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]:

moved Amendment No. 30:

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]:

moved Amendment No. 32:

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 apologise.

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”—

or—

“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, too, would welcome clarity from the noble Lord, Lord Warner, and the Minister that “commissioning” is intended to include assessment not just of the needs of people deemed eligible for a service but of all social care needs.

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.]

moved Amendment No. 34:

moved Amendment No. 35:

moved Amendments Nos. 36 and 37:

moved Amendment No. 38:

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.]

moved Amendment No. 40:

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.]:

moved Amendments Nos. 41 and 42:

moved Amendment No. 43:

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.

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, I agree; it is a relevant point. I am sure that one day this information will be publicly available for anyone to analyse. On that note, I ask the noble Earl to withdraw the amendment.

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.

moved Amendment No. 44:

moved Amendments Nos. 45 and 46:

moved Amendment No. 47:

moved Amendment No. 48:

moved Amendment No. 49:

moved Amendments Nos. 50 to 52:

moved Amendment No. 54:

moved Amendment No. 54A:

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, could the Clerk clarify the rules at Report stage? It is my belief and understanding that you can speak only once on Report. You can speak again, but to a different amendment.

My Lords, the noble Baroness was speaking to her amendment, not moving it. The rules state that you can speak only once on Report unless you choose to intervene.

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]:

moved Amendment No. 55:

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]:

moved Amendment No. 56A:

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.

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.]

moved Amendment No. 56C:

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, too, support my noble friend. As a dentist who has retired and does perhaps two or three hours’ work a month, I still pay the full registration fee. For this reason, I support the noble efforts of my noble friend to make this change.

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]:

moved Amendment No. 57:

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.

moved Amendment No. 58:

moved Amendment No. 59:

My Lords, I feel I need to say no more than how grateful I am to the Minister for having taken these concerns away and responded in such an excellent way. I warmly welcome these amendments and believe that they improve the Bill materially.

My Lords, I do not want to detain the House but simply reiterate the thanks expressed. The Minister has gone an extremely long way and allayed many of the fears among the healthcare professionals. I wholeheartedly commend the amendments.

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]:

moved Amendment No. 60:

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.

moved Amendment No. 61:

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 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.]

moved Amendment No. 62:

moved, as an amendment to Amendment No. 62, Amendment No. 62A:

moved Amendments Nos. 63 to 68:

moved Amendment No. 68A:

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]:

moved Amendment No. 69:

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.

moved Amendment No. 70:

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]:

moved Amendment No. 71:

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]:

moved Amendment No. 72:

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, I support the amendment. Complaints procedures can be very complicated. A lot of distress is involved, and the amendment would make the procedure much easier and much more straightforward for patients.

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.

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]:

moved Amendments Nos. 75 to 76:

moved Amendment No. 77: