Care Bill [Lords]

Written evidence submitted from the Royal College of Surgeons (CB 16)

1. Introduction

1.1. This evidence from the Royal College of Surgeons (RCS) sets out our views on parts 2 and 3 of the Care Bill.

1.2. The RCS is broadly supportive of the Bill in its current form, although we do have some outstanding concerns, particularly about how the new ‘single failure regime’ will work in practice. There are also a number of other areas of the Bill which we feel could be improved or clarified; these are set out below.


2. Duty of candour (clause 80)

2.1. The Government has asked our President, Professor Norman Williams, and Sir David Dalton, Chief Executive of Salford Royal NHS Foundation Trust, to assess whether regulations created by this clause should extend a duty of candour to cover moderate harm, as well as death or serious injury. The review has the aim of improving the reporting of patient safety incidents. A call for evidence has been launched and we will carefully examine the views of MPs and others on this important issue.

3. The ‘single failure regime’ (clauses 81-84)

3.1. The RCS has expressed concern about the proposed 'single failure regime', which is designed to tackle problems in finance, governance and the quality of care in NHS trusts. 

3.2. While we welcome an equal emphasis on addressing both quality and financial failures, we have some outstanding concerns about the proposed roles for the CQC, Monitor and the NHS Trust Development Authority (NHSTDA) in this regime.

3.3. The RCS believes that this new regime is particularly complex – whereas the CQC will delegate its enforcement powers (in respect of bodies that do not meet essential levels of safety and quality) for NHS trusts and foundation trusts to the NHSTDA and Monitor respectively , it will retain its enforcement powers for social care, general practice and independent sector providers.

3.4. Robert Francis QC’s report made clear that overly complex regulation can contribute to failings in patient care .

3.5. While we are pleased to note the Government’s assertion that this Bill "ensures a consistent regime for trusts and foundation trusts alike", we are nevertheless concerned about how the new regime will work in practice. In particular, we seek reassurance that the CQC, Monitor and the NHSTDA will work together to ensure that problems are acted upon in a manner which is both efficient and timely.

3.6. The following issues are of particular concern:

o Will Monitor and the NHSTDA be able to question the CQC’s findings and recommendations? What will happen if they disagree about whether action is needed?

o Will this additional level of complexity slow down action required to address failings?

o What will the Government and regulators do to ensure patients understand who is responsible for enforcement action in the NHS, the independent sector, and social care?

4. Statutory independence of the CQC (clause 88)

4.1. The RCS welcomes the proposal to give the Care Quality Commission (CQC) statutory independence when reviewing NHS p roviders, as set out in clause 88. This should help to increase public confidence in the regulator.

4.2. It will be important for statutory independence to be matched by day-to-day autonomy from ministers who remain ultimately responsible for the regulator.

4.3. The CQC has undergone significant upheaval in recent years, and is in the process of implementing fundamental changes to the way it carries out its work. We hope greater independence will bring more stability to its regulatory model.

4.4. We are pleased by its efforts to engage with the royal colleges in reviewing its inspection model, and we look forward to supporting the regulator to better involve clinicians in its inspection teams.

5. Extending the powers of Trust Special Administrators (clause 118)

5.1. This clause, introduced in the Lords, gives the power to Trust Special Administrators to make decisions that go wider than a trust under special administration, including other NHS trusts and foundation trusts.

5.2. We believe this is a logical change as in many instances of trust failure the solutions are unlikely to be found simply within the existing organisation. However, we believe, along with the Academy of Medical Royal Colleges, this clause should be amended to require the Trust Special Administrator to consult with neighbouring trusts if its recommendation would have an effect on their services. Any proposals should then be put forward to the affected local populations.

6. Regulation of healthcare support workers

6.1. We welcome the recommendation from the Cavendish review that all healthcare assistants and support workers should undergo the same basic training and achieve a certificate of fundamental care before they can care for people unsupervised. We strongly encourage the Government to enact this proposal.

6.2. We also believe the Government should go further than this, and introduce regulation that would ensure that any such workers who are found not to be fit and proper persons are barred from holding similar positions in future. We support amendments to the Bill that would help to achieve these aims.


7. Health Education England, and LETBs (clauses 94 and 101)

7.1. The RCS supports the proposal in the Care Bill to place Health Education England (HEE) and Local Education and Training Boards (LETBs) on a statutory footing. We have been encouraged by the work of HEE to date. Medical Education England (which it replaced) acted in an advisory capacity but HEE is likely to have greater influence as it controls the education and training budget and acts as the body responsible for improving the quality of education and training.

7.2. During scrutiny of the Draft Care and Support Bill we raised concerns that clinicians were excluded from the new education and training structures. We are pleased to see that the Care Bill now requires clinicians to be represented on both HEE and LETBs. During the House of Lords Committee Stage we were also pleased that Earl Howe acknowledged that HEE and LETBs would need to tap into the "knowledge and expertise" of bodies such as the medical royal colleges in order to effectively carry out their roles.

8. Requirements on the independent sector (clause 103)

8.1. The independent sector is playing an increasing role in the NHS – particularly in elective surgery. Although the independent sector only provides roughly 3% of all elective NHS care, for elective hip and knee surgery this figure rises to almost a fifth (19%). [1]

8.2. We therefore welcome the strengthened requirements on all providers of NHS services to co-operate with LETBs, including through the supply of data about their workforce.         

9. Involving clinicians in local education and training plans (clauses 104(4))

9.1. The RCS is pleased that the Care Bill requires clinicians to be represented on both HEE and LETBs. However, we feel it would be helpful if clause 104(4) made it clear that LETBs will need to involve local healthcare professionals when developing their education and training plans.

10. Accountability of the Centre for Workforce Intelligence

10.1. Clarification is needed about how the Centre for Workforce Intelligence (CfWI) will work with HEE.

10.2. The CfWI was set up in 2010 to advise the Government on long-range forecasts of workforce needs in the health and social care service. The CfWI is currently accountable to the Department of Health but the Bill is silent about its relationship with HEE despite the important role it plays in data analysis of the workforce. We would welcome public clarification from the Minister about its intended relationship with HEE.

11. The Health Research Authority (clause 107)

11.1. The College welcomes the establishment of the Health Research Authority (HRA) and supports the move to place it on a statutory footing. We believe it will help to streamline research bureaucracy and we support its purpose of protecting and promoting the interests of participants, potential participants and the general public in health and social care research.

11.2. Reducing research bureaucracy is important for helping to foster a culture that encourages medical professionals to take part in research, and we would welcome clarification from the Minister about how the Government is working to achieve this.

11.3. The College’s views on how to improve medical innovation in the NHS can be found online here.

January 2014

Prepared 17th January 2014