I give the usual reminder that, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 4 [“Regulated activity”]:

moved Amendment No. 29:

I support this group of amendments. In my view, we come to the absolute nub of the role of the Care Quality Commission and its ability to act as a quality improver of NHS and other service providers.

I reiterate what the noble Lord, Lord Warner, said. It seems to me that in the current structure of the National Health Service the commissioners should play a crucial role in demonstrating that they are the champions of the local community and that they are purchasing on its behalf for the improvement of public health. It is true that they are directly responsible to the strategic health authorities for the delivery of that, but they are simply managed by the SHAs. With the Care Quality Commission, we are proposing that there should be independent regulation by people who have no direct interest in how the budget is spent or divvied up across their patch and no direct interest in the support of the providers; we are proposing a body that can monitor independently the quality of what is being provided.

I remind the Committee of a good example. The Maidstone and Tunbridge Wells NHS Trust inquiry report clearly demonstrated that the local primary care trusts were—not to put too fine a point on it—fiddling while Rome burned. They were so busy joining themselves up and reorganising themselves from two primary care trusts into one that their functions went to pot and they were not adequately monitoring what they were purchasing in terms of the quality of care being delivered.

At a Monitor board meeting this morning—I declare an interest as a board member—I came across a good example of how things can go wrong if you monitor the providers and not the commissioners. We were having a board-to-board meeting with an acute hospital in the Bristol area that wishes to become a foundation trust. We noted that its performance on its MRSA and C. difficile targets looked dodgy last year and that it did not look as though it would be in great shape this year unless something was done about it. The trust pointed out to us that the local Bristol primary care trusts had set it a target for this year with which it could comply because the new contract would include only MRSA that was picked up in the hospital and excluded that which was picked up in the local community, thus at a stroke allowing the local hospital to meet its contractual targets.

It seems to me that, from the point of view of the Department of Health, that is perfectly okay—we want local commissioners to make local decisions about the health of their local populations. Under the old system, the strategic health authorities—right up to the Minister—were responsible for the lowering the contractual target. Under the new local commissioning arrangements, it is very directly the responsibility of the primary care trust. However, will the Care Quality Commission pick up where a local area produces more community MRSA and does not improve against its hospital MRSA targets? It will have satisfied its local commissioners but what is delivered to the local community will be of poorer quality. If the NHS reforms are to work and we are to have arm’s-length responsibility in the local commissioning bodies, it is crucial that we have independent regulation of what is purchased by local community primary care trusts.

When we talk about commissioners, we ought also to include joint commissioners of health and social care, because they, too, are responsible for what is delivered. The commissioners of services must be held just as accountable when things go wrong. We must make it clear that the whole gamut of the processes that we put in place for the system must be able to deliver and be accountable to the regulator.

I cannot better the speeches of the noble Lord, Lord Warner, and the noble Baroness, Lady Murphy. However, I should like to add some brief remarks.

The Bill is not absolutely explicit about whether commissioning is to fall within the ambit of the CQC’s regulatory duties. Reading the Hansards of the debates held in other place, I detect that the Government intend it to do so. However, if we read what the Bill actually says, we see that it refers to,

“the provision of health or social care”.

It may be that the legal interpretation of this phrase is different from the ordinary language interpretation and that it does in fact encompass commissioning. However, if that is so, it is not clear. In Clause 5(2), “health care” is defined in a way that appears to exclude commissioning and, if we look ahead to Clause 42(1), which covers periodic reviews, we see that it states that the commission must,

“conduct reviews of the provision of health care by the Trust and by other persons pursuant to arrangements made by the Trust”.

Again, “health care” in this context is defined in Clause 92(2) in a manner that seems to focus exclusively on the provision of services.

We need to be clear in our minds about why this issue is so important. We have heard a number of the reasons already. Those noble Lords who have read the evidence given by Anna Walker to the Public Bill Committee in the Commons will have been struck by her succinct analysis of why it would make no sense for there to be statutory regulation of healthcare providers without simultaneous regulation and oversight of what happens at the commissioning and purchasing end.

It could be argued that, as commissioners, primary care trusts benefit from being overseen by strategic health authorities, whose job, as we have heard, is to performance manage what they do. But performance management and assessment by an independent regulator are two distinct things. Anna Walker spoke specifically about the CQC’s power to conduct wider reviews. She said:

“The difficulty is that it is limited to providers only. What we find in health care … is that you can say to a provider, ‘Look, that service simply is not good enough’, to which their answer can often be, ‘But we are not being paid to provide any more than that’. In order to get the issue right, on behalf of the user and the patient, you have to look at a mixture of commissioning and provision; at what the primary care trusts are doing, as well as what the provider is doing”.—[Official Report, Commons, Health and Social Care Bill Committee, 8/1/08; col. 17.]

That point was endorsed by Chris Heginbotham of the Mental Health Act Commission, who pointed out that monitoring the way in which commissioning is undertaken is important as a means of ensuring that the money is available to pay for any necessary changes or improvements. I thought that that was a very telling point.

A basic further point relates to this: without good and effective commissioning, it will be next to impossible for standards of care to be driven upwards, which is part of what the CQC is there to facilitate. Performance management on its own will not do that. Moreover, as practice-based commissioning becomes more established, as it surely will, the importance of this area of the CQC’s work will most certainly increase. What the CQC will undoubtedly do in the area of commissioning, as in other matters, is to make the NHS more publicly accountable. That principle surely has to be right.

Perhaps I may correct a slip of the tongue in my opening remarks. I said that I had overdosed on Amendment No. 96, but of course there is no Amendment No. 96 in this group; I meant to refer to Amendment No. 91.

I, too, should like to speak in support of these amendments. I start by setting the PCTs in context. When the Government came to power, they inherited eight regional offices. Four years later, those offices were abolished in favour of four regional directorates. The directorates lasted for just one year and were replaced with 28 strategic health authorities. The 28 SHAs did not last long and were merged into 10 bodies. I find that quite ironic because, in 1997, there were eight regions with organisations that had very similar functions. The importance of mentioning this is that these are the bodies that are accountable for the performance management of organisations that are much lower in the hierarchy and, of course, that deliver services, so it is all of a piece.

GP fundholding was scrapped nine years later; practice-based commissioning was put in its place. In 1997, the internal market had to go and was replaced in 2005 by payment by results—a purchaser/provider split by any other name. In 1998, primary care groups were formed, but they were swept aside in favour of 303 primary care trusts. Established in 2003, those trusts were merged three years later to 152. Not all PCTs merged—those in London were left as they were for political reasons. In June 2006, the PCTs were told to divest themselves of the services that they provided but, in October of the same year, because of the uproar, the Secretary of State told them that that was not, after all, her plan.

Some PCTs are considerable providers. For instance, Hampshire has more than 1,000 hospital beds in addition to all the community services, such as district nursing, health visiting, physiotherapy and speech therapy. The Gloucester PCT has a provider budget of £100 million—considerably larger than the neighbouring foundation trust. If the Government are serious about commissioning, it seems sensible to encourage PCTs to divest themselves of their provider role, but the question remains: who is to manage those services and where are they to go? Is the Government’s long-term plan to divest PCTs of their provider role and, if so, where are those services to go? I have given the Minister notice of that question.

In its report following an inquiry into PCTs, the Health Select Committee commented:

“The Government’s numerous announcements and subsequent retractions mean that it is still unclear what its policy is”.

The committee goes on to describe the Government’s approach as “clumsy and cavalier” and states that PCT reform has,

“produced a flawed and incoherent policy that is ill judged in the extreme”.

That is very strong language for a Select Committee with a Labour chair and majority. In giving evidence, the chairman of Basildon PCT told the committee that,

“some staff have had different employer names on their payslips five times in ten years”.

The average life of a chief executive in one post is three years.

I take up the point raised by the noble Lord, Lord Warner. Is it any wonder that PCTs have not fulfilled all the Government’s expectations of powerful, well informed commissioners when they are in a state of constant turmoil? Individuals are worried about their jobs, homes, mortgages, schools for their children and continuing employment opportunities.

In addition, salaries are low compared with foundation trust salaries. On our first day in Grand Committee, we debated the salary level of the new chairman of the Care Quality Commission. We agreed that a salary sends a strong message about the importance of the position. The chief executive of a medium-sized PCT with a commissioning budget of £760 million and a turnover of provider services of £100 million receives a salary of £140,000. I mentioned that the foundation trust up the road with a turnover not of £100 million but of £30 million—less than one-third—receives a salary of £180,000. That is £40,000 more than the head of the neighbouring PCT who is to commission its services. What signal are we sending to PCTs, which are doing a much more complicated and difficult task? I suggest that it might be that they are less valuable, and certainly less appreciated.

Several clauses cover PCTs as providers of services, as we have heard, apart from Clause 42(1)(a), which is quite opaque, using the words, “pursuant to arrangements”—I cannot find anything else that might refer to commissioning. Is it the Minister’s interpretation that that is all that we need to meet the concerns expressed in the amendments? Whatever arrangements are made to regulate PCTs, it is of fundamental importance that they do not duplicate the performance management functions of the strategic health authorities, as the noble Lord, Lord Warner, said. I agree with him. Mark Britnell and his team are doing a splendid job in trying to introduce the World Class Commissioning programme and it would be a great pity if any proposals interfered with what he was trying to achieve.

PCTs have a huge responsibility. In addition, they are effectively local monopolies, buying care in any given locality and acting on behalf of users of the service. Since they are local monopolies, there needs to be some form of comparative information and competition to drive up performance. I see a parallel with the water industry, which is also a local monopoly. There, the regulator is keen to encourage competition by ensuring that there is comparative information for him to use. In addition, I realise that, as there are two parts in our system, purchaser and provider, it is difficult for a regulator to regulate providers without seeing the other half of the equation, the purchasers—a point that has been ably illustrated by the noble Baroness, Lady Murphy.

A problem in a service may well arise due to the service not being commissioned or being commissioned incorrectly in the first place, thus affecting the delivery of quality in the service. As the Bill already provides for the assessment of local authority commissioning in social care, it seems a little perverse not also to consider the assessment of healthcare commissioning. I am delighted that some enlightened authorities and PCTs are experimenting with joint commissioning, which leads to the conclusion, in my view, that joined-up regulation as mooted in these amendments is also required. I live in hope that we are pushing at an increasingly open door and that the Minister will think again and return with her own amendments.

I have some sympathy with these amendments, as my amendments in the following group might indicate. My name is not on these amendments solely because I have one or two questions for the noble Lord, Lord Warner. He said in his introductory remarks that he was completely sold on a risk-based approach to regulation. In the light of some of our discussions in the first two days of Committee, does he accept that, at least in the world of social care, there is a need for a rights-based approach?

My key question is whether his definition of “commissioning” also includes procurement. Those of us from the social care field understand only too well the difference between the two. Commissioning is an engaging process of negotiation and discussion between stakeholders and potential service providers that sets out what one would ideally like to buy. That is then handed over to the procurement officials, who get down to the realities of what is going to be bought and provided.

That process, under the European directive rules, is direct and limited. It is pretty much the same whether it applies to the procurement of social care or of street furniture; indeed, I have seen examples of contracts for social care services that, when one drills down into them, are based on templates for contracts for the procurement of street lighting. It is exactly the same process. Procurement is altogether a much harder legal process, which has much less to do with quality of outcomes and more to do with price and risk.

The noble Baroness, Lady Cumberlege, talked about PCTs becoming solely commissioners. That is already happening: Kingston PCT is in the process of divesting itself of all its provision and moving to becoming solely a commissioner and procurer of services. Whether or not that is the Government’s intention, it is becoming a reality. I would be grateful for some clarification.

Do I support a rights-based approach in social care? Yes. However, the primary objective for a regulator is to protect the public against risk. By all means encourage a regulator to promote a rights-based approach, but it is more for Governments and Parliaments to specify rights, which then become part of the day-to-day business of providing services.

I do not want to carry out a course 100 seminar on commissioning and contracting, but what I mean by “commissioning” is starting with a local needs-based assessment, specifying what services actually have to be put in place to meet those needs and contracting for those, and deciding at the end of the day to turf a contractor out when it persistently declines to provide the services of the quality, and at the price, that it has agreed. To my mind, contracting is a narrower concept than commissioning, but commissioning ultimately embraces contracting.

These amendments, which were tabled by my noble friend Lord Warner, the noble Earl, Lord Howe, and the noble Baronesses, Lady Cumberlege and Lady Murphy, rightly probe whether particular functions of the commission will apply to the commissioning of health and adult social care services. This is one of the most important discussions that the Committee will have had. Although we have tended to focus on PCTs in this debate, it is worth noting that some of the amendments would also affect commissioners of social care, making the issues considerably more complicated, as the noble Baroness, Lady Barker, pointed out.

Amendments Nos. 29, 33 and 36 would amend Clauses 4 and 5, which set out the definitions of various terms for registration purposes. Noble Lords will be aware that regulations under Clause 4 will set out the activities that will require registration with the new commission. Clause 4 makes it clear that these activities must involve or be connected with the provision of health or adult social care. Clause 5 defines health and adult social care; it is intended to be framed broadly enough to include not just those services that we know need to be covered, but those that could potentially be included in the future. Amendments Nos. 29, 33, and 36 would ensure that these definitions encompassed commissioning.

I understand noble Lords’ concerns, but I am equally concerned that such amendments would create duplication and a burden on the system. NHS commissioners are held to account and are performance managed by strategic health authorities through the Secretary of State; they are accountable for ensuring that concerns about poor performance at the operational level in PCTs are addressed effectively.

I think that we all agree that commissioning assurance is important. SHAs have the primary role for commissioner assurance in the NHS and have been working hard to build commissioning capacity locally, as noble Lords have mentioned. The commissioning assurance system, which is part of the World Class Commissioning programme, will help to deliver improved commissioning through strengthening the SHAs’ roles.

The Care Quality Commission will also play a vital role by publishing independent comparative information on the performance of commissioners for public accountability purposes. We will expect PCT commissioners and SHAs to take account of this information in determining how they can provide a better service to their population. It is clear that a service failing is sometimes a system-wide failing, not just a failing by an individual organisation. It is quite right that, in reviewing the outcomes that are being achieved through periodic reviews, or when conducting a special review or investigation, the CQC should look across the whole system, including at the effectiveness of the commissioning process. Ultimately, it will be for SHAs to address concerns and ensure that improvement plans are put in place if PCTs are not commissioning effectively.

My noble friend Lord Warner mentioned the potential scope of the CQC regarding gene therapy. There is no reason why that could not be covered by the definition in Clause 5, but I am happy to take the issue away and check that with lawyers. The consultation will define which services will need to be registered.

On the question raised by the noble Baroness, Lady Cumberlege—and I thank her for the notice that she gave me—PCTs clearly have an important job and it is for local commissioners to review their provision of community services and to consider how they should be provided. There is a range of options that PCTs can consider, including the provision remaining with the PCT, with the appropriate governance arrangements in place. The options include social enterprise, general practice, care trusts, NHS FTs, third-sector providers, partnerships with local government and other options centred on service delivery, including vertical integration and joint ventures.

PCTs ensure that community services are locally driven and offer a real opportunity for working closely with clinicians and partners to ensure that the best innovative care pathways across health and social care are developed to ensure seamless care for patients across the community. PCTs will want to consider a number of drivers when reviewing provision of services, such as improved quality, improved efficiency and ensuring that they are fit for purpose to take forward shifting care closer to home.

The 2008-09 operating framework states that, during 2008-09, all PCTs should review their requirements for community services and use this process to consider all the options for models and provision. While this is being undertaken—from 1 April 2008—all PCTs should create an internal separation of their operational provider services, business and financial rules as applied to other providers. The reviews support World Class Commissioning and ensure at least internal separation of PCT provision to help PCTs to focus on World Class Commissioning and ensure transparency in decision-making.

The CQC has a role but it is one player in the broader system and we need to ensure that we do not unnecessarily create another layer of accountability or duplication. The registration system has been designed to apply to both health and adult social care providers across the sectors to ensure that the services provided to the public are safe and of acceptable quality. A registration system for providers is right and we are consulting on this, but I do not believe at present that it is appropriate to extend that scope to commissioners when we have existing mechanisms such as the Secretary of State and SHAs to address issues of failure.

I turn now to the various amendments, which, I believe, are based on differences in interpretation. Amendments Nos. 73, 84, 85, 86, 91, 98 and 103 would ensure that the Care Quality Commission could look at PCT commissioning in its periodic reviews under Clause 42, its special reviews and investigations under Clause 44, its advice to the Secretary of State under Clause 49 and its inspections under Clause 56. As has been mentioned, these points were debated in Committee in the other place. We believe that the definitions of “health care” in Clause 5 and the provisions in Clauses 42, 44, 49 and 56, as drafted, already meet the intention behind the amendments.

Indeed, my honourable friend the Minister for Health, Ben Bradshaw, stressed that we agree the commission must be able to look at commissioning in carrying out these functions. We have also provided reassurance on this point to the Healthcare Commission and amended the Explanatory Notes that accompany the Bill to make this clear. However, I am conscious that noble Lords are seeking clarification and I am prepared to look again at the drafting where the Bill refers to healthcare and the provision of healthcare to see what can be done.

Finally, on Amendment No. 69, it is not our intention to set standards on the commissioning process. We have already set out the guidelines that we are publishing as part of the assurance system towards achieving World Class Commissioning. There is therefore no sense in duplicating this work. Standards under Clause 41 will be quality improvement tools aimed at NHS healthcare providers, whether in the public sector or private sector. We will provide commissioners and patients with additional information to help them to compare the quality of service between providers. Indeed, Clause 133 places a duty on PCT commissioners to take the standards into account in fulfilling their duty of improvement under that clause. They will also provide clinicians, other health professionals and NHS managers with a method of measuring how they are currently performing and a definitive level of quality at which to aim.

To clarify the situation for the Committee, at present I am resisting Amendments Nos. 29, 33, 36 and 69 and I propose to consider Amendments Nos. 73, 84, 85, 86, 91, 98 and 103. With this clarification, and with my undertaking to look at the definition of commissioning, I hope that the noble Lord will feel able to withdraw the amendment.

I am grateful to my noble friend for at least a little more than half a loaf in this area; indeed, it would be churlish of me not to recognise that I have about two-thirds of a loaf. However—there is always a “however”—there is a real issue about Amendment No. 29. What did the Government mean in the consultation document of November 2006 and, perhaps more significantly, in the Secretary of State’s response in October 2007, where he clearly shows in the diagram that I mentioned that there is a shared responsibility between strategic health authorities and the independent regulator? I find it difficult to believe that, for the regulator, that shared responsibility goes only as far as drawing public attention to concerns that it may have in an area such as commissioning. However, as I understand what my noble friend is saying, that amounts to the Government’s position. I cannot see how that position is sustainable if, in any part of the country, after the persistent failure—the noble Baroness, Lady Murphy, mentioned a particular case—of a PCT or collection of PCTs and their associate SHA, the regulator is unable to take more direct action than simply drawing the attention of the Secretary of State or the public to the matter.

I will look carefully at what my noble friend and other noble Lords have said and think further about Amendment No. 29, but I cannot at this point guarantee that I will not bring an amendment back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 30:

I support the amendments with a pessimistic heart, given the reception for the previous group of amendments. I support the noble Baroness particularly on Amendment No. 30, because in many cases local authorities have shut up shop and gone home when it comes to assessing the needs of older people who are, for example, returning home from hospital. Providing a list of private care services is about all that they do. I have experienced that personally.

If we are to hold local authorities to be ultimately accountable for the quality of social care that they deliver in the local area, so that we have some ability to take them to task when someone is not getting an assessment or is getting an inappropriate assessment, the Care Quality Commission should be able to look at the decisions that have been made locally that have allowed such circumstances to arise. The amendment is, therefore, attractive.

I had not intended to speak on the amendment, but I am so peeved at some of the Government’s reaction on the previous amendment that I want to draw a parallel between this amendment and Amendment No. 29. I want to return to the issue of a risk-based regulatory system. If we are running such a system, it is no good concentrating just on the provider side of the equation. You can do more damage to people in a community if you fail to assess them or you fail to assess the total need for services in that area. That is a greater risk than the failure of individual providers. We really need to get this point across. It is that failure that presents a great risk to individuals living in a community. We will do only half the job if we are to regulate, in considerable detail, the quality of the providers but then say that the assessment of needs is down to the SHAs and the Secretary of State, or the local authority and the Secretary of State, whether it is to do with an individual or a community.

We have to do better than that if we are trying to put a piece of legislation in place for the future regulation of social care and healthcare. I ask the Minister to go back to her colleagues and think seriously about this, because we cannot just leave it to SHAs. As I see it, that was never the intention in the Secretary of State’s response to the original consultation document.

Needs assessments are of course a very important part of the process of ensuring that patients and service users receive the services that they need. As was discussed in Committee in the other place, Clause 4(2) states that an activity may be a regulated activity if it involves or is connected with the provision of health or social care. Needs assessments may therefore already be prescribed as regulated activities, as they are connected with the provision of health and social care. Indeed, our suggested first registration requirement in the current consultation document—noble Lords will by now be well aware of it, as I mention it fairly regularly, if not in every speech—would specifically require that registered providers ensure that people have their health and/or social care needs assessed. I hope that that answers part of the point that the noble Baroness, Lady Murphy, was making. Amendment No. 30 therefore seems to duplicate what the Bill already allows.

This issue was discussed at some length in Committee in the other place on 15 January 2008. After the clarification given by my honourable friend Ben Bradshaw that needs assessments are within the potential scope of registration with the new commission, a similar amendment was withdrawn.

I am sorry that my noble friend is peeved with the Government. We have agreed to take away some of his amendments and consider them and I expect that, in the next month, we will be having discussions across the Committee about how we might reach a satisfactory conclusion.

Amendment No. 31 would remove the clarification that regulated activities can include the supply of staff who provide care. That question, raised by the noble Baroness, Lady Barker, is a legitimate one. Such services would include, for example, those agencies that provide domiciliary care staff, which are registered with CSCI under the Care Standards Act 2000. Clause 4 is drafted widely, as we are consulting on the exact activities that will be within the scope of regulation. We have therefore included the supply of staff who provide or are connected with the provision of health or social care, to allow us to consult on which activities should be regulated. As set out in our ongoing consultation, we had envisaged that most care services currently required to be registered with the Healthcare Commission and CSCI would continue to be covered by registration with the new Care Quality Commission. In any system there is a need to draw a boundary, but we believe that the definitions of health and social care that are contained in the Bill set a sufficiently wide boundary to work within to allow for flexibility for future models of social care. With that clarification, I hope that the noble Baroness will now be content to withdraw the amendment.

I promise not to express being peeved again. If I have understood the Minister correctly, she is saying that the assessment of needs in social care is a regulated activity but that the assessment of needs of the collectivity of a community is not. Can we be clear about the position?

The draft registration requirement, which I quoted to the Committee, is to ensure that people have their health or social care needs assessed. It states that it may be a registration requirement—the document is out for consultation. In the previous debate, I made it clear that the scope for the periodic reviews, special reviews and investigations included in the Bill could, if the commission so required, include the broader scope of whether the needs were being met in a particular area with particular requirements.

I am sorry to be persistent on this, but this is a critical issue for the Committee. Is my noble friend saying that it will be down to the commission, not the legislation, to decide whether assessment of need is included in those activities, so that there will not be a requirement on the commission to consider assessment of need as a regulated activity either individually or collectively across a community?

I am not sure that we are not going round in circles here. At the moment, the first registration requirement in the consultation document is to ensure that people have their health or social care needs assessed. That is the first requirement. It does not address the wider issue of whether a whole area is covered. That is not what this part of the registration requirements is about. I may need to consider the question and come back to my noble friend, because we are clearly talking at cross-purposes; I may not be understanding exactly what he is asking me and therefore may not be answering it adequately for him. I hope that I can remedy that.

I thank all noble Lords for participating in our discussion. I merely put it on record that I intend the noble Lord, Lord Warner, to be wound up to an absolute fury by the end.

This is a small, technical but very important amendment. The noble Lord, Lord Warner, and I were both arguing two things: that assessment of individual needs must take place and be a regulated activity; and, from that, that the commission needs to be capable of assessing population needs across the piece and communicating it to Ministers.

I must take issue with one thing that the noble Baroness said. She said that it would be the responsibility of providers to ensure that assessment of needs happened. We know that assessment is not happening today. Local authorities are simply not carrying out assessments of people’s social care needs. Why? Because they know that they cannot provide the service and what is the point of assessing something that you know you cannot meet? That becomes a self-fulfilling prophecy. We then, across the board and individually, have false presentation of the level of social care need. That is the central issue that we need to deal with and I will return to it.

On the issue of staff, I assure the noble Baroness that I have read the regulations. It was precisely because I read the draft regulations that I tabled the amendment. On page 75, the examples of what would not need to be registered with the CQC include private arrangements between individuals, such as personal care carried out by family or friends—I understand that point. However, also not to be registered is the provision of personal care by a personal assistant engaged and directed by the person receiving their support, whether self-funding or using direct payments and/or individual budgets to fund the arrangement. That will be the majority of social care provision in many places in future. So at the same time as not considering the assessment process, we are narrowing down the scope of what has to be considered in terms of provision. Increasingly, people will be given individual budgets. In a sense, I am saying that, unless we retain our focus on the medical services in the NHS, to a large extent the provision in this amendment will become increasingly meaningless.

I think that, by what is both included and excluded in this subsection, we are missing out key data and key parts of the whole process of establishing what is needed in social care. If the commission is set up under the existing wording, it will be deeply flawed and will have enormous difficulty in making some kind of strategic sense of social care across the piece. At this stage, I beg leave to withdraw the amendment, but I give notice that I shall probably have to return to both these issues.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

moved Amendment No. 32:

My noble friend Lord Warner and the noble Baroness, Lady Murphy, are fundamentally in the same position of aiming for proportionate regulation that minimises the burden on providers. Clause 4 enables the Secretary of State to make regulations that list the activities that need to be registered with the commission. As the Committee will be aware, we recently started a three-month consultation on the registration of health and adult social care providers, which includes our proposals for the list of health and adult social care services that we believe should be within the scope of registration.

While I agree with my noble friend that some activities will pose a sufficiently low risk to exclude them from regulation, we do not believe that the best way of ensuring this is by negative resolution. We want to ensure that there is maximum engagement and scrutiny in developing the registration system. We therefore propose that affirmative procedures should apply to the regulations that determine the activities that will be regulated by the commission, both the first time that they are made and any time that they are changed.

Given the impact on services to be brought into or removed from the scope of registration, it is our intention that any change to the regulations would also be subject to public consultation. The removal of activities from the list of regulated activities is a serious matter and noble Lords and Members in the other place would wish there to be parliamentary oversight and debate of these decisions. Indeed, the Delegated Powers Committee took into account the fact that the affirmative procedure will apply to these regulations; in its judgment, this broad delegation was appropriate.

Even within the scope of registration, the new commission will take a proportionate approach to regulation. This means that it will inspect some activities more than others, depending on the relative risk of carrying on those activities. We recognise that the list of regulated activities will need to be revised from time to time as new ways of delivering services are developed, as new techniques that make activities less risky are developed or, indeed, as my noble friend mentioned, as other activities are taken within the scope of the commission’s work. This might mean that an activity can be removed from the list of activities requiring registration. That is precisely why the list is to be defined in secondary legislation as opposed to being on the face of the Bill.

I hope that I have made sufficiently clear the reasons why the amendment is not necessary and that my noble friend will feel at least relatively satisfied and withdraw his amendment.

My noble friend will be pleased to know that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [“Health or social care”]:

[Amendment No. 33 not moved.]

moved Amendment No. 34:

I support my noble friend on these amendments. In my experience, health promotion is a tricky area for Governments. First, it is extremely boring. The messages are dull: a full and varied diet, lots of painful exercise, keep chaste, drink in moderation, do not overeat—or, as a businessman told me the other day, it is a question of infinite supply with limited demand. It is not too much of this and not too much of that—moderation in all things. Boring. Really, deeply boring. Secondly, people do not like to be told what to do by authority, particularly when the authority happens to be the Government. Thirdly, Governments are reticent; they are fearful of being dubbed the “nanny state”. Fourthly, it is difficult to change people’s behaviours and to maintain that change. Lastly, Governments are of course short term, with a maximum of five years, while health promotion is long term, often requiring a generation.

I speak with some passion about this subject because when I was Minister I was responsible for a government policy called The Health of the Nation. It was a delight. It was the one area in my portfolio other than maternity that was not about pain, suffering and death; it was full of razzmatazz and encouraging people to live a healthy life and do some things that they did not really want to do. That policy was interesting—it was cited by the WHO as a model for other countries to follow. When I went to international conferences, I was proud of it.

When the new Labour Government took over their responsibilities, they decided not to adopt The Health of the Nation. A few years later they had their own promotion strategy, Our Healthier Nation. It covered much of the same ground, but not sexual health. Quite a lot of momentum was lost and we are seeing an increase in sexually transmitted diseases; indeed, between 1997 and 2005 the number of diagnosed cases of HIV increased from 2,700 to almost 7,500 and chlamydia increased by more than 300 per cent.

I do not want to be negative, however. Some progress has certainly been made. It is hugely encouraging that since 1995 we have seen premature deaths from heart disease fall by over 40 per cent and premature deaths from cancer cut by nearly 20 per cent. Since 1986, life expectancy for men has increased by almost five years and for women by more than three years. So far, so good, but in other areas the nation’s health is getting worse. As we know, obesity is a real problem; it is on the increase and is a condition linked with a whole range of diseases. The proportion of men classified as obese has risen from 13 per cent to more than 22 per cent in the past 12 years. In women, the rate has gone up from 16 per cent to 24.3 per cent, or just under a quarter of the population. I fear that we are becoming the lard bucket of Europe.

I certainly do not share the noble Baroness’s view on the Government’s track record on public health and health promotion, but I have a good deal of sympathy for Amendment No. 34, which is rather more elegant than my Amendment No. 33, as is often the case with the drafting of the noble Earl, Lord Howe. It tries to get to the same point as Amendment No. 33 and therefore I have a good deal of sympathy and support for it.

I very much support the amendment. I would have thought that this was, far from being boring for Governments, extremely encouraging to them. Although it may be normal practice to get rid of something when you come to office and then perhaps reinvent it slightly differently at a later stage, the fact that you will save money if you act early and get the message across to people is to be highly recommended. I would have thought that there should be no difficulty whatever in the Government accepting the amendment. I hope that they will.

My name is not attached to these amendments, but I have a great deal of sympathy for them. I say to the noble Baroness, Lady Cumberlege, that health promotion can be deadly boring, principally when it is carried out by the NHS. When it is done by other people, it is somehow emancipated and in my experience it can be good fun, particularly when it is carried out by voluntary organisations. The same applies to social care, a great deal of which is preventive, although it may be of preventive value simply in preventing people who have a problem from becoming worse and enabling them to maintain their level of social and personal functioning.

The question to which I want to return is: who does health promotion and on what terms? In my previous job, I sat down with a bunch of voluntary organisations to try to work out some output and impact measures for their health promotion schemes. The example that I was most profoundly affected by was the person who had been given £4,000 and six months in which to achieve a healthy outcome for an ageing population. Strangely, she did not manage to. The way in which PCTs deal with voluntary organisations on health promotion is one of the most unrealistic things that I have come across. That is because voluntary organisations get the fag end of budgets at the end of the year. That is the truth.

The noble Earl, Lord Howe, was right about my Amendment No. 74. It is precisely because health promotion and prevention must be longitudinal that they are so important. The further one moves away from acute interventions, the more difficult they become to measure; one is dependent on population and international studies. It is extremely difficult for any organisation to receive funding for health promotion when all the time it is being asked to prove that by its intervention something will not happen. That is often what goes on in health promotion. That is almost as difficult as—dare I say?—persuading the world that you do not have weapons of mass destruction when you do not have them. You cannot show them if you do not have them.

That is why the noble Baroness and the noble Earl are right to site this responsibility with the Healthcare Commission. It is the one strategic body that might just have a hope of ensuring that health promotion activities are not carried out in an ad hoc and piecemeal way and that we eventually begin to get some of the data that would back up the arguments that Sir Derek Wanless made in his report.

Finally, I entirely understand what the noble Earl is trying to do in Amendment No. 35, in which he mentions “commercial terms”. A great deal of social care is provided not on commercial terms but by voluntary organisations, which subsidise it enormously. I understand what he is trying to say, although it is an unfortunate way of saying it. If he could come up with a better phraseology to encapsulate what he means, that would do everyone a great service.

For the purposes of Chapter 2, Clause 5 effectively sets the outer boundary for the kinds of activities that could be included as regulated activities in regulations under Clause 4. The definitions have been framed deliberately widely to allow scope in the future for new models of provision to be added to the list of activities regulated by Clause 4. I have a great deal of sympathy with this discussion on public health and I should like to give some examples of public health activities that might be registered and those that might be considered as part of a review.

The definition of “health care” in Clause 5 explicitly includes all forms of healthcare provided to individuals. Any public health services that provide healthcare to individuals could therefore fall within the scope of registration under Chapter 2 and might include, for example, a smoking cessation clinic or sexual health clinic. It seems appropriate for the Bill to allow for the possibility of providers of these services to be registered in the same way as providers of other sorts of healthcare. Therefore, although public health campaigns do not fall within this definition, we believe that it is important for the commission to be able to look at public health campaigns generally in respect of its other functions. For example, if a PCT runs a public health campaign, the commission should be able to consider that in its assessment of how well the PCT is meeting the needs of the local population. That is why Clause 92 clarifies that, although these kinds of activities do not fall within the definition of healthcare for the purpose of Chapter 2 only, they will fall within the definition for the purposes of reviews, special reviews, investigations and so on, thus, it is hoped, helping to remedy the “lard pot” issues outlined by the noble Baroness, Lady Cumberlege.

I hope that my explanation has gone some way towards satisfying the noble Earl and the noble Baronesses that public health services are already included within the remit of the Care Quality Commission to the right and appropriate extent.

With Amendment No. 35, the noble Earl is looking to ensure that registration of people who provide personal care specifically excludes domestic arrangements, such as where the personal care provided to a relative would not usually be on commercial terms. Although I do not wish to pre-empt the outcome of our current consultation, I expect that domiciliary care agency provision is likely to be covered, as is currently the case. I do not expect that there will be any call to regulate purely domestic personal care arrangements, such as care provided by relatives, neighbours and so on; nor do I think that it would be practical or desirable to do so. I have to tell noble Lords that my next words are underlined in my briefing notes, so I shall try also to underline them in my remarks. As such, although I understand and agree with the underlying point, I think that the amendment is probably unnecessary. With that clarification, I ask the noble Earl to withdraw the amendment.

Will alcohol and drug risks and health education in schools come under this provision?

Providers of services, such as smoking cessation clinics or sexual health clinics, could be registered in the same way as any other sort of health and social care that comes under the scope of the Bill. Campaigning work on issues such as obesity and so on could also be included within the scope of the Bill but not in the part that concerns the delivery of direct services. Therefore, the answer to the noble Baroness is that those campaigns could be included if the commission decided that it wanted to look at their effectiveness.

I am grateful to the Minister for that largely reassuring reply. However, I shall have to read it because it seemed to me that part of what I understand as public health work can be approached only in a rather roundabout way by the commission and I am not sure that that quite meets the concerns expressed by some noble Lords in this debate. Nevertheless, the noble Baroness’s remarks throw some useful light on this area. I am grateful to all those who have spoken and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 and 36 not moved.]

Clause 5 agreed to.

moved Amendment No. 37:

I, too, have put my name to the amendment, but it would be tiresome for the Committee were I to speak to it at any length. The noble Baroness, Lady Stern, has sketched the background to the amendment and indicated that we are awaiting the Government’s thoughts. I am also aware that the Equality and Human Rights Commission, while giving its general support to the amendments, has indicated one or two reservations to suggest that we may not have got the wording quite right yet. It has also indicated that it is deep in discussion with the Government with a view to getting the wording quite right.

Given that to that extent we are somewhat shadow-boxing as we await the Government’s amendment, it would be wearisome for me to detain the Committee any longer, save to indicate my support for the noble Baroness, Lady Stern. We are concerned that there should be an amendment to the Bill in this area and in this regard. We eagerly await the amendment that the Government are committed to bringing forward and we shall obviously engage with it at that point.

I support this amendment, on which I shall make a couple of points. I do so as a commissioner on the Equality and Human Rights Commission. I am particularly pleased to see that Amendment No. 38 would bring private care homes within the scope of the Act where social services have arranged the care, but I hope that the Government will not miss this legislative opportunity to clarify when private care homes will be subject to the Act and to take into account the most vulnerable people with the greatest needs, such as those suffering from dementia, who are placed in care homes by the NHS. They are either totally funded by the NHS, which is a statutory function under Section 3 of the National Health Service Act 2006, or they fund their own social care and accommodation with their registered nursing care being funded by the NHS, also under Section 3 of the 2006 Act.

It is important that the Government should include both NHS and social care services in order to avoid any more ambiguity. I say that because ambiguity and confusion have been the name of the game for a long time. While it is welcome that the Government are going to tackle the problem of YL and the Leonard Cheshire case, it is important that no more loopholes are left once that has been done. It would be excellent if the Minister could assure us that both areas will be covered.

Perhaps I may make a few remarks based on my experience before and after the 1997 election of introducing the Human Rights Bill, as it was, to incorporate the European Convention on Human Rights. At the time I was a policy adviser for the then Home Secretary. It was never intended that public services provided by private providers should be excluded from the Human Rights Act and the incorporation of the convention through that Act. This is a good example of unexpected consequences. When the legal judgment was made, it came as a real surprise to many of us. It is therefore important that the Government should go back to where they thought they were when the Human Rights Act was introduced. That Act was a great contribution by this Government, who should put right what was never intended to be wrong at the time.

These two amendments relate to the application of the Human Rights Act to care provided in private settings. Many noble Lords will recall the case that has been mentioned of YL and Birmingham City Council. The Appellate Committee of this House adopted a narrow interpretation of the concept of public authority and the Human Rights Act. Of course it is unlawful by virtue of that Act for a public authority to act in a way incompatible with the convention, a right that is drawn down from the European Convention on Human Rights and on which, thanks to the Act, we may now rely in our courts.

In another place, my honourable friend the Minister related that it was the Government’s intention that the term “public authority” should be interpreted reasonably broadly so as to encompass the provision of most public services, regardless of who provides them. It was certainly the Government’s intention, and a point on which my noble and learned friend the then Lord Chancellor argued strongly in his intervention on YL, that this should include the provision of publicly arranged care and accommodation in an independent sector care home. Regrettably, their Lordships on the Appellate Committee did not share the Government’s interpretation of the Act to that effect.

As the Committee may imagine, I am therefore most sympathetic to the intention behind the amendments. We share the concerns expressed by the noble Baroness, Lady Stern, on behalf of the Joint Committee on Human Rights, the noble Lord, Lord Low, the noble Baroness, Lady Greengross, and my noble friend Lord Warner about the effect that this narrow interpretation is having and we are determined to rectify it. I am therefore pleased to confirm that we are currently finalising a government amendment to the Bill on this subject, which will make all care homes directly subject to the Human Rights Act when providing publicly arranged care and accommodation .

In answer to the question raised by the noble Baroness, Lady Greengross, about whether health is included, we agree that publicly arranged healthcare also needs to be covered. However, I am not in a position to discuss the details of the amendment today. I hope that we can discuss this further when we get to the amendment.

My officials have been discussing the drafting of the amendment, within government and beyond—“beyond”, I am told, includes noble Baronesses and others—to ensure that it achieves exactly what we want it to while causing no unintended consequences. Drafting an amendment of this limited nature has proved an exceptionally challenging task. The Government’s amendment will seek to insert a new clause towards the end of the Bill. We therefore have the luxury of being able to have this debate today and then, when we table the amendment—I am assured that it is absolutely imminent—we will have plenty of time to debate it later in Committee.

However, I need to reiterate two points. First, the Government are also committed to the principle that the scope of the Human Rights Act should not be extended to cover care that is privately arranged by individuals and their families without the involvement of the state. The European Convention on Human Rights places limits on the powers of the state in relation to individuals, so, although the state must ensure that individuals respect each other’s rights, that is not the same as placing private individuals and enterprises directly under obligations that were designed to apply to Governments. It follows that the Human Rights Act is not the appropriate framework for regulating purely private contracts.

Secondly, I stress that any amendment to the Bill can address only a limited part of the complex issues about the scope of the Human Rights Act. They go far wider than only care homes and it is important that we find a solution that is lasting and effective. My honourable friend the Minister of State for Human Rights therefore intends to address this wider issue in the context of the consultation process on the British Bill of rights and responsibilities and to draw on a wide range of expertise in that process in a genuine spirit of consultation. Therefore, our amendment to this Bill will be a limited solution pending a much wider examination of this issue.

My colleagues, my officials and I stand ready to discuss our amendment before we return to this issue. We must make sure that we get a provision of such importance absolutely correct. I am therefore in a happy position to invite the noble Baroness to withdraw the amendment in expectation of government action very soon.

I thank all who have spoken. I am grateful to the noble Lord, Lord Warner, for reminding us that it was never intended that the definition of public authority should be narrowed in this way. I am grateful to the noble Lord, Lord Low, for his support and to the noble Baroness, Lady Greengross, for feeding in the views of the Equality and Human Rights Commission, which has been very supportive on this issue. I am very grateful to the Minister for what she said. I look forward with enormous anticipation to seeing this government amendment and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 38 not moved.]

Clause 6 [Requirement to register as a service provider]:

moved Amendment No. 39:

I would like to take up the points made by my noble friend. In the light of this being a probing amendment and particularly in the light of other independent bodies, I am concerned about the position of independent midwives, of which there are roughly 150. These exceptional midwives offer a really remarkable service for some very vulnerable women. They were the model that I used when I drew up the policy for the report, Changing Childbirth. I want an assurance from the Minister that, to repeat the phrase that she used in an earlier debate, there are no unintended consequences that might result in these remarkable women being put out of their jobs and their profession due to the Bill before us. If she could give me that assurance, I would be grateful.

Clause 6 currently provides that the person required to register is the,

“person who carries on a regulated activity”.

This may be a natural person, a partnership or a company. For example, a company may run a chain of care homes offering nursing care, while an individual may provide nursing care and accommodation to two or three vulnerable adults. If we assume that nursing will be a regulated activity, both large and small providers of the regulated activity would require registration.

In relation to primary care, Chapter 4 of our current consultation on the registration system sets out how we think the registration of primary care might work, who might be required to register and the information that the new commission might be able to draw on when making decisions. Obviously we would welcome input from noble Lords during this consultation. At the moment, we are not saying that all primary care providers will be included in the remit of the commission; we are simply committed to considering this further and are consulting on the options. The Bill as drafted does not make it an offence to work for a person or organisation providing care that is unregistered, nor does it make it an offence to deliver care under the employment of a registered person or organisation but without being registered separately. The purpose of the offence of carrying out a regulated activity without registration is to hold a person, whether an individual, a partnership or an organisation, accountable for registering with the commission.

I have to say that I do not know the answer on the position of independent midwives, but I assume that they will come under the remit of the regulatory framework. However, I do not have before me the detail of how that would work, so I shall address the point and write to Members of the Committee about it. I am certain that that will be the case, but I do not have the words in my briefing to explain exactly how it will work.

I am grateful to the Minister for that reply. Rather as I thought would be the case, the Government cannot yet commit themselves to anything definite in this area. Nevertheless, I take note of what she said and I have no doubt that the noble Baroness, Lady Finlay, will be suitably appreciative. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clauses 7 to 12 agreed to.

Clause 13 [Cancellation of registration]:

moved Amendment No. 40:

I could not resist adding my name to this wonderfully brave amendment which would, at a stroke, give strategic health authorities a backstop when they are beleaguered by local politics and would like to intervene more than they feel able to do for all kinds of local reasons. If you had the commission coming in and saying, “Well, it has got to happen”, it would be wonderful if PCTs thought they might lose their ability to carry on purchasing lousy services and that something might happen if they did not improve.

I am very attracted to the amendment but I am not optimistic that the Government would be entirely happy with it. It would have a wonderful impact on the providers and purchasers if, through the Bill, the commission had strong intervention powers in trusts and foundation trusts. This kind of intervention power on the commissioning side would be a miracle.

I am drawn to the amendment and I was considerably persuaded by the case made by the noble Lord, Lord Warner. While not completely connected to the points he made, perhaps I may spend a moment or two on Clause 14 which, at first sight, appears to contain some puzzling provisions. I have been prompted to raise these questions by the Relatives and Residents Association, to whose work I pay tribute.

The intentions behind the clause are difficult to understand. It deals with what one might term slow suspensions—that is to say, suspensions that will not take effect pending written representations and any appeal to the Care Standards Tribunal of a decision to suspend. It is difficult to see the circumstances where this power would be invoked given that it will potentially not take effect for many months. There is a requirement in the clause to specify a time period for the suspension—for example, three months—but what happens if an appeal to the Care Standards Tribunal takes seven or eight months to be heard after the initial decision to suspend?

If there is a risk of harm to anyone—let us say the residents of a care home—then it is likely that the regulator would choose to use the urgent procedure provided for in Clause 27. Once a notice is served under that clause, it takes effect immediately. There is then provision for an appeal to the Care Standards Tribunal. The threshold in Clause 27 appears to be relatively low, which raises the question of what the threshold is under Clause 14. Ofsted has the same test as under Clause 27 with regard to childminders and daycare providers in the sense of reasonable cause to believe that there will be an exposure to risk. However, the Ofsted regime is further qualified by a statutory purpose to reduce or eliminate risk or to allow for an investigation to take place. The Ofsted suspension period is limited to six weeks plus a further six weeks, and then a continuing suspension if matters are beyond Ofsted’s control—for example, where there is an ongoing police investigation.

Can the Minister elucidate the intention behind Clause 14 and the kinds of circumstances where it might be thought appropriate for the CQC to invoke it? It would appear that the suspension applies to the entire registration. Is that correct or will there be the option to apply it to part of a service? What would need to happen to the residents of a care home if a service provider’s entire registration were to be suspended? I am struggling with the thought of what might happen to an acute hospital trust if its registration were to be suspended in full under the clause or, for that matter, Clause 27. It would be helpful if the Minister could take us through how the provisions are intended to work.

We of course expect the CQC to consider taking enforcement action where providers fail to improve to meet safety and quality requirements that are currently the subject of our consultation. It will have a range of powers at its disposal, including the cancellation or suspension of the registration of a provider or registered manager if necessary.

The review function is additional to the registration and enforcement system, reporting on the quality of services and looking into specific or general matters in relation to statutory health and adult social care services. Of course, if the commission uncovers significant safety or quality issues when carrying out a periodic or special review of a registered provider and the matters are covered by the registration requirements, the commission will, as a last resort, be able to cancel registration. Amendment No. 40 is intended to ensure that.

That is not, however, the only way that problems uncovered in reviews can be addressed. The comparative information that the commission will publish as part of its review function will not only help the public, patients and users of social care services to make informed choices about who should provide their care; it will also prompt local authorities and PCTs to address poor provider performance through their contracting arrangements.

Where a body is found to be failing in its role of commissioning care, the Care Quality Commission will of course publish those findings and be able to give advice to the Secretary of State. In England, the performance management of NHS bodies is the responsibility of strategic health authorities, while the Care Quality Commission can recommend special measures in relation to local authorities. Those are important roles in the system and will play an important part in driving forward quality improvements.

Rather than necessarily cancelling a registration outright, there will be occasions when it is more appropriate for the Care Quality Commission to suspend the registration of a manager or a service provider in respect of a regulated activity for a specified period, so that a breach of a specified requirement can be resolved. Two routes to suspension are set out in Clause 14. Under the first route, the Care Quality Commission will have to give the provider or manager a notice in writing of its intention to suspend the service. The provider then has the right to make representations before the commission decides whether to continue with its proposal. If it continues with suspension, the provider will have the right to appeal to the tribunal before the suspension takes place. The noble Earl is right to say that there will be time implications there. Should the breach that led to the suspension remain unresolved at the end of the suspension period and the associated risk continue, Clause 14 allows the commission to extend suspension for a further fixed period.

We anticipate that the non-urgent route of suspension will be most appropriate where the provider and the commission agree to a period of suspension—especially as it is preferable to cancellation of registration. Therefore, there would not be appeals to the Care Standards Tribunal. That should be the standard procedure; it allows the provider a chance to make representations before action is taken. That should both encourage issues to be resolved before costly enforcement action is taken and protect the provider’s rights by giving them access to due process.

The Bill also allows for an urgent suspension procedure under Clause 27. The commission will be able to use that expedited route when it has reasonable cause to believe that unless it acts, people may be exposed to the risk of harm. The CQC will use that when a provider is not only failing to act within the registration requirements but exposing people to the immediate risk of harm.

Suspension is different from de-registration in that a suspended provider or manager will remain registered with the new commission. That is to ensure that once a suspension has been lifted the person will not need to re-apply for registration. That will avoid unnecessary delays for service users and for the provider. Clause 2 means that the CQC must balance the risks of its actions against the risks of allowing dangerous services to continue.

I hope that my noble friend and the noble Baroness, Lady Murphy, are now reassured that Amendment No. 40 is not required for the Bill to achieve their intention. I hope that I have also been able to explain clearly the purpose behind Clause 14.

I have listened carefully and I will study my noble friend’s remarks, but I am still rather puzzled about whether, in my terms, the commission can administer the red card. She seems to be saying “yes”, but I cannot quite reconcile that with her earlier remarks on Amendment No. 29, which seemed to exclude commissioning as a regulated activity. We will have to speak afterwards about what the terminology used particularly in Clause 4(2) actually means. Does it or does it not include commissioning—in which case, who has the final say? That is the purpose of Amendment No. 40.

I am happy to withdraw the amendment at this stage, but I feel that there is a need to seek greater clarification than we have at the moment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clauses 14 and 15 agreed to.

Since up to this point no Division has been called, I beg to move that the Committee do now adjourn for 10 minutes.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was adjourned between 5.37 and 5.47 pm.]

Clause 16 [Regulation of regulated activities]:

[Amendments Nos. 41 and 42 not moved.]

moved Amendment No. 43:

I had not wished to intervene at this stage and I am waiting for a later part of the Bill, but I cannot understand what the noble Earl is driving at. The criticism that I have heard from people within the care profession is that there is an insufficiently clear description of what would constitute good practice within care homes. As I understand it, the public look to Parliament to set out clearly the direction that the commission should be taking. All the examples which the noble Earl called on in arguing that the Government have gone too far were examples that the public would expect them to act on—particularly in guiding the commission on what emphasis it should give to what the public regard as most important.

I support my noble friend. At Second Reading, from these Benches we put a lot of emphasis on a light touch for regulation and proportionality. That was the Government’s theme in earlier debates. I am anxious that we do not have a heavy-handed regulatory body. At Second Reading, I remember giving your Lordships an example of where, in the past, we had prescriptive regulations on issues such as the size of rooms, whether they should be en-suite and whether they should be doubles, singles or whatever. The result was devastating and a large number of nice little homely homes had to close. In the end, the Government had to rescind those standards because they realised what damage was being done. We are seeking to ensure that there is no repeat of that disaster.

I wonder whether I might return on that point. I do not know the detail of these issues in the way that the noble Baroness, Lady Cumberlege, does, but she talks about room sizes. I do not know the answer and I am sure that the Government will explain, but perhaps they rescinded the standards because too many rooms were being removed from the market. That would not necessarily mean that the conditions in which people occupied those rooms were suitable. I would argue that the issue of room size is extremely important. When one goes around care homes—which I am sure the noble Baroness has done—and talks to people who live in them, one thing that they comment on is the size of their room. The Government may have rescinded the rules because they were worried about the lack of provision arising from controls, but I should have thought that room size was an extremely important issue of principle.

Perhaps I may help on a point of clarification. Those requirements were debated at considerable length during the passage of the Care Standards Bill and they came from some building regulations which pre-dated that Bill by a very long way. Much of the initial discussion was fuelled by the issue of the dignity and privacy of individual users. I think I am right in saying that those requirements were rescinded because the drug and alcohol charities entered into discussions with the department and made a strong and powerful case that having people with drug and alcohol problems in seclusion in individual rooms was not conducive to therapy.

The noble Baroness, Lady Cumberlege, is right that we should ensure that the requirements are proportionate. Again, that points to the importance of distinguishing between different client groups and different forms of social care. We have gone on about that at considerable length throughout this Committee stage, but it is a point that cannot be stated too many times or with too many illustrations in our debates. Therefore, it is helpful that this matter has been brought up.

The amendment moved by the noble Earl, Lord Howe, aims to limit the amount of regulation imposed on providers of regulated activities by limiting the scope of the regulation-making power under Clause 16. Subsection (1) gives the Secretary of State the power to make regulations under Clause 16. Given the significance of this power, we are, as noble Lords are aware, consulting on the registration requirements.

I turn, first, to Amendments Nos. 43 and 45, which would alter the clause to state that regulations may make provision about who is not, rather than who is, fit to carry on or manage a regulated activity or work for the purposes of a regulated activity. Clause 16(1) already enables the Secretary of State to make regulations about any requirements, which could be both positive and negative attributes in relation to regulated activities, and this will ensure that the regulation-making power gives sufficient flexibility for the regulations to impose appropriate requirements.

Subsections (2) and (3) of Clause 16 give a more detailed indication of our intentions for regulations under subsection (1), making it clear that we intend these to focus on quality and safety requirements. Regulations may, for example, make provision stating that persons on the protection of vulnerable adults list are not fit to carry on or manage a regulated activity. They may also make provision stating that a person working for a provider of a regulated activity must have appropriate qualifications for that activity.

We believe it is vital that we make the regulations, whether positive or negative, as clear as possible so that providers and managers are clear about who is and who is not fit, and that is what the Bill as drafted allows. This is consistent with the wording in the Care Standards Act 2000, under which social care providers and private and voluntary health providers are currently regulated.

Amendments Nos. 44 and 46 to 49 probe the meaning of the matters in Clause 16(3). I appreciate the desire to ensure that providers have sufficient freedom to deliver services in a flexible manner and to reduce the burden of regulation. However, it may be worth drawing attention to the fact that subsection (3) sets out our intentions for regulations under Clause 16, rather than being a fixed list of the aspects that will definitely be included. Bearing in mind the remarks of the noble Baroness, Lady Cumberlege, it is not our intention to make regulation very detailed or overprescriptive.

As noble Lords know, we are currently consulting on the scope of registration and the proposed topics for the registration requirements. This process will be fundamental in determining which of these aspects are covered in the regulations. That said, I believe that all the aspects set out in this clause could quite properly be included in regulations. I am sure noble Lords agree that it is vital that regulations clearly set out the requirements that providers must meet to deliver safe services of appropriate quality. For example, the clause sets out our intention for regulations to make provision on the manner in which the regulated activity is carried out. Under that provision, we propose a topic of managing medicines safely in our consultation document.

One of the aims of the new registration system is to ensure a more proportionate, risk-based approach to regulation. Regulations under Clause 16 are not intended to be overly prescriptive. They will be focused on essential safety and quality issues across health and social care. The regulations will require providers to manage risks to the safety, quality and governance of the care they provide and address the concerns of those who use the services. We do not intend to specify every last detail of how a provider must operate.

The commission itself will be responsible for developing the more detailed guidance against which it will check that providers are complying with regulations. Providers themselves must be able to decide how to deliver services to achieve the best outcomes for those who use the services. Given those assurances about our intention in Clause 16, I ask the noble Earl, Lord Howe, to withdraw his amendment.

I am delighted to say that my probing amendments succeeded in their purpose, because that was a very helpful reply from the Minister. I say to the noble Lord, Lord Campbell-Savours, that I do not for a minute dispute or argue with the public’s expectation that Parliament should be the body that looks at and decides on the broad requirements for registered providers. Of course Parliament should be accountable in that sense and there should be regulations. The Minister has helpfully confirmed what I had hoped: that prescriptiveness is not in the Government’s mind and that the main thing that matters is safe services of appropriate quality, as she said.

I hope that we will get a set of regulations before us that give a clear steer to the commission to exercise its professional judgment in individual cases, but that we will not try to shoehorn every provider into a prescribed mould, because that is futile. As my noble friend Lady Cumberlege said, following the passage of the Care Standards Act we found how damaging that approach was. Very good care providers were being penalised and in some cases had to close for no reason other than that the room sizes or some technical measures failed to meet the laid-down prescription. In many cases, it was a tragedy that that should have been allowed, for such reasons are by no means the only measures of good care in any individual instance.

I thank the Minister once again for her reply and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 44 to 47 not moved.]

moved Amendment No. 48:

I am one of the supporters of Amendment No. 48. When my husband was in hospital when he had serious problems resulting from diabetes, Parkinson’s disease and post-stroke, he had great difficulty in swallowing in the latter years of his illnesses. On one occasion when he was admitted to hospital, the hospital had just gone over to a housekeeping policy for serving patients food. The woman who served his meals was helpful and interested. I told her why my husband had swallowing problems. She said, “The hospital tells us nothing”. Surely the people in charge of serving meals should know what the patients’ needs are so that they are given suitable food and thickened drinks when necessary.

Last year at the Royal College of Nursing’s annual congress in Harrogate, nearly half the nurses revealed that they do not have enough time during their working day to ensure that patients get good nutrition. Just under half the hospital nurses said that the lack of availability of food outside of mealtimes was a factor, while 46 per cent of the 2,000 nurses surveyed nationwide said that generally there are not enough staff to ensure that patients get the help needed to eat and drink. The executive director for nursing at the RCN said,

“Good nutrition and hydration are vital for all of us, but they are even more important for people who are ill”.

In the days when there were a matron and sisters on the wards to supervise and there was not a habit of nurses chatting around the nurses’ station, patients’ nutritional needs were part of nursing. I am sure that most of us have seen trays being left out of reach of patients; food being left while patients are asleep and then taken away; patients not being helped into a suitable position to eat or drink; and unsuitable food being given. I am sure that much more can be done to enable trained volunteers to help in this important matter, but volunteers should be co-ordinated with organised rotas to help nurses. If patients are to get better quicker, those nutritional needs should become a priority. I hope something will emerge from the amendments which will be acceptable and will help all patients who need good nutrition.

I listened to what the noble Baroness, Lady Masham of Ilton, said, but her argument is more about the availability of specialist foods for patients who have particular difficulties. I refer to my experience in this matter. I support this eminently sensible amendment, but there is another side to the story.

It has become very easy copy in this country to knock hospital food. It is one of those things that turn up in newspaper articles because people are very ready to make complaints. People who have spent long periods in hospitals, as I have—sometimes for months on end—often have a very different experience of hospital food. When you are in hospital, you learn how to work the menu. You learn what are the good meals and what are the bad meals. I have never been in a hospital where I found the food deficient. Admittedly, when I was away at school in the 1950s and early 1960s, I became used to school breakfast, lunch and dinner menus. However, the point is that in hospitals conditions are very much the same in the sense that people can eat well if they choose to do so, but many people choose not to do so. They refuse to eat.

When I was in hospital, I found that people shunned their food because they did not want to eat. Their meals were often ordered by visiting relatives who filled in the forms. They were often filled in by nurses who asked someone what they wanted. That food was delivered to the patient and he or she did not eat it for all sorts of reasons, perhaps because they had been given food by their relatives who visited that day. To measure food on the basis of how much is returned uneaten to the kitchens is not a very good way of assessing whether the food in hospitals is nutritious. I accept that there should be standards and that this is an eminently sensible amendment about nutritional standards. Hospitals should comply with standards set down. But, equally, it is wrong of us to presume that in most hospitals in the United Kingdom standards of food are very poor; I completely disagree.

I shall speak to Amendments Nos. 54 and 55, which are in this group. My noble friend Lady Knight ably and persuasively drew our attention to an issue which is of immense significance for the health of the nation. I should like to supplement what she said with a few rather sobering statistics.

According to the National Institute for Health and Clinical Excellence, at least 2 million people in the UK are undernourished. That figure is higher in absolute terms than that for Morocco, Libya or Algeria. The cost to our society is undoubtedly immense. The number of people admitted to hospital with a diagnosis of undernutrition has increased from 70,000, 10 years ago, to 130,000 in 2006-07—a rise of 85 per cent. The overall cost to the NHS is estimated at £7.3 billion a year. Only about half this cost arises in hospitals; the remainder arises in community settings—for example, from the care required for the undernourished living in residential care facilities.

The guidance issued by NICE has been implemented, as so often, in a very patchy way. It recommends that all patients are screened for nutritional risk on admission to hospital, as well as on first registration at a GP practice. However, NICE itself has estimated that only about 30 per cent of patients are screened on admission to hospital, while a survey by BAPEN, the British Association for Parenteral and Enteral Nutrition, published in April 2008, found that more than one in 10 hospitals does not have a nutrition screening policy in place. I have heard it said that compliance with NICE guidance in community settings is likely to be far lower than in secondary care, but that is only surmise. Hard information on this is not readily available.

Undernutrition can occur at any age, of course, but as my noble friend has indicated, it is particularly associated with the elderly. Like my noble friend, I pay tribute to Age Concern and its campaign called “Hungry to be Heard”, which highlights among other things the greatly increased prevalence of malnutrition among patients aged over 80 who are admitted to hospital compared with those aged under 50, and how important it is to obtain the views and experiences of elderly patients if compliance with the standards is to be properly assessed.

The effects of malnutrition are well documented: prolonged hospital stays, delayed recovery, an increased risk of contracting healthcare-associated infections and poor respiratory function. In some studies, the mortality rate among undernourished patients is up to eight times higher than that among well-nourished patients. But it is a condition that is relatively easy to identify. The Malnutrition Universal Screening Tool is available for healthcare professionals to use, and once identified as being at risk, patients in hospital or vulnerable people in the community can be supported in their nutritional needs by a wide variety of measures. These range from simple steps such as red tray schemes and protected mealtimes; enteral nutrition, which means specially formulated foods that are taken by mouth or tube directly into the digestive system; to the most intensive parenteral nutrition involving tube feeding directly into the blood.

To their credit, the Government have done quite a lot to tackle undernutrition in recent years. A nutrition action plan was published last October and some useful work has been conducted by the National Patient Safety Agency. Nutritional care is also prioritised in the core standards monitored by the Healthcare Commission. Core Standard C15 B ensures that an individual’s,

“nutritional, personal and clinical dietary requirements”,

are being met. However, there is some evidence to suggest that this requirement is insufficient. In 2006-07, none of the 34 NHS trusts which discharged the highest number of patients in an undernourished state failed the Healthcare Commission’s Core Standard C15 B. Conceivably this may be because the way that adherence to the standard is measured is by providers assessing themselves.

The Government have undertaken work to improve the nutritional care offered to patients, but the evidence we have suggests that the problem is getting worse, not better. The Bill presents a valuable opportunity to oblige health and social care providers in primary as well as secondary care to put a higher priority on nutritional standards. The intention behind my amendments is that nutrition should be placed on the same statutory footing as tackling hospital-acquired infections. I am well aware that Ministers have said that they intend to use the powers in the Bill to tackle undernutrition, but there is a good case for being explicit about this. A consultation is currently running on the possible registration requirements, which includes a specific registration requirement on nutritional care. The problem is that the consultation does not commit the Government to taking action. It is entirely possible, given the difficulty encountered by the Healthcare Commission in monitoring adherence by providers to the current core standard, that the registration requirement on nutrition may be abandoned following consultation. We just do not know.

For all those reasons, the amendments deserve the support of the Committee. I beg to move.

I am delighted to support my noble friend Lady Knight, who has been a doughty fighter on this subject. On every occasion she has tried to ensure that this matter is brought to our attention and that the food in hospitals is improved.

I shall speak to Amendments Nos. 54 and 55. It is very disappointing that a voluntary organisation such as Age Concern should find it necessary to fight a campaign for nutrition in hospitals. As my noble friend Lord Howe mentioned, its report is very good indeed and I congratulate Age Concern on it. If only 45 per cent of all hospitals have taken action to tackle the shocking levels of malnutrition among older people, it is necessary to draw the attention of the nation to this subject.

I cannot understand how one hospital can have delicious food and another uneatable; how one hospital can ensure that patients are properly fed and another ignore the importance of good nutrition. Good nutrition is not only essential for good recovery but is one of the very few things that punctuates a boring hospital day and is nearly always a talking point with visitors. My experience is not quite as black as that of my noble friend Lady Knight. I remember being involved with a hospital where the food was so good that the staff and others chose the hospital catering service for their wedding receptions at competitive rates; and yet I know there are others where the patients are so hungry that they have to phone out for pizzas to be delivered.

As with so many other things, the Healthcare Commission takes the subject seriously. It sets two standards in accordance with the Better Hospital Food programme, which was introduced in May 2001. This programme outlines six requirements which should be implemented. In addition, the programme includes further advice and guidance relating to a balanced diet, a splendid NHS recipe book and national menu design. The Healthcare Commission’s core standard C15 A states that where food is provided, organisations should have systems in place to ensure that patients are given a choice, that food is prepared safely, and that it provides a balanced diet reflecting the needs, preferences and rights—including faith and cultural needs—of its population.

It also requires that the preparation, distribution, handling and serving of food is carried out in accordance with food safety legislation and national guidance, including the Food Safety Act 1990, the Food Safety (General Food Hygiene) Regulations 1995 and EC Regulation 852/2004. So we are not short of guidance or regulations. The 1995 regulations require that organisations should ensure that the preparation, distribution, handling and offering for supply of food are carried out in a hygienic way. That seems sensible. Further, the organisation should identify any step which is,

“critical to ensuring food safety and ensure that adequate safety procedures are identified, implemented, maintained and reviewed”.

The Healthcare Commission’s second core standard, C15 B, states that where food is provided healthcare organisations have systems in place to ensure that patients’ individual,

“nutritional, personal and clinical dietary requirements are met, including, where necessary, help with feeding and access to food and drink 24 hours a day”.

In order to do this, some trusts are using the Essence of Care benchmarking tool, which includes food and nutrition. This is practice-based and used by nurses to ensure that patients who are already malnourished or at risk of becoming so are identified early on. It is optional, and some trusts are using other benchmarking systems. The commission standards also recommend protected mealtimes, when all non-urgent clinical activity should stop. During these times, patients should be able to eat without interruption and staff should be free to offer assistance.

Therefore, although much is happening, there is still frustration that despite all the advice, guidance and regulation, a real problem exists here. Ultimately, this is a professional problem and it is about management. It relies on nurses being vigilant, caring and watchful, and ensuring that patients are treated with dignity and properly fed. However, I agree with the noble Lord, Lord Campbell-Savours: choice of food is a very personal thing and sometimes drugs, anaesthetics and treatment can alter one’s taste. Fast throughput of patients means that meals may have been chosen by the previous incumbent of the bed or, as we heard this afternoon, by relatives, and they are not always the choice of the individual.

The Healthcare Commission states that on the whole the systems—the training, hygiene and so on—are in place. In my view, it is the professionalism—the delivery on the wards—that is lacking. It is my belief that regulation should have a light touch, as I have mentioned several times during our debates. I would not normally agree that what is essentially a management problem should be enshrined in legislation. However, I think that the concern is so great that there is a role here for the regulator. The Care Quality Commission will throw a spotlight on this subject. It will call people to account and make trusts think deeply about what can only be called a lack of good nursing care. I am sorry to say that because I have long been an admirer of the nursing profession, but in this area I think that there is a lack of professionalism. Yesterday, I visited a friend in hospital whose wife said to me, “The cure is great. The care is wanting”. Nutrition is about care, but it also stimulates a cure and a speedy recovery. I strongly support the amendments.

Having listened to the debate, there is no doubt in my mind about the strength of feeling on this issue. I cannot emphasise enough that I share noble Lords’ concerns. As the noble Baronesses, Lady Knight and Lady Masham, know, I take this matter very seriously.

A great deal of work is currently being carried out on the ground in relation to nutrition and hospital food, as was very well described by the noble Earl and the noble Baroness, Lady Cumberlege. For example, the Government have invested £67 million in care homes to improve the care environment, including dining rooms and support for residents at mealtimes. They are also working closely with the regulators, CSCI and the Healthcare Commission, to make dignity a key part of the inspections, because dignity is also part of this debate. We very much welcome the Healthcare Commission’s decision to inspect 25 acute hospitals to check compliance with dignity and nutritional standards.

The department is using a number of different tools to tackle this important issue, including the current core standards, the Nutrition Action Plan programme and the NHS operating framework, as has already been mentioned. However, there is no excuse for people saying that they are too busy to assist at mealtimes. The introduction of protected mealtimes is a key tool in making certain that the right level of attention is given to ensuring that patients who can do so will enjoy their meals, while those who need assistance will receive it without interruption. It is unacceptable that some of our most vulnerable older patients, service users and people with special requirements do not receive the help they need in eating food and that efforts are not made to ensure that they enjoy it. It is an issue with which we are seized.

We have proposed a registration requirement to be made under Clause 16, which I hope will help reassure the noble Baronesses, Lady Knight, Lady Masham and Lady Cumberlege, and the noble Earl, Lord Howe, that we can achieve the intention behind Amendments Nos. 48 and 54 without amending the Bill. Our proposed requirement 5 is,

“making sure people get the nourishment they need”.

Under that proposed requirement, providers of care would have to:

“Ensure, where meeting nutritional needs is part of the service, that people have access to safe and sufficient nourishment. This includes: the provision of support for eating, drinking or feeding where required; the provision of a sufficient choice of palatable food to meet religious or cultural needs; and the prevention of harm through lack of access to sufficient nutrition and hydration”.

This is important. It is out for consultation. The groups that have been mentioned and prayed in aid have the opportunity to comment on it and I encourage them to do so. The Care Quality Commission will be able to act on these issues whereas the Healthcare Commission cannot. So while the requirements are very similar, with nutrition as a requirement for enforcement, the Healthcare Commission can act to ensure that this is followed through. Noble Lords have expressed their concerns that this is not happening at the moment. I hope this comes close to noble Lords’ expectations of the comprehensive, appropriate and rigorous levels of care that service users should be entitled to expect.

As ever, the noble Earl and the noble Baronesses made a powerful case for specific standards for the promotion of adequate nutrition and criteria for assessing their compliance. We have acknowledged throughout debates on this Bill that the commission itself will be best placed to set the specific criteria by which providers are assessed for compliance with the registration requirements. We have already talked about the need for the commission to be as independent as possible, and so I still remain unconvinced that it would be appropriate for the Government to issue a code of practice on nutrition or for regulations to determine the criteria by which compliance is assessed.

We fully intend that this critical issue should form a part of the new commission’s registration regime, and the Bill already enables this. I say to the noble Baroness, Lady Knight, that we have agreed—despite chopping off heads, as she might say—to look again at regulatory requirements, user involvement, LINks and the CQC, clarifying the role of the CQC in relation to commissioning in Chapter 3 of Part 1, and safeguarding the rights of service users. So we have gone some way to meet concerns. It is not the case that we have not considered everything. We think that the framework proposed in the Bill and the teeth that the Bill has to deal with these issues are sufficient. Therefore, I hope that the noble Earl and the noble Baronesses will feel able to withdraw these amendments.

Will the Minister be kind enough to clarify something she said? I thought I heard her say that the Healthcare Commission had the power to regulate this area of activity, whereas I did not think that it did.

I said that the Care Quality Commission would have the power to act on this, were it a requirement.

Not the Healthcare Commission?

No, not the Healthcare Commission, I beg your pardon.

Bearing in mind that all hospitals will be foundation trusts in the future and will be regulated by Monitor, how does this fit in with the Care Quality Commission?

That is a very fair question. I suspect that we shall discuss it later when we discuss co-operation between Monitor and the Healthcare Commission.

I have listened with great care and enormous interest to the Minister. I shall certainly suggest to both the Consumers’ Association and Age Concern that they take up what she has said and scrutinise the Bill to make absolutely sure that it will be all right as far as nutrition is concerned. I have also listened with a measure of optimism because I believe that the noble Baroness means what she says. But in the light of that, I can say only that we shall indeed watch very carefully to see how things develop. In the mean time, the body of my little amendment lies, with all the others, on the Floor. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 51:

I support the amendments, particularly Amendment No. 51. Along with other noble Lords, I had the interesting experience of sitting through the Mental Health Act as it went through Parliament recently, which was a salutary and sobering experience. Perhaps one of its most important aspects was an issue that was dealt with principally in this House rather than in another place: the continuing practice of admitting children and adolescents to adult wards. Many noble Lords from all sides of the House worked hard with the Government to deal with that issue, perhaps one of the worst issues that we knew of—that and the fact that mixed-sex wards are still found more in the mental health field than in any other part of the health service. That poses a great threat to people’s safety. It is therefore of undisputed importance that detailed information is made publicly available, particularly information such as the number of children on adult wards.

I say this in support of the noble Baroness, Lady Murphy. I suspect that the Minister may respond by saying that there is an expectation that the minimum data set for mental health will collect all the relevant statistics on mental health patients. That may be true, but there is no requirement that that be made immediately available to the CQC. It is therefore not clear that that information-gathering exercise will of itself be adequate. That is an important reason why the noble Baroness’s amendment should be taken seriously.

Amendments Nos. 51 and 52 propose specific matters relating to monitoring the application of the Mental Health Act that the noble Baroness, Lady Murphy, believes should be covered by regulations under Clause 16. Amendment No. 53 refers more generally to discrimination and health inequalities, although I understand that the interest of the noble Baroness, Lady Meacher, is particularly informed by the experiences of people with mental health problems, hence its place in this group.

I understand the strength of feeling that underlies the amendments, and I hope to provide some reassurance that they are already provided for in the Bill or in our proposed registration requirements. In particular, I emphasise that as one of the Care Quality Commission’s core functions, set out in Clause 2, the commission will be under a statutory duty to monitor the use of the powers under the Mental Health Act. In doing so, I appreciate that the commission might need information on admissions, discharges and deaths of detained patients, as Amendment No. 51 seeks to address, both to enable it to take appropriate follow-up action and to make informed decisions about when to undertake a review or investigation of a particular hospital or trust. Draft registration requirement 13 includes a requirement to ensure that adverse incidents are reported. That will of course include the deaths of detained patients.

The Bill also allows other types of information to be gathered. New Section 120C of the Mental Health Act will enable both the commission and the Welsh Ministers, who will be responsible for monitoring the application of the Act in Wales, to make reasonable requests for information in connection with the exercise of their functions under the Act. It will, for example, allow them to obtain information from hospitals—and from local authorities where patients are in the community—about the number of persons detained under the Act in a given period, together with details of such matters as their age, gender and ethnic status. It will also enable them to collect patient-specific information for the purposes of undertaking an investigation or review, or for the purposes of investigating a complaint. I believe that that meets the intention behind Amendment No. 51 without imposing too great an administrative burden on providers.

Amendment No. 52 would enable the regulations under Clause 16 to require providers to demonstrate their compliance with the Mental Health Act. Providers of care for people subject to compulsion under the Mental Health Act already have a duty to comply with the Act, and the Care Quality Commission will have a responsibility to check that they are doing so. However, the Bill will provide some additional safeguards. The current consultation proposes that services which detain patients or deprive them of their liberty should be registered with the commission. The commission would then be able to act directly where there is a breach of the relevant requirements. Draft requirement 2 about,

“safeguarding people when they are vulnerable”,

will be particularly relevant here. Crucially, the commission will also be able to take action if registered people are failing to comply with requirements in any other legislation that it considers relevant. It will therefore be able to employ its enforcement powers if a registered provider is failing to comply with relevant aspects of the Mental Health Act, the Mental Capacity Act or other legislation.

I am confident that the Bill will also enable the commission to play its part in reducing health inequalities and discrimination on the grounds of disability. As I have explained, the commission will be able to take enforcement action if registered people are not compliant with other relevant legislation. This would include elements of the Disability Discrimination Act 1995 or other equality legislation that the commission considers relevant to securing the health, safety and welfare of those using health and social care services. Requirement 12 in the consultation, entitled “Respecting people and their families and carers”, would also be relevant. It aims to ensure that:

“People’s privacy, autonomy and dignity are safeguarded and their human rights and equality are respected. This involves treating people as individuals, respecting their human rights and having systems to ensure that they are not discriminated against”.

However, it is important to recognise that regulation alone can only go so far in addressing the complex issues of inequality and discrimination. The Government are also taking action in other ways to address these important issues, such as through the SHiFT initiative to tackle the stigma and discrimination surrounding mental health in England, and the National Strategy for Mental Health and Work, which is being chaired by Dame Carol Black.

I hope that the noble Baroness will feel reassured that the necessary statutory requirements are in place to ensure that the very important principles behind the amendments will be embraced and that she will feel able to withdraw her amendment.

I thank the Minister for that reply. I am sure that noble Lords will understand that the basis for these amendments is that the Mental Health Act Commission has had nothing else to do except collect data, analyse information and ensure that the human rights of detained patients are respected. We are therefore seeking to ensure that the Care Quality Commission, when it faces many competing aims and objectives, should have these issues at the forefront of its collective mind.

I am somewhat reassured by what the noble Baroness has said and I shall look at her response more carefully, particularly in relation to information gathering. We must remember that we are now to have community supervision orders, information about which will not fall naturally to a particular institution to be collected. We must be absolutely clear that it does not fall away from central observation and analysis. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 52 and 53 not moved.]

moved Amendment No. 53A:

Amendments Nos. 53A and 65 relate to the General Social Care Council. Amendment No. 53A seeks to make it a regulatory requirement for registered providers to comply with the GSCC codes of practice. Amendment No. 65 would require the Care Quality Commission to notify the GSCC when it has taken certain enforcement action. Amendment No. 66 would also oblige the commission to notify the charity commissioners when it has taken action against a provider which has charitable status.

The issues raised by Amendment No. 53A were debated in another place. At the time, my honourable friend the Minister for Health was able to give sufficient assurances to enable amendments to be withdrawn and I hope I will be able to do the same. The draft registration requirements currently out for consultation include a number around ensuring staff have the competence, skills and support to do their job effectively. It is important to remember that these will apply to all registered service providers of either health or social care. The commission will determine the criteria by which it assesses compliance with those requirements.

In another place, my honourable friend signalled his expectation that the commission will continue to refer to GSCC codes of practice when assessing registered social care providers, as CSCI does now. That remains our position. So, while I recognise the importance of the GSCC’s role in this regard and the quality of the codes it produces, it is not necessary to be more prescriptive about this.

In responding to Amendments Nos. 65 and 66, let me first explain our intention behind Clause 35. There will be cases where primary care trusts and local authorities are commissioning care from service providers against whom the Care Quality Commission has taken enforcement action. We therefore feel it is important that the commissioner should have notice of the enforcement action that has been taken so that, where necessary, it is able to commission alternative services. I agree with the intention behind the amendment proposed by the noble Baronesses. It is important that the GSCC is informed of the relevant action that has been taken. However, I hope I can provide reassurance that there is already adequate provision in the clause for this to happen.

Subsection (1)(d) already requires the commission to give notice of the action specified to any other person it considers appropriate. Where the commission takes action against a person registered with the General Social Care Council, we would certainly expect the commission to notify the council that action has been taken. Likewise, if the action was against a charity—for example, some of the care homes registered with CSCI are charities, as the noble Baroness explained—we would expect the commission to notify the Charity Commission where appropriate. I entirely agree with the noble Baroness about the role that the Charity Commissioner plays in this respect. Similarly, it might be appropriate for the commission to notify the General Medical Council or the General Dental Council about certain matters.

There are circumstances in which that would not be appropriate. For example, some of the notices served under Clause 35 may be for very minor changes in conditions. We would not want the commission to have to notify the General Social Care Council of action taken in relation to healthcare providers. It is important that we do not create an over-burdensome system, but one that ensures that people have the information they need to carry out their functions efficiently and effectively. Rather than specify such detail in legislation, the commission will be better placed to make those decisions and decide when it is appropriate to inform other people of action that it has taken.

Given those reassurances, I hope that the noble Baroness will feel able to withdraw the amendment.

I thank the noble Baroness for giving such consideration to the amendments. I will certainly go away and read the text of what she said. I simply put this matter to her: in Clause 35, all but one of the bodies listed is a health body. I come back again to the point that we are dealing with social care as well as health. I think that she is wrong to underestimate the importance of the General Social Care Council in the provision of staff and standards by which employers in the fields of social care are judged. The General Social Care Council is a key player in that. She also underestimates the importance of the Charity Commission, given that provision of services is becoming much more diverse and fragmented. My view is that it is not appropriate that those two bodies, in particular, are included only in a general catch-all in subsection (1)(d), but I will take away what she said and return to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 53B and 54 not moved.]

moved Amendment No. 54A:

I shall speak to my Amendment No. 110. Its purpose is straightforward: it is to oblige the commission to publish information specifically related to breaches of the regulations about healthcare-associated infections.

Clause 85 already contains a regulation-making power to require the CQC to publish certain categories of information. These include the conviction of any person in respect of an offence committed under Part 1 of the Bill, the cancellation of a person’s registration, the variation of a condition in relation to a person’s registration and the payment by any person of a penalty pursuant to a notice issued under Clause 82. In other words, when someone does something bad that patients and others need to know about, the commission will have a duty to make the facts public.

Why should healthcare-associated infections be placed in the same category? There is a simple answer: the incidence and prevalence of healthcare-associated infections are factors that influence consumer choice, as they rightly should, in relation to hospitals and to care homes. To deny consumers and patients that information is simply wrong.

Almost three times as many people are killed by hospital infections as are killed on the roads each year. The number of people killed by both MRSA and C. difficile in England and Wales has increased by nearly six times since 1997, with C. difficile responsible for the majority of those deaths. In fact, there has been a 50-fold increase in C. difficile infections since 1990. By any standards, healthcare-associated infections are a serious problem in our health service.

There have been endless false dawns and reheated announcements from Ministers. We have known for years that one of the main weapons for dealing with healthcare-associated infections is to isolate patients who are infected, so, in Winning Ways in 2003, the Department of Health promised the appropriate provision of isolation facilities. In 2004 John Reid assured us that new hospitals being built had more isolation rooms than ever before. In 2007 the current Secretary of State promised new clinical guidance to increase the use of isolation for those patients who are infected with MRSA or C. difficile. For the majority of trusts, that will mean greater use of single rooms.

But then what do we find? The Health Protection Agency recently reported as follows:

“Three quarters of trusts indicated that they had problems implementing isolation policies due to inadequacies in the number and fitness for purpose of isolation rooms”.

That was in the November 2007 National Confidential Study of Deaths Following MRSA Infection. Therefore, although clearly an effective measure, isolation is not, after all, happening in the majority of cases.

Then we have had the deep-clean initiative. There is absolutely no evidence that the deep cleaning of hospitals is a cost-effective use of funds. To be brutal, it is a populist gimmick. An editorial in the Lancet last September said that,

“politicians must stop pandering to populism about hospital cleanliness and listen to the evidence”.

[The Sitting was suspended for a Division in the House from 7.25 to 7.35 pm.]

I was quoting from an editorial in the Lancet:

“Brown also plans to double the number of hospital matrons to check on ward cleaning and accost doctors wearing long sleeves. They would be better employed making sure doctors, nurses and visitors washed their hands properly, the proven way to stop hospital-acquired infections”.

Dr Stephanie Dancer, an expert in microbiology, warned last year that deep cleaning would have only a very short-term impact. She was right. The Countess of Chester Hospital, which spent £300,000 on a deep clean, suffered a C. difficile outbreak four days later, when 26 people became infected. In fact, when he made the announcement last year, the Prime Minister promised that deep cleaning would be repeated at least every 18 months, but we now know from Written Answers that there are no plans to repeat the first deep clean exercise and no plans to assess how effective the first deep clean actually was. No one should think that deep cleaning of itself will make more than a tiny dent in the statistics.

In January, the Prime Minister went on the “Andrew Marr Show” and made a promise that is bound to have impressed a lot of people. He said:

“If you go to hospital, you will get screened by next year for MRSA or C difficile”.

No one from the Government sought to correct that story, but two days later the Health Secretary’s infection control strategy reported on C. difficile and said this:

“Screening for colonised patients is inappropriate. (Most potential cases would not be identified …)”.

The promise of screening for C. difficile, which is not going to happen, was yet another example of Ministers giving false hope to the public by leading them to believe that the hazards of healthcare-acquired infections could be tackled effectively in a particular way when in fact they cannot be.

The Government clearly think that one of the first tasks for the new commission will be to address the problem of healthcare-associated infections. If they did not think that, we would not have Clause 17 in the Bill, and nor would the advertisement for the chair of the new commission have been worded as it was. It must make sense to have a statutory reporting procedure whereby patients and the public are automatically alerted to concerns flagged up by the commission on these issues. I hope that the Minister will take this idea away and consider it seriously.

I support these amendments. In a recent Question on this subject, I suggested that we should have statutory reporting because it is necessary. Screening is needed not just for patients but for staff. At a conference in Nottingham on this subject, a paediatrician from St. Thomas’ hospital said that he was absolutely horrified when he realised that he was a carrier of MRSA. Although he worked with vulnerable children, he did know that he was. We now have a new problem in Panton-Valentine leukocydin. It is now in the community and I am sure that it is being misdiagnosed by many doctors who think that it is pneumonia or a white blood cell deficiency such as anaemia.

Far more should be done and the numbers should be counted. Having worked on a regional health authority, however, I know very well that people can fiddle the figures. It is a worrying concern. Not long ago, I sat next to a judge at a family dinner who told me that he had to have a knee operation. He said that he was not at all worried about the operation itself but he was worried about contracting an infection such as MRSA. This is what most members of the public feel when they have to go into hospital.

I think deep cleaning is a good idea because people are horrified when they go into a dirty hospital. It does not matter whether or not deep cleaning helps deal with the infection, but it is much more helpful for the patients to go into a clean rather than a dirty hospital. One of the big problems is the beds being far too close together and patients being hot-bedded in and out and moved from ward to ward. This happens all the time. I have been dealing with a patient who was moved four times from a London hospital to another hospital and then to another. He eventually ended up in Stoke Mandeville Hospital, where he is now in isolation with a very serious infection—an even more dangerous strain of MRSA that is completely resistant to antibiotics. This is a great worry because these strains are now creeping into Britain. I believe there should be ring-fencing and carrots for those hospitals that are infection-free.

We all recognise the importance and the difficulty of dealing with healthcare-associated infections, both in our hospitals and care homes and in the provision of care in other settings. In 2006 we passed legislation approving the introduction of a code of practice on healthcare-associated infections. Under this legislation the registration requirements and new code of practice will apply to all regulated care activities and health and adult social care, and not only to those carried out in the NHS.

There is international agreement that nursing homes are a reservoir of healthcare-related infections and data on HCAIs in nursing homes are limited. However, a report from the Health Protection Agency covering data collected by the mandatory surveillance scheme between April 2006 and March 2007 indicated that 18 per cent of patients who had their MRSA bacteraemia detected within two days of admission to a trust had been admitted from a nursing home. Improving hygiene measures in care homes would reduce the risk of infections to individuals, both in the home and if they are admitted into hospital. It would reduce the prevalence of infection and, consequently, prevent infections in both hospitals and care homes.

The commission will have a whole range of functions and, as an independent body, it ought to decide on how to allocate its resources in order to deliver those functions efficiently and effectively. I understand the concerns, which many noble Lords have already expressed, that social care and the monitoring of the implementation of the Mental Health Act may be marginalised in the new body and that these lie behind the intention of the proposal in Amendment No. 54A to provide separate funding for functions relating to healthcare-associated infections. I recognise that some noble Lords are concerned that if healthcare-associated infections are the top priority for the new commission with respect to the NHS, then, with a reduced operating budget, other areas could suffer. I should point out that an extra £5 million funding has been allocated to the new commission to fund specialist inspections and to monitor compliance with the HCAI code of practice.

In rolling out the registration system to bring in NHS providers for the first time, the Care Quality Commission will give priority to healthcare-associated infections. The Healthcare Commission is already undertaking annual inspections of hospitals to ensure compliance with the code of practice, so this expertise and resource can be carried forward to continue monitoring compliance under the new system. Both social care and private and voluntary healthcare will continue to be regulated under the Care Standards Act, where sanction and enforcement powers already exist. They will continue to have to comply with the relevant regulations relating to infection control until the new registration system is up and running.

As others have pointed out, many of the required savings have already been made by CSCI and the Healthcare Commission. Further savings in operating costs of the new body will come from rationalising back-office functions and from increasing integrated and efficient working practices.

As already discussed, the commission will need to carry out all of its functions in order to meet its statutory obligations, not least its social care and mental health functions. I hope this provides some reassurance that there is no intention to sideline the regulation of social care as a result of the importance placed on healthcare-associated infections and indeed the intention is absolutely that this focus will benefit those receiving social care as well as healthcare.

To ensure this is the case, I agree with noble Lords that proper consultation must be carried out before a code of practice is issued. This is why the Bill makes provision for the Secretary of State to consult those he considers appropriate and I would, of course, expect this to include the people who use health and social care services, service providers and local authorities, as well as the NHS. This is our intention, and so I do not believe that this amendment is necessary. In addition, the consultation, as it was for the 2006 code of practice, will be an open consultation to which anyone can contribute, and I encourage all those who are concerned to do so when the time comes, which we hope will be later this year.

Given the importance we attach to getting this right, the public will want to be reassured that the commission is taking appropriate action where providers fail to meet requirements on tackling healthcare-associated infections, as the noble Earl and noble Baroness are suggesting. This is the intention behind Clause 85 as drafted, enabling the Secretary of State to make regulations, which either allow or require the commission to publish information about the enforcement action it has taken.

This will enable the commission to demonstrate the action it is taking when carrying out its functions and to reassure patients and service users that services which persistently fail will not be able to continue to provide services. The public will be able to access information about service providers where enforcement action has been taken. It should also be an additional incentive for providers to comply with requirements and avoid enforcement action. Publishing details of its enforcement action will also show that the commission is open and transparent in the way it carries out its functions.

I therefore believe that Clause 85 as drafted already allows for the provisions set out in Amendment No. 110 and can achieve the transparency sought by that amendment. I hope that I have provided sufficient reassurance on these counts to allow noble Lords to withdraw these amendments.

I thank the noble Baroness for that answer. It is important that there is transparency right from the beginning about the CQC’s funding and the way in which that funding relates to its functions, objectives and priorities. I hear what the noble Baroness says about the notification process. However, I say again that there is a huge difference between an acute hospital and a small domiciliary care scheme. We are talking about a system that must cover both and be proportionate to both. However, with that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clause 17 agreed to.

[Amendment No. 55 not moved.]

Clause 18 [Consultation etc. in relation to code of practice under s.17]:

[Amendment No. 55A not moved.]

Clause 18 agreed to.

Clause 19 [Guidance as to compliance with requirements]:

[Amendment No. 56 not moved.]

Clause 19 agreed to.

Clauses 20 to 24 agreed to.

This may be a convenient moment for the Committee to adjourn until next Monday at 3.30 pm.

The Committee stands adjourned until Monday 12 May at 3.30 pm.

The Committee adjourned at 7.49 pm.