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Second Standing Committee
on Delegated Legislation
Monday 27 October 2003
[Mr. Joe Benton in the Chair]
Commission for Health Improvement
(Functions) Regulations 2003
Mrs. Patsy Calton (Cheadle): I beg to move,
That the Committee has considered the Commission for Health Improvement (Functions) Regulations 2003 (S.I., 2003, No. 1587).
Welcome to the Chair, Mr. Benton. With the Committee's forbearance, I shall explain some of the Liberal Democrat's concerns about the statutory instrument and ask the Minister for reassurance on specific aspects of it.
The Liberal Democrats and others have expressed concern about the independence of inspection bodies. The regulations, taken with other legislation before Parliament, make it fairly clear that inspection bodies are to be the creature of the Secretary of State, doing his bidding while being closely supervised by him. That is our first concern.
I have some questions for the Minister, the first of which is: does the Commission for Health Improvement have the power to investigate commissioning? If so, where in the statutory instrument is that made clear? Providers are mentioned regularly throughout the regulations, but the commissioning function is not. Will the Minister tell us how commissioning will be investigated?
We are concerned that local authorities should play a full part, in particular that local authority scrutiny committees and patients forums should be able to request additions to the work programme. They can request advice and information, but apparently they cannot request additions to the work programme. I seek the Minister's assurance that notice will be taken of those important bodies.
In regulation 14(2)(a) to (d), which deals with investigation reports, local authorities are not mentioned as bodies to whom investigation reports will be sent. Will the Secretary of State ensure that investigation reports are made available to local authority scrutiny committees?
My strongest concern is about regulation 20 and the restrictions on disclosure of information to the commission. I assume that regulation 20 is covered by the exercise of powers conferred on the Secretary of State by sections 20(1)(e), 20(2) and 23 of the Health Act 1999. I believe that section 23 is the truly relevant section. Having compared regulation 20 with section 23 of the 1999 Act, I am concerned about a difference of emphasis on an issue that is made clear in section 23(3), which states:
''Regulations under this section may not make provision with respect to the disclosure of information if that disclosure would be prohibited by or under any other enactment; but where information is held in a form in which the prohibition operates by reason of the fact that the information is capable of identifying an individual, regulations under this section may make provision with respect to
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the disclosure of the information in a form in which the identity of the individual cannot be ascertained.''
Although passing reference is made to section 23, my concern is that regulation 20 does not give that provision the prominence that it deserves.
After we have finished our discussions and the regulations have been approved, I am concerned that readers of regulation 20 will tend to assume that either paragraph (2)(a) or paragraph (2)(b) can safely be used to determine whether information can be released. Although I understand that very careful reading of the document can result in the interpretation that paragraph (2)(b) has the capacity to override the other provisions of the regulation, it may not be read as such unless the Minister assures us that he intends section 23(3) of the 1999 Act to apply.
Will the Minister confirm that regulation 20(2)(a) does not imply an either/or choice, but that paragraph (2)(b) has equal validity and, in cases where it holds true, overrides paragraph (2)(a)? If paragraph (2)(b) is relegated to second position, the eye may be led from paragraph (2)(a) down to the exceptions to it under paragraph (3). That could lead to people having their identities disclosed in way that none of us would wish.
I am concerned about the exemptions in paragraph (3), although I realise that they appear in other Acts, including the 1999 Act. Will the Minister explain what is meant by paragraph (3)(c), for example, which provides an exemption if
''the individual cannot be traced despite the taking of all reasonable steps''?
Can we have examples of what is meant by ''all reasonable steps''? Another exemption under sub-paragraph (d)(i) refers to cases in which
''it is not practicable to disclose the information in a form in which the identity of the individual cannot be ascertained''.
Who decides what is not practicable? May we also have some examples of such a situation?
There is concern that the confidential nature of the relationships between patients, their doctors and the medical profession generally should not be compromised. Given the likely use of the regulations and of forthcoming legislation, it is important that we are clear about the precise circumstances in which patients' confidentiality can be breached. We need clarity in the regulations, so that they cannot mislead. I worry that as they stand they could mislead.
Chris Grayling (Epsom and Ewell): I do not intend to detain the Committee for long. I have read the regulations, and I do not share the concerns of the hon. Member for Cheadle (Mrs. Calton). The protection of individuals' records and information is always of high importance in the inspection process, and I have confidence in the regulations and in the motivation of those involved in the inspection process.
I want to make four points, the first of which I address to you, Mr. Benton. It is plain daft that the debate is happening now, on 27 October, given that the regulations were published on 20 June and came into force on 11 July. Before the debate, I talked to various bodies that might have a view about the
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regulations. They expressed utter amazement that the debate was actually happening. These are old regulations, which have been in force for several months. There is something wrong with the process when such an old story is brought before the House in this way. I hope, Mr. Benton, that you may be able to make representations through the various panels on which you sit to ensure that when a prayer is placed against a statutory instrument, the debate on it is rather more timely than this one.
The Chairman: Before the hon. Gentleman proceeds, let me say that I have heard his remarks, which will be recorded in Hansard and no doubt noted, but it is not a matter for the Chairman.
Chris Grayling: Thank you, Mr. Benton. I hope that those for whom it is a matter will read Hansard carefully.
My second point is that it is surprising that the changes were made during the summer, when the creation of the new Commission for Healthcare Audit and Inspection is so near. A simple question for the Minister is why it was necessary to introduce further regulations on the old CHI well after the start of the debate about the structure of the new CHAI. The regulations appear to be an unnecessary waste of ministerial and parliamentary time. I am sure that there must be a good reason for them, but I would be grateful if the hon. Gentleman enlightened us as to what it is.
Let me make two points about the substance of what is, and is not, in the regulations. On my first point, I find common ground with the hon. Member for Cheadle and with the Committee that considered the Health and Social Care (Community Health and Standards) Bill. It is that the regulations contain too much that gives the Secretary of State sway over CHI, which must be an independent body if it is to be most effective. CHI should not be subject to the whim and diktat of the Secretary of State. What particularly caught my eye in the regulations is that CHI's annual work programme must be submitted to the Secretary of State, who not only approves it, but has the right to determine modifications to it.
A truly independent body that is doing its job properly should not be subject to its work programme being varied by the Secretary of State who runs the service that the body is seeking to inspect. That is a flaw in the arrangements, and I hope that the Government will not keep coming back with further measures that appear to manacle the inspection bodies. Ultimately, we want such bodies to be free, independent and critical, and to challenge the work of everyone involved in health care, from the Secretary of State to those on the front line. They will not be free to do that if they are tied down by regulation.
My other point is about what is not in the measure. The strong message from the national health service about CHI and its role is that today's inspection regime is becoming far too complex. Far too many bodies—38 at the most recent count—have a right to inspect local hospitals. There appears to be a woeful lack of co-ordination in the health service, and a woeful lack of effort to ensure that inspection does not
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distract health service managers from their work but is no more than a periodic and necessary look over the shoulder to sure that they are doing their job properly.
Many trusts are setting up special units to cope with the burden of inspection. In our debates on the Health and Social Care (Community Health and Standards)Bill, we discussed the emergence in border areas of a new Welsh inspection regime alongside the English one. Front-line hospital managers, who regard a dual inspection regime with horror, are wary of that. There is no clear evidence that the Government are trying to streamline the inspection regime, or that they are giving CHI powers to co-ordinate much of the work so that we do not need 38 different bodies knocking on the doors of hospital managers to see what they are doing. What is happening at the moment is excessive and unduly bureaucratic, and takes people away from their front-line jobs.
I hope that the Government will take those issues away from this debate, although I have no problem with the regulations in their own right—certainly not to the extent that we would oppose them. They have already been implemented and are on the statue book. However, when the Government come to put the final shape to CHAI, I hope that they will take the comments that I have made into account and ensure that in the future we have a streamlined and independent inspection service, not one that is drowning in bureaucracy and is subject to the whim and diktat of the Secretary of State. If CHAI has more freedom, it will be more effective at improving the health care standards in this country, which, after all, is what it is for.