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I think that, by what is both included and excluded in this subsection, we are missing out key data and key parts of the whole process of establishing what is needed in social care. If the commission is set up under the existing wording, it will be deeply flawed and will have enormous difficulty in making some kind of strategic sense of social care across the piece. At this stage, I beg leave to withdraw the amendment, but I give notice that I shall probably have to return to both these issues.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

4.30 pm

Lord Warner moved Amendment No. 32:



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The noble Lord said: This is a probing amendment aimed at future-proofing the scope of the new commission and enabling it to take on new functions in an orderly way. There has been a good deal of discussion about the scope of the commission’s remit, and I do not intend to go over that in great detail, but certainly this afternoon’s discussion suggests that there is some uncertainty about the precise scope of the commission. We are getting into a tangle about what is provided for in legislation and what is provided for in a consultation document that is still out for consultation with no firm decisions having been taken. We are being asked to take quite a lot on trust in that area.

The other point that I want to make is that the dividing line between clinical services and cosmetic services is becoming increasingly blurred, especially in areas such as dentistry. When is something clinically necessary and when is it cosmetically preferred? The only thing that seems to be certain is that in the future the range of technologies and treatments and the places where they are located are likely to change and, in some cases, are likely to be very different from what we know now. That is not a subtle plug for polyclinics or anything else; it is just a statement of the way in which technologies and treatments are, in reality, changing. It is also likely that new professionals will appear and that they will be in new groupings in new types of facilities.

In those circumstances, I think that there is a case in any risk-based regulatory system to start from a different position from that in the Bill. The amendment would put the onus on the Secretary of State to show that there is insufficient risk for particular activities to be regulated in subordinate legislation; otherwise, all services will be included in the health sector. This is what the first part of Amendment No. 32 would do.

The second part addresses some of the concerns about the Bill expressed at earlier Committee sittings; namely, that the new commission may be swamped by new functions and activities in relation to the resources available to it. I have therefore provided for time-limited exclusions for the commission where that can be shown to be appropriate. That seems to me a practical and sensible way to proceed.

I recognise that we may be too far down the track for the first part of the amendment to have much appeal to the Government. Therefore, I shall be neither peeved nor surprised if I get a fairly friendly but dusty response to it. However, I should like to hear my noble friend’s arguments in a little more depth than she has been able to give so far about how the legislation will be future-proofed and whether we can really be certain that it is likely that the legislation, as currently drafted, will be able to cope with a range of new services that may cause concern. Cosmetic surgery is a good example of where, in the past, we have struggled to keep up with potential damage in the regulatory system.

On the second part of the amendment, I should like to know how the Government will ensure that the commission is suitably placed to take on its new functions without a provision of the kind that I have provided for. I beg to move.



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Baroness Thornton: My noble friend Lord Warner and the noble Baroness, Lady Murphy, are fundamentally in the same position of aiming for proportionate regulation that minimises the burden on providers. Clause 4 enables the Secretary of State to make regulations that list the activities that need to be registered with the commission. As the Committee will be aware, we recently started a three-month consultation on the registration of health and adult social care providers, which includes our proposals for the list of health and adult social care services that we believe should be within the scope of registration.

While I agree with my noble friend that some activities will pose a sufficiently low risk to exclude them from regulation, we do not believe that the best way of ensuring this is by negative resolution. We want to ensure that there is maximum engagement and scrutiny in developing the registration system. We therefore propose that affirmative procedures should apply to the regulations that determine the activities that will be regulated by the commission, both the first time that they are made and any time that they are changed.

Given the impact on services to be brought into or removed from the scope of registration, it is our intention that any change to the regulations would also be subject to public consultation. The removal of activities from the list of regulated activities is a serious matter and noble Lords and Members in the other place would wish there to be parliamentary oversight and debate of these decisions. Indeed, the Delegated Powers Committee took into account the fact that the affirmative procedure will apply to these regulations; in its judgment, this broad delegation was appropriate.

Even within the scope of registration, the new commission will take a proportionate approach to regulation. This means that it will inspect some activities more than others, depending on the relative risk of carrying on those activities. We recognise that the list of regulated activities will need to be revised from time to time as new ways of delivering services are developed, as new techniques that make activities less risky are developed or, indeed, as my noble friend mentioned, as other activities are taken within the scope of the commission’s work. This might mean that an activity can be removed from the list of activities requiring registration. That is precisely why the list is to be defined in secondary legislation as opposed to being on the face of the Bill.

I hope that I have made sufficiently clear the reasons why the amendment is not necessary and that my noble friend will feel at least relatively satisfied and withdraw his amendment.

Lord Warner: My noble friend will be pleased to know that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [“Health or social care]:

[Amendment No. 33 not moved.]

Earl Howe moved Amendment No. 34:



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The noble Earl said: I shall speak also to Amendment No. 35. These two amendments can be dealt with quite quickly. The first amendment seeks to clarify what is meant by the term “health care” and again picks up a concern expressed by Anna Walker in her evidence to the Public Bill Committee in another place on 8 January, when she said:

Anna Walker was principally talking about the registration requirements, which are covered a little later in the Bill; Amendment No. 74 in the name of the noble Baroness, Lady Barker, is relevant in this context. But reading Anna Walker’s remarks made me wonder whether the term “health care” in Clause 5 needed to be fleshed out. Maintaining and promoting good health, whether for particular NHS patients or particular residents of care homes, or as part of a wider and more general public health programme, are surely as important as the treatment of a person’s illness. Public health programmes are as much about protecting people from the risk of harm in the future as they are about rectifying actual illness, but “health care” is normally taken to denote the latter rather than the former. The whole concept of patient-centred care is predicated on the importance of improving not only treatment but also well-being. I was heartened to read the department’s consultation document on the framework for the registration of health and adult social care providers, which has much in it that is focused on outcomes and outcome measures rather than merely on process. That is excellent.

The other aspect of this is Derek Wanless’s “fully engaged scenario”. The health of the nation is not going to improve unless to a great extent we all take greater responsibility for our own health than we have before. Part of the function of the NHS is to promote the right messages to enable that to happen. It is not clear to me whether that kind of activity needs to be explicitly allowed for, if only to remind the commission that it must be. I shall be glad to hear the Minister’s comments.

My second amendment is intended to make certain that the definition of “social care” does not inadvertently include informal care. It would be unfortunate if it did because, while we envisage the CQC having a role in the regulation of domiciliary care provided by professionally qualified and paid people, it would not be appropriate for it to monitor or assess care given informally and free of charge by friends and family. I hope that the Minister will be able to reassure me on that point. I beg to move.

Baroness Cumberlege: I support my noble friend on these amendments. In my experience, health promotion is a tricky area for Governments. First, it is extremely boring. The messages are dull: a full and varied diet, lots of painful exercise, keep chaste, drink in moderation, do not overeat—or, as a businessman told me the other day, it is a question of infinite supply with limited demand. It is not too much of this and not too much of that—moderation in all things. Boring. Really,

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deeply boring. Secondly, people do not like to be told what to do by authority, particularly when the authority happens to be the Government. Thirdly, Governments are reticent; they are fearful of being dubbed the “nanny state”. Fourthly, it is difficult to change people’s behaviours and to maintain that change. Lastly, Governments are of course short term, with a maximum of five years, while health promotion is long term, often requiring a generation.

I speak with some passion about this subject because when I was Minister I was responsible for a government policy called The Health of the Nation. It was a delight. It was the one area in my portfolio other than maternity that was not about pain, suffering and death; it was full of razzmatazz and encouraging people to live a healthy life and do some things that they did not really want to do. That policy was interesting—it was cited by the WHO as a model for other countries to follow. When I went to international conferences, I was proud of it.

When the new Labour Government took over their responsibilities, they decided not to adopt The Health of the Nation. A few years later they had their own promotion strategy, Our Healthier Nation. It covered much of the same ground, but not sexual health. Quite a lot of momentum was lost and we are seeing an increase in sexually transmitted diseases; indeed, between 1997 and 2005 the number of diagnosed cases of HIV increased from 2,700 to almost 7,500 and chlamydia increased by more than 300 per cent.

I do not want to be negative, however. Some progress has certainly been made. It is hugely encouraging that since 1995 we have seen premature deaths from heart disease fall by over 40 per cent and premature deaths from cancer cut by nearly 20 per cent. Since 1986, life expectancy for men has increased by almost five years and for women by more than three years. So far, so good, but in other areas the nation’s health is getting worse. As we know, obesity is a real problem; it is on the increase and is a condition linked with a whole range of diseases. The proportion of men classified as obese has risen from 13 per cent to more than 22 per cent in the past 12 years. In women, the rate has gone up from 16 per cent to 24.3 per cent, or just under a quarter of the population. I fear that we are becoming the lard bucket of Europe.

4.45 pm

The number of alcohol-related deaths has almost doubled in the past 13 years and the number of alcohol-related admissions to hospital has risen by more than 80 per cent. That is a huge toll and a huge expense for our acute services. We know that binge drinking among young people has become fashionable. Young people are more likely than any other group to drink more than twice the recommended amount. This excessive drinking is more common in highly deprived areas, where the death rate is about 45 per cent higher than in other areas. People from the most deprived areas live at least five years less long than those from the most well off areas and spend a greater proportion of their lives in poor health. This inequality in length of life and good health is distressing and shameful and has to be tackled.



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Sir Derek Wanless, Securing Our Future Health: Taking a Long-Term View, which, incidentally, was commissioned by the King’s Fund, not the Government, and clearly pointed out that unless we embrace his third scenario, with the population becoming fully engaged in looking after its own health, the NHS is in danger of collapsing under the burden of ill health. Sir Derek states:

He goes on to say:

This is where the new Care Quality Commission comes in.

PCTs are one of the agencies that are tasked with promoting good health, but we know that it is not high on their agenda. In its 2007 report, State of Healthcare, the Healthcare Commission cites a mixed picture both of commissioning and delivery of services by PCTs, especially in relation to preventing illness. The commission assessed, as part of a pilot study, PCTs on a development standard for public health. It was a voluntary self-assessment scheme and of those that reported more than half described their progress only as fair. The Healthcare Commission is the only regulatory body in the world that has responsibility for the promotion of health enshrined in law and yet this responsibility is left out of the Bill. If we do not include this amendment, we will be taking a serious backward step. We need a champion for this cause and we need a regulator that has a duty to monitor the progress of PCTs in what I admit is a very difficult area.

Lord Warner: I certainly do not share the noble Baroness’s view on the Government’s track record on public health and health promotion, but I have a good deal of sympathy for Amendment No. 34, which is rather more elegant than my Amendment No. 33, as is often the case with the drafting of the noble Earl, Lord Howe. It tries to get to the same point as Amendment No. 33 and therefore I have a good deal of sympathy and support for it.

Baroness Howe of Idlicote: I very much support the amendment. I would have thought that this was, far from being boring for Governments, extremely encouraging to them. Although it may be normal practice to get rid of something when you come to office and then perhaps reinvent it slightly differently at a later stage, the fact that you will save money if you act early and get the message across to people is to be highly recommended. I would have thought that there should be no difficulty whatever in the Government accepting the amendment. I hope that they will.

Baroness Barker: My name is not attached to these amendments, but I have a great deal of sympathy for them. I say to the noble Baroness, Lady Cumberlege,

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that health promotion can be deadly boring, principally when it is carried out by the NHS. When it is done by other people, it is somehow emancipated and in my experience it can be good fun, particularly when it is carried out by voluntary organisations. The same applies to social care, a great deal of which is preventive, although it may be of preventive value simply in preventing people who have a problem from becoming worse and enabling them to maintain their level of social and personal functioning.

The question to which I want to return is: who does health promotion and on what terms? In my previous job, I sat down with a bunch of voluntary organisations to try to work out some output and impact measures for their health promotion schemes. The example that I was most profoundly affected by was the person who had been given £4,000 and six months in which to achieve a healthy outcome for an ageing population. Strangely, she did not manage to. The way in which PCTs deal with voluntary organisations on health promotion is one of the most unrealistic things that I have come across. That is because voluntary organisations get the fag end of budgets at the end of the year. That is the truth.

The noble Earl, Lord Howe, was right about my Amendment No. 74. It is precisely because health promotion and prevention must be longitudinal that they are so important. The further one moves away from acute interventions, the more difficult they become to measure; one is dependent on population and international studies. It is extremely difficult for any organisation to receive funding for health promotion when all the time it is being asked to prove that by its intervention something will not happen. That is often what goes on in health promotion. That is almost as difficult as—dare I say?—persuading the world that you do not have weapons of mass destruction when you do not have them. You cannot show them if you do not have them.

That is why the noble Baroness and the noble Earl are right to site this responsibility with the Healthcare Commission. It is the one strategic body that might just have a hope of ensuring that health promotion activities are not carried out in an ad hoc and piecemeal way and that we eventually begin to get some of the data that would back up the arguments that Sir Derek Wanless made in his report.

Finally, I entirely understand what the noble Earl is trying to do in Amendment No. 35, in which he mentions “commercial terms”. A great deal of social care is provided not on commercial terms but by voluntary organisations, which subsidise it enormously. I understand what he is trying to say, although it is an unfortunate way of saying it. If he could come up with a better phraseology to encapsulate what he means, that would do everyone a great service.

Baroness Thornton: For the purposes of Chapter 2, Clause 5 effectively sets the outer boundary for the kinds of activities that could be included as regulated activities in regulations under Clause 4. The definitions have been framed deliberately widely to allow scope in the future for new models of provision to be added to the list of activities regulated by Clause 4. I have a great deal of sympathy with this discussion on public

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health and I should like to give some examples of public health activities that might be registered and those that might be considered as part of a review.

The definition of “health care” in Clause 5 explicitly includes all forms of healthcare provided to individuals. Any public health services that provide healthcare to individuals could therefore fall within the scope of registration under Chapter 2 and might include, for example, a smoking cessation clinic or sexual health clinic. It seems appropriate for the Bill to allow for the possibility of providers of these services to be registered in the same way as providers of other sorts of healthcare. Therefore, although public health campaigns do not fall within this definition, we believe that it is important for the commission to be able to look at public health campaigns generally in respect of its other functions. For example, if a PCT runs a public health campaign, the commission should be able to consider that in its assessment of how well the PCT is meeting the needs of the local population. That is why Clause 92 clarifies that, although these kinds of activities do not fall within the definition of healthcare for the purpose of Chapter 2 only, they will fall within the definition for the purposes of reviews, special reviews, investigations and so on, thus, it is hoped, helping to remedy the “lard pot” issues outlined by the noble Baroness, Lady Cumberlege.

I hope that my explanation has gone some way towards satisfying the noble Earl and the noble Baronesses that public health services are already included within the remit of the Care Quality Commission to the right and appropriate extent.


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