‘(1) The Secretary of State shall require the Care Quality Commission to conduct a special review and investigation under section 48 of the Health and Social Care Act 2008 into the impact of local authority commissioning and procurement practices on the quality and sustainability of adult social care.
(2) The review shall examine the—
(a) implementation and operation of sector-led improvement;
(b) transparency of decision-making in determining rates for care and support services including the setting of arbitrary ceilings on the amounts local authorities will pay for care and support services and the use of time and task-orientated contract specifications;
(c) impact of procurement action on the diversity and quality of care and support services;
(d) transparency and fitness for purpose of resource allocation and similar methodologies for determining the level of personal budgets and direct payments;
(e) type and quality of engagement by local authorities with provider organisations, service users and carers, prior to procurement action; and
(f) ability of provider organisations to meet their statutory obligations, in particular paying employees at or above the national minimum wage.
(3) The review will report and make recommendations to the Secretary of State within twelve months of Commencement of Part 1 of this Act.’.—(Paul Burstow.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 10—Exercise of functions—
‘When exercising functions under section 31 (Urgent procedure for suspension, variation etc.) of the Health and Social Care Act 2008, the Care Quality Commission may not take account of its functions under section 83 (Trust special administration: appointment of administrator) of this Act.’.
New clause 12—CQC duty to support integration of social and health care—
‘In exercising the functions and duties set out in section 90 (Performance ratings), the Commission must act always to require, enable and encourage the provision of health services in ways that support and facilitate the functions and duties of—
(a) local authorities set out in section 3 (Promoting integration of care and support with health services etc.) of this Act,
(c) clinical commissioning groups set out in section 26 (14Z1) (Clinical commissioning groups: general duties etc.) of the Health and Social Care Act 2012 where it considers that this—
(i) improve the quality of those services (including the outcomes that are achieved from their provision),
(ii) reduce inequalities between persons with respect to their ability to access those services, or
(iii) reduce inequalities between persons with respect to the outcomes achieved for them by the provision of those services.’.
New clause 27—Corporate responsibility for neglect—
‘(1) This section applies where a person registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 (a “registered care provider”) in respect of the carrying on of a regulated activity (within the meaning of that Part) has reasonable cause to suspect that an adult in their care is experiencing, or at risk of, abuse and neglect.
(2) The registered care provider must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom.
(3) Where abuse or neglect is suspected, the registered care provider is responsible for informing the Safeguarding Adults Board in its area and commits an offence if (without reasonable cause) it fails to do so.
(4) A registered care provider is guilty of an offence if the way in which its activities are managed or organised by its board or senior management neglects, or is a substantial element in, the existence and or possibility of abuse or neglect occurring.
(5) A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding two years, or to a fine, the range of which will be specified by regulations, or to both.’.
New clause 28—Review of protections for persons in the health and social care sector making disclosures in the public interest—
(a) the adequacy and effectiveness of provisions for the protection of persons employed within the health and social care sector who make disclosures in the public interest (whistleblowers) about matters of concern to their employer, a prescribed person or body or another person or body;
(b) the treatment and experience of past whistleblowers; and
(c) the need and opportunities to improve existing protections.
(2) The review shall take account of—
(a) the efficacy of existing legal provisions, policies, procedures and practices for the protection of whistleblowing and whistleblowers and access to redress for whistleblowers who suffer adversely consequent upon their disclosures;
(b) the available evidence on—
(i) the impact of whistleblowing on changes in health and social care standards; and
(ii) the treatment of whistleblowers over the last 20 years; and
(c) other matters as required by the Secretary of State.
(3) The Secretary of State shall arrange for a report with recommendations (or an interim report as may be required) from this review to be prepared and laid before each House of Parliament within 12 months of the review commencing.’.
New clause 29—Duty to minimise harm—
‘In section 20 of the Health and Social Care Act 2008 (regulation of regulated activities), after subsection (2)(b) insert—
(c) ensuring that the likelihood of harm befalling persons in respect of whom a regulated activity is taking place is reduced as far as possible.”.’.
New clause 30—Mandatory incident reporting and patient safety management systems—
‘In section 20 of the Health and Social Care Act 2008 (regulation of regulated activities), after subsection (3)(k) insert—
(l) impose requirements as to the reporting by all providers of regulated activities to the affected persons or their representative and family of incidents occurring in the carrying out of such activities which lead to the—
(ii) unexpected deterioration of condition; and
(iii) introduction of a new adverse condition in respect of the person, regardless of the severity of the new condition and the short and long term impact on the person;
(m) impose a requirement for the preparation and publication by all providers of regulated services of a safety management system plan.”.’.
New clause 33—Candour Commissioner—
‘(1) The Secretary of State shall establish an Office of the Care Commissioner for Candour and Disclosures in the Public Interest (the “Candour Commissioner’s Office”).
(2) The Candour Commissioner shall have duties to—
(a) protect and promote a culture of candour and disclosure in the public interest in the health and care services sector,
(b) provide or arrange confidential advice and support for persons working in the health and social care sector considering making a disclosure in the public interest,
(c) provide or arrange advice and support for persons in the sector who have made such a disclosure, and
(d) monitor the treatment, employment and re-employment of persons mentioned in paragraph (c) within the sector.
(3) The Commissioner shall report to the Secretary of State, with recommendations—
(a) on any issue within the Commissioner’s remit as she/he sees fit,
(b) making an assessment of the extent to which persons and bodies within the sector are protecting and promoting a culture of candour, with particular reference to the treatment, employment and re-employment within the sector of persons who have previously made a disclosure in the public interest.
(4) The Secretary of State shall lay a copy of the Commissioner’s annual report before each House of Parliament accompanied by an explanatory statement setting out the steps that the Government plan to take to remediate any shortcomings identified by the Commissioner.’.
Amendment 19, in clause 90, page 81, line 27, at end insert—
‘(2A) The Commission must, in respect of such English local authorities as may be prescribed—
(a) conduct reviews of the provision of such adult social services provided or commissioned by the authorities as may be prescribed;
(b) assess the performance of the authorities following each such review; and
(c) publish a report of its assessment.
(2B) Regulations under subsection (2A) may prescribe—
(a) all adult social services of a particular description; and
(b) all local authorities or particular local authorities.’.
This part of the Bill and this group of new clauses and amendments are all about ensuring that the system delivers the best possible quality of care and that, when things go wrong, it is clear how the situation is to be corrected and what penalties will be faced by those who have let people down and, in some cases, treated them in an appalling way. There is much in this part of the Bill that is to be applauded, although the nature of the Report stage of a Bill means that we often do not applaud a Bill much, because we are focusing on the things that we want to amend further.
New clause 8 deals with a subject that was also a feature of our discussions in Committee—namely, the concern that the commissioning role of too many local authorities, and the discharge of their responsibilities for planning for the care and support needs in their communities, had degenerated into little more than crude procurements and, worse still, in some cases just spot purchasing of care services. In some local authorities, there was no sense of strategy or of engagement with the local population, and there were no pragmatic conversations with provider organisations ahead of a procurement process. There was no real sense of how to shape the market to deliver the best possible outcome from the point of view of the wider public interest.
Those concerns were expressed a number of times in Committee, and they have been echoed throughout all the stages of the Bill. They were certainly strongly expressed by a number of the representative bodies of provider organisations when they gave evidence to the Joint Committee scrutinising the Bill. Of all the evidence sessions in that Joint Committee, the one that sticks with me is the one at which the provider organisations gave evidence. There was a palpable sense of the deterioration, and even the collapse, of relationships between local authorities and providers as a consequence of the commissioning not being done well in some organisations.
My new clause is designed to address a concern expressed by a number of organisations about a change that the Government made to the Bill in the other place. In that change, they removed from the legislation that established the Care Quality Commission the provision for periodic reviews of the performance of local authorities in regard to their statutory duties on care and support. I am prepared to accept the arguments that the Minister made before removing that provision, but only if we can have much greater certainty that the Care Quality Commission will undertake regular thematic reviews of care and support services.
New clause 8 sets out a number of the things that I think such a thematic review should include. For example, we have established a regime for sector-led improvement whereby local authorities can seek peer review of their delivery of quality commissioning of care and support services. It is working well in some places, but there is certainly evidence that it is not in others. There is a concern that arrangements will be made that allow an inadequate level of peer review and, frankly, people to get away with not doing the right thing. That is why a back-stop provision allowing thematic reviews is absolutely essential, and why ideally I would like the CQC to be independent in its judgment on that, rather than beholden to Ministers to authorise it. That is not the situation we are in, but the new clause would have us look at those issues.
I was told by a provider that I met at an event which the United Kingdom Homecare Association organised with me that CQC inspectors positively discourage comments about local authority commissioning. If a provider has a concern about how they are being constricted, arguably inappropriately, by a commissioner’s decision or practice and tries to raise that with an inspector, they are told, “That is not a matter for us.” It is absolutely a matter for the CQC. I hope the Minister can say something about what he will say to the CQC on that issue. It seems to me that understanding the intervention of commissioners is a really important part of gathering intelligence about the robustness of a local care economy, and the best way to gather that intelligence, at least in part, is by inspectors being open to being told about that.
Does my right hon. Friend agree that it is a matter of not only looking at how competently a local authority commissioning process is commissioning the service as we know it, but thinking beyond that and enlarging the role of commissioning in changing the balance in the system of care delivery?
Absolutely. That is why the duty on market shaping set out in the Bill is about stretching the local authority to take that wider population-level interest, and not only for the people for whom they will arrange care and for whose care and support needs they will pay, but for the whole population who might need care and support but will be funding it themselves. I do not see how local authorities can satisfactorily discharge that new and important responsibility if there is not also a fairly critical examination of commissioning practices themselves. That is why I have tabled the new clause.
My right hon. Friend is making an excellent case. There is another reason why it is essential that inspection in that area becomes paramount, and that is because of the drivers in the system itself that discourage avoidable hospital and community hospital admissions and seek the earliest possible discharge into the community. What we have is a scenario in which people are being cared for in their homes, in an “out of sight, out of mind” environment, so inspections become all the more important because of the need to ensure that they are safe—
I defer to you on that point, Mr Deputy Speaker.
New clause 8 would ensure first, that there is an examination of how sector-led improvement is working; secondly, that the concern about rates for care, which we touched on when we debated new clause 15, is looked at, particularly time and task commissioning and procurement; and thirdly, that the way in which resource allocation formula are drafted and how they operate—an issue that came up in my Committee’s inquiry into the Bill—and the fact that they are often very opaque to the public, with regard to what is and is not in them when it comes to determining the level of a personal budget, are absolutely crucial to the quality of the care someone might be able to receive.
New clause 10 deals with an interesting unintended consequence of some of the changes the Government have made to this part of the Bill. The new clause is intended to bring some clarity to the process whereby the CQC decides that there is an urgent requirement to take regulatory action to protect the safety of patients. The powers it has in that respect are set out in the Health and Social Care Act 2008. The new clause is needed because the Bill establishes a parallel enforcement regime for NHS trusts and foundation trusts, under which the CQC has the power to make a recommendation to the NHS Trust Development Authority or Monitor that a trust be placed in special administration. The CQC therefore has two enforcement regimes at its disposal: first, the one set out in the 2008 Act, which allows it to take enforcement action; and secondly, the one that the Care Bill introduces, which will allow it to request another organisation to take enforcement action instead.
I made a number of points in Committee about the attempt to use the special administration regime on quality grounds. I made three simple arguments. First, special administration is not a particularly suitable process for addressing quality failures, and I suspect that it will never be used in that way in practice. Secondly, on a related point, the triggers for using the special administration regime on quality grounds are not clear, which introduces an element of uncertainty into the regulatory process. I think that a lack of clarity and consistency in enforcement powers is a hallmark of an ineffective regulation system in the first place. Thirdly, special administration is intended to be used in the Care Bill only for NHS-owned organisations, which introduces a rather odd asymmetry in regulatory powers, which is not underpinned by any evidence that I have seen in arguing for the change.
Whatever the merits of those arguments, however, I believe that the Minister needs to address the extra layer of complexity that is being added to the enforcement regime through the Bill. Where once the CQC alone could take action to address quality failures, now the CQC, Monitor or the NHS Trust Development Authority can take action on NHS organisations. I think that that complexity, which was a cause of concern in the Francis review, needs to be addressed further. I hope that the Minister will be able to address that.
The purpose of new clause 10 is simple: to ensure that in the most serious cases of failure, when the CQC believes that there is a risk to patient safety, it can, should and must ignore all the added complexity created by the measure in the Bill and default to its powers to protect patients as set out in the 2008 Act. I hope that the Minister will be able to confirm that there is a clear order of precedence for how the regulator should act.
Finally, new clause 12 deals with the CQC and integration. It simply seeks to do something that we did not do in the Health and Social Care Act 2012. That Act, largely because of colleagues on the Government Benches and concerns from the Health Committee and others, has built into it duties on every part of the system to integrate wherever possible, with health and wellbeing boards, clinical commissioning groups, NHS England, the National Institute for Health and Clinical Excellence and so on—it is hard-wired into the system. However, because the Bill we were taking through Parliament in 2011 was not really focused on the role of the CQC, we did not add that clarity of purpose on integration into its DNA. I think that is something the CQC wants to do. I know that the Minister has been sympathetic to that in the discussions we had in Committee. This is simply about saying that it is not good enough for a regulator simply to regulate institutions in the interests of patients. The interests of patients are the journeys they have through the system and the quality and experience of the care they receive. That is better defined by the way in which different organisations that they will rely on for that care are collaborating and working together. Therefore, we need to see the creation of more measures along those lines.
I could elaborate further on these points, but I am conscious of the time. I hope that the Minister will be able to give us some further words of reassurance, not least about the discussion that I think he has had with the chair of the CQC since our deliberations in Committee.
I thank Paul Burstow for getting this extensive group of new clauses and amendments under way. I understand that he shares a lot of the concerns felt by Labour Members, and the concerns of the Chair of the Health Committee have also been illustrated, as have those of other Government Members. It is essential that the Government take action to address the issues before the House.
The main issue I wish to raise this evening is the ability of the Care Quality Commission to inspect the commissioning of adult care services by local authorities. A number of new clauses and amendments have been tabled, and rather than examine each in extensive detail, it will be better for colleagues if I speak to the principles at the heart of the issue. It is, however, crucial that we understand the background to this group of new clauses and amendments.
In 2010, the Government announced the cessation of annual performance assessments. On application that has resulted in the CQC no longer inspecting the commissioning practices of local authorities. One consequences of that has been for local authorities to peer review voluntarily the services provided by neighbouring local authorities, and that in turn has resulted in the creation of a kind of opacity, or a climate of perverse incentives. Local authorities are more likely to give a neighbouring authority the benefit of the doubt on such issues. Co-operation has become the default in the sector, and although that should be welcomed to a degree, there is a disincentive for any local authority to raise issues of poor care in an adjoining local authority on which it might rely for assistance and other services. Given the financial strain on local authorities as austerity bites, they are forced to merge functions—and more—with each other, meaning that the disincentive is likely to persist for the time being at least.
As was pointed out and discussed in some detail in Committee, a strong effective regulator is as essential in the health and social care system as in any other sector—perhaps even more so. Only through thorough and effective monitoring and enforcement can patients have confidence in the services they receive, or exercise an informed choice when choosing those services. That is why the previous Government legislated for the creation of the first ever independent regulation of the NHS, and what is today the Care Quality Commission.
Regulatory oversight is an iterative process that by its very nature tends to be more active in taking remedial action than preventive action. It is the responsibility of every Member of the House to ensure that the regulator is given the tools and resources it requires to be as proactive as possible in preventing problems not just in the future following care failures, but before any failures occur in the first place. In short, the best regulatory systems are intelligent and proactive. That is why it is essential that the Care Quality Commission should be allowed proactively to inspect and review the commissioning of adult social care undertaken by local authorities. It is one thing to inspect the service provided—clearly that is important—but more information could be revealed, and better regulation resulting in better services would be enabled, if the regulator could inspect the process of service commissioning.
When a service fails, we need to understand the root causes of such a failure. How has a poor service come to pass? Is it down to a poor operator, a poor service provider, or is the local authority not commissioning the right service in the right way? Under the Bill, only once a pattern of poor care is identified can the CQC apply to the Secretary of State for permission to undertake a special review. There are a number of issues with that.
First, the quality of care would have to be extremely low for a consistent period to allow a pattern of poor care to be identified, and that does not provide the best level of protection for service users suffering from inadequate care services. Secondly, the CQC would have to bear a significant burden to prove such a pattern before undertaking a special review. Such a burden will consume time and resource, while again prolonging the time during which service users may be receiving inadequate levels of care.
When the Minister responds, will he outline what threshold of proof would be required for a Secretary of State to grant the CQC permission for such a review, and say whether that has been modelled within the Department at any stage? Surely such issues have been considered. What mitigation does the Bill contain to prevent poor levels of care from continuing to be provided while investigations into care standards are ongoing? How does the proposed model fit the Ofsted model? On the face of it, it does not appear to fit it at all, because Ofsted does not wait for schools to fail before stepping in. I think—the Minister knows my views on this—that such a comparison has never been accurate and that strained and unnatural is a more precise description. The whole House will appreciate hearing the defence of a regulatory system that regulates only once failure has occurred.
As the Bill stands, it would appear that current provisions are best suited for remedial action to address instances of failure. The Bill addresses only actions to be taken following poor care, but does not give the necessary freedom to the CQC to act to prevent poor care from occurring in the first instance. That puts a limit on the practices of the CQC, and on application would mean that the inspection of commissioning would take place only in special circumstances. My fear is that we are knowingly legislating for a leaden-footed regulatory regime—hence the need for amendment 19.
The roots of care failures could be lodged firmly in the process of commissioning, and it is right that an independent regulator has the ability and duty to inspect all issues relating to the quality of provision before failures occur. Amendment 19 seeks to address the Government’s clear oversight in that regard. It would give the CQC more freedom to explore all aspects of care provision, rather than just quality, at the point where care is administered, and it would provide the scope for whole-system inspection. Problems can manifest much earlier in the process of care provision than the point at which care is received, and as such those problems must be dealt with earlier. The only way that is possible is for the CQC to be able to assess the quality of local authority commissioning.
If the Government seek to oppose amendment 19, I would be grateful if the Minister would explain why he thinks that the rather fudged clause in the Bill should remain unamended. The commissioning of services is clearly linked to the quality of service provided, so to limit CQC oversight to just one aspect, as in the Bill, is a flawed approach that knowingly turns a blind eye to other parts of the system, which are ultimately responsible for the standard of care provided.
The consequence of refusing to address the issues surrounding commissioning clearly results in the problems illustrated earlier by my hon. Friend Liz Kendall. A lack of oversight has meant that 15-minute visits and zero-hours contracts are quickly becoming the default option for care, rather than being used in extreme circumstances—we must all surely hear complaints about the consequences and effects of such an approach in our surgeries; I certainly do so.
Amendment 19 would give the CQC oversight of commissioning practices and lead to an improvement in care, and new clause 8 would put a duty on the CQC to undertake a review into commissioning practices within a year of the commencement of part 1 of the proposed Act. While that would be worth while in the short to medium term, to be useful in the longer term the CQC must be able to repeat inspections when it deems appropriate, not just when the Secretary of State requires it.
Clause 89 is entitled:
“Independence of the Care Quality Commission”.
Everyone across the House agrees with that principle except, it would appear, the Government in relation to this part of the Bill. Rather than giving the CQC independence to inspect commissioning services routinely, they are placing a shackle of ministerial approval on inspections that the CQC may deem necessary. That cannot be right, and to my mind it contradicts everything that the Government have said over the past 12 months regarding the need for CQC independence.
New clause 27 is tabled in the name of my hon. Friend Nick Smith. It would create an offence of corporate responsibility for neglect, which could see directors of care providers face jail if their management of a service led to abuse or neglect. I pay tribute to my hon. Friend’s work on this issue, and I know he works tirelessly helping those who have suffered as a result of neglect in the adult social care system. He does superb work in the House and is a credit to his constituency and his illustrious predecessors. It is right that we do everything in our power to ensure that those who abuse or neglect people in care are held to account. We put an inordinate amount of trust and faith in care providers, and if that trust is betrayed by wilful neglect or mismanagement, the perpetrators should face real punishment. These services are provided for some of the most vulnerable people in our society, and harm brought about by neglect must be punished. I would be grateful if the Minister would speak more about those issues, and say how the Government intend to address them.
I shall speak to new clauses 28, 29, 30 and 33, which stand in my name and those of other hon. Members from both sides of the House.
There is a huge amount to welcome in the Bill, and on Second Reading I welcomed the steps in part 2 to implement many of the recommendations in the Francis report. I said at the time that although there has been good progress, there remains a lot more to do, which is the reason behind the new clauses. I have tabled four new clauses—two on whistleblowing and two on patient safety. Those are both vital areas that we must get right.
I welcome the measures that the Government have taken to improve protection for whistleblowers, including changes to the Public Interest Disclosure Act 1998 and the banning of gagging clauses. Whistleblowers are not only individuals who are able to see where things have gone wrong when others around them have perhaps gone native and begun to accept the unacceptable, but they are people with the moral backbone and courage to speak out when things are wrong. It is hugely important that we have a culture where people do not need to become whistleblowers, because their complaints are taken up far earlier and they do not need to go down routes outside the usual complaints process. We should have a culture where people are encouraged to speak out, and where raising concerns is seen as a good thing.
As I have said, there are still far too many whistleblower cases and there is a lot more to do. That is illustrated by the fact that the Secretary of State had to step in last week to intervene in a whistleblower case. The Select Committee on Health was told that the chief executive of NHS England, Sir David Nicholson, will personally intervene in such cases to champion whistleblowers. It is interesting that Sir David is revelling is imminent freedom to mock the Secretary of State and some of his NHS England colleagues when he does not seem to have been that proactive in stepping in to champion whistleblowers previously. I very much hope that his successor proves more effective on that front, but I digress.
There is an awful lot more to do. The key thing about new clause 28 is that it would introduce a report on whistleblowing. That would provide an audit of how the Government’s recommendations and new policy affects things on the ground, which would be welcome to the Government, whistleblowers and hospitals in general. It would also provide a valuable arena in which historical whistleblowing cases can be looked at. That would provide a kind of truth and reconciliation process for many who have not seen justice, including victims of bad care and their families, and whistleblowers who have tried to highlight cases. Crucially, we could look at how those whistleblowers were treated and where they are now. Far too many do not go on to be gainfully employed, but they should be the first people to be employed in their sector—I will say more on that in a moment. We can also look at whether their concerns have been taken up and whether anything has changed. One of the most common complaints is that nothing changes after whistleblower cases, when people have risked their livelihood to speak up against something and try to change things. The proposal would provide an opportunity to look at why those changes are never made and what we can do about it. The report could make recommendations to the Secretary of State on how to ameliorate that.
New clause 33 deals with what happens to whistleblowers and the role of candour. It would introduce a candour commissioner for health and social care to report annually on the culture, which is so damaging to our NHS, whereby problems are hidden as opposed to being brought out into the disinfectant of sunshine. The annual review would give confidence to whistleblowers that someone independent takes them seriously. The measure might begin to deal with the toxic problem of whistleblowers being effectively surreptitiously blacklisted because they are not re-employed in their sector.
One amendment I wanted to table—it was outside the scope of the Bill—would have meant that, instead of a blacklist, there would be a white list of whistleblowers.
If a whistleblower’s complaint were vindicated, a white flag would go up next to their name. Any employer within the sector who did not give the whistleblower a job would have to say why they are not the right person for the job. I was hoping that such an amendment would go some way to working against the unofficial blacklist that so many of our brave whistleblowers face.
My other proposals are on patient safety. New clause 29 is on zero harm. We have learned, tragically, in the past few months of things that happened over the past decade. We would not have expected to have to put minimum requirements of care in law, but they should have been put down in law, because, sadly, on too many occasions, those basic standards and requirements of humanity were breached. New clause 29 would put zero harm—the Hippocratic oath—into law to ensure that they are not breached.
New clause 30 would introduce mandatory incident reporting and patient safety management systems. It would permit the Government to introduce regulations to ensure that all health care providers tell the patient or their family during a patient’s care when death, deterioration of condition or the introduction of a new condition occurs. That is not necessarily for blame, but simply for information. The worst thing is that when mistakes happen—they will; that is natural in something as difficult as health care—families are not told. That is damaging to our NHS. If mistakes happen, families must be told. Even if a deterioration occurs and is not a mistake but a natural course of events, the family should be told clearly what has occurred. The new clause would place a requirement on all providers to publish a patient safety management system, which many good providers do, to describe clearly their procedures for ensuring that patients are kept safe. Good providers already do that, but it should be a minimum requirement for all providers.
Those would be valuable added safeguards to clause 80. As we have seen, with the best of intentions and optimism, minimum humane standards have not been met. I believe that the proposals should be included in the Bill to provide a facility by which those who do not abide by such minimum care standard are held to account.
New clause 27 would establish an offence of corporate neglect. The problem needs to be tackled following police Operation Jasmine in south-east Wales. That six-year investigation of care-home abuse cost £11.6 million. Three care workers were prosecuted, but the owners—in my view, they were real culprits—escaped punishment owing to legal hurdles. That is not acceptable. One patient had appalling sores. They were so infected that the bone underneath was visible. I was deeply shocked at the photographs of neglect I was shown from the case. The then deputy chief constable of Gwent police said:
“There is a likelihood that there are cases like this occurring every day…across the country”.
New clause 27 would ensure that care providers are in no doubt that their primary responsibility is the care of their residents. It is supported by Age UK and was recommended by the Joint Committee on the draft Care and Support Bill, which conducted pre-legislative scrutiny.
I accept that the Government’s proposals to strengthen the Care Quality Commission will go a significant way to preventing horrific abuses such as those at Winterbourne
View, but without the offence of corporate neglect, the proposals do not do enough. In the Winterbourne View case, the longest sentence for a staff member—they pleaded guilty to nine charges of ill treating patients—was two years. That sentence is mirrored in other cases. It is only fair that an equal sentence is available in cases of corporate neglect.
I have listened with great interest to my hon. Friend, as I did to Charlotte Leslie. Given that many such awful incidents involve people with learning disabilities, will he assure me that he has very much in mind their views as well as those of their advocates and families, and that they will be embraced by the legislation, particularly if his proposals are agreed to?
I assure my right hon. Friend that the new clause refers to all adults, so takes on board the people he mentions.
Subsection (4) of the new clause seeks to strengthen protection. It would ensure that, if abuse were found to have an element of corporate responsibility, and if systems or the approaches taken by the care provider are a contributory factor in the abuse or neglect, the new offence would allow the prosecution of a registered care provider. The Government have the opportunity to shape the culture of the care sector in the Bill tonight.
In Committee, the Minister said that he supported the sentiment of the proposal. Does my hon. Friend accept that, although the new fit and proper person test and the new fundamental standards are important, they do not make provision for a custodial sentence for proprietors, managers and directors of such establishments in such cases?
My hon. Friend has got to the nub of the issue. Managers and directors of organisations such as care homes have to accept that they set the culture of those places, and that they are responsible for looking after the residents in their care, and for avoiding neglect and abuse. If they get it wrong, they should face the possibility of a jail sentence. That is what the new clause would do.
We must go that extra mile to ensure that our safeguards deliver for care home residents. New clause 27 would greatly help that cause and. I intend to divide the House on the measure.
I want to speak primarily to the new clauses moved by my right hon. Friend the Member for Richmond, but first I wish to comment on the speech by my hon. Friend Charlotte Leslie, who has been a consistent advocate of the importance of ensuring that we have a culture in our health and care system that creates space for whistle- blowers, not because we want a world full of whistleblowers, but because we want an open culture—as she rightly says—in which the whistleblower is redundant.
The example often cited in this area comes from the US Navy. A junior rating prevented flying from an aircraft carrier because he was concerned about a safety element. As it happened, the concern was misplaced, but the rating was celebrated because he had the courage to raise it. The culture of the ship was such that it allowed that individual to take the steps necessary to cover the risk. In a sense, the story is most telling because the concern was misplaced but the individual was celebrated for having had the courage to take action. That is the kind of culture that we should have in the health and care system.
I do not agree that we need a candour commissioner: it is part of the core function of the Care Quality Commission’s inspections of health and care provider institutions to make an assessment of whether that culture exists in an institution. If that culture does not exist, it is hard to see how that institution can deliver the standards of care that we would all want to see.
My main reason for speaking is to pick up the points raised by my right hon. Friend the Member for Richmond—
Forgive me—the right part of London, but the wrong constituency.
My right hon. Friend is on to an important point and I shall listen with care to what the Minister has to say in reply. We have been arguing for the best part of a quarter of a century about the role of commissioners, not just in the social care sector but across the health and care sector. As my right hon. Friend said, in different parts of the Health and Social Care Act 2012 this commitment to what is, in the jargon, called integration, but what I prefer to call joined-up services, is introduced into different parts of the system. Rightly, my right hon. Friend wants to include it in the terms of reference of the Care Quality Commission, but we need to think beyond just introducing it as an add-on into bits of legislation, the prime purpose of which lies elsewhere.
In my view we have no choice—and I do not particularly want a choice—but to create a health and care system that puts more emphasis on prevention, on community services and on joining those services to the rest of the health and care provider network. For a quarter of a century we have been seeking, rather spasmodically and under Governments of all political complexions, to build a commissioner system charged with delivering that type of care system. Ministers need to rise to the challenge of showing how we move from where we are today towards a commissioning system that is fit for purpose to deliver that type of care outcome. The system that we operate is often described as fragmented, and we all know that different parts of the system are indeed fragmented. But the fragmentation is worst in the commissioning institutions. We have social service authorities that are responsible for commissioning social care, and in the next sentence of our speeches we say that that is the same thing as community services, but those are commissioned by CCGs. In the next breath, we say that community health is the same as primary health, but that is commissioned by NHS England. As they say in the modern jargon, “Talk me through it.” How do we deliver properly joined-up services if the people responsible for commissioning the service are so fragmented?
My right hon. Friend is making a very important point, which he has pursued vigorously as Chair of the Select Committee. Does he agree that part of the evolution that needs to take place is an extension of the role that we originally envisaged for health and wellbeing boards, so that they become the place where these matters come together? The default should be changed to one that presumes integration and joined-up services, rather than the other way around.
I agree with the thought that my right hon. Friend identifies. I have been choosing my words with care—I hope—in inviting the Minister to chart a course towards a more joined-up concept of commissioning. Almost as I offer my critique of the commissioning structures, I can feel officials in the Box writing the next version of the legislation that will have another go at providing the perfect solution to deliver something that is better than we have ever dreamt up before. I emphasise that what I am looking for from the Minister is a route map or journey—a process, not an event—and preferably one that builds on existing institutions rather than committing what I regard as the mistake of starting again with a clean sheet of paper.
The idea that the right hon. Gentleman propagates, which he has long held—that fragmentation is a bad thing and integration and joined-up services are a good thing—is one that I subscribe to, but does he share my concerns at reports that the commissioning functions through the clinical commissioning groups are to be privatised? Is that likely to make for more joined-up services or greater fragmentation?
The hon. Gentleman knows that I do not entirely share his concern about who holds the share certificate for a particular service. I am more concerned about the accountability of a public authority for the use of public money to deliver a public service. On that, the hon. Gentleman and I are probably as one. I am also concerned that the system, from the perspective of the patient and service user, does not rely on them finding their way under their own steam through an impenetrable morass, but is designed with their needs and instincts in mind. That is a test that our current system simply does not pass and has not passed for many years.
The right hon. Gentleman speaks with enormous authority on these matters. On the issue of community care, does he agree that for many years we have talked about joint planning, which is essential if community care is to be delivered? Does he feel that, even with the Bill and the proposed new clauses, the commission would have sufficient authority to ensure that it works as efficiently and sensitively as the House would expect?
No, I do not believe that simply empowering the Care Quality Commission to go into that space is the answer to the question that I am posing. My right hon. Friend Paul Burstow is closer to the right answer in identifying the health and wellbeing board at a local level as the beginnings of an organisation that can deliver a more joined-up commissioning process, joining up the social care system, the community health system, the primary health system and, of course, the hospital service—and
I always add the social housing people. In a properly joined-up service, they would focus their attention on the needs of the individual patient service user—an awful piece of terminology; we cannot work out precisely what to call them.
I wish to highlight a bit of institutional tension. My right hon. Friend the Member for Sutton and Cheam proposes that this is a function for the CQC, but I am not entirely convinced. A tension underlying several contributions this evening relates to whether the CQC is the regulator of a provider, or an organisation with responsibility for charting the course, which I am looking for from the Minister, towards a new form of commissioning. The CQC has a full job to do responding to some of the things that my hon. Friend the Member for Bristol North West was talking about—culture and service quality on the provider side—and I am not persuaded that trying to manoeuvre it into the space of developing the kind of joined-up commissioning service I am describing is the right answer to that question.
I reassure my right hon. Friend that I want to chart the course with him. I completely agree on the need to bring commissioning together. The better care fund is a good nudge in the right direction, but we need to go much further in due course.
I am grateful to the Minister for his encouragement that I am on the right path.
There is a serious question here. I agree with my right hon. Friend the Member for Sutton and Cheam that, at a local level, the health and wellbeing board is the organisation best placed to move forward with the process of more joined-up commissioning. How we, as MPs, satisfy ourselves that this is happening to the required standard, with the required levels of economic efficiency across the system as a whole and above the level of the health and wellbeing board, is one of the questions left unanswered by the institutions we currently have. I am not entirely persuaded that the CQC should be encouraged into what I regard as a vacuum.
Amendment 19 would reinstate the Care Quality Commission’s duty to inspect the commissioning of adult social care services by local authorities. The case for the amendment is very simple: the quality of commissioning has a huge impact on the quality of care that people receive. It is extremely important that our adult social care system includes checks to ensure that commissioning is of a high standard. At present, this is not the case.
The current model of sector-led improvement introduced by this Government in 2010 leaves it to local authority peer reviews to identify failure. In practice, this means that neighbouring authorities that already work in close collaboration inspect each other, but only when a neighbouring authority volunteers for inspection. Of course, local authorities that are confident in their commissioning practices are happy to volunteer themselves for scrutiny, but what about those that do not volunteer? It is surely those authorities that we should be most concerned about, yet under the current system they are not subject to proper oversight. Worryingly, the majority of authorities have not been assessed under the peer review scheme. In total, 127 local authorities have not had their commissioning reviewed since 2010. We would not allow this type of reckless leniency with any other service that looks after our most vulnerable. I am certain that it should not continue.
It is clear that when it comes to inspecting local authorities’ commissioning practices, some uniformity and impartiality are needed. The CQC is best positioned to carry out that duty. Certainly, the chief executive of the CQC thinks so, commenting that he has not
“spoken to any national provider association who doesn’t think councils should be inspected” and believes that
“the removal of that power from CQC was seen as a retrograde step”.
When this proposal was raised in Committee, the Minister insisted that it was unnecessary. He argued that CQC inspection of providers could identify patterns of poor commissioning that would be grounds for a special review.
My hon. Friend is making a convincing case. I have a background in local government. Does she agree that if statutory obligations are placed on local authorities, it is important that that they should be followed by the appropriate resources, but that that is not always the case?
I agree completely, and I will echo my right hon. Friend’s comments later in my speech.
I have some doubts about how effective CQC inspection of providers would be in practice. It is not clear at what point the CQC would recognise that poor provision was caused by poor commissioning practices. A handful of poor examples could be just that, or it could be evidence of a more systemic problem. Given the need for the Secretary of State’s approval before a special review is undertaken, I am concerned that the threshold of proof needed will be extremely high. Furthermore, CQC inspectors will not visit all providers in a single local authority area at the same time. In practice, it could take some months before information is collated and a pattern of failure detected that might indicate sub-standard commissioning. There is also a doubt about who will be joining up the dots to link months’ worth of inspections to a local area’s commissioning practices. In short, how will anyone ever know that poor providers are linked to poor commissioning by a particular local authority? The reality is that by the time the CQC recognises that there is a case for a special review, numerous safeguarding issues could have arisen.
I am concerned that, under the model the Minister advocated in Committee, action will be taken only once patterns of poor care have already taken root in a local authority. Surely that is the wrong way round. We need to prevent poor care arising from substandard commissioning, rather than wait for problems to become embedded in the system. This not only makes sense financially: from a safeguarding perspective, it is essential. I am concerned that without rigorous oversight, social care departments will find it easier to allow standards to slip.
In Committee, the Minister argued that the duty for local authorities to consider well-being would incentivise good practice. I do not believe that this is enough. I do not want to be critical of any local authority’s will to ensure the well-being of their service users, but I know from personal experience that these departments face intense pressure. If something is not built into the system, it is less of a priority. If departments know that the CQC will not be knocking on the door this year, they will concentrate on more urgent matters—trust me, in adult social care there are always urgent matters. Knowing that they are subject to regular oversight makes departments foster a culture of good practice.
In discussions I have had with providers and commissioners, they say they are in favour of reinstating the clause. Commissioners, whose day job is to fill gaps in services and to do so in the most cost-effective way, are worried that their decisions are not properly scrutinised, and that any mistakes they may unwittingly make will go unchallenged. Providers want it to be clear when they are at fault or when failure is down to poor commissioning. They do not want under-resourced providers to be punished simply because the rates that they receive from the local authority are too low to provide decent care.
I remain puzzled about why, although in June last year the Minister admitted that sector-led improvement had serious shortcomings for weaker-performing councils and, presumably because of his doubts, the Bill originally included the new clause, yet in October, for some reason, it was removed on Report in the other place, and the Minister has now moved from being in favour of CQC inspection of commissioning to being against it. I was also puzzled when the Minister repeated his concern about sector-led improvement in Committee. Following an intervention from Paul Burstow, he said that he shared the right hon. Gentleman’s view that
“the danger with sector-led improvement is that those bodies who are up for change and improvement take part and those who are dysfunctional and failing do not engage.” —[Official Report, Care Public Bill Committee,
Given that the CQC, providers and commissioners—along with the Minister— recognise the blind spots that exist in the sector-led improvement system, I hope that the Minister is open to convincing on the issue. If he is not convinced, I hope that he will be able to explain what he could not explain in Committee, namely why he and the Government changed their minds.
Let me begin by thanking all Members for their contributions to the debate.
Part 2 of the Bill contains a range of measures to implement the Francis recommendations following the awful events at the Mid Staffordshire NHS Foundation Trust. The changes that we are introducing are intended to make a reality of Robert Francis’s recommendation that the NHS, and indeed all care services and those who work in them, should adopt and demonstrate a shared culture in which the patient is always the priority.
I accept the principle that lies behind new clause 8 and amendment 19, but the oversight of commissioning is not the core purpose of the CQC. I want the CQC’s main focus to be on providers and the quality of care provided for patients and service users. Any review or investigation of commissioning of services by the CQC will have an impact on its capacity to oversee service provision, and should be selected with care. It is therefore right for any CQC special review or investigation of commissioning to continue to be either at the request of, or subject to the approval of, Ministers—in the case of reviews of local authority commissioning, the Secretaries of State for both Health and Communities and Local Government.
I want to make my position absolutely clear. If there is strong evidence of a link between commissioning and poor care, the CQC will be able to examine it.
I apologise for getting in just before the hon. Lady.
May I return to a point that I raised in my opening remarks? At present, inspectors disavow the opportunity of providers to give them the evidence to which the Minister has referred. They say that they are not interested in it. Will the Minister ensure that the CQC and its inspectors are open and receptive to such evidence when providers offer it to them?
Subject to the fact that the CQC is an independent body, I will certainly reinforce that point in my discussions with it. In the context of mental health, we were discussing with the CQC only last week the importance of the role of commissioning as well as that of provision. I entirely accept that good care can be provided only if we get both the commissioning side and the provider side right: the two must go together.
Is it appropriate to set out the specifics of a review of commissioning in the Bill? I do not believe that it is. Flexibility is vital. While the CQC has a power to conduct special reviews and investigations of commissioning, that must be set in the context of other measures in the Bill that will strengthen the duties that local authorities must fulfil in exercising their care and support functions.
I take very seriously the point that the hon. Lady has raised, but if she will allow me to continue to present my argument, I shall be happy to return to it later if necessary.
The important new measures include an express duty to promote people’s well-being—a duty to shape local care markets to ensure that they are sustainable and diverse, and offer high quality care and support. The Department will work with the local government and adult social care sector to produce statutory guidance on local authority commissioning of care and support. However, a CQC review of commissioning remains an option. I reassure right hon. and hon. Members that we will review evidence of concerns about local authorities’ commissioning practice to establish whether it is appropriate to ask the CQC to undertake a targeted review under section 48 of the Health and Social Care Act 2008. Getting the message out to commissioners that the powers will be used is important in itself to concentrate minds. They will be under the spotlight if they fail in their commissioning responsibilities.
New clause 12 would require the CQC to consider integration of care as part of its performance assessments of registered providers of health and adult social care. In Committee, my right hon. Friend the Member for Sutton and Cheam made a strong case for the new system of performance ratings to be carried out by the CQC to look at care pathways, rather than focusing on separate institutions in isolation. He makes a very good case. I explained that a central tenet for the Government is that the independence of the CQC improves its effectiveness as a regulator. Clause 89 removes nine separate powers for the Secretary of State to intervene in the day-to-day workings of the commission, and we have deliberately removed the Secretary of State’s power to devise or approve the system for performance assessments and ratings.
The CQC has to be responsible for the system of performance assessment that it introduces, and placing specific requirements on the commission in legislation would not help in that regard. That is not to say that the CQC should not look into the integration of care. I told the Committee that I would pursue that matter in my discussions with the CQC, and I have done so. I have spoken to the CQC chair, David Prior, and to the chief executive. I am pleased to say that in that regard we are pushing at an open door. They absolutely understand the case that my right hon. Friend makes.
In recent weeks, the commission’s chief executive, David Behan, has set out plans for the CQC to carry out thematic inspections to look at the care pathways for different conditions. One such thematic programme will look at how people with dementia are handled by relevant services in a geographical area—acute health care, primary health care and adult social care, for example. Another is looking at how people move across transition points, such as when a disabled child becomes an adult—a point at which too often services fall down.
The Minister has outlined that he wants to work with the commission, local authorities and others in these important matters. Does he agree that there are issues on which organisations such as Mencap have a lot to contribute? Would he see the Government’s approach on those matters as being inclusive in that respect?
I totally agree with the right hon. Gentleman. The more that we talk to organisations with expertise such as Mencap when we are designing the commissioning and inspecting of facilities, the better we are at the job that we do. We must not think that we have all the answers in Whitehall.
A future thematic review could consider the integration of health and social care services either in a particular location or across a particular condition. I am keen that the commission pursue that further, but, as I say, I think that we are pushing at an open door in that regard.
New clause 33 would create the new post of candour commissioner for England. The commissioner would be tasked with protecting and promoting a culture of candour and disclosure in the health and social care sectors, an ambition that I think we would all share. The Government are taking steps to make a culture of candour and openness a reality. We will put in place a statutory duty of candour on providers registered with the CQC—I am personally delighted that we are doing that. That will require providers of health and social care to be open with patients and service users where there are failings in care.
I commend to the House the excellent review of the duty of candour by Professor Norman Williams and Sir David Dalton, which was published last week. We will consider the recommendations of the review—I repeat that I thought it was excellent—as we develop regulations to implement the duty of candour as a requirement for registration with the CQC. We are also enhancing the professional duty of candour through changes to professional guidance and codes.
Effective whistleblowing and complaints systems are vital parts of an open and transparent culture. As the Committee Chair, my right hon. Friend Mr Dorrell, pointed out, what we are after is a system in which whistleblowing is no longer necessary because the culture is open. That will help to improve public and patient safety and the quality of services provided.
This Government support the right of staff working in the NHS to raise concerns and expect all NHS organisations to support staff who wish to do so. NHS organisations have to have in place policies that are compliant with whistleblowing legislation. Also, the CQC’s new inspection system will include discussions with hospitals about how they deal with whistleblowers, and the CQC is reviewing its arrangement for handling whistleblowing concerns. The CQC’s national adviser for patient safety has recently established, and chairs, a forum of whistleblowers, so the CQC understands the issue and recognises its central role in this regard.
I am sure that my hon. Friend Charlotte Leslie will agree with me that we will only achieve the change in culture that we are seeking by creating champions for candour and openness throughout every tier of every organisation—people who really believe in openness in both health and adult social care. Promoting and protecting candour is the business of every member of staff in health and social care. Indeed, the Dalton-Williams review prefaced its discussion of the candour threshold with a clear recommendation to establish a culture of candour based on training and support of staff and more accurate reporting of safety incidents.
I would also point out that the creation of a new office of candour commissioner would need funding. Given the measures we are already putting in place to support candour, I am not convinced that a candour commissioner would be the best use of finite resources.
New clause 28 would require the Secretary of State to commission an independent review of whistleblowing arrangements within six months of this Bill coming into force. I recognise that reviews, as suggested in this amendment, can play a key role in ensuring that legislation is operating as intended—a form of post-legislative scrutiny. It is for this reason that the Government, through the Department for Business, Innovation and
Skills, have recently carried out “The Whistleblowing Framework: Call for Evidence”. This call for evidence is part of a review of the effectiveness of the legislation around whistleblowing, specifically considering whether the protections available in the Public Interest Disclosure Act 1998 for those wishing to raise concerns are effective. Members of the public and experts have been asked to submit evidence to BIS’s review. The findings will be published this spring. My Department has submitted evidence to this review on behalf of the health and care sectors, having taken the views of the professional regulatory bodies, but I do not support putting a commitment in primary legislation to undertake a review such as the one suggested in the amendment.
New clause 10 relates to the single failure regime for NHS trusts and foundation trusts. I repeat the assurance given in Committee that where the chief inspector of hospitals finds that patients are exposed to an immediate risk of harm, he will continue to be able to take swift and decisive action under section 31 of the Health and Social Care Act 2008. This new clause would prevent the CQC from being able to trigger trust special administration on quality grounds while it was using its powers under section 31. The chief inspector needs to be able to draw on the full range of the CQC’s powers to ensure regulatory action is appropriate in each case. We must not set unnecessary constraints on the CQC’s ability to address failings in quality. There may well be situations where the CQC needs urgently to suspend a particular service and also to consider trust special administration to ensure that high quality services can be sustained.
Let me make it clear that the CQC will be able to trigger trust special administration only where there has been a serious failure of quality and it is appropriate to do so. There are a number of ways to support trusts to improve, ensuring that special administration is only the last resort. Monitor and the NHS Trust Development Authority have a range of intervention powers and can also place trusts and foundation trusts in special measures to provide a package of measures to support improvement.
I am happy to ensure that a note goes to my right hon. Friend and other Members, as he requests.
New clauses 29 and 30 would introduce a power to create new requirements for registration with the CQC, one requiring providers to minimise the risk of harm to patients and service users, and the other requiring providers to inform patients and their representatives where treatment leads to harm, and to prepare a safety management plan. Section 20 of the Health and Social Care Act 2008 sets out the areas in which the Government may impose, through regulations, requirements on providers registered with the CQC. It is a broad power and expressly allows regulations for
“securing the health, safety and welfare of persons” for whom services are provided. This is broad enough to include minimising harm to patients. In addition, it expressly includes a power for the registration requirements to cover
“the manner in which a regulated activity is carried on”, which would cover a requirement to prepare a safety management plan.
Clause 80 also places a duty on the Government to introduce a new registration requirement of informing patients and service users where there have been failings in their care—the duty of candour. I hope that I have reassured my hon. Friend the Member for Bristol North West that the power already exists to include the proposed areas in the CQC registration requirements.
My Department is consulting on draft regulations to put in place new fundamental standards as requirements for registration with the CQC. These would require providers to take “appropriate steps” to mitigate the risks of service users receiving care that is “inappropriate or unsafe”. We plan to consult shortly on a new duty of candour requirement. We will, of course, develop the final regulations, which will be subject to the affirmative procedure, in the light of the comments received in the planned consultation.
Finally, I support the sentiment behind new clause 27, that providers of care services should be held to account where they allow abuse or neglect, and that there should be serious consequences where this occurs. Under the fundamental standards on which we are consulting at the moment, all providers registered with the CQC must take steps to avoid abuse and neglect, and take action where those occur. Where providers are responsible for abuse, the CQC will be able to prosecute them. In fact, in response to Winterbourne View, I took the view that there was a gap in the regulatory framework, which did not allow for proper corporate accountability. I felt that we had to change the arrangements to ensure that companies, trusts and other providers were held to account where they were responsible for abuse or neglect. We are achieving that objective.
In addition, we have brought forward proposals to respond to the most egregious failures of care. On