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The noble Earl said: This is a probing amendment, prompted by genuine puzzlement. In Clause 42 we find the provisions which will enable the commission to conduct periodic reviews. Subsection (2) refers specifically to English NHS providers, for each of which the commission will have to review the healthcare provided, assess the provider's performance and publish a report. The question posed by this amendment is why this provision should not also encompass anyone who provides NHS care; in other words, any independent provider contracted to the NHS.

The Explanatory Notes make it quite clear that we are only talking about NHS bodies that provide services. That seems odd. Part of the point of the Bill is, at long last, to place the NHS and the independent sector onto an equal footing for regulatory purposes. We must look forward to Clause 45 to find anything relating to periodic reviews of non-NHS providers; but there we see that such reviews will rest entirely at the discretion of the Secretary of State. There is a regulation-making power in Clause 45 that would enable him to require the commission to review some or all registered service providers; some or all regulated activities; or particular aspects of a regulated activity.

I question why the review of non-NHS providers should be subject to approval in regulations, which may or may not be made, whereas the review of NHS bodies would be provided for in the Bill. We are not talking here about situations where an NHS trust subcontracts with an independent provider—my understanding is that those situations would indeed be covered by Clause 42—but where services are directly commissioned by a PCT or a GP from a private provider. What are the Government’s intentions as regards enabling the CQC to review these services? How will the CQC be expected to configure itself and to plan ahead if there is uncertainty about what services it is going to monitor and regulate? As I have said, I am genuinely puzzled by what the Bill appears to propose here and I therefore beg to move.

Lord Walton of Detchant: I was tempted to intervene a little earlier, when the noble Earl, Lord Howe, was challenging the linguistic quality of a provision. I have often been accused of being a pedant in relation to my defence of the purity of the

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English language. I feel uncomfortable when I read a split infinitive, and even more uncomfortable when someone says, “This data is”, not recognising that “data” is plural and that it should be, “These data are”.

I am uncomfortable, I have to say, with this ugly phrase, “NHS provider”, which might be construed as meaning that the provider is providing the National Health Service. I appreciate that it may be that in other parts of this and comparable legislation the term is used and has become hallowed by usage.

Having said that, I feel just a trifle uncomfortable with the amendment proposed by the noble Earl and the noble Baroness, Lady Cumberlege, because to replace “NHS provider” with “provider of NHS care” suggests that all that the NHS provides is care. As we were reminded just a few moments ago by the noble Baroness, Lady Tonge, the NHS is supposed to provide preventive medicine as well as care. I would feel more comfortable if the amendment suggested inserting “provider of NHS care and services”, which would clarify the matter much more satisfactorily.

The Countess of Mar: I am horribly confused by this term. I understood for a long time that NHS provider meant someone from the independent sector providing services to the NHS. That term became common parlance during the time when the noble Earl’s party was in government and I have used it frequently. I am all for plain English and would support it to the hilt, but we need a bit more clarification on what this phrase means.

Baroness Howarth of Breckland: My point is rather less esoteric but I feel that I have to make it. The noble Earl has given me the opportunity, yet again, to point out that the mixing of health and social care is unequally demonstrated in this chapter. The heading is, “Quality of health and social care”—and the notes to the Bill talk about that; then we go into “Health care standards”. Nowhere do we have social care standards, which are mixed up with “Reviews and investigations”. The whole chapter is a mish-mash of bits and pieces put together, which simply makes me feel, again, that social care is being relegated to a secondary status within the whole of the Bill. That is what this chapter reflects, and the various other esoteric points about the linguistics are a reflection of that greater, more strategic position.

Earl Howe: For the benefit of the noble Countess, I should say that “English NHS provider” is defined in Clause 92.

The Countess of Mar: That is why I am confused. I had a clear understanding of what “NHS provider” meant before this Bill came into being, but not now.

Baroness Thornton: I suspect that I am probably not going to clarify this any more happily than any other noble Lords, but I shall do my best.

My understanding of Amendment No. 75 is that it is intended to widen the scope of periodic reviews to

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independent sector providers of NHS care. I agree that, as the private sector is increasingly playing a role in helping to deliver effective public services, we must ensure they are subject to the same scrutiny and assessment, so that the public can determine whether they are getting value for money.

Under subsection (1) of Clause 42, the commission is already required to carry out reviews of the provision of healthcare by primary care trusts and by others under arrangements made by PCTs. This already means that the commission will review the provision of NHS care by independent providers as part of its review of how well PCTs are commissioning and providing services for their local populations. The same applies to local authority commissioning of adult social services under subsection (3).

In addition, under Clause 45, there is provision to extend the periodic review functions through regulations. This would enable wider reviews of independent sector provision to be carried out and it is our intention to use this clause to continue the quality ratings system that CSCI has introduced once the registration system is up and running in 2010.

The situation in the NHS is different. There is a large number of small, private sector NHS contracts and we do not think it would necessarily be appropriate that there should be reviews of every individual independent provider of NHS care; that would be hugely resource-intensive. It is more appropriate for small contracts to be managed by PCTs with an oversight by the commission through reviews of the provision of healthcare by and on behalf of PCTs. If necessary, we can also use the powers in Clause 45 to require the commission to conduct additional reviews of certain providers or of particular types of care.

Therefore, I think that the Bill provides scope to meet the intention behind Amendment No. 75 and I ask the noble Earl to withdraw it.

Earl Howe: That was a helpful reply from the Minister. It clarifies the Explanatory Notes which are not as clear as they should be on this clause. I shall reflect on what she has said, but it strikes me that if one takes Clause 42 in conjunction with Clause 45, these provisions are quite complicated. I am not at all sure what activities will be covered by which part of either of those clauses. I am sure that there is time enough for us to obtain greater clarity on this. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 75A and 75B not moved.]

Baroness Thornton: I beg to move that the Committee do now adjourn during pleasure until 5.42 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was adjourned between 5.32 and 5.42 pm.]



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The Deputy Chairman of Committees (Lord Tordoff): In calling Amendment No. 75C, I should point out that if the amendment is agreed, I shall not be able to call Amendment No. 77 because of pre-emption.

Baroness Tonge moved Amendment No. 75C:

The noble Baroness said: We do not like the way Clause 42 has been written, particularly subsections (4), (5), (6) and (8). The clause gives powers back to the Secretary of State which, to put it simply, we do not want him to have. The amendments would restore the position established by the Health and Social Care (Community Health and Standards) Act 2003. These subsections, being introduced in 2008, represent a diminution of the powers of CSCI and the Healthcare Commission. In particular, the Secretary of State is taking to himself powers that under existing legislation belong to the commissions. These changes will give further control to the Secretary of State, although I thought we were all for devolving power and decentralising these things. It does not look like it here.

The amendment to subsection (4) would reinstate the wording of the Health and Social Care (Community Health and Standards) Act 2003, but uses the phrase,

rather than “by reference to criteria” as in the Act. It is a small but important change. The amendment would ensure that the Care Quality Commission devised the indicators of quality and the Secretary of State approved them. In other words, both functions would not be held by the Secretary of State.

5.45 pm

Although the Secretary of State can delegate this function to the commission under subsection (5), there would be no need to if he or she had confidence in the Care Quality Commission. As the Bill stands, it looks more like an arm’s-length body obeying the Department of Health than an independent body advising and informing the Secretary of State objectively and authoritatively.

There are good reasons for the Care Quality Commission developing indicators of quality and its own methodology for assessing performance: it would reinforce the commission’s independence from the Government; it would enable the public to have confidence in the credibility of the findings of the commission, which they would not have if it was under the diktat of the Secretary of State; the Secretary of State would not duplicate the expertise of the Care Quality Commission; and it would give credence to the Government’s statements that they are transferring the powers of the existing commissions into the Care Quality Commission, which we thought was their intention.

Taken as a whole, the clause changes the nature of the accountabilities. It is clear that the Care Quality Commission will be accountable for delivering its functions through annual reviews and a five-yearly

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fundamental review. The clause allows the Secretary of State to take on responsibility for those methodologies without having the responsibility of making it work. It would therefore undermine the credence of government statements that they would build on the experience and expertise of the existing commissions. We strongly feel that the Secretary of State has to trust the new Care Quality Commission to set the criteria. It is an independent body, and the general public would expect it to be so. I beg to move.

Baroness Cumberlege: My noble friend and I have amendments in this group, Amendments Nos. 77 to 81, 103ZA and 107, which refer to Clauses 42, 43 and 57. All of them concern periodic reviews and inspections.

Reviews have been an important tool for both the Healthcare Commission and CSCI. They have proved to be an effective way of improving standards and quality of services. These two regulators, because of their different remits and markets in which they operate, have fashioned different ways of inspecting and reviewing. The Healthcare Commission has a lot of detailed information, gained through the different reporting mechanisms in the NHS, with which to monitor performance. It not only reviews and publishes but returns to ensure that its recommendations bear fruit. In the foreword to its report, Learning from Investigations, Professor Sir Bruce Keogh wrote:

Professor Keogh concludes his foreword by saying:

Sir Bruce is, of course, the medical director for the whole of the NHS. We could not have a more authoritative voice on the necessity for the regulator to be independent. The Government would do well to listen to their own doctor.

CSCI’s approach is different from that of the Healthcare Commission, in that it has a paucity of detailed information because it is regulating a wholly different service which is largely privately provided. Its approach has been to theme its reviews. Time to Care? was the first comprehensive review of the state of domiciliary care services. It highlighted problems for those receiving care, delivered in just 15-minute slots. A Fair Contract with Older People? brought the nation’s attention to the raw deal experienced by self-funders. State of Social Care in England 2006-07, published in January, highlighted the poor quality of life experienced by people excluded from services by the impact of rising eligibility thresholds set by councils. As a result, the Minister, Ivan Lewis,

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commissioned CSCI to conduct a review of the eligibility system and its impact on people, and to recommend changes. The review is due by September this year.

I am sure that this piece of work will be trusted, because it is being carried out unfettered and independent of the department. One of the core qualities to engender and maintain trust in an organisation is for that organisation to be open, transparent and honest. The opposition to Part 1 of this Bill and the changes that it proposes is due to the fact that all three regulators have been so successful in engendering trust. Their hallmark has been integrity and honesty. They bring to the attention of the Government and the nation, through independent reviews and inspections, the shortcomings and the concerns in certain services or institutions. They are to be trusted. We want our regulator to keep a watchful eye and, without fear or favour, speak out when matters go awry. If it is known that the Secretary of State is meddling in these affairs, the CQC will simply be seen as a poodle of government; it will not be respected or believed.

Before a review is undertaken, the regulator must decide what indicators of quality will be used as the benchmark against which services are to be judged. That is only fair and proper for those being regulated. The indicators are entirely a matter for the regulators. They know the business; after all it is their business, and not the business of the Secretary of State—some erstwhile politician here today and gone tomorrow. I am not being disparaging, but it is a fact well recognised; there is nothing in the present legislation to state that quality indicators are the province of anybody other than the regulator.

I am surprised that, through this Bill, by changing what is in current legislation, the Secretary of State should want to interfere and fetter the freedom of the new CQC. Action on Elder Abuse only a day or two ago welcomed CSCI's introduction of quality ratings for care providers. Through this work we are made aware that around 70 per cent of all registered providers have achieved an excellent three-star or a good two-star rating. We should rejoice in that. Only 3 per cent of all 24,370 providers fall into the poor category. They clearly need attention. The rest, 24 per cent, are adequate, with the remainder being either new services that have not yet been given a rating, or services that are subject to enforcement action by CSCI.

Commenting on the new scheme, Gary FitzGerald, chief executive of Action on Elder Abuse, said,

He continued:



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So here is an organisation which is going to use CSCI's work to improve standards. It clearly trusts the independent information provided and is being helpful to the Government. We are surely all at one in wanting the highest standards and the greatest love, care, and attention when we and our friends and relations are at our most vulnerable.

However, we strongly disagree with the Government on the erosion of trust caused by the Secretary of State in devising the indicators—Clause 42—and, in Clause 43, approving the frequency and period to which reviews relate, preventing the commission revising reviews without the Secretary of State's permission and, worse, giving a power to the Secretary of State to modify reviews. That is meddling—big time. Where is the independence when the Secretary of State modifies a review to suit his needs because the results are uncomfortable, or a general election or a by-election is on the horizon, or the Prime Minister is in personal difficulty? Why should we trust the new regulator if we know that the review has been modified to suit the Government's needs and that a spin has been placed on it?

I hope that the Minister will recognise that Clause 42(4) and (8)(a), and Clause 43(1)(b), (3) and (4) do no favours for the Government and that she will agree to our amendments which are simple in the extreme. All that is needed is a little red marker pen to strike a few words out of the Bill, thus giving the CQC the credibility which it will need.

Amendment No. 103ZA is slightly different. In Clause 57 the regulations—the Secretary of State, not the CQC—may prescribe the frequency of inspections prior to registration, the manner in which they are to be carried out and the type of person who is authorised to conduct them. Again, this is serious interference and is not in current legislation. Why does the Secretary of State want to be involved in the detailed operation of the day-to-day running of the commission's business? I should have thought he already has enough to do. Is he really going to say who should be undertaking the inspection? Will he decide what professional qualifications are necessary? If so, there is a very real danger that the experts by experience, who are so valuable in the current CSCI system, would be ruled out of order. Earlier, we debated the vulnerability of elderly people in relation to the complaints procedure. It is often the experts by experience who can detect what is wrong and report it on behalf of the individual concerned. If the Government wish to stipulate by whom and how inspections prior to registration should be carried out, there is hardly any need for this Bill. It could be done through a contract with the Department of Health. However, I do not believe that is what the Government want. I believe they want a successful Care Quality Commission that is respected and trusted throughout the land.

On this clause, all the Government have to do is to amend subsection (1) to read, “The Commission shall determine”, rather than the present wording which is, “Regulations may prescribe”. I hope that the Minister agrees that is a splendid idea and that it fulfils the Government's desire for an independent regulator.



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6 pm

Baroness Thornton: I have listened carefully to the debate and I wish to reassure Members of the Committee by repeating that the Government are committed to the independence of the Care Quality Commission. As we have discussed throughout the drafting of the Bill, we have sought to strike the right balance between ensuring that the commission is able to act independently and provide independent challenge while being a key player in the wider health and social care systems. I fear that this is one of the areas where we may disagree about the balance.

The new commission will have a wider range of enforcement powers that it will be able to use to take independent enforcement action against registered providers when they do not meet the required levels of safety and quality. For the first time, these will also apply to NHS providers. This represents a significant increase in independence compared with the Healthcare Commission or CSCI. We have sought to explain that the work and independence of CSCI and the Healthcare Commission will be carried forward in how the commission will do its work, including, for example, the rating system as explained by the noble Baroness.

In terms of the periodic reviews in Clause 42, we believe that it is important that the Secretary of State should retain a role in setting the indicators. This is to ensure that they are an accurate reflection of the outcomes the Government have committed to delivering in response to what patients, service users and the public have stated they want health and adult social care services to deliver.


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