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It is crucial that the Office of the Health Professions Adjudicator commands the confidence of the profession by ensuring that proceedings are procedurally fair. To this end I agree with the noble Lord, Lord Walton, and support proposals made in another place for there to be a legally qualified chair of fitness to practise panels which, in my view, would be sufficiently experienced to ensure effective case management and that standards of procedural fairness are met in hearings which are particularly complex. The importance of a legally qualified chair is even greater as panels will have to grapple with the application of the sliding civil standard of proof.
In conclusion, I am pleased to see provision in the Bill for the appointment of legal assessors to advise fitness to practise panels on points of law. Legal assessors bring essential legal expertise, guidance and an element of independence to the proceedings. I hope
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Many of the reforms set out should be welcomed, but it is already obvious that there will be some late evenings during the subsequent stages of the Bill.
6.33 pm
Baroness Finlay of Llandaff: My Lords, as the train manager apologised for the inconvenience caused by a faulty goods train ahead of us, my heart sank and the inevitable happened. I apologise to the Minister for missing his opening sentences today, despite running as fast as I could through the Underground. I appreciate the House allowing me to speak.
I declare my interest as a person registered with the GMC and a practising clinician. This Bill is very important. It brings together three organisations which have effectively been doing a good job in recent years and have been seen to be driving up standards. However, I have a concern that the merging may have happened with undue haste. The new regulator’s £150 million budget will save possibly 25 to 30 per cent of the current cost of regulation. However, I feel that we risk losing the memory of those individual organisations—an organisation with a memory is often the key to the detection of problems. Piecing together the little bits of the jigsaw puzzle often reveals an imminent problem, which is preferable to waiting for one to explode across the headlines.
It is partly for that reason that, like others who have spoken this afternoon, I feel it is important to have the principles in the Bill—a mission statement that includes principles that do not bind the commission to do, or not to do, one or other action. Rather, it should underpin the whole philosophy: equality; non-discrimination; the dissemination of good practice to drive up standards; and supporting research into different patterns of patient care to improve that and to cover the patients in whichever sector, be it healthcare or social or mental health. Patients move between providers and are often—as my noble friend Lady Campbell said so eloquently—simultaneously supported by more than one provider. Are we really sure that this legislation is proofed to look at the whole patient pathway?
I turn to one of the most important sources of information; that is, the patients and users. I am not sure whether simply consulting them is enough, and I am certainly not at all convinced that carers are being adequately consulted here. Another group of carers that often finds it extremely difficult to express its opinion is that of underage carers. There are many underage carers in the country and I do not see them using any of the mechanisms laid out here at all.
As the noble Baroness, Lady Pitkeathley, said, unpaid carers provide care that would be costed at about £87 billion, or the whole NHS budget for England. Carers have knowledge of the quality. They are the eyes and ears of the service—they observe the service on a day-to-day basis and are often the advocate, negotiator and funder for the person for whom that care is being provided.
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I am concerned that the Care Quality Commission may not be as independent as it ought to be. It should be able to publish completely independent reviews without the Secretary of State’s permission. It needs to be independent from Government to expose outcomes of poor funding, mistaken policy or inappropriate commissioning—after all, we spend £85 billion on commissioning. An encouraging improvement is probably not enough; I would prefer to see a duty to ensure that standards are taken up. Of course, as noble Lords have said, there must be minimum standards in place. However, that is not enough—it will not drive up quality of care.
Quality in social care is measured by the patient experience, often without the hard outcomes that can be measured in healthcare. Philosophically, the process of inspection and driving up standards needs to be subtly different in approach. My noble friend Lady Campbell has brought her enormous experience to this area and I am sure she will bring it into further debates on the Bill. Like others, I question how those in self-funded care are protected. Are we setting up a two-tier social care system with unequal human rights, depending on where people’s funding comes from when they are in receipt of care?
Another concern I have is the delay in the implementation of new processes that could leave a gap in which poor practice could grow unnoticed and where work to introduce improvements could go on the back burner for financial, or other, reasons. In this hiatus year before full implementation, can the Minister say how adverse incidents will be detected and investigated?
My noble friend Lord Walton dealt in great depth with the change in regulation of healthcare professions and I agree with almost everything that he said. However, we must not lose the feedback that comes from learning through the investigation process and the ability to set standards, so that when adjudication occurs all that has been gained during the investigation is not forgotten.
There are great complexities in different areas of clinical practice; medicine is not a universal field. I would certainly agree that technical knowledge needs to be represented on a panel. With a majority of lay members, there is a danger that the experience may be too limited. We have seen that happen with local research ethics committees, where lay members end up focusing on consent forms because they do not have the expertise to understand the science of the projects put before them. It is never more important to have that in-depth understanding than when a doctor’s long-term livelihood is on the line. In addition, perhaps the chair of the adjudication panel should just be appropriately trained rather than assuming that a legal qualification equates to appropriate training.
The responsible officer system will probably work reasonably well in secondary care, but there are huge challenges in primary care and even more so for those working wholly in the private sector. The medical profession has grave concerns about the civil burden of proof. In part, I believe that is the fault of the GMC and the BMA, in that the situation has not
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The last area I want to address is primary care itself. The regulation of primary care is difficult and the Bill seems to have avoided it, although the consultation document published today implies that primary care will be brought within the scope of the Bill. The Royal College of General Practitioners has done a lot of work on setting standards for general practice, but not all GPs are members of the college and the college has no levers on them.
It is important that complaints, adverse incidents and near misses are collected and examined, as they are in secondary care. Otherwise there is a real danger that patients in the community could effectively be disempowered if there is poor governance of primary care services and no formalised mechanism for feedback, not only from patients but also from carers. The Picker Institute has suggested mechanisms such as the Service User Panel. I commend that concept to the House because we need feedback. Indeed, the devil is in the detail and we need to examine that detail.
6.42 pm
Baroness Wilkins: My Lords, I start with a health warning. I have swollen tonsils, which refuse to disappear, and I hope that I shall not fade out.
This Bill is being debated against a background of increasing hardship for many thousands of disabled and older people who are being refused essential health and social care support for independent living. Three-quarters of local authorities in England are restricting their services only to people with critical or substantial needs according to CSCI’s State of Social Care in England report. Meanwhile many of those still eligible for state funding have little choice and control over their lives because we have a system still rooted in notions of welfare and dependency.
This Bill gives us the opportunity to create a regulatory system and a legislative framework that is concerned not merely with the quality of care that people receive but also with enabling all those who need state support to live with dignity, to enjoy real autonomy and control over their lives and to contribute to their communities. After all, that is the vision that underpins the Government's recently published Independent Living Strategy and the adult social care concordat. The challenge now is to embed that vision in health and social care law and to support the major culture change that we seek in the delivery of public support services.
The remit of the Care Quality Commission needs to reflect and support that government commitment to independent living. However, the current duty set out in Clause 2 to have regard to,
is too weak to enable the CQC to play the role it could and should play in empowering those who use health and social care services to be full and equal citizens,
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Moreover, as other noble Lords have said, we should ensure that the CQC is given a strong duty to involve patients, service users and the public, in place of the rather weak duty to have regard to the views of the public. Involvement is the new standard. It is about those who use services participating in policy making as equal partners. Evaluation of involvement programmes—for example, CSCI's Experts by Experience programme which involves service users in inspections—demonstrates that involvement adds value and leads to improved services. Will the Minister ensure that CQC maintains and builds on the involvement of service users in future social care inspections?
A fundamental principle of the disability equality duty is that public authorities involve disabled people in setting priorities for action and assessing the impact of policies. Most recently, the Local Government and Public Involvement in Health Act 2007 heralded new measures, including the establishment of local involvement networks and a duty to involve local people in joint strategic needs assessments to ensure that users of health and social care have a much stronger voice in the running of local services. The CQC needs to play a major role in supporting those changes and monitoring their effectiveness.
With regard to the new regulatory framework, I hope that the Government will accept the need to ensure that it also reflects current aspirations for promoting equality and human rights. This is the approach adopted in my noble friend Lord Ashley's Disabled Persons (Independent Living) Bill which makes all private and voluntary care homes and agencies subject to the Human Rights Act, with duties on providers to inform service users of their human rights.
In the 21st century our expectation must be not simply that we will be cared for and spared indignity should we need support, but that we will all, whether living in the community or in a residential care setting, be able to continue to enjoy time with our families, to make friends and to access leisure and educational opportunities—in other words, to have a life. I hope the Government will want to make progress on this and adopt the amendments suggested by the Joint Committee on Human Rights. In particular, I welcome the Minister’s assurance that the Government are working to resolve the loophole which deprives people in private and voluntary-sector care homes of the protection of the Human Rights Act.
Right at the end of the Bill—in Part 5, entitled “Miscellaneous”—is a welcome, if limited, set of social care reforms. I welcome, in particular, the extension of direct payments to those without capacity. The voluntary organisation Sense, for deafblind people, is particularly concerned that the regulations address some of the difficulties which their members have faced. I shall return to that in Committee.
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Sadly, other outstanding social care reform commitments are not addressed in the Bill; for example, the commitment in Improving the Life Chances of Disabled Peoplestrategy to revise the definition of a disabled person for community care purposes. As noble Lords will know, the current definition under the National Assistance Act 1948 refers to the “handicapped” and to “cripples”. The strategy argued that:
“This definition is out of date, offensive and does not provide a useful starting point for enabling disabled people to fulfil their roles as citizens”.
We were promised consultation on a more appropriate definition, followed by a change in the law.
Finally, I understand the Government have pledged, in their proposals for modernising complaints Making Your Experience Count, that advocacy should be a right for all across health and social care. I would be grateful if the Minister could give me any information on what progress is being made in that area.
6.49 pm
Lord Low of Dalston: My Lords, the Minister was so quick off his mark this afternoon that, without the same excuse as the noble Baroness, Lady Finlay, I missed the first couple of minutes of his introduction, for which I apologise. However, I heard enough to enable me to join in the congratulations of other noble Lords on his lucid presentation of the Bill. I just hope that he will not feel by the end of the debate that he has been given too much of a poisoned chalice. I hope, too, that I will be able to get through without coughing and spluttering so much that I need to invoke the Minister’s assistance. I add my thanks to those of other noble Lords to all those who have furnished us with such a wealth of valuable briefing in advance of the debate.
I am not one to bash the Government merely for the sake of it. Except, perhaps, when talking about criminal justice, one usually wants to welcome the broad principles of a Bill and suggest how it might be made even better. Alas, it is not so easy for me to do that today. I very much doubt that the Minister will be able to say at the end of the debate, as I know Ministers like to, that the Bill has been broadly welcomed on both sides of the House. One would have to say, having listened to about half of those who have put their names down to speak, that the Bill has received, at best, a mixed reception. Even those who have supported it at the highest level of generality have indicated their concerns about the lack of detail, and the fact that quite a bit of the detail that is there is wrong and will need to be returned to in Committee.
There are, to be sure, things to be welcomed in the Bill. I was going to mention the provisions in Part 3 on public health, until I heard the speech of the noble Baroness, Lady Gould. One can certainly welcome, with others who have spoken, the extension of direct payments, with safeguards, to people who lack—or may have fluctuating—capacity. I shall mainly concentrate on Part 1 and the Care Quality Commission, which
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“The health and social care sectors are significantly different, so different models of regulation will remain appropriate, despite the new legislation. Dominating the healthcare sector are large publicly funded providers with many highly technical services. The social care sector comprises 26,000 mostly smaller, privately funded providers, mostly concerned with care which is non-technical in which matters such as dignity are at the fore. As a result, regulation in healthcare is more information-based, and can, therefore, be more confidently risk-based, than in social care, which is more based on visits by way of inspection”.
In merging health and social care regulation, the Government have added two and two and come up with five. Perhaps it would be more correct to say that they have tried to put 11 into four and found that it does not go. This merger of the Healthcare Commission, CSCI and the Mental Health Act Commission stems from the Government’s mania for rationalisation—specifically, in this instance, a bee in the bonnet about merging 11 public service inspectorates into a Procrustean bed which is only big enough for four. This will be the third or fourth major reorganisation in six years, depending on how you count them. The second, as we have heard, was announced just 17 days after the first had taken effect. We saw with this the demise of the Commission for Patient and Public Involvement in Health and patients’ forums, whose abolition was announced just six months after they were set up, except that they had to be extended no fewer than six times because the Government could not get their act together.
This is no way to run a railroad. Nothing is given a chance to bed down properly before it is uprooted again. Even those who support the merger in principle have made it clear that they think the timing is wrong. The present commissions are working well and were just getting into their stride. Can the Minister say in what way he thinks the regulation of health and social care will be improved by this merger? Have the Government followed the recommendations of the National Audit Office regarding the merger of public sector regulators? Have they undertaken due diligence, cost-benefit or risk analyses? Have they established measurable success criteria for the merger? The upshot may be worse than a failure to produce a benefit: it may do harm. CSCI and the Mental Health Act Commission have major concerns that they will be the Cinderellas of the new CQC and be rolled over by the health juggernaut. The Government need to go back to the drawing board and rethink the whole thing.
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If they are bent on proceeding with the idea in some form, at the very least there need to be safeguards in governance and structure for social care in the form of a separate committee, or at least a dedicated commissioner. I prefer a statutory committee, such as the Equality and Human Rights Commission has for disability. There must also be a senior director for social care, reporting directly to the board.
There are other problems with the Bill. If it is to be fit for purpose, it needs to contain a clear set of regulatory objectives, such as other commissions have. Clause 2(5) is not nearly clear enough. There needs to be a set of principles, enshrining in the Bill such core values as the promotion of equality, non-discrimination, a human rights approach and due regard for the interests of social care. The voice of users also needs to be much stronger. They should be involved and not only had regard to. No one thinks the present advisory committee is nearly strong enough. The independence of the commission needs to be much more firmly anchored. The obligation in Clause 2(4) to have regard to the directions of the Secretary of State is unpromising in this regard. The Bill delegates too many detailed matters to secondary legislation and requires ministerial approval for a substantial range of matters where it has not been required before.
I need to say a word about just one more matter. The Bill will give us another chance to discuss the problems caused by ordinary residence disputes. I raised this last year, with the support of the noble Baroness, Lady Howarth, and others, during proceedings on the Local Government and Public Involvement in Health Bill. The Minister was as helpful as she could be. She promised to make three small changes to legislation and these are in the Bill. But they are largely technical and I do not think they will change a great deal. The Government promised to update guidance in 2004. Could the Minister please tell the House when they expect to fulfil that commitment? Guidance cannot eliminate disputes completely, so I am also concerned that when disputes arise they can drag on for months, and even years. I hope the Minister will be willing, in Committee, to look constructively at some suggestions for how we might improve the process for authorities and care users alike.
6.57 pm
Lord Patel of Bradford: My Lords, I declare an interest as chairman of the Mental Health Act Commission. While, as a rule, turkeys do not vote for Christmas, I support the broad intentions of the Bill. My concern is not to retain the commission as a separate organisation, but rather to ensure that its essential function of protecting the rights of detained psychiatric patients is not lost in the transfer of responsibilities to the new regulator, the Care Quality Commission. It is this aspect of the Bill that I will speak to briefly, covering five key areas.
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