Clause 44

Part of Health and Social Care Bill – in a Public Bill Committee at 2:15 pm on 17th January 2008.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 2:15 pm, 17th January 2008

Amendment No. 260 seeks to add clause 44 into the commencement clause, clause 158. The effect of this will be to bring clause 44 into effect on the day the Bill is passed . The consequence is that the CQC will be able to carry out reports or investigations from its instigation. This, therefore, ties in neatly with the discussion we have just had on the amendments tabled by the hon. Member for Romsey and myself. I do not think that commencing this clause from the point of enactment will prevent the current regulators from continuing to carry out reports or investigations until such time as they are wound up, which the Minister may have had in mind as a counter-point.

The Minister has talked about a shadow body—sadly, Opposition Members know too much about the word “shadow” and are doing our best to get rid of it. I do not think that the Committee would be concerned if the shadow body carried out non-duplicative investigations and reports during the transition period. I believe that the concern for the Committee, current regulators, patients and the public is that there is a hiatus in those crucial reports. As I have noted, that hiatus could prevent any such reports from being carried out until the summer of 2010, which carries obvious political resonance.

It would seem from the Government’s response document to the consultation on the future regulation of health and adult social care in England, which explains the policy detail behind the Bill in relation to regulation in the new Care Quality Commission, that possibly they are seeking some form of delay.

The Minister has said in a previous answer that urgent inspections and reviews could be carried out. I worry that “urgent” could vary in the eyes of different people. I hope that the commission would have total autonomy to decide what is urgent, and not be prevailed on by a Government who might regard some things as not urgent.

The Government have said that:

“There will be a phased transition from the current systems to the new. The first priority will be the safety and quality of care in hospitals and other care providers. The Care Quality Commission’s general service reviews, that are not directly concerned with assurance of acceptable levels of safety and quality, will not start until it has fully implemented the new registration system. The Care Quality Commission will agree this start date for general service reviews with the Secretary of State once it is clear that the new system for checking safety and quality assurance is fully in place.”

They stated further that:

“Once the safety and quality assurance systems are fully up and running, the Care Quality Commission will be able to carry out general service reviews, studies and research on issues that arise from carrying out its functions. It will bring forward an annual programme of work for discussion with the Secretary of State; this process will also allow for the need to respond to exceptional circumstances.”

The continued power to make independent studies, reviews and reports without direct Secretary of State approval is welcome. However, it is strongly arguable that the new regulator’s power should commence at the inception of the body. That is from 1 April 2009, when it takes on its other functions.

Such reports are crucial in providing an evidence base for driving up social care and health standards across the piece, and to reporting fully on their state. It is arguable that the chair and board of the new commission would be best placed to decide what reports the new body should make, and when it should make them; taking account of Department of Health views, but not reliant on direct approval. After all, the Government seem to have set great store in allowing the new regulator to make its own decisions on its structure and activities in earlier stages of the Committee. The Minister has said:

“We believe it should be for the commission itself to establish the organisational structures and split of responsibilities that it determines it needs best to carry out those functions and deliver its aims”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 135.]

To do otherwise would seem to undermine the independence of the new regulator. It is only by exercising its independence that such a regulator can be of service to the public and support improvement in the sectors.

Indeed, within its first year of operation the Commission for Social Care Inspection carried out three major reports while dealing with its own establishment and reviewing the way it carried out its nascent regulatory functions. It is also of note that in the current legislation CSCI can carry out independent reviews and studies as a statutory function. The Bill appears to water that down. The activities described are the same, but the nature of the power is different. Section 80 of the Health and Social Care (Community Health and Standards Act) 2003 confers that activity as a function rather than a permissive power. Powers are permissive; functions are duties. In a tight financial climate, there may not be enough resources to fund permissive powers. Therefore, that is a diminution of power, by reducing it to a permissive power rather than a duty as a function.

I have already quoted Dame Denise Platt. She said that:

“The principles of public service inspection from the Cabinet Office talk about the need for inspection to generate data and intelligence that enable departments more quickly to calibrate the progress of reform in their sector and to make appropriate adjustment. We think that special studies do exactly that, so we cannot see why that function is watered down.”

She continued—rather vital evidence:

“In our experience, specific reviews are where we bring together a range of intelligence and we ask the next question of the policy or the circumstances. For example, we will publish a report this month on what happens to people who do not meet eligibility criteria in social services. Before Christmas, we published a report on risk and restraint in care homes, and the dilemmas in care that raised for care staff and where the lines should be drawn.”

She carried on:

“It seems to me that the new commission should have the powers and the duties to identify those issues and comment on them as emerging issues, and to identify them themselves rather than in advance seek the agreement of the Secretary of State and go through a whole process that might delay looking at an issue that needs immediate attention.”

I do not think that the Committee will struggle to understand that if there is a delay because of the negotiation process—particularly given that I have made the political point about how this could carry  through to the summer of 2010—we would be in the arena of people worrying about political and electoral advantage in advance of the inevitable general election, which has to take place before that date. We can avoid that by following the objective and important advice of Dame Denise Platt.

Her other important point is the need to get on with emerging issues. The more experience we all have in the field of health and social care, as in the rest of life, the more we realise that we do not often get the clarity of certainty until far too late. We get clues. If the expert regulators, above all, get clues, then they need to be getting on with things fast, so that the emerging issues can be identified and sufficient evidence quickly established. That means that, on advice, Governments have the best chance to make the best decisions—if there is anything for Government to do in these matters, rather than simply the enforcement powers granted to a regulator.

Here is an important issue. The suggested amendment is for clarifying the attitude of the Government, so that the new regulator can exercise that power from the start. To coin a phrase, it would be a sunrise clause—rather than a sunset clause—which might also commend itself into parliamentary language. To do otherwise would mean that the new regulator would not be able to carry out any such reports or investigations until the summer of 2010 unless—picking up on the Minister’s words from the previous answer—they were felt to be urgent, having been approved by Government as urgent and necessary during that period. Committee members, I am sure, are fully aware of the value of such reports. In the last six months alone we have had, “A Fair Contract with Older People?”, “A Time to Care?” which looked at domiciliary care and the “Safe as Houses” report into private investment in the social-care market. They provide a strong, independent critique and encouragement of the policies that we are all seeking to bring forward as part of the Bill.

Depending on the Minister’s response, I would like to reserve the right to test the Committee on the amendment. I think that I am right to say that I might want to vote on amendment No. 260, when we reach clause 158. I hope that I have the procedure correct. I would like to make that point clear, which leaves us depending on how the Minister reacts. However, I hope that it is felt across the Committee that this is a point that seriously needs to be borne in mind. We have an opportunity here to make sure that nothing falls through the gaps and that we have done our duty.