Clause 2 — The Commission's functions
Orders of the Day
6:45 pm
Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)
I beg to move amendment No. 62, page 2, line 10, after 'by', insert 'or on behalf of'.
Alan Haselhurst (Deputy Speaker)
With this it will be convenient to discuss the following: Government amendments Nos. 143 and 63 to 65.
Amendment No. 142, in page 28, line 26, clause 57, at end insert—
'(5) The Secretary of State may, after consulting the Commission, by regulations make provision specifying conditions which would result in additional inspections for the purposes of the Commission's functions under Chapter 2.'.
Government amendments Nos. 66 to 74.
Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)
Amendments Nos. 62 to 64 and 143 are Government amendments, so I shall speak to them first. Amendments Nos. 62 and 65 are significant and will be of particular interest to the House.
On amendment No. 62, clause 2 ensures that the commission must have regard in everything it does to the public's views on the services that fall within its remit, and to their levels of satisfaction with those services. The clause received a great deal of attention when the Bill was considered in Committee. User and carer involvement in the commission's work was also a recurring theme, and hon. Members from both main Opposition parties tabled amendments on that issue.
As I have made clear on a number of occasions, the Government believe that involving and listening to users, patients, their carers and the public will be a central responsibility for the new commission. The Bill already requires the commission to appoint an advisory committee, and we will expect the commission actively to involve patients and service users as well as others with an interest, such as service providers and commissioners.
There will be a wide range of bodies with an interest in a particular issue or representing particular groups, and we want to ensure that the commission hears their views. For that reason, Government amendment No. 62 proposes to make it explicit that a duty to have regard to the views of the public includes views expressed by representative bodies on behalf of members of the public. That requires the commission to engage with those acting on behalf of members of the public; that might include local involvement networks, charities or other representative groups. I hope that hon. Members will recognise that the proposed measures are a valuable addition to the Bill that will address their concerns and indeed go further, and I hope that they can accept the amendment.
Amendments Nos. 63, 64, 66, 67 and 143 are minor technical amendments designed to ensure consistency in drafting with the Care Standards Act 2000, which will continue to apply to children's services and services in Wales. Amendment No. 65 is another significant amendment. When we considered the Bill in Committee, Sandra Gidley tabled an amendment to oblige the commission to publish its inspection reports. I said that I would be happy to consider the matter, and amendment No. 65 is our response to that commitment.
Clause 57 requires the commission to produce a report when it undertakes an inspection and to send a copy to the provider or manager in question. As it stands, the clause allows the commission to choose whether to publish the report. As I said in Committee, there is no explicit duty on the current commission to publish reports either, although it normally makes them available online. However, I made it clear that I agree absolutely that the public should have access to the commission's inspection findings. Having had the opportunity to review the drafting, I am happy to introduce amendment No. 65, which will oblige the commission to publish its inspection reports. I trust that hon. Members will feel able to accept the amendment.
Amendment No. 68 is a consequential amendment that relates to section 134(6) of the Mental Health Act 1983. It will update a reference to section 121 of that Act. It is necessary because the relevant part of section 121 will be replaced, through schedule 3 to the Bill, by proposed new clause 134A. Amendments Nos. 69 to 74 are minor consequential amendments, necessitated by the Bill, to the list in schedule 5.
I turn to amendment No. 142, the only Opposition amendment in the group. It seeks to allow the Secretary of State to specify in regulations specific circumstances in which the Care Quality Commission would be required to carry out additional inspections; such regulations could be made only after consultation with the commission itself. As I said in Committee, I understand the intention behind the amendment—that is, to allow an ability to set specific triggers for the commission to carry out additional inspections. However, clause 57 already allows regulations to prescribe important aspects of inspection if necessary; there is no need to be more prescriptive.
The Care Quality Commission will be established as an intelligent regulator. It will take account of a whole range of information to assess risks in respect of providers and the services that they provide. Based on that, it will decide when and how frequently to visit providers and which issues require more detailed investigation. That will build on the approach already being developed by existing regulators to target inspection when action is required. It will therefore not be for the Secretary of State, but for the commission, on the basis of its intelligence, to determine the appropriate triggers for inspections over and above what is set out in regulations. I invite Sandra Gidley not to press the amendment.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
We are discussing Government amendment No. 62 and the ensuing ones in the group; again, we have a host of Government amendments. Some are concessions that have arisen from Committee, but the question remains about why they had to appear at this late stage.
In amendment No. 62, the Government are making an important concession on patient and public involvement in health. The Government promised a number of times in Committee to revisit the issue on Report. The drafting of the amendment is, to say the least, disappointingly unambitious. I am concerned that the amendment will open the door for any group that claims to speak on behalf of members of the public to harangue the new commission. We will return to the issue when we discuss the next grouping of amendments, but why are the Government fighting so shy of putting LINks—the bodies that they have created—into the Bill? Surely that is not because they have no confidence in the bodies themselves. Is it that, as Mr. Jenkins pointed out in Committee, the Government are worried that the bodies will be disbanded in the near future, following hard on the heels of the community health councils and the forums?
I hope that the Minister will expand on amendment No. 68; in Committee we had a number of discussions on the withholding of mail from prisoners detained under the Mental Health Act 2007, an issue of specific concern to the current Mental Health Act Commission. Can the Minister guarantee that the status quo will not change?
Sandra Gidley tabled amendment No. 142 to clause 57, which is concerned with regulation. Clause 64 is entitled "Avoidance of unreasonable burdens in exercise of regulatory powers". We have proposed that when the CQC increases regulation, an affirmative resolution should be brought before the House. We found that the Government were most resistant to that idea; as I have placed that on the record, I hope that the matter will be taken up with alacrity and fierce argument in another place.
The amendments on the CQC go hardly any way towards addressing the many and deep concerns expressed by the Committee and a number of third-party organisations; the letter published in today's issue of The Guardian testifies to that. It seems to suggest that the Government have lost the confidence of a lot of members of the voluntary sector. There is still no mention of carers among the skeletal functions of the CQC, listed in clause 2. I say "skeletal", because for the most part this is skeleton or portmanteau legislation—the body is to be added later, by regulations. That is most noticeable in clause 2, which establishes no overarching function. Indeed, the advertisement for the chair of the commission, already online despite the fact that the Bill has not been passed by either House, states that one of the role's responsibilities will be developing plans for the development of the commission's functions—an interesting job spec if ever there was one.
There are still real concerns that social care and the work of the Mental Health Act Commission will be squeezed out in the action of the new commission. To ameliorate the problem, we have sought a separate reference board of commissioners and an executive board to run the commission. Despite the Minister's contention that the CQC is to be free to establish its own direction, the Government have not left space in the legislation for it to establish the most effective system of corporate governance. Furthermore, there are real concerns that the Government are playing politics with the merger, and ultimately with the well-being of patients and service users, through the prevention of special reviews until after 2010—that is, after what will be an increasingly rocky election period for a failing Government and a dithering Prime Minister. We will seek to overturn the issue in another place to prevent that politicking from influencing the important substance of the Bill.
Dame Denise Platt of the Commission for Social Care Inspection has expressed concern that many of the commission's functions will become permissive rather than statutory, as they currently are, and that they will therefore be the first to be ditched when the Government put on the financial squeeze. The Government seem unable to get the issue right. What guarantees can the Minister give that they will not scrap this in three years' time?
The 1998 White Paper "Modernising Social Services" proposed structural change. The Care Standards Act 2000 created a single England-wide National Care Standards Commission, which was launched in 2002—17 days later, the Government announced that it was to be abolished. The Health and Social Care (Community Health and Standards) Act 2003 created the Commission for Social Care Inspection, which was launched in 2004, incorporating the social care responsibilities of the National Care Standards Commission, the work of the Department of Health social services inspectorate and the SSI-Audit Commission joint review team. In 2004, the Government's arm's length body review ruled out a merger with the Healthcare Commission. In his 2005 Budget statement, the then Chancellor announced the merger that we are debating today. Need I say more? Can the Government guarantee that all the work that we are putting in today will not be scrapped within three years?
This scandalous provision remains in the Bill. It forces the CQC to have regard to such aspects of Government policy as the Secretary of State may direct; as such, it totally undermines the independence of the body. The Healthcare Commission has put on record its concerns about the timing of the legislation and that the costs will be high and the distraction considerable. It was disappointing therefore that the Government chose not to include the cost of the merger with wind-up costs of £140 million in any risk assessment.
The House should also be aware that the merger is saving almost nothing on the efficiency trend that the three commissions themselves have already established just as they were bedding in. Taxpayers are paying £140 million for a merger and rebrand that will probably save them no extra money. Furthermore, parts of the cost savings are due to the commission losing the responsibility for complaints handling. That will be transferred to the ombudsman, but we have had no costings on the increase of her budget in the face of an elevenfold increase in work load. We also have no information on how this will be wound up and transferred.
Despite all their amendments, the Government have yet again not got things right. They have not had sufficient ambition when they have sought to address the concerns that have been raised. I hope that the Government have only put down a marker for what will be truly beefed up, made proper and substantive in another place, so that health care needs are met and patient representation and protection are secured.
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
When I first read Government amendment No. 62, I thought it a good idea. However, I had a cynical afterthought—I wondered whether it was a spoiling amendment for the LINks amendments tabled by the Conservatives. On the face of it, amendment No. 62 seems to address some of the many concerns raised in Committee about there being an insufficient patient and public voice in the new commission. However, I am not sure that the insertion of the words "or on behalf of" has been fully thought through. They are rather vague. It is not clear, for example, who decides who should speak on behalf of whom.
I can imagine the Government's reaction if Opposition Members had tabled a similar amendment in Committee: we would have been told that there was no specificity and no clarity about who could speak on behalf of whom. Are we talking about bodies that have a constitution so that it is clear on whose behalf they speak, or advocacy services that may speak on behalf of the individual? Where is the protection for an individual who does not want anybody speaking on their behalf? Some mental health groups are very particular about their views on things, and I can envisage problems where other people might purport to speak on their behalf. I am a little confused by the vagueness and wonder whether any further clarity is yet to come.
I thank the Minister for amendment No. 65, which almost deals with the concerns raised when we discussed amendment No. 239 in Committee. At that stage, his argument against the amendment was that there were occasions when vulnerable children or adults must be protected, and I wondered how that would be resolved. I do not mean to sound churlish. I am delighted to see the amendment, but curious about the reasoning.
Liberal Democrats tabled amendment No. 142 after discussion with Unison. We discussed the relevant issues in Committee, but there is still concern about the triggers for inspection. The Minister claims that that is dealt with in the Bill and that it is not a problem. However, there is a problem where an inspection is due within a prescribed period but there may be factors that would alert people to the need for an inspection to be done more rapidly. There may be risk factors that could, particularly in a care home, lead to the quality of care deteriorating rapidly where a provider had previously been rated "good" and placed on a three-year inspection cycle. Those could include a change of ownership of the provider—we have all seen cases of nursing homes where that has been evident—or a change of registered manager, which can have a huge impact. Adult protection matters may come to light. It might be something as simple as staff turnover, sudden increases in which often indicate that something else is going wrong. If there is to be an automatic three-year inspection cycle, there must be an early warning system. We would not want to go back to a situation where there had to be a number of complaints before somebody realised that there was cause for concern.
The Government have said that the principles of inspection for the CQC will be "proportionate" and "risk based" with a view to lightening the burden of regulation for health and social care providers. We would all agree with that general sentiment. However, the new inspection methodology is much more reliant on paper-based reviews and providers assessing themselves. I have occasionally had that concern in relation to CSCI. Sometimes, the first person who is asked to provide a report when there is a complaint is the manager of the care home whom the report is against, and of course people will try to present themselves in the best light possible. There are concerns that the moves towards light-touch regulation could have significant implications for public and staff safety, at a time when the Government are trying to encourage more private providers into the market.
The Minister said that it will all be okay, but he has a job of reassurance to do. As Mr. O'Brien highlighted, the budget that the new commission will operate with will be 40 per cent. less than what the previous regulators had, so it may be driven by budget imperatives rather than what is best for users of health and social care services. A recent survey of Unison members working for the CSCI found that 76 per cent. believe that the new inspection methodology does not provide a robust assessment of risk to service users. A common belief was that the reduced inspection programme could lead to staffing cuts, and fewer inspectors are less likely to impose enforcement requirements because there will not be enough time to follow them up.
It is not only me that the Minister has to reassure. A body of people out there are committed to doing a good job of work for CSCI, and deal with these problems day in, day out. They are concerned that problems will escalate unless there is a clear framework for alerting people to potential problems at a very early stage in the proceedings.
Kelvin Hopkins (Luton North, Labour)
My hon. Friend the Minister may know that I have been to visit the Minister with responsibility for care homes with a delegation from Unison, and we expressed concern about the risk-based approach to inspection. I know that my hon. Friend gave assurances about this in Committee, but there are ongoing concerns. If, in time, there are cases of care homes where the lighter-touch inspection has led to a lowering of standards of care, or the sense that they will no longer be visited so frequently and therefore do not need to perform quite so well, that could eventually lead back to the Government's door. My hon. Friend is conscientious and concerned about these matters, but this could come back to haunt the Government unless it works. We have already had reports in the past couple of weeks about care homes where there have been serious infections or the inspection was not sufficient to ensure that they had performed well. While I accept my hon. Friend's sincerity about the matter, some will continue to have concerns about the light-touch approach and the risk-based inspection system. This may have to be revisited in future unless it works as well as he suggests.
Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)
I welcome the fact that Mr. O'Brien recognises amendment No. 62 as an important concession, but it was not clear from his comments whether he was criticising us for going too far or not going far enough. I am not likely to get that clarification at the moment, as he is not here. Sandra Gidley put her finger on it when she gave an example of how sensitive some patient and user groups are about organisations claiming to speak on their behalf. That is why we have broadened this out significantly to include groups who speak on people's behalf, not just a single organisation, although I specifically referred to LINks. I urge hon. Members on both sides of the House to give LINks a chance before writing them off.
To reassure the hon. Member for Eddisbury on the retention of the status quo on the Mental Health Act 2007, I draw his attention to amendment No. 68. I could have gone into that in more detail, but that is what that amendment does with regard to the rules on the opening of post.
The hon. Gentleman asked me to guarantee that the new regulatory landscape will not be scrapped again in three years' time. If, as I hope, there is still a Labour Government in three years' time, I can give him that assurance. There was a general recognition in Committee that the Bill finishes the job that we began several years ago. In fact, as we discussed at some length, some Liberal Democrats urged this integration on us at the time of the last reorganisation of the regulatory system, but we felt that the timing was not right and that it made sense to allow the existing regulatory bodies to settle down and do their job—and they have done a very good job. Even from the bodies that face abolition, there was a recognition of the desirability of the principle of integration. Once that has taken place, everyone feels that we will need time for the new regulatory system to bed down.
In response to the hon. Gentleman's question about the complaints process—something we discussed at some length—I draw his attention to the memorandum submitted by Ann Abraham on
Amendment agreed to.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
I beg to move amendment No. 131, page 2, line 11 at end insert—
'(aa) views expressed to them by Local Involvement Networks.'.
Alan Haselhurst (Deputy Speaker)
With this it will be convenient to discuss the following amendments:
No. 136, in clause 92, page 45, line 47, at end insert—
'"Local Involvement Network" has the meaning given to it by section 222 of the Local Government and Public Involvement in Health Act 2007 (c.28);'.
No. 132, in clause 103, page 51, line 8 , at end insert—
'(aa) Local Involvement Networks,'.
No. 133, page 51, line 9, before 'bodies', insert 'other'.
No. 134, in clause 112, page 56, line 16, after 'public', insert—
'(aa) Local Involvement Networks,'.
No. 135, page 56, line 17 , before 'bodies', insert 'other'.
No. 137, page 66, line 15, at end insert—
'"Local Involvement Network" has the meaning given to it by section 222 of the Local Government and Public Involvement in Health Act 2007 (c.28);'.
Kelvin Hopkins (Luton North, Labour)
I have agreed to attach my name to the amendments, alongside that of my hon. Friend the Member for North-West Leicestershire, because Members in my party have been concerned about the strength of patient representation for some time, and it is right that those concerns are raised from time to time so that the Government are made aware of them. The abolition of community health councils and the switch to the patient and public involvement forums—and now to LINks—show that the Government are concerned about patient representation, but I am not sure whether they want to strengthen it, or have had pressure put on them to weaken it in some way.
I know that the then health authority perceived the community health council in my area to be a nuisance. The primary care trust has regarded the patient and public involvement forum in our area, especially its chair, as a nuisance. However, patients' representatives should be a nuisance. If they make a lot of noise, perhaps there is a basis for what they are doing. I hope that my hon. Friend the Minister and the Government will reconsider giving a role to LINks in the way in which the amendments suggest. Perhaps they will table their own amendments if the ones that we are considering are defeated.
I repeat a point that I have made several times about local authority democratic accountability. When most long-term care homes were in the public sector, there was recourse to local councillors and local democratic representation. With privatisation and subsequent institutional reform, that local democratic accountability was lost. Indeed, many families now come to their Members of Parliament—more than one constituent has approached me—about problems with care homes. There should be a stronger role for patient representation and I hope that that view can be accommodated in the Bill before it receives Royal Assent.
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
Local involvement networks are the Government's proposed solution to public and patient involvement. If they are as good as they are cracked up to be, and are to deliver all that the Government claim, why does the Minister not accept the amendments, which would strengthen the role of LINks? Are the Government not 100 per cent. convinced that LINks will prove an effective system?
The Select Committee on Health looked into LINks and public and patient involvement, and it was apparent that, despite the expertise of the range of experts who came to speak to us, there was no clear idea about the final structure of LINks and how they would work in practice, or even what their functions would be. There was disappointment that some of the functions of the old CHCs were missing. That could be explained by the mantra that we want local solutions and that they will be different in different areas. I subscribe to that point of view to some extent. However, I was struck by the uncertainty about how LINks would work.
In the next couple of years, while the networks find their way, it could be said that we face a democratic deficit. Perhaps the Minister can reassure us that our concerns about how LINks will work are unfounded and that they genuinely are the best thing since sliced bread. If they are, there is no reason for not accepting the amendments.
Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)
The amendments lead us into territory that is familiar to those of us who sat through the Committee proceedings: the role of local involvement networks. The amendments again try to put LINks on the face of the Bill, in the provisions for the Care Quality Commission, the Council for Healthcare Regulatory Excellence and the Office of the Health Professions Adjudicator. Let me first deal with amendments Nos. 131 and 136.
As we specified in the previous debate and in Committee, we all want the Care Quality Commission to have a clear duty to engage with and be responsive to interested parties. I was therefore pleased to move Government amendment No. 62 to clarify the issue. In Committee, we discussed hon. Members' desire for the CQC, the CHRE and the OHPA to be independent. However, the amendments would prescribe the bodies to which those independent organisations should pay regard. That is not a sensible way to proceed. Government amendment No. 62 makes it clear that the CQC should have regard to the views of organisations that represent patients. As Sandra Gidley said earlier, there may be specialist care investigations—for example, organisations might want to pay regard to the users of mental health services or other specialist groups. We do not believe that limiting the groups to which they should pay regard to LINks is sensible. That does not mean that we do not have confidence in LINks—we have every confidence that they will do an excellent job and we expect the CQC to work closely with them.
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
The Minister has demonstrated why the concept seems so nebulous. Some people argue that all the groups to which he said that due regard might be paid would have a feeding-in mechanism through LINks. Does he now claim that that is not the case?
Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)
No. They may well do that and I hope that they will. I do not intend to extend the debate to become one of those that we held at length when LINks were established. The hon. Lady made a good point earlier that some patients and some patient and user organisations sometimes resent other organisations speaking on their behalf. We do not want to prescribe that the CQC should pay regard only to LINks, and not to other patient and user organisations.
Although Government amendment No. 62 was tabled in the same spirit as amendment No. 131, it has the distinct advantage of leaving the door open for other representative groups and for leaving it to the independent commission to determine for itself the most effective way in which to engage appropriate groups. Given the amendment that we have just accepted, we believe that amendment No. 131 and consequential amendment No. 136 are unnecessary.
Amendments Nos. 132, 133, 134 and 135 would insert into clauses 103 and 112 a duty on the Council for Healthcare Regulatory Excellence and the Office of the Health Professions Adjudicator to seek the views from time to time of LINks in addition to other bodies. Amendment No. 137 is simply a consequential amendment to define "Local Involvement Network" in clause 122. Under the Bill as drafted, the CHRE and the OHPA are both required to consult public and representative bodies on exercising their functions. We believe that those independent bodies are best placed to decide from which other bodies they should seek views.
Indeed, the council has already embarked on a programme of work, which will lead to the implementation of a patient and public strategy. That is being designed to ensure that the council can fulfil the proposed statutory function of becoming an authoritative voice for patients.
I reiterate what I said in Committee about arrangements between LINks and the CQC. Although we want to encourage strong relationships between LINks and their key stakeholders, including the CQC, the CHRE and the OHPA, we do not believe that it is appropriate to dictate to those statutory and independent bodies the way in which they should involve LINks in inspections or consultations. I hope that, given our discussion, Mr. O'Brien will withdraw the amendment.
Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)
Obviously, I listened carefully to the Minister's arguments, which are not unfamiliar to those of us who had the pleasure of serving in Committee.
There is a need to recognise the theme of a long absence of understanding the issue at stake. When community health councils were axed, they were regarded by some as a nuisance, which probably means that they were doing their job. Some were not very good, but the vast majority were perceived as doing a good job. They were seen to be independent and therefore to be trusted by people who needed help when they felt most vulnerable and needed to have their hand held when charting their way through the confusing and labyrinthine process of NHS complaints.
LINks are the ultimate successor bodies that we are now faced with. If we could feel that they were being given the necessary importance by being included in the Bill, it would seem that the Government were at last addressing the grave concern that so many of us have about the lack of importance and independence given to representing patients and their concerns, particularly when things are going wrong with the NHS. Most often, those who have a concern about the NHS have a continuing need of it and are most anxious not to get offside with the very people from whom they think they need an immediate and expert public service. Taking the opportunity to demonstrate how much they are committed to patient and public involvement in that way would be the proper manner in which the Government could reflect that commitment.
The Government now have a real opportunity to pick up a policy that they have been urged to adopt, but which they again seem to be resisting, and which we have articulated at length elsewhere and now in a draft Bill—I hope that I will be able to persuade the Minister and his colleagues to support the NHS accountability and autonomy Bill, in which we have a designed patient and public involvement system through HealthWatch, a good model that, despite the Minister's disparaging so far, I hope will be picked up.
It is vital to recognise—not least because the amendment was not just tabled by the official Opposition, but co-sponsored by Government Members and the Liberal Democrats' spokesman—that the House now has an opportunity to vote, with a heavy heart and some displeasure, against the Government for not seeking to pick up on a sensible, measured and appropriate way of handling such an essential issue. This is an opportunity to ensure that that is well understood in the Bill, and I shall therefore press my amendment to a Division.
Philip Hammond (Shadow Chief Secretary To the Treasury, Treasury; Runnymede and Weybridge, Conservative)
On a point of order, Mr. Deputy Speaker. The timetable motion relating to tomorrow's business, which the Leader of the House told us would be tabled later today, has still not been tabled in the Table Office. It is difficult for those of us who are trying to prepare for tomorrow's concertinaed business to do so in the absence of an understanding of the timetable. Do you have any knowledge of when the timetable motion is to be laid, or any ability to influence that timing?
Alan Haselhurst (Deputy Speaker)
I do not have any knowledge of how that matter is progressing, but I hope that the hon. Gentleman's placing it on the record will be heard. As the House knows, Mr. Speaker is always anxious that information that is vital to the work of the House should be made available as quickly as possible.