Health and Social Care (Community Health and Standards) Bill

– in the House of Lords at 8:16 pm on 20th October 2003.

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Votes in this debate

House again in Committee on Clause 66.

Photo of Earl Howe Earl Howe Conservative 8:31 pm, 20th October 2003

moved Amendment No. 324ZA:

Page 26, line 19, at end insert—

"( ) the Office for Standards in Education;

( ) the Department for Education and Skills;

( ) children's trusts;

( ) local Safeguarding Children Boards."

Photo of Earl Howe Earl Howe Conservative

If we accept that there may be occasions when CHAI will need to access personal data, it is unclear whether situations involving suspected harm to children—whether in a domestic context or elsewhere—strictly will be within CHAI's remit or its sole remit.

Could the Minister clarify this point? Now that policy making for child protection has been transferred to the DfES and the Minister for Children, who will be the lead body when investigations into child abuse allegations take place? Will it be CHAI, Ofsted or neither? If it is Ofsted or perhaps one of the new children's trusts, will that body have unfettered access to personal medical data relating to children? Will such data be freely available in the DfES?

We need to be extremely careful when making data of this kind available to anyone and everyone with a possible interest in accessing it. Members of the Committee will be aware that the recent government Green Paper put forward a number of recommendations, one of which is for a national database of children and families. We are all familiar with why such a recommendation should have emerged in the wake of the report produced by the noble Lord, Lord Laming, into the death of Victoria Climbie. Like so many of us, I have enormous respect for the noble Lord, Lord Laming, and the work that he did.

However, there are dangers as well as benefits in any widening of access to personal data. The first danger that springs to my mind is that of jumping to wrong conclusions. I shall not weary the Committee for too long on what, I have to admit, is an abiding concern of mine. On previous occasions in this Chamber, we have debated how impossible it is for someone who has been wrongfully accused of child abuse to have that designation removed from his or her medical records or from the records of the child. In practice, it is a permanent black mark against that person, even if an allegation has been comprehensively rebutted.

We all want to see child abusers identified and brought to account, but we do not want to see a mushrooming of false allegations which traumatise parents and children and waste valuable public resources. I should be grateful if the Minister could say a little now, or perhaps write to me, about the width of the circle of privileged access that the Government envisage as regards the sharing of children's personal data. If CHAI has automatic access, albeit according to worked-out protocols, who else will be entitled to share in the data? Will the protocols be the same for those people? The more people who potentially have access to confidential data, the more it can be misused or accessed by those who have no business doing so. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

The noble Earl knows from my responses in earlier debates to concerns he has rightly raised about wrongful accusations of child abuse that I have every sympathy with them. It is not something that either I personally or the Government would want to encourage. I understand his position.

In regard to Amendment No. 324ZA, we do not feel that placing Ofsted under a duty to provide information to CHAI in this manner is the best way forward. A duty of co-operation and joint working provisions is already included in the Bill. Further, given the increased remit provided for Ofsted in relation to children set out in our recent Green Paper, Every Child Matters, we think it proper that both bodies should develop appropriate protocols with regard to joint working and information sharing. I am sure that government departments will try to help CHAI with information if necessary, but making it a requirement in primary legislation is not appropriate.

I am sympathetic to the inclusion of the final two bodies listed in the amendment, but neither children's trusts nor local safeguarding children boards have statutory status at this stage. Furthermore, and in response to the inquiry of the noble Lord, Lord Laming, into the tragic death of Victoria Climbie, we are currently considering to what extent these bodies should be put on a statutory footing. Therefore it would be inappropriate to place these bodies on the face of the Bill until the issue of their status has been resolved. Certainly it would go against accepted drafting practice to refer in primary legislation to bodies which do not have statutory status.

CSCI will be the lead body in relation to child protection allegations. It will have the right, where necessary, to access personal data in order to protect the welfare of vulnerable children. The position of CSCI will be considered further in the context of the response to the Laming report. Until that is made more clear, I cannot take the debate much further, other than to reassure the noble Earl that we understand his concerns. However, the amendment does not mark the way forward at this point.

Photo of Earl Howe Earl Howe Conservative

I am grateful to the Minister for that response and I accept that it would not be appropriate to place on the face of the Bill a mention of bodies that do not yet exist. He will understand that this was intended as a probing amendment really to tease out who will take the lead on children's issues. If it is to be CSCI, there is still a question to be raised about whether the edges are in any sense blurred and whether that body will be able to gain access to all the types of premises that it will need to investigate for the purposes of its work in this area.

As regards Ofsted, if it is expected that CHAI should work in close co-operation with it, I am a little surprised that that is not set out on the face of the Bill. Where such co-operation is required, it is important that both sides contribute to the same degree and in the same measure to the work in hand. I should have thought that duties set out on the face of the Bill would not be out of place here. Nevertheless, if it is the considered view of the Government that that is not required, then I bow to their judgment.

Again, I am grateful to the Minister for his explanation. I shall take the issue away and give it further thought. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66 agreed to.

Clause 67 [Power to require explanation]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 324A:

Page 26, line 38, leave out "prescribed" and insert "specified by the CHAI"

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

The government amendments are technical in nature and were suggested by parliamentary counsel.

As I said to earlier, similar, amendments, Amendments Nos. 335A and 361A, under Clauses 67, 73, 89 and 99 regulations may provide for CHAI, the Welsh Assembly or CSCI as appropriate to require prescribed persons to provide an explanation of any documents or information the inspectorates obtain in exercising their relevant powers, or of any matters which are the subject of the exercise of any functions of the inspectorates.

The Bill currently provides that those regulations may require explanations to be provided at times and places set out in the regulations. This is to ensure that it will be possible to require explanations to be provided in person, as opposed to in writing, which we consider will sometimes be appropriate, particularly where the inspectorates come across conflicting data in the course of exercising their functions. These amendments clarify matters in this regard. I beg to move.

Photo of Earl Howe Earl Howe Conservative

I shall speak briefly to my Amendments Nos. 325 and 359, which are grouped with the government amendments.

Can the Minister expand in a little more detail on the full intent and purport of the clause? Clause 67 creates a criminal offence if a prescribed person fails to provide a explanation to CHAI of any documents or other matters referred to in subsection (1) in circumstances as yet undefined. The Minister, however, outlined one set of circumstances, which I found helpful.

We gather that regulations will be laid in due course which will set out the full extent of the power and what exactly is involved. If the Minister can give an inkling of what we can expect to see in the regulations and what kinds of circumstances these provisions are meant to cover, I am sure the Committee will find it helpful. I have also tabled an equivalent amendment to Clause 89, which relates to Wales.

I suggest, I hope not unreasonably, that because we are being presented with not only an empty box but also a new criminal offence applicable to it, the regulations to be laid should be subject to the affirmative resolution procedure to enable them to be guaranteed debating time in both Houses.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

I shall not go over the arguments again of why we think the regulations are suitable for the negative rather than affirmative resolution procedure. They were set out at an earlier stage of our discussion in relation to regulations of this kind.

We are moving the government amendments because there are circumstances under which CHAI, the Assembly or CSCI may require prescribed persons to provide an explanation of any documents or information the inspectorates obtain in exercising their powers. We are trying to ensure that these explanations may be provided not only in writing but in person. We will of course set out in more detail in the regulations those arrangements, but essentially this is about explanations being dealt with in writing or by a personal appearance.

That is the purport of what will be covered in the regulations. I am not sure that I can go much further in trying to clarify what will be in the detailed regulations.

Photo of Earl Howe Earl Howe Conservative

The noble Lord has shed some light on the clause and I thank him for that. We look forward to seeing the regulations when they are published. No doubt these matters will by then have been thought through in even greater detail.

On Question, amendment agreed to.

[Amendment No. 325 not moved.]

Clause 67, as amended, agreed to.

Clause 68 [Reviews and investigations relating to Wales]:

[Amendments Nos. 326 to 331 not moved.]

Clause 68 agreed to.

Clause 69 [Reporting to Secretary of State and regulator]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 332:

Page 27, line 37, leave out "Secretary of State" and insert "CHAI"

Photo of Baroness Noakes Baroness Noakes Conservative

In moving Amendment No. 332, I shall also speak to Amendment No. 333.

Amendment No. 332 amends Clause 69(1), which requires the Assembly to report to the Secretary of State if it believes there are significant failings in an English NHS body. I have argued earlier in our proceedings that it is not sensible or desirable for the Assembly to concern itself with English bodies, but, if it is to do so, we believe that its reports should go to CHAI. The issue of significant failings is unlikely to be related only to the provision of care to Welsh patients. It should be left to CHAI to deliver to the Secretary of State a coherent picture, based on the Welsh perspective and CHAI's own findings.

It is possible that significant failings in an English hospital seen through the Cardiff end of the telescope are not nearly so important when contextualised for the whole of the hospital's activity. I am not suggesting that CHAI should ignore what the Assembly thinks, but the Secretary of State should receive advice on a consistent basis from the body which he has set up for that purpose.

Amendment No. 333 makes a similar provision in relation to foundation trusts. Clause 69(3) has the Assembly reporting to the regulator directly. Our amendment would have the Assembly reporting to CHAI, which can then report to the regulator under Clause 52 if, in the round, such a report is considered by CHAI to be desirable. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

I shall take my cue from the noble Baroness—I shall not have another debate on devolution and will keep my remarks brief.

We believe that the amendments are not necessary. To state the obvious, the Secretary of State is responsible for the overall provision of healthcare in England, while the Assembly, under Clause 68, is given the function of conducting the reviews of and investigations into the provision of healthcare by and for Welsh NHS bodies. As we debated last week, the new independent health inspectorate for Wales is being established to conduct reviews in the same way as CHAI does in England. Our argument is that if the Assembly identifies significant failings, it should report them to the Secretary of State or the regulator, in the case of foundation trusts. These are the people who can make things happen and make changes.

I agree with the noble Baroness that in pursuit of its responsibilities, the health inspectorate might indeed come across failings. It may find those failings in relation to Welsh patients in English hospitals. Let us assume, for example, that CHAI did not inspect a hospital recently or that it never inspected it. If HIW, as part of its programme, makes a decision to inspect that hospital, discussing its programme with CHAI, given its duty of co-operation, any difficulties it comes across will be germane not simply to Welsh patients but will have an impact on English patients as well. Therefore, we believe that this is an opportunity for something to be anticipated. It would be for the Secretary of State to determine what action should be taken to address those failings in accordance with the powers conferred on him by the National Health Service Act 1977, and likewise for the regulator, in relation to his powers under Clause 23.

I emphasise that Clause 141 provides for co-operation where it seems appropriate for the effective discharge of functions. In this context, the provision also extends towards the provision of information, including information on failings relating to English NHS trusts. Clause 126 also provides for CHAI to make and publish an annual report on both English and Welsh NHS bodies. In exercising that function, CHAI will need to have copies of all reports in relation to the functions undertaken by the Assembly, which may include information on failings relating to English NHS trusts.

I hope the noble Baroness will agree that these are reasonable arguments and withdraw her amendment.

Photo of Baroness Noakes Baroness Noakes Conservative

I thank the noble Baroness for her reply, but it has really rather strengthened my resolve on the issue. She said that CHAI would need to report both to the Secretary of State and to the Assembly on health matters. It can report to the Assembly on Welsh matters only if it has information about Welsh matters—but here we have a deliberate information flow that bypasses CHAI and goes somewhere else. There is a real asymmetry here.

We do not believe that the Welsh Assembly should have any role with regard to English hospitals—only CHAI should have a role. If the Assembly is going to do it, however, its findings will need to be filtered through CHAI, otherwise there will be an asymmetry.

Photo of Lord Livsey of Talgarth Lord Livsey of Talgarth Liberal Democrat

I am sorry to intervene in the debate, but I have wide experience of the relationship between the NHS in Wales and the NHS in England. It is extremely important that there is wide consultation, particularly as it affects England. Up to 25 per cent of the patients in Powys go to English hospitals, in Hereford and Shrewsbury and one or two other places. That is a significant cross-border movement of patients, and it is important that they are monitored. The new hospital in Hereford has fewer beds than was formerly the case, which means that patients in Powys have achieved a second-class status in terms of waiting lists. Such matters are extremely important.

Photo of Baroness Noakes Baroness Noakes Conservative

I thank the noble Lord for that intervention. I have never denied that the cross-border flows were important. If the noble Lord had been able to join us on a previous Committee day—I am not sure which one—he would have heard an extensive debate, which the Minister may be rather disappointed that we are not having again today, about the impact of the cross-border flow. In fact, the Minister told us that she herself was a cross-border flow at one stage in her life.

The Secretary of State should get consistent advice on a hospital from one source, which should not be confused by advice coming from separate sources and, in particular, against different standards. The Assembly has decided that it will set its own standards; we do not know how they are going to be different from English standards, but they may be different. The Secretary of State has fundamental responsibility for the English hospitals, and there cannot be a lot of confusing advice about different standards and different patients, who will inevitably be at the margin of the English hospitals.

The Government have not got the measures right. In practice, on the ground, those measures will cause tremendous confusion. If the Assembly says that hospital X in England is somehow failing Welsh patients, what is the Secretary of State to do, other than to try to get an in-the-round assessment via CHAI? That is why the advice should go via CHAI in the first place.

I hope that the Government have another opportunity to rethink their Welsh interface issues before we get to Report stage, because they are really in a dreadful mess. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 333 not moved.]

Clause 69 agreed to.

Clause 70 [Right of entry]:

[Amendment No. 334 not moved.]

Clause 70 agreed to.

Clause 71 [Right of entry: supplementary]:

[Amendment No. 335 not moved.]

Clause 71 agreed to.

Clause 72 agreed to.

Clause 73 [Power to require explanation]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 335A:

Page 30, line 16, leave out "prescribed" and insert "specified by the Assembly"

On Question, amendment agreed to.

Clause 73, as amended, agreed to.

[Amendment No. 336 not moved.]

Clause 74 [Introductory]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 337:

Page 30, line 32, leave out "and their value for money"

Photo of Baroness Noakes Baroness Noakes Conservative

In moving Amendment No. 337, I wish to speak also to Amendments Nos. 338 and 375.

Amendment No. 337 is a technical probing amendment. It seeks to leave out the words,

"and their value for money" from paragraph (d) of Clause 74(2), which sets out the matters with which CSCI should be concerned in particular.

I had always understood that in the public sector value for money was regarded as synonymous with economy, efficiency and effectiveness—the 3Es. Those are the words in statute that go with the value for money functions of the National Audit Office and the Audit Commission. I am not aware of any other source of wisdom on value for money. However, paragraph (b) of Clause 74(2) refers to the effectiveness of services; and paragraph (d) refers to economy and efficiency of their provision but then goes on to refer to value for money, which seems to me tautologous. Will the Minister say what is added to Clause 74(2) by the words "value for money" as the components of value for money have already been specified?

The other two amendments in the group standing in my name and that of the noble Earl, Lord Howe—Amendments Nos. 338 and 375—add to Clauses 74 and 102 the need to safeguard and promote the rights and welfare of elderly people. We have already debated this point in connection with CHAI and I have little to add to that debate. If it is necessary to separate out a vulnerable group such as children, I believe that the case for excluding elderly people is even more important for CSCI than for CHAI given the services that local authorities must provide. I say immediately to the noble Baroness, Lady Howarth of Breckland, that children's needs are undoubtedly important. However, the problem with mentioning children is that the exclusion of other groups may create confusion as regards their relative importance. That cannot be right. I beg to move.

Photo of Baroness Barker Baroness Barker Liberal Democrat

I wish to speak to Amendments Nos. 338A and 376 in this group. No doubt I shall achieve as much success as I have done on every other occasion when I have mentioned these two issues but none the less I shall carry on undaunted.

Along with the three Es and value for money that the noble Baroness, Lady Noakes, discussed it is important that we keep returning to the principle of equity and access to services. Until such time as that is on the face of the Bill I believe that there will be the potential for huge distortions in the provision of services.

Amendment No. 376 is concerned with the inclusion of vulnerable adults. One of social services' most important functions is the delivery of services to vulnerable adults. The definition of "vulnerable adults" is well set out in documents such as No Secrets. Like the noble Baroness, Lady Noakes, I was willing to accept the arguments put forward by the noble Baroness, Lady Howarth of Breckland, about children being overlooked in hospital. However, I am afraid that I do not buy that argument in respect of social services where older people and vulnerable adults are in some cases numerically the largest recipients of services. But, interestingly, they will not always be so. For example, in a number of London boroughs the emphasis is being put very much on children's services because the number of older people is declining. The noble Baroness will not be surprised to hear me say that older people and vulnerable adults have very complex needs. They are equally deserving of being mentioned on the face of the Bill.

But having said that, the noble Lord, Lord Warner, would still be well advised to adopt our amendments that set out duties of equality.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I must speak in this debate partly to put right any misunderstanding that I do not think that groups other than children need priority. I declare an interest as a member of the National Care Standards Commission. Children are in a minority as regards the services that they will receive through CSCI. We know from vast experience that if children do not have emphasis they lose out. These, too, are all vulnerable children. The adults being accommodated are not vulnerable adults. I do not believe that people who go into old people's homes, for example, are necessarily vulnerable. They may need accommodating, but many of them would speak out very strongly if they were described as vulnerable. Indeed, some of them have asked that that terminology should not be used. It is true of some groups with learning difficulties, who see themselves as needing accommodation, but not necessarily as in the vulnerable category.

Most children received into care—I am sure that the noble Earl, Lord Listowel, will say more about them later—are usually vulnerable, so it is terribly important that they be kept in the Bill. That should not in any way detract from the services for other groups, which are actually in a majority with most funding spent on them.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 9:00 pm, 20th October 2003

I admire the stamina of the noble Baroness, Lady Barker, but fortified by dinner I hope that I will also demonstrate stamina on some of the issues. I do not question the importance of the issues that Amendment No. 338A raises. I should point out, however, that the Local Government Act 2000 enables local authorities to do anything that promotes the economic, social or environmental well-being of their populations. However, we should be clear that CSCI is fundamentally an inspector of the quality of social care provision, rather than a regulator of quality of life as a whole. However, those services that it regulates will have a very important impact on an individual's life quality. I will not go all over the argument about equity, as we have set out our position. We do not believe that the amendment is justified.

We have already debated at some length the issues dealt with in Amendments Nos. 338, 375 and 376. I obviously sympathise with those concerned about the vulnerability of older people and certain other adults. The noble Baroness, Lady Howarth, put the case for children extremely well. As I tried to say in an earlier debate, vulnerability in relation to adults is often very much related to the particular circumstances in which a particular adult may find himself. That is extraordinarily difficult to define appropriately in primary legislation, if I may say so without being patronising to many of those groups. That does not diminish the argument that some are vulnerable in certain circumstances, which we are not making. CHAI and CSCI will have regard to their needs, as has been made clear by those organisations already. We do not think it necessary to prescribe all that in the Bill. Indeed, it would be difficult in relation to some of the adult groups about which we have talked.

Amendment No. 337 seeks to remove CSCI's general duty to inspect the value for money of local authority social services departments. That duty has two dimensions. First, it reflects the requirement in the Local Government Act 1999 for local authorities to produce best-value performance plans in relation to their functions, including their social services functions. Currently, under Section 6 of the 1999 Act, it is the duty of every local authority to produce a best-value performance plan. Section 7 of the 1999 Act requires that an external auditor audits each best-value performance plan.

The Audit Commission is responsible for auditing the best-value performance plans that cover a majority of a local authority's services. However, the Audit Commission has done so in the past by drawing on the expertise of the inspectorate for the relevant service, currently the Social Services Inspectorate, which is concerned with those parts of the plans that deal with social services. It is envisaged that in future that role will be taken over by CSCI.

The second dimension of the duty is that it will enable CSCI to continue the joint review function currently taken by the Social Services Inspectorate in conjunction with the Audit Commission. Joint reviews have provided the public with important information about how local councils allocate resources to social services, and whether they deliver value for money. The staff responsible for joint reviews, from both the Audit Commission and the Social Services Inspectorate, will transfer to CSCI. It is thus important that CSCI's duty to look at the value for money of social services is retained to allow that work to continue. That is why it would be inappropriate to accept this amendment.

Photo of Baroness Noakes Baroness Noakes Conservative

May I have clarification from the noble Lord over the point that I put to him in connection with Clause 74(2)? Paragraph (b) talks about effectiveness and paragraph (d) talks about economy and efficiency and then goes on to talk about value for money. I was not trying to eliminate value for money from this matter, I was saying that one already had value for money by the time one reached value for money—because one has effectiveness and economy and efficiency. I asked the Minister what those additional words added. I was not trying to say that CSCI should not look at value for money. Far from it. What are the Minister's views on that?

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

I shall not repeat all the reasons that I have just given, but the essential point is that the Audit Commission has to carry out best value performance plans—auditing—under the Local Government Act 1999, and it looked in the past to the Social Services Inspectorate, in the future CSCI, to produce the expertise in carrying out the audit of that plan. Therefore, we are putting beyond doubt on the face of the Bill the point that CSCI has responsibility in that area. The noble Baroness may not accept our arguments, but that is the reason for the wording in the Bill.

Photo of Baroness Noakes Baroness Noakes Conservative

I thank the Minister; but no, the noble Baroness does not accept that value for money has to be spelt out twice within a couple of lines of the legislation. I hope that the Minister or his officials will look at that issue again, because the answer cannot be to do with liaising with the Audit Commission or about best value performance plans. If the wording has any meaning it is something that has not been to date teased out. That is one aspect of my amendments. The other relates to children.

If we return to the wording of, for example, Clause 74. CSCI "shall be concerned in particular with":

"the need to safeguard and promote the rights and welfare of children".

It is not just a question of dealing with the children who are in care. A much broader function is specified for CSCI. I was trying to add "and elderly people", the noble Baroness, Lady Barker, was trying to add "and vulnerable people", into this much wider concept of simply looking after the very vulnerable, but also promoting and safeguarding their rights. It is a very broad sense here. That is why it is difficult to see why groups other than children have been ignored. We have been through this argument once already in Committee in connection with CHAI. We have the argument again over CSCI.

I feel that the matter has not been satisfactorily bottomed out, and we shall need to return to it again, because at the moment the functions of CHAI and CSCI are being distorted by their emphasis on one very important group, but only one group among the many who ought to have some focus. I shall not press the matter further today. I beg leave to withdraw.

Amendment, by leave, withdrawn.

[Amendments Nos. 338 to 338A not moved.]

Clause 74 agreed to.

Clause 75 [Information and advice]:

[Amendment No. 339 not moved.]

Clause 75 agreed to.

Clause 76 [Review of studies and research]:

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 340:

Page 31, line 17, at end insert—

"( ) The CSCI may conduct or commission such research as it deems necessary to ensure that the future development of care services is based on independent knowledge and expertise."

Photo of Earl Howe Earl Howe Conservative

Clause 76 permits CSCI to conduct reviews of research undertaken by other people in relation to local authority social services. I have no quarrel with this power, but it is unclear to me why CSCI is not being given a power to conduct or commission research directly to enable it to carry out its work in a more informed way. As the clause reads, CSCI will have to sit back and wait hopefully for others to produce interesting information that is relevant to its remit. That does not seem logical or sensible. I hope that the Minister will look constructively on this suggestion. I beg to move.

Photo of Baroness Barker Baroness Barker Liberal Democrat

I rise to speak to Amendment No. 350, which would enable CSCI to produce reports concerning the implementation of Clause 14 of the Care Standards Act relating to registration. This is a probing amendment questioning whether CSCI will have the power to examine the impact of government regulations on home care. The disappearance of care homes has been well documented in debates in your Lordships' House. The passage of legislation through Parliament can have a direct effect on the provision of services at local level. Therefore, we want to be able to see CSCI having a free hand to commission and produce reports on the matter.

Given the Minister's response to a similar amendment, no doubt the Government will not be enamoured by the proposal. Nevertheless, it is an important element in taking a strategic view of the whole of social care within the country—something which CSCI should be able to do and have the freedom to do.

Photo of Lord Turnberg Lord Turnberg Labour

Having spent most of my life engaged in research, or encouraging it and the knowledge gained from it to underpin medical care, I am all for the idea that CSCI should base its ideas on research. Research is certainly needed in this area. However, I am not clear on whether CSCI will be in a good position to be able to do so.

I hope that this short debate will focus the attention of the Government on the need for research of which CSCI can take advantage and in which it can take an interest. I am not sure what the mechanism might be, but I do not believe that CSCI will be set up to undertake that role.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I believe that CSCI will have some of the best sets of data in the world, not only in Europe, because it will have full data on all the establishments throughout the country year on year. From that it will be able to deduce information on the way we are inspecting, what that inspection shows, and how the service can be improved. That will not exist for some years, but it will form the basis of good research in the long term.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

I am grateful for the intervention of the noble Baroness, Lady Howarth. Given her background, she indicates that a great deal of material will in time come forward through CSCI. I am also grateful for the gentle question from my noble friend Lord Turnberg. It is unnecessary to allow CSCI to conduct or commission research to develop and inform its own inspection methodologies because CSCI is already able to do that under Schedule 7, paragraph 2. That provision enables CSCI to,

"do anything which appears to it to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions".

It may be that the amendment is trying to take us down a road where CSCI's functions would be extended into the realm of best practice. If research were for that purpose, that would be inappropriate. The development of best practice is the proper role of the Social Care Institute for Excellence, as provided for in the Government's paper, Quality in Social Care: The National Institutional Framework, which was published in 2001. For those reasons, we believe that Amendment No. 340 is not appropriate.

The noble Baroness, Lady Barker, will be reassured by my consistency of approach in responding to Amendment No. 350, the practical effect of which would be to extend the functions and duplicate powers that CSCI already has. I suggest that it might also divert the inspectorate from its core task of monitoring the quality of both local authority social services and services regulated under the Care Standards Act 2000.

In my view, the amendment is unnecessary for a number of reasons. Under Clause 102, CSCI has a duty to keep the Secretary of State informed about the availability and quality of registered social care services and any other matter connected with the provision of such services under the Care Standards Act. If it was considered that the manner of regulation of the services was having an adverse effect on those services, it would report that to the Secretary of State.

As part of that duty, CSCI must report what it has found in the course of exercising its functions in the annual report to Parliament and the Secretary of State, which it is required to produce under Clause 127 of the Bill. I do not believe that the inspectorate—the noble Baroness may be unnecessarily pessimistic here—would ignore any evidence that its activity was having a detrimental effect on the quality, supply and cost of regulated services under the Care Standards Act. Indeed, CSCI would be in breach of its duty to keep the Secretary of State informed if it did not report such matters.

In view of that, it would be wrong to give CSCI a specific function of looking at the impact of regulation on regulated services. As I said, it is under a duty to do that in any event. Therefore, I do not believe that the amendment is appropriate.

Photo of Earl Howe Earl Howe Conservative 9:15 pm, 20th October 2003

I am grateful to the Minister for pointing out that Schedule 7 permits CSCI to carry out research. The noble Baroness, Lady Howarth, is absolutely right: looking several years down the track, it will be in a prime position to do that kind of work. With that reassurance from the Minister, I believe there is little more that I need to say. However, because I very much respect the noble Lord, Lord Turnberg, and his views, at some point I should be glad of a conversation with him about why he has doubts on this matter. But, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 agreed to.

Clause 77 [Annual reviews]:

[Amendments Nos. 341 to 344 not moved.]

Clause 77 agreed to.

Clause 78 [Other reviews and investigations]:

[Amendments Nos. 345 and 346 not moved.]

Clause 78 agreed to.

Clause 79 [Failings]:

[Amendments Nos. 347 and 348 not moved.]

Clause 79 agreed to.

[Amendment No. 349 not moved.]

Clause 80 [Studies as to economy, efficiency etc]:

[Amendment No. 350 not moved.]

Clause 80 agreed to.

Clause 81 [Joint working with Audit Commission]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 351:

Page 34, line 10, leave out subsections (3) and (4).

Photo of Baroness Noakes Baroness Noakes Conservative

Amendment No. 351 would delete subsections (3) and (4) of Clause 81, which concern the interface between CSCI and the Audit Commission.

Clause 81 starts by being entirely sensible. Subsection (1) states that the Audit Commission and CSCI may exercise their functions jointly. Subsection (2) states that they must co-operate with one another. But the clause goes downhill from there with the appearance of the usual suspect—the Secretary of State.

Subsection (3) seems mild enough and says that the Secretary of State may give guidance to CSCI and the Audit Commission about which should undertake studies. But the sting is in the tail of subsection (4), which states that CSCI and the Audit Commission must take the guidance into account—that is, it is not guidance but a direction. If one compares Clause 81 with Clause 57 it is apparent that a quite different approach is taken to CHAI. There CHAI is put in the lead and it is left to CHAI to agree with the Audit Commission if it wants the Audit Commission to help.

Will the Minister explain why a different approach has been taken as to the allocation of functions between CHAI and the Audit Commission on the one hand and CSCI and the Audit Commission on the other? Will he further explain why the Secretary of State has to intervene at all? Why cannot the overlap of functions be left to the good sense of the Audit Commission and CSCI and their duty to co-operate? Does the Minister have any reason to believe that co-operation between the two will not work out in practice? If he does I am sure that noble Lords will be interested to hear about that. I hope that this is at least one area in which the Secretary of State can be persuaded to give up one of his routes of intervention. I beg to move.

Photo of Baroness Barker Baroness Barker Liberal Democrat

I shall speak to Amendments Nos. 352 and 353. They are probing amendments to tease out the relationship between CSCI, the Audit Commission and the Comptroller and Auditor-General. Amendment No. 352 deals with areas where there should be joint reviews or studies, the requirement to publish information and the fact that CSCI is to produce information to those bodies. Amendment No. 353 requires that the Comptroller and Auditor-General shall report to both Houses on those matters.

The amendments are trying to tease out some kind of coherence between the different regulatory bodies that will be brought together in the hope that we get streamlining rather than a profusion of reports and a duplication of work. It is quite clear that all those different bodies have a role to play in determining the value and effectiveness of social care services. It is not clear how all of them will work together in the perfect harmony that the Minister has assured us the Secretary of State will bring to these matters. I would be pleased to know what he thinks of that point.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

We have already gone over the ground covered by Amendment No. 351, that CSCI and the Audit Commission have a different relationship with local government from that which CHAI has with the NHS and healthcare. The Audit Commission's role in value for money studies is removed in relation to the NHS. In view of time constraints I shall not repeat all the arguments that I made on the previous amendment.

Under normal circumstances we would anticipate that CSCI and the Audit Commission will agree a programme of studies and determine the leadership for each individual project. However, it is possible that there may be circumstances when they are unable to reach such an agreement. Following that, it may be the case that CSCI and the Audit Commission will decide to engage in separate but ultimately very similar studies looking at the same aspects of local authority services. Such duplication would be an unnecessary waste of the resources of the two commissions and, perhaps more significantly, place an unnecessary burden on service providers. Thus in our view it is important that the Secretary of State has the power to prevent such duplication through intervening when there are disagreements between the two commissions. It would be a brave person who, looking into the future, would suggest that there will never be any disagreement between commissions, although it is unlikely.

Issuing guidance as to how they should work together is important. That power to issue guidance is contained in Clause 81(3) and (4) and it is that power that the proposed amendment seeks to remove. I am sorry that the noble Baroness thinks that the clause goes downhill after subsections (1) and (2). We think it retains equilibrium and we do not think that the amendment is appropriate.

We do not think that Amendment No. 352 is necessary because CSCI and the Audit Commission are each required to publish a report of any studies that they carry out under Sections 33 and 34 of the Audit Commission Act 1998, and Clause 80 of the Bill respectively. So it follows that they would have to publish a report—separately or jointly—of any studies which they carry out together in exercising these powers. The NAO already has a right of access to information held by CSCI should it need it for the purpose of auditing CSCI.

On Amendment No. 353, I do not believe that giving the NAO a specific power to report to Parliament on the work of CHAI and CSCI under Part 2 of the Bill is necessary or appropriate. The NAO can already report to Parliament in relation to CHAI because of the Comptroller and Auditor-General's powers under the National Audit Act 1983. The Comptroller and Auditor-General is the auditor of the NHS summarised accounts, which cover all NHS spending and for which there is no equivalent on the local authority side. In undertaking that audit, the Comptroller and Auditor-General will of course need to know of anything identified by CHAI in its work, in order to consider whether it should affect the response given in his audit. That is the principal reason why CHAI is required to provide copies of reports.

However, in addition, CHAI will be taking over responsibility for all national and local studies of NHS provision that are currently carried out by the Audit Commission. Thus, it will take on the responsibility to provide, at the Comptroller and Auditor-General's request, any material relevant to reviews or investigations it undertakes. That is made clear in Clause 60.

On local authority services, the Audit Commission will retain responsibility for value-for-money studies in relation to local authorities and will also retain the responsibility for providing information to the Comptroller and Auditor-General. CSCI will carry out value-for-money studies about local authorities under Clause 80 of the Bill and can be required to provide copies of reports produced under this section to the Comptroller and Auditor-General. Furthermore, the Comptroller and Auditor-General already has powers under the National Audit Act 1983 to report to Parliament.

I hope this explanation, which I cantered through, will reassure the noble Baroness that the amendment is unnecessary.

Photo of Baroness Noakes Baroness Noakes Conservative

I thank the Minister for that comprehensive reply. I shall concentrate on my own amendment which deals with the interface between CSCI and the Audit Commission. I also thank the noble Lord for his explanation of the difference between the treatment of CHAI and of CSCI in the interrelationship with the Audit Commission. We come back again to the Secretary of State not trusting the bodies, with which he is associated, and which were created to get on and do a good job. This is a recurring theme of the Bill. The body was set up so that the Audit Commission and CSCI can work jointly; it was set that they have to co-operate but then the Secretary of State has to come in and tell them how to do it.

We do not think this power is anything like necessary. To say that it demonstrates perhaps a lack of trust is putting the matter too lightly. It is a real unwillingness to let go of the levers of power and control. I can quite understand why the Secretary of State might want to have a lever over the Audit Commission because it can be jolly inconvenient at times. The Secretary of State and people in the health department have found that out, because it is fearless and independent.

We should think very carefully about whether or not we give the Secretary of State power in effect to call the Audit Commission off a particular area. This is getting into extremely difficult and dangerous territory and one that may well compromise considerably the independence of the Audit Commission to the detriment of accountability. I shall read Hansard and consider carefully what the Minister has said. I should say that this matter is far from closed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 352 and 353 not moved.]

Clause 81 agreed to.

Clause 82 agreed to.

Clause 83 [Criteria]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 354A:

Page 34, line 23, after "77)" insert—

"( ) to consult any person specified in the regulations before publishing any such statement;"

On Question, amendment agreed to.

[Amendments Nos. 355 and 356 not moved.]

Clause 83, as amended, agreed to.

[Amendment No. 357 not moved.]

Clause 84 [Fees]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 357A:

Page 34, line 29, after "authority" insert "or to an English local authority social service provided by, or pursuant to arrangements made by, that authority"

On Question, amendment agreed to.

[Amendment No. 358 not moved.]

On Question, Whether Clause 84, as amended, shall stand part of the Bill?

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

This is a useful opportunity for the Minister to assure us about the fees that may be charged by CSCI under the clause. The Social Services Inspectorate does not currently charge local authorities for the provision of inspection services, but the National Care Standards Commission does. The Bill provides charging powers for CSCI to cover the former SSI and NCSC functions. Needless to say, local authorities are concerned that CSCI will be charging them for standard social services inspections, which would be a change to former practice. What reassurances can the Minister give us?

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

As the noble Lord said, the clause provides a power for CSCI to determine and levy fees on local authorities when carrying out any review or inspection of local authority social services. We believe that it is important that CSCI as a body is independent of the department. That is common ground across the Committee. Part of that is its ability to raise revenue through fees. The Secretary of State will have no involvement in the setting of those fees. That will allow for a clear and more direct relationship between the inspecting body and the local authority.

There have been concerns that an independent body will be able to levy high fees on local authorities, but I believe those concerns are unfounded. In the first instance, the commission will be required to consult appropriate persons before setting the scale of fees. We consider that such appropriate persons would include bodies such as the Local Government Association and the Association of Directors of Social Services, which would have a clear interest in the nature of any charge levied on local authorities, as well as the local authorities themselves. We also expect that such a consultation process would take place before the publication of any revised schedule of fees.

Subsection (6) also provides a power that would enable the Secretary of State to make regulations that would allow an independent person or panel to review the charge that CSCI has set, if it has set an unreasonable charge in individual cases.

We want CSCI to be able to demonstrate its independence and the value of its work by charging reasonable fees where appropriate. There are safeguards in the Bill and the provisions in the clause will enable a proper balance to be struck.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

I thank the Minister for that helpful response. It is not a cast iron situation, but subsection (6) gives some redress to a local authority faced with unreasonable fees. As the Minister says, we hope that from the outset the consultation process will ensure the right level of fees.

Clause 84, as amended, agreed to.

Clauses 85 and 86 agreed to.

Clause 87 [Right of entry: supplementary]:

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench 9:30 pm, 20th October 2003

moved Amendment No. 358ZA:

Page 36, line 8, at end insert—

"( ) interview in private, or solicit written or verbal expressions of opinion from, any child or group of children who consent to be interviewed or to express their views, as the case may be;"

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I shall speak also to Amendment No. 358ZA. I wish to ensure that inspectors can freely seek children's views when inspecting welfare in services for children. That may affect vulnerable groups other than children, such as other adults in care.

The Children's Rights Director, Roger Morgan, to whom Parliament has given the specific job of continually ensuring that the commission properly listens to children in all that it does, has recently asked both children and inspectors what they consider to be key elements of effective inspection. Children said that inspectors must listen to children. I agree with them; I am sure that everyone does. Inspectors confirmed that listening to children is an efficient source of evidence for judging whether they are safe and properly looked after. I agree with that, too, having been involved in situations where children were not listened to. The Children's Rights Director will now be carrying that forward for us into the future integrated inspection framework envisaged in the Green Paper. I hope that the Children's Rights Director will continue regardless of any future commissioner discussions, although I recognise that the Minister might say that that is an argument for another time and another place.

I am concerned that there are two limitations in the Bill on how far inspectors can listen to children effectively. First, Clause 87 refers only to interviewing in private; yet other ways of asking children's views are needed on inspections, such as the use of surveys, group discussions, inviting children to consultation days and electronic means of seeking views. We need to be assured that inspectors can use all those ways, and more, and not be limited only to interviewing children in private. I do not read the very specific term "interview in private" as covering all those other ways of asking and listening to children.

The second limitation is that the Bill gives inspectors the power to interview, and therefore to seek views from, only children accommodated or cared for at premises to which inspectors have a legal right of entry. That is not good enough. Inspectors also need to be able to seek views, in reasonable and practicable ways, from, for example, foster children who live, or are cared for, in the homes of their foster carers, not in any premises to which inspectors have a right of entry.

As it stands, having a power only to seek views from children who live where there is a power of entry means that inspectors can only legally ask foster children for their views and experience of fostering in a fostering service that they are inspecting, and if they ask permission of someone else first. That alerts anyone about whom the children may want to talk. That cannot be right. Inspectors have their own power to seek the views of children when inspecting other services, such as children's homes, schools and colleges, subject only to the consent of the children themselves. They need the same power to talk to foster children.

As the Minister will understand, my probing amendments are intended to ensure that inspectors can always ask children for their views and experiences, when inspecting their safety and welfare, in more ways than private interviews, and regardless of whether the children live or are cared for at premises being inspected. That is needed to safeguard children.

I am not asking for powers that inspectors do not already have in relation to other children's services. Under the inspection of schools and colleges regulations, under the Children Act 1989, inspectors have already been given the power to ask children for their views in more ways than private interviews.

I am not asking for inspectors to have any right of entry to private houses, such as foster carers' homes. That would not be appropriate and would go beyond the powers that they already have in other settings. But, together with the Children's Rights Director, I have talked to groups of children from foster homes about their experiences, with great and vivid backgrounds. My amendment would give inspectors the power to seek children's views by those and other reasonable means. I would be pleased to hear the Minister's view. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

I appreciate the concerns that lie behind the amendment. We are aware that concerns have been expressed that the powers in the Bill are not sufficiently wide to enable CSCI to interview groups of children receiving local authority services or to elicit information from them, with consent, regardless of whether they are accommodated at premises to which there is statutory access. We consider that the concerns are misplaced.

Under Clause 87(1)(c), a person authorised by CSCI to enter and inspect premises is already able to interview in private any person accommodated or cared for at those premises who consents to be interviewed. We are advised that there is no reason why this power would not allow an employee of CSCI to interview any child or group of children in private already. The reference to conducting an interview in private was included in the Bill to make it clear that the commission could interview in private if it and the person being interviewed thought it appropriate. There is no reason why it must interview in private.

Solicitors advise us that verbal or written expressions of opinion can already be solicited from children who consent to be interviewed under the provisions of the Bill. CSCI has powers at Clause 88(1) that allow it to require any person to provide it with information that is necessary or expedient for the purposes of its functions under Chapter 5. That would enable any person authorised by CSCI to obtain the details from a local authority of any children from whom they believed it would be necessary or expedient to elicit information, for the purposes of assessing how well a local authority was carrying out its children's social services functions.

We are advised that there is no need for an explicit power in the Bill to enable CSCI to use this information to contact children to elicit their views about the services they are receiving. They can already do that to the extent that they consider it necessary to judge the quality of services. Obviously, what form the contact will take—a letter or telephone call, for example—will depend on CSCI's judgment of what is appropriate in individual cases.

Amendment No. 376A is also unnecessary. The Bill will already enable employees of CSCI to elicit views or information from children receiving inspected services without the permission of another party, such as a local authority. That is the case regardless of whether the child concerned is accommodated in a premises to which the inspectorate has a statutory right of access, such as a registered children's home, or whether they are accommodated in a private home under fostering arrangements.

The specific issue of whether the children's rights director would be able independently to contact children in foster care, including private fostering, and pre-adoption arrangements had been raised with the department by the NCSC. I can confirm that the provisions already in the Bill will allow the CRD to collect information about where such children are living and to contact them to seek their views, when he judges that this is necessary in individual cases to enable him to assess the quality of services provided. Since the Bill already allows for such things, the amendment is unnecessary.

I hope that that reassures the noble Baroness and that she will withdraw the amendment.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I am grateful to the Minister for putting those assurances on record, for reasons that he will appreciate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 87 agreed to.

Clause 88 [Power to require information etc]:

[Amendments Nos. 358ZB and 358ZC not moved.]

Clause 88 agreed to.

Clause 89 [Power to require explanation]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 358A:

Page 37, line 19, leave out "prescribed" and insert "specified by the CSCI"

On Question, amendment agreed to.

[Amendment No. 359 not moved.]

Clause 89, as amended, agreed to.

Clauses 90 and 91 agreed to.

Clause 92 [Reviews and investigations]:

[Amendments Nos. 360 and 361 not moved.]

Clause 92 agreed to.

Clauses 93 to 98 agreed to.

Clause 99 [Power to require explanation]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 361A:

Page 41, line 19, leave out "prescribed" and insert "specified by the Assembly"

On Question, amendment agreed to.

Clause 99, as amended, agreed to.

Clause 100 [Transfer of functions to CHAI and CSCI]:

Photo of Baroness Barker Baroness Barker Liberal Democrat

moved Amendment No. 362:

Page 41, line 29, at end insert—

"( ) In the Care Standards Act 2000 (c. 14), after section 23(2) (national minimum standards) insert—

"( ) In reviewing standards the appropriate Minister must ensure that lower standards are not applied to Parts 2 and 3 services received predominately or exclusively by people at or above state pensionable age.""

Photo of Baroness Barker Baroness Barker Liberal Democrat

In moving Amendment No. 362 I shall speak also to Amendments Nos. 363, 364, 365, 367 and 368, which are grouped with it. These amendments deal with the transfer of functions to CHAI and CSCI. The latter two are designed to tease out exactly where responsibility for certain inspection functions will lie.

Amendment No. 362 deals with a subject close to the heart of many noble Lords, because we debated it at considerable length during the passage of the Care Standards Act—national minimum standards for residential and care homes. Earlier this year the Government rowed back from the exacting standards for building regulations which they set themselves in that Act. However, those standards applied only to services for adults and not to those for older people. Amendment No. 362 is designed to pose the following question. What happens when an adult who has been a recipient of care services in a residential setting reaches the age at which they are deemed to become an older person—usually considered to be pension age—as regards social care? Will they be moved? On their birthday will they be subjected to a lesser minimum standard? Will they be transferred by local authorities to different premises, and will CSCI report and investigate such matters?

Amendments Nos. 363 and 364 address the issue of non-NHS healthcare provided by an NHS or non-NHS body under the National Health Service Reform and Health Care Professions Act 2002. These amendments are designed to ask the following question. Where healthcare services are provided principally to people in residential care settings and they are provided by private providers, will CHAI or CSCI have the duty to inspect? A number of residential and nursing homes rely on private services such as private dentistry. Which of the two bodies will have the duty to inspect and regulate those?

The remaining amendments, Amendments Nos. 365, 367 and 368, deal with excepted treatments.

It is well known that one of the biggest challenges facing healthcare is the management of long-term and chronic conditions. These amendments question which body will have regulatory responsibility to look after the interests of people who have long-term conditions, which are not acute conditions, but are continuing conditions.

The amendments were clearly tabled some time ago. They have an added importance because the last day on which the Committee met, the Minister made his somewhat jaw-dropping assertion that the NHS retained little responsibility for long-term rehabilitation. To be clear and fair to the Minister, he said that they were matters which are now largely carried out in the community as a function of social services. Therefore, it is apt and right that we should ask the questions posed in the amendments. I beg to move.

Photo of Earl Howe Earl Howe Conservative

I rise briefly to support Amendments Nos. 365, 367 and 368, to which I have added my name. It may be that the expression "long term conditions" is not quite appropriate in the context of this clause, but the point made by the noble Baroness is, nevertheless, extremely well made. The difficulty with alcohol addiction centres, for example, and clinics which look after patients with acquired brain injuries, is that they fall across the definitional divide, as between mainstream healthcare and mainstream social care.

Often the reason why a particular facility is inspected by the NCSC rather than the Commission for Health Improvement is an accident of history. What we need to bear in mind is the need for institutions to be inspected by those who have a proper understanding of the work being carried out in them. Brain injury units—I visited one recently—have much more in common with acute hospitals than with residential care homes. Substance abuse clinics, equally, have precious little to do with social care and a great deal to do with specialised and intensive treatment regimes. I suggest that both should be under the wing of new CHAI.

Regulation, when it happens, needs to be appropriate. Like the noble Baroness, I am worried that arbitrary and inconsistent decisions may be taken over the regulation of these centres, which may not make sense or be appropriate to the activities in question.

Moving on briefly to my Amendment No. 370, this amendment has a very simple purpose which is to incorporate the Government's stated intention to allow CHAI to regulate private dentistry. The Bill is an obvious opportunity to meet that commitment. Earlier this year the OFT published its report into the private dentistry market, which highlighted a number of key concerns. Chief of these were that consumers are not able to access information to enable them to make informed choices; consumer complaint procedures are inadequate; and some regulation of dentistry may be unnecessary.

On the consumer front, work clearly needs to be done by the Government and the GDC to address standards of care in dental surgeries, as well as consumer-related issues, such as clear pricing, itemised accounts, whether this or that treatment is private or on the NHS, and what kinds of treatment are available. It makes sense for new CHAI to take an active part in the discussions and to be the body responsible for monitoring the standards when they are in place.

As regards complaints, there must obviously be an accessible procedure available for patients. Once again, CHAI and the GDC need to be in close communication about how such a system is to work. I hope that the Minister will be receptive to the amendment. If he cannot accept it as it stands, I hope that he will at least wish to take the proposal away to look at it constructively.

Photo of Lord Colwyn Lord Colwyn Conservative

Perhaps I may be allowed a few seconds intervention. I have been sitting here since about three o'clock today. This is the first time that we have heard the words "dentists" or "dental services", and I am on my feet. I, too, welcome the amendment and support all that my noble friend said. It is important that CHAI—or having heard the noble Baroness, Lady Barker, perhaps it may be CSCI—should monitor availability, quality and access to dentistry and independent dental services. As the remit of the two bodies increases, I should like confirmation from the Minister that they will not include dealing with complaints and complaint handling.

As my noble friend Lord Howe has just mentioned, the OFT report has made quite a considerable impact on the dental profession. Indeed, as soon as the legislation is in place, the General Dental Council is planning to produce regulations to monitor the independent sector. Perhaps Clause 101 will negate the need for that, which would be wonderful so far as I am concerned because, year on year, an ever-increasing amount in respect of retention fee may not now be necessary. I look forward to hearing what the Minister has to say.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 10:00 pm, 20th October 2003

I feel a little like Marcus Trescothick on reaching his hundredth; I now take guard for the next hundred. In order to address the long wait mentioned by the noble Lord, Lord Colwyn, if the Committee will bear with me, I shall deal first with Amendment No. 370. We certainly support wholeheartedly the intentions behind this amendment. In June, in the Government's response to the OFT report, The Private Dentistry Market in the UK, we made a commitment to include private dentistry within CHAI's remit. The OFT concluded that the public needed better protection from a small minority of dentists who were providing poor-quality services and, often, being less than transparent about their charges for those services.

However, we are planning to introduce the necessary provisions by means of secondary legislation. Section 2(7) of the Care Standards Act 2000 contains a list of services within the remit of the National Care Standards Commission. Included in this list at Section 2(7)(b) are,

"dental services under general anaesthesia".

Accordingly, the National Care Standards Commission is already empowered to regulate dental practices providing general anaesthetics. As a result of this Bill, the commission's responsibilities in relation to private health and dental care will become CHAI's.

Section 2(8)(c) provides for the definitions of the listed services at Section 2(7) to be modified by regulation. We propose to modify the definition at Section 2(7)(b) to read,

"dental services under local and general anaesthetic", which, since local anaesthetics are an integral part of dental practice, will have the effect of bringing all private dental practices within the remit of CSCI and CHAI.

The advantage of this legislative route is that we are required to consult interested parties about changes in CHAI's remit. Shortly we will work up a draft together with greater detail on how the existing regulatory framework might be adapted to apply to wider dental practice and circulate it to the bodies concerned with dentistry and consumer interests. We would aim to have the regulations in place during 2004.

I hope that, in the light of those reassurances to the noble Lord, Lord Colwyn, the noble Earl will feel able to withdraw his amendment.

Turning back to Amendment No. 362, it is of course desirable that lower standards should not be applied to services for older people. It is already the case that the national minimum standards must be applied to services under Part 2 of the Care Standards Act regardless of the age of the individual receiving those services. The consultation process prior to the introduction of services ensures that the standards we develop do not have a disproportionate effect on any set of service users.

The amendment also appears to assume that discrimination against older people takes place in the application of national minimum standards. This is not the case. Those standards are based on the type of establishment or agency in or from which an individual is receiving services, and not the predominant age of the person receiving those services.

Section 24(3) of the Care Standards Act provides that the national minimum standards must be consulted before they may be introduced. This allows for the views of service user groups to be taken on board and acts as an extra safeguard to ensure that national minimum standards do not unintentionally discriminate against any one set of users. We do not think, therefore, that this amendment is necessary.

I turn now to Amendments Nos. 363 to 368, which concern the division of responsibilities between CHAI and CSCI. We have been over this ground at length, although the Government do recognise that it is not always easy to distinguish between where the provision of healthcare ends and the provision of social care begins for the purposes of regulation. This matter was considered in depth when the White Paper, Modernising Social Services, was published in 1998. At the time, Ministers decided, on the basis of the subsequent consultation and in the best interests of service users, that all provision that did not provide acute services led by medical staff, but provided substantial levels of personal care would in future be regulated as care homes. This is the provision about which the Independent Healthcare Association, among others, has been concerned.

When developing the Bill, the Secretary of State decided that the future division of the National Care Standards Commission's responsibilities should be based on the current categories of establishments registered under the Care Standards Act to avoid confusion and disruption. This meant that services that would currently be registered as private and voluntary healthcare services would be transferred to CHAI. We believe that care homes providing nursing should remain registered by CSCI rather than giving regulatory responsibility to CHAI because of the very high levels of personal care provided in such services.

It is the Government's view that services providing long-term care and treatment for drug and alcohol abuse are not providing acute medical intervention, as do hospitals, for people with these conditions but are providing secondary care to aid recovery or to manage on-going secondary symptoms. These facilities may have substantial input by nurses and allied health professionals, but have limited input from doctors.

Nevertheless, these services are also providing substantial personal care for service users, including some of the most intimate forms of care, and, in common with other care homes providing nursing and personal care, we believe that these services should properly continue to be regulated by CSCI so that their welfare needs can be most appropriately met. CSCI will, of course, be able to seek assistance from CHAI where healthcare professional expertise is needed.

The amendments tabled have the intended effect of transferring the regulation not only of those services highlighted by some—for example, those supporting recovery from brain injury or recovery from drug or alcohol abuse—but of any long-term condition. So this would mean that elderly people with Alzheimer's who received any kind of nursing or other health service in their care home would be regulated by CHAI. The personal care and welfare needs of these service users, which most certainly are equal to or greater than any health need, and are probably their major need, would not be appropriately covered by the regulatory framework under the 2000 Act under these amendments. I was not saying earlier that rehabilitation was not an important part of healthcare; I was saying that in many of the cases we have discussed in regard to this issue personal care needs are the dominant factor.

Under Clause 118, the Bill provides for joint working between CSCI and CHAI. The intention here is that the commissions should be able to plan to work together to review the quality of joint services between the NHS and local authorities and share expertise where services regulated by either commission have substantial health or social care aspects. For the reasons I have given, we do not believe that the amendments are needed.

The effect of Amendment No. 369 would be to remove CHAI's duty to keep the Secretary of State informed about the general provision, availability and quality of independent healthcare provision. CHAI's general duty of keeping the public informed about the provision of independent healthcare is well established.

It is entirely proper that the Bill clearly states that CHAI, in addition to its other duties, has a more general duty to keep the Secretary of State informed about the general provision, availability and quality of independent healthcare provision. It is a significant role of CHAI, using all the information it will have to hand about the performance of independent healthcare providers, to advise the Secretary of State on issues about the availability and quality of care—care which, in many cases, is used also by NHS patients.

CHAI has a prominent role to play in the continued evolution of independent healthcare provision. The amendment, if carried, would significantly hinder the fulfilment of this role.

Photo of Baroness Barker Baroness Barker Liberal Democrat

I thank the Minister for that reply. It confirms my on-going belief that we have no agreement whatever about the boundaries between healthcare and social care. We have not had agreement in all the Bills on which I have worked, so it does not come as a surprise now.

I do not believe that the situation is anywhere near as cut and dried as the Minister makes out. It is entirely possible that identical units doing identical work in different buildings and different institutions with different designations could be subjected to completely different regulation.

The Minister mentioned Alzheimer's disease services. It is entirely possible that people could find themselves in something designated a care home, receiving exactly the same treatment as they would in a nursing home, but the two homes would be subject to completely different regulation.

I believe that as long as this inconsistency exists, there will be a risk of duplication and of inappropriate regulation by the wrong body. I therefore do not share the Minister's confidence that all will be cut and dried. I have no option but to withdraw the amendment at this stage, but the concerns remain and they are very strong. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 363 to 365 not moved.]

[Amendment No. 366 had been withdrawn from the Marshalled List.]

[Amendments Nos. 367 and 368 not moved.]

Clause 100 agreed to.

Clause 101 [General functions of CHAI]:

[Amendments Nos. 369 and 370 not moved.]

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 371:

Page 42, line 15, at end insert—

"( ) The CHAI shall ensure that so far as it is practicable the standards and procedures applied to its responsibilities in relation to independent health services are the same as those applied to services provided by or for NHS bodies."

Photo of Earl Howe Earl Howe Conservative

In moving Amendment No. 371, I shall speak also to Amendment No. 377.

It is decidedly welcome, as we have said on a number of occasions, that with the creation of CHAI and CSCI we shall now have a single regulator for the state and independent hospital sectors combined, and a single regulator for private and state-run care homes. But having a single regulator in each case is not, of course, enough. Both the private and state sectors have to be judged according to a uniform set of standards.

At the moment, independent sector hospitals work to minimum standards and published sets of regulations which, although having the merit of being transparent, are decidedly bureaucratic. NHS hospitals work to the principles of clinical governance, which are much less explicit. We are living in a time when partnership working between the two sectors is increasing. The concordat means that independent hospitals are treating more and more NHS patients. It is quite simply against those patients' interests for the standard of care that they are entitled to expect to differ according to which sort of hospital they are in. They need to know that there is a level playing field on which NHS and independent facilities are judged alike. Consultants also need to know that since, of course, many work in both sectors.

There ought to be a timetable for this. I am suggesting that the Government should publish such a timetable within a year of the Bill coming into force, with a goal of achieving convergence within five years from that point. That ought not to be seen as excessively ambitious.

It is not enough for this simply to be a vague aspiration. I should like to hear whether the Minister will take this concern on board. It would be most regrettable if CHAI were just to continue with a separate approach towards each sector. Perhaps one way of moving towards a convergence of standards would be for CHAI to address the regulation of the new diagnostic and treatment centres which are to be run by both NHS and independent providers. I beg to move.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

I shall speak to Amendment No. 377. We on these Benches welcome the creation of single regulators for both state and independent—or public and private—sectors. It never made any sense that independent hospitals and care homes should be regulated by different regulators from publicly run facilities, and we made no bones about that when the respective Bills were going through this House.

However, we need to go further, as the noble Earl, Lord Howe, has made clear. We are moving into the era of a mixed economy of providers of acute care in particular, but there still will not be consistency between public and private provision. While both sectors may have the same regulators, it appears that they will still continue to be judged by very different sets of standards. At a time when partnership working between the two sectors is increasing and when the independent or private hospitals are treating ever-more NHS patients, this cannot be justified. The noble Earl, Lord Howe, referred to diagnostic and treatment centres as one example; indeed, commissioning is increasingly taking place at large for elective surgery from the private sector and from the NHS.

Amendment No. 377 proposes a clear mechanism whereby the Government are required to publish a timetable to ensure that the private and public sectors are judged by the same standards. For the benefit of patients, there needs to be a common set of standards and a clear mechanism for achieving that.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

In speaking to the amendment, I remind noble Lords of my previous reference to the range of various interests that I have in the health service. In particular, I refer to my advisory role with Beechcroft Wansbroughs, which provides advice to both the NHS and private sector organisations.

I do not want to react unduly to the remarks made by the noble Lord, Lord Clement-Jones, and go back over old ground about the original decision to treat regulation of the independent sector differently from management of the NHS. A lot of water has flowed under the bridge. In this Bill, it is right to bring the regulation of both the independent sector and the NHS under the same umbrella inspectorate. However, I am persuaded that the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, are right about the need for a level playing field.

We are moving from a situation in which the NHS was seen as a service provider to one in which the NHS must be seen much more as a healthcare system. The role of government is to provide the money to ensure that national standards are set and that inspection takes place to make certain that standards are up to scratch. It follows that it matters less who provides those services. From the increase in the use of the independent sector by the NHS, and from the Government's own stated policy to encourage diversity of provision, it is clear that, in terms of the work of CHAI, there ought to be a level playing field between the NHS and the independent sector.

As the noble Earl, Lord Howe, intimated, at the moment CHAI inspects the NHS on clinical governance, whereas the NCSC inspected the independent healthcare sector against national minimum standards. As the new CHAI becomes established, I agree that it would be very good if the Minister could tell us at what stage CHAI will start to inspect both the independent sector and the NHS according to the same regime. Long-term, that must make sense. It is difficult to bring those two inspectorate regimes together in a short space of time, because that would have enormous consequences for the NHS and the independent sector. However, it would be very helpful to both sides to know when those standards will converge.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

The standards in the social care sector applied to the independent services and local authorities under the Care Standards Act 2000 are already consistent, so that the same quality standards apply to independent care home or children's home providers as apply to local authority providers. There is no substantial difference. The National Care Standards Commission regulates local authority providers and independent providers against the same criteria when determining whether standards are being met. That will remain the basis on which CSCI will take over the regulatory work to be transferred to it from the National Care Standards Commission under the Bill.

On the NHS and healthcare the issues are a little more complicated. We have already made a commitment to apply similar standards to both sets of providers over time. However, while it is likely that there will be a great deal of coherence between NHS standards and the current standards for independent healthcare, I remind noble Lords that the range of activities and services provided by the NHS is much greater than that supplied in the independent sector. Of course where the independent sector is providing a set of services under contract to a health authority, those will be consistent with standards applied to the NHS and will be inspected and regulated on that basis. The position is slightly different where the independent sector is not providing those services in effect directly to NHS patients as part of the NHS.

CHAI will ensure that independent care provision will continue to be provided at a level comparable to that achieved by similar organisations within the NHS. The role of CHAI is to provide an independent assessment against standards set by government for both the NHS and the independent sector. Such standards are not set in stone and we expect to review and revise them over time. CHAI, by the power in Clauses 53(2) and 101, which amends the Care Standards Act 2000, is empowered to advise the Secretary of State of any changes which it thinks should be made for the purpose of securing improvements in the quality of healthcare provided and in the relevant standards. This is an appropriate role for CHAI using all the information that it will have to hand about the performance of both NHS and independent healthcare providers. It will advise the Secretary of State where standards may need amendment or development.

It is not our intention that NHS care standards will totally subsume the national minimum standards for independent healthcare providers but we expect that over time a common set of standards covering both NHS and independent healthcare providers will be developed. CHAI has a proper role in this but we do not think that it is appropriate at this point to set a prescriptive timetable in the way in which the amendment suggests. We think that the work needs to be built up over time.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat 10:15 pm, 20th October 2003

I grow more confused by the Minister's reply. I do not know whether it is due to the hour but I certainly did not understand all the language in that response. Indeed, I was not entirely clear even about the thrust of it. Is it the intention to develop a common set of standards? The Minister may not accept the timetable or the setting of a clear timetable, but is it the Minister's intention that CHAI should develop common standards as between the independent healthcare sector dealing with private sector patients—I accept that two different kinds of patient go through the independent healthcare sector—and the standards which are applicable to NHS patients?

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

I was trying to be cautious. We accept the need for convergence; we do not accept the need for convergence within a prescriptive timetable. I was saying that as services are provided by the independent sector under contract to the NHS, they will be assessed under the standards that apply to the NHS. They will have to meet those NHS standards that are set by the Secretary of State.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

I hope that my noble friend will give the matter further consideration before Report. Two issues arise from the matter. First, my understanding is that most independent hospitals provide some services to the NHS through contracts. If we are to take it that an independent hospital is providing services to those patients according to NHS standards, that would suggest that achieving convergence would not be a problem for many of those hospitals as they have already achieved convergence in relation to a proportion of their patients. Secondly, with the introduction of the choice policy and national tariffs, the issue of a level playing field surely relates as much to the independent sector as to the NHS. That is why it is important to give a date when convergence will be reached.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

I would like to make one further observation, at the risk of alienating the Committee at this time of night. From what the Minister has to say, theoretically over the next two or three years there could be two patients—one an NHS patient, another a private patient under an insurance policy or whatever—next to each other in the same ward or the same independent hospital with two different standards. That is a completely crazy situation, and not one envisaged by the merger or by the fact that the National Care Standards Commission is no longer dealing with acute healthcare, with everything going into CHAI.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

We are not denying that there is an issue. We are saying that we do not want to be prescriptive about the speed at which we can deal with the issue at the moment. I hear the concerns expressed by Members of the Committee, especially those from behind me, and I will take the matter away and consider whether we can do anything more to reassure them.

Photo of Earl Howe Earl Howe Conservative

The amendment is very simple and straightforward. It is not very ambitious in what it proposes. I am very grateful to the noble Lord, Lord Hunt, for his support, and I agreed wholeheartedly with what he said. It should not matter to the patient where he is treated, only that the treatment that he receives is of the same high standard in any equivalent setting. Comparability, which I think was the word used by the Minister, does not carry the same connotations to me as uniformity and consistency.

My amendment proposes a time-scale that can be described as prescriptive but, if no time-scale is set, we could be sitting here in 10 years' time with nothing substantively having changed. If it is true that diagnostic and treatment centres and services provided under contract to the NHS will be judged under an equivalent set of standards, as the noble Lord, Lord Hunt, said, that suggests that achieving convergence will not be as difficult as the Minister makes out. This is really a matter of principle on which I would like to test the opinion of the Committee.

On Question, Whether the said amendment (No. 371) shall be agreed to?

Their Lordships divided: Contents, 29; Not-Contents, 54.

Division number 2 Private Parking: Ports and Trading Estates — Health and Social Care (Community Health and Standards) Bill

Aye: 27 Members of the House of Lords

No: 52 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

[Amendments Nos. 372 to 374 not moved.]

Clause 101 agreed to.

Clause 102 [General Functions of CSCI]:

[Amendments Nos. 375 to 376A not moved.]

Photo of The Earl of Listowel The Earl of Listowel Crossbench 10:32 pm, 20th October 2003

moved Amendment No. 376B:

Page 43, line 25, at end insert—

"( ) The CSCI shall have particular regard to support for residential care staff with responsibility for children."

Photo of The Earl of Listowel The Earl of Listowel Crossbench

The purpose of this probing amendment is to learn what priority support for residential child care staff tending children in care will have for the new inspectorate. I apologise for not drawing the amendment more narrowly to concentrate on children's homes, as had been my intention.

Despite recent welcome innovations, such as minimum standards, Quality Protects and Choice Protects, residential care staff in children's homes require special attention. They deal with our most challenging and needy children. For the most part, they remain unqualified in contrast to the high level of professional qualification required for such residential care staff across Europe. There has been delay in qualifying the workforce in National Vocational Qualification level three. We hope that 80 per cent of them will now be so qualified by 2005. NVQ level three is still well below that required on the continent, welcome though it is.

There has been a long, sad history of professional misconduct. The sector is small and shrinking further, so there is a danger of it being overlooked. Yet success in residential care provision is important to success in increasing placement stability and outcomes for children in care.

Staff require the support described in Chapter 8 of Choosing with Care—the report of the committee of inquiry into the selection, development and management of staff in children's homes, published in 1992. The committee was chaired by the noble Lord, Lord Warner—Norman Warner, as he was then. Staff in these homes need special support in working successfully as a team. In the recent National Children's Bureau report, Better than you think: staff morale, qualifications and retention in residential child care, effective teamwork was identified as a key attribute in improving outcomes for children in residential care.

In the conclusions of his report on safeguarding children living away from home, Sir William Utting made the important point that the best safeguard is an environment of overall excellence. In Germany, staff have a degree behind them before going into such work. In fact, they normally have postgraduate qualifications before doing so. Children in care in Germany can expect to gain a good clutch of Abitur—the equivalent of A-levels. Sadly, children in care in this country do not do nearly so well, but I shall not describe the details. I shall try to be as brief as possible.

The manager of a care home that I visited recently said, "I'm afraid that I would call two of my staff semi-literate. They are barely able to put down on paper information about what is happening with the children so that other staff can understand what is going on". Very good work is being done in some children's homes and there are some excellent special residential schools, but so much more needs to be done.

Tomorrow I shall attend a lunch cooked by care leaders. This is Care Leaders Week. Margaret Hodge, the Minister responsible for children, will address the meeting. I am looking forward to my sushi for lunch tomorrow. Significant numbers of care leaders do well but, sadly, when one looks at the criminal justice system, one sees that one-quarter of inmates have had some experience of being in care. I believe that we need to do far more in this area and that it requires the special attention of the inspectorate. We need to ensure that the inspectorate gives a high level of attention to, and supports, under-qualified staff working in these difficult conditions. I look forward to the Minister's response to the amendment. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

It is a pleasure to respond to this amendment. It takes me back a long way to when one tried to drive up standards in residential childcare. I accept much of what the noble Earl said about continuing to have to work away in this area in order to secure improvements.

We fully accept the need to ensure that care staff working in residential homes are supported. Children's Homes: National minimum standards, published in March 2002, set out in some detail the support which must be provided to staff working in residential homes. Standards 17, 28 and 31 have particular regard to the support of residential care staff and respond to the relevant recommendations in the report, Choosing with Care, which I was privileged to chair.

However, the national minimum standards are just one set of standards that the Government have produced for the regulation of care services. Standard 28 is, indeed, important. It states:

"All staff, including domestic staff and the registered person of the home, are properly managed, supported and understand to whom they are accountable".

In addition, Standard 31 states:

"Staff receive training and development opportunities that equip them with the skills required to meet the needs of the children and the purpose of the home".

These are the standards against which the homes are inspected.

The role of CSCI, as is the current role of the National Care Standards Commission, is to inspect children's homes against those national minimum standards. It is in that context, and particularly in respect of inspecting against Standards 28 and 31, that CSCI has a role in regard to support for residential care staff. Given the inspection role, I do not believe that it would be appropriate to add a further general duty under Clause 102.

Under Clause 102 CSCI has the general duty of encouraging improvement in the quality of registered social care services provided in England. In doing so CSCI will clearly need to look at the education and training of those working in residential children's homes to ensure that they are fit to do the job. I know that that is a concern of the noble Earl. It will look beyond the minimum of education and training as required in the national minimum standards to ensure that improvement takes place. I noticed that at the social services conference last week Denise Platt, the shadow chair of CSCI, affirmed that. She spoke about the commission's focus on promoting positive improvements in service. I hope that the noble Earl will be reassured by that and that he will feel able to withdraw the amendment.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I thank the Minister for his helpful reply. I shall carefully read what he has said. It is good to have it on the record. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102 agreed to.

[Amendment No. 377 not moved.]

Clauses 103 to 107 agreed to.

Clause 108 [Boarding schools and colleges]:

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

moved Amendment No. 378:

Page 46, line 6, at end insert—

"( ) In exercise of its functions by virtue of this section, the CSCI shall—

(a) prepare a report on the discharge by the school or college of relevant functions;

(b) without delay send a copy of the report to the school or college; and

(c) make copies of the report available for inspection at its offices by any person at any reasonable time; and may take any other steps for publicising a report which it considered appropriate.

( ) Any person who asks the CSCI for a copy of the report shall be entitled to have one on payment of a reasonable fee determined by the CSCI; but nothing in this subsection prevents the CSCI from providing a copy free of charge when it considers it appropriate to do so."

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

One of the great pleasures of legislation is how one can find a clause in the least expected place. The latest version of Section 87 of the Children Act is to be found, not in the Act, but in Section 105 of the Care Standards Act 2000. When Clauses 108 and 109 of this Bill refer to it they refer to that section, as amended.

Taking the matter a stage further, when one looks at new subsection (9A), as introduced by Clause 109 of this Bill, one sees that it refers to Section 105(5). For the aficionados subsection (5), as introduced by Section 105 of the Care Standards Act 2000, specifies:

"Where accommodation is, or is to be, provided for a child by any school or college, a person authorised by the appropriate authority may, for the purpose of enabling that authority to discharge its duty under this section, enter at any time premises which are, or are to be, premises of the school or college".

So the plot thickens. When one looks at Clause 109, subsection (9A) appears to be a good subsection. It states:

"Where the Commission or the National Assembly for Wales exercises the power conferred by subsection (5), it must publish a report".

If one did not know what subsection (5) contained, that would be quite an interesting and rather useful subsection. However, subsection (5), which I have just read to the Committee, is so narrow. Providing a report simply about accommodation and entering premises to ascertain whether the authority is discharging its duty as regards that accommodation is a very narrow provision. Something along the lines of Amendment No. 378 would be far better. That would encompass the whole of Section 87, and under subsection (4) there are duties. The subsection reads:

"Where the Commission are of the opinion that there has been a failure to comply with subsection (1) in relation to a child provided with accommodation by a school or college", the commission is obliged to notify the local education authority, the Secretary of State and so on. A report in those circumstances would be of far greater use.

Having engaged in something of a truffle hunt to find the real purpose of this section, one discovers at the end of the day the very limited nature of Clause 109 in this Bill. I hope that the Minister has understood me and has an answer to why that clause introduces such a limited reporting duty. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip) 10:45 pm, 20th October 2003

I must confess that the amendment has taken a slightly different direction from the one I anticipated. I did not expect the noble Lord to be so assiduous in searching out truffles in that particular direction, so I shall have to write to the noble Lord about his point.

I did have some good news for the noble Lord but I am not sure how good the news is now. I presumed that he was seeking to ensure that the reports generated went to each school as a matter of course. They go as a matter of practice but not as a matter of law. In fact Clause 109 does all that Amendment No. 378 seeks to do, except in that specific, but actually very special, regard.

I was going to tell the noble Lord—and still will—that we are minded to look sympathetically at the amendment and to consider the specific point about requiring that the report goes back to the schools and residential homes in question. We will look favourably on that. It is standard practice, but it might be useful to have it in the Bill.

On the noble Lord's second point about why the issue suddenly becomes so narrow when the current breadth of the clause leads one to think otherwise, I shall have to write to the noble Lord.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

I think that that is as good an answer as I can expect at this time of day. So I thank the Minister and look forward to further progress. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 108 agreed to.

Clauses 109 and 110 agreed to.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

moved Amendment No. 379:

Before Clause 111, insert the following new clause—

"COMPLAINTS

(1) Complaints under this Act may be made by an individual or a body of persons, whether incorporated or not.

(2) A complaint may be submitted in respect of—

(a) the exercise by an NHS body of any of its functions;

(b) the provision by any person of health care for which the body is responsible;

(c) the provision of an NHS service by a health professional supplied under private contract; and

(d) the provision of services by the body or any other person in pursuance of arrangements made by the body under section 31 of the Health Act 1999 (c. 8) (arrangements between NHS bodies and local authorities) in relation to the exercise of the health-related functions of a local authority.

(3) A complaint may be initiated by—

(a) the person aggrieved;

(b) his personal representative;

(c) a member of his family;

(d) an independent advocate, or

(e) some body or individual suitable to represent him."

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

In moving Amendment No. 379, I shall speak also to Amendments Nos. 380 and 386. Amendment No. 379 adds more detail to Clause 111 on the complaints process in order to put the answers to key questions on the face of the Bill. Who is the complainant? What are the issues that can be complained of? What are the rights of advocacy? It does not attempt to outline a detailed procedure, which will remain a matter for regulation, but it puts in place the framework of a process that is independent from the Secretary of State. Currently, the process established in the Bill for handling complaints is entirely contingent on regulations.

On Amendment No. 380, the statutory difference between "may"—a discretionary duty—and "shall"—a mandatory duty—applies. I do not need to trouble noble Lords once again with distinctions between "may" and "shall". However, it seems unlikely that Ministers will not want to make regulations to introduce a comprehensive complaints procedure, but there is nothing technically in the Bill which actually introduces the duty to do so.

I turn to Amendment No. 386. While it is recognised as desirable that complaints are made within a prescribed period, this is not always possible and a degree of flexibility should be allowed in this regard. The amendment would enable consideration of the many complaints that are currently in the system which have been pursued by complainants for years without satisfaction. It is important that these do not suddenly become null and void. New procedures should ensure speedy resolution and, in particular, an automatic transfer to independent review after a maximum of six months. They should not further penalise people who have already suffered a great deal. This should also apply to those who pursue a complaint through an inappropriate route and consequently come to use the NHS complaints procedure only after this has proved unsuccessful. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

Clause 111(1) is intended to set out in general terms what a complaint may be about. As the noble Lord said, Amendment No. 379 would broaden who may make a complaint under the regulations and what a complaint may be about.

The amendment would include too great a level of detail in the Bill. Clause 113(2)(a) already allows for the regulations to set out who may make a complaint; and Clause 113(2)(b) provides that regulations may make provision about the complaints which may or may not be made under the regulations.

I suspect that we shall discuss the regulations during our debates on the clauses. Let me reassure the Committee that we intend to consult widely on the content of the regulations. We therefore need to be able to respond to comments received and to change things, where people come up with sound reasons for doing so. It would restrict our ability to respond flexibly to the results of the consultation if specific provisions were required under the Bill. So the amendment would not add value to the Bill. I hope that the noble Lord will share my view.

On Amendment No. 380, I fear that the noble Lord has the power of clairvoyance. We do not believe that it is necessary to substitute "shall" for "may". In circumstances such as this, where the intention of the regulations is to implement policy, it is normal drafting practice to provide a power to make regulations rather than to impose a duty. So we find that amendment difficult to accept.

Although I understand what the noble Lord seeks to achieve by Amendment No. 386, again, it would be inappropriate to be so prescriptive about the detailed aspects of the regulations. It is important to retain some flexibility on the detail of what regulations will eventually provide, especially from the point of view of involving stakeholders in decisions about how the procedures that will affect them will work. As I said, we intend to consult widely on the regulations.

Moving to Amendment No. 395, there will clearly be occasions when it is appropriate for CHAI or CSCI to exercise the functions of their counterparts on their behalf: for example, where a complaint is about a package of services delivered by arrangement under Section 31 of the Health Act 1999. In such cases, regulations made under Clauses 111(1)(c) and 112(1)(c) may require each commission to exercise the functions of the other in considering a complaint about both health and social care. To that extent the amendment is inappropriate and unnecessary.

It is equally important that CHAI and CSCI should co-operate with each other where appropriate: for example, where one body may have expertise that the other lacks. That is something that we have tried to advance in reforming the complaints procedure; that is central to what we are trying to do. The Bill already provides adequately for that in Clause 118, which requires CHAI and CSCI to co-operate when necessary for the effective discharge of their respective functions, and in particular for CHAI and CSCI to delegate any of their functions to each other.

So, for all those reasons, although I am sorry to give the noble Lord a disappointing reply, I hope that he will withdraw the amendment.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

I thank the Minister for her reply, although I confess that I do find it disappointing. She seems to be arguing for flexibility on the Government's behalf but not much flexibility for the complainant. That does not have the right balance. She says that the Government will be consulting widely. I hope that they will bear in mind the need for complainants not to have an absolutely rigid time limit imposed on them. We may well want to take the matter further during the Bill's later stages.

As for Amendment No. 395, to which I did not speak, I entirely accept what the Minister said about Clause 118, which provides much assurance in that respect. However, Clause 111 is inadequate in its detail about the complaints system to be introduced; it gives few pointers in that respect. We may need to fill that out in future. In the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 111 [Complaints about health care]:

[Amendment No. 380 not moved.]

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 381:

Page 46, line 37, at end insert—

"( ) the provision of health care services by any other person or body."

Photo of Baroness Noakes Baroness Noakes Conservative

In moving Amendment No. 381, I shall speak also to the seven other amendments in this group tabled in my name and that of my noble friend Lord Howe. They relate to the complaints procedures in the Bill and follow on from the issues to which the noble Lord, Lord Clement-Jones, has just spoken. We broadly welcome the new provisions, but they raise several issues. A number of the amendments that I shall discuss have been inspired by very helpful briefing provided by the citizens advice bureau, which has considerable expertise and experience in handling complaints.

Amendment No. 381 would add to the list of areas for complaint set out in Clause 111(1),

"the provision of health care services by any other person or body".

The scheme covers complaints about English NHS bodies or about healthcare arranged by an NHS body, for example. But it does not cover healthcare provided wholly in the independent sector.

The separation between the independent sector and the NHS is not as clear-cut as it once was. Many NHS patients are treated in independent hospitals under PCT contracts, which are designed to cut waiting lists. But, alongside that, the independent sector treats rapidly increasing numbers of people on a self-paid basis, where patients have been failed by the NHS.

As there are no complaints mechanisms for those treated privately in the independent sector, there are anomalies. In an independent sector hospital, patient A, who is funded by the PCT, has access to the complaints mechanisms under the Bill, while patient B in the next room, who is paying for himself, has no such access. In an NHS hospital, the patients in both the public ward and the private patient wing are covered. Under Amendment No. 381, all providers of healthcare would be covered, whatever the setting.

Amendment No. 382 would allow regulations under Clause 111 to deal with how correspondence relating to complaints is dealt with, including adherence to time limits for replying substantively to correspondence.

The Citizens Advice Bureau reported to us that NHS bodies say that they have resolved complaints within the current 20-day time-scale when all they have done is send a letter of response. The time-scales can be much greater when complainants write follow-up letters, perhaps seeking more information or challenging an initial response. I hope that the Minister will see the need for being able to handle that issue effectively in the regulations.

Amendments Nos. 387, 388 and 391 are probing amendments concerned with who and what can be excluded from the complaints scheme by regulations. They would amend or leave out paragraphs (b), (c) and (f) of Clause 113(2). There are concerns that certain kinds of care, such as continuing care, could be excluded from the complaints mechanisms. That would raise significant issues, which is why it is so important to understand for what the Secretary of State intends to use the regulation-making powers. If he has no clear idea at this stage, we may well suggest at a later stage, on other than a probing basis, that the powers in Clause 113 need to be curtailed.

Amendment No. 390 would add a new paragraph to allow regulations under Clause 113 to cover oral hearings. It is unclear from the Bill whether the Government envisage oral hearings at all, the circumstances in which they might take place, and, if they take place, the procedures to be followed. There is a fear that complaints will be seen as an impersonal bureaucratic process in which the complainant's voice is not heard.

Will the Minister say whether the Government envisage oral hearings, and, if so, in what circumstances? How will CHAI equip itself to handle the function of complaint-handling, which is so very different from its core functions of audit and inspection? In particular, will CHAI have regard to model rules issued by the Council of Tribunals?

The different aspects of the new complaints procedures are not mere detail. It is important that we understand whether the Government's regulations will result in procedures that meet legitimate aspirations.

Lastly, Amendments Nos. 384 and 385 deal with regulations under Clauses 111 and 112. The amendments require the affirmative procedure—one of our old friends returns to the Committee. The regulations are not only about the who, what and when of complaints. They also cover issues such as payments of compensation under Clause 113(3) and can also, under Clause 113(4), override the duty of confidentiality and dispense with consent to the use of personal data. That is why we propose the affirmative procedure in Amendments Nos. 384 and 385. It is vital that there is proper scrutiny of the provisions. I beg to move.

Photo of Baroness Barker Baroness Barker Liberal Democrat 11:00 pm, 20th October 2003

I rise to speak to Amendment No. 383 and the others in this group standing in my name and that of the noble Lord, Lord Clement-Jones. Amendment No. 383 raises the issue of oral hearings. As the noble Baroness, Lady Noakes, said, the amendments have been framed and informed by the work of the CAB and other organisations that have a great deal of experience of helping people through the Byzantine NHS complaints procedure. It is no exaggeration to say that when the Bill was in its formative stages, some feared that what would be wished on NHS patients and those undergoing social care was the worst of the NHS complaints procedures. I accept that a great deal of work has been done—in the ICAS pilot, for example, which ran for most of last year.

It has become evident to many people who work in this field that the facility to have an oral hearing is not only desirable in some cases—for the providers of services and patients—but essential. The people for whom it is most essential are those for whom English is not their first language, who find it easier to have an oral rather than written interview. That is why it is an important ability to have within the Bill.

As the noble Baroness, Lady Noakes, said, the time scales must be realistic for the work to be done, but they must also be adhered to. There have been many examples when the NHS has obeyed the letter of the existing rules by simply sending out a missive within the deadline—the classic bureaucratic way of getting round the imposition of a date—but not actually resolving the matter. We believe that time scales should be realistic but should be adhered to.

We also believe that, when time scales have been badly missed and abused, there should be a penalty on the NHS body concerned. Therefore, we propose an upscaling system in which matters that are not dealt with within the right time go up to another level such as the strategic health authority.

Finally, a great deal has been done over the past few years to ensure that information about one's right to complain is more available. A notice that one has the right to complain is something that one now regularly sees in NHS premises. However, details of how to go about complaining or resolving issues are often not advertised. That is of primary importance and is the force behind our amendments in this group.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

This is an important group of amendments which I shall try to put in context. They are concerned to ensure that the complaints procedures are accessible, timely and as exhaustive as possible; that nothing appropriate is excluded; and that everyone who uses health and social services is as well informed as possible and involved appropriately so that everyone gets the satisfactory outcome that they want. That is largely what Chapter 9 of the Bill sets out to do. In particular, Clause 113 sets out in very general terms the framework within which the complaints procedure will be constructed and which will be covered in more detail in accompanying regulations and in guidance.

I should outline some of the improvements that we are trying to make to the system. We are aiming to make the system more flexible; to improve local resolution of complaints; to make the resolution of complaints truly independent; to ensure that information about complaints and the causes of complaints are an integral part of the system; and to make the procedures for complaints about health and social services as compatible as possible so that from the complainant's point of view there is a seamless process with a single access point. That is very important. So we fully understand the intention of these amendments.

I shall take the amendments in numerical order. In moving Amendment No. 381, the noble Baroness, Lady Noakes, pointed to what she saw as discrepancies in the treatment of complaints regarding private and National Health Service care. Amendment No. 381 seeks to ensure that the complaints procedure is comprehensive and covers healthcare services provided by third parties. It will do that in any event. The NHS complaints procedure has always been about providing patients, or someone on their behalf, with the right to complain if they are not happy with the treatment. When a patient is treated through arrangements made by NHS bodies, even if their care is not provided by an NHS body, it is right that they should be able to have their complaints addressed under the NHS complaints procedure.

Subsection (1)(b) of Clause 111 already makes provision for that by covering healthcare by or for an English NHS body or cross-border SHA. That means that healthcare provided by third parties—that is, primary care practitioners and independent providers—will be covered by the complaints procedure. I should, however, add that this procedure is designed to deal with complaints about the NHS and NHS patients only. Private healthcare is covered in separate regulations which are associated with the National Care Standards Commission.

I should advise the noble Baroness that this amendment would also have the unintentional effect of extending the Secretary of State's regulation-making power to, for example, Welsh NHS trusts and local health boards as the amendment as drafted is not geographically limited to England and is not in any way linked to Clause 111(1)(a), which limits the Secretary of State's regulation-making power to English NHS bodies and cross-border SHAs. To extend the Secretary of State's regulation-making power in this way would be inconsistent with the regulation-making power given to the Assembly under Clause 111(2). So the amendment would put a small fly in the ointment in that respect.

Photo of Baroness Noakes Baroness Noakes Conservative

I thank the Minister for giving way. As there are various points to raise it might be easier if we dealt with them as we went along. Let us contrast the position of a private patient in an independent hospital who went there on a self-pay basis because the NHS waiting lists were too long with that of someone admitted for whatever reason to the private wing of an NHS hospital. The NHS patient would be dealt with by the NHS complaints system whereas the other would be dealt with by a completely different system that originates in the National Care Standards Commission. Does the Minister think that that is logical?

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

It is certainly comprehensive. Both sets of patients have a right of complaint and a recourse. That is what we are aiming to achieve.

I turn to Amendment No. 382 and the issue of time limits. In reply to the noble Baroness, Lady Barker, we want the reformed complaints procedure to include time scales for dealing with complaints. I take her point regarding the CAB, which has a lot of experience in this field. Of course, it is reasonable that we address time limits. I agree with the noble Baroness that there must be a balance between imposing a time-scale that makes it impossible for complaints to be resolved properly and making sure that things are not allowed to drift. Therefore, we intend to consult widely on that aspect of regulations. In particular, we shall talk to bodies, such as the CAB, about that. We have identified time-scales as a key area where we need to gather feedback.

The current wording of Clause 113(2)(e) is sufficient to provide for regulations to set out the detail with regard to time-scales. On those grounds, Amendment No. 382 does not add value to the Bill. Obviously, CHAI will be consulting widely, not least with the Council on Tribunals, on the advice and experience that people can bring to bear on the process.

I turn now to the form of the complaint. Amendment No. 383 seeks to ensure that regulations detailing the complaints procedure provide for a right to an oral hearing, where appropriate. Amendment No. 390 also seeks to ensure that the regulations specify the circumstances in which a complaint is subject to an oral hearing. Not only do we recognise that the amendments have been made with the best of intentions, but we envisage oral hearings.

We recognise that the parties involved in a complaint must have the opportunity to put their case. We intend to provide in regulations for an oral hearing where it is the best option for making progress and where local resolution has not been achieved. Clause 113(2)(e) enables regulations to provide for that. While on the face of it the amendments have the best intentions of the parties involved at heart, there would be some perverse consequences because it would also reduce the complainant's control over what happens rather than empowering him to make the right choice.

I must stress that we are envisaging a much more involving process. Complainants, in the stages supported by the appropriate bodies, would choose the right and most appropriate route forward for them. We want them involved as far as possible to determine how they think the situation can best be resolved. We are trying to focus proactively on seeking to facilitate resolution at various stages rather than on an invariable progression where certain procedures kick in at certain stages. Rather than specifying rigidly when an oral hearing must take place, we want to set out options for resolution after the local stage. That will allow CHAI and CSCI more flexibility to decide with the complainant the best way forward.

It may be that an independent panel involving oral representation might be one way forward if that is what people want, but there may also be other options. With that explanation, I hope that the noble Baroness will not press the amendment.

Amendments Nos. 387, 388 and 391 seek to ensure that no one who has cause to complain is left out or is prevented from doing so. I agree that the language in the regulations needs some untangling. One of the main objectives behind the provisions that we are proposing for complaints is to make the procedures more rather than less accessible. For example, we intend that people who wish to make a complaint should be able to do so just once rather than being sent all over the place. The provisions in Clause 113(5) are designed to allow for that.

The amendments seek to remove the ability for regulations to set clear parameters for the complaints procedures in terms of the complaints which may not be made or which need not be considered under matters which are excluded from consideration. Each of those three subtly different points serves a different purpose.

Obviously, we have to set parameters, but we have no intention of limiting the proper investigation of complaints about the NHS or social care. What we intend in the clauses is to ensure that the procedures are used appropriately so that, for example, other routes resolving issues such as misconduct can operate effectively alongside the complaints procedure.

Perhaps I may go through the provisions very quickly. Subsection (2)(b) simply reflects the fact that we will need to be clear about what people can and cannot complain about using the procedures. For example, social services procedures should be for complaints about social care functions. Subsection (2)(c) is subtly different from (2)(b) in that it allows for regulations to provide for some complaints that have been made not to be considered, rather than excluding them from being made in the first place. This might cover circumstances where an alternative route might be more appropriate to achieve resolution. For example, if a complaint brings misconduct to light, the relevant disciplinary procedures may need to be brought into play. The paragraph does not give NHS bodies or local authorities a way out of investigating a complaint properly. However, to remove it would take away the necessary flexibility.

Photo of Baroness Noakes Baroness Noakes Conservative 11:15 pm, 20th October 2003

I thank the Minister for giving way once again. She read out the provisions of paragraphs (b), (c) and (f), but what I sought to tease out was whether they would be used for excluding certain kinds of care. Can the Minister assure the Committee that those paragraphs will not be used by the Government for excluding the provision of long-term or other specific types of care? At face value, they appear capable of doing that.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

Everyone capable of being in receipt of an NHS service must be covered. I can give the noble Baroness the assurances that she seeks.

Paragraph (f) allows regulations to be made about matters which are excluded from consideration. For example, the NHS procedure has always been about patients having the right to complain if they are not happy with the treatment or service they have received. That is right, but other people either in or using NHS facilities, such as contractors, need to be excluded. Of course they can raise their concerns and have them addressed, but that is not the purpose behind the procedure provided for here. These are safeguards to deal with the exceptions.

Photo of Baroness Barker Baroness Barker Liberal Democrat

I am sorry to interrupt the noble Baroness at this late hour, but within the important and extremely detailed explanation of the clause that she is giving the Committee, can she confirm whether this would enable people to make complaints when they have been excluded from the provision of NHS care to which they feel that they should be entitled? I cite, for example, continuing NHS care.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

If someone has been excluded from NHS care, there would be a reason for that, along with a history and a background to the case. Presumably those would form the basis of the complaint. If I am wrong then I shall certainly write to the noble Baroness, but I see no reason why they should be excluded from making a complaint.

I turn to Amendment No. 389. We believe that this is too detailed a point to be covered by the Bill. Again this refers to time-scales, but it is only reasonable that the reformed complaints procedure should include time-scales. However, it is right that there should be measures in place to deal with complaints that are allowed to drift unnecessarily, and we want to stop that from happening. These would include referring complaints to the next stage of the procedure if they are not dealt with in a reasonable time. Again, we intend to address this in regulations and the wording of Clause 111(3) and (4) will allow for appropriate provision to be made. We feel, therefore, that the amendment is unnecessary.

However, I am sympathetic to the spirit of Amendment No. 393. It is essential for information to be freely available in order for the complaints procedures to be as accessible as we would all wish. I want to reassure noble Lords that we intend to make provision about this in regulations. Although I believe that we can achieve that without the addition of this specific provision, I am minded to take it away for further consideration with a view to coming back with an amendment on Report.

The general powers to make regulations about the handling of complaints contained in Clauses 111(1) and 112(1) are sufficient to allow regulations to make provision about making information for the complaints procedure available to the public, but as I have said, I sympathise with the purpose of the proposed amendment.

I turn now to the final set of amendments in the grouping, Amendments Nos. 384 and 385. These amendments would have the effect of requiring that regulations made under these clauses are dealt with under the affirmative resolution procedure. We do not believe that that is either desirable or necessary. We have set out a clear programme for reforming the way in which complaints are made under the complaints procedure and we have been open about the reasons for that reform. Indeed, the whole history of the process over the past two years was set out in the departmental paper, NHS complaints procedure reform: making things right, published in March this year. It also marks the way forward. So our intentions have been made clear and, similarly, how they are to be covered is set out in the Bill.

I emphasise that this is the first time that the detail of the complaints procedures will be subject to regulation. This improves the current provision and sets the procedures apart from the procedure of handling complaints under Sections 24D and 26 of the Children Act 1989 and the requirements for complaints procedures set out in regulations applying to providers of family healthcare services. These have been subject to a variety of directions and we are changing that. We intend that the regulations will cover who may complain and about what; what they can expect by way of a full and prompt response; and, if necessary, a review of the complaint by a body which will be completely independent of the organisation complained about. The regulations will also place responsibility with health and social care organisations for making effective responses and, as I have said, we are committed to involving all stakeholders.

The noble Baroness asked about data protection. These bodies will be subject to the Data Protection Act and people will be asked to consent to the disclosure of appropriate information when they make a complaint to CHAI and CSCI. There will be no question of that provision being overridden. Regulations will provide for information to be obtained from the NHS and local government, but that will have to be consistent with the provisions of the Data Protection Act.

The Government wrote a longer response when this issue was raised by the Delegated Powers and Regulatory Reform Committee which I shall be very happy to copy to the noble Baroness. So we have been open about the changes we intend to make.

Another problem which would be raised by the affirmative resolution procedure is that the amendments fail to take account of the devolution settlement. Under these clauses the Assembly will be given the power to make regulations detailing how health and social care complaints procedures will operate in Wales. It would therefore be inappropriate for the draft regulations to have to be approved by both Houses before the Assembly can make them.

I am sorry to have spoken at such length. These are difficult and complicated amendments which I hope the noble Baroness will not press.

Photo of Baroness Noakes Baroness Noakes Conservative

I thank the Minister for that extremely comprehensive response and for some good news. I am pleased that the Government will cover the issue of timescales, that they will consult widely, that oral hearings will be included and that the complainants will be involved in selecting the process. All of those provisions are good news. I thank the Minister for the assurance that issues such as long-term care will not be excluded—indeed, that all care offered or not offered by the NHS will be covered by these regulations.

That leaves only a couple of areas where the Minister's response was a little disappointing. The Minister said that the position of the independent sector is comprehensive, but that preserves artificial distinctions between the independent sector and the NHS which, as I tried to demonstrate in opening, are already blurred. We need to think about that issue further.

We shall also need to think further about the affirmative procedure, in particular because of the use of personal data. I completely take the Minister's point about the Assembly and devolution, which often slips one's mind. But there are some important issues in regard to the regulation-making powers, the use of personal data and compensation payments. The Minister rang a bell when she referred to the fact that this is the first time complaints regulations are being put together. Perhaps the first set of regulations should themselves be subject to the affirmative procedure because that is where so much will be set out. I should like to think further about personal data and I should be grateful for the letter that the Minister has offered to me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 382 to 384 not moved.]

Clause 111 agreed to.

Clause 112 [Complaints about social services]:

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

moved Amendment No. 384A:

Page 47, line 38, leave out paragraph (b).

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

We now come to the clause dealing with complaints about social services. Very simply, Clause 112 effectively repeals the existing complaints procedure for local authority social services set out in existing social services legislation and replaces it with a new process. Under subsection (2), CSCI is one of the bodies that can consider complaints.

Local authorities and their representative body have concerns about the inclusion of CSCI in that list. It is interesting to note that under subsection (4), there is no reference to CSCI as far as concerns Wales. It is only for English local authorities that CSCI is included. That is a significant omission. As the previous social services inspector did not have a role in considering complaints, there is a lack of understanding as to why CSCI, the SSI's successor, should assume that role. There may simply be a feeling of symmetry—as CHAI deals with health services, so CSCI should deal with social services. I do not believe that that should necessarily be the case, and look forward to what the Minister has to say. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

We were slightly surprised by this amendment because it runs counter to the very principles of what we are trying to achieve. We can usually count on the noble Lord to share our vision.

I hope I have made it clear so far that the overriding principle of what we are trying to achieve is to make the process easier and more accessible, and to increase the chance of achieving the right outcomes for people. CSCI is crucial to that. It will enable the review stage to be geared to the circumstances of each case. Making Things Right, which was published earlier this year, contains a solid argument about why CSCI is important for doing just that.

Nobody knows better than people like the noble Baroness, Lady Barker, that the key difficulty with the current procedures is that they make it difficult for complainants, health bodies and local authorities to deal with complaints that cut across health and social care services. We have only to reflect, as we do so often in this House, on the implications of the Community Care (Delayed Discharges etc.) Act.

The way in which the review stages are handled by health and social services, being different in their structure and in their process, makes it very difficult to deal collectively with complaints of that sort. That is why we are looking for a parallel process for single points of access and a very strong independent review mechanism at the top. That is the role of the two new commissions in the independent review stage. The provisions we have made that will allow them to co-operate and work on each other's behalf are crucial to improving that.

The feedback from the major consultation exercise on Making Things Right contained a very articulate demand for greater independence. Some complainants did not understand how, as is the case at present, a review panel convened by a local authority, which might include two councillors from the authority being complained about, can be truly independent. But that is not to criticise the review panels, which have worked extremely well. Independent panels may well continue to be part of the potential armoury for resolving complaints under the new proposals. We are trying to focus the local resolution in such a way as to separate the local investigation from the review mechanism so that, on the ground, people can do the job which they can do best because they are nearer the information and circumstances and will be able to address those issues. Local authorities may have concerns on the matter, but we want the review panel to support the process on the ground.

For the reasons that I have offered, we would be very reluctant for the amendment to be adopted, because it would lead to greater disparity between the way in which complaints are handled in health and social care, rather than bringing the process together. It would not bring the desired overview and independence that we want to see. I hope that the noble Lord will take the case put on those two grounds and withdraw the amendment.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat 11:30 pm, 20th October 2003

I thank the Minister for her reply. Far be it from me to obstruct the onward march of progress or arrest the grand designs that are clearly in the Minister's mind, as we march forward with health and social care in tandem, towards a bright and glorious future. There is something rather Stakhanovite about the whole concept.

I have not yet had an answer as to why Wales should be different. If the grand design that is so desirable in England is being achieved, why not in Wales?

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

It is a dreadful oversight on my part—normally I answer the questions about Wales first. As far as I know, Wales is different because it has a tradition of lay members serving on independent panels. That is how Wales wants to continue, in the spirit of devolution, respecting the strength of local organisers and the independence of the lay members. That is obviously what we want for Wales.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

The Minister is almost making my argument for me—it is very interesting. She said that review panels were working extremely well, but here she says that the Welsh in their wisdom—and at this point I assume Welsh ancestry—are extremely sensible in staying with the things that they know work. That is why local authorities are keen on the review panels rather than on CSCI.

I do not want to take the matter further tonight, but clearly there are quite a number of questions to be answered between now and Report. I shall read the Minister's comments carefully. Far be it from me to stop the onward march of progress, as described by the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

moved Amendments Nos. 384B and 384C:

Page 48, line 12, leave out from second "to" to "(and" in line 15 and insert "a Local Commissioner under Part 3 of the Local Government Act 1974 (c. 7) who is a member of the Commission for Local Administration in England for him to consider whether to investigate the complaint or matter under that Part"

Page 48, line 17, leave out from second "to" to end of line 19 and insert "a Local Commissioner under Part 3 of the Local Government Act 1974 (c. 7) who is a member of the Commission for Local Administration in Wales for him to consider whether to investigate the complaint or matter under that Part"

On Question, amendments agreed to.

[Amendment No. 385 not moved.]

Clause 112, as amended, agreed to.

Clause 113 [Complaints regulations: supplementary]:

[Amendments Nos. 386 to 393 not moved.]

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

moved Amendment No. 394:

Page 48, line 39, at end insert—

"( ) The provision that may be made under subsection (2)(g) includes the provision for a report about a complaint to recommend the making of an ex gratia payment in respect of injuries sustained, loss of earnings or expenses incurred as a consequence of the incident or incidents complained about."

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

The amendment is similar to the one that the noble Baroness, Lady Finlay of Llandaff, would have moved. It will not have escaped the Minister's notice that we on these Benches have tabled a number of different amendments at different stages that are in the nature of probing amendments, to test how limited the provisions are.

The purport of this amendment is to enable compensation or ex gratia payments to be made to an upper value which would be determined by regulations in respect of lesser injuries caused as a result of avoidable mistakes. This would remove the need for people to take legal action on a smaller scale, the costs of which usually exceed any award made. I am sure the Minister is aware of some of the rather horrifying statistics about the cost of some smaller claims.

At present there is an inconsistent approach dependent largely on the personality of the complainant and/or the chief executive of the trust concerned regarding whether ex gratia payments will be considered. Some complainants are told that there is no possibility of this while others are successful in being offered a payment.

An expert group convened by the Scottish Executive recently recommended bringing ex gratia payments formally into the application of the NHS complaints procedure there. In England the Clinical Disputes Forum recommended that compensation should be available through the NHS complaints procedure. I look forward to hearing what the Minister has to say in that respect. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

Amendment No. 394 seeks to make financial redress available through the complaints procedure. NHS bodies are already allowed to make ex gratia payments where legal liability would otherwise be conceded. NHS bodies will continue to have that flexibility under the reformed NHS complaints procedure.

The amendment as drafted would also apply to social care. There is already provision for payments to be made by local authorities where they consider that their actions amount to maladministration. The issue of compensation for acts of clinical negligence has traditionally been a matter for the courts unless the body concerned accepts liability and reaches a settlement out of court.

The CMO has carried out an extensive review of the options for reforming the way in which the NHS handles clinical negligence claims. The results of the review were published on 30th June in the report, Making Amends. Under the proposals an NHS redress scheme will be established to speed up the process and to offer care and compensation under certain circumstances without the necessity to go to court. This new redress scheme will be closely aligned to the new NHS complaints procedure. For example, it is proposed that making a claim for compensation would no longer be a disqualification from pursuing a complaint—something I am sure we would all welcome. Subject to the outcome of the consultation, we shall need to take account of that in determining how the complaints procedure operates so that it is aligned effectively with the NHS redress scheme. I hope that with that explanation the noble Lord will withdraw the amendment.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

I thank the noble Baroness for that reply. The interface between clinical negligence cases and the complaints system is an important matter. I do not believe that we yet have a very clear picture established of exactly how that will operate. The noble Baroness says that there is an existing power to make ex gratia payments. When a body such as the Consumers' Association wants clarification on that, it demonstrates that there is a lack of communication or a lack of clarity regarding the powers. When the regulations are made, or when communications are made about the content of the regulations and what the complaints system consists of, it is important to tell potential complainants and the public that trusts have the relevant power. At the moment that is not clear. However, the clarification was useful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

moved Amendment No. 394A:

Page 48, line 40, leave out subsection (3).

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

This is a straightforward amendment which is designed to discover the current intentions regarding the requirement of payment of a fee to the body hearing complaints under Clause 113.

We on these Benches are concerned that individuals bringing complaints may be required to pay a fee to the body that hears their complaint. Of course, vexatious or dishonest complaints may be a problem for some social services departments, but charging complainants is not necessarily the best way to deal with that. It would be important for the Minister to explain why the Government think that a charging power is required in the circumstances. I beg to move.

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

There was inevitably a cost at the review stage of the existing complaints procedure, which was traditionally borne by the relevant authorities. We recognise that there will be a cost to the commissions in carrying out their functions of independently considering complaints. That is a logical outcome. Therefore, there will need to be a mechanism for covering the costs associated with the work.

I assure Members of the Committee that no scheme of charging will be implemented without a full analysis of the impact, and we would intend to consult on that. For example, we would want any scheme of charges to contribute to the aim of resolving complaints locally, and certainly not to hinder it. Over the coming months, the Department of Health and the shadow commissions will analyse the costs associated with review activity and drawing up proposals for a charging structure that fairly reflects the transfer of the function to the commissions. Those proposals will be subject to full consultation. I should also emphasise that there will be no intention of charging complainants at all. We are talking about charges that are, as it were, costs paid to the commission by the relevant authorities.

We do not want to pre-empt the analysis but will want to see some link between, for example, charging and workload, so that if bodies or authorities that have fewer cases need further action to achieve a resolution, they do not bear a disproportionate burden. We will be looking at the full range of options as to how the provisions can be made to work sensibly.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

I thank the Minister for that reply. She has made it pretty clear that her interpretation of Clause 113(3) is that the complainant will not be charged. The thrust of the amendment was very much to make sure that the complainant was not charged. Furthermore, she said that there would be analysis of the costs of current review mechanisms and full consultation about how any recovery of those costs from the players involved—presumably local authorities and so on—will be levied. That is a pretty satisfactory reply, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 395 not moved.]

[Amendment No. 396 had been withdrawn from the Marshalled List.]

Clause 113 agreed to.

Clause 114 [Further consideration of representations under the Children Act 1989]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendments Nos. 396A to 396E:

Page 50, line 3, leave out "the Commission for Local Administration" and insert "a Local Commissioner"

Page 50, line 4, leave out "it" and insert "him"

Page 50, line 33, leave out "the Commission for Local Administration" and insert "a Local Commissioner"

Page 50, line 34, leave out "it" and insert "him"

Page 50, line 38, at end insert—

"(5) In this section, "Local Commissioner in England" means a Local Commissioner under Part 3 of the Local Government Act 1974 (c. 7), who is a member of the Commission for Local Administration in England.""

On Question, amendments agreed to.

Clause 114, as amended, agreed to.

Clauses 115 to 118 agreed to.

Clause 119 [Reviews and investigations]:

[Amendment No. 397 not moved.]

Clause 119 agreed to.

Clause 120 agreed to.

Clause 121 [Power to assist]:

Photo of Baroness Noakes Baroness Noakes Conservative 11:45 pm, 20th October 2003

moved Amendment No. 398:

Page 54, line 2, leave out subsection (1).

Photo of Baroness Noakes Baroness Noakes Conservative

I shall be extremely brief with this probing amendment. Why would CHAI or CSCI want to assist other bodies rather than concentrate on their core functions? Subsection (1), which this amendment seeks to delete, gives them power to assist any other public body in the United Kingdom with the purposes of that body's functions—and they can charge fees for it. Surely CHAI and CSCI are not going to set up consultancy businesses. If they are going to help other people, whether or not for payment, will the Minister also explain why they are confined to helping United Kingdom public bodies? Are there no bodies outside the UK which, perhaps for a fee, might benefit from the advice of CHAI or CSCI? Why should bodies outside the public sector—for example, charities or voluntary bodies—be excluded from this beneficial interaction with CHAI or CSCI? I am puzzled by this clause, which is why we have tabled the amendment. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

I hope that all will be revealed. The power in Clause 121 builds on a tradition of co-operation between inspectorates that is necessary to ensure effective and joined up working between agencies. A recent example of such co-operation would be the street crimes initiative, which saw the Social Services Inspectorate working closely with a number of other public bodies, including Home Office inspectorates and Ofsted. The drafting of the Bill enables CHAI and CSCI to assist other public bodies where they believe that it is appropriate for them to do so. This will be a decision for the inspectorates based on whether they believe there is any social or healthcare implication for them in the work that is being carried out by another public body.

CSCI will be involved in the Local Services Inspectorates Forum, which brings together a range of government inspectorates to consider common issues and discuss their work programmes relating to local government issues. This includes the Audit Commission, Ofsted, the Benefit Fraud Inspectorate and the Prisons Inspectorate. Clearly we expect CSCI and CHAI to be sensitive to the burden of inspection placed on organisations that are the subject of work that they will do with other public bodies. CHAI will be under a duty to work jointly with CSCI and other public bodies and where it considers that would promote further efficiency and cost effectiveness. CHAI's vision document clearly indicates the commission's willingness to work in real partnership with others, particularly in the area of common data collection. It would be a significant constraint on the powers of CHAI and CSCI if they were not able to assist and co-operate with other agencies in this way and would undermine effective joint working.

We have drawn the powers reasonably widely to enable that area of co-operation to operate effectively, due to the wide range of public bodies that may carry out work that has health and social care implications, and to which CHAI and CSCI will therefore need to be able to provide assistance. They are not going into the consultancy business, but we do want them to work on a basis of co-operation with others when they think that that is necessary in order to discharge their primary functions. I hope that explains to the noble Baroness why we have set out the terms of the Bill in this way.

Photo of Baroness Noakes Baroness Noakes Conservative

I thank the Minister for that helpful response. I shall read it carefully, but it appears to answer the points that I raised. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 121 agreed to.

Clause 122 agreed to.

Clause 123 [Arrangements with Ministers etc: CSCI]:

[Amendment No. 399 not moved.]

Clause 123 agreed to.

Clauses 124 and 125 agreed to.

Clause 126 [Reports: CHAI]:

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 400:

Page 56, line 5, at end insert—

"( ) an updated regulatory impact statement showing the effect, including the estimated financial effect, of the CHAI's activities on those bodies which it covers."

Photo of Earl Howe Earl Howe Conservative

In moving Amendment No. 400, I shall speak also to Amendment No. 401. These amendments relate to regulatory burdens. I suggest that both CHAI and CSCI should be required to publish at the end of each financial year a full regulatory impact assessment of all their activities.

I hope that the Government will consider the amendment seriously. The proposal is good discipline and good practice. None of us can assume that CHAI or CSCI will reduce the regulatory burden of their inspections, or hope that they will follow good practice spontaneously. We need to see on a regular basis whether this occurs.

Employers and staff alike across the public and private sectors are becoming more aware and more resentful of unnecessary and intrusive red tape and bureaucracy. In the health service, the amount of time that clinicians and managers spend filling in forms and justifying themselves to others is time taken from the care of patients. If we can achieve a reduction in the burden of data gathering and compliance on front-line NHS staff, and on those who work in the social care sector, we should do so.

The regulatory impact assessment for the Bill as it relates to CHAI and CSCI speaks in optimistic terms about the advantages of creating two new inspectorates and the reduction in burdens that this will bring to front-line staff. It speaks of,

"less work for frontline staff following co-ordinated visits and requests for information".

It also speaks of,

"co-ordination of work where the inspectorates might be looking at the same provider, e.g. care trusts".

We need to ensure that these are not just pious hopes. There may indeed be a net reduction in the number of bodies—although if one counts the Welsh inspectorate, I am not sure that that is literally true. Despite what the Minister may say, there are possibilities for duplicated inspection work in border areas between England and Wales. If that happens, burdens will increase, not decrease.

Quite apart from that, the regulatory burden can equally be influenced by the manner and style in which inspectorates work. There needs to be a formal requirement to enable us to ensure that good intentions are translated into practice.

I have one question relating to the regulatory impact on independent health and social care providers. The regulatory impact assessment states:

"Independent health providers and registered social care providers are currently inspected by the NCSC against national minimum standards . . . to ensure national consistency of service provisions. This function is to be taken over by the new inspectorates . . . The inspection procedures may change when CHAI and CSCI become operational, but providers will not be subject to different standards as a result of the changes".

However, it also states:

"In future, providers may be subject to new service standards".

I did not understand what the reference to "new service standards" means and the implications it carries for regulatory burdens on the private sector. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

On the last point, national standards will be set out by the Secretary of State in relation to health care. We have already discussed the issue of convergence between the independent sector and the NHS. I believe that the wording is related to that, but I will check and write to the noble Earl.

Before the Bill's introduction, the department led an assessment of the likely regulatory impact of its provisions. It consulted widely, including with key stakeholders, the devolved administrations, the regulatory impact unit of the Cabinet Office and the small business service at the Department for Trade and Industry. A full regulatory impact assessment of the Bill in its entirety was published on 14th March this year and a copy is available in the Library. I shall not quote from it, other than to point out that, overall, the inspectorate's clauses in particular are considered to have a limited impact, if any, on businesses and the voluntary organisations. I know that the noble Earl has looked at the document.

Both organisations are being established with duties to discharge their functions economically, efficiently and effectively. It is therefore our belief and expectation, in line with the recent Office of Public Sector Review report on inspection and external review, that CHAI and CSCI will bring about a reduction in the burdens of inspection placed upon frontline staff, freeing up time that could be better spent caring for patients and other service users.

In CHAI's Vision statement, Professor Sir Ian Kennedy notes that organisations which provide healthcare are currently assessed by different inspectorates without proper co-ordination. CHAI therefore already proposes to develop techniques of assessment which reduce the need for it routinely to visit each and every organisation. Clearly, there is still some way for CHAI to go in developing such methodologies, but we are confident that progress will be made in that area.

The Better Regulation Task Force report recommends that regulators should make available for public scrutiny a regulatory impact assessment on all new major policies and/or initiatives. It does not recommend an annual regulatory impact assessment. However, I shall study the amendment further in the light of the task force report to be sure and shall consider whether anything more needs to be done. But, at present, we do not believe that the amendment is necessary.

Photo of Earl Howe Earl Howe Conservative

I am grateful to the Minister for agreeing to have a second look at this issue. I believe that it is important. Whenever we set up new regulatory mechanisms, it should be more or less a reflex action to examine how the regulatory impact of those bodies can be contained, however well intentioned the new system is to be. I look forward to hearing, perhaps at a later stage, what the Minister concludes. But, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 126 agreed to.

Clause 127 [Reports: CSCI]:

[Amendment No. 401 not moved.]

Clause 127 agreed to.

Clause 128 [Duty to have regard to government policy: CHAI]:

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 402:

Page 56, line 27, leave out "must" and insert "may"

Photo of Earl Howe Earl Howe Conservative

In moving Amendment No. 402, I shall speak to the other amendments grouped with it. In this group, we return to the principal theme of our Committee proceedings on Part 2—namely, the independence of CHAI and CSCI. Clause 128 confers a power of direction over CHAI by the Secretary of State.

A clause of this kind, tucked in towards the tail end of Part 2 and headed "Relationship with government", speaks volumes for the intentions of Ministers. Here, we have an open acknowledgement that, like it or not, CHAI will be beholden to the Government, as and when Ministers so choose, in every aspect of its operations. Its functions as an adjudicator of the quality of care and of the economy and efficiency of the provision of healthcare, as a guardian of the rights of children, as a publisher of data and as an assessor of the performance rating of trusts may not be for CHAI to perform as it seems fit but, instead, may be subject to the Government's take.

I am extremely troubled that a provision such as this should be in the Bill. It is quite unnecessary. Government policy, referred to in subsection (1), can mean many things. It can mean something as benign as a drive to get rid of mixed-sex wards or, alternatively, something that is political, such as waiting-list targets, delayed-discharge penalties and A&E waiting times.

However, the obligation to have regard to government policy is a strict provision. I have no problem with CHAI having regard to government policy. No regulatory body such as this one can possibly operate in a cocoon. Government policy is a fact of life, and CHAI must live with it. But that is different from saying that CHAI should be subject to a power of direction. The only point of a power of direction is to influence someone's actions. What possible ways are there for the Secretary of State to influence the actions of CHAI which would not amount to direct interference in CHAI's mode of working or the results that it published?

The confidence that patients and the public need to have in what CHAI says and the way that it does its business is one of the most important considerations in this legislation. People very definitely do not want to see CHAI as just another arm of government, doing the Government's dirty work and implementing the Government's political agenda. But that is what will happen if the Secretary of State is allowed to direct what it does.

In my amendment I suggest that the Secretary of State should by all means have the power to bring matters of policy to the attention of CHAI, but that that should be as far as it goes as regards any direct political influence over its operational role. The same comments apply in equal measure to CSCI. I shall not take up the time of the Committee to repeat the argument. Knowing the Minister, he is bound to present the Committee with some rational-sounding justification for these provisions, but I doubt I am persuadable.

Perhaps I may move briefly to Amendments Nos. 407 and 408. In Clauses 130 and 131 we see once again the over-intrusion of the Secretary of State in the governance of CHAI and CSCI. It is conceivable and the Bill is right to allow for the possibility that CHAI or CSCI may fail to perform their functions in some major way. Were that unlikely eventuality to come about, there has to be a means to address it. The Government's answer here is to give the Secretary of State a power of direction over each body so that he can tell it what to do or even what not to do. A power of direction may be the obvious device to bring out the tool kit in those circumstances, but I am distinctly uncomfortable with it. We all know about powers of direction; the point is not so much that they are used, but that they are there at all. The existence of a completely unfettered power of the Secretary of State to say that CHAI or CSCI were failing in the discharge of their functions gives him a large degree of psychological influence over the way that each body operates.

We should note that the Secretary of State does not even have to be satisfied as to the failure of CHAI or CSCI. He has to consider only that they are failing, which is much weaker. If the Government set up a body that does not work, the proper course is one of two things: to return to Parliament to introduce something else or, as my amendments propose, to get Parliament to approve the direction. To leave the Bill as it is will effectively give the Secretary of State a Sword of Damocles that he can wield almost whenever he feels like it. For bodies that are operationally independent, or supposedly so, that is simply not appropriate. Those concerns go to the heart of our misgivings on Part 2 of the Bill. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health) 12:00 am, 20th October 2003

I hope that I shall continue to sound rational at this time of night, as the noble Earl helpfully suggested. On Amendments Nos. 402 to 406, we have pointed out on a number of occasions that there are no general powers in the Bill to issue directions to either commission because we want to ensure that they are independent from government. A Minister will be able to intervene only in the specific circumstances of either body being judged to be failing in the discharge of any of its functions or under the power that we are discussing here which allows him to issue directions that require the commissions to have regard to matters of government policy. Such a power cannot be used to direct the commission on any specific matter that the Secretary of State chooses. It can be used only to issue a direction on a specific area of policy such as that CHAI and CSCI should not make a profit from any fees that they charge and that they must have regard to general government principles of good accounting in respect of such fees.

In the absence of a general direction-making power, it is essential that the Secretary of State has a power to ensure that proper democratic accountability is maintained. I do not believe that it is unreasonable that CHAI and CSCI should be expected to have regard to the broad health and social care policies of the elected government of the day when carrying out their functions. In contrast to the independent approach that we have taken for CHAI and CSCI, most other NDPBs, such as the Audit Commission, can be directed by Ministers about any matter, so they have been put in a special category. The duty to have regard to Government policy is the same duty as appears in the legislation that established Ofsted. I am sure that the Committee would not regard Ofsted as a body that lacks independence.

Amendment No. 406A seeks to remove the Secretary of State's power to vary or revoke any direction that he has given under this clause. I am sure that noble Lords are aware that this is a standard provision that is attached to any direction-making power. To remove such a provision would be extremely restrictive for the Secretary of State, but such a restriction would not be beneficial to CSCI. It could potentially lead to the inspectorate needing to have regard to an aspect of government policy that was long out of date, and which no longer reflected the reality of the social care world that it was inspecting. Clearly, that would be wrong.

Amendments Nos. 407 and 408 would place a duty on the Secretary of State to consult Parliament before he issued a direction to either commission. The procedure proposed by the amendments for issuing a direction to Parliament would be time consuming and a bureaucratic and unnecessary waste of parliamentary time. In the extremely unlikely event that either commission failed to carry out its duties, or failed to carry them out properly, it would be important that corrective action could be taken quickly. Let us suppose that because of the pressures of work one of the commissions refused to undertake an investigation into a Climbie case or a Shipman case, would the public think it right that an investigation was held up while we discussed the matter in the House? We think that is not so and that the Secretary of State should have these powers of direction in these rather special circumstances. I suggest that the amendment is withdrawn.

Photo of Earl Howe Earl Howe Conservative

I should have thought that in the kind of case cited by the Minister—the Victoria Climbie situation—where the inspectorate declined to carry out an investigation there are already separate powers in the Bill which the Government could use. I am not at all certain that these powers of direction are necessary.

The Minister may seek to present these various powers as limited in scope. I do not read them in that way. They are widely drawn. While the Government may have only modest horizons about the use of these powers that might not necessarily apply to a future government who leaf through the Act, as it will be, and find that they have very considerable influence with which to play.

Nevertheless, I can see that the Government are not going to be moved on this issue, which I find a pity, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 403 and 404 not moved.]

Clause 128 agreed to.

Clause 129 [Duty to have regard to government policy: CSCI]:

[Amendments Nos. 405 to 406A not moved.]

Clause 129 agreed to.

Clause 130 [Failure in discharge of functions: CHAI]:

[Amendment No. 407 not moved.]

Clause 130 agreed to.

Clause 131 [Failure in discharge of functions: CSCI]:

[Amendment No. 408 not moved.]

Clause 131 agreed to.

Clauses 132 to 143 agreed to.

Schedule 9 [Part 2: minor and consequential amendments]: