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We intend these indicators to be outcome-focused, covering the full range of health and adult social care services rooted in the department’s strategic objectives. The focus on outcomes provides the flexibility for local organisations to make decisions on priorities for their local communities. For example, we have already discussed the new comprehensive area assessments and how essential it is that the commission’s reviews feed into them. The power for the Secretary of State to set the indicators will help ensure that the reviews support assessments across health and well-being and adult social care, and contribute fully to comprehensive area assessments.

The new commission will, from the very beginning, be an integral partner in agreeing with the Secretary of State the right set of indicators to assess and evaluate both health and social care organisations in its reviews. The commission will be responsible for drawing up the methodology by which bodies will be assessed and evaluated, and will be able to advise the Secretary of State on what indicators would be appropriate. However, I have reflected on these amendments and confirm that it is our intention to delegate the function of setting the indicators of quality for English NHS providers to the commission from the outset, in recognition of its role in enforcing the registration requirements providers have to meet. In doing so, it will need to draw on the indicators used to assess commissioner performance so as to align with the outcomes that patients and the public expect.



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Baroness Tonge: Before the Minister continues, I want to raise two points. She said that the quality indicators would be for the English health service. What about social care? We always come back to this. Does she mean health and social care in England? That is my first question.

Secondly, we are again talking about indicators of quality. I ask Members of the Committee to look at Clause 42(4) and (5). Subsection (4) states,

That means that if we had a real dictator of a Secretary of State who thought that he knew the lot, he would devise and approve all the quality indicators, but if we had a really weak Secretary of State who was not terribly interested in this and was due to be moved to another position, under subsection (5) he could direct the commission to,

This is a muddle and it is not clear how independent the Care Quality Commission is going to be in devising indicators of quality.

Baroness Thornton: We have already had several discussions about this. I realise that some Members of the Committee wish to strike out any role for the Secretary of State, and are therefore discussing the levels of involvement, influence and how this will work when the commission is established. The point is that, regardless of the character of the Secretary of State, the Government are committed to certain outcomes that we will need to ensure are integrated into the work of the new commission. We are seeking to find a way in this Bill to ensure that that in fact happens.

Baroness Cumberlege: I am not opposed to subsection (5). We are saying that the Secretary of State may direct the commission to devise the indicators; that is fine. We do not like, as per our amendments,

which we would delete. We do not want him to devise, but we are happy that he may request that the commission do so.

Baroness Thornton: I appreciate that that is the point we are discussing.

To repeat what I said about the indicators, it is our intention to delegate the function of setting the indicators of quality for English NHS providers to the commission from the outset. We are only delegating to the NHS because local authorities will use the CAA indicators to set their quality indicators. In doing so, we will need to draw on the indicators used to assess commissioner performance so as to align with the outcomes, as I have said. We are therefore unconvinced that Amendments Nos. 75C and 77A, proposed by the noble Baroness, Lady Tonge, and Amendments Nos. 77 and 78, proposed by the noble Earl, are necessary.



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I am sure that Members of the Committee would agree that it is important that the methods by which the commission will assess performance when carrying out a periodic review are transparent. For this reason, we have included a requirement for the commission to publish its methodologies and indicators used in periodic reviews. We are requiring the method statement and indicators devised by the commission to be approved by the Secretary of State, so that he can maintain oversight and ensure coherence. In particular, these provisions will help the Secretary of State to ensure that the methods proposed do not place an unreasonable burden on those being assessed. Amendments Nos. 77B and 77C are therefore unnecessary.

Similarly, I would like to explain the rationale behind the requirement for the Care Quality Commission to seek the Secretary of State’s approval before publishing the frequency of periodic reviews and the period to which they will relate. This is separate from the issue of commencement of special reviews, which we will be coming to later. We agree that the ability for the commission to programme its reviews and studies independently is essential. Under current legislation, the Healthcare Commission and the Commission for Social Care Inspection are required to review NHS bodies and local authorities on an annual basis. We have altered this to allow more flexibility, as I have previously explained, precisely because we believe that the commission itself is best placed to decide on the frequency of periodic reviews.

However, there must be effective communication on this matter between the Secretary of State—ultimately responsible for the performance management of the NHS—and the commission. It will surely be beneficial to all concerned if the commission and the Secretary of State agree on the frequency of reviews. For this reason, rather than anticipating that the Secretary of State will interfere, we have included the requirement for approval from the Secretary of State, which Amendments Nos. 79, 80 and 81 seek to remove.

Indeed there needs to be a dialogue between the commission and the Secretary of State, and between the commission and other relevant people such as health and social care service providers and other regulatory authorities, on what activity is appropriate and what issues should be seen as priorities. Clause 77 should ensure that service providers are aware of the work programme that the commission will be undertaking. This requirement to consult will be particularly important because there has been some criticism about the burden that may be placed on providers, particularly the NHS, where studies or reviews require new information to be collected. We wish to ensure that the work of the commission does not impose an excessive burden on those being regulated, and therefore has a proper balance.

We have discussed these issues with both CSCI and the Healthcare Commission during the preparation of the Bill, and they agree that this is an appropriate arrangement. I therefore cannot agree to Amendment No. 107. Crucially, the Secretary of State is given no power to prevent the commission undertaking the activity it decides is appropriate. The commission may

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undertake any investigation, regardless of whether it is in the proposed programme, if it considers there to be a risk to the health, safety or welfare of persons receiving health or social care. I am unable to find where in the Bill there is a power for the Secretary of State to modify the CQC’s reviews and reports, as referred to by the noble Baroness.

Baroness Cumberlege: Perhaps I could help the Minister on that or perhaps I have misread it. Clause 43(4) states:

the review—

Baroness Thornton: That is not my understanding, but I shall look at that to determine whether we are talking about the same issue. As I have already said, the commission may undertake any investigation, regardless of whether it is in the proposed programme. As well as carrying out reviews, the commission will inspect providers for compliance with the registration requirements. We recognise that in most instances, the commission will be best placed to decide how often it carries out inspections to assess compliance, who should carry them out and how they should be carried out. Different approaches to inspection may be required for different services or different issues.

However, as we stated in the delegated powers memorandum, we believe that it is appropriate to make provision for the Secretary of State to be able to prescribe how certain inspections are to be carried out in particular circumstances. This might be to ensure that the assessment of compliance is consistent with government policy and priorities. We envisage that in the majority of cases the commission and the Secretary of State will agree these matters jointly. The provisions debated here are intended to ensure transparency and coherence for service users, patients and the public, as well as providers, and to minimise the burden on providers. I agree wholeheartedly that to be effective, the new commission must be able to act independently.

Clause 43 refers to the frequency of reviews, not the reports themselves. I can see where the confusion has arisen and I shall seek to clarify that to make sure that we are correct and on the same page on that issue. Following my explanation of how the Bill has been drafted to set out the appropriate balance of independence, I hope that the noble Baroness feels able to withdraw the amendment.

Baroness Howarth of Breckland: I understand absolutely what the noble Baroness is saying in that response. I have no problem with the Secretary of State having some influence and involvement. Anyone who has worked in any authority knows that, ultimately, you have paymasters and you have to work with them, which works quite well.

I am concerned about the implication that, because the regulator may not be proportionate in its regulation—which is what the reply suggested—the

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Secretary of State would therefore need to have oversight, which is very unfortunate. If anyone knows about the usages and the work of providers at the local level, it is the regulators through their regulatory inspections. I only hope that that was not implied in the noble Baroness’s response.

Baroness Thornton: Indeed, that is not implied. I think that it has been said several times that we see CSCI’s model of regulations as the way forward.

Baroness Cumberlege: I thank the Minister for that. Certainly, I feel that the balance is totally wrong in the way that the Secretary of State seems, through this Bill, to have such control over what is termed an “independent regulator”. I shall certainly read what the noble Baroness and other Members of the Grand Committee have said, and we may want to return to this issue.

Baroness Tonge: I, too, am not a very happy lady. There is still a conflict between subsections (4) and (5) of Clause 42, and I agree with the comments of the noble Baroness, Lady Cumberlege. If the commission is going to be independent, this has to be sorted out. However, for the time being I will retreat and prepare to charge on another occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 pm

[Amendments Nos. 76 to 78 not moved.]

Clause 42 agreed to.

Clause 43 [Frequency and period of review]:

[Amendments Nos. 79 to 81 not moved.]

Clause 43 agreed to.

Clause 44 [Special reviews and investigations]:

Baroness Barker moved Amendment No. 82:

The noble Baroness said: I shall speak also to Amendments Nos. 83, 87, 89 and 101A. Once more I shall try to convey to the Minister the scope of social care which this new body is going to have to regulate, not just in terms of the number of providers but in terms of the differences between client groups. I refer to the needs of people with learning disabilities, older people and those with mental health problems. This is an enormous, disparate and complex set of objectives to meet. If the legislation goes through, one regulator will have to suffice. In this set of amendments we seek to translate to the new body something which has worked effectively for CSCI, and that is the commissioning and production of special reviews.

CSCI plays a uniquely strategic role in social care. It is one of the few bodies that gets to draw comparisons between different providers working in different sectors. I am not sure whether it is possible to convey this to

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noble Lords, but my sense is that in the NHS, people have a clear understanding of what is going on with other providers of healthcare. That is not the case in social care. Some service providers are very small and have little connection even with other providers in their own locality. Indeed, I have yet to come across a PCT that can produce a totally comprehensive list of the social care provision in its own area, a list that takes into account all the small and voluntary providers operating in the area. What CSCI does in relation to regulated services has been uniquely important to the scope and depth of its reports. These amendments would require the new regulator to carry on with the function of commissioning and conducting special reviews.

Special reviews have become a method of addressing issues which, although serious, often go unnoticed. The noble Baroness, Lady Cumberlege, referred to a number of its reports, one of the most effective of which was published earlier this year. It demonstrated what people in social care felt was the case, but often could not prove: by and large, local authorities are commissioning care solely for people who are in acute need. Basically, they are not commissioning for those in any of the other four categories in their access to care services criteria. It was a tremendously important piece of work.

Through its special reviews, CSCI has not only set out the scope of what is going on, but has assisted in developing evidence-based social care, which is an extraordinarily difficult thing to do. It requires the establishment of data gathering over long periods, and CSCI has begun to do this work. Under the Bill, the commissioning and production of special reviews is to be reduced to a “power”: that is, it is something which the commission has the power to do but is not required to do. My amendments, particularly Amendment No. 101A, would change that power into a function. The noble Lord, Lord Darzi, and I had an interesting debate on the first day of our proceedings on the meaning of “functions” and “objectives”, but for the moment I accept that the Bill gives the Care Quality Commission functions as opposed to objectives. Given that, the amendment provides that the production of special reviews should be a function.

In addition, the amendments make it clear that whoever is calling the tune on deciding the quality measures for outcomes, the commission will be able to commission its own special reviews and will not be confined solely to matters deemed to be important by the Secretary of State. Moreover, under Amendment No. 83 it will have the resources to enable it to do that. Having commissioned those reviews, it will have the power to make recommendations to the Secretary of State. Whatever one’s view of the preceding group of amendments, the noble Baroness, Lady Howarth, was right to point out that what CSCI knows uniquely in relation to providers should enable it to make recommendations to the Secretary of State. I beg to move.

The Deputy Chairman of Committees: I should point out to the Committee that were this amendment to be agreed, I should not be able to call Amendment

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No. 83 because of pre-emption. The Committee will now stand adjourned during the Division for 10 minutes.

[The Sitting was suspended for a Division in the House from 6.23 to 6.33 pm.]

Baroness Howarth of Breckland: I added my name to this amendment. The Government should have no difficulty at all in accepting it on two clear counts. One is that the world has changed significantly since the Bill was first published. We now have the declaration by the Government that social care will stream up the agenda, that there will be a number of reviews and that the difficult questions that we have all asked several times—including the Wanless review—will be asked again with, I hope, some outcome this time. The commission’s carrying out this function will be extremely helpful.

Secondly, when the commission was first proposed, it was said that this kind of work would not be done at the beginning because it would be settling down. We have now accepted that it will settle down rather faster than was originally thought. Let us hope that that is so and that the commission can get on with this work. I am more familiar with the Commission for Social Care Inspection than with the Healthcare Commission but they both hold extraordinarily valuable information across the health and care sectors and it would be a huge pity if they did not get on and use that. There is now experience about working together. They have produced their document about duplication which outlined the type of work that they were doing together and we all know of the various reports that have been produced jointly. As I said, I cannot see why the Government would have any problem at all in accepting this amendment.

Lord Harris of Haringey: I am not sure on what grounds the Government could oppose the amendments. They seem eminently reasonable. What is at issue is the ability of the commission to carry out thematic reviews, particularly in the social care area. For the reasons outlined by the noble Baroness, Lady Barker, about the sheer variety of social care establishments of one sort or another that there will be, the ability to focus on and highlight particular types of issue in this way, and produce recommendations, should be an essential part of the work of the new Care Quality Commission.

Given that part of what needs to be done is to give people confidence that this new body will look clearly at the social care as well as healthcare parts of its remit, conceding on this amendment would help give people confidence that social care will not be the poor relation in this new family.

Baroness Thornton: As Members of the Committee have so effectively set out, because of its role in regulating both public and independent sector provision across the health and adult social care sector, the commission will be ideally placed to carry out reviews of the quality of care delivery across an entire clinical or care pathway, as my noble friend Lord Harris explained so well.



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Clause 44 allows for exactly that, and I agree that this is a crucial role for the new commission, hence the clarification in Clause 2(2)(b) that the commission’s functions include its review and investigation functions under Chapter 3 of the Bill. I therefore believe that the provisions in the Bill as drafted already achieve the intention behind Amendment No. 82.

Clause 44 also does not limit what special reviews and inspections may relate to. It allows the commission to look at any aspect of NHS or adult social care provision. As such, I believe that reviews or investigations could encompass any of the types of issues that might arise from the commission’s agreed objectives, as proposed by Amendment No. 87. Not only will the Care Quality Commission have the freedom to determine when and how to conduct reviews or investigations under this clause but also it will have greater powers than the Healthcare Commission currently has. The new commission will be able to act directly where a registered provider is not meeting the levels of safety and quality that users are entitled to expect. Where initial action appears to be having no effect, there will nearly always be room to escalate the matter and introduce stronger sanctions to suspend or cancel registration.

As discussed, the commission might act following an inspection of an individual provider, or on concerns that arise as a result of a wider periodic or special review. We would of course also expect NHS organisations to take account of broader issues arising from the commission’s reviews and investigations. It should surely be for the NHS bodies to determine the most appropriate action to take, taking account of local needs and priorities. Primary care trusts, as commissioners of local services, and strategic health authorities as performance managers will hold the NHS to account for the quality of provision and whether it meets local needs.

Clause 49 already provides the necessary channel for the commission to escalate concerns, or make specific recommendations about the actions that it feels the Secretary of State should take to address those concerns. That could be particularly helpful where the commission has concerns across a health and/or adult social care economy, where the commission cannot already act itself. That is an issue that the Healthcare Commission, in particular, has raised. I realise, however, that Members of the Committee remain unconvinced that the wording of Clause 49 is explicit enough, and I am therefore happy to look again at how we can clarify that the commission is able to make recommendations to the Secretary of State on issues including—


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