Health and Social Care Bill

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Mr. Hammond: I am sorry to waste the Committee's time, but if the Minister insists on placing on the record statements that he knows to be false, I am forced to correct him. My right hon. Friend the Member for Richmond (Mr. Hague) and my hon. Friend the Member for Woodspring (Dr. Fox) have repeatedly reasserted the Conservative party's commitment to a universal national health service free at the point of use. The Minister knows that well. It is not an effective use of the Committee's time to repeat those old slurs.

The Chairman: Order. It would be for the benefit of the Committee if we returned to debate the clause.

Mr. Hutton: I am happy to debate the clause.

A number of final issues were raised, particularly by the hon. Member for Sutton and Cheam. He spoke of coterminosity. I drew his attention to clause 25(3) that deals in part with one of his concerns.

The hon. Gentleman also raised the slightly different issue of how a care trust would provide social services functions to a group of patients on the list of a GP covered by the PCT, but outside the local authority area. I am sure that the hon. Gentleman understands that a care trust cannot provide social services functions that have not been delegated to it by a local authority. So if some of his constituents are on the list of a GP, but not within the local authority boundary, unless their local authority is also party to the care trust, the trust will not be in a position to deliver or assume responsibility for social services functions in respect of those people.

Dr. Brand: Would it be possible to have an ad hoc arrangement for a small group of clients of a local authority to have their services provided by a care trust even though the local authority is not a signed up member of the trust?

Mr. Hutton: I do not think that that will be possible. I will look at the issue in detail and advise the hon. Gentleman and the Committee.

We have had a long debate and I sense that Committee members are keen to move on to other parts of the Bill. Having heard the doubts that they have expressed about the clause, perhaps right hon. and hon. Members should ask themselves one fundamental question: is it right to pursue closer integration between health and social care services under the umbrella of a new organisation that will have a fair and balanced representation of local authority interests and will lead to better front-line services for those who use the NHS and social services? In the first instance, older people may well be the principle beneficiaries of care trusts, but other client groups can benefit too, particularly people who suffer from mental health problems. We have to ask ourselves whether we believe that it is right to develop a new framework within which health and social services are more closely integrated? I believe that we should answer yes.

Question put and agreed to.

Clause 45, as amended, ordered to stand part of the Bill.

Clause 46

Care Trusts where directedpartnership arrangements

Sir George Young: I beg to move amendment No.260, in

    page 40, line 9, leave out `any of'.

The Chairman: With this, we may take amendment No. 259, in

    page 40, line 18, at end insert—

    `( ) Regulations shall make provision—

    (a) prescribing the criteria by which an authority will be deemed to have failed in relation to its functions;

    (b) prescribing arrangements for consultation with the failing body and other relevant interests;

    (c) prescribing the circumstances and procedures to ensure that wherever appropriate the failing body has the opportunity to remedy any failure to properly exercise any of the relevant functions;

    (d) providing for a right of appeal to a court by the failing body as to the law or any finding of fact by the relevant authority against the authority's judgment that a local authority has failed in its provision of relevant services.'.

Sir George Young: We now move to clause 46 where, once again, the Minister will have to find some fresh vocabulary to explain why we are proceeding with care trusts. We have heard a great deal about voluntary arrangements, no compulsion and equal partners. That may well have been valid for clause 45, but it is not valid for clause 46, which provides that the Secretary of State can move in and impose a care trust. So we can now say goodbye to Mr. Hyde and hello to Dr. Jekyll because this is perceived as a punishment. It is difficult to see how a care trust can be both a reward for good behaviour and a punishment for bad behaviour. All we know about clause 46 and the circumstances in which it will be invoked is first, that the authorities involved did not want to enter into an arrangement voluntarily, and secondly, that something has gone wrong. Against that background of an unwillingness to work together and something going wrong, it seems heroic for the Secretary of State to move in and impose a new arrangement that is as yet untried, and about which we have had a full debate.

The import of amendment No. 260 is to narrow the circumstances in which the Secretary of State can intervene by deleting the words ``any of''. The current wording of the Bill suggests that if a local authority failed to exercise any of its health related social service functions adequately, the Secretary of State could move in and impose a care trust structure. Such a direction could result from a difficulty with a single aspect of an individual service. This is very draconian given that there is no requirement on the Secretary of State to give the authority the opportunity to remedy the problem. I hope that the Secretary of State will agree that the clause 46 solution should be applied only when everything else has failed and attempts have been made to solve the problem is in more conciliatory ways than by the imposition of a care trust. The Minister could begin to allay some of the concerns about clause 46 if he indicated the circumstances in which the functions had failed, whether the evidence that substantiated that view would be in the public domain, and whether it would have to be underpinned by independent professional opinion.

It might help inform the rest of our debate on clause 46 if, in his response to amendment No. 260, the Minister could say a little more about what might trigger such a draconian remedy with all the consequences for local democratic accountability that would flow from it.

Mr. Burstow: I have just a couple of questions to add to those of the right hon. Gentleman. The briefing note that has been circulated quite rightly says:

    ``The Secretary of State will need a good reason to recommend the formation of a care trust or a flexibility. What is important is that the intervention power is evenly balanced.''

The right hon. Gentleman's amendment would set out in the Bill a procedure whereby the Minister will have to operate in an open and transparent way in setting out the grounds on which a failure is identified and what that failure is. It would provide an important safeguard in the exercise of the Secretary of State's power. I hope that the Minister will accept the amendment or something similar and recognise that transferring a service into a care trust or a flexibility ought not to resemble the use of a sledgehammer to crack a nut. If a particular service is failing, there might be a case for some of the measures contained in clause 46, but no need to transfer all the other services that may well be part of that local authority's social services department. It would be useful to have some clarity about how this power will be used.

Perhaps the Minister could also add a little detail to the reference in paragraph 36 of the briefing note to the proposal to have an arbitrator who could be brought in to determine the appropriate level of delegated functions. Who would be the arbitrator? Who would appoint him or her? What mechanisms will be in place to ensure that the local authority and the health service are satisfied with that? How will that person will be appointed? Those are important questions in understanding how the power under clause 46 will be used. I hope that the Minister will be able to give us some reassurances that the underlying methodology and the practice will be open, transparent and able to be checked by all involved.

Mr. Hammond: As my right hon. Friend said, clause 46 raises quite different and important issues and I give the Committee notice that we shall be seeking to oppose it on stand part. In anticipation that the Government will resist that move, we have also tabled amendments to improve the clause and minimise its negative impact. At this stage I wish to associate myself with my right hon. Friend's amendments. They are a clear attempt to improve the transparency of the arrangement proposed under clause 46 and to reduce the arbitrariness of the Secretary of State's apparent power. Although we shall oppose the clause on stand part, I wish my right hon. Friend's amendments a fair wind as they are a valid attempt to improve what is a seriously flawed clause.

Mr. Hutton: It may be helpful to the Committee if we start our discussion about the amendment with a few observations about the structure and nature of the clause. As the right hon. Member for North-West Hampshire will be aware, subsections (1), (2) and (3) of clause 46 are about directed partnership arrangements and subsection (4) is about the step that the Secretary of State might want to take to establish a compulsory care trust. The problem that we are trying to address, which is the failure to deliver an adequate level of service, can be addressed in one of two ways: either by a directed partnership arrangement under the Health Act 1999 or, if the Secretary of State so wishes, by the establishment of a compulsory care trust.

The right hon. Gentleman will have had an opportunity to read the Government's briefing note in which we try to put some flesh on the bones of our thinking on the clause. We make very clear the circumstances in which we would expect to take steps to establish a compulsory care trust. We use the expression that it would be established ``as a last resort''. I hope that that is an important clarification for the right hon. Gentleman.

The hon. Member for Runnymede and Weybridge talked about the arbitrary nature of the powers in clause 46 and expressed his concern that they could be used arbitrarily by the Secretary of State. That is not the case. We have debated similar issues on many occasions and he will be aware that the Secretary of State is not allowed to act arbitrarily. There is a framework of public law and general principles of law that makes the method by which the Secretary of State is expected to reach such decisions and conclusions quite clear. There is no suggestion, either in the Bill or in what Ministers or the Government have said in the NHS plan, that those general principles—the need to act fairly on the basis of evidence, and so on—will in any way be supplanted by what is proposed in clause 46.

It is very important, for my hon. Friends at least, that the Committee should understand that this is not—to use the expression of the hon. Member for Sutton and Cheam—using a sledgehammer to crack a nut. I ask hon. and right hon. Members to ask themselves why would we want to do that? We clearly would not. We want to develop the policy about care trusts in a sensible and reasonable fashion.

The right hon. Member for North-West Hampshire asked me to change my vocabulary and I am trying to do so. Let me reassure him, too, that this is not a smoke and mirrors operation whereby we shall effectively be able to use clause 46 to establish care trusts compulsorily across the country. If the hon. Member for Runnymede and Weybridge had looked at the Bill carefully he would know the answer to that question. He might want for his own reasons to be seen to be opposing clause 46; but I can reassure him that the clause has nothing whatever to do with any suggestion that the Government's policy is to use the provision universally to require the establishment of care trusts. That could not be done because, notwithstanding the Opposition's amendments, a clear set of preconditions needs to be established before the Secretary of State can use those powers; and those preconditions would have to be complied with to the letter before he could act.

12.30 pm

The purpose of clause 46 is to ensure that the Secretary of State can intervene if service users are being failed, and if the integration of NHS and social service functions would improve the outcome for them. The Secretary of State needs to be able to act, and the words ``any of'' are important in allowing us to target that intervention to the benefit of the user.

The aim of social services is to provide a package of care to support older people and enable them to live independently within the community. If one element of that package—perhaps the home help service—fails to deliver the appropriate high-quality service, and if social services fail to monitor and review that provision, those people could be at risk and their ability to live at home compromised. If it becomes clear that it is not a one-off problem but a consistent failure of function, it would be the Government's duty to intervene. It would be sensible to use the intervention power in relation to that failing service. We need to be able to target the direction power, and we can add other functions if necessary.

The amendment would not limit the breadth of the new power. For local authorities, clause 46(3) limits intervention to a failure in social services. However, the words ``any of'' serve a crucial purpose. They make it clear that the Secretary of State can intervene when there is a failure of any health or social services function. Removing those words would cast doubt on that power, and might limit the intervention to cases of failure in all of a local authority's social services functions, or all of a primary care trust's health functions.

We are not using a sledgehammer to crack a nut. We shall be specific. We need to ensure that the package that is delegated is capable of being improved, and that it is not put at a disadvantage by being isolated from related services. That point is covered in subsection (2), which we seek to clarify with an amendment that I hope will have the support of the right hon. Member for North-West Hampshire.

Finally, I turn to the functions of the NHS and social services as set out in the partnership arrangements under the Health Act 1999. Amendment No. 259 attempts to build a detailed package around the need to intervene when services are failing. The right hon. Gentleman probably knows that we already have appropriate mechanisms to identify failure. They include performance management, monitoring, inspections and reviews. Those mechanisms will provide evidence to show when it is appropriate to use those powers. The usual process of enabling a body to improve its services through special measures will be allowed; but the direct use of the power may be required.

Clearly, if patient or client safety is an immediate problem, action may need to be taken more swiftly. It is not necessary to construct a new set of arrangements and begin the proliferation of new processes of review. The powers are intended to build on what already exists and not to replace other models of intervention. They are designed to give us the additional and valuable option to direct the use of the partnership arrangements. We shall therefore act if there is evidence of failure, using existing mechanisms to allow us to come to a decision, and we shall act in a reasonable manner. When intervening, we shall consider the best options to improve services for the benefit of all our constituents.

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