My Lords, I beg to move that the Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
Clause 41 [Standards set by Secretary of State]:
30: Clause 41, page 20, line 23, at end insert—
“( ) The Secretary of State shall make provision for the adoption of minimum standards of frequency for the inspection of the premises of social care providers.”
The noble Lord said: My Lords, the amendment allows us to raise once again a concern from Committee; namely, resources available to the Care Quality Commission to deal with the inspections necessary for care facilities. It deals with the frequency of inspection. I place on record my total opposition to the recently introduced inspection regime, which I regard as Treasury-driven. It is opposed by many Members of the other House, including some on my side, particularly those who are aware of how it is working. It is also opposed by the unions, charities for the elderly, the Relatives & Residents Association and many of the inspectors involved.
I quote Unison because it is closely connected with the inspection regimes:
“We are particularly worried about recent changes to social care inspection methodology and the reduction in frequency of inspections from annual or twice-yearly inspections to periodic reviews which could be carried out for some providers only every 3 years. In a recent survey of members working in CSCI conducted jointly by our unions, 76% of respondents said they believe this new reduced inspection methodology does not provide a robust assessment of risk to service users, and 81% believe that more frequent inspections are necessary. Our members are telling us that associated cutbacks have meant that inspectors no longer have time to follow up on problems and have far fewer opportunities to meet and listen to service users. We would question whether reducing the ‘burden’ of regulation is appropriate when it affects some of the most vulnerable people utilising health and social care services. This is even more critical at a time when the Government is encouraging a wider variety of providers to enter into the market”.
I pay tribute to the many inspectors who, sometimes in very difficult circumstances, carry out the very sensitive work of inspection. It is a very difficult task, where too often one can stand accused of being far too subjective in judgment. However, many voices within the profession are expressing concern. The problem of reduced inspection is widely criticised. Some noble Lords may have heard, every morning last week on the “Today” programme, reports by Mr John Manell, a BBC journalist. In a very impressive piece of investigative journalism, he set out to expose conditions, both good and bad, in the social care sector. He drew directly on the comments of inspectors throughout the United Kingdom. His report showed that it was not the commitment of CSCI’s inspectors that was the problem but the ability of CSCI to fulfil its obligations with limited resources.
One person interviewed by Mr Manell said:
“If a home is made poor, then there is a lot of work that needs to be done by CSCI. But Managers”—
that is, CSCI managers—
“know that due to the workforce reduction, everyone is under pressure to get the work done and meet targets. So if the home is made adequate inspectors have the time to undertake their planned schedule of inspections”.
The same inspector went on to say, in relation to a particular inspection:
“I completed my report and sent it to my manager as required by the CSCI. My manager came back to me and suggested changes to the report. These were to change all the poor ratings to adequate. And the reason? ‘The care provider is a good provider, they can turn this problem around quickly. So make the overall rating adequate and we can keep them on our side and work with them.’ For me the issue was, the care is poor, and if it is poor we need to say it is. However, the pressure that I was under was huge. So against my own judgement, I made the rating adequate”.
Another inspector said:
“I think my main concerns are that the homes aren’t inspected as frequently as they were before. We rely a lot on information given to us by the providers of a service to say how good that service is. When we actually go out to visit the homes they are completely different to what the proprietors have told us in their feedback to us. So, it may mean that we are not inspecting a home as frequently as we should do because of the information we are receiving about it or the lack of information we are receiving about it”.
I was on the Public Accounts Committee throughout the 1980s and remember that sometimes National Audit Office reports that came before our committee at their earliest stage were prompted by whistleblowers; and also, that whistleblowers sometimes have a bad track record. I have no doubt that there are people in the care sector who make reports of malpractice for all sorts of reasons. Perhaps they were subject to a disciplinary procedure, are discontented in their place of work or have been in arguments with management. I recognise that that can be the case with some people who act as whistleblowers to draw the public’s attention to deficiencies in the places where they work. However, that cannot account for all reports in this case.
Another inspector said:
“Providers are pleased to be left alone, some don’t even want to complete their own self-assessment”.
“The home was poor throughout and needed enforcement action to be taken but the Regulation Manager did not want this to happen—too many poor homes this year”.
Yet another said:
“So that there is less conflict with home owner and to make our regional figures look better, i.e. less poor services—statistics then show false improvement of standards”.
I repeat: there may be whistleblowers out there who have a grievance; however, I cannot believe that all these reports come from such people. There must be something wrong in the system, and I am sure that, with the right resources, all these matters could be dealt with.
On the attitudes of the elderly, one inspector said:
“Elderly people may not see an inspector for two or three years. One lady recently said to me, ‘at least I knew if I had problems, you would visit the home in a few months. Now I know no one’s there to help me. I’m very frightened what might happen’”.
“Good homes can very easily slide when they know that it is likely to be 3 years before another inspection will be carried out”.
Changing regimes in a home was a matter we laboured over in Committee.
One inspector was particularly critical when he said:
“To be honest, I wouldn’t leave my dog in 90 per cent of our care homes”.
However, what I really found disturbing was this. The interviewer said:
“I was very concerned about what I was being told so I arranged a meeting with a number of inspectors. I assured them they would remain anonymous but they were becoming increasingly worried about the implications of talking to me. Our meeting was called off. Two other inspectors told me about what they described as a ‘witch hunt’ within the organisation”.
It may be untrue, but this is what the journalist said he was told by an individual inspector:
“I was asked if I knew that the BBC were doing a programme and I said yes. I was then asked if I knew of any colleagues who were or had contemplated speaking to the press. I said no”.
The journalist said:
“I needed to find out whether what I had been told reflected wider opinion within the Commission for Social Care Inspection. So, I wrote a questionnaire for its employees. Three unions—UNISON, the Royal College of Nursing and Prospect—agreed to allow me to send it to all their members within the Commission. The BBC’s Editor of political research helped ensure the questions were posed fairly and neutrally. More than half of the organisation’s employees would have received it. And 30 per cent of the questionnaires were returned to us. More significantly around a quarter of all inspectors responded—that’s more than 200 of them. Many of the comments we received were, again, disturbing”.
I put it to my noble friend that something, somewhere, is wrong. In all these interviews, inspectors talk about the inadequacy of resources, which directly influences inspection. We know about the reduction in resources from a Written Answer to me by my noble friend. In Committee, the noble Baroness from the Liberal Benches and many Cross-Benchers referred specifically to their concern about the amalgamation of these three organisations into one. Everybody was concerned that this part of the budget, covering these areas of inspection, might suffer. Ministers should be equally disturbed at what is happening and what might become worse.
We all know the reality: a good home today can be a bad home tomorrow. It can be due to a change of management, a change of proprietor, a sudden turnover in care staff—particularly in a sector which is notoriously low paid—even a change of chef or the arrival of a bully. CSCI itself tells us that there is a high volume of complaints, including those about shabby homes, incompetent management, bullying, unsafe facilities, clients locked in rooms, clients tied to beds, occasional violence, inadequate monitoring of food intake, shouting by staff through overwork, lack of help with toileting and inadequate medical cover. I am sure that these problems apply only to a minority of homes and that most are excellent, but many are not. That is why we need a regime that maintains the highest possible standard across the board.
The care sector is crying out for greater regulation, not less. A reduction in frequency of inspection would inevitably lead to a reduction in standards. I believe that there needs to be a review of the whole inspectorate system’s resources following the amalgamation. We need a minimum frequency of unannounced visits that is considerably more than the current arrangement.
In responding to this report, CSCI’s chief inspector, Paul Snell, said:
“The quality ratings, together with our more detailed inspection reports will give current and prospective users of care services and their families every opportunity to check up on the quality of care provided”.
Well, I am very sorry, but if the reports are deficient in many areas because the resources are not available to carry out effective inspection, they will not be of much use to those of us who have to place our relatives in institutions of care. I beg to move.
My Lords, I support the noble Lord, Lord Campbell-Savours, in his amendment. I do so from a background as an inspector in a different organisation but one which worked closely with the then inspector of social services. I must admit that, when joint working, one of the things that concerned me was a tendency to tick-box rather than inspect, particularly when we were inspecting places in which children were held. I stated at an earlier stage my concerns about this merger of the three commissions into one and that there is a danger that, in doing so, the three separate functions of regulation, audit and inspection are being confused. Tick-box methods are perfectly all right for regulation and audit, because that is what they are, but they are not good enough for inspection, which requires detailed examination by experts, followed by judgments. Those are not fuelled by tick-boxes.
I am extremely glad that the noble Lord, Lord Campbell-Savours, mentioned unannounced inspections. When I was Chief Inspector of Prisons I was meant to inspect every five years, but I did not have the resources for enough teams to do even that. I had to appeal for resources to get a third team in order to get the frequency down to five years. One of the reasons for that was that I insisted that five years was too long and that one needed to insert unannounced inspections during that period, particularly to monitor that the recommendations I had made in the previous inspection were being followed through.
It seems extremely unwise, therefore, for any organisation, if it is responsible for something of such sensitivity as care homes, not to include that sort of regime and make certain that the resources are available to maintain it in its entirety. I hope, therefore, that the Minister will listen very carefully to this and make certain that the sums are done to ensure that such a regime can be introduced before this deal is signed off.
My Lords, I share with the noble Lord, Lord Campbell-Savours, a passionate wish to protect very vulnerable people—some of the most vulnerable people in our society. That includes people who may have mental and physical frailties and who are in residential care. I have a great deal of sympathy for what the noble Lord is trying to do.
As I said in Committee, however, I do not entirely agree with him because over the past two or three years CSCI inspections have moved on. There was a time when CSCI inspections were, as the noble Lord, Lord Ramsbotham, said, primarily tick-box affairs. They have changed quite a lot. The new commission has an unprecedented opportunity to develop a range of inspection methods and to concentrate on that which we know to be the most revealing—unannounced inspections. I know we are not allowed in this House to compromise the independence of the commission in any way but I have one word of advice for its new chair. I hope that one of the first appointments is that wonderful lady who was part of those very revealing programmes on Radio 4. I am very sorry, I cannot remember her name. She is the actress who mugs up and goes into old people's homes. She has probably done more to protect vulnerable people than just about anybody else. I hope that she and a load of people like her are on the CQC’s books very quickly. I think that they would do more than anything else to raise standards.
Mr Paul Snell, in response to the points made about CSCI, pointed out that it is trying to concentrate inspection and remedial action on the minority of homes that are poor performers. The noble Lord, Lord Campbell-Savours, is absolutely right: this whole system depends on having complaints procedures that are sufficiently robust and on ensuring that carers and members of the public can bring poor practice to the commission's attention. The commission relies on having good inspectors, and the noble Lord talked about professionals. I would not use that word. I have watched lay inspectors be far harsher on service providers than my fellow professionals would be. There also has to be a system to protect whistleblowers. Many years ago there was not a system but now there is. Finally, there has to be a means by which service users can be part of that circle of information, flagging things up and following through the report’s recommendations.
I do not disagree with the noble Lord’s motivation at all. I want to see poor service providers hounded mercilessly until they either change or go out of business. On the contrary, I want to see good providers enabled to get on with their job. I shall give one reason why I think he may be wrong. He said that care standards can change when the regime changes in a care home, which is true, but ownership can change also for benign reasons. Contracts end and are given elsewhere. We do not want to spend the inspectorate's limited resources gumming up the works of people who are doing a fine job. But neither do we want to take away from the commission’s the ability to put out of business those who should not be in it in the first place. It is because I agree passionately with what the noble Lord is trying to do that I disagree with him on this amendment.
My Lords, I rise to make one point very much in support of the point made by the noble Lord, Lord Campbell-Savours. It is fundamentally important that any home that falls into poor practice should be visited and dealt with fast. My request to Ministers has to do with LINks, which we discussed under the local government Bill. We do not want a lot of duplication of visitors to homes; they have enough to do as it is. However, if the Minister would consider putting into regulations something about the CQC working with LINks and ensuring that if, for example, there is a change of management or there are complaints or concerns about a home, the CQC can get on to LINks and ensure that a visit is made by a LINk and a report made to the CQC, then that would be an inexpensive way of doing things and a very effective way for LINks to operate. In Committee, I and, I think, other noble Lords were concerned that LINks should really get stuck into the areas of greatest neglect and greatest need. I would argue that this is where such needs are: small homes for very vulnerable people. I suggested that they did not have to be bothered too much with the big hospitals, because there are all sorts of people visiting those, but there are incredibly vulnerable people in these tiny homes. If noble Lords would consider this, I really do think it could be a major contribution to improving the quality of services for these very vulnerable people.
My Lords, I, too, listened to that very moving and extremely perceptive report by the BBC. I am sure that it upset many of us because it confirmed some of our worst fears about what might be going on. I very much support what the noble Lord, Lord Campbell-Savours, said, which was followed up my noble friend Lord Ramsbotham.
I still have a concern. Where local authorities are involved with some overall responsibility for small homes, surely another way in which a slightly broader view could be taken is through the elected members and not just the staff. If an elected member of a local authority befriended a particular small nursing or residential home with the ability to go in and out at differing times, that would have a much greater effect on the standard of care because of the local accountability. That may be totally inappropriate because of the existence of LINks and the new organisation which can do it all. But they have been turned over and changed so many times that one is left with quite a degree of doubt.
My Lords, I, too, should like to support the amendment moved by the noble Lord, Lord Campbell-Savours. Last night I was with a mental health social worker who strongly supports the need for unannounced inspections. Prisons have monitors who are members of the public. They come in when needed or when there is a problem. They also have monthly meetings.
Surely those who live in care homes and who are sometimes very vulnerable should be protected from uncaring staff and badly run homes. People are frightened of complaining in case those in the care homes suffer more. The Government should look at this very seriously indeed.
My Lords, I apologise, in particular to the noble Lord, Lord Campbell-Savours, for arriving late—I was delayed on the way in. I want to make two points.
First, I say gently to my noble friend Lady Howe that we have to remember that these establishments are people’s homes. Many people in them intensely dislike strangers, as they see them, coming in and out. I know that it is quite difficult to get volunteers to be consistent in their approach, having tried to do so in a number for which I am responsible in a different capacity. There are very real difficulties about engaging the public in what are quasi-inspections.
Secondly, we are not accepting that the majority of our inspectors are not highly professional and that most of the homes are not extremely well run. However, that does not mean I do not accept that, from time to time, there are issues in particular homes. We should also look at the background of the making of the BBC programme, which has some interesting flaws. We have to be supportive of the staff who are carrying out the inspections and recognise that most providers are very keen to do a good job by the people for whom they are giving services.
Again, I apologise once again for arriving late, but I particularly wanted to make those two points.
My Lords, I know that my noble friend feels passionately about inspections. I have listened to and considered his concerns very carefully. We fully appreciate that those who live in care homes are particularly vulnerable. The Care Quality Commission will have a vital role of ensuring that those who receive social care are safe. The noble Baroness, Lady Barker, gave a very good account of what the CQC needs to be aiming for. She is absolutely right.
As we have previously discussed, there is no intention to reduce the total amount of inspection activity. Indeed, we want to create a regulator that focuses its attention where it is needed most to get the greatest benefits in terms of safety and quality for patients and service users. At the same time, the commission needs to allow—as the noble Baroness, Lady Howarth, said—good providers to get on and deliver their services. This is in the interests of everyone, but particularly service users.
In response to some of the concerns, I shall quote Paul Snell, chief inspector of the CSCI. He recently said:
“Now we’ve taken a much tougher approach. We don’t tell people we’re coming, we turn up unannounced, and we’re focusing our attention on the poorest of services. And we’re seeing some real improvement in relation to poor services”.
The programme referred to by several noble Lords did not reflect the whole story, as some people have said. As my noble friend admitted, most care homes are excellent. Therefore, while I do not believe that it will be necessary in most circumstances, Clause 57 gives the Secretary of State the power to set the frequency of inspection in regulations, should that be required in particular circumstances.
Several noble Lords referred to LINks. I agree with the noble Baroness, Lady Meacher, that they have a great role to play. As noble Lords may recall, we discussed LINks on the first day on Report last week, and have introduced an amendment that makes—if noble Lords will excuse me—the link between LINks and the CQC, and highlights the need for them to work together and for LINks to send reports to the CQC. I have no doubt that LINks will play an important role in ensuring that the CQC takes users’ and the public’s voices seriously. They also have access and can arrive unannounced where appropriate.
I regret that I am unable to accept these amendments. We currently intend to leave these decisions to the discretion of the commission, and provision already exists to set specific frequencies if required. I hope that I have been able to reassure my noble friend that the Bill will allow the new commission to take action where it is needed, and that it gives the commission powers to encourage services to improve and focus attention on the poor services that fail to meet those requirements. I therefore ask my noble friend to withdraw these amendments.
My Lords, I am indebted to the noble Lord, Lord Ramsbotham, and the noble Baronesses, Lady Barker, Lady Meacher, Lady Howe, Lady Masham of Ilton and Lady Howarth of Breckland, for their comments. I press my noble friend on one thing. The noble Baroness, Lady Meacher, referred to the need for the CQC to work with LINks. Will my noble friend impress that principle on this new organisation and perhaps come back to us at Third Reading? She may then have the opportunity to comment further on that issue.
My noble friend said that there was no intention to reduce inspection. My amendment is not about the reduction of inspection, but increasing it and securing more resources for this inspectorate. A lot of people have answered the BBC’s questionnaire. They are lying, telling the truth or exaggerating. From listening to the interviews, many believe that they are reflecting the reality. If they are, there is something wrong within the inspectorate. Nothing my noble friend has said suggests that the Government intend to find out whether there is any truth in what is being said about problems within the inspectorate. I ask my noble friend to arrange for those inquiries to be carried out. I would like to know whether those allegations are true or false. There is no need for the Minister to reassure us now, because I hope that she will come back to this at Third Reading. On that basis, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 31 not moved.]
Clause 42 [Periodic reviews]:
32: Clause 42, page 20, line 27, leave out from “care” to end of line 28 and insert “provided or commissioned by the Trust”
The noble Lord said: My Lords, I shall speak also to government Amendments Nos. 34, 36, 37, 41, 42, 50, 51, 52 and 54, as well as to Amendment No. 38, tabled by my noble friend Lord Warner. The government amendments in this group are in response to concerns raised in Grand Committee.
It is quite right that a regulator’s first priority should be the safety of people who use the service, so patient and user safety will be the Care Quality Commission’s prime concern. However, the commission will, of course, also make a wider contribution to driving up the quality of health and adult social care services. Through its powers to undertake reviews and to publish reports, it will publish independent information about the performance of providers and commissioners, which will inform patient choice and create an incentive for organisations to improve quality.
The Government have been clear throughout that commissioning is definitely within the scope of the new regulator’s reviews and investigation functions. However, we acknowledged in Grand Committee that the Bill could be clearer, so I am pleased to bring forward government amendments that are intended to provide that clarity. I am delighted that my noble friend has been satisfied enough that these meet his concerns to be happy to withdraw the majority of his planned further amendments on commissioning.
Amendments Nos. 32 and 34 make it explicit that the new regulator must conduct periodic reviews of care commissioned by primary care trusts or by local authorities. Amendments Nos. 50, 51, 52 and 54 relate to the definitions of NHS care and adult social services in Clause 92, which are used throughout Part 1 of the Bill. The amendments make it clear that the same applies to special reviews and investigations under Clause 44, as well as standards under Clause 41, advice to the Secretary of State under Clause 49 and inspections under Clause 56. For completeness, because Clause 60 does not use those specific definitions, government Amendments Nos. 41 and 42 clarify that the regulator’s powers to require information also extend to anyone providing care commissioned by PCTs or local authorities.
It is also helpful to put on the record points about what the Care Quality Commission’s periodic reviews, and special reviews and investigations under Clause 44, can cover in respect of commissioning. As an example, a review could ask whether a PCT had assessed the health needs of its population and consider whether those needs were being met. Similarly, as we discussed in relation to Amendment No. 33, the new regulator’s reviews may cover how well local authorities are carrying out their duty to assess the needs of those who appear to them to need adult social services and, therefore, how well they are commissioning services for those who meet the eligibility criteria. The regulator’s reviews or investigations could also consider value for money of commissioned care, quality, availability and access, and overall care outcomes.
A particular concern, put most eloquently by my noble friend, was that we should make it clear that the new Care Quality Commission could have a role in helping strategic health authorities to intervene—to administer the red card—against a PCT that was failing to commission adequate services. I hope that my noble friend will allow me to say a few words on Amendment No. 38 before he speaks to it. The amendment seeks to address this issue, proposing that, if reviews identify failings in commissioning, the commission itself should be able to require SHAs to take action.
We are now in a phase of organisational stability for the NHS—this was recently reinforced with the launch of the next-stage review—which also requires a more hands-on role for SHAs in the context of the world-class commissioning assurance process and the performance management of PCTs. As such, strategic health authorities continue to have the key performance management role here, and this is where it should stay, rather than sit with the new regulator. The Secretary of State and strategic health authorities have significant powers to intervene if PCTs are failing in their commissioning role.
The document Developing the NHS Performance Regime, published on 4 June, sets out how the various elements of the NHS performance regime, including the role of the Care Quality Commission, fit together. The document focuses, in particular, on the role of strategic health authorities as performance managers of PCT commissioners. Where a challenged PCT fails to demonstrate recovery, intervention on behalf of the NHS chief executive may include replacement of the PCT board, outsourcing some or all of the PCT functions, or even takeover of the organisation by another PCT. The document also sets out our proposals to develop a system for the Department of Health’s assurance of the strategic health authorities themselves.
Our amendments requiring the Care Quality Commission to consider whether it should advise and make recommendations where it finds failings as part of its special reviews will allow the commission to recommend which actions should be taken. The Bill will also give the commission considerable new powers to intervene directly where service providers are failing to provide services to an acceptable standard.
Noble Lords sought clarification of what action the commission could take about problems across care pathways or resulting from poor commissioning strategies that it might identify as a result of its reviews, including special reviews or investigations under Clause 44, where it will not have powers to intervene directly. The regulator will, of course, be able to express any specific concerns that it may have about the quality of commissioning, either in its reports published as a result of the reviews under Clauses 42 and 44, or in specific advice to the Secretary of State under Clause 49. Having listened closely to the debates on this issue, we have brought forward Amendments Nos. 36 and 37 to clarify that, following a special review or investigation, the regulator must consider whether the report raises issues on which it should advise the Secretary of State.
I sincerely hope that my noble friend will agree that our government amendments give the clarity that he and other noble Lords were seeking. I beg to move.
My Lords, I wish to speak briefly in support of the government amendments in this group before moving Amendment No. 38. I have to move it so that I can say what I want to say. I am grateful to the Minister for responding so positively to the concerns that I expressed in Grand Committee about what I thought was the Bill’s lack of clarity over the ability of the commission to review and inspect against standards in relation to the commissioners of services. I accept the argument that the Government made then that it would be wrong to require commissioning to be a registrable activity. That would, in my view, lock the commission and the PCTs into unnecessary bureaucracy.
Amendments Nos. 32, 34, 41, 42, 50, 51, 52 and 54 meet most of my concerns, I have to acknowledge, in a rather more elegant and comprehensive way than my own amendment. I would, however, like clarification and reassurance on Amendment No. 52. As I read it, it has the effect of applying the standard-setting power in Clause 41 to commissioning as well as to the provision of health services. That is an important change and means that the Secretary of State will be setting standards for commissioning under Clause 41 that the commission can inspect and review performance against in terms of PCTs. The Government’s original position was for guidelines rather than setting standards under Clause 41. As I understand this amendment, it brings the standards in relation to commissioners on a par with standard setting under Clause 41 for providers, but I would like reassurance from my noble friend. If he wrote to me on that, I would be quite satisfied.
On my Amendment No. 38, as I said in Grand Committee, if we are running a risk-based regulatory system—as we will be—it has to apply to commissioning as well as to the provision of health services. Commissioners can do more damage to a community’s health through ineptitude than nearly all, if not all, providers. The registration system has a series of sanctions that can be applied to providers—the Bill provides for that and is very clear about it—as does Monitor in relation to foundation trusts. I am not completely convinced by all my noble friend’s arguments. I accept everything that he says about the performance management responsibilities of the strategic health authorities. No one is arguing—I am not arguing—that the SHAs do not have a responsibility to ensure that the world-class commissioning initiative, which I fully support, is applied and to address shortcomings in commissioning.
My concern is based on history; I have often thought that history is one of the best predictors of future behaviour. In the past, there has been a considerable reluctance on the part of the NHS, and often of the Department of Health and Ministers, to act when commissioners are failing. They are much more willing to act when providers are failing. The Bill is strongly focused on providers, with a registration system and a set of sanctions accordingly.
I do not want to put the noble Baroness, Lady Young, in a difficult position in her future relationships with Ministers and SHAs, but there is an issue about whether, in the Bill, the commission should be able to require some action from the performance managers of the PCTs when there are failures of commissioning. We know that there have been quite a lot of failures of commissioning in many of these areas. Many of the hospitals that have got into financial difficulties and are letting down patients and producing unsafe services are in that position because the commissioners let them get into it; they facilitated a failing health economy in their area. My concern is that we have to allow the commission to be able to require action, as it is able to do in relation to providers. The action would very much focus on the strategic health authorities.
I accept most of the arguments that my noble friend has made and I can see that I may appear churlish and ungrateful in relation to the Government’s response. This is an extremely important issue, which we have not yet totally cracked. I would like to hear what my noble friend has to say in response. In the mean time, I beg to move Amendment No. 38.
My Lords, perhaps it would assist the House if I made it clear that at the moment we are debating Amendment No. 32. The noble Lord, Lord Warner, was in order to speak to his amendment in the group, but we need to go through the subsequent amendments. When we reach Amendment No. 38, the noble Lord can make his decision on whether to move it.
My Lords, I add my thanks and appreciation to the Minister for giving a good deal of clarification of the CQC’s responsibilities in respect of commissioning. On Clause 60, who would have guessed that “pursuant to arrangements made” turns out to mean “commissioned”? That is a great improvement.
I shall speak in support of Amendment No. 38, only as an addition to the clarification that we have already had. I am almost persuaded that the problem of giving the CQC intervention powers with commissioners is the difficulty of cutting across the strategic health authorities’ intervention powers as managers. It is a pity that this is the case, because I am rather a nostalgic fan of commissioning, having been the first chief executive of any commissioning health authority back in 1990. I have never really given up hope that commissioning health authorities will be the force that we had originally hoped that they would be but which they have so far singularly failed to become. Although primary care trusts are developing, they have not yet had the influence on the shape of health services in their local communities for individuals and families that we had hoped for, but I have not given up hope that they will have such influence. It would be an important signal to say that they are as important as providers—quite often more so—in shaping how a set of circumstances rolls out and produces disaster for the patient or recipient of a service in the end.
The CQC should have the ability to show the red card or the yellow card—I am not sure which colour it should be. It must have the ability to point out that things are going amiss and that strategic health authorities do not always grasp their responsibility to remove or reshape the boards of primary care trusts in the way that they should. It is a pity that there is not some greater pressure that we could exert; this is our one opportunity to do so. I seek reassurance that the changes on commissioning so far will give that possibility to shape failing commissioners so that they make real progress.
My Lords, prior to the first day of Report, the noble Lord, Lord Warner, tabled a number of amendments about commissioning, to which I asked that my name be added, only to discover that he had withdrawn them. I was rather sorry about that. Despite the amendments in this group in the name of the Minister, to whom I have listened carefully and whom I thank for his consideration of the points raised in Committee, the amendments originally tabled by the noble Lord, Lord Warner, would have achieved something materially and importantly different from those we are invited to approve.
Clause 42, as the Government now wish to amend it, will state that the commission will be given the duty to,
“conduct reviews of the provision of health care”—
and adult social care—
“provided or commissioned by the Trust”—
“provided or commissioned by the authority”.
The clause is still focused on the provider end of care rather than also on the commissioning activity, notwithstanding the insertion of the words “commissioned by”.
I hope that the Minister will not mind if I press him, but the legal interpretation of the clause as amended will definitely enable the CQC to review and assess the quality of commissioners and their commissioning as opposed to just the services commissioned. There is a difference, which Amendment No. 54 seems to confirm. It states:
“Any reference in this Part to health care commissioned by a Primary Care Trust is a reference to health care provided by other persons pursuant to arrangements made by the Trust”.
If we received a commitment that,
“arrangements made by the Trust”,
would also be subject to review by the CQC, I would be happy.
Following our debates in Grand Committee, I welcome Amendment No. 36 in particular as it provides useful clarity. However, I do not think that it takes us quite as far as we need to go, which is why I have added my support to Amendment No. 38 and why I agree very much with the remarks made by the noble Baroness, Lady Murphy. Amendment No. 38 captures the very important and specific issue of the interrelationship between the CQC and strategic health authorities. It acknowledges explicitly that the responsibility for performance management of PCTs as commissioners, while vested in strategic health authorities, is one in which the CQC will be able to assist and support in its reviewing role. Shortcomings in commissioning may not always be apparent to a strategic health authority through its standard performance management processes, so I am sure that this is an area of the CQC’s work that the noble Lord, Lord Warner, is right to highlight and which the Minister perhaps ought to take away and consider again.
My Lords, I am grateful to my noble friend Lord Warner for his considered comments and for taking us through Amendment No. 38. He is right when it comes to the history of commissioning, which is why I made the point that we need to remind ourselves that most PCTs are barely 18 months old. We need to give them maturity in establishing their commissioning competencies. Historically, one way of dealing with poor commissioning was restructuring, but we have made a commitment that there will be no further restructuring. However, I agree with noble Lords who made the point that we should build up competencies of commissioning. There is the publication of the Department of Health on the assurance system, to which I referred earlier, but also a failure regime for commissioning, details on the rules and how we set the bar in measuring the quality of commissioning.
The noble Earl, Lord Howe, raised the issue of the balance between provision and commissioning. Reviews of PCTs will look at commissioning functions as closely as at the provider function. Some aspects of the commissioning functions that will be part of these reviews are: value for money in commissioned care, in other words whether the PCT has made good use of the resources available to it; quality of commissioning, for example whether the care commissioned by the PCT is of high quality and achieving good health outcomes for individuals using it; the availability of commissioning, in other words whether the PCT has purchased enough healthcare to meet the needs of its population and whether waiting times are within the national standard of 18 weeks; and finally—I feel this will probably be more important in the future—overall health outcomes, in other words whether the PCT has succeeded in improving the overall health of its population by reaching out to those in most need. Those are the type of competencies that a mature PCT in the future will have responsibility for, and, more importantly, through the assurance regime it will be assessed on whether it is meeting those needs.
The answer to the noble Baroness, Lady Barker, is yes. I am delighted that, having considered our amendments, in particular Amendments Nos. 36 and 37, my noble friend Lord Warner has agreed that we are striking the right balance of responsibilities between the commission and the Secretary of State and that he will not press his amendment.
On Question, amendment agreed to.
[Amendment No. 33 not moved.]
34: Clause 42, page 20, line 36, leave out from “services” to end of line 38 and insert “provided or commissioned by the authority”
On Question, amendment agreed to.
[Amendments Nos. 34A and 34B not moved.]
Clause 43 [Frequency and period of review]:
35: Clause 43, page 21, line 30, leave out “or modified”
On Question, amendment agreed to.
Clause 44 [Special reviews and investigations]:
36: Clause 44, page 22, line 9, at end insert—
“(4A) The Commission must consider whether the report raises anything on which it ought to give advice to the Secretary of State under section 49(2).
(4B) If the review or investigation gives rise to a duty to act under section 46(2) or (3) in respect of an English local authority, subsection (4A) does not apply in relation to so much of the report as relates to that local authority.”
37: Clause 44, page 22, line 12, leave out “such a report” and insert “a report under subsection (4)”
On Question, amendments agreed to.
38: After Clause 45, insert the following new Clause—
“Failings by English NHS bodies
In the light of evidence of significant shortcomings in the commissioning of health services from reviews under sections 42 or 44 the Commission may—
(a) require any relevant Strategic Health Authority to propose and publish appropriate changes to the arrangements for and governance of commissioning of health services in any geographical area to which the evidence relates in order to reduce the risk of harm to that area’s population; and(b) recommend to the Secretary of State that the changes proposed should be implemented.”
The noble Lord said: My Lords, I will not treat noble Lords to the whole speech again. I have not yet withdrawn my amendment, but as we have got to this point in the discussion I think that I can say a few more words. I do not want to get into an historical debate with the Minister, but I used the term “commissioners”. Commissioners, as I recall, were around before this Government were in office. There was an NHS market from Ken Clarke’s days, and there were commissioners; they were simply not called primary care trusts. There has therefore been a history of commissioning for some time. Many PCTs have been around for five or six years rather than for 18 months, so we have quite a spread of experience of commissioning from which to draw.
The harsh reality is that, when push comes to shove with rather powerful acute hospitals, commissioners often back down. They simply do not take the action necessary to balance provision of health services in their area. I in no way disagree with the Minister or with the Government’s position on the performance management role of the strategic health authorities. However, when Alan Johnson published the document about the new regulatory system in October 2007, he very clearly said—I referred to this in Grand Committee—that commissioning was a shared responsibility between strategic health authorities and the commission.
The Minister has graciously moved a long way to get commissioning properly established in the Bill. I apologise to the noble Earl, Lord Howe, if I marched him up to the top of the hill and marched him down again by withdrawing my amendments, but I do think that the Government have moved a long way in these areas and I am comfortable with their amendments. However, I still come back to the question of who can take the action to push the SHAs where there is evidence of a failure of commissioning in a particular geographical area. I am still concerned about this. I probably used “red card” inappropriately. I bow to the noble Baroness, Lady Murphy, and her superior knowledge of soccer; a yellow card was probably the appropriate analogy.
We need to think about this a little more, and as we are at this point in the Bill, I ask the Minister to consider this issue further. In the mean time, I beg leave to withdraw the amendment.
My Lords, the noble Lord has spoken to the amendment, so I must propose the Question. I do not know whether the Minister wishes to respond to the amendment or whether the noble Lord would now like to withdraw it.
My Lords, I was slightly chastised by the noble Lord’s predecessor on the Woolsack for my earlier speech, so I thought that we were getting into some confusion about the process. I do not want to deny any other Members the opportunity to speak on this issue, but I do not see anyone moving to do so, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 [Inspections carried out for registration purposes]:
[Amendment No. 39 not moved.]
40: Clause 57, page 28, line 26, at end insert—
“( ) Where a report has been published under subsection (2), the service provider shall display in a place accessible to the public on the premises of the service provider information taken from the inspection report, subject to the following provisions—
(a) that the arrangements for, and location of, the display be agreed by the Commission;(b) that the information made available on the display be in a form prescribed by regulations;(c) that the inspection made available on display be from the most recent inspection report of the Commission;(d) that the service provider display any additional information which the Commission shall require.”
The noble Lord said: My Lords, the amendment gives me the opportunity once again to argue the principle of transparency in private care. It is one of a series of transparency amendments that I am moving to various Bills as they make their way through the House, and it stems directly from my own experience of having to place my mother in care—a matter which I dealt with at some length in Grand Committee. I should repeat that I do not have a background in social care. My background is in industry, so I come to this debate as a consumer.
Like most people who are faced with placing a relative in care, I found myself submerged in glossy brochures from many providers. It was a particularly difficult decision to take, which was not helped by the unwillingness of social services departments to guide or advise on where a self-funder could find the best. It was also not helped by the fact that only one—a BUPA home—out of the 19 homes I visited volunteered the CSCI report. In Committee, I reported that I had visited 19 establishments.
Some homes were a disgrace, some were very good and some stank of urine. One in central London was appalling and some others appeared cosmetically to be little better. I cannot imagine what was going on behind the scenes. As a Member of Parliament until 2001, I had been vaguely aware of an inspection regime. I should have been aware of the CSCI inspection report system, but I was not. Subsequently, I found out that that is the case for most others in my position. We all find out after placing someone in a home, but often that is too late.
I am convinced that most relatives who are placing—certainly self-funders—have no idea how to choose. Thankfully, after many unannounced visits to homes, I found a first-class institution, with a first-class CSCI report, where my mother is very happy. However, I repeatedly ask myself how many others have been in a position to tour the south of England visiting homes unannounced like I did. I suspect that that would be a minority of people, yet they are paying fees of anything between £800 and £1,200 a week, which is equal to £100,000 per annum pre-tax annual income. That is a lot of money.
There needs to be far easier access to independent information about homes and greater transparency. Some would argue that nursing home websites should carry or refer to the availability of their CSCI reports. Last week, if I recall correctly, my noble friend undertook to refer that matter to the new chairman of the Care Quality Commission, particularly the issue of the websites of homes being required to refer people to the CSCI report.
Under Amendment No. 40, there would be a statutory responsibility on providers to provide information of an independent nature on home standards and conditions in an easily comprehendible form to prospective clients or their representatives. It would place on the home’s management a statutory obligation to provide that information in a place that is accessible to the public. It would help choice and create the conditions for raising standards. It would deal with the seven assessment headings set out under the national minimum standards for care using the scoring system, but it should also flag up in a more informative way information on kitchen cleanliness standards from local authority inspection reports under Section 32 of the Food Safety Act; information on staff turnover; staff-to-client ratios with benchmark guidance; weekend cover arrangements; the use of bank staff; access to outside recreational areas; the frequency of case reviews; the dates of previous CSCI inspections; the complaints procedure; the role of the key carer and named nurse; personal and room cleaning arrangements; the incidence of medication errors and of accidents; the number of individuals who make complaints; and information on sickness absence, all of which can indicate stress levels.
I have gone into these areas in detail because these are the issues which arise. As I said in Committee, I placed my mum, but I have also been to many homes since that placement because I have found this area fascinating. Other professionals may have another view about what is important, but as a consumer I believe that these are important issues. The BUPA care home checklist system provides us with some guidance on what potential clients are looking for over and above the existing CSCI inspection report arrangements. What would be the effect on home management of being required to put the report in a place which was accessible to people coming in, where they could see it and be guided towards it?
Staff would find themselves more openly accountable. Many carers are unaware of the availability of CSCI reports. I find that worrying because they do not realise the extent to which they are already accountable as individuals. I am talking about people who might be on £6 or £7 an hour, even less sometimes. Some people in these homes are incredibly poorly paid. Management would be ever conscious of the greater access to this information by potential clients and would be inclined to avoid poor scoring in a highly competitive market. In other words, standards would, in my view, inevitably rise. Relatives would have a checklist against which they could refer in times of concern without having to go to home managers which, in itself, can often be full of difficulties.
I know this is controversial. I have discussed this with a number of home managers. Some believe it is a very good idea, because they know that the poorer homes avoid at all costs revealing the contents of these standard reports. Many homes would not want it. It might affect their ability to attract custom, but then, so be it. They would have to raise their standards to attract the custom. It would inevitably lead to higher standards and in the long run would make the task of inspecting homes far simpler for the inspectorate. I beg to move.
My Lords, how lucky the mother of the noble Lord, Lord Campbell-Savours, is to have a caring son who took the trouble he did. It is our responsibility to protect those people who are not so lucky as to have a son like hers. There are many of them.
My Lords, I should like to add one word in support of the amendment moved by the noble Lord, Lord Campbell-Savours. The circumstances do not matter, but arising from them I have had occasion to deal with a care institution, a provider of carers, a high percentage of whom come from either South Africa or Zimbabwe, which I found quite surprising. I was very startled to learn from one or two of them that they were not willing to work in institutions in the United Kingdom, whether public or private, because the standard of care, diligence and sympathy was not up to what they expected. I am absolutely sure that the experiences that the noble Lord, Lord Campbell-Savours, recounts could be matched many times over by many other observers. If anything like this is to be adopted, this information ought to be easily accessible. It could be on some site where people could read it, although not everybody has the machinery. I would like to feel that it was not only on display on a noticeboard somewhere within the premises, but you could take away a copy so that it was easy for everybody to refer to what had been said about this institution in the last report. It is a highly important idea.
My Lords, Amendment No. 40 concerns the display of information on providers’ premises, which we discussed earlier in relation to healthcare-associated infections. This amendment would require providers to display information on their premises in relation to the findings of inspections by the commission, and, as my noble friend outlined, by several other people as well.
As I said in relation to Amendment No. 21, I agree with my noble friend Lord Campbell-Savours that it is important that people can access information about what the commission has said about a provider or facility. I agree that the information should be easily available; the noble Lord, Lord Neill, also mentioned that. The CQC would be wise to listen to the list that my noble friend outlined.
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. The same would apply to the findings of assessments under Clauses 42 or 45, or indeed of any other review or investigation that the commission might undertake. In addition, under Clause 54 the commission will be able to make available to the public any information that it holds about the provision of NHS care, adult social services or other regulated activities. The commission will make available a wide range of information on providers to the public, users, potential users and their families, to support them in making informed choices.
As I said earlier, we will consult on the detail of regulations under Clause 16, but there is scope for them to include a requirement such as this. Indeed, once regulations under Clause 85 are in place, the public will be able to access information about how the commission is using the new powers to tackle providers that are failing to meet the necessary requirements.
From that combination of reassurances, I hope that my noble friend will feel that we want to ensure that the public, potential users and their families can access as much information as possible about the services they use, from an independent source that they can trust. The current commissions place great emphasis on that and we want the Care Quality Commission to build on their good work. I hope that he will therefore agree to withdraw the amendment.
My Lords, I listened carefully to what my noble friend said. She emphasised more than once that the commission will make information available to the public. The problem is that it is the commission doing so; I want the home to do it. As the noble Lord, Lord Neill of Bladen, said, when you walk through the door of the home you should see the information there, be guided to it, or read that it is available. I want that to be a statutory obligation on the home.
My noble friend referred to the commission’s website. I am afraid that most people do not use or have access to websites. We presume that everybody uses a computer, but I am sure that many who place people in homes simply do not have access to that kind of arrangement.
My noble friend said something positive—that there was scope for such a requirement. I hope that the new person responsible for all these matters—the noble Baroness, Lady Young—has taken that on board and that, wherever possible, she places a requirement on homes to make sure that such information is available to people such as me when we are placing our relatives. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 [Power to require documents and information etc.]:
41: Clause 60, page 30, line 29, leave out “pursuant to arrangements made” and insert “commissioned”
42: Clause 60, page 30, line 32, leave out “pursuant to arrangements made” and insert “commissioned”
On Question, amendments agreed to.
Clause 66 [Co-operation between the Commission and the Independent Regulator of NHS Foundation Trusts]:
43: Clause 66, page 32, line 40, at end insert “, and
(c) the Independent Regulator and the Commission must have regard to the need to promote the efficient and effective use of their resources in the exercise of their respective functions.”
The noble Earl said: My Lords, I return without apology to an important set of issues debated in Grand Committee on the potential for conflict in the roles of the CQC and Monitor. The Bill provides the CQC with intervention powers that can be exercised in relation to NHS foundation trusts. In doing that, it will oblige NHS foundation trusts to report to two regulators—the CQC and Monitor—whose powers overlap, and where the statutory underpinning for those powers provides no basis for separating their respective accountabilities.
The noble Baroness, Lady Murphy, and others argued powerfully in Grand Committee that this will not do. Effective regulation demands, above all, clarity as to where roles and responsibilities lie. It also demands that one regulator is accountable for performance in a given area. In the case of NHS foundation trusts, having two regulators will achieve the opposite. It is a recipe for duplication and delay. As was argued in Grand Committee, there are strong reasons for Monitor retaining the primary accountability for NHS foundation trusts. In assessing the performance of foundation trusts, Monitor can look across the piece not only at service quality, but also at financial performance. Its powers are wide-ranging; much more so than those proposed for the CQC. Monitor’s compliance regime has, by common consent, already proved effective. There is absolutely no sense in altering it.
We all understand that there have to be common standards across all NHS bodies. However, that is not the same thing as arguing that the same body must be responsible for enforcement of standards in all cases. As the noble Baroness said in our earlier debates, the regulatory regimes for foundation trusts and other NHS providers are simply different. What is wrong with respecting that difference? Put another way, what is right about putting foundation trusts at risk of double jeopardy? The Bill requires the CQC and Monitor to co-operate with each other and to share information. I have considered this carefully and simply cannot persuade myself that those provisions are enough. The two bodies can co-operate, but they can still duplicate each other’s roles; they can share information, but still cause confusion and unnecessary burdens for the management of foundation trusts.
The noble Baroness, Lady Thornton, argued in Grand Committee that the Bill,
“requires no further amendment to achieve an effective working relationship between Monitor and the Care Quality Commission”.—[Official Report, 14/5/08; col. GC342.]
She said that the two bodies would simply have to work out for themselves what their relationship should be. With great respect, I do not think that that approach is adequate. It is a cop-out. Why is it not possible to define in statute precisely where the respective responsibilities of the CQC and Monitor should begin and end? Why are the Government avoiding clarity in this area and leaving open the possibility that foundation trusts could find themselves subject to duplicated intervention and duplicated enforcement?
I make clear that the amendment, as tabled, is not intended as a substitute for proper legal delineation, which clearly needs to be drafted by government lawyers. In my respectful submission, it is merely a means of flagging up some of the adverse consequences of the Bill as drafted. I hope that the Minister will agree to think again about these issues. I beg to move.
My Lords, I support the noble Earl, Lord Howe, in his Amendment No. 43. He has put a powerful case for clarity about the respective roles of Monitor and the CQC. We have a pretty good arrangement now, because the Healthcare Commission is in effect the inspectorate and feeds information to Monitor, which is clearly the regulator. I, too, find it difficult to understand why, in the case of foundation trusts, the CQC could not perform the same inspecting function, taking data from foundation trusts, as the Healthcare Commission does now, but leaving the regulatory sanctions role clearly with Monitor. I strongly support the noble Earl, Lord Howe, and sincerely hope that Ministers will think again about the absolute importance of clarity.
Information is another potential source of confusion between the two bodies. I suggest that a small amendment might be made to the amendment to remove the word “their”. The amendment requires the CQC to promote the efficient and effective use of its own resources. If we removed “their”, the amendment would require the CQC to promote the efficient and effective use of resources. Let me explain why I think that change could be helpful. In a sense, this is about duplication of functions.
The Healthcare Commission and Monitor have worked well to try to ensure that they do not duplicate the demands for information from provider trusts. Each provider trust has to provide information to the Department of Health, Monitor, the Healthcare Commission, perhaps three, four or five primary care trusts—each of which may demand information in a slightly different way—and local authorities. That is an enormously complex set-up. I thought that I would illustrate the point by bringing with me a few pages of our targets from Monitor, the Healthcare Commission, the PCTs, and so on. We are not talking about a few lines of information but an enormously complex set of demands that every provider trust across the country has to tussle with. Each set of demands is not included in the demands of the above organisation, so there is far more to it than at first appears. If these demands are co-ordinated, it is just about manageable. However, it is not difficult to imagine a new, incoming organisation hurling out a lot of demands for information without fully taking on board the impact that would have on all the other demands. The information then has to be collated, entered on to computer, analysed, tabulated and put into documents that people can understand.
I strongly support the amendment of the noble Earl, Lord Howe, but argue that there is a bit more to this aspect. It is not just a question of double jeopardy in relation to sanctions.
My Lords, I, too, support the noble Earl, Lord Howe, in his amendment. My support relates to our previous discussion about inspection. The bodies would have to co-operate over resources for inspection. One aspect of resourcing inspection is that it is inevitable that where those resources come from will have a bearing on people’s perception of independence. If it is felt that inspection will take place depending on how many resources are put at the disposal of the inspectors by people who have to co-operate over what resources are made available, I fear that there could be problems. Therefore, I hope that before this co-operation on resources takes place, resources for inspection will be ring-fenced so that they are not subject to the negotiation which is the subject of this part of the Bill and of the noble Earl’s amendment.
My Lords, I do not think that this amendment is the right way forward, but the points made by the noble Earl, Lord Howe, and the noble Baroness, Lady Meacher, are worthy of further consideration by the Government. We have already gone down the path of history once this afternoon; I would like to take us there again. Sometimes the collective memory of that great and august organisation, the Department of Health, is less good than it might be, so it is worth dwelling on this issue. In some ways, it was the forerunner of the move to merge the three regulators. Way back in 2003, there was great concern across the political spectrum at the demands being made on the NHS in relation to information from regulators of various kinds, including central government. I brought together all these various characters, including the medical royal colleges which were also making quite a lot of demands both in their inspection and data collection. A concordat was agreed in which people would co-operate a bit more about the collection of data and to reduce the Piccadilly Circus effect of one inspector following another inspector—as one went out of one door, another would come in through the front door. That is a real issue for an organisation like the NHS.
The second point is what I think I said at an earlier stage—the tendency of regulators to mission creep. This is bad news for people delivering operational services. There are issues about who has precedence and whose information is used by whom in the area between the Care Quality Commission and Monitor. I am not sure that legislation is the way to deal with that: indeed, I suspect that it is not. The reason I am standing up here, however, is to try to get the message across to my noble friends on the Front Bench that there is an issue for the department to grapple with in terms of the expectations that it sets for the two regulators.
I am not in any doubt, having been the person who moved the foundation trust legislation in this House back in 2003, that, at the end of the day, the right person to take action on removing authority to continue to provide services is Monitor. The licensing system has worked well. There have been good working relationships between the Healthcare Commission and Monitor. They know where they stand. I hope we can continue that kind of relationship, but I think it will require action on the part of Department of Health Ministers to set the expectations on how those regulators might behave.
My Lords, I fully support the intention behind this amendment, which is to encourage the independent regulators of NHS foundation trusts, Monitor and the Care Quality Commission to co-operate with one another on the efficient and effective use of resources. We of course want to ensure that public money is put to best use and the work of the two regulators, both of which have roles in healthcare, is co-ordinated. This co-ordination will not only make the most of the resources but, more importantly, it will help to ensure that there is no duplication in the actions each body takes with respect to foundation trusts.
Your Lordships have debated two issues. The first is the clarity of the purpose of the two regulators and the second is if there is any duplication in their function. With regard to clarity of purpose, I remind noble Lords what was said in Committee and also in response to the consultation document which was published in October 2007. We said that we expect the CQC and Monitor to work closely together especially when imposing sanctions or taking enforcement actions. For example, when the Care Quality Commission responds to a safety or a quality failing within a foundation trust with a warning notice, the Care Quality Commission will notify Monitor to ensure that it is aware of its concerns. While the foundation trust will be responsible for delivering the necessary improvements, Monitor will work with the NHS foundation trust to ensure compliance because it will be concerned about the impact of the enforcement action on the NHS foundation trust’s ability to operate.
It is unfair to compare what the Healthcare Commission does now and what the CQC will do in the future. The CQC will have an enforcement function and we are trying to find the adequate framework in which Monitor and the CQC will work together.
We believe that the duty to co-operate in Clause 66 will lead to the commission and Monitor establishing a good working relationship. I should like to set out other aspects of the legislation that support the intention behind this amendment. First, under Clause 63, the commission is required to,
“promote the effective co-ordination of reviews or assessments”.
This provision is intended to ensure that the commission works with other public bodies, such as Monitor, when planning reviews and assessments, in order to avoid duplication and ensure that resources are used effectively and efficiently. Monitor is already required to exercise its functions effectively, efficiently and economically under paragraph 16 of Schedule 8 to the National Health Service Act 2006.
Schedule 4 provides for the commission's interactions with other authorities. It can act jointly with other public bodies and provide advice and assistance to other public authorities. Furthermore, the Secretary of State may specify public bodies in addition to the inspection authorities that the commission must co-operate with for the efficient and effective exercise of its functions. Therefore, if the Secretary of State considered it necessary, he could make an order specifying Monitor. However, we do not consider that that will be necessary given the provision in Clause 66.
The noble Baroness, Lady Meacher, asked what the Government would do about the computers. I am always amazed when people think that each organisation that provides health and social care will have two computers, one for CQC and one for Monitor. The whole purpose of the provision is to create intelligent information that will be available to all sorts of public bodies involved in regulation, regardless of whether it is financial regulation or regulation of the quality of care provided. However, Clause 64, which was a government amendment in the other place, is intended to avoid the duplication of information collection alluded to earlier.
Both Monitor and CQC have to produce annual accounts and a report on how they have exercised their functions. These reports must be laid before Parliament, and there is an independent scrutiny of the accounts by the Comptroller and Auditor-General, who must also lay his report before Parliament.
I therefore believe that the Bill contains adequate provision to ensure the effective and efficient use of resources by these two bodies. However, if noble Lords feel that we can do better, I will be more than happy to listen between now and the next stage.
My Lords, before the Minister sits down, perhaps I may respond quickly to his response to my brief remarks. The whole point of the duplication of information is not that identical bits of information are requested; if they were, they could be interchangeable. He would be amazed at how requests for information can be defined slightly differently, with slightly different assumptions, so that the exercises have to be done completely separately and the same information cannot be provided to two or more organisations.
My Lords, the Minister's reply was particularly helpful, and I am grateful to him for setting out in considerable detail how the Government view this problem. It was never my intention to press this amendment, but I am very glad that I encouraged myself to press the Minister on the central point at issue because it drew from noble Lords opposite some pertinent points, notably from the noble Baroness, Lady Meacher, and the noble Lord, Lord Ramsbotham. I am particularly grateful to the noble Lord, Lord Warner, for his helpful comments.
The concluding point made by the noble Lord, Lord Warner, was that there was scope for the department to set its own expectations on how the two bodies should fulfil their respective roles. That point was borne out by the last exchange between the noble Baroness, Lady Meacher, and the Minister. There is clearly scope to examine, not so much precisely where the two bodies may interact and duplicate each another, but where the burdens placed on one of the bodies may be unnecessary because the other is doing an approximately similar area of work.
Perhaps the Minister could look at that. I repeat that I found his reply particularly enlightening and feel comfortable, on that basis, in withdrawing the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 77 [Publication of programme of reviews etc.]:
44: Clause 77, page 37, line 34, leave out from second “time” to “prepare” in line 35
On Question, amendment agreed to.
Clause 79 [Reports for each financial year etc.]:
45: Clause 79, page 38, line 34, leave out “and”
46: Clause 79, page 38, line 35, at end insert “, and
(e) the steps taken by it during the year to implement the proposals in its statement under section (Statement on user involvement) (statement on user involvement).”
On Question, amendments agreed to.
Clause 81 [Fees]:
47: Clause 81, page 40, line 3, leave out subsection (5)
On Question, amendment agreed to.
48: After Clause 91, insert the following new Clause—
(1) Any provision made by or under Chapter 2 or 3 or this Chapter binds the Crown, but does not affect Her Majesty in her private capacity.
(2) Subsection (1)—
(a) does not require regulations made under section 4 to be made so as to apply to activities carried on by or on behalf of the Crown, and(b) is to be read as if section 38(3) of the Crown Proceedings Act 1947 (c. 44) (references to Her Majesty in her private capacity) were contained in this Act.(3) No contravention of any provision made by or under Chapter 2 or 3 or this Chapter is to make the Crown criminally liable; but the High Court may declare unlawful any act or omission of the Crown which constitutes such a contravention.
(4) The provisions of Chapters 2 and 3 and this Chapter apply to persons in the public service of the Crown as they apply to other persons.
(5) If the Secretary of State certifies that it appears to the Secretary of State requisite or expedient in the interests of national security that the powers of entry and inspection conferred by sections 58 and 59—
(a) should not be exercisable in relation to any premises which are used by or on behalf of the Crown and are specified in the certificate, or(b) should not be exercisable in relation to any premises which are so used and are specified in the certificate, except in circumstances specified in the certificate,those powers are not exercisable in relation to those premises or (as the case may be) are not exercisable in relation to those premises except in those circumstances.”
On Question, amendment agreed to.
Schedule 5 [Further amendments relating to Part 1]:
49: Schedule 5, page 145, line 1, at end insert—
“Local Government and Public Involvement in Health Act 2007 (c. 28)In section 227 of the Local Government and Public Involvement in Health Act 2007 (local involvement networks: annual reports), in subsection (4), after paragraph (c) insert—
“(ca) the Care Quality Commission;”.”
On Question, amendment agreed to.
Clause 92 [General interpretation of Part 1]:
50: Clause 92, page 45, line 9, leave out “by or pursuant to arrangements made” and insert “or commissioned”
51: Clause 92, page 45, line 12, leave out “by or pursuant to arrangements made” and insert “or commissioned”
52: Clause 92, page 46, line 9, leave out from “or” to end of line 11 and insert “commissioned by Primary Care Trusts (whether from other English NHS providers or not)”
On Question, amendments agreed to.
[Amendment No. 53 not moved.]
54: Clause 92, page 46, line 24, at end insert—
“( ) Any reference in this Part to health care commissioned by a Primary Care Trust is a reference to health care provided by other persons pursuant to arrangements made by the Trust.
( ) Any reference in this Part to adult social services commissioned by an English local authority is a reference to adult social services provided by other persons pursuant to arrangements made by the authority.”
On Question, amendment agreed to.
Clause 95 [Fitness to practise panels]:
54A: Clause 95, page 47, line 20, at end insert “, provided that the number of lay members and the number of professionally qualified members shall in all cases be equal”
The noble Earl said: My Lords, this straightforward amendment has arisen directly from our debates in Grand Committee. It concerns the composition of fitness-to-practise panels in the OHPA. Clause 95 says that a fitness-to-practise panel must consist of a chair, a lay member, a professionally qualified member and,
“such additional members (if any) selected from the lay members list or the professionally qualified members list as may be required by rules”.
My only problem is that it leaves open the question of equality of representation. As the wording stands, the OHPA could assemble a panel comprising a majority either of doctors or of lay people. There may currently be no intention to do that, but I question whether it is appropriate to leave this issue to be decided by the rules of the OHPA.
In creating the OHPA we are surely attempting to establish a body which commands the confidence of the public, as well as the confidence and respect of doctors. For me, at least, that objective of necessity requires a balance of lay and professional members. To unbalance the make-up of the panel in either direction would risk jeopardising the public standing of the OHPA. This is not likely to change over time. Either the balance of confidence is important or it is not. If it is, there is scope for the Government, with the benefit of advice from the GMC, to reconsider the wisdom of this provision. I beg to move.
My Lords, I support the principle underlying the amendment. I declare an interest: from 1982 to 1989 I was president of the General Medical Council and, under the rules then obtaining, I regularly chaired fitness-to-practise panels in the old disciplinary committee. Almost invariably there was an unequal number of professional and lay members. Professional members were in the majority, but almost invariably they took a much harsher view of the problems of which the respondent doctor was accused, whereas the lay people nearly always tended towards lenience.
However, that is, of course, old history. The Minister may now say that this issue is not to be enshrined in primary legislation but governed by rules. In those days, rules made by the General Medical Council had to be approved by the Privy Council. Those were the days when the medical profession and its regulatory authority cherished their independence from government, regarding the Privy Council as a crucial barrier between them and Big Brother in the Department of Health.
Now the rules are to be made by the OHPA. Will the Minister clarify whether they are simply rules it can make without reference to any other body, or whether they must be approved by the Department of Health? Also, the crucial principle of parity between lay and professional members on fitness-to-practise panels will mean a great deal to members of the medical profession; the clause also applies to the optical profession.
I therefore support the principle underlying the amendment, believing that parity between professionals and lay people is essential. Lay people must be included, following the decisions of Dame Janet Smith in her report and the change in regulation now embodied in the Bill. However, it is also crucial that there should be adequate professional representation on these panels, to ensure an ability to advise on specifically medical or optical issues. I hope that the Minister can clarify these important points.
My Lords, my Amendment No. 56 is in this group. I am sorry that I did not speak before the noble Lord, Lord Walton, as I had hoped that he would also support my amendment. As we are on Report, this is the only time we will debate it; perhaps he can intervene before I sit down.
I apologise; I had thought that it would be a long time before we reached these amendments. My Amendment No. 56 does not cut across the amendment of my noble friend Lord Howe at all. I strongly support having equal numbers of lay and professional people. My history of doing so goes back nearly 50 years, when I supported equal numbers on the Inner London Executive Council, which ran the National Health Service for London. I was a professional member, of whom there were too many. The numbers were not equal, and I did not think that that was a good or healthy thing. It is far better to have equal numbers, so I support the amendment of my noble friend Lord Howe.
My amendment is quite different. I would like to see retention of at least two elected professional members. The profession has ownership of its council if it can elect some of its own members. A fully appointed body is not as good. I have quoted various bodies that make appointments; professionals do not feel that they are in touch with that process at all. I therefore propose that at least two professional people should be elected by members of their own profession. In my experience on the General Dental Council—sadly not comparable with the General Medical Council—most of the original thoughts came from the elected members. They were people in ordinary practice who seemed to know what was going on in the everyday life of their profession.
My Lords, I thank my noble friend for that clarification. I wish to speak to Amendment No. 54A, moved by the noble Earl, Lord Howe. This amendment is linked to a question that I raised in Committee regarding American doctors practising in this country. I asked whether they would be covered by the rules under which they practised in the United States or whether they would be subject only to the jurisdiction and rules of the General Medical Council. Since then, I have received a letter from my noble friend Lady Thornton, for which I thank her. It states:
“I can confirm that American doctors who wish to practise in the UK must be registered with the General Medical Council. American doctors are therefore subject to the same statutory requirements, rules and regulations as all other doctors on the medical register”.
I believe that this could cause a problem for American doctors practising here.
As I pointed out in Committee, in most American states doctors have a mandatory duty to report suspected child abuse to the authorities and are protected from liability if they report in good faith. Our Government’s guidance, Working Together to Safeguard Children, recognises the role of health professionals and paediatricians in stating:
“They are uniquely placed to notice possible signs of abuse and it is essential that they follow up any concerns they have in line with locally established procedures. Their first duty is to the child whose safety and well-being is paramount”.
Any reasonable person would consider that all this amounts to the same thing, but does it? Not according to the Minister’s letter, for the GMC does not seem to recognise protection for paediatricians reporting in good faith. To be the voice of the child who has no voice can be a risky business, as paediatrician Dr David Southall found to his cost when he did just that and ended up fighting for his professional life.
When paediatricians move a vote of no confidence in the GMC and a paper signed by 53 paediatricians complains that the GMC’s action is contrary to child protection work, something should be done. The General Medical Council has to recognise that it needs to change its approach. Until that day, we must do what we can, however small. It would indeed be helpful—the amendment calls for this—to have a balance between lay and professionally qualified members on any fitness-to-practise panel. One hopes that they would have an understanding of and indeed might have met the problems and that they would be able to react correctly to the lower standards of child protection that the GMC seems to require. This amendment would go some way towards redressing the balance, as such knowledge and understanding on a panel are always helpful.
My Lords, I support the amendment in the name of the noble Earl, Lord Howe. He rightly highlighted the need to gain the confidence of the public and the profession as regards the new regulatory changes. There will be many changes and hiccups along the way, because that is the nature of changing regulation.
If we do not ensure that there is a balance of members on panels, there is a real danger that decisions will be subject to appeal and that the credibility of the processes will be called into question. I am afraid that I do not share the Government’s confidence that including this matter in guidance or in regulations for the healthcare profession will ensure that it will be dealt with. It depends how that guidance is written and on other things that are going on that day, including the number of people who cannot attend.
I can see the sense behind the amendment in the name of the noble Baroness, Lady Gardner of Parkes. The difficulty is that it may not be applicable to all the regulators across all the healthcare professions, because the way in which people are currently appointed to the regulators differs. I have a reservation about this amendment, but perhaps the Minister will be able to clarify whether the noble Baroness has something important before us today.
My Lords, I rise briefly for the sake of completeness to add my support to the amendment tabled by the noble Earl, Lord Howe, for the primary reason that the noble Baroness has just given, which is that the general public must have confidence in this procedure. However fair or just the Government think that their rules or secondary regulations may be, they are seen to be behind the scenes. Therefore, it is terribly important to have a provision such as this in the Bill.
My Lords, Amendment No. 54A would require the same number of lay members and professionally qualified members on OHPA’s fitness-to-practise panels on all occasions. This is an issue that I would expect OHPA to consider when drawing up its procedural rules. I hope that I can persuade noble Lords that we need to give OHPA the opportunity to consider the advantages and disadvantages of different approaches before it decides how to run its fitness-to-practise panels. Existing best practice is for panels to comprise three people, with the flexibility for more panellists to be added for more difficult and complex cases. The Bill, as drafted, mirrors these arrangements. My noble friend Lady Golding outlined one such difficult case. There are always odd numbers on such panels in order to allow a majority vote. As the noble Baroness, Lady Cumberlege, helpfully pointed out in Grand Committee, lay magistrates almost always sit in threes.
This amendment would prevent a simple majority decision by the panel where there is a lay or professional chair. In order to have an equal number of lay and professional panellists, the panel would need to be increased to four people. With a panel of four people, there is obviously no inbuilt mechanism for a majority decision, so there is a genuine mathematical problem. OHPA might also consider that such a restriction on the composition of its panels does not reflect the role of panel members. Lay and professional members are there to listen to the evidence presented and to come to an impartial decision on the basis of this evidence. Having lay and professional members on the panels is not to ensure equal representation but to demonstrate that professional regulation is a partnership between professionals and the public.
While I recognise that OHPA may well want to adopt the approach set out in this amendment, I urge the noble Earl, Lord Howe, to give OHPA the independence to make up its own mind. The Bill requires OHPA, in drawing up its procedural rules, to consult the regulators, the professions and CHRE. The rules are also subject to parliamentary scrutiny via the negative resolution procedure.
Amendment No. 56 would prevent the move to fully appointed councils of regulatory bodies and would impose a requirement for at least two council members to be elected from the registrants of the relevant regulatory body. It would also—I am not sure that this is an intended effect—delete the provision in the Bill that would enable councils that wish to do so to move to a lay majority via a Section 60 order. While this amendment would allow the majority of the council to be appointed with a minimum of two elected members, the Government feel strongly that the principle of elections among registrants for positions on the councils of their regulatory bodies is wrong. Therefore, I regret that I cannot support this amendment.
I am sure that noble Lords will agree that, if the people who are being regulated elect the people responsible for regulating them, this potentially creates a perception that they are there to do the bidding of their electors because they are representatives. As I said in Grand Committee, professional members on a regulatory body should not be representatives of the practitioners who have elected them. Elections create a situation where patients and the public are entitled to question whether the professional member, elected by his peers, sees his first duty to those who elected him or to the patients whom the regulatory body exists to protect. I state clearly for the record that the move to appointments is in no way intended to diminish the role of professional members on councils. Instead, it will add more weight to the professional perspective, as appointed professional members will be free from any doubt that their views are coloured by a responsibility to represent the interests of their electorate.
Through the creation of a system of independent appointments by the Appointments Commission, the public and the professions can be assured that people are being appointed because of their abilities, their successful track record of achievement and their commitment to patient safety. The registrants who have these qualities and this experience will be able to apply for appointment through a transparent process and be assessed against competences developed by the commission alongside the regulators.
Finally, I emphasise that none of the regulatory bodies is asking to keep its elected members. They have accepted the principle of moving to fully appointed bodies as the best way of securing public confidence in the impartiality of the system of professional regulation. On that basis, and in light of my explanations, I hope that the noble Baroness, Lady Gardner, will feel able not to press her amendment.
My Lords, this has been a useful debate and I thank every noble Lord who has contributed to it. The Minister pointed out that my amendment is defective in that, if it were accepted, it would lead to an even number of people on the panels. That was not my intention; I am fully signed up to the proposition that there should be an uneven number, for precisely the reasons that she gave. I had thought that the sense of the amendment would have been obvious, as it was to those noble Lords who supported me.
The central point here is public confidence; the noble Baroness, Lady Tonge, was right to bring that out. Having said that, I take the Minister’s point that this matter will be the subject of considerable public consultation. I was also grateful to the noble Lord, Lord Walton, for posing the question about how the rules, when established, would be approved and by whom. It is reassuring to hear that there will be parliamentary scrutiny. I do not belittle the type of parliamentary scrutiny that comes with the negative resolution procedure but, to be negative about the negative resolution procedure, we are all aware that in practice it is not possible for us to change a statutory instrument or to vote it down. We can only look forward to a statutory instrument that is the product of considered prior deliberation by the OHPA and those whom it consults. It is right for me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 8 [Extension of powers under s.60 of Health Act 1999]:
55: Schedule 8, page 170, line 21, leave out paragraph 2 and insert—
“2 (1) Section 62 of the 1999 Act (regulations and orders) is amended as follows.
(2) In subsection (10), after “that Parliament” insert “and is not merely incidental to, or consequential on, provision that (if so included) would be outside that competence”.
(3) After subsection (10) insert—
“(10A) But if any provision made by an Order in Council under that section would, if it were included in an Act of the Northern Ireland Assembly, be within the legislative competence of that Assembly, no recommendation is to be made to Her Majesty to make the Order unless a draft—
(a) has been laid before, and approved by resolution of, each House of Parliament, and(b) has been laid before, and approved by resolution of, the Northern Ireland Assembly.””
The noble Lord said: My Lords, the amendment relates to Schedule 8 to the Bill. Paragraph 1 of the schedule would bring the pharmacy profession in Northern Ireland within the scope of Section 60 of the Health Act 1999. That section provides for a power to make Orders in Council modifying the regulation of various medical professions covered by other legislation set out in Section 60(2).
Section 62(10) of the 1999 Act provides that if a provision of such an Order in Council—that is, an Order in Council under Section 60—is within the legislative competence of the Scottish Parliament, the draft order must be laid before and approved by the Scottish Parliament. In Northern Ireland, the regulation of health and associated professions is fully devolved. The Northern Ireland Assembly has legislative competence over all the matters mentioned in Section 60(2) of the 1999 Act. However, there is no equivalent of Section 62(10) for the Northern Ireland Assembly.
That brings me to the main point of my amendment, which is to insert a new subsection (10A) into the 1990 Act. That would make exactly the same provision for the Northern Ireland Assembly as Section 62(10) makes for the Scottish Parliament so that, if a Section 60 order contains provisions that would be within the competence of the Northern Ireland Assembly, a draft of that order must be laid before and approved by the Assembly. This is an important procedural point because it relates to the relationship between this Parliament and the devolved legislatures. It would achieve parity between the Scottish Parliament and the Northern Ireland Assembly and it would apply good practice and good relations between Parliament and the devolved legislatures.
The process is analogous to the Sewel procedure, whereby a consent motion is sought in the devolved legislature when Parliament is legislating on a devolved matter. The Sewel procedure has been put on a statutory basis for Scotland and I am proposing the same for Northern Ireland. My amendment would put the Assembly on the same standing as the Scottish Parliament where the regulation of the profession is devolved. That is the important point. If the regulation of the profession is devolved and Westminster is giving a power to modify that regulation, before that power is exercised there should be effective consultation with the devolved legislature.
The matter was drawn to my attention by the Pharmaceutical Society of Northern Ireland. I cannot avoid the temptation to note that the initials of that body are PSNI. This PSNI was created in 1924, or thereabouts, and I can only assume that it was not drawn to the attention of the noble Lord, Lord Patten, when he decided to use exactly the same initials to describe the police force in Northern Ireland. Some people take great pride in using PSNI to refer to the Pharmaceutical Society rather than the Police Service, but that is by the way.
The Pharmaceutical Society of Northern Ireland noted that the power in Schedule 8 intended to bring it within the Section 60 order power. It made representations to the health department and the amendment derives from those discussions. I think that the amendment was drafted by the society and has been considered by the Northern Ireland department. The first part of the amendment clarifies Section 62(10) and repeats what is in paragraph 2 of Schedule 8. I am not sure whether in this draft that clarification would also apply to the proposed new subsection (10). As the draft fell into my hands from discussions between the society and the department, I decided not to presume to change the wording, as that might have led to greater confusion.
I expected the draft to emerge as a government amendment consequent on a request from the Department of Health, Social Services and Public Safety in Northern Ireland to the Department of Health in Whitehall. I understood that it would appear at an earlier stage, but it seems that the department has had second thoughts about the amendment. I think, judging from what I have heard of the discussions between the society and the department as late as last Friday, that it may still be undecided.
I thought it right to table the amendment because it relates not so much to the detail of regulation as to devolution and the principle of devolution. I am strengthened by a letter that I received from Dr Brian Patterson, the chairman of the Northern Ireland Council of the British Medical Association. I shall, if I may, read the guts of the letter to your Lordships. It states:
“It has come to my attention that you have tabled an amendment to the Health and Social Care Bill, currently going through the House of Lords committee stage.
“The BMA(NI) welcomes the inclusion of this amendment as it will help ensure that any Order in Council under the Health Act 1999 affecting Northern Ireland will be ‘devolution-proofed’ first to counteract any possible democratic deficit.
“The amendment brings Northern Ireland into line with the status of Scotland. This seems eminently sensible, given that medical regulation is a fully devolved issue to the Northern Ireland Assembly.
“This would allow the Northern Ireland Assembly to scrutinise any proposal before it becomes an Order in Council to ensure it will be sensitive to local needs while maintaining a UK wide approach on appropriate health policies”.
That is an eminently reasonable position to take.
Parenthetically, I add that it is the preference of the Pharmaceutical Society of Northern Ireland that its profession be subject to a local regulatory scheme, similar to the local schemes for the Law Society of Northern Ireland and the Northern Ireland Social Care Council. Such an arrangement could still be put in place by the devolved institutions if the Whitehall department does not use the power under Section 60 as amended by the Bill. In theory, the local option could survive without this amendment, but the existence of this extension of the Section 60 power in the Bill could be read as an intention to override localism.
I emphasise again that this matter is brought forward as a matter of principle concerning devolution. It is not wise to devolve a matter and then a short time later to take a power to override devolution by an Order in Council. It is also not wise to treat the devolved legislatures of Northern Ireland and Scotland differently. I beg to move.
My Lords, in the absence of anyone else, I express my puzzlement at this amendment. If I were still practising as a doctor, I am not sure that I would want to feel that my colleagues in Northern Ireland were regulated in a different way from me in England. I find it rather a curious notion that a professional body should want to be regulated in different ways.
I remember when our qualifications were very different and no one knew what a medical qualification meant. In my year at medical school, there were some wags who took the Society of Apothecaries exam which, apart from allowing you to put up your plate in Harley Street, entitled you to drive a flock of sheep over London Bridge. They all found that entertaining and that was why they took the exam. We do not want to go back to the days when we could not rely on regulation being regulation wherever we were in the United Kingdom. It is terribly important that members of the public can be sure that health professionals are regulated to the same high standard wherever they are in the United Kingdom. For health professionals themselves, it enables easier movement. It means that they are more able to move from area to area within the UK and not fear that they are going to be regulated in a different way.
If Northern Ireland feels that this should be a devolved issue, in my experience in the other place and here, the representatives from Northern Ireland are more than adequate and more than able to represent the views of people in Northern Ireland. I am sorry to have to oppose this amendment, but I feel very strongly that regulation in the United Kingdom should mean just that.
My Lords, lest the House think for a moment that pharmacists in Northern Ireland are regulated in any way less stringently than those in the rest of the kingdom, I assure it that the Pharmaceutical Society of Northern Ireland is a most reputable body. I support the noble Lord, Lord Trimble. The Pharmaceutical Society of Northern Ireland has spoken to me as well, and it would like this to be passed. I do not think it demeans pharmacists in Northern Ireland in any way or means that they are less well regulated than those in the rest of the kingdom.
My Lords, my noble friend Lord Trimble is as ever a powerful advocate for devolved decision-making in Northern Ireland, and I almost always align myself with what he has to say on the subject. However, on this occasion I hope he will forgive me if I sound a dissenting note. Like the noble Baroness, Lady Tonge, I feel firmly that one area of policy that we really should not attempt to subject to devolution is the regulation of healthcare professionals. My noble friend may say that he does not propose devolution in the full sense, but the amendment would provide for decision-making in this area to be vested not only in Westminster but in the Northern Ireland Assembly. That would open up the potential for a different regulatory scheme to apply in the Province from that which applies on the UK mainland.
The central issue is that we need absolute confidence that the system of regulation that is applied across the United Kingdom is uniform, so that, as the noble Baroness said, members of the public can be sure that, wherever they are, the healthcare professionals who look after them are regulated to the same high standard. They should be able to know that no country in the UK has a regulatory system that is weaker or worse resourced than any other. I do not necessarily wish to imply that the Northern Ireland Assembly would want a weaker or worse resourced system of regulation, but we should not open up the potential for that.
I was interested in what my noble friend had to say about the BMA in Northern Ireland. I can say only that the Royal College of Midwives and the Royal College of Nursing in Northern Ireland oppose the amendment for the reasons that I have given. I also share the noble Baroness’s observations about healthcare professionals and the ease of moving around the UK for work. That should not be forgotten. We should not facilitate a situation in which extra regulatory hurdles could spring up in one part of the UK that acted as obstacles to taking up a job in that part of the country. The current UK-wide system gives us all consistency and certainty, and I hope that my noble friend will not wish to press his amendment to a vote.
My Lords, Amendment No. 55 would require any order made under Section 60 of the Health Act 1999 to be approved by the Northern Ireland Assembly as well as by the UK Parliament. Scotland already has the provision under that legislation to approve orders that contain devolved matters. Health professional regulation is a devolved matter in Northern Ireland and Scotland; it is fully devolved to Northern Ireland and partly devolved to Scotland. I recognise the importance of involving the devolved Administrations in decisions on regulation to ensure that they take account of the differing needs of the four countries. However, they also work towards UK-wide solutions to statutory professional regulation, so that, although there are differences, they work hard.
The Government are sympathetic to the amendment, but we would make such a change to the current arrangements only with the agreement of the Ministers in the Northern Ireland Executive. I am sure that the noble Lord, Lord Trimble, is aware of that. I can inform your Lordships’ House that the Government have discussed this proposal with Ministers in the Northern Ireland Executive, who have indicated that at present they do not wish to have this power. I checked that my information was completely up to date for this debate, and indeed it is. This is still the position of the Northern Ireland Executive. We will be happy to consider the issue again if the Ministers in the Northern Ireland Executive feel that the position has changed.
It may reassure noble Lords to know that, under the current arrangements, policy changes are developed in partnership across the four health departments prior to the drafting of legislation. The devolved Administrations are given the opportunity to input and comment on the draft legislation prior to public consultation, which may result in changes being made. On that basis, and in the light of my explanations, I hope that the noble Lord, Lord Trimble, will feel able to withdraw the amendment.
My Lords, I thank the Minister for her comments. I am happy that she clearly understood the purpose of the amendment. I regret to say to the noble Baroness, Lady Tonge, and to my noble friend Lord Howe that they went off at a tangent and did not fully understand the point. As the Minister said, it is really about ensuring that the local region is consulted, as it is in Scotland, where a statutory provision underpins that consultation, which I repeated word for word. It is not as if one was bidding for completely independent provisions with regard to qualification, et cetera. However, if noble Lords do not like the idea of having these matters devolved, they need to revisit the primary legislation, which, as I said at the outset, completely devolves all these matters to the Northern Ireland Assembly and partly devolves them to the Scottish Parliament. The starting point of this, and of my observations, is that these are devolved matters.
If a uniform scheme arises on a non-devolved matter, it should be done with proper consultation, rather than through the exercise of a statutory override. The Minister may not regard it in those terms because a degree of consultation tends, as a matter of routine, to take place between the departments, but Section 60 of the 1999 Act gives the Whitehall department the power to override the Northern Ireland Assembly, but not to override the Scottish Parliament. That anomaly needs to be addressed one way or the other. I am arguing for assimilating Northern Ireland to the position of the Scottish Parliament. Perhaps other noble Lords would want to remove the right that the Scottish Parliament has in legislation to be consulted. It is important to have consultation because particular circumstances may need to be taken into account. With regard to the pharmacy profession, a particular circumstance that needs to be taken into account is the existence of the land frontier and the fact that under European legislation there will be a considerable interchange between practitioners either side of that border.
I hear what the Minister says with regard to the position of the Northern Ireland Minister and the Northern Ireland Executive. I have a very high regard for the Northern Ireland Minister and regard him as a very good friend, but I deliberately did not speak to him on this matter so that I would not come between him and his department. That is for him to sort out. My information was accurate only up to discussions as of Friday afternoon; the Minister claims that she is accurate up to the moment. We will see where we are when we come back at Third Reading. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 56 not moved.]
Clause 107 [Standard of proof in fitness to practise proceedings]:
56A: Clause 107, page 54, line 9, leave out “is” and insert “may be”
The noble Baroness said: My Lords, in Committee, we discussed the basis of this amendment, which is that we do not need to change the law to implement a civil burden of proof. Indeed, the GMC has now changed and is now training its panel members. We do not need to enshrine this in law; it has been implemented already. The initial report suggests that all is well and that problems are not being reported. That may be because the decisions at the moment are lenient, but we may see a swing towards greater stringency. I do not know and no one knows.
Initially, I had great reservations about the change from the criminal to the civil burden of proof. I have had many discussions with the General Medical Council. I completely accept that the way in which this is working out seems fine, but the reservations about the future have not gone away. The BMA and the defence unions have expressed concerns that the civil burden of proof in the long term may not be the whole answer. Case law has dictated that the criminal burden, not a civil burden, of proof is used in disciplinary proceedings involving lawyers. In 2003, the House of Lords deemed that magistrates should avoid using the civil standard and should apply the criminal standard.
The General Medical Council had a series of sanctions previously and these have been transposed into their new proceedings. One of the most important sanctions is the retraining of a doctor in areas of low competence where there is a departure from the standards laid out by the General Medical Council. The standards are designed to protect patients and not in any way to protect doctors. These protective standards were applied previously and are being applied in the hearings using the civil burden of proof. The concern of the defence unions is whether, over time, all the decisions will be deemed to be fair and consistent as the civil burden is applied flexibly and over an increasingly broad range of problems. Everyone must sincerely hope that they will be and that the system will be fair.
In the light of problems and experience, however, there may be a need for a clear definition at the top end of the scale of flexibility and some cases may require the criminal burden of proof to be used. Changes may need to be implemented. My concern is that the Bill as drafted locks the regulators into a civil burden of proof. In her response to me in Committee, the Minister said:
“We think that changing to the civil standard is the right thing to do. It is a recommendation of the Shipman inquiry, and many regulators are already using it. We want to ensure consistency, not just now but in future, so that all health and social care regulators use that standard”.—[Official Report, 21/5/08; col. GC 537.]
I was concerned that the Minister was unable to say that we have the evidence that this is the right thing to do and that we are right to exclude the criminal burden of proof.
The amendment is drafted to enable us to leave that door open. We must ensure that there is a clear message in the Bill that, although the civil standard of proof will continue, as is already happening, in the event of a problem arising we will not have to go back through a legislative process and wait. If particular difficulties arise, they can be addressed by reverting to the criminal burden of proof in exceptional circumstances. The amendment is simply a broad safety net, providing alternative wording to avoid locking us into to a civil burden of proof. I beg to move.
My Lords, I support the amendment tabled by my noble friend Baroness Finlay. I confess that my experience, going back many years to chairing panels under the old General Medical Council arrangements, was that the criminal standard of proof was properly and sensibly applied in leading to sanctions that might affect a doctor’s registration. However, I appreciate the reasons why, in her thoughtful report after the Shipman inquiry, Dame Janet Smith made the powerful suggestion that that criminal burden of proof set too high a standard for sanctions to be employed against a doctor who had been guilty of some failing in his or her practice.
The issue is not simply malpractice or criminal behaviour. The new panels also cover issues relating to the doctor’s fitness to practise on the grounds of professional standards or competence, as the noble Baroness, Lady Finlay, implied. Sanctions can be applied by the body to require a doctor to undergo a period of retraining, for example, if it is shown that his or her standard of practice is less than adequate.
Issues also arise in relation to a doctor who may be suffering some form of ill health, which may impair his or her standard of practice. In those cases, a civil standard of proof is perfectly adequate. I am still concerned that in some cases of alleged malpractice the use of the civil standard, even if applied flexibly, as the General Medical Council has now suggested, means that there is a serious risk that injustices may occur. This amendment cleverly leaves open the possibility for the criminal standard to be applied if the practice of OHPA demonstrates that there are cases where the application and use of the civil standard is endangering doctors’ livelihoods at a level that appears to suggest the possibility of serious injustice.
The GMC has been applying the civil standard flexibly and will do so until OHPA is fully established and working. I fully appreciate that other regulatory authorities—in nursing, midwifery, dentistry and other professions—are now using the civil standard of proof. However, reservations about its use continue to trouble me and for that reason I support the amendment.
My Lords, having had the experience many years ago of chairing the professional conduct committee of the Nursing and Midwifery Council and as a lay member of the GMC, I, too, support my noble friends Baroness Finlay and Lord Walton. I go along with everything that they said. I share the uncertainty felt by a large number of professionals over relying purely on the civil burden of proof rather than the criminal. I expressed my concerns at Second Reading, when I said that I was prepared to be persuaded. However, I continue to share the view of my noble friends that this may be unsatisfactory in some cases. In English law, one is innocent until proved guilty. The use of probability is easily misconstrued and I think that it could lead to a wrong decision, although time will tell. I will certainly support the amendment.
My Lords, I am afraid that I will disappoint some of my medical and nursing colleagues. We had arrived at a consensus around the House that the civil standard of proof was the right one. The GMC is supportive of that. I can see the noble Baroness, Lady Tonge, nodding her head. I should say that I have been egged on to say this by the noble Lord, Lord Patel, who has been sitting behind me sticking me in the back saying, “Tell them that we don’t all agree”.
I respect the fact that there will be anxieties about this in the medical profession. However, many of us doctors feel that we are, after all, the same as other healthcare professional groups that have had this standard of proof for a long time. We would like to see the provision remain in the Bill so that the GMC cannot change its mind at some future point and decide that it wants to go back to doing something else. Under the Bill as drafted, it would have to adhere to the way in which this is done in other professions and I think that it would be all the better for that.
My Lords, I have been egged on to speak by the noble Baroness, Lady Murphy. At Second Reading I supported the idea of the civil standard of proof, based on my more recent experiences of the GMC’s disciplinary committee and particularly its interim orders committee, in which any minor deviance on the part of the doctor was tested on the criminal standard of proof—at least, that was how it felt to me. The civil standard of proof, applied flexibly, is what the doctor will be tested on. I clearly now understand why the GMC has moved to that civil standard of proof, flexibly applied. It should deal with all cases, no matter what the severity of the alleged offence. On that basis I do not support the amendment. We will have to wait and see how the civil standard works.
My Lords, I, too, oppose the amendment, for two reasons, the first of which has not been mentioned today. A lot of people said that, if found guilty, a doctor would lose his livelihood, so it was important to keep the criminal standard of proof to make that less likely to happen. We cannot judge doctors by different standards from the rest of the population—that is a ridiculous notion. Everyone’s profession, job or place of work is important to them, and it is not only doctors whom we must consider when dealing with such legal matters.
The other reason why it is important to endorse the enshrining of the civil burden of proof in the Bill is that that enables previous episodes of complaints against the doctor of carelessness—not necessarily malpractice—to be taken into account when considering the case. That cannot be done under the criminal burden of proof. When we are talking about healthcare and care of individuals—the general public—it is terribly important to take that into account. A series of events, not necessarily just one event, might mean that someone should lose their entitlement to practise. I regret that I have to oppose the noble Baroness’s amendment. I almost always support her but on this occasion I feel that I cannot.
My Lords, the amendments relate to a crucial part of the package of reforms on professional regulation—the change to the standard of proof, on which we had an important debate in Grand Committee. The Bill ensures that all health and social care professions’ regulatory bodies and the new Office of the Health Professions Adjudicator must apply the civil standard of proof to all fitness-to-practise proceedings.
The amendments offer two differing approaches; it is true that they are imaginative. Amendments Nos. 56B and 59B would delete the two clauses on the standard of proof in their entirety. Amendments Nos. 56A and 59A offer a different approach in setting out that the standard of proof may, rather than will, be the standard of proof applicable. In Committee, the noble Baroness, Lady Finlay, had some concerns about whether it was right to use the civil standard of proof in all cases, but particularly questioned the need for it to be included in the Bill given that the GMC was already moving to the civil standard without the need for primary legislation. It is on this basis that I think that she has tabled Amendments Nos. 56B and 59B. I hope that I will be able to convince her that the clauses are important to the future of professional regulation and should indeed be included in the Bill. I hate to disagree with her—and indeed with the noble Baroness, Lady Emerton, and the noble Lord, Lord Walton, for whom I have the greatest respect.
Since the NHS Plan was published in 2000, there has been a long debate with the professional regulators about the introduction of the civil standard, with influential figures such as Lady Justice Smith coming down firmly in favour of it in light of the evidence that she looked at as part of the Shipman inquiry. As I put on record in Committee, I firmly believe that the use of the civil standard of proof in fitness-to-practise procedures will ensure a balance between fairness to the accused practitioner and the protection of the public. Using the civil standard of proof wholly reflects the nature of fitness-to-practise hearings. I remind your Lordships that the panels conducting hearings into fitness to practise do not in any way constitute a criminal court and will not apply criminal law. Instead, these are civil proceedings, which are best matched with the civil standard of proof.
I hope that noble Lords will agree that the argument is given powerful weight by the evidence from other sectors. The civil standard of proof is used by the police, solicitors, architects and vets. Of course, it is already successfully used by eight of the 11 professional regulatory bodies. While I acknowledge that primary legislation is not needed to allow the professional regulators to move to the civil standard of proof, it is needed to require them to use it. Put simply, the Government believe that the civil standard is right, so we want to make sure that all professional regulatory bodies use it not just now but in future.
To allow regulators to pick and choose which standard they apply would run counter to the important arguments for the civil standard of proof that I have just set out and might perpetuate inconsistency across the different regulators, which would of course lead to confusion for patients and professionals about which standard would apply. For example, a complaint might involve professionals covered by different regulators and it would be unfair if they had their cases heard to different standards of proof.
While the GMC has decided independently to move to the civil standard of proof, other professional regulators have not. Both the General Optical Council and the Nursing and Midwifery Council have indicated that they will move to the civil standard only when the law requires them to do so. Without the legislation, there would be no way of ensuring a consistent standard of proof across the board. That explains the overarching reason why I am unable to support Amendments Nos. 56A and 59A, but I want to make some more detailed comments on those amendments.
There are two possible legal interpretations of the amendments. First, they could have the effect that there was no statutory requirement for regulators to use the civil standard of proof but would allow them the freedom to move to the civil standard in their procedural rules. The Bill would therefore not change the current position. I have already set out in detail why the Government believe that we should not leave the position as it is, so I will not take up time by reiterating that, if noble Lords will forgive me. The amendments could alternatively have the legal effect of requiring panels to decide at the outset of every hearing whether they should use the civil or criminal standard in that particular case. It is unclear how the panel would make such a decision.
We do not consider it helpful to leave that crucial issue to the panel to decide. It will prolong cases while there is legal argument and the arbitrary nature of the decision could lead to a high number of appeals. In any case, the civil standard is applied flexibly. That means that, in the most serious cases, in its application and outcome it will be indistinguishable from the criminal standard.
I hope that I have been able to explain why the clauses are required and that, in the light of my explanation, the noble Baroness, Lady Finlay, will be reassured and will consider withdrawing her amendment.
My Lords, I am most grateful to the Minister for her detailed response and explanation. I certainly would never want panels to be able to decide what to do at the outset of each hearing, nor would I want inconsistencies across the regulation of the different healthcare professions. I reassure noble Lords who have spoken, particularly the noble Baroness, Lady Tonge, that the amendments would do nothing to stop the civil burden of proof continuing; it is proving the correct way to go with what is happening at the moment. Similarly, I say to my noble friends Lady Murphy and Lord Patel that, so far as other professionals go, my concerns arose because the legal profession expressed concerns. Legal professionals probably know a fair bit about the law and, when they are concerned about it, alarm bells ring in my head. With those helpful explanations from the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 56B not moved.]
56C: After Clause 107, insert the following new Clause—
“Dentists register: non-practising dentists
(1) The Dentists Act 1984 (c. 24) is amended as follows.
(2) In section 15 (qualification for registration in the dentists register), after subsection (1)(a) insert—
“(aa) any person who is a graduate or licentiate in dentistry of a dental authority who no longer practises dentistry;”.(3) In section 19 (regulations with respect to the register)—
(a) in subsection (1)(b) after the word “fee” insert the words “, or non-practitioners reduced fee”; (b) in subsection (2A) for the words “a person’s name” substitute “the name of a person who practises dentistry”;(c) after subsection (2A) insert—“(2AA) Where the name of a person who falls within section (15)(1)(aa) has been erased by virtue of failure to pay a fee prescribed under subsection (1)(b), that name shall be restored to the register on that person’s application if he pays the prescribed fee.””
The noble Baroness said: My Lords, we debated this amendment on 21 May. It is set out in detail in col. GC 539 of Hansard of that date. I presented many reasons and comments and do not intend to repeat them, because time is valuable. Anyone who followed the debate or would like to know more can look those up.
In her very helpful reply, the Minister said:
“The noble Baroness made a powerful case. I would like to reassure her that, should the view of the General Dental Council on this point change in the future, the Government would consider making such a change through an order under Section 60 of the Health Act 1999. We do not consider that primary legislation would be required”.—[Official Report, 21/5/08; col. GC544.]
She goes on to say that the Government already have the flexibility to do this through secondary legislation.
Since then, I have seen a letter written by the president of the General Dental Council, dated 12 June. It is quite unbelievable that it should be so contrary to what the Minister has said. The letter was sent to someone who was strongly supporting my case. It says:
“I certainly agree with you that retired or non-practising dentists can still offer a great deal to the profession and the public at large. I don’t think anyone would dispute that. I do not believe however that for most of these activities registration with the GDC is required. In principle, many members of the Council are entirely sympathetic to the concept of some sort of retired list ... The Council, however, is not convinced that a list of retired, i.e. non-practising dentists, is in the public interest. I have no doubt whatsoever that this matter will be discussed again and while I think it is unlikely it will be done in the lifetime of this Council I have no doubt that it will be on the agenda of our successor’s and I think that is certainly sensible since”—
this is the bit that impressed me—
“there is no immediate prospect of a legislative opportunity being available”.
He goes on to say:
“It is widely recognised that there is a significant queue of legislation for healthcare regulators to be passed through Parliament’s lawyers and in turn Parliament and, in some cases, the Scottish Parliament, over the next two years and”—
again, I stress this—
“therefore there is absolutely no prospect of early legislation”.
He finishes by saying:
“The time to have a discussion is when the window of opportunity is possible. I am sorry I can only give you sympathy and cannot do anything practical to advance this in the meantime”.
To me, that is unbelievable. Here we have an opportunity—that is why I have tabled this amendment—and the General Dental Council is saying it cannot possibly do it. For years, it has hidden behind the cloak of not being able to do it because doctors have the legal power and dentists do not. As I said in my previous moving of this amendment, doctors and solicitors remain on the register when they have retired honourably. The only people who are not on the register are those who have been struck off. Why are dentists second-class citizens? Why should they be different from all other healthcare professionals?
The noble Baroness, Lady Murphy, commented on how important it was that all healthcare professionals should be treated in the same way. That is absolutely true. At the moment, if someone wants to cease practice through illness, maternity leave or any other reason, they are removed from the register. To me, that is extraordinary. I do not accept that it is not in the public interest to retain retired dentists’ names on the register. I do not mind in what way it is done: it could be on a separate list, or as part of the same list. The essential point about any of these registers, whether for doctors or dentists, is whether they have an annual practising certificate. If you have a practising certificate, you can practise. If you do not have a practising certificate, you cannot practise. Surely that is a clear enough distinction. I do not see why anything more is required.
Why would dentists be treated as second-class citizens, which is what is being done in this case? As I mentioned at the last hearing, an extraordinary number of posts and positions are filled by dentists who have to remain on the register, even though they are not practising. They have to pay the full £400 registration fee and do all this continuing professional development, even though they are not going to touch a patient. They are in teaching or lecturing professions, or writing journals, or doing all sorts of other things, but they still have to be on the register. Yet they do not really require practising certificates because they are not practising.
It is very important that dentists should not be treated differently from other healthcare professionals. I think that there is value in that. Some dentists wrote to me this week to say that another good reason for retaining on registers doctors, dentists and all sorts of other people is that, if there was any sort of national emergency, you would immediately have a list of people to go to who, although they may not be currently practising, would have knowledge that might be useful in those circumstances. There are many reasons in the public interest why this should be the case. I thank the Minister for making clear in the past that it would be very simple for the Government to do it. Whereas in the past I believed that it would be possible and did not need to be put aside, when I now see that letter, which states that there is no opportunity to legislate, I cannot allow this opportunity to pass. It is very important that we seriously consider adding this to the Bill to avoid the suggestion of so many years of waiting before any possibility of legislation. My amendment was only intended to be enabling legislation, not to force the General Dental Council to do this, but I really worry when I see the council’s attitude. I beg to move.
My Lords, I appreciate the concern expressed by the noble Baroness. I wonder whether she is aware that retired doctors have been notified by the General Medical Council. I have been exempt for 21 years from payment of the annual registration fee and am still fully on the register. However, the GMC has taken legal advice on anti-age discrimination legislation and has been informed that any doctor wishing to remain on the register, even if retired, must pay the full annual registration fee. The situation for doctors has very much changed and all of us in that position will be invited in August this year to decide whether we wish to stay on the register, even if we are no longer practising. There have been occasions, even in your Lordships’ House, when I have been required quite informally to give medical support and advice when a crisis has arisen. The question is: do I require still to be on the register to do that? I will have to consider whether to stay on the register and pay the fee, or take voluntary erasure. The GMC is now recommending that next year, it will try to introduce a list of people who are registered but retired, and with no licence to practise. It is a complicated matter.
My Lords, if you are a social worker, you do not remain registered unless you keep up your practice and get your certificate. If you do not have that, you are removed from the register. Anyone looking to treat professionals similarly will have to look at social workers as well, because, not for the first time, they are left out in the cold on this issue.
My Lords, the remarks of the noble Lord, Lord Walton, made me realise that the same thing is going to happen to me in the autumn. I am comforted by the fact that, if I choose not to pay the fee and am therefore struck off the medical register, I shall be in the company of such illustrious retired doctors.
My Lords, I had not quite realised that this was such a hot issue. I know that the noble Baroness, Lady Gardner, has been struggling with it for some time; we have had several discussions about it and she knows that I am sympathetic to her view.
The noble Baroness tabled an identical amendment in Committee and we listened with interest to her concerns then and again today. Amendment No. 56C would amend the Dentists Act 1984 to allow retired dentists to remain on the dentists register on the payment of a reduced fee. It also makes provision for such dentists to be restored to the register on payment of a fee if the reason for their erasure was non-payment of that fee.
As I said in Grand Committee—and I know that the noble Baroness welcomed this clarification—it would not require primary legislation to make such a change. I am puzzled by the letter that she quoted. We are absolutely confident that our advice is correct and that this could be done through secondary legislation. Obviously, timescales would have to be considered if the General Dental Council approached this. I would be very happy to write to the noble Baroness in detail if she would find such a letter useful. She could then clarify the position with her colleagues at the General Dental Council.
I emphasise again that I recognise that removal from the register signifies a great deal more to a dentist than the fact that they no longer practise. The House is grateful for the noble Baroness’s expertise and for bringing these concerns to the Chamber. The General Dental Council’s position is that the dentists register exists to serve and protect the public rather than the profession. Its current position is that no public benefit has been identified in maintaining a list of inactive former dentists and therefore the General Dental Council does not support this amendment. I feel sympathy for the two distinguished dentists in the Chamber whose proud record in serving their profession for years would not be recognised.
I should also mention that the White Paper on working groups on revalidation for all professionals will need to consider the wider issues around semi-retirement, retirement, career breaks and the ability of professionals to make use of or provide expert opinion to others. Until these groups have concluded their deliberations, it would not be appropriate to make the change proposed by the amendment. However, the implementation of any recommendations from these groups will be discussed with all the regulatory bodies, including the General Dental Council. I hope that that provides another option for the noble Baroness.
In conclusion, it is the Government’s view that should the General Dental Council decide, in the light of the revalidation working groups, that it wishes to change its position, it may well find that it is pushing at an open door. As the changes proposed in the amendment could be made through existing secondary legislation, and in the light of the General Dental Council’s current position, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, I thank all those who have spoken in this debate. As the noble Lord, Lord Walton, was not in Grand Committee on 21 May when I quoted from GMCtoday, I think that I must repeat that part on the position of doctors. I said then that the article states:
“In future, there will be three options. You may hold registration plus a licence to practise. You may decide to hold registration only, or you may take voluntary erasure from the register”.
The article goes on to ask:
“Why would a doctor want to hold registration only?”.
The answer, the article states, is:
“When the concept of revalidation was first introduced back in 1998, a significant number of doctors who are not in active practice expressed concern that they would lose their connection with the GMC. They saw their GMC registration as part of their professional identity. We will therefore make it possible for them to maintain their connection with the GMC by continuing to hold GMC registration, but without a licence. There will be a cost for this, although it will be less than the cost of holding a licence plus registration. However, doctors with registration only will not be able to practise. Of course, doctors who see no advantage in holding registration only will be able take voluntary erasure from the register. This will cost them nothing”.—[Official Report, 21/5/08, col. GC 541.]
The dental situation was changed in 2004 and instead of paying £65, dentists over a certain age had to pay either the sum of almost £400 or nothing. There was no alternative. Doctors have been exempt from all charge but now it is suggested that there will be a charge. But this article contains no suggestion that they will not have the right to continue if they pay a certain charge. Dentists would certainly have been happy to pay about £100 a year, instead of £400. They would not have kept up the continuing professional development that is required. But at that time the General Dental Council threw away 2,500 dentists, losing a nice little income of £250,000.
The debate on this issue has made it clear to me that, although I am happy to withdraw the amendment now, I shall bring it back again at the next stage, not just for dentists but for doctors, social workers and all healthcare professionals. It would be very progressive if we put in the Bill an enabling provision, although it would not in any way force the General Dental Council to do this. If the dentists decide that they do not want it, that will be up to the General Dental Council. But the points that have been made by social workers and by the noble Lord, Lord Walton, today show that things are changing and that there should be an enabling provision in the Bill. This would be in the public interest; it would be valuable to have a list of people available in case of a national emergency or any other situation.
I warn the Minister, who has been so helpful in this matter, that the issue has just become much wider. I will bring forward an amendment at Third Reading with totally different wording to include in the Bill an enabling provision for all healthcare professionals. Emphasis has been placed today on the fact that all should be the same. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 108 [The Council for Healthcare Regulatory Excellence]:
57: Clause 108, page 54, line 28, at end insert—
“( ) After subsection (2)(d) of that section insert—
“(e) to commission independent information and advice services to assist members of the public considering reporting or reporting a concern to any of the bodies listed in subsection (3), and those who go on to become witnesses under the procedures of the Office of the Health Professions Adjudicator.””
The noble Earl said: My Lords, I bring us to an issue that has not so far been a feature of our debates on the Bill: the absence of any independent source of advice for patients or members of the public who have concerns about a health professional and want to know how they should set about reporting those concerns. Currently no service is funded to do this. Making a complaint about a doctor is a big step and a daunting task to all but the most feisty and determined among us. Many patients, because of age or infirmity, are in no way feisty, nor, often, are they able to draw on the emotional reserves necessary to enable them to stand up for what they believe is right, simply because that requires effort and courage. For emotionally vulnerable people of this kind, going to the GMC for advice is by no means an easy thing to contemplate. They need someone, at least at the outset, who can talk them through the process in a completely objective and unintimidating way.
The other aspect of the problem is the opposite situation. There are many complaints made to the GMC every year which are a complete waste of time. Many of them are not the concern of the GMC at all and would be more appropriately dealt with by other bodies. The result is that the GMC is landed with a huge amount of unnecessary work in assessing and redirecting complaints of this sort. It would be much better if there were somewhere people could turn to for advice before launching into a complaint that otherwise might be wholly misdirected.
The need for advice and assistance was highlighted by the Shipman inquiry. There is now quite a widespread feeling that this need should somehow be met. The amendment would make it a duty of the CHRE to commission independent advice and information services to assist members of the public who have concerns about the fitness to practise of a health professional: first, to enable them to decide whether to report that concern to a regulatory body; and, secondly, if they decide to do so, to assist them in that process.
The CHRE sent me a note voicing concern that the proposal contained in the amendment might compromise its independence. I do not see why that should be, if we are talking about the CHRE commissioning a service, which it then oversees, and which is largely devoted to giving advice on process. In another place the Minister was broadly sympathetic to the aim of a very similar amendment but said that it was not necessary because the CHRE already had powers to provide a service of broadly this kind. That was encouraging, but the trouble is that, without appropriate funding, the CHRE will find it impossible to implement such a service. It would be very helpful if the Minister could provide some more concrete reassurance today about this idea and tell us whether and to what extent the Government’s thinking has developed on these matters. I beg to move.
My Lords, Amendment No. 57 would require the CHRE to commission independent information and advice services to assist members of the public considering reporting a concern to the healthcare professional regulatory body and to those who appeared as witnesses in cases adjudicated by the Office of the Health Professions Adjudicator. The amendment inserts this into the list of the CHRE’s general statutory functions. The willingness of members of the public to make their concerns known to regulators is vital. This is fully understood by the regulatory bodies.
Although I have sympathy with the spirit of this amendment, we want to keep this responsibility firmly with regulators who have the responsibility for investigation and presenting the cases at hearings. The role of the CHRE is to oversee the performance of the regulatory framework, not to become part of the fitness-to-practise process. Such direct involvement in complaints as this amendment proposes would undermine this hugely important oversight role. Clearly, the CHRE agrees with the Government on this.
It may reassure noble Lords to know that information and advice is already provided by the regulators themselves on how a member of the public can make a complaint and the procedures to deal with it. For example, the General Medical Council has published A Patient’s Guide—How You Can Refer a Doctor to the GMC and the General Chiropractic Council published How to Complain About a Chiropractor: Telling the General Chiropractic Council About Your Concerns. These publications tell the public about the role of the organisation, what information they will need to provide about a complaint, the process followed after a complaint is made and what the outcomes might be. All the healthcare profession regulators publish similar information for members of the public and patients. Support for patients, complainants and witnesses is not limited to leaflets. The regulators provide telephone advice on making complaints and on whether the matter might be better dealt with locally than by a national regulator. They also provide detailed information and advice to members of the public who appear as witnesses in a fitness-to-practise case, such as the layout of the hearing room and an explanation of the hearing process.
The Government are confident that the GMC and GOC will continue to provide the necessary information and support to witnesses OHPA’s hearings. In addition, the Bill requires the OHPA to ensure that the public are informed about its functions, as provided in Clause 102.
While we think that the regulators should provide this detailed advice, I can assure noble Lords that it is very much the role of the CHRE to consider whether the information and advice that regulators provide is satisfactory from the patient’s perspective. If it is not, the CHRE can raise this issue in its report to Parliament on the performance of the regulator, which is a clear mechanism for triggering any specific improvements needed. The Government are still looking at local complaints resolution, and I hope to be able to say more about complaints at Third Reading.
The CHRE already provides on its website information about other organisations that can provide support to patients. On this basis and in the light of my explanations and the fact that we will be looking again at local complaints resolution, I hope that the noble Earl will be able to withdraw this amendment.
My Lords, that was a very helpful reply. The House may like to know that I was prompted to table the amendment by Action for Victims of Medical Accidents (AvMA), which has a natural interest in this area. I totally accept that the main role of the CHRE is to oversee the performance of the regulatory process. I would not dissent from that for a moment. It is true that the CHRE has been clear that this amendment is a departure from its current role. My puzzlement, however, stemmed from the fact that the Minister in another place said that the CHRE already had the power to provide the service I was talking about, which rather suggests that it is not such a major departure from their current role. However, much of what the Minister said is very reassuring, and I and others will look forward to anything she is able to tell us at Third Reading about the complaints process. This has been a useful exchange. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 111 [Powers of Secretary of State and devolved administrations]:
58: Clause 111, page 56, leave out lines 19 to 23
On Question, amendment agreed to.
Clause 116 [Co-operation between prescribed bodies]:
59: Clause 116, page 64, line 26, at end insert—
“( ) In making regulations under this section the appropriate Minister must have regard to the importance of avoiding unfair prejudice to health care workers against whom unsubstantiated allegations are made.”
The noble Baroness said: My Lords, it would be convenient also to consider Amendments Nos. 75 and 76.
On Amendment No. 59, we had an extremely useful debate in Grand Committee about the power in the Bill to allow healthcare organisations to share information with healthcare workers. Noble Lords focused particularly on sharing information which may be unsubstantiated at the time of sharing and where information may show a threat to a patient’s safety. In Grand Committee there was some recognition that it could sometimes be justified to share information that suggests, but may not in itself be sufficient to prove, a possible threat to patients’ safety. An example we discussed was an extreme value on a clinical indicator. I was pleased about the degree of consensus on this point but I also took away from the debate some important points made by noble Lords about getting the balance right between protecting patients and ensuring the fair treatment of practitioners.
I have therefore looked at how we might reassure noble Lords that the careers of healthcare workers will not be prejudiced by sharing information that includes unsubstantiated allegations. That is why I have tabled government Amendment No. 59, which requires the appropriate Minister, in making regulations that will set out in detail how information can and should be shared, to have regard to the importance of avoiding unfair prejudice to healthcare workers against whom unsubstantiated allegations are made. This means that the rights of healthcare workers will have to be taken fully into account when making the regulations which will, after all, determine how this provision works in practice. I hope noble Lords will welcome this.
Turning to Amendments Nos. 75 and 76, during our debate in Grand Committee on the piloting of legally qualified chairs, concerns were raised about how such a pilot could be run in a way which would be fair to the individual practitioner. In response to these concerns, I gave an assurance that the Government were satisfied that there are a number of ways in which a pilot could be run fairly and sensibly. While not wishing to rehearse the important and detailed debate we had in Grand Committee, I am happy to repeat that assurance today. Having said that, I looked at the points that noble Lords raised and I appreciate that, notwithstanding my assurances, it may be difficult for them to be fully at ease with these provisions without seeing the detail of the proposals.
In order to address these concerns, I did not want to remove the option of piloting from the Bill, as doing so would be removing a valuable optional mechanism for OHPA to use to help it to make evidence-based decisions on which cases might benefit from having legally qualified chairs. Instead, I have tabled a government amendment to ensure that, if OHPA decides to make rules which include piloting provisions, they must be subject to the affirmative resolution procedure. This means that your Lordships’ House will have the opportunity to debate the detail of how OHPA would like to run the pilot and will have the freedom to reject the proposals if there are any concerns that they are unfair to individual practitioners. This amendment means that noble Lords do not simply have to take my word for it that a pilot would be fair; they will be able to judge for themselves on the basis of firm proposals that OHPA itself will develop in conjunction with lawyers. I hope this will help to allay any remaining concerns on the issue. I beg to move.
My Lords, my noble friend Lady Tonge took a specific interest in this issue and we very much welcome Amendments Nos. 75 and 76. I do not expect the Minister to answer now, but on Amendment No. 59, will she write to me to explain the parallel situation facing social care workers? Under, for example, the protection of vulnerable adults legislation and the Protection of Children Act, the bar beyond which allegations can be made against social care workers is set considerably lower than it is for healthcare workers. I am concerned that there will be a disparity as regulation of the two professions moves together. Can the department furnish noble Lords with a digest that sets out in parallel the situation if one person is a medic and the other a social care worker? It would be extremely helpful.
My Lords, I am grateful for the welcome given to these amendments. The noble Baroness Lady Barker, asked a very pertinent question. I undertake to find out the answer and circulate it to all those who have been involved and would be interested in it.
On Question, amendment agreed to.
Clause 120 [Standard of proof in proceedings relating to registration of social care worker]:
[Amendments Nos. 59A and 59B not moved.]
Clause 124 [Public health protection]:
60: Clause 124, page 69, line 33, leave out “or disposal of dead bodies or” and insert “, burial or cremation of dead bodies or the handling, transport or disposal of ”
The noble Lord said: My Lords, it will be convenient also to consider government Amendments Nos. 62 to 68. As the noble Baroness, Lady Stern, has tabled amendments to government Amendment No. 62, I will wait for her to set out her position on those amendments before responding to them.
I turn first to Amendments Nos. 62, 64, 65 and 68. I recognise that there were concerns about whether the safeguards in the Bill were strong enough in relation to the powers to detain, isolate or quarantine individuals where they refuse to take action to protect others voluntarily. While I did feel that the Bill as drafted contained sufficient safeguards, I have looked carefully at how I might be able to provide additional reassurances to noble Lords. I have tabled three government amendments to introduce further safeguards around time limits for orders and extensions of orders. These amendments, first, restrict the periods of any detention, isolation or quarantine measure under the domestic regulation-making power to maximum periods of 28 days before a review must take place. This then mirrors the arrangements already in the Bill for the justice of the peace powers. Secondly, they restrict the period of any extension of a justice of the peace order to no more than 28 days at a time. Thirdly, they make the first version of regulations dealing with time periods for orders and extensions of orders other than for detention, isolation and quarantine subject to the affirmative resolution procedure, so that Parliament can debate those provisions.
I should now like to take the opportunity to make a further two commitments on the record for safeguards which will be included in the regulations. These additional safeguards are designed to ensure that there is transparency about how these orders are used, and that even the most vulnerable person who has an order made against him will be able to get any help and support he needs.
Noble Lords have convincingly argued that it would be beneficial to have a central record kept of all orders made by justices of the peace. As I said in Grand Committee, the Department of Health has already agreed with the Health Protection Agency that it will set up a monitoring system for England within its standard operating procedures. I can now make a commitment that the regulations will require the local authority to report the making of an order to the HPA, in line with its existing duty to co-operate with the HPA, as set out in Section 5 of the Health Protection Agency Act 2004. I should also point out that guidance will be produced to accompany the legislation and assist relevant stakeholders in understanding their powers, duties and responsibilities.
Noble Lords were also concerned about the needs of vulnerable individuals who may be placed under an order. To enhance the existing safeguards, I am also committing to place in regulations a duty on local authorities to ensure that a person who has an order made against him is made aware of his rights, relevant support services and how to access them.
I turn now to government Amendments Nos. 60, 63, 66 and 67. Noble Lords raised some very important points in Grand Committee about the provisions allowing a justice of the peace to order the disposal of dead bodies where this is necessary to protect public health. Having carefully considered the views expressed in Grand Committee, I do not think that the Bill as drafted was as clear as it could be about what is intended by these provisions. Let me clarify this now. A dead body is either cremated or buried. In some cases it may be necessary to specify one method over the other, or to specify the manner in which burial or cremation should take place. For example, if a body was heavily contaminated with radioactive material and could not be safely cremated, it might need to be buried in an appropriately designed coffin so that the radioactive material was sufficiently contained. I have therefore tabled government Amendments Nos. 60 and 63 to make clear in primary legislation our intention that destruction or disposal of a dead body should only be by cremation or burial.
Disposal of dead bodies is a sensitive issue. I agreed fully with the concerns raised by the noble Earl, Lord Howe, about the distress that this may cause relatives and the need to make sure that they are both informed and have a right to challenge such an order. I have therefore tabled government Amendments Nos. 66 and 67 to require the Secretary of State or Welsh Ministers to make regulations setting out who is to be notified when a local authority applies for a justice of the peace order. It is my intention that these regulations will require local authorities to endeavour to notify the next of kin where an order involves a dead body. I also intend explicitly to add in regulations “next of kin” to the list of affected people who can make an application. This will ensure that the ambiguity surrounding the issue of ownership of a dead body does not prevent relatives applying to vary or revoke an order in relation to the deceased.
I hope that noble Lords will feel that I have brought forward a substantial package of measures to address the concerns raised in Grand Committee and that I have provided adequate reassurance on a number of important points. I beg to move.
My Lords, the noble Baroness, Lady Stern, is not able to be here this evening so she has asked me to move the amendments standing in her name. My noble friend Lord Darzi almost took all of the wind out of my sails, but perhaps not quite, so I shall continue. First, I would like to wish the NHS a very happy 60th birthday which is at the end of next week. That was quite out of order but it is the only chance I shall have to say it.
I shall speak to Amendments Nos. 62A to 62D, which stem from discussions and consideration that took place in the Joint Committee on Human Rights, although I must stress that I am not speaking on behalf of that committee. I welcome what my noble friend has said, but perhaps we can just go a little bit further.
The Government’s amendment would limit the provision for automatic review to only those regulations which impose a special restriction or requirement on a person for longer than a specified period. This is narrower than the current language in the Bill which provides for all special restrictions or requirements, including in relation to things or premises or in relation to persons, regardless of the period of time for which they remain in force. If I am not right in my assessment, my noble friend will surely tell me.
The first two amendments would extend the Government’s amendment to require or review in respect of all special restrictions and requirements imposed on persons, things or premises. The third amendment would reiterate the concern that regulations which enable administrative orders imposing restrictions or requirements on individuals should lapse when they are no longer necessary and should be subject to regular parliamentary scrutiny. They provide that measures enabling compulsory detention, isolation or quarantine should lapse when they are no longer necessary to meet a serious and imminent threat to public health, or after 12 months. This would require the Government to seek parliamentary approval for these types of regulations on an annual basis. That goes somewhat further than the safeguards suggested by my noble friend.
The Government also propose that where a special restriction or requirement includes detention, isolation or quarantine, the maximum period for which that restriction may be in place without review will be 28 days. Thereafter, there must be a review without application at 28-day intervals. That is welcome in that it makes clear that the review must be unprompted and that it must take place at regular intervals. However, its value is somewhat diminished because the identity of the reviewer is unknown. My noble friend talked about transparency, which is very welcome. I hope that that transparency can be taken a little further so that we would know the identity of the reviewer.
Cases involving detention, isolation and quarantine may involve the deprivation of liberty or interference with private and family life. It is therefore important that a decision of that sort should be reviewed on a regular basis, and by an independent, impartial tribunal. The provision for independent, automatic review of administrative decisions imposing compulsory detention, isolation or quarantine, would be an important safeguard for the right to liberty and the respect for private and family life.
The final amendment would require any detention, isolation or quarantine to be reviewed automatically by a magistrate’s court or another named, independent and impartial tribunal after 28 days. Can my noble friend explain why at least in cases of compulsory detention, isolation or quarantine, there should not be an automatic review after 28 days by a court, or other, tribunal as will be required by the Bill where these restrictions are ordered by a justice of the peace?
My Lords, very briefly, I thank the Minister for having taken away many of the concerns raised in Grand Committee on this part of the Bill and for having responded to them so constructively and satisfactorily, both in the government amendments that we are now considering and in the undertakings that he has given. I warmly welcome the government amendments in this group.
My Lords, I thank the Minister in particular for taking away the point made by ourselves and the noble Baroness, Lady Gould of Potternewton, that there should be a central record of measures under the Bill. That will be an important public health measure. I also thank the noble Baroness, Lady Thornton, for having tabled these amendments and getting us this far. The work on this is to be commended.
I should like to add my support for the points made by the noble Lord, Lord Dubs. During our debates, we focused, quite rightly, on the potential deprivation of liberty of individuals. But thinking back to the foot and mouth disaster of a few years ago, perhaps we underestimated, in our debates, the extent to which people’s businesses and livelihoods can be put in danger. A restriction of 28 days on a farm can be enough to put the farm out of business. I am sure that the noble Lord, Lord Darzi, will respond to all the points raised by the noble Lord, Lord Dubs, but the inclusion of “thing or premises” is important because there is a potential in this for people’s homes and livelihoods to be severely damaged. I wish the noble Lord, Lord Dubs, well and I hope that he gets a speedy response. I also thank the Minister.
My Lords, I am grateful to my noble friend Lord Dubs for supporting this amendment. The noble Baroness, Lady Stern, who is not in her place today, had tabled Amendments Nos. 62A to 62D, which seek to make further changes to government Amendment No. 62.
Amendment No. 62A is intended to ensure that the right to review is extended to regulations setting measures against “things or premises”. I can assure my noble friend that the provision does, in fact, already cover these measures. However, I understand that the technicalities of the drafting may not make this clear. I thank the noble Baroness and my noble friend for bringing this to our attention, and I am delighted to be able to say that I can accept the amendment.
Amendment No. 62B seeks to extend the right of review to measures that are one-off measures and not measures that have a specified period. I sympathise with the sentiment. However, I believe that it is unnecessary to remove the wording in question. One-off measures—such as medical examination, or the requirement to disinfect a premises—already have a safeguard at new Section 45F(6). This provision allows an individual the right of appeal. If the individual disagrees with a one-off measure, the appropriate action is to appeal against it, not to seek a review.
Amendment No. 62C seeks to install a sunset clause so that regulations containing measures to detain, quarantine or isolate individuals must be remade every 12 months and must lapse when there is no longer a serious and imminent threat. I hope that I have reassured my noble friend that this amendment is not needed because these measures can be imposed only if there is a serious and imminent threat. Therefore, it is unnecessary to state in a provision that the regulation must fall when no threat is present, because these powers could not be used if there was no longer a threat.
We have also spoken a lot about SARS during our debates on this part of the Bill, and it is worth remembering that the SARS outbreak lasted for more than two years. If a similar outbreak occurred, it would be appropriate for provisions to be in place for longer than a year at a time.
Amendment No. 62D seeks to require that all reviews are carried out by a magistrate or,
“another named independent and impartial tribunal”.
As I explained in Grand Committee, the reason for not leaving the review power with a magistrate is that the purpose of new Sections 45C and 45D is to provide central powers to deal with serious and imminent threats when it may be appropriate to enable a decision-maker other than a justice of the peace to take key decisions at the relevant time. The amendment could have the effect that, in a widespread emergency, justices of the peace could be overrun with applications that could better be determined by an authorised officer applying centrally set criteria under carefully drafted regulations.
My noble friend proposes that this problem could be avoided by allowing for independent and impartial named tribunals to hear reviews. Our provision allows the review to be heard by a person determined in accordance with the regulations. That means that the regulations must set out who should be allowed to carry out reviews, and Parliament will be able to debate the appropriateness of these reviewers when the regulations are debated as part of the affirmative procedure. I am not clear what is meant by the term “named tribunal”, but the provision we have offers a sound safeguard for individuals subject to measures under these regulations. Let us not forget that the review is a safeguard in addition to the right to appeal to a magistrate under new Section 45F.
I hope that, in the light of my explanation and the significant government amendments I have already tabled to address noble Lords’ concerns, my noble friend will agree to withdraw the amendments with the exception of Amendment No. 62A, which, as I have indicated, I am happy to accept.
On Question, amendment agreed to.
61: Clause 124, page 69, line 46, leave out from “unless” to “the” in line 1 on page 70
The noble Lord said: My Lords, in the absence of the noble Baroness, Lady Stern, I have been asked to move the amendment in her name. I speak also to Amendments Nos. 61A to 61C. The Bill proposes that the Secretary of State has the power to make health protection regulations. This broad regulation-making power includes a power to enable others to impose restrictions and requirements on individuals through detention, isolation and quarantine. These amendments would conclusively remove any subjective element from these clauses and require any restriction or requirement to be proportionate, not only to the immediate aim of imposing the policy, but also to the risk to public health that it intends to meet.
Will the Minister clarify the grounds for a judicial review of a decision to impose special restrictions or requirements? Will he also confirm whether, on judicial review of a decision to impose a restriction or requirement engaging convention rights, the court will be able to substitute its own assessment of proportionality, quash the decision and remove the restriction or requirement? Finally, do the Government accept that a decision to impose a restriction or requirement which engages convention rights must be made on evidence of risk to public health and proportionate to that risk? I beg to move.
My Lords, the noble Lord, Lord Dubs, has spoken extremely well to this group of amendments. Briefly, I support the thrust of all that he has said. I hope that the Minister can provide us with some reassurance. We left the important issue of proportionality in this part of the Bill somewhat in the air in our Grand Committee debates.
My Lords, subsections (1) and (2) of new Section 45D in Clause 114 of the Bill provide a safeguard in the domestic regulation-making power. That safeguard requires that where an appropriate Minister or decision-maker is imposing, or enabling the imposition of, a restriction or requirement, they must consider that the measure is proportionate to what is sought to be achieved by imposing it.
Amendments No. 61 and 61B remove from this proportionality test the specification of who must consider the measures to be proportionate, and the point in time when that consideration must be made. Amendments Nos. 61A and 61C then require that any measure taken must be proportionate not only to the aim of the particular measure but also that each measure in itself must be proportionate to the overall threat. I have given these amendments a lot of thought, both now and in Grand Committee, and I am still of the view that these amendments would render the provision at best ambiguous, and at worst unworkable. I hope that I can set out why in a way that will convince noble Lords that we are better off with the provision as currently drafted.
My first concern with these amendments is that, instead of the provisions requiring the Minister or decision-maker to consider the measure proportionate, the provisions would read that the measure must be proportionate. I sympathise with the intention to ensure objectivity in the test. However, it may simply not be possible, at the time that the decision must be taken, to be absolutely sure that the measure is proportionate to the risk it seeks to address. Such a test does not allow for occasions where the scientific evidence may be weak or where the threat is unprecedented and of an unknown nature. The noble Baroness, Lady Finlay, put it very eloquently in Grand Committee when she explained that the measures taken during the SARS outbreak in Hong Kong were “taken in the dark” because the true pathogenic nature of that organism was not known at the time.
If the emergency nature of a situation requires that a decision be “taken in the dark”, someone has to make that decision. As I explained in Grand Committee, simply deleting the reference to the person making the judgment that a measure is “proportionate” does not change the fact that such a judgment must be made. Measures are not “proportionate” to threats all by themselves; someone must judge them to be so.
My second concern about these amendments is that they would mean that the measure taken must be judged to be proportionate not only at the point that the decision is taken but also at any given later time. They remove the idea that the proportionality test should be based on whether it was proportionate given the facts at the time of the decision. Instead, they would allow a court, in retrospect, and with further scientific evidence to hand, to look at whether the measures are still considered proportionate, and whether each measure, in and of itself, was proportionate to the overall risk. I have to say that the idea of such a retrospective second-guessing gives me grave concern, especially as the threat of such an examination with hindsight may discourage proper action from being taken at the time to protect public health. I hope that my noble friend Lord Dubs and the noble Earl, Lord Onslow, will understand my concerns and feel able to withdraw their amendments.
My Lords, I am grateful to my noble friend for the detailed way in which he dealt with the various points arising from the amendments. I accept what he said, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 61A to 61C not moved.]
62: Clause 124, page 71, leave out lines 18 to 21 and insert—
“(6A) Regulations under section 45C which enable a special restriction or requirement to be imposed by virtue of a decision taken under the regulations must also provide that, if the restriction or requirement is capable of remaining in force in relation to any person for more than a specified period, a specified person may require the continuation of the restriction or requirement to be reviewed in accordance with the regulations at specified intervals by a person determined in accordance with the regulations.
(6B) In relation to a special restriction or requirement mentioned in section 45G(2)(c) or (d)—
(a) the period specified by virtue of subsection (6A) and the intervals specified by virtue of that subsection must be 28 days or less, and(b) the regulations must require the continuation of the restriction or requirement to be reviewed without an application being made.”
The noble Lord said: My Lords, I beg to move.
62A: Clause 124, line 5, after “person” insert “, thing or premises”
On Question, amendment agreed to.
[Amendments Nos. 62B to 62D, as amendments to Amendment No 62, not moved.]
On Question, Amendment No. 62, as amended, agreed to.
63: Clause 124, page 72, leave out line 47 and insert—
“(d) in the case of a dead body, that the body be buried or cremated;(e) in any other case, that the thing be destroyed or disposed of.”
64: Clause 124, page 76, line 8, leave out from “(d)” to end of line 9 and insert “neither the period specified under subsection (1) nor the period of any extension under subsection (2) may exceed 28 days or such shorter period as the appropriate Minister may by regulations prescribe.”
65: Clause 124, page 76, leave out lines 11 to 13
66: Clause 124, page 76, line 21, at end insert—
“(2A) The appropriate Minister must by regulations require a local authority to give notice to such persons as may be prescribed by the regulations of the making of an application for a Part 2A order, but this is subject to subsection (3).”
67: Clause 124, page 76, line 24, at end insert “or regulations under subsection (2A)”
68: Clause 124, page 78, line 26, after “45G(7),” insert—
“( ) the first regulations to be made under section 45L(4),”
On Question, amendments agreed to.
68A: Clause 124, page 79, line 13, at end insert “, except an instrument to which section 45RA applies”
The noble Lord said: My Lords, I wish to move Amendment No. 68A and speak to Amendment No. 68B.
The Bill provides for an emergency procedure for the passage of health protection regulations. This procedure is very broad and is triggered whenever the relevant Minister considers that it is urgent for the regulations to become law. These amendments would create two emergency procedures comprising an urgent procedure proposed by the Bill, which will apply to all regulations except those which enable administrative detention, quarantine or isolation, and a new emergency procedure, which applies to any regulations which enable the Secretary of State or other persons to order the detention, isolation or quarantine of persons. Therefore, a distinction is drawn according to the seriousness of the consequences for the individuals about whom we are talking.
This new formulation meets the Government’s concern expressed in Committee that the urgent procedure was intended for use in circumstances where technical or administrative arrangements might be urgently required by the World Health Organisation. The stricter procedures that I propose are now limited only to regulations which enable administrative orders for detention, isolation and quarantine. I question whether administrative powers to authorise restrictions on individuals, including measures which affect their right to liberty, such as detention, quarantine and isolation, are necessary or are accompanied by adequate safeguards in the Bill.
These provisions do not import the Civil Contingencies Act wholesale. In fact, that Act does not allow for the detention of individuals, as detention must be expressly authorised by Parliament in the relevant regulation-making power. Instead, these amendments provide that, where the Government seek to enable the use of emergency administrative detention for public health purposes, the parliamentary scrutiny is at least of the same degree as that envisaged in the Civil Contingencies Act.
The definition of a “public health emergency” is adapted from the Civil Contingencies Act 2004. The current emergency procedure provides no definition of “urgency”, which is left to the discretion of the relevant Minister. Could my noble friend explain why, in the circumstances which Ministers have previously highlighted, such as an outbreak of SARS, Ebola or a similarly life-threatening illness, the potentially draconian steps of enabling administrative detention, isolation or quarantine should not be subject to parliamentary oversight on at least the same terms as those provided in the Civil Contingencies Act 2004? I beg to move.
My Lords, I hesitate to speak against the very erudite speech of the noble Lord, Lord Dubs, but I am concerned that this amendment would make the procedure somewhat clumsy. I have tried to think through different scenarios that might emerge. When you are making a decision, one of the difficulties is that situations constantly evolve; they do not necessarily comprise neat phases. If we take the worst case scenario of an extremely dangerous and infective episode occurring, where we do not want anyone to move around for a certain time, I am not sure that Parliament could be involved anyway. We would have to ask parliamentarians to travel unless we abandoned all parliamentary procedures and said that we would all vote over the internet, and I do not think that such an enormous change as that would occur.
I have tried to envisage different scenarios and how the legislation would work. Recently, I attended a seminar on climate change and potential new diseases. It is extremely scary to think of the way in which different viruses might mutate, resulting in a sudden incidence of high infectivity and mortality rates. Therefore, I am minded to stick with the Bill’s wording and not make decision-making any more difficult. If an emergency occurs, the decision-making will be extremely difficult and I hesitate to put further hurdles in the way.
My Lords, Amendments Nos. 68A and 68B would alter the effect of new Section 45R, which enables public health protection regulations to be made, in urgent circumstances, following a procedure set out in that section. The procedure allows regulations which contain the relevant declaration to take effect immediately and last for 28 days unless they are rejected by a vote in either House of Parliament and therefore cease to have effect. The regulations must be approved by a vote in each House before the 28th day in order to remain in effect.
Amendments Nos. 68A and 68B would reduce that 28-day period to seven days for regulations that enable the imposition of isolation, quarantine or detention. In addition, Amendment No. 68B would require Parliament to be recalled during any recess if such a debate was required, and would allow the regulations relating to these measures to be amended during debate in either House. Before I set out why I do not think these amendments are necessary, I emphasise that they do not reflect any recommendations put forward by the Delegated Powers and Regulatory Reform Committee. As noble Lords know, the Government accepted that committee’s recommendations in full and it has not raised any further issues since.
I understand the reasoning behind the desire to recall Parliament and allow only seven days before a debate on regulations relating to isolation, quarantine and detention. However, I believe that there are already sufficient safeguards in the Bill to ensure that individuals’ liberties are respected. All individuals who are placed under quarantine, detention or isolation through regulations will have a right to appeal at any time to a justice of the peace. In addition, they must have an automatic review of their case, whether or not they have used their right of appeal, within 28 days of the measure commencing. These provisions must be included in all regulations imposing quarantine, isolation or detention regardless of when Parliament approves them. I do not believe that it would be appropriate to recall Parliament in every situation where urgent regulations included isolation, quarantine and detention measures.
Reference was made to SARS. If there were another outbreak of an infection such as the outbreak of SARS in Hong Kong, and experts strongly believed that the UK was at imminent risk, we would want to make urgent regulations to ensure that we had immediate quarantine powers. However, although it would be necessary to ensure that powers were in place immediately, they might not be used immediately. In fact, they might not be used for weeks, months or at all. Their use would depend on whether the risk had materialised.
Such precautionary measures may be urgent but may not have such serious implications as to warrant the recall of Parliament, especially given that isolation, quarantine or detention can be imposed only where the serious and imminent threat is actually present at the relevant point in time. That said, our provisions would still allow the Government to recall Parliament where the threat warranted it.
The amendments would allow the regulations to be amended. If the Secretary of State were to decide that regulations were needed under the urgent procedure, the decision would be taken following important discussion with experts in the relevant fields. Advice might be sought from experts at the Health Protection Agency, senior doctors and scientists, and possibly even international health organisations such as the World Health Organisation. The regulations laid would seek to implement the measures recommended by these experts as necessary to deal with the public threat at hand. In such circumstances, I strongly believe that the decision that Parliament should be asked to take is to accept the measures in full or to reject them.
I hope I have addressed the issues raised by the noble Baroness and that my noble friend Lord Dubs will understand my concerns and feel able to withdraw these amendments.
My Lords, my noble friend is the most persuasive of Ministers, and I say that in a complimentary and not a pejorative manner. I am most grateful to him for having explained so clearly his concerns about the amendments and how this part of the Bill would work. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68B not moved.]
Clause 134 [Duty of Primary Care Trusts]:
69: Clause 134, page 89, line 12, at end insert—
“(2A) Each Primary Care Trust must publish a document describing its arrangements for managing applications to fund treatments which fall outside its commissioning policies.”
The noble Earl said: My Lords, I want to turn a spotlight on to an issue of considerable importance for NHS patients, and that is the issue of exceptional cases. What do I mean by an exceptional case? An exceptional case arises where a PCT receives a request from a member of the public or a clinician for a treatment which is not available through existing contracts or wider commissioning policies. There are several sets of circumstances where exceptional requests for treatment are likely to arise. One example is where new treatments being evaluated by NICE have not been explicitly funded in the operational plans of the PCT. Another is high-cost treatments for rare conditions. A third is where a treatment involves a drug where the requested use would be off licence. Recently a lot of the debate on exceptional cases has focused on drugs for the treatment of cancer but the situation also applies to a range of other conditions and it is clear that the issue will become much broader as more targeted therapies are developed which have smaller patient populations and which are at the same time more expensive. In 2005-06 Peterborough PCT received 156 applications for exceptional funding, of which 15 related to high-cost drugs, 13 to breast augmentation, 12 to pain management and 11 to orthopaedics.
It is the duty of PCTs, when an application of this sort is received, to assess the merits of the request. Exceptionality is demonstrated by evidence that the benefit from treatment for a particular patient is “significantly greater” than the benefit which would accrue to a patient with a similar clinical picture. The Faculty of Public Health in an article published three years ago offered three grounds on which a patient can be considered eligible for funding. The first is where a particular development in a patient’s condition for which treatment is required is “wholly unforeseen”. The second is where the treatment would “avert a crisis”. The third is where the use of the treatment in a particular patient has such a major health gain associated with it that it is “truly remarkable in its efficacy”.
However, all these grounds are quite broad in nature. Given that PCTs are not allowed to issue blanket refusals on the funding of treatments, all PCTs are obliged to consider whether to provide funding whenever a request for an exceptional treatment is received. For this reason many PCTs, though by no means all, have established what can loosely be termed “exceptional requests panels”. Where such panels exist, they tend to operate to certain protocols in assessing individual requests for treatment. The problem here is that there is no requirement for a PCT to publish its criteria for judging exceptional cases. In the absence of that requirement, members of the public do not know anything at all about the decision-making process. They cannot scrutinise it. That inability to scrutinise is often serious because, in reaching a decision on whether to fund a treatment, it is not uncommon for a PCT to rely on social criteria which, of necessity, involves making value judgments. Once you start doing that, you enter territory that is fraught with difficulty. For example, if a treatment is given to a patient who has young children over and above a patient who is childless, this involves a social value judgment which favours a lifestyle choice to have children.
It is known that judgments of this sort are made, but without a request under the Freedom of Information Act about whether there is a panel—and that is sometimes not manifest—and what sort of social criteria are used, a patient cannot find out how he might be able to build up a convincing argument for why he should be able to receive a particular treatment. There is also a possibility that taking a decision on the basis of social factors could fall foul of the requirements of the Equality Act 2006, which outlaws discrimination on the basis of age and sex. The amendment is needed, therefore, to empower patients. It is needed to ensure that there is transparency in the way that PCTs make decisions to fund, or not to fund, exceptional cases, and it is needed to expose geographical variations in the way that requests for exceptional treatments are assessed. We know that in some PCTs there is a 50:50 success rate in exceptional applications whereas in other areas the success rate is virtually 100 per cent. So where differing criteria and procedures are used in different areas of the country, the postcode lottery that this creates would be made apparent.
I hope the Minister will accept that there is a very real issue here which needs to be addressed. It would be most helpful if she were able to say something about the problems I have outlined and indicate whether she accepts that secrecy about the processes used to make decisions on the use of public money should be viewed as unacceptable in both principle and practice. I beg to move.
My Lords, I fully appreciate the intention behind this amendment to achieve maximum transparency about the decision to fund treatments beyond PCTs’ stated commissioning policies and I agree with the noble Earl that transparency is key. In the commissioning cycle, PCTs will need to effectively engage patients and the public, assess needs and prioritise investment. They will have to be proactive in seeking out the views and experiences of the public, patients and other stakeholders and they will need to demonstrate clearly how they are discharging their responsibilities. In addition, they will need to have the capacity to consider applications from clinicians and patients who believe that genuinely exceptional circumstances apply in their particular case. The assessment of such cases requires a delicate balance to be struck between the genuine desire to give an individual patient care that may benefit them and the PCT’s wider responsibility to commission services that deliver the best results in terms of gain for the whole population.
The Government expect PCTs to have in place appropriate processes for reaching decisions on applications for treatments that are not normally funded, but the details and operation of such processes are for local determination. I understand the concerns that have been expressed about the accessibility and transparency of individual PCT arrangements and I agree that it is desirable that PCTs should publish information on those arrangements. I believe that many already make such information available and I am told by my noble friend—without giving any secrets away—that the next-stage review addresses this issue.
We are, I believe, in agreement on the good practice that PCTs should follow in making available this kind of information to patients and clinicians, but we think that it is inappropriate to set such a requirement in primary legislation, particularly as there are already systems in place to ensure that PCTs are accountable to their local population for their commissioning policies. I hope that this will provide enough reassurance for the noble Earl to withdraw his amendment.
My Lords, that was a helpful reply. I am grateful to the Minister for saying that transparency is key in this area. In a way, the amendment relates to our earlier debates on the ability of the CQC to assess how well or badly a PCT is commissioning services or meeting the health needs of an area. It would be helpful if the CQC were to encourage PCTs to maximise transparency on requests of this kind and in their general approach to considering requests for exceptional treatment. It is heartening to hear that this is not a subject that has been lost on the noble Lord, Lord Darzi, in his next-stage review. That leads me to look forward even more to reading the review when it is published. For now, I thank the Minister for her reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
70: After Clause 134, insert the following new Clause—
“GMS contracts: payments
(1) Section 87 of the National Health Service Act 2006 (c. 41) (GMS contracts: payments) is amended as follows.
(2) For subsection (4) substitute—
“(4) Before giving a direction under subsection (1), the Secretary of State—
(a) must consult any body appearing to him to be representative of persons to whose remuneration the direction would relate;(b) must have regard to any advice given to him by the relevant advisory body; and(c) may consult such other persons as he considers appropriate.”(3) After subsection (4) insert—
“(4A) In this section, the relevant advisory body means a body of persons to be called the Quality and Outcomes Framework Review Panel (referred to in this Act as “the Review Panel”) to perform the functions assigned to the Review Panel by or under this Act.
(4B) The Review Panel shall give to the Secretary of State advice on matters relating to directions made under subsection (1).””
The noble Earl said: My Lords, this amendment is about the quality and outcomes framework—QOF—which is a voluntary annual reward and incentive scheme introduced as part of the new GP contract in April 2004. In 2007-08 under the scheme, GPs were awarded 1,000 achievement points for managing common chronic conditions, how well the practice is organised, how patients view the care that they receive and the amount of extra services that are offered. When the new GP contract was introduced, it was agreed that the QOF would be subject to ongoing review and development to ensure that it accurately reflected changing clinical practice and new therapeutic areas. It was agreed that an independent expert group would consider the latest available evidence and make recommendations to the four health departments of the UK and that it would then be up to the negotiating parties to agree any changes to the quality framework.
Since the GP contract came into force, the QOF has been renegotiated twice: once for the 2006-07 contract and once for the 2008-09 contract. Each renegotiation has involved a robust, evidence-based process. For example, in 2006-07, the QOF renegotiation was informed by a review panel comprising the University of Birmingham, the Society for Academic Primary Care and the Royal College of General Practitioners. Following the receipt of 514 submissions, the review panel made recommendations to NHS Employers and the GPC. During the negotiations between the GPC and NHS Employers, the review panel was available to clarify questions of evidence for the negotiating parties.
The 2006-07 renegotiation resulted in a number of small but significant changes; for example, 15 new evidence-based indicators in seven new clinical areas were introduced. This was not in any way a cursory process. The success of those negotiations laid the foundations for the review panel to be placed on a more formal footing. In August 2006, the University of Birmingham was awarded a three-year contract to inform the ongoing review and development of the QOF. A new review panel was constituted, comprising over 40 senior academics who were expert in the field of general practice. The cost to the taxpayer of this three-year contract was nearly £800,000, excluding VAT.
The review panel began its work reviewing the QOF for 2008-09 after receiving 153 completed questionnaires from national societies, patient groups, individuals, pharmaceutical companies, primary care organisations and others. The review panel considered the written questionnaires and then held oral evidence sessions with a number of the groups that had submitted evidence. The QOF negotiations then commenced, informed by the findings of the panel. We know from the BMA that the recommendations submitted by the review panel included two new clinical areas with respect to the management of osteoporosis and peripheral arterial disease, an expansion of the scope of ethnicity monitoring, a new indicator in the area of heart failure and enhancing the points value in the QOF of chronic kidney disease.
What happened? The recommendations of the expert panel, prepared at great trouble and not inconsiderable expense, were effectively overturned. In their place, the GPC was presented with a Hobson’s choice, the effect of which was the hijacking of the QOF by a set of objectives that owed more to the pledges made by the Prime Minister during his campaign for the leadership of the Labour Party than they did to clinical need. The focus was suddenly on supporting improved access to GPs and, in the final agreement, no points at all were allocated to support the areas recommended by the expert panel.
In ignoring the detailed conclusions of the review panel, the Government drew a large amount of criticism from professional and patient groups. Dr Laurence Buckman of the GPC called the Government’s plans,
“incredibly short-sighted and ill thought out. It seems the Government has scant regard for older and chronically ill patients”.
A letter published in the Times on 14 January 2008 and signed by, among others, the British Society for Rheumatology, the Royal College of Nursing, the British Orthopaedic Association, Help the Aged, the British Geriatrics Society, the Royal College of Surgeons and the National Osteoporosis Society, stated that many osteoporotic fractures,
“could he prevented if patients had an early diagnosis and were put on treatment to strengthen their bones. The new measures proposed for the GPs’ contract would have constituted one of the most beneficial and cost-effective reforms in patient care for older people in recent years”.
The letter said:
“It is therefore particularly regrettable that the Government has not accepted proposals in the new GPs’ contract that would have benefited millions of older people at risk of osteoporosis and life-threatening fractures”.
The good will of those organisations and individuals who took time to make submissions to the QOF review has been sorely tested. Without some way of ensuring that evidence-based recommendations made by the expert panel are guaranteed some standing in the QOF review process, it is doubtful whether public and professional involvement in attempting to formulate sensible proposals can be maintained at the level that we have seen.
The rationale for the amendment is therefore to ensure that the recommendations of the review panel cannot simply be ignored. This is not just my own idea. The National Audit Office, in its report of 28 February, NHS Pay Modernisation: New Contracts for General Practice Services in England, said that,
“the Department should develop a long-term strategy to support yearly negotiations on the QOF and develop the QOF based on patient needs and in a transparent way”.
I am aware that the noble Lord, Lord Darzi, is considering the QOF as part of his next-stage review. I very much hope that he will understand what has prompted me to raise these matters and why I believe that they merit the closest attention. I hope that the noble Baroness will be able to indicate in her reply that, if the QOF is to work as originally intended, we simply cannot have a repeat of what happened this year and that safeguards of the kind that I am proposing are in everyone’s interests. I beg to move.
My Lords, Amendment No. 70 would establish a quality and outcomes framework review panel to advise on the payments made as part of the QOF. I note that the amendment, as drafted, would require the Secretary of State to have regard to the advice of this review panel in respect of any directions on payments to be made under a general medical services contract.
The current QOF independent expert panel already has the function of advising the negotiating parties on the evidence base for indicators in the QOF. However, the expert panel has no remit to advise on the level of payment for achieving QOF indicators, payments to GPs in general or the directions that give effect to those payments. As regards the level of payments that GPs receive for the QOF, or any part of the general medical services contract, the Secretary of State is already required, before giving any directions as to payments to be made under such a contract, to consult any body that is representative of the persons to whose remuneration the directions would relate. It is also open to the Secretary of State to consult any other person whom he might think appropriate.
In addition, the doctors’ and dentists’ review body can make recommendations on GP pay when invited by either of the negotiating parties, NHS Employers and the General Practitioners Committee of the British Medical Association. Therefore, we believe that the process has many safeguards in place already and that there is no need to set up a new statutory body to advise on payments to GPs, although I thought that the noble Earl made an eloquent case.
I can inform the House that the primary and community care strategy, which is being developed as part of my noble friend Lord Darzi’s next-stage review, is considering the case for developing a more independent process for setting and reviewing quality indicators in the QOF and giving more flexibility for PCTs to address local needs and priorities. It is not necessary to make any statutory change to introduce a more independent process for setting indicators and this would not concern decisions on the levels of payment made for achieving the indicators. I am aware that I may not have addressed the specific points raised by the noble Earl and I will see whether I can write to him about them, but I ask him to withdraw the amendment.
My Lords, I am grateful to the Minister for her reply and for her offer to write to me. That would be helpful. I am sure that she appreciates that my concern lies almost exclusively with the QOF process and the integrity of that process. There is something very wrong if we have, at great expense and trouble, an expert panel that takes evidence from all over the place and considers it carefully, only to find that its recommendations are almost completely ignored, so that the QOF that emerges takes no account of the clinical recommendations. We need a more robust mechanism if the system is to work as originally intended. However, I take heart from the fact that the noble Lord, Lord Darzi, is looking at this whole area in the next-stage review, as with the previous amendment. Once again, I look forward to what he has to say. If the noble Baroness is able to give me any words of comfort in the mean time when she writes to me, I shall be extremely grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 12 [Funding of expenditure in connection with provision of pharmaceutical services]:
71: Schedule 12, page 187, line 11, at end insert—
“( ) In section 164(5) of the NHS Act (remuneration for persons providing pharmaceutical services), at the end of paragraph (5) insert “and shall be contained in regulations in respect of remuneration which relates to all persons who provide pharmaceutical services.””
The noble Earl said: My Lords, this amendment concerns arrangements for the NHS remuneration of community pharmacy contractors. As a member of the All-Party Parliamentary Group on Pharmacy, I very much believe in the importance and value of pharmacy services in local communities and I am encouraged by the Government’s recent White Paper, Pharmacy in England: Building on Strengths—Delivering the Future, which sets out a range of new services that patients and the wider public will be able to access from community pharmacies. The White Paper is based on a report published by the all-party group last year and reflects many of our recommendations.
The House may not be aware that, on average, community pharmacies derive around 90 per cent of their income from the NHS services that they provide. This means that arrangements for remuneration by the NHS are crucial. Community pharmacists need certainty and stability in those arrangements. That stability enables them to plan and invest with confidence. As it stands, the Bill unnecessarily—and perhaps unintentionally—casts doubt over the nationally agreed arrangements for community pharmacy remuneration and therefore jeopardises plans for investment in existing and new pharmacy services.
Amendment No. 71 would address that by inserting what I hope the Minister will see as a modest new provision in Section 164 of the National Health Service Act 2006. That Act sets out the arrangements for remunerating community pharmacy contractors. Remuneration is determined by so-called “determining authorities”—either the Secretary of State, primary care trusts or other persons appointed by the Secretary of State. Pharmacy owners need to know the remuneration that they will receive for those substantive parts of the contractual framework so that they will have the confidence to continue to invest in their businesses.
In Grand Committee, the noble Baroness, Lady Thornton, confirmed that,
“the Government remain fully committed to the view that fees and allowances for essential services and advanced services should continue to be determined nationally in negotiation with the Pharmaceutical Services Negotiating Committee and in discussion with the NHS. It is not sensible for pharmacy contractors or PCTs to negotiate such payments on an individual basis”.—[Official Report, 22/5/08; col. GC 629.]
However, she did not accept the amendment tabled by the noble Baroness, Lady Barker.
Section 164(3) of the NHS Act 2006 allows the Secretary of State to authorise a PCT to exercise the functions of a determining authority by issuing an instrument of appointment. Section 164(5) allows him to set out in that instrument of appointment the requirements with which a determining authority must comply in making determinations. However, although Section 164(5)(b) allows an instrument of appointment to be contained in regulations, there is no statutory requirement for any particular instrument of appointment to be contained in regulations.
The Government, I know, recognise the importance to pharmacies and to PCTs of setting some fees and allowances nationally and have given assurances of their intention to continue to do so. However, this is of such importance that any instrument of appointment that seeks to delegate to PCTs the determination of fees and allowances for the national elements of the pharmacy service should be contained in regulations. Section 164(5)(b) already provides that some instruments of appointment “may” be contained in regulations. Amendment No. 71 seeks only that, in relation to these important nationally specified pharmaceutical services, the instrument of appointment must be contained in regulations.
This is of great importance to community pharmacists and to the public who rely on pharmacy services. The amendment would simply put in the Bill the intentions expressed by the noble Baroness, Lady Thornton, in Grand Committee. I therefore hope that it will prove acceptable to her today or at least that she will undertake to consider the matter before Third Reading. I beg to move.
My Lords, I support the noble Earl in his attempts to join our ongoing campaign to secure the future of community pharmacists. He is right that community pharmacists rely on the NHS element of what they do for the bulk of their business. That is what makes their businesses viable. It is also true to say that community pharmacies deliver to the NHS a level of service that is way above what they are contracted to do.
Those of us with friends who are pharmacists know, having discussed these matters with them, that lots of studies show that, to be viable, a parade of shops must have a shop to buy newspapers, somewhere to buy food and a pharmacy. Community pharmacies provide a huge amount of preventive healthcare information, but they are struggling. The amendment, which the Government could easily accept, would guarantee pharmacists some stability with which to underpin their businesses. If the Government were to do so, that investment would pay for itself in the additional services that community pharmacies would offer in areas with the greatest health poverty. I strongly support the amendment.
My Lords, I support the amendment and the principles behind it. As well as providing important frontline healthcare information, community pharmacists know an enormous amount about the community they serve. They know when someone has been chronically ill. They have got to know the relative or the friend who has come in to collect medication time and time again. Quite often, if you go into a community pharmacy, you find that the community pharmacist is providing bereavement support after that person has died. They are also a source of advice about what to do with medication, equipment and other things that are left in the house that cause a great deal of distress. They are also able to identify youngsters who are at risk, for example, of unplanned pregnancy, and are able to have a quiet word with them in a non-threatening environment that is not associated with making an appointment to see the GP. Young girls go into the local chemist to get their tampons and sanitary towels, so they are used to going in and out, and under that aspect health promotion advice can be provided. We would lose community pharmacy services at our peril. It would not be until they had gone that we would find the negative health impact, particularly on the older population, those with disabilities and those who are lonely and isolated for whatever reason and of whatever age. That health impact would be devastating, and if we costed it, there would be an enormous cost to the country.
My Lords, Section 164 of the National Health Service Act 2006 allows the Secretary of State to authorise any primary care trust or other person to exercise the functions of determining authorities in relation to making or varying the remuneration for those providing NHS pharmaceutical services. Section 164(5)(b) sets out that the instrument of appointment may be contained in regulations, but there is no requirement to do so.
This amendment removes the current discretion in Section 164. It provides that the instrument of appointment must be set out in regulations when the Secretary of State appoints a determining authority for the remuneration of those services. The Government have already given a number of commitments on the record during the passage of this Bill that the Secretary of State will continue to set the fees and allowances for the national elements of the community pharmacy contractual framework in line with provisions in Section 164(3)(a) of the National Health Service Act 2006. They are in complete agreement with the value that all noble Lords put on community pharmacists.
However, it seems that in tabling this amendment, noble Lords continue to express concerns. Once again, I want to assure the noble Earl, Lord Howe, and the noble Baronesses, Lady Barker and Lady Finlay, that the Government remain fully committed to maintaining the current position; that is, that the fees and allowances for essential services and advanced services should continue to be determined nationally in negotiation with the Pharmaceutical Services Negotiating Committee and in discussion with the NHS.
However, having listened carefully to the arguments made, I am persuaded that there should be further consideration of the need for an amendment to place the requirement on the Secretary of State. I accept that this is a matter of continuing concern, and it is justifiable for that reassurance to be given. We have made the commitment today and previously, but things change, and I am prepared to consider further that this should be underpinned by a statutory requirement, and to bring it back at Third Reading.
My Lords, I could not have asked for a more welcome reply from the Minister. I thank her for listening so carefully to the concerns that have been expressed around the Chamber. I thank the noble Baronesses, Lady Barker and Lady Finlay, for their contributions. I look forward to hearing from the Minister what proposals she is prepared to bring forward. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 136 [Consultation in relation to commencement]:
72: Clause 136, page 90, line 12, leave out subsection (6) and insert—
“(6) Omit subsection (5).”
The noble Earl said: My Lords, Clause 136 makes it possible for private health providers who are contracted by the NHS to treat NHS patients to join the Clinical Negligence Scheme for Trusts. As noble Lords will be aware, this scheme is administered by the NHS Litigation Authority. The question raised by Amendment No. 72 is whether it is appropriate and right for this arrangement to be voluntary. As the Bill stands, it means that an NHS patient who suffers negligent harm from a private provider may not have access to the same system for redress as an NHS patient harmed in an NHS trust. There is a fundamental issue of principle here, which is that all NHS patients, no matter where they are treated, should be guaranteed the same rights and the same system for obtaining redress. The amendment makes it possible for the Secretary of State to direct that any body which is eligible to join an indemnity scheme by virtue of providing NHS services must join that scheme.
In tabling this amendment, I have been advised by Action against Medical Accidents, which has already seen examples of confusion over who is liable for negligent treatment when NHS patients have been harmed by private providers, such as independent-sector treatment centres. This sort of situation quite literally adds insult to injury. If an NHS patient is injured by an NHS trust, his claim is overseen by the NHS Litigation Authority. The NHSLA has a reputation for dealing with claims more expeditiously and, I know AvMA would say, more fairly than private insurers or medical defence organisations. I hasten to say that I am not casting aspersions on my friends in that sector who do a very conscientious job. I am not in a position to agree or disagree with AvMA’s assessment, but the central point of principle remains valid. It would be unfair for an NHS patient who happens to have had his treatment commissioned from a private provider not to be dealt with in the same way as someone who has been treated in an NHS hospital. If the treatment is NHS treatment, liability should reside with the NHS. AvMA tells me that in its experience patients who have to sue private organisations or individual doctors find the process even more stressful than making a claim with the NHSLA.
Of course, we always need to think carefully before building into statute any provision that interferes with contractual freedoms. However, which is more important: allowing a private provider to arrange its own indemnity cover and thereby creating unfairness and confusion for NHS patients; or predetermining this aspect of private-provider contracts and by doing so making sure that no NHS patient is disadvantaged or treated differently from any other patient should his treatment happen to go wrong? It is surely not satisfactory to contemplate a situation in which, after negligent treatment by a private provider, an NHS patient is effectively disowned by the NHS and left to seek redress from a large commercial organisation or its insurers.
I should add that the amendment would also theoretically make it possible for the Secretary of State to consider extending NHS indemnity to cover GPs, dentists and other primary care practitioners providing NHS treatment. I should make it clear that I am not advocating that idea. It is not the point of the amendment. My concern relates to independent providers of NHS secondary and tertiary care. I should be glad if the Minister could tell us whether she would be willing to look at this issue again. I beg to move.
My Lords, I hope that when the Minister replies he also comments on episodes of care and where they begin and end. A situation can arise in which a patient is treated in the private sector, something goes wrong, they land in A&E and something else goes wrong. It is difficult to know whether the NHS or the original private sector provider is culpable. At the moment, the NHS is picking up and sorting out problems that have arisen when people have gone into the private sector for whatever reason.
It would be helpful for the Minister to clarify this, because the NHS seems to be carrying an unfair burden of responsibility, partly because it deals reasonably and rapidly and recognises the distress that patients are in when they try to take action, and partly because it is so difficult to take action against a private sector provider, particularly as they may be disparate and there are multiple contractual layers to the problem. I will not detain the House with numerous examples, but after the debate I would be happy to discuss with the Minister some that have come to mind. This problem is of real concern and involves the interface between episodes of care and how those are clearly defined.
My Lords, I do not wish to prolong the debate any further, but a clear statement from the Minister is important for the following reason. When care services are being put out to tender, it is common practice for those who are invited to tender to have to take out insurance cover. This is usually very large and very expensive. I would not want a number of independent providers to be priced out of, or to struggle to meet, tender specifications because of potentially very large insurance claims, only for this to result in a situation where, if there were an episode, it was deemed that the NHS was responsible for the claim all along. This has even more layers to it than one might have anticipated at the beginning. Therefore it would be extraordinarily helpful to have a clear statement on it.
My Lords, Clause 136 widens the entry eligibility of indemnity schemes created under Section 71 of the National Health Service Act 2006. We intend to open up for trusts a specific scheme, the clinical negligence scheme, that covers healthcare providers for clinical negligence liabilities arising from the provision of NHS care. The clause will extend the potential scope of this scheme so that we can allow non-NHS providers to obtain this cover when delivering NHS care. That is quite clear in the Act. The current legislation allows the Secretary of State to require prescribed NHS bodies to become members of this scheme, because it is right that bodies whose finances are under the control of the Secretary of State for Health may be directed to make such an arrangement.
However, Amendment No. 72 would extend this power of direction so that the Secretary of State could also require NHS foundation trusts, let alone independent sector providers of NHS care, to become members of such schemes. If the intention of the amendment is to ensure that all providers delivering NHS care have adequate indemnity cover, I could not agree more with the noble Earl, Lord Howe. However, the amendment is not the right way to achieve this. I am sure noble Lords will agree that the Government should not be able to direct or to seek to manage the day-to-day running of organisations that have greater freedom from government to control their own budgets. Specifying the indemnity scheme that they must join would be micromanaging foundation trusts—a debate that we have had throughout the passage of the Bill—and independent providers to an unacceptable level.
Instead, the Government have a responsibility to ensure that every provider delivering NHS care has appropriate arrangements in place to protect patients. I am happy to confirm that, as part of the national NHS contracts, this will be the case. In other words, every contract with an independent provider will set out very clear arrangements for that provider for the indemnity schemes that we may wish to see from them. We will require all of them to have indemnity cover as part of their NHS contract where such risks are present. This means that these providers can choose the type of indemnity cover that best meets their needs, and that patients can be assured that appropriate indemnity arrangements will always be in place.
The noble Baroness, Lady Finlay, asked about the definition of episodes of care. I am more than happy to put that in writing, but she touched on something that is also close to my heart. If a patient comes into a hospital and is ill, it is our duty to look after them, irrespective of whether their treatment was private or under the NHS. I therefore do not see that as an issue. I regularly come across issues such as that, and I think that it is most unprofessional to say, “Actually, you have received this treatment elsewhere”. I will try to address that issue later.
The Government are fully committed to protecting the interests of patients harmed by their NHS care. We will not direct financially freestanding organisations such as foundation trusts and others. We believe that, within the context of a contractual obligation, having appropriate indemnity arrangements in place protects patients. I hope that I have explained the position as much as possible, and I very much hope that the noble Earl, Lord Howe, will feel able to withdraw the amendment. If he does not, we can have further discussions before Third Reading.
My Lords, I rather suspected that that would be the Minister’s reply. I do of course thank him for what he has said. I also thank the noble Baronesses, Lady Barker, Lady Masham and Lady Finlay, for their support. It is reassuring to hear that the contract with private providers will require adequate indemnity cover to be in place. I had assumed that that would be so, but the issue runs broader than that, as the noble Baroness, Lady Barker, said.
If the Minister does not feel that any amendment to the Bill is appropriate, it would be helpful to have some assurance from him that commissioners of NHS services from private providers would in the normal course of things aim to make it a condition of their contract with the provider that they join the clinical negligence scheme for trusts to cover their NHS patients. We cannot insist that they take out cover of a particular kind to cover their private patients, as that has nothing to do with the NHS. In the case of NHS patients, however, it has everything to do with the commissioner. Such an assurance would go a long way and does not seem that outlandish a thing to ask for, given that a number of other conditions to private-provider contracts will be mandatory, not least adherence to the NHS complaints procedure in respect of NHS patients. If the Minister feels able to look at this again, I am sure that that will be welcomed in many quarters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 73 and 74 not moved.]
Clause 156 [Orders and regulations: Parliamentary control]:
75: Clause 156, page 105, line 45, after “(3)” insert “or (4)”
76: Clause 156, page 106, line 24, at end insert—
“(4) The Privy Council may not, under section 104 (rules of Office of the Health Professions Adjudicator), make a statutory instrument approving rules of the Office of the Health Professions Adjudicator that contain (whether alone or with other provision) provision for pilot schemes made by virtue of section 95(4) (legally qualified chairs) unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
On Question, amendments agreed to.
Clause 164 [Commencement]:
77: Clause 164, page 109, line 21, at end insert—
“(1A) Subsection (1)(b) does not apply to section 106 or Schedule 8 (extension of powers under s. 60 of Health Act 1999).”
On Question, amendment agreed to.
[Amendments Nos. 78 and 79 not moved.]