Clause 15 - Code of practice: improvement notices

Health Bill – in a Public Bill Committee at 9:45 am on 20th December 2005.

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Photo of Steve Webb Steve Webb Shadow Secretary of State for Health 9:45 am, 20th December 2005

I beg to move amendment No. 103, in clause 15, page 11, line 30, at end insert

‘and

(d)specify what sanctions will be applied if the healthcare body fails to comply with the improvement notice.’.

As the Minister hinted, clause 15 deals with the issuance of improvement notices where problems are identified. Amendment No. 103 is intended to probe what sanctions would be imposed if a health care institution failed effectively to tackle health care-acquired infections.

There have been various noises from the Government about the nature of the sanctions. At one stage, it was suggested that there might be criminal sanctions—legal action—against people at the top of hospital boards, but that seems to have gone. It would interesting to hear the Minister clarify the basis on which the Government rejected that suggestion. I am sceptical about whether it would have been a good idea.

I want to draw the Committee’s attention to remarks made by the chief medical officer, who said as recently as December 2003 that, despite all the guidance that had been issued to the NHS, there had been little improvement in tackling health care-acquired infections. The chief medical officer lists a number of aspects of the problem, one of which is that

“evidence-based countermeasures of known effectiveness are not being implemented consistently or rigorously in the majority of hospitals.”

People understand that such things are serious. We have heard the figure of 5,000 fatalities a year mentioned, although I gather that that is out-of-date and based on overseas information. Perhaps the Minister will confirm her latest estimates. Perhaps effective things can be done, but are being done only sporadically, not systematically; the point of a code of practice and an improvement notice is to try to tackle that problem. However, we all respond best to incentives. Our amendment says that the improvement notice ought to contain some indication of what will happen if the notice is not acted on.

On reading the Bill, and linking it to the Health and Social Care (Community Health and Standards) Act 2003, I found some indication of what might happen and what the ultimate sanctions would be, but I hope that the Minister can flesh that out in a number of respects. What time line does she anticipate between an infection problem arising in one department, for example, and the Healthcare Commission picking it up and giving the trust some time to do something about it before getting into the formalities of improvement notices?

When is the improvement notice issued, and how long does the Minister envisage the trust being given to sort things out? Will she just give us an indication? The worry is that I cannot see any indication of the time scales about which we are talking. Clearly, these things need to be tackled urgently, if people are dying because of failures of process. It is important that there is some indication, not merely of how long it will take, but what will happen if things are not done by a certain deadline.

The concept of a sanction is not ours; it came from the Secretary of State, who said in the debate in the House on 24 May 2005 that the Bill

“will establish a statutory code of practice, improved inspection arrangements and”— this is the critical bit—

“as a last resort, appropriate sanctions in the both the NHS and the independent sector”. [Official Report, 24 May 2005; Vol. 434, c. 574.]

Unless our amendment is agreed, it is not clear whether those improvement notices will be explicit about the sanctions. They may say, “We expect certain things to be done”, but it is not clear whether they will say, “by a certain time” or, simply, “they must be done”.

We have talked about eventually sacking the board, or bringing somebody else in. There is talk in the guidance notes of possibly bringing in the infection control manager from another trust. We are interested in getting the infection sorted out, which has to be the priority. As the hon. Member for Westbury said, we are interested not in a blame culture, but in effective action. I am concerned that hospitals and trusts are under so much pressure from central Government, with a panoply of targets, benchmarks and league tables, and all the rest of it.

Those of us who are under pressure often react to the one who shouts the loudest. If the infection control improvement notice is not up front and explicit about sanctions, perhaps some of the other pressures will be more powerful. For example, if there is a conflict between targets on waiting times and infection, and an infection control manager says “Shut the ward; it’s the only way to deal with things”, will the trust weigh the relative penalty for failure on either front and work out which is the most serious? If the improvement notice has no indication of a clear sanction, and the trust is unafraid of the consequences of not dealing with it compared with the implications of going down in the legal table or facing a penalty for not meeting another Government target, they might not make infection control the priority, which we believe is vital.

I have one other observation: I get a sense that part of the sanction mechanism is almost naming and shaming; it is about reputation, perhaps gained or lost formally through the league tables. I presume that I will know if my local trust is served with an infection control improvement notice, and perhaps the Minister will confirm that it will be made public. There are arguments on both sides of that debate. Perhaps merely the fact that people’s professional colleagues, patients and, I suppose in the NHS these days, business units know what is going on will, in itself, be an incentive, but there needs to be more than that.

I hope that the Minister will confirm that the stick as well as the carrot will be used. She must tell us the time scale for the implementation of the enforcement and improvement notices and ensure that because of how they are implemented trusts will take them very seriously.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 10:00 am, 20th December 2005

The issue of sanctions is fascinating, because they can mean so many things. In the professional sense, success or otherwise in achieving an outcome is sanction enough, as we all want the approval of our peers. In Parliament, for example, if do not have a good reputation we feel unhappy about it, and the same applies to health care professionals. We like to think that our peers appreciate what we do and recognise that we achieve good results. That, generally speaking, is the driver in the NHS. The problem with sanctions is that that driver is not sufficiently recognised.

Hospital-acquired infections have traditionally been seen as the responsibility of someone else, as supplementary to the main thrust of what a hospital does, which is carrying out successful hip replacements, for example, and ensuring that people admitted to a coronary care ward are well when they leave hospital. We need to ensure that that aspect of health care is at the heart of what the NHS and other health care providers do.

To give credit where it is due, the professions have begun to address the issue. I therefore hope that sanctions per se will not be such a big issue in future; the true sanction is that driven by the professions themselves, and it is related to the esteem or otherwise in which individuals within those professions hold one another.

I hope the Minister will comment on the difference in how the private and not-for-profit sectors in health care are dealt with in relation to the NHS. In a previous sitting, the hon. Member for Northavon, contrasting the sanctions that may apply to the two sectors, seemed to misunderstand the level of sanction and the penalties that may apply to the private sector—those bits of our health care system which lie outwith the NHS. If I got that wrong the hon. Gentleman will correct me. In truth, the sanctions that apply to the private sector are potentially very severe indeed because they are quasi-commercial, or commercial, in the sense that the HealthCare Commission could deliver an unfavourable report which could lead to contracts being removed. There are jobs involved, staff have mortgages to pay and so on, and their minds are heavily focused on the issue.

It does not happen in quite the same way in the NHS. In accordance with the 2003 Act, when a management problem is identified in the NHS, the individuals concerned are usually moved on, or moved sideways. We can all think of examples from our own constituencies where that appears to have happened. The level of sanction is not quite the same.

Nevertheless, what will be of concern to those at the front line, be they managers or health care professionals, is how they will appear to their peers. That, together with the altruism that goes with being a member of a health care profession and the desire to do good or, in the context of medicine and allied professions, at least to do no harm, is what will drive this matter. We need a recognition that that, rather than heavy-handed sanctions per se, is what tends to drive standards, particularly in the NHS.

I hope that the Minister will assure us that she would not be tempted to apply financial sanctions. We would have difficulty with that because we take the view that if there is a problem, removing resource is the worst thing that can be done. Part of the problem might be the need to use resource to improve things. The Liberal Democrats have tabled a later amendment that touches on this matter and I believe that the crux of it has to do with financial penalties that may apply, in the hope that any improvement might be funded centrally. To that extent, we would have similar sorts of concerns.

The notion that, having identified a problem, we need to fine the institution seems to be wholly inappropriate and a bit of a paradox. We want to rely on the powers that the Secretary of State already has under the 2003 Act to effect managerial change where that is necessary. We hope that there might be a bit more bite to that in the Minister’s handling of this serious aspect of health care in this country.

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

For the avoidance of any doubt in the minds of members of the Committee, I declined the invitation to communicate electronically with them, either on Christmas day or on any day during the Christmas break. I undertake to read the Hansard   record of our conversations, so long as my private office can get the box to me before the ferry departs on my last working day.

The Healthcare Commission has a key role in assessing the NHS and encouraging it to improve its performance. We have agreed that. In light of that supportive role, proposed new section 53A(4) would provide a power for the commission to recommend means to remedy the situation when an NHS body is failing. It is for the Secretary of State—and Monitor, in the case of foundation trusts—to consider what sanctions should be imposed, if necessary, where an NHS body has failed to comply with an improvement notice.

The improvement notice is a new and important power for the Healthcare Commission, one which will provide it with an interesting way of interacting with the organisations that it is inspecting. Special measures might include anything that the Secretary of State, or Monitor, thinks necessary to put things right as quickly as possible. That will be the focus of the effort. As we have discussed, such measures may include practical assistance or organisation support. For example, as the explanatory notes mention, the Secretary of State could enlist the help of the director of infection prevention and control from an NHS trust that has successfully implemented the code. That individual could advise a trust that is failing about how their trust put the code into practice and how the code could work.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health 10:15 am, 20th December 2005

I am getting a bit confused. Perhaps the Minister will help me to clarify matters. My understanding is that improvement notices may be served in circumstances where there is not a significant failing under the terms of the 2003 Act, which would give rise to a report to the Secretary of State or to the monitor as appropriate. The Minister seems to be describing special measures taken under an improvement notice, but that clearly does not apply. Improvement notices specify remedies; significant failings lead to special measures of an interventional kind by the Secretary of State or the monitor.

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

That is right. I am sorry if I confused the hon. Gentleman. By describing the special measures, I was seeking only to go through some of the suggestions made by members of the Committee. It was asked why there are no criminal sanctions, for example. We discussed that briefly last Thursday, if I remember rightly. The Government have considered criminal measures or criminal sanctions, and I have thought about that carefully, but after listening to people on one or two visits that I made and after considering the response to consultation, we concluded that such measures would be inappropriate for two principal reasons.

First, our current powers of intervention are more effective as a tool than the threat of prosecution in the courts would be. I described last week how difficult it would be, in the case of total system failure, to narrow things down to a single individual or group of individuals, but we will—the Healthcare Commission   will be part of this—look to see how seriously the organisation is taking the whole issue, and there will be an individual at board level who is responsible for overseeing the code’s implementation.

The second reason has already been touched on: there is a real risk that the use of criminal sanctions would discourage open reporting of errors and incidents. I want there to be a culture in the health service that encourages openness and reporting, not only of incidents of hospital-acquired infection but of all adverse incidents in hospitals, so that we can learn lessons from them without fear of unjust persecution of individuals.

On the question of what happens in respect of private sector care homes, the hon. Member for Westbury is right. Onerous sanctions already apply to those operating as a private organisation. They have to register in the first instance if they are providing care through a nursing home or a care home, and with registration comes the implied threat to the business. We will introduce a code that exactly mirrors the code of practice for the health service and that will apply to the private and independent sector.

Although I have not spoken for long, I hope that I have addressed the issues and concerns that have been raised.

Mr. Lansleyrose—

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

I was about to make one last point on financial sanctions.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

I do not think that this point is necessarily about financial sanctions. I understand, I think, how the measure works, but there is something that I do not understand. Circumstances are envisaged in proposed new section 53B(8) of the 2003 Act, in line 28 on page 13 of the Bill, in which the Healthcare Commission believes that the improvement notice has not been complied with, but it is not required to make a report to the Secretary of State or the monitor because the failings are not significant. What sanctions could apply in circumstances in which the Healthcare Commission has reached that view and it cannot use the sanctions under the 2003 Act?

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

If the Healthcare Commission has come to the view that there is a failure but not of the serious kind, it can reflect that in its annual report on the body that it is inspecting. I expect that, once the measure beds in, there will be a regular dialogue almost between the inspectors and those being inspected and an increasing awareness of the areas of risk in the organisation, so that steps are being taken and there is awareness of the steps that need to be taken. The Healthcare Commission will be able to see fairly quickly and clearly whether those steps are being taken in order to improve, year on year, the performance of the institution.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

I understand that, but what is contemplated in paragraph (d) in line 31? It appears to suggest that an improvement notice may not be complied with and that it may be concluded by the Healthcare Commission that the failing is not a   significant failing which gives rise to sanctions using the powers of the 2003 Act set out in section 53(2) of the Act, but

“(whether or not paragraph (c) applies)”—

whether or not it has made a report to the Secretary of State—it should set out any action which it proposes to take”.

What does action mean in that context?

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

I am trying not to be too prescriptive because I expect that it will very much depend on the circumstances at the time. The Healthcare Commission will be able to point the organisation that is failing, although not critically, to best practice that might not be being applied. The hon. Gentleman asks what will happen if the organisation fails or refuses to take that action. That will depend on the circumstances. The Healthcare Commission has wide discretion as to what it can recommend, but if it does not take action it will always be open to the Secretary of State to take action if he or she feels that there are sufficient grounds to do so.

Photo of Andrew Lansley Andrew Lansley Shadow Secretary of State for Health

I am grateful to the Minister. The explanatory notes make it clear that action in this context could mean the further supply of information, such as more monitoring by the Healthcare Commission. I want to be explicit about this, as it may be okay. Do we have to rely on the fact that if any failure to comply with improvement notices becomes serious and is therefore the subject of a report to the Secretary of State or is to be monitored, if it is a significant failure under section 53(2) of the 2003 Act, the sanctions can apply and there can be direct intervention? Is it contemplated that any sanctions should be applied on the basis of a failure to comply with the improvement notice, save for information-gathering, scrutiny and further recommendations?

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

I am sorry if we are making heavy weather of this. The hon. Gentleman is absolutely right, but I shall not be so prescriptive as to say, at this point, what the commission can or cannot do. If it comes across some failings in an investigation or annual inspection, it has a duty to draw those failures to the attention of the organisation and to ensure that the organisation complies. Let us not get too bogged down in this. The hon. Gentleman is right. I do not expect specific sanctions to be taken in the event of a less serious failing, but I expect that the whole process will bring about an improvement, year by year, in the way in which hospitals and NHS health care bodies conduct their business in relation to the prevention of serious infections.

On financial sanctions, the hon. Member for Westbury can rest assured that we do not think it appropriate to introduce new financial sanctions, precisely for the reason that he gave: it would remove resources from patient care, which would defeat the object.

With that, I hope that I have answered the concerns raised by the hon. Member for Northavon when he moved the amendment. The amendment would not   help the Bill, and I hope that the hon. Gentleman will not press it; if he does I will ask my colleagues to resist it.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

I am sure that I have just heard an explanation as to why I should press the amendment, to be honest. I asked the Minister several questions and did not get many answers. I got an answer on criminal sanctions, for which I am grateful. I did not, however, get any answers to my questions on the time scale and process. I reassure the hon. Member for Westbury that we did not have financial sanctions in mind when we drafted the amendment; it does not say “financial”, it simply says “sanctions”.

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

I apologise to the hon. Gentleman; he did ask about time scales. Again, there is no prescription on that issue. I do not expect that health service bodies will not take seriously representations that the Healthcare Commission might make following specific or annual inspections. It will be very much up to the commission to determine the time frame of an improvement notice.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

I am grateful for that. I simply wonder about the teeth of the provision, given that the commission existed then and the chief medical officer said as recently as two years ago that the evidence-based measures, which we know work, were not being implemented consistently or rigorously.

I admit that the debate on sanctions has been very helpful, but I am more confused than I was at the beginning about the code of practice and improvement notices. My understanding of the system is that the Healthcare Commission carries out an annual assessment, tells the Secretary of State if it spots something going wrong with the code of practice, and says that something must be done and that special measures must be taken urgently.

I hope that the Minister will correct me if I am wrong. Will she confirm that we are talking here about an improvement notice as a sort of second order? It is almost like saying that something is a bit wrong but not so seriously wrong that we need to do anything very urgently. It is fairly wrong so it is fairly urgent, and we should probably do something about it. I find that strange. It is saying, in effect, that there are breaches of the parts of the code that relate to infection control, but that they do not matter very much. We will give trusts until, say, the next inspection to sort out those breaches. I understand that there can be both big breaches and small breaches, but it worries me that we are communicating the message that minor breaches are okay so long as the trusts get around to sorting them out eventually. All parts of a statutory code should be taken very seriously. The attitude should not be, “Oh well, we had an infection.”

I used to be a shadow spokesman on work and pensions—the Minister’s old Department. Year after year, its accounts were not signed off. That became normal. The attitude was, “Oh well, they think our numbers don’t add up. They are a load of tosh, but what the heck, because there is no penalty, no   problem, and no sanction.” My worry is that if we regard second order problems with the code as routine, do not tell the Secretary of State but simply ask the trusts to do something about them, and do the same the next year if we report that there may be another problem, the improvement notices will fall into disrepute after a while because they have no teeth. The only time they will have teeth is when the commission goes to the Secretary of State. I am more worried at this stage of the debate than I was at the start of it.

I have not heard a compelling argument against accepting the amendment, but in the interests of getting through the rest of the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

I beg to move amendment No. 102, in page 11, line 43, at end insert—

‘(6A)When the Secretary of State is notified with a failing in connection with the code under section 47A he shall be responsible for the provision of resources necessary for the failing body to comply with the terms of the improvement notice.’.

As Conservative Members said, what happens if a problem is identified and the answer involves significant expenditure of resources, but the trust, or other body, is not in a position to deal with it? An obvious point to make at the outset is that we do not believe that effective infection control is primarily a financial issue or that not a lot of money is needed to ensure, for example, that people wash their hands properly. One can envisage circumstances, however, in which the answer to the infection problem is more substantial and may require the building of isolation facilities or other structural reform in a hospital. In those circumstances, it would be very unfair simply to issue an improvement notice, or even to have special measures to provide that the Secretary of State is informed but not to provide the trust with the wherewithal to deal with the problem.

Given the statutory duty on trusts to reach break even and the substantial minority of trusts that are in significant financial difficulty, how will such trusts be able to deal with a serious infection control problem that requires capital investment? If part of the problem is old, crumbling buildings and the only way in which to tackle the root of the problem is to bring in the bulldozers or build an isolation unit, and the trust says, “We have a £2 million deficit to clear by March, we simply cannot begin to do this,” how can the trust be expected to do it?

When there is a failing in the code under section 47A, our amendment would put a duty on the Secretary of State to ensure that the necessary resources are available to the failing body. The hon. Member for Westbury was right: the wording of the amendment seems to imply that the resources would come from Whitehall and would be centralist. To be honest, we do not mind who provides the resources; we want to place a duty on the Secretary of State to ensure that the resources are available. Whether they come from health authorities, primary care trusts or whoever, we do not mind.

Our preference is for a decentralised approach. However, if the Secretary of State brings in a code of practice and a notice about the big financial implications of breaching that code of practice, she cannot wash her hands of the consequences. It is not enough to say, “You must do better, you must sort this problem out,” while leaving the trust in no financial position to do so.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health) 10:30 am, 20th December 2005

Would the amendment apply only to NHS bodies, or would it also include those parts of our health care system that lie outwith the NHS? If not, does not the hon. Gentleman accept that there might be a problem with what may be described as a level playing field?

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

I shall give the hon. Gentleman an instinctive response. As the amendment is drafted, it would appear to imply that, as he suggests, a failing body could mean one outside the NHS—a non-NHS provider. That was not my intention. If the private sector decides to supply services to the NHS, it should include in its financial planning the finances necessary to provide effective infection control procedures. My point is that the NHS and its finances are the responsibility of the Secretary of State, and it would be wrong of her to say that action with potentially substantial revenue and/or capital implications must be taken to tackle an infection without ensuring that the trust that had failed had the money it needed to do the job.

I shall not deviate on to the financial state of the NHS. Deficits are an increasing problem and they tend to be heavily focused, so where they happen, they are quite big. A significant minority of trusts have most of the deficit. If the bodies in substantial deficit were also the failing bodies referred to in the clause, it would be unreasonable to expect them to sort out the problem without the Secretary of State ensuring that they had the resources to do so. That is the purpose of our amendment.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

Amendment No. 102 is interesting. I am pleased that in response to amendment No. 103, the Minister was able to assure me that financial penalties would not be imposed on trusts. However, amendment No. 102 would take the next step, providing money to trusts shown to be failing in respect of the matters under discussion. The amendment is fraught with difficulty, and I raised one difficulty with the hon. Gentleman on intervention. For that reason alone, we could not possibly support the amendment. It is flawed, and he was good enough to admit that.

The amendment would incentivise failure. In the same way in which we should be reluctant to support the levying of financial penalties on trusts that have been shown to have a problem, for the reasons that the Minister so eloquently discussed in her reassurance, we should not be minded to support this incentivising of failure either. At the last general election we listed ways in which trusts might improve their cleanliness, their hospital hygiene record and their record with   health care-associated infections. That, rather than the hon. Gentleman’s suggested measures, seems the appropriate way to proceed.

I think that what he is talking about involves, often, large capital investment in trusts. That might, of course, introduce all sorts of perverse incentives. If the approach were to be fair, I suppose one could say, it would have to involve institutions outwith the NHS, and there would definitely be a commercial incentive, in certain circumstances, not to do things, in the expectation that the Secretary of State would be likely to come up with the readies to invest in real estate or whatever, to bring things up to spec. That would cause far more problems than it would solve. For those reasons, the amendment does not have our support.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

The phrase “incentivising failure” is interesting, because in all sorts of areas of public life we spend money where there are problems. I suppose that that could be called incentivising failure, but that is what happens. We tackle problems, in some cases, by spending money on them. If the hon. Gentleman does not think that that is the answer, how would he tackle it? If a trust in his constituency was millions of pounds in deficit, and had an improvement notice served on it for tackling infection control, and its representative said to him in his surgery, “We haven’t the money to deal with the problem,” what would his answer be?

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I am not sure that things are quite as black and white as that; I really do not think that they are. I should be interested to know precisely what elements of capital funding the hon. Gentleman is thinking of. It seems to me that reasonably small-scale stuff would be involved. I make no apologies for the term “incentivising failure”. The whole drift of our thinking about health services—and, to be fair, that of the Government, I believe—is a degree of independence and taking charge. The hon. Gentleman seems to be saying that his party would not be inclined to do that, and that it wants central control. That is precisely what the proposal would mean.

If the organisations in question would be looking to central Government for a bung of money to sort out their problem, that would be central control. That is part of the problem with hospital-acquired infections. The culture of targets has driven a great deal of that. The one cannot be divorced from the other. We either go for the kind of approach that the hon. Gentleman suggests—an entirely centrist approach to health care—or we adopt a devolved approach. Our view is that a devolved approach, with independence given locally, is far more likely to drive up standards across the board than the centrist approach that the Liberal Democrats favour.

I was on the point of sitting down when I took the hon. Gentleman’s intervention; now I am definitely going to sit down.

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

Before I respond to the amendment, those who are listening very closely to what is said—particularly by the Minister—have asked me to clarify something. I got carried away with my rhetoric and said that the code that will apply to the independent   sector will be identical to the code that applies to NHS bodies. It will, in fact, be similar but not identical. I am pleased to take the first opportunity to make that clear.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

I am not clear on that. It sounded to me like an important point. The Minister, for clarity, has said that the code will be different for the NHS and for the parts of health care that lie outwith the NHS. Is that correct, or have I got it completely wrong?

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

The codes will be very close, but not identical, simply because of the different structures within which the different sectors operate. However, in all essential elements—the standards with which people will be expected to comply—they will be the same. I hope that that helps.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

This is important. I take the Minister’s reassurances about the level playing field, but she talks about structures, and I wonder if she could be more expansive about what problems, in respect of the differences between the two sectors, will require such a subtle change in the code.

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

In order to clarify the matter, I undertake to write to the hon. Gentleman and to circulate copies to the Committee.

I disagree with the hon. Member for Northavon, and find myself in a lot of agreement with the hon. Member for Westbury. It is important to be clear about the intention of the new code of practice. It will bring together existing guidance and good practice—things that NHS bodies should already be doing. Therefore, there is no question of its imposing significant new requirements or financial burdens ond¤trusts—certainly when it is first published. Furthermore, so far as future changes are concerned, there must be an expectation that NHS bodies, to which the code will apply, will want to keep up with good practice and to use the resources that are available to them. There cannot be an expectation that NHS bodies have to be individually funded every time there is a development in best practice. NHS bodies have a duty to improve the quality of the health care that they provide, whether that occurs as the result of a change in this code or due to wider changes in the field of health care dictated by improvements in good practice. We cannot say that that duty will be contingent on specific funding for every last improvement.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

And that, obviously, is not what we are considering. We are talking about something specific to a failing body which might, for example, be peculiar to the history of the site and require specific intervention. It might be disproportionate to the body’s budget, it might be urgent or, in the context of a deficit, there might be no other money available to deal with it. Of course, general improvements that apply across the NHS do not need specific funding. That is not what we are talking about here.

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

But if a price tag came with failure, the effect of the amendment would be to provide trusts with a perverse incentive to fail to comply with the code of practice. That would mean that the new legislation, as amended, would actively encourage trusts to take inadequate action to protect patients against health care-associated infections. It would actively increase the very risks to patient safety that the measures are designed to reduce. It is hard to imagine that that is the desired outcome of the amendment, but that is the effect that we believe it would have. For that reason, I hope that the Committee will resist the amendment should it be pressed to a vote.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health

I must admit that I am shocked by the complacent response that we have just heard. Neither the Minister nor the hon. Member for Westbury has answered the question. We know that there are trusts that are in deficit—that is not in dispute—and we know that tackling infection control in a specific case could be expensive, could involve capital works and could need to be done urgently. However, we have not had an answer from the Government or the Conservatives as to how they would tackle such a situation. We have just been told that it is a devolved matter. The wishful thinking in both camps appears to be that those involved should just sort it out. I find that profoundly disappointing.

Under the terms of our amendment, the Secretary of State would have a duty not to write a cheque every time that trusts came asking but to ensure that they had the money that they needed. If the Government believed that the normal funding was adequate to cover routine infection control, the clause would not be necessary. It is clearly meant to apply to exceptional circumstances, and we have had no answer as to what would happen in such circumstances.

I find the argument about incentivising failure bizarre. The hon. Member for Westbury is, rightly, fond of telling us about the commitment of his professional colleagues, but here he seems to be implying that they would deliberately rig the system; they would respond to the financial incentives in the clause by deliberately failing. One can only assume that that is what he meant by his intervention. I have a higher opinion of his colleagues than he does.

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

The hon. Gentleman talks about my colleagues. I am, of course, referring to NHS bodies. There is a difference between the two, and I tried to tease that out in my earlier comments. However, by way of example, let us take an operating suite that is a little tired, and an organisation that feels that, in the event of an annual inspection by the Healthcare Commission, it might receive adverse comment resulting in a bung of money from central Government. Alternatively, it might decide to spend money on it from its own resources. Say the hon. Gentleman is a member of a trust board, faced with a string of priorities—he talks of NHS trusts in deficit, and they have long lists of things that they have to do. Where in that list of priorities will that matter be pegged? I suspect that it will be pegged relatively low down, in the expectation that the commission will   come in and deliver an adverse report, which might have been expected in any case, and that what would result would be a bung of money. That is, of course, an extreme example, but it illustrates the point that I am trying to make, and that the hon. Gentleman is trying to misconstrue.

Photo of Steve Webb Steve Webb Shadow Secretary of State for Health 10:45 am, 20th December 2005

What we are saying in our amendment is that the Secretary of State should have a duty to ensure that the trust or failing body has sufficient resources. In the example that the hon. Gentleman gave, it is clear that the trust had sufficient resources, but spent them in some other way. That would not be acceptable; it would not be an eligibility criterion for the sort of assistance that we are discussing.

The hon. Gentleman failed to deal with the point that, throughout the public services, we spend money to put things right when they are going wrong. The idea that that is a perverse incentive to failure is absurd, because the alternative to spending money to put things right is not to spend money to put them right, which would be a far worse position. With some regret, I will withdraw the amendment, in the interests of having time to scrutinise more of the Bill. I feel that the Government have not given us straight answers on how a trust in deficit, facing those sorts of problems, which need substantial investment, is expected to deal with such a situation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Photo of Andrew Murrison Andrew Murrison Shadow Minister (Health)

We have had a fascinating debate on the clause. I must confess that when I was looking through the remainder of the Bill after the provisions concerning smoking and the earlier clauses in part 2, I thought that we would rattle through it without too much controversy. However, this clause has sparked a certain level of controversy and an interesting debate.

I think that, between us, my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), the Minister and I managed to thrash out what would happen in the event of the Healthcare Commission identifying a problem in respect of health care-associated infections, the difference between an improvement notice and a report, and their significance. I understand that in such a case an improvement notice would be served, and the sanction for not complying with that would be a report, which, in turn, if there was something called “significant failings”, would result in something that is defined in the 2003 Act as “special measures”.

I am still not clear what significant failings or special measures are, but I understand that they may have to do with some sort of sanction. I am not clear what the Minister’s understanding of that process is. I know that we are cantering along at this point in our consideration of the Bill, in the hope of reaching important bits later on, but it would be helpful if the Minister could give us her reflections on what she   understands by “significant failings” and “special measures” and on what might be appropriate sanctions in the event that a report has to be made by the Healthcare Commission to the Secretary of State or to the regulator.

Section 52 of the 2003 Act allows for the commission to conduct overarching reviews of particular aspects of health care, such as hospital-acquired infections. If it did so in respect of that area, what would it do if it found a problem? It would seem inappropriate for it to deliver an improvement notice under those circumstances. I assume that some sort of report would be issued to the Secretary of State. It would be useful to know what action the Minister would take under those circumstances. We have had the Act for two years and I imagine that those sorts of situations, or something approaching them, may have arisen, and the Minister may therefore have some precedent on which to base her plan of action.

I focus specifically on hospital-acquired infection, because I cannot think of any area more worthy of the commission’s attention, if only because of the popular concern that has been expressed on that particular area of health care and, in some sections, the doubt that it has cast on the excellence of our system among the more hysterical elements of the press and therefore in sectors of the population. We have to reflect that. I cannot think of a better topic for the commission to seize for an overarching review than health care-associated infections. In the event that it were to carry out such a review, which it might be advised to do, if it found a problem it would presumably deliver a report to the Secretary of State. What action the Minister would take on receipt of such a report is uncertain.

Subsection (3)(c) leaves open the time allowed for the discharge of improvement notices. Clearly the Minister feels that that is reasonable, or it would not be in the Bill, but I find it a challenging concept. Most improvement notices that I am aware of have some sort of time limit; they are not left open. It would be useful if the Minister could discuss the time frame that she is considering. Will it be 12 months? That would, of course, be the normal periodicity of a commission inspection. Would the deadline be tighter than that? I hope, in the context of health care-associated infections, we would consider challenging time frames in which to deliver the improvements that are the subject of such a notice.

Photo of Jane Kennedy Jane Kennedy Minister of State, Department of Health

The clause gives the Healthcare Commission the new tool of the improvement notice. A notice may be issued when, following a review or investigation, the commission is of the view that the body is failing to observe the code in any material respect and an improvement notice is the most appropriate way to remedy that.

I thought that it was clear from the explanatory notes that the improvement notice will set out particulars of the failure and give the body a period of time in which to address the situation. I will not prescribe what that period will be. The commission may also include practical advice on how the body can   remedy the failure. The improvement notice gives the body an opportunity to solve the problem itself, perhaps with the help of advice from the commission.

At the end of the period specified in the improvement notice the commission will conduct a review and send a report to the Secretary of State or monitor, as well as to the relevant strategic health authority if the body reviewed is a primary care trust or an NHS trust. That will ensure that any performance management role can be fulfilled in an appropriate manner.

If the commission is of the view that the NHS body has complied with the improvement notice and is fully observing the relevant provisions, that will be reported and the process will end there. If the commission is of the view that there are major outstanding issues that constitute a significant failing, that also will be reported to the Secretary of State or to the monitor, who could take the special measures that we have discussed. I have already described what the special measures could be and I will not offer any further prescription.

We will not define “significant failing” it in the Bill, but it will be one that seems significant enough to be drawn to the attention of the Secretary of State or monitor. It could include a failure to observe the code, but, taking all the relevant factors into account, it should be a failing that might, if it were not remedied, cause a risk to patient safety. In informing its opinion on whether the failings are significant the commission will have to take the overall situation into account, including the body’s failure to comply with the improvement notice and the reasons behind that.

If, following the review, there are outstanding issues that the commission does not consider to be significant failings, it will report that, together with its reasons. It will also report in all cases on any work it intends to do with the NHS body to rectify the remaining failings. As I have said before, and repeat now to try to be helpful, special measures in the event of a significant failing may include anything that the Secretary of State or monitor thinks necessary to put things right.

This discussion has been useful, and I hope that the Committee will give clause 15 a fair wind. It introduces a significant new measure that the Healthcare Commission can use. Perhaps it will interest the Committee to note that improvement notices are not new. Under section 81 of the 2003 Act, the Commission for Social Care Inspection already has powers to issue improvement notices for local authority failings, although those powers are different. The Healthcare Commission strongly welcomes the new power. I shall be interested to see how it is used, how the policy develops and whether we should consider using it as well.

Question put and agreed to.

Clause 15 ordered to stand part of the Bill.