First, I must make an announcement that if there is a Division during this Sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes. I should also announce that at a convenient point about two hours into our consideration of the Bill, it is expected that the Committee will be adjourned for 10 minutes.
Schedule 1 [The Care Quality Commission]:
7: Schedule 1, page 111, line 13, at beginning insert “Subject to sub-paragraphs (1A) and (1B),”
The noble Lord said: I need not detain the Committee long on this amendment because from the moment the issue of pay was raised with Ministers, it was clear that they were already on the case. Indeed, a strong rumour, on which I could not comment, says that they have their man—or woman—for the job. They certainly would not have done that if they had not persuaded themselves that something had to be done on the pay front. As I say, I expect that the Minister will be forthcoming and I shall not detain the Committee long.
The pay issue matters not just because of the pounds, shillings and pence in someone's pocket, which they may or may not need, but because it is a symbol of the importance of the job and the amount of responsibility that goes with the job. Thank God, I will not have to do it. I think it would have been seriously misunderstood in the sector if a good fight had not been put up for decent pay to go with the job. I do not believe that I need to say any more until the Committee has had a chance to hear the Minister.
If that rumour is so, I raise rather a serious issue. Irrespective of any personalities or any individual job, if a job is to be paid at a much higher rate than that at which it has already been advertised, I understand that under the Government’s own rules—certainly those rules that they supply to charities which receive grants from them—that job would have to be readvertised. I hope that that will be looked at. If someone has already been selected and will be paid more without the job being readvertised, some quite serious questions could be asked.
Perhaps I may follow up the point made by the Baroness, Lady Howarth. I have some concerns as someone who has, from time to time, been rung up by headhunters and been approached by a number of other people who have asked, “Would I be wise to get involved in this job?”. My response has usually been, “Not at that rate of pay, if you have any sense”. If someone has been lined up and if this is to be done without further advertising, how do the Government know what they have missed? I can assure the Minister that there are a number of people who have not come forward because of the way in which that job was advertised originally and at the salary at which it was advertised. It was not just a matter of money but the status that was implied by the job description and salary.
There are some issues for the Government. No one wants to delay unnecessarily the appointment of a new chair, but if the Government do finger someone—I know that Governments of all parties have been known from time to time to finger people for these difficult tasks and encourage them to apply for particular jobs—or that has been done, there is a process issue to which the Government ought to give some thought.
I would like to update the Committee on the progress of the recruitment exercise for the shadow chair of the Care Quality Commission. At Second Reading, I promised that I would look at this as many noble Lords expressed concern. I can confirm that the Appointments Commission has conducted an independent recruitment exercise based on the advert that the noble Lord referred to and made a recommendation to the Secretary of State. As the Secretary of State announced in January, he intends to invite the Health Select Committee to hold a hearing to enable pre-appointment scrutiny of the Government’s preferred candidate before making his final decision. I expect an announcement to be made tomorrow lunchtime on this next stage of the appointments process. I will write to noble Lords at the time of the announcement.
I would also like to clarify a point made during our previous day in Committee about the advert for the shadow chair which appeared in the Guardian newspaper and on its website on 13 February 2008. I would like to make clear that the Appointments Commission has acknowledged and apologised for the inappropriate placements in the newspaper and on the website. As part of the current recruitment process, the Appointments Commission arranged for the advert to be rerun the following week in more suitable positions in print and online.
Turning to the amendment, there is no doubt in my mind that the senior leadership of the Care Quality Commission needs to be of a sufficiently high calibre to ensure that it can deliver its statutory functions effectively. The commission will be a powerful new independent organisation responsible for regulating services across the health and adult social care sectors.
Can the Minister explain to me, a relative novice, how it is possible to advertise a job that has not yet been approved by Parliament for a body that has not yet been approved by Parliament? It could be overturned, or at least delayed for a year, by the House of Lords if we do not satisfy ourselves that we want this legislation. I ask in all innocence as I do not understand why the Government have jumped the gun.
We are appointing a shadow chair, not the chair of the CQC. As many noble Lords highlighted at Second Reading, continuity is one of the most important functions of the CQC as it takes its role in due course when the Bill is enacted after having gone through all its stages. I remind the Committee that we are appointing a shadow chair. The post was advertised through the independent Appointments Commission.
I am sorry to intervene once again, but I need to be clear on this issue. If it is a shadow chair, does that mean that the advertisement will be reinserted in the press, the shadow chair will not automatically become the chair of the commission and there will be a proper competition for that post?
I wish to add one thing and I do so happy in the knowledge that I have no interest to declare and will not have in the foreseeable future. One of the principal concerns that I raised at our last Sitting was not the level of remuneration for this post but the requirements of the job, particularly for the chair, which paid no attention whatever to the fact that this person had to have an understanding and experience of local government and social care. I am an avid reader of Wednesday’s Guardian and I have been looking deeply into the far more interesting post of chief executive of the CQC, which was advertised a week or so ago. In that advert, it is clear that the Government have paid some attention to points raised by noble Lords, although not enough in my view. It mentions the need for the person to have an understanding of local government and to know what a comprehensive area assessment is. However, nothing the Minister has said has allayed my fears that this recruitment process, as it has been outlined, is heavily biased towards health—almost exclusively. The fact that the Health Select Committee will go through the pre-appointment process offers scant hope that that in itself will be rectified. I hope that when the Minister responds more fully he will pick up that point which, for some of us, is by far the most important.
I put my name to these amendments and I am moved to get to my feet because I have not yet heard anything to suggest that the Minister has fully taken their force with regard to the salary at which the position is to be remunerated. As things stand, the post looks as if it has been downgraded when compared with current arrangements for the remuneration of the chairs of CSCI and the Healthcare Commission. I have a raft of statistics relating to the different rates at which chairs of public sector bodies are paid, but it would be otiose to weary the Committee with them. Suffice it to say that there seems to be neither rhyme nor reason to them. There is no discernible pattern. Some seem to be paid at one rate and others at another, although they may have lesser budgetary responsibilities.
It is difficult to discern a pattern, but one thing is discernible. This post of shadow chair—as we are now to call it—of the CQC is, according to the advertisement, to be remunerated at a rate markedly below the level at which either the CSCI chair or the chair of the Healthcare Commission is remunerated. That looks like a downgrading in my book. I understand that the Minister is to make an announcement tomorrow, but it would reassure the Committee if he were able in responding to give some indication that he has taken on board the concerns raised by the Committee about the level of remuneration for this very important position.
As a Minister when the present incumbents were taking up posts, it might help if I share with the Committee the benchmark in setting the pay of the chair of the Healthcare Commission. As I recall, that benchmark was the pay of a High Court judge. That was the level of seriousness with which that post was equated. Then there was a comparability issue for the chairman of CSCI.
I say that not because I necessarily think that was the right benchmark, but it gives an indication of the way in which only a few years ago this type of job was viewed by this Government. There is an issue. It is not the Minister’s fault that we are in this situation. It is not too late for the Government to reflect a bit further on consistency in the term of office of this Government and on why we have made this rather dramatic change in five years. Nothing that I have read about the new job suggests that it is in any way not comparable at least with what the present chairman of the Healthcare Commission is paid and with what the present chairman of CSCI is paid. I encourage my noble friend to say to his colleagues, however far down the track they are with particular individuals, that they really need to reflect on how this is seen and they need to think about consistency of action within the term of office of a Government.
First, let me address the point made by the noble Baroness, Lady Barker, about the scrutiny process. I cannot think of a better scrutiny than parliamentary scrutiny, and the Health Select Committee as it stands covers social care and the whole activity of the Department of Health. The shadow chair will be confirmed only once the legislation has passed. That was made clear to the candidate who applied for the post as advertised.
There is no doubt in my mind that the senior leadership of the Care Quality Commission needs to be of a sufficiently high calibre to ensure that it can deliver its statutory functions effectively. The commission will be a powerful new independent organisation responsible for regulating services across the health and social care sectors. It will have significantly greater powers than the current regulators, which it will replace, and it will seek to assure people who use the service and patients that all the services they receive are fair, personal, effective and safe.
We do not believe that the advertised range of the chair’s salary will adversely affect the capability of the new organisation. Let me put the figures into context. The post, which is a part-time, non-executive role, was advertised at the rate of £60,780 for a time commitment of up to three days per week. The advert also made very clear that more was available for an exceptional candidate. The remuneration offered is at the top end of the current Department of Health arm’s-length body pay scales and compares favourably with the salary paid to some other publicly appointed non-executive chairs of regulatory bodies.
A chair’s pay in any organisation must be seen in the context of the planned balance of responsibility between non-executive and executive appointments in the organisation. We expect the new commission to appoint the highest calibre chief executive and other senior executives jointly to realise the vision that the commission creates. I am sure that noble Lords would agree that it is important that we are sensitive to public perception and to general trends in public sector pay with respect to the salary of the new chair. However, we recognise that there is a balance to be struck to attract the right calibre of candidate for the post, and I believe that the advertised salary does exactly that. I therefore ask my noble friend to withdraw the amendment.
I had rather hoped for more from the Minister. There is a sort of ambiguity about what he said, because he said what the advertised range was, and then he said that more was available to an exceptional candidate, but he did not say whether a good deal more was going to be paid. I hope that this paragon of a candidate, who will be announced tomorrow, will be such that it must be much more, but we will have to wait and see.
Although I do not wish to persist with the amendment today, we will want to see the colour of the money that the Government are providing for the preferred candidate, and it is within the power of Parliament at a subsequent stage of the Bill to act in line with the amendments proposed by the noble Lord, Lord Low, and me, to up that package if we think that the Government are so frightened of the public complaining that they are providing an inadequate salary to advertise the importance of the job.
I must admit to another concern that has arisen out of the Minister’s statement; I make no bones about it. This House has not yet agreed that a new regulator should start in office, as proposed by the Government, with the powers set out in the Bill. I moved an amendment the other day—which I withdrew because we do not vote in Grand Committee—to say that it should not happen before 2013. I believe that the noble Earl, Lord Howe, is this afternoon proposing that Clause 2 does not stand part of the Bill. I have been in this House a while and we are flexible, reasonable people. The one thing I have found about noble Lords is that they do not like being taken for granted. The Government are announcing this appointment tomorrow, when noble Lords have not yet had a chance to come to a stern and settled view as to whether it should be going ahead. Members of the Committee will want to consider carefully whether the obvious needs for due dispatch in proceeding with this, if the Bill goes through, have been rightly balanced with noble Lords’ concerns that these matters should be fully debated and decided by the House before the Government go ahead.
In withdrawing this amendment, I say that those two concerns must be met before we come back to this on Report, at Third Reading and even, perhaps, beyond. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
10: Schedule 1, page 111, line 43, at end insert—
“( ) The Commission must appoint an advisory committee (“the Service User Panel”) made up of people who are or have recently been users of relevant services, including their families and carers, for the purpose of giving advice or information to it about matters connected with its functions.
( ) The Commission must have regard to advice and information given to it by the Service User Panel.
( ) The arrangements must include the establishment and maintenance of such a panel.”
The noble Baroness said: I shall speak also to Amendment No. 11, to which I have added my name, on behalf of my noble friend Lady Campbell, who sends her apologies for absence because of a prior commitment.
Amendment No. 10 is supported by the National Consumer Council, the Picker Institute and Which?. It aims to put users at the heart of the regulatory process by bringing them into the commission’s governance structures to influence the development of plans, programmes, methodologies and approaches at a formative stage through insider engagement. It is intended to bring patients, users and carers into the formative processes of the commission’s workings.
Current consultation with service users is usually over specific projects or established work patterns when plans or decisions are already well formed, and involves users in inspections or reviews the methodology and approach which have previously been formed elsewhere. In other words, users are usually involved relatively late in the day and can seem almost tokenistic.
The amendment would require the commission to set up a panel to oversee the work of the regulator, reaching out to and feeding back from a wide range of user and public views and experiences. It would focus on helping the regulator to carry out its functions, including setting themes and priorities for review, and shaping regulatory processes. The panel should not be dominated by professionals from charities or lobby groups but must ensure strong representation of service users themselves, particularly those who are vulnerable or seldom heard.
What would the amendment achieve? The model for the service user panel is partly informed by the success of Ofcom's consumer panel. A service user panel would be a critical friend to the board and executive. It could comment on the extent to which the interests of service users, families and carers are properly built into the commission's work streams, and influence board planning and strategic direction. It could ensure that methodology development for inspection and review is appropriate to the patient and the user population of the service to be scrutinised, and enable external organisations such as local involvement networks cost effectively to feed their views into the commission.
The Government have said that service users’ interests should have a high-level voice in the commission's board and executive, and the advisory committee required by Schedule 1, paragraph 6, is welcome but does not go far enough as it does not ensure that users' voices, rather than those of pressure groups, are heard. This advisory committee seems to be a general committee of all relevant stakeholders with the optional inclusion of service users. The nature, membership, objectives and functions of this committee need to be defined, otherwise the user voice will be only one among many. All the research and experience suggests that when patients’ voices are made to compete with other interest groups, they become effectively disempowered. The Government suggested that the proposed advisory committee could, through the way it works, help to make the user voice effective; for example, by enabling sub-committees or establishing meetings between the board and that part of the committee representing other interests.
However, that is not stated in the Bill and, therefore, there are no guarantees that the commission would establish a sub-committee of service users per se. There are precedents. The Mental Health Act Commission has already developed an empowered service user reference panel. The National Institute for Health and Clinical Excellence, NICE, has established a citizens’ council which can cross-examine witnesses and make recommendations which NICE must consider and respond to. The Children’s Plan from the recently formed Department for Children, Schools and Families sets out proposals for parent councils to ensure that their voices are heard within the school.
The Communications Act 2003 required Ofcom to establish a consumer panel, to which I referred earlier. The Act specified 13 separate subject areas on which the panel should be able to advise Ofcom, including,
“any other matter appearing to the Panel to be necessary for securing effective protection for persons who are consumers”.
The Ofcom consumer panel has had significant influence. It is able to request involvement in, and explanation of, Ofcom work plans at the conceptual stage, and to begin providing critical feedback. It is skilled at identifying the consumer impact of Ofcom initiatives and at advising the regulator on how to make them explicit in work. The proposals in both these amendments fit the policy agenda for engaging users in the design and delivery of public services, including a requirement for regulators to engage with service users and the public at large.
I was delighted to welcome the amendment to this amendment—Amendment No. 11—from my noble friend Lady Campbell of Surbiton. Her suggestion neatly ensures that service users are indeed at the heart of the commission. Amendment No. 11 would ensure an effective link between the proposed service user panel and the commission by requiring the Secretary of State to appoint a member of the commission who is a service user to chair the panel. This mirrors the arrangements made for the Equality and Human Rights Commission’s disability committee, which, as stipulated in the Equality Act, must be chaired by a member of its board. That would give service users more direct influence on the commission and thus enhance people’s confidence in CQC's ability to put patients and carers at the heart of quality assurance. It harnesses the talents of the very people that CQC seeks to help and can improve health and social care outcomes as a result. There is always a danger of the panel merely becoming a talking shop or a body to be consulted after decisions have been taken.
In drafting this amendment, my noble friend Lady Campbell has drawn on her experience of chairing the Social Care Institute for Excellence for five years, where its partner panel is chaired by a trustee, and her experience on the Equality and Human Rights Commission, where she serves as both a commissioner and chair of the disability committee. It is the central seat at the table that ensures the users inform the workings of the commission and see its contribution reflected in its work programme and reports. It protects against any temptation for professionals and practitioners to default back to former ways of working where consultation may be token. The amendment seeks to ensure that service user involvement is enhanced by a strong conduit between the panel and the “top table”, bringing the ideas and knowledge directly into the heart of decision-making and forward planning. I beg to move.
11: Schedule 1, line 10, at end insert—
“( ) The Secretary of State shall appoint a member of the Commission, who must be or recently have been a relevant service user, to chair the Service User Panel.”
The noble Baroness said: I strongly support the need for a service user panel for the CQC and for this to be set out as a statutory requirement in Schedule 1. Mechanisms for guaranteeing user involvement need to be embedded in the CQC’s governance as well as its functions. Amendment No. 11 would ensure an effective link between the proposed service user panel and the commission by requiring the Secretary of State to appoint a member of the commission who is a service user to chair the panel. Without this direct line of influence to the commission proper, my fear would be that the impact of a service user panel would be diluted and would not see the effective mainstreaming of users’ views and aspirations.
As the noble Baroness, Lady Finlay, pointed out, Parliament was careful to ensure that there was no such risk for the Equality and Human Rights Commission disability committee, which similarly has a direct line into the commission via its chair. User involvement is not just desirable in itself; it leads to better policy-making and improved services. With increasing personalisation on the agenda in both health and social care, it is essential that users are involved at every level of the new organisation. It would be difficult truly to personalise a public service if its regulator had minimal user involvement. I would therefore urge the Minister to accept the case for the provision set out in Amendments Nos. 10 and 11. I beg to move.
My name is attached to Amendment No. 10 and I support everything said a moment ago by the noble Baroness, Lady Finlay. I like the idea of a service user panel because it holds out the prospect of genuine patient and public involvement in the work of the commission. As we debated recently in the local government Bill, and as the noble Lord, Lord Low, effectively stressed the other day, there is an important difference between involvement and consultation. It is the difference between allowing someone to contribute to the shaping of plans from the moment that the initial idea is conceived and allowing a person to comment on those plans only once they are fully formed. The two are not at all the same. Surely, we want a group of people to help and advise the commission from the perspective of the informed service user—people who know what it is like on the ground and who can offer their wisdom to the commission in a measured and reasoned way.
I believe that such a panel would be a force for good. It would be the means by which the commission could assure itself that the interests of service users and carers were properly embedded in the work that it undertakes. Leaping ahead to the next but one group of amendments, it would be the ideal conduit for LINks to feed in their views to the commission in a structured and co-ordinated way.
As the noble Baroness, Lady Finlay, said, there are some good precedents. For instance, there is the Ofcom consumer panel, which I understand works well and is influential. There is also the citizens’ council, set up by NICE, which can make recommendations. Above all, there is the service user reference panel reporting to the Mental Health Act Commission, which in its short existence has undoubtedly proved its value. I would argue that there is no more important sphere for service user and carer involvement than the regulation of care provided to individuals detained under the Mental Health Act. In that context, we are dealing with people who have many of their rights taken away and who find themselves with a need to feel empowered as far as reasonably possible and able to influence the way in which they are looked after. Without service user involvement, it would be very easy to imagine a culture developing which failed sufficiently to take that dimension into account.
My understanding is that direct involvement by service users in visiting activity in the context of the Mental Health Act Commission has been shown to have considerable benefits. The Government have often said that they are keen on user involvement in the regulatory process and I accept that they are. I therefore hope that they will look constructively at this amendment.
I warmly support the two amendments. A moment or two ago, in response to the noble Lord, Lord Lipsey, the Minister read out a mind-boggling list of responsibilities with which the chairman of the new organisation would have to deal. Every single one was very wide and very important. In fact, when he said it, I wondered how on earth any person was going to do that three days a week, but that may be something for the future. I am, however, concerned that, unless the users are clearly harnessed into this work, the commission will not be working on all the information that should be available to it. Surely only the users can know exactly what is going on on the ground. I have seen with my own eyes allegations made by patients about their treatment being totally ignored and put down by the National Health Service people. Unless we ask the users and listen to what they say in the way that the amendments suggest, the people in charge of the commission will not be able to carry out what all of us here hope they will be able to carry out.
I add my support to the amendment. I intend to speak to a number of amendments later but will say just a few words about why I support this one.
I have for various reasons spent a large part of my life in hospital—I will not go into details—but I have seen a lot in hospitals. I am a classic user, having on occasions spent months on end in hospital. My mother is in a nursing home and I try to visit her four times a week. You learn a lot about nursing homes, and she is in a good one, but I visited many nursing homes before I placed her in one. It is inconceivable that people who have that kind of experience are somehow to be loosely represented under the advisory committee arrangements that are set out in the Bill and which were referred to some moments ago.
I hope that the Minister, when he replies, accepts that we, the users, are in a particularly difficult position, because most users have no knowledge of healthcare. Most people in a lifetime—I do not know; I have no empirical evidence for this—probably go nowhere near a hospital; only those of us who are less fortunate end up in hospitals. They start off with very little knowledge and go into hospital with very little knowledge. Most people out there have no idea what goes on in nursing homes or care homes; only when they enter them do they begin to learn how things operate. They are confronted by people who are highly skilled and highly articulate and who know the business through and through and know how to answer all the questions. Very often they simply do nothing because they are overwhelmed by the abundance of knowledge that they know they must take on in the event that they wish to make a complaint. There must be far more effective representation of users in the structure that is being created.
Furthermore, as we are in effect consolidating efforts in one organisation, and as has been repeated previously, there may well be an emphasis in the work done on areas that do not necessarily encompass areas of social care that might be my preoccupation. I want to see in the structure that is being created a body of people who can more effectively represent the area that may well become the Cinderella part of its functions.
I, too, support the amendment. My experience in the health service and in social care is that people have problems, complaints and unfortunate experiences, but their number one wish is to see that the same thing does not happen to someone else. They are not usually out for compensation; they really just want to see that their experience is not repeated. The user panel would give them the opportunity to see that their feelings and experiences were fed through. This is a very important amendment.
At Second Reading, many noble Lords spoke about the importance of ensuring that patients, people who use social care services and their families and carers are involved in the work of the Care Quality Commission. I hope that I was clear about the importance the Government also attach to that. Many noble Lords have drawn attention to the excellent work of the three current commissions in involving those who use health and adult social care services in their work. I reassure noble Lords that this is something that we are absolutely committed to retaining and carrying forward to the commission.
There is no doubt in my mind that the new commission will be just as user-focused as the current commissions and that it will build on their good work. It is worth remembering that the current bodies are not under any specific legal duty in this regard. The requirement in Clause 2 for the commission to have regard to views expressed by and on behalf of members of the public is therefore a new duty. That will of course include patients and service users and those who represent them, such as LINks. That sets a good foundation for the new commission’s programme of involvement and engagement, which I am sure it will develop.
In terms of having suitable mechanisms for enabling ongoing involvement and commentary on its work, we had sought to establish such a mechanism through the requirement in Schedule 1 to appoint an advisory committee, to whose advice the commission will have to have regard. The noble Baroness, Lady Finlay, along with the noble Earl, Lord Howe, has in Amendment No. 10 made the case for a more specific requirement to have a separate advisory committee comprised solely of patients, service users and their families and carers, to be known as the service user panel.
The noble Baroness, Lady Wilkins, has proposed a further addition to Amendment No. 10, through Amendment No. 11, which would require the commission to appoint one of its members who is or who has recently been a user of health or social care services to chair the service user panel. There is no doubt in my mind that direct experience of services would be very valuable in informing the way in which the commission carries out its work. However, I expressed my concerns when we discussed Amendments Nos. 6 and 9 about seeking to specify what kind of background members of the commission should have. I therefore do not think that we should be prescriptive about this in the Bill.
As a general point, I emphasise the importance of flexibility in engaging with users and carers. Innovation is key and, as I have mentioned, the Healthcare Commission, the CSCI and the Mental Health Act Commission all engage well with users, using a variety of methods of engagement and involvement. However, I recognise the importance that noble Lords have placed on the CQC having appropriate user involvement and engagement, as very eloquently described by my noble friend. I will, therefore, undertake to consider how we could strengthen the current arrangements for ensuring that the commission has strong public, patient, service user and carer involvement in its work, while maintaining a flexible approach, with a view to reporting back at a later stage of the Bill’s passage. Given that reassurance, I hope that noble Lords will feel able to withdraw the amendment.
I would like to address the Minister’s response to both amendments. I am most grateful for the wide support that both these amendments received from the Committee. My concern is that if we are to be user focused, we must have the user at the heart of the process, particularly because, as the noble Lord, Lord Campbell-Savours, so eloquently pointed out, there will be a broad range of types of inspections from very large hospitals down to nursing homes, small units and social care providers who are very disparate. A one-size-fits-all approach cannot be taken. I greatly appreciate the Minister’s assurance that he will undertake to strengthen the current arrangements as laid out, and because of that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Clause 2 [The Commission’s functions]:
[Amendments Nos. 12 to 14 not moved.]
15: Clause 2, page 2, line 8, leave out paragraphs (a) and (b) and insert—
“(a) the need to engage with service users and members of the public through appropriate mechanisms and channels, about activities to which the functions relate,(b) the views and experiences of service users and members of the public in relation to such activities,”
The noble Baroness said: This afternoon we will debate groups of amendments that follow a theme. The theme for this amendment was to some extent set in the previous debate. My understanding was that in the previous group of amendments the Committee was considering the role of users in the governance of the commission. I believe that is important. Governance is about setting strategy and direction, not about management. However, the amendments in this group and in subsequent groups are about operational matters, which are also important.
I live in a part of London where there are two large hospitals that people who need acute care go to. For some services, probably for most services, people can elect to go to one or the other. As we all know, probably the most elective of elective services is maternity services. I live in an area where there are women who will not set foot in one hospital and swear by the other one, but on the other side of where I live there are women who make the reverse judgment. I have no doubt that if one goes to the mothers and toddlers groups round where I live there are raging debates about the benefits or otherwise of those two hospitals, the basis of which is probably highly subjective. What members of the general public who are not engaged and have no need of those services think is probably based on nothing more than the opinion of the person to whom they last spoke. However, the opinions of users are very different and are formed on a wholly different basis.
When we look at the wording of the Bill, it is important to state quite frankly that the Government are way behind the times. By not putting the views of users first, at the heart and above and beyond the views of the general public, they are way behind the thinking, particularly in the field of social care. Why is that? It is, at least in part, because of a point that I referred to at Second Reading, which is that people who need social care have very few rights in law. I suspect that by the time we are through with this legislation the only right that they will be left with will be the right to have information. They are certainly not going to have a right to have services. Particularly in the field of social care, the right of people to be involved at a very high level in decision-making about their personal care and about the management and strategy of services overall has gone on apace, and social care is way in advance of what happens in health. While what is in the Bill at the moment may be a giant leap forward for the NHS, it represents a massive leap backwards for social care. I am afraid that that is not acceptable.
Why is this important? Apart from anything else, the diversity of users is important. People who use mental health services have vastly different experiences and needs from people who intermittently use some low-level social care services. Their views are wholly different from people who go through major acute trauma and receive high-level surgical services. There is also a distinction to be drawn between the needs of people with learning disabilities and, for example, older people. That is not a fashionable thing to say at the moment, not least because much of the underlying policy on development of social care services comes from the learning disability field.
There is a range of different views to be taken into account. It is important that we should not be prescriptive in this legislation about how the commission should go about the business of user involvement. Indeed, I suspect that it would be misguided if we thought that if we were prescriptive about the involvement of any particular body the legislation we ended up writing would be relevant for more than two years—that is the average length of NHS and social care reorganisation. That is why my amendments are in some ways quite unspecific. They do not make suggestions about involving specific bodies, but simply say that there must be mechanisms that ensure that there is engagement with users and the public.
In Amendment No. 108, I again pick the point made by myself and the noble Baroness, Lady Howarth, in our discussions last week about the fact that we remain convinced that a director of adult services must work within the commission to ensure that adult social care has the proper prominence it will need. That is why we have suggested in Amendment No. 108 that it is a duty to have that part of the commission’s work included in its annual report.
If I were in the shoes of the noble Lord, Lord Darzi, I imagine that I would say that this is otiose. It has taken 40 years for user involvement to become an expectation in social care in any meaningful sense. However, it is not easy and certainly not cheap; it is a deliberate and expensive process. There remains a fear among many that, if it is not backed up in statute, it may simply become a passing phase and, when times get hard, become a luxury which hard-pressed professionals can simply dump. That is why it needs to be in legislation—although I accept that, in stating that it needs to happen, we cannot be overly prescriptive about how it happens. That is the basis of my amendment. I beg to move.
I rise to speak to Amendment No. 27, which is complementary to Amendments Nos. 10 and 11, but goes a little further in placing a duty on the commission to involve service users, including their families and carers, in exercising its functions. The amendment makes it clear that the term “involve” encompasses the need to provide information about the exercise of its functions and to consult and involve service users, families and carers in the inspection of registered service providers. Although I accept the point made by the noble Baroness, Lady Barker, that we should not be too specific in the Bill, there are certain functions of the commission where it is so essential to involve service users that there is a strong case for being specific. The only other point in this amendment is that users should be involved in the process of special reviews. Again, I do not think that that will be done properly unless users are involved.
The amendment is supported by the Royal College of Psychiatrists, the National Consumer Council, Which? and the Picker Institute. My motivation in tabling it lies in my experience of working very closely with users, families and carers in East London. The health service has for years paid lip service to user involvement. We had community health councils and PPIs, but I cannot recollect anything really different occurring because of consultation with those bodies. Only very recently have we on the front line taken this seriously. We are finding that the real involvement of service users is the fastest and most efficient way to find out what we are doing wrong and how to put it right. I have never known things coming so clearly through to board level about our problems and what we are doing to put them right as is happening now. At last, this is apparently a part of government thinking across wider areas of government policy and I am delighted to hear that. Things will improve faster than we imagine because of that commitment. Yet the Health and Social Care Bill makes no explicit reference, as I am sure other Members of the Committee will point out, to service users, their families and carers.
The most important area as far as this is concerned is that of detaining patients in psychiatric hospitals, which I happen to know little about. The Mental Health Act Commission’s work will now be involved in the CQC. As the noble Earl, Lord Howe, mentioned, these patients have their rights taken away. They have treatment without their consent—about the most unpleasant thing, if you really put your mind to it, that can happen to anybody. They are told, “You will have this injection. You don't want it but I can't be too concerned about that. You will have it”. Many of them are not allowed to leave the ward. They are de facto prisoners. That is a completely different set-up from the average health or social care person.
I will not say any more about the Mental Health Act Commission. The noble Earl, Lord Howe, has spoken eloquently and I know that the noble Lord, Lord Patel, will also speak at length about that, so I simply want to refer to the Healthcare Commission having taken on board itself a degree of patient, service user and carer involvement. How else could it presume to monitor and assess patient focus? I know all too well that that is one of its core standards. I have just been reading our own response to the Healthcare Commission, which is all about patient focus. How can it do that work properly without user involvement?
The Government may ask why we need this amendment if current regulators are doing quite a bit of this already. My response is that the Bill as it stands and government statements reveal confusion between listening to the views of the public on the one hand and involving people, users, carers and families in the provision of services on the other. It is a completely different thing. I acknowledge that the Government's response to the pre-legislative consultation in 2007 was encouraging, referring as it did to involving service users. But in response to continuing debate about this issue, the Minister proposed a government amendment producing the following wording in Clause 2:
“In performing its functions the Commission must have regard to—
(a) views expressed by or on behalf of members of the public about activities to which the functions relate”.
I think I am right in saying that the words “or on behalf of” were added after deliberation on the Bill in the other place. The Minister in the other place then said:
“There will be a wide range of bodies with an interest in a particular issue or representing particular groups, and we want to ensure that the commission hears their views. For that reason, Government amendment No. 62 proposes to make it explicit that a duty to have regard to the views of the public includes views expressed by representative bodies on behalf of members of the public”.—[Official Report, Commons, 18/2/08; col. 77.]
Testing public views through organisations representing patients and service users is helpful, but it is not a substitute for involving the patients, service users and families in the process of regulation as proposed in this amendment.
Clause 2(3)(a) simply does not deal with the issue that we are debating here. It goes some way, but it is a long way short. Looking at the history of the health service, I suggest that the Bill as currently drafted details what we have been doing for 40 years. We suggest that we have moved way beyond that, as other Members of the Committee have said. However, the regulator now needs to catch up with what other organisations are doing.
I have also tabled Amendment No. 104. This amendment presents a more limited requirement for CQC inspection teams to include lay inspectors—families, carers, users—in their inspections. This is an alternative, more limited amendment and, in my view, it focuses on the crucial bit, which is the inspections. For me, the crucial point about Amendment No. 27 is that it spells out the absolutely key activities—not just one, but a few others—where service users, carers and families really need to be involved if they are to do a good job. I hope that the Minister will agree with the principle proposed here.
I remind the Committee that I have an interest as chairman of the Mental Health Act Commission.
I am encouraged by the Minister's previous expression of openness towards further discussions on the question of service-user, carer and general public involvement, especially in the work of the Care Quality Commission. I have put my name to Amendment No. 27, which I think sets out duties for such involvement in a meaningful way. It is, at least, a great improvement on the Bill's construction as presented, which only requires the CQC to “consider the views” of service users and others. A duty to consider the views of service users may be too easily met by consultation, rather than involvement, as many noble Lords have pointed out. I would want an organisation that is required to have service users at its heart, not on its periphery.
The Minister has previously paid tribute to the Mental Health Act Commission's service-user reference panel, as have other Members of the Committee on a previous amendment. The Mental Health Act Commission has always had service users among its membership, but in recent years it has made particular efforts to involve service users who are or have recently been detained, which has had a huge impact on all aspects of the organisation, not just on the visiting programme. Last week, we published a report which I know has been sent to the Minister.
The involvement of service users is something that everyone is keen on but, if the truth is told, very few organisations do it well. Many do little other than consult their service users. Consultation is, of course, a good start but it does not go far enough; it does not engage people in any meaningful way. In my experience and in the experience of the Mental Health Act Commission, real service-user engagement is very challenging. It involves a huge number of risks that managers and staff have to take. It requires resourcing which includes not only staff time—named individuals who take the work forward—but also sufficient funds to undertake the work. Only when the Mental Health Act Commission has put in those resources and individuals to do that work will a real impact have been made. It requires understanding and commitment from the whole organisation. People need to be trained and they need to own the vision. That should not be an add-on or an extra but at the heart of what it does. It is very challenging and should be underpinned by some systematic and proactive approach. We tend to be very reactive when things happen, but we do not have a systematic approach to dealing with this. They are the key elements of what needs to happen.
The rewards are significant. True engagement with effective service-user and carer involvement enables us to understand who people are in all their complexity. It is a truism, but important none the less, that services would not exist if people did not require help, support and treatment. The service exists for the service user. Sadly, that may not always be obvious, but it is the service user who is the expert, for example, on how it feels to be detained against his or her will; to be denied many things that we might take for granted in our day-to-day lives; to be treated with powerful psychotropic medication. Service-user involvement is not a luxury to be added when we have the basics right. It is the basics. The Care Quality Commission must be able to draw on that experience and expertise, to tailor its visits to those matters that service users themselves identify and to ensure that the civil legal and human rights of patients are upheld at all times.
It is essential to the current government agenda of increasing personal choice and ensuring that services are responsive to individual need and that they start to become user-led. The really important point is that the Care Quality Commission must be a leader in this if it wants to inspect how others develop service user and carer engagement. It needs to set the benchmark. It needs to get its own house in order and show the way forward as regards principles of equality and engagement and inspecting others. For too long, professionals, academics, practitioners and managers have retained sole control of organisational priorities. I would want to see the CQC’s technical commitment to service-user and carer involvement fully on board so that this becomes one of the key drivers of policy development and implementation at every level.
We can see the evidence of this in the Mental Health Act Commission, where service-user involvement is not only about having an effect on the patients that it visits, but about changing the culture of the organisation. Commissioners who work alongside service users have reported that experience influences the way in which they carry out their duties. It is important that this cultural shift is preserved by the CQC’s monitoring of psychiatric compulsion and that service-user and carer involvement is entrenched in every aspect of its work, too. I hope that that will be emulated across the CQC, and in support of that aim I support the amendment.
I support the amendment proposed by the noble Baroness, Lady Barker, at least as much for what it leaves out of the Bill as for what it puts into it. Under subsection (3)(a), every time a drunk who is being stitched up in A&E says, “This place is a shambles”, that will have to be reported to the commission so that it can have regard to it. Indeed, when he says, “Cor, God bless, you lot are angels”, that, too, will have to be reported to the commission.
Of course I exaggerate to make the point, but it is not right to take casual remarks of members of the public as though they were equal to a more considered process. In support of the amendment proposed by the noble Baroness, whether the rest of it is right or not, the phrase “engage with” is at the nub of the problem. We need a degree of dialogue and of mutual understanding. That is not just a question of having regard to some grand body up there saying that this or that sounds good, but of communicating in a two-way direction. That is what in the modern world the noble Baroness said this kind of consultation involves. I would like to see the Bill amended to reflect it.
Presumably, the commission will have to have regard to the Bill and give instructions as to what is to be taken on board. I can imagine sheets of guidance going to every hospital and care home in the country on what has to be reported and in what form. This is the kind of bureaucratic madness that can follow half-thought-out bits of legislation.
I support the group of amendments. Getting service users and carers involved in the day-to-day practice of what the commission does is so crucial. To take on board their expertise—we now talk about expert patients, because they very often know more about their conditions than we do as professionals—their experience and how they are treated in services is crucial to being involved on a day-to-day basis in how the commission works.
The noble Lord, Lord Patel, and the noble Baroness, Lady Meacher, have clearly outlined what dramatic changes we have seen in mental health services and in social services, as the noble Baroness, Lady Barker, said, from a much more adventurous involvement than is envisaged at the moment in the Bill. We have to get something more ambitious in it, to make sure that the new commission really will be at the cutting edge and will truly involve people, because that makes a step change in the way in which services develop and respond to service users. That is what it is all about.
I am not sure about the point made by the noble Lord, Lord Lipsey. I envisage lots of future episodes of “Casualty” with people filling in forms and sending them off to one commission or another; I hope not. There will never be a time when all those comments get accepted and remarked on as perhaps they should. The involvement in the work of the commission is utterly crucial, and is possibly more crucial than the first group of amendments, although they, too, are important. This will give service users what they need.
I do not come to this debate as a professional in this area; my knowledge is very limited. My experience outside the institution of Parliament is in engineering, and I am more used to dealing with milling machines, capstan lathes, plating plants, pressings and trade exhibitions. I come almost as a virgin to this debate. I support the thrust of the amendment proposed by the noble Baroness, Lady Barker, but I want to speak to Amendment No. 104, proposed by the noble Baroness, Lady Meacher, which to me is particularly significant. It says:
“Entry and inspection: lay inspectors
(1) Persons authorised by the Commission to enter and inspect any premises shall include lay inspectors.
(2) In this section "lay inspectors" means persons not trained in the profession or employed in the service being inspected”.
I am one of those people. I want to explain why I think that is very important.
Prior to placing my mother in a nursing home, I visited 19 homes, some of which, I presume, had been the subject of inspections, and which were absolutely appalling. Half of them, to put it bluntly, stank of urine when I went into them. Those were homes which, under the current inspection regime, somehow cleared the hurdle of acceptability. There was one particular home, not very far from this institution of Parliament, in which I would not have kept an animal. The fees were over £1,000 per week. There were more than 30 residents in the home. That is the real world that goes on outside, and when people like me, who have very little knowledge in these sorts of areas, are confronted with a decision to place someone in a home, to put it bluntly, we wonder what the hell is going wrong and how homes such as that one manage to clear the hurdle. If it is that the professionals are prepared to put up with that standard of care, it is about time that lay persons had some rights in these issues and had a right to influence events.
I positively endorse the amendment proposed by the noble Baroness, Lady Meacher. In my view, that amendment would probably make a major contribution to dealing with the problems with which I was confronted when visiting those homes. If I were a lay inspector, and I found homes stinking of urine, as I did—Monday mornings can be difficult in homes—and if during the balance of a week you are confronted by the smell of urine when you go into a home, I would want action. To this day I do not understand how that is allowed to go on.
I toured the rooms in one home, which, presumably, had cleared its inspections under the current regime. Under the diluted arrangements that we are going to introduce, I cannot imagine how bad it will be. As I went around that home, clients were lying semi-naked on beds with the doors open, and I could see in as I passed those rooms. The rooms were dilapidated and undecorated. The beds were iron framed, which reminded me of when I was away at school in the 1950s. For that kind of conditions, there were huge fees—some were far in excess of £1,000 per week—to which I shall turn in a later amendment. However, I should like to say that the home I have found for my mother is excellent.
The homes to which I am referring are finding a clientele. I wonder what families are placing their loved ones in these homes. How often are people visiting these homes? Are they simply dumping their families and oblivious to the fact that conditions are bad because they have never regularly inspected them themselves? It is not a question of the people going into these homes having rights, because very often they are beyond the capability of understanding the conditions in which they have been placed. This whole area needs a major shake-up. Based on my experience, I hope that this Bill gives us the opportunity to bring about the changes in which I very strongly believe.
After those extremely powerful speeches, there is little for me to add, except to say that Amendment No. 15, to which my name is attached, is an attempt to beef up Clause 2(3) which, as it stands, is rather feeble. I hope that, if nothing else, the Government will take away the need to strengthen that part of the clause. The amendment refers to engaging,
“with service users and members of the public through appropriate mechanisms and channels”.
I like the word “engage”. If I were to be honest, I should also like to see the word “involve” included, which is why I like a great deal of what Amendment No. 27 is trying to do, even though my name is not attached to it.
There is no explicit reference to service users, families and carers in the Bill. There should be. The essence of Amendment No. 27 is excellent. I very much like the mention of special reviews, as the noble Baroness described. She also rightly mentioned the relevance of her amendment to detained patients in particular. Where I depart from the wording of it slightly is that it is a little vague in the wording of new subsection (1)(e). It is perhaps not as clear as it might be in defining the duty that the CQC will be expected to fulfil. But, with that slight reservation, I commend it to the Minister.
The amendments in this group all seek to establish a more general duty for the commission to involve people in its work. We discussed the proposal for the commission to have a children and adult rights director—touched on in Amendment No. 108—in our last session, so I will not repeat the arguments I made on that specific element. I have already referred today to the requirements set out in Clause 2 for the commission to have regard to the views expressed by and on behalf of members of the public, including patients and service users and those who represent them, such as LINks. I would expect the commission to cover these matters in its annual reports on how it has exercised its functions under Clause 79. But this is an area I will look at again when reviewing involvement as I undertook to do in the last group of amendments.
I hope that the noble Baroness, Lady Barker, would therefore feel able to withdraw Amendment No. 15, which seeks to ensure that the commission will have mechanisms and channels for engaging with people who use health and adult social care services, and not move Amendment No. 108, which would require the commission to report on what it had done in this regard in its annual reports.
Amendment No. 27 was tabled by the noble Baroness, Lady Meacher, and is supported by my noble friend Lord Patel. My noble friend Lord Campbell-Savours, too, led a powerful debate on the proposed new clause, which sets out in more detail how service users and the public should be involved. The proposed new clause proposes specific requirements for the commission to involve lay persons in its inspections and in special reviews. It also proposes a general requirement for the commission to provide information and to consult on how it exercises its functions, or to involve it in other ways.
Amendment No. 104, which the noble Baroness, Lady Meacher, also tabled, specifically provides that the people authorised to carry out inspections will include lay people. The Bill already allows for lay involvement in inspections, and I fully expect the commission to use lay inspectors either in inspections that are carried out for registration purposes or in other site visits associated with service reviews. In this regard, the provisions in the Bill reflect existing legislation, under which the Commission for Social Care Inspection has developed its Experts by Experience scheme. The Healthcare Commission also uses lay representation in its visits. Similarly, the Mental Health Act Commission, as eloquently described by my noble friend Lord Patel, includes lay people with significant direct experience of mental health services, as well as professionals such as lawyers, doctors, nurses, social workers, psychologists and other specialists, in the 100 commissioners who carry out the commission’s visiting programmes. I certainly expect the Care Quality Commission to follow the excellent examples set by the current bodies in this regard.
However, my understanding is that the current bodies do not support routinely involving lay representatives in every visit that they undertake. I am sure noble Lords will appreciate that there might be circumstances in which it might not be appropriate to do so. Indeed, we would not want the commission to have to wait until it could secure the services of a lay inspector where it needed to carry out an urgent inspection. It is therefore right that the commission can involve lay people in inspections as it deems appropriate.
Amendment No. 104 does not require lay people to be involved in every inspection, although I think the Minister is indicating that it does. It simply implies that they should be part of the group of inspectors so that they can be selected as appropriate.
I am grateful for the noble Baroness’s clarification of the amendment.
We have also sought to ensure that the commission is required to approach its task as openly and transparently as possible. The Bill already requires the commission to consult and to provide information on how it will approach particular functions, including guidance on how it will determine compliance with registration requirements; a code of practice on how it will handle confidential information; its plans for charging fees; its plans for carrying out special reviews, other studies and research; and guidance on how it will approach using its enforcement powers.
In addition, the commission will be required to make available on the register information, reports of any inspections that it carries out for registration purposes, and details of what enforcement action it has taken. There is therefore already ample provision for patients, service users and carers to access information on the commission’s key functions and to influence them.
Why cannot a lay person inspect every care home? Why cannot we make it mandatory? Why cannot we have pools of people who are available to carry out inspections in local authority areas and who are drawn from the local community? Enough people out there have an interest in doing so. I cannot see why there should be any discretion. Surely we could create arrangements whereby it was mandatory.
I am grateful for my noble friend’s intervention. As I have previously said, I am sympathetic to the amendment and certainly to the views behind these amendments. I committed to looking at arrangements for involving patients and service users, their families and carers, with a more flexible approach as I described before. I emphasise that I will come back on Report with amendments that I hope will meet the noble Baroness’s needs.
I thank the Minister for his agreement to take this away and consider it. I have a couple of points in response. I agree with the noble Baroness, Lady Meacher, about the power of lay inspection. In my experience, lay inspectors are far less inhibited about saying what they think than professionals. However, I want to correct what may have been a misapprehension: lay inspectors should not merely be confined to inspection of social care services. I remind Members of the Committee that lay people have often uncovered some of the things which were going badly wrong in the health service. There is a key role for lay involvement in that, which is why I chose to use the word “engage” in the amendment; it is perhaps the most important word of all this afternoon.
Why? I have been on the end of some wonderful NHS consultations, and I have been consulted and then watched as professionals wandered off and did something completely different. I had been consulted. I may have been involved. Had they engaged? No; not in the slightest. They already had some ideas that they had come in with.
The important point for us to remember about engagement is that users are not always right. They are not always fully informed. They are not always aware of some of the constraints under which services are, or are not, provided. They can be, and they have an important part to play in making decisions which are informed on that basis. That is why “engagement” is the key word. It is at its most important in mental health, where it is not unknown for service providers and practitioners to develop a sense of their own infallibility and superiority to users over years of dealing with difficult people.
I do not wish to delay our discussions any more, but I hope that when the Minister takes the matter away he will take those points into particular consideration. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
16: Clause 2, page 2, line 8, after “public” insert “(including in particular local involvement networks)”
The noble Earl said: I also speak to Amendments Nos. 26 and 64. I make no apology for continuing with the theme of patient and public involvement. We have in the Bill an opportunity to accomplish something really worthwhile: to make an explicit connection between the CQC and the Government’s latest vehicle for patient and public involvement, namely, local involvement networks.
Members of the Committee who took part in the passage of the Local Government and Public Involvement in Health Bill last year will remember that, despite the improvements made during its passage through the House of Lords, we were left with a feeling of uncertainty, not to say apprehension, as to whether these new and rather nebulous creatures would really take root and thrive—and, if so, what they would look like.
The truth is that no one yet knows what a typical LINk will look like. None, as far as I know, is yet formed. It is of course early days, but it is too soon to tell even approximately what the likely membership profile of a LINk will be. We hope that it will be what Ministers have talked about; that is, a broadly based grouping of individuals and bodies that is able to take an active interest in the delivery of health and social care services in an area, with the necessary energy and commitment to translate that interest into a positive contribution to service quality and service planning.
There are two things in particular that make LINks an ideal point of reference for the commission. First, like the commission, LINks will have the ability to enter and view both health and social care facilities, and to talk to patients and service users. That is, in part, an answer to the point raised, very tellingly, by the noble Lord, Lord Campbell-Savours. The second advantage is that of all the bodies collating the views of patients and the public, LINks are likely to be the most broadly based and, hence, the most representative. The potential for useful feedback from LINks to the commission is enormous.
Members of Committee may recall that when the local government Bill was debated a degree of concern was expressed at the idea of LINks needing to get permission from the appropriate regulator before entering and viewing premises. That fetter on the freedom of LINks was not a popular idea and, I am glad to say, was thought better of. But the idea that no one disputed, because it was eminently sensible, was that the health and social care regulators should work closely with LINks, where possible co-ordinating their respective visits, and that the regulators should stand ready to receive from LINks any information which could be relevant to the exercise of their regulatory functions. Particularly when it comes to healthcare facilities, but not exclusively, the work of LINks and the work of the regulator could be seen as, in some respects, complementary.
It is with that thought in mind that I have tabled Amendment No. 64, which proposes that where the commission issues any sort of a notice to a registered service provider or manager—whether it is a notice granting registration, a warning notice of some sort, or a notice to suspend or vary someone’s registration—it should inform the relevant LINk that it is doing so. In making this suggestion, and in the context of my other amendments, I particularly draw the Minister’s attention to the submission made by the CSCI to the Public Bill Committee in another place where it said in paragraph 43:
“It would be useful if there were an explicit expectation that the new care Commission had a relationship with Local Involvement Networks”.
Perhaps I could cover just one aspect of this idea. There are some who look at the proposals for the CQC and who regret that the new body, unlike the Healthcare Commission, will not have a role in handling complaints. A group of amendments later covers this concern. I have to say that it is probably right to try to do what the Government propose and to make complaints handling, as far as possible, a more locally based process, which is undertaken by the organisation involved, and to have the ombudsman in the background as the second tier back-up.
However, there is no doubt that if we look at the Healthcare Commission’s current role in handling complaints, it gives it a perspective on the quality of healthcare and health services, which is of value and which it would not otherwise have. In particular, it enables it to discern trends with patterns in the matters complained about, which can prove to be informative and useful. If a mechanism could be found for feeding the views and experiences of LINks into the work of the CQC—a service user panel could well be that mechanism—we could hold out the prospect of replicating the wider benefit that currently flows from complaints-handling; namely, the ability to discern patterns or trends in the concerns expressed by service users.
I hope that the Minister will look constructively on these amendments. I beg to move.
I support the noble Earl. I start from the premise that the Minister is not responsible for the history of patient and public involvement. As far as he is concerned, the verdict is “not guilty”. It is, however, worth remembering some of the history. It has been quite a sad story. Volunteers who have given so much in the interests of sick and vulnerable people have been pushed around, disbanded, reformed and disempowered.
I return briefly to community health councils, which were so ably led by the noble Lord, Lord Harris of Haringey. They were disbanded because they were too effective. They had real power to refer decisions taken by local health authorities to the Secretary of State. They inspected and reported, carrying out some thorough investigations into how hospitals provided their services. When I chaired the Brighton and Hove Health Authority, we made it our business to work with the local CHC because we recognised that it was a powerful organisation. It was not afraid to make public all our shortcomings. We respected it, and we even commissioned it to undertake surveys and inspections, including of hospital food. As a result, I remember being mortified to read the awful headline in the Evening Argus, “Slug found in hospital lettuce”.
We were taken by surprise when the CHCs were abolished under Alan Milburn’s 2000 NHS plan. There had not been much discussion and there had been little thought about how to fill the void. We then had forums, which had less power. Again, volunteers were pushed around and given a new brief. They related directly to individual trusts, but they proved to be uncomfortable and had to go, as did their overarching body, the Commission for Patient and Public Involvement in Health.
Now we are left with LINks, which are to improve health and social care by promoting and supporting commissioning and scrutinising services. Unlike their predecessor forums, they are not connected with a specific service that an individual hospital provides, but they are coterminous with local authorities. There is real merit in this. It is good that LINks relate to both health and social services. If they concentrate on the patient experience—the patient journey, the individual—they can be hugely effective if they are given some power. However, their powers are minimal. They can make reports and recommendations and receive a reply within a set time, but there is no requirement for the body concerned to take any action as a result. They can ask for information and receive a reply—big deal. They can tell an overview and scrutiny committee what they have found, and they can get a response, but again no action is required as a result. There is a danger that unless we build them into this new regulation, they will simply be a talking shop.
In the Our Health, Our Care, Our Say White Paper, we were told that people should have more choice and a louder voice. In my local area, not only is there diminishing choice, but patients and the public have lost their voice. The forums were closed on 31 March and the host—the overarching organisation that is the home to the LINks—will not be appointed until July. Once the host is chosen, it will have to recruit members, who will have to decide what structure they want. They will also have to be CRB-checked, and will be lucky to have any patient or public voice by the autumn at the very earliest. Most likely, they will have it by Christmas.
In the mean time, local people are fighting to retain maternity services and a major reconfiguration is taking place across two counties in the Brighton and Hove City Council area with no formal system for patient and public involvement. So it is not really surprising that we have marches and protests in our towns and villages and that the local population is losing faith in the NHS. It is widely recognised throughout health and social care that user involvement is a mark of best practice. Indeed, the Healthcare Commission actively monitors the requirement of providers to engage with their users. In many parts of the country, the return will be a blank sheet because patient and public involvement no longer exists. Those of us in the commercial world know that if we do not actively seek the views of our customers or clients, we lose them and we are in danger of calling in the receiver. How much more important is it to have the views of the discerning public when receiving a service delivered by a near monopoly?
Amendments Nos. 16, 26 and 64 and those of other noble Lords seek to make it crystal clear that LINks are an integral part of the commission's work. A regulator who is not engaged with patients and the public will have a reduced understanding of the impact the work is having. It will miss the eyes and the ears of perceptive lay people, people who can sense immediately when something is wrong. For those of us who, in the course of our careers or through family responsibilities, as illustrated by the noble Lord, Lord Campbell-Savours, visit residential homes and geriatric wards, it is the smell of a place, as he said, which is the immediate indicator of quality. One cannot appreciate that from a written report. Seeing and smelling is worth a million words.
Angela Coulter, chief executive of the Picker Institute, in an interview in the Royal College of General Practitioners’ March edition of the college’s news, said:
“There is evidence that successful patient engagement brings a number of benefits, such as reducing the costs and allowing resources to be used more efficiently. It also promotes self-management, so that when a patient seeks medical intervention, that intervention is appropriate and effective. In the long run, encouraging patients to play an active role in their healthcare saves time and money”.
So we know that user involvement is effective and, in the context of what we are debating this afternoon, we also know that it can lead to better regulation. I am hopeful that the LINk system is effective—after all, statutorily it is all we have. I am delighted to hear the Minister say that he will look at this, so through amendments we should ensure that it is involved with the regulatory process.
I was very encouraged to hear the noble Baroness, Lady Barker, and the noble Lord, Lord Lipsey, in a previous debate talk about engagement. However, I agree with my noble friend Lord Howe: I like the word “involvement”. I believe Nelson Mandela said that if you tell people, they will forget; if you show people, they will not remember; if you involve people, they will understand. We are seeking the opportunity to deepen the understanding of the new regulator by involving LINks. I know that the Minister has a tremendous track record in involving people in the Next Stage review and I am delighted that he will think about the points that have been made this afternoon and that he will return with an amendment on Report. For me, that is no surprise.
I support the amendments tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, and I want to speak to Amendments Nos. 17 and 21A that I have tabled. Like the noble Earl and the noble Baroness, my objective in moving these amendments is to help to save the Government’s reputation. I am sure that that is an objective shared, maybe in one small element, by our two colleagues who have spoken. The history referred to by the noble Baroness of, first, the abolition of the community health councils and then the abolition of public and patient involvement forums is not a happy one. It is for that reason that great thought needs to be given to how LINks are to develop and how they are to be involved in the quality process in which the Bill is so important.
We start from considerable concerns about how LINks will operate. We cannot tell because it is still too early, although the patients’ forums have already disappeared, but we know that they will not provide a consistent pattern of involvement and scrutiny across the country because they will not be related to each other in the way they are established. Each local authority area will find a host body. There is no guarantee that those host bodies will be the same or will be connected to organise the LINks, and there will be no clarity about what the expectations are intended to be for those LINks. There has deliberately, and perhaps rightly, been vagueness about who are to be the members of LINks. There has similarly been a feeling that it is right and proper that in every part of the country LINks should determine how they should operate in the interests of best reflecting the needs of a particular locality. The consequence is that there will be even more of a patchwork quilt of local involvement than there was under community health councils or public and patient involvement forums because there will be no mechanism whereby they can be drawn together.
The noble Baroness has been kind enough to refer to my period as director of the Association of Community Health Councils, and I have obviously taken an interest in all this. One of the distinctive features of community health councils, through the national association of which I was director for a period, and the public and patient involvement forums was the existence of a national body that was able to assist them and support them in the work that they were doing, certainly as far as CHCs were concerned, was involved in raising standards in the work that they did and was also able to draw out general lessons about the issues being identified around the country. If the LINk process is to work, there needs to be statutory recognition of the role that it is to play.
Following Second Reading, my noble friend Lord Darzi was kind enough to write to pick up points about LINks. He wrote, quite correctly, that,
“Clause 2 of the Bill requires the new Commission to consider the views of the public, as well as patient and service user representative groups, in all aspects of its work”.
He also wrote that the Government,
“have deliberately framed the duty in relation to representative bodies generally rather than LINks specifically, because we think it is right that the Commission should have the ability to engage with the full range of people that will have an interest in its work”.
That would be a fine argument to deploy if it was being suggested that the sole mechanism for listening to local views or to the views of users of services or their families was to be the LINks, but that is not what is being proposed by any of these amendments. They are simply suggesting that the bodies that have been given a statutory role by Parliament should have a statutory role in respect of this commission. That is not to say that the views that will be expressed by other representative groups or local groups will have no value; it is simply saying that that statutory role and the fact that they are resourced by public money, because they will be through local authorities, should give them a particular right to be listened to. If LINks are not explicitly referred to, it is likely that people will pick and choose which voice they wish to listen to. That will always be the case, but if there is no expectation that they will listen to the voice that has a statutory basis and is supported by public money, we are in danger of wasting that public money and the statutory status that has been conferred on LINks. That is why it is very important that LINks are referred to explicitly in the proposals for the Care Quality Commission, which is the purpose of Amendment No. 17.
Amendment No. 21A is in two parts. First, it aims to place a responsibility on the Care Quality Commission to ensure that on an annual basis the lessons drawn out from the work of LINks around the country are pulled together and considered. That is important because the issues highlighted in different places in different ways by different LINks may demonstrate a pattern, which should inform the plans and intentions of the CQC in its future work. At the moment, there is no mechanism whereby that will happen. There is no national structure for LINks, which relate to individual local authorities and to the service providers in their patch. There is no way in which those lessons will be drawn out. It is extremely important that those matters are dealt with.
For example, in this Committee, we will at various times consider amendments about the quality of food in hospitals, which I know is a concern of many organisations. When I was director of the Association of Community Health Councils, something like 12 to 14 years ago we published a report, Hungry in Hospital?, which highlighted, from the experience of individual community health councils around the country, the problems that particularly the elderly and many other vulnerable patients were having in the way in which food was served to them.
Those messages were pulled together from individual reports and organisations, for which there will be no mechanism at the moment. That is why something which will place an obligation on someone—I would suggest that the Care Quality Commission is the best place to do that—to pull those lessons out will be extremely important. If it is to be the Care Quality Commission, the expectation would be that that would help to inform its planning.
The second element of Amendment No. 21A is to consider the effectiveness in each local authority area of the arrangements under that section. I assume that my noble friend Lord Darzi will have absolutely no problem with that amendment, because when my noble friend wrote to me he said:
“LINks will … be required to report annually to the Secretary of State”.
He goes on to say:
“The Care Quality Commission will play a vital role in supporting LINks’ development”,
I am not clear how that will happen, but he is saying that that will be the case. He continues:
“The Commission will assess local authority social services using outcome focused indicators and this will contribute to the CAA. These assessments will include consideration of how engaged the public and service users are in service planning and the impact of public involvement and user feedback on local services”.
He is saying that, by the nature of the local area agreements and the monitoring role that the Care Quality Commission will have, one of the requirements will be to look at the effectiveness of local engagement.
This is a job that the Care Quality Commission will be doing anyway. Therefore, to make it explicit to report on the effectiveness of the local area agreements seems to be something to which there can be no possible objection from my noble friend. It is a job that the CQC will do anyway. For the sake of transparency and clarity, and the importance that public money is used effectively to engage local citizens, local users of service and their families, it seems very sensible that this obligation should be placed on the Care Quality Commission.
I strongly support the case made by my noble friend, the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege. I have added my name in support of this group of amendments, which all set out the relationship between the CQC and local involvement networks. As I said at Second Reading, I would expect the CQC to play a strong role in supporting the changes concerning user involvement and joint-needs assessment to be ushered in by the Local Government and Public Involvement in Health Act, and in monitoring the effectiveness of these new arrangements.
This is about taking a joined-up approach. We should expect LINks to feed in their knowledge and experiences to CQC, so that it can act on the basis of the widest range of user views. We should expect some independent oversight of how well user involvement is working on the ground under the new arrangements so that problems can be picked up quickly and improvements made. At the moment, as has been clearly outlined, the relationship is undefined. I believe that we will do users of health and social care no favours by leaving it in this way.
I add my support to the amendments. I was once upon a time on a community health council, when I was a young mother with little children, and I worked extraordinarily hard. It is never too late even in this debate to pay tribute to those people who worked on the community health councils; they worked hard and made a tremendous contribution to the health service. As a health service manager later on, I remember being driven mad by our local community health council, which was a very good thing indeed. It would not get off our backs if it was dissatisfied with something that was going on in the area. I was very sad to see the demise of the community health councils, although I was not in any sort of health brief at the time. Likewise the patient forums, which had barely got going; they were only just grouped and knew what they were doing.
We have heard today that there are no LINks yet because no host bodies have been found—that makes LINks sound a bit like tapeworms or liver flukes. What a dreadful phrase! Contrast that with what we were discussing earlier; the advertisement for and appointment of a shadow director of the Care Quality Commission, which rather pushes the users of the health service down the ladder a little bit and says that they are not nearly as important as some of us think they are. We should support the amendments, and I hope that the Government will take them on board and look at this carefully. It is an ideal and logical way of connecting the Care Quality Commission, if it ever comes into existence over my dead body—I am sure it will come into existence—and engaging with the users of the services.
I hope that nothing will be over the dead body of the noble Baroness.
This group of amendments seeks to ensure that LINks are in the Bill. Amendment No. 17 requires the Care Quality Commission to have regard to comments or views expressed by local involvement networks that it considers are relevant. Amendment No. 16 is very similar and singles out LINks as a particular body whose views the commission must take account of when performing its functions. Amendment No. 26 simply defines a local involvement network for the purposes of Amendment No. 16.
I agree wholeheartedly that the involvement of those who use care services, carers and the general public must be central to the work of the new commission. Clause 2 already includes a requirement to have regard to the views expressed by and on behalf of members of the public in relation to activities where the commission has functions. My noble friend the Minister has already given commitments to address the issue of patient care, carer and user involvement as we move forward with the Bill. As discussed on Report in the Commons—someone mentioned this earlier—Clause 2 was specifically amended to refer to “on behalf of”, to ensure that the commission listens to representative groups, which include, but are not limited to, LINks.
Amendment No. 21A places a duty on the new commission to summarise the comments and views expressed by LINks and to report on the quality of LINks arrangements in each locality. Under Clause 79, the commission is already required to make an annual report, which must cover the way in which the commission has exercised its functions during the year. I reassure my noble friends Lady Wilkins and Lord Harris that it will include reporting on how it has engaged with the public. It seems highly likely that, as part of its engagement work over the year, the commission will have worked with LINks as a very important stakeholder, and that will duly be captured. As previous debates have indicated, we are committed to ensuring that the Bill reflects more strongly the aspirations for the involvement of patients, service users, families and carers.
As to whether the commission should have a role in monitoring the effectiveness of LINks, I put it to the Committee that that is not an appropriate function for the commission. I say that because LINks have their own accountability. They are required to be transparent and must make public certain decisions that they make. They report annually direct to the Secretary of State and must provide details concerning their activities as set out in the Local Government and Public Involvement in Health Act 2007 as well as the extent to which local views were taken on board by commissioners and providers. LINks must also report on the amount of money received to fund their activities and how it was spent. We must be careful not to confuse or dilute LINks’ own particular accountability.
The commission’s functions are assuring the safety and quality of services, safeguarding the rights of patients subject to the Mental Health Act, commissioner assurance, the performance assessment of providers and minimising the burden of regulation. The proposal that the commission should consider the effectiveness of LINks therefore does not seem to fit with that remit. Indeed, placing the role with the commission would appear to cut across the arrangements to review their effectiveness.
I refer to the letter that I received from my noble friend Lord Darzi, in which he states quite clearly that the Care Quality Commission will assess how local authority social services are using outcome-focused indicators. That,
“will include consideration of how engaged the public and service users are in service planning and the impact of public involvement and user feedback on public services”.
My noble friend Lord Darzi is saying that that is something that the Care Quality Commission will be doing. Are we now being told that it is something that it will do in secret and will not be prepared to tell the public about?
No; the point that I am making is that LINks have their own accountability and that accountability should not be through the commission. That is not to say that LINks will not be involved very closely with the commission, as I said in my earlier remarks and as my noble friend said in the letter that you received. Of course, LINks will form a significant part of the work of the commission in this respect.
There is a distinction between an accountability to the host—already defined by the noble Baroness, Lady Tonge—and then through to the local authority. It would be in the interests of the LINk, the host and the local authority to feel that they are delivering value for money in this area. There is a distinction between someone else having responsibility for saying that it is an effective entity and an effective process. Where will that responsibility lie?
LINks are accounting to the Secretary of State, so I suggest that the accountability of LINks’ effectiveness lies in their accountability. That is not to say that they will not be working with the commission very closely indeed and the commission will be accountable for its own effectiveness in this regard in the relationships that it has with LINks and a whole range of other organisations. I do not think that we are talking about separate things, but we may need to continue this dialogue elsewhere.
Amendment No. 64 requires the Care Quality Commission to give notice of particular enforcement action that it has taken where the commission considers it appropriate to do so. Primary care trusts and local authorities commission care from service providers. Where the Care Quality Commission initiates enforcement action against a provider, it seems appropriate for the commission to advise commissioners so that they can make arrangements, if necessary, to commission alternative care. It is therefore not necessary for there to be express provision for early notification to LINks for two reasons. First, under Clause 85, there is already provision allowing for regulations to make provision for the publication of enforcement action. That is an important provision which will provide the public with information about successful action the commission has taken in relation to breaches of registration. The purpose of Clause 35 is to allow early notification where a particular body may need to take action as a result of the initiation of enforcement action. I do not believe that in the majority of circumstances where the commission initiates enforcement action against a provider there is a need for LINks to take any specific action, although in the commission of their duties it seems likely that they will be aware of, interested and indeed involved in any given situation.
Secondly, Clause 35 allows the commission to notify any other person whom it already considers to be appropriate, so if it considers it appropriate for LINks to be notified, there is a provision that allows it to do so. The amendment is therefore unnecessary. Given the assurance that the Bill already allows LINks as well as other representative bodies to be involved in the work of the commission, I hope that my noble friend will feel able to withdraw the amendment.
Does the Minister find no merit at all in the argument of the noble Lord, Lord Harris, about seeing the whole picture? I am happy for LINks to operate differently in different areas. They should be tinged, and should think about their local area and how they want to relate to it. They might want to act differently in one area from another. I am very happy with that. Nevertheless, there needs to be the whole picture, because someone needs to gather all this information together so that we see what is happening nationally. I did not hear the Minister answer those points.
I attempted to answer those points when I said that the commission will have to account for the whole picture of how they are doing their work. That will include LINks. As I said, we are reluctant to name LINks in the Bill because we do not want to preclude other organisations. I think someone mentioned that. LINks are not the only organisation that will have a role in this area.
This is not a drafting point. We do not particularly want LINks to be the only body that is named when there are Carers UK, the Long-term Conditions Alliance, diabetes groups and many other groups that have a say, need to be involved and will be involved in the work of the commission. That is basically why we have used a generic term rather than a specific one.
There has been a fundamental misunderstanding of this group of amendments in that the responses that we have just heard from the Minister and the correspondence that I have had from my noble friend Lord Darzi all seem to suggest that it is proposed that the only channel of expression of user interest and user voice will be through LINks. However, the amendment suggests that there is statutory recognition of that voice—that channel—along with all the other channels that merit being specifically referred to in the Bill because the bodies that are being set up by Parliament for this purpose will receive public money for this purpose. For that reason, they should be separately and explicitly mentioned.
In case the Minister is not minded to reply to that point, I shall also comment on her saying why it was not appropriate for the Care Quality Commission to report on the effectiveness of LINk arrangements. She said in effect that she acknowledged the distinction that I was drawing between accountability to a body that has a vested interest in running things and making them effective and that external scrutiny would be by the Department of Health. Yet we are told—she made this clear in her response—that the Care Quality Commission will have a responsibility to look at how engaged the public and service users in each area are in service planning and in the impact on public involvement and user feedback on local services. We are told that the Care Quality Commission will do that, so are we now being told that the effectiveness of those arrangements will be scrutinised by the Care Quality Commission and entirely separately by some army of civil servants in the Department of Health? The implication of what she is saying is that this will be duplicated. The Care Quality Commission will do work on how effective these arrangements are in local areas, but it must not publish it because that would not quite fit in with everything else that it does. It will do it and keep it secret. Separately, the Department of Health will monitor the commission’s effectiveness and presumably tell someone whether it thinks it is effective.
My noble friend is being slightly unfair. I did not say that anything would be secret: I said that everything would be transparent. We clearly need to have further discussion about this because Members of the Committee feel strongly about it. I said at the beginning of my remarks that we would be looking at the wider review of involvement to which my noble friend Lord Darzi referred. We probably need to include a discussion about LINks in that debate.
Before the Minister finally sits down, I would just like to say why I have been so quiet this afternoon. I would like to have supported the noble Earl, Lord Howe, because he and I have battled this out and tried to get some sense into LINks during the passage of the original Bill. I am speaking now because there is time for thought between now and Report, when I may be more vocal in this area. I do not know what LINks are or will be—I do not even know what grammar to use to describe them. That has been my difficulty. Therefore, if I support the noble Earl, which I would like to do, I do not know whom I am supporting in having this power in relation to the users. I might prefer all the other groupings, if I understood them. I might have preferred Parliament to have created a different kind of representative body.
One reason for the demise of the community health councils was that they were rather troublesome. They raised issues that should have been raised, but sometimes not in the quietest way. My worry about LINks is that they are so amorphous that their voice will be muted, particularly in relating directly to the local authority. Some organisations owe their funding to the local authority. I declare an interest as someone with a sister who feels she cannot speak out about what is happening in the voluntary sector because she is dependent on funding from her local authority, which is a typical scenario that happens with people who are dependent on funding. LINks will be dependent on funding from the local authority. At the moment, we have no picture of how that will be managed or monitored—points made clearly in previous debates. I also find it difficult to know whether it is appropriate to monitor user involvement.
While I am on my feet, I should say that there are also some real issues about user involvement and the privacy of those using the institutions, homes and hospitals. I was appalled to hear the noble Lord’s description. I hope and pray that he reported directly to his local commissioners, because no visitor should see that kind of condition and not report what has been seen. He should also expect a response. I relate that directly back to LINks. LINks should have on them people such as the noble Lord who can report directly back. Then there is a voice that is not muted by the local authority. The report can go directly to the Secretary of State, although I still do not know exactly how that accountability will work, and the commission will somehow be able to get that information together. The Commission for Social Care Inspection excelled in many areas, but particularly where there was no information about the number of homes and their conditions. We now have a complete register. It would be valuable if the new commission could link into the local bodies to gather that information.
There is an awful lot to do here until we are absolutely clear about how this pattern and matrix will work. That is crucial if ordinary folks’ voices are to be heard appropriately and privacy maintained.
I thank all Members of the Committee who took part in this debate, particularly those who spoke in support of the amendments. I had thought that I might be pushing at a slightly open door with these amendments, but no such luck. I question how robust the Minister's defence really is. As has been pointed out, I have always been under the impression that including the words “in particular” in an amendment was a way of specifying someone or something without implying that that was an exclusive arrangement, so I am slightly surprised that the Minister should have interpreted the amendment in the way that she did.
I fully take the point made by the noble Baroness, Lady Howarth. We do not know what LINks will look like—I made that point earlier—but they are creatures of the Government's own making. It is odd, to say the least, that the Minister will not countenance the idea of giving them a special place at the table because, as the noble Lord, Lord Harris, rightly said, LINks are established by Parliament and funded by public money. Because of that alone, they have a particular claim to be involved and listened to, not exclusively, as the noble Lord emphasised, but certainly automatically.
Whether the Minister's reply is a reflection of a lack of confidence in the department about how effective LINks will be or of the desire of the Government to dumb down LINks I do not know, but I hope that we can continue these discussions after Committee and before Report. I look forward to those discussions, and, in anticipation of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 17 not moved.]
18: Clause 2, page 2, line 11, at end insert—
“( ) the extent to which complaints about the provision of health and social care by members of the public, in particular users of health and social care services, are adequately dealt with by the bodies which it regulates,”
The noble Baroness said: All the amendments that I shall propose come from the Joint Committee on Human Rights. As you know, the Joint Committee scrutinises all Bills for human rights implications. We recently decided to try to ensure implementation of our recommendations by producing draft amendments that we hope the Government will consider seriously and ideally accept. I express my warm gratitude to the Minister for arranging a meeting where we could discuss the amendments proposed by the Joint Committee.
The Bill engages human rights to a considerable degree. I will say more about that when I speak to a later grouping. Here, I shall represent only the Joint Committee and its amendments and keep my own views about matters such as amalgamating inspectorates to a later stage of the proceedings. I will speak briefly to Amendment No. 18, which is one of our two amendments about complaints. The other is Amendment No. 63, which has not been grouped with it.
The Joint Committee on Human Rights has proposed the amendment as a result of the findings of its report into older people in healthcare. The people whom the committee was concerned about were vulnerable and powerless. In that inquiry, we heard a lot of evidence that strongly echoes the remarks made earlier this afternoon by the noble Lord, Lord Campbell-Savours, when he described his search for a care home.
Being able to complain without fear of victimisation is an essential element of the protection of rights of all vulnerable people, whether they are prisoners, detained mental patients, people in hospital or people receiving social care. It is not just about being able to complain; it is also important to get a satisfactory and speedy response. The amendment would require the Care Quality Commission, in exercising its functions, to consider the extent to which the complaints of those who use the services are dealt with adequately by the providers of health and social care who are being regulated.
Amendment No. 63, our second on complaints, would require the Secretary of State to enable the Care Quality Commission to hear individual complaints where the service users were not satisfied that their direct provider had handled a complaint effectively.
As I indicated, the amendments in this group are intended to deal with problems that we identified in our study into older people in healthcare. These were that the system was inaccessible; did not meet all the complaints that residents may wish to raise, particularly where human rights were at issue; and could not deal with complaints raised by self-funders, who could complain only directly to their provider—which was difficult when they were resident in a care home—or through a contractual claim in the civil courts. The Government responded to our report, making it clear that, in their view, these amendments were not necessary because, in cases where care is commissioned by the NHS or local authorities, there will be a statutory complaints process with a further avenue of complaint to the relevant ombudsman, who is either the health ombudsman or the Local Government Ombudsman. Those whose care is privately funded will not be covered by these procedures, but the Government are considering what options should be available to them.
I hope that the Minister can tell us what the options will be for those whose care is privately funded, and whether the Government have had any rethinking on this question as a result of the Joint Committee’s reports and amendments. I beg to move.
I speak to Amendments Nos. 50 and 58 and, on behalf of the noble Baroness, Lady Jones, who is unfortunately detained elsewhere, Amendments Nos. 58A and 53B.
Amendment No. 50 says that regulations may make provision not only about the handling of complaints but about the implementation of recommendations arising from complaints. Amendment No. 48 has a more limited scope, but would enable the CQC to issue a warning notice if an organisation failed to implement recommendations arising from complaints upheld by the Health Service Ombudsman. Amendment No. 58A of the noble Baroness, Lady Jones, extends this provision further to include the Local Government Ombudsman. Together, all these amendments ensure that the Care Quality Commission has a power to deal effectively with an organisation that fails to deal with complaints properly and to implement fully recommendations arising from those complaints. The implementation of recommendations is the absolutely crucial point, and where so many trusts fail.
I am embarrassed to confess to the Committee that complaints are the one area of work on which the East London NHS Foundation Trust, which I chair, failed to meet the standard of the Healthcare Commission last year. It is perhaps ironic for me to stand here and propose that the regulatory authorities should have greater powers to ensure that people like me do a little better in future, but I have no hesitation in doing so. I shall say a word or two about our experience because it illustrates the value of the Healthcare Commission’s system. I will then go on to indicate why it is nevertheless inadequate. We were not able to meet the standard because of the long-term sickness of a member of staff that year. This public embarrassment in a single year has led to a complete change and the reorganisation of my department to make absolutely sure that we have proper back-up so that our complaints are dealt with properly and on time in future. Although we had done well in the past, we were running a system that was at risk and that exposed us to failure in the event of long-term sickness. We were lucky, until last year, and we are not the only culprits.
The Healthcare Commission’s report on complaints, which was issued on 7 April 2008, concluded that trusts have some way to go before they effectively resolve the complaints they receive and learn from the issues patients raise. Why is that so if the Healthcare Commission’s system is adequate? It is clearly not adequate. I accept that only by giving complaints a higher profile and putting more pressure on requiring the trust to do the job well will we ensure that sufficient priority is given to this vital customer care area of work. The reality at the moment is that some trusts’ recommendations simply get lost in the system—I have to tell the Committee that I am familiar with that—and they are not fully implemented. The same problems arise again and again. Clearly, that is entirely unacceptable.
Why is this so terribly important? Complaints systems are the safety valve for the public when things go wrong. If the safety valve goes wrong, public confidence in the whole system is threatened. I am acutely aware of that because of my work heading the police complaints system for a while. I often faced the fury of families and communities when the complaints system, for which I was responsible, failed, we had long delays in our investigations or we came out with results that were not satisfactory to the family or the community. Facing that fury was one of the most challenging areas of work with which I have ever had to deal. The anger that people feel if the system has gone wrong and the complaints system fails on top of that is incredible.
In the health service, these things are rather hidden. The fury is hidden because people cannot express it anywhere. Yet it is there and it is dangerous. I shall give an example of how terrible this can be. This example comes from Rethink. A young man suffering from a serious mental illness was given Clozapine. As my noble friend Lady Murphy will be well aware, people using medication such as Clozapine must have regular blood tests because they are susceptible to diabetes. In this case, blood tests were not offered until the mother of the man intervened and made multiple requests to the trust to test her son. By the time the tests were done, the son had diabetes. I find that absolutely shocking and terrible, and I am sure that other noble Lords do too. When the Healthcare Commission investigated, it found that the Clozapine clinic had simply not been running. A year later, when the mother raised with the trust what had happened as a result of the Healthcare Commission’s investigation, the staff had no recollection of the complaint or of the recommendations. Nothing had happened. The Healthcare Commission’s system is not ensuring that complaints are properly dealt with and that recommendations are implemented. I put it to the Minister that that has to improve. I think I have said enough about that to make the point.
I raise two related issues. Help the Aged has expressed a fear that the proposed loss of the investigative powers of the Healthcare Commission will leave a gap. I would be grateful if the Minister could give us an assurance that that gap will be filled. It is very important.
Amendment No. 53B, tabled by the noble Baroness, Lady Jones, is supported by Help the Aged and argues that existing complaints procedures are inadequate, particularly for people who fund their own care. My noble friend Lady Stern has already raised that point. Such people have no access to an independent complaints system beyond that available from the provider. Those funded by the local authority, as my noble friend said, have access to the local authority complaints system. Older people are very fearful of complaining to their provider for obvious reasons—there can be very unpleasant retribution.
The Minister in the other place stated that the Government are considering options for self-funders, but he also suggested that self-funders could take their custom elsewhere. I find it shocking that anyone could suggest that a 90 year-old woman could up sticks and take her custom elsewhere. Perhaps the Minister might raise this matter with his colleague in the other place. It is utterly cynical and completely unacceptable. I find it hard to think of any reason not to adopt these amendments. I hope the Minister will agree.
I support these amendments. In particular, I support the comments of my noble friend Lady Stern on the implementation of the Human Rights Act in relation to care homes and how that could possibly be helped by the Care Quality Commission. I am anxious that the Government should bring forward provisions to address that in relation to privately funded, but also publicly funded, complainants in care homes.
I have recently experienced a very elderly relative being evicted from a care home as a result of becoming too dependent and frail. She was shipped off to hospital with a fractured femur, which is very common. I have experienced that professionally a million times, as have many other doctors, I am sure. She was evicted with no notice at all and we were told, “She is now in hospital, so it is up to you to find somewhere else because she is just too bad for us to take back, even if she recovers”. At the end of the rehabilitation process for the fractured femur, we as a family are faced with trekking around trying to find an alternative placement.
That kind of eviction happens often. Since I have made this case known, many people have written to me about similar instances. There is nowhere to complain to. Of course, I have complained to the group of homes where this occurred, but there is absolutely no come-back at all; no right to retain your home; no right to have an appropriate assessment of services; no right to have things talked through at all; and nowhere to complain about the manner in which such things are done.
I turn to the amendment of my noble friend Lady Meacher on the need for a power to follow up the recommendations that result from investigations of complaints. My noble friends Lord Patel and Lady Meacher will be endlessly aware of complaints that have been investigated by the Mental Health Act Commission, when one has had to go back time and time again to the same place to say, “What have you done about it?”, and nothing happens. You almost have to sit on the doorstep of the medical director, the senior nurse or the chief executive and say, “I am not leaving your office until you have given me a plan of what you are going to do about this problem”. I applaud the fact that yet again there is an emphasis on local resolution, but the NHS has been spectacularly bad at dealing with matters locally and is perhaps even worse than local authorities, although I am not so sure about their complaints procedures. The responses to complaints—when as chairman of the strategic health authority you sign the letters that finally reach you because they are so dreadful—embarrass you, because the responses are transparently ghastly. You can only send them back so often for a rewrite before you agree to sign them.
We must give someone powers—I cannot see who else it could be except the Care Quality Commission—to be able to go in and ask, “Have you achieved this, this and this, which were recommended as a result of this complaint?”, to ensure that trusts and other health service and social service bodies are faced with the threat that at least Big Brother will breathe down their neck if they do not do it. The Care Quality Commission is Big Brother in this respect.
I, too, support the amendments. I think back to my time in this area when most people who complained were not seeking personal redress; they wanted to see the system improved. Yes, it would be nice to get a proper apology, but they were really looking for some undertaking or some feeling that the lessons had been learnt from something that had gone wrong in their particular case.
When you return to an issue after a number of years, it is always interesting to see whether things have developed. I was talking to a business contact whom I had not seen for a while. He said, “I have had this terrible problem. Have you heard about my teeth?”. It turned out that he had been given the wrong medication and goodness only knows what in hospital. What was now driving him was not that this appalling mistake had happened and that he had been incapacitated for a period, but the quality of the response that he had had. It was, like all those apologies that I remember from when I was involved in community health councils, classically of the nature, “We are so sorry that you have found it necessary to complain”. That was it; there was no indication of what was going to be done about the particular complaint.
When he pressed for a further response, it was that the person involved was no longer with the trust. That might indicate that action has been taken, but it might indicate that the person was an agency worker who was no longer providing agency services in that trust. He was looking for some statement that said that a procedure had been implemented that would prevent that error in prescribing from arising again. Whether or not that was a sensible thing to do, he would have liked that issue to be addressed.
What concerns me, and the reason why I support the amendments, is that it is necessary to build in a requirement to learn lessons and to implement them where recommendations have been made following some major shortcoming. This group of amendments is about that. I come back to the point, which has already been made, that if this is not monitored or seen as part of the remit of the Care Quality Commission, whose responsibility is it and whose responsibility will it be to ensure that these matters are picked up and dealt with? My concern is that it will not happen in the absence of that responsibility. If the assumption is that it will be dealt with by someone else, no doubt by the Department of Health or whomever else it might be, why is that not a relevant factor for the Care Quality Commission in looking at the way in which these issues are dealt with by the bodies that it regulates? That is an essential part of assessing whether the management is good and learns from the things that go wrong.
I want to make it clear at the outset that I am not referring to the home, which is a BUPA home, where my mother has been placed by me. I want to make it absolutely clear that my comments have no relevance whatever to the circumstances in which my mother now finds herself. I am sure that noble Lords will understand why I am saying that. My comments are based on conversations that I have had with others.
I shall concentrate my remarks on the reference made by the noble Baroness, Lady Stern, to self-funders.
The financial bottom line in London is that you will get nothing for under £1,000 a week, which is £50,000 a year. If you want something reasonable, it will cost you £1,200 a week, which is £60,000 a year, or £100,000 a year of taxable income to fund it. We are talking about a very expensive service, and people who pay that kind of money for their care—that includes my mother, to whom I refer only because there are others like her in other institutions—demand certain standards. At the moment, self-funders are in an impossible position in nursing homes. They can say and do nothing, and have to put up with it, unless they or a relative are prepared to place themselves on the line and take a risk that there will be no retribution inside the home. As I say, this has nothing to do with my mother’s situation. I must keep emphasising that because I do not want my comments to be misrepresented in any way.
I thought long and hard about the solution. I shall quote selectively from the amendment of the noble Baroness, Lady Stern, because the following words are the nub of the amendment so far as I am concerned. They are:
“the extent to which complaints … are adequately dealt with by the bodies which it regulates”.
Those are the key words. There is a way of dealing with this. As I say, I am an engineer and a trader by background and not a professional in this area, so I look at this more as part of the client group. Many of the complaints are not hugely important to us, but they are to the people who are in these institutions. They can be very small. They can be about the variety of the diet; the arrangements for cleaning people; the people, such as the nurses, who have been allocated to them; at what time they are required to get out of bed in the morning and be put to bed in the evening; at what time the television is turned off; and whether they are allowed to circulate within the home. There are all kinds of minor things that cannot necessarily be dealt with in a conversation with the home manager, because the information can somehow feed its way down the line and the client—that is to say, the resident—may well feel that they will somehow suffer as a result.
There is a need for someone between the client, the home management and the nursing staff who is utterly independent and can be relied on to receive information and deal with complaints effectively by raising them directly with the home management without identifying the person who has made the complaint or the relatives who represent that person. I do not know what the position is in homes that are in essence funded by local authorities and where the entire intake might well consist of people who are funded publicly; I am talking about self-funders. We can find these people, and one function of the commission should be to establish a structure that can identify people in communities who are in a position to act in this independent role. They do not deal with major complaints; they deal with the minor things that people as residents find impossible to raise in the home. Many such issues arise.
I talked to a resident of a home in the north of England that is very near my former constituency. That person had a catalogue of complaints that were not hugely important, but it was quite clear that they were causing them immense frustration and concern. Even I felt it difficult to raise the issue with the management in the home for fear that they might communicate what I had said to the nursing staff. It might be fed back to a member of the nursing staff and to a particular resident to whom I had been seen talking. So you are in an utterly impossible position.
Therefore, all I am asking for is a structure which allows for an independent person. Perhaps it could be linked to the LINks, to which my noble friend referred when speaking to his amendment. I do not know whether that is the answer, but I simply would ask that it is considered. At present, the position is utterly impossible for people who are paying out annually a very large amount of money.
I support these amendments and should like to make two points. On self-funders, the Minister with responsibility for care in another place has said publicly on many occasions that this is the total unintended consequence. It was never intended that self-funders should be treated in this way and not be given the help and advice that they need. I very much hope that the Government will do something about that very soon—certainly, in the Green Paper which will shortly be brought forward. At the moment, it is an absolute disaster for self-funders. We all know that it is very difficult to have a home worth £21,000 or less in this country. Therefore, to be a self-funder you do not have to be particularly wealthy.
As regards complaints and human rights, one of the obvious places to go is the Equality and Human Rights Commission, on which I am a commissioner. But there are severe limitations to what the commission can do on human rights. It is absolutely essential that the Care Quality Commission takes up these cases of complaint. The EHRC can comment, hold inquiries and be an advocate on issues such as dealing with policies, but individual cases cannot be taken up in same way as equality cases. Therefore, the CQC must take on this role very thoroughly, with gusto, and really sort out these problems. As the noble Lord, Lord Campbell-Savours, has said, some of these issues may be minor but, in many cases, they are major issues, which affect people’s lives and, sometimes, cost them their lives.
I should like to make two points which I hope the Minister might pick up in his response. First, the Government have indicated that they want to introduce an independent element into complaints procedures for people who fund their own care. I would welcome further details of what that will mean. Can the Minister clarify whether the 40,000 people or their families who partly self-fund through top-up payments are included in the definition of self-funders? That is important.
Secondly, when the current investigatory powers are removed from the Healthcare Commission, does the Minister believe that the Health Service Ombudsman will be able to pick up the anticipated volume of complaints? If so, what is the basis of this understanding?
Finally, the CQC will be a joint health and social care regulatory body. Complaints in the two systems are handled very differently. I cannot be the only Member of this Committee who has had reason to make a complaint within the NHS on behalf of someone who was not a relative but with whom I was concerned, only to have patient confidentiality thrown straight back at me as a reason for not doing anything at all. I would have thought that one of the big things that the Care Quality Commission would have to do early on would be to establish the underlying principles by which one regulates two currently completely different complaints systems. It is not unusual for those who are most active in raising complaints in social care not to be recipients of the services, but they know what goes on and they have a heavy interest in them. I would welcome the Minister addressing those matters in his response.
This group of amendments focuses on the role of the new commission in ensuring that providers handle complaints effectively. I applaud the intention behind these amendments, which is to ensure that providers learn from complaints, because that is exactly what we are seeking to achieve. I welcome the opportunity to reinforce that.
Amendment No. 18, tabled on behalf of the Joint Committee on Human Rights, would require the commission to have regard to the level of satisfaction with complaints handling. The noble Baroness, Lady Meacher, and my noble friend Lady Jones have taken a different approach. Amendments Nos. 50 and 53B build on existing provisions in Clause 16 to make it explicit that registration requirements could cover the steps which registered providers should take to act on any recommendations resulting from complaints. Amendment No. 53B also addresses a different point, specifying that registration requirements could, in particular, cover the handling of complaints made by those service users who do not currently have recourse to a second-stage complaints process. Finally, Amendments Nos. 58 and 58A would enable the commission to issue warning notices where providers are failing to implement recommendations of the Health Service Ombudsman and Local Government Ombudsman.
I hope Members of the Committee would all agree that the onus must be on care providers, wherever possible, to resolve complaints themselves. I reassure the Committee that the Bill provides mechanisms to help achieve that. Clause 16 enables the Secretary of State for Health to set, in regulations, the essential registration requirements that providers will need to meet in order to become, and remain, registered with the Care Quality Commission. Clause 16 already enables regulations to make provision for the handling of complaints and disputes.
Members of the Committee will be aware that we are consulting on key areas which these crucial registration requirements need to cover in order to provide proper assurances of safety and quality of care to patients and service users. Requirement 10 of the draft registration requirements proposes that there should be a requirement on registered providers and managers to have effective systems in place for handling complaints, and that they should learn from complaints. Indeed, this proposed requirement has been agreed by both the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman, and sets out that providers should:
“Ensure that people and their relatives and carers are aware of and can use, with support where needed, and without prejudice to their care and treatment, simple and clear arrangements for handling comments and complaints. Ensure that complaints about failures to ensure people’s health, safety and welfare are investigated and resolved promptly and effectively. Learning from complaints is reflected in risk management, quality assurance, clinical governance and training and development arrangements”.
I therefore do not believe that it is necessary to amend the provisions to make regulations ensuring that the commission takes into account not just how the provider handles complaints but also how the provider learns from those complaints. Furthermore, because the registration requirements will apply across both publicly and privately funded care, this should help to improve the situation for those people that Amendment No. 53B seeks to help.
We recognise that there is an issue about the fairness of current arrangements for people who either choose to seek care independently or who do not qualify for state support and feel that their complaints have been inadequately addressed. The Government are actively considering ways in which some form of independent resolution may be achieved for those groups; I very much hope to have some answers in due course. We are also looking at options for ensuring that local complaints arrangements are as consistent as possible, whether they relate to publicly or privately funded services. So, to the extent that the final registration requirements—currently the subject of our consultation—cover this issue, the commission will already have the powers it needs to ensure that registered care providers are handling complaints properly, whatever the arrangements may be to provide that care.
Let us remind ourselves that where registered care providers fail to meet registration requirements, the commission will be able to use the full range of its enforcement powers, not just issuing a warning notice as proposed by Amendments Nos. 58 and 58A. The emphasis in the new system we are putting in place for resolving complaints locally will also assist organisations to identify their mistakes, to learn lessons from them and to ensure that similar mistakes are not repeated.
The noble Baroness raised the capacity of the ombudsman to deal with some of these complaints. I quote from a letter from Ann Abraham, the Parliamentary Ombudsman for the UK and Health Service Ombudsman for England:
“Clearly I recognise that, in the short term, the changes will result in an increase in the number of enquiries made to my Office and the number of investigations I undertake. I do not, however, expect to receive the same number of complaints for investigation as the Healthcare Commission has done. As evidence, I note that when the Scottish health system moved to a similar two-stage model at the time of the introduction of the Healthcare Commission in England, the number of investigations increased, but not unmanageably so … I have recently restructured my Office and I am confident that we will be able to meet the forecast increases in my workload, and will be able to provide an efficient and effective response to demand”.
I have tried to answer some concerns of the Members of the Committee. I take the point about the care provided for those who may not qualify for state support, and am more than happy to look into that further. With the assurances I have given Members of the Committee today, I hope that they can, at least at this stage, consider withdrawing their amendments.
While the Minister considers what the standard parliamentary answer to that kind of argument is, I shall make one or two relevant points. I do not wish to criticise the health ombudsman—in fact, I think she is a wonderful health ombudsman—but I think I am right in saying that the changes in Scotland to which she referred coincided with the introduction of the policy of free personal care. Therefore, in Scotland there was something that does not exist in England: a clear understanding of basic entitlements in health and social care. I point out to those who are unaware of it that we do not have a happy precedent, given that it has taken eight years for there to be some kind of resolution about what the criteria for NHS continuing care should be and consistent application of those criteria. I think we are underestimating the scale of the problem. I wish to highlight the point that a major element of the argument is costs in residential care. Regulating acute care, when one looks at what happens to a patient where there is a particular adverse incident, and looking at when a care home provider decides to up his or her fees and the person who is paying for himself takes issue with that are wholly different. That is a commercial transaction. It is worth reiterating that within this one regulator we are seeking to bring together things that are at present in separate systems, both of which are wanting. Putting them together may compound a lot of the problems. I urge the Minister not to underestimate the scale of the problems that will have to be dealt with.
The Minister said quite a lot about regulations placing duties on providers to deal with complaints and to follow up recommendations and so on. Providers already have an obligation to deal with complaints properly and to follow up recommendations, but it does not happen. The whole point of this debate has been to say that complaints really matter in terms of public confidence in health and social care services. There needs to be a robust system—it seems to us that the only sensible robust system has to be with the CQC—to make sure that complaints are properly dealt with and that recommendations are properly followed up in good time. That is the other thing; these things can go on for years. I do not think I heard the Minister give an assurance that the CQC will be required to follow up and deal with complaints and recommendations from complaints. The Minister referred to the powers of the CQC to do that, but the purpose of this debate is to say that leaving it with the opportunity to do that is not sufficient. I think I heard the Minister say that he would think a little more about this, which was encouraging, and I would be grateful if he would give us an assurance that he will think further about this. I hope that he will take very seriously the point that we are making that there is a need in terms of public confidence to bite this one and make sure that the CQC deals with it.
19: Clause 2, page 2, line 16, at end insert—
“( ) the need to improve the range and quality of information provided by health care and social care services to users of those services about their rights,”
The noble Baroness said: I am grateful for the support from other noble Lords for these amendments, which are many and all relate in some way or another to putting human rights at the heart of the work of the Care Quality Commission. I will try to explain the perspective of the Joint Committee on Human Rights on this and why the Bill has such profound human rights significance.
The human rights framework has considerable importance in structuring the ethos of public life in this country. In saying that, I build on much that has already been said this afternoon. The European Convention on Human Rights played that role for many years, but the framework was, as the Government say, brought home by the Human Rights Act 1998. That Act signalled a change and brought into being a framework within which the state’s actions towards individuals should be shaped. I refer here not only to areas in which the state takes powers to coerce someone or deprive them of their liberty, such as in counterterrorism and criminal justice or in the detention of patients under Mental Health Act powers. This is about how the state, and those through whom it works, deals with human beings.
This view of human rights has led the Joint Committee on Human Rights to broaden its work and to undertake two major thematic inquiries: one into older people and healthcare, and one into the treatment of adults with learning difficulties. Both those inquiries were revelatory for committee members and brought us into contact with the meaning of human rights to a very broad range of people—those who are being cared for and those who work with those who are being cared for. I stress that the human rights framework is enormously important for those who care for people, because it enables them to see their work within an ethical framework through which they can articulate their values as caring professionals. It also enables them to stand up to anyone who tells them to cut corners and leave the old lady lying in a dirty bed, and to feel that they must blow the whistle when abuse needs to be exposed.
The human rights framework is also part of each individual’s relationship with the state. It means that we can expect that our right to life will be protected, that we should not be subjected to inhuman or degrading treatment, that our right to family life shall be respected, and a number of other rights. By simply listing those three, however, I hope it is clear to the Committee that the work of the Care Quality Commission will have human rights work at its heart.
I also resort to recounting a personal experience. Some years ago, I had an illness that kept me in hospital for quite a long time. I was in a wheelchair for six months. It was a profoundly educational experience. When I was recovering, I amused myself by writing about it. Articles appeared in the health pages of both the Times and the Guardian, if I remember rightly. My main thought was that my experience was parallel to that of my day job, in which I dealt with matters relating to prisons, prisoners and the protection of basic rights. Everyone needs the protection of those rights, and it became clear to me in hospital that I was one of those who needed them. First, there is huge potential for ill-treatment, neglect and abuse when one is a patient or someone who is being cared for. You are without power and you feel that you are without it. Your feeling of powerlessness is increased enormously by the potential humiliations that you can suffer through the invasion of personal privacy. If they do not have time to give you a shower, you cannot have a shower, so you feel dirty and smelly all day. You then wish that your visitors were not coming because you do not want them to see you in that state. It is very difficult to do anything about those things because you are completely dependent on your carers. If you try to do anything about it, what happens to you could get worse, rather than better.
Those are classic human rights situations where protection is called for. They are the issues behind the whole conceptual framework of human rights. I know that the Government are not at all convinced by those arguments. They have said, as the Minister said in response to the report of the Joint Committee on Human Rights, that the application of Section 6 of the Human Rights Act 1998—the duty to act compatibly with convention rights—will mean that the Care Quality Commission will automatically take into account convention rights, and that there is no need to do any more about it. The Government say that the broad regulation-making power in Clause 16,
“already is sufficiently wide to enable regulations to be made in relation to the health and safety and welfare of service users and to secure their Convention rights”.
Finally, the Government say that the inclusion of express reference to the Convention rights in Clause 16 could lead to uncertainty as the scope of an obligation to make regulations to secure rights would not be easy to determine. The Government do not wish the Care Quality Commission to become a quasi-judicial body.
Perhaps I could ask the Minister whether the Government understand that Section 6 of the Human Rights Act 1998 requires the Care Quality Commission to act compatibly with convention rights—not merely to take them into account. Taking them into account is not the same thing as acting compatibly with them. Do the Government consider that the inclusion of obligations in respect of rights could create any greater uncertainty for the commission than the inclusion of obligations in relation to health and safety or welfare? Why would the inclusion of that obligation lead to the Care Quality Commission becoming quasi-judicial and why would that be so inappropriate? How would that differ from the role that the commission would play in relation to the protection of health and safety, and welfare?
In our discussions and in the Government’s response to the Joint Committee, I feel that there has been a failure on the part of the Government to understand the profoundly important relationship between health and social care and human rights. I very much hope that the Government will be able to think again about their view on this and that maybe we shall make some progress. I beg to move.
I support this group of amendments moved by the noble Baroness, Lady Stern. Collectively, these amendments would ensure that not just the CQC but all registered providers really have to think about the human rights of people in their care and that the CQC can back that up through its inspection process. The noble Baroness has moved the amendment comprehensively, so I wish to make two points in general support. The first is a general point and, secondly, I will support in particular Amendment No. 19. On the general point, the Minister has stated that the whole establishment of the CQC and the implementation of the legislation will take place and be deeply implicated in an ethos of human rights; but I am not sure that the drafting of the Bill bears that out.
Clause 16, for example, which was referred to by the noble Baroness, Lady Stern, contains the regulation-making power. Clause 16(2) simply says that regulations “may” make provision with a view to various things that do not include rights. That is why Amendments Nos. 41 and 42 have been tabled. They seek to ensure that regulations “shall” make provision with a view to,
“securing the health, safety, rights and welfare of persons for whom any such service is provided”.
The other amendments in the group go through strengthening the legislation in respect of rights. Amendment No. 23 is also necessary to insert “rights”, and Amendment No. 28 has been tabled in general terms to provide:
“The protection and promotion of human rights shall be central to the performance of the functions of the Commission”.
Amendment No. 72 prescribes the content of standards and Amendment No. 76 would provide that respect for rights may be a quality indicator in periodic reviews. I submit that there is quite a lot in the drafting of the Bill to indicate that it needs quite a lot of strengthening before we can be confident that it will be implemented in an ethos and culture of human rights.
Secondly, I support Amendment No. 19 in particular, as it is an area of which I have particular knowledge, but also as proxy for the whole group. The JCHR has suggested that the CQC should perform its functions in a way that encourages health and social care providers to improve the information given to service users about their rights. In commenting on the JCHR’s recommendations, the Minister in another place relied on the fact that the commission, NHS bodies and local authorities are all public authorities for the purposes of the Human Rights Act and that the courts have a role in enforcing rights, such as access to information. Therefore, we can rely on the fact that the Human Rights Act applies to these public bodies and that the courts will be there to enforce human rights where necessary.
In its 15th report at paragraph 3.25, the JCHR characterised the Minister’s response to its recommendations as simply standing pat on the status quo and said that it regarded it as “complacent”. It referred to its report on the human rights of older people in healthcare, which,
“drew attention to the inadequacy of information provision, in accessible forms”,
and to the fact that it had subsequently made similar findings in relation to adults with learning disabilities. It pointed out:
“Reliance on the Human Rights Act has largely failed to improve the provision of accessible information about healthcare to vulnerable groups. Public authorities have tended to take a minimalist view of compliance with the Human Rights Act and not used the Act to positively enhance the protection and promotion of rights”.
I can illustrate this matter from an area within my own knowledge by reference to a provision in the UN Convention on the Rights of Disabled People, which the UK has signed and I am sure shortly will ratify. Article 21, “Freedom of expression and opinion, and access to information”, says that states parties must provide,
“information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost”.
I draw two morals from that.
First, if there is not a binding legal obligation on the UK Government to ensure disabled people’s rights to information, there very soon will be in the light of the UN convention. That being the case, it is, at the very least, highly desirable, if not absolutely essential, that this obligation should be reflected—the Minister may say anticipated, but why not since we are promised ratification by the end of this year—in the Bill in relation to disabled people’s rights to information from providers of health and social care.
The second moral I draw is that, as the JCHR says, it is absolutely essential to go further than the status quo if the situation is to be in any way satisfactory as regards the provision of information to disabled people. For health services alone, a recent survey of blind and partially sighted people in the UK showed that 95 per cent of respondents had never received health advice leaflets or information from their local surgery in their preferred format; 96 per cent had never received letters from their GP, results of tests or other correspondence in their preferred format; and 95 per cent had never received medicines labelled in large print.
That is the situation for disabled people, but I am in no doubt whatever that the situation in relation to the provision of information to other elderly and vulnerable people, and to people with learning disabilities will not be found to be materially different. Therefore, I speak in support of Amendment No. 19 in particular, but as an illustration of the need for this group of amendments as a whole.
I strongly support this group of amendments, which is so vital to creating a genuine culture and respect for human rights across health and social care. They have been superbly covered by the noble Baroness, Lady Stern, and the noble Lord, Lord Low. I strongly support the need to make human rights central to the work of the new Care Quality Commission. As RADAR puts it:
“Human rights are not ‘just another consideration’, they are the prime consideration underpinning everything else”.
The core principles behind human rights are autonomy, dignity and equality, and it is these which must guide and inspire the new commission in its work. Indeed, we recently voted in support of measures to make sure that health and social care providers ensure that service users are empowered with information about their human rights and that rights are respected throughout the hospital discharge process, when we passed the Disabled Persons (Independent Living) Bill, introduced by the noble Lord, Lord Ashley of Stoke.
Building a human rights culture across health and social care will require all the measures set out in these amendments, and more. So widespread is the level of ignorance and disrespect for basic human rights standards, we should take this opportunity to enact the JCHR recommendations without delay.
I particularly support the comments of the noble Baroness, Lady Stern. It is relevant to quote to the Committee the results of a poll announced today by Age Concern. I declare an interest as vice president of Age Concern and as its former chief executive. The poll showed that people of all ages and incomes are deeply concerned about the quality of the personal care that they will get in old age. According to the poll, eight out of 10 people in Britain are concerned about the quality of care that they or their loved ones will get in later life. Four out of 10 people are not even confident that they will be treated with dignity or respect, despite a high-profile government campaign to address that.
When the media are taking on board something like that, it is in the Government’s interest to make a definite claim to support the human rights of people in care or needing care and to put that on the face of the Bill. That would show commitment and would reverse the distrust or apprehension that so many elderly people feel. If the poll were repeated with disabled people, who may be younger, we would have precisely the same result.
The Government must make some sort of commitment urgently. In this respect, human rights mean dignity. We need the sort of care that leads to less malnutrition, respects privacy and stops people being evicted, as the noble Baroness, Lady Murphy, described so eloquently, from what has become their home, because when that happens they get even more frail and vulnerable and need that protection even more.
This group of amendments emphasises the need for human rights considerations in these matters. My mind goes back to one of the homes that I visited, to which I referred before, which is not very far from this institution. I described it as a place in which I would not be prepared to place an animal. I presume that the home cleared the inspection hurdles as being a satisfactory place.
One problem that I believe exists cannot be dealt with in the Bill, but it helps to emphasise the need for human rights to be embodied in the Bill. Staff in these homes often simply do not understand what human rights are. The reality is that in many private homes—as I say, I am not in that profession, but many here will know exactly what I am talking about—staff are on minimum wages at the bottom end of the wage market. They are often people who can find employment in very few areas other than in care, yet we presume that somehow, instinctively, they will want to flag up human rights issues in the way that they handle a client group. I do not believe that they necessarily do. Some of those on minimum wages are very good carers, but some, from what I hear, are appalling, and they remain in those institutions. Unless someone complains, which we talked about before, very little happens.
If we can embody in the Bill this human rights issue in a way whereby service providers cannot avoid it as a consideration, the responsibility will then be placed on them to ensure that those who they employ, at the very bottom end of the wages market, are well aware of their responsibilities.
At this hour, I do not want to prolong the discussion; much has already been said. I have two points, which to some extent flesh out the comments by Members of the Committee about why the Minister’s response to the JCHR was inadequate.
First, I notice that, with the exception of the noble Baroness, Lady Stern, everyone talked about social care. Actually, I am quite interested in what human rights look like in an A&E department. There is an approach to trauma medicine that can be conducted with due regard to human rights. I am not sure that that is the first thing that goes through practitioners’ minds, but it is still important. That flags up why this is important. We cannot talk about other rights in relation to healthcare or social care; we cannot talk about equality, for example. We cannot talk about non-discrimination. A large part of the practice of medicine is exactly about judgment and discrimination; what is appropriate and right for one group of patients, and one patient as opposed to another.
I suppose that it is precisely because we cannot talk about other rights as we know them and overcoming other forms of discrimination, because they do not logically apply, that, particularly in social care, people have come to have such an acute understanding of how the principles of human rights apply in a situation where individuals do not have entitlement and in which there are not infinite resources. There is much to do before people from the world of social care truly understand what the implementation of human rights means in an acute healthcare setting, and vice versa. That is why it is important to place this in the Bill and not to rely on the general public authority duty, which the Minister might be tempted to use as a recourse. We have only just begun to address the full implications of what this means. For the foreseeable life of this legislation, to have it in statute will be a necessary reminder, both to practitioners and users, of the basis of all their practice. That is why it has particular importance.
As I said earlier, there is a big difference between “may” and “shall”. I wholly agree with what the noble Baroness, Lady Stern, said about being vulnerable while being dependent on other people. This time, I hope that the Minister will explain why he cannot accept “shall”, if he cannot accept it. I hope that he will accept it. All vulnerable people should be protected; that is so important. There is bullying in some of these hospitals and homes, and above all else that should be stamped out.
This group of amendments has been tabled by the noble Baroness, Lady Stern, on behalf of the Joint Committee on Human Rights.
Human rights issues were debated in depth in the other place, and the debate focused mainly on the public authority definition. However, I recognise that the Joint Committee has indicated that it was not fully convinced by some of the arguments that the Government put forward in relation to other amendments. I hope that I shall be able to explain the Government’s position more clearly today.
Through this Bill, we are seeking to establish a unified framework for the regulation of health and adult social care services. It will create a level playing field for all registered providers across both the private and public sectors, but not all such providers will count as public bodies for the purposes of the Human Rights Act. That, fundamentally, is at the heart of why the registration requirements should lay down specific requirements that give effect to human rights, rather than seeking to extend the effect of the Human Rights Act to purely private arrangements, where it was never intended to apply.
Dealing with each of the amendments proposed by the Joint Committee on Human Rights in turn, Amendments Nos. 23 and 28 seek to give the commission a general duty to promote human rights. Amendment No. 23 would require it to encourage services to be provided in a way that focuses on the rights as well as the needs of the people using those services, and Amendment No. 28 proposes a general requirement that the protection and promotion of human rights should be central to the commission’s work.
We have already included a requirement in Clause 2 for the commission to have regard to the need to safeguard and promote the rights and welfare of children and vulnerable adults in everything it does. We adopted that wording because it is important for the commission to pay particular attention to the needs of those who are less able to advocate for themselves. However, I also recognise the strength of feeling that the commission should take proper account of the rights of all people who use health and social care services. I have already undertaken to look again at the drafting in Clause 2 and will look at this issue as I do so. That would be the most appropriate way to reflect the intention behind Amendments Nos. 23 and 28, and I hope to come back to this on Report.
The remaining amendments propose changes to specific functions the commission will have to ensure that human rights issues are covered. Amendments Nos. 41 and 42 seek to ensure that regulations under Clause 16 will include requirements for securing the rights of people using health and social care services, as well as their health, safety and welfare. Amendment No. 76 proposes that respect for the rights of people using health and adult social care services should be included in the indicators of quality to be used in periodic reviews under Clause 42.
On Report in the other place, my honourable friend the Minister for Health gave an assurance that the registration requirements will be in line with the spirit of the European Convention on Human Rights. In its 15th report, the Joint Committee on Human Rights queried whether this recognised that the European convention has legal force in the UK. I am advised that the convention itself does not—in the same way as any other treaty to which the UK is party—but the Human Rights Act gives very strong force to the substantive rights drawn from the convention. Crucially, however, the registration requirements will go beyond the convention rights, both in content and in their application to persons not subject to the Human Rights Act.
The Government want all providers to follow the sensible principles set out in the convention in order to ensure that they deliver appropriate and effective care. That is why it is our intention that the registration requirements reflect the spirit of the European convention. It is also through the registration requirements that the commission might have a role in monitoring the provision of information to people about their rights, although I maintain that that is primarily a role for the Equality and Human Rights Commission and will go on to outline what work it will be doing. As currently drafted, the registration requirements include a requirement to involve people in making informed decisions about their care and treatment. Something similar to this draft would address the proposal in Amendment No. 19, but Members of the Committee will be aware that those requirements are currently out to consultation. I will welcome views on whether we have got the balance right.
The Care Quality Commission will also have to bear convention principles in mind in its periodic reviews. Tackling health inequalities and social exclusion for vulnerable groups are government priorities for performance assessment. However, it would be impossible to set indicators that measure whether someone’s rights have been respected as proposed by Amendment No. 76.
Amendments Nos. 68, 70 and 72 relate to Clause 41, which enables the Secretary of State to publish statements of standards relating to healthcare provided and commissioned by primary care trusts. PCTs will need to have reference to standards issued under this clause in discharging their duty of improvement under Clause 133. Amendment No. 68 would require the Secretary of State to publish standards rather than enabling him to do so. Amendment No. 70 seeks to extend the standards to apply to all health and social care bodies.
The new clause proposed in Amendment No. 72 sets out a number of rights-related topics which it is proposed should be covered by these standards. It is important to remember that the standards which will be drawn up under Clause 41 are not intended to be requirements which providers of regulated activities must meet in order to be registered with the Care Quality Commission. Standards under Clause 41, on the other hand, will be designed as improvement tools to help to deliver high-quality publicly funded healthcare. We envisage that they will be used primarily by clinicians and managers to measure and improve the care they give to their patients and by patients to make informed choices about treatment providers.
The Secretary of State should not be required to issue standards, as envisaged by Amendment No. 68, rather than be enabled to do so. Standards will be issued only where it is clear that they can contribute to enhancing the quality of care, where there is a need for a common framework and terminology, and where there is a broad consensus between the department, clinicians, managers and patients about the role that standards can play in driving improvements. It is unnecessary to make similar provisions to apply to publicly funded social care, as envisaged by Amendment No. 70. Local authorities have their own local and national reporting and accountability arrangements, and the Minister for Communities and Local Government has powers to issue standards under the Local Government Act 1999.
It is our intention ensure that the standards can deliver real improvements in care by involving a wide range of individuals and bodies in drawing up their content and subjecting any new or changing standards to full public consultation. This is necessary to ensure that the standards are widely supported by the clinical community and patients. I am sure that the Joint Committee on Human Rights will have a valuable contribution to make to this future process and would be happy to ensure that it is informed of any standards consultations.
I hope that I have been able to set out clearly where I believe the commission should have a role in promoting the principles of human rights legislation and why it should not have more specific responsibility than I have outlined. However, I take seriously the concerns that the Joint Committee has expressed that public authorities have tended to take a minimalist view of compliance with the Human Rights Act and have not used the Act positively to enhance the protection and promotion of rights.
As to what the Government are currently doing, I think that most Members of the Committee will know that the Government have already distributed guidance and a toolkit on human rights in healthcare to the NHS, which is available to the public. Independent evaluators have been commissioned by the Department of Health to assess the benefits to NHS organisations of using human rights-based approaches. The department intends to publish the evaluation before the end of this year.
In addition—and this is something close to my heart as a clinician working in the healthcare service—the Social Care Institute for Excellence published Promoting dignity within the law, which was commissioned by the Department of Health to help practitioners and commissioners of health and social care services understand how legislation protects people’s rights to be treated with dignity. It provides a concise guide to the law on discrimination and equality issues, but with strong emphasis on the centrality of a human rights-based approach to improving people’s lives.
I hope that I have given Members of the Committee a helpful review of where the Government stand on the human rights issue. I have no doubt that we will be discussing this more in due course. I very much hope that the noble Baroness, Lady Stern, and the noble Lord, Lord Low, will agree to withdraw their amendments.
I am very grateful to all Members of the Committee who have supported these amendments so eloquently and to the Minister for that extremely full reply. I have to admit that I shall need to read and concentrate on it fully in order to absorb the implications of the Government’s response. I think I heard the Minister say that something we proposed, which was supported, is of interest to him. I see some nodding coming from that quarter, so that raises my spirits a little.
However, I do not quite understand why the Government find their own legislation so frightening. The Human Rights Act is not frightening at all. It just says that people are entitled to respect and dignity, to not be ill-treated and to be listened to and that things should be fair. It is not very demanding on resources and people do not find it difficult when they understand it. The people getting this service would rather be treated in that way, and the people giving the service would feel better about themselves and their professionalism if they gave the service like that. It is a gift. It is not something to run away from or to feel gets one into all sorts of difficulties.
I hope that this very helpful debate will encourage the Minister to look at the Human Rights Act as a blessing, rather than as something fearful, and that we might at the next stage be able to secure a little more of what we hope will be in this Bill. With that enormous hope and with great gratitude to all those who have supported this amendment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Committee stands adjourned until tomorrow.
The Committee adjourned at 7.28 pm.