Mr.
Stephen O'Brien: I am grateful to the Minister. He has
made it absolutely explicit that, in addition to what he describes as
normal safeguards, there is no intent behind the provision for there to
be a long-term role for PCTs to deliver such services. It is important
to recognise that, perhaps in a less extreme example, there could be a
temptation, particularly in the local human-to-human transmission flu
pandemic that we are technically now in. I accept that the Minister was
right to temper that approach by saying that we are now dealing with
relatively mild and short-lived episodes.
None the
less, there is a transmission taking place and we have rising numbers.
No doubt the Government are taking advice, just as we do, but according
to all the expertise the likely profile of pandemic flu is one wave,
most probably followed by a larger wave in a second phase, and possibly
even a third phase. Even if no long-term role is intended, in the case
of the current pandemic—not the swine flu epidemic—there
is a danger that we might say, “We had better keep the position
going in case we need it for the second wave,” and therefore
prolong it beyond what would be the normal intent of there being no
long-term role.
It needs to
be recognised that the profile of flu pandemics might make the body
hesitate to get out of making the provision and therefore turn it from
a short to a medium-term role. With that caveat it is clear where the
intent lies. I do not think that the amendment needs to be pressed to a
vote, but it has been useful to ensure there is absolute clarity. Given
the current flu pandemic, it helps to have that in mind when one thinks
about where a true emergency lies in such circumstances, and where
therefore we need to ensure that there is a proper restraint on the
ambitions of those who might want to set up services where they are not
the best people to do so. I therefore beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 29
ordered to stand part of the Bill.
Clauses 30
to 32 ordered to stand part of the
Bill.
Clause
33Investigation
of complaints about privately arranged or funded adult social
care Mr.
Stephen O'Brien (Eddisbury) (Con): I beg to move amendment
40, in
clause 33, page 32, line 32, leave
out ‘adult’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 41, in schedule 5, page 53, line 12, leave out
‘adult’. Amendment
138, in
schedule 5, page 53, line 13, leave
out
‘adult’. Amendment
42, in
schedule 5, page 53, line 14, leave
out from ‘interpretation’ to second
‘social’ and insert ‘social care provider”
and’. Amendment
43, in
schedule 5, page 53, line 16, leave
out
‘adult’. Amendment
63, in
schedule 5, page 53, line 17, leave
out from ‘2008’ to end of line
18. Amendment
44, in
schedule 5, page 53, line 19, leave
out
‘adult’. Amendment
45, in
schedule 5, page 53, line 21, leave
out
‘adult’. Amendment
46, in
schedule 5, page 53, line 25, leave
out
‘adult’. Amendment
47, in
schedule 5, page 53, line 30, leave
out
‘adult’. Amendment
48, in
schedule 5, page 53, line 32, leave
out
‘adult’. Amendment
49, in
schedule 5, page 54, line 1, leave
out
‘adult’. Amendment
50, in
schedule 5, page 54, line 2, leave
out
‘adult’. Amendment
51, in
schedule 5, page 54, line 17, leave
out
‘adult’. Amendment
52, in
schedule 5, page 54, line 32, leave
out
‘adult’. Amendment
53, in
schedule 5, page 56, line 8, leave
out
‘adult’. Amendment
54, in
schedule 5, page 56, line 35, leave
out
‘adult’. Amendment
55, in
schedule 5, page 58, line 25, leave
out
‘adult’. Amendment
56, in
schedule 5, page 58, line 44, leave
out
‘adult’. Amendment
58, in
schedule 5, page 59, line 18, leave
out
‘adult’. Amendment
59, in
schedule 5, page 59, line 28, leave
out
‘adult’. Amendment
60, in
schedule 5, page 59, line 42, leave
out
‘adult’. Amendment
61, in
schedule 5, page 59, line 47, leave
out
‘adult’. Amendment
62, in title, line 5, leave out
‘adult’.
Hon.
Members: And amendment 57.
The
Chairman: And amendment 57, in schedule 5, page 59, line
9, leave out
‘adult’.
Mr.
O'Brien: All I would say, Mr. Key, is that if
you were testing whether we were awake and paying attention to your
every utterance, I am glad to say we have all passed the test
admirably. One could say that you left out 57 because it is all the
varieties. At this stage, any humour is better than no humour. Those of
us who come from the north-west are very proud of the fact that the 57
varieties come from the Wigan factory, which one passes on the
M6.
This
tranche of amendments—a good fistful of amendments—will
be deceptively short in its proposition. It is simply to ask the
Minister why the complaints avenue is limited to adult social care, and
what is the equivalent available to children? That is something that we
spent a huge amount of time on in the Health and Social Care Bill,
which was roundly rejected at the time by one of the Minister’s
predecessors. However, it would be a shame to let the Minister off the
hook too quickly and easily. Therefore, with your permission,
Mr. Key, anticipating that you might wish to suggest that we
do not delay on a clause stand part debate, I might set the context in
which all the amendments can
sit.
The
Chairman: I would be very content with
that.
Mr.
O'Brien: I am happy to have your assent, Mr.
Key. I will touch on some of the general points, which will enable us
to avoid that lengthy stand part debate, and then trot through the
amendments.
We welcome
the measure, although there is little excuse for the two years that it
has taken since the former Health Minister, the hon. Member for Bury,
South (Mr. Lewis) first promised it in 2007. As we have so
often pointed out, it could easily have been part of the Health and
Social Care Act 2008. During the passage of that Act, the right hon.
Member for Exeter (Mr. Bradshaw) denied our amendments to
it,
saying “self-funders
can, of course, take their custom elsewhere. They can choose civil
remedies through the courts”.——[Official
Report, Health and Social Care Public Bill Committee, 17 January
2008; c.
348.] Apparently
the Government have no qualms about people frail enough to be in
nursing care moving every two weeks, with occasional trips to the
witness box. We were quite angry with the Government for denying us
what was a constructive approach at that time, so we are glad that the
Government have come forward with this measure, albeit in a slightly
face-saving way. Common sense seems to have prevailed at last, and I am
glad that our arguments have won
though. Paragraph
303 of the explanatory notes states:
“The
Government expects that in the majority of cases the complainant would
raise the complaint with the provider
first”? On
what basis did the Government make that assumption? We are clearly
legislating for complaints that are unsuitable to be made to the
provider, or that the provider has failed to deal with, so that will
not impact the
baseline. It
is a shame that we are debating such matter before the publication of
the Green Paper. I dare say that all members of the Committee witnessed
what I would call a sleight of hand from the Minister today—not
this Minister, I hasten to add, but his colleague, the Minister of
State, Department of Health, the hon. Member for Corby (Phil Hope). We
have been calling for the Green Paper on adult social care for many
months and the Government have been promising it for many
months—the former Health Minister, the hon. Member for Bury,
South (Mr. Lewis) promised a new settlement for some years.
We were told that the Green Paper would definitely be out by the
spring, but by every test in the book, spring finishes on either 21
June or 25 June. We had anticipated that it might be published on 29
June. We understood that the Government might not want to affect the
time that the Committee was sitting, but now we are told that it will
be July, so there is yet more slippage.
Many people
are extremely anxious to see what this Green Paper will contain because
it will set the framework for this debate, which is vital. It would
have been helpful to have had the Green Paper before considering the
Bill, because it may—I think that it should—have major
ramifications for the shape of social care in this country.
Lord Darzi
told peers in another place that the Green Paper would be published in
early 2009, but as I have just explained, it now looks like
July. I would also caution the Minister on the rhetoric that seems to
have been used in the regulatory impact assessment. The summary states
that this will create a level playing field between privately and
publicly funded users. That is a vital area, which again was discussed
at length during the debates on the Health and Social Care Bill. The
hon. Member for Hendon (Mr. Dismore), who chairs the Joint
Committee on Human Rights, has made a large contribution to the debate
on the distinction between privately and publicly funded users being
diminished to nothing, so that there are equal rights. As all of us
know, it is invidious that two patients can be in neighbouring beds,
one of whom is completely publicly funded while the other is privately
funded. That causes anxiety and issues—often for the relatives
as much as for the patients, but also because of the human rights
issues and who can enforce the legislation.
Paragraph 24
of the regulatory impact assessment points out that
“the policy does
not include private health care.”
How have the Government
ensured that by opening the door to private funders in social care,
they do not open the door to private funders in health care as well? I
do not for a second underestimate the complexities. We need to keep the
debate on sensible grounds. We started the scrutiny of the Bill
discussing the NHS constitution, which is totally focused on public
provision and the use of public money for NHS services. When looking at
this kind of complaints procedure we absolutely butt up against the
difficulty of a mixed economy of health care, which, whatever its
merits or demerits, exists. We therefore need to make sure that to the
best of our ability is, as we push through any new legislation in this
area, there is real acknowledgement of the need to seek and find equity
in the process.
Moreover, I
remind the Committee that although the Government have closed the
loophole by which publicly funded individuals in private care were not
covered by the Human Rights Act 1998—I alluded to that a second
ago—the individuals we are discussing today, private funders of
private care, are still not covered by the Act. I am not suggesting
that they should be, because of the way the Act works in relation to
public bodies, but it leaves an area uncovered in terms of the
potential for rights and enforcement. I dare say that all of us at
least need to be cognisant of that, even if this is not the right
vehicle to try and address that.
The RIA says
that social care services, unlike health services, have developed under
a funding model under which a sizeable proportion of services pay their
own way—some 300,000, or 35 per cent., according to the RIA. I
asked the Minister whether the passive really is a suitable voice for a
system that the Government have failed to reform, despite many promises
to date. I also question an odd line in paragraph 30 of the RIA, which
states:
“we do not
foresee the need to enter into a formal public consultation because the
policy is a ministerial commitment made in
Parliament.” I
hope that the Minister will be able to ensure that that position is put
in
context. At
this stage, the amendments all go to the same point—why do the
provisions cover only adult services, and not children’s care
services? Why is the proposal limited? When will the Green Paper, which
will have ramifications, be published? July is the nearest we can get
to at the moment. Will the Minister inform the Committee of the basis
for the Government’s estimate of numbers? What ramifications may
this have for private health care funders and for all those still not
covered by the Human Rights Act? Do the Government need to consult on
statements made in Parliament and will the Minister credit the
Opposition with holding the Government’s feet to the fire? It
would be rather nice to have that
acknowledgement.
Mr.
Mike O'Brien: I am not sure whether my feet feel held to
the fire, or I am just left cold, but I have rarely heard the words in
an RIA described as “rhetoric”. I suspect that Martin
Luther King will not have to feel challenged about that. In answer to
the question of how long the wait will be for the Green
Paper—not long. On private care, it is not our aim to provide a
new system, it is about NHS care and recognising that sometimes it can
be provided by private sector organisations. However, where public
money is involved there should be appropriate safeguards for those
using the service.
I can
understand the thinking behind the amendments, but I would like to
explain why I do not believe that they are actually necessary. One of
our main objectives in creating the new scheme is to give people who
arrange or fund their own adult social care services, access to
independent consideration of their complaints comparable to that
enjoyed by people with access to local authority adult health services
complaints procedures. We have designed the new scheme so that its
scope is limited to service providers who actually carry out regulated
activity within the meaning of part 1 of the Health and Social Care Act
2008—in other words, adult health services. There are good
reasons for that. There is not only a different system for complaints
about children’s social care services, but a different system of
regulation under separate legislation. I therefore believe that it
makes sense to keep adults’ and children’s complaints
processes separate. For many years there have been separate
arrangements for children’s complaints about social care
services under the Children Act 1989. These arrangements are different
in many ways from adult procedures as they reflect the specific needs
of children. I hope that deals with that point.
In terms of
the need to consult, the policy has already been discussed during the
passage of the 2008 Act and is the subject of ministerial commitment.
In addition, we believe this is an uncontroversial measure that is
widely welcomed and any alternative approaches are not realistic. We
prefer a reference group approach, which can focus on the
practicalities of implementation rather than the issue of whether or
not the policy should be carried through. We seek engagement with the
stakeholders regarding implementation. We need their advice and input
on the way we engage, but the issue is clear. I assume there will be
broad support for the way in which we are giving these additional
rights; indeed, the support is so broad that the Conservative
Opposition appear to be claiming credit for it. I do
not mind where the credit is taken, provided this Government continue
to deliver for
people. 6.30
pm
|
