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People who need social care have very few legal rights. The one they do have is the right to an assessment of their needs. I am already starting to pick up instances where local authorities have given up the pretence of carrying out assessments and are simply handing out to people a self-assessment form. A number of noble Lords have spoken today about the need for the commissioning of services to fall within the auspices of the regulator, which is absolutely right, but unless assessment services are also covered in the legislation it will be almost impossible to determine whether what is being provided by way of service is right and of good quality. Without the duty to inspect assessment and a narrow focus on healthcare, it is easy to see how this legislation will lead to a great focus—perhaps an exclusive focus—on acute interventions in health and social care only. That is not healthy for the population.
When the noble Lord, Lord Warner, the arch serial critic of the Government, laments the lack of detail in the Bill, I have to say to the Minister, “Game, set and match”.
It is absolutely right that the regulator cannot be independent and cannot fulfil its duty unless from the outset it has a clear set of objectives and regulatory requirements and, as the noble Baroness, Lady Meacher, said, the duty from day one to produce reports. That is what will give it its unique importance in providing strategic information across the whole of health and social care; it is essential.
We agree with the many noble Lords who have criticised the extent to which the regulator will be influenced by the Secretary of State and we will resist requests from wherever they come—even from lobby groups—to try to define closely what the priorities of the regulator should be. However, we believe that it is right for Parliament to set overarching thematic functions for the regulator. These should include a duty to ensure fair access to services and to uphold compliance with human rights legislation. In addition, the regulator should have a duty to ensure that the services the NHS and social care commissioners and providers purchase, procure and provide are carried out sustainably. Sustainable delivery of healthcare is probably one of the most important health contributions that one the biggest purchasers of public services in western Europe can provide.
Together with the noble Earl, Lord Howe, I had the joy of working on the Care Standards Act. It has left me with a firm belief that it is possible and right to make sure that regulation is of a light touch only if inspections are unannounced. We can ensure that vulnerable service users are protected by monitoring community treatment orders and those patients who have their liberty deprived because of Bournewood restrictions, but, throughout mental health or simply
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Many noble Lords have received representations about the Care Quality Commission having a responsibility to deal with complaints. We on these Benches are not convinced that it is right that the Care Quality Commission should deal with individual complaints. However, it is clear that there needs to be some body in the middle of the NHS with a duty to report on, and hopefully sort out, the royal confusion and mess that is the complaints system within the NHS at the moment.
Many things have been said about user involvement. I do not disagree with that; I believe that the Care Quality Commission should set an example by having user involvement at its heart. However, let us not forget that the real signal to us all that the CQC is doing its job and is fit for purpose will be the day when it turns up at a major hospital or a small care home to get rid of incompetent managers or practitioners, only to find that it is too late, because other professionals or users will have beaten it to it.
I agree with what the noble Baroness, Lady Gould, said about Part 4 of the Bill and public health. We will be with her in her attempts to clarify what is clumsily written legislation with good intentions.
We will support the health in pregnancy grant, because it is an extension of child benefit, which is a known way of addressing health inequalities. We will, however, wish to seek to extract from it the maximum health benefit and want to look closely at the way in which it is paid, particularly whether it should be paid as a lump sum.
I shall not detain the House at this late hour with a detailed discussion of Clauses 141 to 148, but I ask the Minister to explain to me in writing why the NHS should fund social enterprises, which are profit-making business albeit with an ethical social conscience, to take on services from a universal service, which is funded by the taxpayer. That seems not so much cherry-picking as selecting the cherries oneself and presenting them gift-wrapped with a bow to one’s competitors. I do not understand it.
We are about to spend a great many afternoons in the Moses Room. When we find attention wandering and focusing on Moses’ sandals, I ask noble Lords to return again and again to one simple question: will the provisions of the Bill make the life of a vulnerable person in a care home any safer or better? As the noble Lord, Lord Lipsey, said in his typically understated way, that is the test of this legislation. If any provision, whether it applies to health or social care, does not do that, we should not pass the Bill. This could be a good Bill; it is not yet. We have a great deal to do.
9.27 pm
Earl Howe: My Lords, after such an excellent debate as this, the amount of value added by a summing-up is perhaps questionable, but I begin by making the observation that the overriding characteristic of the speeches we have heard today has been one of support for the Bill as regards its
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This is a Bill of varied content, but which can be said to have a unifying theme: the well-being and safety of the public and a desire to promote the highest standards of care for those who, in whatever way, are in receipt of it. In that sense, the aims of the Bill cannot be faulted; the question, as so often, is about means rather than ends.
Perhaps the greatest amount of attention today has been focused on Part 1, which deals with the creation of the Care Quality Commission. With the single exception of the noble Lord, Lord Lipsey, few noble Lords have argued against the idea of bringing together the regulation of health and adult social care under a single structure. The concerns are all about when and in what manner this is done.
This is the fourth Bill in 10 years to deal with the regulation of health and social care. The old Commission for Health Improvement lasted just four years before it was abolished in favour of the Healthcare Commission. My noble friend Lady Bottomley reminded us that the National Care Standards Commission was a mere 17 days old when plans were announced for its replacement by what is now CSCI. Those two replacement bodies are today barely four years old and are now to be scrapped. Ministers may justify this in terms of the evolving delivery of health and social care, but it does seem extraordinary that we have needed four bites of the cherry before arriving at what is now trumpeted as being the last word in regulation. Ten years ago, and again in 2003, I remember asking the Government why it was not possible for the NHS and the independent healthcare sector to work to an identical set of standards. The answer I got was that there was a fundamental difference between a managed service and a regulated service: ergo, the standards to be applied in each context could not possibly be the same. Suddenly it seems that the apparently insuperable differences between a managed service and a regulated service are not so insuperable after all. I welcome that conclusion, but it is a pity that nobody could have reached it a bit sooner.
The regrettable prospect we are faced with, as so many noble Lords have pointed out, is regulatory disruption. When the chopper comes down on the three existing regulators, the excellent work being done by those bodies is going to be halted in its tracks. Whatever attempts are made to ensure continuity of work programmes and working practices, it is inevitable that the first two years of the life of the CQC will be devoted in large part to organisational issues. Many people feel that if the Government really had put the welfare of patients and the public first, they would have done much better to wait until the systems and working methods which the Healthcare Commission and CSCI have
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What sort of a body is it going to be? We do not yet know the scope of its remit. Ministers say that they want it to be an independent voice acting on behalf of patients and the public. But how independent will the commission really be if it has no objectives defined in statute, other than a duty to have regard to government policy; if it is subject to powers of direction from the Secretary of State; if its freedom to set its own work programme is to be curbed for at least the first 18 months of its life; and if its chairman is apparently to have the status, judging by the salary on offer, of a medium-ranking civil servant? Taken together, these are worrying features; so I am at one with other noble Lords in wanting to see the independence of the commission clearly safeguarded in the Bill, together with a much greater emphasis on the need to involve, and listen to, service users and the public.
We are all conscious of the increasing overlap that exists between health and social care, which is one good reason for having a single regulator. But we should not exaggerate that overlap. The noble Lords, Lord Low and Lord Lipsey, pointed out that the regulation of healthcare is largely information-based, whereas the regulation of social care is based much more on inspection and talking to people. Of course, the two methodologies can draw from each other, but the essential differences will surely remain. A small care home is a closed community of the vulnerable where the user experience is everything. A large general hospital is assessed on a whole range of technical indicators, which may or may not give rise to an inspection. In a real sense, the purpose of each sort of assessment is quite different. Equally, as the noble Lord, Lord Patel of Bradford, reminded us, the work undertaken by the Mental Health Act Commission is of a different nature again from that of the Healthcare Commission or CSCI.
It is partly with that thought in mind that, again like other noble Lords, I believe we need to find a way of reassuring ourselves that within its unified regulatory structure proper weight is given by the CQC to all three of its main areas of activity, without any one of them assuming an undue ascendancy over the others. A number of speakers have been eloquent on that theme, not least the noble Baroness, Lady Barker. It was unfortunate that the advertisement for the chairman of the commission displayed a blatant bias towards healthcare while downplaying social care. It would be more than unfortunate if that sort of bias were to be translated into the operational priorities of the new body. When we come to Grand Committee, I believe that there are various ideas that we can explore to try to prevent that from happening.
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There has been a general welcome for Part 2. For my own part, I believe that the principle of what is proposed is right. With the creation of the Office of the Health Professions Adjudicator, we will have a visible separation of fact-finding from fault-finding—a principle that the Government fiercely resisted in the NHS Redress Act.
The real issue is to make certain that the changes work and are seen to work fairly. Even without this Bill, fitness-to-practise committees at the GMC are moving to the civil standard of proof, so that change will go through no matter what we decide here.
There are some perfectly legitimate concerns about the way that the sliding scale will operate and how the Office of the Health Professions Adjudicator will relate to other bodies such as the CHRE, the GMC itself and, crucially, the Government. The whole point of setting up OHPA is to have an independent adjudicating body. So, just as it is important for it to be seen to be operationally separate from the GMC, it is important for it to be seen to be operationally independent of Ministers and the Department of Health. We need to satisfy ourselves that it will be. There are some practical questions about the transition from the present system to the new one. All these are issues that we can look at in more detail in Grand Committee.
Noble Lords have devoted comparatively little time to the other matters in the Bill, and I feel that I need mention only a few. I feel sure that we will wish to debate the role of the responsible officer and, in particular, how the new arrangements will embrace those practitioners who work independently.
On Part 3, I join the noble Baroness, Lady Gould, in believing that we need to consider carefully the extent of the powers to be vested in justices of the peace in relation to public health hazards. We also need to look at whether it is appropriate for there to be further transparency in the way that these powers are exercised, since at the moment the Bill is largely silent on that issue. We shall certainly need to look in some depth at the proposals in Part 4 for a health in pregnancy grant.
The health of pregnant mothers is, of course, of enormous importance, but what evidence is underpinning the policy? The grant will be available from the 29th week of pregnancy, apparently on the grounds given by the Prime Minister who said that he had received powerful representations that nutrition was “most important” in the last months of pregnancy. However, when giving evidence in the other place, the Minister, Mr Bradshaw, admitted that Mr Brown was wrong about the nutritional benefits the grant would give in the later stages of pregnancy, and that the payment would have been more beneficial in the early stages of pregnancy. Well, if that is the position, we have to ask the obvious question: are the Government satisfied that this grant represents the best use of £100 million? I shall be very interested to hear the Minister’s reply.
In common with other noble Lords, I look forward to the later stages of the Bill with considerable anticipation. In doing so, I am confident, on the basis of today’s debate, that with the benefit of constructive
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9.39 pm
The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): My Lords, we have had an interesting and wide-ranging discussion on this important Bill. It is clear that the Bill will greatly benefit from the depth of insight and expertise that we have heard today. Before turning to the specific points raised, I take the opportunity to say how pleased I am that there has been general support for some of the key principles of the Bill. There appear to be some differences in the exact detail of the provisions, and I hope that I can offer some reassurances and clarifications on the specific points raised. Given the time limitations that I face and the number of speakers whom we have had the benefit of hearing today, I will try to answer the key points raised thematically and, of course, write to address any points that I am not able to cover now.
I shall deal with the Care Quality Commission first. I was pleased to hear the support for a more intelligent, light-touch approach to regulation. Most importantly, I take the opportunity to once again reassure those who doubt that social care will be properly represented. The Care Quality Commission will build on the good work of all three current regulators. I emphasise that, in fact, the social care world has a head start—it has more providers and much greater familiarity with registration, which will be completely new to the NHS. I also reassure the noble Earl, Lord Howe, that we are working hard with the current regulatory bodies to make sure that we minimise disruption in the landing of the helicopter, and to ensure that the new commission builds on the success of its predecessors.
It seems paradoxical—to me, at least—that there has been so much emphasis on what distinguishes social care from health and how important it is that those differences are preserved, alongside just as great an emphasis on the need for integration of services at both national and local level. However, that paradox is irrelevant, because what matters to patients is the seamless provision of services and the regulation of such, as has been eloquently described. What matters is not the virtual boundary that healthcare and social workers create, but what is perceived through the patient’s eyes.
Points were raised about the salary of the chair. I agree that appropriate remuneration is necessary to attract suitable candidates, and recognise that that is an important job in a significant new organisation. I reassure the House that I will do my utmost, because principally we all agree that we are trying to attract the best talent with the right leadership, unbiased to either social or health care. I am happy to look into that further.
The noble Baroness, Lady Cumberlege, questioned how independent the commission would be. The Healthcare Commission and CSCI represent models
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I shall deal with the relationship between the commission and Monitor, the Independent Regulator of NHS Foundation Trusts. Registration of NHS providers will be separate from the authorisation process to obtain FT status, will offer independent assurance of safety and service quality and will be a requirement for all providers wishing to offer health and/or adult social care services. FT authorisation is a separate bar very successfully set up by Monitor to ensure that FTs are legally constituted and have the quality of governance and financial strength to operate autonomously as public benefit corporations. The greater autonomy that comes with FT status creates the need for an independent body to regulate them in these respects. This independence would be compromised were it also that body’s role to monitor safety and quality.
The right reverend Prelate the Bishop of Ripon and Leeds and my noble friend Lady Wilkins highlighted the need for a better complaints procedure for those who use services. I should like to reassure the right reverend Prelate that this is precisely our intention by strengthening complaints handling at a local level. The consultation launched today includes requirements from providers in relation to complaints handling and I would encourage noble Lords to engage in this consultation. That consultation also seeks views on when primary medical care, as pointed out by the noble Lord, Lord Colwyn, could be brought within the scope of the new Care Quality Commission and how best this could be done.
Many noble Lords sought reassurances that the commission will involve patients, people who use the service, carers and the wider public in its work. The Government believe strongly in the importance of engaging the public and professionals in its work. For this reason Clause 2 requires the new commission to consider the views of the public as well as the patients and service user representative groups in all aspects of its work and there will be formal mechanisms to enable this. I appreciate the extent of concern on this subject and recognise that our effort to reassure in the other place has not won over some noble Lords in this House. I hope we can explore these issues in more depth in Committee.
The noble Baroness, Lady Neuberger, raised the issue of whether there should be regulatory objectives in the Bill. I should like to highlight that Clause 2 sets out three particular outcomes that the commission should encourage through carrying out its functions. One might say that these are its objectives, one of which is the improvement of services. The noble Baroness, Lady Neuberger, and many other noble Lords also queried whether the commission will be able to take
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As a number of noble Lords have raised the issue of the Human Rights Act, let me stress again what I said in my opening speech. We undertook in the other place to consider the issue of publicly arranged care in the context of this Bill with a view to reporting back on this important issue during the further passage of the Bill. That is still very much our intention and we are currently discussing with stakeholders how best to do it.
I turn now to professional regulation. I am pleased that there was so much support for the move to civil standards of proof. I know there were concerns from some quarters that the civil standard of proof will force healthcare professionals to practise more defensively. As I said in my opening speech, I do not believe this will happen as I truly believe in the commitment of health professionals to care effectively for their patients which will guard against this risk.
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