Clause 42

Health and Social Care Bill – in a Public Bill Committee at 1:30 pm on 17th January 2008.

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Periodic reviews

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

I beg to move amendment No. 30, in clause 42, page 20, line 27, after first ‘of’ insert ‘the quality of’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment No. 31, in clause 42, page 20, line 32, after first ‘of’ insert ‘the quality of’.

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

The amendments seek once again to limit the scope of the commission to reviews of quality and value for money, rather than economic viability. The debate will be akin to some degree to that on amendment No. 6 to clause 2, at column 175 of the Official Report. I am sure that members of the Committee will recall that I talked about economic  regulation covering all aspects of the operation of the social market. The economic regulator would need to possess substantial powers to intervene in order to determine service reconfiguration and the management of NHS trusts, and to determine how service requirements must be met.

However, a quality inspectorate needs to report openly and frankly on the quality of the services provided. There could be tension between the two activities. We hope not, but I dare say that we can all envisage circumstances where the need to drive efficiency from an economic point of view might conflict with the need to warn about the potential of declining standards of care from a quality perspective.

When we discussed the matter before, I must say in fairness to myself that the Minister misrepresented the position. I am putting forward the desire—a party position—not to extend massively the powers of Monitor, which suggests a net increase in regulation, but to transfer the economic regulation role of the CQC to Monitor. As the Minister knows, we were unable to take oral evidence from Monitor. We had hoped to do so, but that was not possible due to compromises made on the programming.

In the foundation trust sector, which is relevant to the work of Monitor, quality and economic regulation are already divided along those lines and to those bodies. Our position aligns with our desire to see all trusts achieve foundation status. I should be interested to hear the Minister’s explanation of his contention that our establishment of an NHS board poses a potential massive conflict of interest. That would happen only if politicians continue to want to run the NHS, rather than to provide the means by which it can be run with clinical priorities as the first order of concern. I hope that the Minister has had time to reflect on matters and sees the merit in our proposals.

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

The hon. Gentleman said that he wanted to retain the role for the review of value-for-money elements, but that would be excluded under the amendment. It would restrict the scope of Care Quality Commission reviews simply to the quality of provision. I understand his desire to extend the remit of Monitor, but I would not be in favour of restricting the reviews of the commission in that way, and nor would the commission, I believe, given what we heard during our evidence session.

Of course, the reviews will look at the quality of provision. Subsection (4) sets out that assessments will be conducted by

“reference to such indicators of quality” set out by the Secretary of State, or delegated to the commission to determine. The reviews will need to look at more than the quality of services. For example, when assessing local services we want greater emphasis to be put on how well they are working together to achieve overall outcomes, and to see whether they reflect the needs of their local populations. We will talk later about commissioning, but the reviews may consider the commissioning record of a primary care trust and how well it is meeting the needs of local people. Those issues seem to go beyond the strict definition of quality in the amendment, which is the main reason why we wish to resist it. We will discuss the role of Monitor at greater  length later, but I point out to the hon. Gentleman that Monitor covers only foundation trusts, not all registered providers, and this is not just about NHS care.

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

We will not press the amendment to a vote because I can see that we will not win on this one, and I will withdraw it on that basis. However, I hope that the Minister will take the following point seriously. If one genuinely hopes, as I believe his Department does, that all trusts can move toward foundation trust status—that is our stated aim, and by the very nature of what is intended, that must be the aspiration—it would make more sense if the regime that covers FTs, in the light of how Monitor divides up its responsibilities, is consistent with the provision that we are considering. That said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I beg to move amendment No. 195, in clause 42, page 20, line 28, at end insert—

‘(aa) conduct reviews of the making of arrangements for the provision of healthcare by the Trust’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss the following amendments:

No. 261, in clause 42 , page 20, line 28, at end insert—

‘(aa) conduct reviews of arrangements made under paragraph (a) above’.

No. 263, in clause 44 , page 21, line 39, at end insert—

‘(d) the making of arrangements by a Primary Care Trust for the provision of health care.’.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

The amendment is a simple one and was tabled after listening to the oral evidence. I was struck by the powerful arguments made by Anna Walker when she was asked what the powers of the new Care Quality Commission should be. She expressed concern that the Bill, as drafted, focuses too much on the regulation of providers, whereas the provision of health care is about what care is purchased or commissioned on behalf of the user, as well as the provider. I do not usually read out large quotes, but it is worth reminding the Committee of what she went on to say:

“that is of course also true for social care. We have concerns about two particular areas. The Bill, as drafted, gives the new regulator the power to carry out wider reviews. That is welcome, because it is under that power that we have looked at learning disabilities, mental health and dignity in care for older people in hospital, so it is a very important power to us. The difficulty is that it is limited to providers only. What we find in health care—I must leave it to others to talk about social care—is that you can say to a provider, ‘Look, that service simply isn’t good enough’, to which their answer can often be, ‘But we are not being paid to provide any more than that.’

In order to get the issue right, on behalf of the user and the patient, you have to look at a mixture of commissioning and provision; what the primary care trusts are doing, as well as what the provider is doing. We would like to see that power for the wider review cover commissioning as well as provision.”—[Official Report, health and social care Public Bill Committee, 8 January 2008; c. 17, Q25.]

That is a laudable principle.

I do not want to pre-empt the Minister’s comments, but I fully accept that practice-based commissioning is fairly new. It does not work terribly well in some parts of the country and I am told that is being replaced by something called world-class commissioning, for which we wait with bated breath. There are problems with some of the probity of commissioning. Sometimes, the commissioners are in effect consulting GPs who commission services from themselves—there are not enough Chinese walls in place.

The amendment tries to pull back the focus, so that it is not simply some cosy little group deciding what services are commissioned from where. I am not saying that all groups are like that, but I dare say that the odd one is. The amendment would provide an extra provision, so that the commission could come in and say, “You are doing it wrong. You are not providing service of the best quality and the problem has arisen because of the commissioning”.

The amendment may not be perfectly drafted, but the general principle is important. I hope that the Minister can reassure me that he is at least rethinking the matter.

Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 1:45 pm, 17th January 2008

We have tabled amendments Nos. 261 and 263. The hon. Lady was honest enough to say that perhaps her amendment is not perfect in all respects. Amendment No. 261 provides an alternative opportunity, as it seems to achieve much the same thing. Amendment No. 263 would enable special reviews of commissioning practice, for example.

What is important here is the point that Anna Walker made to the hon. Member for Leeds, North-West during the oral evidence: in order to get the issue right, the mixture of commissioning and provision has to be looked at, as does what the PCTs and the providers are doing. That power for the wider review should cover commissioning as well as provision. The Committee might also want to read “local authorities” with “PCTs” and even go as far as including “individual private purchasers of social care”. If we end up finding that, unusually, the Minister is not able to accept our amendments perhaps he would like to add that to his “Reflect” box for what I hope will be a monumental improvement by the time we reach Report.

I will give an example. The Healthcare Commission’s annual health check for 2008-09 will assess PCTs on the quality of their commissioning. We need to ask seriously whether that will continue under the new CQC. I also alert the Committee to a report on 2 August last year in the Financial Times, which stated that

“a battle had broken out” between David Nicholson, the NHS chief executive, who sees the PCTs as part of his management empire, and Anna Walker, who said that there must be

“a mechanism for holding people publicly accountable” for the quality of purchasing. The report went as far as to say that one Department of Health official shared that view while others opposed it. I shall not endeavour  to catch the eye of any of the cast of officials that the Minister has with him today. Under Anna Walker’s system, it would remain the job of the strategic health authorities to performance manage the primary care trusts, but there is a need for an independent assessment of their performance.

The NHS Confederation has also backed the idea of independent assessment, saying that it was needed

“for reasons of public accountability”.

The point is a strong one, it commends itself and I hope that the Minister feels persuaded.

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

I am grateful for the opportunity to discuss this issue, not least to put on the record that we are completely committed. The hon. Member for Romsey asked me to rethink, but I do not think I need to—I am in the same place as she is and I agreed with everything that she said. We are completely committed to the independent performance assessment of PCT commissioning and we believe that that should be a role for the Care Quality Commission. That is provided for in the Bill, and I will explain why in a minute. It is entirely right for that to be the case given that 80 per cent. of taxpayers’ money is now spent on the health service through primary care trusts, which are the main commissioners.

There was widespread support for that during our consultation on the proposals in the Bill. That is why clause 42 requires the Care Quality Commission to review PCT commissioning, as well as the health care that they provide. Subsection (1) requires the commission to conduct overall reviews of the health provided in each PCT area, whether provided by the PCT itself or by other people under arrangements made by the PCT. Those reviews will assess how well PCTs are meeting the needs of their local populations. PCT provision will also be reviewed in its own right under subsection (2).

Clause 44 covers commissioning by local authorities and primary care trusts, and how that impacts on the services people receive and the health of the local population. The commission is able to investigate specific incidents, or series of incidents that put the health, safety or welfare of people at risk. That would include looking into the decisions that have led to that situation arising, such as the commissioning.

Given that reassurance, and the positive discussions that I have had with Anna Walker about the issue over many months, I hope that the hon. Lady will be reassured enough to withdraw her amendment.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I am not entirely convinced that Anna Walker was reassured, judging by her comments during the evidence-taking session. I fully accept that clause 44 allows for special reviews and investigations and I can see that that is covered. However, it would be useful to amend the wording to clarify that that is a key part of the role. At this moment it is best to reflect on the Minister’s comments and perhaps go back to the Healthcare Commission to see whether it is as reassured as he claims. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 135, in clause 42, page 20, line 30, at end insert—

‘(d) in conducting reviews under subsection 1(a) the Commission shall review and assess annually the Trust’s plan for improving health, as prepared under section 24 of the National Health Service Act 2006 (c. 41).’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment

No. 136, in clause 42, page 20, line 40, at end insert—

‘(d) in conducting reviews under subsection 3(a) the Commission shall review and assess annually the plan for improving health insofar as it impacts upon the authority, in accordance with section 24(3) of the National Health Service Act 2006.’.

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

Let us see whether we can get this amendment away from the “Reflect” box. The amendments would give the CQC the power to inspect PCTs’ plans for improving health, with the intended consequence that they would take such plans seriously. It is not a draconian or over-prescriptive measure, but I suspect that the power to inspect is in itself a potentially powerful tool. PCTs already have powers to publish an annual health improvement and modernisation plan—HIMP. Those were originally under section 28 of the Health Act 1999 and are now under section 24 of the National Health Service Act 2006, which sets the framework for the local commissioning and contracting of services.

I have already outlined what we have argued are the significant failings of the Government on public health. The force of these plans, therefore, will be to seek to combat widening health inequalities and poor public health at a local level. I will not repeat the arguments that we had in relation to other clauses, but that is what lies behind our concern and why this would be a pragmatic, cost-efficient measure to include. I hope that the Government find that it commends itself, because we would require all PCTs to produce such plans and require each PCT’s coterminous local authority to be consulted on their development. Of course, overlapping authorities would therefore have to be on a multi-consultation process.

In those cases where agreement between local authorities and PCTs cannot be reached, disputes would be resolved in the first instance by the relevant strategic health authority, with a right of appeal to the NHS board. If the HIMP involves a major service reconfiguration, the independent reconfiguration panel would be consulted as necessary. I want to ensure that the Minister realises that this is a genuinely thought-through, sensible proposal that is not particularly sizeable but is significant. I genuinely hope that he will find himself persuaded by the arguments.

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

As we have already emphasised, the commission’s reviews will cover the whole range of functions carried out by bodies in relation to health care and adult social care, including public health and community services. Where we differ from the hon. Gentleman is that while we believe that the local plans will look at what PCTs and local authorities plan to do, the role of the commission will be to focus on the outcomes for the people who use those services. He referred, rightly, to the differentiation between the role  of performance management by the strategic health authorities, and regulating. I suggest that the amendment, which would require the commission to review the plans, strays a little further on to the performance management role than we think is a good idea. I am afraid to disappoint him, but I will resist the amendment.

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

I am not sure that I can take much more rejection. I am tempted to dwell on the point, which is probably my best lever. If I cannot persuade the Minister, I cannot. He spoke about reviewing and having too much of a hands-on approach, but this power was drafted as “inspect”. I accept that if someone inspects they are likely to have a view as to whether that amounts to a review, but I do not want to split hairs on that. However, the power of inspection was more to have something that would urge people to ensure that they got it done in a timely fashion.

I was initially sceptical when the Government suggested—it is a direct parallel and involved an area like mine, which I suspect is not dissimilar to parts of the Minister’s constituency—that it would be appropriate for parishes to bring in parish plans. I saw that as yet another piece of written bureaucracy that is going to tie people up. Instead, it has served to bring focus and energy into local communities to decide what they want collectively to make their priorities. In many cases—not all—it has served to be a good, rather than a burden. I wanted to inform what is going on here through that process. The fact that one has the right to come in and inspect, whether or not an inspection has been made, encourages that to happen without being over-prescriptive.

As I say, I do not think that I have been able to persuade the Minister, but I hope that, as a final flourish, he might put that also into the “Reflect” box. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I beg to move amendment No. 137, in clause 42, page 21, line 1, leave out subsections (4) to (8) and insert—

‘( ) The Secretary of State shall not create any indicators of quality additional to those in the National Indicator Set.’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss the following amendments:

No. 93, in clause 42, page 21, line 11, at end insert—

‘(7A) In setting out the indicators under subsection (4) for assessing each English local authority, the Secretary of State shall—

(a) have regard to the National Indicator set, and

(b) in such cases as the indicators impose a regulatory burden on local authorities beyond the National Indicator Set, lay draft regulations before Parliament.’.

No. 32, in clause 42, page 21, line 16, at end insert—

‘(c) all relevant statements submitted to the Secretary of State.’.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

This is a probing amendment. I think that the Minister is going to disagree with me, but significant concerns have been expressed by some of the existing regulators, who see increased powers for the Secretary of State, and less flexibility for the new commission.

The amendment attempts to take out some of the indicators that the Secretary of State may approve, or that the commission may submit to the Secretary of State for approval. By sticking to the national indicator set, that would also potentially give the new commission some protection from a future Secretary of State for Health displaying megalomaniac tendencies, and wanting to impose something on the commission.

As I say, this is a probing amendment, and it seeks some clarification on what autonomy the commission has to review something that it deems important, and how much interference it could potentially be subjected to under the clause as currently drafted.

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

I note that the amendment seeks to deal with megalomaniac tendencies, which struck me, coming from the Liberal Democrats, as a little “Dream on”. That was meant to be friendly and light-hearted.

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

Not half as wounded as I am, given the rejection that I have been receiving from the other party.

Amendments Nos. 93 and 32 are slightly more toned-down versions of the Liberal Democrat amendment. It appears that the Local Government Association has sought to brief both the official Opposition and the Liberal Democrats. We want to ensure that the amendments, which have arisen from the LGA, deal with the regulatory burden on local authorities and whether that would be disproportionate, given the various angles from which they are regulated. As an example of the stringent approach that we have taken to our amendments, we returned some of those that were proposed because we felt that they were constraining the CQC in a blanket way, which could be potentially obtuse. However, on the amendments that we have been urged to consider tabling through the various representations made to us, we have said that the CQC should have a statutory responsibility to have regard to the national indicator set when setting its regulations, and that Parliament should have the power to monitor the regulations if they become over-burdensome.

My record in the House as being completely, utterly and unashamedly opposed to over-burdensome regulation—not least when I had a different portfolio in the shadow team—will commend the fact that the amendment has been not only put forward with some genuine concern and vigour, but is supported by the three pamphlets that I published on the subject. Not many people can wear such a large anorak in getting that excited about regulations. I urge the Minister to consider the amendment as a sensible way to deal with the potential for over-burdensome regulations.

Amendment No. 32 would ensure that the versions of the method statement drafted under subsection (6)(a) are available to the public in order to deliver clarity when and if the Secretary of State, who must approve the statement under subsection (6)(b), alters the method of statement, and that the public can be  made aware of those alterations. As the Minister is so far unwilling to remove the somewhat unfettered power that a given Secretary of State may have over the CQC, we think it important to establish some clear accountability regarding the influence wielded by the Secretary of State.

I hope that the Minister can give us some guarantees about the CQC’s not imposing regulatory burdens above and beyond the national indicator set. What discussions has he had with the Secretary of State for Communities and Local Government on that issue, and if he has not discussed it, when will he do so? Will the draft method statements be available to the public, and why does the CQC have to report to the Minister in such a way?

Photo of Ben Bradshaw Ben Bradshaw Minister of State (Regional Affairs) (South West), The Minister of State, Department of Health 2:00 pm, 17th January 2008

I think that the hon. Member for Romsey said that amendment No. 32 proposes that the commission should publish the drafts of its methodology before submitting them to the Secretary of State, while not seeking to change the requirement of the Secretary of State to approve that methodology. I can only assume that she is trying to ensure that a future Secretary of State does not have undue influence over the final version of that methodology. At least the hon. Lady accepts that the Secretary of State has a valid interest in ensuring that the methodology represents a good measure of overall performance, and a consistency of approach across the whole regulatory framework.

I am not aware of any difficulties with the system as it has been operating until now, and as far as I am aware there have been no suggestions by the current commissioner that the existing system has been a barrier to independence. Instead, it has been found quite useful that decisions on the methodology between Secretary of State and commissioners have been agreed through thorough discussion and agreement. I do not think that the amendment is necessary.

Amendment No. 93 would require the Secretary of State to have regard to the national indicator set when devising or approving indicators of quality to be used to assess the performance of local authorities. It would also require draft regulations to be laid before Parliament if further indicators were introduced in addition to those in the national indicator set. The suggestion is that that would place an additional regulatory burden on local authorities, and I assume that the intention is that the draft regulations would contain the indicators that pose an additional burden to allow Parliament the opportunity to consider them.

Amendment No. 137 goes even further and would remove subsections (4) to (8) of clause 42. In their place, it proposes that the Secretary of State should not set any indicators of quality that are outside the national indicator set. The problem is that that would leave the Secretary of State with no power to devise indicators to be used by NHS bodies or local authorities, or to delegate that function to the Care Quality Commission. Nor would the amended clause say what indicators the commission should use in conducting reviews of NHS bodies or local authorities.

The amendment would also remove the requirement for the commission to prepare the method that it proposes to use to assess and evaluate a body’s performance. It  would therefore remove the requirement for the commission to publish the indicators and the methodology. That would mean that none of the bodies being reviewed under the clause would have any information on what the commission would be assessing them against. We do not think that that would be a very sensible outcome.

I assure the hon. Members for Romsey and for Eddisbury that we are committed to ensuring that there is a joined-up approach in assessing local authorities. Where the indicators used in reviews under the clause relate to local authorities working alone or in partnership with PCTs, other NHS bodies or other local service providers, they will form part of the single set of national indicators to be used in the new comprehensive area assessments of local authorities. In that spirit, I hope that the hon. Lady feels able to withdraw the amendment.

Photo of Sandra Gidley Sandra Gidley Shadow Minister, Health

I thank the Minister for his reply. I am reassured to a certain extent that these proposals replicate existing powers and that no concerns have been raised to date. In the light of that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.