Health and Social Care Bill

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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
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

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. 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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