Mr.
O'Brien: The Minister is right to make that distinction.
The reason we are having this debate, even if this is effectively an
accretion to the ombudsman’s traditional approach, is because
the ombudsman would be used as the complaints process for a new area of
activity. That is why this distinction needs to be made. The
Minister’s comments are helpful in so far as they make it
explicit that the intent here is more of an arbitration type of
proceeding, as arbitrations are privately arranged. They park a dispute
and the relationships between the parties can carry on; as against
litigation where more or less everything comes to a general halt and
there is a contentious situation in the court.
As long as it
is clear to everybody that that is what we are heading into, it would
be counter-productive to press this to a Division. Our exchange makes
it clear what type of process we are dealing with, so I beg to ask
leave to withdraw the amendment.
Amendment,
by leave, withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 71, in
schedule 5, page 56, line 30, at
end insert— ‘FA Complaints:
Emergency Action (1) If, on
receiving a complaint under section 34D, the Local Commissioner has
immediate and urgent concerns, he may
inform— (a) the Care
Quality Commission, (b) the
local authority, (c) the
Police, (d) the Secretary of
State. (2) The Secretary of
State may issue guidelines on circumstances of “immediate and
urgent concern”. These may
include— (a) all forms
of abuse, (b)
malnutrition, (c)
infection.’.
The amendment
will take slightly longer than our canter through recent amendments. It
probes what happens if the ombudsman receives a complaint that he deems
serious enough for action to be taken immediately. We have termed these
“immediate and urgent concerns” and generously allowed
the Minister the liberty to set out what they might be in regulations.
It empowers the ombudsman to inform any or all of the CQC, the local
authorities, the police and the Secretary of State. The specifics on
the face of the Bill relate to issues that, as we all know from our
case work, have been particularly prevalent in the sector in the last
10 years, namely malnutrition, elder abuse and health care associated
infections.
According to
the advisory group on malnutrition, malnutrition is an under-recognised
and under-treated problem. Evidence suggests that over one in 10 care
homes do not have a nutrition screening policy in place and
malnutrition has been found to affect one in three adults admitted to
care homes and an even greater proportion of people resident in
sheltered housing, even though NICE guidance published early in 2006
demands that people resident in care homes are screened when there is
clinical concern.
Malnutrition
in community settings is not being managed effectively. The case for
encouraging care homes to identify and manage malnutrition is
highlighted in the recent data from hospital episode statistics, which
reveal that the number of people being admitted to hospital with a
diagnosis of malnutrition has increased from 72,095 in 1997-98 to
148,946 in 2007-08—a rise of 107 per cent. over that
period. This suggests that the nutritional care people receive in
community settings such as care homes is deteriorating, meaning that a
greater number of people require hospitalisation. The guidance will
help address this situation by encouraging a focus on nutritional care
by adult social care providers.
Furthermore,
mortality from malnutrition is on the rise. The hospital episodes
statistics data is reinforced by figures obtained through parliamentary
questions, which reveal that 263 people died in care institutions,
including care homes, in 2007 from malnutrition—a 9 per
cent. increase over 1998 levels. The guidance our amendment proposes
could help by stipulating that a death from malnutrition in an
institution is an issue of immediate and urgent concern, requiring
action by either the Care Quality Commission, the commissioning local
authority, the police, or the Secretary of State. Rather than go
further into the elder abuse issue, with
which Members throughout the House are terribly familiar—and I
use the word “terribly” advisedly, as it has been a real
shock to us all to find out just how much elder abuse there has
been—I shall move on to health care associated infections. A
good series of campaigns is highlighting elder abuse, and many of us
are doing our best to focus on it and see improvements. We are all
aware of the Government’s performance on HCAIs in hospitals,
which, it has been argued over many years, is not creditable. The
latest Health Protection Agency figures show that the number of
clostridium difficile cases went up by 6 per cent. in the last quarter,
while the number of MRSA cases went up by 2 per cent.—although,
extraordinarily, the new Health Secretary boasted that he was
“proud” of the record on the day that those figures were
released.
I fear that
the figures expose the Government’s complacency and their
failure to tackle that blight. Just two weeks ago, the National Audit
Office said that almost a quarter of hospitals still do not have
facilities to isolate patients with an infection to stop it spreading.
Instead of taking real action, the Department and the Government have
pursued measures such as the Prime Minister’s flawed
deep-cleaning programme, which has turned out to be one of those deep
embarrassments.
However,
HCAIs are beginning to appear in community settings, particularly in
care homes. We have figures up to only 2005, so those are still small,
but they are rising significantly. Deaths from MRSA doubled from
0.02 per cent. to 0.04 per cent. of the care home population
between 2001 and 2005. Deaths from C. diff more than trebled over the
same period, from 0.03 per cent. to 0.11 per cent. Those
numbers are more significant if we posit a care home population of
300,000 to 400,000
people. Action
on this is moving faster across the Atlantic. In fact, this month
nursing homes in the eastern regions of Pennsylvania began reporting
healthcare associated infections to the state’s Patient Safety
Authority through the Pennsylvania patient safety reporting system.
Legislation signed as long ago as July 2007 made that reporting
mandatory.
What
mechanisms will be put in place to enable the ombudsman to take or
alert others to take swift action where necessary? If none, I hope that
the Minister will accept our amendment. I also hope that he will
explain how the Government are acting on health care associated
infections, on elder abuse, obviously, and on malnutrition in the care
sector, as those are clearly pertinent, powerful and distressing
examples. We hope that the complaints procedure, which to some degree
picks up on the power that was lost when community health councils were
scrapped, because they had the ability to look across the system as
well as down into individual complaints, will bring benefit to urgent
and immediate policy
action.
Mr.
Horam: My experience is that the statistics for MRSA and
C. difficile are very late. The current situation is usually nine
months previous, which is one reason that we need to react quickly. I
have constantly found that when looking at the situation, one is
talking about figures that came out nine months ago. That really is
unsatisfactory and I understand that there are reasons for it; it is
not easy to pinpoint those things in accurate
and timely ways. None the less, when it is apparent that the situation
in a hospital is sliding, we need to take urgent
action.
Mr.
Mike O'Brien: I looked at this issue with some care, and
was initially tempted to take the matter back and consider it for
Report. The hon. Member for Eddisbury has put his case in a politically
contentious way, and I certainly refute his suggestion that there is
any complacency about issues of abuse, malnutrition or infection. Those
are all serious matters that the Government, certainly, take seriously;
institutions like the Care Quality Commission were set up to deal with
them. It is precisely because we take those issues seriously that we
took legislation through to set up an organisation like the
CQC.
We accept
entirely that action needs to be taken to deal with incidents of abuse,
malnutrition and infection, which occur from time to time and must be
tackled without delay where discovered. Under new section 34P, the
ombudsman may provide information to the Care Quality Commission if
that information appears to be relevant to the CQC’s
responsibilities. He can do so as soon as he receives a complaint. He
does not have to wait or investigate; he just sends the information.
The thing about the CQC is that it has the powers to take immediate
action. That includes alerting the independent safeguarding authority
as well as taking direct action such as closing a care home
immediately, for example. Action can be taken.
Why the local
authority, the police or indeed the Secretary of State would be more
appropriate needs explanation, as they do not have the regulatory
powers and responsibilities of the Care Quality Commission. The
Secretary of State, for example, does not have a role in regulating
social care directly; that role has been given to the Care Quality
Commission. Similarly, local authorities have a role in commissioning
care but not in its regulation. Action such as closing a care home is
for the CQC, not the local authority.
As for
informing the police, that is essentially a decision for the
complainant. They might make a conscious choice to complain to the
ombudsman rather than the police, but the ombudsman may always suggest
to a complainant that a matter needs to be brought to the attention of
the police or, alternatively, the CQC. If appropriate—if
prosecution is needed, or a particular aspect of the case requires
police investigation—the CQC is there, and its job is to refer
such matters and ensure that they are dealt with effectively. We have
set up a body to which the ombudsman can go to ensure that the
necessary action is taken.
The hon.
Member for Orpington raised a reasonable concern about statistics being
delayed for months or, on occasion, for a year or more. That is a
matter of frustration for Ministers as well as for him. He will be
aware that many times, Ministers get only a day’s notice of
statistics becoming publicly available, so we often have only a limited
chance to look at them. We share his frustration about that, but why
does it happen? Because statistics must be collated, validated,
cross-checked and peer group-assessed, and then conclusions must be
drawn from them. Often, that takes time and is a matter for debate
within the organisations providing such data, which often seek peer
group validation.
The process
takes time. That is, I fear, the price of having reliable statistics.
The delay causes some of the problems that the hon. Member for
Orpington identified,
but I am not entirely sure how we might overcome them. He is right to
raise the issue and make that complaint, and I share his frustration to
some extent, but I do not really have a way to provide him with a
remedy, unless we want less reliable
statistics. Sandra
Gidley (Romsey) (LD): We all share that frustration with
delayed statistics, because they give us less opportunity for scrutiny,
but does the Minister accept that most good trusts have the statistics
straight away? They spot emerging trends and take action to find out
what is going on and work through it. We need to put that on the
record; otherwise, we might come to the conclusion that it is only when
MPs start making a noise that action is taken, which is rarely the
case. Action has usually been taken by the time we investigate, except
in rare
cases.
Mr.
Mike O'Brien: The hon. Lady is absolutely right, and I am
grateful to her for putting that on the record. Most trusts take action
in relation to statistics that they become aware of privately, before
validation, peer group assessment and publication. She is right to
point out that it is only where some sort of failure has occurred that
MPs must start voicing concerns. I hope that I have given reassurance
that the powers for the ombudsman to deal with an abuse that comes
before him are indeed available in the Bill and more generally through
the
CQC. 10
am
Mr.
Stephen O'Brien: I do not think that it is anything that I
or the Minister said that caused Committee members on our Benches to
exit
completely. I
am grateful to the Minister, who made the important and valid point
that proposed new section 34P makes possible immediate reporting to the
CQC and the independent safeguarding authority. That is helpful, as is
the extension to the police—although there is nothing to stop
anyone relaying information at any point to the police—and the
Secretary of State. In many ways it was helpful to explore that. The
Minister rightly observed, in his answer to the hon. Member for Romsey
and to my hon. Friend the Member for Orpington, the timeliness of
statistical information coming out, so that action can be taken in a
timely way, based on knowledge of the evidence base. That has been
useful, so I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Mr.
Stephen O'Brien: I beg to move amendment 72, in
schedule 5, page 58, line 3, after
‘provider’, insert ‘or any other
person’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 73, in schedule 5, page 58,
line 9, at end
insert— ‘(4A) “any
other person” under section 34H(4) may
include— (a) the Care
Quality Commission, (b) the
local authority, (c) the
Secretary of State, (d) the
Department of
Health’. Amendment
74, in
schedule 5, page 58, line 47, after
‘provider’, insert ‘or any other
person’.
Mr.
O'Brien: In the Bill as drafted, specifically in proposed
new section 34H(4), the ombudsman is limited to making recommendations
with respect to action that the provider should take. However, it seems
clear that in some circumstances action taken, or not taken, by
individuals working for the provider—rather than the
provider—and other individuals and agencies will have a bearing
on the complaint. By allowing recommendations to be made to the
provider “or any other person”, our amendment would allow
the ombudsman to make more far-reaching recommendations if and when
necessary. In particular, a complaint might arise from circumstances in
which the CQC, the local authority or even the Government should have
been responsible. The ombudsman should have the power to make
recommendations to them in such
situations. For
example, the Alberti and Colin-ThomÃ(c) reports into the recent
tragedy at Stafford were prevented from addressing
Government-inspired—some would argue—or
otherwise-inspired systemic failings other than by legislation, but if
there were conflicts of interest, the same principle would apply. One
of the things that has been shocking about the Stafford situation,
which all of us have been wrestling with and trying to understand, is
why on earth, despite all the encouragement of and the law on
whistleblowing, the nurses, for instance, did not get together in the
canteen and decide that it was time to blow the whistle. Some kind of
fear factor appeared to be at play. The system did not operate as
intended under a series of legislative and regulatory measures from
this place. We must all continue to wrestle with the question of how we
create that confidence to come together and provide
information. I
hope that the Minister will be able to reflect and explain why the
ombudsman is at the moment limited in that respect. Perhaps our
amendment would help ensure the removal of such a
limitation.
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