Clause
46
Failings
by English local
authorities
2.45
pm
Sandra
Gidley:
I beg to move amendment No. 78, in
clause 46, page 23, line 27, at
end add—
‘(6) In considering
whether the function referred to in subsection (2) is being discharged
to an acceptable standard the Commission shall have particular regard
to its duty under section 2(3)(d) of this
Act.’.
The
clause as a whole deals with failings by local authorities and any
special measures that the commission recommends that the Secretary of
State should take. To save everybody looking it up, clause2(3)(d)
refers to
“the need to
safeguard and promote the rights and welfare of children and vulnerable
adults”
This morning we
heard some examples of concerns about how that might present a conflict
in some cases. The specific example given was the case of a care home
closure under certain powers. Although we may not think of it in this
way, to people in those homes, it is their home. I have had personal
experience of the closure of a home, not through any reasons of
malpractice but simply because the owner did a runner
with the money, and suddenly provision had to be made for the elderly
residents. It was difficult for the local authority and it seemed to be
a case of slotting the residents into any available space so that the
authority had done its duty. No regard was given to the particular
needs of the residents. The amendment is designed to
tease out how important this aspect of the Bill is. We are constantly
reassured by the Minister that it is on the face of the Bill so it will
underpin everything, but there are times when expediency means that
action has to be taken quickly and at that stage the human rights
aspects are often forgotten. In many ways this is a probing amendment
to see whether there is a hierarchy of priorities. The hon. Member for
Tiverton and Honiton raised a pertinent example earlier, where a lady
with learning difficulties had her wishes completely disregarded. The
amendment would ensure that, as a consequence of powers in the Bill,
those situations do not arise. The hopes and wishes of all people must
be taken into account, but particular care must be taken when those
people cannot easily stand up for
themselves.
Mr.
Bradshaw:
In response to the specific situation that the
hon. Lady described and which we discussed earlier, about a care home
having to close all of a sudden, I would point out that clause 2(3)(c)
requires the Care Quality Commission to balance its own action against
the risk that the action might pose for users. I hope that that goes
some way to reassure her, as the commission will have a duty to
consider that sort of situation. Clause 2 makes it clear that the
commission must pay particular heed to the need to safeguard the rights
and welfare of vulnerable people in everything that it does. That
clearly applies to the commission’s actions under clause 48. In
the light of that, I ask her to withdraw the
amendment.
Sandra
Gidley:
Clause 2(3)(d) refers to “the need to
safeguard”, but it is included with a list of other things and
the amendment was an attempt to give particular regard to that aspect
so that it was at the top of the pecking order when considerations were
being made. I do not feel that I will win this one so I beg to ask
leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 46 ordered to stand
part of the
Bill.
Clause
47
Failings
by Welsh NHS
bodies
Question
proposed, That the clause stand part of the
Bill.
The
Chairman:
With this it will be convenient to discuss new
clause 15— Failings by English NHS
bodies
—
‘(1)
Following a review under section 42 or 45, or a review or investigation
under Section 44, the Commission must inform the Secretary of State if
it considers that—
(a)
there are significant failings in relation to the provision of health
care by or pursuant to arrangements made by an English NHS
body,
(b) there are significant failings in the running of
an English NHS body, or
(c)
there are significant failings in the running of a body, or the
practice of an individual, providing healthcare pursuant to
arrangements made by an English NHS
body.
(2) The commission may
also recommend to the Secretary of State that, with a view to remedying
those failings, the Secretary of State take special
measures—
(a) in a case
falling within subsection (1)(a) or (b), in relation to the NHS body
concerned
(b) in a case falling
within (1)(c), in relation to the body or individual
concerned.’.
Sandra
Gidley:
I want to direct my comments to new clause 15.
During the oral evidence sessions, we heard concerns that the
commission was able to look at failings by English local authorities.
That is in clause 46. There are provisions to look at failings by Welsh
NHS bodies. However, it is not clear to me, and it was obviously not
clear to the Healthcare Commission, why there is no similar provision
to ensure that NHS bodies in England are so covered. I may have missed
something somewhere, but the insertion of new clause 15 would make it
crystal clear that, whether the problem was with NHS England or Wales,
or with local authorities, it would always be dealt with in the same
way. I seek the Minister’s reassurance on that
point.
Mr.
Bradshaw:
I can give a short or a long explanation. It
goes back to the discussion on Tuesday. There could be a cross-border
commissioning issue. The service may be commissioned on one side of the
border and delivered on another. Is that enough for the hon.
Lady?
Sandra
Gidley:
I am aware of the cross-border issues, but as
England does not seem to be included anywhere, I am not sure where that
gets us. If England and Wales are included, we presumably need some
sort of clause to join the two up. I appreciate that, but it seems that
somewhere along the line there is lesser protection in England as a
result of the omission. That is what I want to
clarify.
Mr.
Bradshaw:
I do not accept that there is lesser protection,
but if the hon. Lady insists, I will read the reasons that I have been
given by my officials. She can stop me at any time.
Under clause
47 the commission will be obliged to inform Ministers in the Welsh
Assembly if the commission encounters serious failings in the running
of a Welsh NHS body or health care provided by a Welsh NHS body, or by
someone else providing services commissioned by a Welsh NHS body.
Although the new commission will only cover health and adult social
care services in England, it may come across patients receiving health
care in England that has been commissioned by the Welsh NHS. It may
also need to review the care being provided by a Welsh NHS body under
arrangements made by the NHS in England.
In those circumstances, it is
clearly important that the commission is under a duty to advise Welsh
Ministers of any failings it encounters either in the provision of
health care or the running of services.
Patients, of course, draw no distinctions about where they receive care
and they expect any problems that are identified to be followed up and
addressed regardless of which authority is responsible. The commission
will be able to recommend any special measures that it considers
appropriate to remedy the failure in question to Welsh
Ministers. Welsh
Ministers will continue to be under a corresponding duty, under section
71 of the Health and Social Care (Community Health and Standards) Act
2003, to report failings in English NHS care to the Secretary of State.
The proposed clause would require the commission to inform the
Secretary of State where it considered that there were significant
failings in English NHS bodies. It would also allow the commission to
recommend certain measures that the Secretary of State should take
where it judges that an English NHS body is failing in the provision of
health care. While we have given the commission that role in relation
to local authorities and their adult social service functions, in the
NHS strategic health authorities in England are responsible for the
performance management of primary care trusts and hold them to
account.
NHS
bodies in Wales will not be subject to registration in the same way as
in England. The Care Quality Commission will have the role of
publishing independent comparative information on the performance of
commissioners. SHAs will then be expected to use that information as
part of their performance management of PCTs and to address areas of
weak performance. Local authorities, on the other hand, do not have an
equivalent body overseeing their work and hence we have kept the
provisions allowing the commission to recommend special measures with
regard to
them.
NHS
providers will have to be registered with the commission and will have
to comply with regulatory requirements. The commission will be able to
intervene directly in poorly performing providers by taking appropriate
enforcement action. The new commission will have the ultimate power to
de-register. The ability to take direct action represents a significant
increase in the regulator’s powers, with a provision allowing
the Healthcare Commission to recommend special
measures.
In the
interests of a fair playing field, all providers should be subject to
the same provision. The commission has both the power to intervene
directly in a situation where an NHS body is failing and the power to
advise the Secretary of State about any concerns it has. Given that, we
do not believe that it is necessary to keep the rather weaker power
that the commission be able to recommend that the Secretary of State
take special measures with regard to the NHS. Therefore, the amendment
is not
necessary.
Mr.
Stephen Crabb (Preseli Pembrokeshire) (Con): I am grateful
for the opportunity to discuss clause 47, which deals with the failings
of Welsh NHS bodies.
I
just about kept up with the Minister’s explanation, but some
clarification is needed. It is not obvious how the clause will work in
practice. My first observation is on the criteria by which the
commission will assess whether there is a significant failing in a
Welsh NHS body. The standards in Wales are now different from those in
England. I have here the “Healthcare
Standards for Wales”. There are 32 standards, detailed criteria
that have been developed by Welsh Ministers in the Welsh Assembly. They
are the basis on which Welsh Ministers judge the quality of health care
provision in Wales. My question to the Minister is, what read-across
will there be by the commission from the criteria used in England and
the standards and criteria that are already being developed in Wales?
If he were to look at the document, which came out two years ago, he
would read that at that time the Assembly was developing integrated
health and social care standards for
Wales. My other
observation is about the strength of the duty that will be on the
commission in terms of its reporting of failings in Welsh NHS bodies.
Looking back to clause 46, which deals with failings identified in
English local authorities, there is a duty both to inform the Secretary
of State and to make a recommendation about special measures in terms
of remedial action. In clause 47 there is no corresponding duty to make
a recommendation. That seems to be optional in subsection (2), which
says that the commission “may” make recommendations. My
understanding of the clause is that Welsh Ministers are at liberty to
ignore any recommendations made by the commission in terms of failures
identified during reviews or
investigations.
I
would therefore welcome a bit more explanation from the Minister about
how the clause will work in practice. The explanatory notes
accompanying the Bill were not very helpful in that
regard—merely five or six lines summarising the clause. I would
like some assurance from the Minister that serious thought has gone
into how the interface will work between the default Administration in
Cardiff and his Department here in England, in terms of making the Bill
a
success.
Mr.
O'Brien:
If ever we needed proof that there is great
benefit in having a Member who represents a Welsh constituency on the
Bill we have just heard it. That is absolutely vital because he is a
better test of understanding than someone who happens to represent an
English constituency with a Welsh border, with patients freely flowing
between the two constituencies. There has been a very public and major
dispute between the Countess of Chester hospital and the Flintshire
local health board about funding for patients coming from Wales to be
treated by the NHS in England. They settled on £1 million on the
prospect of future flows, but that is still way short of the true
recovery costs. Those are real
problems.
3
pm
My hon. Friend
the Member for Preseli Pembrokeshire made an important point about
ensuring that the proposal is thoroughly thought through, not just at
the conceptual level but deeply at the practical level, given that
there are two different sets of political accountabilities. The
Minister should bear in mind the practicalities and the difficulties. I
am an English MP who frequently has to ask the Secretary of State for
Wales—when he has that one of his two hats on, assuming that he
will continue in the post in any case—about matters in Wales.
When I seek to question him, he refers me immediately to the First
Minister,
and the First Minister says, “I have absolutely no need, right or
intention to answer you. You are an English MP, and I have no
accountability to you. Go
hang.” That is
how it works. We have an absence of accountability, hence my hon.
Friend’s germane points. I hope that the Minister will have an
opportunity to ensure that we can set our minds at rest. Otherwise, we
could be off to a rocky
start.
Mr.
Bradshaw:
Clause 64 requires the Care Quality Commission
and the Welsh Government to co-operate, and that co-operation, which
has been good in respect of the formulation of the Bill, will continue.
I shall come to Government amendments in that regard in a
moment.
The commission
will not judge Welsh standards. It has only an English remit, but of
course it will co-ordinate with the Welsh authorities to satisfy itself
that provision which may be commissioned cross-border meets the quality
and safety requirements that it would expect for English patients. If
the hon. Member for Preseli Pembrokeshire would like a detailed
exposition in the form of a letter as to how we expect that to work in
practice, I will happily provide it for
him.
It would be up to
the commission to decide whether it wanted to judge the quality of a
service being provided against its own or Welsh criteria. We would not
want to tie its hands in that regard. Based on that, I hope that the
hon. Lady will not press the new clause to a
Division.
Sandra
Gidley:
It was necessary to have that long explanation. It
was informative, and it is useful to have it on the record because some
of what the Minister said had not been clear prior to that explanation.
I appreciate that the Committee is a bit tight for time, but I think
that that was a good use of it. As the explanation was detailed, I
shall review his words and not press my new clause to a
Division.
Question
put and agreed
to.
Clause
47
ordered to stand part of the
Bill.
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