Consideration of amendments on Report resumed.
Clause 2 [The Commission's functions]:
moved Amendment No. 7:
7: Clause 2, page 2, line 9, leave out subsections (3) to (5)
The noble Baroness said: My Lords, it will be convenient also to consider government Amendments Nos. 9, 12 and 14. I note Amendments Nos. 10, 11, and 53, tabled on behalf of the Joint Committee on Human Rights, which are also in this group. I have considered them carefully, but I shall wait until I hear the arguments behind them before responding.
During Committee, we had a helpful discussion about what the commission’s objectives should be and the importance of setting them out clearly at the start of the Bill. It also became clear that the drafting of the beginning of the Bill, in particular Clause 2, was perhaps not as accessible as it might be.
I hope that all noble Lords will agree that the proposed changes allow more straightforward references to health and social care services and the people who use them, and that, together with the new clauses that I shall describe in more detail, they deliver a clear statement of the commission’s core functions, objectives and matters to which it must have regard. I am pleased to confirm that the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission have welcomed the amendments.
I believe that we all agree that the primary purpose of the commission is to protect the interests of those who use both health and social care services. Government Amendment No. 9 therefore proposes an objective for the commission to reflect this. It gives the new commission a clear, succinct focus on service users. As reported in the Guardian last Wednesday, it will,
“make outcomes for service users the top priority”.
Importantly, it clearly refers to social care as well as health. I hope that this will reassure noble Lords that the Care Quality Commission will protect and promote the health, safety and welfare of users of social care as well as healthcare, as has always been our intention.
Amendment No. 9 also gives greater prominence to the three outcomes that the commission should help deliver through carrying out its functions; namely, improvements in the services that people receive; delivery in a way that focuses on the needs and experiences of the people who use services; and encouraging the best use of resources. Again, these clearly extend to both healthcare and social care users.
There are of course other issues to which the commission will need to have regard. I listened carefully to the debate about whether we had included the right issues and expressed them in the right way. I hope that noble Lords will agree that we have reflected in government Amendment No. 12 the concerns that we heard in Committee. It sets out in a new clause the matters to which the commission must have regard.
In particular, there was a strong feeling that the Bill should set out more explicitly how the commission will engage with local involvement networks. I will say more about the importance of effective engagement in our debate on a later group of amendments, but I take this opportunity to highlight that we have listened to noble Lords’ concerns about LINks and therefore placed them at the start of the Bill by including in Amendment No. 12 a reference to the commission having regard to LINks as well as to other people.
Concern was felt that the commission should support the rights of all people who use services, not just those of children and vulnerable adults. Amendment No. 12, therefore, requires the commission also to consider the rights of all those who use services, with specific reference to those detained under the Mental Health Act or deprived of their liberty under the Mental Capacity Act.
As discussed in Committee, not all providers are public authorities for the purposes of the Human Rights Act. The amendment, in contrast, emphasises the importance of protecting and promoting the rights—in their broadest sense—that we all have. We should also remember that, as we have previously committed, the regulatory regime should reflect the principles of the European Convention. This demonstrates the importance that we place on this issue, although I know the noble Lord, Lord Dubs, has tabled amendments to include additional references to rights in the commission’s objectives and I look forward to hearing what the mover has to say.
Government Amendments Nos. 7 and 14 are simply technical amendments that streamline the first few crucial clauses and ensure that the definition of health and social care services is the same throughout Chapter 1. I hope that this demonstrates that the Government share the aspiration of noble Lords for the new commission to have a clear objective, focusing on both health and social care, and that the key issues raised in debate are now reflected in the issues to which the commission must have regard. I therefore urge noble Lords to support the amendments. I beg to move.
My Lords, it is very difficult to get this right without sounding like a creep and being patronising, but I want to thank Ministers for the consideration that they have given to this Bill—it is about 300 amendments that we have collectively put forward.
The noble Baroness, Lady Howarth, described the eight days in Grand Committee as group work. She is right. There is something deliciously awful about being banged up in the Moses Room for eight days, but it brought us together and engendered great respect between us. In addition, we have had our rewards, which would not have been possible if we had not had such responsive and thoughtful Ministers.
I am delighted to see the group of amendments proposed by the Minister as well as the new clause, “Statement on user involvement”, which follows in the next group. I think that this Bill was unwanted and unloved in its conception. It has been hard to find a group in the country that supports it. Usually with legislation there are a few champions, but apart from the architect, the noble Lord, Lord Warner, it has been hard to unearth them. However, because of how Ministers have conducted the Bill, many of the most recent briefings I have received start with the word “Welcome”. The warmest welcomes have come for the objectives set out in these amendments.
It is very difficult to understand the resistance that there was in the other place. That may be because they do not have the right Ministers—it may be because they see amendments as a challenge to their virility. We, on the other hand, are past it, so I suppose we do not fight in quite the same way. I think that these objectives and the matters to which the commission must have regard are about right. I could quibble with one or two words, but I think that that would be churlish. I congratulate the wordsmiths who have fashioned such a good result. They have encapsulated most of what we have sought. I am pleased to see retained in subsection (1)(e) of the proposed new clause in Amendment No. 12 that the concept of action by the commission should be “proportionate to the risks” involved, and that it should target its actions only where there is need.
I notice in new subsection (2) that:
“In performing its functions the Commission must also have regard to such aspects of government policy as the Secretary of State may direct”.
I fought that battle. I have lost it, and now I gracefully retire. I am not disappointed. I think that the gains we have acquired through the Committee stage outweigh the losses. I support the amendment.
My Lords, I want to say a few words on proposed new subsection (1)(e) referred to by the noble Baroness, Lady Cumberlege. What I have to say arises out of a conversation I had with a provider. Paragraph (e) says,
“the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed”.
“Where it is needed” is the judgment of the commission. It was put to me that that might be the peg on which someone who felt they were being unreasonably targeted might want to bring legal action against the commission, which would defeat, as I understand it, the purposes of the Bill. If they were targeted and felt penalised, they would argue with the commission, “You are acting unfairly and unreasonably”. Do the Government feel that that wording is somehow insulated from the possibility of any legal action?
My Lords, I am very concerned that prison health is not mentioned in the Government's bundle of amendments. The NHS is now responsible for prison health. This is very important. One of my concerns is that many people in prison have mental health problems, and some of the most complicated problems are those prisoners with dual diagnoses—mental health and addictions. The rise in infections such as hepatitis is also of concern.
We have some very large prisons. Prisoners may fall through the net of care. If the need for inspection of health and social care is not written in this Bill for prisons, it may well be neglected by the commission, which will have an enormous amount to do across the country and in many institutions. The commission might think that prisoners are behind closed doors and are not a priority. That would be totally wrong. Prisoners come in and out as though on a conveyor belt. Society needs protection and ill prisoners need good health and welfare systems inside and on release from prison.
I would like health and social care, including mental health, included in the new clause in Amendment No. 12, “Matters to which the Commission must have regard”. I hope that the noble Lord, Lord Darzi of Denham, will visit a few prisons and discuss the health needs of these institutions. With the reduction of resources by 40 per cent and reduced inspections by the CQC, I feel worried that prisons may be neglected and forgotten about.
My Lords, I would like to respond to the invitation from the Minister to speak to Amendments Nos. 10, 11, and the consequential—
After I have put Amendments Nos. 7 and 8 and moved on to Amendment No. 9 the noble Baroness can speak to her amendments, but she cannot speak to them at the moment. The noble Baroness wants to speak to Amendments Nos. 10 and 11, which are amendments to Amendment No. 9. I have not put Amendment No. 9, so she cannot do so yet. I want to put Amendment No. 7 first, then move on to Amendment No. 9, and then call Amendments Nos. 10 and 11 in the name of the noble Baroness, Lady Stern. To be in order, the noble Baroness, Lady Stern, cannot speak to her Amendment No. 10 as an amendment to Amendment No. 9 because Amendment No. 9 has not been called. I want first to get rid of Amendment No. 7.
My Lords, are they not in the same group?
My Lords, Amendment No. 9 has not been spoken to, so I cannot call Amendments Nos. 10 and ll. Perhaps I may put Amendment No. 7.
On Question, amendment agreed to.
[Amendment No. 8 not moved.]
moved Amendment No. 9:
9: After Clause 2, insert the following new Clause—
“The Commission’s objectives
(1) The main objective of the Commission in performing its functions is to protect and promote the health, safety and welfare of people who use health and social care services.
(2) The Commission is to perform its functions for the general purpose of encouraging—
(a) the improvement of health and social care services,(b) the provision of health and social care services in a way that focuses on the needs and experiences of people who use those services, and(c) the efficient and effective use of resources in the provision of health and social care services.(3) In this Chapter “health and social care services” means the services to which the Commission’s functions relate.”
The noble Baroness said: My Lords, I beg to move.
moved, as an amendment to Amendment No. 9, Amendment No. 10:
10: After Clause 2, line 4, after “safety” insert “, rights”
The noble Baroness said: My Lords, I apologise if I misunderstood the position. I would like to respond to the Minister on behalf of the noble Earl, Lord Onslow, the noble Lord, Lord Dubs, and myself and speak to Amendments Nos. 10, 11, and Amendment No. 53, which is consequential. These amendments are not agreed by the Joint Committee on Human Rights; they arise as a result of the Government's response to earlier committee proposals and are totally in accord with the thinking of the Joint Committee on Human Rights on the Bill.
Amendments Nos. 10 and 11 amend government Amendment No. 9. They put a reference to “rights” in the objectives of the commission. Amendment No. 53 is grouped with them. It is a definitional clause that defines “rights” as inclusive of the,
“rights protected by the Human Rights Act 1998”.
I warmly welcome the Government’s amendments in the group. In Committee, it was clear that there was considerable support for ensuring that health and social care delivery had to be within a human rights framework, which really means nothing more demanding than that every human being should be treated as an individual with dignity and respect. We heard many examples in Committee of reasons why this should be taken more seriously, particularly from the noble Lord, Lord Campbell-Savours.
The Government listened to that and have tabled Amendment No. 9. We, together with a range of other bodies, warmly welcome the Government’s amendments in the group, and I echo the words of the noble Baroness, Lady Cumberlege, about how the Government have responded to the points we made.
These amendments propose that the CQC’s main objective should include a requirement to protect and promote rights. Currently, the main objective is limited to the protection and promotion of health, safety and welfare. We believe that the CQC should perform its functions for the general purpose of encouraging,
“the provision of health and social care services in a way that focuses on the”,
rights of service users, rather than the government amendment, which is limited to encouraging a focus,
“on the needs and experiences”,
of users. We have included the definitional clause, proposed in Committee, to define “rights” as inclusive of,
“human rights protected by the Human Rights Act 1998”.
The amendments to which I am speaking today seek to go a little further than the Government have done. We suggest that this very welcome inclusion of rights should not just appear in matters that the commission should have regard to but should appear also in its objectives. The very helpful briefing I have had from Help the Aged supports the view that the commission should have a clear remit to,
“place human rights principles at the core of its work”.
The amendments propose that part of the main objective should include a requirement to protect and promote rights. Will the Minister explain why the Government consider that the protection and promotion of the rights of service users should be less important for the commission than the protection and promotion of safety or welfare? Do the Government accept that it should be part of the commission’s ethos to encourage regulated service providers to provide their services in a way which protects and promotes the rights of service users? If the noble Baroness agrees, why was it not possible to include an express reference in the Bill under the provision on objectives? I should be grateful if the Minister could share her thinking on these questions with the House so that we can be clear why the stronger position originally advocated by the Joint Committee on Human Rights has not found favour with the Government. I beg to move.
My Lords, I wish to address an issue in Amendment No. 10. In doing so, I thank the Minister for the work that she has done to bring forward the set of amendments which I believe she has now passed and which are now part of the Bill. Not only has she dealt with this matter and the House in a fair and exemplary manner, but the legislation is a great deal stronger as a result. I congratulate her and the Bill team.
I am in something of a dilemma as regards Amendments Nos. 10 and 11. I was fully in favour of Amendment No. 10 and could not see what objection the Government could have to it because the word “rights” is far more inclusive than the concept of safety. For example, “rights” would include a patient’s right to expect that their safety would be taken into consideration by providers of services. Were I a government draftsman, I should be delighted to have a much wider and looser concept with which to deal, and, on balance, I still feel that way. However, I have a slight dilemma as regards the amendment of the noble Baroness, Lady Stern, which refers to rights but not to human rights. People who need social care have very few legal rights. For example, there is no right to receive services. However, as human beings they have an expectation that their human rights will be regarded.
On the issue of safety, the noble Baroness, Lady Stern, is doing the Government a favour by proposing an alternative wording and I encourage the Minister to look at that seriously. I refer to double effect. Some medical treatments can have serious adverse consequences for some patients. Doctors may recommend those treatments because they believe it is in the best interest of a patient to do so even though they know that there may be adverse consequences. In doing so they might compromise, or pose a threat to, the safety of a patient. They take a calculated risk for a beneficial reason. This is slightly complicated but, were I in the Government’s shoes, I would prefer to have a measure which did not mention safety. On balance I support the approach taken by the noble Baroness, Lady Stern, but I would prefer the measure to refer to human rights rather than just to rights. However, I believe that she is on the right track and is offering the Government something which they would be very wise to accept.
My Lords, I had not intended to speak to this amendment but I wish to support the amendment of my noble friend Lady Stern. Working with the Healthcare Commission year by year, I am very conscious that we are required to meet all sorts of standards in relation to safety, care planning and all sorts of procedures, processes, systems and risk management. There are rafts and rafts of standards. When I go round our services—I shall not comment on all the services within my east London mental health trust—I question whether all these standards of the Healthcare Commission have any impact at all on the very personal experience of our service users and patients. For example, respect and dignity are very sensitive and personal issues. If one has in these objectives the right to dignity and respect, that may ensure that the CQC homes in on some of these very sensitive and personal rights which the regulation of systems and processes may not touch. I leave that thought with Ministers.
My Lords, it would be wrong if I did not add my few words of thanks to those of my noble friend Lady Cumberlege to the noble Baroness, Lady Thornton, and the noble Lord, Lord Darzi, for having listened so carefully to the issues we raised in Grand Committee, and for having responded so constructively to them.
I particularly welcome Amendments Nos. 9 and 12, and not least the fact that we will now have LINks mentioned in the Bill. I am also glad to see “experiences”, in relation to the experiences of patients and service users, substituted for “satisfaction”. It is a more neutral term which is more conducive to the effective measurement of the quality of services. I congratulate the Minister on having reconfigured this part of the Bill in a way that reads a lot better than the original did. We have the objectives and the matters to which the commission must have regard. The way that the clauses flow from one another is a lot better and easier to understand. I for one am glad to see these amendments included in the Bill.
My Lords, I support the amendment of the noble Baroness, Lady Stern. I have seen services that offer supreme care but care that is patronising and rather overweening. I have seen care where there has been attention to detail but not to the individual. If we were to include the word “rights” as well as “safety”, we would have to pay attention to personalisation and dignity in residential care, as the noble Baroness, Lady Meacher, pointed out. It would make that subtle difference where care is good but not necessarily personalised and directed to ensure that each individual has that care. While I am on my feet, I add my thanks. It is an exceptional piece of legislation that includes a listening to users provision. The Government are to be congratulated on that if not on all the other clauses.
My Lords, I thank my noble friend Lord Dubs and the noble Earl and noble Baroness for their contributions on Amendments Nos. 10 and 11. We are addressing those amendments, but I shall respond to some of the other points made. On behalf of myself and my noble friend I thank noble Lords for the warm welcome that they have given to our amendments.
I remain convinced that our amendment represents a more appropriate reflection of the commission’s responsibilities. I shall take this opportunity to explain and address some of the points that were raised. We have responded to the concern expressed in Committee that the Bill should say more on the issue of rights by introducing a broader requirement for the commission to have regard to the need to protect and promote the rights of all those who use health and social care services. As I said in my opening remarks, we should also remember the context, which is that the regulatory regime will reflect the principles of the European convention. As I set out earlier, this includes, but is not limited to, human rights and that is why we do not believe that Amendment No. 53 is required.
Our amendment, as drafted, is appropriate for a body of this type. After all, as I have said before, the commission will be one of a number of bodies with responsibilities in this area. So, while it is important that human rights should inform the commission’s approach and its thinking, its primary objective must be to protect the health, safety and welfare of people receiving services. Neither would it be appropriate to include rights among the outcomes the commission should be expected to focus on in carrying out its functions.
I turn to the point made by my noble friend Lord Campbell-Savours about legal action being brought against the CQC. The Bill contains provisions for those with action being taken against them to make representations to the CQC before action is taken; for example, in Clause 23 on the right to make representations. We would not anticipate that legal action would be necessary if a care home felt that it was being targeted disproportionately.
My Lords, my noble friend did not say that it was not possible. I was seeking to find out whether it could be used as a peg for bringing legal action.
My Lords, I did not say it was not possible; you would have to completely disregard the proportionality, which is already included in the Bill, to do that. It would be unlikely, and not likely to succeed either.
The noble Baroness, Lady Stern, might be interested to know that the Equality and Human Rights Commission has also warmly welcomed the amendment, as drafted. The noble Baroness, Lady Masham, is a great champion of these issues, and she is right to be concerned. Later amendments on Crown application will ensure that the commission’s registration functions can apply to the Prison Service. Our consultation proposed that that should be the case.
My Lords, will it be written in?
My Lords, it will not be written into this part of the Bill.
We do not believe that it is appropriate to accept Amendments Nos. 10 and 11 and hope that the noble Baroness will not press them.
My Lords, we are dealing with Amendment No. 10 as an amendment to Amendment No. 9, so it would helpful to know what the noble Baroness would like to do.
My Lords, I beg leave to withdraw the amendment.
Amendment No. 10, as an amendment to Amendment No. 9, by leave, withdrawn.
[Amendment No. 11, as an amendment to Amendment No.9, not moved.]
On Question, Amendment No. 9 agreed to.
12: After Clause 2, insert the following new Clause—
“Matters to which the Commission must have regard
(1) In performing its functions the Commission must have regard to—
(a) views expressed by or on behalf of members of the public about health and social care services,(b) experiences of people who use health and social care services and their families and friends,(c) views expressed by local involvement networks about the provision of health and social care services in their areas,(d) the need to protect and promote the rights of people who use health and social care services (including, in particular, the rights of children, of persons detained under the Mental Health Act 1983 (c. 20), of persons who are deprived of their liberty in accordance with the Mental Capacity Act 2005 (c. 9), and of other vulnerable adults),(e) the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed,(f) any developments in approaches to regulatory action, and(g) best practice among persons performing functions comparable to those of the Commission (including the principles under which regulatory action should be transparent, accountable and consistent).(2) In performing its functions the Commission must also have regard to such aspects of government policy as the Secretary of State may direct.
(3) In subsection (1)(c), “local involvement network” has the meaning given by section 222(2) of the Local Government and Public Involvement in Health Act 2007 (c. 28).”
On Question, amendment agreed to.
moved Amendment No. 13:
13: After Clause 2, insert the following new Clause—
“Statement on user involvement
(1) The Commission must publish a statement describing how it proposes to—
(a) promote awareness among service users and carers of its functions,(b) promote and engage in discussion with service users and carers about the provision of health and social care services and about the way in which the Commission exercises its functions,(c) ensure that proper regard is had to the views expressed by service users and carers, and(d) arrange for any of its functions to be exercised by, or with the assistance of, service users and carers.(2) The Commission may from time to time revise the statement and must publish any revised statement.
(3) Before publishing the statement (or revised statement) the Commission must consult such persons as it considers appropriate.
(4) In this section—
(a) “service users” means people who use health or social care services, and(b) “carers” means people who care for service users as relatives or friends.”
The noble Baroness said: My Lords, I ask noble Lords also to consider government Amendments Nos. 17, 18, 22, 23, 25, 26, 27, 35, 44, 45, 46, 47, 48, 49, 58 and 77.
The importance of user involvement in the Care Quality Commission’s work was another of the strong themes in our debates in Grand Committee and in the other place. We have been convinced from the outset that this must be a priority for the commission. However, a compelling case was made in Committee for the commission to have a more explicit duty to involve people who use services and their carers in its work.
Again various models were put forward. Having considered the most appropriate way to proceed we are now bringing forward Amendment No. 13 which would require the Care Quality Commission to consult on and publish a document setting out how it plans to involve, engage and inform people who use its services—and crucially their carers and families—in its work. It is most appropriate for the commission itself to determine the precise way in which it engages with users and carers but there should be a clear indication in the Bill what user involvement must cover. In this way it will be able to build on and continue the current commission’s good practice.
Therefore, the new clause requires the commission to seek views about not only health and social care services itself, but also how it carries out its own functions. It also makes it clear that the commission can involve people in its work, for instance, as lay inspectors. The commission must have proper regard to views expressed by service users and carers. Transparency will be the key to ensuring that the commission is being effective in engaging people in its work. Crucially, government Amendment No. 46 will require the commission to set out in its annual reports to Parliament what it has done to implement the statement on user involvement.
I am delighted to report that, in their briefing, the Picker Institute, Which? and the National Consumer Council strongly welcomed the Government’s proposals, which they consider will pave the way for a regulator that actively consults and engages with people. Local involvement networks will now provide an important vehicle for involving people in health and social care services and I am sure they will have an important role in the work of the commission. I have already set out our proposals for requiring the commission to have regard to the views of LINks.
To support this, Amendment No. 49 would amend the Local Government and Public Involvement in Health Act 2007 to require LINks to send their annual reports to the Care Quality Commission, as well as to the Secretary of State. This is obviously not intended to remove the need for the commission to actively engage with people through LINks and in other ways, but it will help to ensure that the commission is fully aware of local people’s views on the services they receive across the country, and it reinforces our belief that LINks are a crucial means of ascertaining the views of users and carers.
I move now to the amendments tabled in response to concerns expressed in Committee about independence from the Secretary of State, in relation to both the Care Quality Commission and the Council for Healthcare Regulatory Excellence. In relation to the Care Quality Commission, compared to the current commissions, the new regulator will have new freedoms to determine how aspects of the registration system will work, and a greater flexibility in the enforcement powers at its disposal to use against failing providers. To demonstrate that we are genuinely determined to afford the commission as much independence as is practically possible, Amendments Nos. 35, 44 and 47 would delete “or modified” in Clause 42, remove the power for the Secretary of State to specify when the commission must publish its proposed programme of reviews, investigations and studies under Clauses 44, 50 and 53, and amend Clause 81 to ensure that the commission is free to determine for itself how it makes and publishes its plans for charging fees.
On professional regulation, Amendment No. 58 removes the Secretary of State’s power of direction over the CHRE in Clause 111. Although this power was included in the Bill to allow the Secretary of State to help the CHRE prioritise its workload, I recognise that noble Lords felt that this could be perceived as undermining the independence of the CHRE. The department has discussed the idea of removing it from the Bill with the CHRE, and as a result of reassurances from the CHRE, I am now confident that it can safely be dispensed with. This group of amendments also contains a number of drafting, minor and technical amendments. I do not intend to go into detail on those, although I am happy to clarify any issues that noble Lords might raise. I beg to move.
My Lords, I have no hesitation in saying that in this cluster of amendments there is one rather large diamond in the shape of Amendment No. 13, which I warmly welcome, as well as a number of little gems. I am thinking particularly of Amendment Nos. 35, 44, 47 and 58, all of which, in their own ways, remove some of the concerns we had in Committee about the potential for the department and Ministers to influence the commission and the Council for Healthcare Regulatory Excellence. I am grateful to the Minister for having gone to the care that she has in looking at the points that we raised and I congratulate her on Amendment No. 25, which refers to a deceased registered proprietor. A number of us had some unease about the way in which that part of the Bill was worded. I am sure that it will now be better for that amendment, so I warmly welcome this group.
My Lords, I too welcome this group of amendments, showing, as they do, the Government’s commitment to user involvement. I want particularly to speak in very warm support of the mention of carers in Amendment No. 13. One of the key concerns about the Bill was the original lack of requirement on the commission to involve and consult carers during the course of its work, alongside service users and patients. Carers’ lives are influenced to a considerable degree by the quality, accessibility and affordability of care services. Social care policy is finally recognising—through, for example, the Putting People First concordat and the National Strategy for Carers, the latest version of which was launched by the Prime Minister last week—that carers should be seen as partners in care and consulted and involved more by service providers. It was therefore essential that the Bill reflected these developments. These amendments will provide more recognition for carers and more recognition of the fact that most social care is provided not by any agency that is subject to inspection, but by family, friends and neighbours.
My Lords, I want briefly to intervene and make a suggestion. The statement on user involvement states:
“The Commission must publish a statement describing how it proposes to—
(a) promote awareness among service users and carers of its functions”.
In Committee, I laboured the point regarding my personal experience. I would like to suggest to the Care Quality Commission as it begins its work that it should require homes to publish on their websites information about the existence of the commission’s reports and, if I had my way, actually to publish the reports. Most people, despite what other people think, do not even know of the existence of the current inspectorate arrangements prior to putting their relatives in homes. They find out about that pretty quickly when they are told about it, but very often they do not know in advance. I want a mechanism to inform people in advance, when they are looking at the glossies, that there is a report that they should read.
My Lords, I, too, welcome the amendment, but will the service users or carers be able to state their concerns when there are not enough facilities? For example, there is the problem of intensive care costs, which was highlighted in the headlines of the Evening Standard today.
My Lords, all I really need to say is that we are grateful for the thanks that have been expressed for these amendments. They would not have been possible without the fantastically expert Members of the Grand Committee who we were surrounded by and who know more than it is possible to say. My noble friend Lord Campbell-Savours had some wise words and helpful suggestions. I am very happy to say that we can now direct them to the chair of the CQC. I shall come back to the noble Baroness, Lady Masham, because I do not know the answer to her question at the moment.
On Question, amendment agreed to.
moved Amendment No. 14:
14: After Clause 3, insert the following new Clause—
“Meaning of “health and social care services” in Chapter 1
In this Chapter “health and social care services” has the meaning given by section (The Commission’s objectives)(3).”
On Question, amendment agreed to.
Clause 4 ["Regulated activity"]:
moved Amendment No. 15:
15: Clause 4, page 3, line 4, leave out paragraph (b)
The noble Earl said: My Lords, I felt it right, following our debates in Grand Committee on whether Clause 2 should stand part of the Bill, to bring us back to an issue of fundamental principle regarding what the remit of the new commission should be. I am extremely worried that the decision taken in 2005 to split CSCI and to hive off the regulation of children’s social care to Ofsted was a mistake. It was a mistake that originated from two causes—a determination by the current Prime Minister, then Chancellor of the Exchequer, to slash the headline costs of regulation by merging regulators; and a conviction that was allowed to take hold in the minds of Ministers and officials that, because Ofsted concerned itself with schools and children, a takeover by Ofsted of the regulation of children’s social services would somehow be a natural fit. Neither consideration was a sound basis on which to dismember CSCI as the body regulating social care across the piece.
We need to remind ourselves that the Department of Health’s review of arm’s-length bodies, published in July 2004, contained no proposal to split CSCI or to merge it with anything else. Indeed, the review explicitly set its face against such a course. It stated that any merger with the Healthcare Commission at this time would be,
“a distraction from the heavy agenda of both sides and would impact on the ability of both to regulate providers and thereby protect patients and service users”.
That sensible conclusion was overridden the next year in the then Chancellor’s Budget speech. The legislation integrating children’s social services with Ofsted was taken through Parliament despite the misgivings of many who have a close knowledge of social care matters, such as the noble Baroness, Lady Howarth. We are seeing now the fruits of that policy.
The Children, Schools and Families Select Committee in another place heard evidence a few weeks ago from the NSPCC and the British Association for Adoption and Fostering. They individually voiced their views that Ofsted is straining to meet the health and mental health care needs of children in care. It is not just the wisdom of hindsight that prompts me to say that this could have been predicted. At the heart of Ofsted is a mismatch. The methodology of Ofsted and the methodology of CSCI are completely different. One relies heavily on a tick-box approach, scoring schools on the basis of facts and statistics. The other depends critically on human interaction: physically inspecting premises, talking to staff and to service users and making value judgments about the quality of the service being delivered. In the end, an assessment of social care focuses on the competence and personal qualities of staff and the happiness of those whom they look after. I have absolutely no doubt that the senior management of Ofsted has undertaken its enlarged responsibilities with seriousness and assiduousness, but the task of assessing the quality of a school is 10 leagues removed from the task of assessing the well-being of vulnerable and sometimes damaged children in a care setting, where mental health needs and physical health needs must always be a concern.
The merger of CSCI with the Healthcare Commission, which this Bill will bring about, would have provided a much sounder basis for the regulation of children’s services than the merger which actually occurred. There are, potentially, excellent synergies between the regulation of children’s services and the regulation of healthcare and care delivered under the Mental Health Act, but those synergies are now out of reach unless, somehow, it is possible for the Government to take stock of the situation which they have created and think again about it. Let us forget, for the time being, about the rationale cited for the dismemberment of CSCI in 2005 and concentrate on what is happening now. Is Ofsted succeeding in delivering the kind of regulation of children’s services needed to give us all confidence that standards are being properly maintained? We need an honest appraisal of that question. If the answer indicates that it would be desirable to reintegrate the regulation of children’s social care with that of adult social care under the umbrella of the CQC then, despite all the criticism I have ever voiced about repeated organisations of regulators, we on this side of the House would not stand in the way of such a change. I beg to move.
My Lords, I would like to speak very briefly. It is unusual for me to disagree with the noble Earl, Lord Howe. I am looking back to long ago when I was a chair of social services in a London borough. I was always concerned about the buck-passing that used to go on between education services and social services for children. It was very difficult for the two disciplines to work together. I am also worried that the Care Quality Commission is covering so much. As you know, I have accepted now what the Government are doing, but I still think that it has an enormous brief and I just do not know how it is ever going to have enough staff. The thought that children’s services may be in there somewhere and may get lost worries me because it is one of the crucial areas that we need to keep track of in this country.
I felt pleasure that Ofsted was going to cover education and social services for children because that would bring things together. If the noble Earl feels that Ofsted may not be well equipped to cover children’s social services in the way it does education—I am quite sure he is right—we should strengthen Ofsted and make sure that it really is able to cover them, and that children’s services can be integrated and looked at by one inspectorate. That is a much healthier way to be than to have them separate.
My Lords, the noble Earl, Lord Howe, has put the argument about the difficulty of inspecting schools and children’s homes by the same methodology very eloquently. The methodology that Ofsted uses fills four boxes and in those boxes you either pass or fail, rather like school exams. In a children’s home, you cannot pass or fail; you have to be helped to reach the standard, which is that the children are going to be properly cared for holistically. Simply closing the home down—which is what happens if you are actually on the lower end of adequate—or not taking any more children into that establishment is unthinkable.
I have personal experience of Ofsted refusing to allow young people to be taken into an establishment until it was brought up to another level, although the establishment was going to continue to operate. Those difficulties put the whole establishment at risk because of economic viability. Fortunately, it brought itself up to standard, as one would expect.
I agree with the noble Baroness about the integration of services. We have reached this point; as we have said several times this evening, we are where we are. It breaks my heart to disagree with the noble Earl, Lord Howe; he knows that I am a huge admirer of him. Those services now on the ground are becoming integrated in terms of service delivery in schools and local authorities. That does not mean that you cannot change the method of inspection. That is the core of the problem—that Ofsted believes that it has an answer. Just as social care could learn from the methodology of Ofsted, because it has rigour, Ofsted too could learn about the holistic approach to services that are looking after children in terms of body, mind and soul. That is the less important message that I want the Minister to take away. After all, I was the Member who was sent to see the chief inspector because I was so determined, during the debate, to try to prevent the break-up of this regulation. Now that it has happened, further reorganisation would be disruptive. We must press for a different methodology.
My Lords, we have over here the small corner of ex-directors of social services.
I have huge regard for the approach that the noble Earl, Lord Howe, takes in many areas, but in this respect I must part company with him. We have talked a lot about integration of services in relation to this Bill. I used to have to try to balance, in a tightly constrained budget, the needs of protecting children with the needs of a growing elderly population; that is not easy to do. There have always been real issues about whether we could benefit children by integrating their services across departments. If Ofsted is not doing the inspections in the way in which it should, we should take that up with Ofsted. We should get the inspection right and should not try to put the clock back and reintegrate children’s services with adult social services. That would be a step backwards. The future of adult social care is much more related to integration and removing the barriers between adult social care and healthcare, particularly with an ever ageing population and many people with long-term chronic conditions. We do not want to go down this path but, if we do, and if we have concerns about the way in which Ofsted carries out inspections of children’s services, children’s social services and children’s social care, the evidence should be provided and the Government should be asked to look at that.
My Lords, following the brief discussion on the interaction between Ofsted and the Care Quality Commission in Grand Committee, I appreciate the fact that the noble Earl, Lord Howe, has given me the opportunity, with Amendment No. 15, to explore how the Care Quality Commission’s registration of care service providers will fit with Ofsted’s parallel registration regime for providers of children’s social care services under the Care Standards Act 2000. That is my understanding of the purpose of Amendment No. 15.
Noble Lords will appreciate, as we have heard, that the regulation of children’s social care is now the responsibility of Ofsted. However, the regulation of children’s healthcare will remain with the healthcare regulator, the Care Quality Commission, in future. The purpose of Clause 4(2)(b) is to ensure that services are not regulated twice—by both Ofsted and the Care Quality Commission—by specifically excluding any services that are registered with Ofsted from the definition of “regulated activity”. To ensure that certain types of vital care services cannot fall between the cracks and be excluded from registration with either regulator, the definition of social care in Clause 5 is not a definition of adult social care. For example, those domiciliary care agencies which cater only for children can be within the scope of registration within the Care Quality Commission, so long as they are not already required to register with Ofsted. Alternative forms of drafting could well have resulted in neither body being able to assure the safety and quality of these vital care services. I know this is of particular concern to the Commission for Social Care Inspection. Of course, the commission and Ofsted are required to co-operate with each other, through Schedule 4 of the Bill and Ofsted’s parallel legislation, Schedule 13 of the Education and Inspections Act 2006.
I thought that most of the discussion concerned Ofsted’s qualitative functionality as a regulator. The noble Baroness, Lady Tonge, very eloquently described—and was supported by my noble friend Lord Warner—how Ofsted is able to focus on the wider interest of children and young people, allowing a comprehensive view to be taken across care, education and skills. I am also led to believe that Ofsted took experienced inspectors with a significant knowledge of the social care sector and the inspection framework that Ofsted adopted in 2007 and was identical to the one used by the Commission for Social Care Inspection. As my noble friend said, if that framework is not functioning—the noble Earl, Lord Howe, has concerns about that—I have no doubt that as we wait for the inquiry of the Select Committee on Health, we can look at the functionality of Ofsted in more depth. I hope that I have been able to explain the benefit of Clause 4 and that the amendment can now be withdrawn.
My Lords, I am grateful to all noble Lords who have spoken and I recognise that we are where we are. This series of contributions has told me very politely that I am on the wrong track. I am very grateful for the politeness and the constructive comments.
I shall go home tonight recognising that perhaps I am on the wrong track in seeking to reintegrate children’s social care with adult social care. But if there is one issue that I think we agree on, it is that we need to make sure that children’s social care is being regulated properly and that if Ofsted is in any way struggling to do the job, then it needs to have the right tools and support. I hope that this short debate has not been in vain in that sense and that Ministers will keep a watchful eye on what is happening in that sphere. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Requirement to register as a service provider]:
moved Amendment No. 16:
16: Clause 6, page 3, line 35, at end insert—
“( ) In this Part “a person” may include, in particular, an employment agency established to supply—
(a) doctors, nurses or other healthcare workers to the National Health Service;(b) social workers to a local authority; or(c) nurses or other persons who may be employed by a service user to care for him in a private dwelling.”
The noble Earl said: My Lords, this amendment takes us to an issue which we have not previously debated at any length—the issue of employment agencies. The Department of Health’s consultation document, which sets out a registration framework to complement the provisions of the Bill, proposes, as I read it, that nurses’ agencies should cease to be regulated under the CQC. I seriously question the wisdom of this.
At the moment, agencies supplying nurses are registered by CSCI and have been registered and inspected since 1957. It is my view that patient safety requires that regulation of these nurses’ agencies should continue and that similar regulation should be introduced to agencies supplying doctors, social workers and other health professionals. The hospitals and care homes which hire agency staff have neither the expertise nor the time to carry out the appropriate background and qualification checks on temps when they suddenly find themselves desperately short of staff. Agencies must establish a pool of pre-checked staff and understand properly the complex needs of health and social care roles in order to assign staff safely. Without a validated register of agencies that can do this to recognised standards, hospitals and care homes will have no way of knowing that it is being done properly.
The Government’s proposal is that employment agencies dealing with permanent recruitment and agencies supplying temps should not be subject to registration by the CQC. The department argues that there is already adequate regulation under the Employment Agencies Act. However, under that Act there is no register of agencies able to supply healthcare staff to recognised standards. The regulatory provisions in the Act focus on worker rights rather than patient safety, and no routine inspection of the agencies takes place. Effectively, the inspectorate under the Employment Agencies Act does not know which all the agencies for healthcare staff are and does not check the sector expertise of those they do know. That is one area of concern.
The other area relates to the regulation of organisations involved in arranging both care and nursing in people’s own homes—domiciliary care agencies. As I understand it, the intention is that regulation of these agencies should continue. However, there is a signal omission in the consultation document that I should like to query with the Minister. Domiciliary care agencies, whether for nursing or care, consist of three types. First, there are agencies known as direct service providers, which deliver a fully managed care service, and most, I understand, are of this kind.
The second kind is employment businesses—a term of art, I believe—which supply staff to work under the direction and control of the service user. This sort of agency is becoming less prevalent but is regulated by CSCI to the same standards as direct service providers. If these agencies supply nurses, they have to register with CSCI as nurses’ agencies, even though they may be registered already under the Employment Agencies Act. However, the need for dual registration will cease under the current proposals.
The third kind of agency is employment agencies that merely introduce care workers to service users, which then employ those individuals directly without the agency being involved in any way with the employment contract. Usually, the nurse or care worker will be employed under a series of fixed-term employments lasting two or three weeks and will live at the home of the service user. This type of agency comprises only a minority of domiciliary employment agencies but they are a significant minority. The key difference here is that the agency has no control over, or contract with, the worker during the time that he or she is employed by the service user. At present, these agencies are regulated by CSCI to a specially shortened set of standards which reflect that fact.
The wording of the scope of registration in the consultation clearly includes the first two types of domiciliary care agency—that is, direct service providers and employment businesses—but it does not appear to encompass employment agencies at all. Indeed, there is no mention in the consultation of the kind of special arrangement that these agencies have in supplying staff to service users—a fact which indicates to me that the omission is a real one. Considerable numbers of people rely on the employment agency model to secure cost-effective and very flexible care. They also rely on a system of regulation which ensures that these agencies operate in a way that protects patients in an effective fashion.
Although this is a somewhat technical area, it is important, and I should be grateful if the Minister could reassure me that he will look closely at the concerns that I have raised and re-examine the department’s policy. There are some important question marks over the scope of regulation in the area of employment agencies and these need to be resolved. I beg to move.
My Lords, first, I am delighted this time to support the noble Earl, Lord Howe, in Amendment No. 16. I am amazed that this had not occurred to me or anyone else in Committee. I suppose that we all made assumptions—I assumed that agencies employing staff used in health and social care would somehow be covered. I could not believe that that was not so. I support the noble Earl and look forward to hearing the Minister's response and his reassurance that the Bill covers what the amendment is intended to cover.
My Lords, the noble Earl has set out the case very clearly, but I wanted to follow through briefly on the area of accountability. The noble Earl said that some care homes or establishments might be too busy to make checks. Organisations that are accountable for running a service must have the time to carry out appropriate checks. That means that there is probably a double set of checks on the agency supplying the person, but also on those who are using the services. The noble Earl has put his finger on exactly the right point in the third category he mentions, where people are being supplied to individuals and there appears to be a real gap in regulation. That is exactly where there needs to be regulation.
My Lords, we have been consulting on which particular types of care services should be within the scope of registration with the Care Quality Commission. The consultation, which closes tomorrow, on 17 June, is particularly relevant to Amendment No. 16, because we are waiting until we have carefully considered the responses to the consultation before determining the range of agencies that will be regulated by the commission. I am grateful to the noble Earl for raising the issue and have no doubt that after receiving the responses tomorrow, we shall come back at Third Reading to address any gaps in the clauses.
I shall make just a few points about definitions. The definition of “a person” in Part 1 may be a legal person—that is, an organisation or body—or, as I have been told, a natural person—that is, an individual. The Bill provides for the regulation of activities, and service providers will be required to register in respect of the activities listed in secondary legislation as “regulated activities”. There is no reason why “a person” cannot be an employment agency.
In our consultation on the framework for the registration of health and social care providers, we have proposed personal care and nursing care as regulated activities. Agencies which supply healthcare workers fall within the scope of the Care Quality Commission, even where they supply services to children, as those are not regulated by Ofsted.
We propose that anyone providing personal care or nursing care in people’s own homes—excluding, of course, relatives, friends or neighbours—should register with the commission. This therefore would include domiciliary care agencies. However, to avoid dual regulation, we propose that where workers are supplied to deliver personal or nursing care solely in settings where a person is already registered by the commission with regard to that activity, these types of agencies should not need to be registered. For example, where an agency supplies workers to a care home, the care home will already have to register and meet registration requirements. As I said earlier, we specifically asked about this in our consultation and we will consider the responses carefully before making a final decision.
There is one other issue on proposed subsection (b) of the amendment. Qualified social workers employed by local authorities are regulated professionally by the General Social Care Council. Where a local authority provides a regulated activity, such as a local authority-run care home, it is intended that the care home that provides the accommodation, together with personal or nursing care, will be regulated, as I said earlier. Finally, in complying with the registration requirements, the provider will have to ensure that workers are safe and competent under proposed registration requirement No. 15 in our consultation document.
As I promised earlier, if there is still a gap and if we are wiser after the consultation, I will look into this and bring forward any necessary amendments at Third Reading. I hope that the noble Earl will withdraw his amendment.
My Lords, that was a very helpful reply from the Minister. Of course I understand that, at this point, before the consultation has finished, it is difficult for him to comment in detail on these issues. I am grateful to him for saying that he will look at the points that I have raised and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Cancellation of registration]:
moved Amendments Nos. 17 and 18:
17: Clause 13, page 6, line 14, at end insert—
“(1A) The Commission must cancel the registration of a person under this Chapter as a manager in respect of a regulated activity if—
(a) no-one is registered under this Chapter as a service provider in respect of the activity, or(b) the registration of a person under this Chapter as a service provider in respect of the activity ceases to be subject to a registered manager condition.”
18: Clause 13, page 6, line 21, leave out paragraph (d) and insert—
“(d) any other offence which appears to the Commission to be relevant.”
On Question, amendments agreed to.
Clause 16 [Regulation of regulated activities]:
moved Amendment No. 19:
19: Clause 16, page 8, line 11, at end insert “including, in particular, the handling of recommendations for remedial action arising out of such complaints or disputes”
The noble Earl said: My Lords, I shall speak also to Amendment No. 73, which brings us to the important issue of complaints made by service users, and in particular by residents of care homes. We had a useful series of debates in Grand Committee on this subject. Clause 16 says that the Secretary of State may impose requirements in regulations that those delivering regulated activities will have to meet in order to be registered by the CQC. Among other things, the regulations may make provision,
“as to the handling of complaints and disputes”.
In other words, as I understand this provision, a service provider would need to demonstrate that it had systems in place to enable service users to make a formal complaint, and systems that enabled the complaint to be looked into and resolved. I am more than happy with that idea. However, it does not go quite far enough.
We need to know that the CQC will not simply look at whether an establishment has a complaints procedure, but that it will also make sure that, if a complaint is made and a finding or recommendation emerges from the subsequent investigation—whether by the ombudsman or the provider itself—the recommendation is acted upon in an appropriate, timely and fair manner. In other words, it is not just the handling of the complaint that matters, but the handling of what comes out of the complaint. That point is of particular importance for the reasons given in Grand Committee by the noble Baroness, Lady Finlay, and my noble friend Lord Onslow. They highlighted the risk that someone in a care home, or receiving care in their own home, might be frightened to complain, in case their complaint rebounded on them in a vindictive fashion. The noble Countess, Lady Mar, told us about the very disturbing experience of her mother.
The way in which a provider handles the follow-up to a complaint is every bit as important as the way in which it handles the complaint. The CQC should concern itself with that as well. The noble Baroness, Lady Thornton, promised to circulate a flow chart showing how complaints in each type of care setting will be processed under the new system. However, I am not aware that she has yet done so. I look forward to receiving it, if that is still possible.
The other unresolved concern in this area is covered by Amendment No. 73. Those who fund their own care in a care home are particularly vulnerable. If they are aggrieved, they will not be able to turn to the CQC. Nor will they be able to turn to the ombudsman. They are not covered by the Human Rights Act. Therefore, if they make a complaint and are to have it resolved properly, they are totally reliant on the integrity and honesty of the management of the home. In my view, the position is one that leaves this vulnerable group of individuals unacceptably exposed. Up to now, the Government’s answer has been that self-funders are people who have entered into a private contractual arrangement. If they do not like the care they are getting, they can move. The noble Baroness, Lady Thornton, did not resort to saying that, but other Ministers have done so. When we hear that line of argument, we all share the same concern: it is a lawyer’s answer. The fact is that many elderly people in care have neither the emotional strength nor the intellectual capacity to make a complaint, let alone carry it through to a conclusion, and to expect them to be able to exercise their legal rights by moving to another home is often equally unrealistic. They are unable to countenance even the thought of moving.
These are often frail and vulnerable people who simply cannot cope with tasks that younger people take in their stride. I believe that there is a strong case for giving those people an avenue through which they or their family and friends could pursue a grievance if the care provider has not resolved it satisfactorily. It is not possible to think in terms of the CQC providing such an avenue because of the scope of its statutory remit. That is why I am suggesting that local authorities should act in this capacity. The local authority has a role in the case of all elderly vulnerable people in so far as it is obliged to carry out a statutory needs assessment for all such individuals on request. It has that role even if the person ends up by paying for all of his or her own care. I appreciate that there are significant resource implications that need to be thought through, but many self-funders will be living in homes which are also occupied by people whose care is commissioned and funded by the local authority. In respect of those homes, there is an argument for saying that it is in the interests of local authorities as responsible commissioners to become aware of areas of concern, however they arise and whoever it is that brings those concerns to their notice.
I hope that the Minister will at least think carefully about this proposal. I for one believe that it is too important an issue to be left hanging in the air. If we can resolve it during the passage of this Bill, we should certainly do so. I beg to move.
My Lords, I rise to support Amendments Nos. 19 and 73 and to speak to Amendment No. 20. My noble friend Lady Finlay has asked me to give her apologies to your Lordships’ House. She has put her name to these amendments, but unfortunately she has an engagement arranged a year ago that she is unable to break.
Amendment No. 19 envisages regulations providing for the CQC to ensure the implementation of recommendations coming out of complaints investigations. The noble Earl, Lord Howe, referred to this in relation to care homes. I want to say a few words about its relevance in relation to health trusts as well. I happen to be very well aware that health trusts can be relied on to undertake investigations into complaints; they could not get away with not doing that. But my experience of this is that they are far less reliable in terms of following up the recommendations coming out of those investigations, and yet without doubt it is those lessons which are far more important in fact than the investigations themselves. If you carry out the investigation and do nothing about the lessons, you will have achieved very little. In Committee I mentioned a particular case where a complaint had been made, an investigation undertaken and recommendations issued that a clozapine clinic should be established. In fact, nothing happened after that recommendation, with the net result that the patient contracted diabetes, which of course will affect him for the rest of his life. That is how serious it can be if these recommendations are not followed through with. They—not always, but often—throw up some serious issues.
Considerable resources are devoted to these investigations. A lot of professionals’ time is devoted to thinking through the ramifications and the lessons that need to be learnt. It is therefore incredibly cost-ineffective if this is not done. As the noble Earl, Lord Howe, mentioned in speaking to Clause 16, the regulations already make provision for the handling of complaints and disputes. All this amendment does is to make sure that this piece of complaint handling—the following up of recommendations—is not neglected. I find it difficult to imagine that Ministers will not be more than happy to incorporate that small adjustment.
I speak briefly to Amendment No. 73, which seeks to ensure that self-funders in care homes have access to an independent complaints procedure. The noble Earl, Lord Howe, has, as always, spoken eloquently on this. I make a couple of points. First, in discussing this, a number of us are concerned that we should not establish new bureaucracy, new procedures and elaborate new approaches. The idea of tacking the complaints process for self-funders on to existing local authority procedures is as cost-effective as you can make it. While the noble Earl, Lord Howe, suggested that this may be very expensive, my fear is that it could be rather inexpensive because, even if there is a relatively independent complaints process, such vulnerable self-funders in homes will be disinclined to make complaints, as will their relatives. Only in the most dramatic circumstances will such complaints be made. For that reason, it is important to have this facility. What about somebody who is, as it were, semi-starved? I happened to have a relative in such a situation some years ago. The idea that you cannot do anything about that because you feel so vulnerable, particularly if the complaints process is not independent, is a pretty appalling state of affairs in our society. That is one point: this is about as cost-effective as you can get it.
Secondly, if Ministers are willing to accept this point, the regulations will need to make clear who can make such complaints. Tragically, the sort of people we are talking about will probably not be in a position to make the complaints themselves. Some of these people do not have any relatives to complain on their behalf. It may, indeed, be a CQC or LINk representative—or somebody of that kind—who sees something appalling happening and is the only person who can make a complaint on behalf of that resident. I put that concern on record.
I go on to speak to Amendment No. 20, which makes provision for regulations to,
“impose requirements as to the need to reduce health inequalities and discrimination on the basis of disability”.
It will also ensure that the CQC takes full account of the Disability Discrimination Act 1995. My perspective, as always, tends to be a mental health one, simply because that is where my experience lies. I have no doubt that this amendment has relevance to other groups of people with disabilities. Currently, people with severe mental illness die 10 years younger than the population at large. They are particularly at risk of contracting heart disease, hypertension, diabetes, breast cancer, respiratory problems and bowel cancer. I suggest that health trusts are failing on a massive scale to fulfil their duties under the Disability Discrimination Act.
Unwittingly, general practices may also make it quite difficult for this group to receive the services that they need. Many people with severe mental illness require reasonable adjustments in order to gain access to services. For example, on a practical level, people who are taking sedative medication should not be required to telephone at 8 am to get an appointment. This is of some importance. Practices which fail to adapt their policies in this kind of practical way are probably creating health problems rather than helping with them. For example, some people will stop taking medication for their psychiatric disorder in order to ensure that they can get up in the morning and have their physical health dealt with.
Why is there apparently so little special provision for people with mental health problems? When you consider that about one person in six experiences mental health problems at some time in their life, it is important to question whether GPs have anything like adequate training in mental health. If GP trainees do not opt for a psychiatry job during their senior house officer years, they can qualify with little or no real exposure to the range of serious mental illnesses from which many of their patients will suffer, or to the minor mental health disorders from which 30 per cent or so of their patients will suffer.
In my experience, the physical care of patients in psychiatric hospitals has been badly neglected over the years. Some additional resources are finally now being devoted to this issue; they are certainly well overdue. Insufficient attention is still paid to problems such as obesity despite the fact that a great deal of psychotropic medication leads directly to increased weight unless great care is given to the issue. The health regulator should surely have a remit to require some progress to be made to reduce this gross inequality.
In the early stages of the CQC’s life it may have to focus on secondary health services rather than general practice and the proposed amendment allows for development over time. By leaving this issue to the realm of regulations we are avoiding imposing obligations on the Government which may prove impractical in the period immediately following the establishment of the CQC. I hope the Minister will see this as a fairly modest amendment but one of profound importance.
My Lords, I wish to make a point in relation to Amendment No. 73. The National Health Service and local authorities are often described as monolithic, lumbering entities, but they can move with the swiftness of a gazelle when they see a financial liability looming. It is important that whatever legislation we put in place is grounded in reality. For eight years the National Health Service and local authorities argued with all the power and might of Philadelphia lawyers to get out of the possible liability of NHS continuing care, and it is important that we recognise now that no local authority in its right mind would go near a self-funder and advise them if it thought there was the remotest possibility that in doing so it would somehow attract a liability for that person’s care.
It is incredibly important that self-funders have easy and swift access to some kind of support and I agree that it is preferable that that should be local to them. It is even more desirable that it is not a reactive service but a proactive one provided by people who come along and see someone, perhaps in a care home, whose capacity has perhaps declined since they first went in. If we want local authorities to do this, therefore, it is of the utmost importance that it is spelt out that they will not assume a liability for care by default; otherwise it will not happen. As the noble Earl, Lord Howe, said, at the moment local authorities have a statutory duty to assess, which they do not do in many cases. So they are not going to do this unless they are shielded from liability. That is my first point.
My second point is that my former colleagues at Age Concern have noted during the progress of the Bill that the Government have talked about self-funders having access to an independent adjudicator if they have a complaint, but there is no detail about what the process will be, how people will access it and so on. We should have some detail about that. Notwithstanding the problems of the Human Rights Act and its inapplicability, it is important that we have some idea of how that will work and the timeframe for it. When the current investigatory powers of the Healthcare Commission are removed, that is one more element of protection that will be lost.
The capacity of the health service ombudsman to deal with complaints is in question. I know that the ombudsman has gone before Select Committees in the other place and stated on record that there are no delays, but older people are still reporting considerable delays in having their cases taken up by the ombudsman. It is important that we have a timescale. Older people in care homes do not have long to hang about and get their complaints looked at because their average lifespan is very short.
I thank the noble Earl, Lord Howe, for raising this matter again. We need to nail down those two issues to get something that will be at all workable.
My Lords, perhaps the noble Baroness has read something into the amendment that is not quite there. It does not say that the local authority would have one of its employees act as a person handling complaints. It simply says that a matter should be referred to a local authority. It would be quite possible for a local authority to have at its disposal a team of people acting voluntarily who would take on the responsibility of carrying out the task of dealing with complaints. There is not necessarily any expenditure implication for a local authority or body in this amendment, as I understand it; there is simply a responsibility for it to accept it. It can then deal with it in the way I have suggested.
My Lords, I support Amendment No. 20, to which I have put my name. I shall speak briefly on it because time is getting on and the noble Baroness, Lady Meacher, has already moved it clearly and cogently.
The absence of public health from the Bill has been noted intermittently in our debates. Anna Walker, the chief executive of the Healthcare Commission, has bemoaned the fact that the registration requirements explicitly say that the commission cannot bite on public health issues, so the CQC is dealing with healthcare rather than health. Amendment No. 20 offers a gentle but necessary correction to that tendency.
As for disability discrimination, people exercising functions of a public nature are already prohibited from discriminating against disabled people under the Disability Discrimination Acts. The 1995 Act prohibits discrimination in the provision of goods and services, so Amendment No. 20 would not add a particularly onerous new burden on health authorities. It could, however, deal with some cases that are not covered by existing law. For example, it has been brought to my attention that people with mental health problems have particular difficulty when trying to volunteer in a health or social care setting. The Disability Discrimination Act would help to overcome that situation. Most importantly, it could enable the CQC to help providers to relate existing law and best practice to the daily reality of health and social care provision. The amendment would make things clearer and easier for both users and providers, and I am happy to support it.
My Lords, we have had a number of useful debates about what requirements should be set under Clause 16. In Amendments Nos. 19, 20 and 73, the noble Earl, Lord Howe, the noble Baroness, Lady Meacher, and the noble Lord, Lord Low, have raised two issues that have attracted considerable debate: complaints, particularly the need for adequate arrangements for those who arrange their own care; and the importance of reducing health inequalities and discrimination.
Perhaps I may respond first to Amendment No. 73. As the noble Earl, Lord Howe has made clear, the amendment is intended to fill a gap that exists when those who do not qualify for state support make a complaint about a service and feel that it has not been addressed appropriately.
I remind noble Lords that anyone who has their care arranged by a local authority, even if they pay the full cost of that care, can refer a complaint to the Local Government Ombudsman. However, as I hope I made clear in Committee, we recognise that the fairness of current arrangements for those who arrange their own social care is an issue. We are talking to key stakeholders to agree a solution. We recognise the concern of the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, who also raised the matter.
However, I am afraid that I am not able to say anything more in detail about that, other than that we expect to be able to put forward proposals soon. I hope to be able to make a statement regarding independent adjudication within the timescale of the Bill. The noble Baroness, Lady Barker, was correct that this is a complex issue. Therefore I should perhaps also say that, given the complexity of the ongoing discussions, we would not be able to bring legislative changes forward in the scope of this Bill. I hope that, given that assurance that we take the issue very seriously, the noble Earl will feel able to withdraw this amendment.
When we debated these matters in Committee, I believe that we all agreed that it is as important that action is taken to follow up and learn from complaints as it is that they are dealt with properly. Amendment No. 19 would ensure that regulations under Clause 16 included requirements about how recommendations following a complaint were taken on board.
I described to the Committee requirement 10 in the registration requirements, on which we have consulted. It would require providers to ensure that there were simple, clear arrangements for handling complaints and disputes, and that complaints were investigated and resolved promptly and effectively. Crucially in light of our debate now, it would also require providers to ensure that learning from complaints was reflected in risk management, quality assurance, clinical governance and training and development arrangements. Learning would be informed by a variety of sources, but we would expect recommendations from the ombudsman and other key sources to play a vital role. The commission will be able to use the full range of its enforcement powers to take action where people fail to meet those requirements.
I believe that we are in the same place here. However, I recognise concern that there should be a clearer indication in the Bill of the importance we place on this issue. I therefore undertake to consider Amendment No. 19 with a view to bringing back an amendment at Third Reading.
I turn to Amendment No. 20. The noble Baroness was absolutely right about the need to tackle health inequalities, on which she spoke with her usual great eloquence, and to ensure that services provide comprehensive healthcare to people even when they have particular needs that require specialist support. As I said in Committee, we have been consulting on registration requirements which are particularly relevant. However, every requirement is relevant, which is why it will be important that the commission enforces them all with equal rigour.
Amendment No. 20 seeks to address discrimination. I appreciate that it is driving at the ability of the commission to act in relation to a failure to implement the Disability Discrimination Act. The Bill already provides the commission with precisely such a power. It will be able to take action against a registered provider in relation not only to the requirements in this Bill but to those in other relevant legislation. I agree with the intention of the amendment, but there is no need to duplicate requirements that already exist in legislation. What we must provide for, as the Bill already requires, is that the commission is mindful of those requirements when it monitors services. In light of this, and my commitment to look again at Amendment No. 19, I hope that the noble Earl and the noble Baroness will agree not to press their amendments.
My Lords, I very much welcome the Minister’s reply on the issues raised by Amendment No. 19. I am grateful to her for saying that she will take the matter away and look at it again. That is great news.
It was encouraging to hear the noble Baroness say that she is looking actively for a solution on self-funders, and that proposals are likely to emerge soon. It is a pity that she is not yet in a position to go further than that.
We had some extremely useful contributions, notably from the noble Baronesses, Lady Meacher and Lady Barker. I completely take the point of the noble Baroness, Lady Barker, that local authorities would not wish to perform the function I propose if there is any possibility that they may acquire a liability for the complainant’s care. I am not sure how that could come about but, if it is a risk, the contingency should certainly be avoided.
The noble Lord, Lord Campbell-Savours, suggested an interesting way that the local authority might fulfil the function. I am grateful to him for that. Regrettably, this is not a matter that we will be able to take further this evening. I look forward to further discussions with the Minister, perhaps outside these four walls. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
moved Amendment No. 21:
21: Clause 16, page 8, line 16, leave out from “for” to end of line 21 and insert “—
(a) the prevention and control of health care associated infections;(b) the safeguarding of individuals (whether receiving health or social care or otherwise) from the risk of any increased risk of being exposed to health care associated infections or of being made susceptible or more susceptible to them;(c) the displaying, in a place accessible to the public on the premises of the service provider, information relating to the incidence of health care associated infections, subject to the following provisions—(i) that the display of such information be in a location agreed by the Commission;(ii) that the information be made available in a form prescribed by regulations;(iii) that the information made available relates to each and every outbreak of such infection on the premises of the service provider in the previous six month period;(iv) that the information on health care associated infections provided under this paragraph shall be confined to those infections required to be published by the Secretary of State.”
The noble Lord said: My Lords, I have been very brief on my last three interventions but will be longer on this one. This is the first of a series of amendments that fall under the general heading of transparency. I am hoping to move a number of similarly themed amendments on a number of other Bills. Some may appear controversial, but I am increasingly convinced that transparency plays a vital role in the exercise of influence over conduct in both public and private sectors.
In overview, transparency is a powerful tool to be used in securing greater economy, efficiency, effectiveness and accountability in the control of enterprise and in the provision of public services. It conditions conduct. I believe that we have not even begun to consider the scale on which it can be applied and what are the consequences. That principle underscores my amendments to the Bill.
Amendment No. 21 is based on my own observations over the years, both as a patient and as a visitor, of what happens in many hospitals. It also stems from my experience as an MP in the late 1990s in trying to extract information from my local area health authority on the incidence of MRSA in individual hospitals in Cumbria—not statistics on death but statistics on infection. The only statistics it was prepared to provide me with were trust-wide statistics, and the only way you could secure information about the incidence of infection in any particular institution at that time, or even ward, was through unofficial personal contacts, but of course that rendered the information gained as unusable.
I am more than conscious of the many programmes that have been put in place to help reduce the incidence of hospital-acquired infections—the use of hand-washing facilities and gels, the deep clean programme, the designation of responsible officers, the wearing of disposable garments, pre-admission screening, and hospital-based uniform laundering services. I am equally aware of the Winchester approach and arrangements in Holland. The Winchester and Eastleigh healthcare NHS trust has been very successful in its campaign to eradicate MRSA. Its use of pre-assessment screening techniques; the requirement that the use of cannula be prescribed and then monitored daily; additional care over the use of catheters; and the emphasis on stricter standards of ward cleanliness have all contributed to the collapse in the incidence of MRSA in the hospital. There has been only one case in the past six months, and that was community-acquired.
Contrast that with the sloppy conditions that remain in some hospitals and the casual approach that some hospital staff have to the need to secure the highest possible standards of cleanliness. For example, some hospital toilets and even bathroom facilities are filthy, even today. Some hospital ward floors are not kept constantly clean. Some nursing staff, thankfully a minority, allow standards of personal hygiene to slip. Some ward managers run a highly intensive use of hospital beds, resulting in an increased risk of contamination. Some consultants believe that they are somehow beyond the rules and do not always apply them to themselves and are rarely challenged by ward staff. Some hospitals are unable to enforce contractual agreements on cleaning due to managerial inadequacy. Some hospitals suffer from failure due to ward politics and personality conflict.
I argue that applying principles of transparency could make a difference in the attitude of some staff and break down barriers to hygiene programme reforms where they exist. If you make a ward publicly accountable for its hospital-acquired infections by making statistics available in a public place, it will have a marked effect on attitudes to hygiene control within the ward. Wards would not want to be identified as at risk and ward managers, whether they be admin staff, matrons, sisters or whoever, would demand the highest possible standards and would challenge any activity which they felt would prejudice the inspection control integrity of their ward. Yes, it would cause ructions within hospital management structures. Yes, it would irritate a lot of people. Yes, it might even lead to ward boycott on occasions. But it would concentrate the mind of everyone involved in hospital care on the need to drive out infections. It would have a knock-on effect right up the line through to the national allocation of resources for this area of inspection control. It would unleash that backlash of public opinion which is often needed when major change is necessary and it would focus the minds of not only the movers and shakers in healthcare but the wider community on the need to stamp out this menace which now frightens millions of people in this country.
I close by reminding noble Lords of the European tables on hospital-acquired infection, particularly as regards MRSA. I shall not go through them in detail but they show that the UK has the highest incidence. I believe that if my amendment became law and were implemented by the new commission, it would have a marked effect on the whole incidence of hospital-acquired infections. I beg to move.
My Lords, I thank my noble friend Lord Campbell-Savours who outlined these very serious issues in his usual clear and moving way. I welcome the opportunity to say how important it is that we take strong action to tackle infections.
Amendment No. 21 would restructure the existing provision in relation to infections to require the commission to require providers to display information on their premises about recent instances of infection. Let me say straight away how sympathetic I am towards my noble friend’s intention with this amendment. It is, of course, crucial that such information is easily accessible to the public. I believe that this will be the case even without this amendment, but there is also scope for regulations under Clause 16 to include requirements along these lines. Although this issue is not covered in the current consultation, we will be consulting further later this year on the detail of what regulations under Clause 16 will cover.
As noble Lords will be aware, these regulations will also include provision on managing infections and we will be revising the current code of practice on healthcare-associated infections, which will be used to determine compliance with those regulations, to apply to all regulated activities. Under the current code of practice, every NHS body is also required to have a director of infection prevention and control, who is required to make an annual statement on HCAIs in the organisation and to make this available to the public. In revising the code, we will consider how information on infections should be provided in all sectors. The revised code will be subject to a full public consultation so there will be an opportunity for people to comment on our proposals.
In addition, the Health Protection Agency collects data on instances of MRSA, C. difficile and other infections from acute trusts under the mandatory surveillance system. These data are available on its website, where patients and their families can access the rates for each trust. Some information is also available on the NHS Choices website.
Of course, the Bill already requires the commission to publish inspection reports under Clause 57(3), and Clause 80 requires the commission to make its reports available to the public, just as the current commissions do. I expect that, as now, reports will be available via the commission’s website and the public will also be able to request hard copies. We intend to publish regulations under Clause 85 requiring the commission to publish certain information about enforcement action that it has taken. This means that the public will be able to access information about how the commission is using the new powers it will have at its disposal to address infections wherever they occur. Of course, the commission will also publish information on how well services are performing for the purposes of public accountability, supporting people in making informed choices.
So, arrangements are in place for this kind of information to be made available to the public, either by the commission or others. I hope that I have reassured my noble friend that we want to ensure that the public can access information about the services they use, that the Bill will in fact strengthen these arrangements, and that he will therefore agree to withdraw this amendment.
My Lords, I am grateful to my noble friend and I shall refer her remarks to the colleague with whom I have been discussing these matters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Notice of proposals]:
moved Amendment No. 22:
22: Clause 22, page 11, line 35, after “than” insert “by virtue of section 13(1A) or”
On Question, amendment agreed to.
Clause 30 [Offences relating to suspension or cancellation of registration]:
moved Amendment No. 23:
23: Clause 30, page 16, line 1, leave out subsections (2) and (3) and insert—
“( ) A person (“M”) whose registration under this Chapter as a manager in respect of a regulated activity is suspended is guilty of an offence if, during the period of suspension, M manages that activity at a time when no one else has been registered under this Chapter as a manager in respect of the activity since the suspension of M’s registration.
( ) A person (“M”) whose registration under this Chapter as a manager in respect of a regulated activity has been cancelled is guilty of an offence if M manages that activity at a time when—
(a) a person (“S”) remains registered under this Chapter as a service provider in respect of the activity,(b) S’s registration remains subject to a registered manager condition, and(c) no-one has been registered under this Chapter as a manager in respect of the activity since the cancellation of M’s registration.( ) If a person (“M”) who is registered under this Chapter as a manager in respect of a regulated activity manages that activity while the registration of the person registered under this Chapter as a service provider in respect of the activity is suspended, M is guilty of an offence if M knows or could reasonably be expected to know of the suspension.”
On Question, amendment agreed to.
Clause 35 [Bodies required to be notified of certain matters]:
moved Amendment No. 24:
24: Clause 35, page 17, line 41, at end insert—
“( ) to the General Social Care Council, and”
The noble Baroness said: My Lords, I do not know whether to be flattered or terrified that I have to do this in the presence of three former health Ministers with whom I have debated the existence of the General Social Care Council over the past nine years, as well as the current incumbents.
My Lords, it is such riveting stuff that it is desperately difficult to keep away.
I return to two issues that we debated in Committee. I put my hands up to the fact that these are issues for social care anoraks, but none the less they are important in the greater scheme of things.
Amendment No. 24 returns to the question of which bodies are notified when the commission takes action under Clause 35. We talked at length in Committee about what would happen if action were taken against an individual social care worker. I understand, following helpful discussions with the Bill team, that in Clause 35 the bodies which are required to be notified are those responsible for the provision of care. We have so far not dealt with the fact that one of the standards on which providers will be judged is that they should only use registered staff if they are to be compliant. It seems to me that if a provider is found not to be compliant because they continue to use unregistered staff, that matter should be automatically reported to the General Social Care Council. I understand that under Clause 35(1)(d), “other persons” could include the General Social Care Council, but the General Social Care Council has an importance within the field of social care, being the registering body for social care workers, so I think that it merits mention on its own.
Amendment No. 33 returns to the assessment of social care needs. I listened very carefully to the view put forward by the noble Baroness in Committee that commissioning would involve such an assessment. I disagree with that because very many PCTs, and increasingly local authority social services departments, are divesting themselves of their provider arms. They are in future unlikely to be commissioning large volume services for users with the growth of individual budgets and self-directed care. I was interested earlier to hear noble Lords talking about local authority homes. I do not think there will be local authority homes in future. In the group of amendments on agencies, spoken to by the noble Earl, Lord Howe, we underplayed the importance of brokers who will broker care for people who are going to buy it with individual budgets. So it is not fantastic to foresee a time fairly soon when local authorities will not be commissioning care, because that will be done under self-assessment and individual budgets. It is important to ensure that social care needs are assessed, even when they are not met and even when they are not recognised through the commissioning process. For that reason, I return to these two somewhat technical-sounding issues, but ones on which the quality of social care depends quite heavily. I beg to move.
My Lords, looking first at Amendment No. 33, I agree with the noble Baroness that assessing the quality of services provided is impossible without an assessment of the needs of the population that is being served. For local authorities, both individual needs assessments under Section 47 of the National Health Service and Community Care Act 1990 and joint strategic needs assessments carried out jointly with PCTs under Section 116 of the Local Government and Public Involvement in Health Act 2007 are relevant here. Joint strategic needs assessments relate to the needs where there is an overlap between what the PCT and local authority might provide and identify the current and future health and well-being needs of the local population. Local authorities are required to carry out individual needs assessments of those individuals who appear to them to require social services.
Both of these functions are statutory duties of the local authority and play a crucial part in ensuring the effective provision of care, especially when one bears in mind that models of care, particularly adult social care, are changing very rapidly indeed. Both could therefore be encompassed within the commission’s reviews under Clause 42 or, indeed, Clause 44. Obviously, exactly what will be encompassed in those reviews will be dependent on the indicators that the commission will play an important role in developing.
When reviewing the provision of adult social services by local authorities, the commission will assess performance by reference to a set of national indicators. These indicators will form part of the single set of national indicators to be reflected in local area agreements used in comprehensive area assessments. These indicators could therefore look at the assessment of needs as part of the assessment of the performance of a local authority.
In addition, we have proposed that the registration requirements should include a requirement on providers of regulated activities to ensure that all people receiving services have their needs assessed, as we said in Grand Committee. In this way, not just those whose care is arranged or funded by the local authority are looked at by the Care Quality Commission, but all service users are covered. If a local authority as a provider is failing in this respect, the commission will be able to take direct action. I also reassure noble Lords that where the commission finds in its reviews that a local authority is failing in the performance of its adult social services functions, including the statutory duties to carry out needs assessments that I have mentioned, it will be obliged to inform the Secretary of State and can recommend any special measures that it considers that the Secretary of State should take under Clause 46.
I turn to Amendment No. 24. In Grand Committee, my noble friend Lady Thornton explained that we agree with the noble Baroness, Lady Barker, on the importance of the General Social Care Council as the key body in relation to the registration of the social care workforce. I have considered the noble Baroness’s concerns carefully and hope to provide reassurances. I should perhaps make it clear that under Clause 85 we anyway intend to allow the commission to make information about enforcement action publicly available.
Obviously, in cases where local authorities are commissioning social care from service providers against which the Care Quality Commission has taken enforcement action, noble Lords will agree that it will be crucial that the commissioning body should have notice of that enforcement action, so that it will be able to commission alternative services from other provider organisations, if necessary. The same would apply to a PCT. Therefore, we have specified those bodies in the Bill. For NHS organisations, Clause 35 specifically allows SHAs and Monitor also to be notified, and this will apply where they have performance management responsibilities regarding a particular body.
We recognise that, in contrast to healthcare, a large proportion of social care services are provided by the independent sector and are self-funded. In many, if not in the majority of cases, the commission’s action will be against an organisation as a whole, rather than against a specific member of staff. In such cases, it is not necessary to require the commission to inform workforce-related bodies, such as the GSCC, as it would not fall to it to take any specific action. That said, when the Care Quality Commission has taken enforcement action against a specific person who is registered with the GSCC—for example, a registered manager who is also a registered social care worker—of course we would anticipate that the commission would inform the GSCC, as enabled by subsection (1)(d), which requires the commission to give notice of the actions specified to any other persons it considers appropriate.
In recognition that there may well be such cases, and if the noble Baroness would find it helpful, we would be very happy to specify the General Social Care Council explicitly within the explanatory notes to Clause 35 as a particularly important example of a body that may need to be notified under subsection (1)(d). I believe it would be preferable to make this link clear but leave a certain amount of flexibility according to the circumstances rather than accept this amendment as it stands, which will require the commission to inform the GSCC about every enforcement action it takes, whether concerning a person registered with the GSCC or not. Given those reassurances, I hope that the noble Baroness, Lady Barker, will feel able to withdraw her amendment.
My Lords, I thank the Minister for that reply. I take his point about the GSCC and it is a helpful suggestion that it be referred to in the explanatory notes. On Amendment No. 33 and the periodic reviews, I welcome his statement about assessment. I will read his words carefully in Hansard. I wish to satisfy myself absolutely that what I wish to see—the assessment of all social care needs, not just those social care needs which meet eligibility criteria, which is actually what he said—is there. With that caveat, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 [Death of registered person]:
moved Amendment No. 25:
25: Clause 38, page 18, line 38, after “where” insert “a person who was”
On Question, amendment agreed to.
Clause 39 [Power to modify Chapter in relation to newly regulated activities]:
moved Amendments Nos. 26 and 27:
26: Clause 39, page 19, line 10, after “any” insert “regulated”
27: Clause 39, page 19, line 25, at end insert—
“( ) Any regulated activity carried on by or on behalf of the Crown is for this purpose a newly regulated activity.”
On Question, amendments agreed to.
Clause 41 [Standards set by Secretary of State]:
moved Amendment No. 28:
28: Clause 41, page 20, line 5, leave out “may” and insert “shall”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 29 and 31 standing in my name and in the names of the noble Earl, Lord Onslow, and the noble Lord, Lord Dubs. These amendments are proposed by the Joint Committee on Human Rights and are a very slightly amended version of amendments not moved in Committee. Currently, the Bill provides for the Secretary of State to have the power to make standards in relation to the provision of NHS care. The Joint Committee on Human Rights is proposing that “may” should become “shall” and that the power to publish standards should also apply to all health and social care. We are also proposing that these standards should include specific and detailed matters to ensure that human rights are respected. This list in Amendment No. 31 is not plucked out of the air. It is based very closely on the recommendations arising from the Joint Committee on Human Rights’ inquiry into older people in healthcare. In that inquiry, the committee welcomed the existing healthcare standards which require the NHS to respect human rights and treat patients with dignity and respect. However, the committee felt that more specificity was needed. This was based very much on what emerged in our inquiry from the evidence we received and the places we visited.
The committee considered that the human rights of residents should be explicitly addressed in the standards which apply to both health and social care to make it clear that the human rights of people in care homes are as important and as enforceable as the human rights of patients in hospital. The committee went on to make a recommendation about the Bill we are discussing today. I will quote briefly what we said:
“We also recommend that when the Health and Social Care Inspectorates are merged the standards applicable to quality of care and other issues engaging the human rights of users of services should be the same for both NHS trusts and care homes. The unified standards should expressly require compliance with human rights standards by hospitals and care homes and state that patients and care home residents have the legal right to respect for and protection of their human rights. The newly established inspectorate should provide guidance to providers of services on the implications of such requirements”.
The Government responded to that recommendation very helpfully, saying:
“It is our intention to introduce an integrated registration system across health and adult social care, based on a set of requirements that apply across all settings”.
In light of that commitment, I ask the Minister why the Bill currently enables the Secretary of State to make new standards for the NHS but not for social care and why the Government do not consider it appropriate to require the Secretary of State to introduce standards that will explicitly provide for the protection and promotion of the rights of service users. I beg to move.
My Lords, in Amendments Nos. 34A and 34B, which are grouped here, I turn to an issue that I consider to be of fundamental significance for this part of the Bill and our understanding of the identity and functions of the Care Quality Commission. The issue turns on a very basic question: will the CQC actively promote the highest standards of care and treatment in health, social care and mental health, or will it merely seek to maintain and police a set of minimum standards that are geared to patient safety? The two aims are completely different. It is no exaggeration to say that the very character of the organisation will rest on what the answer to the question is.
At the moment, we see the Healthcare Commission making it its business to assess the performance of NHS providers against not only a scale of quality standards but also each other in the way that trusts are ranked. The commission sees itself not just as a promoter of patient safety but also as actively assisting the drive to raise standards of care across the piece. In the same way, CSCI operates a quality rating system, which aims to achieve something very similar with social care providers.
What prospect is there of the CQC continuing this kind of corporate mission? I was very struck when I read a few days ago chapter 6 of a document published by the Department of Health called Developing the NHS Performance Regime. The chapter covers independent regulation and says in paragraph 150:
“The main responsibilities of the CQC are to … register health and social care providers … carry out a periodic assessment of all NHS providers and commissioners … carry out special reviews of services, along patient pathways or into other areas of concern or risk in terms of patient safety … carry out investigations into specific organisations where CQC believes that user safety is seriously at risk; and gatekeeping and proportionate regulation … However, the principal role of the CQC will be to register health and adult social care providers”.
I do not belittle the importance of patient safety; of course not. However, the message from that to me is quite concerning; it is of a piece with the consultation document issued by the department on the framework for the registration of health and social care providers. That says, in paragraph 2.13:
“The set of registration requirements in this consultation is intended to protect people using services from the risk of harm involved in the provision of health and social care. They do not seek to enforce best practice that other parts of the system will promote”.
“In moving to a regulatory system which is based on essential safety and quality requirements rather than desirable best practice standards, we propose to put a greater regulatory focus on essential outcomes and on addressing the risks”.
Taken together, these statements tell a very clear and, for me, rather depressing story. They tell us that the department is putting the CQC into a tight box marked “patient safety”. The principal role of the CQC, in the Government's eyes, will be to register health and social care providers and to police and enforce a set of minimum quality standards.
The obvious question that springs from this realisation is: what significance should we now attach to the commission’s objectives as set out in Amendment No. 9? What weight should we place on the matters listed in Amendment No. 12 to which the commission must have regard? Those questions may seem surprising after our debates earlier, but if the commission’s main focus is registration and safety, what added value is likely to emanate from active user involvement in the commission’s work—the thing that we were all so keen on, and so glad to see incorporated into the amendment?
Of course, these things are of key relevance if we are dealing with a regulator concerned with identifying and promoting best practice in health and social care. But contrary to the hopes of many of us, it does not appear that the CQC is going to be that kind of animal. In a real sense, the powers conferred upon the Healthcare Commission and on CSCI are going to be diluted by the Bill now before us. What is the Minister’s answer to this? If the CQC will not be directly promoting improvement and best practice in health and social care, who will be?
We have heard some brave and ambitious statements from Ministers. If they are sincere about wanting the CQC to be a force for change in driving up standards, and if the amendment on objectives is really to count for something, we in Parliament ought to send out a clear signal to the commission’s shadow chair. She needs to formulate a mission statement which speaks not only of registering providers and guarding patient safety—activities that set rather unambitious horizons for the organisation—but of inspiring people to do better, celebrating best practice, promulgating it and, in so doing, giving the NHS the means whereby less high-achieving health providers can pull themselves up by the bootstraps, not because they have had a regulatory sword wielded over their heads in a rather threatening manner but because they are genuinely hungry to do so. The same would apply to social care providers.
For me, the most telling sentence in the Bill’s Explanatory Notes is the one that comes under Clause 41. At the end of paragraph 192, which covers the quality standards for NHS providers, it says that:
“The Commission has no role in monitoring or assessing compliance with these standards”.
Indeed so. That is something which I believe, even at this late stage of our debates, we should reconsider—hence these amendments.
My Lords, I had not intended to speak at such a late hour, but I feel that I must raise an area of concern which has come to me perhaps a little belatedly. It is prompted by the amendment of the noble Earl, Lord Howe, and the detail of the amendment moved by the noble Baroness, Lady Stern.
We are getting ourselves into an increasingly difficult tangle over a set of words which keep being bandied about. I will illustrate this with five or six of these words. I am grateful for the movement that the Government have made in terms of bringing commissioning to bear more in the Bill. We will be discussing that later and I need not go into it now. However, when the Government were in a less accommodating mood in Committee, one of the arguments that was used for not doing this was that they were going to use guidelines in relation to commissioning.
We now have in play: targets for performance review, registration requirements, guidelines, indicators of quality, and standards. Even anoraks such as ourselves may, broadly speaking, understand what all those words mean. However, I have to confess that even I am beginning to struggle intellectually with how the words all relate to one another. There is an issue for the Minister—to take them back to some of his colleagues to see whether we cannot get a little more clarity about the precise relationship between these words and what they all mean. We will certainly need a glossary—as will the noble Baroness, Lady Young, as chairman of the commission, together with her colleagues—to understand the relationship between these various pieces of terminology. Before we get to Third Reading, we need a little more clarity about how these words all relate to each other, to what extent they fall under the registration requirements, to what extent they are part of a performance management regime, and to what extent they are part of the information given to the public about how particular bodies are performing. I am sorry to dump this matter on the Minister this late at night, but before the Bill leaves the House I think that we should all be clear how the words relate to each other.
My Lords, I thank my noble friend for those largely helpful comments. The amendments relate specifically to Clause 41, which concerns the publication of statements of standards relating to healthcare provided and commissioned by primary care trusts. PCTs will need to have reference to standards issued under this clause in discharging their duty of improvement under Clause 134.
As we made clear in earlier discussions, it is important to remember that the standards which will be drawn up under Clause 41, unlike the registration requirements on which we have been consulting, are not intended to be requirements that providers of regulated activities must meet in order to be registered with the Care Quality Commission. The registration requirements that we have been consulting on will apply to all registered health or adult social care providers, including providers of non-NHS care. Breaches of those registration requirements will result in sanctions from the Care Quality Commission.
Through the Bill, we are seeking to establish a unified framework for the regulation of health and adult social care services. The current consultation proposes registration requirements which the new commission will be able to enforce against any registered provider of care. They have been developed in line with the spirit of the relevant provisions of the European Convention on Human Rights and cover topics including safeguarding people when they are vulnerable; ensuring that people get care and treatment in safe, suitable places which support their independence, privacy and personal dignity; involving people in making informed decisions about their care and treatment; getting people’s ongoing agreement to care and treatment; responding to people’s comments and complaints; and supporting people in being independent.
Standards under Clause 41, on the other hand, will not be subject to the Care Quality Commission’s enforcement powers if they are not met. Instead, they will be designed as improvement tools to help to deliver high-quality, publicly funded healthcare.
As discussed in Grand Committee, we do not believe that the Secretary of State should be required to issue standards, as envisaged under Amendment No. 28. Standards should be issued only where it is clear from the evidence that they will assist in enabling quality to be improved, and sometimes the evidence does not allow for that. In my view—and I very much support the ambition of clear standards for all areas of healthcare—it is sufficient to give the Secretary of State an enabling power.
We also stated in Grand Committee that we do not believe it is necessary to make similar provisions to apply to publicly funded social care, as envisaged by Amendment No. 29. Such related standards are for the Minister for Communities and Local Government to issue under the Local Government Act 1999.
If the standards under Clause 41 are to deliver real improvements in care, they must be flexible enough to cope with changes—and indeed with improvements—in services over time and be subject to full public consultation. Consequently, to set them in legislation now, as Amendment No. 31 seeks to do, would begin to remove that flexibility and pre-empt any such consultation and engagement.
Nor do I believe that the commission should be required to take certain standards into account in its periodic reviews of English NHS providers under Clause 42, as I understand is the noble Earl’s intention through Amendments Nos. 34A and 34B. I have already made it clear that we intend to delegate to the commission the function of setting indicators for use in periodic reviews of NHS providers. It may well decide to draw on the standards under Clause 41 in determining the indicators and methodology to adopt in those assessments, but that will be for the commission to decide. We can expect to see a great deal about quality and its enforcement under the next-stage review.
Of course, under Clause 134, PCTs will already be required to take the standards under Clause 41 into account when exercising their duty to ensure that NHS healthcare continues to improve. The commission will undertake periodic reviews of PCTs to provide an independent assessment of how effective the PCT has been in assessing its local needs and improving outcomes for its local populations. Even if the commission decides that standards need not play a direct role in periodic reviews of NHS providers, it will nevertheless have contributed to the performance of PCTs.
I hope that I have been able to set out clearly that it is through the commission’s registration requirement under Clause 16, rather than through the standards in Clause 41, that the important intention behind the amendments will be best met. I hope that with that clarification the noble Baroness will feel able to withdraw the amendment.
My Lords, I thank the Minister for that very full reply. It will probably benefit from being read at a different time of day, which I shall certainly do, but, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 29 not moved.]
My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at 10.11 pm.