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Session 2007 - 08
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General Committee Debates
Health and Social Care Bill

Health and Social Care Bill

The Committee consisted of the following Members:

Chairmen: Derek Conway, † Mr. Jim Hood
Bradshaw, Mr. Ben (Minister of State, Department of Health )
Browning, Angela (Tiverton and Honiton) (Con)
Burden, Richard (Birmingham, Northfield) (Lab)
Cooper, Rosie (West Lancashire) (Lab)
Crabb, Mr. Stephen (Preseli Pembrokeshire) (Con)
Gidley, Sandra (Romsey) (LD)
Hesford, Stephen (Wirral, West) (Lab)
Hopkins, Kelvin (Luton, North) (Lab)
Jenkins, Mr. Brian (Tamworth) (Lab)
Kumar, Dr. Ashok (Middlesbrough, South and East Cleveland) (Lab)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
Mallaber, Judy (Amber Valley) (Lab)
Milton, Anne (Guildford) (Con)
Moffatt, Laura (Crawley) (Lab)
Mulholland, Greg (Leeds, North-West) (LD)
O'Brien, Mr. Stephen (Eddisbury) (Con)
Wright, Jeremy (Rugby and Kenilworth) (Con)
John Benger, Celia Blacklock, Committee Clerks
† attended the Committee

Public Bill Committee

Tuesday 15 January 2008


[Mr. Jim Hood in the Chair]

Health and Social Care Bill

Clause 5

“Health or social care”
4.38 pm
Mr. Stephen O'Brien (Eddisbury) (Con): I beg to move amendment No. 198, in clause 5, page 3, line 14, after ‘includes’, insert
‘the promotion and protection of public health, and’.
The Chairman: With this it will be convenient to discuss amendment No. 203, in clause 90, page 45, line 14, leave out ‘Except in Chapter 2’.
Mr. O'Brien: I hope that the Minister will be joining us. If the Opposition can manage to be in two places at once, we would expect the same of the Minister, not least as it is because of his Government’s cack-handed management of the timetable that we have ended up having to start the Committee late. So, it is a somewhat unusual set of circumstances. [ Interruption. ] There is the typical chuntering from the Government Whip that he does not like debate on the Floor of the House, but it is the Government’s own rather lazy timetabling that has ended up forcing us to expose their inadequacies. If he does not like long speeches, he should get the business right in the first place.
Amendment No. 198 amends clause 5, in which health care has an encompassing definition. Amendment No. 203 amends clause 90. Obviously, for convenience, they have been grouped together for our debate in the general interpretation of part 1. Amendment No. 198 seeks to give the Care Quality Commission the power to inspect health, not just health care issues. It seeks to ensure that the protection and promotion of health, as well as the technical standards of health care, are covered in the registration regime. It is important that we should make an assessment of whether we want the leeway to divide those two, or whether we want to look at matters in a general way.
The amendment arises from Anna Walker’s oral evidence last Tuesday, in which she replied to my question by saying that
“we are very perturbed that at the moment the administration requirements explicitly exclude catching work on health, as opposed to health care...we believe...that people’s health needs to be looked after as well as their health care”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 12, Q12.]
She continued:
“The registration requirements explicitly say that they cannot bite on public health issues, only on health care issues.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 12, Q13.]
Anna Walker also raised the matter as far back as September, so it is not a new point for the Minister. She told the Health Service Journal, which I am sure is avidly read in the Department—as it is, of course, by Her Majesty’s official Opposition shadow health team—that
“There has been some concern about whether this has been thought about sufficiently clearly and rationally. We want people to concentrate on health and health care and we want health care organisations to do it because primary care trusts and hospitals can do a huge amount in terms of the advice they give to people at critical stages. People who look after health care are really important in looking after health. Although regulation is not the only player in this it is a very useful lever to improve public health.”
There are three distinct issues there. First, the health of the individual; secondly, the health care provided to that individual; thirdly, the wider public health policy within which health care operates and the individual’s health is or is not safeguarded. My assumption concerning the impact of clause 90, where public health is still relevant to chapter 1 and chapters 3 to 6, is that in its reviews the CQC can bite on public health issues, but in its regulatory capacity it cannot. I would be grateful if the Minister confirmed that.
The drafting of clause 5 shows a lapse, I believe, in the judgment that has been applied to the drafting of the Bill. If the Minister is truly moving NHS policy toward patient-centred care, the key metrics are the health outcomes for the individual. That is why we are committed to scrapping top-down targets that are made when monitoring outcomes. We already know from the absence of patient and service-user involvement, that there is a vacuum at what is, in many ways the centre of the regulatory body. Although we have had the Minister’s commitment that he is considering the issue carefully, and his undertaking to return to the Committee at a later stage with clearer thinking on it, we are very concerned that the vacuum is so stark in this area. In clause 5, the Minister seems to be preventing the CQC from taking health outcomes into account; rather, the new body will monitor the processes. Surely the processes will end up meaning nothing without the outcomes alongside them.
As far as public health issues are concerned, as the Committee will be aware, the number of public health staff, excluding consultants, working in the NHS has been more than halved in the 10 years since Labour came into office. In 1997 there were 3,167 key non-consultant public health staff, which includes nurses, nursing assistants and other key public health support workers; but by 2006 that had fallen to 1,362—a misrepresented cut of 1,805, or 57 per cent.
In 2002, Derek Wanless served warning on the Prime Minister that a failure to tackle public health challenges would contribute to an extra cost of up to £30 billion a year by 2022. The Prime Minister’s failure to do that forced the Government’s chief medical officer, Sir Liam Donaldson, to raise the alert last July that the country was following Wanless’s worst case scenario. He also noted that there is strong anecdotal information from within the NHS that tells a consistent story for public health of poor morale, declining numbers and inadequate recruitment, and budgets being raided to solve financial deficits in the acute sector.
The amendments are important to ensure that, as we take the legislation forward, the inevitably narrower focus of health care and, therefore, settings, rather than health as a more outcome-focused issue, will be vital. I simply seek to chime with the rhetoric and sentiment that the Government have proclaimed and advocate themselves.
One only has to look, for the purposes of the Bill and of the amendments that enable matters apparently so close to the Government’s heart, at obesity rates, sexually transmitted infections and levels of substance misuse, all of which are rising. Since 1997, the proportion of two to 15-year-old boys who are either overweight or obese has increased by one third, and the corresponding proportion of two to 15-year-old girls has increased by 27 per cent. Those figures are from the Department of Health. The situation has been exacerbated by the Government’s abandonment in 1999 of the last Government’s targets to reduce rates of obesity in the general population to 6 per cent. among men and 8 per cent. among women.
4.45 pm
For instance, the definitional changes would relate to sexually transmitted infections. Since 1997, in the 10 years since Labour came to office, cases of syphilis have increased by 1,654 per cent., gonorrhoea by 44 per cent., chlamydia by 148 per cent., herpes by 17 per cent., genital warts by 17 per cent. and HIV by 111 per cent.
The other aspect that the amendments cover is substance misuse, which would otherwise be excluded. Since 1997—the year for which I happen to have the numbers, of course—the number of alcohol-related deaths has increased by 40 per cent., and the number of young people receiving treatment in hospital as a result of alcohol misuse has risen by 33 per cent. Interestingly, smoking rates have fallen far more slowly since 1997 than they did in earlier years. In 2005, 24 per cent. of the adult population smoked, compared with 27 per cent. in 1998, but between 1978 and 1996 there was a sharp drop from 40 per cent. to 28 per cent.
Health inequalities is a subject close to all our hearts. We should aim to give greatest effect to addressing them through the Bill, and the amendments would give us that opportunity. Although the inequality gap in circulatory disease mortality has declined and is on track to meet the target, the inequality gap in the infant mortality rate has not reduced sufficiently to meet that target. The inequality gaps in male and female life expectancy at birth have increased since the baseline was established, and if current trends continue, the target will not be met. The inequality in cancer mortality has declined since the baseline, despite a slight increase in the latest period, and the minimum requirement for the 2010 target has, indeed, already been met. However, that is unfortunately irrelevant due to the meaningful outcome measure of five-year survival rates—much argued over on the Floor of the House.
Given the Minister’s repeated call for the Committee to allow the CQC to establish its own regulatory best practice, I should have thought that he would want to give it the power to bite on whichever issues it felt were relevant to registration. Why does the Bill exclude public health from chapter 2? Is it because of the Government’s dismal record on public health and health inequalities, or is it simply an oversight? I hope that it is the latter, because we could correct it by accepting the amendments. If it is the former, I fear that the Minister will use “reject” or any other word he can think of not to accept the amendments. In that case, the Government stand accused of woeful shortcomings on public health. Health outcomes depend on the public health measures under discussion falling within the ambit and expectations of the Bill.
The Minister of State, Department of Health (Mr. Ben Bradshaw): I do apologise for arriving after this afternoon’s proceedings were under way. I was told 10 minutes, and the clock stood at nine as I came into the room, so if that was my mistake, I apologise.
The amendments stem from a basic misunderstanding of the distinction between the new regulator’s public health remit concerning activities that are not registered, and activities that are registered under the chapter. For the purposes of chapter 2, clause 5 effectively sets the outer boundary for the type of activities that could be included as regulated activities in regulations under clause 4. They have been framed deliberately widely to allow scope for new models of provision to be added to the list of activities.
On public health, the examples that the hon. Gentleman gave, such as substance abuse, smoking cessation, alcohol abuse and so forth are all public health activities that we envisage might be registered or considered for review. However, the general publicity campaigns that health trusts and Governments undertake would not be appropriate for inclusion in that area of the Bill, but they are covered in other areas of it.
The definition of health care in clause 5 explicitly includes
“all forms of health care provided for individuals,”.
Therefore, any public health services that provide health care to individuals would fall with the scope of registration. Chapter 2 lists the sorts of services that both I and the hon. Gentleman have mentioned. However, the campaigns that I refer to, which do not involve the provision of care to individuals, would not fall under that definition. We do not think that they present the tangible risk that we are dealing with in the registration provisions of the Bill, in the same way as provisions or services to individuals do. We accept, however, that a far greater emphasis should be put on public health, and it is important for the commission to look at those latter activities in respect of its other functions. For example, if a primary care trust runs a public health campaign, the commission should be able to consider that in its assessment of how well that trust meets the needs of its local population.
Clause 90 clarifies that such activities do not fall within the definition of health care only for the purposes of chapter 2. They will fall within that definition for the purposes of reviews, special reviews, investigations and so on. Given those assurances, I hope that the hon. Gentleman will withdraw his amendment.
Mr. O'Brien: I have made my position clear and I am sure that we will find ourselves returning to the matter on a number of other occasions, not least when we consider clause 90. I hope that, together with the Minister, we have identified an area that needs to be reinforced, and that there may be other ways to achieve the same goal. Rather than labour the point, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. O'Brien: I beg to move amendment No. 7, in clause 5, page 3, line 16, at end insert ‘including all forms of cosmetic surgery’.
The Chairman: With this it will be convenient to discuss the following amendments: (a), in Line 1, at end insert ‘and treatments’.
No. 129, in clause 45, page 22, line 27, at end insert ‘including cosmetic surgery and treatments.’.
Mr. O'Brien: I will speak to amendment No. 7, although I will also touch on amendment (a) and No. 129, tabled by the Liberal Democrats, who will doubtless want to address them in more detail. At this point we must understand clearly that health care includes all forms of cosmetic surgery and treatment. Amendment No. 7 would insert
“including all forms of cosmetic surgery”,
and amendment (a) would add the phrase “and treatments”. Amendment No. 129 amends clause 45, to which we shall return later, although here my point is that regulations and regulated activities will include cosmetic surgery and treatments. The amendments seek to bring cosmetic surgery and treatments within the ambit of the CQC. Outside the NHS, new services are emerging in the rapidly growing cosmetic treatments market, and are subject to little or no regulation. That includes cosmetic fillers, for example—something I am certainly not in any need of. That leaves consumers at risk and can have harmful consequences.
Without taking up too much of the Committee’s time, I will recall the item highlighted by Which? magazine in August last year: isolagen. If members of the Committee are interested, they should type the word into Google and they will find a useful example of what we are talking about. In its oral evidence, Which? stated:
“The administration of dermal fillers, including some that are semi-permanent and permanent, of Botox injections and of such things as chemical peels do not come under the Healthcare Commission’s remit.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q173.]
I am perhaps minded to see some reasonableness in the Minister’s contention about the question of the justification of expecting the taxpayer to pay for the policing of procedures. Like other members of the Committee, no doubt, I am also sometimes sceptical about the thoroughness with which Which? brings forward policy proposals on the back of research. It is our job to be sceptical about such things. Having said that, it is important that we proceed on the basis of evidence. Which? contended:
“It is a rapidly growing market and likely to grow more rapidly”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q173.]
and that
“one in five of the British adult population considers some form of cosmetic treatment.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q175.]
That somewhat takes my breath away, but it is apparently the case. I am keeping my eyes down, because it would be somewhat invidious to look around at every fourth or fifth person in the room and to try to guess who has been subjected to such treatment.
Which? also called the industry “cavalier” and noted that
“people who undertake such procedures”—
I think that it means “undergo”—
“think that they are regulated, and are quite unaware that they are not protected in any sense.”—[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q175.]
Most persuasively, it contended that
“the consequences of getting it wrong can be significant, including long term permanent harm”,
and that
“the taxpayer often ends up paying if it goes wrong, because the NHS picks up the pieces.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 76, Q173.]
I suspect that members of the Committee recognise and acknowledge the need to contend with such a knotty issue. If the market is growing in both demand and breadth of supply, is there not a case for at least some self-regulation? The Financial Services Authority, for example, is a publicly sponsored body funded by its own industry. The Committee will be interested in the Minister’s assessment of consumers’ perception of which matters in the industry are regulated.
Mr. Stephen Crabb (Preseli Pembrokeshire) (Con): My hon. Friend makes the important point that the growth of the market means that regulation must at least be considered. Does he agree that, unlike most other forms of surgery, for which there is a continuous demand, the cosmetic industry has actively to create demand? It is therefore peculiarly well placed to take advantage of vulnerable people.
Mr. O'Brien: My hon. Friend makes an important point. When anything is effectively market-led, people are keen to expand the market. That said, even before the well known cosmetic surgery and treatment market became well established in this country and others, those of us practising law occasionally had to deal with extraordinarily difficult personal injury cases. If someone on an oil rig had a great chain smash them round the face, there were the most fantastic cosmetic surgeons who could put them right, at least to the degree that was possible. The skills existed, and the market has tended to grow on the back of them. We need to be careful not to say that but for a private market, such surgery would not have existed—it did exist and the skills were there. The question is about using that capacity outside the NHS in elective, discretionary surgery. We should not underestimate the skills and NHS training of many who have come to be among the world’s leading cosmetic surgeons with the greatest understanding of techniques and treatments for cosmetic improvement.
All markets need good information, even if it is not perfect. The cost-benefit analysis that is based on the final cost to the taxpayer will be most interesting because it will tell us whether Which? is right in its contention that the NHS picks up the pieces. I suspect that we all have a fair feeling of what the answer will be, but it is vital to have the evidence.
As the Minister contemplates the matter, perhaps it will be instructive to examine what BUPA has said. At the very least, it
“would like to see all invasive procedures including cosmetic procedures such as Botox regarded as ‘regulated activities’ under the Health and Social Care Bill, to ensure that the new Care Quality Commission regulates these services and so protects patient safety.”
Cosmetic treatments also include non-invasive procedures, so there is a difference in what BUPA says.
I also wish to ask the Minister for clarification. Page 25 of the explanatory notes states:
“The provision of some cosmetic procedures is included in the definition of health care.”
So far the Minister has not seen fit to alert hon. Members to the distinction between cosmetic surgery and cosmetic treatment, which was identified in oral evidence. Given that we have this reference in the explanatory notes, the matter has patently been given close and careful consideration by the Minister and his team. We can therefore now look carefully at our amendment, reinforced, I hope, by the Liberal Democrat spokesperson who seeks to amend it.
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The only explanation for cosmetic procedures appearing in the explanatory notes is in the Queen’s Speech briefing, which highlighted the issue. The reference seems to be a carry-over from that time, but it has not found its way into the Bill. The Minister will understand that I have tried to trace the genesis of the way in which these phrases are used. Clearly they will have consequences, and we see that from what Which? and BUPA say. These genuine and serious issues have to be addressed.
There has been no mention of the argument that the Minister advanced during oral evidence. Of course, there was his comment that the taxpayer should not pay for the regulation of these private procedures. He said:
“I would like to explore, although we probably shall not do so in the course of the Bill,”—
more is the pity; I hope that there has been a little bit of reflection on that—
“the justification for expecting the taxpayer to pay for the policing of procedures that are purely cosmetic and not available on the national health service.”——[Official Report, Health and Social Care Public Bill Committee, 9 January 2008; c. 75, Q175.]
There again he used the word “procedures” rather than “surgery” or “treatment”. I should like to give the Minister the benefit of the doubt and hope that he was not seeking to conceal from members of the Committee and third party organisations what was in his mind when he drafted these notes.
What assessment has the Minister made of this market and its future growth? Would he agree with Which? that it is a cavalier industry? What assessment has he made of the perception of consumers in the industry about regulation? What assessment has he made of the costs to the NHS from picking up the pieces of these procedures? What action does he intend to take in spurring the industry into self-regulation? It would be very helpful to have an explanation from him of the explanatory notes and the terms used therein. Having spoken to my amendment, I am happy to register my broad support for the amendment to it tabled by the Liberal Democrat spokesperson.
Sandra Gidley (Romsey) (LD): Amendment (a) to amendment No. 7 builds on that amendment, which, as has already been explained, would include cosmetic surgery as part of health care. We welcome amendment No. 7, and the context has already been explained. An ever growing proportion of the population is considering cosmetic surgery. It is quite a drastic step to consider going under the knife. We must also bear in mind that anaesthetics are often involved, and there is a whole range of procedures in cosmetic surgery that are regarded as purely medical procedures.
If cosmetic surgery goes wrong, the health service picks up the bill. I think we all intuitively feel that this is a concern, but some clarity about the costs would be useful when coming to an overall decision. The Minister has raised concerns about the taxpayer footing the bill. However, much regulation is paid for by those who are regulated. A lot of the professional regulation is funded by medical professionals themselves. One might think that costs would be passed on to the consumer, but the proposal would reap an overall benefit.
Which? raised a number of major problems with the procedures, including the aggressive marketing that puts pressure on consumers. The most important problem, to my mind, is poor information, which means that people who are trying to decide whether to undergo surgery or where to go do not have an informed choice. There is often a lack of detail about risks or possible complications. Many guides to cosmetic surgery, although they are supposed to, do not include details of a clinic’s latest inspection report or details about the complaints procedure. If something goes wrong, the consumer or patient—whatever we want to call them—can struggle to know where to go. There is often a lack of clarity about the qualifications of the person actually performing the procedure.
All that is bad enough, even if we are talking about only cosmetic surgery, but amendment No. 7 does not cover procedures such as botox or fillers. This is a rapidly growing market and new technologies are entering the marketplace all the time. It is important to engage public confidence from a Government point of view. The industry seems to promote public confidence by presenting a quasi-medical image—the technicians all wear starched white uniforms so that everything all looks terribly clean and like there is nothing that would cause concern.
Let us consider botox as an example. It is a prescription-only medicine, but there are some doctors, who I would suggest are not a credit to their profession, who regularly write prescriptions to enable people with little or no qualifications to administer the procedure. That is wrong. It should not be left to self-regulation and more must be done to monitor it. I cannot understand why the Government would not want to protect the consumer in that area. Stronger chemicals are being used, botox parties are being held in venues such as hotel rooms, and invasive procedures such as Smartlipo are being undertaken in offices. I am not sure that those are the appropriate environments in which to carry out such procedures—[Interruption.]
The Chairman: Order. Hon. Members must not have conversations while an hon. Member is speaking.
Sandra Gidley: I will return the compliment some time. The hon. Member for Eddisbury mentioned—[ Interruption. ] Well, I thought that it was called Isolagen, but I want to say that I am not an expert and that was just a guess. It is one of those words that are pronounced in as many different ways as they are spelt.
Today, in the Daily Mail, there was a report about women suing a clinic over a claim, and some of the comments made quite interesting reading. The report states:
“The women claim clinics, including several in Harley Street—
which everybody thinks of as being medical
—duped them into undergoing treatment which did nothing to reduce the impacts of ageing.”
More interestingly, Isolagen was withdrawn in America shortly before its launch in the UK following concerns from the Food and Drug Administration about the scientific trials. The procedure was overseen by the FDA in America, but because it was not regarded as medical in the UK, there was no such scrutiny, monitoring or licensing of the technology. The amendment has been tabled to avoid such instances in the future.
I hope that the Government are at least sympathetic to the arguments and are moving some way towards regulating this sector more strictly, even if they do not wish to adopt the amendment. I believe that there is supposed to be self-regulation in the cosmetics industry, but there is not.
Amendment No. 129 would amend clause 45(2)(a) to make it clear that establishments offering such procedures are subject to regular review. Again, the old arguments apply: clinics can change hands, and the public must have absolute confidence when undergoing such procedures.
Mr. Bradshaw: As I said in our discussion during the evidence-taking sessions, I welcome this debate. I have given the matter some thought, and it is interesting because it is philosophical. At some stage, a boundary must be drawn between where taxpayer-funded regulation is justified and where it is not. One’s instinct when one hears about a terrible case is that the Government should do something, but the more I have thought about that, the more I have asked myself how far is it justified to expect the taxpayer to pay the enforcement costs of the regulation of activity that is cosmetic and not available on the NHS. In many cases, that would involve the regulation of vanity. We would all do well to ponder that question.
The amendments are based on a misunderstanding that the Bill explicitly excludes the sort of cosmetic procedures to which hon. Members referred. The Bill already covers such matters and clause 5(2) explicitly refers to
“procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition.”
We believe that that allows cosmetic procedures, whether surgical or other treatments, to be regulated by the new commission, should that be considered appropriate. As I said during the evidence-giving session, we will shortly consult on what specific activities will be regulated by the Care Quality Commission, and I want to encourage the debate to continue in that context.
Any cosmetic procedures that, following the consultation, are deemed necessary for registration with the new commission would also fall within the scope of clause 45 and could, therefore, be subject to periodic reviews by the commission as set out in that clause.
Anne Milton (Guildford) (Con): In what situation would the procedures not be considered appropriate for regulation?
Mr. Bradshaw: I do not think that that is for me to say now. It is for us to have a debate. The hon. Lady may have a view of where the boundary should lie, and I may have a personal view, but that might change when I reflect more deeply on the issues, which we will do when we embark on the consultation on the regulation system. I am not prepared to give a judgment off the top of my head now. I indicated the direction in which my sympathies lie during the evidence-taking session, but I wanted to reassure the hon. Lady and those who support the amendment that the Bill does not exclude the sort of procedures that they seem to believe should be regulated.
Angela Browning (Tiverton and Honiton) (Con): If I have understood the Minister correctly, he will, following the consultation on which he is embarking—I welcome that—draw up a list of procedures or treatments that will be subject to regulation. How will that impact on private clinics? One serious problem has been leaking silicone breast implants. The health service often has to do the repair work when that happens because a women’s health can be seriously damaged if the implants go wrong. If a clinic is involved, will just the one procedure that it carries out be covered? If it is negligent in, or not very good at, one procedure, there is a question mark against all the other procedures carried out on its premises.
5.15 pm
Mr. Bradshaw: We are talking about the registration requirement and procedures carried out in a particular facility that comes under that requirement. If it were decided that a procedure should come under regulations, when the regulations are laid, any facility providing that procedure would qualify.
I am grateful for the hon. Lady’s intervention, because I was going to say, if the discussion broadened out into a general debate on the issue, that it is important—as the hon. Member for Eddisbury mentioned—that we do not automatically exclude the importance of self-regulation and do not lose sight of the fact of the sorts of instances that the hon. Member for Romsey referred to, involving doctors breaking the rules in terms of prescribing Botox. There are already rules in place, both for professional conduct and in the law, that offer safeguards in these areas.
There is a question that needs to be addressed by the Committee and in the wider debate. The estimates of the number of premises offering cosmetic procedures could, in theory, mean that the vast majority of the premises that the new Care Quality Commission is required to register and even inspect are those offering cosmetic procedures, so it would be doing that rather than focusing on the core responsibilities that we are trying to ensure that the new independent regulator has in respect of health and social care.
This has been a welcome opportunity to air some of these concerns and for hon. Members to think a little bit more deeply about this matter, because doing so will help inform the debate that we will need to have when we discuss the regulations.
Anne Milton: I thank the Minister for giving the matter further consideration. It has become apparent that there needs to be some clarity. Many people who go into a clinic, for want of a better word, for a procedure perceive themselves to be in hospital, but in fact the clinic may be registered under nursing home regulations. At the moment, the private providers obviously want to slip under the lightest regulatory regime possible, although not necessarily because they are doing anything wrong. It is important that there is absolute clarity, not only for Committee members but for the public.
Mr. Bradshaw: Yes. The hon. Lady is right to draw attention to the importance of good, accurate information and the importance of individuals, who are thinking of undergoing such treatments, making certain as far as they possibly can that the clinics that they are using are well regarded and adhere to the existing regulations.
Sandra Gidley: I have listened with interest to the Minister. I am to some extent reassured by the fact that there will be a consultation. I have a slight reservation inasmuch as the Minister seems to be talking about a list of procedures that will be covered by that process that, presumably, would be covered under regulations. However, lists often have a habit of being set in time, so that when new procedures come on board they may not be covered by regulations that may have covered them had a technology been in existence when it was first developed. Will the Minister give some thought to a set of broad principles that can be applied in addition to a pure list of therapies? I do not think that a list of therapies will stand the test of time.
With that proviso, there is clearly no point in putting amendment (a) to a vote if amendment No. 7 does not succeed. It would be helpful to see how we get on with that and possibly revisit the matter later.
Mr. O'Brien: I think that I need to indicate, on amendment No. 7, that whether we will want to press this matter further at this stage will depend on the Minister’s response.
As the Minister said, this has become an interesting debate. It has been helpful to have this exposition of these issues, because there is clearly a need to find a balance in the tension between what is appropriate to regulate and what it is inappropriate for us to seek to constrain from on high. I fear that the consultation that the Minister is launching will not necessarily report in sufficient time for us to be able to use its results for the benefit of drafting the legislation. I hope to withdraw amendment no. 7, and I hope that the Minister will take away from this that it may be useful for all, not least as part of the context in which the consultation is importantly carried out, to think—perhaps on Report—that there is something a tiny bit more explicit than currently stands within the compass of the definition in clause 5, which he prayed in aid, as covering. It might possibly benefit from a little more explicit detail that indicates the cosmetic, discretionary or non-essential—be it invasive or non-invasive—treatments, or in his preferred words, procedures. I note that we did not get an explanation of the explanatory note, and I simply leave that on the record. However, with the agreement of the Committee, I beg to ask leave to withdraw the amendment, and look forward to us returning to us with some definite determination and deliberation on Report.
Amendment, by leave, withdrawn.
Mr. O'Brien: I beg to move amendment No. 90, in clause 5, page 3, line 16, at end insert
‘ and needs assessments for care and health-related assessments of ability to work.’.
The Chairman: With this it will be convenient to discuss amendment No. 91, in clause 5, page 3, line 20, at end insert
‘ and all needs assessments for such care.’.
Mr. O'Brien: The purpose of these amendments is to ensure that organisations providing assessment of need for health or social care, and organisations providing assessments of people’s ability to work on the basis of health or disability, are included within the scope of the new Care Quality Commission. The personal capability assessment is a test used to assess long-term incapacity for work for social security benefits. The high rate of successful appeals—60 per cent. in 2005—was evidence that the PCA did not accurately capture people’s ability to work. This has, of course, been much in the news recently. On 17 November last year, the Secretary of State for Work and Pensions announced a replacement test, the work capability assessment, to be introduced in October this year. I would not be surprised if it happens to come into force at the time when many of the provisions of this Bill, once it is enacted, may find themselves being introduced.
I note that the Secretary of State’s press release said that the new test
“will assess what you can do, not what you can’t do.
There are currently 2.64 million working age people claiming incapacity benefits, which cost the country nearly twelve and a half billion pounds in 2006/7.
Fifty per cent of those who take the assessment will not pass it, meaning that 20,000 fewer people a year will enter ‘sickness’ benefits as a result, and will instead be given the support and skills they need to get a job.”
I move on fast, before contemplating whether the Secretary of State is contemplating any kind of concern about the security of his own position. I note that claimants undergoing the current PCA are assessed by ATOS Origin doctors, using current PCA descriptors and the ATOS-designed computer system, LiMA. The same doctors then make an estimate of the claimants’ scores under the new PCA descriptors, and I assume that a similar system will continue under the new test. I will leave aside the question of whether this test does the best by disabled people, or people with impairment, or whether it is another clumsy attempt by the Prime Minister to win over a target audience by using those terms.
Health assessments, similarly, occur in custody, both on arrival in custody, by offenders or those on remand. That assessment is often outsourced, and if the offender or the person on remand is admitted to jail, the health assessments are made at the point of reception screening. It is important to recognise that Rethink, the leading mental health membership charity, and others, are concerned at the inability of the CQC to assess, its accountability to assessors, and the unaccountable nature of the assessments. The force of the amendment therefore would bring that accountability into the system. I hope, therefore, that the Minister will find this to be a helpful way of ensuring that so many of the objectives that he has set out for the Bill will be delivered.
Angela Browning: I support my hon. Friend on the amendment. In one of our evidence sessions, I touched on the question of doctors who put themselves forward as expert witnesses. There is some general concern about medical professionals who carry out assessments. Sometimes it is seen as a retirement job for people who have long left practising medicine on a day-by-day basis and who can be quite out of touch with assessing people with some of the more unusual or rare conditions. They are often particularly out of touch with the way in which we now regard people with learning disabilities, mental health problems and autistic spectrum disorders.
The amendment would ensure that anybody who wears a badge saying that they are an authority or an expert in the health and social care sector is subject to the rigours that will come from the inspectorate. As Members of Parliament we see far too many cases of people with sometimes quite complex disabilities who are able to work. Equally, on the other hand, we see people whose disabilities might be a little more invisible on the day and who do not get the expertise and the fair assessments from people who, one would hope, are experts in their fields.
Very often, the experts are on a panel or report to a panel of lay people. It can be expected that a lay person on a panel will accept the judgment and recommendations of a medical expert, whether or not the person’s ability to work has been undervalued. The vast majority of people with a disability want to work. They might not necessarily be able to do a full week’s work. However, there are many people who could work and who want to work. It is right that their assessment should be fair.
Under many of the Government schemes, there are tiers at which people who have been out of work or people in their 20s and 30s who have never been in paid employment can be helped into employment. Making a fair assessment of what needs to be an incremental introduction into the world of work depends very much on the expert judgment. It would be unfair in most of those cases to say, “Okay, 38 hours a week for you.” That judgment is taken by a panel, which is dependent on the advice and the assessment. There needs to be a much more subtle and flexible understanding of the world of work and the particular disability or incapacity that is being assessed. This issue is important because it is a very grey area.
In the same way as I was concerned about expert witness earlier in these proceedings, the judgment of the panel is looked at and is listened to. It can be quite influential in where the person goes in life. It can be as important as that. Bringing such people within the scope of this legislation, as outlined in the amendment, is very important.
Mr. Bradshaw: I entirely agree with the hon. Lady. I recall the General Medical Council agreeing with the point that she made in the evidence session on the expert witnesses, that it was vital that the medical professional was qualified in the required speciality and not in something else.
I am grateful to the hon. Member for Eddisbury for explaining the amendments. This was the one small group of amendments that led us to scratch our heads and wonder what they were about. Now that he has explained them, I can reassure him because clause 4(2) states that an activity may be a regulated activity if it
“involves, or is connected with, the provision of health or social care”.
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As needs assessments are part of the process of providing a service to patients or service users, we are confident—at least our lawyers are—that this would cover needs assessment as well, and that needs assessments may be described as regulated activities because they are connected with the provision of the said care. Through the registration requirements, which we will be consulting on, providers will need to demonstrate that they are providing a safe, quality service that meets the needs of patients or service users. If those activities are connected with the provision of health and social care, they will be within the scope and will therefore cover needs assessments.
Angela Browning: Will the Minister look at the other side of the coin? I am thinking of social care. We heard in the evidence session, I think from Baroness Platt, that, with social services assessments, very often the eligibility threshold is raised quite considerably so that there is a group of people who do not quite make the threshold but who are none the less a cause for concern in terms of the service—or, often, the lack of service—that they receive. Is it within the scope of this Bill, through the new commission, to pick up people who are omitted from services when quite clearly they should be included at some level?
I raise this issue because, going back to mental health, learning disability and autistic spectrum disorders, it is not uncommon at all for those who do not quite meet the eligibility threshold and who sometimes receive absolutely nothing by way of support, to deteriorate very rapidly, becoming the next crisis for a social services review team because of the way they then present. I accept that this is very hard, but might the commission monitor where the social services assessments are made, and whether the assessors are being fair and meeting the criteria and the general thrust of this legislation to ensure that not only those who are assessed are properly regulated, but that nobody falls through the net as a result of the way they are assessed or the people assessing them?
Mr. Bradshaw: I suspect the answer to the hon. Lady’s question will depend on the policy and the resources available as much as on the work that the new regulator will do to enforce those policies. However, I am sure that in the circumstances in which it is clear that social care providers are not following Government policy, or are setting the bar higher than the policy directed by the Secretary of State would suggest, there would be a case for the regulator to look into it. However, it is not the regulator’s job to set the policy or, indeed, the funding for a particular service. Its job is to ensure that the policy is implemented consistently and fairly, and that service users are getting a fair deal.
Mr. O'Brien: I am very grateful to my hon. Friend the Member for Tiverton and Honiton for her, necessarily rather extensive, intervention. It was particularly helpful to have before the Committee a series of examples of the way things work.
I hope the Minister accepts that we bring these amendments forward with the utmost sincerity. When looking at the drafting in such a generic way, part of the problem is making sure that we know what the Government are contemplating in encompassing these issues. The great benefit of debating all these points in Committee is not only that we bring expertise to the cause of examining the Bill, such as that demonstrated by my hon. Friend the Member for Tiverton and Honiton. It also enables us to put on record how important it is to ensure that people looking back on our deliberations can say, “Yes, that general set of words was absolutely intended to be included” in that there are those who may choose not to be caught within the ambit of regulation. After all, they are the people we need to be most concerned about and we need to be sure that they are covered in the Bill.
The Minister’s reassurances have been worth while and give us some reassurance. In particular, my hon. Friend’s example meant that we were able to flush out where the true danger lies, and that is the people who might fall between the gaps—in what is assessed and the assessors, but also the method of the assessment process—and those who may need support but are not meeting the various thresholds and are cut off from eligibility. This has been a most useful exploration of the issue and I hope that the Minister agrees. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sandra Gidley : I beg to move amendment No. 150, in clause 5, page 3, line 16, at end insert
‘(2A) The Secretary of State shall have a duty to review annually the forms of health care to which Part I of this Act applies.’.
This is a very simple amendment, which in many ways is an attempt to future-proof the Bill or to clarify and tease out whether the current definition of health care is wide enough. The reality is that health care is changing all the time. It has been delivered in a variety of different ways and from a variety of different venues. The amendment is particularly relevant to cosmetic surgery, where new techniques and procedures are coming forward all the time. In some cases, the definition of health care can be a little fuzzy at the edges and let us then factor into the equation the delivery of services. In the future we are going to see polyclinics; no doubt they will be fully captured by this, as will the super-GPs’ surgeries. There are plans for such things as walk-in centres in supermarkets, so presumably part of the supermarket will be regulated.
Currently, GPs’ premises are often not covered. The extension of GPs’ roles to embrace more services, including minor surgery, also needs examining. More and more services are provided by other practitioners, such as pharmacists. Locally, I can think of one that slightly blurs the edges; podiatry in which services have been cut back extensively—no pun intended. The local Age Concern group has trained people to a minimum standard and services are being offered in places that would not normally be regarded as standard health care settings. The amendment clarifies that the forms of health care will be subject to regular review, so if something has fallen through the gaps and has been missed , it can be regulated as soon as possible.
Mr. O'Brien: Looking at the amendment put forward by the hon. Lady and the Member for Leeds, North-West I can see that it is admirable in keeping the CQC at the cutting edge—pardon the pun—of regulation. Yet, it raises the question of whether there should be a right of appeal for the CQC to add to the definitions, the procedures and the practices that it comes across in its work. I wondered why the hon. Lady had decided to table an amendment referring only to health care and not also to social care, and she might wish to reflect upon that. Although I think that it could be a very good discipline indeed, I question whether in truth the Secretary of State is the best person to deal with it. I dare say that the hon. Lady might also want to reflect on that.
If the Minister is contemplating the amendment or looking at the reasons why he is not minded to accept it, I think it will be worth his noting whether clause 5 leaves the CQC with sufficient fleetness of foot in regulation. Developments happen so quickly in so many ways and there will be technologies that have a genuine impact, not just on health care but also on social care. I am thinking of things such as telecare, which is becoming a real way forward. There are some stupendously good examples in my constituency that give people new and greater opportunities to live independent lives with appropriate support. I hope the hon. Lady will realise that, with those comments, I am broadly supportive but would perhaps find it difficult to support her if she forces the amendment to a Division.
Mr. Bradshaw: The arguments used by the hon. Member for Romsey are exactly why we have drafted the definition of health care so widely, because that will give us the flexibility that she wants to see in the regulations. The definition, as we discussed earlier in connection with cosmetic procedures, is drafted widely. Clause 42 also makes provision for the commission to undertake reviews.
In response to the point made by the hon. Member for Eddisbury, clause 49 enables the commission to advise the Secretary of State about any changes that it considers might be necessary to the regulations to determine regulated activities. I do not think, given that, it is terribly sensible to require an annual review of the definition of health care that appears in the Bill in an enabling way. I think that is unnecessary. In the light of that, I ask the hon. Member for Romsey to withdraw her amendment.
Sandra Gidley: The amendment was really tabled for health care because health care is a fast-changing environment with many different providers. Social care is perhaps a more settled environment, although I do take points of the hon. Member for Eddisbury about telecare, which does change the dynamics. The amendment was tabled to probe the general principle and try to establish whether clause 5 had sufficient flexibility. I still think the issue of cosmetic surgery has to be resolved and kept up to date. It is something that will perhaps require regular review.
The CQC can make recommendations and I see no problem with responsibility belonging to the Secretary of State because they get the blame if anything goes wrong. However, I hope that any Secretary of State would take advice of the commission. In light of the fact that there seems to be sufficient provision already, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. O'Brien: I beg to move amendment No. 8, in clause 5, page 3, line 17, after ‘of’, insert ‘formal’.
This, too, is a probing amendment, so let us be clear from the outset. It provides an opportunity to ask the Minister whether the clause gives rise to a need to regulate informal carers. The CQC should certainly support such carers, of course, in every way possible. Carers UK estimates that informal carers save the UK about £87 billion a year and, according to the organisation, over three in five people in the UK will become carers at some time in their lives. There are around 6 million carers in the UK, although that is inevitably a broad estimate. The 2001 census estimated that there were 175,000 children in Britain caring for a member of the family, although that figure is believed to be much higher by those who work in the field. I suspect all of us believe from our own constituency caseloads that the national number must be larger than that. One has enormous respect and admiration for children who selflessly dedicate themselves to their often ailing parent.
The definition of social care in these wide terms, given its application to the entirety of part 1, is welcome as regards reviews undertaken by the commission, but I am looking at the way—and this is a probing amendment—that the amendment might jeopardise that. We need to be very careful how we operate here and I am trying to establish whether we are dealing with all forms of care—formal and informal.
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Sandra Gidley: I fully sympathise with the thought behind these amendments, but would the hon. Gentleman, as a lawyer, clarify whether introducing the word “formal” would require a definition? Would there be a grey area between “formal” and “informal”? Could this be a lawyers’ charter in the long run?
Mr. O'Brien: The hon. Lady is absolutely right to point out the difficulty of introducing a phrase that is not therefore carried through into the definitional area. To some degree, we are trying to define what we mean and I am more than open-minded on the definition. This is a probing amendment, but if we feel there is a valid point, we may want to revisit it on Report and the Minister, with his army of advisers, will be able to devise better definitions than I was able to come up with at 3 am in the House library. [ Interruption. ] It so happens that was the case on this occasion; it will not always be so.
It is important to test this issue because the Government’s intention as to whether just formal or both formal and informal carers should be regulated now becomes a moot point because of the most recent pronouncement by the Prime Minister, which was spun out. We all recall that as we were beginning our deliberations on 14 January, the Prime Minister suddenly announced, as reported in the Daily Mail, that the relatives of sick and elderly people would be paid a “salary” for looking after them under proposals revealed by the Government on 13 January. It was over the weekend that the Prime Minister said he would be seeking to provide a “salary” for carers. Looking at the proposals in detail, it is really important to establish what we mean by formal care. Is it what one is able to procure for oneself from a set of formal providers, or is it just the informal care that any one of us could, as a family member, be expected to provide?
I hope people are not going to be cynical or sceptical, but that they will take this point seriously. We now have a Prime Minister who has set a new bar for us, because he has talked about paying a salary for carers. This prompts the question as to whether they are now to be regarded as formal rather than the informal carers we have now come to recognise as absolutely vital to the future of the United Kingdom. With an estimated cost of £87 billion, there is very little we could do to replace them if they were not motivated and incentivised to do the right thing.
The proposals also do nothing to support those who care for people who are not eligible for state funding, and I think the Government’s tactics have to be questioned on that point. If state funding is going to be directed at informal carers—by payment of a salary or whatever—for somebody to look after a grandmother or a parent, I can see that down the line a Government who remain at heart centralising, which is the charge we would level at the Labour Government, could want some quality assurance about the care being purchased.
I hope that the Committee realises that it is not beyond the bounds of belief that the clause could be used to bring regulation into the realm of informal care—that is the best term that I could devise, but if any Committee member can come up with a better one, please help me. The same thing happened in education; look at how policy there has changed over the past 10 years. Very gifted early-years carers, who are often known as gifted amateurs, have been excluded by the Government, because of the need to regulate them and prevent blame from falling on other providers on health and safety grounds. That is very laudable, but it has removed a whole cadre of people involved in informal early-years care in a more educative environment.
I hope that the Minister will look at, listen to, and possibly confirm, my assessment of the funding of the system. We support the commission having the remit to include carers in its reviews, and I hope that he will confirm that it will. However, we are concerned that informal carers will have neither the time nor the resources to be formally regulated. Often they are balancing their caring responsibilities with jobs—be they full-time or part-time—or with educational and skills development opportunities if they are child carers. Nothing should be contemplated without consultation.
I hope that the Minister will confirm that although the legislation leaves the door open to that, neither he nor the Government have plans to require the registration of truly informal carers or of those receiving money under the carers allowance. The long-awaited Government proposal for a new deal for carers, which was announced a long time ago by one of his fellow Ministers, must be set against what the Prime Minister said recently, which leaves us with some confusion. As I said, this is a probing amendment—I say that with sincerity—but, given the concerns that remain, all of us will recognise the need for clarity.
Angela Browning: I declare an interest, because I am the named carer on the care plan of a close relative and I also directly assist him in managing his direct payments. I endorse the clarification that my hon. Friend seeks. I am horrified to think that, if I do not register as a service provider—I have been providing that service for 36 years—I could be subject to a fine “not exceeding £50,000”. I hope that the Minister will assure me that that will not happen.
I shall move the debate on a little to reflect on what I said in Committee this morning about the relatively new arrangements for those with direct payments and the way in which, with the agreement of the social services department, people are directly employed. Before direct payments, all sorts of job titles were attached to those working with people with learning disabilities or autistic spectrum disorders, not because they needed a medically qualified person with them, but because they needed assistance and somebody to perform certain tasks and to carry out certain functions. Sometimes they might need somebody with them to travel on public transport. We are not looking at people whose qualifications make them registrable.
With direct payments, which I thoroughly support—they are extremely good—people are not necessarily employed through registered agencies. It is a very informal arrangement. Many people like to apply the term “personal assistant” to those accompanying them in order to enable them to do things that are part of their formal care package. Social services and the social worker must agree annually that that is the right use of the direct payments, and be satisfied with the individuals providing those services, some of whom are paid, so that they will fall within the “formal” classification. I know of someone who works six hours a week as a PA, which is their only paid employment, and who does not meet the national insurance threshold, but who none the less carries out a valuable function. I would be horrified if I thought that such people were likely to come within the formal definition of chapter 2, as it would make life incredibly bureaucratic. The cost of registering would result in them not doing the work. Sometimes, those people are called befrienders, and some of them are paid befrienders. It would be a great shame if regulations had a disproportionately heavy impact on that group. I am sure that that is not what the Minister intends, but we need to be certain that the drafting does not make it a catch-all provision that sweeps up many people currently doing good work in that area.
Mr. Bradshaw: Once again, I entirely agree with the hon. Lady. I reassure her and the hon. Member for Eddisbury that is not our intention that the domestic or private arrangements that they outlined should fall under the requirement for regulation. However, I do not wish completely to pre-empt the outcome of the consultation. The Committee will recognise that domiciliary care provided by an agency will be covered, but the sort of private arrangements referred to will not. It is certainly not our intention to cover the thousands or millions—the army of people—currently in receipt of the carer’s allowance.
Mr. O'Brien: I am obviously grateful for that assurance. We have had a useful and important discussion on the amendment, not least because it enlisted the expertise and experience of my hon. Friend the Member for Tiverton and Honiton. I pay tribute to her, as she often brings her experience to bear on these important subjects.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. O'Brien: I want to speak briefly. I am sure that all members of the Committee are wondering whether we are ever going to reach the later clauses, and I appreciate that at times it must be quite exacting for Government Back Benchers. However, the principles enshrined in clause 5 form the nub of the Bill.
The Minister may be very conscious of the fact that he now has quite a burden on his shoulders. Perhaps on Report, he must ensure that the rights base—the Human Rights Act loophole identified and articulated by the hon. Member for Luton, North—is properly considered and addressed. In other parts of the Bill, we need to add health care, as identified by Anna Walker, when she gave oral evidence on public health and health regulation and on the Health Commission’s approach.
We had a big debate on cosmetic treatments and procedures, on invasive and non-invasive surgery, and on health-related assessments for work. There is also a need for forms on health care, perhaps on social care and, when it comes in, telecare, to be reviewed annually. We also had a great debate on formal and informal social care. On that basis, I hope that the Minister—
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Sitting suspended for a Division in the House.
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On resuming—
Mr. O’Brien: I was concluding my remarks on clause stand part just as the Division bell rang and you adjourned the Committee, Mr. Hood.
Question put and agreed to.
Clause 5 ordered to stand part of the Bill.
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