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“wholly or partly at public expense”.
Would that cover all residents in a care home where one out of 50 was funded by a local authority? Would it apply to everyone receiving care provided by a charity that received a very small annual grant?
However, as I said, I am sympathetic to the intention behind the amendment and the concerns expressed by evidence givers and by members of the Public Bill Committee and the JCHR. I undertake to consider the issue of publicly arranged health and adult social care and the Human Rights Act in the context of this Bill, with a view to the Government reporting back on that important issue during its passage in the other place. I hope that that offers some reassurance to my hon. Friend that the Government are continuing to consider the issue. In the light of that, I hope that he agrees to withdraw the motion.
Amendments Nos. 3 and 4 would place a duty on the Secretary of State to ensure that regulations under clause 16 include provision intended to secure the rights of those receiving services in addition to their health, safety and welfare. We must be careful not to create an expectation that the new Care Quality Commission will be a quasi-judicial or ombudsman-type body, as the amendments would do. Regulations under clause 16 will set out specific requirements that will be in line with the spirit of the European convention on human rights, but are relevant to the provision of health and social care services. It will be by enforcing those specific requirements on health and social care provision that the commission will support the promotion of human rights.
New clause 2 and amendments Nos. 5, 6 and 7 would require the protection and promotion of human rights to be central to the work of the commission. We had quite a lot of discussion about that in Committee, not least in response to the amendment tabled by my hon. Friend the Member for Luton, North. I confirmed that as a public body, the commission will of course be subject to the Human Rights Act and will have to carry out its functions in ways that are compatible with it. In carrying out its work in checking that providers comply with the registration requirements, the commission will be able to ensure that providers follow the spirit of the European convention on human rights.
We are keen to get the registration requirements right. Rather than this being a “tick-box exercise”, to quote my hon. Friend the Member for Hendon, the commission’s work in ensuring compliance will be a real driver to help to achieve the “wholesale cultural change” that the JCHR’s report seeks. I also encourage all those with an interest in the safety and quality of health and adult social care services to participate in
the forthcoming consultation on those registration requirements. That is an open invitation to him and his Committee to do so.
Amendment No. 8 would require the commission to perform its functions in a way that encourages health and social care services to improve the information that they provide to patients and service users about their rights. We agree that it is important that people have information on their rights and entitlements so that they can make informed decisions about their care and treatment, but the amendment is not necessary to achieve that. The Government have already distributed guidance and a toolkit on human rights and health care to the NHS, and that is available to the public. The Human Rights Act makes it unlawful for the Care Quality Commission, or any NHS body or local authority, as public authorities, to act in a way that is incompatible with the convention right. It is therefore for the courts to ensure that they comply. Of course, other bodies, such as the Equality and Human Rights Commission, have a leading role in that.
Amendment No 11 would require the commission to have specific regard to whether adequate advocacy services are available when carrying out its functions. The Government recognise the importance of good advocacy services. Section 12 of the Health and Social Care Act 2001 gives the Secretary of State for Health a duty to arrange the provision of independent advocacy services for those who make complaints about the NHS, and we established the Independent Complaints Advocacy Service to support patients and members of the public wishing to complain about their NHS care or treatment. In the context of social care, we intend to provide equal access to advocacy alongside the new complaints arrangements. We are still examining the details of how that can best be achieved.
While the commission will encourage the provision of good advocacy services through its review functions and by monitoring the adequacy of complaints processes operated by service providers, we do not consider that that should be central to its role. It would therefore be inappropriate for us to include it in the list of the matters to which it must have regard as a matter of course when carrying out its functions.
New clause 4 is linked to clause 41, which enables the Secretary of State to publish statements of standards relating to health care provided and commissioned by primary care trusts. The standards will provide a practical set of benchmarks for different services. The new clause sets out a number of topics to be covered by standards under clause 41, relating to the rights of patients and service users. We intend to hold wide-ranging discussions and full consultation with patients and clinicians on the details of the standards, because we want to ensure that they deliver real improvements in care. We feel that it would be inappropriate to set out the details in the Bill in advance of that consultation; indeed, I am not convinced that such standards should be in primary legislation at all, as it will be necessary to refine them frequently.
My hon. Friend the Member for Stoke-on-Trent, North (Joan Walley) expressed concern about publicly commissioned services provided by private non-urgent ambulance services. I invite her to make the case that she has made today during the consultation on the registration requirements, but I can reassure her that any publicly provided health or social care service will
fall within the scope of the Bill, in terms of both human rights and registration requirements.
Kelvin Hopkins: May I reinforce a point about the training and education of staff? On Second Reading, I raised concerns that had been put to me by Unison and the Royal College of Nursing. They wanted to make absolutely certain that the quality of staff was good across the board, and that there was no danger of a two-tier service developing in time.
Mr. Bradshaw: I am about to deal with amendments Nos. 14 to 18, which refer to professional qualifications and training. I hope that this will reassure my hon. Friend. The amendments are intended to implement the recommendation of the JCHR about professional regulation, which suggested that
“basic principles such as dignity, fairness, respect and equality be included in qualifications, accreditation and re-licensing for health professionals.”
We do not consider the amendments to be either necessary or appropriate to achieve the objective that I think we all share. They seek to impose various duties on the Council for Healthcare Regulatory Excellence, the Office of the Health Professions Adjudicator and the General Social Care Council. Each of those bodies is a public authority, and as such they must already carry out their functions in a manner that is compatible with the European convention on human rights. We therefore see no need to impose specific duties on them, and do not consider that any benefit would be gained from our doing so.
I trust that my assurance that the Government will examine the issue of publicly arranged health and social care provision and the Human Rights Act again in the context of the Bill will enable my hon. Friend the Member for Hendon to withdraw new clause 1, and I hope that I have persuaded him that his other amendments are not necessary either.
Mr. Dismore: I hope that my hon. Friend does not take exception to the fact that our Committee proposed amendments. We see that as an extension of our general scrutiny role, particularly if the Government do not accept the recommendations in our reports. In that event, inevitably, our only alternative is to bring them to the Floor of the House by tabling amendments, and we may do that rather more frequently in the future, not just in relation to my hon. Friend’s Department, but more generally.
The debate we had on the YL case emphasises the importance of the comprehensive approach that my Committee advocated from an early stage, as exemplified by a private Member’s Bill of mine in the last Session and another Bill of mine in this Session. All the questions and criticisms that have been raised would have been dealt with by such an approach. The question of devolution, which the hon. Member for Romsey (Sandra Gidley) raised, could be dealt with by a comprehensive approach in a dedicated Bill. The question of patient transport services, as addressed in amendments to the Bill, could also be dealt with. My hon. Friend the Member for Luton, North (Kelvin Hopkins) raised issues to do with self-funders, and they could also be dealt with. I am not entirely sure that I agree with him on that point, however, because even if
there was no means-testing, the people concerned would still be in a private sector home, so without things being resolved in accordance with the YL case problems would still arise.
5.45 pm
My hon. Friend the Member for Luton, North also raised more general issues that stray into the wider Bill of Rights debate. Those of us who are involved in the human rights world come across three major issues. One is horizontality, which I mentioned earlier—applicability between private individuals and companies. His comments strayed into that area, and also into the second big issue: social and economic rights. However, he kept off the third one: third generation rights, which are to do with environmental issues.
Mr. Dismore: My hon. Friend might be about to add to the list.
Kelvin Hopkins: Just to clarify, I understand that the Government are looking at the possibility of publicly funded residents in private care homes of covered if there was no means-testing, so that everyone is publicly funded and everyone, by definition, is covered.
Mr. Dismore: I hear what my hon. Friend says, but it is important to get back to where we started before we start to develop our ideas. I have a lot of sympathy with his points, but we must resolve the immediate problem first.
I am pleased that my hon. Friend the Minister has recognised the importance of this matter and that it will be returned to in the other place. I am not entirely sure that he is with us, however, when he talks about looking only at the regulatory powers aspect. Does he therefore exclude the general application of the Human Rights Act 1998 to care home residents, including, for example, their power to take matters to judicial review, as in the YL case and the Leonard Cheshire homes court case? Those cases were brought by individuals who were affected; they enforced their own rights and were not reliant on the commission or another agency to help them do so. I hope that when the Government table an amendment in the other place, it will address the fundamental problem of the definition of what is a public authority in this context, as one of my amendments would do. On that basis, I would be happy not to press this particular matter any further.
On wider issues, the hon. Member for Eddisbury (Mr. O’Brien) raised the important need for a rights-based approach. That is fundamental to the second batch of amendments, if I can use that general term to describe the amendments that are all variations on that theme.
I am concerned that my hon. Friend the Minister says we are raising expectations, because the expectations in question relate to people’s rights that already exist. That takes us back to a point I made earlier: the Government say that they expect certain things to be done, but the rights already exist in law and should be enforced. I am therefore concerned that he feels that they should not be included in the Bill, in the context of a rights-based approach. It is said that the matter will
fall under the commission’s general responsibilities, and that it will conduct enforcement and inspections in the spirit of the Human Rights Act, but if that fundamental principle is not included in the Bill in some way, shape or form, the importance of that rights-based approach will be underplayed. All the evidence that we have received supports that argument—as, I think, does the evidence the Public Bill Committee received.
In the spirit of compromise, I do not propose to call for a vote. My hon. Friend has said that these issues can be looked at again in the other place. As he knows, one advantage of the Joint Committee on Human Rights is that we have members from both Houses, so we can keep each other well briefed and informed. If my hon. Friend does not table amendments, particularly on the rights-based approach, I will be very surprised if my Committee colleagues in the other place do not do the job for him again, so that we end up having this debate again, perhaps even on Lords amendments back in this House.
We have had sweetness and light so far today, and I would give the Government a mark of seven out of 10. On that basis, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
‘(1) The Secretary of State may issue a code of practice about compliance with any requirements of regulations under section 16 which relate to the prevention or management of malnutrition.
(a) operate by reference to provisions of other documents specified in it (whether published by the Secretary of State or otherwise);
(b) provide for any reference in it to such a document to take effect as a reference to that document as revised from time to time;
(c) make different provision for different cases or circumstances.
(3) The Secretary of State must keep the code under review and may from time to time—
(a) revise the whole or any part of the code, and
(b) issue a revised code.— [Mr. Stephen O’ Brien.]
Brought up, and read the First time.
Mr. Stephen O’Brien: I beg to move, That the clause be read a Second time.
Madam Deputy Speaker: With this it will be convenient to discuss amendment No. 105, in clause 16, page 8, line 31, at end insert—
‘(7A) Regulations made under this section may make provision for the prevention and management of malnutrition and may include such provision as the Secretary of State considers appropriate for the purpose of safeguarding individuals (whether receiving health or social care or otherwise) from the risk, or any increased risk, of malnutrition.’.
Mr. O’Brien:
Amendment No. 105 is intended to establish regulations to deal with malnutrition. It is drafted in the same terms as clause 16(5), which is on
health care-acquired infections—or health care-associated infections, depending on which of the Government’s definitions one chooses to take. New clause 15 would provide for a code of practice on malnutrition and is drafted in the same terms as clause 17, which provides for a code of practice relating to health care-acquired infections.
The context of the new clause and amendment is necessarily fixed within the area of health care-acquired infection. The Government have put in the Bill the need for regulations about health care-associated infections, as they call them, notably methicillin-resistant Staphylococcus aureus and clostridium difficile, and a code of practice on preventing them. While that is laudable, I fear that it will do little to dent the Government’s ongoing failure on health care-associated infections unless proper infection control measures are put in place in the code.
Although health care-associated infections are falling, the rate is still way off track to meet the Government’s 2004 target of halving MRSA rates by March 2008. The Secretary of State for Health has contradicted the Prime Minister’s promise of screening for C. difficile; bed occupancy is up; deep cleaning is a gimmick with no new money attached; there is no decent search-and-destroy strategy; and Government promises on isolation wards are still being broken. I am sure, moreover, that the House was pretty disgusted by the Health Secretary’s posturing promise that he would prevent a payout to the chief executive of Maidstone and Tunbridge Wells NHS Trust, considering that, on 24 January—just a few days ago—we discovered not only that the Secretary of State never had the power to do that, but that the chief executive received £75,000 of taxpayers’ money for her failure. That is the context in which malnutrition is so important.
As we know, according to the Government’s own figures in “Clean, safe care: reducing infections and saving lives”, published on 8 January, MRSA affected about 6,000 people in 2006-07 and C. difficile about 56,000. By contrast, in 2006-07 no fewer than 139,127 patients were discharged from hospital in a state of malnourishment. The issue is not just about malnourishment; it is also a human rights—we have just discussed human rights—issue. The Joint Committee on Human Rights, in its recent report, “The Human Rights of Older People in Healthcare”, noted that malnutrition and dehydration in care settings breached articles 2, 3 and 8 of the European convention on human rights. Figures cited in the Department of Health’s own nutrition action plan show that the cost of under-nutrition is estimated at £7.3 billion a year, and a recent British Medical Journal study reported that about 20 per cent. of patients in hospital—one in five—are malnourished.
Despite those figures, which reaffirm those provided through BAPEN’s screening week—I assume that everybody in the Chamber knows that BAPEN is the British Association for Parenteral and Enteral Nutrition—an initiative that the Minister claimed to support, the Department chose to rubbish them as
“hopelessly out of date or misinterpreted.”
Furthermore, the Government’s own figures, provided to me through written parliamentary answers, show that the number of undernourished patients being discharged from hospital has risen by 84 per cent. since
1997. There is little evidence that the Government have either the will or the conviction to tackle the problem. Since the new year, they have failed to take the opportunities afforded by the publication of vital signs indicators for primary care trusts, of responses to the payment by results consultation, and of the Bill to demonstrate their intention to do so. Of the 83 vital signs targets, none relates to malnutrition. It has been pointed out to the Department that the lack of recognition of support services, such as those on nutrition, in PBR acts as a barrier to the commissioning of effective care pathways.
Most damning was the voting down in Committee of an amendment that would have put the importance of tackling under-nutrition on the same statutory footing as tackling hospital-acquired infections. Clearly, therefore, the Government see under-nutrition as a peripheral rather than central issue in respect of both health and social care and human rights. The new clause and amendment give the House an opportunity to make a genuine addition and improvement.
Given the Government’s repeated refusal to make use of opportunities to tackle under-nutrition, such as in the NHS’s operational plans and the system of PBR, my view and that of my colleagues is that we simply cannot accept the Minister’s feeble assurance—“feeble” is a strong word, but it is correct in this context—to the Committee that he hoped that malnutrition would be included in the core registration requirements examined by the new Care Quality Commission. He said no more than that he hoped that that would happen. That seems a wholly insufficient and inadequate response to what is patently a major issue, given evidence that was based wholly on the Government’s own information and statistics, and which was published in parliamentary answers. Unless we hear from the Minister an important and new voice on the matter, it will be important for us to register our concern. We shall want to pursue the matter at this stage and certainly as the Bill proceeds to another place. When it does, I hope that this time the Government will support such amendments.
Sandra Gidley: I am pleased that we have a chance to debate this subject. I can understand the irritation of the hon. Member for Eddisbury (Mr. O’Brien) at being denied an opportunity to discuss health care-acquired infection again. Although we did not support some of his amendments in Committee, it was their style, rather than the thought behind them, that was problematic. However, he has used this opportunity to raise an important subject.
The hon. Gentleman mentioned BAPEN, whose survey last November concluded that more than one in four adults admitted for stays in hospitals, mental units or care homes is at risk of malnutrition. He said that the Government have rubbished those figures, but the Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), who has responsibility for care services, said:
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