hope, understand that from where we started with the Bill, getting the duty to provide advice to government seemed a step too far to begin with. Nevertheless, he is absolutely right.
I take the point made by the noble Baroness, Lady Finlay, about choice being wholly and utterly dependent on resources. If we had gone into that territory, we should simply have proposed a paragraph asking the regulator to perform miracles. It just cannot do that, but it can work with providers to extend the practice of choice within existing budgets.
That picks up the point made by the noble Lord, Lord Harris. He is absolutely right to say that no regulator can function wholly outwith the scope of government policy. That is why the list of objectives is as it is. Some of us happen to think that promotion of choice in the health service is a bit ambitious, but it is the stated policy of all the major parties at the moment. There is a difference between the rational expectation that any regulator will work within the framework of government policy and laying it open to being dictated to by the Secretary of State—precisely for the reason that the noble Lord gave. We are talking here about such an immense field that it must be tempting for any Secretary of State to move the regulator's work from one area to another to suit political fashion. I hope that we can pick up on that point.
The noble Baroness, Lady Masham, asked what happens when regulators get it wrong. The answer is: look at what happened to the Financial Services Authority. However, that reinforces the point that we need to ensure that there is independence.
I disagree with the noble Lord, Lord Darzi. I do not think that we are just talking about functions; I think that we are talking about objectives, but I warmly welcome his response. He will be as aware as the rest of us of the extensive concern expressed by all parts of the lobby about the absence of such provision, but I listened to what he said and I look forward to having further discussion about including a statement of principles in the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
2: Clause 1, page 1, line 9, at end insert—
“( ) The Care Quality Commission shall take responsibility for the functions specified in section 2 on 1st January 2013.”
The noble Lord said: I rise mostly to apologise to the Committee. As the Deputy Chairman and others have recognised, it is my 60th birthday today. Of course, by far the nicest way to spend it would be to be in the Committee for the full duration of its proceedings discussing regulation. Unfortunately, I have a social function for which I have to leave at 5.30 pm and which people are travelling many hundreds of miles to attend. I am obviously in the hands of the Committee. I could move the amendment but would not be able to stay for the whole debate and would have to catch up with it in Hansard. I should appreciate the guidance of the Committee—I look round to see whether noble Lords nod—on whether it would be content for me to proceed on that basis.
The noble Baroness exceeds even her usual kindness. I thank her very much indeed. I shall be very brief and look forward to reading the rest of the debate.
I will briefly repeat the point that I made at Second Reading. I make no bones about it: I should like the Bill to come into force in 3013 or 4013, not 2013. I am aware that CSCI, which has given us all such good briefings on this, has called the Bill premature. On that basis, it seems more sensible to aim to postpone its introduction for further consideration than to suggest that this bit of it, at any rate, should not happen at all.
Since 2002, we have had a reorganisation of the regulation of social care—probably a justified one. We have also had a re-reorganisation of social care. Now, within five years of starting that process, we are presented with a proposal for a re-re-reorganisation. I do not want to go over all the ground about the cost of reorganisation, although I shall refer to one element in it that was beautifully set out by Sir Ian Kennedy in his speech on the subject that many noble Lords will have read. He is in an even better position than those of us around this table to know about those costs.
This to me is a reorganisation of a reorganisation of reorganisation—re-re-reorganisation run amok. We should leave it longer before deciding that the present system cannot be made to work. The objectives of getting social care, mental healthcare and healthcare to work together can be achieved in many ways short of this proposal. I speak as a veteran of the Government’s attempts to get health and social care to work better together in other aspects since the days of the royal commission on which the noble Lord, Lord Sutherland, and I sat. That is my first point.
My second point—if one is allowed to make a non-partisan political point in this House—is as follows. Let us suppose that the Bill goes through as drafted and let us suppose—heaven forfend—that there is a terrible problem, which I imagine would be most likely to happen in a home for the elderly, although it could happen in a mental healthcare home, or, indeed, in the NHS. Let us also suppose that there is a plausible case to be made at that time that the reason that the regulator’s eye was not on the ball was that it was busy re-re-reorganising. Usually, accountability in this area is pretty clear. It is the regulator who is responsible for regulating, but in the circumstances that I have described, what is the regulator going to say—truthfully or not? It will say, “Not my fault. It’s the Minister’s fault. If we had not been busy re-re-reorganising, this would not have happened”. In such situations, it is possible to imagine—heaven forfend—that at the extreme people will have died as a result.
I always appeal to Ministers on grounds of principle, but Ministers collectively should think also of self-preservation in this case. It would be a disaster if what I described happened. They would not be able to say that they had not been warned, because they have been warned in both Houses. Ministers should at least pause to consider—although I do not ask for a decision this afternoon—whether this is truly a wise risk to run at this time. I beg to move.
I apologise that I was unable to take part at Second Reading but I strongly support the amendment, because it reminds me very much of my immediate reaction when I heard of the Chancellor’s intention to merge 11 inspectorates into three. It reminds me of a very short regulation that I once found on a military wall, which stated, “A breach of common sense is a breach of the rules”.
When we discussed the merger of the inspectorates of police, probation, prisons and courts into something called the Inspectorate for Justice, Community Safety and Custody, I reminded your Lordships that the proposal was not a good idea because it was a confusion of three separate functions, all of which are required in public sector bodies, all of which are carried out differently and all of which, as the noble Lord, Lord Warner, said, have different scopes, functions and purposes. Those functions are regulation, audit and inspection. What concerns me is that this proposal repeats exactly the same mistakes as were made in that previous proposal, because it confuses the three separate functions. Indeed, I noticed that in his closing speech at Second Reading the Minister described the proposed new body as being both a regulator and an inspectorate. It cannot be both. Having been an inspector, I know what would be involved—I had to be a regulator as well—and I certainly did not carry out inspection as an audit, because that would have been entirely unclear.
What also worries me about this is what has been hinted at by my noble friend Lady Howarth: the submergence of social care, in this case under health, which is the major player in this proposal. In the same way, I am extremely concerned at what has happened to CSCI, which has been split in two. Half is going under education, as the noble Baroness mentioned, and is in danger of being submerged there under the style of an inspection or audit carried out by Ofsted, while the elderly will remain with the Department of Health together with mental health, which is yet another different function. The loser in all this is social care—the care of children and the elderly, both of whom have mental health needs quite apart from any other needs.
I am meant to be in the Chamber now discussing something to do with young people in care. Until the reorganisation before the re-reorganisation, they were part of an organisation that was designed to look at care holistically, but quite deliberately the Government are breaking that up. This is desperately unwise. That is not to say that it is not a good thing to bring mental healthcare, healthcare and social care closer together in the care of the elderly, but that does not need a merger. The situation that will inevitably arise if you bring three specialist organisations together is that each of them will be weakened by trying to compromise. That lesson is learnt over and again. It is the lesson in IT, for example: big systems crash when you try to amalgamate them. Distributed databases with their own strengths that can be interrogated and can work together are the best way to proceed. The classic example, which we debated in this House only last year, was the very good report on safeguarding children that was led by CSCI. It did not organise everyone but had experts from all the other inspectorates coming together and working for a common purpose.
The amendment is absolutely right. It says, “Hang on. Halt. Throughout Second Reading CSCI was praised almost universally for what it was doing—for the standards it was setting, the paths it was treading and the pioneering it was doing. It hasn’t yet delivered what it was given to do and now you’re breaking it up”. I hope that the Minister, in the same spirit in which he has taken away the previous amendment to look at the question of the purposes and principles, will do the same with this one, as I do not believe that the regulatory impact assessment is a full and proper assessment of all the implications of what is proposed. I hope that in doing so the Government will consider what is being done to social care as a whole by splitting it in two and dividing its expertise, when expertise is crucial in all aspects of social care.
I, too, support the amendment. Indeed, the noble Lord, Lord Lipsey, gave me advance warning that he might have to duck out of the debate prematurely and he asked me whether I would listen carefully to what the Minister had to say and respond afterwards. I shall do that. As I imagine that he will probably have left before I sit down, I join everyone else in wishing him many happy returns. I hope that he has a good party this evening.
As I suspect is the case with the noble Lord, Lord Ramsbotham, who has just spoken, I am against this merger, as I made clear at Second Reading. I do not think that a merger of these commissions makes very much sense and most of the arguments suggest that it should not proceed. For example, bringing services together does not necessarily mean that you should bring the regulators together. As has often been said, the sectors being regulated are very different and different models of regulation from one to the other may well be appropriate. The merger will be very costly and the savings looked for have largely been made already—fully by the Healthcare Commission, and CSCI is well on the way to achieving the savings that the Treasury has asked of it. The arguments that have often been deployed suggest that we should not go ahead with the merger. No doubt these arguments will feature again as the Committee goes further through the Bill.
However, at the moment we are talking about postponing the merger and I shall confine myself to considerations that suggest it should be delayed, which is what the amendment seeks. Both CSCI and the Healthcare Commission say that from their point of view the merger is premature. If that is the case and that point is taken, the very least one should seek to do is to delay the implementation of the merger, which has all kinds of undesirable features.
I would deploy three arguments for a postponement of the kind sought by the amendment. First, as has been pointed out by other noble Lords, this is the third shake-up of social care inspection since 2002. Inevitably this will be disruptive and undermine continuity in the regulation of these sectors. As Sir Ian Kennedy said in the statement that he issued to the Public Bill Committee in another place:
“We will see a period of flux. Senior staff will need to be recruited and then appoint others. Managers will be organising awaydays and be locked in meetings over organisational design and conditions of employment instead of meeting the accelerating demands and expectations of patients. Morale in existing organisations will be increasingly hard to sustain. Good members of staff are already leaving, taking with them knowledge that it has taken three years to develop. This huge distraction from the central mission of the regulator to encourage improvement in care, with particular emphasis on quality and safety, is likely to continue for some time. Academic research on structural reform and our own experience in establishing the Healthcare Commission suggest that it will take at least two years for the new organisation to become operationally effective. This loss of momentum will be even more exacerbated if the new organisation, for reasons which are understandable, decides to return to first principles in designing its regulatory approach”.
Someone else described returning to first principles as reinventing the wheel.
All that sits uncomfortably, says Sir Ian, with an urgent desire for stronger regulation and safer healthcare, as expressed in a number of speeches by the Prime Minister and the Secretary of State for Health. It seems more likely that the policy will, at a critical moment, set back the development of the culture of safety.
My second reason for seeking a postponement is that other models to achieve the desirable end of bringing together the regulation of health and social care while avoiding the cost and distraction of new legislation have been advanced but have not been adequately explored. For example, the health and social care sectors are significantly different, so different models of regulation may very well remain appropriate, despite the new legislation. None of that seems to me to have been gone into adequately.
At Second Reading, I referred to the National Audit Office guidance on mergers of public sector bodies. I then asked the Minister whether any of the injunctions which the National Audit Office has given to those undertaking such mergers has been complied with in promoting such measures. For instance, have the Government followed the recommendations of the National Audit Office when considering the merger of regulators? Have they undertaken due diligence, cost-benefit or risk analysis, and have they established measurable success criteria for the merger? It would be very reassuring to have the Minister's assurance on those points.
Finally, in February 2005, a Department of Health review concluded that the health and social care inspectorates were fledgling organisations that needed time to establish themselves independently. Indeed, the review of the noble Lord, Lord Darzi, is proceeding at the moment. It seems that every other health reform except this one has been put on hold pending the conclusion of his review. Why the exception in this case?
In summary, merger at this time will be very disruptive when the current inspection regimes are still bedding in. They need more time to establish themselves.
A Division has been called. We will resume at 5.47 pm.
I thought that if I was to have only another half sentence, it had better be a good one. So I have padded it out a little—just to make sure that noble Lords get their money’s worth—by reaching for another quotation from Sir Ian, which strikes me as very relevant to this debate and certainly to the merger of the commissions. In his statement to the Public Bill Committee in another place, he said:
“In conclusion, the reasons for the Bill”—
one might say the merger—
“are unclear. The costs are high. The distraction is very considerable. The risk of harm to patients is significant … We believe that the committee should seek to be satisfied that each of these matters has been properly taken account of and that the concerns expressed here are unwarranted”.
The same question might well be addressed to Ministers: are they satisfied that each of these concerns has been properly taken account of, and that the concerns expressed here are unwarranted? I do not believe that they are unwarranted. The existing commissions need more time to complete their work to establish a continuity of service that in due course can be carried into the new merged commission at a more appropriate time and in a way that permits a smoother transition than this merger, which promises to be very rushed, will bring about.
Much of what I might have said has been said. I support the amendment somewhat despondently, because I do not think it has any hope of success. I feel I need to place on record my serious concerns about where this will take us. Much of what the noble Lord, Lord Low, has quoted from Sir Ian Kennedy illustrates those concerns.
As I said at Second Reading, I was the deputy chair of the National Care Standards Commission. We read, when it was leaked to the Times, that we were to be abolished, and then heard a few weeks later that we were indeed to be abolished and changed. That was before the commission had had the opportunity to put on the ground the services that needed to be put in place to develop good regulation. We managed to do a reasonable job in the following two years, but hoped that the Commission for Social Care Inspection would be able to pick up the baton and develop the commission, which I believe it has done. As that commission itself would say, however, it is in no way yet in a settled position. The commission holds the view that structural change in the regulation of social care and healthcare at this time is premature. It is about timing.
I do not believe that anyone thinks there is no value in looking at this issue carefully and in detail for the future, and I would be delighted to be involved in redesigning services that gave continuity of care to people on the ground. Indeed, I have been trying to look at that in social housing, but trying to get Ministers to understand what the problems are in the spectrum of social housing linked to benefits is extraordinary. The same sort of problems occur in social care, but regulation is not the way to put that right. That is why I keep coming back to the purpose of the Bill, as mentioned by the noble Lord, Lord Low, and, I believe, the noble Lord, Lord Ramsbotham.
I would feel more respect for the Government’s position—for which I do not hold the noble Lord, Lord Darzi, responsible, although he is probably very loyal to his position—if they were to say, “We have to reduce the number of regulators to save money and this is the way we’re going to do it”. That would show that they were doing it, irrespective of the quality. However, to call the new body the Care Quality Commission has all sorts of issues around it.
The second reason why I feel despondent is that I have been involved in the development of the first commission; I originally worked in a children’s department that was then merged into a social services department to become a “holistic” service; I saw reorganisations in different ways in social services about 14 times in 14 years; and I recently had the experience of sorting out CAFCASS, an organisation where, again, a merger was not thought through with regard to services being taken in from the local authority. If the Government are really set on this course under this timescale—and I can see they probably are, although under the amendment it could not be the same timescale—I can only ask them to understand the implications of the merger on the users and providers of services who will find themselves picking up the pieces and, as the noble Lord, Lord Low, said, spending far more time in meetings contemplating issues around computers, forms and service delivery than in getting resources to the front line—as we have been doing in CAFCASS in the past few years—so that the users of the service benefit from the resources in the system. That is all I have to add. I support the amendment simply because it would give us more time to look at these issues.
I wish to speak against the amendment. So far there have been only three contributions to the debate but I am still searching for any real reason to support it, other than perhaps saying, if it is not disingenuous of me to do so, that we should not do it at all.
The acute services are now working more closely with social services and the Government’s policy around health and social care is being drawn together. People like me and the staff with whom I work are very keen for the Healthcare Commission to follow best practice in other regulatory bodies associated with the type of care we are delivering.
As someone who has worked through lots of mergers and organisational changes—although not in a regulatory body—I can say that there is never a good time for this to happen. My noble friend Lord Lipsey referred to “this crucial moment”. I have been involved as the chair of a health trust for only two and a half years but I have yet to see a time when this is not crucial. As someone said, the crucial issue here is the improvement of care for patients. I believe we should go ahead with this as soon as we feel it is safe, an issue on which we spent a great deal of time previously. For all the reasons we discussed in the previous amendment, we must make sure that we do this in the best possible way.
With the amendment, the noble Lord, Lord Lipsey, has taken us to the heart of an issue which was never far below the surface of our debates at Second Reading—the issue of timing. I believe, as does my party, that there are sound practical and policy reasons for wanting to bring the regulation of health and social care closer together and that a combined regulator makes sense as a matter of principle. I can see that not all noble Lords are necessarily signed up to the principle but, if the principle is accepted, the next question has to be about the practicalities. It is on that issue that we have not yet had a convincing set of answers from the Government.
The purpose of having a regulator of health and social care is, above all, to protect patients and service users from harm. There are all kinds of other good and worthy reasons but it is as quality watchdogs that the Healthcare Commission and CSCI ultimately justify their existence. Abolishing two regulators that are already up and running and creating a new regulator in their place is inevitably a recipe for disruption in the way that services are monitored. You can plan to implement the new set-up in the smoothest way imaginable, but with staff recruitment, organisational design and general setting up, some hiatus between one regime and the next is unavoidable. With that hiatus comes an enhanced risk to patients and service users because managers and employees, as the noble Lord, Lord Lipsey, rightly said, will have their minds on matters other than their core tasks. That is the dilemma faced by Ministers in rolling out the policy they have embarked upon. Or at least it should have been. Like the noble Baroness, Lady Howarth, I am not aware that the practical implications of accomplishing this merger have ever assumed much salience in ministerial in-trays, and certainly not in ministerial public pronouncements.
Any sensible person must agree that the merger needs to be carried out in a way that is least risky and least disruptive to those concerned. Fixing next April as the date when the CQC begins its operational life presents, in my opinion, a hugely ambitious timescale and a hugely risky one. If you talk to the Healthcare Commission and CSCI, they will both tell you the same thing—that they are young organisations and that it is only now that the new systems of regulation that they have put in place are beginning to bite and have real effect. Both bodies have restructured themselves and have made substantial budgetary savings in the process. CSCI is even now in the middle of further rationalisation involving staff cuts and closure of offices, quite independently of the coming merger.
CSCI has modernised its way of working and put in place an estates and IT strategy fit to carry it into the future. Of course, that restructuring has not been without pain; staff numbers will be 38 per cent lower in March 2009 than they were two years ago. So it is not surprising that the prospect of making significant financial savings, which is one of the supposed benefits of merging the two regulators, is hardly now a factor, as the noble Lord, Lord Low, said. CSCI has identified a merger dividend of only £5.25 million a year, which, set against the estimated costs of the merger—about £140 million—is not large.
Another reason for the merger cited by Ministers is the need to have a regulator with stronger powers. If you talk to the Healthcare Commission or CSCI, neither of them would say that they need stronger powers. What they need is to be able to maintain the momentum that they have so successfully generated. That prospect is apparently to be denied them. For a period of two years, we will lose the benefit of the Healthcare Commission’s work on areas such as maternity services, the care of those with learning disabilities and infection control—to cite the examples given by Sir Ian Kennedy. We have heard much of what Sir Ian said already, but in giving evidence in another place he went so far as to say that the rationale of the Bill remained “at best unclear”. Coming from him, that statement should set alarm bells ringing.
If the noble Lord, Lord Lipsey, were to press me, I would have to express some hesitation about going quite as far as his amendment goes in postponing implementation by four years. He perhaps needs to go a little further to demonstrate why four years would be an appropriate delay. However, I might well join him on Report if he proposed a slightly shorter delay—a period sufficient for both the Healthcare Commission and CSCI to work together more closely than they do at the moment and sufficient for them to be confident of handing over their respective going concerns in a shape that could be taken forward more coherently than they can now. This is one of the most important questions that we will need to decide, and I only hope that the Minister is in listening mode.
Were the noble Lord, Lord Lipsey, here, I would congratulate him on the excellence of his argument. I congratulate the noble Lord, Lord Low, on his behalf. I thought that he deployed some telling arguments—but then I would, because they are arguments that I have deployed at least twice before, and I think that the noble Earl, Lord Howe, has, too, as we sat through various bits of legislation setting up different health and social care legislators. Having said that, I think that I am in the happy position of being able to anticipate a lot of what the Minister will say to us in response.
The arguments about the merger could be made at any time. There will never be a time when there is no change going on in the world of health and social care, so why do I think that those arguments are particularly strong now? I have two reasons. First, I share a feeling with the noble Baroness, Lady Wall, who has now twice expressed her impatience for change. When she does so, my immediate reaction is, “Yes, but you are representing the acute healthcare sector”. I am sorry but, as someone who comes from the social care sector, that is how I feel and I am one of thousands of people who feel the same. People in social care are fearful that the lack of parity between acute healthcare and social care has not yet been sufficiently addressed. I am sorry to come back to it but that is the reality on the ground.
The more telling arguments are not the ones that have already been made about the organisational change for the regulators, but those that say that what the regulator is to regulate is going through a period of unprecedented change. The noble Lord, Lord Darzi, is about to publish his review. I am sure that he will tell us that what the healthcare regulator has to do will not change substantially. That may be so, but immense change is taking place in social care. I shall mention just three things. The first is the implementation of the 2010 procurement directive, which will bring about a necessity for competition in all areas of public funding. That is why even money spent on what is known as Part B, relating to health and social care services, which so far have been exempt, will be open to increasing competition by 2010. If noble Lords care to look, they will find more and more tenders for all sorts of forms of social care. That is having a dramatic effect on providers and that will increasingly be the case for the next two years.
The second major area is the extension of individual budgets and self-directed care, which will bring about a massive change in everything to do with care planning and the care workforce. Increasingly, social care will be delivered by informal carers who have been chosen by people given a budget with which to secure their care. Those carers will not have to be registered in any way. That is a massive change. I honestly think that the Government have underestimated the extent and pace of change in social care.
The third thing is the Government’s announcement in the summer about long-term care, which, again, will have a huge effect on what happens in social care.
Therefore, not only will we go through a period of disruption in the organisation of the regulator and regulation but there will be unprecedented change in the delivery of services. The noble Lord, Lord Lipsey, is not present, but I think that he was quite canny. In the light of those three changes on their own, never mind anything else, I think that it will be early 2013 before we begin to see anything like a settling down of provision. For that reason, I think that the noble Lord, Lord Lipsey, has gone further to the heart of all this than perhaps even he recognised.
I also congratulate my noble friend Lord Lipsey on his 60th birthday, despite his not being here. I hope he will get to his party tonight and will enjoy the evening.
Amendment No. 2, as it is written, would delay the Care Quality Commission’s operational start for more than four years. It does not debate whether or not we should have the merger. I have listened carefully to my noble friend’s concerns that the creation of the new regulator is seen as one of a long line of changes. It might be helpful if I talked through the rationale behind those changes.
As the Committee knows, we introduced independent assessment of the NHS back in 1999 by creating the Commission for Health Improvement to support the drive to improve quality in the NHS. Although it did that well, it was felt to duplicate or even overlap with aspects of the Audit Commission’s work and, later, the National Care Standards Commission’s regulation of independent healthcare providers. As a result, in 2004—and this brings me to my noble friend’s word “re-reorganisation”—we created the Healthcare Commission, which enabled more sophisticated assessment of NHS providers and more independent information for patients in the annual health check, as it has been known so far. At that time, however, regulation of the NHS was still new and needed time to bed in, whereas the regulation of social care and independent healthcare was already well established.
Improvements since then, such as the better integration of health and adult social care services and, as we have heard today, more choice for patients and service users, mean that the time is now right to bring the regulatory frameworks together for the benefit of those who use the services. We believe that the common framework will remove artificial barriers between the health and social care systems—that is certainly challenging my review at the moment—and will further encourage joint commissioning of health and social care services. Having one single regulator will be simpler for the public too, especially where people are using services from both systems, as is increasingly the case. The noble Baroness, Lady Barker, has eloquently described some of the future challenges in social care and some of the long-term conditions.
I strongly believe that the sum of the two commissions is greater than its parts, which is the debate that we have been having today. There is reasonable evidence out there that more integration is better for patients, and a more integrated regulator will probably enhance the quality of integrated service provision. As we will address in detail in response to later amendments on the subject, there are also significant benefits to be gained from bringing the monitoring of functions under the Mental Health Act into a single organisation with health and social care regulation. These include stronger penalties and the fact that the commission will also now be able to take action to intervene where people who may not be subject to compulsory detention under the Mental Health Act are not being cared for appropriately.
Given those benefits, let me offer some reassurance about the concerns expressed by my noble friend Lord Lipsey. We do not intend to implement the full registration system until April 2010, in order to ensure that there is sufficient time to establish the new system and for providers and commissioners to familiarise themselves with it. We will not be reinventing the wheel, either. Providers of social care and of private and voluntary health care have been subject to registration for a number of years, and they do it remarkably well. Both the department, in the development of secondary legislation, and the new commission, in developing the criteria, will build on the expertise of the existing commissions and the experience of the social care and private and voluntary healthcare sectors. The system should, and will, build on the Care Standards Act 2000 model to extend to all providers, including the NHS. As part of the transition to the new commission, we are working closely with the existing bodies to ensure business and human resources continuity.
Let me address some of the other issues raised. The first is the eloquent contribution of the noble Lord, Lord Low, concerning the quote from Sir Ian Kennedy, who is a colleague for whom I have had tremendous admiration for what he has achieved to date with the Healthcare Commission. At the same time—probably in the same evidence-giving session on 8 January—we heard from Councillor David Rogers of the Local Government Association, who stated:
“Organisational change always causes some short-term disruption and some loss of focus for a short period. If any change is to be made, everything must be attempted to try to minimise that, but I think the long-term benefits outweigh it”.
It is strongly emphasised that, as we are going through this change, we need to make it as constructive as possible. That was acknowledged by my noble friend Lady Wall.
Earlier, the noble Baroness, Lady Cumberlege, made a point about the Imperial College NHS Trust, an organisation that I have worked in, which has just been through a merger of three separate organisations: two major NHS providers and a university. Ten years ago, you would have said that they were chalk and cheese. That organisation had to merge as quickly as possible in order to have the least disruption to its mission. Those who work in those organisations strongly believe that the sum of the parts is greater than the value of each of them.
The noble Lord, Lord Low, also asked whether the Government have followed the National Audit Office guidance. The implementation team is fully versed in the study being carried out by the National Audit Office following the merger of various bodies to form Ofcom, and we are using it to inform work to establish the Care Quality Commission. The noble Lord, Lord Ramsbotham, also raised the issue of inspection and audit. Inspection is embedded in health and social care regulation. The current regulators, whether the Healthcare Commission or CSCI, both audit and carry out inspections.
Some noble Lords, to whom I am very grateful, were also concerned about how establishing the new regulator would fit within the next stage review. I should like to make clear that the review will not lead to changes in the organisational structure of the NHS—I made that commitment in the interim report—but is there to build on reform so far and focuses on what should be the purpose of reform over the next decade: quality and safety, two words that we have used regularly today. The regulatory framework in the Bill is designed to be sufficiently flexible to allow that to happen, and I very much hope that the next stage review will be the vehicle by which we can address some of the concerns raised today.
Given all the hard work and preparation that has already been done for the new commission, a delay could lead to confusion and an inevitable loss of momentum. It would greatly extend the period of uncertainty for the current commissioners’ staff. Delaying the implementation of the provision would also defer implementation of the enhancement to the function of monitoring of the Mental Health Act achieved by Schedule 3.
The long-term benefits of the provision far outweigh the damage that a delay could cause at this stage. I hope that I have provided the Committee with enough reassurance that this is really the right time for my noble friend to feel able to withdraw his amendment.
In Committee it is open to any noble Lord to make a contribution at any stage—I make that point for the benefit of all noble Lords. I listened closely to the noble Lord, Lord Darzi, and I wonder if he could deal with two points. I spoke about the huge change that is going on which is due to come into effect in the next two to three years in terms of provision. He said that the structure of the NHS will not change as a result of his review. I understand that, but is it not his intention that a great many more services will be provided by the ambulance service, for example, and by GPs, who are critical to the NHS and who are in a community setting? It is not clear whether they are to be brought under the scope of this Bill. Although he does not intend to change the structure of the NHS, what happens where and who delivers services will change enormously.
The noble Lord mentioned, rightly, that the Government want continuity that builds on all the good work of the existing regulators. He mentioned the Care Standards Act. That piece of legislation that I know and love well—I sat through hours of debate during its passage—was designed for a time when the majority of care services were provided en bloc by public authorities. For example, a great deal of the Act relates to the provision of residential care by public authorities. My point is that, for the foreseeable future, the nature of social care services will change dramatically. Residential care services may well continue, but there will be a massive change in how they are managed, as opposed to commissioned, by individual users. That is the agenda being pursued by the noble Lord’s colleagues in the department. I remain unconvinced and still have a number of queries that I hope that the Minister might be able to take on board.
I could not agree more with the noble Baroness, Lady Barker, in relation to change. Medicine is a very exciting field. Health and social care is an extremely exciting field, and change occurs not just daily, but weekly, monthly and yearly. I am sure she will agree that we need a provision that keeps up the momentum of that change. At the same time, if you have providers that maintain change and innovation, we need a regulator that maintains change and innovation. The example that we discussed is more care being delivered from the community, whether that is in a primary community setting or in social care and integrated services. That is something close to me. Many noble Lords will have heard that I do not believe that provision in a hospital setting is the future in meeting some of the challenges facing us in health and social care, given the ageing population, long-term conditions, the success of technology and the conversion of acute illnesses into chronic long-term conditions. We need robust systems out there in health and social care to deal with this integrated model, and the combined regulator is one of the enablers in allowing that to happen, rather than being an obstacle.
I do not wish to prolong the debate, but this is a key issue. In response, I would make two points. I do not believe, and I see absolutely no evidence, that either the Healthcare Commission or CSCI have in any way held up those innovations. I would say the reverse: that CSCI has very much been to the fore in terms of driving them. So I am not sure that that argument stands. My point is that, as the delivery-commissioning management of services increasingly moves towards individual users, the task of regulation becomes completely different from the regulation of large public authorities. It is not necessarily wrong of noble Lords to ask for more time for regulatory systems and processes to be developed to take on board that substantial change.
I am seeking clarification on the involvement I can have here. Forgive me; it is the first time I have been involved to this degree. I understand from my well briefed friend that we are having a conversation here, and I would like to be part of that conversation, if that is okay.
In her contribution, the noble Baroness, Lady Barker, has made the argument for us going ahead and doing this. She rightly suggested that I am speaking on behalf of an acute trust—primarily, I am—but it is an acute trust that is now into a phase of reconfiguration of services led by the Government’s community view of services being delivered nearer to home. As a result, the discussion that is going on between us and the commissioners, whether they are the PCT, the GPs or independent commissioners, gives us a view that is wider than dealing with what happens inside a hospital. That is the way forward. When I make comments in opposition to the amendment, I do so on the basis that the wider the service goes, the more important it is that the regulator embraces all those services. That is why we are anxious that this should go ahead when it is scheduled to. The very reason why the changes are happening means that there is a time when they should happen, and the schedule reflects that.
People want a regulator that looks at what happens in the hospital, but as less and less goes on inside hospitals and more goes on in the community, the regulator should look across all of that. That is why I and the people I have had discussions with—not just from the acute trust but with PCTs and other commissioners and providers—suggest that the sooner we get on with this, the better.
I do not for a moment doubt the noble Baroness’s sincerity nor her motivation in wanting the merger to happen, but perhaps she will understand the concern that some of us have that what happens in the community is not extended healthcare; it is social care. That is the sort of argument we wish to have, particularly when much of what will happen in the community in future may well come under the auspices of an acute trust, but that may well be up against services that are being commissioned by individual social care users. Those are much lower level services, not medical-based services in any way.
I feel that I have prolonged my argument, but I remain unconvinced. I look forward to the noble Lord, Lord Lipsey, taking the baton up again.
We are proceeding at a pace more reminiscent of debates on House of Lords reform, so the Committee will be anxious to move on. When he left, the noble Lord, Lord Lipsey, seemed to be in a charitable mood, so I am sure he would want to withdraw the amendment. However, this is an issue about which we may still have more to say. I am glad that the issues have been canvassed, and it is right that we take them away and return to them another day. There is unfinished business here with these two commissions. As has been said, there will always be unfinished business, but it would be beneficial if the commissions were given time to finish their work a little more tidily than they will be able to if the Bill’s provisions go through.
I say to the noble Baroness, Lady Wall, that I tried carefully to distinguish between arguments against the merger in principle and the arguments for delaying it somewhat. The case I made was not just a case for scuppering the merger in disguise. I continue to think that there are valid arguments for giving this a little more time. I am not sure that the merger has been fully thought through yet; I am grateful for the Minister’s assurance that the National Audit Office guidelines have been looked at, but I am not sure that all the alternative models have been fully explored.
There is also the question of disruption. As with unfinished business, there will always be disruption, but the case that the noble Lord, Lord Lipsey, and I, as well as others who have spoken—including the noble Lord, Lord Ramsbotham, I think—would make is that more time would enable a smoother transition and make it possible to minimise the disruption—a degree of which is, I concede, inevitable.
Just as we will take the issues back and reflect on what has been said, so might the Minister be glad if he gave the matter a little more consideration. I think back to the ill-starred Commission for Patient and Public Involvement in Health, which we finally put to rest a year ago in the Local Government and Public Involvement in Health Act. Its death sentence was passed several years previously, but it had to have a stay of execution because the administrative arrangements for handing over to successor bodies had not been put in place. I think that there were six stays of execution. I wonder whether the Minister might care to reflect on that and on whether, in due time, wiser counsels might prevail. He might come to the conclusion that, by lengthening slightly the transition period, he might be saved from having to make an embarrassing retreat on the timescale of implementation.
We will certainly wish to return to this matter. Just as the noble Lord, Lord Lipsey, was in charitable mood in authorising me to withdraw the amendment, so might he have been in slightly expansive mood, perhaps in view of his approaching 60th birthday, in drafting the amendment. I concede to the noble Earl, Lord Howe that four years might be a little too long. I venture to think that there might be a meeting ground for all of us somewhere between the one year that is provided for in the Bill and the four years proposed by the amendment. On behalf of the noble Lord, Lord Lipsey, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
[Amendments Nos. 3 and 4 not moved.]
5: After Clause 1, insert the following new Clause—
“The Commission’s duty to report to Parliament on its proposed activities etc.
(1) Before the start of each financial year the Commission must lay a report before Parliament on its proposed activities for that year, which must in particular report on the following matters—
(a) the extent of the resources which it intends to commit to its functions in relation to the regulation of adult social care under this Act;(b) the extent of the resources which it intends to commit to its functions in relation to the regulation of healthcare under this Act;(c) the extent of the resources which it intends to commit to its functions in relation to people detained under the Mental Health Act 1983 (c. 20);(d) its general programme of activities;(e) the extent to which, in relation to its activities, it intends to involve and consult people who use health and adult social care services, their families and carers; and(f) the objectives which it intends to meet in— (i) the regulation of healthcare and adult social care; and(ii) the performance of its functions in relation to people detained under the Mental Health Act 1983.(2) Nothing in this section shall prevent the Commission, following its report to Parliament, from making such adjustments as it considers reasonable to the balance of its resources expended in each area of activity or to its general programme, consultation activities or in-year objectives as set out in sub-section (1).
(3) But any adjustment made to a matter referred to in subsection (2) which the Commission considers to be substantial should be reported by it, with a reasoned explanation, to Parliament within one month of the adjustment being made.”
The noble Earl said: A consistent theme of our Second Reading debate, reprised several times today, was the fear that one area of the commission’s regulatory activities would assume an undue ascendancy over one or both of the others. In particular, the fear was that social care matters could in certain circumstances become the poor relation to healthcare within the commission’s programme of work. The underlying thought here is that the commission will be an organisation whose success in the public mind will be judged largely by reference to those areas of its remit which tend to assume a high public profile—in other words, health—and that, almost inevitably, resources will be sucked into that area of its work at the expense of others.
There are various ways in which one could set about forestalling that possibility in the Bill. We will shortly debate an amendment designed to ensure that adult social care is properly represented on the board of commissioners. I happen to have great sympathy with that idea, not least because it is common sense. Later, we will debate an amendment in the name of the noble Lord, Lord Lipsey, which would create sub-commissions within the commission—one for health and mental health and the other for social care. I can see where the noble Lord is coming from in that amendment, although I am not sure that I shall be able to support him, as setting up sub-commissions would seem to me to encourage the commission to work in silos. That would not be particularly helpful in bringing the regulation of health and social care closer together, which is what many of us want to do.
Setting that objection aside, neither of those ideas will necessarily ensure that the risk of the poor relation syndrome is diminished. By itself, having a commissioner with extensive previous experience of adult social care, sensible though that would be, would not prevent resources being sucked away from social care regulation and into health care regulation. In the end, what will matter is the spotlight of public accountability. The more transparent the workings of the commission, the more likely it will be that no area of its work will be unduly advantaged at the expense of another.
The amendment proposes that accountability to Parliament would be a way in which to achieve this end—a system of reporting to Parliament not after the year end but before the year begins. At an appropriate moment, a Select Committee would receive the commission’s business plan for the coming year and within that plan the commission would set out exactly how it proposed to allocate its budget between its various activity streams. It would have to stand ready to justify that allocation. Public scrutiny would therefore become the main safeguard against the unfair skewing of resources that some fear. Adopting this idea would also provide a means whereby the influence exercised by the department and Ministers over the commission’s work programme would be healthily counterbalanced.
The Minister may not be all that drawn to that idea. No doubt he will tell me that there will be a line of accountability between the commission and the Department of Health as the sponsoring department and that Ministers and officials are capable of keeping an eye on such concerns. I understand that argument but, again, I do not see departmental scrutiny in the same light as I do parliamentary scrutiny. Departmental scrutiny takes place behind closed doors and is not a process that exposes a public body to the transparent public questioning that is necessary if we are to avoid the kind of pitfalls that many fear.
I hope that the Minister will understand the motivation behind the amendment; it is a genuine attempt to tackle the widely held concerns that have been expressed without being too prescriptive about how the commission structures itself or sets about its business. I beg to move.
I shall add a few words to what my noble friend has said. In his usual way, he has presented the case well. I share his view that the Minister will not be totally enamoured of the amendment, but it is very important that the commission is seen to have the confidence of the general public though transparency, as my noble friend has said. We know that in the cockpit of the NHS are Ministers; our top board in the NHS is composed of politicians, who are ultimately responsible for performance. It is a very political organisation, which affects so many different lives—people at their most raw and when they are suffering. We know at election time that the NHS is an enormous issue.
There is huge merit in introducing this added safeguard. The CQC should be removed from any sort of whiff of interference by the top board. When one is a Minister and responsible for the performance of the National Health Service, it is very painful and irritating to be criticised by a regulatory body. I remember when the Audit Commission was responsible for the National Health Service as well as local government. We dreaded its reports; we knew that it was going to come out with things that needed addressing. In fact, that was very healthy. But for all of us, in individual as well as in corporate lives, criticism is extremely uncomfortable.
However, these things need to be said—and it is interesting that the Government have with enormous skill established Monitor. That is another regulatory body that really is independent. When the department felt that it should be responsible for what was going on in foundation trusts in terms of healthcare-acquired infections, Monitor came in very strongly and said, “No, that is part of our regulation, not yours”. It was that very clear accountability that enabled it to do that, in addition to having a powerful chairman appointed and a very effective board.
This amendment would ensure that the commission was totally independent. It is still of course accountable to Parliament. I like the way in which the ombudsman regulates and the fact that it has a select committee to which it reports. There are mechanisms that we know work, which enhance the reputation of the regulator, and we feel that this is an issue that needs addressing. Clearly, we would like the commission to report directly to Parliament.
I wish to support this amendment, partly because I would hate my colleagues to think that they stood alone on this one—although if other noble Lords are going to speak, they are welcome. This reflects the debate that we have had time and again.
I want to make some very small points. First, none of us speaking in this debate who are anxious about the changes are averse to change. My history is full of change management; it is what I do. It is when change lacks clarity that it is a problem—and the problem about this change goes back to the debate that we had several hours ago in this Room about objectives. I am still unclear about the objects and direction that this regulation is going to take, which is why I seriously support this amendment, because it would give clarity to outlining which way forward is going to be taken right at the beginning of a year. In any event I hope that by the end of the discussions on the Bill we have a clearer set of objectives, although that may not deny the need for this amendment.
This amendment would give a little reassurance to the many people out there who are seriously concerned, because services are all about resources. Indeed, as we know, the Bill is all about resources. The resources will go to the strongest challenger unless the Bill contains something that says they must be balanced. That is why I support the amendment moved by the noble Earl, Lord Howe.
I also support this amendment, which would help to ensure greater transparency in the way that the Care Quality Commission allocates its resources across the three core areas of its remit of health, social care and mental health. Both the outgoing social care regulator and the Mental Health Act Commission have expressed particularly strong concerns that their area of work risks being submerged, as we have heard many times already today and will many times again, or that their work will be deprioritised, given the much greater political attention devoted to mainstream health services. They say this not out of professional insularity but because they know that it would impact negatively on the life chances of those who are most vulnerable to abuses of their human rights and who require the greatest level of support to enjoy independent living. The amendment would guard against that as the CQC would need to account to Parliament annually on how it divides its resources and effort across the three core areas.
Moreover, the amendment would require the CQC to set out how it intends to involve people who use health and adult social care services, including their families and carers, in drawing up its programmes of work. We cannot afford to leave user involvement to the discretion of the new commission. If we want a user-focused regulator, we must insist on this now so that it is embedded in the CQC’s plans from day one.
I also support the amendment. It will be incredibly difficult to balance healthcare inspection against social care inspection because ultimately there will be limited resources. In inspecting, there are services clearly above the line and those that are clearly below the line, but it is those in the grey area in between that are particularly difficult and it is the patients or users and their carers in that area who are often particularly vulnerable. I shall never forget my experience of being involved in prosecuting what was then called an EMI home and, working with the police, the incredible difficulty of getting evidence of what we suspected was really going on. In fact, what we discovered was even worse than we could ever have suspected.
The other advantage of having a declaration of a work pattern ahead of the year is that it acts as a warning shot to services that they will be under scrutiny. The healthcare, social care and mental health services will all be looked at. Therefore, not only will the regulator have to ensure that all parts are looked at adequately but that the services themselves will have to address the way that they interface.
I hesitate to intervene because my expertise in this area is very limited and I feel quite humble when I sit among so many noble Lords with a background in this area of parliamentary work. However, I want to make one point. If you ever want to influence the conduct of individuals or organisations, you should simply subject them to greater levels of transparency.
That argument in its most populist form can be expressed by considering what has happened in the case of revealing the expenses of Members of Parliament. That has had a huge influence on the debate and it has also had a major effect in Scotland, where the new regime is in place. I use that only as a populist example but it is an indicator of what happens in all conditions where transparency is the rule of the day. I believe that in many ways this amendment would be extremely helpful to Members of Parliament in the other place in that, when referring to constituency issues, it would give them the opportunity to draw a distinction between expenditure in the whole area of social care, which appears to be at some risk under the provisions of the Bill, and expenditure in the area of acute care, which in my view at the moment appears likely to take the lion’s share of resources. Therefore, I greatly welcome the amendment.
Amendment No. 5 would place a duty on the Care Quality Commission to report to Parliament each year setting out its proposed activities for the future financial year and how it intended to allocate its resources. I agree that the commission, as an independent body, must be held accountable for its activities. I also appreciate the concerns here to ensure that the commission will take account of its objectives, the importance of patient and public involvement and the importance of treating health, social care and mental health services equitably when it is allocating resources and developing its forward plans. However, there are a number of reasons why I do not believe that the amendment is needed.
First, I agree that it is important that the Quality Care Commission sets out how it intends to use its resources. Of course, Clause 79 of the Bill already requires the commission to report annually to Parliament on how it has exercised its functions and what it has found as the current commissions do. These reports often include a forward look at plans for the coming year. The commission will, of course, also develop its business plan each year as the current commissions do. The current commissions also make their plans publicly available and I see no reason why this would not continue to be an appropriate mechanism for setting out the body’s plans in the future. In addition, Clause 77 requires the Care Quality Commission to publish a programme of the reviews, studies and other similar activities it intends to carry out in the following year.
On the specific proposals in the amendment, we have already spoken about the objectives. The commission will need to have regard to its objectives in everything that it does, so its business plan will set out how it will fulfil its objectives. That is what a business plan is for.
I disagree that it would be appropriate to ask the commission to distinguish between what resource it intends to allocate across health, social care and mental health. We are creating the Care Quality Commission to take an integrated approach to regulation as far as possible. Asking it to attempt crudely to allocate resources in this way would run counter to that approach.
Finally, throughout the passage of the Bill there has been considerable debate on the involvement of the public and those who use care services in the work of the commission. We will be debating the issue at length later, I am sure, but at this stage I agree that we would expect the commission to make its methodologies on this publicly available. On the point of transparency, Clause 2(3)(f) makes reference to best practice and that the CQC should be transparent in its regulatory action. As I have explained, the new commission will make publicly available all the information suggested in the amendment about its planned activities. Given this and the pressures that there are already on parliamentary time—as we have rehearsed, we do not want to come back here and re-debate the Bill in two or three years time—I do not believe that additional requirements to report to Parliament are necessary.
I will read the last paragraph to put it in context. I believe that the new commission will make publicly available all the information about its planned activities, as suggested in the amendment. Given this fact and the pressures that are already on Parliament’s time, I do not believe that an additional requirement to report to Parliament is necessary. I would therefore ask the noble Earl to withdraw the amendment.
I have short-term memory loss, but before the disruption I thought that I heard the Minister suggest that Clause 77 on page 37 was part of his defence. Subsection (1) states:
“The Commission must from time to time, or at such times that the Secretary of State may specify by order, prepare and publish a document”,
and so on. That is our concern, because the Secretary of State is specifying. We would like to give the commission more freedom and accountability to Parliament, rather than the Secretary of State. Subsection (2) states:
“Before preparing a document”—
this relates to special reviews that we will discuss later—
“the Commission must consult … the Secretary of State”.
That is our concern. We feel that the Secretary of State, not necessarily the present Secretary of State, but a future one, could heavily influence the commission regarding when it produces the documents and how it does that. Many of those documents will be unpalatable and, therefore, the Secretary of State could lean on the commission not to produce those documents either at the time of its choosing or with the content that it chooses.
That is the relationship that CSCI and the Healthcare Commission have with the Department of Health. They report to the Secretary of State. If it is felt that there will be a change to the current arrangements with the Healthcare Commission, I will be happy to look into it and discuss it on Report.
I am grateful to all noble Lords who have spoken in this debate and for the support that they were able to give to the amendment, which was extremely welcome. The noble Baroness, Lady Howarth, was right that the case for the amendment should be viewed in the same context as that for the first group of amendments that we debated today. It is all about giving the commission a better sense of independence and a better way of justifying what it does from year to year.
I heard what the Minister had to say and was not completely convinced. My noble friend Lady Cumberlege has already made some powerful points on that score. Clause 79, to which the Minister referred, is, as he will realise, a clause which provides for ex post facto reporting of the commission’s activities, not reporting in advance. The key to my amendment was the idea that reporting in advance would enable the public to be reassured that the commission’s work was not going to be hijacked in any way. By the time that a year is finished, it is too late.
I of course understand that we are all looking for an integrated approach to regulation, as the Minister pointed out, but that surely does not mean that the commission will be unable to distinguish between its various streams of activity. Clause 79 certainly implies that the commission will be required to distinguish between its streams of activity in presenting the reports for each financial year. So I was not totally persuaded by that point.
Nevertheless, there is much to reflect on here; I shall do just that between now and Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [The Care Quality Commission]:
6: Schedule 1, page 110, line 24, at end insert—
“( ) The Secretary of State must ensure that the Commission includes at least one member appointed under sub-paragraph (1)(b) who has comprehensive experience or knowledge of the provision of adult social care services in England.
( ) The Secretary of State must ensure that all members of the Commission are appointed on a non-executive basis.”
The noble Baroness said: I am sure that the Minister feels like he is facing yet another over of bowling on the same wicket, but in a slightly different style. Amendments Nos. 6 and 9 go back to the issue that we have talked about all afternoon; that is, ensuring appropriate representation of social care in the CQC.
In the previous amendment, the noble Earl, Lord Howe, sought to attack the issue in a different way. Amendment No. 6 is predicated on the belief that it is people and the experience that they bring to an organisation, especially in its formative stages, that set the culture and priorities of that body. I return to the matter that I raised earlier: the advert for the chair of the CQC. It was evident from that advert that the social care was certainly not to be included with anything like the same status as healthcare. That has set many fears running throughout the world of social care.
It is always difficult for the Opposition during debates on Bills such as this to argue at one and the same time that an organisation should be independent and that it should seek to make lots of representations about how it should be formed and what it should do. I think that it is legitimate to go as far as we do in the amendment, and probably not much further, in determining who ought to be the members of the commission, for the reasons that I have already outlined.
It is inconceivable that the CQC could do its job effectively were it not to have in its membership someone with extensive experience of social care, local government and the history of the development of social care up to this point. I remind the Committee that the advert for the chair did not mention the need for the chair to have any experience of local government or the independent sector.
There should also be a small governing body that consists of non-executives. It is quite clear from the advert published in March that the model used was that of a strategic health authority, because it took the health service model of having a mixed board of executives and non-executives. That is not standard practice in social care and does not reflect the governance structure of many of the bodies that the CQC will be regulating. Throughout social care, no matter what size the body, it is the norm for there to be a non-executive body—trustees, board members or whatever—to set the strategic direction of an organisation and provide a line of accountability. The body then employs executives to implement that.
There are parallels. The Audit Commission, for example, has a board of commissioners. They set standards, strategy and objectives; they set the budget; they monitor performance; they are responsible in law for accountability; and they govern the actions of the body within its statutory remit. That governance model is appropriate to the body that we are setting up which, judging by the advert in last Wednesday’s Guardian, will have a very high-powered chief executive and executive staff below.
I anticipate one argument that may be advanced by the Minister in his attempt to resist the amendment: why do we not then say that there ought to be members who represent the different strands of users within social care? That is unnecessary. It is entirely possible for someone who comes from a social care background to understand issues common across all social care groups. I do not believe that all social care needs are the same or that all client groups necessarily have the same priorities. I have worked for most of my life with older people and I understand that issues to do with them are distinct and different from issues to do with adults with physical or learning disabilities, and they are wholly different from those which apply to children. But those distinctions are of a different order from the distinction between healthcare and medical care, which are presaged on a separate basis of need and decision-making. It is therefore possible to have one member who comes from a social care background.
Amendment No. 9 proposes that there should be a children and adult rights director. I simply refer the Committee to the earlier speech of the noble Lord, Lord Ramsbotham, in which he made much of my case for me. CSCI has done outstanding work over the past few years on children’s issues, but the majority of what it had to do with children has been taken off to Ofsted. Nevertheless, there remains a whole raft of social care issues relating to children and it is important that in this body there is someone with the expertise, knowledge and understanding to work on children’s issues. People who work in children’s issues have to maintain a separate set of relationships with, for example, schools, CAFCASS and adoption agencies; it is a different world to any other part of social care. The noble Lord, Lord Ramsbotham, made the case effectively when he mentioned the safeguarding of children work that is done by CSCI. To lose that—and there is a huge danger that it could be lost—would be a disaster.
It is important that from the very beginning there is someone in this body who understands a rights-based approach to social care and who has the knowledge and the power to stand up to the sometimes powerful and overwhelming cases made by health and, in particular, acute health services for attention. We need people who, as they are in social care, have the experience and the wherewithal to sit within the body and to keep asking the questions which are difficult to answer, not least because they generally have a long lead-in and are difficult to measure within a short space of time.
I fully expect members of the Committee to say that this will be too restrictive on the new commission. I do not believe it will be. In many ways the proposal is essential to the body doing its job properly and to it having the right amount of standing within the social care world, which it certainly does not have at the moment. I beg to move.
I am anxious to get on and get home, which means that I shall be brief. The noble Baroness, Lady Barker, has made the arguments on the two amendments and I wish to add only two points. The Government should learn from their experience in these areas, in particular from CAFCASS where the first board had few people, if any, who really understood the nature of the task. That was obviously a disaster. It is absolutely crucial that a board has within it people who understand the nature of the service it is delivering. That does not mean that it has to be totally made up of those kinds of people. I helped to regulate meat hygiene, which is a bit different. After regulating meat hygiene, food standards and telecoms, I am absolutely clear that the difference is that people who understand about quality and protection—which become ingrained within you if work in these fields—need to be on boards such as these because such issues are often seriously overlooked.
I shall speak to the other amendment in my name. Roger Morgan, the children’s rights director at the Commission for Social Care Inspection, has been continually concerned about the rights and care of children in hospitals. That does not mean that he thinks that hospitals are getting it all wrong, but that there is no one with inspectorial overview or who is able to talk with children about their experiences and, consequently, to draw out issues that might be useful for the whole of the health service. He has tried very hard to keep that bridge, but that has been more difficult since he has been at Ofsted, which has a strong educational pull. Therefore, it is vital that the new commission appoints a children and adult rights director who can focus on those issues and talk to users right across the spectrum, draw out their thinking, feed it back into the commission and, I hope, change services.
I have things to say about the advert and the appointment. The post was mentioned earlier and I do not know whether that relates to Amendments Nos. 7 and 8. I know that the Minister said that he would look at the issue at some point. Maybe he can then tell us where we are on all this.
I support the amendments and I share with the noble Baroness, Lady Howarth, the unfortunate experience of CAFCASS having a board that was originally made up of people who, as the result of a deliberate policy decision, knew nothing about the issues. I hope that that will serve as an awful warning to the Government. The other thing that we might draw from the CAFCASS experience is the necessity and value of separating governance from management. I commend that to the Minister, because if you mix the strategic focus and the development of policy with delivery, you will get into trouble. I hope that we can keep those two things separate and ensure that the requisite experience, not just of current practice in social care, but of its history, can be embedded in this new body.
This is a strange group of amendments, in that three completely separate issues are being addressed. The first relates to someone or some people with definite experience in social care services. The points in relation to that were clear and well made. I suspect that any commission will fail unless the various key elements are represented by people who have “been there and done that”.
I want to pick up on the second part of Amendment No. 6, relating to whether the board is non-executive or mixed. I am well aware of, and have served on, NHS boards where there is a mixture, although most of my experience has been serving on boards which have been entirely non-executive. There may be a case—of which I am not entirely convinced, I have to say—for most health service boards having a mixed structure of executive and non-executive members, given that they are subordinate bodies that report up a management line and implement things down a particular set of tram lines. This board is very different. It is about setting a strategy, philosophy and style. The interests and ways of operation of the executives of that body and those of non-executives who set the overall strategy are distinct. I cannot see a case for this body having a mixed board of executives and non-executives.
Amendment No. 9 raises a completely different set of issues. I have a lot of sympathy with it. It is perhaps not as precisely drafted and defined as Amendment No. 6, but the principle is clear. In most of the areas that the new commission will regulate, one is talking about people who are very vulnerable. In some instances, they are transitorily vulnerable by virtue of an illness or catastrophe which has befallen them, but in far more cases they will continue to be vulnerable for a variety of reasons. There is a great danger in healthcare and social care, and certainly in mental health care, of over-professionalisation of the way in which those interests are addressed. For that reason, one must ensure that something is built into the new commission, either by this kind of amendment or something else, to act as a counterweight to some of the professional voices which will be heard about a particular style of care, whether it is healthcare or social care.
I simply want to make a correction. Foundation trust boards are mixed; they do not report up the line; they are entirely responsible for the work of their trust; and if it all goes wrong, they will simply be sacked by Monitor, which is the regulator and the only body above a foundation trust board. My understanding is that an awful lot of private sector boards are exactly the same: they are mixed and they are ultimately responsible for the operation of the organisation. Mixed boards work very well. What one needs is absolute clarity on the part of the executive and non-executive directors about their role. So long as one has really good selection procedures, it is a good model.
Schedule 1 to the Bill sets out various matters relating to the constitution of the commission. It makes various provisions necessary to establish the commission and to enable it to carry out its functions independently and competently.
I have great sympathy with the proposal that social expertise be reflected on the board of the commission. The commission will need to be composed of members from a variety of backgrounds to ensure that it can discharge its functions effectively. We fully recognise this and made it clear in the information made available by the appointments commission to potential applicants for the posts of shadow commissioners. The shadow chair, when appointed, will be involved in the recruitment of commissioners and will be in the best position to assess what combination of skills and expertise would be most useful to help the commission realise its goals across its full range of functions. I anticipate that there will be members with social care expertise.
It is arguable that the background of the commissioners is less relevant than their collective responsibility to ensure that the commission fulfils all its statutory responsibilities. These include substantial responsibilities in the social care field. The commission will be held accountable for how it discharges them.
The amendments also propose that all members of the commission be appointed on a non-executive basis. The wording that we have adopted in Schedule 1 is exactly the same as that used in the Health and Social Care (Community Health and Standards) Act 2003, under which both the Healthcare Commission and CSCI are comprised of non-executive members. It is our intention that the same model will apply for the Care Quality Commission.
Amendment No. 9 proposes that the commission appoint a children and adult rights director with specific responsibility for embedding a rights-based approach. It suggests that they would be an employee and also a member of the commission, which seems to contradict the principle in Amendment No. 6 that the commission should have only non-executive members.
That aside, I have to disagree that the amendment is necessary. The commission will already be under a duty to safeguard and promote the rights and welfare of children and vulnerable adults under Clause 2. We have also ensured that the proposed registration requirements are consistent with requirements in the European Convention on Human Rights.
As a public authority, the commission will be under a duty to act compatibly with the Human Rights Act. At Second Reading, my noble friend Lord Patel of Bradford referred to the excellent work that the Mental Health Act Commission has done in its project, Human Rights: Making It Real, to embed a human rights ethos into the work of the commission. This work has also been embraced by the Joint Committee on Human Rights. There is nothing preventing the commission from taking a similar approach. Indeed, I shall encourage it. As I said at Second Reading, we are working with the Mental Health Act Commission and other commissions to ensure that the Care Quality Commission learns from the culture and ways of working that they have developed.
Again, while it may be tempting to specify that there should be board members with specific remits in relation to the particular functions or responsibilities that the commission will have, I do not agree that this would add anything over and above what we have already committed to. The commission may or may not decide to have specific members leading on particular issues for the board. I believe that there are arguments both for and against that approach. It can mean the difference between the compartmentalisation of a particular issue and the integration of that issue into every aspect of the organisation’s work and culture. There is also nothing to prevent the board appointing experts to give specific advice where it is needed and to provide additional expertise. Indeed, the Bill as drafted specifically provides for this. Fundamentally, though, as an independent body the new organisation should establish the division of responsibilities and the organisational structures it decides it needs to best carry out its statutory functions, rather than imposing something centrally.
Having given our reasoning for not specifying particular posts on the board and clarifying that Schedule 1 provides for a non-executive board, I hope the noble Baroness is now content to withdraw the amendment.
I thank the Minister for his reassurance on the matter of the non-executives. I wish to take issue with one point. Amendment No. 9 states:
“The Commission must also appoint a Children and Adult Rights Director, who is to be an employee of the Commission”.
Where on earth does that suggest that it should be a board member? It does not. We need an understanding of what a member is because it will be important for all kinds of amendments further down the line.
I may have misinterpreted the noble Baroness’s amendment. The Secretary of State will ensure that all members of the commission are appointed on a non-executive basis. Amendment No. 9 requires that,
“The Commission must also appoint a Children and Adult Rights Director, who is to be an employee”
and a member of the commission. That could be interpreted as a member of the executive board but I am more than happy to debate it.
We are clearly working from a different text because that is not what it says. The wording that I read out is right. I simply make the point because down the road I shall come back to the issue of trustees and governance versus management. That is critical.
I have listened to what the Minister said and nothing in his answers surprised me. I was disappointed by his reply because these two measures are important for instilling faith into those involved in social care that the commission will operate properly and reach its stated objectives. At this stage I beg leave to withdraw the amendment, but I shall return to the matter.
Amendment, by leave, withdrawn.