 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Health and Social Care Bill |
Health and Social Care Bill |
The Committee consisted of the following Members:John Benger, Celia Blacklock,
Committee Clerks
† attended
the
Committee
WitnessesIan
Kennedy, Chair, Healthcare
Commission
Anna
Walker, CEO, Healthcare
Commission
Dame
Denise Platt, Chair, Commission for Social Care
Inspection
Paul
Snell, Chief Inspector, Commission for Social Care
Inspection
Lord
Kamlesh Patel, Chair, Mental Health Act
Commission
Chris
Heginbotham, Mental Health Act
Commission
Dr. Pat
Troop, CEO, Health Protection
Agency
Dr. Graham
Bickler, Regional Director, Health Protection
Agency
Professor
Mike Catchpole, Health Protection Agency
Public Bill CommitteeTuesday 8 January 2008(Morning)[Mr. Jim Hood in the Chair]Health and Social Care BillWritten evidence to be reported to the HouseH&SC 10 Medical
Defence Union
H&SC 11 Royal
College of Nursing
H&SC 12
Monitor
H&SC 13 Local
Government Association
H&SC
14 The NHS Federation
H&SC 15
York Health Economics
Consortium
H&SC 16 Healthcare
Commission
10.31
am
The
Chairman:
Before we begin, I have a few preliminary
announcements to make. If they wish, hon. Members may remove their
jackets during the Committee sittings. Will they ensure that in
Committee their mobile phones and pagers are turned off or are switched
to silent mode? I remind them that copies of the money resolution in
connection with the Bill are available in the room. Adequate notice
should be given of amendments. As a general rule, I and my fellow
Chairman do not intend to call starred amendments, including any that
may be reached during an afternoon
sitting.
We are still
in the early days of taking oral evidence in Public Bill Committees so
it might be helpful if I explain briefly what is proposed so that we
can be clear about matters. The Committee will first be asked to
consider the programme motion on the amendment paper for which debate
is limited to half an hour. We will then proceed to a motion to report
written evidence followed by a motion to permit the Committee to
deliberate in private in advance of the oral evidence sessions. I hope
that we can take the motions formally.
Assuming that the second of the
motions is agreed, the Committee will move into private session. Once
the Committee has deliberated, the witnesses and members of the public
will be invited back into the room and the oral evidence session will
commence. If the Committee agrees to the programme motion, it will hear
oral evidence today and on Thursday morning before reverting on
Thursday afternoon to the more familiar proceedings of clause-by-clause
scrutiny. I call the Minister to move the programme
motion.
That—
(1)
the Committee shall (in addition to its first meeting at 10.30 a.m. on
Tuesday 8th January)
meet—
(a) at
4.00 p.m. on Tuesday 8th
January;
(b) at 9.00
a.m. and 1.00 p.m. on Thursday 10th
January;
(c) at 10.30
a.m. and 4.00 p.m. on Tuesday 15th January;
(d) at 9.00 a.m. and 1.00 p.m. on
Thursday 17th
January;
(e) at 10.30
a.m. and 4.00 p.m. on Tuesday 22nd
January;
(f) at 9.00
a.m. and 1.00 p.m. on Thursday 24th
January;
(2) the
Committee shall hear oral evidence in accordance with the following
table:
TABLE
(3) proceedings
on consideration of the Bill in Committee shall be taken in the
following order: Clause 1; Schedule 1; Clauses 2 and 3; Schedule 2;
Clauses 4 to 48; Schedule 3; Clauses 49 to 62; Schedule 4;
Clauses 63 to 89; Schedule 5; Clauses 90 and 91; Schedule 6; Clause 92;
Schedule 7; Clauses 93 to 103; Schedule 8; Clauses 104 to 114; Schedule
9; Clauses 115 to 117; Schedule10; Clauses 118 to 120; Schedule 11;
Clauses 121 to 130; Schedule 12; Clauses 131 to 135; Schedule 13;
Clauses 136 to 148; Schedule 14; Clauses 149 to 154; Schedule 15;
Clauses 155 to 161; new Clauses; new Schedules; remaining proceedings
on the
Bill;
(4) the
proceedings shall (so far as not previously concluded) be brought to a
conclusion at 7.00 p.m. on Thursday 24th
January.
I will make a
few brief remarks as I do not want to take up the time that we would
all like to spend on questioning the evidence givers. I am delighted to
be serving under your chairmanship, Mr. Hood, and that of
Mr. Conway. I welcome the membership of the Committee. We
have some excellent hon. Members who have a great deal of expertise. I
look forward to scrutinising the Bill. It was subject to a very
positive discussion on Second Reading. We have a good representative
group of witnesses to question today and on
Thursday.
Mr.
Stephen O'Brien (Eddisbury) (Con): I add my welcome to
you, Mr. Hood, as Chairman of the Committee, and to
Mr. Conway. We look forward to serving under your leadership
of our proceedings. On behalf of the official Opposition, I, too,
welcome all members of the Committee to the opportunity to
scrutinise the Bill, which is important in terms of the health and
social care of people in England and Wales, and which, at times,
touches on other legislative areas and jurisdictions of the United
Kingdom.
I reiterate that the Second
Reading debate was a positive introduction to the Bill, and I am
pleased to see the witnesses available to us in the first three
sittings, negotiated between the two Front Benches, out of a total of
12 sittings for the scrutiny of the Bill. Three sittings for witness
evidence seems to be appropriate and reflects the importance and
seriousness that all of us across the House place on the views of those
who have an interest in these matters. I am pleased to see that, as
noted by a number of people, the negotiations successfully led to what
is now proposed as the programme motion for the list of witnesses. That
includes the National Childbirth Trust, which, crucially, will be
available to us to discuss the issue of the health in pregnancy grant.
I had hoped for opportunities to hear from Monitor, the National
Institute for Health and Clinical Excellence and a number of others,
not least the Patient’s Association. That did not prove
possible, although we hope that their advice will be available to
members of the Committee during the scrutiny of the Bill.
Question put and agreed
to.
Ordered,
That,
subject to the discretion of the Chairman, any written evidence
received by the Committee shall be reported to the House for
publication.—[Mr.
Bradshaw.]
The
Chairman:
Copies of any memorandums that the Committee
receives will be made available in the Committee
Room.
Ordered,
That,
at this and any subsequent meeting at which oral evidence is to be
heard, the Committee shall sit in private until the witnesses are
admitted.—[Mr.
Bradshaw.]
10.38
am
The Committee
deliberated in
private.
11.3
am
On
resuming—
It is an
interesting new process that we are now engaged in and we are on a
learning curve, I assume, in all parts of the Committee.
Could I ask our witnesses to say
who they are and who they represent and then we will
proceed.
Anna
Walker:
I am Anna Walker, chief executive of the
Healthcare
Commission.
Ian
Kennedy:
I am Ian Kennedy, chairman of the Healthcare
Commission.
Lord
Kamlesh Patel:
I am Kamlesh Patel, chairman of the
Mental Health Act
Commission.
Chris
Heginbotham:
I am Chris Heginbotham, chief executive
of the Mental Health Act
Commission.
Dame
Denise Platt:
I am Denise Platt, chair of the
Commission for Social Care
Inspection.
Paul
Snell:
I am Paul Snell, chief inspector of the
Commission for Social Care Inspection.
The
Chairman:
Before I move on, a question to all means to
each organisation, so please chose between yourselves who speaks and
answers.
Q
1
Sandra
Gidley (Romsey) (LD): This is a question to all. Do you
agree with the decision to create a single integrated inspectorate for
health and social care? Perhaps we could start with the Healthcare
Commission.
Ian
Kennedy:
I think that creating such
a single regulatory body presents significant challenges. I will
identify four: first, the rationale of the Bill needs to be clear, and,
in my view, it is not yet clear. Secondly, the costs have to be
understood, and, in my view, they are high. Thirdly, the momentum
gained in caring for the interests of patients and those who look after
them must not be lost, and it is in danger of being lost by such a
significant upheaval. Fourthly, risks of harm to patients must be
understood and prevented during the process of creating such a body.
Those are my four points.
Lord Kamlesh
Patel:
I suppose, as the Mental Health Act
Commission, we are in a sense a very different beast to the other two
organisations. We are not an inspectorate, we are a visitorial body.
The group of patients that we look after are very different to your
run-of-the-mill patients in health or social care settings. These
people are detained compulsorily under the Mental Health Act. They are
there because they have to be there, sometimes for their own good. The
level of treatment that we see for some of these people is very poor,
as you can see from the evidence presented.
To coin a phrase from one of my
colleagues, we are a reluctant bride in this process. There are some
benefits to be had in potentially having more teeth, although we have
run for the past 25 years without any teeth, and we have managed on
persuasion alone. There are potentially more resources for a very small
organisation like ourselves—our budget is £5.5 million,
and that includes second opinions; it is tiny in terms of the bigger
picture. There are going to be no cost savings by merging us with the
other two organisations. There are a number of issues for us that make
it more palatable. We outlined six in our evidence, but I will raise
two or three.
One is
around visiting long-term patients. We have developed a methodology
over the past 25 years in how we visit and interview detained patients.
We have 109 public appointees, people from various
backgrounds—health and social care, lay members and service
users—all with expertise and experience of mental health law and
how to relate to people detained under the Mental Health Act 1983. We
visit at short notice or unannounced and we work with organisations.
Unfortunately, on a small resource—I am talking about only 15
full-time equivalent staff, people work 24 days a year for us—we
find up to three serious abuses of mental health law every single week.
I could go through some examples later of fairly serious abuses of
mental health law, so we need that visiting programme to continue. In
any environment where the sole priority is not just detained patients,
but all health and social care, that can easily be lost so we must have
constant daily visiting. We interview some 6,000 patients a year, we
look at over 6,000 documents a year, and we visit every ward in the
country once every 18 months. That is key.
Two brief points on staffing: we
have a very small secretariat, but the staff have around 250 years of
experience between them. They offer excellent expertise in one
particular area, and that should not be lost. You can pick up the phone
and ask us on any day about any ward in the country that has detained
patients and we will be able to tell you about it. I worry that on 31
March 2009 that will be lost unless safeguards are put in place to
ensure it does not
happen.
Q
2
Sandra
Gidley:
I think that we will be picking up
on some of those concerns later, thank you.
Commission for Social Care
Inspection?
Dame
Denise Platt:
I think that CSCI’s position is
well
known.
Dame
Denise Platt:
On the record, we do not think it is
the right time to bring together the Healthcare Commission and
ourselves, so soon into the programme of regulatory reform that we were
set up to deliver. I base that on the number of reforms that have taken
place since 2002 in the regulation of social care. We had just begun to
get to grips with it and make some impact on both the quality of
services out there and also on helping people’s voices to be
heard. We do not want to see that progress lost in the new
arrangements.
The
people who use social care services are a neglected constituency and
they are in a powerless position as consumers of those services. As a
commission, we have tried to amplify those people’s voices and
make their concerns heard. Our concern is that in such a big regulator
as the new Care Quality Commission is likely to be those
people’s concerns will be lost again, and those voices will
become whispers against the much louder, articulate voices that will
argue about mainstream health care services.
There are four things that we
want to see as the Committee progresses with the Bill. We want a strong
social care focus to be retained; we want to build on the progress that
we have made—particularly on involving people who use
services—and we want the new commission to take a proper
rights-based approach to its work. Although the commission itself will
have a human rights duty, many of the services that we in the social
care commission regulate do not have such a duty, and many residents
and people using services are disadvantaged as a result. We also want
the commission to retain independence and to be able to speak out on
behalf of the constituency, which is the people who use
services.
Q
3
Mr.
Bradshaw:
It may be helpful for the Committee if all three
organisations, particularly members of the Healthcare Commission, could
clarify whether the views they have expressed now mean that they are
departing from their principled welcome to the Bill when it was
published on 24 October.
Dame Denise
Platt:
I think you will find that my original
response to this was not a principled welcome at
all.
Q
4
Mr.
Bradshaw:
I am asking whether your view has changed since
you welcomed the publication of the Bill in your press release on 24
October, or whether you are concerned about specific details of the
Bill. On
24 October, all three organisations welcomed the creation of an
integrated regulator. Has your view changed since then, and if so,
why?
Dame
Denise Platt:
I quite happily say that my position
has not changed on this at all. Our press release reflected the fact
that the Government had made a decision based on their policy
considerations, and therefore, presented with a fait accompli, our role
now is to try to help get the Bill right to deliver the things that we
think are important for our constituency. If you look back to the
statements I made 17 days before the end of our first year as a
commission, my position has been entirely
consistent.
Dame
Denise Platt:
Yes, we broadly welcome the policy
direction, as it was a fait accompli at the time and you were in no
mood to change it. We recognise the tsunami when it
comes.
Ian
Kennedy:
I will happily respond because the question
was put to me. Minister, we welcomed the principle of bringing together
the regulation. We did not necessarily welcome the fact that it would
be done at this time and in this way, and that is our position. Since I
wrote the Bristol report, it is my position that ultimately, bringing
together health care and social care regulation is desirable because
the citizenry do not know, and care less, under what system they are
being looked after—they want it to be seamlessly well-organised.
It does not follow from that, and neither was it our position then or
now, that one needs the legislative scheme that is being brought
forward. The principle is right; the timing and the content warrant
further consideration.
Lord Kamlesh
Patel:
From our point of view as well, the principle
is right. We must ensure that our particular interests in respect of
detained patients are safeguarded. We have spoken to the Minister
several times and listed some of the key issues around visiting and the
way in which we monitor the Mental Health Act. As long as those are
retained and strengthened, we would support the
Bill.
11.15
am
Q
7
Mr.
O'Brien:
Picking up on Dame Denise Platt’s point,
all of us are dealing with a Bill that now exists and we cannot rewind
the clock, despite the urging of the leader in today’s
Financial Times, which seems to suggest that the Bill should be
abandoned. I want to direct my questions to CSCI and the MHAC. They
have both expressed concern that the new commission will be dominated
by its health care responsibilities, and may neglect social care and
its duties under the Mental Health Act. What changes to the Bill, now
that we are presented with this, would you like to see to help prevent
that from happening? At the same time as you are considering your
answer to that, perhaps you can also ensure that we have an idea about
where in your current work you have a fear that these will be lost in
the merger.
Dame Denise
Platt:
One of the challenges of the Bill before you
is that it is a piece of framework legislation. As one of my colleagues
put it, there is a floor plan, but we do not know whether it is a
bungalow or a skyscraper in Canary Wharf. A lot of the devil will be in
the detail of the legislation that is to follow. Our concerns in social
care are that NHS services and private hospital facilities are places
where people receive treatment. The 24,000 social care residential
facilities that we regulate are places where people live—they
are their homes—or services are delivered to people in their own
home. So in considering how the framework outlined in this Bill can
accommodate the registration of a large 1,000-bed acute trust such as
Jimmy’s in Leeds, a six-person learning disability home, a
one-person adult placement scheme or a domiciliary care service
employing fewer than 30 people, it is difficult to get from the wording
of the Bill how those regulatory responsibilities will be carried out.
We either have under-regulation in one area, or burdensome
over-regulation in another. Although we have concerns about social care
being heard in the new organisation, the formal regulation of social
care will form the largest part of the activities of the commission in
the day-to-day work that it does.
In the first instance, we think
that it may be necessary to have some specific structural safeguards to
ensure that the social care aspects of our commission’s work are
not overlooked, in the same way that disability interests retained a
focus in the new Equality and Human Rights Commission. That is in the
context of the Equality and Human Rights Commission wanting to
integrate all its work but retain a specific
focus.
We think, too,
that as you discuss and amend the Bill you will have to look at the
proposals in terms of both health and social care and, specifically,
the new enforcement powers in the Bill. We have wanted a wider range of
enforcement powers to assist us in our work because at the moment the
process is too elongated. There are not sufficient short, sharp shock
measures to stimulate improvement, and these processes can go on for a
very long period. We know that the Care Standards Tribunal also
supports new enforcement measures that can abbreviate some of those
processes, with proper safeguards for providers. We welcomed the new
enforcement powers in the Bill because they give us the armoury for
prompt, proportionate and timely action. However, those powers may not
be appropriate if you are an acute hospital looking at a ward. So to
amend those powers from a health service interest might actually take
away a lever that social care needs. We would urge you to look at the
enforcement powers with
care.
We are also very
concerned that some of our functions are dilute and become permissive
in the new commission. We give as an example the undertaking specific
reviews into aspects of service, such as the report that we did on time
to care, which was on domiciliary care services. It is not clear to us
why the function cannot be transferred from the start, and why it is
going to be put into abeyance for a year—perhaps longer. Nor can
we see why the carrying out of reviews has been downgraded from being a
requirement—a duty— as it is at the moment, to a
permissive power.
The principles of public service
inspection from the Cabinet Office talk about the need for inspection
to generate data and intelligence that enable departments more quickly
to calibrate the progress of reform in their sector and to make
appropriate adjustment. We think that special studies do exactly that,
so we cannot see why that function is watered down.
The Bill is also weak on
informing the public. There is no requirement to publish inspection
reports; those may be made public, but there is no requirement. We
think that all our inspection reports should be public. Also, the Bill
does not put enough emphasis on involving people in the activities of
the new commission. We have tried to involve people in all aspects of
our work—not just by consulting or taking account of people, but
by involving them in our policy making, our inspection activities and
how we design our work. All of that is really underplayed in the
Bill.
I made a point
earlier on the human rights legislation, about the particular services
that we regulate not having a public duty. There really may need to be
some structural support to help the commission to take a human rights
approach, particularly in those areas where others do not have the same
sort of duties upon them. So again, some structural underpinning may be
needed in the first instance. I could go on, but I will not because we
still want to say a few things.
Q
8
Mr.
O'Brien:
I am very grateful, and before the MHA replies I
will ask a supplementary so that they can help to cover this. Is it
both what is and is not in the Bill that causes you concern? Also, do
you think the expected £60 million saving to the £140
million overall cost—the figures now being reported—are
the sort of numbers that you expect to recognise in what we will see in
future? The Healthcare Commission might also like to comment on that
particular aspect.
Lord Kamlesh
Patel:
If I start, Chris can contribute as well. You
asked specifically, “What changes to the Bill?”, so I
will focus on tightening the Bill rather than on some of the process
issues that we are concerned about. In theory, we are lifting the whole
of the Mental Health Act Commission’s legal duties under the
Mental Health Act and transferring them under this Bill. People should
be saying, “What is the problem, when all of the legislative
protection that you had is moving into here?” I suppose the
difference is that we are an organisation focused on one client group.
Our sole priority is detained patients.
All our resources and thinking
are on the safeguarding of those patients, so we interpret that
legislation in a particular way to ensure that they have full
protection—that is, mainly, by our visiting programme. The fear
is that we will get lost in a larger organisation. If there is a health
scare of some kind, then you might stop visiting. I will give you some
examples from what we see on a day-to-day basis; I keep talking about
the evidence, and I am not sure whether you have the evidence that we
have presented to the Committee.
When going into a ward, since
this is not a bureaucratic process and there are no teams of us going
into organisations to demand lots of paperwork and staff time, an
individual simply goes in based on our understanding of the ward or
unit and interviews
detained patients. Lots of the issues arise when interviewing those
detained patients who do not want to see us. At our conference last
month, I gave 100 commissioners two minutes to give me just one thing
that they had seen that had disturbed them within the previous months.
Examples were given of a male member of staff using his mobile phone to
photograph a naked woman patient in the bath; of allowing a disability
patient to be restrained, and his arm broken with two fractures; of a
patient who was HIV-positive having his razor used by other patients on
the ward; of over-occupancy by 100 per cent. in something like 40 per
cent. of London hospital wards; and of cockroach and mice infestation
throughout. In two minutes, over 100 such examples were given of what
happened in the last six months of 2007. Only by visiting these places
can we address these
issues.
The point,
which I am getting to, is that we need something in legislation to
ensure that that visiting process does not change and is safeguarded. I
know how difficult it is to stipulate in legislation that you will
visit A, B and C, but we need to tighten that process. Do you want to
add to that before I go on to the other
points?
Chris
Heginbotham:
I was wondering whether we might just
pick up the six key points that we have set out in our
evidence.
Chris
Heginbotham:
It is addressing that point. Lord Patel
of Bradford spoke about visiting. One of the things we would like to
see in the legislation, if possible, is the right sort of wording to
ensure that the new organisation undertakes a visiting programme,
frequently and regularly, to all wards of all establishments that take
detained patients. Detained patients are among some of the most
vulnerable people in the country and we need to ensure that the
legislation points the organisation toward providing the resources and
time to undertake that function.
One further area that we would
like to see strengthened relates to anybody who is deprived of their
liberty, either under the Mental Health Act or the Mental Capacity Act
2005. We do not feel that the legislation as drafted gives sufficient
attention to the monitoring of the deprivation of liberty under both
Acts of Parliament.
A
second area that we would like to see strengthened within legislation
is the involvement of mental health service users or, indeed, patients
in health and social care, within the processes of the Care Quality
Commission and regulation. If that could be put into legislation in
some way, we would feel that to be very beneficial.
Thirdly—we may want to
come on to this point with CSCI and the Healthcare Commission, which
may have questions on it—we would like to see adequate
organisational and personal accountability at board level for the
monitoring of and reporting on the needs and rights of detained
patients. How that is to be done is perhaps a subject for lengthy
discussion, but we believe that there is a need to place personal
accountability on the chair or the chief executive, or
possibly on the board collectively, to report to Parliament and the
Secretary of State on the rights and needs of detained
patients.
Fourthly—this is perhaps
one of the most important areas—we would like to see the Bill
strengthened in relation to statutory notifications of information to
the Care Quality Commission on the way in which detained patients are
treated. Specifically, this refers to the admission and discharge of
patients and a number of factors relating to their care and treatment,
such as a notification of deaths of detained patients and any death of
a patient that is notified to the coroner—in other words, not
all deaths of all patients, but deaths of detained patients and those
where there are specific circumstances that require a notification to
the coroner.
There are
a number of other areas of notification that we think very important,
but all admissions, discharges and deaths—with information on
age, sex, sexual orientation, faith and ethnicity, as well as on
disability status—need to be available to the Care Quality
Commission to enable it to do its job correctly.
Lord
Kamlesh Patel:
May I just add to that? It is such a
crucial area because it is in regulations in the Bill at the moment. We
know from experience that this information is not just simply
collected. If you look at the mandatory requirement to have ethnic
monitoring for all in-patients since April 1995, it is appalling in
terms of how we undertake it. There is about 46 per cent. accuracy, and
we know that we can change that because we have done it at 100 per
cent. If this was a statutory requirement and these were bits of
information that you would need in order to care for a patient anyway,
it would not be an extra burden, but it is information that would allow
us to monitor trends, movements, how many children are placed on adult
wards and how patients are coming into and out of the system. It is
crucially important that this be in the Bill as a statutory
requirement.
11.30
am
Q
10
Mr.
O'Brien: I do not know whether it would be helpful to
short-circuit slightly the very helpful set of points being made, but
an amendment has been tabled which calls for a review to Parliament on
a regular, and indeed annual, basis. Now it is a possibility that one
could actually prescribe what should be contained within that
review—which in itself would command what needs to be
done—so I do not know if that helps in terms of whether that
would be an appropriate mechanism by which your points could be
delivered?
Chris
Heginbotham:
I think that would be helpful, but it
perhaps either does not go far enough or is a slightly different issue.
Clearly it is very important that Parliament receives a regular review
based on hard factual information as well as visiting by inspectors or
people similar to our current commissioners, but I think what we are
also saying is that we would like to see that there is a statutory duty
on all providers of mental health services to provide a set of
information regularly to the Care Quality Commission. That would cover
all deaths of detained patients and those notified, as I have
mentioned; all serious and untoward incidents; all homicides by
detained patients or informal patients; all incidents of serious injury
to patients, however so caused; all formal admissions and discharges,
including discharges to community treatment orders under the new Mental
Health Act 2007; and all mental health review tribunal decisions. If we
had that information on a regular basis, it would enable the Care
Quality Commission to monitor the way in which care is being provided
much more effectively, and provide an opportunity for the Care Quality
Commission to focus its activity where the majority of detained
patients are; to be able to look at the needs of those patients, and
perhaps to pick up trends where there are problems emerging in
particular
services.
Q
11
Mr.
O'Brien:
So, if I fully understand your
organisation’s view on this, it is that, while some of this is
currently under regulations, you believe that without it appearing in a
more upfront legislative manner—in primary legislation—it
is not sufficient to get to where you think it ought to
be?
Lord
Kamlesh Patel:
Currently, we have no access to this
data; we request it from people. So we find out, because of the
goodness of those service providers’ hearts in telling us, that
300 children are placed in adult wards every year. We do not know if
that is the tip of the iceberg or its entirety. We know that black
patients are twice as likely, or four times more likely, to be
detained. We do not know if that is the tip of the iceberg or
not.
Q
12
Mr.
O'Brien:
Just to round this off, I notice that the
healthcare commissioner was nodding. Does he want to react to some of
the points that were just raised, and also is there any help he can
give us on this expected costs
idea?
Ian
Kennedy:
I will let Anna Walker speak because she
knows more about this than I do; I will merely say that any observation
Lord Patel makes about information is absolutely crucial and the whole
system of modern regulation should be, as far as it is able to be,
built upon the supply and analysis of data, but of course MHAC’s
special circumstances require also the need for visits and we think
that is entirely right.
Anna
Walker:
It might be helpful for me to make two
points. On the question of costs, there are two aspects. The Government
have looked quite rightly for some savings—it is right for any
organisation over a period of time to make savings—and we have
met their target on savings. As far as the Care Quality Commission is
concerned, it will need to be resourced to do the job which Parliament
sets it.
I would like
to make a point that backs Dame Denise Platt’s point, which is
that the Bill you have in front of you provides a framework but the
devil is in the detail over regulatory systems and there are at least
two important areas, which are crucial to what the new regulatory body
is going to cost, which have yet to be fleshed out. One is the scope of
the regulatory structure; it is health and social care, and I think the
definition in social care is a great deal simpler—I am not
suggesting that it is simple per se—but on the health care side,
we currently have two systems: one to regulate the NHS and one to
regulate the private sector. What we do, in terms of regulation in both
of those, is fundamentally different. So the costs for the Care Quality
Commission will depend on what, at the end of the day, is caught in the
scope of regulation.
At the moment, the scope of
regulation would be defined under clause 4, and we actually think it is
very important that the Committee satisfies itself as to what would be
within the scope of regulation. Our argument is that what needs to be
within scope are issues which cause risk to patients.
At the moment we have a
mismatch, where most primary care in the public sector is not caught in
regulation and we believe that what is caught in regulation in the
private sector is over-detailed. That is a specific health care
regulation issue.
The
second issue that will define a great deal of the cost for the Care
Quality Commission will be what is in registration requirements and
again, that is left to be defined under regulation—clause 6, I
think it is in that case. We believe, and here our points are very
similar to CSCI’s, that it is important to catch the right
issues, and not too many of them, focusing on outcomes, but certainly,
as far as health care is concerned, because in some cases you are
dealing with very big systems, you need to ensure that the right
systems for assuring clinical quality and safety are clearly
caught.
One important
point I would like to make at this stage, if I may, is that we are very
perturbed that at the moment the administration requirements explicitly
exclude catching work on health, as opposed to health care. As,
nationally, we believe, on behalf of those who use health care
services, that people’s health needs to be looked after as well
as their health care, we think a specific amendment needs to be
addressed in that
respect.
Anna
Walker:
The registration
requirements explicitly say that they cannot bite on public health
issues, only on health care issues. We think that is, in principle,
wrong. I do not want to go to a health care organisation that does not
look after my health as well as my health
care.
Q
14
Mr.
O'Brien:
I am sorry to pursue it, but just to be
absolutely clear, do you believe that comes within the ambit of the
clause 6
definitions?
Anna
Walker:
The devil really is in the detail here, but
we believe that the way the powers to define registration requirements
have been drawn up excludes public health issues. That is why we think
there are some issues that need teasing through
here.
Q
15
Mr.
Bradshaw:
Just a brief question that I think brings
together the latest round of questions and answers, and that is whether
the witnesses see that there may be an inconsistency between their
desire for more prescriptiveness on the face of the Bill and their
desire for the new commission to be flexible and independent and plough
its own furrow. I will just leave that question
hanging.
Anna
Walker:
If I could just make a quick response, the
point we are seeking to make is that as the Healthcare Commission we
are very conscious of how
much regulation there can be in this area and we do not want
over-duplication. So our argument is not for prescription, but for
getting the framework right so that the right level can be applied. In
certain instances, we do not believe that framework is right yet. May I
make one other
point?
Q
17
Mr.
O'Brien:
Before that point, and I suspect that Dame Denise
Platt might want to comment on this as well, is it the ambit—the
scope—that you are seeking this clarification on, rather than
the depth of the detail of process
implementation?
Anna
Walker:
There is a specific issue on scope, on what
is covered for regulatory purposes in health care, and it is greater in
health care than elsewhere. Also, on a specific area of detail, we
think the registration requirements—the basic
requirements—should allow health to be captured as well as
health care. That is a very specific
detail.
Lord
Kamlesh Patel:
I think generally, in response to the
Minister’s question, that of course you want to give flexibility
to the new organisation, the new chief executive and the chair and the
board, but for our purposes, we want to be very specific about two or
three particular things. We want them on the face of the Bill because,
from our experience of what might happen to this group of people who
are so vulnerable, their issues will not be safeguarded unless
provision is very specific and is on the face of the Bill, in terms of
notifications, in terms of regular, frequent visiting and in terms of
some accountability to Parliament from a particular individual or the
board. On those two or three areas, we will be specific. It goes
without saying that all of us agree that the human rights principle and
the involvement of service users should be there and any organisation
would agree with
that.
Dame
Denise Platt:
I do not want to add much to what my
colleagues have said. I do not see that there is a conflict in what we
have described, which concerns clarifying certain aspects of the Bill
to make it more effective in the very challenging job that it is to
take on. There is flexibility and flexibility, and if everything is
left to regulation that is the ultimate flexibility. It is also the
ultimate straitjacket because it depends on how the Secretary of State
then frames the regulation. We are anxious to get the balance
right.
The
Chairman:
Mrs. Walker, you should not be
invited to respond if you do not want to do so. The hon. Gentleman
seems to be assuming that you want to ask
questions.
Mr.
O'Brien:
Mrs. Walker did indicate that she
wished to do so, but I was conscious that I cut across
her.
Anna
Walker:
There is a point I would like to highlight.
There has been a lot of discussion down the table on the important
question of safeguarding the human rights of a vulnerable group. I
would not like the Committee to be left with the impression after this
part of the discussion that there is a dichotomy between the Mental
Health Act Commission, social care and health care.
A very great deal of our work
concentrates also on those who are particularly vulnerable and on
safeguarding their rights. They might not be formally detained, but
people with learning disabilities or mental health issues and older
people, particularly in hospital, all raise the same issues. In those
circumstances, we visit systematically in the way in which the Mental
Health Act Commission and others do. The reason why I made that point
is that safeguarding a particularly vulnerable set of users, together
with visiting, is an issue that runs across all three of our
organisations.
Q
18
Sandra
Gidley:
I want to pick up on the Minister’s point
about independence. In the CSCI submission, concerns were raised that
the new body will not be as independent because ministerial approval is
required for a range of matters. Will someone from the CSCI comment on
whether the new body will have greater or lesser
independence?
Dame
Denise Platt:
It is difficult to know that. I shall
comment on the issue in the context of the specific reviews. In our
experience, specific reviews are where we bring together a range of
intelligence and we ask the next question of the policy or the
circumstances. For example, we will publish a report this month on what
happens to people who do not meet eligibility criteria in social
services. Before Christmas, we published a report on risk and restraint
in care homes, and the dilemmas in care that raised for care staff and
where the lines should be
drawn.
It seems to me
that the new commission should have the powers and the duties to
identify those issues and comment on them as emerging issues, and to
identify them themselves rather than in advance seek the agreement of
the Secretary of State and go through a whole process that might delay
looking at an issue that needs immediate attention. We also feel that
the new commission should account directly to Parliament; it should be
accountable to Parliament, with proper scrutiny of its activities. To
that end, we think the chair and the chief executive should go through
a public scrutiny process as proposed in the Green Paper for senior
public appointments. It is sufficiently important an appointment to go
through that sort of
scrutiny.
We think that
the independence should be clear. The body should have the opportunity
to think, initiate and comment and to be accountable to Parliament for
what it does.
Dame
Denise Platt:
I am not sure that the Bill presents
that sort of independence. There are a lot of references to
“with the agreement of the Secretary of State”. Of
course, any body has to be accountable to its sponsoring Department and
to agree resources and programmes of activity. We are not saying that
should not happen, but it feels slightly more like an arm’s
length body than an independent, non-departmental public
body.
11.45
am
Q
20
Angela
Browning (Tiverton and Honiton) (Con):
Lord Patel and Chris Heginbotham have given us a very clear outline
today of the work of the Mental Health Act Commission. Under the
umbrella of the Care Quality Commission, would you envisage that mental
health will be dealt with by a specific team of people or a separate
department in order to maintain the expertise that is clearly
essential? How in practice would you see this happening under the new
umbrella
organisation?
Lord
Kamlesh Patel:
In some sense, because of the
expertise that is required, we would possibly see a director of mental
health who would have responsibility, reporting to the board, to
oversee all mental health practice. I think that is very important,
given the specific remit around the Mental Health Act and the
monitoring of detained patients.
We would probably want to see a
separate team that influences the rest of the organisation. If it is
going to be one organisation, what you do not want is a silo approach.
In relation to detained patients, there is a process that has to be
followed whatever the structure of the organisation, which is why we
are so keen to have safeguards in
legislation.
Q
21
Angela
Browning:
Further down, regarding the people who actually
go to hospitals and carry out inspections. You emphasised very clearly
in one of your answers how the process is about people and how they
pick up from their experiences specific wards, specific conditions and
so on. They start to identify, as opposed to someone who just goes in
with a tick box and ticks it all off one way or the other. How do you
envisage retaining that expertise at that
level?
Lord
Kamlesh Patel:
There is one simple solution. At the
moment we have 109 people who work 24 days a year. You could retain
that expertise. They are public appointees. I would not expect this new
commission to have public appointees in the same way. It would not
work. But you could use a large amount of that expertise as your
inspectors because it would be a shame to lose all the experience that
those people have gathered over the years, working in hospitals, and
their knowledge of the patients and their relationship with senior
managers and just let that go overnight. So if there was a transition
period you could take that vast amount of experience, skills and
knowledge and translate it into part-time inspectors who would keep a
similar remit and visiting
pattern.
Q
22
Angela
Browning:
Could I now come to the next question I was to
ask, which is about elderly people? Anna Walker touched on it, and I
also ask Lord Patel and Chris Heginbotham to keep it at the back of
their minds, because one of the advantages of the Care Quality
Commission is that there are no glass walls. As we know, when we are
dealing with people they do not necessarily have one condition, so
there is this mix of learning disability and mental health.
Coming now to care and
inspection of behalf of the elderly. Do you believe this is going to
improve the quality of care for elderly people, given the demographics
we face with an increasingly elderly population? I wonder whether you
think having these different disciplines working more closely together
is
going to help, or are you concerned that things will become so generic
that specific groups such as the elderly will not see the improvement
in
quality?
Anna
Walker:
What our work at the Healthcare Commission
has taught us is that we have a number of groups of people who are
vulnerable: the elderly, the mentally ill, those with learning
disabilities, children and sometimes people with long-term conditions
who are absolutely dependent on the health care and the social care
that they get.
Ensuring that they get the right
quality of care requires two things. It requires ensuring that there is
a systems approach in place in that organisation which in principle can
deliver what is needed, and then it requires more intensive follow-up
to check it is in place for all people all of the time. That is why I
made the point earlier that I do not think that we are in a very
different position from the Mental Health Act Commission with some of
the groups of users that we serve.
The question then comes whether
there are adequate resources to do that job when it is necessary. As
the Healthcare Commission, we have always challenged ourselves to try
to use information, as well as visiting. With regard to older people,
we have said that if a group of concerns is expressed to us by users,
we will go in and visit on behalf of those older people, so we
constantly challenge ourselves to find the most effective way to use
resources.
Q
23
Angela
Browning:
Do you all agree on the point made by Dame
Denise? She mentioned a report that is being made about people who do
not qualify for support through social care under social services
regulations. Equally, we see with elderly people not just an increasing
population, but a common mental health read-across. Elderly people who
are admitted to trauma wards, for example, usually present not just
with the trauma, but a multi-disciplinary set of concerns. Will the new
Care Quality Commission really improve the lot of these complex cases,
or will we see a more generic service that will not address the
specifics of care for these people?
Ian
Kennedy:
May I respond while Anna thinks of the right
answer?
Q
24
Angela
Browning:
I do not want to leave the witnesses trapped,
but my concern is behind this point.
Ian
Kennedy:
Not at all. First, it is not in the gift of
any regulatory body to improve anything: all it can do is seek to
promote improvement by using its powers and persuasion. My second point
is that we are already working closely, not only with the Commission
for Social Care Inspection and MHAC, but also the Audit Commission and
others, precisely to look into how people are dealt with when a variety
of services are brought to bear on their circumstances. My concern, and
I say this frankly, is that our growing expertise in being able to work
together, drawing on the particular expertise that we have and putting
it together with others, could be in danger of becoming dissipated as
one goes through the process of creating other new organisations. The
greatest danger of all will be if the new organisation, having heard
what Lord Patel, Dame Denise and I have said, decides none the less
that there
is a new way of doing what needs to be done, and three or four years
from now it will perhaps decide what that new way is. My concern is for
people during those four years.
Lord Kamlesh
Patel:
This goes back to the question about
regulations. The irony is that currently, the Mental Health Act
commissioners might go into a ward to see a detained person, and they
will walk past somebody who may be tied up in a chair but who is not
detained, and we can do nothing about it. In the regulations, we could
ask the Secretary of State to allow us to do something—we have
been asking for 20 years and we have not been given that permission,
although it is in the regulations.
Ian
Kennedy:
You don’t need a new
body.
Q
25
Greg
Mulholland (Leeds, North-West) (LD): I want to ask a few
questions about the powers of the new Care Quality Commission. I know
that Dame Denise Platt has made some comments on that, which she might
like to expand upon. I would like to ask the other two organisations
whether they are generally happy with the powers that the new
commission will have. If not, are there any specific changes to those
powers that they would suggest at this stage?
Anna
Walker:
There are three issues that I would like to
focus on. The principle behind the first two is our concern that the
Bill, as drafted, may be focusing too much on the regulation of
providers, whereas the provision of health care is about what care is
purchased or commissioned on behalf of the user as well as the
provider—that is of course also true for social care. We have
concerns about two particular areas. The Bill, as drafted, gives the
new regulator the power to carry out wider reviews. That is welcome,
because it is under that power that we have looked at learning
disabilities, mental health and dignity in care for older people in
hospital, so it is a very important power to us. The difficulty is that
it is limited to providers only. What we find in health care—I
must leave it to others to talk about social care—is that you
can say to a provider, “Look, that service simply isn’t
good enough”, to which their answer can often be, “But we
are not being paid to provide any more than that.”
In order to
get the issue right, on behalf of the user and the patient, you have to
look at a mixture of commissioning and provision; what the primary care
trusts are doing, as well as what the provider is doing. We would like
to see that power for the wider review cover commissioning as well as
provision.
There is a
second issue to which we attach considerable importance. The Bill, in a
very welcome way, has a power to carry out investigations, and we have
carried out a number of significant investigations, as the Healthcare
Commission. Again, however, in this area the presumption is that the
enforcement powers in relation to providers will be sufficient to
remedy a problem. However, when we carried out our work—for
example, in Cornwall, on learning disabilities; or at Stoke Mandeville
and Maidstone and Tunbridge Wells, on infection control—we found
that we could not make recommendations solely in relation to the
provider. It required work by a significant number of local
organisations: the local strategic health authority, the local PCT, or
possibly an independent provider. What we would therefore like to see
in the Bill is the power for the new regulator to recommend, as we have
at the moment, what are called special measures across the health care
grouping as a whole. We notice that in the legislation those powers are
given on social care in relation to local authorities, and to Welsh NHS
bodies, but not to English NHS bodies, so it is that special power in
relation to English NHS bodies. I am sorry; it is complicated, but I
hope I have made it clear. When you have something that has gone
seriously wrong, you need to go in and say that a range of people have
got to do things differently around here.
The final point that I would
like to make, very quickly—it is a very different
point—is that there is a power in the Bill for the new regulator
to carry out certain co-ordination of regulation. This is to ensure
that there is not too much duplication of regulation, and we absolutely
recognise that that issue exists. It exists particularly in health
care, more than in social care. The difficulty is that the Bill as
drafted refers only to those with inspection powers. There are many
regulators and performance managers who do not have or do not use
inspection powers, but do add to the duplication of regulation and
assessment. What we are saying in relation to that bit of the Bill is
that we think that it needs to be re-addressed to ensure that the
co-ordination power has gone sufficiently broadly, and we certainly
believe that it needs to go beyond inspection, which is a very small
part of regulation as a
whole.
Chris
Heginbotham:
May I add briefly to what Anna has said?
We agree with everything that the Healthcare Commission has set out.
First, we would want to see the power in relation to notification of
information. I will not say more about that, but it clearly comes in
here, as well as in our previous discussion.
Secondly, the point about
effective commissioning and the power to monitor the way that
commissioning is undertaken, is going to be especially important, as is
ensuring that the money is available to pay for any necessary changes
and improvements. I want to draw attention to the potential tension
that might emerge with Monitor—the foundation trust
regulator—and foundation trusts, where there are different
incentives at work. That has not yet been mentioned and it is a tension
that we need to be very aware of and the Committee needs to be aware
of.
12
pm
The third aspect
for us is how the registration process will operate and what the
critical features of registration will be. Will registration include
not only economic issues and some care quality issues, but civil, legal
and human rights concerns? We would want to be sure that the threshold
for registration, the ability to meet the registration criteria, was
sufficiently high that there were adequate services available to
vulnerable people—people who are detained but also the others
that Angela Browning spoke about. Linked to that, we therefore want to
see the power of enforcement strengthened to ensure that the Care
Quality Commission could require specific changes if organisations were
seen to be breaching their registration requirements, which would be
set at a fairly high level.
Paul
Snell:
May I comment on the social care aspects?
Supporting Dame Denise’s earlier comments, we support the
additional enforcement powers in the Bill and there are a couple of
examples that I would like to give about how that might be subtly
extended. We have done a lot of enforcement work over the last 18
months to two years to try to refine the way in which we respond to
services that are not performing as well as they might. Essentially,
the problem that we perceive is that we sometimes get caught with a
blunt instrument, between whether a service should stay open or should
close. That is the stark choice that is open, so we are pleased that a
range of intermediate enforcement powers are located in the Bill; the
fixed-penalty mechanisms and the suspension of registration.
I have a couple of things to add
to that. We are keen that the power of suspension of registration would
also enable the new commission to require the service to prevent new
admissions and not take on new people who are using services. We are
sometimes in the position at the moment where it is possible for us to
initiate a proposal of closure, which goes through the normal appeal
mechanisms and can end up with a lengthy period awaiting a hearing at a
care standards tribunal, where that service is able to take new people,
despite the fact that as a regulator we have said that we think that it
should close. Clearly that is not a logical position and we hope the
Bill will address that issue.
My second point is a question
about the Bill: does it sufficiently encourage the co-operation of
local authorities in support of the activity of the new commission? We
know that under the National Health Service and Community Care Act
1990, the local authority has a duty to provide an additional service,
or a new service, when a service is closed. We think it would be
helpful for there to be a duty for local authorities to co-operate in
the closure of a service—providing support during the process of
closure and the reassessment of residents if it is a care home, or of
people who are using a domiciliary care service, and working with the
regulator to ensure the smooth passage of people who are using services
from one service to another, in the event that the service
closes.
My final
point, which emphasises some of the things that are already in the Bill
but is about strengthening those provisions, concerns the sharing of
information: the sharing of information with the public and with local
authorities as commissioners of service, to enable them to make
decisions about which services they purchase and contract with. Equally
important is the sharing of information with the people who are using
the services and their carers, to enable them to make informed choices.
We think that at least as many poor services cease operating because
the people who are purchasing them stop doing so as a result of us
taking enforcement action. Of course, you can only do that on the basis
of good information, good knowledge and, as Dame Denise said earlier
on, the publication of our inspection reports.
Ian
Kennedy:
May I, with your indulgence, add one more
point to Mr. Mulholland’s question about powers? It
is, in fact, one of the oddities that there is one area in which there
are no powers, in which modern regulatory systems really need to
operate: the world of looking at standards and seeing whether they
are being applied, varied or deviated from with a view to then cranking
up action if they are not. Clause 41 is a free-standing clause that has
a reference to a set of standards, but there is nothing else in the
Bill, as I see it, that requires the regulator to have much regard to
those standards or to seek to implement them in any way. If modern
regulation requires the notion of constant improvement—constant
provocation of improvement—by cranking up the standards or by
having within the standards the idea of improvement, and if you have a
registration system that may set a bar relatively low and thereafter
you need to, as it were, promote improvement through standards, it is,
in my view, a power that is not given and ought to be given; namely,
the capacity to use what is in Clause 41 in some way to promote the
general notion of improvement, which is at the beginning of the Bill.
Therefore, it would be worth looking at whether Clause 41 could be tied
either to the registration requirement or to the general notion of
improvement, rather then being free-standing and, therefore, amenable
to being
ignored.
Q
26
Mr.
O'Brien:
Before we move on and particularly while we are
on that point, I would like to ask a quick supplementary. From what I
heard earlier, and particularly in relation to the Clause 41 point that
has just been made, is there shared concern about the delays that have
already been referred to? If the information in the data generated by
the activities that you all currently carry out, and that will be
carried out under the umbrella body, generates this vital information
base—often quite generically through visiting and
inspection—it is a very powerful tool for benchmarking and
upgrading the standards that are applied in these specialist and often
tough areas. Is the absence of being able to go straight to
publication, which is often a powerful leverage tool to get these
things understood in the public mind, as well as in the users’,
rather than going, as it were, in house via the Minister, a worry in
terms of the potential independent power that you have? Going back
seven years, I recall the great debates we had when the community
health councils were axed and the absence, therefore, of the ability
for things such as bedwatch suddenly to be a major standard upgrader
within the health service. I do not know whether brief comments would
be possible from the three
bodies.
Chris
Heginbotham:
We would want the Care Quality
Commission to be able to report fearlessly on anything that it found
was of serious concern—if that is answering your question
correctly. We have always felt that it was essential to be able to put
into the public domain significant concerns that we have. We do that
predominantly through our biennial report under the Mental Health Act
1983. The Care Quality Commission will have a requirement to report
annually on mental health care. At the same time, we would want to see
an opportunity for the Care Quality Commission, at any time, to be able
to report publicly and to Parliament about any matters it finds of
serious concern.
Ian
Kennedy:
Mr O’Brien, your point, if I may say
so, is extremely well taken, but it is a little bit more subtle than
that, because it may turn on what you are entitled to look
at.
Ian
Kennedy:
It depends on what the standards and the
registration requirements are, what the general purview is and what
needs to be done with the permission of the Secretary of State and so
on. Of course, you publish everything that you have done, but a
function of what your powers are would determine what you can
publish.
Dame
Denise Platt:
One of the things that an intelligent
commission and regulator does is make the unusual connections between
pieces of information that are routinely collected and published. They
can cross-fertilise them and ask the next question. When talking about
how people with mental health problems are treated in accident and
emergency, we could add “and when they are discharged to the
community—to a private care home—what is their
support?” It is the ability to take slices of information and
look at them in a different way, perhaps doing additional work that
will illuminate the question you have asked, and to report on it
fearlessly and independently without asking prior permission. That is
an important function of any regulator and I hope the Bill does not
water that down or put into abeyance for a year the capacity to do that
because that would mean our work stopping and starting again, and what
is the point of that?
Q
27
Angela
Browning:
As a member of the Public Accounts Committee, I
just wanted to observe that in recent months the National Audit Office
has done in-depth studies into both dementia and stroke services and,
although its focus is very much the use of public money, other
advantages have come out of those two very detailed reports, which it
was able to make without any permission needing to be granted. It seems
ironic that we rely on the NAO for those reports and that you do not
have the discretion to commission them
yourselves.
Q
28
Mr.
Stephen Crabb (Preseli Pembrokeshire) (Con): Thinking
specifically about the powers of the new commission to issue penalty
notices and suspend registration, it might be helpful for the Committee
if members of the three organisations could outline the circumstances
in which they would expect the new powers to be
used.
Paul
Snell:
The penalty notice is a good example of when
you might visit a care provider and come across a number of instances
when Criminal Records Bureau checks were not in place. You might then
ask yourself the question, “Is this service a safe
service?” Clearly, if the answer is no, it is not a safe
service, that brings into question whether the service should continue
to function.
If the
service is fundamentally a safe service, but it is being managed
ineffectively, that might be an example of when a penalty notice is
used. It must be absolutely clear that the service is important, it
functions well and that its quality is good, but that its potential
safety is being compromised by ineffective management. The penalty
notice gets us exactly to that
point.
Paul
Snell:
The mechanisms are mechanisms of
encouragement. You would make it a requirement and follow it up with a
statutory warning notice. You would
still get to the point at which you would have to say, “Are we
going to close this service or keep it open?” The mechanism is
too long-winded, if it is not sharp enough—if I can exemplify it
in that
way.
Chris
Heginbotham:
May I give two brief examples? In the
first, we might find a small private unit or an independent sector unit
for people with learning disabilities where all the patients are
effectively detained—de facto detained—but none of them
had been lawfully detained. At the moment, our remit does not run to
so-called de facto detained patients, as Lord Patel said earlier. We
found such a unit about a year ago where a large number of the patients
was not allowed to leave. They were locked in their rooms. That is an
example of where we can try to encourage, as Paul said, but where some
form of penalty notice or immediate enforcement would be helpful. Of
course, the Care Quality Commission will enable continuity across
informal and formal patients to be achieved, which we cannot do at the
moment.
Another example
typical of the services we have seen is when
informal—non-detained—patients are held in seclusion. By
definition, if they are being secluded, they are being detained, but
they have not been detained under the Act. When we find that on one
occasion, perhaps we will encourage people to manage the service
better, but if we go back time after time and keep finding that
situation there comes a point when you have to say that there needs to
be a penalty for continuing to treat patients unlawfully and
inappropriately.
12.15
pm
Anna
Walker:
We work under two regimes at the moment, one
which already has penalties attached to it and another, for the NHS,
which has not. Overall, we find our powers sufficient at present to do
what we need to, in the sense that our first approach is to try to
understand what is wrong and what fundamentally needs to be put right.
We would then try to work with the provider to put that right; if it
becomes clear that that is not working—and it may become clear,
both in the independent sector and, sometimes, in the NHS—we
move to more severe measures. In the independent sector there are
penalties, and we are beginning clearly to publicise the issue through
a special measures route regarding the NHS. That is why I attached such
importance earlier to that special measures
point.
Q
30
Richard
Burden (Birmingham, Northfield) (Lab): My questions are
related to the Healthcare Commission, specifically on the enforcement
issues relating to infection control. I understand the points that you
were making earlier about your wish to have oversight over
commissioners as well as providers. I have got that point, but it is
really about the issue of providers.
Anna
Walker:
Yes.
Q
31
Richard
Burden:
The new commission will have tougher powers, as
the Secretary of State made clear at Second Reading—for example,
by closing hospital wards. I am just trying to clarify whether the
Healthcare Commission thinks that those additional
powers are necessary. Did you ask for those powers, because you, Anna,
have just said that you see your current powers as being sufficient?
However, I am also conscious that in your response to the Bill, Sir
Ian, you said that the vision set out by the Department offers a sound
basis for the regulator’s function, and means that the regulator
would have additional powers while continuing to maintain a modern,
risk-based, information-driven approach to regulation. We will come on
to your concerns in a minute but, first, are those additional powers
necessary? I am not sure exactly what you were saying about
them.
Anna
Walker:
They are not necessary, but we will use them
if they are there. If I could just, as a specific example, take
Papworth—where there were some concerns recently about the high
death rate—whose unit was closed for two weeks while we looked
in depth at what was going wrong there. So, we got where we needed to
be without those powers.
Q
32
Richard
Burden:
Are you saying you think that the powers are not
necessary, but that if they are in the Bill they are an additional item
in the armoury, or are you saying that you think they should be
removed?
Anna
Walker:
We do not overwhelmingly need them. The
hygiene code has an improvement notice process attached to it, which is
not the process in the new legislation but is actually very important;
it allows us to go in and say, “Look, there is a problem on
infection control here, and this is what we want you to put
right”. So, it is then working with the grain of,
“Let’s get this issue right”. If they do not do
the work on the improvement notice, we then follow it up at a later
stage. At the moment, we have to make a recommendation to the Secretary
of State for further action on that.
We are making the point that we
have a lot of powers at the moment, given that to get where you need to
be is a question of encouraging people to put in the improvement that
is needed and, if they are really recalcitrant over that, only then
moving to the powers that penalise them.
Q
33
Richard
Burden:
So, if I understand it correctly, what you are
saying does fit with what Sir Ian said in his response. You would not
wish the powers to be used just at the drop of a hat, but to be a
discipline that the regulator would need. You would want to encourage
an escalation approach but, whether or not you would have brought them
in, you are not necessarily saying that you want the powers
removed.
Anna
Walker:
No, that is right. The other point which is
very important here is one I would like to attach to specific cases we
have had. One of the cases that caused us very great concern was the
maternal deaths in Northwick Park. In those circumstances, you could
have argued that we should have closed the unit as a whole, but in
practice, we could not have taken that approach. The reason for that is
that although some women could be absorbed in maternity units
elsewhere, they could not all be, so the issue there was how did we,
with the Department’s help, go in to ensure that women in that
unit were safe? That is a very good example of where we would not have
closed the unit. What we would have done, and what the new regulator
would
need to do, would be to turn again to the Department and say,
“Here we are, with the NHS, we need to put the best possible
maternity consultancy help in here”. Because that is what
actually happened in those circumstances to reassure the women of
London.
Ian
Kennedy:
If I may say so, how you described it
earlier is exactly the case—you need these gradations and
flexibility. To take one example: a solo practitioner in central London
who is doing lasers on women’s faces, or whatever, might be a
particularly good example if you have enough evidence to stand before a
court on a Friday night and say “Close that”—as I
have done. But anybody contemplating that you close a major accident
and emergency unit without considering the consequences is not in a
world that I recognise. You would have to manage that differently, and
Northwick Park was such a classic example; 100 women a week have their
babies there so you are not going to say, “Oh, close the door
and close the unit”. What are you going to do with those
women?
Furthermore,
you cannot even do things that are sufficiently high profile to
frighten women who are going to have their babies there—you must
be able to manage it. We did manage it with the Department in such a
way that there is a new team there which is completely reorganising
things so that when you go there you will be safe, as was the case.
That is the responsible way to do it; that reserve power might be
desirable in some circumstances, but it is not to be used without
recognition of how the real world of the NHS, which is a large,
interactive, technical world, really works. It would be folly
otherwise.
Lord Kamlesh
Patel:
This goes back to what Sir Ian said earlier,
which was that we cannot improve it—we regulate and monitor in a
sense. We would probably like to shut down half the mental health wards
that we visit every week, but bearing in mind that occupancy rates
stretch from 100 to 140 per cent. in most of them, that is not going to
happen.
Q
34
Anne
Milton (Guildford) (Con): Mrs. Walker, could I
just bring you back to an example you mentioned earlier, which was that
of Maidstone and Tunbridge Wells? Do you think that these powers would
have helped the outbreaks of infection there? Would they have altered
the
outcome?
Anna
Walker:
No, because what happened at Maidstone and
Tunbridge Wells was a fundamental breakdown of leadership and
management and the clinical governance processes. What we, the
Healthcare Commission and the new health care regulator, can really
contribute in that instance is spotting those issues before they become
a problem.
This is
where the registration requirements and the standards that Ian was
talking about become important because you want to be absolutely clear,
as we are, as to what organisations need to do to get proper infection
control processes in place. We then need to look at the outcomes, the
information. Are infection rates going up in that area? If they are,
then we go back in and look. At that point, if we find a trust which is
cavalier about putting the right processes in, then the penalties will
be helpful. It is usually more fundamental than that—the team
does not understand the processes it needs in place to solve that
problem.
Anna
Walker:
No, we did have the power. We went in to
carry out an investigation. We started that investigation in 2006, I
think, and right from the beginning we had an exchange with the trust
as to what it needed to do to remedy the situation that it was
in.
Anna
Walker:
No, we did have enough enforcement powers. I
would like to make a different point, as it is an issue that we have
not discussed and was raised in relation to Maidstone and Tunbridge
Wells. The issue is about spotting where there is a problem and going
in. If the trust will not listen, penalty powers should be used.
However, at the end of a process like that, there is often considerable
public anger and concern about what has gone on and I wonder whether
some of the penalty issues need to be recognised in that context. The
maximum fine allowed under the new legislation would be £50,000.
There is an issue about public concern which that measure does not
meet, but it is a different issue from whether we have the powers to go
in and put things right early on.
Q
37
Anne
Milton:
And the public will look to this new body to be
able to stop incidents such as those that happened at Tunbridge
Wells?
Anna
Walker:
Yes, but it is not just to stop them
happening; it is that, if such things occur, there are sufficient
penalties on those who have allowed them to happen under their watch,
and that is a different issue.
Q
38
Kelvin
Hopkins (Luton, North) (Lab): My
question is about inspection. A view seems to have emerged already from
what has been said, but the Bill does not appear to specify a minimum
period between reviews of health and social care organisations by the
commission. Do you envisage any change in the frequency of
inspections?
The
Chairman:
Let me remind witnesses that the guillotine
falls in four minutes, so please keep replies brief.
Chris
Heginbotham:
We think that it is important that
mental health services which take detained patients are visited
regularly and frequently. We are not an inspection body, we are a
monitoring body. We monitor the operation of the Mental Health Act as
it relates to detained patients. We want that to continue and we
believe it is important that the visiting programme is done flexibly
and that if necessary, more frequent visits are carried out where there
are concerns. Our performance indicator is that we visit every hospital
or unit at least once a year, and every ward that takes detained
patients at least once every 18 months. There are some places that we
visit much more frequently, and we would like to see that
continue.
Q
39
Kelvin
Hopkins:
I wish to ask a supplementary question about
residential care for the elderly, much of which has been privatised. In
the past, it was regulated by local democratic control and the ethics
of public service, but it is now driven much more by the profit motive.
Is it right that there should be lighter-touch
regulation of such care homes? I understand that there is the
possibility that, instead of being inspected twice a year, there might
be inspections once every three years. Is that sufficient?
Dame Denise
Platt:
The inspection of residential care homes falls
to the Commission for Social Care Inspection. Two thirds of the
provision of residential care is carried out by the independent
sector—that is the voluntary sector and the private sector. The
public sector is now the provider of the smallest number of services.
In our “State of Social Care” report, we publish
comparisons of how each sector performs against the national minimum
standards that we currently use to inspect services. The level of
performance against those standards has shown the best performer to be
the voluntary sector, behind that comes the private
sector—although when we publish our report this month, we will
see that the private sector is rapidly catching up with the voluntary
sector—and the sector that performs least well against the
national minimum standards is the public sector.
We believe that inspection is
very important. We think that it should be proportionate and that we
should concentrate on inspecting those services which are not doing
well, and encouraging those that are doing well to get on with it. A
range of other information from commissioners, members of the public
and the LINks has been set up to alert us if there is a concern. We
require an annual self-assessment from all care services in social
care, both now and in the future, and that will determine how often
those services are inspected.
Ian
Kennedy:
A modern regulatory system in health care
ought to be based on having information and reacting to that
information. It should be risk-based so that the number of inspections
or visits is a function of the risk, it should not be
stipulated.
12.30
pm
I welcome
Professor Troop to the Committee. We are now eating into the time for
questions.
Q
40
Laura
Moffatt (Crawley) (Lab): Good afternoon,
it is great to see you, Professor Troop. This morning there was,
rightly, emphasis from those who gave evidence not just on the
inspection and regulations, but the health of those involved in the
process. My first question is, do you feel that the measures that are
outlined, particularly under clause 45, are sufficient for the Health
Protection Agency to support the Bill, or would you like to see further
measures or deletions?
Dr.
Troop:
No, we are confident that the new Bill would
enable us to carry out the work that we need. We think that it gives us
proportionate, flexible responses. At the moment we have a rather rigid
way to respond, and the Bill would give us a more flexible one. At the
same time, we have been building in very good safeguards for the
public, so we have taken through with the Department a whole range of
scenarios. As public health doctors, we are the ones who tend to use
the law and advise the local authorities. We have taken
them through a whole range of scenarios in which we may have to act, and
we think that the Bill now responds to all the scenarios that we
presented.
Q
41
Anne
Milton:
The new health protection
information has set out that the measures can be used only in response
to a serious and imminent threat to public health. Who will advise the
Secretary of State about what is a serious and imminent threat to
public health?
Dr.
Troop:
My understanding is that those are the special
powers. Many of the powers of regulation will be there on a routine
basis, and a serious and imminent threat would be if it were a new
severe acute respiratory syndrome or something like that. We would be
one of the agencies that would advise the Department. We are already
the focal point for the international health regulations; we work
closely with colleagues at the World Health Organisation and the
European Centre for Disease Prevention and Control. We are regularly in
touch with all those organisations. We would do a risk assessment and
then advise the Department on whether we thought that there was an
imminent
danger.
Dr.
Troop:
Yes, we have the expertise
in our centre for infection and our centre for emergency preparedness;
we look not only at general infections but at dangerous pathogens and
important
diseases.
Q
43
Anne
Milton:
Do you think that there is any concern about the
interpretation of a serious and imminent
threat?
Dr.
Troop:
I think that it would have to be on a
case-by-case basis. It is a very rare event. If we think about severe
acute respiratory syndrome, for example, in Canada, where they could
see a very serious event unfolding, they passed legislation which
enabled doctors to require people to stay at home if they had been in
contact with SARS. I think that was a proportionate response, and it is
that kind of assessment that we would make. We make assessments all the
time on situations, we do horizon scanning all the time and therefore
we would be well placed and it would have to be on a case-by-case
basis.
Dr.
Troop:
Yes, we have discussed those with the
Department and they fit very well. I think that it gives safeguards. We
would only want to see that kind of action take place in those very
rare situations.
Q
45
Anne
Milton:
If I could just move on, the Local Government
Association has argued that passing local health protection power from
local authorities to the judiciary will possibly slow down the response
to threats to public health. I would be interested in your views on
that.
Dr.
Troop:
At the moment, we have recourse to public
health law. We have checked with our staff—there are probably
around a dozen or so cases per year. This is where we have to require
someone to be moved
into hospital. At the moment, we do the same thing; we go to a JP. We
have not found that that is a problem. If we are going to take those
kind of powers and if we are going to require someone to act in a way
that they think is against their interests, we think that it is right
that that individual and our staff have the backing of a JP to do that.
Our experience is that we can always get hold of somebody in a timely
way and we have not found that to be a problem. My colleagues and I
have all been involved in this situation and I do not think any of us
have found that to be a
problem.
Q
46
Anne
Milton:
The witnesses are nodding in vigorous agreement,
so I assume you are of accord. There is a balance to be found between
responding quickly enough and, as you rightly say, getting a proper
person to adjudicate on the matter, and a JP would obviously have the
confidence of the
public.
Dr.
Troop:
Our experience is that
having the law there makes a lot of difference. We do have situations,
for example, where people with infectious multi-drug-resistant
tuberculosis clearly might cause harm to others. They often have rather
chaotic lifestyles and therefore we have difficulty in persuading them
to go into hospital. If they know the law is backing you, often, you do
not need recourse to the law and they will then be willing to go to
hospital. At the moment we have to go back again to get them to stay in
hospital. This will enable us to do both at the same time, or it will
enable us to require them to stay in a local authority hostel or
something. At the moment, we can only send someone to hospital. This
will allow us to have a much wider range of action, which might be less
restrictive on that individual, which we think is
positive.
Q
47
The
Chairman:
Professor, because of the speedy handover of the
baton, I will now be able to welcome your two colleagues, who we were
not expecting, according to our agenda, but we are delighted to have
them here. If you would just introduce
them.
Dr.
Troop:
I am Professor Pat Troop. I am the chief
executive of the Health Protection Agency and I have been in public
health for many years, working at local as well as national levels. Dr.
Bickler is our regional director for the south eastern region who has
therefore also worked at local, regional and national levels. Professor
Catchpole is from our Centre for Infections and has been a public
health doctor for many years as well, but also, it is in his department
that we have the focal point for the international health
regulations.
Q
48
Mr.
O'Brien:
I would like to ask a specific question which
relates to the subject under discussion. By way of introduction, could
you give a view as to whether, as the Health Protection Agency, you
think the current Bill we are about to look at line by line, both
overall and in the detail you have read so far, has sufficient
reference to and powers for public health generally as an emphatic part
of our overall provision of health and care to the people of this
nation? Then I might come on to a more specific
point.
Dr.
Troop:
Perhaps it would help if I clarified that we
have three national centres, one for radiation and chemicals and two
which deal more with infections, some of which are dangerous pathogens.
Obviously,
therefore, we have a concern about that, and we have a network of local
and regional people who work closely, for example, with local
authorities. Many of our staff are proper officers and therefore act as
agents of local authorities in this field. So from our perspective
obviously this is a key Bill.
We have been supportive of
modernising public health law for many years and many of us have been
encouraging that and we did some development work which we presented to
the Department, which has also been part of the work behind the
proposal.
First, I
think that the advantage to us is that it is an all-hazards approach.
Since we have been in our position, we have been responding to chemical
incidents, radiation incidents—as you know last year—and
infections. The international health regulations are all-hazard and
therefore this reflects much more the modern practice. Secondly, it
allows us a more flexible and proportionate response, as I have said.
At the moment, we have to require people to move to hospital, whereas
it might be more appropriate to require people to stay at home, which
would be less restrictive for them. Therefore, it allows a more
flexible and proportionate response. We think that it maintains the
protection of human rights, which we are concerned about. As we and our
staff work with individuals, we are concerned that they feel confident
that they are protecting the individual’s human rights. As I
have said, our recourse to the law is limited but it is very useful to
have that backing. We have worked a lot with the Department; we have
presented many scenarios and it has endeavoured to ensure that the law
would cover those
scenarios.
Q
49
Mr.
O'Brien:
I am very grateful that you have given us an
opportunity to understand the principle that lies behind your point of
view. Picking up now on the thread of discussion, are you happy that it
is actually JPs who are going to be the people that can force
individual citizens of this country to submit to medical treatment?
Obviously you might not want to pass a judgment as to how draconian or
not you think that is, and on the broad consent of and contract with
people whom, after all, public health is done for and on behalf
of—rather than done to, one hopes. Could you give a view both on
the use of JPs and whether that is a proportionate part of the
approach?
Dr.
Troop:
Yes, I think that, from the Bill, we would not
be able to require people to have treatment; I think that that is
specifically excluded. This is protecting in a public health situation,
so it would be removing people or things or whatever—there are a
number of different clauses in here—to reduce the hazard to the
public. So we would be able to require people to go to
hospital.
As I said,
there are about a dozen cases a year where we cannot persuade someone
to go to hospital and there are other situations where we think someone
might be putting others at risk and they are unwilling to act to reduce
that risk. In those situations, we need the backing of the law, but we
think that it is in the interests of both the individuals and our staff
that they have, I think, the JP backing for that. Also now,
particularly as they can go for appeal—at the moment there is no
appeal if you go to a JP—we are concerned that this balance is
being adequately met. I think that my colleagues would support
that.
Q
50
Mr.
O'Brien:
I understand the use, and perhaps you could draw
a distinction between those things that are a collective hazard, such
as pandemic flu—and you therefore have, if I can put this
brutally, a herd issue—and an individual issue whereby somebody
whom you might describe as having a chaotic lifestyle has taken it upon
themselves, if they happen to be HIV-positive, perhaps, that it is
important to go around biting people if they can, and they therefore
present a serious individual hazard that must impact closely on the
criminal law. So one can try to draw a distinction between herd issues
and individual issues, and how your enforcement powers and the use of
JPs might have application there. Also, who is going to advise the
judiciary as to the appropriate use of its powers once, in effect, you
call upon it to be part of your process?
Dr.
Troop:
In terms of the evidence that we would have to
present to a JP, I think that that is going to come out in the
regulations as the range of evidence we would be required to present.
But that is what happens at the moment. There is also an officer of the
court whom we would contact, who would identify a suitable JP as
somebody who was available. We would put together a package of
information and evidence and that is what we would present. It is an
agent of the local authority, and many of our staff are agents of local
authorities, who would do that. Primarily, they are medical
practitioners.
12.
45
pm
Dr.
Troop:
There are three different scenarios. One is an
individual, where we very often have a situation. There may a small
group—again, under the legislation we would be able to require a
group of people—although that is not a very common situation.
The larger group, in my understanding, comes under new sections 45C and
D, where the Minister can put in place regulations for what we call
imminent threat, where we would advise, among other things, the action
that would be taken. According to the way that I understand the Bill,
the Minister could then enable the commission to say, “I am
sorry. You have all got to stay at
home.”
Q
52
Mr.
O'Brien:
Has some study been done on the way that
interacts with other recent legislation on civil contingencies and
taking civil powers, which I think is what Laura Moffatt’s
question initially hinted
at?
Dr.
Troop:
I am clear that my Department of Health
colleagues have looked at that. Our role has been to look at the
scenarios that we would respond to. Clearly we are also subject to the
Civil Contingencies Act 2004 and we are subject to most of the other
legislation, as well.
Dr.
Bickler:
I think it fair to say that a number of the
scenarios that we put would not fall under the Civil Contingencies
Act.
Dr.
Bickler:
They would not because regional emergency
powers would need to come in then. A lot of our concerns, be they
individual or group, would not be at that
level.
Dr.
Bickler:
For example,
yes.
Q
55
Laura
Moffatt:
Could I ask you to offer us a hypothetical case
where these powers may be used? It would be helpful to Committee
members to have an
illustration.
Dr.
Troop:
At an individual or group
level?
Dr.
Troop:
I have described the one relating to
tuberculosis. From our perspective, that is one of the more common
situations. There may be other situations—for example, an
alternative practitioner using unsafe practice, where we could require
them to go through training or we might be able to seize the equipment
if we felt it was infected and they were not providing us with the
information that we needed, or they were not willing to hand something
over.
There are food
handlers or child minders, for example, whom we might think have E.
coli and who, for commercial or financial reasons, might be unwilling
to stay off work for as long as we would want to make sure they were
free of E. coli before they were preparing food for children. There are
those kinds of situations regarding an individual, although in our
experience it happens very rarely. It is in those situations where we
really felt children that might be at risk where we would want to do
that.
On the herd
question, it is the SARS-type scenario. Where a new and emerging
disease was sweeping round the world or we thought that it was
imminently coming to our country, those are the times we would want to
use those kinds of
powers.
Q
57
Mr.
O'Brien:
For instance, would the increasingly worrying
instances of TB, which are not proving amenable to known controls, be
an
example?
Dr.
Troop:
Yes, and an important disease that was an
unusual one. Our responsibility is often in making those diagnoses. Our
laboratories pick up very rare and unusual diseases. We scan what is
happening internationally and we know what is at high risk. For
example, if someone came back having travelled from a particular area,
we might wish to take powers then. Again, it might be someone who is
reluctant to stay at
home.
Q
58
Mr.
Brian Jenkins (Tamworth) (Lab): I am very glad to have the
opportunity to speak to you on this issue because the break between
local authorities as a health protection originally was, I thought,
brought about because local authorities provided the sewerage system
and because that was one of the big public health issues, so there was
an incentive for a close tie-up there. Now, they no longer provide the
sewerage system, which is provided mostly by companies, and they no
longer provide the water system; they do not have that basic
requirement. The world and the structures have changed.
Now we see, as
was mentioned in relation to public transport, dangerous materials
transported up and down the country on road and rail, and the
tremendous churn of all-day traffic. While we are looking at the issue
of the break and the realignment, are there any other areas where we
should consider realigning because over time, there has been
insufficient change and the power to run something is no longer in the
most appropriate place regarding public
health?
Dr.
Troop:
There have been some things.
For example, we have been clarifying the roles and relationships for
port health, where they have responsibilities, such as monitoring food
that is coming in. As an agency, we have taken an overview of the
public health responsibilities and the medical inspection areas, trying
to get standardised approaches across the country for port health. So
there has been some realignment of thinking
there.
In
other areas, on the ground, our practitioners, the NHS and the local
authorities work very closely together because there are overlapping
responsibilities; for example, regarding food premises. So we work at a
national level with the Food Standards Agency and at a local level with
the local authorities. They have an environmental health
responsibility; we would give advice on contaminated land. So again,
there are overlapping responsibilities, and the key thing is that many
of our staff remain as proper officers for local authorities, but then
local partnerships bring out those different
responsibilities.
Also,
as an agency, we do not have statutory responsibilities. We cannot take
that kind of power, and broadly, we are the ones who give the
professional advice to those who do have those powers; that happens
across almost everything that we do and it maintains that kind of
effective relationship. Graham is the one who works particularly within
a region; have you felt that there any such
areas?
Dr.
Bickler:
I do not think that we have, really. In a
complex world, the quality of the partnerships and the working
relationships is more important. I do not think that we would assume,
as the Bill does not, that significant constitutional changes to the
responsibilities would be needed to provide further
protection.
Q
59
Sandra
Gidley:
You envisage the personal restrictions being used
only very rarely, I gather. You mentioned human rights. I would like to
explore a little further something suggested by the hon. Member for
Eddisbury. He suggested someone who is HIV positive and has a chaotic
lifestyle. If we rewind 20 years to when HIV was new, there were no
drug cures and there was a lot of hysteria, including among health
professionals, would you envisage that, if the powers proposed in the
Bill were available then, they could have been used in a very
restrictive way on a lot of people’s behaviour at the time?
Obviously, that would be quite controversial. In theory, the Bill could
do that. It is hypothetical, but I am trying to work out what would tip
the balance into using those
powers.
Dr.
Troop:
In most situations, if we are trying to modify
the behaviour of a group of people, or work with them on those kind of
issues, we would not use the law because you can sometimes achieve a
counter-productive effect. If you are trying to encourage a group of
people, whether it be to use safe needles or to have safe
sex—whatever it is about—much of that involves working
with relevant groups on the ground, educational processes and so
on.
We would want to use the
legislation only if there was an individual who was behaving recklessly
or was unwilling to co-operate. If two men or women came forward and
said, “We think we may have contracted HIV from an
individual” and that person was unwilling to come forward to be
tested or to give information about themselves, and we thought more
partners might be at risk, we might want to have recourse to law.
However, generally, if we are trying to modify behaviour, the
educational approach is usually more
effective.
Q
60
Sandra
Gidley:
I agree, and that is the sensible and balanced
view, but there was a lot of public hysteria at that time, so could you
envisage a situation in which Ministers might feel under public
pressure to be seen to be doing something and not follow your advice?
Is there a risk of that?
Dr.
Troop:
I would hope not, but there are, I hope,
safeguards built in. First, at an individual level, we
would have to go to a JP and the individual would have the right of
appeal. Secondly, at a national level, again we would give advice,
there would be professional advice and regulations would have to be
laid before Parliament. I would hope that sufficient safeguards were
built in. Early on, when HIV and AIDS appeared, we were not supportive
of it becoming notifiable, because it again turned the issue into
something different, but in fact, it has not been a
problem.
The
Chairman:
Thank you for coming along. I am pleased that we
have had time to say thank you, as we have not with other witnesses. I
hope that you found it useful to meet the Committee; I am sure that the
Committee has found it very useful to question you and to receive your
answers.
Further
consideration adjourned—[Steve McCabe.]
Adjourned
accordingly at t
hree minutes to One o’clock till this day
at Four
o’clock.
|
| |
| ©Parliamentary copyright 2008 | Prepared 9 January 2008 |
