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I shall now deal with new clause 11, which was tabled by the hon. Members for Eddisbury (Mr. O'Brien) and for Hemel Hempstead (Mike Penning). It seeks to ensure that when the Care Quality Commission undertakes an investigation or special review into a particular aspect of care pursuant to section 48 of the Health and Social Care Act 2008, relevant bodies are informed. In the case of an investigation or review of NHS services, that would mean informing the relevant primary care trust, strategic health authority and Monitor.
I understand the concerns behind the new clause and I am very sympathetic to its aim; in principle, there is no great difference between us. However, an amendment to that effect is not necessary because the intended purpose is already covered under formal agreements that the CQC has made with Monitor and the SHAs. There is a shared view about what should happen, but I am concerned about some of the drafting problems with new clause 11. I could go into those problems, although there is no great difference between us on what the hon. Member for Eddisbury wants to happen and the various levels of contact.
The CQC can carry out an investigation when it has evidence that suggests a serious problem, which may be putting patients at risk. Under the 2008 Act, it also has new, more powerful enforcement powers, which it will be able to use to tackle serious service failings, such as those in the Mid Staffordshire NHS Foundation Trust. The CQC always informs SHAs when an investigation is carried out. That is clearly set out in a memorandum of understanding that has been signed by the CQC and the SHAs. In almost all cases, the CQC would also question the relevant SHA and PCT as part of its investigation. It would therefore be well aware of what was going on.
The CQC also informs Monitor of an investigation involving NHS foundation trusts. Section 70 of the 2008 Act places a duty on the two regulators to work together. A legal duty therefore already exists. A memorandum of understanding between the two regulators states that, in carrying out their regulatory functions, the CQC and Monitor will inform each other as soon as reasonably possible of any matters that may require action or a response from the other. That includes notification in advance where that is appropriate. Therefore, in the case of investigations, the formal agreements that the CQC has in place with the SHAs and Monitor would provide for the notification that the amendment seeks to achieve. We know from experience that the CQC will also publicly announce any new investigation, and will involve all key stakeholders. I hope that that reassures the hon. Member for Eddisbury that we do not have a big difference in principle. We have already achieved what he and I would like through the agreements that have been made and the legal duty to co-operate in the 2008 Act, which is in place. I therefore do not believe that we need new clause 11.
Amendment 25 seeks to correct a minor drafting error in clause 18(8)(b), which lists orders that are not subject to any statutory procedure. The other orders made in connection with trust special administrators are not subject to any statutory procedure and an order made under subsection (5) of proposed new section 65L should also have been included in the list. That makes the drafting consistent with the Government's original intention, which was approved by the House of Lords Committee on Delegated Powers and Regulatory Reform.
Foundation trust status and its regulatory framework have brought significant benefits for patients. We want to continue and enhance those benefits, and to encourage more movement towards foundation trusts. However, the Government new clause and amendments will fill an important gap in the current regulations, to enable some of the issues that arose in the wake of the Mid Staffordshire debacle to be dealt with by Monitor and, in due course if necessary, by the Secretary of State. They also ensure that we can help to protect patients on the very rare occasions when a foundation trust fails its local population.
Mr. Stephen O'Brien: In addition to addressing Government new clause 12 and speaking to their amendments, I shall address new clause 11, which was tabled by my hon. Friend the Member for Hemel Hempstead (Mike Penning) and I.
Before I address the substantive points, I want to place on record how disappointed I am that the Government have seen fit to make this serious group of changes to the Bill at this very late stage. They are introducing three new areas to what is already a portmanteau Bill. There is little reason why the measures could not have been introduced in Committee. I am sure that the whole House, particularly Back Benchers, will be disappointed that the debates that they wished to have are being squeezed by the Government's last-minute legislating.
Government new clause 12 introduces five new sections to the four clause part of the National Health Service Act 2006 that deals with failing NHS foundation trusts, as we have just heard. The new sections give Monitor the power to give the Secretary of State a notice recommending de-authorisation on the following grounds:
"the health and safety of patients...the quality of the provision by the trust of goods and services...the financial position of the trust"
"the way it is being run".
The measures give the Secretary of State the power to de-authorise within five working days of such a notice being received, and the power to recommend to Monitor that it give a notice recommending de-authorisation. If Monitor does not give such a notice, the Secretary of State will have the power to ask it to provide a written report as to why not. The other measures are consequential amendments.
The reason for the changes, as was made clear in the Secretary of State's letter to the shadow Secretary of State, my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), is the Government's somewhat less-than-adequate response to the tragic events at Mid Staffordshire. Indeed, that response was, in part, the result of the absence of a transparent failure regime, which was promised in 2003 but is still not forthcoming.
As it happens, as shadow Minister for the Potteries as well as a shadow Health Minister-Stafford is of key interest to all people in Staffordshire, and above all to everyone in Stafford-I have been closely involved with events since the damning report into the hospital, as have my hon. Friend and the Leader of the Opposition. We must remember that at the heart of the issue is the avoidable deaths of up to 1,200 people. Each of those deaths leaves family and friends with a heavy burden of grief, which is only intensified by the serious questions that need answering. Furthermore, the deaths can only be indicative that many hundreds more patients did not
receive the treatment that they deserved and that they rightly expect in our NHS. Before going any further, therefore, we must take a moment to remember all those who have suffered and those who continue to suffer because of the failings at the Mid Staffordshire trust.
Although that need not be a party political matter, sadly there is a choice. The Government are unwilling to have the bright glare of a full public inquiry shine on that appalling scandal, and I pay tribute to my hon. Friends the Members for Stone (Mr. Cash) and for South Staffordshire (Sir Patrick Cormack) and to our party's candidate for Stafford, Jeremy Lefroy, who have campaigned hard for a public inquiry. The Conservatives supported such an inquiry and continue to do so, but the Labour party, including the hon. Member for Stafford (Mr. Kidney), who is now a Minister, opposed it. Jeremy Lefroy has worked hard, along with Cure the NHS, a coalition of deeply concerned people, to call the Government and local bodies to account.
Under existing legislation, the Secretary of State can by order transfer the property and liabilities of the trust back to himself, among other bodies, so there is already a process of de-authorisation. The Secretary of State's hubris lies in one sentence of his letter on the amendments, which states:
"Whilst we have a rigorous system of authorisation, we have no corresponding process to de-authorise."
Could this set of late amendments be a cloak to cover the embarrassment of the Secretary of State and Ministers? Is it, at best, window dressing or, at worst, an attempt to shut the stable door after the horse has bolted? To decide whether the new clause has any merit, we have to examine not only the effect, but the motives that lie behind it.
The simple fact is that the problems at Mid Staffordshire were not the result of a failure by Monitor or, in fairness, by the Secretary of State in his informal oversight of the trust. They were almost entirely due to existing problems in the trust that were ignored during the so-called "rigorous system of authorisation" and the flawed policies of the Government that put targets and bureaucracy before professionals and patient care. The Minister may have quoted the findings of the Colin-Thomé and Alberti reports, but, as has been shown in this Chamber and elsewhere, those reports are both flawed. Neither is independent of a civil service that has seen the chief executive of the Shropshire and Staffordshire strategic health authority become the chief executive of the NHS.
The subsequent chief executive of the West Midlands SHA, Cynthia Bower, has become the chief executive of the Care Quality Commission. She raised mortality rates only once in her routine briefings to the board, and only in relation to the Healthcare Commission's announcement of its intention to investigate Mid Staffordshire in March 2008. On that occasion, she stated that
"there appeared to be nothing to indicate that anything out of the ordinary was taking place on mortality".
Board minutes show that performance is consistently measured in terms of meeting Government targets on waiting times and finance, and that the chief executive officer's briefings invariably focused on the latest strategy from the Department of Health. Neither report interrogates the Government's target culture, explains why the National Patient Safety Agency failed to alert anyone at any level
about the high mortality rates or addresses the impact of the cull of the independent-and thus trusted-community health councils in favour of the in-house NHS patient and public involvement forums. Nor do they scrutinise, beyond the warmest and most meaningless words, the ability of local involvement networks, or LINks, to combat such problems in future. We pressed that point, to no avail, in Committee.
Neither do the reports explore the fear culture that silenced nurses at the trust, which was almost the most unfathomable aspect of the episode for anyone who understands nurses. Neither report looked at the impact on the trust of trying to comply with the European working time directive nor examined the role that practice-based commissioning, a flagship Government policy, played in divorcing GPs from the secondary care that their patients were receiving.
Most worryingly, neither report explained why the trust got through the so-called rigorous authorisation process. The House will know that the Secretary of State alone can authorise a foundation trust. He takes advice from the applications committee, but he is not obliged to follow its advice. However, the Secretary of State's predecessor has not apologised for the decision in this case, or explained where the process went wrong.
"some concerns were raised about the use of a public confidence test when the Secretary of State is deciding whether to request interventions. Monitor does not believe the test is appropriate, feeling it risks dragging the Secretary of State into any situation with media interest. Others are concerned that this could risk intervention being based on media perception rather than evidence."
This is not the first time that we have seen the Government make public relations the prime motive for policy. Within this Bill, the regulatory impact assessment on trust special administrators lists in its summary that the first key non-monetised benefit is "maintaining public confidence", and suggests that a public perception that nothing was being done could be damaging to the organisation. The first considered monetised cost is, tellingly, "public perception/media handling".
Frank Dobson (Holborn and St. Pancras) (Lab): I see some merit in some of the points that the hon. Gentleman makes, but I do not understand why he seeks to exonerate Monitor from criticism. It was entirely concerned about finance, not about the standard of patient care.
Mr. Stephen O'Brien: I am grateful to the right hon. Gentleman for that, because my answer to his point enables me to say, first, that I am not aware of any evidence that Monitor was informed by the Care Quality Commission and, secondly, that our argument is that Monitor should be strengthened. That would have enabled it, had it been told, to take appropriate action. Despite the denial, in terms, in the Secretary of State's letter, our concern is that what may lie behind the new clause and the Government's amendments is a cooling-off of their enthusiasm for the foundation trust model and its independence. We therefore want to ensure that that is made clear, although I suspect that that might be more welcome to the right hon. Gentleman than to those on his Front Bench.
Mr. William Cash (Stone) (Con): There has been a good deal of discussion about the Mid Staffordshire NHS Foundation Trust, although I do not intend to go down that route now. However, in the context of the points made about Monitor, does my hon. Friend accept that some of us believe-I have said this in a reply to a letter that I received from the Minister-that although there is a case in certain circumstances for the Secretary of State to put pressure on Monitor, there are also occasions on which he should completely override it and take the powers to himself to take the necessary action to disband a trust? That may not be what my hon. Friend wants me to say-I am not sure.
Mr. Stephen O'Brien: What my hon. Friend is seeking, from those on both sides of the House, as well as from all those who have any responsibility for ensuring that the architecture is robust enough to deal with the sort of problems that arose so tragically for his constituents, is that there should be an ability, with information and evidence, for early intervention and then immediate action, which would enable somebody to have the powers to get the thing under control before it is too late. That must ultimately be the lesson. The question therefore must be: what is the best architecture for achieving that? Towards the end of my contribution I will say why we have proposed our new clause 11, which may help my hon. Friend to understand why we have proposed what we have proposed.
Mr. Mike O'Brien: I want to be clear about the hon. Gentleman's answer to the hon. Member for Stone (Mr. Cash). Does he believe that if the situation was very serious, there should at some stage be the ability for de-authorisation, so that the Minister could intervene and take control in order to deal with the problems that had arisen?
Mr. Stephen O'Brien: We have been clear about the position, which is that if there is a serious failure, there must be the ability to make an early intervention. Broadly, in our view Monitor ought to be the body that can put in new management quickly and take the necessary powers, but under the Government's approach, Monitor has ultimately been a financial regulator rather than the overall regulator. That is why we have urged the Government to increase Monitor's powers, which would give it the retained independence.
Let me move on. The Government's proposal has compromised the independence of foundation trusts and given the Secretary of State more incentive to meddle in them and potentially to play politics with them and the NHS. As even the response to the consultation document admits, Monitor expressed concern that, as framed, the proposals in the document did not adequately reflect the principles of Monitor's independence or of transparency. In addition, foundation trusts disagreed or strongly disagreed with the proposal, arguing that the process of de-authorisation would be detrimental to patients, staff and visitors. Some FTs questioned what the removal of FT status would achieve, considering the existing mechanisms to turn around hospital performance.
As an aside, in the rushing through of the legislation, it has not been possible to see the responses to the consultation, only the Government's collation of them, which does not aid transparency. We have to ask: what have they left out? We are entitled to know.
We could ask why the Secretary of State is pushing what some have described as reactionary legislation. What is clear is that it does not appear to be about patient care. That is why the shadow Secretary of State said that there was a big question mark over wanting to bring everything back under the Department of Health, as though it might be any better than Monitor at doing something about such problems or anything else that might have been proposed, because the only direct parallel from which we can draw evidence of a similar situation is Maidstone and Tunbridge Wells NHS Trust. Despite what the Minister said, the Department did nothing when the trust came under its gaze. There is therefore a real absence of confidence that the Department stands any chance of being any better at dealing with the processes. The question therefore has to be how we strengthen Monitor and the other processes.
"the regulator must consider these matters (among others)...the way it"-
"the Secretary of State may request the regulator in writing to consider exercising its power to give a notice".
Mr. Mike O'Brien: I have listened with great care to what the hon. Gentleman has said, but I am still not sure what the answer is to the question that the hon. Member for Stone and I have asked. Is there no circumstance in which de-authorisation should take place and the Minister should be able to intervene? If so, there would be a complete absence of parliamentary accountability even in the most extreme cases. Is that the hon. Gentleman's position?
Mr. Stephen O'Brien: I am very concerned that the Minister is framing his question on the premise that we can allow things to get as far as failure. If there is failure, there is already, as I have described, a de-authorisation process in place because there are already powers to distribute the assets and liabilities. The whole point is to bring about early intervention to prevent the circumstances at Maidstone and Tunbridge Wells and at Mid Staffordshire from arising and to ensure that we can put new management in quickly and early in the process, instead of having to wait until there has been a failure. At that point, all that one will be doing is looking at the past, rather than taking the early action that is required to address the problems. That is why my party has made an alternative proposal.
The problems that manifested themselves at Mid Staffordshire will be solved only by stripping distorting targets out of our NHS, bringing back a strong patient voice that can speak truth to power and strengthening commissioning at the local level. The Conservative party has pledged to do all that-indeed, we pledged two years ago to do so. By using the wrong sledgehammer to crack the wrong nut, the Secretary of State has shown that he does not have what it takes to do the right thing by our NHS, the professionals and patients in it, and the people of Stafford.
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