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Care Quality Commission (Reviews and Performance Assessments) Regulations 2014

Volume 756: debated on Monday 27 October 2014

Motion to Regret

Moved by

That this House regrets that the Care Quality Commission (Reviews and Performance Assessments) Regulations 2014 include no provision for the regular assessment of performance by clinical commissioning groups and local authorities in the commissioning of health and social care and of the NHS Commissioning Board in relation to specialty commissioning (SI 2014/1788).

My Lords, the statutory instrument that we are debating tonight arises from an amendment that the Government sought parliamentary approval for during the passage of the Care Bill in 2013 and 2014. That amendment related to the scope of periodic performance assessments to be undertaken by the CQC and the method by which such reviews are to be devised and will allow an aggregate performance rating to summarise and compare the performance of organisations or the services provided. It is for the CQC to devise such quality standards and methodology in consultation with the Secretary of State and those key stakeholders that the CQC considers appropriate. The scope of those performance assessments is set out in these regulations, which by virtue of Regulation 1 will come into force on 1 October this year. That means that the CQC will be under a duty to undertake performance ratings of those registered service providers and regulated activities that such providers carry out, as prescribed by Regulation 2 and the schedule to these regulations.

I remain somewhat sceptical of the ability of the CQC to place such huge organisations as hospitals in one of only four categories. The Explanatory Note to the SI refers to work commissioned by the Secretary of State on the use of aggregate ratings of providers. This is not the first attempt at performance ratings, but the fascinating piece of work produced by the Nuffield Trust and commissioned by the department has a number of warnings on this. The trust says in its report:

“A rating by itself is unlikely to be useful in spotting lapses in the quality of care”,

particularly for services which “complex providers like hospitals” give.

“It is here that the analogy with Ofsted’s ratings of schools breaks down. Hospitals are large, with many departments and different activities, seeing large numbers of different people every day, carrying out complex activities, many 24/7, and in which people are sick and can die. Put another way, the risks managed by hospitals vastly outweigh those managed in schools. For social care providers the risks may be lower, but many are still dealing with frail, ill and otherwise vulnerable individuals”.

Its conclusion is that,

“unless there is a ‘health warning’ on a rating to clarify to the public what it can and cannot say about the quality of care, there is an inevitable risk that the rating (and the rating organisation) will be discredited, as lapses occur in providers scored as ‘good’ or ‘excellent’”.

It says that it will be just a matter of time. In summary the Nuffield Trust concluded that,

“the overall approach to ratings should allow complex organisations to be assessed at different levels and to promote service-specific ratings where possible, particularly in the case of hospitals”.

I would be grateful if the noble Earl could comment on this, particularly on how he considers the rating outcomes of individual providers are to be communicated to the public in an understandable way that none the less pays due regard to the complexity of the ratings so well described by the Nuffield Trust.

My real objective in bringing these regulations before your Lordships’ House is not so much what is in the statutory instrument as what is not. I go back to our debates during the passages of both the Care Bill and the Health and Social Care Bill in 2012. The noble Earl will know that I have expressed considerable concerns about the fact that the way in which clinical commissioning groups and local authorities commission services is no longer to be subject to regular review, audit and, indeed, rating by the CQC. During the passage of the Care Bill only a few months ago we discussed concerns about the quality of local authority commissioning of care services in the context of the scandal of 15-minute visits and zero-hours contracts. We argued then that the CQC should undertake regular inspections of local authority commissioning performance.

I suggest that the same goes for clinical commissioning groups in the National Health Service. When we debate NHS issues the noble Earl frequently—indeed, consistently —refers to the importance of commissioning. Whenever he is pressed on problems or gaps in services he has put his trust in more effective commissioning. However, it is very difficult to see how the performance of commissioners is properly assessed and held to account in the current structure. The noble Earl has previously argued that we should rely on such things as CCG outcome indicators, backed up by scrutiny from local Healthwatch. I think that that is a pretty weak response. So far there is scant evidence to show that this is effective. I am sure we would acknowledge that often when things go wrong in a health system it is a failure of the system—of course of the providers giving the services, but also of commissioners and, indeed, local authorities. Let us take the four-hour A&E target, which is proving to be a major challenge up and down the country. There will of course be issues in the organisation of the hospital itself, but there will also be issues around the organisation of primary care, the way in which services are commissioned and the ability of local authorities to ensure that there are specific and sufficient facilities in the community for when patients are discharged from hospital.

It is a matter of regret that the CQC, as the primary regulator on quality and standards, is no longer concerned on a regular basis with the performance of local authorities as commissioners, and with clinical commissioning groups. It is true that the CQC has the power to conduct special reviews where concerns have been raised about a particular commissioner. I do not know whether that has happened yet—maybe the noble Earl will be able to tell me—but it seems to me that that is not anywhere near sufficient.

I also want to discuss the position of NHS England. The noble Earl will know that, although the original changes brought about by Mr Lansley were designed to hand over nearly all the commissioning budget to clinical commissioning groups, a rather substantial amount of money was ultimately retained by NHS England for commissioning of specialist services. It would be fair to say that NHS England’s performance on that has given cause for concern. The noble Earl will be aware that the budget for specialist commissioning is hundreds of millions of pounds overspent. In essence, we had an out-of-control budget and the board of NHS England seemingly unaware of what was going on. If an NHS provider had performed so lamentably its board would have been sacked, and rightfully so. I ask the noble Earl how the board of NHS England has been held to account for its lamentable performance relating to specialist commissioning. Have sanctions been applied? At the very least, should the CQC not assess NHS England’s commissioning performance?

In our previous debate on NHS England, the noble Earl informed us:

“NHS England has its own governance processes in place, including the development of the direct commissioning assurance framework to demonstrate that it meets the standards required. As this is developed further, elements will be introduced to bring external scrutiny to its board and function”.

He also said:

“Ultimately, NHS England is held to account by the Department of Health for its commissioning activity against its delivery of the priorities set in the mandate”.—[Official Report, 21/10/13; col. 813.]

I am sure the noble Earl thought that they were comforting words, but how on earth does this apply to the debacle over specialised commissioning? To my knowledge, that has still not been properly resolved.

I am not convinced that the Government have the right approach to commissioning. If commissioning in the health service and in local government is as important as the Government say it is, surely it is in the public interest that the CQC should take a much stronger role in checking and rating the performance of commissioners, and indeed of health and care system performance generally. I hope that this leads to a good debate. I beg to move.

My Lords, I support in principle the wording of the business that we are dealing with, particularly the emphasis on regular assessment of other than the provider trusts. I share with the House and the Minister why I now feel that that is even more important. I declare an interest as chairman of Milton Keynes Hospital NHS Foundation Trust. Just last week, we were inspected by the CQC. Obviously, we do not yet know the outcome of that. The CQC was with us for four days and there were 40-odd people there.

As the noble Earl is aware, I have been very supportive of the CQC and share his aspirations for it. To be honest, our inspection was extremely thorough. We have to wait with bated breath for the outcome, but the enthusiasm, what was described as the buzz around the hospital and the way that people felt strongly about the services that they were giving made a huge difference to the whole thing. I am only three months into that trust, but this was not about preparing for the CQC; it was about the culture of the organisation and wanting to improve. I hope that the CQC comes back with recognition of that, whatever the outcome might be.

The inspection was carried out under the new way of doing things, which I think is great. There were many more people across all the spectrums of our services, at a professional and clinical level. That was superb. The reporting back every night was very good and helpful to the chairman and chief executive. All that felt good and thorough, which is what it is all about. I agree with my noble friend’s view about extending that for the very reason that he just gave. The importance of that inspection to the outcome for our patients was absolutely paramount, regardless of what the outcome might be in terms of the grading or level of assessment we might be given. But without that thoroughness and rigour, particularly with the CCGs, who are the ones making decisions about our services, with the GPs who run them—unless there is a deep dive, as we would call it, into any other part of the health service—the gaps that are still a worry for us may remain.

In particular, my noble friend Lord Hunt said that there was an issue around local authorities. All trusts are struggling terribly with A&E. There are many reasons for that, as my noble friend has said. But one of the big reasons is the lack of rigour in social care and local authorities’ commitment to or understanding of the role that they play. From the experience that we have had over the past week, I believe that this is not a threat to people: it is empowering for them to have the CQC in there, ensuring that the rigour that they are supposed to apply to their work is there and that the role they play in patients’ experience really makes a difference. I urge the noble Earl to consider this opportunity yet again. We made a decision in the Care Act, which I think even more now is really a mistake from which we need to move on. I do not share the cynicism of my noble friend, but I share the concern about whether the CQC can embrace all that.

The investigation into my trust was supported, as I understand it, by far more clinicians than ever before and far more people had a much greater knowledge of the health service. If the CQC can continue to develop in that way, I believe it is in its interest—and, more importantly, in our patients’ interests—that those commissioning groups go wider and deeper into other than the provider trusts.

My Lords, I spent a happy weekend making a start on the 500 pages of regulations that have been issued under the Care Act. What can I tell noble Lords? I am living for pleasure alone. I regard this Motion as the first of many to come our way.

I thank the noble Lord, Lord Hunt, for the opportunity to go back to some of the discussions that we had during the passage of the Bill, particularly on commissioning. We had long debates about commissioning and the extent to which it did or did not impact on services. We also talked at considerable length about the differences between the commissioning of healthcare in the NHS and commissioning in social care. In these regulations, we are beginning to see some attempt to have proportionate and slightly different attitudes towards commissioning in both those settings. I would like to see us taking a more proportionate look at commissioning across the board. To a certain extent, these are the first of the regulations that begin to do that.

We also had extensive discussion about whether performance ratings should be specific to particular services within hospitals or whether they should go across the piece. My recollection, informed quite often by people with valuable experience such as the noble Baroness, Lady Wall, was that there would be a lot of data generated in hospitals, particularly clinical governance data, which would be there to inform one’s opinion about a particular service in a hospital. However, what would have been missed, and what was missed so spectacularly in Mid-Staffordshire, was the across-the-board bad management practices throughout a hospital that undermined patient care. That was why we ultimately took the decisions that we did about the nature of performance review.

I want to pick up two particular issues that are brought to the fore by these regulations. I notice that prison healthcare has been exempted. I understand that there is a sense in which the NHS or the CQC would be able to look at the performance of only a part of prison healthcare. But prison healthcare is, in terms of mental health, addiction services and so forth, becoming much more important. There is a much clearer focus on the amount of ill health that people have within the criminal justice system. I want to be sure that we are not enabling those prison health services to escape proper scrutiny.

My final question to the noble Earl is more fundamental. We had extensive debates during the passage of the Care Bill about the right of entry for those people who are involved in carrying out performance reviews and the extent to which the people responsible for them should be able to go into any service to assure themselves that those services are safe and the people within them are not being abused. I do not see anything in these regulations that gives comfort to those of us who believe we took the wrong decision during the passage of the Bill and that, as a consequence of our failure, there may well be people in health and social care settings who are being abused at worst or ill treated at best.

I thank the noble Baroness for giving way. In response to her comments on nurses and hospitals, she is absolutely right. I emphasised the clinical stuff. However, the CQC interviewed everyone on our board: the non-executive directors, me—as chairman—for an hour and a half, and all our executive directors. It interviewed not just the clinical staff but the whole of the trust to make sure that we all understood what we were doing in the job we are employed to do.

I thank the noble Baroness for that. I trust that if the CQC was doing its job, it would really go to the seat of power in a hospital and interview the porters.

My Lords, this has been a useful debate. Although the Motion to Regret moved by the noble Lord, Lord Hunt, relates to regulations which, as he said, cover a certain area of the CQC’s activities, I note his broader questions and will come to those.

These regulations set out which health and adult social care providers will be rated following inspection by the Care Quality Commission. They came into force at the beginning of this month. However, it is clear that the noble Lord’s main concern is not so much about the regulations, although he did query aspects of them and I will address those in a second. I think—or, at least, I hope—that there is a good deal of agreement between us about the way in which the CQC now approaches its task of assessing service providers. The noble Lord’s concern lies largely around the accountability arrangements for commissioning. I will begin by setting out the purpose of the regulations and summarise the considerable progress that the CQC has made in inspecting and rating service providers.

Noble Lords will recall that the Care Act put in place a new system of reviews and performance assessments of providers to be developed by the CQC. The regulations referred to in the Motion specify which providers will be rated by it. They cover NHS hospital trusts and foundation trusts, general practices, independent hospitals and providers of adult social care. The CQC has set out its approach to inspection and ratings in a series of handbooks for each regulated sector. Each service is judged against a number of key questions: is it safe; is it caring; is it effective; is it responsive; and is it well-led? The CQC produces a rating against each of these areas at both location and provider level.

This new system is providing information about the quality of care that goes beyond mere compliance with minimum standards. This information is of value to patients and service users, to commissioners and, of course, to the providers themselves. The noble Lord, Lord Hunt, referred to the comments of the Nuffield Trust around hospital ratings and questioned how such ratings could be communicated to the public in an understandable way. We have committed the CQC to publishing clear, authoritative ratings of providers. Not only are these ratings broken down into the five key questions about services that I have just referred to, but the CQC has also published, where it has been possible, ratings of specific hospital services. The CQC is under an obligation to consult on the development of its ratings methodology. It has done so, and will continue to do so as its methodology grows more sophisticated over time. I completely take the point that ratings must be robust and stand up to scrutiny, but the CQC’s view is that it is more than possible to construct indicators that are genuinely representative of an organisation’s performance.

The CQC has made rapid progress on developing and implementing the ratings system. It has already published more than 130 ratings of NHS providers, and has recently published the first ratings of adult social care providers. Over the next few years, it will inspect and rate every provider that is covered by the regulations. Noble Lords will recall the debate we had last year on whether the CQC should also carry out routine inspections of commissioners. The CQC’s primary purpose is to regulate service providers and the Care Act clarified this by removing its power to carry out periodic reviews of commissioners of both health and adult social care.

Some providers argued that the system we were putting in place left them solely accountable for failings in care that could have some of their roots in commissioning decisions. I listened carefully to the comments of the noble Baroness, Lady Wall, and the noble Lord, Lord Hunt. I accept that there is a link between commissioning and quality of care and that, in some instances, it would be appropriate for the CQC to review commissioners. We have therefore maintained a power for the CQC to carry out special reviews of commissioners under Section 48 of the Health and Social Care Act 2008. However, this will be used only where there is clear evidence that failings in commissioning are leading to poor care for patients and service users and it is subject to the approval of the relevant Secretary of State. Let me be clear: where it is justified by the circumstances, the CQC will be able to inspect commissioning.

Although the CQC is not routinely reviewing commissioning, there are other arrangements for the oversight of commissioners. The noble Lord, Lord Hunt, asked me whether any special inspections of commissioners had happened yet. The answer to that is no in relation to local authorities’ commissioning of adult social care, but the CQC is undertaking a special review of children’s safeguarding in Doncaster. I understand that this review will look at both the provision of services and their commissioning by the local NHS. The review is due to be published in the coming months.

For adult social care, the Care Act puts in place clear duties on local authorities to have regard to the importance of ensuring the sustainability of the market as a whole in order to meet the care needs of local people. Last week, my department published statutory guidance for local authorities as part of a package of secondary legislation which implements the Care Act. This includes a chapter on commissioning and market shaping. Furthermore, the Local Government Association and the Association of Directors of Adult Social Services will shortly publish a set of new standards for commissioning services that has been produced with stakeholders. These standards will provide clarity on what good quality commissioning looks like. They will build on best practice and encourage councils to conduct more thorough self-audit and peer review in order to move towards excellence, covering, for example, commissioning for outcomes, integrated commissioning and workforce issues.

Where local authorities struggle to meet these commissioning standards, they are able to seek support through a system of sector-led improvement. Where a need has been identified, a variety of improvement support can be offered. This may include advice and visits from peers in high performing local authorities; mentoring and leadership training for councillors and officers; and bespoke support from national experts. This approach has been developed in partnership with local government partners in order to improve local authorities’ performance and capabilities. It supports local authorities to take responsibility for their own performance and drive improvement, developing a system of performance management by councils for councils. Sector-led improvement is based on the principles that councils are primarily accountable to their local communities; they are responsible for their own performance and improvement; and they have a collective responsibility for the performance of the sector as a whole.

Turning to commissioning of NHS services, NHS England is responsible for the performance management of clinical commissioning groups and has a statutory duty to carry out an annual performance assessment of each CCG. NHS England must be assured that commissioners are acting efficiently and effectively on behalf of local patients. Using the principles set out in the CCG assurance framework, NHS England supports and challenges CCGs to meet the needs of their local population. The assurance process is informed by robust and diverse sources of evidence, including the CCG outcomes indicator set and a detailed delivery dashboard.

Where concerns are identified, improvement actions are agreed. NHS England has broad powers to ensure that these improvements are made, whether this is through the provision of support and advice or by taking action when a CCG is at significant risk of failure. Examples of the support that can be made available are advice and expertise, facilitating peer review and partnership with other CCGs, or the brokering of conversations between CCG and providers by the area team.

The CCG assurance process has so far worked well. NHS England’s year-end CCG assurance assessment for the year 2013-14 showed that 210 out of 211 CCGs were assured, with 132 receiving some support to improve in particular domains of the assurance framework. An NHS England-commissioned survey of stakeholders, including local health and well-being boards, Healthwatch and patient groups, found that 68% had confidence in CCGs to commission high quality services.

The approach taken in this first year rightly focused on developing the capacity and capability of CCGs, as relatively young organisations, building on the domains which were the foundation of CCG authorisation. This focus on developing the organisational health of CCGs has meant that, as of July 2014, only 13 CCGs still have conditions or directions remaining in relation to their authorisation, compared with 153 CCGs initially authorised with conditions. In one case, a CCG was not assured and NHS England has put legal directions in place to improve its performance. As intervention is the element of the assurance framework which most affects CCG autonomy, careful consideration is, of course, required before NHS England will take this course of action.

Assurance ratings are based on the area team’s assessment of the level of the CCG’s insight of the identified issues and its willingness to take the necessary steps to improve. In cases where serious concerns arise, NHS England has shown that it will take necessary and appropriate intervention action. These legal interventions can take many forms, such as directing the CCG how to perform a certain function or asking another CCG to perform that function. They may even require the removal or replacement of the accountable officer or dissolution of a group.

Noble Lords may have seen recent reports of how NHS England is considering developing the CCG assurance framework to emphasise CCG achievement as well as capability. The detail of the assurance framework is, of course, a matter for NHS England but I am sure that noble Lords will be encouraged that NHS England is reflecting on how the assurance system can be improved. Ultimately, the Secretary of State is accountable to Parliament for the performance of the health system and will hold NHS England to account for how it has fulfilled its responsibilities, including how it has ensured that the health services which both it and CCGs commission are high quality and deliver value for money.

The noble Lord, Lord Hunt, asked about how NHS England is held to account by the department. The Secretary of State has formal accountability meetings with the chair and chief executive of NHS England every two months, which are structured around the mandate objectives and NHS England statutory duties. These are also attended by other NHS England board members, Ministers, the senior departmental sponsor and the Permanent Secretary. These meetings focus on strategic issues and any issues of delivery. Actions for NHS England are agreed in the meetings, recorded in the minutes and followed up in subsequent Secretary of State meetings. This process feeds into an annual assessment of NHS England by the Secretary of State. It is a legal requirement that this is laid before Parliament in response to NHS England’s annual report and covers NHS England’s performance in respect of mandate objectives and fulfilment of its statutory duties.

Meanwhile, NHS England is holding itself to account internally for its commissioning responsibilities. Just as there is a CCG assurance framework, a reciprocal direct commissioning assurance framework has been produced to demonstrate that NHS England is also exposing itself to similar scrutiny of its own commissioning responsibilities. NHS England has made a commitment to CCGs and wider stakeholders that it will apply the same level of scrutiny to its own direct commissioning responsibilities as it does to CCG commissioning. The assurance framework is used to identify concerns where the direct commissioning functions of area teams are particularly challenged. In these circumstances, the issues will be escalated through the line management arrangements in order to ensure that extra scrutiny or support is given as required. Ultimately, NHS England’s board will assure direct commissioning processes.

The noble Lord’s particular concern was around specialised commissioning and the overspend that we saw last year. In quarter 4 last year, NHS England forecast an overspend in specialised services of £172 million, an adverse variation to plan which was in excess of £291 million. Departmental analysis found that last year’s overspend in specialised services was due to a combination of factors, some historical and intrinsic, others unique to 2013-14. In April this year NHS England established a specialised commissioning task force in order to make some immediate improvements to the way in which it commissions specialised services and to put commissioning arrangements on a stronger footing for the longer term. The task force is led by Richard Jeavons, Director of Specialised Commissioning, NHS England. Additional resource from within NHS England has been diverted to the task force to ensure that it has the right mix of skills and expertise to enable it to meet its objectives. The task force comprises seven distinct work streams, which are focusing on financial control during the current year and planning for the 2015-16 commissioning round.

NHS England provides updates on the work of the task force to external and internal stakeholders every three to four weeks. There are also briefings given at key meetings and to key groups—for example, the Patient and Public Voice Assurance Group. Updates can be found on the NHS England website. NHS England describes its specialised commissioning task force work as a way to secure financial control in 2014-15 and to plan for 2015-16; it is not a wholesale review of specialised commissioning. The aim is to improve ways of working and to ensure that specialised commissioning is undertaken in the most efficient and effective way possible. The department is working closely with NHS England as it develops proposals for change. NHS England will continue to be held to account through the regular accountability meetings and the annual assessment that I have referred to.

Although these arrangements for the oversight of commissioning are new, I am confident that they are robust. The CQC’s new approach to inspection and the information that it provides about the quality of care through ratings is itself of use in commissioning, and where there is evidence that commissioning decisions are leading to poor care, it will, as I have said, be possible to escalate this to the CQC. I believe that these arrangements strike the right balance, allowing the CQC’s focus to remain on its core task of inspecting and regulating health and adult social care, but retaining an ability to look at commissioning issues when necessary.

My Lords, I am sure that the House is most grateful to the noble Earl for such a comprehensive description of the relationship between the department, NHS England and commissioners for health and social care. I congratulate my noble friend Lady Wall on her appointment to the chairmanship of the Milton Keynes Hospital NHS Foundation Trust. I echo her thoughts about the new inspection regime, which is a vast improvement on the old regime. I also acknowledge that the CQC has made some excellent appointments at senior level to help the inspection process.

That is a very good start, but there are gaps in relation to the commissioning of services. I would like to follow up the question asked by the noble Baroness, Lady Barker about prison health services. The Explanatory Memorandum states that regulated activities provided by prescribed service providers in prisons are excluded because:

“A performance rating might be helpful to the commissioners of these services, but only if it can be uniformly awarded to all providers in the sector and at present, not all prison healthcare is regulated by CQC”.

This is not the time to go into that in more detail, but I should be grateful if the noble Earl would be prepared to write to us about it—unless he wishes to intervene now. I am grateful that he indicates that he would be prepared to write to us, because it is an important point. There have been vast improvements in the health service within prisons in recent years and I would have thought that they would welcome some ratings from the CQC. I hope that the Government will look into that.

On the substantive point, I simply want to say to the noble Earl that many of the issues that the health service and care services face are very pressing and very challenging. Those services depend on all the people within a system—both commissioners and providers —working together. I still believe that there is a strong case for there to be assessment by the CQC to help systems generally to learn from others, to see where weaknesses are and to improve the whole system approach—something that is missing from the current regime. This has been a good debate. I beg leave to withdraw my Motion.

Motion withdrawn.