Health and Social Care Bill

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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.
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.
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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