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I recognise that the chairs of the Healthcare Commission and CSCI have reservations about the timing. I have great regard for Sir Ian Kennedy and
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I note with a great deal of interest the special pleading of the BMA in its briefing on this Bill, but doctors are completely out of line with their own special dispensation of a criminal standard of proof on the facts before a GMC fitness to practice panel. As the GMC now recognises, those panels are not criminal courts; they are there to protect patients when there is evidence that a doctor’s health, conduct or performance calls patients’ safety into question. The GMC, under the skilful leadership of Sir Graeme Catto, has handled well the negotiations and discussions within the profession in this area. I hope that we will support the Government’s approach to this and not spend too long discussing these issues in Committee.
I will spend the rest of my time on some of my concerns with Part 1. Let me be frank; it is disappointing that we have reached this stage of the Bill with so much uncertainty around the scope and regulatory requirements under Part 1. I am pleased that we have at least now the Government’s consultation document on the framework for the registration of health and social care providers. I have not had time today to study in detail this 100-page, complex document, but from a quick flip through it I am still left in doubt about the definitions affecting scope in Clauses 4 and 5. I welcome the fact that in this new document the Government are moving towards including GPs and primary care in the new regulatory framework. Yet the issue should not still be in doubt. Some 85 per cent of the public’s contact with the NHS is through GPs and primary care. If we are to have a risk-based regulatory system, as the Government rightly want, there can be no doubt about the inclusion of this sector in the regulatory framework.
Where do we stand on some other areas, particularly preventive health activities and commissioning of services? The new consultation document seems to be all about providers of care and not about commissioners. The latter can do more damage to a population’s health through their lack of competence than any provider can. In the diagrams in the original 2006 consultation document, and in the Secretary of State’s response in November 2007, the integrated regulator still had a significant role in respect of commissioners. It was certainly always my view as a Minister that the regulator should be able to intervene when a PCT commissioner was consistently failing the local population and the SHA’s response was inadequate. It would be helpful to know where health Ministers stand on this issue now.
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I do not have time to go over in great detail some of the issues around regulatory requirements and their relationship to standards, but it is an area we need to explore carefully in Committee. I am particularly concerned that we do not rush to abandon the standards for better health which came out of the 2003 Act. I am pleased to see the noble Earl, Lord Howe, in his place because he and I laboured long in the vineyards on that Act and he will be participating in this Bill.
I need to mention briefly three other areas. First, on the status of the chairman of the new commission, advertising the post at a salary of less than half that paid to the current chairmen of CSCI and the Healthcare Commission gives, if I may put it in the most understated way, the wrong signals. I commend to my noble friend and his ministerial colleagues a quick look at the salaries paid in the Financial Services Authority, Ofcom and Monitor, to name but a few.
Secondly, a significant failure of performance over time often involves both the use of resources and quality standards. It is important that the new regulator should have the authority, comparable to that of Monitor in relation to foundation trusts, to intervene when there are continuing problems over both finance and quality of care issues. There is a strong relationship between trusts that get into financial difficulties and the quality of care. They often take incompetent decisions on quality of care as a result of financial difficulties.
Lastly, there is the important issue of the position of patients, service users and carers in the role and work of the new commission. Given the volume of briefing that we have all had on this, we will need to spend some time on it in Committee. There are a number of issues. One is whether there should be something on the face of the Bill; another is how to define the duty of the commission; and a third relates to the membership of the commission and some of its committees. These are complex issues but we need to give a stronger signal in the legislation about the duties of the regulator to patients, service users and carers, who do not get much of a look-in in this legislation. I commend the Bill to the House, but I believe that we will need to spend some time on Part 1 in Committee.
5.17 pm
Baroness Bottomley of Nettlestone: My Lords, I am always happy to follow the noble Lord. Many of the points he made I wished to address in some ways.
Before starting, let me declare my interests as president of the Abbeyfield Society, a charity with several hundred homes across the country providing care and special care for elderly people; as a non-executive director of BUPA; and as a consultant in an executive search firm involved in many of these areas—although, unfortunately, not in the search to find the chair of the Care Quality Commission. If we had been involved, the advertisement would have been much more punchy and would achieve the result we all want. About that I dare say no more.
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The Minister in his opening comments said that he wanted quality to be the connecting thread that runs through all we do. That is fine. But how we get there is a different matter and the Bill is all about the devil being in the detail. The rhetoric is fine; the reality is extraordinarily complicated. A number of noble Lords—to many of whose views I will give great weight—will today offer important contributions, but I am particularly disappointed by the absence of the noble Lord, Lord Currie. He was responsible for the integration of the five regulators covering telecommunications, broadcasting, radio and the spectrum industries, as well as taking on new powers, in an extraordinarily effective way.
The Minister is not surprised that there is a cynicism within the sector and that change fatigue is widespread as there have been so many reorganisations of the health service since 1997 at considerable cost, perhaps £3 billion. Two of the bodies to be merged, the Healthcare Commission and CSCI were created only in 2004. CSCI was announced just 17 days after one of its predecessor bodies—the National Care Standards Commission—began work. This helps the Minister to understand why he has an audience which is slightly jaundiced about these matters.
The National Audit Office produced an excellent report recently which examined the creation of Ofcom and identified the lessons for public sector mergers of regulatory agencies. I commend the checklist of recommendations to the Minister. I hope that he will say that he has addressed all of them. They include basing the decision to merge on a balanced judgment of whether the projected benefits justify the costs of carrying out the merger; clearly identifying and accounting for the costs and setting a separate budget; carrying out targeted due diligence as early as possible; establishing relevant measurable benefits to be achieved, and measuring and monitoring progress against these objectives; ensuring regular communication with staff and stakeholders, reinforcing the merger rationale and providing regular updates; avoiding a decision-making vacuum by clearly defining those accountable for each phase; and appointing senior managers early, especially the board, chief executive, and finance and HR directors. I commend those lessons since it is evident that the result at Ofcom has been remarkably successful.
I agree with the noble Lord, Lord Warner, about the appalling lack of detail about scope and regulatory matters. The rhetoric, again, is fine, but the sectors of social care, healthcare and mental health activities are extraordinarily different. I applaud the right reverend Prelate’s saying that the proposal will bring health and social care closer together, but will it? How do we know? Different sectors are being pushed together, but the detail of how that will work in practice leaves many of us needing to be convinced.
The impressive Dame Denise Platt, chair of CSCI, commented that the Bill,
- “lacks a clear set of objectives to work towards and hence the new body risks a loss of direction and a loss of focus on the views and experiences of the people who use services, their families and carers in particular”.
Again, I say that the voice of carers is so important.
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I echo the points made about how GPs’ primary care organisations are to be included. They represent 35,000 separate organisations. I again draw attention to the scale of what the Government are seeking to do; that is, to move from small, singleton practices to massive medical institutions such as Barts and the Royal London—Imperial being the alma mater of the Minister. We also need much clearer boundaries of regulation.
I endorse a point made by the Healthcare Commission about proportionality. If too many low-risk activities are brought within the regulator’s scope without a sufficient increase in resources, there will be a limited capacity to focus on the key risks and promote improvement. What consideration has the Minister given to providing other sources of assurance for lower-risk services?
At the same time, is the Minister satisfied that the new framework will be sufficiently flexible to accommodate and respond to the rapid ongoing transformational change in service provision and patient pathways? It is well understood that, perversely, regulation can have a fossilising effect. It is enormously important that the new structures do not inhibit change and innovation.
Is the Minister satisfied that the Bill reflects the fundamental shifts that are under way in the boundaries, organisation and delivery models in care services? We seem to be witnessing a move to 100 per cent foundation status for public sector hospitals and mental health trusts. There is likely to be more vertical integration between foundation trusts and primary care. New models and entrants are being developed in community and home-delivered care. Taken together, they will redefine the scope, shape, integration and aggregation of services, making it even more difficult to achieve a consistently level playing field for regulation.
One or two other concerns were raised by my colleagues. The independence of the regulator is critical, as the noble Lord, Lord Patel, pointed out. For the same department both to fund and regulate the service is not ideal. Therefore, it is all the more important for there to be proper safeguards for the regulator’s independence; otherwise, where resources are constrained, difficulties can arise, as well as a perception of a conflict of interest, even if hotly denied in practice.
The Minister needs to give more detail on penalties. Do we always expect deregistration to result in closure? I doubt it. In some of the big institutions, that would involve patients travelling long distances. The sums of money—one penalty is identified at £50,000—seem to have very little comparison, for example, with those measured by the Health and Safety Commission.
The noble Lord made a point about the importance of commissioning. Surely that is critical. Will the CQC have powers to make specific recommendations to the primary care trust, the local authority, the local health authority and the Government? What will its powers be in relation to commissioning?
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I echo the points made about the importance of patients and users having a voice. The National Consumer Council rightly said that we do not expect the CQC to become a consumer advocate. But it needs to consider and involve the public in reaching decisions that affect us all. Healthcare is increasingly a partnership between the professionals and the public. Critically, in a mixed economy, the Minister's briefing states that,
- “the public rightly expects the health and social care services they pay for through their taxes or privately to be safe and of the highest quality”.
That again is so much easier said than done. Is the Minister content that the protection will be the same whether the care is privately or taxpayer funded? There is a real concern about the watering down of the regulator’s role to make information available.
In conclusion, I would like the Minister to look again at the protection of the special expertise of the Mental Health Act Commission. The work that it does is entirely different from the work of the social care and the health regulators. It is critical that a sector that experiences 400 deaths a year, a quarter of which are said to be unlawful, does not lose and find itself ignored in this process of change.
I welcome the Bill. It needs a great deal of attention. I hope that Sir Kenneth Calman, who has recently been appointed to chair the commission for the review of the Scotland Act, and who worked so closely with my noble friend Lady Cumberlege and me, is pleased that at long last the Public Health Act 1984 is to be updated and modernised.
5.27 pm
Baroness Emerton: My Lords, I, too, congratulate the Minister on introducing the Bill, and I thank the many organisations for their excellent briefings.
The Health and Social Care Bill seeks to improve the regulation of health and social care by building on the experience of the current regulatory systems in practice. At the same time, the Minister is conducting a review of the NHS. Disraeli once said that change is constant in a developing country. That is never more so than in the NHS. However, there is another constant; there are always patients and users requiring a quality care of some sort, but necessarily in the traditional patterns of care.
The Bill sets out a framework, but, having read briefings from various organisations and from my own observations and experience in the NHS, I suggest that it requires considerable strengthening to ensure that high-quality care is delivered within a rapidly changing health and social care sector that is designed to meet the needs of individuals, including involving people in planning and managing their own care, and ensuring that there is a seamless service crossing the pathways of various organisations. As noble Lords have already said, the Bill requires very detailed scrutiny to support such an agenda. The briefing papers of several organisations refer to the need for a clear statement of the regulatory objectives.
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Clause 2(3) sets out the need to involve patients and services so that their views are central to an assessment of healthcare needs. But the regulator needs to have an explicit statement of appropriate mechanisms and channels through which the commissioners can communicate with the public and service users. While appreciating that the Government do not wish to be too prescriptive, there is a need to communicate the commissioners’ independence and means of engagement.
In Clause 2(5), I question the description of the function of the commission. Just to “encourage” the improvement of activities is a rather weak description of its purpose. I hope that the Government will consider strengthening the function to “promoting” improvement, especially with regard to safety and quality of care. I, like the Minister, have a passion for improving patient care.
Clause 16 allows for the scope of registration to be set by regulation. That is a fundamental step so that public expectations on the appropriate scope of the regulations are clear. They need to be clear, for example, on the risks to patients and service users. The Department of Health’s set of core standards are not optional. Parliament needs to be reassured that this section of the Bill will provide a level of assurance to patients, at least as high as the minimum core standards. These minimum core standards need to be of a high quality, emphasising the requirement for safe and effective care. Again, it is important that there is a “care line” of management of the service as well as a “service line”. Those two lines—“care line” and “service line”—are needed for the rigorous monitoring of effective care.
Past experience of the Healthcare Commission has shown that a deficit of sound systems in place and deficient checks and balances often leads to the eye being taken off the ball, and disaster follows. Like the right reverend Prelate the Bishop of Ripon and Leeds, I believe that removing the functions of receiving and dealing with complaints from the regulator to improve the local handling complaints is a retrograde step. Experience over many years demonstrates to me that despite every endeavour to deal satisfactorily with complaints, there will be occasions where a complainant is genuinely not satisfied. The suggested referral to the ombudsman is the only route of appeal in the Bill.
The commissioners will be well placed to adjudicate on whether there is substance in the complaint—usually pointing to a level below that of minimum core standards—to explore quickly and to avoid a spread of poor practice. I hope that the Minister will reconsider removing the right of the commissioner to investigate complaints that involve a level below the minimum core standards.
Under Clause 42, the regulator of healthcare needs to be able to take a joined-up view of performance covering commissioning, provision, quality and value of health care. How the pathway of care operates across organisations, GPs, hospitals and social care is concerning to patients. Under Clause 42, as well as suggesting periodic reviews, the commissioner is able to investigate specific incidents that put the health
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The standards set by the Secretary of State in Clause 41 have no regulatory back-up. Implementation is dependant on commissioning as a lever. The standards should be linked to the periodic reviews undertaken by the regulator. So that the performance of healthcare organisations against those standards is clear to the public and patients, this should be linked with the regulators duty to promote improvement.
Clauses 44 and 46 need to be strengthened to deal with the identified failure in the system, not just by the provider. When problems arise, experience has shown that the issues are usually complex and that all parts of the health economy—including the strategic health authorities, Monitor, PCTs as well as providers—need to take action. The regulator needs powers to act in such circumstances. The performance manager is responsible for rectifying the issues and not the regulator. The regulator needs powers to make recommendations to all bodies. The regulator needs to be able to move quickly to protect patients and clients where there are significant concerns.
Clause 107, on the standard of proof in the fitness to practice, amends the Health Act 1999 by imposing a civil standard of proof for all regulatory bodies and the Office of the Health Professions Adjudicator. The Royal College of Nursing and UNISON are suggesting that where the facts of the alleged misconduct point to a criminal case, a criminal standard should be applied. My experience as a chairman of the UKCC Professional Conduct Committee and as a lay member of the GMC means that I am inclined to agree with that, although I am open to suggestion. So many Peers have already said that the civil standard should go forward that I am willing to be persuaded.
I look forward to taking part in the passage of the Bill. I am sure that this is going to be a long and interesting debate. I apologise to Members of the House for leaving before the conclusion of the debate. The Minister is aware of my early departure—I am going to be experiencing, I hope, a high quality of care.
5.35 pm
Lord Leitch: My Lords, I begin by declaring my interests as set out in the Register of Lords’ Interests, in particular my role as chairman of BUPA, which provides independent health and social care to 8 million people worldwide. I also passionately believe in and support the National Health Service. Both elements—publicly owned and independent—are, and always will be, indispensable parts of a single national system for taking care of all the citizens in our country.
When we debate healthcare in the UK, all too often the focus is on the NHS alone. Yet the independent sector is more important than ever, providing services directly to patients, residents, insurers, and to the NHS itself. Going forward, all of us must think in terms of partnership, not rivalry.
Sir Thomas Beecham once remarked at dinner, “This pudding has no theme”, but I believe that this Bill has a very clear theme. To my mind, the theme
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