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26 Nov 2007 : Column 42

The Bill will also make a number of other changes to arrangements relating to the composition of councils of the regulatory bodies, to the Council for Healthcare Regulatory Excellence and to the legislation currently governing the regulation of the social care work force.

Peter Bottomley (Worthing, West) (Con): Clearly the Committee, on which I do not expect to serve, would be the place to go into this point in great detail, but has the Secretary of State consulted the judges, who have laid down that if someone’s job was at risk, the civil standard of proof would not be high enough? They have laid down that in some serious cases the criminal standard ought to be used.

Alan Johnson: I cannot say whether we have consulted the judges; all I can say is that eight of the current regulatory bodies operate in accordance with the procedure that I have set out. Our consultation suggested that there was wide-ranging support, including, incidentally, from the GMC—the recommendation stemmed from Dame Janet Smith’s inquiry into Shipman—which believes that there should be a change from the criminal standard. The other argument, which is probably the clincher, is that if a case against an individual doctor was that serious, the criminal benchmark would apply. For all those reasons, the proposal has a widespread consensus behind it. I cannot say whether that consensus stretches right through the legal profession, but we have a strong enough argument to proceed on that basis.

Kelvin Hopkins rose—

Rob Marris rose—

David Taylor (North-West Leicestershire) (Lab/Co-op) rose—

Alan Johnson: Before I give way, I should like to record my appreciation of the thoughtful and constructive approach that the professional regulatory bodies have taken to the proposals.

Kelvin Hopkins: My right hon. Friend mentioned ensuring that we have a sufficiently skilled and qualified work force. However, there are fears that work force registration will not be sufficiently enforced and that some people might slip through the net, possibly creating two-tier provision. Will he assure us that everyone in the work force will be properly registered and properly qualified?

Alan Johnson: Up to a point, Lord Copper. Given the procedures that we have set out in the Bill and the arrangements that apply quite separately, it is difficult to envisage anything further that we could do to ensure that. However, we are always willing to accept ideas and suggestions as we take the Bill through Committee. The Bill will also introduce a number of public health measures.

David Taylor: I am grateful to my right hon. Friend for giving way, Mr. Deputy Speaker, and I shall seek to catch your eye later in the debate. Just moments ago, I tabled early-day motion 386, which calls for citizens councils—as recommended in the NHS plan 2000—to be involved with the regulation of health care professionals.
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Does my right hon. Friend believe that the public, as patients, are sufficiently involved in the process of setting and reviewing the criteria for admission to the various professions and for continuing to practise in them? The evidence is that the public feel cut off from that process.

Alan Johnson: There are separate arrangements to ensure that the patient has a clear involvement. The other provision that arises from Dame Janet Smith’s inquiry into Shipman is that there will no longer be a majority of professionals on these bodies; there will be equality for lay people. That offers an important reassurance.

Rob Marris: I thank my right hon. Friend for giving way with his usual smiling generosity. He referred a few moments ago to what might alliteratively be described as poor professional performance under this regulatory regime. Would that cover the surprising approach being taken by some GP practices, including some in my own constituency, and I believe by NHS Direct, of using 0845 numbers, which are a rip-off for the consumer—in this case, the patient? If this regulatory regime will not cover that practice, will he assure me that he will look into the matter? GPs are getting paid handsomely and properly by the state, yet some of them seem to wish to make extra money out of their patients’ phone bills.

Alan Johnson: My hon. Friend has raised an important point, but this is not a matter for the Bill. I am already well aware of the practice that he mentions, however, and we issued guidance earlier this year to say that patients should pay no more than the cost of a local call. Indeed, we believe that to charge in the way that he has described breaches the terms of the GP contract. The matter does not need the weight of this legislation, or the time that it would take to pass the measures, to deal with it.

Angus Robertson (Moray) (SNP): The Secretary of State will be aware that many parts of the Bill will be subject to a legislative consent motion in the Scottish Parliament. Will he confirm my understanding that there has been excellent input by the Scottish Government and excellent consultation in Scotland on these measures? Is he content, as I am, that the provisions in the Bill are exactly what is needed?

Alan Johnson: I can confirm that there has been excellent co-operation, both before and after May 2007. That has really helped us to arrive at the provisions—particularly those on public health, which I shall come to in a second—that will ensure that the whole of the UK is well equipped.

The Bill introduces measures to help to prevent and control the spread of diseases that could present significant harm to human health caused by infection and contamination. The measures in the Bill will update the existing powers and provisions in the Public Health (Control of Diseases) Act 1984 relating to preventing and controlling disease. That legislation is clearly out of date. For instance, it allows us to regulate the risks from rag and bone men while remaining silent on the dangers of chemical and radioactive contamination.

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The Bill seeks to bring our health protection into the 21st century by taking an all-hazards approach to health protection rather than by focusing only on specified diseases. That will allow a quick response to new or unknown diseases. I emphasise that the new legislation will be proportionate. We are updating the legislation to ensure that, while we have the powers needed to respond effectively to a public health threat, safeguards are written into the new legislation to ensure that the powers are used only when appropriate, and only to the extent necessary to secure the protection of public health.

The Bill will also support the health of pregnant women by introducing a new health in pregnancy grant. The grant will be a universal, one-off payment of £190, available to all expectant mothers ordinarily resident in the UK from the 25th week of their pregnancy. It will provide pregnant women with additional financial support towards meeting the costs of a healthy lifestyle, including diet, and other costs in the run-up to the birth.

There are also a number of small amendments in the Bill relating to the financial arrangements for pharmaceutical services; indemnity schemes in connection with the provision of health services; direct payments in lieu of provision of care services; repeal of the liable relatives rule; definition of ordinary residence as applied to the National Assistance Act 1948; payments to social enterprises; the creation of a national information governance board, ensuring that parents get automatic feedback about their child’s health through the national weighing and measuring programmes; and the functions of the Health Protection Agency in relation to biological substances.

Mr. Gordon Prentice (Pendle) (Lab): May I ask about the Bill’s implications for the health service ombudsman and whether an increase in the number of complaints is expected? If so, will the ombudsman be adequately resourced to handle them?

Alan Johnson: There may be an increase in the number of complaints, but the new commission will not deal with them; they will go through the usual channels. We will stay in touch with the ombudsman to see whether staffing is sufficient to ensure that they can cope with any increase in work. I am sure that all the miscellaneous items that I have mentioned will receive due attention during the Bill’s passage through the House.

The Health and Social Care Bill will deliver a range of measures to assure the levels of quality and safe care that all patients and care service users have a right to expect. It will also introduce legislation that updates our current health protection powers to make them fit for purpose in the modern age and contribute to a healthier lifestyle for both expectant mothers and young children. I commend the Bill to the House.

4.56 pm

Mr. Andrew Lansley (South Cambridgeshire) (Con): I am grateful for the opportunity to speak on Second Reading. The Secretary of State says that the Bill is important. I do not dispute that it has important implications, but it seems that its importance was not such that the Prime Minister thought fit to refer to it at all at the start of the Gracious Speech debate. It is customary each year for at least one health Bills to be a
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flagship Bill, as it were. Unfortunately, this year the health Bill is not so much a flagship as a fleet auxiliary—useful measures grouped together in much less visible form that never acquire the status of a flagship.

I am afraid that this Bill in no way represents the changes in overall regulation that are required. After the 2005 election, the Government believed that there should be a wider review of regulation. They commissioned a review by Lord Currie of Marylebone and others, but they then more or less ignored it. They proceeded to publish consultation documents—frankly, inadequate ones—about the regulatory review, which culminated much later than originally intended in the document to which the Secretary of State referred.

This Bill implements only one aspect of all that—the part that relates to the Healthcare Commission—but it is perfectly clear that it will not achieve the regulatory changes necessary to provide assurance in the longer term to those providing services to the NHS. If one believed in the long-term role of the independent sector, for example, in supporting the NHS, one would need not only powers of inspection for the commission, but an independent regulator to undertake economic regulation in respect of market entry or market exit. Since 2003, the Government have failed to introduce legislation for the failure regime or for the exercise of powers relating to competition and pricing. None of that is in the Bill: it is not the legislation that we really need to provide either autonomy or proper accountability.

We have made it clear that we will introduce the necessary legislation in this Session and we will endeavour to ensure that it complements the aspects of the Bill that we support. In the course of the Bill’s passage, we can do certain things to make it more consistent with our long-term structure and vision for health care.

Before exploring some of the Government’s proposals in more detail, let me isolate one point. What is lacking in the Bill—for example, in respect of the structure of the care quality commission—is any formal structure to give a voice to patients and the users of services. Members—particularly those who are present—will recall that when legislation was introduced during the last parliamentary Session to abolish patients forums and set up local involvement networks, we thought it important for patients to have the national voice that was missing from that legislation. The same applies to social care for care users and, indeed, carers. This Bill provides no such national voice. Although clause 2 enjoins the care quality commission to have regard to the views of patients, no structure is built into the Bill to make that happen.

The Secretary of State intends the care quality commission to bear comparison with other regulators, but such structures are explicitly incorporated in many other regulating bodies. The Office of Communications, for instance, has a consumer panel, set up under the statute that inaugurated it, whose purpose is to acquire patients’ views. That is one of the reasons why, in the measures that we propose, we will make specific provision for HealthWatch—working alongside the Healthcare Commission, or the care quality commission, as it will become—to represent patients and express their views on the health service to the whole regulatory structure and the Secretary of State. The same could, of course, apply to those using social care.

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Conservative Members will seek to amend this Bill to bring those principles into effect. Back in 2005, when Lord Currie of Marylebone presented his report to the then Secretary of State, he made it clear that such a national voice for patients was an essential part of a future structure.

The hon. Member for Wolverhampton, South-West (Rob Marris) kindly asked part of the question that I had intended to ask the Secretary of State. However, I recall from my membership of the Standing Committee considering what became the Health and Social Care (Community Health and Standards) Act 2003 that at that time we abolished the Commission for Health Improvement, which I think had been around for only about three years, in order to establish the Commission for Healthcare Audit and Inspection, now colloquially known as the Healthcare Commission. It does not seem as though any of those bodies had been entrenched for any length of time before being abolished, and the same is true of the Commission for Social Care Inspection. The National Care Standards Commission was abolished in the 2003 Act, CSCI was established, and no sooner is it up and running than we are to abolish it.

I would not wish the House to be in any sense misled. We believe that there has always been a strong case for those bodies to work side by side. We have always supported the proposition that we must try to break down the barriers between health and social care, and institutional divisions in the regulatory structure do not help that to happen. If we are to encourage, for example, the use of individual budgets and personalised care stretching across health and social care, it clearly makes sense for the regulatory bodies to work side by side.

On the commissioning side, the current position in Herefordshire, where the primary care trusts and the local authority have effectively merged their activities at executive level, suggests that a single organisation could be helpful. The relationship between Ofsted and CSCI in respect of children’s services is a good example.

While I am happy with the principle that the two bodies should be merged, the central issue—as the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) rightly said and as the Secretary of State rightly accepted—is that when social care and health care are brought together there is a natural, or perhaps unnatural, tendency constantly to prioritise health care to the exclusion of social care, and to make mental health a Cinderella within health care. There is an inherent danger that bringing everything together under one regulator will cause both the functions currently performed by the Mental Health Act Commission and those performed by CSCI to attract less priority than the current functions of the Healthcare Commission. I have no doubt that the more often we say that during the passage of this Bill, and the more persistent we are in Committee about the nature of the duties—we shall have to spell that out clearly, as the duties are expressed only in the vaguest terms in current legislation—the more likely we will be to ensure that this body delivers what is intended. In my experience, the more independent a regulator needs to be, the more important it is that their duties, including the factors to which they must have regard, are spelled out in legislation; otherwise, that independence will be undermined—or if there is
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independence, the more likely it will be that the regulator behaves in ways that do not attract the support of the House.

Hilary Armstrong (North-West Durham) (Lab): Will the hon. Gentleman also reflect, however, on the fact that too often this House has added so many details to regulatory legislation that instead of regulators being able independently to work out the most effective form of regulation, processes have become bureaucratic and tedious and there has been a failure to achieve the overall objective? The House must give the powers to regulators so that they are able to use them effectively, rather than try to tie them down so much that they spend their time ticking boxes instead of understanding what is happening on the ground and ensuring that people can get hold of the information they need to know whether things are working or not.

Mr. Lansley: I am interested in what the right hon. Lady says because under other legislation enacted by this Government the view has been that it is rather important to set out those duties—in relation to an energy regulator, for example, that it is important to set out the duty on security of supply, the duty on promoting competition and the interests of consumers and the duty on the achievement of environmental objectives. I do not think it would have helped to have said, “We are setting up a regulator who has a duty for the improvement of energy services,” which is more or less what is happening in the current context: a regulator is being set up with the duty to improve health and social care.

How is the regulator to define that? The answer, which is built into clause 2, is that it is to be defined by reference to the Secretary of State and Government policies. Clause 2(4) re-incorporates into legislation what is currently section 130 of the National Health Service Act 2006 in respect of the Healthcare Commission. [Interruption.] Yes, I am showing off now. That pretty much says that both the Healthcare Commission and CSCI have statutory provisions under which they must have regard to the policies of the Secretary of State. Therefore, when the Secretary of State says, “This body will be independent,” we will take a very close look at what that means. Strictly speaking, “independence” should mean independently appointed, with independent duties established by Parliament, and with an ability to pursue the duties of, for example, safety, quality, efficiency and effectiveness to whatever conclusion. It should not mean having that compromised by the way in which the Secretary of State sets out his policies.

It is evident that much of the burdensome regulation that the Healthcare Commission has to undertake in relation to health care providers is the direct consequence of the way in which successive Secretaries of State have set out the targets that they want health care providers to meet. Therefore, the target culture is a direct precursor of the burden of regulation. It is more important for us to be focused on the delivery of the duties of quality, safety and efficiency instead of having that overridden by the Secretary of State. I am sorry that that has been such a long digression, but it has been a helpful one from my point of view, so I am grateful to the right hon. Lady.

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It is important to pursue the question of risk-based regulation. Although the Secretary of State says that it will be risk based, I am unclear whether the Bill delivers that. It is certainly intended to be proportionate to the risk that is to be safeguarded, but it could easily be said that all health care providers—depending on what they do—have more or less the same kind of risks attached to what they do. We must look hard at this Bill to incorporate into it the principles of risk-based assessment and regulation, because they are not in it yet. I hope that as the Bill progresses we can ensure that the care quality commission has not only a specific role as a national voice for patients, but specific ways in which it takes into account the interests of patients, care service users and carers.

The Secretary of State talked about health care-associated infections. This feels a little like the groundhog day of health legislation, because it is almost exactly two years ago that I was standing here responding to the Secretary of State’s predecessor, who was telling us that the 2006 legislation was the last word in regulation, and that the Healthcare Commission was to have these new powers. In fact, the commission can carry out unannounced inspections. At the time, the Government looked at and we discussed the question of fines. They concluded that the best thing to do was not to introduce them, and that it was better to have a process of improvement notices.

I do not know what evaluation has taken place. The code of practice set up under the 2006 legislation came into force on 1 October 2006. We are less than a year down the line of the introduction of that code of practice, and although I am not aware of how many inspections there have been, there were an initial 15 inspections for compliance with the code of practice. I do not know to what extent the Secretary of State regards this as a successful or a failed regime. One improvement notice has been served, against Chase Farm hospital, and we have yet to have others.

I simply do not know what the evidence base is for the Government’s concluding that their policy failed and that they must have a new one. The cynics among us might suspect that in fact, from the Secretary of State’s point of view, a new Secretary of State must equal a new policy, and a new policy must equal new activity. Perhaps when he asked the Department, “What is it that we have not done that we could do in respect of health care-associated infections?”, he was simply served up something that his predecessor had rejected. That is often how these things happen, and I am afraid that this looks a lot like that.

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