Health and Social Care Bill

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Clause 43

Frequency and period of review
Mr. O'Brien: I beg to move amendment No. 33, in clause 43, page 21, line 26, at end insert—
‘(1A) In setting out the frequency with which reviews under section 42 are to be conducted the Commission must identify through a Regulatory Impact Assessment the reduction in the regulatory burden.
(1B) The power of the Commission to increase the regulatory burden shall be set out in regulations approved by a resolution of each House of Parliament.’.
The amendment would ensure that the burden of regulation is properly, quantifiably and accountably measured and that where the burden is increased, Parliament has the opportunity to debate whether that is justified. The amendment commends itself.
Mr. Bradshaw: I have a great deal of sympathy with the desire to see a proportionate regulatory system—that came out very clearly in the evidence session. The problem with the amendment is that it would oblige the commission to publish an impact assessment to demonstrate that when it sets the frequency of reviews, they will result in a reduction in regulatory burdens. We agree with that sentiment. That is why clause 2 obliges the commission to have regard at all times to the five principles of good inspection practice: transparency, accountability, consistency, proportionality to risk and targeting where it is most needed. That is also why the commission is required to produce inspection programmes under schedule 4.
We believe that we need to allow the commission the flexibility to vary the frequency of reviews, and for those reviews to not simply be reduced. That would be the impact of the amendment. There has been the example over the last few years of health care associated infections. Most of us would regard as desirable an increase in the regularity of reviews on particular issues. While I sympathise very strongly with the motivations and sentiments behind the amendment, we believe that the commission should be free to respond to rapidly changing circumstances, while at the same time reducing the overall burden of regulation on providers, as we will discuss later in considering the commission’s gate-keeping functions.
Mr. O'Brien: That is a fair point. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 ordered to stand part of the Bill.

Clause 44

Special reviews and investigations
Sandra Gidley: I beg to move amendment No. 196, in clause 44, page 21, leave out lines 37 to 39 and insert—
‘(a) all providers of health and adult social care
(b) all commissioners of health and adult social care.’.
The Chairman: With this it will be convenient to discuss amendment No. 262, in clause 44, page 21, line 37, leave out ‘NHS’ and insert ‘health’.
Sandra Gidley: Amendment No. 196 was tabled by the Liberal Democrats and amendment No. 262 by the Conservatives. They have more or less the same aim. The clause provides for the review and investigation of adult social services across the board, whereas the powers on health care are restricted to the NHS. In its submission to us, the Healthcare Commission pointed out that
“there is no evidence that the risk of service failure that would warrant investigation is higher or lower in NHS or private care”
It also said:
“In our experience, wholly private services may require review just as publicly funded ones may (for example, cosmetic surgery). In many services provided by the independent sector it is not possible to separate out elements of performance which relate to publicly funded patients and those elements which relate to those privately funded (for example, many independent mental health hospitals have both publicly funded and privately funded patients).”
I was also prompted to table the amendment because of a local case. Someone went into the local BUPA hospital and, sadly, died. It was clear from the evidence that there was insufficient medical cover and that certain complaints were not taken seriously at the time. If they had been investigated, that gentleman might be alive today. I struggle to see how that case would be covered, because the health care was privately purchased. Clearly, that case raises questions about the general provision of care in that hospital.
In the past—not so much today, but when I was first elected in 2000—local private sector hospitals undertook a great deal of work on behalf of the NHS. It would seem invidious to inspect a hospital and reach a conclusion on it solely on the basis of its NHS provision. I think that most members of the public undergoing invasive surgery would automatically assume that private sector hospitals are subject to an appropriate inspection regime, and my amendment is an attempt to capture all health and adult social care providers and to ensure that nothing falls through the gap.
Mr. O'Brien: The hon. Lady’s amendment seeks to bring all providers and commissioners of health and adult social care within the reach of the CQC’s special review process. It is a sensible amendment. She knows that I am not given to over-praising anything that comes from the Liberal Democrats, but I must say that it contains much neater drafting than the Government’s drafting. I commend it.
Amendment No. 262 prompts us to ask why the Bill says “NHS” rather than “health”. The hon. Lady touched on that and gave examples to reinforce that point. This is the clause about which Dame Denise Platt of CSCI said the following in the oral evidence session:
“We are also very concerned that some of our functions are dilute and become permissive in the new commission.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 7, Q7.]
Much has been said about the fact that permissive, rather than statutory, functions will have less chance of being enacted in a tight funding settlement. That is a problem when the functions that are being made permissive are seen by both the regulator and third-party groups as being the most important.
2.15 pm
To save time in the stand part debate, let me address a related issue that I can better deal with now. I hope that the Minister will feel able to give some assurance on a question that has arisen. He might wish to say when the new commission could commence such reviews and, more importantly, whether he expects a hiatus in the researching and publishing of such reviews between the winding up of the current regulators and the full functioning of the CQC.
In her oral evidence, Dame Denise Platt said:
“It is not clear to us why the function cannot be transferred from the start, and why it is going to be put into abeyance for a year—perhaps longer.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 7, Q7.]
Clearly, there are serious implications. The Minister should note that within the first year of its operation, CSCI carried out three major reports, while dealing with its own establishment and reviewing the way in which it carried out its nascent regulatory functions.
The question is of interest not only regarding the quality of provision and safety; I am sure that the political angle will not have escaped the Committee. Any hiatus would prevent reports from being carried out before a rather magical date—the summer of 2010, well after what is gearing up to be something of a rocky election for the Labour party. I hope that the Minister can give an assurance that there will be absolutely no delay, no hiatus and total continuity; otherwise, such a postponement might be interpreted as having a political angle, rather than a functional one. I hope that the Minister will also address the other point that has arisen.
Mr. Bradshaw: As we have already heard, clause 44 covers commissioning by local authorities and primary care trusts and how it impacts upon the services that people receive and the health of the local population; it also provides for scrutiny of the way in which strategic health authorities contribute to those operational issues. The amendments would preclude that last discretion.
Clause 90 defines the terms used in clause 44 and elsewhere in the Bill, and makes it clear that NHS care includes all health care provided by primary care trusts or other people providing health care under arrangements made by primary care trusts. At the moment, as we know, independent sector providers are included in reviews and investigations into adult social care when offering services under agreements reached with local authorities, but not otherwise. Independent health care providers can be covered by special reviews and investigations when they are offering services directly on behalf of the NHS.
That takes us back to discussions that have been a common theme through this period—how far the new Care Quality Commission should involve itself in purely private transactions between individuals and businesses. Special reviews and investigations are intended to provide the commission with the power to consider issues that might undermine public confidence in publicly funded or commissioned services, and to encourage improvement in such services. In those circumstances, we think it right that the scope of the commission’s reviews and investigations under clause 44 should extend to people who provide services under arrangements made by a PCT or a local authority. That will apply whether they are statutory or independent.
The commission will of course monitor and inspect anybody providing regulated activities as defined under clause 4, to ensure that they meet the necessary requirements. The process will be the same whether they are statutory or independent sector bodies. The commission will be able to investigate the failings of a specific provider and take enforcement action as appropriate.
I think that we will be talking about the transition a little later, but I hope not at great length or repetitively. The new Care Quality Commission will be able to conduct urgent reviews on issues that it thinks are a matter of safety or quality in the initial 12 months phase. However, given the substantial registration process that will need to be established within that first year, we believe that there should be a transition period during which it does not conduct the special reviews. We should all note the warm welcome that Anna Walker gave to its continued freedom to conduct whatever reviews it wants. However, until the registration process settles down—it is most important to the new regulatory regime—the reviews that it carries out should concentrate on safety and quality. That is obviously a sensible approach.
Sandra Gidley: I am slightly confused as to why the Minister appears to think that there are powers to deal with the situations that I described earlier, whereas the Healthcare Commission thought that there could be gaps in what it could regulate. I am not entirely convinced that the example that I quoted would be fully captured by the proposal. If there is a problem in a private hospital, I suspect that the bar would have to be raised considerably higher before anyone thought to investigate or review it in a special way.
I say that because the Minister stressed that it is not the Government’s business to consider private arrangements, so, more or less of necessity, the new commission would focus its efforts almost entirely on NHS provision. Some would say that that is perfectly understandable. However, there is a wider public interest issue on which we need absolute clarity. I should therefore be grateful if the Minister described what powers will be available and said how the situation that I described could be dealt with if it seemed that there was a trend——that perhaps one or two complaints had been received. With that proviso, I will withdraw the amendment.
Mr. O'Brien: I have an amendment in this group and I, too, am inclined to support the hon. Lady in withdrawing the amendment because we will come to transition arrangements in due course. However, we should not underestimate the danger of the difference between what is called “urgent”, which may carry all sorts of definitions, and what would normally have been carried out had the commission not been part of the new registration process, given the work load that that entails. There are still many issues to be debated to gain our confidence.
Sandra Gidley: I agree with the hon. Gentleman that the matter requires some reflection and greater clarity regarding what will be covered by the new regime. I am reluctant to do so, but with those significant reservations, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. O'Brien: I beg to move amendment No. 34, in clause 44, page 22, line 9, at end insert
‘which shall only be laid before the Secretary of State at such time as it is made public.’.
The Chairman: With this it will be convenient to discuss amendment No. 45, in clause 77, page 37, line 32, after ‘must’, insert ‘simultaneously’.
Mr. O'Brien: The amendments to clauses 44 and 77 respectively would ensure that Parliament receives reports of special reviews and investigations and the commission’s own annual report at the same time as the Secretary of State. They would also ensure that the Secretary of State can neither suppress nor edit such reports and, furthermore, that he is not given knowledge in advance of Members. The amendments are in line with the Prime Minister’s desire to re-establish the supremacy of Parliament, so I am confident that they will commend themselves to the Minister.
Mr. Bradshaw: It will not surprise the hon. Gentleman to learn that I cannot accept the amendments. As he well knows, they would make it impossible for the Care Quality Commission to give the Government or, by implication, the NHS provider about which it is to publish a report, including details of specific recommendations or criticisms that will be made, any advance warning that it is going to do so. I am sure that that is not what the hon. Gentleman intends. It is perfectly reasonable that the Government, the NHS and social care organisations should have a few days to digest, and in some cases challenge the factual accuracy of, any findings.
We have warmly welcomed all the reports made by the commission over the last two years; they have been extremely helpful and very good. However, it is not reasonable for the new regulator to be able to give any advance warning to organisations about which it is to report. There is common practice in relations between organisations and their regulators on this point, and it would not be fair on those other organisations to accept these amendments as drafted.
Mr. O'Brien: I ought to tell the Minister that I had not thought of this until I reflected upon why things had gone so badly wrong in the case of Maidstone and Tunbridge Wells NHS Trust. It turned out that it was a draft, not a final report, that reached the Department in May 2007, but no action was taken until October 2007. I understand the Minister’s position, of course, and accept it in a pragmatic way, in the hope that one day our positions may be reversed. I dare say that if I were speaking from the Treasury Bench, I too would want advance warning were criticism coming. I am not being difficult about this just as a member of the Opposition.
That said, the normal forewarning has been the practice of the Government. In this case, however—a hospital-acquired infection of clostridium difficile resulting in the number of deaths that occurred at Maidstone and Tunbridge Wells NHS Trust—there had been a thorough draft report in May on which we had no action until October. That seems, by every test, not to be simply forewarning but either not being on top of things or seeking to manage the situation in a way that was not open to public scrutiny or accountability. There is a general sense of frustration that accountability has not been forthcoming: only a sense of shock at the sheer scale of the terrible consequences, let alone the individual cases. That was what suggested to me that we needed to address this, hence these amendments.
I have listened to the Minister’s general point. I do not cavil at that, but I do feel that there is a valid point in making sure that there is not the capacity for the Government and others to sit on difficult news or information, particularly in health and social care where the individual or, indeed, general consequences are terrifying. I will withdraw the amendment, but I hope that the Minister has had the opportunity to listen to that plea, and perhaps he will also add that to the list of items on which he wishes to reflect. I think that the point is well made; there is not much purpose to be served by forcing this to a Division, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chairman: With this it will be convenient to discuss amendment No. 260, in clause 158, page 104, line 17, at end insert—
‘(aa) section 44’.
Mr. O'Brien: Amendment No. 260 seeks to add clause 44 into the commencement clause, clause 158. The effect of this will be to bring clause 44 into effect on the day the Bill is passed . The consequence is that the CQC will be able to carry out reports or investigations from its instigation. This, therefore, ties in neatly with the discussion we have just had on the amendments tabled by the hon. Member for Romsey and myself. I do not think that commencing this clause from the point of enactment will prevent the current regulators from continuing to carry out reports or investigations until such time as they are wound up, which the Minister may have had in mind as a counter-point.
2.30 pm
The Minister has talked about a shadow body—sadly, Opposition Members know too much about the word “shadow” and are doing our best to get rid of it. I do not think that the Committee would be concerned if the shadow body carried out non-duplicative investigations and reports during the transition period. I believe that the concern for the Committee, current regulators, patients and the public is that there is a hiatus in those crucial reports. As I have noted, that hiatus could prevent any such reports from being carried out until the summer of 2010, which carries obvious political resonance.
It would seem from the Government’s response document to the consultation on the future regulation of health and adult social care in England, which explains the policy detail behind the Bill in relation to regulation in the new Care Quality Commission, that possibly they are seeking some form of delay.
The Minister has said in a previous answer that urgent inspections and reviews could be carried out. I worry that “urgent” could vary in the eyes of different people. I hope that the commission would have total autonomy to decide what is urgent, and not be prevailed on by a Government who might regard some things as not urgent.
The Government have said that:
“There will be a phased transition from the current systems to the new. The first priority will be the safety and quality of care in hospitals and other care providers. The Care Quality Commission’s general service reviews, that are not directly concerned with assurance of acceptable levels of safety and quality, will not start until it has fully implemented the new registration system. The Care Quality Commission will agree this start date for general service reviews with the Secretary of State once it is clear that the new system for checking safety and quality assurance is fully in place.”
They stated further that:
“Once the safety and quality assurance systems are fully up and running, the Care Quality Commission will be able to carry out general service reviews, studies and research on issues that arise from carrying out its functions. It will bring forward an annual programme of work for discussion with the Secretary of State; this process will also allow for the need to respond to exceptional circumstances.”
The continued power to make independent studies, reviews and reports without direct Secretary of State approval is welcome. However, it is strongly arguable that the new regulator’s power should commence at the inception of the body. That is from 1 April 2009, when it takes on its other functions.
Such reports are crucial in providing an evidence base for driving up social care and health standards across the piece, and to reporting fully on their state. It is arguable that the chair and board of the new commission would be best placed to decide what reports the new body should make, and when it should make them; taking account of Department of Health views, but not reliant on direct approval. After all, the Government seem to have set great store in allowing the new regulator to make its own decisions on its structure and activities in earlier stages of the Committee. The Minister has said:
“We believe it should be for the commission itself to establish the organisational structures and split of responsibilities that it determines it needs best to carry out those functions and deliver its aims”——[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 135.]
To do otherwise would seem to undermine the independence of the new regulator. It is only by exercising its independence that such a regulator can be of service to the public and support improvement in the sectors.
Indeed, within its first year of operation the Commission for Social Care Inspection carried out three major reports while dealing with its own establishment and reviewing the way it carried out its nascent regulatory functions. It is also of note that in the current legislation CSCI can carry out independent reviews and studies as a statutory function. The Bill appears to water that down. The activities described are the same, but the nature of the power is different. Section 80 of the Health and Social Care (Community Health and Standards Act) 2003 confers that activity as a function rather than a permissive power. Powers are permissive; functions are duties. In a tight financial climate, there may not be enough resources to fund permissive powers. Therefore, that is a diminution of power, by reducing it to a permissive power rather than a duty as a function.
I have already quoted Dame Denise Platt. She said that:
“The principles of public service inspection from the Cabinet Office talk about the need for inspection to generate data and intelligence that enable departments more quickly to calibrate the progress of reform in their sector and to make appropriate adjustment. We think that special studies do exactly that, so we cannot see why that function is watered down.” ——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c.8, Q.7.]
She continued—rather vital evidence:
“In our experience, specific reviews are where we bring together a range of intelligence and we ask the next question of the policy or the circumstances. For example, we will publish a report this month on what happens to people who do not meet eligibility criteria in social services. Before Christmas, we published a report on risk and restraint in care homes, and the dilemmas in care that raised for care staff and where the lines should be drawn.”
She carried on:
“It seems to me that the new commission should have the powers and the duties to identify those issues and comment on them as emerging issues, and to identify them themselves rather than in advance seek the agreement of the Secretary of State and go through a whole process that might delay looking at an issue that needs immediate attention.” ——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c.14, Q.18.]
I do not think that the Committee will struggle to understand that if there is a delay because of the negotiation process—particularly given that I have made the political point about how this could carry through to the summer of 2010—we would be in the arena of people worrying about political and electoral advantage in advance of the inevitable general election, which has to take place before that date. We can avoid that by following the objective and important advice of Dame Denise Platt.
Her other important point is the need to get on with emerging issues. The more experience we all have in the field of health and social care, as in the rest of life, the more we realise that we do not often get the clarity of certainty until far too late. We get clues. If the expert regulators, above all, get clues, then they need to be getting on with things fast, so that the emerging issues can be identified and sufficient evidence quickly established. That means that, on advice, Governments have the best chance to make the best decisions—if there is anything for Government to do in these matters, rather than simply the enforcement powers granted to a regulator.
Here is an important issue. The suggested amendment is for clarifying the attitude of the Government, so that the new regulator can exercise that power from the start. To coin a phrase, it would be a sunrise clause—rather than a sunset clause—which might also commend itself into parliamentary language. To do otherwise would mean that the new regulator would not be able to carry out any such reports or investigations until the summer of 2010 unless—picking up on the Minister’s words from the previous answer—they were felt to be urgent, having been approved by Government as urgent and necessary during that period. Committee members, I am sure, are fully aware of the value of such reports. In the last six months alone we have had, “A Fair Contract with Older People?”, “A Time to Care?” which looked at domiciliary care and the “Safe as Houses” report into private investment in the social-care market. They provide a strong, independent critique and encouragement of the policies that we are all seeking to bring forward as part of the Bill.
Depending on the Minister’s response, I would like to reserve the right to test the Committee on the amendment. I think that I am right to say that I might want to vote on amendment No. 260, when we reach clause 158. I hope that I have the procedure correct. I would like to make that point clear, which leaves us depending on how the Minister reacts. However, I hope that it is felt across the Committee that this is a point that seriously needs to be borne in mind. We have an opportunity here to make sure that nothing falls through the gaps and that we have done our duty.
Mr. Bradshaw: We made it clear in the White Paper and in our response to the consultation on it—indeed, in the Bill—that the first priority for the new Care Quality Commission will be the safety and quality of care in hospitals and other registered health and social care providers. In the light of that, we believed that there should be a phased transition from the current system to the new. That is why we have introduced the provision for the general reviews—those not directly concerned with assurance of acceptable levels of safety and quality—of the UK’s quality commission to kick in a year after the new registration system, which is going to be very important and a very big job, has been fully implemented. I would like to reassure both the hon. Member for Eddisbury and other members of the Committee that transitional arrangements will be put in place to make sure that the commission will still be able to undertake investigations where the commission believes that there is a risk to the health, safety or welfare of people receiving health or social care.
Let me use some recent high-profile examples. The Cornwall learning disabilities investigation is an example of the type of activity that the CQC could get on with straight away, without the year’s delay. The health care-associated infection investigations that have been done at Stoke Mandeville and at Maidstone and Tunbridge Wells are similar, because they are so obviously connected to the quality of care and safety of people. The more general reviews that we are talking about would be general reviews of a service, either throughout the country or in a particular region.
I can assure the hon. Gentleman and other members of the Committee that we are not the slightest bit interested—I hope that we have made this clear; Anna Walker has acknowledged this—in fettering the independence of the commission to conduct the reviews that it thinks it should be able to conduct. We simply want to avoid the hiatus that the hon. Gentleman said that he was worried about in the initial year, and avoid an unnecessary and unreasonable burden on the newly regulated bodies during the period of transition and registration, which will be quite a big process.
Mr. O’Brien: The Minister accepts that we are on to quite a serious matter. Perhaps we should consider it the other way round and he could help us. In what circumstances does he think that the Secretary of State or himself, as the Minister in the forthcoming period, might decline to give approval to the CQC to proceed to undertake an urgent review? It does have to obtain approval. In what circumstances does he envisage using his ministerial authority to decline?
Mr. Bradshaw: I am not aware of any example of that happening previously. It would certainly not be within our powers under the Bill to prevent the CQC from conducting an urgent review, as I have made clear. We are, however, keen to avoid the more generalised reviews—non-urgent reviews—in the first year of its existence. If the CQC came to us and said that it was very worried about x, y and z in a certain place and any patterns that might emerge from that across the service that were putting safety and quality of care at risk, it would not be within the powers of the Secretary of State, let alone be his inclination, to prevent the commission from acting.
We are simply trying to send a message to the new regulator that it will have a big job on its hands for the first 12 months in getting the registration system in place. It will have quite a lot of work doing that, and while it is doing that, we want it to concentrate its reviews on the things that are really serious and matter. A burden will also be placed on the bodies and organisations being regulated. If more general reviews were being conducted at the same time, we would be worried about the capacity of the new regulator and of the regulated bodies to cope, but certainly we would expect anything that was important and urgent as the hon. Gentleman described to fall within the commission’s remit right from the start.
Mr. O’Brien: Having listened to the Minister, I shall not resist the clause. I have reserved our position, but I think it fair to point out, given what he has just said about the burden and given that three regulators are coming together, that in the previous discussion we envisaged that almost all the people will arrive in a much bigger organisation, so the capacity to deploy the staff and the expert teams should be there to help to overcome some of the great burdens that will arise in going through the first year, particularly with regard to registrations. One has to bear in mind that this was exactly the position that the CSCI managed in establishing itself. During its first year, it was both carrying out regulation and doing these reports. That was not postponed for a year while it established itself and did its various inspections and regulation.
The point still applies. I accept that the Minister has sought to give some assurance that Ministers would not want to appear in any sense to fetter the independence and autonomy of the regulator, but I can envisage circumstances—that is why we are here, scrutinising the Bill—in which the temptation is almost too great to resist if something particularly difficult is arising. One can envisage meetings that are less of a ministerial nature and more of an inevitably political nature—we all carry both hats—and we need to be conscious of that. Unless I put it on the table specifically, the danger is that if something like that happened, we would be seen to be falling down on our job.
As I said, I reserve our position for a Division on amendment No. 260 when we get to clause 158, but I note that the Minister has taken seriously the points that we have been making and I am grateful for that.
Question put and agreed to.
Clause 44 ordered to stand part of the Bill.
Clause 45 ordered to stand part of the Bill.
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