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“a battle had broken out”
between David Nicholson, the NHS chief executive, who sees the PCTs as part of his management empire, and Anna Walker, who said that there must be
“a mechanism for holding people publicly accountable”
for the quality of purchasing. During the Committee stage, the Minister said that performance assessment of PCT commissioning “was provided for” in the Bill under the special reviews regime, and would not accept our amendments to clause 42. If this provision delivers the power of periodic review of commissioning, I am glad that he has listened to us.
Lords amendment No. 17 removes the power of the Secretary of State to modify documents of the commission which set out the frequency of reviews. Those documents would still require the Secretary of State’s approval. Again, the amendment comes in response to amendments that we tabled in the Grand Committee, again supported by another party. That is a small victory in the Conservative crusade to have the CQC set up as an independent regulator, rather than one too often at the beck of the Secretary of State. Whether it turns out to be effective in practice, we wait to see. While the Secretary of State will not be able to “modify”, he will presumably be able to withhold approval until he is happy with the document, amounting to the same thing.
Likewise, I welcome Lords amendments Nos. 18 and 19, which give the CQC a new power to refer matters of concern to the Secretary of State, and are the result of points made by my noble Friend Earl Howe in Grand Committee. They give the CQC a further power in its own right, separate from the Secretary of State. I only lament, once more, that the CQC is not independent enough.
I welcome Lords amendment No. 23, which again removes the power of the Secretary of State to specify by order when the commission must publish programmes setting out the reviews, investigations and studies that it proposes to conduct. It is a further concession won in another place. Not only is it welcome as a further removal of the Secretary of State’s control over the commission, but it is welcome as one less piece of legislation that will use up valuable parliamentary time. The 1950 Parliament put 720 pages of Acts and 2,970 pages of statutory instruments on to the statute book. Last year, the number of pages of new Acts totalled 4,609 and there were 11,868 new pages of statutory instruments. I just could not help referring to that, as it is so shocking.
I am also pleased that amendment No. 26 removes the power of the Secretary of State to make regulations prescribing the manner in which the new commission is to make and publish its plans for charging fees. It will be recalled that, although those elements to enhance the independence of the CQC are welcome, the Government have been unable to accept that it was appropriate to reconsider clause 2(4), which now seems rather out of place and which effectively enables there to be a Secretary of State override, as the commission must have regard to what the Secretary of State “may direct.”
Lords amendment No. 22 enables the Welsh Ministers and the commission to share information to support the efficient and effective discharge of their functions. Representing a constituency which shares a border with Wales, I am glad to see that provision included, because, while there is a political and administrative boundary, people on the ground want to use the service that is most convenient and effective for them: people from Flintshire coming to Chester, and people from the south-west corner of my constituency going to Wrexham Maelor and other such places. I also note that we were the only party with an MP representing a Welsh constituency in the Committee. As the measure applies to Welsh bodies, that was an important point, which we made in selecting those who served on the Committee. I would be grateful if the Minister confirmed whether that amendment would allow me, representing my constituents who use services under the purview of
Welsh Ministers, to gain the rights of audience that I should have with those Ministers on behalf of my constituents.
It just so happens that a very upsetting constituency case has come across my desk today. Welsh Ministers have today decided to close a special needs children’s home, just after an autistic Asperger’s syndrome child had spent three months getting familiar with it. Today, with all his furniture moved into his new home, they have announced its closure, and he was due to arrive tomorrow morning. It has been the most desperate decision by Welsh Ministers in that case.
I also note the scathing interim report from the Welsh Affairs Committee on cross-border health care. I should be grateful if the Minister confirmed that adequate data protection would be in place for such data sharing, and I hope that Welsh Ministers, English Ministers and the CQC will take seriously the four criteria that have been established: clinical excellence as close to home as possible, border-proofing of policy and practice, cross-border citizen engagement, and transparency and accountable co-operation between localities, regions and Governments.
Amendment No. 67 would make a minor amendment to schedule 5 to reflect the fact that the Children and Young Persons Bill, which is referred to in the schedule, is not now expected to receive Royal Assent until after the Health and Social Care Bill does. There is nothing to be said on that amendment other than that it is terribly unfortunate that the Government Whips have failed so monumentally to timetable effectively a Government-sponsored Bill and have therefore got that out of kilter.
Amendment No. 68 would allow Welsh Ministers to use any information obtained in exercising specified functions for the purposes of any of their other specified functions. I would be grateful if the Minister confirmed that data passed from English bodies to Welsh Ministers would be handled with the same level of security as they are by English bodies—which, admittedly, is not much under this Government. More important, will English bodies or individuals who are the subject of such data sharing, and their representatives, be given rights of appeal to Welsh bodies as regards that data?
Sandra Gidley: I do not propose to go through the amendments at length, as we support most of them because they improve the Bill and make changes that we sought to secure in Committee.
I particularly welcome the amendments that strengthen the role of the commission with regard to commissioning. My interpretation of Lords amendments Nos. 15 and 16 is that they would allow for the commissioning to be reviewed. I was very taken by the comments of Lord Warner on Report in the other place. He has considerable experience of health matters, and he said:
“In the past, there has been a considerable reluctance on the part of the NHS, and often of the Department of Health and Ministers, to act when commissioners are failing. They are much more willing to act when providers are failing. The Bill is strongly focused on providers, with a registration system and a set of sanctions accordingly.
I do not want to put the noble Baroness, Lady Young, in a difficult position in her future relationships with Ministers and SHAs, but there is an issue about whether, in the Bill, the commission should be able to require some action from the performance managers”.—[ Official Report, House of Lords, 24 June 2008; Vol. 702, c. 1349.]
Try as I might, I could see that there was a provision to review, but it was hard to see what sanctions were available if the commission felt there were problems in any area of commissioning. As it is a variable beast that works well in some areas of the country and less well in others, I felt Lord Warner raised a valid point that Lord Darzi did not fully address in his summing-up comments. It would, therefore, be helpful if the Minister were to add to them today, and put some flesh on the bones.
I particularly welcome the many amendments that take out the reference to the Secretary of State—in respect of modifying reports, for example. Although there are still some provisions for the Secretary of State, it is pleasing that his role seems to have been almost totally emasculated by the other place. That will be welcomed by those who query whether the new body will be truly independent. It is still not perfect, but it is much better than it was, and it is clearer that there is less provision for Government interference of any kind.
Mr. Bradshaw: On the issue of costs and the ombudsman, the hon. Member for Eddisbury (Mr. O'Brien) will know that the health service ombudsman for England is independent of Government, and she has made it clear that she has plans in place to ensure that her office is prepared to handle the expected increase from 1 April 2009. She has been exploring the funding that she is likely to require directly with the Treasury, rather than with my Department. She also made it clear in the memorandum that she tabled for the Committee, which has been shared with hon. Members, that she would be happy to provide them directly with any further information.
4.45 pm
On the question whether the complaints to the ombudsman would be followed up by the Care Quality Commission, the regulations under clause 16 make it clear that the detailed requirements of the registration system are likely to require all providers of health and adult social care to have appropriate complaints processes in place. In this case, the CQC would examine an organisation’s handling of complaints and hold it accountable for how robust its arrangements were. That consideration would include whether organisations were learning from complaints, as we all want them to do.
On the issue of self-funding, I am sure that the hon. Member for Eddisbury is aware that the Government accepted that it was wrong that people who funded their own social care had no recourse to independent resolution of complaints. It was therefore with great pleasure that we were able to confirm on Third Reading in the other place that we would take the next available legislative opportunity to extend the remit of the local government ombudsman, so that he or she could investigate complaints by self-funders. To achieve that, we will amend the Local Government Act 1974. Of course, the local government ombudsman already has a role to play in investigating complaints by people whose care is arranged or funded by local authorities. A new responsibility for self-funder complaints will sit logically with those existing duties, and the ombudsman’s staff will have the advantage of already understanding the types of issues that arise in adult social care.
Mr. Stephen O'Brien:
The Minister rightly confirmed that the first legislative opportunity would be taken to introduce access to these arrangements for self-funders—we all hear and accept that, as he acknowledges. Given that
such provision was not identified as part of the draft legislative programme recently announced by the Government, has the Minister had any indication as to whether we might expect it in the forthcoming legislative programme—after all, it was only a draft that was announced—or soon after? Alternatively, does he see it as a more distant horizon?
Mr. Bradshaw: No, we want to do this as soon as we possibly can. I am sure that the hon. Gentleman will accept that no Minister can stand at the Dispatch Box in July and say exactly what will be in the next legislative Session. As I have said, it is certainly our intention to legislate at the earliest opportunity.
As for the Care Quality Commission’s commissioning role, I do not think that we could have made it clearer, both during the passage of the Bill and in changing its wording in the other place, that the CQC’s role would include reviews of the process of commissioning. The hon. Member for Romsey (Sandra Gidley) made an important point about the overall importance of improving commissioning and the primary care trusts’ capacity to commission. It should not be forgotten that alongside the role of the CQC in improving the quality of commissioning through regulation, we also recently announced in the primary and community care strategy—and before that, in our proposed performance and failure regime—how PCTs’ commissioning could be better performance-managed. The Bill contains a power for the CQC to call on the Secretary of State to intervene where it believes that a PCT’s commissioning is not up to standard.
Mr. Burns: The Minister gave my hon. Friend the Member for Eddisbury (Mr. O’Brien) a perfectly valid and stock answer under the old regime. However, given that the Government have changed the regime in favour of transparency and have published a draft legislative programme, why can the Minister not define what the earliest possible moment is? Why can he not assure the House that it will be in the next Session of Parliament, as opposed to giving a vaguer answer—we would have expected that before the change to greater transparency?
Mr. Bradshaw: Although we have, as the hon. Gentleman graciously acknowledged, improved the level of transparency through the process of publishing a draft legislative programme for consultation, he will know that that is not an exhaustive list of Bills and that the fact that a Bill has been published in the draft legislative programme does not necessarily guarantee that it will have a place in the final programme. As I said, I am not in a position—he has been here long enough to know that no Minister would be in this position—to say in July what will be in the next Queen’s Speech.
Lords amendments Nos. 7 to 31 agreed to.
Mr. Bradshaw: I beg to move, That this House agrees with the Lords in the said amendment.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss Lords amendments Nos. 33 to 36, 52, 55 to 60, 62, 73 to 83 and 85 to 89.
Mr. Bradshaw: This group of amendments reflect areas in part 2 of the Bill where arguments put forward in the other place merited serious consideration. We have also tabled amendments to achieve a new policy, which I will turn to first.
Amendments Nos. 36, 60, 75 to 78 and 85 to 89 were introduced at Grand Committee stage in the other place to meet a Government commitment to abolish the Hearing Aid Council by April 2009 and to transfer the regulation of private hearing aid dispensers to the Health Professions Council. This group of amendments is intended to achieve that by paving the way for a future Order in Council under the section 60 provisions of the Health Act 1999, in addition to ensuring that public hearing aid dispensers can be regulated in the same way in the future.
I accept that it is not ideal that this House did not have the opportunity to consider this provision in its deliberations in Committee. I hope, however, that hon. Members will forgive the fact that this is a late addition to the Bill in recognition of the very real benefits that this measure will bring for patients and consumers. First, this will provide improved protection for the hearing impaired and simplify the regulatory framework for hearing aid dispensers. Although the council has done a fantastic job over the past 40 years, it is operating under legislation that is increasingly outdated with gaps in consumer protection. The Health Professions Council, established in 2001, has modern and comprehensive legislation that will provide for a much more complete service to patients and consumers. As a multi-professional statutory regulator, it can provide greater resources while charging considerably smaller fees to the profession. Secondly, and importantly, the Hearing Aid Council itself, the Health Professions Council, the Royal National Institute for Deaf People and the British Society of Hearing Aid Audiologists are all fully supportive of this move, and are working together to ensure that the transition will be as smooth as possible.
I turn now to the amendments that we have brought forward as a result of debates in the other place. Amendment No. 32 addresses concerns that the Secretary of State’s power of direction over the Council for Healthcare Regulatory Excellence in the Bill, as originally drafted, could be perceived as undermining the independence of the CHRE. The reason for including it in the Bill was as a mechanism to help the CHRE to prioritise its workload in busy periods, but having discussed it with the CHRE we are now confident that it can be dispensed with.
On clause 116, I was persuaded by arguments put forward in the other place that the Bill could be strengthened to ensure that the careers of health care workers are not damaged by malicious or untrue allegations. Amendment No. 35 therefore requires the appropriate Minister to have regard
“to the importance of avoiding unfair prejudice to health care workers against whom unsubstantiated allegations are made”
when making the regulations setting out in detail how information can and should be shared.
Mr. Charles Walker (Broxbourne) (Con): I have great sympathy with the Minister on that point because unsubstantiated allegations can ruin people’s lives. What would be the process for ascertaining whether they were indeed unsubstantiated?
Mr. Bradshaw: That will depend on the evidence.
I turn now to the issue of the Office of the Health Professions Adjudicator. Amendments Nos. 52 and 56 respond to concerns that the piloting of legally qualified chairs might be unfair to individual practitioners who appear in front of OHPA’s fitness to practise panels. Although I am clear that that can be done fairly, we have brought forward amendments Nos. 52 and 56 to ensure that if OHPA makes rules that include piloting provisions, these rules will be subject to the affirmative resolution procedure. That means that Parliament will have the opportunity to debate OHPA’s detailed proposals for the pilot, and will be able to reject them if it is felt that they are unfair.
Amendments Nos. 33, 34, 55, 57 and 59 implement recommendations of the Delegated Powers and Regulatory Reform Committee. They provide that when the first regulations are made under clauses 114 and 115, conferring responsibilities and additional responsibilities on responsible officers for the first time, the regulations will be subject to the affirmative resolution procedure. Finally, amendments Nos. 62, 73, 74, 82 and 83 are technical and minor.
Mr. Stephen O'Brien: Amendment No. 32, which leads this group, would remove the Secretary of State’s power of direction in relation to the CHRE. It is exactly the same as my amendment No. 207, which was tabled at the Commons Committee stage. The Government conceded after the point was raised again by my noble Friend Earl Howe. Of course, we welcome it and thank the Government for listening, even if they did take the whole process of the Bill to do so.
Lady Justice Smith told the Committee during its oral evidence sessions:
“it is important, particularly in the health sphere, that the adjudicatory body should be seen to be independent of Government because the Government are a huge customer of healthcare; the biggest customer of healthcare. Therefore, it is important that there should be no suspicion that the Government are in a position to pull strings behind the scenes, as to what goes on. Absolute clarity and absolute independence are really important.” ——[ Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42, Q82.]
The Minister rejected my amendment in Committee on the grounds that there was
“no intention to fetter the body’s freedom”
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