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.
Bradshaw:
First, the words “code” and
“guidance” are equivalent in this case. We are using the
word “code” in one instance for consistency and
continuity with the existing health care associated
infection code of practice. The hon. Gentleman asked why we have
changed the wording from “health care acquired” to
“health care associated”. It is partly to broaden the
definition, because there have been cases, for example, of visitors to
hospitals acquiring infections, which is nothing to do with their own
health care. The infection is not acquired through their health care
but associated with health care in general. I hope that that helps the
hon.
Gentleman.
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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