Health and Social Care Bill

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Clause 2

The Commission’s functions
Mr. O'Brien: I beg to move amendment No. 156, in clause 2, page 2, line 1, at end insert—
‘( ) The Commission has the general function of encouraging improvement in the provision of health care by and for NHS bodies and in the provision of adult social care in England.’.
We move to the commission’s functions in clause 2. Even as a trained lawyer, I would have surpassed myself to come up with this. Subsection (1) states:
“The Commission has the functions conferred on it by or under any enactment.”
That obviously does not improve our general understanding. If this is a legislative catch-all, it is unnecessary. Alternatively, perhaps it is based on a concern that the legislation is so framed that we do not yet fully understand the purpose, and that the ability is therefore required to throw at the remit of the commission anything that not just this but any Government might choose to throw at it. That does not seem quite the thorough and rigorous approach to legislation that we would expect of the House, particularly given that the commission is designed to be the successor body to organisations that, it is admitted, already function well. They deserve a little more respect than subsection (1) indicates.
Amendment No. 156 thus puts a general function in the Bill. It really is unobjectionable; I would like to think that the Minister will have no difficulty whatsoever with it. I wish to place on the record that I will not hold him guilty of an overweening pride of authorship—as I frequently have with many of his colleagues—if he will sincerely take points on board in a meretricious way, rather than regarding them as unacceptable simply because they happen to be proposed from this side of the Committee.
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I wish to see, through this amendment, Parliament’s will reflected in our purpose of considering this legislation. It is not merely because the amendment builds, as I was describing, on the well-established practices of highly dedicated people who have already committed themselves to doing good work in those predecessor bodies. After all, we are not here just for the purpose of enacting further legislation, but for our service users—our constituents—to ensure that we are their interface regarding what works best for them. This amendment will give service users the explicit assurance that they need that the regulator is acting on their behalf and not on the state’s—as if the state were somehow more important than individuals. I can think of no Bill dealing with a wider or more vulnerable group in society. Therefore, it is important to ensure a clear purpose here.
Sandra Gidley: When I first saw this amendment, I wondered whether such things did not happen automatically. Then I recalled Anna Walker’s saying on Tuesday that she would sometimes take a provider to task, who then said, “Look, we are just not funded for that service”. She felt that the providers had few powers to affect that. Bearing that in mind, the amendment is probably more useful than I first anticipated.
Mr. O'Brien: I am extremely grateful to the hon. Lady for highlighting that aspect of this amendment’s merit. She has done us a service by drawing on the evidence of Anna Walker, whom members on both sides of the Committee have dealt with and whose evidence deserves the respect that it has generated.
I want to draw in some additional support for this idea. In its written evidence on the Bill, the Picker Institute—whose strap-line is “Making patients’ views count”—notes that such an amendment would also
“Clarify what Parliament wants the Commission to achieve, not just what functions are assigned to it: Parliament should say what the Commission is for, not just what it does”.
It is hardly as if my amendment is one of great or extensive verbiage; it is concise and to the point, but equally importantly, it goes beyond the long title. The institute notes that the amendment would
“give the Commission a clear mandate to act on behalf of patients, service users and the public ... enable the Commission to resolve conflicts of interests between stakeholders”,
“protect the Commission's user-focused decisions from legal challenge.”
Those of us who have had the privilege at some point in our lives of spending many hours studying the law recognise that nothing frustrates more than the ease with which legislators could have rephrased basic wording so that a whole raft of expensive litigation, challenge and uncertainty—because of the ease with which lawyers can use the ultra vires or intra vires point in their arguments—could have been avoided. When looking at legislation, at this point our discussions cease to be of great value; such Committees are often regarded as being informative but not decisive when it comes to the law. The law is what is on the statute.
I do not want to be over-legalistic in my approach, but that is why this amendment is a matter of legal as well as political principle. I hope that it is consistent with reinforcing what the Government seek to achieve. Far be it from the official Opposition to want to help a Government to deliver their programme—it suits us politically should they fail—but it is incumbent on us all to try to make this legislation better and fit for purpose.
Stephen Hesford: The hon. Gentleman says that the proposal is extra to a list of functions, but the amendment refers to “function”. It is therefore another function, rather than a general philosophy. That is the flaw. Will he highlight one instance when any of the bodies that the successor body is to take over from has been judicially reviewed for acting ultra vires?
Mr. O'Brien: I cannot give such an example because, as far as I am aware, no such action has taken place. However, there could be a reason for that. It is 19 years since I practised professionally as a lawyer and, although I have been a qualified solicitor for some time, I accept that we must all be careful to recognise that, in respect of more well-defined bodies with functions, it is less likely that a judicial review for being ultra vires will take place because their specific responsibilities are more defined.
We are discussing a much larger organisation that must encompass the interests of many constituent groups. There will be a danger that the definition is therefore more generic and that it is more likely, when specific circumstances arise, for lawyers to find an argument in respect of ultra vires. I am not saying that is right, but the answer to the hon. Gentleman’s intervention is that I am not aware of such an example, but when trying to analyse what we are moving to, it is incumbent on me to understand the risks of incurring something that we could avoid by simple drafting.
As for “function”, the main thing is that it is difficult to come up with a different word to describe the ambit of operation. Parliament sets the policy framework—the Minister’s point—but it is then up to those who are establishing the organisation to know precisely the ambit of its functions. What will help the hon. Member for Wirral, West is to understand that I am not making a grand, theoretical point. A regulatory body that is no doubt of great importance to the hon. Gentleman and his constituents, and of which we have had a good four years’ experience, is Ofcom. It has a similar principal duty under section 3(1) of the Communications Act 2003, which states that
“It shall be the principal duty of OFCOM, in carrying out their further the interests of citizens in relation to communications matters; further the interests of consumers in relevant markets, where appropriate by promoting competition.”
We are absolutely clear at that point about the organisation’s overall remit and ambit. We have no difficulty with it because it has made it much easier for all of us, both as legislators and as representatives of those who sent us here to speak for their interests, to understand its ambit and remit. It is clear that the amendment has a good provenance and a good precedence, which is why I feel with some conviction that it should commend itself to the Minister.
Let us consider clause 105(3) of the Bill in respect of the Council for Healthcare Regulatory Excellence. It states that the
“main objective of the Council in exercising its to promote the health, safety and well-being of patients and other members of the public.”
As we can see from clause 129, the National Health Service Act 2006 imposes a duty on primary care trusts to
“secure continuous improvement in the quality of health care”.
In their response to consultation on “The future regulation of health and adult social care in England”, the Government stated that
“The Care Quality Commission(‘s)... priority will be to safeguard service users and help improve their experience of health and adult social care services.”
They expect:
“Patients, service users and the public as a whole therefore look to... regulators to ensure the services they use are safe and of good quality.”
I could not have drafted it better myself. There would be no difficulty in adding that to the underlying concept of the Bill. I hope that my amendment in its very crisp form can pick out what the Government have already said that they regard as the primary function and overall ambit of the commission.
The Picker Institute called for the Bill to have a mandate that the Care Quality Commission contributes to the continuous improvement of the quality of health and adult social care services, and the role of the CQC in improving standards is flagged up explicitly by the Secretary of State in his foreword to the response to the consultation. Although commissioning is the principal mechanism that continually drives up the quality of health and adult social care services there is a role for a regulator.
A general statement of function—the word was put into issue by the intervention by the hon. Member for Wirral, West—would give some indication of what the Government expect to lie within, and without, the remit of the CQC. Such an understanding would aid the Committee and both Houses in their deliberation of a Bill that leaves so much to secondary legislation. It would also, to some degree, restrict the ambit of those who might seek to put new responsibilities on the commission at a later date. When all this is done and dusted and we have some years of experience, people might regard this as being an area where they could shuttle in something they did not think of originally.
I have more evidence that I could adduce and perhaps I will have another chance to put it before the Minister, if he finds himself so far not persuaded by what I regard as an unobjectionable case. I hope that he is willing to accede to the amendment, and I also hope it will not concern him that, in the end, he did not author it.
Mr. Bradshaw: I certainly do not find the amendment objectionable; I just find it rather puzzling, because clause 2(5) makes it quite clear that we expect the commission to perform its functions in a way that will encourage the improvement of services. The amendment is therefore not objectionable in the least, but it is unnecessarily duplicative.
My other concern is that I think it important that we do not send out a message from the Committee that the commission alone is tasked with improving services. We are establishing the commission to perform a specific role as part of a wider framework for delivering, managing and regulating health and adult social care services. Service providers themselves have a fundamental responsibility to improve services. In addition, PCTs, local authorities and strategic health authorities will have a role in encouraging improvements, as will Monitor, the Independent Regulator of NHS Foundation Trusts and the Audit Commission. Patient choice will increasingly serve as a driver for improvement of services.
I do not object in any way to the amendment, but it is unnecessary and duplicative. I am satisfied that the Bill provides the commission with the improvement functions it requires. I therefore ask the hon. Gentleman to withdraw his amendment.
Mr. O'Brien: I hear the Minister’s request and I am filled with disappointment. I thought that I was not going to have to consider even the idea of a magnanimous victory because I would not claim a victory—it would be a case of common sense having prevailed. I am somewhat disappointed. Further, I am dumbfounded as to why we need clause 2(1), which states:
“The Commission has the functions conferred on it by or under any enactment.”
Without an amendment giving it some kind of ambit, why do we need it in the first place? Surely that is what we are doing—that is why we are here. If we need to make any enactment, I very much hope that we would come back to the matter if it was of primary interest. The powers for secondary legislation are already constitutionally within our rights and within the normal context of the Bill.
I feel disappointed, but to push the amendment to a vote would result in an equally disappointing outcome. One of the few things I can be accused of is being occasionally numerate. I have just counted heads and it is a fairly forlorn cause, so it is prudent to withdraw. I hope the point is well made and that the Minister and his officials will reflect on the fact that it does no harm to be specific, not least because the clause looks pretty odd without any further qualification. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Mr. O'Brien: I beg to move amendment No. 2, in clause 2, page 2, line 8, after ‘public’, insert
‘, individual Local Involvement Networks and a cooperative group or groups of Local Involvement Networks,’.
The Chairman: With this it will be convenient to discuss amendment
No. 134, in clause 2, page 2, line 29, at end add—
‘( ) For the purposes of this Act, “local involvement network” has the meaning given by section 222 of the Local Government and Public Involvement in Health Act 2007 (c. 28).’.
Mr. O'Brien: Subsection (3)(a) of the clause states that in performing its functions the commission must have regard to,
“views expressed by members of the public about activities to which the functions relate.”
We want to add
“individual Local Involvement Networks and a cooperative group or groups of Local Involvement Networks”.
Amendment No. 2 is accompanied by amendment No. 134. At the end of clause 2—I hope that by the time we get there, it will have already been extensively amended by the successive amendments that are to be debated—we want to insert:
“For the purposes of this Act, ‘local involvement network’ has the meaning given by section 222 of the Local Government and Public Involvement in Health Act 2007”.
That amendment would ensure that we get some joined-up thinking in successive pieces of Government legislation. I hope it could be a demonstration of their earnest, rather than mine, to decentralise and not be so prescriptive from Whitehall and on high, and to recognise that there is a more organic way of having accountability in our British polity.
I hope that the amendments will make the commission pay heed to the patient and service user voice through local involvement networks—LINks—and HealthWatch. HealthWatch is an organisation that we proposed and argued for. I hope that during these Sittings we shall introduce our own Bill, which encompasses the establishment of HealthWatch. We are desperately keen that the Government should continue the practice that they have been all too keen on recently, which is to copy our excellent policies.
The Government have long sought to undermine the strong patient voice. I take that very personally. The Government used the example of just one or two underperforming community health councils in 1999—when I was first elected at a by-election—to put together the NHS 10-year plan. I am sure that my hon. Friend the Member for Tiverton and Honiton recalls that during a Prime Minister’s Question Time I asked the then Prime Minister whether he was aware of the outrage that he had caused by saying that he wanted to axe community health councils. People up and down the land were really cross. He said that it had been decided by consultation, and then realised that it had not been, so I received a very nice three-page letter. It started with “Dear Stephen”. It did not, however, end with a “Love Tony”, but a “Yours ever, Tony”. I had only been in the House a few months. The whole point is that I had, somewhat fortuitously, tripped him up.
It was appalling that community health councils were axed without consultation. They had a stay of execution for a year, and they lost. Surely that is a lesson that we have all learned. We lost the expertise that comes from deeply committed people who care for those with health and social care needs. They knew that what was really required was the trust that comes through independence, and being able to help people, to hold their hands and chart a route when they feel vulnerable and still need to rely on the services about which they might have a genuine complaint.
That local involvement is vital. The shadow Health team has been exercised about the successor bodies to community health councils, none of which has been able to settle down. We have LINks, and we had the Commission for Patient and Public Involvement in Health (CPPIH) before that. It has been a difficult process. Following the axing of the community health councils, the patient and public involvement forums, through the CPPIH, were deemed to be too outspoken so the Government have done away with them as well. The Government must be honest and say that they are on the back foot with regard to public perception, and that they would really like to see patient voice having an influence on the delivery of health and social care.
Mr. O'Brien: I am grateful to the hon. Gentleman, as we must be careful not to stray out of order. I recognise that, but we are talking about how to get genuine public patient involvement in a process that matters to those vital services. If I recall correctly, of 107 community health councils, four were recognised as performing extraordinarily badly and another 11 needed improvement. The rest were regarded as performing extraordinarily satisfactorily—a point that has been finessed and overlooked by the Government. I am sure that the hon. Gentleman will want to check the record, but I think those numbers are right.
As a result, once that argument had been lost, what happened with the successor bodies was that not only did we lose their expertise and experience but we also lost their independence. The successor bodies were within the NHS ambit, which meant that complaints and vulnerabilities were kept within it, too. It was part of there being no more public complaints about the NHS, which is a more political approach. Trust comes from knowing that you have an independent body. I have strayed as far as I dare, to ensure that I answered the intervention, but I want to stay within the ambit of amendments Nos. 2 and 134.
It is fair to pay tribute to the fact that, during the course of the Local Government and Public Involvement in Health Bill, it was the peers in another place, the noble Lords on my party’s Benches, who secured Government concessions, in particular under section 223 which enabled LINks to come together for the purpose of making reports. We should not forget—we have already had one example—how important this more generic collective analysis and information is. The old community health council Bed watch is one of the best examples, as it drove improvement and highlighted the complexity of issues that were prevalent in the health service at the time. That would not have happened otherwise, as it was perceived as objective rather than part of the vested interest of the health care providing community.
In December 2005, an independent review of the NHS’s regulatory framework, ordered by the Department of Health concluded that
“the importance of consumers/patients in the values of Health Service reform is frequently expressed but not always so effectively mobilised. Establishing”—
and this is the important point—
“representative national and regional fora to contribute a reasoned collective consumer perspective to the process of reform could well improve both the efficacy and legitimacy of that reform.”
That was in a letter from David Currie, the chairman of the Department of Health’s wider review of regulation, dated 18 January 2006, to the former Secretary of State, the right hon. Member for Leicester, West (Ms Hewitt). To bring this into perspective, the Picker Institute’s submission noted that in its response to the consultation preceding the Bill, the Department stated that
“many responses supported the greater input from patients and users of services proposed in the consultation document. Responses were very clear that participation needed to be based around genuine involvement, using a variety of methods in order to promote equality and proper representation of the interests of patients and users of services”.
In their response to the consultation, the Government stated:
“The Care Quality Commission will be a user-focused organisation. Its priority will be to safeguard service users and help improve their experience of health and adult social care services”—
again, I emphasise the point—
“recognising that it can only do this effectively by involving them. It will be able to build on the good work by the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission, which all emphasise the importance of involving service users, and their carers, in their work.”
In paragraph 43 of its submission, the CSCI stated:
“It would be useful if there were an explicit expectation that the new care Commission had a relationship with Local Involvement Networks.”
The Healthcare Commission considers as the first
“clear principle...underpinning the design of a regulatory framework”
that the regulatory system
“should focus on the needs of the patient and the public.”
The MHAC notes as the second function that it deems “vitally important” for the new regulator that it should
“engage mental health service users actively as full partners in health and social care assessment, monitoring and inspection.”
Furthermore, we have the views of Age Concern, which has called for
“amendments to the Bill to add the views of patients, service users and carers to the general provision that the Care Quality Commission must have regard to the views of the general public.”
Carers UK has called for a higher profile for carers. Help the Aged has called for “explicit reference to user involvement in Clause 2”.
Which? notes in its submission:
“It is a startling omission—
its words, not mine—
“that the new body charged with overseeing the quality of health and social care will not have a duty to take patients’ views into account in the course of their work.”
I hope it is seen that I am not arguing in an opportunistic way, simply because the point has arisen. As the Minister knows, because we have published a document that I would like to believe he has read, as the Official Opposition and as a party we have committed to establishing a national consumer voice for patients called HealthWatch, to provide local support to patients at national level, and leadership to LINks at local level; to incorporate the functions of the independent complaints and advocacy service; to make representations to the NHS board on, for example, the closure of NHS services, and, subject to consultation, have statutory rights over guidelines issued nationally concerning the care NHS patients should receive and decisions affecting the provision of NHS care in an area.
Conveniently for the Minister—I hope this is not too tongue-in-cheek—the drafting of the documentation, the concept and the policy are there to pick up. I would like to have private authorship, but actually it would suit us and everybody if the Government were prepared to pick up that policy. The Bill is a vehicle suitably available to make that happen sooner, rather than waiting for a change of Government, although of course I hope that will be in rather short order. Most important, we need to ensure that we deliver on what has already been the Government’s own response to the consultation, which was overwhelming in wanting to see the proposals delivered in the Bill.
Why have the Government not sought a statutory relationship between the CQC and LINks? What assessment has the Minister made of the CSCI’s contention that there should be such a relationship? Does he see a place for a strong national patient and service user voice in the provision of health care in this country, and in the CQC? What assessment has he made of David Currie’s conclusion of the need for
“representative national and regional fora to contribute a reasoned collective consumer Perspective”?
Why, when the Department noted in the response to consultation the desire for patient and user involvement, and itself committed to the CQC being a user-focused organisation, has it not made any mention of such users?
It is with those arguments, which I would like to think are reasonably cogent, that I press the amendments. We have an absolutely vital opportunity—something which the Minister could, with some of that critique, be keen to take up—to ensure that the Bill is grounded in the interests of patients and service users, which I am sure we all feel is our duty and obligation.
Sandra Gidley: I shall speak briefly because many of the points that I wanted to make have been comprehensively covered. I want to express support and put on record my concern, which is obviously shared by the hon. Member for Eddisbury and other colleagues, that an overwhelming theme from some of the submissions we received is the lack of a duty to consult the public, and concerns about how the public and patients will link with the proposals.
This is a welcome amendment, to try to deal one of the concerns raised by Members on both sides of the House on Second Reading. Given the direction of Government thinking and the increasing amount of patient and public pressure, one almost hopes that it would be superfluous, but it sends a useful signal to put something like that in the Bill itself. It would reassure, at the outset, all the bodies that have raised concerns. They can then concentrate, perhaps, on other aspects of the Bill or health care.
It is useful to have a specific link with LINks. My one reservation would be that we have yet to see how that will pan out in practice and what the local variations will be.
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The Health Committee raised a number of concerns on that very matter. I note that one of the final questions to the Minister was, “Why have the Government not sought a statutory link?” I think that the hon. Member for Eddisbury has answered his own question, because, as he alluded to, there are the community health councils, the patient forums and also LINks.
I have to ask how long it will be after the legislation is enacted before having to amend it, for the very reason that LINks may not have worked and we will be faced with looking at yet another replacement. I hope that that is not the case. I do not want to be accused of being overly cynical but, given the doubt about the future of LINks and how it will work in practice, that it is a legitimate concern.
Mr. O'Brien: I am grateful to the hon. Lady for giving way, and I am again grateful for her endorsement of and support for this idea. Not least because of her personal involvement in the health-care related field of pharmacy, does she not agree that the independence of those who are probably the best route-finders and hand-holders for vulnerable groups is the best guarantee of their trust—the fact that someone is available to work in their interest? We are still somewhat sceptical—rather cynical, I dare say—about the effects of the Government’s proposal because of that absence of independence for community health councils. Even though, admittedly, 14 of them were not up to snuff, the fact that they were independent gave them that trust.
Sandra Gidley: I agree that independence is essential, but the public perception point of view can be even more important. Some organisations that are not ostensibly independent have done a reasonable job, but public perception should not be ignored easily and independence gives greater public confidence. I support the hon. Gentleman’s comments.
Mr. Bradshaw: I make it clear from the outset to members of the Committee that I entirely agree that involving and listening to users, patients and the public will be a central responsibility for the new commission. Clause 2 ensures that the commission, in everything that it does, must have regard to the public’s views on the services that fall within its remit, and to their levels of satisfaction with services.
Sandra Gidley: Will the Minister give way?
Mr. Bradshaw: In a moment. The hon. Lady may be interested in what I am about to say.
In addition, schedule 1(6) makes clear that the commission has a duty to establish at least one advisory panel. We would expect that mechanism to cover patients’ and users’ views. The commission may choose to establish further panels, but it will be able to decide. Given the views expressed by Committee members today, and by Committee members and witnesses during Tuesday’s evidence session, regarding these and subsequent amendments that we will be debating on the duty to consult, tabled by the Liberal Democrats, I am still reflecting on that issue.
However, I do not think that the amendment requiring a statutory relationship with LINks is the right way to go about the matter. I made it clear on Second Reading that I believe it important that the current commissioners and the future commissioner work very closely now and in future with LINks on their inspections and how they go about their work. However, I am not sure that singling out LINks, as opposed to other organisations, for special treatment in the form of a statutory relationship is necessarily the right way of going about it. I hope that, in the light of that statement and of the assurance that I have given that we are still reflecting on this issue—[ Interruption. ] I give way to the hon. Member for Romsey.
Sandra Gidley: I welcome the Minister’s assurance that he is still reflecting, but I think that the main concern is that although the commission must have regard to the views expressed, the wording in the schedule is “may consult”. There seems to be no compunction to consult, if we end up with a commission that feels that that is something it cannot afford. Given the financial constraints, there are also concerns that this might be something that the commission wants to do but cannot afford to do.
Mr. Bradshaw: The hon. Lady puts her finger on exactly the problem that we face. The advice that I received from lawyers suggests that it is quite difficult to frame a broad duty to consult—we will come to this later in detail, but we are dealing with it now—both legally and in terms of burdens that that duty might place on the commission that it does not feel are justified in a particular instance. However, it is an issue that we are looking at carefully and I will undertake to come back to the Committee at a later stage with clearer thinking on it. I simply do not think that this amendment is the best way of going about it.
Mr. O'Brien: I am encouraged by the Minister’s saying that he is still reflecting, and I think it right that he do so. I am equally encouraged that he recognises the importance of this matter, and I thank him for saying that he will come back to the Committee with further thinking, once he has had an opportunity for his thought to gestate somewhat.
In the course of his reflection, I hope that the Minister might also give thought to what he has just said—I dare say that we are about to hear it again when we come to the broad duty issues—about the advice that he has taken, which may well be based on the approach that the parliamentary draftsmen have taken, or on the external legal advice that may be available to him about the difficulty of framing these duties. Perhaps he could also look at the issue the other way—not so legalistically—and consider, however it might be done, how to require this organisation not just to consult and listen to the views of the public and service users in a discretionary way, as a matter of good practice and management, but to be actually auditable by them.
Perhaps the better example on this occasion is to draw from what the Government themselves have been doing about the expectations that they believe are incumbent on private sector operators in the commercial sector regarding their public duties and community roles. For instance, in corporate social responsibility, one would expect to see a useful programme of such responsibility properly reported and commented on—audited, even—in an annual report.
Although I am the last person to want to be over-prescriptive by giving anybody more regulation to contend with, because these are unrecoverable, burdensome, non-operational costs, it is none the less important to raise the expectations and priorities of those who will be charged with delivering this service. So I hope that, rather than just looking at this matter as a legislative, framing or drafting issue—the difficulties of which I have some sympathy with, such that, as the Minister has probably perceived, I am likely to withdraw the amendment—the report that we will receive from him once he has had time to reflect will consider how to ensure that the expectation posited of an audit and report takes place, and will consider the consequences in terms of the decision making and operation of these bodies. I hope that that is seen as a constructive proposal.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. O'Brien: I beg to move amendment No. 157, in clause 2, page 2, line 16, after ‘and’, insert ‘adults, and in particular’.
I hope that I can dispatch this amendment with some brevity, which may be welcome. Clause 2 states:
“In performing its functions the Commission must have regard to...
(d) the need to safeguard and promote the rights and welfare of children and vulnerable adults”.
My simple amendment seeks to focus the CQC on all adults, in order to prevent it from getting too fixated on received and perceived identified groups of “vulnerable adults”.
I am sure that the Minister recalls that Anna Walker, in her oral evidence, said:
“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”—
who are not relevant, as we know, to this Bill—
“and sometimes people with long-term conditions who are absolutely dependent on the health care and the social care that they get.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 16, Q22.]
While “vulnerable” is used in the clause, it encompasses a larger span that might in other people’s terms become part of the all-adult group. Furthermore, carers are a group of people about whom we are all very exercised and for whom we want to achieve better support, and who are so vital to the interests of those for whom they care. While being seen as partners in care, Carers UK wants them to be given the recognition and support—practical, financial and emotional—that they need. The strength of the amendment turns on the meaning of “vulnerable” and, while vulnerable groups can be identified, situations could supposedly put invulnerable people in a position of vulnerability.
Kelvin Hopkins: I am not a lawyer and the hon. Gentleman is. I accept that the amendment is a drafting amendment, but would a lawyer say, “Well, this particular adult is not a vulnerable adult and is therefore not covered by the Act”? Is that a possibility?
Mr. O'Brien: I do not believe so. If I had, I would not have tabled the amendment. The best way in which to describe it is to track back all the way to our maths lessons and the Venn diagrams. Let us imagine that the first circle is all adults and there are then vulnerable adults, and that the amount of the shared bit in the middle can change according to how some people define vulnerability. It is important for us to recognise that temporary illness is an obvious place where people can move from being a vulnerable adult to a invulnerable adult. We must be careful to make sure that we encompass a duty in respect of all adults, but that we rightly focus on those who are particularly vulnerable, without excluding those who are not.
Kelvin Hopkins: The hon. Gentleman is selecting a subset of adults whom a lawyer might not regard as particularly vulnerable and might say are not covered by the Bill. I shall not delay the hon. Gentleman any more.
Mr. O'Brien: I am grateful to the hon. Gentleman. The clause, as drafted, refers to
“the need to safeguard and promote the rights and welfare of children and vulnerable adults”.
All I hope to achieve by the amendment is that the duty is for all adults. Some of them might be regarded as not currently vulnerable, but their needs should become part of what the duty of care and the services cover. I hasten to say that he was being supportive because, if the provision leads with vulnerable adults, lawyers have to say, “Are you in the class that was intended by Parliament to be covered under the Bill?” I am sure that the Minister will agree that the last thing we want is a great bunch of shady lawyers trying to describe, as of today, who vulnerable adults are.
Such issues can move around, which is why I am suggesting that the duty applies to all so that there is no opportunity for people to say, “You are no longer eligible for the services that are covered in this area.” We know that, when pressures are placed on either capacity or finances, it is eligibility criteria that are looked at first. I am sure that all of us know of many examples in our constituencies where local government has sought to tighten the eligibility criteria for social care services. The matter under discussion is such an area.
The Chairman: Order. I think that I have been super-generous with the hon. Lady.
Angela Browning: You have been, Mr. Hood. Thank you. I have made my point.
Mr. O’Brien: Indeed you have been generous, Mr. Hood, but the whole Committee was listening to the point with respect as well as care, because no one in the House has been more assiduous than my hon. Friend in attending to the arguments on behalf of, and the needs of, those who have conditions on the autistic spectrum, particularly Asperger’s. We pay tribute to her on that score. If she had not quite finished her point, she might need to catch your eye, Mr. Hood, if she gets the chance, at a later point.
What my hon. Friend says is absolutely right and I hope that it reinforces the point that the dialogue between the hon. Member for Luton, North and me was seeking to wrestle out. One can be over-exercised by the legal terms, but this provision is likely to be used by those who are not lawyers, who will be thinking, “What does this mean? What did Parliament intend by putting an adjective in front of the word ‘adults’? It must have meant something. It can’t be nothing.” Therefore, we have to react in some way.
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If the Minister says that he will accept the amendment, I will quietly give three cheers. If, however, he seeks to resist it—I always worry that he has a white piece of paper that has only the words “Resist this” on it—I hope that this discussion will lead to some reflection. I hope that people will use the experience that is obviously within his Department, given the circular that my hon. Friend mentioned, and borrow from that experience to give this a better legislative intent and to ensure that we do not give a hook to those who might be looking to restrain the eligibility criteria as to where the services should bite. All that said, I hope that the Minister has been persuaded.
Mr. Bradshaw: Resist and reject, as I was advised earlier by my officials, are synonymous, although the spirit of our discussion about the previous amendments, and future ones on patient involvement, shows that I am always willing to listen and reflect where I think that that is justified. I shall explain my problem with this amendment.
Clause 4 is intended to make particular provision for those vulnerable groups that are less likely to be able to act as advocates for themselves. The hon. Gentleman’s amendment would extend particular provision to everyone, in which case it would no longer be particular. If we extend particular provision to all adults and children, that is everyone, by my reckoning, it can no longer be defined as particular, which negates the whole point of it.
Age Concern’s mental health advocacy project and the CSCI were very keen on ensuring that the vulnerable adults and children whom they deal with at the moment were given this particular recognition and provision in the legislation in relation to the new commission. The difference is that they have particular needs. It would not be appropriate to extend the provision to all patients and service users, many of whom are more than capable of self-advocating and who would have no difficulty in exercising the increased levels of choice and participation that we are introducing to the health and adult social care system. That is the reason for our position. What I have described is probably not the intention of the amendment, but it is certainly our interpretation of what it would mean.
Mr. O’Brien: Naturally, I am disappointed that we have now found two words—resist or reject—but there we are. The dialogue that we have had on this issue has probably served its purpose. I am confident that the Minister and his officials will use the process of our proceedings to ensure that they reflect carefully on the arguments that have been adduced, and perhaps the issue will be considered again. I take the point about the later clause that is intended to focus on the advocacy point, if I can put it that way. I am trying to be inclusive rather than exclusive and I think that that is precisely what the hon. Member for Luton, North was also trying to flush out, but at the same time we cannot have a Venn diagram where, in effect, there are no sides. I accept that this is a somewhat difficult point, but I hope that the Minister takes the point as being well meant. Given that we may see something at a later date, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. O'Brien: I beg to move amendment No. 92, in clause 2, page 2, line 20, at end insert—
‘(g) the need to promote co-operation between the Commission, the Health and Safety Executive, the Food Standards Agency, police forces and other bodies authorised to enter and inspect registered premises, including local authorities.’.
We are making rapid progress towards the end of clause 2(3). Paragraph (g) would add another matter to which the commission must have regard in performing its functions. It is patently intended to promote co-operation between relevant public bodies, on which I think we all aspire to see much better performance.
People count on local agencies to work together, and they often do not care where something comes from; they just want to see it work. That requires the fantastically difficult business of joint and co-operative working, across Government and Whitehall as well as at ground level, between the various public bodies and agencies. That is often about sharing information for the better protection of vulnerable people. Although we can often imagine how that might work, it gets difficult when agencies are dealing with vulnerable people, as there is highly sensitive and personal information involved. Need I say more than that we have had a couple of months when the sharing of information by Government has often been with people whom we might not have wished?
As we have argued, the commission cannot and must not allow itself to operate in a regulatory silo. I am sure that the Minister has picked up from both its representations and oral discussions that the Local Government Association believes that the Bill should be amended to ensure that at national level, the new regulator takes into account the roles and responsibilities of other bodies when issuing guidance and developing policy, and at local level shares information with other enforcement agencies such as the police and local authorities. The rationale is to work against another ClimbiĆ(c)-type event. We all feel seized to do everything that we possibly can to limit the risk of that ever happening again. I know that I speak for everybody across the House on that. There is also a role for the CQC in supporting and working alongside councils on their ambitions for local communities.
The LGA has also been concerned that the CSCI has not joined other statutory agencies in developing national protocols for the investigation of deaths, nor has it consistently taken part in local enforcement co-ordination meetings. Paul Snell, who spoke for the CSCI, asked in his oral evidence whether the Bill sufficiently encouraged the co-operation of local authorities in support of the new commission’s work. I do not want to get into an argument of merit about who has been co-operating, but there has clearly been a problem. As we have been advised of it, we are on notice, and as a legislative body we have an obligation to make it better and fix it while we are addressing the matter and have an opportunity through the Bill.
What assessment has the Minister made of the cross-agency work of the three current regulatory bodies, and what guarantee can he give the Committee that the CQC will not operate in a regulatory silo?
Mr. Bradshaw: I certainly agree with the sentiments behind the amendment, but I draw Committee members’ attention to clause 63 and schedule 4, which we believe deal adequately with co-ordination and interaction between the new regulator and other bodies and institutions. Clause 63 requires the commission to
“promote the effective co-ordination of reviews and assessments carried out by public bodies or other persons in relation to the carrying on of regulated activities.”
As that covers all public bodies, it includes all those mentioned in the amendment.
Schedule 4 deals with the Care Quality Commission’s interaction with other authorities. In particular, it requires the commission to produce an inspection programme and framework from time to time, on which it must consult a number of other inspection authorities as set out in paragraph 1(2) of the schedule. They are the main public sector inspection authorities, but there is nothing to prevent the commission from consulting other bodies that enter and inspect premises if it believes that that would be beneficial. I entirely agree with the sentiments behind the amendment, but the matter is adequately dealt with in other parts of the Bill.
Mr. O'Brien: To demonstrate that I am listening, am not close-minded and have no private authorship, I will say that that was an extremely convincing reply and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sandra Gidley: I beg to move amendment No. 128, in clause 2, page 2, line 20, at end insert—
‘(3A) In determining the views expressed by members of the public the Commission shall have aduty to undertake consultation with such bodies and individuals as the Secretary of State my by regulation specify.’.
Let me start by apologising for the two typographic errors, which I noticed only yesterday. The most important one is that the last line should read “may by regulation specify”. I put it down to being human.
We have had preliminary discussions about the need for greater clarity regarding the commission’s duties to consult with the public and various groups. The Minister has said, rather reassuringly, that he is still thinking about these matters. That is heartening. The purpose of the amendment is to clarify clause 2(3)(a), which states that the Commission must have regard to
“views expressed by members of the public”.
It would be helpful to tease out the Government’s thinking on that.
Is the purpose of the clause merely for the Care Quality Commission generally to have regard to public reaction, or is it intended to be something a little more meaningful? Obviously, the views of the wider public are important. The amendment attempts to provide a mechanism that will place on the commission a direct duty to pay regard to the people who use the services that the commission will regulate. The specified groups could include—I am not being prescriptive at this stage—patients, service users and informal carers. It is easy to forget carers, and they often feel that they are not given due regard. I think that we, as Members of Parliament, are aware of what they do and are very grateful for it, but there are not always mechanisms in place to find ways of automatically engaging with them. The nature of what they do means that they are very busy doing other things.
The amendment could also include professional groups. Such groups are not usually backwards in coming forwards, but there are cases in which they should be consulted. It could be said that the Government’s wording is a catch-all, but it would be useful to have more clarity in the Bill about the range of people who should be consulted on a given matter. That would help to ensure that no one is forgotten and that any future commission would automatically ensure that it has the widest range of views at its disposal.
There is a certain amount of inconsistency in the Bill, in that the Council for Healthcare Regulatory Excellence and the Office of the Health Professions Adjudicator will have a duty to consult. In the interests of consistency, is there any reason why that laudable principle should not also apply to the Care Quality Commission?
Mr. O'Brien: As the hon. Lady indicated, we have cantered through this matter, and I think that her proposals have the same motives and thrust as our link amendments. Of course, I hope that she fares better than I did with the Minister. Maybe her charms will work better than mine.
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I hope that in this short time the Minister has had a chance to reflect on the idea of pushing into the warp and weft of what we are designing and constructing in this Bill the organic motive of linking with people and the users. I hope that he can now support that. Whether he chooses to accept the amendment, or change his mind on reflection, I hope that we can make progress in this area. As always, I live in hope rather than expectation.
Mr. Bradshaw: I do not discriminate between the charms of the hon. Members for Eddisbury and for Romsey, and I am a great supporter of the organic linking of people—whatever that means.
Sandra Gidley: I accept that the wording of the amendment left a little to be desired, but it is important that we discuss and tease out the broad principle. I am reassured by the fact the Minister is reflecting on the matter, and I hope to see some Government amendments on Report. If I do not, I am sure that we will revisit the matter. I beg to ask leave to withdraw the amendment.
Amendment, by leave , withdrawn.
Further consideration adjourned.—[Steve McCabe.]
Adjourned accordingly at three minutes past Four o’clock till Tuesday 15 January at half-past Ten o’clock.
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