Previous Section Back to Table of Contents Lords Hansard Home Page

12 May 2008 : Column GC207

12 May 2008 : Column GC207

Grand Committee

Monday, 12 May 2008.

The Committee met at half-past three.

[The Deputy Chairman of Committees (Lord Colwyn) in the Chair.]

Health and Social Care Bill

(Fifth Day)

The Deputy Chairman of Committees (Lord Colwyn): I remind Members of the Committee that if there is a Division in the Chamber, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 25 [Warning notice]:

Baroness Thornton moved Amendment No. 57:

The noble Baroness said: I shall also speak to a number of other minor and consequential amendments —Amendments Nos. 105, 114, 115, 116, 116A and 219C.

I begin with government Amendments Nos. 105 and 114, which have been agreed with our colleagues in the Welsh Assembly Government. Amendment No. 105 is an amendment to Clause 65, which requires the commission and the Welsh Ministers to co-operate with one another in order to carry out their respective functions efficiently and effectively. Effective co-operation may require information-sharing; one example might be where a patient receiving treatment under the Mental Health Act moves across the border from England to Wales. Under the responsibilities of the commission and the Welsh Ministers to appoint second opinion appointed doctors, one may need to alert the other to an existing certificate provided by such a doctor authorising a patient’s treatment. Amendment No.105 therefore enables this exchange of information.

Section 143 of the Health and Social Care (Community Health and Standards) Act 2003 allows the Welsh Ministers to use information gathered in connection with the exercise of a particular function for the purposes of the exercise of other functions. For example, information obtained by Welsh Ministers in assessing a registered care home might also be used by them in considering the appropriateness of a local authority’s actions in determining whether people should be placed in that care home.

Amendment No. 114 is designed to expand the list of specific functions exercised by the Welsh Ministers to which this power to use information will apply to cover new functions they are being given. These include the functions the Mental Health Act Commission currently has in Wales, which are being transferred to the Welsh Ministers, and the functions that are to be given to the Welsh Ministers under the

12 May 2008 : Column GC208

Mental Capacity Act 2005 relating to monitoring the application of the new deprivation of liberty safeguards.

The remaining amendments in this group—Amendments Nos. 57, 115, 116, 116A and 219C—are minor, technical amendments to a drafting error in Clause 25, to the Local Government Act 1999, to the Regulation of Investigatory Powers Act 2000 and to the Freedom of Information Act 2000. I beg to move.

On Question, amendment agreed to.

Earl Howe moved Amendment No. 57A:

The noble Earl said: Clause 25(4) contains what appears to be a surprising provision. Where a provider complies with a warning notice, the regulator cannot use this as a ground for cancellation, suspension of registration, the imposition of a new condition or the variation or removal of any condition of registration. Why does the Minister believe that in certain circumstances that would not prejudice effective enforcement action? Let us suppose that a provider is served with a warning notice for failing to comply with a particular requirement and then rectifies the failure within a specified time period. In that event, the relevant failure could not be used as part of any grounds for a subsequent cancellation or suspension of registration. Those providers who do just enough to comply with warning notices will be in a stronger position to avoid regulatory action than those who are not served with such notices. That surely cannot be fair.

It could mean—as happened, for example, in the notorious Longcare case—that relevant information is available but is not made known to the regulator. The issue at stake is the provider’s suitability to remain registered, but it is not difficult to imagine circumstances where it would be difficult or impossible for the regulator to obtain a full picture on which to base that assessment. It would amount to a breach of the Soham principle, which is to build up a picture of someone’s previous conduct and attitude in relation to vulnerable individuals.

By the opposite token, if the rules of evidence are constrained in this way, it may act as a spur to the regulator to take more serious enforcement action against a provider without first issuing a warning notice. One could imagine cases where such action was disproportionate. I should be grateful if the Minister could explain the thinking behind this part of the clause. I beg to move.

Baroness Thornton: I agree that the commission must be able to take robust, appropriate and timely action where services are failing. Warning notices under Clause 25 will be an important new sanction which might be appropriate for first-time or minor breaches of regulatory requirements. The issuing of a notice should encourage a provider to change their behaviour to comply with requirements. In the expectation that they will do so, Clause 25 allows warning notices to specify a period in which to correct an issue. The commission will need to specify precisely the failure which concerns it, and which must be rectified within the timescale. If the problem has not been resolved after the period has expired, the commission will be

12 May 2008 : Column GC209

able to take stronger action if necessary. Allowing for this period will not, however, tie the hands of the commission. Subsection (4) does not prevent the commission taking further, stronger, repeat enforcement action, even within that specified period, if the situation deteriorates, or if the commission has a concern about a separate, more serious issue that arises and was not addressed in the warning notice. For instance, the commission may give an NHS trust or care home a warning notice in relation to poor infection control. If the situation deteriorates, or there is evidence of an additional breach, the commission would take further and immediate action.

Allowing service providers wherever possible the opportunity to address failings while they are still relatively minor seems to be an important part of encouraging improvement, as long as people who are using the services are protected from harm. The Bill allows the commission the freedom to respond appropriately to breaches of requirements of the registration system. As we will discuss over the next couple of groups of amendments, we have deliberately given the commission a more flexible range of enforcement powers than currently exist under the Care Standards Act 2000. This is in response to feedback, particularly from CSCI, and would enable much more effective regulation. The commission will be free to determine which powers are appropriate in a particular situation. The Bill also allows for sanctions to be imposed urgently if necessary. I hope that that addresses the issue raised by the noble Earl and that he will feel able to withdraw his amendment.

Earl Howe: I am grateful to the Minister for that reassuring explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 and 58A not moved.]

Clause 25, as amended, agreed to.

Clause 26 [Urgent procedure for cancellation]:

Baroness Cumberlege moved Amendment No. 59:

The noble Baroness said: The clause refers to the urgent procedure involved when an application has to be made to a justice of the peace to cancel a registration. It requires the justice to take into account the extent to which the commission has paid regard to the duties set out in Section 2(3)(c) and (d) of the Mental Health Act 1983, which refer to the commission’s activities being proportionate to the risks and the need to safeguard and promote the rights and welfare of children and vulnerable adults.

In effect, we are seeking to ensure that the JP is reminded that the decision is proportionate to the risks involved; that it is the last resort; and that it is essential to close the nursing or residential home, ward, clinic or hospital without further investigation.

12 May 2008 : Column GC210

Closing an establishment is a draconian measure and affects not only the resident or patient at risk but all the other residents or patients who share the facility and who may not be at risk.

I do not doubt that this measure is necessary. I know that CSCI has used it only nine times in the past year and, knowing the integrity of that organisation, I have no doubt that it was used appropriately. However, this vast new regulator, the Care Quality Commission, will have to have a depth of administration; we know that large organisations are much more difficult to manage and we do not know what level or quality of person will be involved in making these decisions.

For 12 years I was a JP and I remember being called in on a Saturday morning or late in the evening to sit alone and make immediate decisions on some very difficult cases. I was reliant on the information given to me by the police or other authority. The cases were presented as having no alternative. Later, reflecting on a case, I used to wonder whether other possible avenues had been explored. I would have welcomed a prompt to consider the wider issues or, in our context, for the clerk to remind me that I should be sure that a decision was proportionate and that action had been taken to accommodate the other residents or patients.

When I chaired the Brighton health authority we had a case of legionnaires’ disease in a ward which was part of a 20-storey block. It was a vast building with numerous wards and theatres, and an accident and emergency department. The chief executive telephoned me and suggested that we evacuate the 20 storeys as they shared the same air-conditioning system. I counselled that we should not panic and resisted the closure. Fortunately, it was contained within a single ward. This amendment is designed to resist the temptation to panic and to give a prompt to a JP sitting alone to ensure that a decision to deregister takes into account all the implications of an immediate closure.

I was delighted to learn that, when the shadow chairman of the CQC was questioned before the Health Select Committee last week on the closure of hospitals or hospital wards, she said that she could envisage situations where licences could be suspended or withdrawn as a very last resort. She said that it was important to remain proportionate, not to regulate blind, and to consider the consequences of such an action. She noted that she currently regulated Sellafield; closing it down might not be the best regulatory approach, but there were firm sanctions that could be taken against management to improve performance. I hope that the noble Baroness, Lady Young of Old Scone, will take a personal interest in making the decision to go to court for an immediate closure. I beg to move.

Baroness Thornton: It is crucial that the commission’s actions are proportionate and focus on the welfare and rights of those whom it is to protect, as Amendment No. 59 seeks to ensure for urgent cancellation. We agree, which is why those particular provisions in Clause 2 are there. Cancellation of registration is a last resort, where other options have not achieved compliance

12 May 2008 : Column GC211

with regulatory requirements and in those exceptional circumstances where there appears to be a serious risk to a person’s life, health or well-being. It will certainly not be undertaken lightly. As the noble Baroness, Lady Cumberlege, has said, it is a power to be used very sparingly and the message is “Don’t panic”.

In deciding to apply for urgent cancellation, Clause 2 already makes it explicit that the commission will have had to balance the risks to service users of cancellation—closing a care home, say—with the risks of allowing that service to continue. It will also need to provide appropriate evidence to the court for a decision to be made. Justices of the peace should make an order only on the basis of the evidence in front of them and on their judgment that the evidence indicates a serious risk to the life, health or welfare. They should not be forced to consider other matters at that stage. On that basis, I hope that the noble Baroness will agree to withdraw this amendment.

Baroness Cumberlege: I thank the Minister for that clear explanation. I am delighted to have it on the record so that if cases arise that are perhaps less proportionate than we would wish, we have some evidence of the action that should be taken. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clauses 27 and 28 agreed to.

Clause 29 [Failure to comply with conditions]:

3.45 pm

Earl Howe moved Amendment No. 60:

The noble Earl said: I shall speak also to Amendments Nos. 61, 62, 109A and 109B. In doing so I bring us to an issue of some importance which the proceedings in another place dealt with only in a rather fleeting and cursory way, and that is the issue of penalties. We see in Clauses 29 and 30 provision made for penalties: first, when a registered service provider or manager fails to abide by a condition of registration; and secondly, where a registered service provider or manager carries on a regulated activity despite the fact that a registration has been cancelled or suspended. In each case the penalty on conviction for an offence is a maximum of £50,000.

I have quite a problem with this, which the Minister may not necessarily recognise. There are cases where a fine, sometimes even quite a hefty one, is an appropriate penalty for someone running, say, a care home and who in some way or other has severely compromised the welfare of the residents. But if we imagine the case of an NHS trust, let us say a hospital, which is seriously falling short on hygiene standards, and that as a direct result patients have been harmed or have even died, I question whether it is appropriate to treat that matter as something to be dealt with only in a magistrates’ court. The range of culpability that these offences might cover is quite considerable, of course, but at the worst extreme we could be talking about very serious negligence on the

12 May 2008 : Column GC212

part of a hospital manager or a care home owner. In my view, the options open to the authorities in a serious case of this sort should include not just a fine, but also a prison sentence, in which case, depending on the circumstances, it could be thought appropriate for the Crown Court to deal with the case.

There is another aspect to this. It is manifestly pointless to fine an acute trust a sum of money for having committed an offence because, as a public body, the fine inevitably will be paid out of public funds. The sum will either be insignificant in the context of the budget, or it will be substantial. But I find it quite difficult to see whose interests will be served by a transfer of money from one public body to another, the net effect of which would be to disadvantage patients. I would be interested to hear the Minister’s view. Does she agree that in some cases a fine may not be a sufficient or appropriate sanction, and that is what is needed is a rather wider menu of options?

I turn to Amendments Nos. 109A and 109B, which I tabled in response to comments made by my noble friend Lord Goodlad arising out of the scrutiny of the Bill conducted by the Lords Select Committee on the Constitution. The point can be dealt with quite quickly, but it is very important. The committee questioned whether it was appropriate for the Bill to contain stand-alone civil sanctions as alternatives to criminal prosecution. It did so bearing in mind the general framework for such powers set out in Part 3 of the Regulatory Enforcement and Sanctions Bill. That Bill contains provisions which are intended to act as safeguards on the use of civil sanctions by regulatory bodies, and the Government themselves brought forward amendments to limit the powers of regulators in a way that in the eyes of the Constitution Committee strikes a fair balance between effective sanctions and due process.

It would have been quite possible for the CQC and Welsh Ministers to be designated regulators—that is the term—as defined in the Regulatory Enforcement and Sanctions Bill, but the Government have not chosen to take that route. As it is, the powers in Clauses 82 and 83 do not contain the kinds of safeguards against misuse or error that might be thought desirable. In its letter to the Minister, my noble friend’s committee said:

In his reply to my noble friend, the Minister explained that the Government have quite consciously created a bespoke scheme for the CQC, which is materially different from the provisions in the Regulatory Enforcement and Sanctions Bill. In particular, he made clear something that I had not previously realised—that the penalty notices under Clauses 82 and 83 are completely unenforceable. The penalty notice procedure depends on the offender consenting voluntarily to pay the penalty. That is apparently why there are none of the safeguards listed in the letter of my noble friend Lord Goodlad.

12 May 2008 : Column GC213

I find the concept of an unenforceable penalty regime quite extraordinary. Can the Minister give an example of any similar scheme established in primary legislation? The whole idea seems decidedly quaint, like something that Sergeant Wilson from “Dad's Army” might say to a miscreant member of the Home Guard—“I say; I'm afraid you’ve been very bad. Here is a penalty notice. Would you mind awfully if I asked you to pay it some time at your convenience? There is no hurry at all. Thank you very much”.

That idea is very odd. Whereas my noble friend Lord Goodlad believed that the penalty regime appeared to be overly draconian, it turns out that the regime has far fewer teeth than it needs if it is to be at all credible. I should be grateful if the Minister would enlighten us further about why the Government have taken what seems to be a highly novel approach to this aspect of the CQC's enforcement framework. I beg to move.

Baroness Murphy: I would like to add some questions to those of the noble Earl, Lord Howe, in respect of these fines. Clause 30 puzzles me. The registered person or registered manager is liable to a conviction and fine up to £50,000, rather than the organisation, such as an NHS trust. However, a fine of £50,000 for an organisation with a turnover of £400 million would be nonsense. Can the Minister clarify the practicalities? Who in an NHS trust provider would be liable to receive the penalty?

Lord Campbell-Savours: Like the noble Earl, Lord Howe, I cannot see the logic behind the proposition, but I want to turn to another aspect—the question of care homes. Clause 30 refers to persons, managers and a £50,000 fine. I know that I missed part of a Sitting the other day, and this may have been dealt with then, but what is the process? If a warning is given, but does not have any effect, urgent action is taken. Does the care home close? Does it stop trading? Does someone else move in? Who pays the fine? In the event that the fine is paid, is not the maximum a rather small amount when fees are generally around £1,000 a week? One week’s take in a home with a reasonable number of beds would cover the fine. It seems that people could prolong this process.

Perhaps I am missing something in the Bill, but one would think that there would be a way of directly intervening to ensure that there could be no harm; the conditions and the problems are dealt with; the management is changed; and, most importantly, that the people living there are not disrupted, which has to be a major consideration. The £50,000 fine seems out of proportion to the problem being dealt with.

Baroness Thornton: The noble Earl, Lord Howe, and the noble Baronesses, Lady Cumberlege, Lady Tonge and Lady Barker, who did not speak to their amendments in this group, raised a number of important aspects about the enforcement powers exercisable by the Care Quality Commission and the courts. As I have already said, the commission must be able to take

12 May 2008 : Column GC214

robust, appropriate and timely action, and use a range of sanctions to protect patients and people using care services. The commission therefore will have a flexible range of enforcement powers and will be able to use its judgment to decide which approach would be most effective in which circumstances. I shall expand on that, which I hope will answer some of the questions raised during this discussion.

Next Section Back to Table of Contents Lords Hansard Home Page