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It is important to note that the Mental Health Act Commission is more of a watchdog than a regulatory body. It is the eyes and ears of Ministers, and indeed Parliament, in relation to psychiatric detention. It
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I was heartened by the Secretary of State’s speech in another place, in which he said:
“I emphasise again that the Bill brings the vital role carried out by the Mental Health Act Commission into the heart of the care quality commission. That will strengthen the monitoring of the Mental Health Act 1983, and offer increased oversight of the treatment of patients subject to compulsory detention. I know that the MHAC places great emphasis on its visiting programme, covering each hospital and each ward that accepts detained patients. I expect the new commission to continue that approach”.—[Official Report, Commons, 26/11/07; col. 38.]
I am glad that the Government intend that the commission’s visiting approach should survive its organisational demise, and I recognise that its visiting powers are replicated in the Bill. I also thank the Minister for echoing those issues in his opening remarks. Nevertheless, empowering the Care Quality Commission to visit detained patients, or expecting it to do so, is not the same thing as requiring it to do so. The Care Quality Commission will have a very broad and varied focus and many pressures on its resources. I therefore want to be assured that it will be required, rather than empowered or expected, to maintain a focus on the legal and human rights of detained patients, to visit hospitals regularly and frequently and to meet in private with detained patients. Regular and frequent visits to providers are the only way to ensure that patients’ rights are protected and that the potential for abuse or poor treatment of patients is minimised.
Recent scandals such as those in learning disability services in Cornwall, Merton and Sutton, where MHAC visits did not extend because of the legal status of the patients concerned, illustrate only too well what can happen if services are not visited regularly. Although, unfortunately, we cannot say how many abuses or incidents we prevent through visiting, even with a commissioner-visiting resource that equates to only 15 whole time equivalent staff, the MHAC finds misuse of the law and extremely worrying aspects of poor patient care on a weekly basis. In addition, many services are unsafe for the very patients they are designed to protect. We make numerous reports of ligature points on wards with seriously ill and suicidal patients, and frequently see overcrowding and high occupancy levels, well above 100 per cent with sleeping-out practices and a severe lack of space.
Being a member of staff working in this type of environment is very stressful, yet there are many dedicated people who work hard and contribute a great deal to caring for this population. Many staff welcome the MHAC’s involvement, without which
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Secondly, as we have already heard, the Care Quality Commission will be expected to register all health and social care providers in the public and private sector. The registration criteria are not yet known, but given the wide range of services, they are likely to be fairly broad, and could easily overlook the specific needs of detained patients. I will therefore be arguing that such licensing should explicitly include operation of legal powers of detention or deprivation of liberty under the mental health and mental capacity legislation, which can be used to judge the performance of providers.
Thirdly, the Care Quality Commission should also have a statutory duty to collect certain information on the use of compulsory powers and the care of detained patients. As with visiting, the Bill currently empowers the Care Quality Commission to require certain types of information, but does nothing to direct that such powers must be used to inform a focus on specific aspects of the care of psychiatric patients. It should be a requirement that such notifications encompass as a minimum all formal admissions and discharges under the Act, including compulsion in the community; all serious or untoward incidents involving psychiatric patients; all deaths of detained patients as well as unnatural deaths of informal patients. The noble Baroness, Lady Bottomley, said that we are talking about 80 unnatural deaths every year; that figure has been consistent for a number of years, but we have not looked into that issue enough.
It is also essential that information provided allows monitoring of ethnicity, age, gender, sexuality, faith and disability, as currently collected under the Government’s delivering race equality census project. The MHAC has been at the forefront of raising the issue of the disproportionate admission and detention rates of black and minority ethnic patients and about the plight of children and adolescents inappropriately detained on adult psychiatric wards. We need to collect that information to continue to monitor those issues. It should be mandatory for the Care Quality Commission to report on such matters every year to help ensure that the operation of Mental Health Acts powers continue to be monitored by an independent body.
Fourthly, the Care Quality Commission must be at the forefront of protecting patients’ rights and freedoms and ensuring that the Act is applied without adverse discrimination, having a clear focus on rights.
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“In our view, lessons can be learned from the more systematic approach pioneered by the Mental Health Act Commission”.
“MHAC state that their purpose was to ... ‘incorporate a human rights framework fully in the work of the MHAC, so that it becomes a recognised part of regular activity across the organisation’”.
“We are encouraged by the fact that the MHAC is to be merged with the Healthcare Commission and CSCI and urge that the highest common denominator should prevail”.
To this end, the new regulatory framework must pay sufficient attention to patients’ rights as well as quality and safety. I would like the Bill to be amended to include an explicit reference to patients’ rights in Clause 2(5) with a provision to the effect that the Care Quality Commission will perform its functions for the general purpose of encouraging the protection of the civil legal and human rights of all persons subject to health and social care provision.
Finally, I, too, am concerned that the Bill does not set an explicit requirement for service users and care involvement in the organisation and work of the Care Quality Commission. The Mental Health Act Commission has a proud record of having mental health service users appointed to its membership, and for the past two years it has operated an explicit strategy to reach out and involve service users who might otherwise not come forward, including patients currently detained under Mental Health Act powers. The Mental Health Act Commission will publish a report on this aspect of its work next month, and I look forward to discussing with Ministers and officials how our gains can be built upon in the new organisation. In the mean time, the statute establishing the Care Quality Commission should establish that such involvement should be a core part of the organisation in general, and in its monitoring of mental health services in particular.
7.07 pm
Baroness Howarth of Breckland: My Lords, I wish to speak on Part 1 of the Bill on the development of the Care Quality Commission. Like many noble Lords who have already spoken, I have grave concerns about the merger of three successful regulators into one, particularly now, and I believe fervently that we should at least wait for the Minister’s review before going forward.
I remind the Minister that we are here not because we think it is a good idea to merge health and social care, as he said, but because, as the noble Lord, Lord Warner, pointed out, a regulation rationalisation brought a number of commissions together, and that was part of that rationalisation. I should say that rationalisation of regulators is not necessarily rational regulation. The two are not necessarily the same thing.
Structural reorganisation without clear objectives, defined values and an understanding of different cultures, such as is proposed in the Bill, will not bring about the improvements the Government hope for in the delivery of services to some of those most in need
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Both the health and social care regulators have hardly had time to bed down. As my noble friend Lord Low explained, some have not come to the point where they can think through some of the detail. As the noble Baroness, Lady Bottomley, said, the devil is in the detail. I say this with some exasperation, because I was part of the National Care Standards Commission—its vice-chair, indeed—when, 19 days after becoming operational, it was announced that we were to be abolished. It was a miracle that we managed to benchmark every organisation in the country under the National Care Standards Commission’s care and ensure that we did not lose all of our staff despite their being threatened by that reorganisation. The abolition of the Commission for Social Care Inspection was announced some 364 days after it became operational, so, as I said in the debate on the Queen’s Speech, let us hope that if this Bill is passed, the new Care Quality Commission will make it to its first birthday.
This new body, regulating a sector with some £105 billion and employing 2.9 million people, will have extraordinary significance for a large swathe of the public sector. My noble friend Lord Walton pointed out the detail and size of the task that this organisation will have. At the moment, however, many of us on different sides of the House are dispirited by the shape in which the Bill has come to us from the other place. I hope that the Government will accept that it is right for this House to fulfil its constitutional functions; that is, to sharply scrutinise, revise and improve this Bill so that it is indeed fit for purpose.
Unlike the picture the Minister painted, social care and health are rather different. In the main, health is a universal, publicly provided service and free at the point of need while social care services are means-tested, subject to eligibility criteria and delivered primarily by the private and voluntary sector. We know that they do not mix; in a recent reply to a Question from the Floor of the House it was pointed out that people who had private prescriptions would not necessarily get public health care. Social care services mainly aim to provide a homely environment, or are delivered to people in their own home to support an independent lifestyle. That typically impacts on the quality of people’s lives as a whole, rather than taking place in acute environments or over episodic periods, as much healthcare does. Health and social care services, as many of your Lordships have pointed out, are not cut from the same cloth and the Bill needs to take account of that.
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Had there been time, I would have referred in detail to the letter published in the Guardian on 18 February from 15 charities representing hundreds of stakeholders. I will simply point out that that joint letter said that the Bill must be improved so that the new commission is mandated to take full account of the perspectives of social care, puts the views and experiences of people who use those services at the centre of its work—as my noble friend Lady Campbell so eloquently said—and takes a proper human rights-based approach to all its activities. The charities concluded by saying,
“Otherwise, as currently drafted, this bill runs the risk of moving the health and social care sector backwards by setting up a regulator that works to yesterday’s policy agenda, to the detriment of all those who use such services”.
One concern about which many of your Lordships have spoken is the lack of principles in the Bill—criteria against which we can determine the appropriate regulatory action and against which the regulator can be held accountable. Objectives need to be clear to those being regulated, and to other interested parties. There have been several references to the recent National Audit Office guidance on public sector mergers; that also states that strategic objectives are important. What is the reason for such a glaring omission, and is the Minister prepared to look at amendments that put principles and objectives into the Bill?
There is a real opportunity to set down some principles in this Bill that should underpin the provision of social care and health services in this country to recognise the core values of dignity, respect and human rights and to give people more control, direction and say over their services. I hope and expect that amendments in this regard will be tabled in Committee; otherwise, the good work undertaken by CSCI in involving people in the delivery of services will be lost. I also wonder whether the Minister would think such involvement appropriate in the delivery of health services.
I hope that the House will support these approaches on behalf of those who rely on social care services. They depend upon a regulator who has not only the legal power to stand up for their interests and concerns but the internal culture, means and willingness to do so—and the capacity to speak out without the permission of the Secretary of State.
7.16 pm
Baroness Jones of Whitchurch: My Lords, I begin by declaring an interest as a member of Unison’s parliamentary group and as a General Medical Council fitness-to-practise panellist. While I welcome this Bill’s broad intent, it is clear that practicable changes in regulation on this scale can be rolled out only infrequently, so it is imperative that we get both the framework and the substance right at the outset. It is also important, as has been said, to draw on our collective experience and memory to date and—perhaps most crucially—to make a clear case for the advantages that will flow from the new regime. At its core, patients and service users must be persuaded that it will deliver safer and higher quality care. That is the test and the challenge.
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In this context I have some concerns, first, about how the lighter touch regulation will work in practice. As the chair of a housing association, I have seen first-hand how an impending visit from the regulator drives up standards in preparation for the assessment. I am not convinced that a written questionnaire, however detailed, can substitute for direct observation and contact with patients and staff.
There are already concerns on the social care side that cuts in inspections are letting poor service providers off the hook. A recent survey of staff in this sector showed that 78 per cent felt that new arrangements were not improving care and 76 per cent thought that the methodology for risk assessment was flawed. In addition, 31 per cent said that they had been bullied to meet performance standards and 35 per cent knew of care services that had been registered but did not meet the national standards. That is not a happy picture and will not give much comfort to the relatives and users of care facilities, which is why there is still a need for regular and random visits to be a central feature of the new provisions. There is also a strong case for inspections to be automatically triggered under certain circumstances, such as the change of a care home manager, a new owner taking over a home or an unusual increase in staff turnover. We know from experience that these are often the first sign of problems and I hope that the Minister will feel able to consider this proposal sympathetically.
Secondly, at a time when limited resources are available for the new merged Care Quality Commission, we need to be assured that the focus of activity will be toward those at greatest risk. There is a danger that by adding new groups to be covered by the regulator without increasing resources, the inspection regime will become even more stretched. Arguably, then, there is a strong case for including GPs in the provisions because of their widening responsibilities but perhaps less of a case for including dentists.
Thirdly, I am concerned that the Bill as it stands differentiates between the regulation of the public and the private sectors. At a time when a wide variety of providers are entering the market, there is a strong case for the public to have unified assurances about the safety and quality of care, wherever it is provided—and whether by the public or private sector. However, the current proposals have different requirements for the NHS and the independent sector, and for primary and secondary care. Surely we should be aiming for an even-handed approach based on the risks to patients and service users. Equally, as has already been said, there is a strong case for the regulator to consider patient pathways where interdisciplinary packages of care are involved as all too often the real breakdowns occur between providers which can be both public and private.
Fourthly, I share the concern expressed by others today about the changes to the complaints procedures, which mean that the regulator will no longer be responsible for responding to individual complaints about service providers. I agree very much with the research produced by Which? showing how reluctant patients are to complain and, in particular,
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Emphasising the need for local handling of complaints sounds laudable but, in practice, it could exacerbate the fear of coming forward. What is really needed is a fast-track route to a genuinely independent body that is able to investigate individual cases as well as to co-ordinate information about the overall range and nature of complaints. That would have the added advantage of providing redress for the 35 per cent of care and nursing home residents who fund their own care and cannot access the Local Government Ombudsman or the Health Service Ombudsman.
It seems to me that at the heart of these proposals is a contradiction. On the one hand we want lighter touch regulation of service providers, while on the other hand we want more stringent regulation of professional staff. Staff now, quite rightly, have to go through periodic revaluation to carry on practising while care providers will now have to produce less evidence of competence to continue working in the sector. I welcome the fact that the GMC has embraced the introduction of the more stringent civil standard of proof in fitness-to-practise cases but, as I have said before in this House, I am not entirely convinced that the other changes being proposed to adjudication are really justified. My own experience on fitness-to-practise panels is that the training and decision-making abilities of the panellists were of the highest standard and were rarely able to be successfully challenged in court. I remain to be convinced that the introduction of legally qualified chairs to fitness-to-practise hearings will enhance the quality of decision-making, and I share the GMC’s concern that legal advice and decision-making should remain separated. However, I understand that there could now be a more limited introduction of legally qualified chairs where the complexities of the case require it. I would certainly favour that approach.
Finally, there is the small matter of the costs of setting up the Office of the Health Professions Adjudicator. I understand that undertakings have been given that the Government will meet the set-up and transitional costs of the OHPA, but there may well be other costs arising from the establishment of the new organisation that could fall on the GMC. I hope that the Minister will be able to confirm today that doctors will not be expected to fund those changes.
In conclusion, as the variety and scope of service providers in the health and social care sectors continue to increase, there is clearly a value in having joined-up regulation. The challenge now is to provide a level playing field of quality standards combined with a duty to raise standards across the sector. I look forward to exploring ways that can be achieved as the debate on the Bill continues in the coming weeks.
7.24 pm
Baroness Masham of Ilton: My Lords, I thank the Minister for so clearly explaining the Bill. He will know that there has been a great deal of interest outside your Lordships’ House in this very important Bill from organisations concerned with the health and
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