Memorandum submitted by Unison (H&SC 27)
Health and Social Care Bill
Public Bill Committee written evidence
1.1 Whilst UNISON supports the emphasis in the Health and Social Care Bill on public protection, we have concerns around the implications for public and staff safety of the move toward light touch regulation brought about by the new Care Quality Commission (CQC) in Part 1 of the Bill. We are concerned by the move to less frequent inspection of care providers at a time when the Government is encouraging more providers into the market. Given the announcement that the new regulator will have to operate with a budget that is 40% less than what the previous regulators had, UNISON is concerned that the inspection system is being driven by budget imperatives, rather than what is best for users of health and social care services.
1.2 In particular, we have concerns that the new CQC will not be required to take on some of the important functions carried out by the previous inspection bodies. For example, the new regulator will have no responsibilities in responding to individual complaints about service providers. We would also like to see a specific focus and powers for the new regulator to enforce the requirements on providers set by the General Social Care Council in relation to the social care workforce. We have concerns that the policy of workforce registration together with training and learning requirements will be undermined if there is insufficient enforcement. Furthermore compliance with the existing Code of Practice for social care employers is an important determinant of care quality and public protection, yet it is currently un-enforced.
1.3 On Part 2 of the Bill, we have some concerns about the membership of the new Office of the Health Professions Adjudicator (OHPA), the boards of the health regulators, and of the new Council for Healthcare Regulatory Excellence (CHRE). It is vital that in the case of the OHPA, a professional's case will be heard by one of their own, and to ensure that judgements are fair and in line with normal professional practice. It is also vital that the boards of the health regulators allow representation across the ethnic, social and gender divides. Currently none of the existing regulatory bodies are compliant with the equalities legislation and we would wish to see that the Bill requires regulators to meet the obligation under these Acts.
1.4 UNISON also has concerns in relation to the part of the Bill on the changing standard of proof in fitness to practise proceedings, given the huge impact that the decisions of fitness to practise proceedings have on the livelihoods of healthcare professionals. We also have concerns that certain minority groups will be affected negatively by this changing standard.
2.1 UNISON is the major union in the health service and social care. We represent more than 450,000 health care employees and 300,000 social care employees employed in the NHS and local government, and by private contractors, the voluntary sector and general practitioners. We also represent employees across the range of disciplines in both the Commission for Social Care Inspection (CSCI) and Healthcare Commission.
2.2 UNISON supports the Government's emphasis in the Health and Social Care Bill on the importance of public protection. Our key concerns in both the aspects of the bill around the regulation of health and social care services, and the regulation of health and social care professionals, centre on areas in which we believe that provisions will not maximise the ability of staff to ensure public protection.
2.3 UNISON welcomes many of the public health elements to the Bill and would wish to work with the Government to ensure safe and effective implementation.
3. PART 1 - The Care Quality Commission
3.1 The Government has said that the principles of inspection for the new Care Quality Commission (CQC) will be 'proportionate' and 'risk-based' with a view to lightening the burden of regulation for health and social care providers. For example, in place of the annual reviews currently conducted by the Healthcare Commission and the CSCI, the new Commission will only carry out periodic reviews of PCTs, NHS providers and local authorities. The move to less frequent inspection of care providers looks set to continue - providers previously required to be inspected twice a year may only now be inspected once every three years, with the new inspection methodology reliant on paper-based reviews and providers assessing themselves.
3.2 UNISON is concerned that continuing moves towards light touch regulation could have massive implications for public and staff safety. We are concerned that at a time when the Government is encouraging more providers into the market, this is being met by less regulation.
3.3 As the Government has already announced that the new regulator will have to operate with a budget that is 40% less than what the previous regulators had, UNISON is concerned that the inspection system is being driven by budget imperatives, rather than what is best for users of health and social care services. A recent survey of our members working for the current CSCI found that 76% believe that the new inspection methodology does not provide a robust assessment of risk to service users. The reduced inspection programme has led to staffing cuts which mean that 50% say inspectors are now less likely to impose enforcement requirements because they do not have time to follow them up.
3.4 We believe that amendments are necessary to define circumstances which should trigger an inspection within a prescribed period where one is not due anyway. These would include a change of ownership of the providers, a change of registered manager, and adult protection/safeguarding proceedings, and staff turnover above a certain level. We propose these triggers because they are all important risk factors which could see quality of care deteriorate rapidly where a provider had previously been rated 'good' and placed on a 3 year inspection cycle.
3.5 In this context we have particular concerns that the new CQC will not be required to take on some of the important functions carried out by the previous inspection bodies. The Bill removes the current complaints function of the Healthcare Commission, and fails to clarify the current lack of clarity over what the Commission for Social Care Inspection's remit is in respect of complaints. In our survey of members in CSCI 74% say that greater capacity to follow up and investigate concerns, complaints and allegations is needed.
3.6 The failure to give the CQC a clear remit in respect of complaints represents a missed opportunity to provide an independent route of redress for self-funders in particular. They make up some 35% of care and nursing home residents, and because they cannot access the Local Government or Health Ombudsmen have no independent redress against deficiencies in the quality of care they receive. We also believe that this omission will leave major gaps in the intelligence that the new merged regulator will be able to gather on providers, and its ability to be responsive and effective in picking up poor standards of provision. There is indeed a perverse incentive for providers to limit the flow of information about complaints to the regulator. We believe that amendments are needed to give the CQC functions and duties in respect of complaints investigation and the triggering of inspection activity, and specific duties to develop protocols for respective responsibilities in respect of complaints with the current Ombudsmen.
3.7 We would also like to see a specific focus and powers for the new regulator to enforce the requirements on providers set by the General Social Care Council (GSCC) in relation to the social care workforce. At present the GSCC enforces the Code of Practice for social care employees while formally it falls to the Commission for Social Care Inspection to enforce the Code of Practice for social care employers. The Code is an important determinant of quality standards and public protection, as the quality of the workforce and they way staff are employed are at the core of care quality. However, it is generally agreed that there is no real enforcement of this Code. We wish to see an amendment which would give the CQC the power to enforce compliance with the Code.
3.8 When compulsory registration of the next groups in the social care workforce commences next year, it is envisaged that enforcement of the registration requirement for all staff working in regulated social care settings, will rest with the CSCI and subsequently with the CQC. This differs from the current position, where the enforcement mechanism is through criminal sanctions against anyone found to be presenting themselves as a social worker who is not registered.
3.9 We have grave concerns that the policy of workforce registration together with training and learning requirements, which UNISON has supported, will be fatally undermined if there is insufficient enforcement, and providers slip through the net creating a two-tier system. This is particularly important as eventually compulsory registration will be extended to 800,000 staff. We therefore think it is imperative that the Bill and subsequent regulations give specific enforcement powers and resources to CQC to give the public confidence that all care staff will be professionally registered and competent to care for the most vulnerable in our society
4. PART 2 - Regulation of health professions and the Health and Social Care Workforce
The Office of the Health Professions Adjudicator
4.1 Whilst the proposals to separate the adjudication of fitness to practise cases from their investigation and prosecution will initially affect the General Medical Council and General Optical Council, the White Paper 'Trust, Assurance and Safety' has indicated that this separation is the direction of travel for all regulators. In principle UNISON would support this direction of travel, although we would wish to be closely engaged with the monitoring and reviewing of the system.
4.2 However, the fitness to practise process is currently funded by the registrants of the individual registration bodies and is seen as part of the process of professional regulation by the staff. The proposals in the Bill will in effect create an independent tribunal system which will not guarantee that a professional's case will be heard by one of their own. We would argue that one of the panel members should be from the relevant register to ensure that judgements are fair and in line with normal professional practice.
4.3 In addition the cost of the system could be in excess of the current system and will reduce the ability of the registration bodies to perform their other functions as registrar and champions of professional development. If this separation of functions is for public protection, it is legitimate to ask whether it should be financed by central funds and not by the registrants.
Amendments of Part 3 of Health Act
Extension of powers under section 60 of Health Act 1999 (clause 103 and schedule 8)
4.4 UNISON continues to have concerns over the make-up of the boards of the health regulators. The NHS Appointments Commission has so far failed to appoint board members who allow representation across the ethnic, social and gender divides. It is absolutely key that the new councils are able to engage with the registrants of the professions which they regulate, and reflect society.
4.5 Currently none of the existing regulatory bodies are compliant with the equalities legislation. We would wish to see that the Bill, as a minimum, requires regulators to meet the obligation under these Acts. Failure to achieve this could undermine the confidence that both registrants and the public have on their ability to function fully.
Standard of proof in fitness to practise proceedings (clause 104)
4.6 UNISON has particular concerns in relation to this part of the Bill, which amends the Health Act 1999 to impose a requirement for all regulatory bodies and the new OHPA to use the civil standard of proof (the balance of probabilities) rather than the current higher, criminal standard of proof (beyond reasonable doubt) in fitness to practice proceedings. Fitness to practice proceedings have a huge impact on the livelihoods of healthcare professionals. Removal from a register is communicated to all registers, and effectively ends a person's career. It is therefore vital that confidence exists in the decision being made by the regulators.
4.7 We would argue that it is particularly important to retain the criminal standard in cases of alleged misconduct where many of the facts alleged are, or could be, criminal in nature. Firstly, a situation could arise whereby a registrant is acquitted in a criminal court using the criminal standard but found guilty using the same facts if the civil standard is applied to the professional conduct tribunal. Secondly, it is important that healthcare professional and employers have confidence in the adjudication process as removal from the register effectively ends a person's career, not just their current employment.
4.8 We would welcome an amendment to this clause which makes clear that any cases heard by the regulators which are criminal in nature should continue to be subject to the criminal standard of proof (beyond reasonable doubt).
4.9 We also have concerns that certain minority groups will be affected negatively by this changing standard. As none of the regulators comply with the Race Relations Act, they do not publish information on either the ethnicity of their registers or decisions taken. However anecdotal evidence seems to show a higher proportion of black and minority ethnic registrants in some professions being subject to fitness to practise in comparison with other groups.
Council for Healthcare Regulatory Excellence (clauses 105 - 109, plus schedule 10)
4.10 Again, UNISON has concerns over the representation and transparency that this new council will provide for healthcare professionals. We believe that every effort should be made to ensure that black and ethnic minorities are appointed to the board. It is essential that the new CHRE reflects society and is not made up of full time committee members.
4.11 We would ask that the NHS Appointments Commission plays particular attention to the short listing of board members - we are aware of one individual who sits in different capacities on seven different regulatory bodies. Public protection should be seen as a civil duty similar to that of jury service and we should seek to ensure that we not only have the right people in place with the correct skills but that these individuals bring life skills and an interest in public protection.
Conduct and performance of medical practitioners and other health care workers (clause 110)
4.12 It is likely that the system for medical revalidation introduced by the Bill will eventually be extended to the other regulators, and UNISON has concerns that the direction of travel of revalidation is to move towards a licensing as opposed to a regulatory system.
4.13 Licensing would change the relationship between the registrar and the registrants and would result in a system with less emphasis on continued professional development and more on competency tests. It also makes the merger of registration bodies easier since it assumes that once a license has been issued the involvement of the registration body in monitoring the professional is less than as of now. The emphasis of the registration body would move from professional development to a competency test at entry and at the time of possible removal from the register. We would wish to be actively involved in any discussions surrounding revalidation as proposals for doctors may not readily translate into practical measures for other staff groups.
5. PART 5 - Miscellaneous
Amendments relating to National Health Service
Indemnity schemes in connection with provision of health services (clause 131)
5.1 Whilst the focus of the clause is to bring the private and independent sector into the NHS scheme, UNISON is concerned that it does nothing from preventing this sector from pushing the burden onto individual employees by making indemnity insurance a requirement of their employment. A move to apply liability onto an individual would not be supported by staff and the unions.
Financial assistance related to provision of health or social care services (clause 137 - 144)
5.2 UNISON has concerns that this section does not provide adequate safeguards on the way different organisations are funded and could lead to the NHS being put at a disadvantage in an increasingly competitive market.
5.3 UNISON is concerned that this section of the Bill give powers to the Secretary of State or delegated body or company to provide financial assistance to social enterprises providing health and social care. This may put NHS providers at a disadvantage and PCTs will be encouraged to divest their provider arms to social enterprises which will be able to cut costs due to the financial assistance.
5.4 Section 138 (1) (b) defines a qualifying body [for financial assistance] as one which 'satisfies prescribed conditions relating to the distribution of its profits', but includes an exception: 'except in the case of a body of a prescribed kind'. 'A body of a prescribed kind' is not explained in the explanatory notes and this exception would appear to invalidate any regard to the profit angle. This could therefore open the door to funding for the health service arm of companies, including, for example, BUPA or Capita as long as they meet the requirement in section 138 (1) (a) 'that its activities are carried out for the benefit of the community', which could be interpreted as any company providing health or social care services. UNISON has serious concerns that this seems to be contrary to the government's intended position of providing an advantage to social enterprises.
5.5 Clause 140 outlines the terms on which the money must be paid back by social enterprises. UNISON believes that if a social enterprise is bought out by a private company, the money must be repaid.
6.1 We are concerned about the planning for the merger to create the Care Quality Commission and we would not want to see a reduction in standards of inspection and public protection because of budget cuts and staff reductions. Nor do we want to see missed opportunities to improve enforcement and ensure quality.
6.2 The changes in the regulation of health professionals and the reduction in the standard of proof in fitness to practise cases is of concern because of the possibility of increased fees to registrants caused by the cost of the new structures and the possibility of licensing not registration.