Health and Social Care Bill

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Clause 39

Power to modify Chapter in relation to newly regulated activities
Question proposed, That the clause stand part of the Bill.
1.15 pm
Mr. O'Brien: As I am sure the Committee will have noticed, there was an unselected amendment tabled to the clause. In fact the point relating to that can be more sensibly dealt with in a stand part debate.
The memorandum on delegated legislation makes the helpful note that, because the power in the clause will enable the Secretary of State to modify the chapter by statutory instrument in its application to newly regulated activities of a prescribed description, any regulations will be subject to the affirmative resolution. The memorandum notes that
“this is not dissimilar to a Henry VIII power”.
Speaking of Henry VIII, I assure the Committee that, as he was wont to say to his wives, “I shan’t be keeping you long.”
Angela Browning: The old ones are the best ones.
Mr. O'Brien: I have known the saying for years. I have heard it many times, but I have never had the opportunity to use it. I thank the Committee for its indulgence.
To my mind, the provision is a Henry VIII power, which is when primary legislation is amended by statutory instrument. I hope that the Minister can help me, because the provision makes all of part 2 subject to a Henry VIII measure. We are concerning ourselves with primary legislation, so that means that it can all be amended by statutory instrument. My question might show my ignorance of procedure, but does the provision include the potential for repeal?
I am sure that the Minister is aware that Lord Justice Law suggested in 2002 in the Metric Martyrs case that it was unfair to attribute such powers to his late Majesty who reigned 100 years before the civil war and longer, yet before the establishment of parliamentary legislative supremacy. In today’s world, it would be interesting to know the thoughts of the Lords Constitution Committee on the clause. I do not know whether there has been an opportunity for informal or even formal consultation within the Government.
Mr. Bradshaw: Clause 39, as the hon. Gentleman has acknowledged, is intended to provide future flexibility so that the system can adapt to changes in the way in which health and social care are delivered. The delivery is becoming more integrated. It is responding to people’s needs, and it is changing as a result of innovation. It is possible that initially primary care will not come within its remit but, as more elective surgery is being delivered in the primary care setting, that change would require the flexibility that we are discussing.
It is also important to recognise that the power to modify the Bill after it is enacted does not apply to the registration of NHS bodies and other providers registered with the new commission from the outset as listed under clause 39(3). We have already made it clear that NHS hospital services would be regulated. Respondents to our consultation put forward convincing arguments for the inclusion of, for example, NHS primary care providers within the regulatory framework. The reason behind the provision is to provide the flexibility that we discussed the day before yesterday in relation to some cosmetic procedures. I do not want to rein in the future flexibility that might be needed.
Anne Milton (Guildford) (Con): I appreciate that health care is changing rapidly and that we need flexibility to reflect the results of the changes. I received information from the Patients Association that the chief medical officer has commissioned a report from Joint Commission International, which will be looking at how we accredit and regulate health care organisations. It has suggested that such matters are changing even as the ink is not dry on the Bill.
Mr. Bradshaw: Which is exactly why we need the flexibility that I have just described.
Mr. O'Brien: As the Minister was going through it, I was hoping for some reassurance about how we had arrived at the list in subsection (3). It occurs to me that something that we have already touched on in earlier Committee proceedings is not included in the list. For instance, for a housing association that produces many homes with Telecare that are not known as care homes, but are known as normal, independent homes that happen to have a lot of Telecare facilities, it would be quite difficult to make that fit into that prescriptive list. I think that it is a fair question, and I am hoping to get an answer.
Mr. Bradshaw: I am advised that subsection (3) is about excluding those registered at the outset.
Question put and agreed to.
Clause 39 ordered to stand part of the Bill.
Clause 40 ordered to stand part of the Bill.

Clause 41

Standards set by Secretary of State
Sandra Gidley: I beg to move amendment No. 197, in clause 41, page 20, line 6, leave out ‘NHS’ and insert ‘health and social’.
This is a simple amendment. As the clause stands, the Secretary of State is mentioned only in the context of the NHS. We received a lot of oral and written evidence about concerns that the social care function would be lost. It is quite pertinent here to reflect on the words of Sir Ian Kennedy during our first sitting. He said:
“it is my position that ultimately, bringing together health care and social care regulations is desirable because the citizenry do not know, and care less, under what system they are being looked after—they want it to be seamlessly well-organised.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 6.]
We are all aware of areas where the system perhaps comes apart at the seams, for want of a better phrase. I use as an example the case of continuing care. I suspect that every hon. Member in this Room has played a part in trying to secure continuing care funding for a patient. Often, they have Alzheimer’s and have significant health needs, but ultimately, a decision is made by a person or persons unknown that their need is not a health need, but a social care need, so they do not receive NHS funding.
In most cases, it is difficult to see where the division lies. I have had two very similar cases; one could hardly see a difference in the capabilities and illness levels of my two constituents. One received the funding, but the other did not. It was down to the different assessments on the day. Although the Government have made some attempts to improve that, I still think that there is a problem. In the case where the continuing funding was made available, the care was given in a nursing home, which is not part of the NHS. Although the constituent was NHS funded and she was receiving some NHS care from nurses, a lot of the care was also being received from other workers in the home. It seems rather perverse that the Secretary of State could make decisions on part of that care, but not that other part. We ought to be aiming for the seamless care that was described by Sir Ian Kennedy. Others echoed his sentiments: Denise Platt said that she wanted a strong social care focus to be retained. The amendment serves two purposes: to try to have that seamless aspect, and to make it absolutely clear that the focus on social care is retained in the Bill.
Mr. O'Brien: It seems a sensible proposal. It is difficult to understand why the Government are confining themselves to quality standards in NHS care and not beyond. Under the current system in which Ministers have day-to-day control of the NHS, one would have thought they would be doing this anyway and that the role would be distinct from that of the regulator. We must question what the underlying reason is for the power here. That is the argument.
Mr. Bradshaw: First, I agree that improving quality in adult social care is every bit as important as improving it in the NHS, but there are other mechanisms and methods already in place to do that. Local authorities have their own local and national reporting and accountability arrangements, and the Minister for Communities and Local Government has powers to issue standards under the Local Government Act 2003. The Government are committed to a single performance framework for local authorities across all their functions, rather than having a duplication, which we think would be the impact of the amendment.
On the issue of independent health care providers, where a PCT uses private sector providers to provide NHS health care, of course the standards set under the clause will apply to those providers. As we have previously discussed, the registration requirements will ensure that all private and independent sector providers provide services at a particular level. The hon. Lady’s amendment asks for the Government to intervene as a performance manager in private transactions between entirely fee-paying clients or patients. In terms of pushing up standards, we do not believe that it is the Government’s role to intervene on matters of purely private health care. We believe that improvements in the commercial sector should be driven by the suppliers themselves as they strive to improve and attract more fee-paying patients. In a way it goes back to the argument we had two days ago about cosmetics—we must decide on the proper boundary of the role of the state.
Sandra Gidley: I find the Minister’s arguments hard to follow. In the same nursing home there could be residents who are purely NHS funded, those who receive funding via the local council and some who are using their own funds for the time being, as they have the money available. Is the Minister saying that we should apply standards to one set and ignore the others? It seems to be a mixed message.
Mr. Bradshaw: My point is that the hon. Lady asks us to push the principle of performance management beyond what is generally considered to be the role of performance management in the private sector vis- -vis the funded sector. However, in the situations that she has described, those institutions will fall under the registration requirement that will set minimum standards. She asks us to performance manage the care delivered under a purely private contractual arrangement between provider and client, and we do not feel that that would be a desirable thing to do.
Sandra Gidley: I am not wholly convinced by the Minister’s arguments. There may be a better way of phrasing the measure so that it encompasses what we wish to achieve. We may wish to revisit the matter, but for now, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. O'Brien: I beg to move amendment No. 29, in clause 41, page 20, line 6, at end insert—
‘(1A) statements of standards must be established within the remit of the NHS Core Principles.’.
The amendment seeks, insofar as we are able within the scope of the Bill, to enshrine the NHS core principles in the legislation. The Committee will be aware that we in the Conservative party are fully committed to that, as stated in our published NHS (Autonomy and Accountability) Bill. In support of that, my right hon. Friend the Leader of the Opposition has consistently confirmed our party’s commitment to the NHS, that it should be and will continue to be under any incoming Conservative Government a service free at the point of need, with access based on need and the ability to pay. I hope that the Government would seek to support that core principle.
1.30 pm
One has to note that in a consultation undertaken by the now Chief Secretary to the Treasury in December 2006 on the core principles of the NHS—principles that we have committed to enshrining in legislation—the Government admitted the principle that
“Public funds for healthcare will be devoted solely to NHS patients.”
It was a surprising admission at the time, and even if the Minister will not accept the amendment, I hope that he will tell us whether he still wishes to get rid of this particular central pillar of the NHS. Members of the Committee who sit on the Government Back Benches might want to question whether they support the Minister in apparently seeking to open the door to top-ups—[Interruption . ] I do bless him for his continual sneezing, but I hasten to say that I have no clerical rights to do so.
In choosing whether to support the amendment, the Minister should be aware that, as we identified, he is choosing between his Secretary of State and the Prime Minister. We should compare the Prime Minister’s new year message to the NHS, which we have already quoted at least once in this Committee, with the report eight days later in the “Society” section of The Guardian that the Secretary of State did not want a constitution to give lots of work to lawyers by “enshrining”, as he put it, the constitution in legislation.
This important amendment provides an opportunity, which I hope will be consensual, to enshrine this core principle. We have offered this and many other opportunities to do what I should have thought would be incontestable among us.
Mr. Bradshaw: The reason why we have trouble with the amendment is that we do not think it sensible or desirable to restrict the scope of the standards to the NHS core principles. Those core principles have existed since 2000, so we do not think that there is a need to legislate to introduce them. We have strengthened the force of the principles by incorporating them into the standard NHS contracts between primary care trusts and secondary care service providers, which were introduced in 2007. Those contracts required all sides to have regard to the NHS principles, and that is a more appropriate way of confirming the commitment of NHS bodies to the principles than enshrining them in legislation, as they are by definition general principles of behaviour that can be applied in practice in a variety of ways.
Because we want to put more power in the hands of front-line staff to get on with the job and let local circumstances help them with the application of those values, we believe that they will apply the core principles sensibly and flexibly. It would not be sensible for us to predict what effect the legal application would have on local practice, which is why we are inclined to resist the amendment.
Mr. O'Brien: The Minister just said that he does not think that the core principles should be enshrined in legislation. It is helpful to repeat what the Prime Minister said in his widely reported personal new year message to the NHS on 1 January, which can be read by all at—I even have details of how to find the particular sentence. He said that
“we will also examine how all these changes can be enshrined in the new constitution of the NHS setting out for the first time the rights and responsibilities associated with an entitlement to NHS care.”
If that is not to enshrine the core principles in legislation, one has to ask, what is? I am conscious that I am not going to make progress with the Minister—he has obviously decided what his position is.
I think that everybody is clear about our position on this: that it is appropriate to seek to enshrine the NHS core principles in legislation. Most unusually, we shall find an opportunity this Session for our NHS (Autonomy and Accountability) Bill to be considered by the House. That would be a better, more consistent and principled vehicle to use, rather than pursuing an ad hoc approach in Committee with the Minister. I hope that the Government will support our Bill, because otherwise, we shall be the only ones offering the enshrining of the core principles in legislation, notwithstanding the Prime Minister’s well-reported remarks of 1 January. As we shall have plenty of chances to revisit the issue, I am happy to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 ordered to stand part of the Bill.
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