Clause
25
Warning
notice
Question
proposed,
That the clause stand part of the
Bill.
Mr.
O'Brien:
On amendment No. 88, it would not be in order to
do more than note that it was not selected because it was outside the
scope of the clause. However, I hope that the Committee accepts that it
would be sensible to flag up our thinking the clause. I believe that we
will have the opportunity to debate the matter later, but I want to
signpost that warning notices would also be triggered by
recommendations arising from complaints. At the moment, we have not
seen that, and I hope that we can return to that issue later in the
Bill. We thought it relevant to this clause, but we were unable to
frame a suitable amendment to force debate, so we will leave it to
another time. I hope that that is a useful signpost for the
Minister.
Question
put and agreed
to.
Clause 25
ordered to stand part of the
Bill.
Clause
26
Urgent
procedure for
cancellation
Question
proposed, That the clause stand part of the
Bill.
10
am
Mr.
O'Brien:
There is some discussion to be had on this
clause, because it concerns urgent cancellation, which is done on
application to a justice of the peace. We will have a longer discussion
on the role of justices of the peace when we debate part 3 of the Bill,
and my hon. Friend the Member for Guildford will lead for us on
that.
I assume that
the clause is the legislative framework for the much trailed 24-hour
closure of hospitals. The Committee should know that by agreeing to the
clause it will be supporting that power. The Department briefed on this
on 23 October, before the Bill was published. On 24 October, there was
a written ministerial statement, which The Times and The
Daily Telegraph both reported. They reported that the Secretary of
State was angry that the Healthcare Commission did not step in to try
to protect patients or alert the Government to the scale of the problem
when it first made its
report.
A draft of the
Healthcare Commission report into the problems at Maidstone and
Tunbridge Wells arrived at the Department on 3 May 2007, but no action
was taken by the Department at that point. This is a useful opportunity
for the Minister to explain why. The Times further
reported:
“The
Health Secretary is also expected to reveal in a Commons statement that
the new inspectorate will have powers to sack doctors and trust chief
executives
immediately”.
The
Secretary of State already has the power to suspend board members, but
the previous Secretary of State did not use that power when she
received the Healthcare Commission report in May. Furthermore, there
was no mention of the Care Quality Commission having that power in the
ministerial statement of 24 October, by which time we had a new
Secretary of State. I cannot see a reference to the power in the Bill.
No doubt the Minister will point it out to us if I have missed
it.
The Committee
should also note Anna Walker’s response to the hon. Member for
Birmingham, Northfield when she gave evidence to the Committee. She
said that the new powers to close wards “are not
necessary” and
that
“we do not
overwhelmingly need them.”——[Official Report,
Health and Social Care Public Bill Committee, 8 January
2008; c. 23, Q
32.]
However, she also said
that
“we will use them
if they are there.”——[Official Report, Health
and Social Care Public Bill Committee, 8 January 2008; c.
23, Q 31.]
I am sure that the
hon. Gentleman will remember that exchange, and I hope that he will
tell the Committee what insight he gained from that line of
questioning, which we thought interesting.
In the same sitting, Ian
Kennedy said
that
“anybody
contemplating that you close a major accident and emergency
unit...is not in a world that I
recognise.”—[Official Report, Health and Social Care
Public Bill Committee, 8 January 2008; c. 24, Q
33.]
In his statement to the
press on the day of the Committee hearing, he said
that
“it would be
cavalier to close an element of a major public service without offering
patients any
alternative.”
Having
highlighted those issues, I hope that the Minister will confirm to the
Committee whether that is the current arrangement and whether it
provides sufficient checks and balances.
With half an eye to the next
clause, will the Minister also tell us how the Human Rights Act 1998
would be applied in circumstances in which urgent cancellation might
breach aspects of that Act? For example, the cancellation of a nursing
care home’s registration might lead to the quick eviction of its
residents. One
can imagine such a scenario, and it is our job to work out how the
rights of patients in such circumstances would interleave with the
protection that must be afforded if something has gone sufficiently
wrong that a notice withdrawing registration has been received. I
appreciate that this point may be a touch legalistic, as I am not sure
that if I had a relative in a home that had had its registration
removed, I would be very keen for that relative to stay there a minute
longer, because I expect that there would be good reason for such a
move. However, if the relative were very frail, the speed of eviction
might have to be balanced, so the issue of rights would be
relevant. We need to
ensure that people’s choices in those circumstances are not
limited by the absence of alternatives. There may be practical
considerations for people who live in remote areas where there is only
one care home for many miles, but equally often people do not have
caring relatives or friends who can look out for them when such
difficult urgent decisions need to be made.
I hope that the Minister will
be able to deal with the question of how the power will help the CQC to
deal with superbugs in hospitals, given the remarks made on behalf of
the Healthcare Commission in oral evidence. Is the power to be granted
on the basis of exigency rather than need? I hope that the Government
are not trying to sound tough in the light of recent events. We saw
that the Department had briefed The Times to the effect that the
CQC will have the power to sack doctors and trust chief executives
immediately; but at the moment we struggle to see where that power is
set
out.
Jeremy
Wright (Rugby and Kenilworth) (Con): Does my hon. Friend
also consider that there may be an issue relating to appeals? If an
order for the closure of, for example, the type of residential facility
that he has described is made with immediate effect, so that residents
are moved out almost immediately, and an appeal is won 28 days later,
there may be a difficulty for those who own and run the
facility.
Mr.
O'Brien:
I am grateful to my hon. Friend—I had not
thought about that. It is an important point, because the purpose of
the 28-day appeal period is to give people an opportunity for fairness
and justice; yet such a situation would not arise unless matters were
judged to be so serious that most people would say that it was time to
get out. It is a matter not only of fairness and justice for the
providers or owners of the care setting, but of the rights of, and
fairness and justice for, the patients. They are often so frail and
vulnerable that the prospect of a move from surroundings that have
become familiar—this may be particularly important for people
with dementia, who hold on to the physical aspects of their
surroundings more than other things—can be sufficiently
dislocating to cause their condition to decline. We would all want such
effects to be avoided. My hon. Friend’s point is extremely
interesting and important, and I expect that the Minister will respond
to
it.
Mr.
Bradshaw:
I imagine that we shall shortly come to a more
general discussion of the powers, so I shall not dwell on that subject
now but speak instead directly to the clause, which gives the Care
Quality Commission
power to apply to a justice of the peace for an order urgently to cancel
the registration of a service provider or manager. It sets out the
tests that must be met, and requires the commission to notify a number
of bodies when it applies for such an order. We all recognise that
there may be exceptional occasions when such action may be necessary.
The condition for taking such a drastic course of action would be that
there was serious risk to a person’s life, health or
well-being.
It is
important to deal with concerns about notifying the relevant bodies
quickly when such an application is made, because, as the hon. Member
for Rugby and Kenilworth has pointed out, arrangements will need to be
made to look after any patients or clients who may be affected. That is
why the provisions require the commission to notify, where appropriate,
the relevant local authority, primary care trust or strategic health
authority monitor. I do not want to engage in a debate about the powers
now, because we shall come on to that in a moment, but I remind Members
of the evidence given to the Committee by Dame Denise Platt. She
recognised, as we all do, that some of the new powers in the Bill may
not, as the hon. Member for Eddisbury said, be appropriate for acute or
accident and emergency wards. However, CSCI welcomes the new and
broader range of powers because at present it is faced with the stark
choice of nothing or closure.
These are permissive powers,
but that does not mean that the Care Quality Commission will use them.
As Anna Walker indicated, it may not need to use them, although they
may be useful as a deterrent and she would not want not to have them.
Dame Denise appealed to us not to change the powers or weaken them in
any way, because they would be useful in the social care context, and
that was what was important to her.
Question put and agreed
to.
Clause 26
ordered to stand part of the
Bill.
Clause 27
ordered to stand part of the
Bill.
Clause
28
Appeals
to the
Tribunal
Question
proposed, That the clause stand part of the
Bill.
Mr.
O'Brien:
We had a probing amendment on this clause, which
was understandably not selected. It would be helpful if the Minister
told the Committee, either now or later, what the form of a tribunal
established by section 9 of the Protection of Children Act 1999 is and
why it has been chosen, as opposed to other
models.
Mr.
Bradshaw:
I cannot do so now, but I will try to do that by
the end of the sitting.
Question put and agreed
to.
Clause 28
ordered to stand part of the Bill.
Clause
29
Failure
to comply with
conditions
Mr.
O'Brien:
I beg to move amendment No. 199, in
clause 29, page 15, line 37, leave
out from ‘offence’ to end of line
38.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 200, in
clause 29, page 15, line 38, at
end insert—
‘(2) A person
guilty of an offence under subsection (1) is
liable—
(a) on summary
conviction, to a fine not exceeding £50,000, or to imprisonment
for a term not exceeding 12 months, or to
both;
(b) on conviction on
indictment, to a fine, or to imprisonment for a term not exceeding 12
months, or both.
(3) In
relation to an offence committed before the commencement of section
154(1) of the Criminal Justice Act 2003 (c.44), the reference in
subsection (2)(a) to 12 months is to be read as a reference to 6
months.’.
No.
201, in
clause 30, page 16, line 13, leave
out from ‘liable’ to end of line 14 and
add—
‘(a) on summary
conviction, to a fine not exceeding £50,000, or to imprisonment
for a term not exceeding 12 months, or
both;
(b) on conviction on
indictment, to a fine, or to imprisonment for a term not exceeding 12
months, or to both.
(5) In
relation to an offence committed before the the commencement of section
154(1) of the Criminal Justice Act 2003 (c.44), the reference in
subsection (4)(a) to 12 months is to be read as a reference to 6
months.’.
No.
202, in clause 31, page 16, leave out lines
18 to 22 and insert—
‘(2)
Subject to subsections (3) to (5), those regulations may not provide
for an offence to be triable on indictment or to be punishable with
imprisonment or with a fine exceeding level 4 on the standard
scale.
(3) Subject to
subsection (4), in the case of regulations under section 16, those
regulations may provide for an offence to be triable summarily only or
either summarily or on indictment and for an offence to be punishable
with a fine or imprisonment or
both.
(4) In case referred to
in subsection (3), those regulations may not provide for an offence to
be punishable with—
(a)
imprisonment for a term exceeding 12 months,
or
(b) in the case of summary
conviction, a fine exceeding
£50,000.
(5) In relation
to summary conviction for an offence committed before the commencement
of section 154(1) of the Criminal Justice Act 2003 (c. 44) the
reference in subsection (4)(a) to 12 months is to be read as a
reference to six
months.’.
Mr.
O'Brien:
The amendments would empower the CQC to seek
stronger sanctions against providers who commit offences. Amendments
Nos. 201 and 202 would amend clauses 30 and 31 respectively. They arise
from Anna Walker’s comments when giving oral evidence. She said
that
“at the end of a
process like that, there is often considerable public anger and concern
about what has gone on and I wonder whether some of the penalty issues
need to be recognised in that context. The maximum fine allowed under
the new legislation would be £50,000. There is an issue about
public concern which that measure does not
meet”.——[Official Report, Health and Social
Care Public Bill Committee, 8 January 2008; c. 25, Q36.]
The point was also made that not only is a
wider spectrum of sanctions needed; it will be important to have
sanctions suitable for the body in question, given the range of
providers that the CQC will register—from small care homes to
giant hospitals. The Minister alluded to that point in his response to
the last clause stand part debate. There is a world of a difference
between what might need to be done in relation to an accident and
emergency hospital facility, compared with a small care home.
The amendments would ensure
that there is potential for more serious offences to be tried in the
Crown court, rather than receiving a maximum fine of £50,000
from magistrates. I therefore ask the Minister, why is the Crown court
not available in the pursuit of sanctions? Does he agree with Anna
Walker that stronger sanctions need to be available to the CQC? How
will these sanctions compare with the current
sanctions?
Mr.
Bradshaw:
With your indulgence, Mr. Conway, I
will respond briefly to a question that was asked earlier by the hon.
Gentleman, to save time and to avoid the danger that I may forget to do
so. In fact, he asked two specific questions: first, why this
particular tribunal? The Care Standards Tribunal currently hears cases
under the Care Standards Act 2000, so we are using that for continuity
purposes. Secondly, he asked for the specific figures on outstanding
complaints with the Healthcare Commission. In July 2006, the number of
open cases was 5,180. In July 2007 it had gone down to 2,298, and I
understand that the commission is now meeting its service level
agreement targets on complaints. I hope that is helpful to the hon.
Gentleman.
10.15
am
On sanctions, I
was slightly puzzled by that bit of Anna Walker’s evidence. On
the one hand, she seemed to imply that the new enforcement powers were
not needed; then, in the quotation given by the hon. Gentleman, there
was also an implication that the fines were not heavy enough. I am not
clear on the matter, but I hope to discuss it informally with her,
which might enable me to reach a better understanding.
The
£50,000 figure is a ten-fold increase on the status quo, and it
is for a single offence, so there is the potential for multiples of
£50,000. It is not that the maximum fine that could be levied
against a hospital is £50,000—if there is more than one
breach of the regulations, that figure could multiply. As was
acknowledged earlier, the Healthcare Commission is not the only
organisation that has a locus in monitoring patient safety; there is
also the Health and Safety Executive and the criminal law. The hon.
Gentleman was right to remind us that criminal investigations are still
going on in relation to the Maidstone and Tunbridge Wells incident.
That does not mean that hospitals or managers will never be liable for
much more serious offences. However, we think that we have come up with
a tougher but proportionate suite of penalties and sanctions that suit
the role of the Healthcare Commission, that are flexible and that the
commission is not forced to use. That should also act as a useful
deterrent, because of the damage to reputation that would be incurred
by one of those fines or penalties. In light of those assurances, I
hope that the hon. Gentleman will withdraw his
amendment.
Mr.
O'Brien:
This is an area in which it is possible to gain a
better understanding of the thrust of what Anna Walker at the
Healthcare Commission was seeking to achieve, not least in the light of
informal discussions that the Minister may have with her. I ask that if
those informal discussions result in any proposals, the Minister
discuss them with us first, before consideration on Report, so that we
can see whether we can find a common view. The sanctions, coupled with
the enforcement powers, will be vital to ensuring that we can provide
the teeth that we all wish to see bear down on bad practice, and to
encouraging best practice. With that proviso, I beg to ask leave to
withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause
29 ordered to stand part of the
Bill.
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