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21 Apr 2008 : Column GC197

Grand Committee

Monday, 21 April 2008.

The Committee met at half-past three.

[The Deputy Chairman of Committees (Baroness Gibson of Market Rasen) in the Chair.]

Health and Social Care Bill

(First Day)

The Deputy Chairman of Committees (Baroness Gibson of Market Rasen): If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Baroness Barker moved Amendment No. 1:

(a) protecting and promoting the public interest;(b) protecting and promoting the interests of people who use health and adult social care services and their families and carers, including in particular the need to safeguard and promote the rights and welfare of children in relation to their health and health care;(c) promoting safe, high quality and personalised health and adult social care services;(d) protecting and promoting the exercise by people of choice, control and power over the health and adult social care services they receive;(e) protecting and promoting the human rights, dignity, welfare and independence of people who use health and adult social care services;(f) protecting and promoting the rights of people detained under the Mental Health Act 1983 (c. 20), or otherwise deprived of their liberty on the grounds of their mental health or capacity;(g) encouraging improvement in the quality and provision of social care services in England;(h) encouraging improvement in health for all citizens and in the provision of health care by regulated bodies and, in doing so, ensuring that standards set by the Secretary of State under Chapter 3 of this Part are given effect.”

The noble Baroness said: It is an honour to open the batting. I welcome the noble Baroness, Lady Thornton, to her first Grand Committee as a Minister. I am sure that she will enjoy it immensely. There is no need to extend the same courtesy to the noble Lord, Lord Darzi, because he is by now a veteran.

In addressing this group of amendments, I take the Committee back to Second Reading, which was held just before the recess. As noble Lords will recall from that lengthy debate, in which a great many speakers took part, there is consensus that the underlying aim of the Bill is to be welcomed. The bringing together of health, social care and mental health care is something with which noble Lords agree. However, since the Bill entered another place, there has been persistent and underlying concern that the framework as set out in the Bill is insufficient to carry the expectation of

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bringing together the regulation of three considerably different activities—health, social care and mental health—in a way that would not only ensure that the ongoing work being done by the individual commissions was to a very high standard but set a framework for the future.

It is customary on these occasions in this Room for the Opposition to spend many hours insisting that to ensure that Parliament’s intentions are implemented, measures must be in the legislation. It is equally customary for the Government to argue that the inclusion of any such measures in statute is unnecessary, either because that would be too detailed or because, following a classic line of legal argument, it is preferable to omit stuff from law as putting it in that means you are being exclusive. This time, that argument will not stand; it was comprehensively and fatally undermined by the Government when they published the job description and the recruitment materials for the chair of the Care Quality Commission. The bias in that job towards healthcare and acute healthcare was unmistakable. The job was described in terms equivalent to the chair of a strategic health authority. The bias was unmissable in that it completely failed to require that candidates have any experience or knowledge of local government and failed to mention the introduction of comprehensive area assessment, the key measure under which most social care services will be commissioned and which will stand from next year.

The message could not have been clearer that this was going to be a health body and that social care and mental health care would be tacked on—not quite as an afterthought, but very much as poor relations. As anyone who sat through Second Reading knows, that is simply not acceptable. It is not the basis on which health and social care services are going to be developed in this country in the foreseeable future, not least because all political parties and almost all practitioners and users are of the view that health and social care and mental health care services should be brought together but that this needs to happen on a basis of clarity.

In light of that job description—one of the most memorable of all time— opposition Members might have reacted to the Bill in ways that were understandable but inappropriate. It would have been reasonable for opposition Members to insist on tying down the nature of the commission in great detail, but I hope the Minister will agree that the amendments we have tabled, with the exception of those probing specific issues, show that we have not done that. We have sought to address what remained as the key outstanding issues on what an independent regulator for these three functions should be like.

I hope that on that basis we can dispense with our traditional arguments and proceed to a worthwhile discussion about exactly what the purpose, nature, structure and remit of this organisation should be. It has a hugely important job to do. It will regulate expenditure of more than £100 billion—10 per cent of our gross domestic product. It will oversee the registration and performance of 28,000 providers of care, which vary from acute teaching hospitals, such as the ones over the water, through to tiny little independent care

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homes. That is a massive job. If this regulator fails to do its duty, that will impact on the lives of pretty well every older person, most children and a fair percentage of adults in the country.

Many of the amendments that we will discuss in the coming days reflect the reality outside, which is that at all levels, from the strategic development of policy on the future of public services down to local operational decisions, healthcare, particularly acute healthcare, receive greater attention and a greater amount of public funding. Yet, as the Wanless report showed so clearly, it is important that social care be funded and organised in such a way that it promotes well-being, particularly for older people, rather than concentrating solely on the treatment of acute illness. If we had a regulator doing that, its priorities, as set out in the legislation, would be very different from those in the Bill.

In this Bill, the House has a unique opportunity to ensure that the future of our largest public service is focused on long-term improvement of the health of the nation, rather than on acute illness. It is an opportunity that we should not let pass by.

I turn to the amendment. The existing bodies, CSCI and the Healthcare Commission, have regulatory objectives set out in statute. CSCI has the objective of encouraging improvement in the provision of English local authority social services; the Healthcare Commission has a similar duty. As it stands, the Bill gives the Care Quality Commission a very weak set of duties that are tantamount to it being a registration, review and reporting body without clear objectives, and which is insufficiently independent of the Secretary of State. Were the Bill to pass unamended, it would be remarkable that a regulator would exist without objectives. All other major regulatory bodies in this country have clear objectives set out in statute. In his review of legal services—the precursor to the Legal Services Act 2007—Sir David Clementi said that,

I have proposed in Amendments Nos. 1 and 3 a new set of regulatory objectives for the CQC. This will bring about clarity, not just for those who will be responsible for carrying out the regulatory function, but for all the other players in the health and social care field who will interact with this body. It will not be the only body that has concerns about improvement, complaints or user involvement, nor will it be the only one responsible for inspecting healthcare—about 60 different bodies are responsible for inspecting the NHS. It is important that the role, duties and the whole basis for the actions which the regulator will take need to be understood and clearly set out.

3.45 pm

One of the key issues addressed in the amendment is what I call “risk versus rights”, which is shorthand used by people who work in social care. Principally, the regulation of healthcare, as it stands, is based on risk. This is not surprising given the serious nature of

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the work undertaken and its consequences for individual patients; it is a risk-based organisation. In social care, however, things have moved on greatly. The rights of people not only to services but to be treated in ways which ensure their autonomy, dignity and well-being are becoming so fundamental to the whole of provision that if the risk-based approach the Government are proposing for the CQC were to go ahead, the regulatory framework would represent a major step back for the development of social care services.

I draw to the Committee’s attention the duties set out in Amendment No. 1 and the fact that the words “protecting and promoting” those issues on behalf of the public run throughout it. That is the way in which the amendment addresses the issue of rights versus risk.

Amendment No. 3 is different and gives to the Care Quality Commission a duty to promote those objectives. There is no such duty in the legislation as it is set out. It would be strange if in any other field we were to set up a regulator, give it a set of objectives and then not expect it to promote those objectives within its work. If, for example, Ofsted were simply given the job of ensuring that education was not bad as opposed to promoting higher standards and improvement, we would all have something to say. The amendment builds on the work which CSCI and the Healthcare Commission have done in promoting those regulatory objectives during their short time in existence.

Amendment No. 14 seeks to delete much of the wording of Clause 2, most of which is replaced by other amendments. In particular, it seeks to delete subsection (4) and has a similar effect to Amendment No. 22, tabled by the noble Earl, Lord Howe. The regulator has to be independent of government and if subsection (4) were to remain, that independence might be compromised. Why is it of such importance that a regulator should be independent? I give the example of the FSA and the Treasury, where it is of importance that the bodies have demonstrable independence and different functions in relation to the world of finance. As long as the Department of Health retains a direct involvement in the provision of health services, as it does at the moment, there is a need for the regulator to be strongly independent. That kind of check and balance is only sensible. For all these reasons, I beg to move.

Baroness Finlay of Llandaff: I shall speak in particular to Amendment No. 1, to which I have added my name. It is crucial that the objectives should be on the face of the Bill so that everyone knows why the inspectorate is there. There are powers given and the duties and responsibilities which go with them must be clearly laid out. Patients can move between different sectors and may often be in healthcare and social care—and possibly in mental health care—simultaneously. It makes sense to bring the regulators together, but that makes it all the more important that the objectives of the different branches that are now going to be jointly inspected are clear and consistent.

As patients move between different sectors, they need to know that all the care they receive, wherever they are, is of a uniformly high standard. In health, they need consistency across the NHS, especially for

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emergency care provision—not only emergencies occurring outside in the community that cause them to be taken into hospital but also emergencies that arise as a complication of the treatment or investigation that they undergo. It is no good for a patient to be in a unit which is fine at dealing with something until it goes wrong and then have to be taken a long way in a helicopter and put at risk by inordinate delays because there is no adequate infrastructure to deal with complications.

The word “dignity” is rightly used in the amendment, because there is now good evidence that care given in a way that enhances people’s sense of personal dignity, worth and well-being improves their recovery time. If anyone has any doubt about that, I refer them to the work of Harvey Chochinov, who has published several papers on the subject and done sound research into how care is given. Dignity is not an internal construct; it depends on the way that others interrelate with us, react to us and make us feel of value, and on the way that we are asked our opinion, consulted, and how our needs and fears are listened to and addressed.

The word “improvement” comes up in two parts of the amendment, which is crucial. It is too gentle a word to describe what really needs to happen. I would like it stated clearly that “improvement” must encompass research and development, and the educational infrastructure that provides it. Improvement does not happen unless people continually reflect on practice, learn from it, and put in place education and training to improve standards and audit their care.

When we talk about promoting independence, we have in mind particularly those services which sit between health and social care, such as occupational therapy, and which are of key importance. Physiotherapy and occupational therapy are often the services which help patients get home. If they are not in place, patients do not get home. The speed with which improvements in occupational therapy in particular are put in place can make all the difference between someone languishing in hospital and deteriorating and their getting home and beginning to resume independent living, with a raft of infrastructure support then being given.

I anticipate the Minister flagging up some difficulties regarding the fourth objective, and I have some sympathy with him. I was unable, however, to come up with better wording. My difficulty is with that word “choice”. In some aspects of service provision in health, it is extremely difficult, if not nigh-on impossible, to promote the exercise of choice and still provide appropriate clinical care, because there is always an outcry when local services are closed or rationalised. The only way to deliver new technologies cost-effectively and use them appropriately is to develop a critical mass and invest in them. A clear example of that is positron emission tomography, or PET as it is known. To turn on the PET scanner is inordinately expensive. The scans that one gets are brilliant and will influence clinical decision-making hugely, but it is not feasible for people to choose to have a PET scan rather than something else if it is not clinically indicated; nor is it appropriate for people to demand that their local service develops PET scan provision because of the complexities of delivering that technology, including the radiation source, which needs to be near a cyclotron.

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It is true that patients often ask for scans in the mistaken belief that a scan is some kind of magic investigation that can come up with all the answers, whereas the reality is that scans, whether they are CT scans, MRI or even, occasionally, PET scans, are undertaken to confirm a clinical suspicion of a diagnosis. A negative scan does not mean that disease is not present; it simply means that the amount of disease was not big enough to show up or cast a shadow on a scan.

So there are some difficulties around the word “choice”, but there is an important role for advocacy for patients. Choice is much stronger in social care, where people have a much better knowledge and awareness of what they need to continue living independently. However, even in the health service people need choices over what to wear, what to eat, whether they want to be in with other people or whether they desperately want to be in a single room on their own. It is surprising how many patients feel more comfortable surrounded by other patients in a four-bedded bay because of the security of having others around rather than the loneliness of being in a side room.

There are other choices that even in healthcare must be made available, such as the timing of medication. It is tragic to hear of Parkinson’s disease patients who are not given a choice over the timing of their medication and whose condition deteriorates hugely during a hospital admission because they do not get their medication on time.

In proposed paragraph (d) of the new clause, I wonder whether we need to look at the wording to make sure that people get the best quality care within the resources available and that there is a just allocation of resources to meet need rather than simply to respond to demand. With that caveat, I give my wholehearted support to having the objectives in the Bill. I could live with the wording as it is in the amendment rather than the alternative of not having the objectives there.

Baroness Meacher: I add my strong support to Amendment No. 1, to which I have added my name. Clear objectives are probably more important for this body than for almost any other one can think of. As the noble Baroness, Lady Barker, said, the CQC will have to regulate tens of thousands of little businesses, along with very large hospitals. I do not think that we underestimate the enormous challenge that this will present to the organisation. Inevitably, the CQC will prioritise its work. It will probably focus very strongly, initially, on certain areas of work, but it is crucial that neither the CQC nor Parliament ever loses sight of the full breadth of the work that it needs to do.

Will the Minister confirm the Government’s support for all the objectives set out in the amendment? There is the objective of promoting public interest and the interests of users and carers and for users’ choice. I recognise the point made by the noble Baroness, Lady Finlay, that inevitably there are types of treatment where choice is impossible. If somebody needs a top security place in Broadmoor, one obviously cannot offer them the choice of going to the hospital down the road. The objective of choice is fundamentally important, although I am not sure whether it really needs to be adjusted to allow for that.

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Then there are the objectives of promoting children’s health, of safety, high-quality care, dignity, welfare, independence, the rights of detained patients, social care and public health. I do not believe that any of us could disagree with any one of them, but for the CQC to deliver all of them will be a massive challenge—there is no question about that. For Parliament to keep an eye on all those objectives, it needs to have them in the Bill.

I hear rumours that the Government want the CQC to concentrate on the most basic safety and care standards to have a single set of standards that can be met by the multitude of independent and voluntary sector provisions and the little, tiny homes, as already referred to. That is a very long way from the excellent work being done by Monitor and the Healthcare Commission with trusts to achieve a gold standard of care. Are the Government committed to ensuring that the CQC works with Monitor to take the gold standard agenda forward along with all its other responsibilities? One could lose all that so easily. That is a very alarming thought for people on the front line, as it would be for patients and service users if they were aware of that danger. It would be an appalling catastrophe for the health service.

We need to know whether the Government are committed to this gold standard agenda or whether the rumours are correct. Is the Government’s primary concern to go along at this low level, achieving a basic standard across the very wide area of provision in social care and healthcare? It is not clear to me that in that case the CQC would have any relevance to most health trusts or any NHS trust and certainly not to foundation trusts, because most of them are way above that level of care and safety.

In fact, I am sure that the Government will want the CQC to be ambitious in raising standards. If that is so, I am sure that the Minister will agree with the words of Sir David Clementi which have already been quoted by the noble Baroness, Lady Barker, in relation to the Legal Services Board. As we heard, he underlined the absolute primacy of objectives in setting out to establish a regulatory body. Not surprisingly, many other regulatory bodies have sets of objectives defined in statute: Ofsted, the Food Standards Agency, the Financial Services Authority and Ofcom. Having the objectives in the Bill lets us all know the modus operandi of the organisation. It is clear and transparent but most importantly it enables Parliament to monitor and care for the delivery of those objectives and ensure their fulfilment.

The alternative approach in Amendment No. 4 in the name of the noble Earl, Lord Howe, provides, as I understand it, a single focus on the interests of service users and their families and carers. There is of course much to commend in that clarity. However, in view of the considerable risk—I emphasise that it is considerable—that areas of work will be lost by this huge organisation, there is great merit in a fuller statement of regulatory objectives in this context. I hope that the Minister will recognise the strength of the arguments in this case.

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4 pm

Earl Howe: I should like to think that this amendment or something very like it will commend itself to the Minister and that the arguments ably put forward by all the noble Baronesses will resonate strongly with him. Building a set of overarching objectives into this part of the Bill is, to my mind, tremendously important. There are various ways in which we can do that and there is no doubt that there is a discussion to be had on the precise detail of the objectives, but leaving the first part of the Bill as it is seems to me unacceptable if we want this new body to be a force for public good and to govern its own agenda rather than simply being a tool of the Department of Health or the Ministers of the day. Giving the commission some well defined objectives is part of the buttressing that we need to create to enable it to have independence from Ministers. The less specific the Bill is on what the commission is expected to be and to do, the more scope there is for the sponsoring department to influence its activities.

The other key point was well made by the noble Baroness, Lady Barker. This will not just be a body that registers people, reviews what they do and then reports back. If it works as it should, it will be one of the positive influences that we can look to in the system to ensure that standards of care across the piece are maintained and improved in accordance with the kind of values that the amendment articulates.

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