Clause 26

Health and Social Care Bill – in a Public Bill Committee at 9:45 am on 17th January 2008.

Alert me about debates like this

Urgent procedure for cancellation

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

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 10:00 am, 17th January 2008

There is some discussion to be had on this clause, because it concerns urgent cancellation, which is done on application to a justice of the peace. We will have a longer discussion on the role of justices of the peace when we debate part 3 of the Bill, and my hon. Friend the Member for Guildford will lead for us on that.

I assume that the clause is the legislative framework for the much trailed 24-hour closure of hospitals. The Committee should know that by agreeing to the clause it will be supporting that power. The Department briefed on this on 23 October, before the Bill was published. On 24 October, there was a written ministerial statement, which The Times and The Daily Telegraph both reported. They reported that the Secretary of State was angry that the Healthcare Commission did not step in to try to protect patients or alert the Government to the scale of the problem when it first made its report.

A draft of the Healthcare Commission report into the problems at Maidstone and Tunbridge Wells arrived at the Department on 3 May 2007, but no action was taken by the Department at that point. This is a useful opportunity for the Minister to explain why. The Times further reported:

“The Health Secretary is also expected to reveal in a Commons statement that the new inspectorate will have powers to sack doctors and trust chief executives immediately”.

The Secretary of State already has the power to suspend board members, but the previous Secretary of State did not use that power when she received the Healthcare Commission report in May. Furthermore, there was no mention of the Care Quality Commission having that power in the ministerial statement of 24 October, by which time we had a new Secretary of State. I cannot see a reference to the power in the Bill. No doubt the Minister will point it out to us if I have missed it.

The Committee should also note Anna Walker’s response to the hon. Member for Birmingham, Northfield when she gave evidence to the Committee. She said that the new powers to close wards “are not necessary” and that

“we do not overwhelmingly need them.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 23, Q 32.]

However, she also said that

“we will use them if they are there.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 23, Q 31.]

I am sure that the hon. Gentleman will remember that exchange, and I hope that he will tell the Committee what insight he gained from that line of questioning, which we thought interesting.

In the same sitting, Ian Kennedy said that

“anybody contemplating that you close a major accident and emergency not in a world that I recognise.”—[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 24, Q 33.]

In his statement to the press on the day of the Committee hearing, he said that

“it would be cavalier to close an element of a major public service without offering patients any alternative.”

Having highlighted those issues, I hope that the Minister will confirm to the Committee whether that is the current arrangement and whether it provides sufficient checks and balances.

With half an eye to the next clause, will the Minister also tell us how the Human Rights Act 1998 would be applied in circumstances in which urgent cancellation might breach aspects of that Act? For example, the cancellation of a nursing care home’s registration might lead to the quick eviction of its residents. One  can imagine such a scenario, and it is our job to work out how the rights of patients in such circumstances would interleave with the protection that must be afforded if something has gone sufficiently wrong that a notice withdrawing registration has been received. I appreciate that this point may be a touch legalistic, as I am not sure that if I had a relative in a home that had had its registration removed, I would be very keen for that relative to stay there a minute longer, because I expect that there would be good reason for such a move. However, if the relative were very frail, the speed of eviction might have to be balanced, so the issue of rights would be relevant.

We need to ensure that people’s choices in those circumstances are not limited by the absence of alternatives. There may be practical considerations for people who live in remote areas where there is only one care home for many miles, but equally often people do not have caring relatives or friends who can look out for them when such difficult urgent decisions need to be made.

I hope that the Minister will be able to deal with the question of how the power will help the CQC to deal with superbugs in hospitals, given the remarks made on behalf of the Healthcare Commission in oral evidence. Is the power to be granted on the basis of exigency rather than need? I hope that the Government are not trying to sound tough in the light of recent events. We saw that the Department had briefed The Times to the effect that the CQC will have the power to sack doctors and trust chief executives immediately; but at the moment we struggle to see where that power is set out.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

Does my hon. Friend also consider that there may be an issue relating to appeals? If an order for the closure of, for example, the type of residential facility that he has described is made with immediate effect, so that residents are moved out almost immediately, and an appeal is won 28 days later, there may be a difficulty for those who own and run the facility.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am grateful to my hon. Friend—I had not thought about that. It is an important point, because the purpose of the 28-day appeal period is to give people an opportunity for fairness and justice; yet such a situation would not arise unless matters were judged to be so serious that most people would say that it was time to get out. It is a matter not only of fairness and justice for the providers or owners of the care setting, but of the rights of, and fairness and justice for, the patients. They are often so frail and vulnerable that the prospect of a move from surroundings that have become familiar—this may be particularly important for people with dementia, who hold on to the physical aspects of their surroundings more than other things—can be sufficiently dislocating to cause their condition to decline. We would all want such effects to be avoided. My hon. Friend’s point is extremely interesting and important, and I expect that the Minister will respond to it.

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health

I imagine that we shall shortly come to a more general discussion of the powers, so I shall not dwell on that subject now but speak instead directly to the clause, which gives the Care Quality Commission  power to apply to a justice of the peace for an order urgently to cancel the registration of a service provider or manager. It sets out the tests that must be met, and requires the commission to notify a number of bodies when it applies for such an order. We all recognise that there may be exceptional occasions when such action may be necessary. The condition for taking such a drastic course of action would be that there was serious risk to a person’s life, health or well-being.

It is important to deal with concerns about notifying the relevant bodies quickly when such an application is made, because, as the hon. Member for Rugby and Kenilworth has pointed out, arrangements will need to be made to look after any patients or clients who may be affected. That is why the provisions require the commission to notify, where appropriate, the relevant local authority, primary care trust or strategic health authority monitor. I do not want to engage in a debate about the powers now, because we shall come on to that in a moment, but I remind Members of the evidence given to the Committee by Dame Denise Platt. She recognised, as we all do, that some of the new powers in the Bill may not, as the hon. Member for Eddisbury said, be appropriate for acute or accident and emergency wards. However, CSCI welcomes the new and broader range of powers because at present it is faced with the stark choice of nothing or closure.

These are permissive powers, but that does not mean that the Care Quality Commission will use them. As Anna Walker indicated, it may not need to use them, although they may be useful as a deterrent and she would not want not to have them. Dame Denise appealed to us not to change the powers or weaken them in any way, because they would be useful in the social care context, and that was what was important to her.

Question put and agreed to.

Clause 26 ordered to stand part of the Bill.

Clause 27 ordered to stand part of the Bill.