Clause
48
Transfer
and amendment of functions under Mental Health Act
1983
Mr.
O'Brien:
I beg to move amendment No. 166, in clause 48,
page 24, line 18, at end
insert—
‘(j) Section 121(5)
(visiting and inspection of
records),
(k) Section 121 (7)
(review decision to withhold
post),
(l) Section 121 (8)
(review decision to withhold any part of
post).’.
The
amendment would ensure that the Care Quality Commission retains the
same powers as the Mental Health Act Commission in respect of visiting
and inspecting records, and reviewing decisions to withhold post. The
Minister stated
that
“visiting powers are
retained in the Bill as far as the existing visiting powers of MHAC are
concerned”
as the changes to section 120 do not
excise the responsibility for visiting. He also stated
that
“we envisage that,
in areas of particular concern to MHAC, visits would continue with
their current regularity.”——[Official Report,
Health and Social Care Public Bill Committee, 10 January 2008; c.
123.]
The qualifying
statement
“in areas of
particular concern”
is of
particular concern to me. Unless the Minister can give us a cast-iron
guarantee that visits will be reduced only because of the CQC’s
judgment of its responsibilities to those detained under Mental Health
Act 1983, and never because of simple financial constraints, there will
remain a genuine concern for all members of the Committee. As was
transparent in the oral evidence sessions, there is a major need for us
to respect the enormous benefit of the work of the Mental Health Act
Commission, particularly with those who are detained. That came through
loud and clear. We must ensure that there is no change and that its
judgment carries through to the CQC instead of being supplanted,
diluted, qualified or in any way watered down by anybody else having
involvement or a contrary or complementary
judgment.
On the point
about post, and to avoid a lengthy debate on schedule 3, which we shall
consider next, I note that paragraph 12 of schedule 3 adds new section
134A to the Mental Health Act 1983, which itself deals with post in
sections 121 and 134. What does the proposed new section add to that
Act? With that comment, I hope to curtail what might otherwise be a
lengthy discussion on schedule 3. I hope that the Minister will address
the
matter.
Greg
Mulholland:
The Committee heard a clear explanation of
MHAC’s concerns about setting up the new commission and whether
its powers will be carried through. We are all aware that there are
mental health issues to consider, and we all share the concern that
they are addressed and not watered down, to use the hon.
Gentleman’s words. We support the amendment and feel that it
raises an important point. We look forward to hearing what the Minister
says.
Mr.
Bradshaw:
I understand the intention behind the amendment,
but I hope to explain to the hon. Member for Eddisbury why we think
that it is unnecessary and that the matters that it addresses are
already provided for.
The amendment would transfer
certain functions currently carried out by the Mental Health Act
Commission to the body that replaces it, the Care Quality Commission.
Those functions are the visiting of patients and inspection of their
records, and the reviewing of decisions to withhold the mail of
patients detained in high-security hospitals. However, schedule 3
already gives those functions to the CQC. As we made clear in other
sittings, the commission is bound to follow the Mental Health Act
role.
On the frequency
of visits, I can give the hon. Gentleman the assurance he seeks. It
will be a matter entirely for the new commission, and not negotiable.
It is a statutory role and we will not seek to interfere in that
decision making.
On letters, paragraph 12 of
schedule 3 amends the 1983 Act by inserting new section 134A. Section
134 provides for the incoming and outgoing mail of patients detained in
high-security hospitals to be examined and withheld in specified
circumstances. New section 134A will require the Care Quality
Commission and Welsh Ministers to review any decision to withhold mail
in those circumstances in response to an application to do so. It will
also give the Secretary of State and Welsh Ministers the power to make
regulations in connection with such an application. New section 134A is
equivalent to powers that already exist in section 121 of the 1983 Act,
which is being
repealed.
Mr.
O'Brien:
I have been mildly surprised by the
Minister’s reassurance. I was moving towards pressing the
amendment to a Division, but in the light of what he has said I am
happy to withdraw it. I hope that there is some sense of the need to
ensure, when the guidelines are issued, that the exchange that we have
just had might be incorporated in them as an addendum to ensure that
the Committee’s joint intentions are clear to those who
follow on from the excellent practice currently performed by the Mental
Health Act Commission. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
48 ordered to stand part of the
Bill.
Schedule
3 agreed
to.
Clause 49
ordered to stand part of the
Bill.
Clause
50
Studies
as to economy, efficiency
etc.
Mr.
O'Brien:
I beg to move amendment No. 35, in
clause 50, page 25, line 21, leave
out ‘Commission’ and insert ‘Independent Regulator
of Foundation
Trusts’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 36, in
clause 50, page 25, line 36, leave
out ‘Commission’ and insert ‘Independent Regulator
of Foundation
Trusts’.
No.
37, in
clause 50, page 25, line 43, leave
out ‘Commission’ and insert ‘Independent Regulator
of Foundation
Trusts’.
No.
38, in
clause 51, page 26, line 2, leave
out ‘Commission’ and insert ‘Independent Regulator
of Foundation
Trusts’.
Mr.
O'Brien:
I hope that the Committee feels duly excited by
the fact that we have turned a page on the selection list.
The amendments would place the
studies into efficiency and economy within the remit of Monitor instead
of the commission. Amendment No. 38 is consequent on clause 51
requiring the studies to be published. I do not need to reiterate last
week’s debate on clause 2 and amendment No. 6, or the one that
we had earlier today on clause 42 and amendments Nos. 30 and 31. I hope
that the Minister feels more favourable towards the tremendous work
that Monitor will be able to offer, given that these points have come
up consistently during the course of our consideration of the Bill.
Furthermore, I hope that he recognises the distinction in its expertise
in and attitude towards economic regulation, as well as the other
aspects of regulation that we have looked
at.
Greg
Mulholland:
Without getting into the substantive issue,
there is a clear need to clarify the apparent
duplication, which is what the hon. Gentleman is teasing out. It is a
genuine concern that the Government must try to resolve. I look forward
to the Minister’s
comments.
Mr.
Bradshaw:
The amendments would remove the function of
undertaking studies into economy and efficiency from the new Care
Quality Commission. That returns to our earlier discussions about the
extension, or otherwise, of the role of Monitor. I shall deal with that
matter in some detail now, because it is a sensible point at which to
do so.
As I have
argued before, the amendments would considerably widen the scope of
Monitor, which is currently only a regulator of NHS foundation trusts.
As I am sure that the Committee knows, Monitor has no role in
regulating adult social care, commissioners or other NHS health care
providers. The Care Quality Commission on the other hand will be a
regulator of both health and adult social care, and so the regulation
of the NHS is only a part of its
work.
There
is a need for a commission that can take a completely independent view
of whether health and adult social care providers, including NHS
foundation trusts, meet essential safety and quality requirements and
impose tough sanctions when they fail to do so. As we set out in our
consultation on the future regulation of health and adult social care
in England, that is a very different role from that performed by
Monitor, which has a specific role in ensuring that NHS foundation
trusts are well managed and financially strong, with statutory powers
to intervene should they be in breach of their terms of authorisation.
Having greater autonomy than other NHS bodies, NHS foundation trusts
require Monitor’s specific regulation to ensure good value for
money for the taxpayer from public
assets.
By
contrast, it will be important that the Care Quality Commission can
take a consistent view of the safety and quality of care across all
types of provider, including NHS foundations trusts. The wider scope
proposed for Monitor by the amendment would serve to distract Monitor
from its current, vital, specific focus, which is on foundation trusts.
It would therefore be quite difficult for it to have a function of
undertaking studies in relation to other NHS bodies and English local
authorities. I would go so far as to say that Monitor may not
necessarily be considered a fully disinterested party if it were to
carry out reviews of economy, efficiency or effectiveness in other
organisations while having a specific role in authorising, monitoring,
regulating and driving forward foundation
trusts.
3.15
pm
Given
those considerations, the function of undertaking the kind of studies
described in clause 50, and the
publication of the results and recommendations arising from them, should
sit squarely with the Care Quality Commission rather than Monitor. In
that light, although I do not expect him to do so, I ask the hon.
Member for Eddisbury to withdraw the
amendment.
Mr.
O'Brien:
I am please to be able to give him some pleasure.
I will withdraw the amendment on the basis that we have had an outing
on the matter before and we know where we stand. As we go consistently
through the Bill it is important to recognise how this interleaves, so
those considering our deliberations either on Report or in another
place will be able to pick up the threads. I have a modicum of
confidence that some light may come onto the issue as the Bill
progresses and the merits of Monitor’s involvement may surface.
On that basis, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, with drawn.
Clause 50 ordered to stand
part of the
Bill.
Clauses
51 to 55 ordered to stand part of the
Bill.
Clause
56
Inspections
Mr.
O'Brien:
I beg to move amendment No. 39, in
clause 56, page 27, line 35, at
end insert—
‘(aa) the
provision of independent
healthcare,’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 40, in
clause 67, page 32, line 31, leave
out
‘paid for out of public
funds’.
No.
41, in
clause 67, page 32, line 33, leave
out
‘paid for out of public
funds’.
Mr.
O'Brien:
The amendment seeks to enable the CQC to inspect
independent health care, a point touched on earlier by others on other
amendments. Amendments Nos. 40 and 41 amend clause 67(4), which limits
regulations under that clause to health and social care schemes paid
for out of public funds only. The amendments seek to broaden it to all
health and social care schemes and the clause makes provision for the
commission to make arrangements with Ministers of the Crown to inspect
health and social care facilities within their remit. The obvious
example is health care provided through the defence budget. That is a
useful example to have in mind. On amendment No. 39, we need to ask why
the Bill limits the inspection to NHS bodies. On amendments Nos. 40 and
41, I understand that that is in regard to other Ministers of the
Crown, It might be helpful if the Minister could outline which ones. I
assume that they are the Defence and Foreign Ministers. Why is it
limited to health care paid for out of public funds? Presumably, that
has something to do with departmental budgets or allocations. That is
the sum of the purpose of the amendments.
Sandra
Gidley:
We have cantered around this subject in other
parts of the Bill. I wish the hon. Gentleman better luck in having his
amendments accepted than we have had so far. I cannot stress how
strongly I am
beginning to feel that we have to ensure that other forms of health care
are included in some way. I fully support the
amendments.
Mr.
Bradshaw:
I am going to have to disappoint the hon. Lady
again. We believe that clause 56 sets out clearly the purposes for
which the Care Quality Commission may carry out inspections. On that
basis I do not think that the amendment is necessary. It is interesting
to have the spokesman for the Opposition advocating from a sedentary
position even more regulation of private transactions between
individuals. That is an interesting position. The intention behind the
amendment is met by clause 56(1)(a), which allows the commission to
carry out inspection
of
“the carrying on of a
regulated activity,”
by
any care provider registered with the Care Quality
Commission.
Clause 67
enables the Care Quality Commission to make arrangements with another
Minister of the Crown. Under an agreement with the relevant Minister,
that clause allows for the commission to perform any of its functions
in relation to a specific prescribed health or social care scheme paid
for by public funds or to provide relevant services or facilities that
that Minister may require in relation to such a scheme. Amendments Nos.
40 and 41 would extend that power to schemes that are not paid for from
public
funds.
Clause
67 is intended to allow the commission to share its skills, expertise
and know-how for the good of another public sector service—the
hon. Member for Eddisbury has mentioned a couple—falling under
the remit of another Department. For example, the commission might make
arrangements with the Secretary of Sate for Defence to review the
quality of health care provision for the armed forces. We have been in
active discussion with the Ministry of Defence and the Healthcare
Commission about that. The commission will also have powers, set out in
paragraphs 8 and 9 of schedule 4, to act jointly with or advise and
assist other public authorities. The crucial difference is that the
powers in clause 67 allow the commission to carry out activity on
behalf of another
Department.
Carrying
out an activity or lending resource to another body is a more
significant step than simply providing advice or carrying out an
existing function jointly and, as such, has the potential to distract
resources, priority and management focus from the commission’s
core functions. That should be done only where there is a clear public
benefit.
Mr.
O'Brien:
I understand where the Minister is going and I am
possibly satisfied in respect of the other Departments. He mentioned
clause 56(1)(a), which deals
with
“the carrying on of
a regulated activity”
and
encompassed some of my concerns. Will he just clarify whether that
relates only to regulated activities provided by public bodies or could
it cover privately produced regulated activity, in which case my point
is
met?
Mr.
Bradshaw:
As we have said time and again, any provider
that is regulated will be required to meet the requirements set out in
that regulation—so that would
include independent providers. My difference with the Liberal Democrats
is that they seem to want us to intervene on purely private
transactions between individuals. Any registered provider would be
required to meet the standards laid down in
regulation.
Mr.
O'Brien:
I will reflect on our exchange and ensure that if
my point has not been met, we find another way of bringing it up again,
but at this point I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
56 ordered to stand part of the
Bill.
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