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Though I may, in due course, raise slight doubts about some of the detail, I offer the principles underpinning the Bill my wholehearted support. In future, all healthcare and social care service providers will be covered by a single body using consistent methods as that encourages, in the words of the Bill,
The word “improvement” is critically important. The new Care Quality Commission must build on established best practice within its predecessor bodies, while also remaining flexible and ready to devise new approaches in response to the new challenges as they inexorably emerge. That will enable it to develop its critically important core responsibility; namely, guaranteeing minimum standards of acceptable care for everyone. The people of this country—all the people of this country—deserve nothing less.
I am mindful that CSCI in particular has expressed reservations, not so much about the principle of amalgamation but more about its timing. I support the proposed schedule for the merger, while also recognising that there is attendant risk if the merger process does not run smoothly. We must be alert to that risk. From bitter personal experience in many mergers over time, I know that they always take longer than you expected, they are always more complicated than you expected, and the surprises that they spring are always unwelcome. A merger as important as this one must go smoothly and to plan. That will necessitate everyone going into the process with both their eyes and their minds open. Exemplary management will be essential for success and the immediate priority must be to ensure continuity of effective but judicious regulation.
In the medium term, we must also ensure that social care is not treated as the Cinderella of this story. Social care providers are under considerable financial pressure, having received a substantially lower average increase from local authorities than the NHS has received in the coming year. The state inevitably creates considerable strains when it places additional requirements on providers without commensurate increases in income. We all know that demand for care will go on rising relentlessly. We must acknowledge, however, that the NHS and social care are now entering a period in which the annual growth in their budgets will roughly halve compared with the extraordinary surges of recent years. In 2006, a BUPA report forecast that scenario and explored how pressures on funding were likely to build up further in future. Given the likely constraints on public expenditure, the report predicted a 10 per cent funding shortfall by 2015. Those fundamental numbers have not changed. Good regulation is therefore essential, but health and social care in this country cannot and will not improve sufficiently through better regulation alone. Financial carrots and regulatory sticks work best not independently of one another, but in tandem.
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Nor will our care sectors achieve the high ambitions we set for them if the new Care Quality Commission takes too narrow a view of its remit. For instance, the commission must give due priority to looking at how more effective prevention of ill health can be achieved. Prevention is better than cure, and cheaper for the nation. One of the best opportunities to influence people's well-being comes while they are at work. The Government's initiative on health at work, headed by Dame Carol Black, has been very timely and her positive conclusions must not be allowed to gather dust. Preventing workplace accidents is of course important, but on its own that is a slightly old tune. The key now is also to engage employers fully in a positive and active campaign to promote better health in and through the workplace.
When at its best, care in this country is already as good as you will find anywhere. That excellence at the cutting edge must be maintained and developed, but we must also endeavour to reduce the inequalities in the standard of care. That is why the new commission is so important. It will ensure that all care comes up to an acceptable minimum standard, through rigorous inspections, especially of the weakest performers. It will apply common minimum standards across different operators, sectors and regions. Those minimum standards should be just that—no more, no less—but providers should routinely seek to exceed them as the general standard of care improves over time.
To conjure with that great Liverpool manager Bill Shankly's famous quip, I say that health and social care policies are not just matters of life and death—they are even more important than that. They enshrine our nation's social contract with the sick, vulnerable and infirm. They create a healthier nation, and a healthier nation is not only a happier nation but a more competitive and productive nation. The Bill represents a crucial step on a long, arduous and endlessly challenging journey. Of course that journey never ends, but our aspiration must be for the United Kingdom to have nothing less than the best health and social care anywhere in the developed world. We must aim to deliver that. The Bill marks a significant milestone on that critical journey for our country. On that basis, it is my sincere hope that it will enjoy the broad support it deserves from all parts of the House.
5.43 pm
Baroness Campbell of Surbiton: My Lords, I am pleased to contribute to today's debate on such an important Bill. Not only have I worked in social care policy and, in a more limited capacity, health service policy, but I declare an interest as a constant user of health and social care services.
For too long, health and social care services have been provided in fragmented systems that put process before people. Disabled and older people, who are the main users of these services, often suffer the consequences of divided provision. A single regulatory body for health and care services could be a welcome step in ensuring closer co-operation. When I am going to bed, I need both my ventilator and a personal assistant. The ventilator is healthcare, and the person is social care. Both are equally essential to my life.
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However, as former chair of the Social Care Institute for Excellence and a founder of the National Centre for Independent Living, I share a little concern that social care may become the junior partner in the new inspectorate. Healthcare has always enjoyed a substantially higher political profile, significantly greater funding and strong public understanding and support. In contrast, frankly, social care has had to work its socks off to gain a fraction of health's economic and political power and public attention. That has always baffled me. Like millions of others, I could not function without social care in exactly the same way as I could not function without healthcare. However, the Bill has inherited the imbalance between the status of health and social care. We will have to think carefully in Committee to combat that and make it work effectively and equally.
Today, I will confine my remarks to two areas of concern. First, I question whether the Bill does enough to secure and build on the achievements of the Commission for Social Care Inspection. As it stands, the proposed Care Quality Commission is slightly more concerned with health services, as I said before. I am particularly anxious that the potential imbalance will result in a medical response to society's social care needs; we in the trade call it the medical model. Medicine is generally about curing or easing one's condition, which is important. Social care is much more about removing barriers and providing external support. In social care, there is a long history—much longer than in healthcare—of empowering and involving service users to find solutions to their own problems. When I look at the Bill, I am struck by the lack of a strong duty to involve people who use health and social care services.
The Bill requires the Care Quality Commission to “have regard” to the views of the public. It also allows for advisory panels to be established. In my long experience in the field, that is simply not enough. One need only look at the work of the Commission for Social Care Inspection’s “experts by experience” to see the benefits gained from maximising user involvement. There, CSCI involves service users directly in quality assurance and inspection processes. The Care Quality Commission needs to build on that but go much further. We should expect something more robust in the Bill to ensure that service users are not only partners but coproducers in the work of the Care Quality Commission.
Thankfully, we live in an age when patients and service users are no longer passive recipients of professional care services. With the advent of direct payments, and now the personalisation agenda, thousands of people who benefit from social care support have taken control and responsibility for the care they receive. Thousands—nay, millions—more will do so over the coming years. The Expert Patients Programme is also empowering people to manage their conditions. It is, therefore, essential that a modern integrated commission adopts the principle and practice of user involvement in significant and clear ways. The Bill must surely be the place for the principle to be stated.
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That brings me to the second and last principle that I would like the Bill to underpin. It is the need for a clear and unequivocal commitment to embedding human rights principles throughout the CQC. The Joint Select Committee on Human Rights recently reported on the Health and Social Care Bill. In relation to the new commission it said:
“We recommended that the proposed merged inspectorate for health, social care and mental health should adopt a human rights framework to underpin and inform the new inspectorate's work and make it more effective in fulfilling its statutory duties”.
I wholeheartedly endorse that and will be looking for it.
During the passage of this Bill in your Lordships’ House I hope that human rights are given adequate attention. I refer, for example, to the urgent need to ensure that residential care homes inspected by the new Care Quality Commission will be subject to the Human Rights Act. As a commissioner at the Equality and Human Rights Commission, I believe that health and social care services must actively uphold the Human Rights Act and the dignity of people using services. To date the Human Rights Act has been undermined in social care. For example, public funds are used to support people in care homes which have no obligation to uphold their residents’ human rights. There are moves afoot to cover residents who are not self-funders but not those who self-fund. Surely this is unacceptable. How can the Care Quality Commission inspect and regulate a care home where of two residents sitting side by side one is found to be protected by human rights law and the other not? There is broader evidence of human rights failures in health and care services. I need not detail the cases of abuse and neglect exposed by the Healthcare Commission and the CSCI at an NHS Trust in Cornwall in 2006 and the Sutton and Merton PCT last year. These cases are relevant to this Bill. The existing pattern of failure will continue if equality and human rights do not underpin the work of this new inspectorate.
5.51 pm
Lord Carlile of Berriew: My Lords, I start by congratulating the Minister on his introduction of this very important, complex Bill with such economy of words and such clarity. I intend to speak only to Part 2 in relation to regulation. From these Benches, subject to some tuning of Part 2, we propose to give it our general support.
My father’s grave has two non-biographical words on it—family doctor. Those words seemed to us to combine a description of the work he did with the respect in which he was rightly held by the community in which he worked. But of course he flourished at a time when, incredibly, there were more doctors than administrators in the health service in the county borough in which he worked—an idea so fanciful now as to seem completely ridiculous. His general expression of surprise that I was capable of anything useful turned to a look of pained consternation when I told him a few months before his death that I had been appointed as a lay member of the General Medical Council.
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I remained on the General Medical Council as a lay member for 10 years. I shared that experience with my noble friend Lady Neuberger, who was there at the same time as me, as well as the noble Baroness, Lady Emerton—although we were not there at the same time—and the noble Lord, Lord Christopher, with whom I served. I think we all found it an interesting and educational experience. I observed from that experience that professional self-regulation was actually not a soft option for the doctors who appeared before the General Medical Council’s disciplinary committees. I often had to restrain the doctors on the committee from passing the most vicious sanctions on doctors who, it seemed to me, had simply made mistakes. That brings me to mistakes. I do not think anybody should assume that mistakes are over. The old system made mistakes and I am afraid the new system will make mistakes. Mistakes, and openly discussing the effect of those mistakes, are part of the dynamics, I fear, of the open government to which we aspire.
However, there always was a problem with the old General Medical Council, which had such distinguished chairmen as the noble Lord, Lord Walton, and others who sit in this House. The major problem was its size and its ridiculous diversity but the problem from the professional self-regulation viewpoint was its credibility to members of the public. Those of us who have regarded professional self-regulation as actually quite a good system, if properly administered, have had to recognise that its time came and its time has now gone. As Lady Justice Smith in her wonderful report on Dr Shipman recognised, an independent body is now needed, and I congratulate the General Medical Council, and particularly its president, Sir Graeme Catto, on approaching these changes so realistically, objectively and constructively.
The Office of the Health Professions Adjudicator is an appropriate response to meeting aspirations and the need for public confidence. However, I invite the Minister to reflect that the new body should retain some of the strengths of the old General Medical Council—for example, the strength of having real expert doctors serving on it and not merely as expert witnesses. To those of us who have sat as jurors judging the facts of cases, the presence of people who really understood clinical treatment was invaluable. Furthermore, the privy council system that appoints lay members should not simply go for a cross-section of the lay community. It is right that they should be lay members but it is important that they should have a range of experience which will contribute to a reasonably expert debate on the issues being faced by the committees when they are judging the behaviour of doctors.
As to the standard of proof, I disagree strongly with the British Medical Association. The civil standard of proof now applies across the professional regulation world. It is more flexible than it sounds. The more serious the allegation, the higher the civil standard of proof required. It provides the judicial flexibility which enables tribunals to consider cases in proportion to the seriousness of the issues presented.
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The Bill provides for legally qualified chairs. I do not object to the use of legally qualified chairs for some tribunals for some cases. As a lawyer I would not be expected to and I do not. However, in some cases of real medical complexity, the use of a medically qualified chair with an appropriately qualified legal assessor may provide a better dynamic for the fair decision of the case than simply having a legally qualified chair. It sounds superficially attractive but it certainly is not a cure-all for all cases. I am sure that there will be some cases in which it would be appropriate to have a legally qualified chair—for example, a case involving very complex issues of law. In those cases, however, it is important that the legal assessor and the legally qualified chair should not come into conflict. I suggest that in those cases where there is a legally qualified chair, there is no need to have a legal assessor as well, and there is a consequent saving of money in that approach.
My final point about the new structure for professional regulation relates to case management. Building the structures is only part of the picture. Those of us who are experienced, for example, in fraud cases in the criminal courts and those who are involved in terrorism cases in the criminal courts and the more complex cases know that case management is as important as the structure. Whatever rules are promulgated, they should ensure that the chair, if necessary with appropriate legal advice, should be able to avoid the overformalisation of hearings. There should be power within the tribunal itself to request and even demand evidence which will help to resolve the issues, thus not merely relying on types of evidence which the adversaries choose to present. Preliminary proceedings should seek to resolve simple cases by the simplest of procedures and preparatory hearings should be aimed at shortening proceedings, not lengthening them.
In the end, this requires resources. For cases of professional discipline to be resolved fairly, there has to be a well-resourced prosecution, as it were. The presentation of the case should be on a basis that serves the consumer and is fair to, for example, a doctor if he is in the “dock”. There also have to be resources for the tribunal to be able to pay for the time of those involved in the adjudication without placing them under undue pressure. Those who remember it will recall vividly the pressure placed on the system by the Bristol case. It was intolerable for everyone involved. The lesson from that must not be forgotten.
6 pm
Baroness Pitkeathley: My Lords, I thank my noble friend for setting out so clearly the aims of this Bill and I hope to be able broadly to support its passage through your Lordships’ House, provided we use the time here to address some of the significant concerns I have about it. I want to say at the outset that, along with others, I believe that we are considering this Bill at the wrong time. I share the views of CSCI that we are creating a single regulator prematurely. However desirable it is in the long term to have a single regulator, it would have been better not to create the unavoidable turbulence created by such proposals at
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In addition, the Bill was somewhat rushed through the other place with insufficient time for proper debate. Certain other actions—notably the inadequate and ill-considered advertisement for CQC officials—leads one to think that there is a hurried and ill-thought-out air about the Bill. However, we are where we are and I am a pragmatist, so I am confident that the Bill will emerge from this House more fit for purpose than I consider it to be at present. In that regard, I am delighted that it is to be committed to a Grand Committee, which allows for productive and helpful exchanges, and I am delighted that Ministers have expressed willingness to accept changes for improvement.
I accept that the current framework for regulating adult health and social care is fragmented and that it may be unsuitable for the pace of change that we are seeing in these services. We are seeing more and more care provided across boundaries of health and social care. I welcome the fact that social care is finally emerging from the shadows and being seen as less of a poor relation of, and more an equal partner with, healthcare. The Government have taken a lead on this, promoting debate and confronting the policy challenges of providing social care to an ageing population in which living with major disability is more common.
In matters such as human rights, tightening eligibility criteria, the position of carers in our society and independence for people who use these services, the Government have shown a real willingness to listen. But they must now ensure that these lessons are carried forward where the regulation of social care services is concerned. We can do this in two ways—by championing and driving improvement in social care and by ensuring that the voices of users and carers are as strong as possible.
The CQC, when established, must drive the improvement of social care. It should have a clear mission statement enshrined in legislation, which makes clear its independence from government. This mission statement would set out clear regulatory objectives and a clear duty on the new body to drive improvement in the health and social care sectors. The Healthcare Commission and CSCI currently have such a duty; under the Bill, the CQC would not have such a remit, but instead would focus on the narrower objectives of registration and inspection. It is all very well to have a lighter regulatory touch, but we do not want to throw babies out with the bathwater.
In producing its reports such as The State of Social Care in England, CSCI has provided real direction to the sector and has highlighted areas where implementation of policy has not been successful, as well as providing concrete evidence about the performance of services.
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The Care Quality Commission should not be a passive observer of the way that services are delivered but should have a proactive role in supporting the reform of social care and demonstrating excellence. This work should include the publication of independent reviews, which the CQC should be able to issue as soon as it is established without the permission of the Secretary of State. It is essential that the CQC is given sufficient power and resources to maintain a focus on social care that is not dominated by health—building on the valuable expertise developed by the CSCI. This could be achieved by creating specific posts with responsibility for social care on the board and in the senior management team of the CQC. Although Ministers have stated on several occasions that social care should have parity in the new commission, none of the amendments that would help to achieve that were accepted in the Commons stages of the Bill.
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