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I do not want to carry out a course 100 seminar on commissioning and contracting, but what I mean by “commissioning” is starting with a local needs-based assessment, specifying what services actually have to be put in place to meet those needs and contracting for those, and deciding at the end of the day to turf a contractor out when it persistently declines to provide the services of the quality, and at the price, that it has agreed. To my mind, contracting is a narrower concept than commissioning, but commissioning ultimately embraces contracting.

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Baroness Thornton: These amendments, which were tabled by my noble friend Lord Warner, the noble Earl, Lord Howe, and the noble Baronesses, Lady Cumberlege and Lady Murphy, rightly probe whether particular functions of the commission will apply to the commissioning of health and adult social care services. This is one of the most important discussions that the Committee will have had. Although we have tended to focus on PCTs in this debate, it is worth noting that some of the amendments would also affect commissioners of social care, making the issues considerably more complicated, as the noble Baroness, Lady Barker, pointed out.

Amendments Nos. 29, 33 and 36 would amend Clauses 4 and 5, which set out the definitions of various terms for registration purposes. Noble Lords will be aware that regulations under Clause 4 will set out the activities that will require registration with the new commission. Clause 4 makes it clear that these activities must involve or be connected with the provision of health or adult social care. Clause 5 defines health and adult social care; it is intended to be framed broadly enough to include not just those services that we know need to be covered, but those that could potentially be included in the future. Amendments Nos. 29, 33, and 36 would ensure that these definitions encompassed commissioning.

I understand noble Lords’ concerns, but I am equally concerned that such amendments would create duplication and a burden on the system. NHS commissioners are

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held to account and are performance managed by strategic health authorities through the Secretary of State; they are accountable for ensuring that concerns about poor performance at the operational level in PCTs are addressed effectively.

I think that we all agree that commissioning assurance is important. SHAs have the primary role for commissioner assurance in the NHS and have been working hard to build commissioning capacity locally, as noble Lords have mentioned. The commissioning assurance system, which is part of the World Class Commissioning programme, will help to deliver improved commissioning through strengthening the SHAs’ roles.

The Care Quality Commission will also play a vital role by publishing independent comparative information on the performance of commissioners for public accountability purposes. We will expect PCT commissioners and SHAs to take account of this information in determining how they can provide a better service to their population. It is clear that a service failing is sometimes a system-wide failing, not just a failing by an individual organisation. It is quite right that, in reviewing the outcomes that are being achieved through periodic reviews, or when conducting a special review or investigation, the CQC should look across the whole system, including at the effectiveness of the commissioning process. Ultimately, it will be for SHAs to address concerns and ensure that improvement plans are put in place if PCTs are not commissioning effectively.

My noble friend Lord Warner mentioned the potential scope of the CQC regarding gene therapy. There is no reason why that could not be covered by the definition in Clause 5, but I am happy to take the issue away and check that with lawyers. The consultation will define which services will need to be registered.

On the question raised by the noble Baroness, Lady Cumberlege—and I thank her for the notice that she gave me—PCTs clearly have an important job and it is for local commissioners to review their provision of community services and to consider how they should be provided. There is a range of options that PCTs can consider, including the provision remaining with the PCT, with the appropriate governance arrangements in place. The options include social enterprise, general practice, care trusts, NHS FTs, third-sector providers, partnerships with local government and other options centred on service delivery, including vertical integration and joint ventures.

PCTs ensure that community services are locally driven and offer a real opportunity for working closely with clinicians and partners to ensure that the best innovative care pathways across health and social care are developed to ensure seamless care for patients across the community. PCTs will want to consider a number of drivers when reviewing provision of services, such as improved quality, improved efficiency and ensuring that they are fit for purpose to take forward shifting care closer to home.

The 2008-09 operating framework states that, during 2008-09, all PCTs should review their requirements for community services and use this process to consider all the options for models and provision. While this is being undertaken—from 1 April 2008—all PCTs should

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create an internal separation of their operational provider services, business and financial rules as applied to other providers. The reviews support World Class Commissioning and ensure at least internal separation of PCT provision to help PCTs to focus on World Class Commissioning and ensure transparency in decision-making.

The CQC has a role but it is one player in the broader system and we need to ensure that we do not unnecessarily create another layer of accountability or duplication. The registration system has been designed to apply to both health and adult social care providers across the sectors to ensure that the services provided to the public are safe and of acceptable quality. A registration system for providers is right and we are consulting on this, but I do not believe at present that it is appropriate to extend that scope to commissioners when we have existing mechanisms such as the Secretary of State and SHAs to address issues of failure.

I turn now to the various amendments, which, I believe, are based on differences in interpretation. Amendments Nos. 73, 84, 85, 86, 91, 98 and 103 would ensure that the Care Quality Commission could look at PCT commissioning in its periodic reviews under Clause 42, its special reviews and investigations under Clause 44, its advice to the Secretary of State under Clause 49 and its inspections under Clause 56. As has been mentioned, these points were debated in Committee in the other place. We believe that the definitions of “health care” in Clause 5 and the provisions in Clauses 42, 44, 49 and 56, as drafted, already meet the intention behind the amendments.

Indeed, my honourable friend the Minister for Health, Ben Bradshaw, stressed that we agree the commission must be able to look at commissioning in carrying out these functions. We have also provided reassurance on this point to the Healthcare Commission and amended the Explanatory Notes that accompany the Bill to make this clear. However, I am conscious that noble Lords are seeking clarification and I am prepared to look again at the drafting where the Bill refers to healthcare and the provision of healthcare to see what can be done.

Finally, on Amendment No. 69, it is not our intention to set standards on the commissioning process. We have already set out the guidelines that we are publishing as part of the assurance system towards achieving World Class Commissioning. There is therefore no sense in duplicating this work. Standards under Clause 41 will be quality improvement tools aimed at NHS healthcare providers, whether in the public sector or private sector. We will provide commissioners and patients with additional information to help them to compare the quality of service between providers. Indeed, Clause 133 places a duty on PCT commissioners to take the standards into account in fulfilling their duty of improvement under that clause. They will also provide clinicians, other health professionals and NHS managers with a method of measuring how they are currently performing and a definitive level of quality at which to aim.

To clarify the situation for the Committee, at present I am resisting Amendments Nos. 29, 33, 36 and 69 and I propose to consider Amendments Nos. 73, 84, 85,

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86, 91, 98 and 103. With this clarification, and with my undertaking to look at the definition of commissioning, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Warner: I am grateful to my noble friend for at least a little more than half a loaf in this area; indeed, it would be churlish of me not to recognise that I have about two-thirds of a loaf. However—there is always a “however”—there is a real issue about Amendment No. 29. What did the Government mean in the consultation document of November 2006 and, perhaps more significantly, in the Secretary of State’s response in October 2007, where he clearly shows in the diagram that I mentioned that there is a shared responsibility between strategic health authorities and the independent regulator? I find it difficult to believe that, for the regulator, that shared responsibility goes only as far as drawing public attention to concerns that it may have in an area such as commissioning. However, as I understand what my noble friend is saying, that amounts to the Government’s position. I cannot see how that position is sustainable if, in any part of the country, after the persistent failure—the noble Baroness, Lady Murphy, mentioned a particular case—of a PCT or collection of PCTs and their associate SHA, the regulator is unable to take more direct action than simply drawing the attention of the Secretary of State or the public to the matter.

I will look carefully at what my noble friend and other noble Lords have said and think further about Amendment No. 29, but I cannot at this point guarantee that I will not bring an amendment back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker moved Amendment No. 30:

“( ) the assessment of social care needs under the National Health Service and Community Care Act 1990 (c. 19);”

The noble Baroness said: The amendment to some extent carries on the argument that was being tested with the previous set of amendments in that it would introduce into Clause 4 the assessment of social care needs as a regulated activity. The noble Lord, Lord Warner, made the case that it is not possible to come to an informed judgment about the quality of service provision if one does not know what the commissioning process has shown up. Equally in social care, it is impossible to come to a judgment about the quality of services if one does not know the needs of the population.

As I said at Second Reading, the assessment of social care needs is problematic. The right to have one’s needs assessed is one of the few rights that people who need social care have. They do not have entitlement to receive services in the way in which people who require health services do, but they have a right to an assessment. That assessment should indicate to them what their needs are and how those needs should be addressed. Increasingly, those needs are met not by local authorities but by the individuals themselves. Indeed, as individual budgets are rolled out, those needs will increasingly be met by other arrangements.

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What form an assessment should take is the subject of an interesting debate in the social care field. In relation to learning disabilities and adult social care, there is a growing belief that there should be only self-assessment. However, for other groups, most notably older people, there is a strong and informed body of opinion that assistance or the right to an independent assessment is an important part of the process of ensuring that people get what they require.

At Second Reading, I mentioned my concerns that a number of local authorities are starting to abandon the assessment process or, more likely, are engaged in the absolute minimum of assessment, with a process that consists of an initial question, “Do you have £21,000 or other capital?”. If the answer is yes, you are handed a list of approved suppliers. That is increasingly what is happening. I do not believe that that is an adequate way in which to determine the needs of individuals. Moreover, I believe that it is damaging in the longer term, as it means that our overall understanding of social care needs across populations is decreased. I believe, therefore, that there is a case to be made for ensuring that assessment of needs is a regulated service.

Amendment No. 31 is slightly different. Noble Lords will have worked out that it is a probing amendment. Clause 4(3) states that the CQC will be responsible for addressing,

I am intrigued by the word “supply”. The supply of staff within the NHS is a subject about which noble Lords know a great deal. We have discussed it endlessly in the past two years as the debacle of MTAS has unfolded. I do not wish to spend a great deal of time focusing on NHS staff, not least because we have had the recent proposals of the Tooke report for an NHS board for medical education in England and the changes to the Postgraduate Medical Education and Training Board and the GMC.

How do the Government believe that the CQC will be in a position to address the issue of supply of social care staff if it is not responsible for the assessment of social care need at the same time? It is an incomplete proposal that would leave members of the CQC shooting in the dark. That is the thrust of these amendments. I beg to move.

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Baroness Murphy: I support the amendments with a pessimistic heart, given the reception for the previous group of amendments. I support the noble Baroness particularly on Amendment No. 30, because in many cases local authorities have shut up shop and gone home when it comes to assessing the needs of older people who are, for example, returning home from hospital. Providing a list of private care services is about all that they do. I have experienced that personally.

If we are to hold local authorities to be ultimately accountable for the quality of social care that they deliver in the local area, so that we have some ability to take them to task when someone is not getting an assessment or is getting an inappropriate assessment, the Care Quality Commission should be able to look

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at the decisions that have been made locally that have allowed such circumstances to arise. The amendment is, therefore, attractive.

Lord Warner: I had not intended to speak on the amendment, but I am so peeved at some of the Government’s reaction on the previous amendment that I want to draw a parallel between this amendment and Amendment No. 29. I want to return to the issue of a risk-based regulatory system. If we are running such a system, it is no good concentrating just on the provider side of the equation. You can do more damage to people in a community if you fail to assess them or you fail to assess the total need for services in that area. That is a greater risk than the failure of individual providers. We really need to get this point across. It is that failure that presents a great risk to individuals living in a community. We will do only half the job if we are to regulate, in considerable detail, the quality of the providers but then say that the assessment of needs is down to the SHAs and the Secretary of State, or the local authority and the Secretary of State, whether it is to do with an individual or a community.

We have to do better than that if we are trying to put a piece of legislation in place for the future regulation of social care and healthcare. I ask the Minister to go back to her colleagues and think seriously about this, because we cannot just leave it to SHAs. As I see it, that was never the intention in the Secretary of State’s response to the original consultation document.

Baroness Thornton: Needs assessments are of course a very important part of the process of ensuring that patients and service users receive the services that they need. As was discussed in Committee in the other place, Clause 4(2) states that an activity may be a regulated activity if it involves or is connected with the provision of health or social care. Needs assessments may therefore already be prescribed as regulated activities, as they are connected with the provision of health and social care. Indeed, our suggested first registration requirement in the current consultation document—noble Lords will by now be well aware of it, as I mention it fairly regularly, if not in every speech—would specifically require that registered providers ensure that people have their health and/or social care needs assessed. I hope that that answers part of the point that the noble Baroness, Lady Murphy, was making. Amendment No. 30 therefore seems to duplicate what the Bill already allows.

This issue was discussed at some length in Committee in the other place on 15 January 2008. After the clarification given by my honourable friend Ben Bradshaw that needs assessments are within the potential scope of registration with the new commission, a similar amendment was withdrawn.

I am sorry that my noble friend is peeved with the Government. We have agreed to take away some of his amendments and consider them and I expect that, in the next month, we will be having discussions across the Committee about how we might reach a satisfactory conclusion.

Amendment No. 31 would remove the clarification that regulated activities can include the supply of staff who provide care. That question, raised by the noble

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Baroness, Lady Barker, is a legitimate one. Such services would include, for example, those agencies that provide domiciliary care staff, which are registered with CSCI under the Care Standards Act 2000. Clause 4 is drafted widely, as we are consulting on the exact activities that will be within the scope of regulation. We have therefore included the supply of staff who provide or are connected with the provision of health or social care, to allow us to consult on which activities should be regulated. As set out in our ongoing consultation, we had envisaged that most care services currently required to be registered with the Healthcare Commission and CSCI would continue to be covered by registration with the new Care Quality Commission. In any system there is a need to draw a boundary, but we believe that the definitions of health and social care that are contained in the Bill set a sufficiently wide boundary to work within to allow for flexibility for future models of social care. With that clarification, I hope that the noble Baroness will now be content to withdraw the amendment.

Lord Warner: I promise not to express being peeved again. If I have understood the Minister correctly, she is saying that the assessment of needs in social care is a regulated activity but that the assessment of needs of the collectivity of a community is not. Can we be clear about the position?

Baroness Thornton: The draft registration requirement, which I quoted to the Committee, is to ensure that people have their health or social care needs assessed. It states that it may be a registration requirement—the document is out for consultation. In the previous debate, I made it clear that the scope for the periodic reviews, special reviews and investigations included in the Bill could, if the commission so required, include the broader scope of whether the needs were being met in a particular area with particular requirements.

Lord Warner: I am sorry to be persistent on this, but this is a critical issue for the Committee. Is my noble friend saying that it will be down to the commission, not the legislation, to decide whether assessment of need is included in those activities, so that there will not be a requirement on the commission to consider assessment of need as a regulated activity either individually or collectively across a community?

Baroness Thornton: I am not sure that we are not going round in circles here. At the moment, the first registration requirement in the consultation document is to ensure that people have their health or social care needs assessed. That is the first requirement. It does not address the wider issue of whether a whole area is covered. That is not what this part of the registration requirements is about. I may need to consider the question and come back to my noble friend, because we are clearly talking at cross-purposes; I may not be understanding exactly what he is asking me and therefore may not be answering it adequately for him. I hope that I can remedy that.

Baroness Barker: I thank all noble Lords for participating in our discussion. I merely put it on record that I intend the noble Lord, Lord Warner, to be wound up to an absolute fury by the end.

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This is a small, technical but very important amendment. The noble Lord, Lord Warner, and I were both arguing two things: that assessment of individual needs must take place and be a regulated activity; and, from that, that the commission needs to be capable of assessing population needs across the piece and communicating it to Ministers.

I must take issue with one thing that the noble Baroness said. She said that it would be the responsibility of providers to ensure that assessment of needs happened. We know that assessment is not happening today. Local authorities are simply not carrying out assessments of people’s social care needs. Why? Because they know that they cannot provide the service and what is the point of assessing something that you know you cannot meet? That becomes a self-fulfilling prophecy. We then, across the board and individually, have false presentation of the level of social care need. That is the central issue that we need to deal with and I will return to it.

On the issue of staff, I assure the noble Baroness that I have read the regulations. It was precisely because I read the draft regulations that I tabled the amendment. On page 75, the examples of what would not need to be registered with the CQC include private arrangements between individuals, such as personal care carried out by family or friends—I understand that point. However, also not to be registered is the provision of personal care by a personal assistant engaged and directed by the person receiving their support, whether self-funding or using direct payments and/or individual budgets to fund the arrangement. That will be the majority of social care provision in many places in future. So at the same time as not considering the assessment process, we are narrowing down the scope of what has to be considered in terms of provision. Increasingly, people will be given individual budgets. In a sense, I am saying that, unless we retain our focus on the medical services in the NHS, to a large extent the provision in this amendment will become increasingly meaningless.

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