Health and Social Care Bill

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Clause 18

Consultation etc. in relation to code of practice under s. 17
Question proposed, That the clause stand part of the Bill.
9.30 am
Mr. O'Brien: I note that in clause 18, both the phrase
“consult such persons as the Secretary of State considers appropriate”
in subsection (1)(b), and the phrase
“substantial change in the code”
are obviously very general statements, as is
“maintaining the power vested in the Secretary of State.”
It would be helpful, as we consider this clause, if the Minister could briefly outline what the force of the statement in subsection (1)(b) is on the consultation. What would he expect a substantial change in the code to be, in terms of degree?
Mr. Bradshaw: This leads on rather nicely from the debate that we have just had, because it might have been helpful to say that the codes of practice will be consulted on and debated fully. That will give a chance to hon. Members and anyone who has a view to say what should be in the code. However, this is standard language used in any legislation for consultation. Clearly, the Secretary of State will consult people whom we currently consult. That provides us with the flexibility that we, and the Liberal Democrats, believe is so important in dealing with the ever changing challenges and in taking on board new ways of dealing with those challenges. That is what we intend to do.
Question put and agreed to.
Clause 18 ordered to stand part of the Bill.

Clause 19

Guidance as to compliance with requirements
Question proposed, That the clause stand part of the Bill.
Mr. O'Brien: It would be useful for the Committee if the Minister could let us know how regularly the current regulators issue and re-issue such guidance, and how often he expects the CQC to publish such guidance. There is an obvious burden of bureaucracy at issue for providers here, and some indication would be helpful as we consider the clause.
Mr. Bradshaw: I cannot answer that question now, but I will try to do so by the end of the morning sitting.
Question put and agreed to.
Clause 19 ordered to stand part of the Bill.

Clause 20

Consultation in relation to guidance under s. 19
Mr. O'Brien: I beg to move amendment No. 76, in clause 20, page 10, line 19, at end insert—
‘(c) consult and have regard to the advice of the service user panel.’.
The Chairman: With this it will be convenient to take new clause 2—Duty to establish and maintain service user panel—
‘It shall be the duty of the Commission to establish and maintain an advisory panel to be known as “the service user panel”.
(5) The service user panel shall be comprised of such members as appear to the Commission to represent the views and interests of patients, service users and the public.
(6) The service user panel shall have such functions as determined by the Commission.
(7) The functions of the service user panel as determined under subsection (2) must include contributing to and advising the Commission upon:
(a) the annual plans of the Commission for inspections, reviews and special reviews, and inquiries,
(b) guidance on compliance with registration requirements,
(c) indicators to measure the compliance of registered organisations with the registration requirements,
(d) methodologies for performance measurement, and
(e) methodologies for inspection.
(8) The Commission may request the service user panel to help it to ascertain, from time to time, the opinions and level of satisfaction of patients, service users and the public with regard to the activities to which the Commission’s functions relate.
(9) The service user panel may establish and maintain such arrangements for consultation with patients and members of the public as agreed with the Commission as relevant and appropriate to the carrying out of the functions conferred on it by the Commission.’.
Mr. O'Brien: New clause 2 seeks to establish a service user panel, and amendment No. 76 is consequent on that, making sure that the CQC consults such a panel in formulating guidance under clause 19. Naturally, that builds on the discussions that the Committee has already had on service user involvement under clause 2 and amendments Nos. 2 and 134. The Committee can refer back to the points that were made in column 146 and following, rather than me restating them into the record. I hope that that is a helpful reference. I highlight again that, in response to the consultation preceding this Bill, the Department stated that
“many responses supported the greater input from patients and users of services proposed in the consultation document... The Care Quality Commission will be a user focused organisation”—
and I emphasise—
“recognising that it can only do this effectively by involving them.”
Which? notes in its submission:
“It is a startling omission 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.”
Again, I would encourage the Minister to heed the Conservative party’s commitment to Healthwatch, a national consumer voice for patients and service users.
The service user panel can provide a high-level mechanism by which the commission can receive advice from service users. Plans, processes and methodologies that are relevant to the quality of care, the experience of service users and the successful engagement of service users generally can be developed in co-operation with an expert group on such matters. Patients and service users will be reassured that there is a voice for their interests at a high level. Moreover, the panel can seek wider views as required, which will further build confidence in the regulator.
Ofcom has a consumer panel that plays a similar role, and it convenes a regular consumer forum of interested parties such as consumer and disability organisations. The Office of the Health Professions Adjudicator, under clauses 101 and 102, and the Council for Healthcare Regulatory Excellence, under clause 108(4), are both given duties to consult the public, including bodies that seem to them to represent the views of patients; there is no such duty for the commission. The service user panel can at least act as a proxy for such wider consultation.
The Minister made clear in an earlier debate that the Department expects the CQC to establish, under schedule 1, paragraph 6, a panel similar to that proposed in the amendment. That will give the commission the duty to establish at least one advisory panel. No doubt, that commitment will be used to call the CQC and the Minister to account when the CQC begins operating.
The Minister noted that he was still reflecting on the issue, and he undertook to come back to the Committee with clearer thinking on the subject. We hope that he will include Local Involvement Networks in the Bill—I am sure that the Committee remembers that discussion—and consultation with patients and service users.
Does the Minister agree that the voice of patients and service users is key to generating effective guidance on compliance with requirements? Does he agree that the new clause and amendment No. 76 would give him the precise vehicle that he seeks, and that he will therefore be minded to accept them?
Mr. Bradshaw: As I have indicated in previous sittings, I am still reflecting on the question of public and patient involvement. In respect of the Opposition’s affection for the new national body Healthwatch, there is nothing to stop LINks forming a national network if they wish, but we are trying to move away from the top-down approach from Whitehall to a more bottom-up approach. We would certainly welcome that development. It is very much up to LINks, as autonomous bodies, to decide if that is what they would like to do.
As I have indicated, part 1 requires the commission to have regard for the people who use the services in everything that it does. As the hon. Gentleman acknowledges, the Bill already requires the commission to establish an advisory committee under schedule 1, and it also provides for the commission to establish further committees or sub-committees, such as one that comprises solely service users. They might have specific functions or a more general function, allowing the commission to decide how best to seek input from different representative groups.
The problem with the new clause is that it proposes that the commission should determine the functions of the panel, while specifying a number of functions that must be included. Again, there is a debate to be had between flexibility and inflexibility. The new clause seems to be giving the commission the flexibility to decide how it uses the panel, but we believe that the commission can use a group to look at specific matters. It is important that a representative group should have the freedom to express its views in relation to any of the commission’s functions, rather than being restricted to functions specified in the clause, and any other matters that the commission determines. That is reflected in schedule 1.
Clause 43 requires the commission to publish a document on the frequency of reviews, and clause 75 requires it to publish its programme of special reviews and investigations. As with all the commission’s functions, it must have regard to the views of the public when preparing those documents. On the basis of those reassurances, I invite the hon. Gentleman to withdraw the amendment.
Mr. O’Brien: I am grateful to the Minister for restating that he continues to reflect on these matters. It would therefore be premature to press the amendment at this stage. I think that we can with some confidence look forward to something being produced on Report, given what he said. However, I caution the Minister against being a little too ready to be contemptuous of the concept of Healthwatch. It may well be instructive that he wants to give that rather more thought when he is reflecting on these matters. He will recall that the establishment and coming together of LINks was something that was won in another place on another Bill, on which my noble Friend Earl Howe led. Therefore, the Minister needs to be a bit careful about assuming that he has found the magic recipe for the bottom-up approach, rather than the Whitehall, top-down approach. Healthwatch is intended to be part of an organic, bottom-up approach. Having offered those cautions, but in the positive context in which the Minister is reflecting on these matters, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. O’Brien: I beg to move amendment No. 23, in clause 20, page 10, line 25, at end insert—
‘(c) lay the draft guidance before Parliament.’.
The amendment simply calls for the Secretary of State to lay before Parliament the draft guidance on compliance with requirements. Therefore, this is simply a matter of the Minister letting us know whether he thinks that Parliament should not have the right to debate such guidance.
Mr. Bradshaw: As with a similar amendment proposed to clause 18, I appreciate the Opposition’s concern with parliamentary scrutiny of these issues. Again, however, I am not wholly convinced that this proposal would represent the best use of parliamentary time. Standards for better health, against which the Healthcare Commission judges NHS bodies, are not currently laid before Parliament; nor are the national minimum standards that both the Healthcare Commission and the Commission for Social Care Inspection use to determine whether those health and adult social care providers that they register are fit to remain registered.
The clause includes specific provision requiring the new commission to consult on the guidance, or on any substantial revisions to it. The hon. Member for Worthing, West (Peter Bottomley) commented on Second Reading that there is a point at which one has to trust on such matters and the Secretary of State should be relied on to carry out an open and genuine consultation. I argue that we should be equally satisfied that we can rely on the commission to consult such people as are appropriate when developing guidance under the clause. The guidance will then be published. It will be a public document available for anyone with an interest to read. That is a reasonable arrangement. For that reason, I invite the hon. Member for Eddisbury to withdraw the amendment.
Mr. O’Brien: In the light of those comments, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 ordered to stand part of the Bill.

Clause 21

Effect of code under s. 17 and guidance under s. 19
Mr. O’Brien: I beg to move amendment No. 24, in clause 21, page 11, line 17, leave out subsection (3).
I am sure that hon. Members on both sides of the Committee realise that this clause relates to a slightly different concern. Amendment No. 24 would delete subsection (3), which states:
“A failure to observe any provision of a code of practice under section 17 or guidance under section 19 does not of itself make a person liable to any criminal or civil proceedings.”
That removes any legal sanction or teeth behind the provision.
9.45 am
The explanatory notes to the Bill state:
“Although a failure to comply with either the Code of Practice or the Commission’s own guidance does not in itself constitute and offence, they may both be used as evidence in criminal or civil proceedings as examples of what is expected behaviour in the areas they cover.”
Writ large across the amendment are those 270 patients who died from superbugs as a result of the appalling hygiene standards of the Maidstone and Tunbridge Wells NHS Trust, 90 of whom died from C. difficile.
In its report into the deaths at Maidstone and Tunbridge Wells, the Healthcare Commission estimated that
“of the total 345 patients who died in the relevant periods who had been infected with C. difficile, there were approximately 90 deaths where C. difficile was definitely or probably the main cause of death...C. difficile definitely contributed to the deaths of approximately 145 out of 345 people, and probably or definitely to approximately 270 out of 345 people.”
Both the Health and Safety Executive and Kent police investigated whether they could bring charges against senior managers. I think that I am right in saying—I am more than happy to stand corrected if it is not the case—that neither the HSE nor Kent police have yet drawn any conclusions, or brought the matter to a conclusion. That is relevant because the force of this clause may be to limit what the commission can and cannot do.
The Committee will also be aware that the chief executive, Rose Gibb, was told that she would get a pay-off of at least £250,000 when she quit. Although the Secretary of State stepped in to block that payment, the Department has not yet confirmed whether he was successful. The Sunday Express, on 30 December 2007, reported the following:
“Sources at the Department of Health conceded it is ‘likely’ that she will eventually receive at least some of the money when legal arguments are finished.”
Two health care assistants have been sacked from the trust. One staff nurse and another health care assistant have been disciplined, but will remain. In light of that and similar cases, should not the Committee leave the door open for failure to observe the provisions of the code of practice on health care associated infections to be justiciable or triable in court? Does it not say something about the lack of seriousness with which the Government are approaching the issue, and their lack of faith in their own code and in our NHS, that they may be unwilling to do so?
If amended, this clause would enable an individual to sue for negligence on the basis of illness or injuries arising from the failure to observe the code of practice on HCAIs. This issue is crucial to understanding the import of the question whether the clause should stand as it is, thereby removing the teeth of any form of civil or criminal legal sanctions. For example, has the Secretary of State been successful in blocking Rose Gibb’s £250,000 pay-off? I am sure that each and every one of us would regard it as a scandal if she received a penny piece, in the light of what took place. Where are the police investigations up to, and why should such failings not end up in court? If they are not to end up in court, why should we engage the police’s time at all? Surely, the whole point would be to have internal inquiries or a commission inquiry.
If the commission has no teeth, what will be the sanctions? As we all know, it is very rare that one needs to refer to legal sanctions, if they exist, because everyone knows whom they are dealing with—the commission or the police—and where the case may end up. That, in itself, has an extraordinarily powerful effect, without ending up in either civil or criminal proceedings. If those sanctions are not available, I can well imagine that people will be able to run rings round this provision. I hope, therefore, that the Minister realises that our amendment would give to the commission, which the Government are putting into statute, the teeth that it currently lacks, in order to ensure that it is effective. Rejecting the amendment will create problems over time. It would be genuinely instructive to keep in mind the events at Maidstone and Tunbridge Wells and, in particular, Rose Gibb and what might have happened as a result of the failures that she unfortunately allowed to happen.
Mr. Bradshaw: This clause and the amendments do not relate to employment contracts or redundancy arrangements, so I shall not comment on them.
I welcome the hon. Gentleman’s support for the new enforcement powers and I share his desire for them to have teeth. However, the amendment is perhaps based on a misunderstanding of, or a blurring of the distinction between, guidance and regulation. The amendment would give statutory force to the guidance, but it is the regulations that will have statutory force. The guidance will inform the regulations, which we will consult on, as I have indicated on a number of occasions. The problem with giving statutory force to guidance is that it is not scrutinised by this House, which is why subsection (2) of the clause clarifies that, as is common, guidance can be used in court as evidence of what could reasonably be expected to constitute compliance with the legislative requirements. Those are what have the legal force, because they are scrutinised by Parliament. That is in the interests of fairness and justice to the accused.
I have made it clear that I do not think the amendment appropriate. The Bill and regulations made under it will set out all the legal requirements that the services must meet. Clause 31 makes it an offence to contravene or fail to comply with those requirements. It would be inappropriate, therefore, to make it a criminal offence not to comply with the guidance, when it will be an offence not to do so with the regulations, which will be informed by the guidance.
Mr. O'Brien: We are genuinely struggling with this point, although I am grateful to the Minister for seeking to address it. Often the easiest way for the Opposition to scrutinise a Bill is simply to ask why something has been drafted in a certain way. However, we really are wrestling with this piece of drafting. Interestingly, during consideration of previous clauses, I did not ask why the Government have used in the Bill the words, “health care associated infections”. The word “associated” seems to have become a substitute for “acquired”, which is more commonly used; indeed, the Minister used it earlier. When one sees a word moved like that, one must question what is meant by it. It could not have happened by accident, because those who draft these Bills are highly expert wordsmiths and lawyers. It is right, therefore, that we question this.
I was very interested in the Minister’s answer. He spoke about how removing clause 21(3) would give guidance statutory force, when it should be, in effect, best-practice advice—I think that that is what he suggested—and about the resulting inflexibility. I can understand that in relation to clause 19; however, clause 17 refers to a code of practice. The Minister, therefore, seems to be saying that the code of practice is no more than guidance. This point has been central to our discussions this morning: are we really saying that, because this is such a framework portmanteau Bill—drafted in generic terms and hugely dependent upon the publication, scrutiny and acceptance of the regulations in order to bring into play the true force of law—the code is to be no more than guidance? In that case, why is there a distinction between “code” in clause 17 and “guidance” in clause 19? If there is no difference, should we not just call them one thing?
Alternatively, should we not recognise that the code is likely to need some statutory underpinning, so that breaches of its provisions are justiciable? That would give the commission enforcement powers that would carry the credibility that we all want. We discussed whether the list was sufficiently comprehensive and flexible under previous amendments, the essence of which was to put parliamentary prioritisation in the minds of all of us who are concerned about the matter. Here, the amendment would give legal earnest to the operation of the commission, using its code. There is differentiation between the words “code” and “guidance” in the two clauses, and if the Minister is going to resist the amendment because he believes that a breach of guidance should be subject to statutory legal proceedings, my point about that difference remains valid. I am not satisfied on the point, and I think that it will be appropriate to press the amendment.
Mr. Bradshaw: Was the hon. Gentleman looking for a response, or does he wish to press the amendment come what may? I do not want to detain the Committee.
Mr. O'Brien: It would be helpful if the Minister responded, because I might be able to judge whether to press the amendment further.
Mr. O'Brien: In that case, because we now have it on the record that “code” and “guidance” are indeed the same thing in this case, and that they are not intended to be justiciable either civilly or criminally, I do not need to press the amendment to a Division. The issue is left standing and perhaps needs to be thought through, in the absence of knowing the remit of the regulations that will be the statutory underpinning giving rise to legal proceedings. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 ordered to stand part of the Bill.
Clauses 22 to 24 ordered to stand part of the Bill.
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