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.
3
pm
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”,
and
“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
functions...to further the interests of citizens in relation to
communications matters; and...to 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 functions...is 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.
3.15
pm
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.
Dr.
Ashok Kumar (Middlesbrough, South and East Cleveland)
(Lab): I listened carefully to what the hon. Gentleman said
about community health councils. He painted a glowing picture of
community health councils and I agree that in certain areas, they were
very good. However, that was not the case universally. There were some
good councils and some bad and disastrous ones. In my area the councils
were very good. The Government tried to introduce a new mechanism,
hopefully universal, which was to be better than the community
councils. We should not say that everything was great, it was
not—it was good in some areas and patchy in
others.
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.
3.30
pm
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.
Angela
Browning:
My hon. Friend will not be surprised to know
that I am delighted, in our first day in this Committee Room, when
picking up on his argument, to be able to mention the group of people
diagnosed with Asperger’s syndrome. They are a classic example
of the point that he is making. Most social services departments regard
those with learning
disabilities as people with IQs of under 70. With Asperger’s
syndrome, people can have exceptionally high IQs, but face
vulnerability in some pretty basic core issues, such as looking after
themselves and being safe in certain situations. There is a dichotomy
of sometimes high intelligence and vulnerability in the same person. It
is often the case that social services will deny appropriate services
and care to that group of people purely because they do not meet the
artificial IQ of learning disability tests. In fact, the
Minister’s Department has actually put out a circular advising
social services departments to examine such issues and to at least give
an assessment to people with a diagnosis of Asperger’s. This was
picked up in
our—
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.
3.45
pm
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.
4
pm
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.
As I indicated earlier,
however, the matter before us presents us with some
challenges—not just drafting
challenges, but ones highlighted in the comments of the hon. Member for
Romsey. We risk returning to the tension, touched on throughout this
afternoon’s proceedings, between prescribing a list of whom the
new Care Quality Commission would have a duty to consult, and providing
that they should have a broadly drawn duty, which might present them
with unlimited demands from all sorts of people and organisations
wishing to be consulted. I can assure the Committee that I am still
reflecting on that. In the light of that, I hope that the hon. Lady
will withdraw her
amendment.
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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