Select Committee on Welsh Affairs Third Report



  1. Community Health Councils (CHCs) were first set up in 1974, intended to combine the functions of public scrutiny of the provision of local health services, lay inspection of health service premises and support for the patients complaints system. They were placed on a statutory basis in the 1977 National Health Service Act, which also provided for an association of CHCs in England and Wales (ACHCEW). The 20 Welsh CHCs have around 400 members, 50 whole time or part-time employees and cost around 1.8 million.[15] It is estimated that an additional 660,000 will be required as a result of the provisions of the draft Bill.[16]
  2. English and Welsh CHCs

  3. In July 2000 the Secretary of State for Health published the NHS plan.[17] Among other proposals, the plan proposed to abolish Community Health Councils (CHCs) and replace them with a new system for public scrutiny and inspection and patient advocacy.[18] The Health and Social Care Bill, giving effect to many of the proposals in the NHS plan, was introduced in December 2000. Clause 15 (1) allowed the NAW to decide whether to retain CHCs in Wales or adopt the new English structure, and clause 14 allowed the NAW to set up a Welsh Association of CHCs. In January 2001 the NAW Minister for Health and Social Services published Improving Health in Wales, a plan for the NHS with its partners. Among other marked contrasts with the English Plan, it proposed the retention of CHCs.
  4. The Health and Social Care Bill became law in May 2001, providing for local authority overview and scrutiny Committees to have a role in scrutiny of health services, and for the statutory provision of advocacy services. But the controversial provisions for Patients Forums and the abolition of CHCs were dropped in order to ensure passage of the Bill before the General Election.
  5. The National Health Service Reform and Care Professionals Bill introduced in the House of Commons in November 2001 provided at clause 20 for the abolition of CHCs in England, and of the ACHCEW. This left Welsh CHCs still established for the time being under section 20 of the 1977 Act. The Bill received Royal Assent on 25 June 2002, following substantial debate between the two Houses on the PCT Patients Forums which are in part to replace CHCs in England.
  6. Reform of CHCs in Wales

  7. In light of the then First Minster's concern at aspects of the role and performance of CHCs, Welsh CHCs were re-organised in April 2000 into an experimental structure of nine federations, ranging from the very loose to the tightly knit.[19] In August 2001 the NAW commissioned After Today Management (ATM) to undertake a review of the experimental CHC structure in Wales and to recommend future structures. The ATM Report was produced in January 2002, recommending that CHCs should be in "line relationship" with the Association of Welsh CHCs (AWCHC), and that there should be 3 federations with line management responsibility for CHC staff. It envisaged the Association as providing "a strong national voice on all Wales NHS strategic issues".[20]
  8. The decision to retain and reform CHCs in Wales has put them in the spotlight. There is now a weight of public and political expectation on them to live up to their billing and justify that decision. Ms Hutt emphasised the extent to which CHCs themselves recognised the need to develop and implement a reform agenda. She also recognised that success might well require additional resources for CHCs.[21] Our examination of the proposals on CHCs in the draft Bill have been based on a desire to ensure that no opportunity is missed for ensuring that the new-look CHCs in Wales fulfil their potential.
  9. Membership

  10. Paragraph 2(a) of the new Schedule 7A gives the NAW unfettered power to make provision about the membership of Councils. The equivalent Schedule in the 1977 Act provided for minimum proportions of members to be drawn from local authorities and voluntary organisations. The Explanatory Notes record the NAW's intentions to move to a more "open" membership, with half recruited through public advertisement.[22] There will no doubt be further discussions on, for example, the role of the voluntary sector, the participation of people from excluded groups and the extent to which steps can be taken, potentially through interviews, to make local authority and other nominees fully conscious of the commitment of time and effort involved in CHC membership[23]: but we see no reason to constrain the freedom to be given to the NAW to lay down the principles underlying the appointment of CHC members.
  11. Time off for public duties

  12. The AWCHC raised with us in its submission the issue of the rights of CHC members to take time off to attend meetings.[24] Paragraph 5 of the new Schedule 7A would allow for travel expenses and compensation for loss of remunerative time to be paid to CHC (and AWCHC) members, as is currently the case. But employers are not obliged to give their employees (unpaid) time off to attend CHC meetings. Section 50 of the 1996 Employment Rights Act provides that employers do have to give time off to employees to attend a number of broadly comparable meetings, such as health authorities and trusts. The AWCHC suggest that extending this provision to cover CHC membership might make it easier to attract younger CHC members, such as those in full-time employment, who would not otherwise be able, for example, to undertake daytime inspection visits.[25] Such a change could be made by secondary legislation, or in the framework of this Bill. Ms Hutt indicated that she would favour such a change. Mr Touhig suggested that any change should await evidence of a problem.[26] It may also be thought desirable to treat members of Patients Forums in a similar way to CHCs. We recommend that the Bill be amended to give CHC members the statutory right to time off work for public duties.
  13. Boundaries

  14. The new Clause 20A provides for the continuing existence of currently operating CHCs. It also allows for the NAW to abolish existing CHCs and create new ones, subject to two conditions: that every part of Wales is included in the district of a Council, and that there be no "enclaves". The Explanatory Notes state that the purpose of the powers given to the NAW to determine the number of CHCs in Wales and their boundaries is "to ensure that Community Health Councils fit with structures and relationships in the NHS in Wales, both now and in the future".[27]
  15. Subsection (3) of the new Clause obliges the NAW to ensure that every part of Wales is included in the district of a CHC, and that there should be no "enclave" of one CHC district within another one. But there is no explicit provision obliging the NAW to have any regard to the boundaries of those bodies to be overseen by CHCs, notably Local Health Boards and NHS trusts.
  16. A proposal that CHCs should have to be co-terminous with Local Health Boards was debated by the NAW Health and Social Services Committee on 29 May. The Minister rejected the proposed Amendment on the basis that CHCs "had already been through consideration, re-organisation and uncertainty and that the current number generally reflected local health board boundaries". From the evidence given to us by the AWCHC, and by Ms Hutt, it is apparent that their view is that the best way to deal with the complexity of the health map in Wales is to allow for flexibility in coming up with solutions designed primarily with the interests of patients in mind.[28] Patients are not of course primarily interested in LHB or Trusts or indeed national boundaries; as one witness put it:
  17. "Wherever you draw the boundary, you are going to have to cross it at some point."[29]

  18. Co-terminosity of boundaries between the newly-created Local Health Boards and the 22 local authorities was, however, one of the animating principles behind the restructuring of the NHS in Wales contained in the NHS Reform Bill. The explicit purpose of ensuring recognisable and geographically consistent boundaries for the Boards was to facilitate effective partnership working between all the main agencies involved in health and social services. Accountability at local level is enhanced by co-terminosity; it makes life simpler for individuals. It would in our view be helpful to give strong steer on the face of the Bill without unduly constraining the NAW. We recommend adding a third rider to the existing conditions in new Clause 20A, obliging the NAW to have due regard to the boundaries of Local Health Boards and other agencies subject to CHC scrutiny when deciding the districts of CHCs.
  19. Ambit and powers

  20. The new Schedule 7A to be inserted into the 1977 Act extends the existing remit of CHCs into primary care and nursing homes. This includes enhanced visit rights, under paragraph 3, and extended rights of CHCs to be consulted and to consider and report on relevant matters under paragraph 2. It is intended that these rights should include an obligation on trusts, as well as health authorities and LHBs, to respond to reports from CHCs.[30]
  21. Several of those who submitted evidence suggested that the ambit of CHCs might be extended, to provide for their being consulted as of right by other bodies providing health services, including local authorities and health promotion bodies.[31] As presently drawn up, NAW regulations covering inspections seem to cover a wider range of such bodies—including local authorities—than does the right to be consulted.
  22. The AWCHC conveyed understandable caution over CHCs taking on more than they would be able to handle, with their given level of staff resources and of member time. Broadening the CHC remit further—for example, into prison health care[32]—would require substantial training as well as other resources, notably member time. Both Ministers felt that the balance was about right and that the NAW did not need more powers to extend the remit of CHCs. Both however also agreed that this might need re-visiting.[33]
  23. We do not see the need for fresh primary legislation at Westminster should the NAW wish to extend the remit and inspection powers of CHCs. It would be quite a simple matter to amend Schedule 7A such that the NAW could by order extend the powers of CHCs to cover any other specified place where publicly-funded health care was provided. It would then be for the NAW to decide whether and, if so, how to use these powers. That would obviate the need to return to Westminster for fresh statutory authority. We recommend that the new Schedule 7A be amended so as to give the NAW power to extend by regulations the scope of CHC powers to inspect premises used to provide publicly-funded health care for the public in their district.
  24. Visits

  25. A prime purpose of the draft Bill is to give CHCs an extended remit to visit primary care and nursing homes: "to visit any premises where NHS care is provided including primary care and nursing home".[34] Consideration will be given to joint inspection of premises licenced under the Care Standards Act 2000[35]; it was apparent from evidence from the AWCHC that CHCs are well aware that such inspections cannot replace the regular professional inspection of such premises.[36] But an occasional "lay" visit, possibly following informal information that all is not as it should be, is indeed valuable. There is some uncertainty as to the exact extent of the enhanced rights of inspection.[37] In publishing the Explanatory Notes with the eventual Bill, we recommend a translation into plain English of the terms of paragraph (3) of Schedule 7A, and in particular of the arcane language in sub-paragraphs (g) and (h).
  26. The oral evidence from AWCHC laid some stress on the significance of enhanced rights for CHCs to make unscheduled site visits, to private care homes caring for NHS patients in particular, and also to the growing diversity of places where specialised care is provided, such as joint health and social services provision.[38] Paragraph 3(3) of the new Schedule 7A allows NAW Regulations to make provision as to access. In response to our query, Ministers recognised the value of such visits and expressed confidence that the issue of unannounced vists could and would be covered in the regulations.[39]  
  27. Information

  28. CHCs currently have the right to request information from the health bodies whose work they monitor. The new Schedule 7A does not repeat this provision.[40] The AWCHC and others drew attention to this lacuna, uncertain as to whether it was an oversight or an act of deliberate policy. It is plainly central to the ability of a CHC to fulfil its role that it should be able to get at the information it needs, whether from a Trust or a private care home.[41] That also applies to organisations outside Wales.
  29. We sought to discover from Ministers why the duty on health authorities and others to provide information had not been included in the draft Bill. They confirmed that it had been an oversight which would be rectified in the Bill as presented.[42] We are entitled to expect publication in the Bill of provisions on the obligations of providers of health services to supply information to CHCs, which should reflect the full range of CHC visit rights, and should include English providers.
  30. Complaints Advocacy

  31. Paragraph 2(g) of the new Schedule 7A allows (but does not oblige) the NAW to provide for CHCs to carry out the independent advocacy services which the NAW is required to provide. This provision, to some extent, formalises a function already carried out by many CHCs, with varying degrees of success. As the draft RIA puts it—
  32. "While it is arguable that CHCs currently have the power to undertake this function (Schedule 7, paragraph 1(a) and 2(h)) provision of an express power would put the matter beyond doubt."[43]

    It is suggested in the Explanatory Notes and draft RIA that this "advocacy role" carried out through an independent advocacy/complaints service would cost an estimated 480,000 per annum, costing each post at around 40,000. Some of this will replace existing NAW or Health Authority funding of pilot projects; there are currently eight patient support and advocacy pathfinder schemes, running for 12 months, including two complaints advocacy pathfinder schemes in Cardiff and Gwent CHCs. The 12 staff apparently envisaged—or their part-time equivalents—may be employed centrally, probably by the new AWCHC.

  33. The AWCHC gave a particular welcome to this provision, recording its delight that this task would be properly resourced in the future, and emphasising how CHCs used experience gained in advocacy and the complaints procedure in fulfilling their other roles.[44] In oral evidence, the Chief Officer of Clwyd CHC felt that the resource level referred to was probably a reasonable guess, but suggested that the issue needed further examination.[45]
  34. There was discussion in the NAW HSSC on 29 May on the possibility of other bodies providing advocacy services. In evidence to us, the AWCHC emphasised that specialist advocacy organisations, for example for mental health patients or children or particular conditions, were active and would indeed sometimes refer cases to CHCs; but that only CHCs offered the possibility of a universal service delivered to a consistent standard. CHCs also have the advantage of being able to see health services in the round and of being able to see across geographical and institutional boundaries.[46]
  35. Ideally, patients should be able to choose an advocacy service. In practice, they follow many routes and will doubtless continue to do so. The draft Bill is appropriately permissive. We sought to establish from Ministers the extent to which the Bill would allow for the NAW, or individual CHCs, to "sub-contract" advocacy to specialist voluntary bodies. Ms Hutt told us that it was the NAW's intention that CHCs should be tasked with advocacy services, but that it would be open to them to commission specialist services to carry out some tasks and to refer people to other organisations. Both the NAW and the Children's Commissioner for Wales are looking into advocacy services for children across the board.[47] We recommend examination of the terms of paragraph 2 (g) of Schedule 7A, to ensure that it allows for the NAW to provide for CHCs to commission other bodies to carry out independent advocacy services.
  36. Cross-border treatment

  37. Many Welsh patients receive services outside Wales: conversely, not all patients treated in Wales are residents of Wales. Now that only Wales will have the reformed CHC model, it is crucial that there should be no statutory obstacle to Welsh CHCs being able to carry out their functions of representation of the public outside Wales, or where appropriate of non-Welsh patients within Wales. There will plainly need to be some understanding with the Patients Forums being proposed in England. Ms Hutt told us that CHCs would have the same rights vis à vis Welsh patients treated in England as Patients Forums would have on treatment of English patients in Wales.[48] While we welcome that assurance, it may be worth providing for it in statute, for the avoidance of doubt. We recommend that the terms of the new Schedule 7A be reviewed so as to ensure that Welsh CHCs will not be constrained in the exercise of their functions as a result of Welsh patients receiving treatment outside Wales, and that there will be full reciprocal rights for the equivalent English bodies.
  38. AWCHC

  39. The draft Bill proposes to give the NAW power to establish a statutory Association of CHCs in Wales. The Explanatory Notes refer to "strengthening the role of the Association" and estimate that setting it up "as an overseeing and monitoring authority with increased responsibility and powers" would lead to an additional 10,000 rent/rates per annum and 70,000 in staffing costs. The ATM Report (see paragraph 21 above) sought to give the AWCHC a line management role over CHC federations.
  40. There remains some doubt as to exactly what the "increased responsibility and powers" of AWCHC may be. Ms Hutt referred to a strong national body with an enhanced strategic role in standard setting and performance management "in a supportive framework", not least so that the NAW could be confident that such publicly-funded bodies were performing to a consistently high standard.[49] Individual CHCs may not take enthusiastically to having their performance managed from the centre.[50] Their independence is acknowledged as one of their strengths.[51] At the same time, there is widespread recognition that their performance is capable of improvement and is inconsistent over Wales as a whole.
  41. Under the Bill, the AWCHC will "support and advise" Councils—following an Amendment moved in the NAW HSSC and accepted by the Minister—and also "assist" them. The AWCHC is likely to engage in training CHC members and staff. It may offer a central legal resource hitherto provided by ACHCEW. As mentioned above, it may in some way manage the independent advocacy service.
  42. One possible way for providing for performance management of such publicly-funded but independent and disparate bodies would be to provide for CHCs to make annual reports on the performance of their functions to AWCHC, measured against illustrative objectives, and for the AWCHC to draw on these reports in making an annual report to the NAW. We recommend a review of the terms of Schedule 7A to establish whether it provides sufficient authority for the NAW to provide for a system of reporting by CHCs to the AWCHC, and the AWCHC to the NAW.
  43. The future role of the AWCHC is of course pre-eminently a matter for the NAW to determine. Our only role should be to assure ourselves that the draft legislation under examination is appropriately drawn up. As the draft Bill stands, the NAW can, under paragraph 4(a)(ii) of new Schedule 7A, provide by regulations for AWCHC to "perform such other functions as may be prescribed". That is a very wide power. We recommend that the power which it is proposed to give to NAW to allocate any functions to AWCHC be constrained by providing that they should be related to its core statutory functions of advice, assistance and support to CHCs.
  44. CHC staff

  45. Similar uncertainty seems to surround the future status of CHC staff, currently inappropriately parked for "technical" reasons as employees of the North Wales Health Authority.[52] We understand that the views of CHC staff will be sought by the NAW Restructuring Group prior to any decision. The NAW is free to make arrangements on this as on other practical matters to do with CHCs, under the new Schedule 7A. No doubt the NAW will bear in mind the importance of reflecting the emphasis placed on the independence of CHCs in any arrangements made for the employment of their staff.


15   Q 72 Back

16   Explanatory Notes, para 41: Qq 121, 126 Back

17   Cm 4818 Back

18   Ibid, paras 10.17-10.35 Back

19   Q 114 Back

20   A copy of the ATM Report has been placed in the Library of the House. Back

21   Qq 113-114; also Q 126 Back

22   Explanatory Notes, para 21; also para 41 Back

23   Qq 42-43 Back

24   Ev 12 Back

25   Qq 45-47, 59  Back

26   Qq 142-44 Back

27   Explanatory Notes, para 17 Back

28   Qq 48-50: Q 127 Back

29   Q 48 Back

30   Report from NAW HSSC, Amendment 9 Back

31   eg Ev 11: Ev 23, para 2.10: Ev 52 Back

32   Qq 123, 125 Back

33   Qq 116-118 Back

34   Draft RIA, 6(v) Back

35   Ibid Back

36   Q 70 Back

37   eg Q 67 Back

38   Qq 59, 64 Back

39   Qq 130-1 Back

40   Qq 62-3: Ev 10, 26 Back

41   Qq 62-3 Back

42   Qq 128-9 Back

43   RIA, page 5 Back

44   Qq 51ff: Ev 11 Back

45   ibid Back

46   Qq 55-7; also Qq 91-2 Back

47   Qq 119ff Back

48   Q 124 Back

49   Qq 113, 140-1, 145 Back

50   eg Q 78 Back

51   eg Qq 87, 115, 145 Back

52   Q 87 & Ev 23, 2.11: Qq 138-9 Back

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