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withdrawn.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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