Clause
6
Requirement
to register as a service
provider
Question
proposed, That the clause stand part of the
Bill.
Mr.
O’Brien:
Will the Minister confirm whether CSCI and
the Healthcare Commission have had to date the power set out in the
clause? What examples can he give of where punishments of fines or
imprisonment
have been exacted under the equivalent powers for the two current
regulators? On the basis of those actions, is this, in the words of
Goldilocks, too much, too little, or just right? Does this make sense
when applied to both health and social care, or would the courts sort
that out? I hope that the Minister will take this opportunity to give a
response to those
questions.
Mr.
Bradshaw:
The powers already exist. The levels of the
fines have been increased, as the explanatory notes explain, from
£5,000 to £50,000. I cannot give the hon. Gentleman
chapter and verse on how many fines have been levied and how many
people have been sent to prison. He can ask the existing regulators, or
I can ask them on his
behalf.
Question
put and agreed
to.
Clause 6
ordered to stand part of the
Bill.
Clause
7
Applications
for registration as a service
provider
Question
proposed, That the clause stand part of the
Bill.
Mr.
O’Brien:
Will the Minister confirm that he expects
a uniform application form for health and social care providers? Does
he expect that to differ from the current application form, both in
content and volume? What time limits on response would he expect in
these
cases?
Mr.
Bradshaw:
Yes, we envisage a uniform form. I cannot tell
the hon. Gentleman whether it will be exactly the same as the current
forms. On the time limit for responses, again, I shall have to get back
to
him.
Mr.
O’Brien:
I am grateful. We are trying to be as
dispatchful as possible in getting through these clause stand part
debates. To the extent that the Minister is agreeable, any answers to
my questions that he can provide at a later stage in writing to help
the Committee will be greatly
appreciated.
Question
put and agreed
to.
Clause 7
ordered to stand part of the
Bill.
Clause
8
Grant
or refusal of registration as a service
provider
Mr.
O’Brien:
I beg to move amendment No. 9, in clause
8, page 4, line 27, at end
insert—
‘(5A) In acting
under subsection (5) the Commission shall be obliged to publish its
reasons for any actions it
takes.’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 10, in clause 11, page 5, line 31, at end
add—
‘(5A) in acting under
subsection (5) the Commission shall be obliged to publish its reasons
for any actions it
takes.’.
Mr.
O’Brien:
Under the clause relating to the grant or
refusal of registration as a service provider, we are seeking to place
some restriction on the actions that the commission may take “at
any time”. Amendment No. 9 would add a new subsection (5A)
providing that
“the
Commission shall be obliged to publish its reasons for any actions it
takes.”
Amendment No. 10
does the same for the processes in clause
11.
I am happy that
the regulator needs to be fleet of foot—a phrase that I sought
to impress on the Minister earlier—in its approach to regulation
and that as it registers and reviews services, it might find that
important additions are needed to the registration procedure. Our
concern is somewhat simple, but twofold. The Bill gives the commission
the licence to change the registration of providers at will, and with
what regularity it chooses. What assurances can the Minister give that
that will not happen to the point at which it could become
unpredictable and, at worst, done on a whim, rather than at
will?
More
concerning, given the lack of independence from ministerial meddling
that the CQC has regarding the arguments that we have managed to make,
but the Minister has not accepted, are the potential changes in
registration that are driven by political exigencies rather than
regulatory need, without any reference to the House or consultation
with stakeholders. Under what circumstances does the Minister see those
powers being used? Does he have examples from the current regulators,
and what checks and balances are in place so that they are not
abused?
Mr.
Bradshaw:
We agree that it is important that there should
be a proper procedure for the Care Quality Commission to follow when it
makes certain decisions about registering or deregistering a regulated
activity or a manager, or about suspending registration or amending the
conditions of registration. We have set out those procedures in clauses
22, 23 and 24.
Under
clause 22, in particular, we require the commission to give its reasons
for such a decision in a written notice to the relevant registered
providers or managers. We also agree that the public will want to be
reassured that the commission has taken appropriate action where
providers fail to meet requirements. We want the commission to publish
information in relation to enforcement, but not in relation to some of
the rather everyday activities of managing the conditions that it
places on the registration of providers or managers. For example,
registration conditions could change simply because a provider wished
to provide a new service, or to cease to provide an existing service.
Conditions can also change as a result of changes in premises or a
change in staff. We believe that it would be unreasonably bureaucratic
to require the commission to publish its reasons for making those
changes in all those areas.
That is why we have made clear
in clause 83 that regulations may allow or require the commission to
publish information about the enforcement action it has taken. That is
so that we can differentiate between enforcement action and routine
administrative processes. We believe that extending the requirements in
the way proposed in the amendments would be excessively burdensome and
bureaucratic.
Mr.
O'Brien:
In the light of what the Minister has said, I
think that the concerns that we outlined are understood. I hope that
the exchange lying on the record will help those who will need to
understand those matters. On that basis, I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave,
withdrawn.
Clause
8 ordered to stand part of the
Bill.
Clause
9
Condition
requiring registered
manager
Question
proposed, That the clause stand part of the
Bill.
Mr.
O'Brien:
Briefly, it is worth the Minister taking note
that if he is looking for an example of a clause that is shot through
with the word “prescribed”, this is the one. Above all,
this is where those of us who are desperately trying to understand and
scrutinise the Bill find that its drafting means that we need to have
almost all the documents at our disposal to make sense of it. I hope
that he will note that. If he can offer any greater clarification when
we come back to consider these matters on Report, I am absolutely sure
that that would be welcomed by members of the
Committee.
Question
put and agreed
to.
Clause 9
ordered to stand part of the
Bill.
Clauses
10 to
12 ordered to stand part of the
Bill.
Clause
13
Cancellation
of
registration
Question
proposed, That the clause stand part of the
Bill.
The
Chairman:
Clause 13; unlucky for
some.
Mr.
O'Brien:
I fear that it is unlucky for you, Mr.
Hood, because I have stopped you in your flow, but it just so happens
that 13 has always been my lucky number, so I have to hope that this is
the one for me.
I
simply have a question for the Minister, which is lucky for everyone.
What protection does clause 13 offer the taxpayer, or indeed council
tax payers, with regard to contracts cancelled as a result of such
action? We are looking at the cancellation of registration, so I hope
that his briefing will give me the answer to that question because I am
sure that that will be seriously contemplated by those trying to
understand the import of the
Bill.
Mr.
Bradshaw:
Of course, such a sanction would be used only as
a very last resort. It would be used, for example, if the regulator
felt that the immediate closure of a hospital or care home would
endanger people’s health or even their lives. Given that
assurance, I hope that the hon. Gentleman accepts that situations in
which life or the quality of care are seriously at risk will be the
priority of a robust, independent regulator.
Question put and agreed
to.
Clause 13
ordered to stand part of the Bill.
Clause
14
Suspension
of
registration
Mr.
O'Brien:
I beg to move amendment No. 11, in
clause 14, page 6, line 34, at
end insert—
‘(c) documented
reasonable grounds for taking action have been laid before the board of
the
Commission.’.
Our
amendment proposes to tack new paragraph (c) on to subsection (2),
which
states:
“Except
where the Commission gives notice under section 27, the power conferred
by subsection (1) is exercisable only on”
the outlined grounds. The amendment would
establish a clear audit trail that could be interrogated in the case of
appeals. I am sure that the Minister will be the first to accept that
that is an absolutely appropriate best practice, which is what we have
all been trying to put in place for many years in the public and
private sector and within the professions. Those in the professions are
being considered here because they are providing a service on behalf of
others. I cannot understate the importance of such an
amendment.
Sandra
Gidley:
It is not clear from the amendment whether the
“documented reasonable grounds” would be publicly
available in the first instance. I have a concern that if all is proved
well, something will have been put in the public domain that could cast
an adverse light on a body. There are vexatious complainants who have a
habit of making complaints about various bodies. I wonder how we
balance protecting the innocent on both sides of the equation when
publishing information.
Mr.
O'Brien:
I am grateful for the intervention because the
hon. Lady raises a very powerful and valid concern. We are often
dealing with some pretty sensitive issues in relation to such matters.
Clearly, the amendment states that the grounds have to be
“documented”, which imposes an obligation to get things
down in writing. That is often one of the first disciplines that is
jettisoned by those who might have something to hide. The amendment
also suggests that the grounds have to be
“reasonable”—and that must be the right test for
taking action—before they can be laid before the board of the
commission. So, disclosure will be governed by where such requirements
relate to board
payments.
The point at
which reasonable grounds are being considered will be an internal board
matter. Patently, if a board makes decisions, all those matters are
ultimately publicly discloseable—that is the very nature of what
they are about. Therefore, given the sensitivity, I am sure that some
protections are already in place. However, I need to be careful not to
take the position of the Minister because this is his Bill and,
ultimately, it has to be his drafting. The amendment makes clear that
the process of getting the information documented, the test of
reasonableness and the fact that it is presented to the board would
mean that the controls that normally apply so that sensitivities within
information can be contained before they are published would equally
apply to the disclosure of board papers.
Sandra
Gidley:
I thank the hon. Gentleman for that
explanation. My other concern is that such a suspension could be
open-ended. Is he in favour of putting a time limit on the
documentation being
produced?
6.30
pm
Mr.
O'Brien:
That is an interesting point. With anything that
involves a decision, the time limit of the documentation that we are
calling for would have to ride with the timetable on decision making.
There are obligations on the part of the commission operating through
its board to make timely decisions, and there will be a process by
which it is under some form of need to produce a determination on the
particular expectation of
outcome.
I am
reluctant to impose a timetable that goes beyond the normal expectation
of the board’s operation. However, I am grateful to be asked the
question because it forces me to explain what we want to achieve. We
want an audit trail. An audit inevitably comes after decision making.
We want it documented and made available. It must demonstrate that a
reasonableness test on reasonable grounds has been applied and
considered by the board. That the test would have been timely and
available to the board when it was deliberating important matters is
what we want to achieve through an audit trail. After all, it would be
a post-event matter rather than a pre-event matter or a contemporaneous
event, so documentation is necessary to make sure that the board is
behaving and advising itself
properly.
I hope that
the Minister will take the opportunity to satisfy the Committee that
the Bill will generate an audit trail as matters stand or be willing to
contemplate the intention behind the amendment. I expect him either to
adopt it or to come back on Report with something that will govern
expectations of the way in which the board and the commission will
operate.
Mr.
Bradshaw:
As I said, we agree that it is important that
there should be a proper procedure for the Care Quality Commission to
follow when it makes certain decisions about registering,
deregistering, suspending registration or amending the conditions of
registration. We have set out that procedure under clauses 22, 23 and
24. In clause 22, in particular, we require the commission to give its
reasons for such a decision in a written notice to the relevant
registered managers or
providers.
It is
inconceivable that the new commission’s board would not want to
ensure that it was content that the commission’s actions,
particularly when serious, are reasonable and defensible. It will need
to be accountable for the commission’s decisions and for them to
be made appropriately. We do not think that it is for us, but for the
organisation itself, to establish the organisational and board level
processes that it needs best to carry out its statutory functions in
such a way. For that reason, I ask the hon. Gentleman to withdraw his
amendment.
Mr.
O'Brien:
I am somewhat reassured by what the Minister has
said. It is not unreasonable. What will be placed on the record will be
read by those who must undertake such duties and I hope, therefore,
that they rise to the expectations that will be placed on them. I beg
to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
14 ordered to stand part of the Bill.
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