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The present improvement duties set out in Clause 2 are quite vague, whereas the duties under which CSCI currently operates are much more specific. CSCI will say that that is helpful, as it enables it to be more focused in what it does and more consistent in the decisions that it takes and to be and feel more legitimate when exercising its powers. If we are clear about what the commission is for, I think that we are being fair to everyone. We are being fair to those on the receiving end of regulation who are in a better position to know what to expect and why; we are being fair to the commission, which will have a better sense of direction from the outset; and we are being fair to ourselves as legislators, because we will be able to hold the commission more accountable than we might otherwise be able to.
I understand the point made by the noble Lord, Lord Darzi, at Second Reading—that we want a regulator capable of adapting to changes in the delivery of health and social care over time. We do not want to come back to the Moses Room after five years to invent yet another sort of regulator, merely as a result of having been too prescriptive about this one. But I do not think that we are talking about being prescriptive here. The values set out in the amendment are manifestly enduring. They should apply, whatever the manner in which care is delivered or received, so I do not think that we need to fear that the amendment would create a hostage to fortune in the way that some might suggest. Indeed, if that were so, one would have to ask why other regulators established by primary legislation in recent years have been given this kind of directional underpinning. There are good precedents. Ofcom has been mentioned and has an overarching principal duty, and below that a set of specific statutory objectives
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Sometimes, when regulators are created by statute, certain Acts of Parliament confer a general duty, not just on the regulator, but on the relevant part of the Bill as a whole. The Climate Change Bill does this, as does the Sustainable Communities Act 2007, which states in Section 1:
That is the model followed in the amendment, although it takes the precedent of Ofcom and makes the overarching duty more detailed and specific.
The thought that lies behind my Amendment No. 4 is similar; it applies a single principal objective to the commission. It is the same idea that was adopted for the Food Standards Agency. If that formulation were adopted, it would be possible to set out below it a series of detailed aims similar to those in Amendment No. 1 and require the commission to adhere to those aims in the fulfilment of its principal objective.
Clearly there are various ways in which the end result could be achieved. I am not wedded to any one of them in particular, but we need to agree on one formula or another from the many available options.
Baroness Howarth of Breckland: I support the first amendment and will speak to Amendment No. 3, to which I have added my name.
What are the objectives of the Bill? Are they to improve regulation or reduce the number of regulators or are they an attempt to improve services or save money? Perhaps there is an element of all those in the Bill, but there was a lot of confusion at Second Reading, when a number of contributors seemed to believe that by putting the Bill together we would improve services per se. That is not necessarily so. It takes a great deal more to do that, as we have seen in relation to local authority services and the difficulties that occur in providing a continuous service in housing benefits and care services. In its present form, the Bill does not do that. However, if we have a set of objectives in the Bill that give a direction and sense of purpose to the commission, that may help the commission to promote and move forward regulation that enhances services. That is what is behind the amendment: promoting those services might move us forward.
I do not want to repeat what has been said, as the noble Earl, Lord Howe, has covered many of the points that I was going to make about comparisons
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The one point that I want to emphasise—it was an issue raised by the noble Baroness, Lady Barker, and others—is the great fear among the consumers of social care services that this will reduce standards in social care and that the health service will devour the currently sparse resources for social care. One has only to look at areas of clinical service in which acute services work alongside community services. Usually it is the acute services that devour the finances and the community services have to make do and mend. As for preventive services, we now have excellent services for the prevention of cancer, with women being screened regularly. However, if you are an old person needing a home help, you have to be in dire circumstances to have any hope of anyone crossing your threshold to assess you, never mind give you a service. There may be a duty to assess but there is no duty to provide the service. That is a very strange anomaly, but there you are. As a clinician, you can be held responsible if you fail to diagnose and treat someone who has crossed your threshold, but the situation is very different in relation to social care, where you can die behind your front door for lack of a service.
I can only repeat a point made by the Relatives and Residents Association, because those are the people whose voices should be heard. The association said:
“We are concerned that bringing together health and social care under a single regulatory system will mean that the interests of care homes residents and other users of social care services will be marginalised. We are concerned that lack of detail in the Bill”—
here it links into the two amendments—
- “means the new regulatory body, the Care Quality Commission, will be left to determine the details of the regime it will put in place and that social care will be overlooked”.
Time and again that concern arises.
Why do I feel so strongly about this? During the passage of a previous Children Bill, when the inspectorate for children was amalgamated with Ofsted, I raised the issue of the need to ensure that children’s services and the focus on children were highly maintained. I am sure that in certain areas that has happened, but I have personal experience of Ofsted-type inspections that do not—as with the Commission for Social Care Inspection—look holistically at the situation but have a checklist that gives a score. That does not enhance the atmosphere in which people are cared for. I think that is what we are looking for. Sometimes—Denise Platt has been heard to say this—it does not matter how many rooms you have in a home; what matters is what the atmosphere and the care feel like to the residents.
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That leads me to my last point. Unless we have objectives and principles in the Bill and the power to promote those objectives, the voices of those who are in these services will not be properly heard. My experience is both in the delivery of social care and as a recipient, on behalf of some of my service users and myself, of healthcare. One’s voice in and usage of both services are very different. In healthcare I sometimes get to fill in a questionnaire about what it was like—and I might even be asked by my doctor whether I thought that something that had happened to me was good or bad—but in social care there is an attempt to involve the users fully, to hear their voices and to involve them in inspections. This is to ensure that lay people who have experienced the services can tell about it at first hand. Having these principles in the Bill and the power to pursue the objectives will help in that. I support the amendment.
4.15 pm
Lord Patel of Bradford: I declare an interest as chairman of the Mental Health Act Commission. I was also a non-executive member of the Healthcare Commission for several of its first and formative years.
Amendment No. 1 establishes principles which will have important practical consequences. In particular, paragraphs (e) and (f) seek to ensure that the Care Quality Commission maintains a human rights perspective in its general monitoring of health and social care services, and that it does so specifically by protecting and promoting the rights of patients detained under the Mental Health Act or otherwise deprived of their liberty.
I anticipate that a counter argument against the proposal to set out these matters as explicit regulatory objectives is that surely the Care Quality Commission will be a public body and, as such, will be required to operate in accordance with the Human Rights Act, including when exercising the powers given to it for monitoring the use of psychiatric detention, and that adding these regulatory objectives would add little to the existing legal state of affairs were the Bill to pass unamended. However, I would guard against the assumption that public authorities will quietly comply with their Human Rights Act requirements without active monitoring and intervention.
The weakness of such an assumption became apparent to me last week when I was speaking to one of my Mental Health Act commissioners who had just come back from a visit to a secure ward where she had met 11 detained patients. The hospital detaining those patients had a duty to comply with both the Mental Health and Human Rights Acts. It had a duty, for example, to provide detained patients with information about their legal status, including their right to appeal against a decision. Nevertheless, the commissioner felt that at least eight of the 11 detained patients had little or no knowledge about their legal rights. Indeed, two of the patients did not even know that they were detained. Therefore, we cannot assume that services will comply with legal duties just because those duties exist.
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As many members of the Committee know, the duty to give information to detained patients has been on the statute book for nearly a quarter of a century, and yet the Mental Health Act Commission frequently finds that it is inadequately met by detaining authorities today. The only way to uncover such inadequacy is by going to the hospitals and meeting the patients directly. As I pointed out at the previous stage of the Bill, my worry is that the Care Quality Commission’s wide and complex task of regulating general health and social care services will leave insufficient emphasis on resources for exercising that methodology. The one most likely to be employed by the Care Quality Commission in its general task will be ill suited to the protection of detained patients. The Minister in another place has stated that he expects the Care Quality Commission to continue the approach of the MHAC in visiting hospitals and meeting detained patients. I welcome the amendment as a means by which the law will ensure that such an expectation is met without being overly prescriptive.
The amendment would also help the Government to fulfil their obligations as a signatory to the Optional Protocol to the Convention against Torture—or OPCAT, as it is known. The Government must sooner or later designate a “national preventive mechanism” of visits to detained patients to prevent their ill treatment. The Care Quality Commission, at least in so far as it takes over the role of the Mental Health Act Commission, will by necessity be a part of this mechanism.
The guidance for establishing national preventive mechanisms recommends that legislation should include a provision that states its purpose and incorporates the language of Article 1 of OPCAT. In particular, it should require that “regular” and “preventive” visiting is undertaken as a part of any monitoring system. The guidance is clear that such preventive visiting must be recognised as different in purpose and methodology from other types of inspection or visit, especially in being proactive rather than reactive. It is designed to stop abuses of patients, not to investigate such abuses after they have occurred.
Let us learn from experience. Fifty years ago, the Royal Commission, under Lord Percy of Newcastle, recommended the abolition of the independent visiting of mental hospitals on the grounds that those hospitals were now a ministerial responsibility and that their inspection should,
Then, it was seen to be anachronistic that there should be special arrangements for the inspection of mental hospitals by the Board of Control, which was the direct descendant of the Lunacy Commission, when other hospitals were subject to nothing more than informal visits by officers of the ministry.
After much consultation and correspondence, it was decided that the Board of Control should be abolished. For two decades from the end of the 1950s, no specialist visiting body was concerned with psychiatric detention. Within 10 or so years of that abolition, the first of a number of hospital scandals erupted. In 1969, there was an inquiry into patient abuse in Ely Hospital, Cardiff. After that came similar scandals at Farleigh in 1971, at Whittingham in 1972 and then a number more. Those inquiries provided part of the
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For these reasons, I hope that the Minister will support the principle of stating regulatory intentions at the start of the Bill and that he will look sympathetically at other means of ensuring that the Care Quality Commission gives adequate attention to its role in protecting the most vulnerable patients in the health and social care system throughout its existence.
Lord Sutherland of Houndwood: The role of regulators in our society has grown significantly during the past two decades, which has on the whole been helpful and positive. However, being a regulator is not easy. All sorts of questions arise, one of which is what is it that one is supposed to do and regulate. Another is: is one independent? Regulators are by and large appointed by the Government and owe their pay and rations to them, so when a judgment comes out suggesting that someone be criticised, a natural reaction is to say, “It’s the Government’s cat’s paw”, which is often very unfair.
However, it means that, for the job to be done properly, two things are essential, both of which are brought out for further discussion in Amendments Nos. 1 and 14. The first is to know what the job is: one must be sure that those who are regulated know what the objectives and purposes are, that those who are the beneficiaries of the services that are regulated equally know what the purposes of the regulator are, and that Parliament and government know exactly what to expect of regulators. That is the thrust of the first amendment. I support those who want to see more detailed clarification of the purpose and therefore of the objectives of the regulator, thereby avoiding the dangers of having to redesign the legislation in a year’s time. Only thus will we be able to assess whether the job is being done properly. Although it is very unlikely that we will redo this in 18 months’ time, the track record suggests that it is not impossible, so it would be good to know the criteria against which how the regulator does the job is assessed.
More specifically, in relation to Amendment No. 14, Clause 2(4) states:
“In performing its functions, the Commission must also have regard to such aspects of government policy as the Secretary of State may direct”.
That is ambiguous, loose and potentially dangerous. Even if it is not in fact dangerous, it will be thought to be by those who disagree with what the regulator pronounces at various times. Again, the danger is that the regulator will be thought to be working for political masters rather than with full independence.
I suggest, partly drawing on my experience with Ofsted, that there are at least two separate functions that should reasonably be put before a regulator in taking account of aspects of government policy. One is that a regulator regulates the implementation of that policy. That is perfectly proper; it is what, in part,
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That was sorted out in relation to Ofsted by identifying two distinct functions, rather than having a catch-all and ambiguous subsection of this sort. One was the role of the regulator in advising the Government on education policy. These are the people who will see the conditions in detail in GPs’ surgeries, hospitals, care homes and the provision of care in the home. They surely will have something to contribute to the correct and proper formulation of policy if it is to be evidence-based. We need to ensure—I do not think that the subsection does so—that there is a natural channel of communication for that advice to be given.
Equally, in the case of Ofsted, certainly in the early days, there was agreement that there would be so many service days, as a service level agreement, available from those who worked with the regulator to the appropriate government department to provide advice on specific points which the Minister might seek from the regulator, rather than reinventing the wheel by using external consultants who may not have the day-to-day, hands-on experience that good regulators will have.
For that reason, it is important that we find resolution on the objectives so that we are clear about the purpose. We should also clarify what I regard as an ambiguity in subsection (4) to ensure that the regulator is not only independent but is seen to be independent.
Baroness Masham of Ilton: If a regulator does not do its duty and leaves out some areas that it should be looking at, what will happen? Also, what will happen if there are not enough available trained people to fulfil the duties?
My name is attached to Amendment No. 4. I am sure that the noble Lord, Lord Darzi, knows better than most people in this Room how important safety and quality is. He may not know that some places are very substandard. To give an example, last night, I was telephoned to be told that a man with a new spinal lesion had been shunted between four different London hospitals. He was on a waiting list to be admitted to the spinal unit at Stoke Mandeville Hospital. He has at last been admitted but he has pressure sores and MRSA. In addition, at one of the London hospitals he had a plate put in his spine and it has been found that one of the screws holding it in place was screwed into a damaged vertebra. He now has to have another operation.
Something must be done to achieve high standards throughout the NHS and social care. It is vital that patients go to places where their problems are known and where they can be treated appropriately. I declare an interest as president of the Spinal Injuries Association. Lately, we have been hearing of more and more such cases because there is too much pressure on these specialised units and too many patients, many of whom are older, require treatment there. I hope that something can be done.
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4.30 pm
Lord Harris of Haringey: I suspect that this Committee is more or less at the stage where everything has been said but not everyone has as yet got round to saying it, so I shall try to be brief.
I bring to this matter my experience of trying to work with departments in local authorities that have merged and, in the very different field of policing, of trying to produce an integrated service across a range of different policing tasks. There must be clarity of purpose for this new body so that everyone engaged can refer back at regular intervals to what they are there to perform and what they are trying to achieve. The point was very well put that it is also helpful if the users of the ultimate service and those who are regulated are aware of that clarity of purpose.
Similarly, if seamlessness is to be achieved, it is important that those standards and purposes are applied to all the various sectors. That is what motivated me to table Amendments Nos. 12 and 13, although that is not to say that I disagree wholeheartedly with some of the other amendments. The Government need to be aware of the extraordinary strength of feeling that exists that the new regulator requires a clear set of objectives and a clear set of purposes; otherwise, it will not be able to succeed.
Unless the breadth of that responsibility is set out, the danger is that the regulator will in practice start to focus on narrow areas or will move from one area to another, depending on the public pressures that may have arisen in the immediate short term. Returning to the policing comparison—it may not be immediately apparent but there is a very clear comparison—when there are problems of serious or organised crime or terrorism, the police are urged to put all their resources into that area. When the consequence of that is that the rate of so-called low-level crime increases, the police are urged to put their resources into that, and the result is that they move from one extreme to the other. The real danger is that the new regulator will operate in the same way. There will be some appalling scandal in a social care establishment and social care will become the current issue, which may mean that acute care or community services are not looked at in the way that they should be. This should be done holistically, with a clear set of objectives and purposes.
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