Clause 13 - Commission for health improvement: inspections and investigations

NHS Reform & Health Care Professions – in a Public Bill Committee at 4:30 pm on 4th December 2001.

Alert me about debates like this

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health) 4:30 pm, 4th December 2001

I beg to move amendment No. 124, in page 17, line 42, after 'providers' insert

', and persons who provide or are to provide health care for which NHS bodies or service providers have responsibility,'.

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

With this it will be convenient to take Government amendments Nos. 27 to 30.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

In our earlier debates the hon. Member for North-East Hertfordshire raised his concern about who has responsibility for inspecting independent providers providing services to NHS patients. You, Miss Widdecombe, need no introduction to the subject; I remember you speaking eloquently on it in previous Committees.

I shall not detain the Committee long on these amendments. I hope that they substantially meet some of the recent concerns expressed by Opposition Members. We are trying to preserve consistency and continuity and to ensure that the public interest is properly safeguarded. The amendments place CHI's new inspecting functions on broadly the same footing as its existing functions. The commission already has these powers of inspection in relation to its existing clinical governance reviews of independent sector

providers. The amendments allow it to exercise its new inspecting functions in relation to independent sector providers of NHS services in exactly the same way. In that sense they promote consistency and continuity.

However, there is one important difference; I hope that the Committee will bear with me while I explain it. If the commission finds that services provided by an independent provider are of an unacceptably poor quality or that there are serious failings, the amendments will not allow it to recommend that the Secretary of State take special measures in relation to those failing independent sector providers.

We should not lose sight of the fact that such providers are not accountable to or managed by the Secretary of State. A different set of arguments applies in relation to NHS units, on which there is clearly a direct accountability arrangement. Failure of an independent sector provider to provide services of the right quality should ultimately be a matter for local commissioners to respond to once the commission has identified a quality problem with those services.

The amendment provides continuity and consistency but we have decided, in the interests of common sense, to ensure that the appropriate action consequent on such a negative report from the commission is for local commissioners to respond, not the Secretary of State directly. He is not in a direct position to influence the service provided by the independent sector provider.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health) 4:45 pm, 4th December 2001

We have some doubts about the overall structure that will apply, as a result of the amendments, to inspections of private sector premises used for NHS purposes and pure private provision. The issue is important, given the Government's announcement—or leak—about BUPA and the hospital in Redhill. The use of our capacity to deal with the needs of patients in the private sector as well as the public sector is clearly welcome, but further use of that approach raises issues about inspection and quality.

Last year, the Government set up the National Care Standards Commission, which starts work in April. Its job is to inspect and regulate health care in the independent and voluntary sectors, as well as social care premises. I do not understand the sense of two bodies inspecting the same premises. The NCSC will go into private premises and examine conditions. Why should it not consider what has happened to the NHS patients? Equally, the Commission for Health Improvement will no doubt inspect the premises on behalf of NHS patients, and will find things that it might feel are also relevant to the private sector. Should the inspections not be co-ordinated so that only one body visits each premises? Joint working is possible under section 9 of the Care Standards Act 2000, so may we have an assurance that that will always happen?

Do we need two regulatory bodies? The Government are keen on setting up committees in response to current issues, and several quality and safety bodies have been established. Historically, the

decision might have been sensible. About a year ago, when the Government had set their face against the use of the private sector, I remember the Secretary of State for Health saying that the NHS was thankfully a monopoly provider, and that it would long remain so under Labour. Now we hear something different. Given that circumstances have changed, is there not an opportunity to reconsider whether we need two bodies to do the same job on one group of premises? We could merely have one body for the private and public sector.

Today's issue of The Independent suggests that the ambition of the Secretary of State is to turn the Department into a health regulator. It states:

''The Department of Health is to be turned into an 'arms length' regulator of health standards in an attempt to release hospitals from the grip of central Government control''.

There is no sign of that in the Bill, but if it is the Government's intention that it genuinely be the regulator, that prompts two questions. First, why have a separate body—CHI—if the Government will carry out regulation at arm's length? Why not simply let the Department of Health do it? I suppose that the answer is that there is at least a flavour of independence about CHI. Secondly, why are numerous bodies needed?

I understand that, when the Minister and his officials gave instructions to the draftsmen, the NHS may always have been intended to be a monopoly provider. However, now that we know that the plan is different, should the thinking be reconsidered?

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I have looked through the amendments. I am clearly experiencing a mental block, but I should be grateful if the Minister would explain in what way they do not imply that CHI's powers to report on NHS bodies to the Secretary of State will not apply to private bodies that provide health care for which NHS bodies or service providers have responsibility. I struggle to follow how the distinction comes about.

Will the Minister clarify the position on patients treated within the NHS estate but as private patients? Has that position changed? Is the NHS body—the hospital in which those patients are treated—responsible only if the patients are treated by NHS staff, or also if the wing is managed by the chief executive, or even if it is in the same curtilage but has a different management because there is a separate subsisting private hospital in the NHS grounds? The subject has been raised before, but it will be even more important to clarify it when we consider what the Government intend in terms of reporting the relevant bodies and providers to the Secretary of State.

In light of this morning's announcement about a privately managed hospital contracting for NHS work and presumably still being responsible to its shareholders, I should be grateful if the Minister would say whether that will be covered simply by virtue of the contractual relationship. The relevant body would not appear to be the NHS within the hospital, but the hospital doing its own thing for the NHS by means of a contract, service agreement or whatever the new jargon is.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

Does the hon. Gentleman agree that one of the problems with a multiplicity of inspection bodies is that one of them could discover a piece of extremely worrying information but not tell another, for whatever reason? Patients could miss the full coverage of inspection that one would expect, and there would be gaps in the system. It would be good to do something to avoid that problem.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I agree. The hon. Gentleman knows that my view—I think that it was also that of his party at the time of the passage of the Health Act 1999 and the Health and Social Care Act 2001—is that a unified inspectorate should consider only the quality of health care provision. The Government rejected that idea due to their aversion to lump the private and public sectors together, even for the purposes of quality assurance, which was initially understandable. As they seem to have got over their concerns on that lumping together, it seems mysterious that parallel structures are being set up. Given that the Government are not afraid to make structural reforms, even for their own sake, let alone to ensure quality, the simplest thing to do would be to unify the two bodies.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

Obviously, I failed to make the simple case for the amendment. It would simply promote consistency and continuity. CHI already has the powers in relation to its existing ability to inspect. We are simply extending those in relation to the new range of inspections that CHI will be able to carry out.

The hon. Member for North-East Hertfordshire raised a philosophical but fair question about the reasons for having two distinct bodies—the National Care Standards Commission and the Commission for Health Improvement. That is Parliament's decision. The hon. Gentleman disagrees with that distinction, but our arguments in favour of it are well rehearsed. He will be aware of them, as will every member of the Committee. I do not want to go into detail on that, because we can deal with the matter either in a clause stand part debate or on another occasion.

The amendments are simple in their intention and effect. They do not affect the issue of access to private sector premises. The hon. Gentleman was expressing concern about that, but they have no bearing whatever on the issue. The issue of access to premises is dealt with in clause 13(2). If the hon. Gentleman wants to raise any concerns about that, we can deal with the matter when we debate that clause.

The hon. Gentleman wants to debate the rationale behind having two inspection agencies, but those arguments are well rehearsed—we have been round that house. However, there is one issue that he was right to draw the Committee's attention to. CHI is not a registration authority. That is the fundamental difference between its role and that of the NCSC. The NCSC registers providers and gives them the authority to provide a service that meets the national minimum standards. CHI does not have that function in relation to the NHS.

When we were legislating to set up the NCSC we wanted, as any sensible person would, the two bodies that we felt were necessary to be able to co-operate.

That is what section 9 of the Care Standards Act 2000 is about. The two organisations are sensibly discussing the way forward and how their co-operation can be developed before the NCSC assumes full executive responsibility in April 2002. We would reasonably expect the majority of health care expertise to reside with CHI, so it makes sense for the two agencies to consider carefully how the work can be shared between them, in the best interests not only of the public but of the taxpayer. I have no doubt that they will do so.

I was thrilled and interested by the use of the word ''curtilage'' by the hon. Member for Oxford, West and Abingdon (Dr. Harris). It reminded me of the many months that I spent studying land law at university. I did not understand the term then and I have no recollection whatever of the learned lectures that I listened to on the subject. Without getting tripped up—there are many other better and more recently practising lawyers on the premises—[Hon. Members: ''No!''] I was fishing for that compliment, and I am grateful.

The issue that the hon. Gentleman raised is an unnecessary distraction, because the provision is not dependent on where the private hospital is located, and whether the hospital is within the curtilage of an NHS hospital is completely irrelevant. The only relevant issue is whether it provides services to NHS patients. The precise physical location of the independent sector unit—whether it is within the grounds of an NHS hospital or not—is irrelevant to the issue of CHI's competence and jurisdiction. All that matters is whether the unit provides a service for NHS patients.

The provision is not consequent on any other complicated set of equations, such as the precise nature of the managerial connection between the private unit and the NHS. It is certainly not determined by the physical location of the private unit. To base powers on that type of distinction would be absurd. That would make the system impenetrably obscure and would not serve anyone's interests.'

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 5:00 pm, 4th December 2001

I have been looking through the Health Act 1999, and I can find no reference in that Act, which the clause amends, to the sort of health care covered by the measure; services delivered to NHS patients. The Act states that duty of quality applies to providers of health care to individuals. Although I may be revisiting another debate, I would be grateful if the Minister clarified the basis for his assertion that what matters is who pays for the care rather than who provides it or has responsibility for its provision.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

There is something in the Health Act 1999 about that; I am sorry that I cannot lay my hands on it right now. Perhaps I can resolve the hon. Gentleman's difficulty during the clause stand part debate.

Amendment agreed to.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I beg to move amendment No. 125, in page 18, line 6, at end insert—

'(za) a review under subsection (1)(b),'.

Photo of Ann Widdecombe Ann Widdecombe Conservative, Maidstone and The Weald

With this it will be convenient to take Government amendment No. 126.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

The amendments extend the CHI's new duty to make reports to the Secretary of State where it is of the view that services are of unacceptably poor quality or there are serious failings in the way in which the responsible body is being run in terms of one of the commission's existing functions, contained in section 20(1)(b) of the Health Act 1999. The effect of the amendments will be that the commission will also have that duty in carrying out a clinical governance review. The commission will also be able to recommend to the Secretary of State that he take special measures in the event of such a report being made.

The intention is simple. The requirement on the commission to make a special report to the Secretary of State under such circumstances should apply not only to the CHI's new range of service inspections but to its current programme of clinical governance reviews. The amendments seek to achieve that extension. I accept that it is likely that it will be some time before the commission is able to develop a comprehensive programme of service inspections. That is obvious. In the meantime, it will need to continue to focus on the completion of its planned programme of clinical governance reviews and it has an objective to complete 500 of those by 2004. It makes practical sense that, if, when carrying out a clinical governance review, the CHI reaches the view that services are of an unacceptably poor quality or that there are serious failings, it should be required to make a report to that effect to the Secretary of State.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

On the face of it, the amendment seems to add a report under section 20(1)(b) of the 1999 Act to the list already contained in subsection (1D), which the clause inserts into that section 20. That list includes reports made under section 20(1)(c), those made under 20(1)(e) and inspections carried out under 20(1)(db), which clause 13(1)(a) inserts. Clearly, there is a difference in character between a (1)(c) report, which involves

''carrying out investigations into, and making reports on, the management, provision or quality of health care for which Health Authorities, Primary Care Trusts or NHS trusts have responsibility'', and a (1)(b) report, which is what the amendment refers to, which involves

''conducting reviews of, and making reports on, arrangements by Primary Care Trusts or NHS trusts for the purpose of monitoring and improving the quality of health care for which they have responsibility''.

The (1)(b) role is linked more closely to the (1)(a) role, in which advice is given. The commission's role is to give advice and promote best practice, as well as to point out the faults and mistakes committed by a health authority, primary care trust or NHS trust. Does the Minister not feel that the (1)(a) and (1)(b) functions should more properly be paired together, as they are both about improving quality through advice and help and then monitoring any improvement? Why should it be necessary, in that process, to make a report

and introduce special measures? I appreciate that under section 20(1)(c) of the 1999 Act, which is about the

''management, provision or quality of health care'', one might want to make a report for special measures to be taken. However, I cannot understand why that would be necessary, given the more constructive approach of subsections (1)(a) and (1)(b). I should be grateful to hear the Minister's response. Bodies such as the Royal College of Nursing have said that if the provision moves us too far from the encouraging and advising role and becomes too much of a policeman role, problems may arise in the relationships that are necessary to deliver what we and the Government want, which is better health care.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

On the same theme, I should be grateful if the Minister could explain why (1)(d) functions are not subject to the duty to report.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

That is the best way to ask a question and to get a Minister off balance. I hope to answer the hon. Member for Oxford, West and Abingdon in a minute, although there are no guarantees.

The hon. Member for North-East Hertfordshire was right; various issues are raised by the different sorts of inspection. Recognising the obvious differences, the judgment call that has to be made is whether serious deficiencies identified by the commission should be drawn to the attention of the Secretary of State for him to take action. Although there are differences, the quality and standard of care needs to be considered in all inspections and reviews, and we have judged that some consistency is necessary when weakness and failure is identified.

Putting it in crude terms, the hon. Gentleman is right that we need a balance between the carrot and the stick, because people do not usually respond only to the stick; nor should the carrots be sticks painted orange, because that does not help either. We are trying with the amendment to achieve an effective inspection service. It could result in the commission identifying a serious failure. If it did not, the hon. Gentleman and others would rightly argue that it would be a rather fruitless exercise, but it should not be confused with a desire to beat up people in the event of poor performance being identified. The commission may identify a number of special measures that it believes the Secretary of State should take, and they may not be simple, stick-type solutions.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

When I first looked at the provision, I thought that the balance had a certain logic; that one would make reports on (1)(c) situations but not those of (1)(b). The Government obviously think the same, hence the drafting. What has caused the Government's change of mind? Why is it now thought necessary to amend the clause?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I thought that I had explained that. As the hon. Gentleman knows, if it is to be sensible, the process of legislation should involve Ministers looking again at the provisions of legislation. I was chided earlier about a reluctance to change our minds. We have considered this provision, and given what I have

said about consistency, about making the inspection process meaningful and about the consequences of serious failure, and given what the hon. Gentleman said about the public interest, I should have thought that he would be a little more enthusiastic about it. I am sorry that I cannot generate more enthusiasm.

I tread quickly to the point raised by the hon. Member for Oxford, West and Abingdon about the private sector, and his inability to find any reference to it in the Health Act 1999. Section 20(1)(d) of that Act refers to

''care for which NHS bodies or service providers have responsibility'' and section 20(5) describes what is meant by responsibility, and includes ''another person'' providing health care ''at his direction'', or ''on his behalf'', or

''in accordance...with arrangements made by him''.

That is the reference in the Health Act to providers ''other than NHS bodies''. There is continuity between that Act and the Bill.

The hon. Gentleman also asked a direct question about (1)(d) inspections.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

Clearly, (1)(d) has been replaced by (da) and (db). I was asking why the amendment covers only (da) and not (db),

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I will have to explain that to the hon. Gentleman and to the Committee in writing.

Amendment agreed to.

Amendments made: No. 126, in page 18, line 8, leave out 'equivalent function' and insert

'function equivalent to one referred to in paragraph (za) or (a)'.

No. 127, in page 18, line 12, leave out 'or service provider' and insert

', service provider or other person reviewed,'.

No. 128, in page 18, line 20, leave out 'or service provider' and insert

', service provider or other person'.

No. 129, in page 18, line 22, after 'provider' insert 'or other person'.

No. 130, in page 18, line 27, leave out 'or service provider' and insert

', service provider or other person'.—[Mr. Hutton.]

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

I would like to discuss two aspects of the clause that were not allowed in our debates on the amendments. First, I wish to clarify the range of the commission's power. In the 1999 Act, the commission was limited to entering NHS premises, but the Bill proposes widening the category of premises to include

''premises owned or controlled by a service provider and used for purposes connected with the services provided''.

The phrase used in the 1999 Act and in the Bill is responsibility for ''health care''. I wonder whether the new power will allow the commission to enter premises

not directly involved in the provision of health care. Health care is defined in section 18(4) of the 1999 Act as

''services for or in connection with the prevention, diagnosis or treatment of illness''.

That could be interpreted widely. To use a slightly odd example, would the commission be able to enter the premises of a company that provided special dietary food for hospital patients? How much more widely can the commission's powers be thought of in terms of providers of health care?

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

Does my hon. Friend agree that the definition offered by the 1999 Act asks more questions than it answers? It does not define health care, but illness, which is equally problematic.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

Indeed. My hon. Friend has greater knowledge of the subject than I, and he has put his finger on a further problem that the Minister might want to address.

The second aspect that I wanted to raise was a more general point about investigations. Other members of the Committee may already know this, but I was rather surprised to learn that if a hospital calls in the Commission for Health Improvement to help it cure a problem, it is charged for its advice. For instance, the St. George's NHS health care trust in London extended its heart and lung transplant programme in October 2000, and then called the CHI to discover the reason for the substantial increase in the number of deaths of transplant patients over the previous year. It took 11 months for the report to come out. The length of time that it took to prepare caused considerable morale problems at the hospital. At the end of the day, the hospital was presented with a hefty bill, which the trust had to pay. At the time the trust argued that this was unfair, because a great deal of the work carried out in the investigation was of wider use; there was a vast cost in terms of collecting large amounts of data that was in fact relevant to the whole of the NHS in terms of transplantation.

What does the Minister have to say about the ability of the commission to charge, on what basis it charges and whether hospital trusts that call in the commission and are then faced with a large bill are able to dispute that bill? Who ultimately is the arbiter of the level charged by the commission?

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health) 5:15 pm, 4th December 2001

Clause 13 provides that if the Commission for Health Improvements is of the view that a health care NHS body or service provider is of ''unacceptably poor quality'' or there are ''significant failings'' in the way it is being run, it must make a report to the Secretary of State, or, in Wales, the National Assembly for Wales, and the report may recommend ''special measures''.

Will the Minister give us some idea of how ''unacceptably poor quality'' and ''significant failings'' are to be judged? Is this a reference to the stars system, or will the basis be one of outcomes? Will he flesh out for us what these tests are and how they are to operate? I hope that he will address my concern that there

should not be a barrier to innovation or new treatments. As he will know from his own experience in dealing with this area, in the mental health field there is considerable support for new therapies; talking treatments and other forms of counselling.

There is support for the provision of sanctuaries and holistic medicines as alternatives to more traditional therapies. There is also the cry that goes out for the latest medicines. The Minister will know that some traditionalists are less accepting of these new ideas than those who put them forward. Will the Minister assure me that quality will be based on a rigorous assessment of outcomes rather than on an approach that stifles new thinking?

Will the Minister explain what the special measures are? The Secretary of State obviously has the power of intervention under sections 84A and B of the National Health Service Act, which were also referred to in the Health and Social Care Act 2001. Is that what he has in mind or would other measures form part of the package described as ''special measures''? If he refers only to the power of intervention it would be helpful if that could be made clear. The Health Service Journal that he loves so well asks exactly what special measures are. The Bill states that the CHI can make recommendations where health care is ''unacceptably poor'' or where there are

''significant failings in the way the body or service provider is being run''.

The CHI communications director talks about a menu of special measures he is discussing with the Department of Health. The NHS Confederation is quoted as saying it is not sure what this will mean. It would be helpful if the Minister could explain what is referred to.

Secondly, could I ask him about the relationship between the Commission for Health Improvement and the Audit Commission? That subject has already been discussed, but in this context, if the CHI were to undertake Audit Commission work and prepare a report under the provisions of Section 21 of the 1999 Act, would it be possible to recommend special measures on the grounds that the value for money is very poor? In the light of the weekend's newspaper reports, it is clear that one great concern about the NHS is the high amount—£7 billion to £10 billion-worth—of waste. Evidence of very poor value for money should be reported immediately up the system, so that action can be taken. What special measures will be available on the ground that value for money for the taxpayer is very poor?

Thirdly, how widely are the powers of entry drawn? My hon. Friend the Member for Hexham (Mr. Atkinson) made the point fairly well; in fact, he made it very well.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

Any advance on that? As my hon. Friend said, we all appreciate that it is sensible to inspect premises such as hospitals and clinics, and there is indeed a great deal of concern about diet in hospitals. However, is the Minister suggesting that powers of entry will apply to a kitchen remote from hospital

premises, where food is prepared and then shipped to the hospital, to a blood transfusion centre situated away from the hospital or to the headquarters of a cleaning firm, so that its records can be examined? Does the power have a wide scope, or will it be limited to clinical premises?

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I would like to add my voice to the call for the Minister to clarify what is meant by special measures. Will they go further than the intervention orders set out in the Health and Social Care Act 2001? I am glad that the Minister has acknowledged that the fear exists that the Government are keen to decentralise blame. There is no better way to shift on to individuals the blame for the service's failure to meet expectations than to scapegoat, regardless of how much those expectations have been inflated by a Government who have failed to provide the necessary resources, whether in cash or staffing terms. There is no better way to scapegoat than to identify individuals and state that they are subject to special measures, be they franchising or discipline. That is why we have a duty to ensure that the Government set out the way in which they envisage that the special measures will be used.

Even with an increase in alleged independence, the Commission for Health Improvement will not be allowed to criticise Government policy—even where it considers that departmental guidelines, must-dos and regulations are responsible for a failure in delivery or in quality issues—and it will be left merely with the task of identifying individuals who were unable to deliver quality despite their best efforts.

Having worked in the service and seen some of the things that can go on, I am as tough as anyone else on the question of quality. However, the Kennedy report took a very different approach from the one that the Government might wish to take. They might decide that those involved in what was a major quality problem acted maliciously, or that the situation could have been improved if others had been involved in management. It is true that there was a management failure and a clinical failure, but the report was at pains to point out that those involved had to cope with significant under-resourcing and geographical limitations in the provision of service.

The worry is that the sanctions will be used not only to deal with important quality issues—I accept that they must be dealt with—but to get the Government off the hook through their power to draw attention away from other issues that the commission perhaps cannot deal with. Certainly, hospitals in my area are very concerned—this does not help them to do their job—that the Government are standing by, ready to cast the blame on them, when they may be blameless because the job that they are trying to do is impossible with the resources that they have. There is a duty to explain what powers the Government are taking, and what measures they are thinking of introducing in the clause.

We will discuss later, perhaps on Thursday, prisons and the partnership between the NHS and the Prison Service. If NHS care is to be provided in prisons—some might argue that that is not before time—what

rights of access for the inspection of those premises will be covered by subsection (2)? It is hard to tell from the wording, without detailed cross-referencing, whether that will cover prison facilities where NHS services will be provided.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

The hon. Members for Hexham and for Westbury (Dr. Murrison) have referred to the powers of entry. We have tried to set out in the clause where we think that those powers are needed. There is a regulation-making power alongside that, but the terms within which the powers can be exercised are set out in the Bill. Let me make it clear to the Committee that the powers will not be wider than we think absolutely necessary. I know that the hon. Member for North-East Hertfordshire is concerned about the matter and so am I. I do not want to take powers that are not absolutely necessary for the proper discharge of the commission's functions. If Opposition Members want the Commission for Health Improvement to have an inspection function over private sector providers, which has been their mantra, the Committee must address the question of the necessary consequential powers. Quite transparently, there must be a power of entry or the inspection function cannot properly be discharged.

I know that the hon. Gentleman is a man of immense goodwill, fairness and common sense. I do not ask him to trust me—I am not naive—but I hope that, having looked at the clause, he will form the view that the powers of entry that we are taking for the commission are necessary. His hon. Friend, the hon. Member for Hexham, asked what we mean by ''premises'' for those purposes. It is defined in subsection (2)(c)(ii)(a), (b) and (c). We have tried not to hold anything back from Committee members; we have let them see everything so that they can decide whether we are taking unreasonable powers. A fair judgment would be that the powers in the Bill are reasonable.

The premises concerned will be clinical premises. I think that that is what the hon. Gentleman was concerned about. In the main, the premises that we have identified are those used to deliver clinical services that the NHS is commissioning from an independent provider.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

I am grateful to the Minister for explaining that. As my hon. Friend the Member for North-East Hertfordshire said, I made my point only fairly well, so the Minister may not have understood what I meant. However, to give an example, a special diet or food provider would not, from what he has said, be included in the powers that the commission has for right of entry.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

Kitchens, or the company that provides food in them.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health) 5:30 pm, 4th December 2001

I am reasonably sure that if a private, or even NHS, provider were using a contract supplier in a kitchen, it would be clear whether the definition in subsection (2)(c)(ii)(c) covered those premises. I am not trying to be judge and jury; I will not be making the decisions. Ultimately, it is for the commission to decide whether the premises are covered by that definition. If there is a challenge, such questions will have to be resolved in the normal way. The commission might decide that it wanted to look at premises if, for example, they had a bearing on the nutrition of patients staying in a hospital in terms of whether the food was of the right standard. However, such matters will be dealt with on a case-by-case basis; the judgment will not be mine. In the main, the definition is intended to catch those premises that the commission potentially will be able to inspect.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

As usual, our concern is that subsection (2)(c)(ii)(c) is very widely drawn. Reference is made to

''any other premises used for any purpose connected with the provision of health care for which persons mentioned in paragraph (a) or (b) have responsibility'' and those two paragraphs are also widely drawn. The Secretary of State has the power to direct the commission; he could, if he wished, direct it to go and report on some kitchen premises that were only vaguely associated with health care.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

No, that is not the case. The Secretary of State cannot use a direction or regulation-making power to overcome an express provision of primary legislation. On the example of the kitchen supplier given by the hon. Member for Hexham, subsection (2)(c)(ii)(c) makes it clear that the premises that he cited would have to be the under the responsibility of the person who is providing the service. If the service provider had no responsibility for the premises, he would be outwith the remit of the Bill's powers of entry and inspection.

We are not a bunch of Nazi stormtroopers, sending an army of inspectors around the country to poke their noses into every nook and cranny of corporate and business life. The hon. Gentleman is a man of immense common sense, and I am sure that he understands that. Without trying to answer his question, because I am not fully aware of all the hypothetical circumstances surrounding it, the test that will have to be satisfied in order for his example to be defined as premises for these purposes is set out in the Bill. The service provider must have some responsibility for those premises. That is a reasonable line to draw. If he has such a responsibility, it is fair that the commission should have the power of entry.

The hon. Member for Hexham also referred to charging. He expressed some surprise about that matter, but it was dealt with when the commission was established, so there is nothing new about it. As far as I am aware, there have been no arguments about responsibility for charging. The CHI seeks to recover the costs incurred by the inspection, and those costs are shared with the host trust. That is the right way to fund the commission.

I was asked what we mean by unacceptable standards. Essentially, we have to appreciate who is doing the inspection work; it is driven by clinicians and by clinical standards. Those standards will be published so that service providers, patients and the public are clear about the CHI's expectations. The fundamental question—whether services are unacceptable—will be made by the inspection team. It will be a clinical judgment based on what they have observed and what the data tells them about the service.

On the next point, I have to agree with the hon. Member for North-East Hertfordshire. We must not allow this proposal to become a barrier to innovation and change. The NHS is a service driven by science. Both science and technology change, sometimes daily, and it is in nobody's interests to have an inspection and regulatory mechanism that imposes a straitjacket on change across the service. There is no evidence that the CHI is discharging its responsibilities in that way. If the hon. Gentleman wanted me to put that on the record, I am happy to do so. The whole exercise must add value; it must improve patient safety, clinical outcomes and standards of care across the NHS. We will not do that by placing a ball and chain around the neck of the innovators and entrepreneurs in the health service who want to move it forward, and we have no intention of doing so.

I was also asked about special measures. We have not defined those in the Bill, and rightly so, because we need to allow as much flexibility as possible. Such measures could include further involvement by the commission in relation to the body or service provider. They could include special action by the NHS Modernisation Agency in terms of re-engineering or improving aspects of services being provided; they could involve the use of the Secretary of State's powers of intervention under section 84 of the National Health Service Act 1977. Specifically in relation those powers, the measures could involve the replacement of board members and involve services provided by a third party or by franchising, including management function or service provision. The CHI will make the judgment on what special measures are necessary. The measures should be interpreted not simply as a range of big sticks to bludgeon blameless people, in the sense used by the hon. Member for Oxford, West and Abingdon, but as sensible measures to help to improve services for patients.

Photo of Oliver Heald Oliver Heald Shadow Spokesperson (Health)

Is the Minister suggesting that the CHI would set out in its report what special measures were needed, rather than simply saying that there is a case for special measures and leaving it to the Minister to decide what they are, so that we would all know what is being proposed in each case?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I think that that would be the case, but the decision on what special measures should be taken will be a judgment for the Secretary of State. We shall not do that in a dark and smoke-filled room because the matter should be open to public inspection. We are trying to improve the public's national health service. The NHS does not belong to us or to the hon.

Gentleman, but to the whole country and we have a responsibility to the public to conduct the debate as openly as possible.

The final point that was raised is the familiar hobby-horse of the hon. Member for Oxford, West and Abingdon; blame. The hon. Gentleman is obsessed with blame. That is a disappointing reaction and repetition of a flawed analysis based on a mistaken assessment of what the provisions are about. It is motivated essentially by a purely partisan assessment of the Government's actions. On each of those three counts, he is wrong. This is not about a blame culture, but about the necessary actions that the Government must be able to take to move from a position in which services are constantly criticised to putting in place the measures to address those complaints.

We have a responsibility, and the hon. Gentleman and I have a completely different view of that. Whatever his judgment about the direction of policy in the national health service--he disagrees fundamentally with it, as is his right--it is fully the responsibility of Ministers in any Government to suggest solutions to the problems. We can argue and argue about the nature of the problems, but we must go beyond the historic dilemma of poor results and performance in the NHS. That has always been addressed by Ministers in previous Governments, Labour and Conservative.

We know where the poor performance is and we can identify it. The hon. Gentleman can identify it in his own constituency. We need to put in place the measures to address such poor performance. Part of the solution is investment and we are providing that. Part of it is reform and we are making reforms; the provision is part of those reforms. We are constructing a mechanism to identify failures quickly; not subjectively, but informed by clinical assessment by the best people available to do that work. We will then construct the solutions. That is not blame; it is the Government discharging their responsibility to the public to put right poor performance. To characterise that as blame is to traduce and trivialise the arguments. It is a schoolboy debating point. The hon. Gentleman needs to go beyond that and engage with the serious issue of how we put right service deficiencies.

Part of the solution involves money, but money is not the whole solution. The Liberal Democrats think that everything can be solved with a shed load of cash, but that is simply not so. We must provide the cash, investment and reform and we must take measures that are sometimes difficult for people in the service. I accept that, but we must not flinch from taking the tough decisions required to put right poorly performing NHS providers. If we do not do that, we sell the pass and negate our responsibility to the House and our constituents, which is to address problems with public service delivery.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

Perhaps I can help the Minister, who is being a little unfair to the hon. Member for Oxford, West and Abingdon. Is the Minister aware of the comments that one of his harshest critics, the hon. Member for Winchester (Mr. Oaten), made at the Liberal Democrat party

conference? He said that he thought that we needed to debate public services. He said that although the audience would not like it—I am sure that the hon. Member for Oxford, West and Abingdon does not like it—when we look at the health service we need to look at ''issues of insurance'', ''issues of charging'' and ''issues of hypothecation''.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

It is a tempting morsel. I was being a little unfair to the hon. Member for Oxford, West and Abingdon. It always makes me feel good when I am unfair to him; not for any personal reason, but because I find his party's position utterly pathetic. Its claim that the problems of the NHS can be solved by investment alone is not borne out by events; it is not a tenable position.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I shall give way to the hon. Gentleman in a moment. I shall be fair to him because he wants to entertain us with his views.

We must invest, and we are doing so at record levels, but reform is also essential. The reforms that we are implementing through the Commission for Health Improvement are fundamental to challenging poor performance. The sensible way to reform is not by being judgmental, but by using opinions that are informed by the best clinical expertise.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

It is difficult to respond to all the Minister's remarks in an intervention, and I may seek to catch your eye after he has spoken, Miss Widdecombe.

I shall not be sidetracked out of order by the Minister's invitation to comment on how the NHS is funded. It is possible to believe that the NHS requires more resources, more staff, better staff morale, better retention, functional rather than structural change and an assurance of good quality; I do not demur at any of that. As we discussed earlier, the danger is that the Commission for Health Improvement is allowed to focus only on quality issues associated with end delivery rather than on the directions, resources and policies to which everyone is forced to work. Bad outcomes are glorified; people may think that sacking or replacing a manager is the solution to the problem, when the Minister would accept—I do not blame only him—that other things need to happen. That is what I mean when I say that the focus of blame is on the end result—the manager who is sacked—rather than on other issues that the commission is prevented from tackling by the terms of the Bill.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

The commission will need to identify the source of the problem in any particular trust or hospital. In some cases, there may be a need for a change in management, which, if that were the reason for the problem, would be inescapable.

A failure to address poor performance would depress morale in the NHS more than anything else. One can go to any hospital in the country and talk to nurses, doctors, therapists, cooks and cleaners who will say whether their team, department, trust or hospital is performing well. What turns many of them off is the realisation that, although problems have been identified over a long period, nothing has happened. Providing a poor service is the easiest option; none of this is easy because this is not the easy option.

The hon. Member for Oxford, West and Abingdon always berates us for taking the easy way out. He describes the clause as a way in which to pass blame elsewhere. These are not easy solutions, as anyone who has read the CHI reports and studied their comments on quality of care will immediately understand. We are holding up a mirror to the NHS, and it will show us things with which we shall not be happy. However, it will also show us some fantastic things, and we must give credit where it is due. Such credit is down to the hard work of nurses and doctors, and it is essential that we make that clear. We shall discover uncomfortable things when we hold a mirror up to the NHS. Our responsibility is not to shuffle our feet and say that the situation is too difficult and that if we act, we shall upset and offend people. That is the way to sell the pass on the future of the NHS. The public have high expectations on which they expect us to deliver.

I have said a great deal more than I intended, but the clause is important. I would say that, but it is my genuine belief that this is an essential plank in equipping the CHI with the tools that it needs to do its job properly and broaden its remit and function. If we are to use the independent sector more frequently to provide NHS care, which we will, we must ensure that the NHS gets the highest quality care when it uses those providers. That is the clause's function.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I want to make three points. First, I invite the Minister to respond, which I am sure that he will in a moment, to the statement about access to the Prison Service. Secondly, will he clarify which powers he has in mind other than those set out in the intervention orders in sections 84A and 84B of the 1977 Act? The explanatory notes to the clause state:

''Such measures could include the use by the Secretary of State of his powers of intervention under sections 84A and 84B''.

That implies that there may be other undisclosed powers that have not yet been established. Will the Minister cast some light on what those powers might be?

I do not want to have an endless debate, and I shall not rise to the bait given by the Conservative party's hard-working Liberal Democrat unit, which hunts out quotes from a democratic party conference where we debated future policy.

The third point, which concerns whether the Commission for Health Improvement holds up a mirror to the NHS, is key. We have already established that the commission is unable to comment on resources, which is one of many issues for which I do

not hold this Government, as opposed to the Government in the previous Parliament, wholly responsible.

The commission will not be allowed to question the terms of reference under which the NHS is working. If, for example, patients are badly treated in terms of quality of care, in that they are not given urgent operations because the Government have decided that the priority is a patient who is stable and not clinically urgent, but who is coming up to a maximum waiting time limit—be that 18 months, 15 months, 12 months or six months—and patients die while waiting for urgent operations as a result, the Commission for Health Improvement will not be allowed to comment, criticise or analyse the terms of reference, directions and criteria that commissioners and providers have been given by the Government, because the Government have said that it cannot do so. All that is left for it to do is to say that management should have stopped this happening. Management must not do the Government's bidding, and doctors should certainly not do their bidding, when it is a choice—these choices are sometimes difficult, but this one is obvious—between clinical need and political need.

That dilemma in which managers and clinicians find themselves is one reason why there is such poor morale in the health service. The Government are not the first to have tried this because there are Conservative Members who recognise this problem. We do not have a balanced approach to quality in respect of the powers that the Secretary of State will take from the clause.

I understood the Minister's point, and he made his case—I hope he takes this the right way—eloquently and strongly in his rebuttal of my main point. However, there is nothing here but a straightforward disagreement. He thinks that it is acceptable for the Government to be partly responsible, not necessarily advertently, for bad things happening in terms of quality, and for the Commission for Health Improvement only to recommend that action should be taken against managers who may feel that they were doing the Government's bidding. We will be unable to make further progress with this discussion. I hope, however, that the Minister will accept that I am not saying that the issue is all about resources, staffing or morale, but that a complex mixture of factors are involved in the delivery of poor care or a lack of access to care. The way in which the commission is set up with its veneer of independence will see blame being allocated publicly to individuals through the exercise of these powers, and not to the processes.

A reading of the Kennedy report reveals that the system, not individuals, is responsible for many quality problems. We miss the point when action is taken only against individuals. If one considers the media coverage of the Bristol royal infirmary's problems, the disciplinary action taken, which was similar to that recommended in the clause, against the doctors and management concerned—the General Medical Council was not necessarily wrong—made it appear before the Kennedy report was published that the only issue was surgeons killing babies and managers letting them do so. The Kennedy report,

which had a much wider remit than I fear the CHI would ever be allowed to have, clearly said that there were system failures, failures from chasing waiting-list initiatives, and a long-standing failure of resources. That is the point that I have been trying to get across.

I feel that we may not agree any further, but I do not want to repeat debates that we had this morning. It is not simply a matter of calling for more resources. To characterise the points that I am making—I feel that I am making them on behalf of people working in the health service, such as clinicians and managers—is to bastardise a very important argument, and a point that needs to be put.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health) 5:45 pm, 4th December 2001

I would like to respond briefly to the point that the hon. Gentleman asked me fairly, which I failed to deal with in my rush of enthusiasm to be unkind to him.

The CHI will have access to NHS services wherever they are provided, whether in prisons or elsewhere. We can come back to this issue when we reach clause 21, as my hon. Friend the Parliamentary Under-Secretary of State will be dealing with that part of the Bill. The very simple answer to the hon. Gentleman's question is that it will. We have a much broader disagreement, but I think that the hon. Gentleman should be wary about casting himself in the role of spokesperson for the NHS. There are always two sides to this argument.

The complaint that I hear loudly and clearly when I visit hospitals and speak to people working in the NHS is that they are sick and tired of no action being taken in the event of poor performance. They want us to take that action, and they want it to be done fairly. It is not about blame, and it is not about identifying individuals. I think that it is very important that we have a set of arrangements in place that will allow us to address those persistent and well-documented failures in performance, and that we do so sensibly.

The hon. Gentleman is being over-precious about his wider argument and the way in which he used the Kennedy report to support his argument. The Kennedy report is very clear about what the role of the Secretary of State should be. The appropriate function of the Secretary of State is to set standards, to provide resources, and to set the overall framework within which priorities should be set and delivered. It is also the job of the hon. Gentleman—along with all hon. Members on both sides of the House—to engage the Secretary of State so that he is held accountable for the decisions he makes. It is not the responsibility of the CHI to surpass the role of members of this House in holding the Secretary of State to account.

Question put and agreed to.

Clause 13, as amended, ordered to stand part of the Bill.