Health and Social Care Bill

(Fifth Day)

The Deputy Chairman of Committees (Lord Colwyn)
I remind Members of the Committee that if there is a Division in the Chamber, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 25 [Warning notice]:

Baroness Thornton
moved Amendment No. 57:

57: Clause 25, page 13, line 21, leave out “provisions of this Chapter” and insert “relevant requirements”

The noble Baroness said: I shall also speak to a number of other minor and consequential amendments —Amendments Nos. 105, 114, 115, 116, 116A and 219C.

I begin with government Amendments Nos. 105 and 114, which have been agreed with our colleagues in the Welsh Assembly Government. Amendment No. 105 is an amendment to Clause 65, which requires the commission and the Welsh Ministers to co-operate with one another in order to carry out their respective functions efficiently and effectively. Effective co-operation may require information-sharing; one example might be where a patient receiving treatment under the Mental Health Act moves across the border from England to Wales. Under the responsibilities of the commission and the Welsh Ministers to appoint second opinion appointed doctors, one may need to alert the other to an existing certificate provided by such a doctor authorising a patient’s treatment. Amendment No.105 therefore enables this exchange of information.

Section 143 of the Health and Social Care (Community Health and Standards) Act 2003 allows the Welsh Ministers to use information gathered in connection with the exercise of a particular function for the purposes of the exercise of other functions. For example, information obtained by Welsh Ministers in assessing a registered care home might also be used by them in considering the appropriateness of a local authority’s actions in determining whether people should be placed in that care home.

Amendment No. 114 is designed to expand the list of specific functions exercised by the Welsh Ministers to which this power to use information will apply to cover new functions they are being given. These include the functions the Mental Health Act Commission currently has in Wales, which are being transferred to the Welsh Ministers, and the functions that are to be given to the Welsh Ministers under the Mental Capacity Act 2005 relating to monitoring the application of the new deprivation of liberty safeguards.

The remaining amendments in this group—Amendments Nos. 57, 115, 116, 116A and 219C—are minor, technical amendments to a drafting error in Clause 25, to the Local Government Act 1999, to the Regulation of Investigatory Powers Act 2000 and to the Freedom of Information Act 2000. I beg to move.

On Question, amendment agreed to.

Earl Howe
moved Amendment No. 57A:

57A: Clause 25, page 13, line 27, leave out subsection (4)

The noble Earl said: Clause 25(4) contains what appears to be a surprising provision. Where a provider complies with a warning notice, the regulator cannot use this as a ground for cancellation, suspension of registration, the imposition of a new condition or the variation or removal of any condition of registration. Why does the Minister believe that in certain circumstances that would not prejudice effective enforcement action? Let us suppose that a provider is served with a warning notice for failing to comply with a particular requirement and then rectifies the failure within a specified time period. In that event, the relevant failure could not be used as part of any grounds for a subsequent cancellation or suspension of registration. Those providers who do just enough to comply with warning notices will be in a stronger position to avoid regulatory action than those who are not served with such notices. That surely cannot be fair.

It could mean—as happened, for example, in the notorious Longcare case—that relevant information is available but is not made known to the regulator. The issue at stake is the provider’s suitability to remain registered, but it is not difficult to imagine circumstances where it would be difficult or impossible for the regulator to obtain a full picture on which to base that assessment. It would amount to a breach of the Soham principle, which is to build up a picture of someone’s previous conduct and attitude in relation to vulnerable individuals.

By the opposite token, if the rules of evidence are constrained in this way, it may act as a spur to the regulator to take more serious enforcement action against a provider without first issuing a warning notice. One could imagine cases where such action was disproportionate. I should be grateful if the Minister could explain the thinking behind this part of the clause. I beg to move.

Baroness Thornton
I agree that the commission must be able to take robust, appropriate and timely action where services are failing. Warning notices under Clause 25 will be an important new sanction which might be appropriate for first-time or minor breaches of regulatory requirements. The issuing of a notice should encourage a provider to change their behaviour to comply with requirements. In the expectation that they will do so, Clause 25 allows warning notices to specify a period in which to correct an issue. The commission will need to specify precisely the failure which concerns it, and which must be rectified within the timescale. If the problem has not been resolved after the period has expired, the commission will be able to take stronger action if necessary. Allowing for this period will not, however, tie the hands of the commission. Subsection (4) does not prevent the commission taking further, stronger, repeat enforcement action, even within that specified period, if the situation deteriorates, or if the commission has a concern about a separate, more serious issue that arises and was not addressed in the warning notice. For instance, the commission may give an NHS trust or care home a warning notice in relation to poor infection control. If the situation deteriorates, or there is evidence of an additional breach, the commission would take further and immediate action.

Allowing service providers wherever possible the opportunity to address failings while they are still relatively minor seems to be an important part of encouraging improvement, as long as people who are using the services are protected from harm. The Bill allows the commission the freedom to respond appropriately to breaches of requirements of the registration system. As we will discuss over the next couple of groups of amendments, we have deliberately given the commission a more flexible range of enforcement powers than currently exist under the Care Standards Act 2000. This is in response to feedback, particularly from CSCI, and would enable much more effective regulation. The commission will be free to determine which powers are appropriate in a particular situation. The Bill also allows for sanctions to be imposed urgently if necessary. I hope that that addresses the issue raised by the noble Earl and that he will feel able to withdraw his amendment.

Earl Howe
I am grateful to the Minister for that reassuring explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 and 58A not moved.]

Clause 25, as amended, agreed to.

Clause 26 [Urgent procedure for cancellation]:

Baroness Cumberlege
moved Amendment No. 59:

59: Clause 26, page 14, line 7, at end insert—
 “( ) In deciding whether or not to make the order, the justice must take into account, in particular, the extent to which the Commission had paid regard to the duties set out in section 2(3)(c) and (d).”

The noble Baroness said: The clause refers to the urgent procedure involved when an application has to be made to a justice of the peace to cancel a registration. It requires the justice to take into account the extent to which the commission has paid regard to the duties set out in Section 2(3)(c) and (d) of the Mental Health Act 1983, which refer to the commission’s activities being proportionate to the risks and the need to safeguard and promote the rights and welfare of children and vulnerable adults.

In effect, we are seeking to ensure that the JP is reminded that the decision is proportionate to the risks involved; that it is the last resort; and that it is essential to close the nursing or residential home, ward, clinic or hospital without further investigation. Closing an establishment is a draconian measure and affects not only the resident or patient at risk but all the other residents or patients who share the facility and who may not be at risk.

I do not doubt that this measure is necessary. I know that CSCI has used it only nine times in the past year and, knowing the integrity of that organisation, I have no doubt that it was used appropriately. However, this vast new regulator, the Care Quality Commission, will have to have a depth of administration; we know that large organisations are much more difficult to manage and we do not know what level or quality of person will be involved in making these decisions.

For 12 years I was a JP and I remember being called in on a Saturday morning or late in the evening to sit alone and make immediate decisions on some very difficult cases. I was reliant on the information given to me by the police or other authority. The cases were presented as having no alternative. Later, reflecting on a case, I used to wonder whether other possible avenues had been explored. I would have welcomed a prompt to consider the wider issues or, in our context, for the clerk to remind me that I should be sure that a decision was proportionate and that action had been taken to accommodate the other residents or patients.

When I chaired the Brighton health authority we had a case of legionnaires’ disease in a ward which was part of a 20-storey block. It was a vast building with numerous wards and theatres, and an accident and emergency department. The chief executive telephoned me and suggested that we evacuate the 20 storeys as they shared the same air-conditioning system. I counselled that we should not panic and resisted the closure. Fortunately, it was contained within a single ward. This amendment is designed to resist the temptation to panic and to give a prompt to a JP sitting alone to ensure that a decision to deregister takes into account all the implications of an immediate closure.

I was delighted to learn that, when the shadow chairman of the CQC was questioned before the Health Select Committee last week on the closure of hospitals or hospital wards, she said that she could envisage situations where licences could be suspended or withdrawn as a very last resort. She said that it was important to remain proportionate, not to regulate blind, and to consider the consequences of such an action. She noted that she currently regulated Sellafield; closing it down might not be the best regulatory approach, but there were firm sanctions that could be taken against management to improve performance. I hope that the noble Baroness, Lady Young of Old Scone, will take a personal interest in making the decision to go to court for an immediate closure. I beg to move.

Baroness Thornton
It is crucial that the commission’s actions are proportionate and focus on the welfare and rights of those whom it is to protect, as Amendment No. 59 seeks to ensure for urgent cancellation. We agree, which is why those particular provisions in Clause 2 are there. Cancellation of registration is a last resort, where other options have not achieved compliance with regulatory requirements and in those exceptional circumstances where there appears to be a serious risk to a person’s life, health or well-being. It will certainly not be undertaken lightly. As the noble Baroness, Lady Cumberlege, has said, it is a power to be used very sparingly and the message is “Don’t panic”.

In deciding to apply for urgent cancellation, Clause 2 already makes it explicit that the commission will have had to balance the risks to service users of cancellation—closing a care home, say—with the risks of allowing that service to continue. It will also need to provide appropriate evidence to the court for a decision to be made. Justices of the peace should make an order only on the basis of the evidence in front of them and on their judgment that the evidence indicates a serious risk to the life, health or welfare. They should not be forced to consider other matters at that stage. On that basis, I hope that the noble Baroness will agree to withdraw this amendment.

Baroness Cumberlege
I thank the Minister for that clear explanation. I am delighted to have it on the record so that if cases arise that are perhaps less proportionate than we would wish, we have some evidence of the action that should be taken. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clauses 27 and 28 agreed to.

Clause 29 [Failure to comply with conditions]:

15:45:00

Earl Howe
moved Amendment No. 60:

60: Clause 29, page 15, line 37, leave out from “offence” to end of line 38

The noble Earl said: I shall speak also to Amendments Nos. 61, 62, 109A and 109B. In doing so I bring us to an issue of some importance which the proceedings in another place dealt with only in a rather fleeting and cursory way, and that is the issue of penalties. We see in Clauses 29 and 30 provision made for penalties: first, when a registered service provider or manager fails to abide by a condition of registration; and secondly, where a registered service provider or manager carries on a regulated activity despite the fact that a registration has been cancelled or suspended. In each case the penalty on conviction for an offence is a maximum of £50,000.

I have quite a problem with this, which the Minister may not necessarily recognise. There are cases where a fine, sometimes even quite a hefty one, is an appropriate penalty for someone running, say, a care home and who in some way or other has severely compromised the welfare of the residents. But if we imagine the case of an NHS trust, let us say a hospital, which is seriously falling short on hygiene standards, and that as a direct result patients have been harmed or have even died, I question whether it is appropriate to treat that matter as something to be dealt with only in a magistrates’ court. The range of culpability that these offences might cover is quite considerable, of course, but at the worst extreme we could be talking about very serious negligence on the part of a hospital manager or a care home owner. In my view, the options open to the authorities in a serious case of this sort should include not just a fine, but also a prison sentence, in which case, depending on the circumstances, it could be thought appropriate for the Crown Court to deal with the case.

There is another aspect to this. It is manifestly pointless to fine an acute trust a sum of money for having committed an offence because, as a public body, the fine inevitably will be paid out of public funds. The sum will either be insignificant in the context of the budget, or it will be substantial. But I find it quite difficult to see whose interests will be served by a transfer of money from one public body to another, the net effect of which would be to disadvantage patients. I would be interested to hear the Minister’s view. Does she agree that in some cases a fine may not be a sufficient or appropriate sanction, and that is what is needed is a rather wider menu of options?

I turn to Amendments Nos. 109A and 109B, which I tabled in response to comments made by my noble friend Lord Goodlad arising out of the scrutiny of the Bill conducted by the Lords Select Committee on the Constitution. The point can be dealt with quite quickly, but it is very important. The committee questioned whether it was appropriate for the Bill to contain stand-alone civil sanctions as alternatives to criminal prosecution. It did so bearing in mind the general framework for such powers set out in Part 3 of the Regulatory Enforcement and Sanctions Bill. That Bill contains provisions which are intended to act as safeguards on the use of civil sanctions by regulatory bodies, and the Government themselves brought forward amendments to limit the powers of regulators in a way that in the eyes of the Constitution Committee strikes a fair balance between effective sanctions and due process.

It would have been quite possible for the CQC and Welsh Ministers to be designated regulators—that is the term—as defined in the Regulatory Enforcement and Sanctions Bill, but the Government have not chosen to take that route. As it is, the powers in Clauses 82 and 83 do not contain the kinds of safeguards against misuse or error that might be thought desirable. In its letter to the Minister, my noble friend’s committee said:

“There is no requirement for any ‘notice of intent’ before a penalty notice is issued. There is no provision for written representations and objections to the regulator in relation to the proposed imposition of the fixed monetary penalty. There appears to be no express right of appeal against the imposition of a fixed penalty”.

In his reply to my noble friend, the Minister explained that the Government have quite consciously created a bespoke scheme for the CQC, which is materially different from the provisions in the Regulatory Enforcement and Sanctions Bill. In particular, he made clear something that I had not previously realised—that the penalty notices under Clauses 82 and 83 are completely unenforceable. The penalty notice procedure depends on the offender consenting voluntarily to pay the penalty. That is apparently why there are none of the safeguards listed in the letter of my noble friend Lord Goodlad.

I find the concept of an unenforceable penalty regime quite extraordinary. Can the Minister give an example of any similar scheme established in primary legislation? The whole idea seems decidedly quaint, like something that Sergeant Wilson from “Dad's Army” might say to a miscreant member of the Home Guard—“I say; I'm afraid you’ve been very bad. Here is a penalty notice. Would you mind awfully if I asked you to pay it some time at your convenience? There is no hurry at all. Thank you very much”.

That idea is very odd. Whereas my noble friend Lord Goodlad believed that the penalty regime appeared to be overly draconian, it turns out that the regime has far fewer teeth than it needs if it is to be at all credible. I should be grateful if the Minister would enlighten us further about why the Government have taken what seems to be a highly novel approach to this aspect of the CQC's enforcement framework. I beg to move.

Baroness Murphy
I would like to add some questions to those of the noble Earl, Lord Howe, in respect of these fines. Clause 30 puzzles me. The registered person or registered manager is liable to a conviction and fine up to £50,000, rather than the organisation, such as an NHS trust. However, a fine of £50,000 for an organisation with a turnover of £400 million would be nonsense. Can the Minister clarify the practicalities? Who in an NHS trust provider would be liable to receive the penalty?

Lord Campbell-Savours
Like the noble Earl, Lord Howe, I cannot see the logic behind the proposition, but I want to turn to another aspect—the question of care homes. Clause 30 refers to persons, managers and a £50,000 fine. I know that I missed part of a Sitting the other day, and this may have been dealt with then, but what is the process? If a warning is given, but does not have any effect, urgent action is taken. Does the care home close? Does it stop trading? Does someone else move in? Who pays the fine? In the event that the fine is paid, is not the maximum a rather small amount when fees are generally around £1,000 a week? One week’s take in a home with a reasonable number of beds would cover the fine. It seems that people could prolong this process.

Perhaps I am missing something in the Bill, but one would think that there would be a way of directly intervening to ensure that there could be no harm; the conditions and the problems are dealt with; the management is changed; and, most importantly, that the people living there are not disrupted, which has to be a major consideration. The £50,000 fine seems out of proportion to the problem being dealt with.

Baroness Thornton
The noble Earl, Lord Howe, and the noble Baronesses, Lady Cumberlege, Lady Tonge and Lady Barker, who did not speak to their amendments in this group, raised a number of important aspects about the enforcement powers exercisable by the Care Quality Commission and the courts. As I have already said, the commission must be able to take robust, appropriate and timely action, and use a range of sanctions to protect patients and people using care services. The commission therefore will have a flexible range of enforcement powers and will be able to use its judgment to decide which approach would be most effective in which circumstances. I shall expand on that, which I hope will answer some of the questions raised during this discussion.

This range is in response to the feedback, particularly from CSCI, in devising a more flexible range of powers than exist in the Care Standards Act 2000. Initially, the Care Quality Commission might decide that it is necessary to increase only the frequency of monitoring and inspection visits, but it can escalate to statutory warning notices, penalty notices, cautions, conditions on registration, prosecution through to suspension or even cancellation of registration.

The enforcement powers are an important part of the new commission’s armoury. Providers operating outside the remit of their registration could pose a serious risk to patients and service users. For example, a care home’s registration might be subject to a condition not to provide services to people with learning disabilities because it does not have appropriately trained staff in place. Failure to comply with such a condition would clearly be serious. It is therefore entirely appropriate that the penalty on conviction for each such offence can be a fine of up to £50,000. The range is up to £50,000 and multiple offences can attract multiple fines, which I hope answers one of the questions raised by my noble friend Lord Campbell-Savours.

If the Care Quality Commission concludes that a fine is not the most effective way of addressing a problem, it will use its other powers—for example, suspending or cancelling registration. That fine is addressed to the corporate organisation; that is, the business, the trust or whichever part of the care and health services being addressed by that issue. On the amendment in the name of the noble Baroness, Lady Barker, I should say that we do not believe that increasing the upper limit to £250,000 is necessary because of the option to have multiples of £50,000, should that prove to be necessary.

Although the fines should be significant enough to be taken seriously by the provider, the level of fines is not intended to be set at such a high level as to damage the local care economy or have a negative impact on patients or service users. But fines should have an additional deterrent effect, partly because of the stigma attached. On whether this is taking money away from front-line services, where fines and penalties are incurred by NHS trusts, we are looking for a practical administrative way to return the money to local commissioners to be reinvested for the improvement of services, so that local populations do not lose out through incompetence.

16:00:00

I now focus on Amendments Nos. 60 to 62, which would allow for imprisonment on summary conviction. In line with Ministry of Justice guidance, sentences of imprisonment have been reserved for the most serious of offences: the offence of not having registration. That is, first, because the commission will not be able to use any of its other powers in these cases and, secondly, because operating without registration potentially puts patients and service users at great risk. This offence is therefore triable either in a Crown Court or a magistrates’ court and is punishable by an unlimited fine and/or a custodial sentence. Where a provider is registered, the commission will have the full range of enforcement powers at its disposal, and in those cases it would not seem appropriate to make failure to comply with conditions an imprisonable offence. Therefore, we do not think that these amendments are necessary.

The three existing commissions, which the Care Quality Commission will replace, were outside the scope of the Macrory report—the report that proposed the regulatory powers in the Regulatory Enforcement and Sanctions Bill, recently debated in your Lordships’ House, and which form the basis of Amendments Nos. 109A and 109B. That said, the Care Quality Commission’s power to issue penalty notices is consistent with the six Macrory principles as applicable to health and social care. Penalty notices are intended to assist in changing the behaviour of the offender, to act as a punishment, and to attach public stigma to non-compliance with regulatory requirements, as well as acting as a deterrent to future non-compliance.

In both the Regulatory Enforcement and Sanctions Bill and the Health and Social Care Bill, the penalty is intended to be an alternative to prosecution. However, fixed monetary penalties in the Regulatory Enforcement and Sanctions Bill are enforceable by the regulator and, therefore, subject to a notice of intent, written representations and a full appeal structure.

By contrast, penalty notices under Clauses 82 and 83 of the Health and Social Care Bill require the offender to consent to pay the penalty, with the threat of something worse. The penalty notice procedure offers the recipient an opportunity to discharge liability for the offence. If they do not, the commission would, of course, be free to use any of its other enforcement powers against that person, as it considered appropriate, instead. We therefore do not believe that a provider will turn down the option of a penalty notice lightly. This Bill does not make provision for a notice of intent, written representations or a right of appeal in respect of penalty notices because it does not need to. Clauses 82 and 83 are deliberately constructed in that way, which we believe provides for an efficient and effective sanction which meets the specific needs of the sectors that are to be regulated, avoiding the potential for delay and legal expense associated with the prosecution of offences or indeed any other sanction that requires full appeal rights.

In answer to my noble friend Lord Campbell-Savours, Clause 84 sets out that the commission will issue guidance on how it will exercise its function in relation to cancellation, suspension notices and penalty notices. Before my noble friend arrived, we had had a discussion about the balancing of risks that that would involve and how those decisions could not be taken lightly.

I believe that the Bill already allows the commission the freedom to respond appropriately to breaches of requirements of the registration system, and I hope that the noble Earl will therefore agree to withdraw the amendment.

Baroness Howarth of Breckland
The complexity of the answer given by the Minister, which I look forward to reading, alerts me to the concerns on the ground as regards implementing penalty notices. If there are two systems, and the first system related to healthcare and the recycling of funds, what other kind of organisations would recycle the money? How would it be recycled, and under what code of practice would that happen? If there is not a similar provider in that given area, would the money go to another provider? Having worked in this area, I know that it is crucial that the rules on penalties are clear, straightforward and simple. The difficulties encountered in the past by CSCI in deciding, with providers, whether there would be a fine or closure, lead me to hope that it will be clarified rather than left as it is. Despite my views on this, it would also be useful if all the providers had very similar regulations, bearing in mind that we are supposed to be aiming for greater conformity between the two.

Lord Walton of Detchant
If one supposes that these two clauses go through unamended and thus without the option of criminal conviction suggested in the amendments, would a care home or other organisation which had been shown to have exercised a lack of care that could amount to serious negligence, leading to the death of one or more patients, still be liable to prosecution for manslaughter or corporate manslaughter?

Lord Campbell-Savours
I want to refer specifically to a case where two breaches had taken place. My noble friend referred to multiple penalties; if the manager of a care home took an action which came under the heading of “subject to penalty” against a particular resident, I presume that that would incur one penalty. If the manager took similar action against another resident, would that be treated separately? Is that what my noble friend means by “multiple”? If, say, half a dozen residents were affected, would that mean a fine of half a dozen times £50,000, which is a potential penalty of £300,000?

Baroness Thornton
In response to the noble Lord, Lord Walton, the answer is yes. The penalty scheme is a coherent scheme that will be applied across the board; it is not a dual scheme. As we read the various clauses, it is clear that it applies all the way through. On how fines are recycled, the only assurance I can give at the moment relates to those that involve public funding. We are still looking at how the others might be recycled or what could happen to them. I cannot give a specific answer at this point, but no doubt we will return to this issue.

While I cannot comment on any specific instance—indeed, it would be wrong of me to do so at this point—if a provider offends in many different ways, a fine can be imposed relating to each of the different instances. However, I am not going to state specifically what those ways might be, although it could be a fine of up to £300,000 if that was deemed necessary in terms of the severity of the sanction required.

Baroness Cumberlege
This is an interesting debate because penalties are a difficult area to consider. I noted with interest the point made by the noble Baroness, Lady Howarth, about a dual system, but I think the Minister said that it is not a dual system. Does that mean that if a small residential home comprising around eight beds and a large hospital both have a situation where a health-acquired infection such as MRSA is present, it is a question of degree? The fine imposed on the small residential home may well force it to go bust, whereas the state-funded hospital is likely to continue to function. Further, if the hospital is fined, we understand that the money is given to the commissioners who then return it to the hospital so that it can improve its services. Presumably that would not happen with the residential home because it is a private organisation.

Baroness Thornton
The point to make is that the fines are up to £50,000 and that we are trying to build in as much flexibility as possible. Obviously, the impact of the sanction would, as I have already mentioned, have to be taken into consideration. To be completely clear to my noble friend Lord Campbell-Savours, if there are six breaches, six fines can be applied.

Baroness Barker
I did not have to move my amendment because the Minister answered the question about the scale of the fines. I congratulate her on selling a difficult issue. It is difficult to have a system of fines that applies to St Thomas’s Hospital as well as a tiny place. As the noble Baroness, Lady Howarth, said, flexibility is fine, but these things work only if there is clarity and transparency. They will have to be a little bit more definite if they are going to work.

Will the Minister respond to the point made by the noble Baroness, Lady Murphy, about who will be fined? In Clause 30, the fine relates to managers. The Minister said that the fine would be levied on the corporate entity. She will understand from some of my amendments down the track that this is a particular issue of mine. For the sake of our understanding, could she deal with that point again? What she said appears to be at odds with what is in Clause 30, which is an important point, partly because, in the NHS, it is not always possible to tell who the manager of the service is.

Baroness Thornton
I realise that this is important. Who is liable in an organisation such as an NHS trust? Is it the person or the body itself? In other words, it would be the trust, not any individual person. But under Clause 87, if an individual is responsible, that person would be liable. I hope that helps.

Baroness Barker
This is an important point for the avoidance of doubt. This provision may be a product of other laws, such as the Corporate Manslaughter and Corporate Homicide Act 2007. Is the Minister trying to convey to us that the corporate body would be responsible, but if an individual acted in a way that was found to be outwith the policies and procedures of the corporate body and was acting solely in an individual capacity, they would be liable for prosecution in addition? Is that what she is trying to say?

Baroness Thornton
No, that was not what I was trying to say. The body itself—the trust—rather than any individual person is responsible. That is under Clause 87.

The Earl of Onslow
I am coming in later to talk on the amendments of the noble Baroness, Lady Stern, but I heard something so inherently and deliciously “Alice in Wonderland” that I need it confirmed. Something goes seriously wrong in an NHS hospital. The hospital is fined: it does not matter what the sum is. The money goes into one pocket and it is given back to the hospital to do something with. Where does the fine go, and what on earth is the point of fining the taxpayer? I always find that slightly dotty because it just goes round the system. It is not a real fine and the only people who suffer are the public.

Baroness Thornton
I did not say that it would go back into the pot. I actually said that we were looking for an administrative and practical way to return the money to local commissioners to reinvest, which is not at all the same thing.

I would like to have another go at this. The trust is liable as the registered person, but Clause 87 means that an individual can be liable for an offence if that person is culpable.

16:15:00

The Earl of Onslow
We have this lovely concept of mother state saying to national health hospital, “Can I please have 50,000 quid because you’ve left dirty lavatory paper”. So you go into the hospital’s budget and out you take £50,000. I thought that somebody said—I may be wrong—that that money is then given back in some way to the trust to help clear it up. What happens to that £50,000? It is ridiculous to take money away from a hospital.

Baroness Thornton
A fine is a process of the regulatory requirements. It is not just about a fine but the reputation of the hospital concerned. A whole range of other things exists. I said that we are looking at practical ways to return the money to local commissioners, which means that the money can be spent on commissioning, reinvesting in and improving services, which may be quite separate from the hospital that has been fined.

Baroness Barker
I shall not pursue the matter much more, because we are not getting much further. There may have been a lack of understanding on my part, but will the Minister look again at Clause 30 in relation to this matter and write to Members of the Committee, because the clause refers to managers rather than corporate bodies? That would be helpful.

Baroness Thornton
That is exactly the right thing to do.

The Earl of Onslow
You take money away from the hospital. Who suffers? It is the hospital. What is the hospital for? It is for making people better. That hospital will have less money; it has already done something stupid; so you take money away from it. That strikes me as stark, staring, raving mad.

Baroness Thornton
I can only repeat what I have said. Perhaps I need to write to the noble Earl and explain the difference between commissioning, hospitals and patient services. That might help to clarify the matter. I see nods around the Committee, because noble Lords seem to understand my point; that is, that the aim of the fine is not to make the patients suffer but to encourage the hospital—or whichever part of the health service is being dealt with—to improve and for the commissioners to look at the best way to reinvest in services in that area. I cannot think of a better way of describing it, but I shall definitely write to the noble Earl.

Baroness Cumberlege
If the Minister could write to all of us, it would be very helpful. Perhaps she could refer also to fines and reimbursement for private nursing and residential homes and who the commissioner is.

Earl Howe
This has been an interesting debate. I am grateful to my noble friend Lord Onslow for making a perfectly valid point, because, as explained by the Minister, money is taken away from the provider, but it is the provider who perhaps needs that money to look after patients. This story will run a little.

The Minister made some helpful comments on the amendments. She said that she was not drawn towards the option of a prison sentence as an alternative to a fine, and I think that she said that the Government did not consider this option appropriate or necessary. I am not sure that I heard a logical, underpinning argument for that point of view, except that, in the eyes of the Government, a failure on the part of a provider to be registered in the first place is a more heinous offence, where a prison sentence could be appropriate. I am not sure that that hierarchy of heinousness is necessarily self-evident or would command common agreement, so this could be an issue to which we return later.

On Amendments Nos. 109A and 109B, it is simply wrong to set up a system of unenforceable penalties. Of course, the unspoken—or perhaps even explicit—threat is that if you do not pay up, you will be taken to court. However, you will not be taken to court for failure to pay the penalty, but for breaching the regulations governing registration. One must ask how ethical or proper it is for the threat of a more severe penalty to be used as a lever to force someone to comply with a less severe penalty. If the less severe penalty is regarded as the appropriate sanction for the offence in question, then that framework of penalties should stand or fall on its own terms. That surely means having a set of safeguards of the kind outlined by my noble friend Lord Goodlad, treating fixed penalties as a self-contained, free-standing system of sanctions quite separate from a prosecution taken through the courts.

This is quite an important point of principle. I am left feeling somewhat uneasy by the Minister’s reply. While I shall of course reflect on what she has said, it will be illuminating to see what my noble friend Lord Goodlad has to say in response to the letter that has been sent to him. For the time being, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

Clause 29 agreed to.

Clause 30 [Offences relating to suspension or cancellation of registration]:

[Amendment No. 62 not moved.]

Clause 30 agreed to.

Clause 31 [Contravention of regulations]:

[Amendment No. 62ZA not moved.]

Clause 31 agreed to.

Clauses 32 and 33 agreed to.

Clause 34 [Provision of copies of registers]:

Baroness Barker
moved Amendment No. 62A:

62A: Clause 34, page 17, line 17, after “available” insert “in electronic form”

The noble Baroness said: This is a straightforward probing amendment. Clause 34 rather gives the impression that it is about paper registers being available at offices for inspections at reasonable times. The purpose of the amendment is to ensure that, just as CSCI does now, the new commission works primarily in an electronic form. I am therefore seeking clarification that the CQC will not have to keep up-to-date paper records of those whom it inspects, but can fulfil its functions simply by having electronic registers. I beg to move.

Baroness Thornton
I appreciate the intention that information on the register should be available in a convenient format for members of the public, including electronically, as intended in the amendment. As mentioned by the noble Baroness, much of the information held by the existing bodies is held electronically and is accessible. It is my understanding that requiring copies of the register to be made available to view would include information held electronically. We would expect the commission to continue the good work of the Healthcare Commission and CSCI, and make as much information available as possible through its website. Indeed, in recognition of the fact that we increasingly communicate electronically, we have tried, through Clauses 89 and 90, to ensure that people can choose that the commission should send them documentation by e-mail.

I think that we are in agreement on this, although I do not think that it would be appropriate to be prescriptive about it. I hope that the noble Baroness will see that we agree completely about the need for modern, electronic communication and that the amendment is not required. I ask to her to withdraw it.

Baroness Barker
I thank the noble Baroness for that reply. I wish that across government we could find a format of wording to indicate in all sorts of spheres that laws apply in electronic form as well as in paper form, which would save a lot of time and trees. That said, I welcome her answer and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 agreed to.

The Earl of Onslow
moved Amendment No. 63:

63: After Clause 34, insert the following new Clause—
 “Handling and consideration of complaints by Care Quality Commission
 (1) Where a complainant is not satisfied with the conduct or result of an investigation by a service provider regulated under this Part, he may request the Care Quality Commission to consider the complaint in accordance with regulations made under this section.
 (2) Before making regulations under this section, the Secretary of State must consult such persons as he considers appropriate.”

The noble Earl said: I am afraid that the Committee has me instead of the noble Baroness, Lady Stern, moving the amendment, which it may find is rather a bad bargain, because she is completely on top of this topic. This amendment arises from concerns expressed by the Joint Committee on Human Rights, on which we both sit. It refers to the person who is not satisfied with how a complaint has been handled by the service provider. The amendment is clear, probably because it has been drafted by us rather than by draftsmen who make certain that no one can understand it without assistance, about four QCs and 300 guineas an hour.

The JCHR was concerned that the current position does not meet the concerns in its report, Human Rights of Older People in Health Care. In that report, the JCHR considered evidence that service users’ rights could be undermined where complaints were referred back to individual providers or, in the care sector, to the local government ombudsman. Similarly, the Bill maintains the distinction between private- and public-funded service users for the purposes of complaint. This is a distinction which Age Concern calls on the Government to end. It supports the amendments proposed during the Bill’s passage through the House of Commons, which provides for the establishment of an independent complaints body operating alongside the CQC.

When we took evidence for the report, we certainly heard about the fears of old people that they might be deprived of their tenancy in a care home because they had made a complaint and about how they feel vulnerable. This amendment is an attempt to do something about that. I believe that the noble Lord, Lord Darzi, and several Members of the Committee have expressed sympathy with this proposal, but that the Government feel that it is not necessary. I am not convinced. I beg to move.

Baroness Finlay of Llandaff
This amendment is important in principle. Many groups feel disenfranchised and unable to complain because they are frightened that their complaint will rebound against them. The noble Earl, Lord Onslow, has pointed out the problems for patients in care homes, but a lot of patients in receipt of care in the community feel that they cannot complain against the medical side—the GP, district nurses and so on—or the social worker, who may be the person doing the budget assessment to determine their care and care package. They are frightened of complaining. If they do complain, they fear that there may be a vindictive rebound against them.

In order to inspect the true quality of a service, how it handles its complaints can be extremely telling. Complaints that go through NHS trusts are, by and large, pretty well handled, but they are better handled in some trusts than in others. In the trusts where they are better handled, one also has the sense that the whole attitude is more patient-focused. The big principle behind this amendment is in terms of collecting important data on how patients or clients who feel that they have not been handled properly are able to express their voice.

16:30:00

Baroness Thornton
I think we all agree that it is vital that complaints are dealt with effectively. Having listened carefully today and at Second Reading, I think that most noble Lords have also agreed that complaints are best dealt with and resolved locally, where there is familiarity with the issues and organisations involved.

The current second stage of the NHS complaints process, with external consideration by the Healthcare Commission, has lengthened the overall process for handling complaints. The Healthcare Commission’s series of reports, entitled Spotlight on Complaints, demonstrates that having an independent body with powers to review complaints can also discourage some organisations from doing a thorough job and resolving them at a local level. So several factors need to be taken into consideration. Neither the Healthcare Commission nor CSCI supports the idea of the Care Quality Commission having a role in dealing with individual complaints, and neither does the Health Service Ombudsman, who is gearing up to be the second stage complaints receiver. We therefore want to put the emphasis on ensuring that in the first instance all providers operate good complaints handling procedures, which encourage effective local resolution and enable providers to use information from complaints to improve service delivery, as the noble Baroness, Lady Finlay, said.

As part of contract monitoring, PCT and local authority commissioners should also monitor how well the providers from which they commission services respond to complaints and take appropriate action when the response falls below an acceptable standard. This information on complaints-handling can therefore be used to inform subsequent commissioning decisions. As I have said before, we believe that the best way in which the Care Quality Commission can support these aims is through the registration requirements, subject to the feedback from the ongoing consultation. I wondered how long it would take me to refer to the consultation document. The paragraph about responding to people’s comments and complaints specifies that there should be clear, simple arrangements for handling complaints and dealing with them.

The Care Quality Commission will thus have a very important role in assessing how well providers are handling complaints. It will be able to use a variety of methods for checking whether providers are complying with requirements. It may use case tracking, as CSCI does, to see whether the service that an individual receives, or the way a complaint is handled, meets the individual needs of the people receiving care. There will of course be an independent view through the ombudsman—

The Earl of Onslow
But those people publicly funded in private healthcare will not be allowed to be appeal to the ombudsman—as I am informed by this important piece of paper, from which I am sapping up knowledge at rate of knots.

Baroness Thornton
I shall continue until I have an answer to that.

The goal should be to improve local arrangements for dealing with complaints, which should mean that there will be no need for independent consideration between the local level and the ombudsman. The response to our recent consultation on complaints reform, Making Experiences Count, generally supported that approach. There is one specific exception: the Care Quality Commission will continue to have a specific function regarding complaints about the use of powers and duties under the Mental Health Act, as currently carried out by the MHAC.

The rationale for this specific provision is that patients subject to some form of compulsion may not have easy access to the usual means of making a complaint—as in the NHS and social care complaints procedures. However, the MHAC’s role here is less that of an appeals function and more about advising and helping patients to make complaints through the appropriate channels. We have every reason to think that that will continue to be the case when the Care Quality Commission takes over that specific role. We acknowledge that in social care there is a particular issue for people who arrange or purchase their own care independent of the local authority and that they do not have access to the statutory complaints procedure, with its independent resolution via the ombudsman if necessary. We are looking at the issue very seriously and I hope we will be able to make a substantive proposal in the very near future.

Baroness Tonge
I hope that I am not the only person here who is rather confused by all this. There is a problem with where the complaints go in the private sector, because people cannot use the ombudsman. There is a problem with the Care Quality Commission taking on a function by which it receives complaints from the general public. That should not happen—that is not what the body is there for. I am in a serious muddle as to how the Care Quality Commission, when it is formed, will link up with the complaints procedure in the health service, in local authority and private care homes, and in mental health services. The Committee probably deserves some sort of flow chart to show us exactly where a complaint goes when it starts with an individual patient or client. We need to know exactly how all those organisations will connect up and how it will benefit the patient.

Baroness Thornton
The noble Baroness has only to ask and it will be done. We have a flow chart and I shall ensure that it is circulated to Members of the Committee. We are very mindful of the issues around those who arrange or purchase their care independently and the need to address those issues. I am assured by my honourable friend the Minister that we will bring forward some proposals in the near future—I hope before the Bill has finished its progress through this House.

The Earl of Onslow
The Minister’s answer was, to me, opaque. It may be only my lack of little grey cells, but I lost her. I am seeing surreptitious nods from around the Committee Room, telling me that she was lost in a sea of verbiage.

The one thing that I do not think that she has addressed—and I was extremely pleased to get support from the noble Baroness, Lady Finlay—was the very serious problem of the elderly, who are in the evening of their lives and very vulnerable and may not even have relatives. We know the tragic stories of old people who are never visited, and so on, which is the result of keeping people alive longer. We know all the reasons—but, consequently, they become more and more vulnerable and more and more frightened. They are frightened to complain. I do not think that the Minister addressed that point at all. I may be doing her an injustice but, again, I notice little nods around the Room. Will she please, before Report, really look at the point of the vulnerable old being terrified of having their tenancy terminated?

Baroness Thornton
This issue has been discussed at Second Reading and in Committee. The point that I was trying to make—and I apologise if it was opaque—was that the Care Quality Commission’s job will be to set up the very best and most robust regulatory system to ensure that complaints are handled properly, including ensuring that those who are most vulnerable can have their voice heard. That is its job. We must therefore ensure that the regulatory framework that we agree further down the line does that.

The Earl of Onslow
The Minister is saying that the Care Quality Commission will set up all these things. We are suggesting that when people are not satisfied with the appeals they can go to the Care Quality Commission. We want them to have another way in. It is not just me saying that—the Joint Select Committee was seriously grown up about it and took a lot of evidence and care. We thought that this was very important.

Baroness Greengross
I am sorry to labour the point, but will the noble Baroness bear in mind that there has been a lot of discussion about individual complaints not being taken up directly by the commission? Unfortunately, sometimes we deal with actual abuse and the people involved are very fearful. The sort of person the noble Earl talked about, someone with no relatives, is in a most vulnerable position because it is easy to threaten such a person with further abuse. It is a question of power, and we must get this right. Apparently there is no clear way for individuals—and here I include individual members of staff who know that something is wrong—to make a complaint without fear of their job or their situation being worsened. It is important that we send a clear message on this.

The noble Baroness, Lady Tonge, and I have expressed our confusion because some of us understand that individuals cannot take their complaint directly either to the Care Quality Commission or the ombudsman. Who is going to take up such complaints? We need a clear explanation and guidance on exactly what will happen because this is a serious situation where people have almost total power over some of the most vulnerable in our society.

Baroness Tonge
I should like to emphasise that point. This is one of the problems that arises out of trying to combine health services, social services and mental health services under a single huge commission. A lot of the thinking seems to have come from the health side; many of us are worried that social services will either be ignored or it will be assumed that the same procedures that operate when a patient makes a complaint about the health service can also apply to social services, but they cannot. This is a big problem for the new commission, which is why I say again that this reorganisation is being undertaken far too soon and is going far too far.

The Countess of Mar
Perhaps it would help the noble Baroness if I give the example of what happened to my mother before she died in 1993. She had always been used to giving herself her own medicines. She was a highly intelligent lady who was able to finish the Times crossword the day before she died, so there was no problem with her mental functions. However, the male charge nurse caring for my mother decided that she was an alcoholic because she liked a glass of sherry before lunch, a glass of wine with dinner and a glass of brandy before going to bed. He concluded that she was incapable of administering her own drugs. Her dignity was taken away from her when she was told that she was not capable of taking her own medicines, and she simply fell apart. She rang me in a panic, so I went over and reminded the young man of who paid his salary. He gave my mother’s medicines back to her. However, my mother suffered at his hands every time he was on duty until she died, and indeed after she died because he insisted, although it was clear that she had died from natural causes, that there should be a post mortem in case she had taken an overdose.

When someone from our walk of life can suffer in such a way, let us consider the position of those who have no advocate, no one to stand up for them. They need an exceptionally strong support system. This is not like purchasing something in Currys and then going back to complain about it. This concerns physical comfort, well-being and peace of mind.

Baroness Thornton
I do not think that there is any disagreement about the seriousness of this issue and how important it is to get it right. Perhaps I may refer to paragraph 10 on page 64 of the consultation document, which states,

“Ensure that people and their relatives and carers are aware of and can use, with support where needed, and without prejudice to their care and treatment, simple and clear arrangements for the handling of comments and complaints. Ensure that complaints about failures to ensure people’s health, safety and welfare are investigated and resolved promptly and effectively. Learning from complaints is reflected in risk management, quality assurance and clinical governance”.

Perhaps I may refer to a remark I made earlier: the commission will be able to use a variety of methods to check whether the complaints procedures are useful. Indeed, we expect that it will use many of the methods already being used by CSCI, such as case tracking, to see whether an individual has been served properly and the complaint properly articulated and handled.

Finally, I draw the Committee’s attention to the memorandum submitted to the Committee in another place, which I will circulate to those who may not have read it, from Ann Abraham, Parliamentary Ombudsman for the UK and Health Service Ombudsman for England. In that memorandum, she says that she fully supports these proposals and is gearing her organisation up to provide an independent second stage for complaints not satisfactorily resolved at a local level.

16:45:00

The Earl of Onslow
It would not be unreasonable to say that I sensed unease in the Committee and not complete happiness about the Government’s response. I completely agree with the Minister that everyone wants the same thing. When she read out paragraph 10, she talked about what the procedure should be. But the amendment is about what happens when the person doing the complaining feels that the procedure has neither produced justice nor been done properly. Where do they go to make sure that the procedure is followed and justice is provided? I have banged on quite enough about this. The Committee knows my views and I hope that we will be hearing more from the noble Baroness, Lady Stern, rather than from me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 [Bodies required to be notified of certain matters]:

[Amendments Nos. 64 to 66 not moved.]

Clause 35 agreed to.

Clause 36 agreed to.

Clause 37 [Liquidators etc.]:

Baroness Barker
moved Amendment No. 66A:

66A: Clause 37, page 18, line 28, at end insert “, or
 ( ) an administrator of an agreement where a person has entered into an individual voluntary arrangement with his creditors.”

The noble Baroness said: This takes us back to the central issue of how one provides regulatory legislation for different-sized providers of care. These two amendments deal in a different way with what happens in cases of insolvency involving a small provider. Amendment No. 66A would make plain what happens when individuals who are providers of care go into individual voluntary arrangements with their creditors—when they have serious financial difficulties that are one step short of bankruptcy. There is no requirement on the part of the administrator appointed under the IVA to notify the commission of his appointment. The amendment suggests that administrators of individual voluntary arrangements should be put on exactly the same basis as trustees in cases of bankruptcy.

Amendment No. 66B deals with the situation arising from the death of a registered provider under Clause 38. It is envisaged that the person or representatives of the person who has died may carry on a regulated activity, albeit for a short time, to safeguard the needs of users. If a registered person running a small care home dies, those looking after their affairs can carry on that business for a short period of time so that vulnerable users do not have to be moved. This is a small and limited measure and I do not imagine that it would apply in many cases, but it could happen. The amendments are in the best interests of users because people in care homes are vulnerable and being moved without notice is known to be harmful to them. I beg to move.

Baroness Thornton
Clause 37 deals with what happens should an individual or company that is registered with the commission as a service provider become insolvent. It requires that, if a registered individual becomes bankrupt, the trustee of the bankruptcy must notify the commission of their appointment and may be required to appoint a registered manager to ensure that the regulated activity continues to be provided in line with the relevant requirements. Amendment No. 66A, as the noble Baroness outlined, proposes that similar provision is made in relation to the licensed insolvency practitioners who administer individual voluntary arrangements.

I agree with the noble Baroness that the commission would need to be notified that a registered individual might need to enter into an individual voluntary arrangement, as the health, safety and welfare of people receiving those services could be put at risk. However, I am not sure that Clause 37 is the best place to make provision for this. Individual voluntary arrangements are a means by which people who can no longer afford the repayments on a debt can arrange a refinancing package with their creditors. Such agreements can draw assets, such as the value of any share a person may have in a property or business. However, the supervisor does not take control of the individual’s business, as would be the case were they to declare themselves bankrupt. They would simply be acting as an intermediary between the individual and their creditors.

In most of these cases, the individual would continue trading, so could remain registered, or could choose to cease trading and cancel their registration in the normal manner. Were their financial situation to worsen and they declared themselves bankrupt, the existing provision in Clause 37 would have effect. I do not therefore believe that an amendment to Clause 37 is necessary. However, I hope I can reassure the noble Baroness that the Bill already allows for provision to be made to ensure that the commission will be aware if there is a danger of a registered individual becoming insolvent.

Clause 16 also allows for regulations to include requirements as to the financial position of a person registered as a service provider. These do not form part of the current consultation but will be covered by a consultation later this year. However, regulations currently in force under the Care Standards Act, on which the new ones will be based, cover matters such as financial viability and agreements with creditors. In particular, existing regulations include requirements for current bodies to be informed if a service provider is likely to become insolvent in the next six months. We envisage making similar provision under Clause 13. This addresses the intention behind Amendment No. 66A.

Amendment No. 66B would enable people appointed under Clause 37 to act as the registered service provider for a specified period. Clearly, as long as the business remains operational, it will be important that services are overseen by someone with the appropriate skills to ensure that safety and quality requirements are adhered to. Clause 37 already allows for the person who takes control of the business to be required to appoint a suitable manager to ensure that this happens. However, it would not be appropriate to expect someone who is stepping in to arrange the financial wind-down of the business to accept responsibility for the safety and quality of service it provides, even on a temporary basis. As I have already said, in the case of individual voluntary arrangements, the insolvency practitioner does not assume control of the business anyway. Nor would it be appropriate for the official receiver, as an officer of the court and a member of the Insolvency Service, who would be the trustee or liquidator of last resort in bankruptcy and court winding-up cases, to be asked to register.

I hope that I have been able to explain how the Bill deals with these issues and that the noble Baroness will feel able to withdraw the amendment.

Baroness Barker
That answer was helpful in parts. If a small service provider has to go into an individual voluntary arrangement, it is then in serious financial difficulties. I suspect that the Minister is as aware as I am of the very strong temptation for small businesses in that situation to attempt to try to trade their way out. A reason for proposing this amendment is that some people who buy this care will do so on their own behalf, so it is important that they are protected.

I note what the Minister says about liquidators, but I think that the Government need to spend a bit more time thinking through the full implications for a very small business in this situation. There is a potential for a disruption to services that has not been thought about.

I shall take away what the Minister said and look with some care at the consultation later on this year. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 66B not moved.]

Clause 37 agreed to.

Clause 38 [Death of registered person]:

Earl Howe
moved Amendment No. 67:

67: Clause 38, page 18, line 38, leave out from “in” to end of line 39 and insert “a case where—
 (i) a sole person has been registered under this Chapter as a service provider in respect of a regulated activity, and(ii) the person has died;”

The noble Earl said: This is no more than a simple drafting matter. Clause 38(1)(a) says that regulations may,

“provide for the provisions of this Chapter to apply with prescribed modifications in cases where the only person registered under this Chapter as a service provider in respect of a regulated activity has died”.

It is clear what is meant, but I wonder whether the syntax and sentence construction could not be made a little better. If we talk about a situation where the only person registered under this chapter as a service provider has died, it rather suggests that the provision might apply only where one person in the whole country was registered as a service provider and that person has died; but we do not mean that. In an effort to be helpful, I have proposed an alternative form of words, which I hope that the Minister will consider. I beg to move.

Baroness Thornton
Clause 38 deals with what happens when somebody who is registered as a service provider dies. This mirrors a requirement that currently applies under Section 35 of the Care Standards Act 2000. In these situations, it will clearly be important that there is some continuous service provision and, equally, that services are overseen by somebody with the appropriate skills to ensure that safety and quality requirements are adhered to. This will be particularly important where the service provider is also managing the services.

The clause therefore allows for regulations to set out the procedure that will apply for notifying the commission of the death of a service provider. This would obviously be a sensitive time for those involved, and it will be important that the commission is notified within a reasonable timescale and that there is clarity about the procedure for doing so. I had some sympathy with the noble Earl when he read out that paragraph because, when I read it, I agreed. However, the lawyers tell that this must be so, and this is how it must be worded.

As for the current legislation, Clause 38(1)(a) makes it clear that regulations may provide suitable arrangements for those cases where there is only one person registered as a service provider in respect of a specific regulated activity and that person has died. Amendment No. 67 probes the wording and meaning of this provision. Drawing on the fact that under the Interpretation Act 1978 a “person” includes a body of persons corporate and unincorporated—that is, companies and government departments—the amendment seeks to clarify that this provision can, and should only, apply to natural people; in other words, “a person”.

I hope that I can reassure Members of the Committee that the meaning is already clear from the context, and that these provisions, as currently worded, are already well understood by those currently registered with the Healthcare Commission and CSCI under the Care Standards Act. I hope that Members of the Committee will therefore agree that we need not redraft these provisions and that the amendment can safely be withdrawn.

Baroness Cumberlege
I support my noble friend on this. As a classical scholar, he is of course quite right. Perhaps the Minister may take a little courage and challenge the lawyers, because that argument does not wear with me.

Baroness Thornton
I have a lot of sympathy with the noble Baroness; indeed, that was what I was doing over my shoulder. I will continue to do so on this one.

Earl Howe
I am grateful to my noble friend for stiffening my sinews on this; I was going to concede very meekly to the Minister. If she undertakes to investigate this a little further, I shall be extremely pleased, but, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 agreed to.

Clauses 39 and 40 agreed to.

Clause 41 [Standards set by Secretary of State]:

[Amendments Nos. 68 to 71 not moved.]

Clause 41 agreed to.

[Amendment No. 72 not moved.]

Clause 42 [Periodic reviews]:

[Amendment No. 73 not moved.]

17:00:00

Baroness Tonge
moved Amendment No. 74:

74: Clause 42, page 20, line 27, after second “of” insert “health promotion and”

The noble Baroness said: I make no apology for returning to health promotion. I took care to read some of last week’s debate on the Bill, particularly the speech of the noble Baroness, Lady Cumberlege, in which she said that she always found health promotion rather boring. I beg to differ—I do not find it boring in the least. In my early years as a general practitioner, I used to think that if you could make a patient happy, they were usually healthy or they thought that they were. It was an important thing to do. One of the reasons I went into politics was that I decided that patients were usually unhappy because of circumstances such as terrible housing, poor education or too many or too few children. They were not matters which concerned the health service.

The downside—if I dare utter it in this Building—of having a national health service free at the point of delivery is that a high proportion of patients somehow devolve their own healthcare to the National Health Service. That was certainly the case with an awful lot of patients whom I saw. Their healthcare was no longer any of their concern. What they did to their bodies, how they abused them or how they lived did not matter, because the health service would put it right. We have to recognise that some people do not give a fig, because they know, think or say, “It’s my right to have it put right if I abuse myself in this way”.

Another factor that prevents good health promotion is confusion of messages. It is quite extraordinary how much the press and the media will grab any little thing. A medical researcher may come up with something in some obscure journal—for example, if we all drink lots of red wine, we will all be extremely healthy, because that is what happens in France. That is a crude example, but there are numerous other such examples of silly, small research projects being publicised in this way. Having been a junior doctor, I know of people who are desperate to get into the press, to get their name in print and get a paper written. The newspapers will take it up and, as a consequence, the general public become incredibly confused.

I was a community services manager in Ealing a long time ago. One of my clinics was in Southall, an area with a large Asian community and, consequently, high levels of diabetes and cardiovascular disease. At one end of the clinic, dentists would tell mothers and children that they must end their meals with a nice, bland piece of cheese because the acid from fruit would rot the enamel of their teeth. At the other end of the clinic, the health visitors were waging a huge campaign to try to stop the population of Southall eating animal fats, cheese, ghee and so on because that was terribly bad for their health and would give them heart attacks.

I promise the Committee that that sort of thing goes on in one clinic. I suspect that it still goes on in some GP surgeries. Sadly, over the past 10 years, community services and community clinics have tended to disappear because the targets for the primary care trusts have been all about hospital care and GP care. That has shown some benefits because the promotion of those targets has seen, as the noble Baroness, Lady Cumberlege, said last week, a reduction in deaths from heart disease; a reduction in deaths from many cancers; and much better investigation and treatment of many cancers. A lot of good work is going on because of those targets and because of the work being carried out in general practices and in hospitals.

The work that used to be done primarily by community workers, health visitors, district nurses and school nurses was crucial in young people's lives: they were told what they should be doing, what they should be eating, when they should start having sex and so on. Over recent years, services such as family planning and sexual health clinics have been reduced. We have not seen much movement in teenage pregnancy rates, but we have seen a rise in HIV rates, a rise in sexually transmitted diseases up and down the country and, of course, a rise in obesity because no one is receiving the sort of advice which health visitors and school nurses used to give routinely to mothers, babies and small children. Alcoholism is rampant. I do not know where one lays the blame for that, but I suspect that advertising and manufacturers’ profits have much to do with the rise in alcoholism.

There is a huge job to do and the need to promote a particular lifestyle may be different in each community. I know Southall well and I know that we had to work on particular problems there. That is why this should be done at PCT level. We feel that, in future, the Care Quality Commission should ensure that the primary care trusts do not neglect all those services for health promotion and health prevention which are so essential. I beg to move.

Baroness Thornton
I completely agree with the noble Baroness, particularly on the need for clarity in health campaigns and what a huge job there is to do. In carrying out reviews of the provision of healthcare, by and on behalf of PCTs, the commission must consider PCTs’ health promotion activities. That chimes in exactly with what the noble Baroness was saying. For example, if a PCT is running public health campaigns on screening programmes, the commission should be able to assess how the PCT activity has contributed to it meeting that particular need in its local population.

That is why Clause 92 clarifies that the provision of healthcare includes the promotion and protection of public health and the provision of services connected with the provision of healthcare, except in relation to the commission’s registration functions under Chapter 2. For the purposes of Clause 42, therefore, healthcare absolutely includes health promotion, and I hope this addresses the intention behind Amendment No. 74.

Amendments Nos. 99 and 100 seek to require the commission to keep the Secretary of State informed about the improvement of NHS care and adult social services as well as provision. Clause 49 is very broad. It is aimed at ensuring that the Care Quality Commission can provide any information and advice to the Secretary of State. It is vital that there are good lines of communication between the commission and the Secretary of State. The commission will build up knowledge and expertise while carrying out its functions which it may then draw on to provide advice to the Secretary of State. The clause will enable the commission to advise the Secretary of State on the improvement of statutory healthcare and adult social services. Such advice will be vital to the Secretary of State in developing the appropriate requirements to ensure that services are safe, of good quality and continue to improve.

As Clause 2 already requires the commission to perform its functions for the general purpose of encouraging improvement, it will need to advise the Secretary of State of relevant matters—that is, the improvement of services—to properly fulfil this role. I therefore believe that the Bill makes adequate provision to ensure that periodic reviews of PCTs and those acting on their behalf cover health promotion. Under Clause 49, the commission will be able to advise the Secretary of State about improvements as well as the provision of NHS care and adult social services. So I would ask the noble Baroness to withdraw her amendment.

Baroness Tonge
I thank the Minister for that response, which was very encouraging. I do not think that there is any more to be said. I am delighted that she agrees with me and that we now have it on record that Clause 49 is intended to include—I think she said—health promotion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker
moved Amendment No. 74A:

74A: Clause 42, page 20, line 29, after “review,” insert—
 “( ) demonstrate how this judgement will contribute to the Audit Commission’s assessment of local areas,”

The noble Baroness said: In moving Amendment No. 74A, I shall speak also to Amendments Nos. 75A and 75B. I wish to point out something that I have mentioned already on a couple of occasions. No material circulated for the recruitment of the chair of the Care Quality Commission made any mention of comprehensive area assessments, nor did they mention local government. A key driver for the commissioning and provision of social care—although not for its assessment—is the comprehensive area assessment for all English local authorities, which is audited by the Audit Commission. The comprehensive area assessment requires local authorities to state how they will address and improve the social and health outcomes of the population and to make an assessment of the prospects for improvement of health and social care. It monitors closely how well local organisations work together in order to achieve those outcomes.

The comprehensive area assessment is key to social care—its planning, assessment and monitoring. Its absence from primary legislation, as with so much of this Bill, appears to be downgrading key parts of social care. Therefore, these three amendments seek to restore that emphasis in primary legislation by requiring local organisations to show how their work will contribute to the comprehensive area assessment. Much of the work that CSCI does is done in tandem with the Audit Commission. In social care those two bodies look at many of the things which affect people’s lives. In a way, this is a redress of that.

The other matter which these amendments seek to probe is what exactly is intended by the word “periodic”. Comprehensive area assessments are annual; the word “periodic”, when last I looked in the dictionary, is ill defined. It does not state what the period is going to be. What are the periods to which “periodic” refers? I beg to move.

17:15:00

Baroness Thornton
I am grateful for the opportunity to explain how the commission’s reviews will contribute to the new comprehensive area assessments of local areas that will be introduced from April next year. As described by the noble Baroness, the CAA forms part of the new local government performance framework, set out in the Government’s 2006 local government White Paper, Strong and Prosperous Communities. It will be an important new step in producing integrated assessments of local services against common goals. The assessment will be carried out against the outcomes of local area agreements and a national set of 200 cross-government indicators. I agree with the noble Baroness that it is essential that the commission’s reviews feed into that assessment. She is correct to say that the work of the CAA is very important—and in her comment on the fact that CSCI’s work is already integrated into that, which gives us an indication of how that is likely to continue.

As my honourable friend the Minister clarified in another place when debating this Bill, where the indicators used in reviews under Clause 42 relate to local authorities working alone or in partnership with PCTs, other NHS bodies or other local service providers, they will form part of the single set of national indicators to be used in comprehensive area assessments. The commission will work closely with the Audit Commission to ensure that that happens. The national indicator set was announced in October as part of the Comprehensive Spending Review; the details of the indicators are being published by the Department for Communities and Local Government. There are 31 indicators covering health and well-being and adult social care which appear in the national indicator set and the NHS vital signs to support partnership working.

The Government have also commissioned the seven current inspectorates with a role in local authority assessment to work together to develop and test a methodology for carrying out CAAs, and they carried out a joint consultation on their proposals in November last year. This methodology has been trialled in four local areas in order to work through in more detail how the CAA will need to operate on the ground. The learning from this process will be reflected in a second joint consultation this summer, which will set out more detailed methodologies for the CAA, along with more structured piloting in a further 10 authorities. The first joint CAA judgments are then expected to be published by the relevant inspectorates, which will include the Care Quality Commission, in the autumn of 2009. This will be a transition year, with full implementation the following year.

I hope that the noble Baroness will be reassured from this that arrangements are being taken forward to ensure the Care Quality Commission’s assessments will be fully integrated into the CAA process and that she will therefore agree to withdraw the amendment.

Under current legislation, the Healthcare Commission and Commission for Social Care Inspection are required to review NHS bodies and local authorities on an annual basis. We have altered this to allow more flexibility, precisely because we believe that the commission is best placed to decide on the frequency of periodic reviews and the periods they cover. Of course, the commission will also want to take into account the timing of comprehensive area assessments in making that decision.

Baroness Barker
I thank the Minister for that reply. As with so many of her answers, although I realise that they are intended to be helpful, it sits against the backdrop of the Bill as it is. Anybody looking at Clause 42 sees a range of health providers in there and one mention of adult social services. The reason for tabling these amendments was, again, to try to rebalance the legislation towards social care. I am afraid that that must be done. It is vital that the CQC carries on the good work of CSCI with the Audit Commission, which has brought about a new level of measurement and assessment of social care services. That risks being overshadowed if it is not explicit in the legislation, which it is not.

I take the point about allowing a degree of flexibility, but were the CQC not to be involved on an annual basis with comprehensive area assessments then the resulting documents would be somewhat lacking. However, I have listened to what the Minister has to say and, on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe
moved Amendment No. 75:

75: Clause 42, page 20, line 31, leave out “NHS provider” and insert “provider of NHS care”

The noble Earl said: This is a probing amendment, prompted by genuine puzzlement. In Clause 42 we find the provisions which will enable the commission to conduct periodic reviews. Subsection (2) refers specifically to English NHS providers, for each of which the commission will have to review the healthcare provided, assess the provider's performance and publish a report. The question posed by this amendment is why this provision should not also encompass anyone who provides NHS care; in other words, any independent provider contracted to the NHS.

The Explanatory Notes make it quite clear that we are only talking about NHS bodies that provide services. That seems odd. Part of the point of the Bill is, at long last, to place the NHS and the independent sector onto an equal footing for regulatory purposes. We must look forward to Clause 45 to find anything relating to periodic reviews of non-NHS providers; but there we see that such reviews will rest entirely at the discretion of the Secretary of State. There is a regulation-making power in Clause 45 that would enable him to require the commission to review some or all registered service providers; some or all regulated activities; or particular aspects of a regulated activity.

I question why the review of non-NHS providers should be subject to approval in regulations, which may or may not be made, whereas the review of NHS bodies would be provided for in the Bill. We are not talking here about situations where an NHS trust subcontracts with an independent provider—my understanding is that those situations would indeed be covered by Clause 42—but where services are directly commissioned by a PCT or a GP from a private provider. What are the Government’s intentions as regards enabling the CQC to review these services? How will the CQC be expected to configure itself and to plan ahead if there is uncertainty about what services it is going to monitor and regulate? As I have said, I am genuinely puzzled by what the Bill appears to propose here and I therefore beg to move.

Lord Walton of Detchant
I was tempted to intervene a little earlier, when the noble Earl, Lord Howe, was challenging the linguistic quality of a provision. I have often been accused of being a pedant in relation to my defence of the purity of the English language. I feel uncomfortable when I read a split infinitive, and even more uncomfortable when someone says, “This data is”, not recognising that “data” is plural and that it should be, “These data are”.

I am uncomfortable, I have to say, with this ugly phrase, “NHS provider”, which might be construed as meaning that the provider is providing the National Health Service. I appreciate that it may be that in other parts of this and comparable legislation the term is used and has become hallowed by usage.

Having said that, I feel just a trifle uncomfortable with the amendment proposed by the noble Earl and the noble Baroness, Lady Cumberlege, because to replace “NHS provider” with “provider of NHS care” suggests that all that the NHS provides is care. As we were reminded just a few moments ago by the noble Baroness, Lady Tonge, the NHS is supposed to provide preventive medicine as well as care. I would feel more comfortable if the amendment suggested inserting “provider of NHS care and services”, which would clarify the matter much more satisfactorily.

The Countess of Mar
I am horribly confused by this term. I understood for a long time that NHS provider meant someone from the independent sector providing services to the NHS. That term became common parlance during the time when the noble Earl’s party was in government and I have used it frequently. I am all for plain English and would support it to the hilt, but we need a bit more clarification on what this phrase means.

Baroness Howarth of Breckland
My point is rather less esoteric but I feel that I have to make it. The noble Earl has given me the opportunity, yet again, to point out that the mixing of health and social care is unequally demonstrated in this chapter. The heading is, “Quality of health and social care”—and the notes to the Bill talk about that; then we go into “Health care standards”. Nowhere do we have social care standards, which are mixed up with “Reviews and investigations”. The whole chapter is a mish-mash of bits and pieces put together, which simply makes me feel, again, that social care is being relegated to a secondary status within the whole of the Bill. That is what this chapter reflects, and the various other esoteric points about the linguistics are a reflection of that greater, more strategic position.

Earl Howe
For the benefit of the noble Countess, I should say that “English NHS provider” is defined in Clause 92.

The Countess of Mar
That is why I am confused. I had a clear understanding of what “NHS provider” meant before this Bill came into being, but not now.

Baroness Thornton
I suspect that I am probably not going to clarify this any more happily than any other noble Lords, but I shall do my best.

My understanding of Amendment No. 75 is that it is intended to widen the scope of periodic reviews to independent sector providers of NHS care. I agree that, as the private sector is increasingly playing a role in helping to deliver effective public services, we must ensure they are subject to the same scrutiny and assessment, so that the public can determine whether they are getting value for money.

Under subsection (1) of Clause 42, the commission is already required to carry out reviews of the provision of healthcare by primary care trusts and by others under arrangements made by PCTs. This already means that the commission will review the provision of NHS care by independent providers as part of its review of how well PCTs are commissioning and providing services for their local populations. The same applies to local authority commissioning of adult social services under subsection (3).

In addition, under Clause 45, there is provision to extend the periodic review functions through regulations. This would enable wider reviews of independent sector provision to be carried out and it is our intention to use this clause to continue the quality ratings system that CSCI has introduced once the registration system is up and running in 2010.

The situation in the NHS is different. There is a large number of small, private sector NHS contracts and we do not think it would necessarily be appropriate that there should be reviews of every individual independent provider of NHS care; that would be hugely resource-intensive. It is more appropriate for small contracts to be managed by PCTs with an oversight by the commission through reviews of the provision of healthcare by and on behalf of PCTs. If necessary, we can also use the powers in Clause 45 to require the commission to conduct additional reviews of certain providers or of particular types of care.

Therefore, I think that the Bill provides scope to meet the intention behind Amendment No. 75 and I ask the noble Earl to withdraw it.

Earl Howe
That was a helpful reply from the Minister. It clarifies the Explanatory Notes which are not as clear as they should be on this clause. I shall reflect on what she has said, but it strikes me that if one takes Clause 42 in conjunction with Clause 45, these provisions are quite complicated. I am not at all sure what activities will be covered by which part of either of those clauses. I am sure that there is time enough for us to obtain greater clarity on this. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 75A and 75B not moved.]

Baroness Thornton
I beg to move that the Committee do now adjourn during pleasure until 5.42 pm.

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

[The Sitting was adjourned between 5.32 and 5.42 pm.]

The Deputy Chairman of Committees (Lord Tordoff)
In calling Amendment No. 75C, I should point out that if the amendment is agreed, I shall not be able to call Amendment No. 77 because of pre-emption.

Baroness Tonge
moved Amendment No. 75C:

75C: Clause 42, page 21, line 1, leave out subsection (4) and insert—
 “(4) The Commission shall exercise its functions under this section by reference to such indicators of quality from time to time devised by it and approved by the Secretary of State.”

The noble Baroness said: We do not like the way Clause 42 has been written, particularly subsections (4), (5), (6) and (8). The clause gives powers back to the Secretary of State which, to put it simply, we do not want him to have. The amendments would restore the position established by the Health and Social Care (Community Health and Standards) Act 2003. These subsections, being introduced in 2008, represent a diminution of the powers of CSCI and the Healthcare Commission. In particular, the Secretary of State is taking to himself powers that under existing legislation belong to the commissions. These changes will give further control to the Secretary of State, although I thought we were all for devolving power and decentralising these things. It does not look like it here.

The amendment to subsection (4) would reinstate the wording of the Health and Social Care (Community Health and Standards) Act 2003, but uses the phrase,

“by reference to such indicators”,

rather than “by reference to criteria” as in the Act. It is a small but important change. The amendment would ensure that the Care Quality Commission devised the indicators of quality and the Secretary of State approved them. In other words, both functions would not be held by the Secretary of State.

17:45:00

Although the Secretary of State can delegate this function to the commission under subsection (5), there would be no need to if he or she had confidence in the Care Quality Commission. As the Bill stands, it looks more like an arm’s-length body obeying the Department of Health than an independent body advising and informing the Secretary of State objectively and authoritatively.

There are good reasons for the Care Quality Commission developing indicators of quality and its own methodology for assessing performance: it would reinforce the commission’s independence from the Government; it would enable the public to have confidence in the credibility of the findings of the commission, which they would not have if it was under the diktat of the Secretary of State; the Secretary of State would not duplicate the expertise of the Care Quality Commission; and it would give credence to the Government’s statements that they are transferring the powers of the existing commissions into the Care Quality Commission, which we thought was their intention.

Taken as a whole, the clause changes the nature of the accountabilities. It is clear that the Care Quality Commission will be accountable for delivering its functions through annual reviews and a five-yearly fundamental review. The clause allows the Secretary of State to take on responsibility for those methodologies without having the responsibility of making it work. It would therefore undermine the credence of government statements that they would build on the experience and expertise of the existing commissions. We strongly feel that the Secretary of State has to trust the new Care Quality Commission to set the criteria. It is an independent body, and the general public would expect it to be so. I beg to move.

Baroness Cumberlege
My noble friend and I have amendments in this group, Amendments Nos. 77 to 81, 103ZA and 107, which refer to Clauses 42, 43 and 57. All of them concern periodic reviews and inspections.

Reviews have been an important tool for both the Healthcare Commission and CSCI. They have proved to be an effective way of improving standards and quality of services. These two regulators, because of their different remits and markets in which they operate, have fashioned different ways of inspecting and reviewing. The Healthcare Commission has a lot of detailed information, gained through the different reporting mechanisms in the NHS, with which to monitor performance. It not only reviews and publishes but returns to ensure that its recommendations bear fruit. In the foreword to its report, Learning from Investigations, Professor Sir Bruce Keogh wrote:

“I served as a member of the Healthcare Commission for the years covered by this report and know very well the benefit of the powers given to it by Parliament to carry out investigations on behalf of patients. Early interventions and the identification of root causes are the best way to ensure improvement. But the use of an independent and authoritative voice to highlight problems and suggest improvements also means that lessons are learned quickly and on a wide scale, whether they relate to the safety of maternity services, the support and care provided to people with learning disabilities or the management of infection in our hospitals”.
 

Professor Keogh concludes his foreword by saying:

“This report makes clear why it is in the interests of patients and the public to have a strong, independent, regulator—one that is empowered to decide when investigation is needed, undertake its work in a robust and professional manner, and publish its findings and recommendations for improvement”.
 

Sir Bruce is, of course, the medical director for the whole of the NHS. We could not have a more authoritative voice on the necessity for the regulator to be independent. The Government would do well to listen to their own doctor.

CSCI’s approach is different from that of the Healthcare Commission, in that it has a paucity of detailed information because it is regulating a wholly different service which is largely privately provided. Its approach has been to theme its reviews. Time to Care? was the first comprehensive review of the state of domiciliary care services. It highlighted problems for those receiving care, delivered in just 15-minute slots. A Fair Contract with Older People? brought the nation’s attention to the raw deal experienced by self-funders. State of Social Care in England 2006-07, published in January, highlighted the poor quality of life experienced by people excluded from services by the impact of rising eligibility thresholds set by councils. As a result, the Minister, Ivan Lewis, commissioned CSCI to conduct a review of the eligibility system and its impact on people, and to recommend changes. The review is due by September this year.

I am sure that this piece of work will be trusted, because it is being carried out unfettered and independent of the department. One of the core qualities to engender and maintain trust in an organisation is for that organisation to be open, transparent and honest. The opposition to Part 1 of this Bill and the changes that it proposes is due to the fact that all three regulators have been so successful in engendering trust. Their hallmark has been integrity and honesty. They bring to the attention of the Government and the nation, through independent reviews and inspections, the shortcomings and the concerns in certain services or institutions. They are to be trusted. We want our regulator to keep a watchful eye and, without fear or favour, speak out when matters go awry. If it is known that the Secretary of State is meddling in these affairs, the CQC will simply be seen as a poodle of government; it will not be respected or believed.

Before a review is undertaken, the regulator must decide what indicators of quality will be used as the benchmark against which services are to be judged. That is only fair and proper for those being regulated. The indicators are entirely a matter for the regulators. They know the business; after all it is their business, and not the business of the Secretary of State—some erstwhile politician here today and gone tomorrow. I am not being disparaging, but it is a fact well recognised; there is nothing in the present legislation to state that quality indicators are the province of anybody other than the regulator.

I am surprised that, through this Bill, by changing what is in current legislation, the Secretary of State should want to interfere and fetter the freedom of the new CQC. Action on Elder Abuse only a day or two ago welcomed CSCI's introduction of quality ratings for care providers. Through this work we are made aware that around 70 per cent of all registered providers have achieved an excellent three-star or a good two-star rating. We should rejoice in that. Only 3 per cent of all 24,370 providers fall into the poor category. They clearly need attention. The rest, 24 per cent, are adequate, with the remainder being either new services that have not yet been given a rating, or services that are subject to enforcement action by CSCI.

Commenting on the new scheme, Gary FitzGerald, chief executive of Action on Elder Abuse, said,

“We very much welcome the introduction of Quality Ratings for Care Providers as a concrete example of empowering older people and their families when making difficult and life changing decisions about care”.
 

He continued:

“We commend CSCI for this initiative. We now expect local authorities to use Quality Ratings to inform their commissioning processes and drive out services that tolerate poor practice and abuse. We will certainly be questioning those local authorities who consistently commission services from poor providers of care. Older people who use and depend on these services deserve nothing less”.
 

So here is an organisation which is going to use CSCI's work to improve standards. It clearly trusts the independent information provided and is being helpful to the Government. We are surely all at one in wanting the highest standards and the greatest love, care, and attention when we and our friends and relations are at our most vulnerable.

However, we strongly disagree with the Government on the erosion of trust caused by the Secretary of State in devising the indicators—Clause 42—and, in Clause 43, approving the frequency and period to which reviews relate, preventing the commission revising reviews without the Secretary of State's permission and, worse, giving a power to the Secretary of State to modify reviews. That is meddling—big time. Where is the independence when the Secretary of State modifies a review to suit his needs because the results are uncomfortable, or a general election or a by-election is on the horizon, or the Prime Minister is in personal difficulty? Why should we trust the new regulator if we know that the review has been modified to suit the Government's needs and that a spin has been placed on it?

I hope that the Minister will recognise that Clause 42(4) and (8)(a), and Clause 43(1)(b), (3) and (4) do no favours for the Government and that she will agree to our amendments which are simple in the extreme. All that is needed is a little red marker pen to strike a few words out of the Bill, thus giving the CQC the credibility which it will need.

Amendment No. 103ZA is slightly different. In Clause 57 the regulations—the Secretary of State, not the CQC—may prescribe the frequency of inspections prior to registration, the manner in which they are to be carried out and the type of person who is authorised to conduct them. Again, this is serious interference and is not in current legislation. Why does the Secretary of State want to be involved in the detailed operation of the day-to-day running of the commission's business? I should have thought he already has enough to do. Is he really going to say who should be undertaking the inspection? Will he decide what professional qualifications are necessary? If so, there is a very real danger that the experts by experience, who are so valuable in the current CSCI system, would be ruled out of order. Earlier, we debated the vulnerability of elderly people in relation to the complaints procedure. It is often the experts by experience who can detect what is wrong and report it on behalf of the individual concerned. If the Government wish to stipulate by whom and how inspections prior to registration should be carried out, there is hardly any need for this Bill. It could be done through a contract with the Department of Health. However, I do not believe that is what the Government want. I believe they want a successful Care Quality Commission that is respected and trusted throughout the land.

On this clause, all the Government have to do is to amend subsection (1) to read, “The Commission shall determine”, rather than the present wording which is, “Regulations may prescribe”. I hope that the Minister agrees that is a splendid idea and that it fulfils the Government's desire for an independent regulator.

18:00:00

Baroness Thornton
I have listened carefully to the debate and I wish to reassure Members of the Committee by repeating that the Government are committed to the independence of the Care Quality Commission. As we have discussed throughout the drafting of the Bill, we have sought to strike the right balance between ensuring that the commission is able to act independently and provide independent challenge while being a key player in the wider health and social care systems. I fear that this is one of the areas where we may disagree about the balance.

The new commission will have a wider range of enforcement powers that it will be able to use to take independent enforcement action against registered providers when they do not meet the required levels of safety and quality. For the first time, these will also apply to NHS providers. This represents a significant increase in independence compared with the Healthcare Commission or CSCI. We have sought to explain that the work and independence of CSCI and the Healthcare Commission will be carried forward in how the commission will do its work, including, for example, the rating system as explained by the noble Baroness.

In terms of the periodic reviews in Clause 42, we believe that it is important that the Secretary of State should retain a role in setting the indicators. This is to ensure that they are an accurate reflection of the outcomes the Government have committed to delivering in response to what patients, service users and the public have stated they want health and adult social care services to deliver.

We intend these indicators to be outcome-focused, covering the full range of health and adult social care services rooted in the department’s strategic objectives. The focus on outcomes provides the flexibility for local organisations to make decisions on priorities for their local communities. For example, we have already discussed the new comprehensive area assessments and how essential it is that the commission’s reviews feed into them. The power for the Secretary of State to set the indicators will help ensure that the reviews support assessments across health and well-being and adult social care, and contribute fully to comprehensive area assessments.

The new commission will, from the very beginning, be an integral partner in agreeing with the Secretary of State the right set of indicators to assess and evaluate both health and social care organisations in its reviews. The commission will be responsible for drawing up the methodology by which bodies will be assessed and evaluated, and will be able to advise the Secretary of State on what indicators would be appropriate. However, I have reflected on these amendments and confirm that it is our intention to delegate the function of setting the indicators of quality for English NHS providers to the commission from the outset, in recognition of its role in enforcing the registration requirements providers have to meet. In doing so, it will need to draw on the indicators used to assess commissioner performance so as to align with the outcomes that patients and the public expect.

Baroness Tonge
Before the Minister continues, I want to raise two points. She said that the quality indicators would be for the English health service. What about social care? We always come back to this. Does she mean health and social care in England? That is my first question.

Secondly, we are again talking about indicators of quality. I ask Members of the Committee to look at Clause 42(4) and (5). Subsection (4) states,

“a body’s performance is to be by reference to such indicators of quality as the Secretary of State may devise or approve”.

That means that if we had a real dictator of a Secretary of State who thought that he knew the lot, he would devise and approve all the quality indicators, but if we had a really weak Secretary of State who was not terribly interested in this and was due to be moved to another position, under subsection (5) he could direct the commission to,

“devise indicators for the purposes of subsection (4) and submit them to the Secretary of State for approval”.

This is a muddle and it is not clear how independent the Care Quality Commission is going to be in devising indicators of quality.

Baroness Thornton
We have already had several discussions about this. I realise that some Members of the Committee wish to strike out any role for the Secretary of State, and are therefore discussing the levels of involvement, influence and how this will work when the commission is established. The point is that, regardless of the character of the Secretary of State, the Government are committed to certain outcomes that we will need to ensure are integrated into the work of the new commission. We are seeking to find a way in this Bill to ensure that that in fact happens.

Baroness Cumberlege
I am not opposed to subsection (5). We are saying that the Secretary of State may direct the commission to devise the indicators; that is fine. We do not like, as per our amendments,

“the Secretary of State may devise”,

which we would delete. We do not want him to devise, but we are happy that he may request that the commission do so.

Baroness Thornton
I appreciate that that is the point we are discussing.

To repeat what I said about the indicators, it is our intention to delegate the function of setting the indicators of quality for English NHS providers to the commission from the outset. We are only delegating to the NHS because local authorities will use the CAA indicators to set their quality indicators. In doing so, we will need to draw on the indicators used to assess commissioner performance so as to align with the outcomes, as I have said. We are therefore unconvinced that Amendments Nos. 75C and 77A, proposed by the noble Baroness, Lady Tonge, and Amendments Nos. 77 and 78, proposed by the noble Earl, are necessary.

I am sure that Members of the Committee would agree that it is important that the methods by which the commission will assess performance when carrying out a periodic review are transparent. For this reason, we have included a requirement for the commission to publish its methodologies and indicators used in periodic reviews. We are requiring the method statement and indicators devised by the commission to be approved by the Secretary of State, so that he can maintain oversight and ensure coherence. In particular, these provisions will help the Secretary of State to ensure that the methods proposed do not place an unreasonable burden on those being assessed. Amendments Nos. 77B and 77C are therefore unnecessary.

Similarly, I would like to explain the rationale behind the requirement for the Care Quality Commission to seek the Secretary of State’s approval before publishing the frequency of periodic reviews and the period to which they will relate. This is separate from the issue of commencement of special reviews, which we will be coming to later. We agree that the ability for the commission to programme its reviews and studies independently is essential. Under current legislation, the Healthcare Commission and the Commission for Social Care Inspection are required to review NHS bodies and local authorities on an annual basis. We have altered this to allow more flexibility, as I have previously explained, precisely because we believe that the commission itself is best placed to decide on the frequency of periodic reviews. 

However, there must be effective communication on this matter between the Secretary of State—ultimately responsible for the performance management of the NHS—and the commission. It will surely be beneficial to all concerned if the commission and the Secretary of State agree on the frequency of reviews. For this reason, rather than anticipating that the Secretary of State will interfere, we have included the requirement for approval from the Secretary of State, which Amendments Nos. 79, 80 and 81 seek to remove.

Indeed there needs to be a dialogue between the commission and the Secretary of State, and between the commission and other relevant people such as health and social care service providers and other regulatory authorities, on what activity is appropriate and what issues should be seen as priorities. Clause 77 should ensure that service providers are aware of the work programme that the commission will be undertaking. This requirement to consult will be particularly important because there has been some criticism about the burden that may be placed on providers, particularly the NHS, where studies or reviews require new information to be collected. We wish to ensure that the work of the commission does not impose an excessive burden on those being regulated, and therefore has a proper balance.

We have discussed these issues with both CSCI and the Healthcare Commission during the preparation of the Bill, and they agree that this is an appropriate arrangement. I therefore cannot agree to Amendment No. 107. Crucially, the Secretary of State is given no power to prevent the commission undertaking the activity it decides is appropriate. The commission may undertake any investigation, regardless of whether it is in the proposed programme, if it considers there to be a risk to the health, safety or welfare of persons receiving health or social care. I am unable to find where in the Bill there is a power for the Secretary of State to modify the CQC’s reviews and reports, as referred to by the noble Baroness.

Baroness Cumberlege
Perhaps I could help the Minister on that or perhaps I have misread it. Clause 43(4) states:

“The Commission must publish the document”—
 

the review—

“as approved or modified by the Secretary of State and as revised from time to time”.

Baroness Thornton
That is not my understanding, but I shall look at that to determine whether we are talking about the same issue. As I have already said, the commission may undertake any investigation, regardless of whether it is in the proposed programme. As well as carrying out reviews, the commission will inspect providers for compliance with the registration requirements. We recognise that in most instances, the commission will be best placed to decide how often it carries out inspections to assess compliance, who should carry them out and how they should be carried out. Different approaches to inspection may be required for different services or different issues.

However, as we stated in the delegated powers memorandum, we believe that it is appropriate to make provision for the Secretary of State to be able to prescribe how certain inspections are to be carried out in particular circumstances. This might be to ensure that the assessment of compliance is consistent with government policy and priorities. We envisage that in the majority of cases the commission and the Secretary of State will agree these matters jointly. The provisions debated here are intended to ensure transparency and coherence for service users, patients and the public, as well as providers, and to minimise the burden on providers. I agree wholeheartedly that to be effective, the new commission must be able to act independently.

Clause 43 refers to the frequency of reviews, not the reports themselves. I can see where the confusion has arisen and I shall seek to clarify that to make sure that we are correct and on the same page on that issue. Following my explanation of how the Bill has been drafted to set out the appropriate balance of independence, I hope that the noble Baroness feels able to withdraw the amendment.

Baroness Howarth of Breckland
I understand absolutely what the noble Baroness is saying in that response. I have no problem with the Secretary of State having some influence and involvement. Anyone who has worked in any authority knows that, ultimately, you have paymasters and you have to work with them, which works quite well.

I am concerned about the implication that, because the regulator may not be proportionate in its regulation—which is what the reply suggested—the Secretary of State would therefore need to have oversight, which is very unfortunate. If anyone knows about the usages and the work of providers at the local level, it is the regulators through their regulatory inspections. I only hope that that was not implied in the noble Baroness’s response.

Baroness Thornton
Indeed, that is not implied. I think that it has been said several times that we see CSCI’s model of regulations as the way forward.

Baroness Cumberlege
I thank the Minister for that. Certainly, I feel that the balance is totally wrong in the way that the Secretary of State seems, through this Bill, to have such control over what is termed an “independent regulator”. I shall certainly read what the noble Baroness and other Members of the Grand Committee have said, and we may want to return to this issue.

Baroness Tonge
I, too, am not a very happy lady. There is still a conflict between subsections (4) and (5) of Clause 42, and I agree with the comments of the noble Baroness, Lady Cumberlege. If the commission is going to be independent, this has to be sorted out. However, for the time being I will retreat and prepare to charge on another occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

18:15:00

[Amendments Nos. 76 to 78 not moved.]

Clause 42 agreed to.

Clause 43 [Frequency and period of review]:

[Amendments Nos. 79 to 81 not moved.]

Clause 43 agreed to.

Clause 44 [Special reviews and investigations]:

Baroness Barker
moved Amendment No. 82:

82: Clause 44, page 21, line 33, leave out subsection (1) and insert—
 “(1) The Commission has the function of carrying out special reviews or investigations, and must carry out any specific review or investigation requested by the Secretary of State.”

The noble Baroness said: I shall speak also to Amendments Nos. 83, 87, 89 and 101A. Once more I shall try to convey to the Minister the scope of social care which this new body is going to have to regulate, not just in terms of the number of providers but in terms of the differences between client groups. I refer to the needs of people with learning disabilities, older people and those with mental health problems. This is an enormous, disparate and complex set of objectives to meet. If the legislation goes through, one regulator will have to suffice. In this set of amendments we seek to translate to the new body something which has worked effectively for CSCI, and that is the commissioning and production of special reviews.

CSCI plays a uniquely strategic role in social care. It is one of the few bodies that gets to draw comparisons between different providers working in different sectors. I am not sure whether it is possible to convey this to noble Lords, but my sense is that in the NHS, people have a clear understanding of what is going on with other providers of healthcare. That is not the case in social care. Some service providers are very small and have little connection even with other providers in their own locality. Indeed, I have yet to come across a PCT that can produce a totally comprehensive list of the social care provision in its own area, a list that takes into account all the small and voluntary providers operating in the area. What CSCI does in relation to regulated services has been uniquely important to the scope and depth of its reports. These amendments would require the new regulator to carry on with the function of commissioning and conducting special reviews.

Special reviews have become a method of addressing issues which, although serious, often go unnoticed. The noble Baroness, Lady Cumberlege, referred to a number of its reports, one of the most effective of which was published earlier this year. It demonstrated what people in social care felt was the case, but often could not prove: by and large, local authorities are commissioning care solely for people who are in acute need. Basically, they are not commissioning for those in any of the other four categories in their access to care services criteria. It was a tremendously important piece of work.

Through its special reviews, CSCI has not only set out the scope of what is going on, but has assisted in developing evidence-based social care, which is an extraordinarily difficult thing to do. It requires the establishment of data gathering over long periods, and CSCI has begun to do this work. Under the Bill, the commissioning and production of special reviews is to be reduced to a “power”: that is, it is something which the commission has the power to do but is not required to do. My amendments, particularly Amendment No. 101A, would change that power into a function. The noble Lord, Lord Darzi, and I had an interesting debate on the first day of our proceedings on the meaning of “functions” and “objectives”, but for the moment I accept that the Bill gives the Care Quality Commission functions as opposed to objectives. Given that, the amendment provides that the production of special reviews should be a function.

In addition, the amendments make it clear that whoever is calling the tune on deciding the quality measures for outcomes, the commission will be able to commission its own special reviews and will not be confined solely to matters deemed to be important by the Secretary of State. Moreover, under Amendment No. 83 it will have the resources to enable it to do that. Having commissioned those reviews, it will have the power to make recommendations to the Secretary of State. Whatever one’s view of the preceding group of amendments, the noble Baroness, Lady Howarth, was right to point out that what CSCI knows uniquely in relation to providers should enable it to make recommendations to the Secretary of State. I beg to move.

The Deputy Chairman of Committees
I should point out to the Committee that were this amendment to be agreed, I should not be able to call Amendment No. 83 because of pre-emption. The Committee will now stand adjourned during the Division for 10 minutes.

[The Sitting was suspended for a Division in the House from 6.23 to 6.33 pm.]

Baroness Howarth of Breckland
I added my name to this amendment. The Government should have no difficulty at all in accepting it on two clear counts. One is that the world has changed significantly since the Bill was first published. We now have the declaration by the Government that social care will stream up the agenda, that there will be a number of reviews and that the difficult questions that we have all asked several times—including the Wanless review—will be asked again with, I hope, some outcome this time. The commission’s carrying out this function will be extremely helpful.

Secondly, when the commission was first proposed, it was said that this kind of work would not be done at the beginning because it would be settling down. We have now accepted that it will settle down rather faster than was originally thought. Let us hope that that is so and that the commission can get on with this work. I am more familiar with the Commission for Social Care Inspection than with the Healthcare Commission but they both hold extraordinarily valuable information across the health and care sectors and it would be a huge pity if they did not get on and use that. There is now experience about working together. They have produced their document about duplication which outlined the type of work that they were doing together and we all know of the various reports that have been produced jointly. As I said, I cannot see why the Government would have any problem at all in accepting this amendment.

Lord Harris of Haringey
I am not sure on what grounds the Government could oppose the amendments. They seem eminently reasonable. What is at issue is the ability of the commission to carry out thematic reviews, particularly in the social care area. For the reasons outlined by the noble Baroness, Lady Barker, about the sheer variety of social care establishments of one sort or another that there will be, the ability to focus on and highlight particular types of issue in this way, and produce recommendations, should be an essential part of the work of the new Care Quality Commission.

Given that part of what needs to be done is to give people confidence that this new body will look clearly at the social care as well as healthcare parts of its remit, conceding on this amendment would help give people confidence that social care will not be the poor relation in this new family.

Baroness Thornton
As Members of the Committee have so effectively set out, because of its role in regulating both public and independent sector provision across the health and adult social care sector, the commission will be ideally placed to carry out reviews of the quality of care delivery across an entire clinical or care pathway, as my noble friend Lord Harris explained so well.

Clause 44 allows for exactly that, and I agree that this is a crucial role for the new commission, hence the clarification in Clause 2(2)(b) that the commission’s functions include its review and investigation functions under Chapter 3 of the Bill. I therefore believe that the provisions in the Bill as drafted already achieve the intention behind Amendment No. 82.

Clause 44 also does not limit what special reviews and inspections may relate to. It allows the commission to look at any aspect of NHS or adult social care provision. As such, I believe that reviews or investigations could encompass any of the types of issues that might arise from the commission’s agreed objectives, as proposed by Amendment No. 87. Not only will the Care Quality Commission have the freedom to determine when and how to conduct reviews or investigations under this clause but also it will have greater powers than the Healthcare Commission currently has. The new commission will be able to act directly where a registered provider is not meeting the levels of safety and quality that users are entitled to expect. Where initial action appears to be having no effect, there will nearly always be room to escalate the matter and introduce stronger sanctions to suspend or cancel registration.

As discussed, the commission might act following an inspection of an individual provider, or on concerns that arise as a result of a wider periodic or special review. We would of course also expect NHS organisations to take account of broader issues arising from the commission’s reviews and investigations. It should surely be for the NHS bodies to determine the most appropriate action to take, taking account of local needs and priorities. Primary care trusts, as commissioners of local services, and strategic health authorities as performance managers will hold the NHS to account for the quality of provision and whether it meets local needs.

Clause 49 already provides the necessary channel for the commission to escalate concerns, or make specific recommendations about the actions that it feels the Secretary of State should take to address those concerns. That could be particularly helpful where the commission has concerns across a health and/or adult social care economy, where the commission cannot already act itself. That is an issue that the Healthcare Commission, in particular, has raised. I realise, however, that Members of the Committee remain unconvinced that the wording of Clause 49 is explicit enough, and I am therefore happy to look again at how we can clarify that the commission is able to make recommendations to the Secretary of State on issues including—

Baroness Tonge
Before the Minister sits down, I wanted to draw to her attention why we think that it is so important that the Care Quality Commission looks at the subsequent action of a PCT, for example, after a budget allocation for a specific use. It has been brought to my attention recently that £14 million was allocated for contraceptive services to the primary care trusts. It was not ring-fenced. No targets were attached and it was used by some primary care trusts to make up their deficits, even though we know that contraceptive services are deteriorating and doctors and nurses are no longer able to find training to do the work because of the closure of clinics. It is assumed that the GPs do this work, but most of them cannot train and they have not done any training for long-acting reversible contraceptives. Patients therefore no longer have the choice of contraceptive they used to. So it is terribly important that, when budgets are allocated for a specific use but not ring-fenced, the Care Quality Commission goes back and ensures that they have been used for that purpose.

Baroness Thornton
We contend that the Bill already provides for the Care Quality Commission to be able to undertake exactly such reviews if it feels the need to do so. I was saying that we would agree to consider Amendment No. 89 and clarify how the commission is able to make recommendations.

I hope that I have been clear on the importance we attach to these reviews and investigations. Of course, the commission has a whole range of important functions apart from its review functions, not least establishing and operating the registration system. The commission will have to decide how best to allocate its resources appropriately in order to fulfil all its statutory obligations across health and social care.

I understand that Amendment No. 83 stems from a concern that the commission’s operating budget may reduce its capacity to undertake this kind of work, particularly in relation to social care. However, the operating envelope that we have agreed for the commission in 2009-10 supports our commitment to rationalisation and reduction in unnecessary regulatory burdens across government. This is based on the findings of the Hampton review and the work of the Better Regulation Executive.

Both the Healthcare Commission and CSCI are operating within a similar budget in 2008-09 and have already achieved significant reductions in their running costs without sacrificing their programmes of reviews and studies. There is no reason why the Care Quality Commission’s budget should restrict its ability to carry out this activity as well, for either health or social care.

Members of the Committee should note that, as a last resort, it would be possible under Schedule 1 for the Secretary of State to attach conditions to the funding he provides to the Care Quality Commission. However, fundamentally, it should be for the commission, as an independent body, to determine how it allocates the resources available to particular functions. I hope that these reassurances will be sufficient to allow Members of the Committee to withdraw their amendments.

Baroness Barker
I thank the Minister for her reply, particularly for agreeing to consider Amendment No. 89 on the CQC’s ability to make recommendations to the Secretary of State. I was somewhat disappointed by her lack of response to the rest of the amendments in this group, particularly Amendment No. 101A on it being a function rather than a power.

At one stage I believed that we may have moved on—

Baroness Thornton
I did not respond on Amendment No. 101A because it is not grouped with these amendments. However, I will do so if the noble Baroness wishes.

Clause 50 enables the commission to undertake or promote studies carried out by other people, which are intended to result in recommendations for improving statutory health and adult social services. There will be occasions when the commission needs to take this broader view, and we agree that this is an important additional role for it. This is why we have included Clause 50, which allows the commission to take on this role. I reassure the Committee that carrying out studies will continue to be a function of the commission. Under Clause 2, it will be required to perform its functions for the general purposes of encouraging the efficient and effective use of resources. Studies that the commission carries out under Clause 50 will be one way in which it can achieve this. I hope that that addresses the intention behind Amendment No. 101A.

Baroness Barker
I am not sure. I will have to study carefully the noble Baroness’s words in Hansard, although I welcome the thrust of her response.

At times we appear to be inching towards agreement, but at other times we are as far apart as ever. In her response, the noble Baroness again talked about the fact that registration is a new process for the NHS and therefore a novel burden for the service, but it is not new for social care. One of the ways that social care has gone beyond that is in the form of regulation set out in these amendments. Given that, perhaps the noble Baroness will understand, even if she cannot agree, that we are concerned that social care should not be pulled backwards by the process envisaged for it.

Having said that, I thank noble Lords who have spoken in support of these amendments. I take some heart from what the noble Baroness has said, but I believe that we may return to this matter at some point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 83 to 89 not moved.]

18:45:00

Baroness Barker
moved Amendment No. 90:

90: Clause 44, page 22, line 9, at end insert—
 “( ) The Commission shall commence its functions under this section on the same day that the Commission commences its functions under section 2.”

The noble Baroness said: The issue addressed by this amendment is one that has seized the minds of people involved in social care more than many others. We have talked at length in considering the last two groups about the expertise which already exists in social care to conduct special reviews and the importance of them in influencing outcomes for those receiving services. This amendment seeks to ensure that the CQC is able to conduct special reviews from day one of its inception rather than having to wait for a period of one year, as provided in the Bill.

When this matter was discussed in another place, the Minister of State for Health said:

“The new Care Quality Commission will be able to conduct urgent reviews on issues that it thinks are a matter of safety or quality in the initial 12 months phase. However, given the substantial registration process that will need to be established within that year, we believe that there should be a transition period during which it does not conduct special reviews”.—[Official Report, Commons Health and Social Care Bill Committee, 17/1/08; col. 310.]

In the world of social care, that comment has been greeted with a great deal of scepticism. That scepticism goes back to two reasons to which noble Lords have already referred at different points in our deliberations. I have said before that Ministers underestimate the scope and the pace of change going on in the commissioning and provision of social care services. Ministers have underestimated the cumulative effect of their own policies such as Putting People First, the introduction of individual budgets and so on. I also think that they underestimate how difficult will be the rolling out of individual budgets from the group which already has them—those with learning disabilities who have a lot of support—to other client groups. Given that, there is potential not just for very bad practice on an individual basis, but for patterns of bad practice to form in the coming two years. It is not right to leave individual recipients of care at some risk because the regulator is not up and fully functioning; nor is it right to leave providers for that same period. A credible reason for the one-year delay has not been given.

I refer to the points made to the Committee by the noble Lord, Lord Patel of Bradford. He was confident that he would carry forward his staff and their existing expertise into the new commission. If the Bill stays as it is, with a year-long bar on the performance of special reviews, the new commission is at risk of losing the expertise of staff transferred from CSCI. I beg to move.

Earl Howe
Amendments Nos. 226 and 227, grouped here in my name, are designed for a purpose identical to that of Amendment No. 90. I simply add my firm support for everything which the noble Baroness has just said. It is not for the Secretary of State to fetter the operational freedom of the commission in relation to special reviews. If the commission decides to limit its work to certain areas during the first few months of its existence, that should surely be a matter for it. Once Ministers start saying that they will not allow the CQC its statutory functions in a manner that the chief executive believes to be necessary, we are into some very unwelcome political manipulation of a kind which Ministers have foresworn in our debates up to this point. I hope that the Minister will reassure us on this important point of principle.

Baroness Howarth of Breckland
It is a question of whether you see a glass half full or half empty. When I heard the statement in the other place, I thought that there had been some relenting, which is why I said previously that I had assumed that it was the second part of an acceptance that it would be a function of the commission to be able to report. I hope that my understanding is true and that reporting will be a function, even during the early stages of the new commission’s existence. Having lived through more reorganisations than most, I know that one can be distracted from the main purpose of life by reorganisation. A broader issue on which to keep moving forward keeps people’s minds alive. They know that they are helping their community and progressing the work overall. I only hope that my perception of the glass being half full is right.

Baroness Murphy
I support the amendments. I do not see the point of fettering the commission. It is a body that has to make many important decisions in the first year—we all understand that—and it should decide on its own programme. It makes no sense for it to be fettered right at the outset.

Baroness Thornton
Our debate on amendments tabled in relation to Clause 44 has been useful. I have listened carefully to the views just expressed, particularly the wisdom of the noble Baroness, Lady Howarth. We have discussed the remit of reviews and I have already confirmed that reviews and investigations will be one of the main functions of the Care Quality Commission. The commission will be able to carry out reviews into publicly funded or commissioned services on both specific and more general issues.

In both your Lordships’ House, and in the other place, we have heard much debate on the commencement of these provisions. It had been our intention to delay the commencement of the power to carry out special reviews and investigations for a year, other than to investigate matters that could pose a risk to the health, safety or welfare of people receiving health or social care. This was so that the commission and NHS providers could fully focus on ensuring that the new registration system would be up and running from 2010. It was certainly not because there was any doubt about the value of the reports the existing commissions have produced. However, having reflected on the concerns raised by so many in your Lordships’ House and elsewhere, including from the current commissions, I am pleased to be able to confirm that this is no longer our intention. The commission will decide for itself what reviews are necessary from the outset, taking account of the resources available to it and the need to fulfil all its statutory functions.

As the Committee will appreciate, there is actually no need to amend the Bill to achieve this: we simply need to commence the clause on the date that the commission takes on its other functions. I hope that by placing on the record our intention to commence the provisions relating to special reviews and investigations at the same time as it takes on its other functions—from April 2009—the amendments may be withdrawn.

Baroness Barker
Result! I am delighted and I thank the Minister for having listened. It is important to say that this was not just about people trying to protect their own backs. It stemmed from a genuine concern. The Minister’s words will be met with a great deal of pleasure throughout the whole world of social care. I thank her very much and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 91 not moved.]

Clause 44 agreed to.

Clause 45 [Power to extend periodic review function]:

Baroness Barker
moved Amendment No. 91A:

91A: Clause 45, page 22, line 24, at end insert—
 “( ) After conducting a periodic review of regulated activities by regulated social care providers, the Commission must award and publish a performance rating.”

The noble Baroness said: This is a probing amendment designed to elicit from the Government their view about the continued publication of performance ratings. It is often extraordinarily difficult for consumers of social care to find information about the quality of the care that they seek. The publication of star ratings has been of some benefit. Albeit that they are crude and limited in some cases, the general public and consumers of social care have found them helpful.

Paragraph 205 of the explanatory notes states that it is envisaged that in some cases the evaluation might be in the form of a comparative rating such as a star rating. That is somewhat at odds with the statement in paragraph 1.17 of the consultation document, which states:

“The Care Quality Commission will carry out periodic reviews that will build on the good work of the current commissions in developing …Quality”—

star “Ratings of care homes”. That is confusing, and I move this amendment so that the Minister can tell us the Government’s intentions. I beg to move.

Baroness Thornton
I recognise how important it is that service users, especially those who self-fund and arrange their care themselves, have reliable, comparative information on the services that are available to them to enable them to make informed choices. This is especially important for vulnerable people who are making decisions that will have a long-term impact on their future.

Clause 45 allows for periodic reviews of individual regulated activities. In particular, we intend to use regulations under the clause to continue the assessment system that CSCI has recently introduced for social care providers—its “quality ratings”—so that there is no break in the process of the transfer over to the Care Quality Commission. Indeed, until the new registration system is up and running in 2010, the ratings will continue under the current arrangements.

The reasoning behind determining in regulations whether the commission is required to publish a report of its review or to assess the performance and publish reports of its assessment is important. In some cases, it may be enough to simply make the report of the review available—for instance, where we want the commission to review only the activity that an independent sector provider is carrying out for the NHS. In these cases, the level of provision may not warrant any kind of judgment on the overall level of quality as the results of the review will speak for themselves. However, in relation to social care, as I have already said, we intend to make regulations which will allow the continuation of CSCI’s quality ratings. I hope that by placing this on the public record, the noble Baroness, Lady Barker, will be reassured that the provisions allow for quality ratings and that it is our intention to continue them.

19:00:00

Baroness Barker
The Minister is on a roll. That is a very welcome announcement. For absolute clarity, can I take it that the commencement of the clause will also be April 2009?

Baroness Thornton
Yes.

Baroness Barker
With that announcement, I am very happy to beg leave to withdraw the amendment. I thank the Minister for her answer.

Amendment, by leave, withdrawn.

Clause 45 agreed to.

Earl Howe
moved Amendment No. 92:

92: After Clause 45, insert the following new Clause—
 “Failings by English NHS providers
 (1) This section applies where the Commission conducts a review under section 42 or 45, or a review or investigation under section 44, in respect of an English NHS provider.
 (2) If the Commission considers that the English NHS provider is failing to discharge any of its functions to an acceptable standard, then subject to subsection (3) the Commission must—
 (a) inform the Secretary of State of the fact, and(b) recommend any special measures which it considers the Secretary of State should take.(3) If the Commission considers that the failure is not substantial, it may instead—
 (a) give the English NHS provider a notice under subsection (4), and(b) inform the Secretary of State that it has done so.(4) A notice under this subsection is a notice which specifies—
 (a) the respects in which the Commission considers that the English NHS provider is failing,(b) the action which the Commission considers the English NHS provider should take to remedy the failure, and(c) the time by which the Commission considers the action should be taken.(5) If the Commission recommends that the Secretary of State should take special measures in relation to the English NHS provider, the Commission must, if the Secretary of State so requests—
 (a) conduct a further review under section 44 in relation to the English NHS provider, and(b) include in its report under subsection (4) of that section a report on such matters as the Secretary of State may specify.”

The noble Earl said: This amendment is very much in the same vein as Amendment No. 89, which the Minister kindly said that she would take away and consider. It has been prompted by puzzlement on my part as to why under Clauses 46 and 47 the commission is to be given powers in relation to failings by English local authorities and Welsh NHS bodies but is not being given similar powers in relation to failings in relation to English NHS bodies.

The key point here is that when the CQC has conducted a review or investigation of an NHS trust, it may have uncovered issues that need to be addressed not only by the trust but by the wider NHS community. In those circumstances, where patients are seriously at risk and there are lessons to be learnt of general applicability, the CQC should have the power to make appropriate recommendations to the Secretary of State. It may not be right in certain situations for the commission to suspend or cancel a provider’s registration. That course of action could well be thought not only too draconian but also impractical.

If, for example, as at Northwick Park hospital, failings are uncovered in maternity services, the closure of the whole unit is simply not an option, bearing in mind the need for expectant mothers in the locality to have a hospital in which to give birth. On the other hand, there could well be a case for the commission to say, “We have inspected the maternity unit at Northwick Park and uncovered significant failings. We believe that these have relevance for the local health economy and the wider NHS. Here are our recommendations for the Department of Health to promulgate as necessary”. Under the Bill as drafted, it does not appear possible for the commission to do that—it can only publish reports.

That is a significantly less far-reaching power than the power currently given to the Healthcare Commission. For that reason alone, the power should be reinstated here. Again, however, it looks decidedly odd that the commission is to be able to do everything that I have described when it has investigated a Welsh NHS trust or an English local authority, but not when it has investigated an NHS trust in England. I hope that with that explanation, the Minister will consider the amendment in a positive light. I beg to move.

Baroness Thornton
Amendment No. 92 seeks to give the commission the power to recommend that the Secretary of State takes special measures in relation to significant failings it identifies in an NHS body, which reflects existing provision in Section 53 of the 2003 Act. Indeed, we have had discussions in a similar vein on Amendments Nos. 40 and 89. I similarly hope that I can persuade the Committee that Amendment No. 92 is not necessary.

As I have explained, the commission will have significantly greater powers to intervene directly with NHS providers than is currently the case, because it will fall within the ambit of the registration regime. It will therefore be able to apply conditions to registration, issue warnings or penalty notices and, in serious cases, suspend or cancel registration. I have also set out that there is nothing preventing the commission, as part of its duty to keep the Secretary of State informed under Clause 49, from recommending that the Secretary of State takes particular measures if it feels that that is necessary. I therefore believe that the powers in the Bill closely match what is being proposed in this amendment. However, in line with our intentions to create a more intelligent regulatory environment, streamline the system for providers and ensure that issues are dealt with where they arise rather than centrally, the commission must also act in the wider context of NHS performance management.

I have described the assurance framework we are putting in place for achieving world-class commissioning to ensure that PCTs are effective and well supported in this aspect of their work, and the emphasis that this puts on the role of the SHAs in strengthening performance management in the NHS. Where the commission takes action in relation to a breach of registration requirements, it is required under Clause 35 to notify the relevant PCT and SHA so that it can take action to prevent the issue escalating. As discussed, we would also expect it to take account of the results of periodic reviews if they give cause for concern. I believe that these strategies will help to ensure that services improve locally and will be much more effective than intervention from the centre.

I hope that that satisfactorily explains why we do not believe that the clause proposed by the noble Earl is necessary and that, therefore, he will withdraw his amendment.

Earl Howe
I thank the Minister for her reply. It is reassuring to hear that the interpretation to be placed on Clause 49 is consonant with the intention behind the amendment; namely, that that clause confers a duty on the commission to keep the Secretary of State informed and a power to advise the Secretary of State on matters that it wishes to bring to his notice. I hope that that will fulfil the same objectives as I have outlined. I shall study the Minister’s reply and, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 46 and 47 agreed to.

Clause 48 [Transfer and amendment of functions under Mental Health Act 1983]:

[Amendment No. 93 not moved.]

Baroness Murphy
moved Amendment No. 94:

94: Clause 48, page 24, line 31, at end insert—
 “( ) The Commission shall in its annual report demonstrate that visits to relevant patients under section 120 of the MHA are sufficiently regular to fulfil the Commission’s duty to ensure that the rights and welfare of those patients are safeguarded and promoted.”

The noble Baroness said: We return to concerns that have been expressed by the Mental Health Act Commission and I am joined in these amendments by the noble Lord, Lord Patel of Bradford, who is unable to be here. These exploratory amendments seek reassurance about how the CQC will discharge its special functions in relation to detained provisions. Amendments Nos. 94 and 96 would insert a requirement for visiting and interviewing patients in private, as required in Schedule 3, to be carried out sufficiently regularly to ensure that patients’ rights and welfare “are safeguarded and promoted”.

Amendment No. 97 imposes a requirement that those who do specific visiting in relation to the implementation of the Mental Health Act, and undertake a review of those powers in relation to individuals, should have special training and expertise in doing so. I want to stress that particular point—that the Mental Health Act Commission is, as noble Lords know from previous debates, very supportive of service users and carers for service users being involved in general visiting and inspecting of individuals’ welfare. However, when it comes to visiting in private, expertise is required. It is not always easy to recruit that expertise; when the Mental Health Act Commission was first established, it was actually quite difficult to persuade doctors and lawyers that they should be involved in this work. It was difficult to get the quality of person involved in this day-to-day commissioner type of work.

Amendment No. 95 introduces a new category of patients to those who must receive regular visits from the commission. These patients are detained under the Mental Capacity Act, so dear to the hearts of those who sat through the Bournewood gap debates in the Mental Health (Amendment) Act 1994. This would give rights under the new commission to visit this group of patients. Infringements of the liberty of these patients under the current proposals for their detention mean that they must fall within the optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the Government have signed up. The 2006 protocol establishes the international inspection system for places of detention. The protocol’s objective is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty. Article 1 describes the importance of preventive visiting. Those detained under the Mental Capacity Act who lose their liberty fall clearly within its remit.

It is not sufficient to leave vague in the schedules what degree of visiting is to be undertaken or what regularity must be achieved. This is frankly an area which light-touch regulation will do nothing to assist. It is possible to collect a mammoth amount of information and lots of data. We know well, for example, that self-reported standards reported to the Healthcare Commission about dignity and hospitals and so on are often fictitious and do not relate clearly to what is really happening on the ground. It is simply not possible to risk that with patients detained under the Mental Capacity Act or the Mental Health Act.

You need to have trained specialists and not to leave this to the whim of the future CQC. Whatever degree of importance they give this task at the beginning, we need it established in the Bill that mental health wards are not like other wards and that people in them are at greater risk. We know that these wards are often very tough, violent places, with excessive noise, fear and sexual abuse. Poor ventilation, cramped conditions and a dirty environment often add to the problems. A lot of the wards are run at 100 per cent occupancy—the least risk, of course, being that someone will leave. I do not want to leave to chance the regularity and style of the visiting activity. We need to be clear about how we discharge functions of protection under the Mental Capacity Act for new Bournewood patients. I beg to move.

19:15:00

Baroness Barker
I support the noble Baroness, Lady Murphy. I would like to pick her up on a couple of points in order to support her argument. Not everyone who finds themselves in the Bournewood gap would call themselves a patient, nor would they be recognised as a patient. For those who did not sit all through the Mental Capacity Act—one of the best pieces of legislation to go through this House in recent years—I will say that people who are detained under Bournewood are in residential care homes; they are not all in mental health wards. That is my point and that is why I believe that the noble Baroness, Lady Murphy, is absolutely right to ask for more explicit statements and more clarity in the Bill. If we do not have that, we shall be guilty of overlooking people who find themselves in social care at the expense of others—in this case not acute care, but mental health care. I believe it is worth making that point.

Baroness Thornton
Amendments Nos. 94 to 97 relate to the visits that the Care Quality Commission and Welsh Ministers will be required to carry out for the purpose of monitoring the application of the Mental Health Act in England and Wales respectively. There is no doubt about the importance that we attach to these aspects of the commission’s work. On numerous occasions in previous debates I have stressed how important it is that the commission has the skills and expertise required to carry out the functions that it will inherit from the MHAC, including appropriate visiting arrangements. At Second Reading in another place, my right honourable friend the Secretary of State for Health also paid tribute to the emphasis that the MHAC places on its visiting programme, and signalled his expectation that the new commission will continue with that approach.

At Second Reading, my noble friend Lord Darzi, the Minister for health, stressed how important it is that the commission has the skills and expertise to carry this out. That proportionate regulation does not mean adopting a tick-box mentality; it means assessing the risks of individual providers and the services they provide and prioritising inspection activities accordingly.

Both the commission and the Welsh Ministers will be obliged to conduct these visits. Both will also be required to demonstrate how they have fulfilled those obligations in their annual reports. In addition, Clause 2 requires the commission to have regard to the need to safeguard and promote the rights and welfare of vulnerable adults when carrying out its functions, which would include its investigative and visiting functions under the Mental Health Act. So I believe that the Bill provides the safeguard intended by Amendments Nos. 94 and 96.

I turn now to Amendment No. 95, which would extend the monitoring remit of the commission and Welsh Ministers under the Mental Health Act to apply to the deprivation of liberty safeguards under the Mental Capacity Act 2005. The Mental Capacity Act 2005 provides a statutory framework for acting and making decisions on behalf of individuals who lack the mental capacity to do so for themselves. The Government recently amended the Act, through the Mental Health Act 2007, to make it lawful to deprive such an individual of their liberty in a care home or hospital, if it is in their best interests. The Act also provides detailed safeguards to ensure that such a deprivation of liberty is independently authorised. We propose to make regulations in due course to give the Care Quality Commission the responsibility to monitor the operation of these safeguards in England.

In Wales, I understand the intention is that the monitoring of the deprivation of liberty safeguards in hospitals is to be undertaken by the Healthcare Inspectorate Wales, the body that will also monitor Mental Health Act functions. For care homes and local authorities, monitoring of the safeguards will be undertaken in Wales by the Care and Social Services Inspectorate Wales.

Amendment No. 97 focuses on the visits which are fundamental for the monitoring of the application of both the Mental Health Act 1983 and the Mental Capacity Act 2005. Given the commission’s duty to have regard to the need to safeguard the rights of children and vulnerable adults, I agree it will be very important that the training provided to those carrying out the visits ensures that they have a good understanding of civil, legal and human rights. It will ultimately be the duty of the new commission, as it is for the current commissions, to determine what skills and experience are required by its staff to fulfil its obligations, as it will for the Welsh Ministers. However, to ensure that the transition is as smooth as possible and that no expertise is lost, we are in the process of developing a human resources strategy for the new commission. A similar approach is being adopted in Wales.

It is clear that the commission will also need to consider its functions in the context of the Human Rights Act, including its responsibilities as a public authority under that Act. Welsh Ministers, too, will have to act in accordance with the conventions enshrined in the Human Rights Act by virtue of the Government of Wales Act 2006.

It is clear from the MHAC’s success in incorporating a human rights framework into its work that no additional statutory responsibility is necessary to accomplish this. The Joint Committee on Human Rights said that the Healthcare Commission and CSCI could learn from this work—I agree with that. I would expect the new commission to learn from and continue this approach.

I hope that I have been able to demonstrate that the commission will have due regard to these functions. While understanding noble Lords’ concerns, I believe that we must trust the ability of the commission as an independent organisation to fulfil its statutory obligations properly. I therefore ask the noble Baroness to withdraw the amendment.

Baroness Murphy
I thank the Minister for that helpful reply, by which I feel in part reassured. A much less specific power is being suggested for the Care Quality Commission in respect of monitoring powers under the Mental Capacity Act for Bournewood patients, but it is certainly an improvement on the bare bones of what we have at the moment. I shall read in detail the Minister’s response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 agreed to.

Schedule 3 [Amendments of Mental Health Act 1983]:

[Amendments Nos. 95 to 97 not moved.]

Schedule 3 agreed to.

Clause 49 [Information and advice]:

[Amendments Nos. 98 to 101 not moved.]

Clause 49 agreed to.

Baroness Thornton
This may be a convenient moment for the Committee to adjourn until Wednesday at 3.45 pm.

The Deputy Chairman of Committees (Baroness Gibson of Market Rasen)
The Committee stands adjourned until Wednesday 14 May at 3.45 pm.

The Committee adjourned at 7.23 pm.