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Baroness Tonge: Before the Minister sits down, I wanted to draw to her attention why we think that it is so important that the Care Quality Commission looks at the subsequent action of a PCT, for example, after a budget allocation for a specific use. It has been brought to my attention recently that £14 million was allocated for contraceptive services to the primary care trusts. It was not ring-fenced. No targets were attached and it was used by some primary care trusts to make up their deficits, even though we know that contraceptive services are deteriorating and doctors

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and nurses are no longer able to find training to do the work because of the closure of clinics. It is assumed that the GPs do this work, but most of them cannot train and they have not done any training for long-acting reversible contraceptives. Patients therefore no longer have the choice of contraceptive they used to. So it is terribly important that, when budgets are allocated for a specific use but not ring-fenced, the Care Quality Commission goes back and ensures that they have been used for that purpose.

Baroness Thornton: We contend that the Bill already provides for the Care Quality Commission to be able to undertake exactly such reviews if it feels the need to do so. I was saying that we would agree to consider Amendment No. 89 and clarify how the commission is able to make recommendations.

I hope that I have been clear on the importance we attach to these reviews and investigations. Of course, the commission has a whole range of important functions apart from its review functions, not least establishing and operating the registration system. The commission will have to decide how best to allocate its resources appropriately in order to fulfil all its statutory obligations across health and social care.

I understand that Amendment No. 83 stems from a concern that the commission’s operating budget may reduce its capacity to undertake this kind of work, particularly in relation to social care. However, the operating envelope that we have agreed for the commission in 2009-10 supports our commitment to rationalisation and reduction in unnecessary regulatory burdens across government. This is based on the findings of the Hampton review and the work of the Better Regulation Executive.

Both the Healthcare Commission and CSCI are operating within a similar budget in 2008-09 and have already achieved significant reductions in their running costs without sacrificing their programmes of reviews and studies. There is no reason why the Care Quality Commission’s budget should restrict its ability to carry out this activity as well, for either health or social care.

Members of the Committee should note that, as a last resort, it would be possible under Schedule 1 for the Secretary of State to attach conditions to the funding he provides to the Care Quality Commission. However, fundamentally, it should be for the commission, as an independent body, to determine how it allocates the resources available to particular functions. I hope that these reassurances will be sufficient to allow Members of the Committee to withdraw their amendments.

Baroness Barker: I thank the Minister for her reply, particularly for agreeing to consider Amendment No. 89 on the CQC’s ability to make recommendations to the Secretary of State. I was somewhat disappointed by her lack of response to the rest of the amendments in this group, particularly Amendment No. 101A on it being a function rather than a power.

At one stage I believed that we may have moved on—

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Baroness Thornton: I did not respond on Amendment No. 101A because it is not grouped with these amendments. However, I will do so if the noble Baroness wishes.

Clause 50 enables the commission to undertake or promote studies carried out by other people, which are intended to result in recommendations for improving statutory health and adult social services. There will be occasions when the commission needs to take this broader view, and we agree that this is an important additional role for it. This is why we have included Clause 50, which allows the commission to take on this role. I reassure the Committee that carrying out studies will continue to be a function of the commission. Under Clause 2, it will be required to perform its functions for the general purposes of encouraging the efficient and effective use of resources. Studies that the commission carries out under Clause 50 will be one way in which it can achieve this. I hope that that addresses the intention behind Amendment No. 101A.

Baroness Barker: I am not sure. I will have to study carefully the noble Baroness’s words in Hansard, although I welcome the thrust of her response.

At times we appear to be inching towards agreement, but at other times we are as far apart as ever. In her response, the noble Baroness again talked about the fact that registration is a new process for the NHS and therefore a novel burden for the service, but it is not new for social care. One of the ways that social care has gone beyond that is in the form of regulation set out in these amendments. Given that, perhaps the noble Baroness will understand, even if she cannot agree, that we are concerned that social care should not be pulled backwards by the process envisaged for it.

Having said that, I thank noble Lords who have spoken in support of these amendments. I take some heart from what the noble Baroness has said, but I believe that we may return to this matter at some point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 83 to 89 not moved.]

6.45 pm

Baroness Barker moved Amendment No. 90:

The noble Baroness said: The issue addressed by this amendment is one that has seized the minds of people involved in social care more than many others. We have talked at length in considering the last two groups about the expertise which already exists in social care to conduct special reviews and the importance of them in influencing outcomes for those receiving services. This amendment seeks to ensure that the CQC is able to conduct special reviews from day one of its inception rather than having to wait for a period of one year, as provided in the Bill.

When this matter was discussed in another place, the Minister of State for Health said:

In the world of social care, that comment has been greeted with a great deal of scepticism. That scepticism goes back to two reasons to which noble Lords have already referred at different points in our deliberations. I have said before that Ministers underestimate the scope and the pace of change going on in the commissioning and provision of social care services. Ministers have underestimated the cumulative effect of their own policies such as Putting People First, the introduction of individual budgets and so on. I also think that they underestimate how difficult will be the rolling out of individual budgets from the group which already has them—those with learning disabilities who have a lot of support—to other client groups. Given that, there is potential not just for very bad practice on an individual basis, but for patterns of bad practice to form in the coming two years. It is not right to leave individual recipients of care at some risk because the regulator is not up and fully functioning; nor is it right to leave providers for that same period. A credible reason for the one-year delay has not been given.

I refer to the points made to the Committee by the noble Lord, Lord Patel of Bradford. He was confident that he would carry forward his staff and their existing expertise into the new commission. If the Bill stays as it is, with a year-long bar on the performance of special reviews, the new commission is at risk of losing the expertise of staff transferred from CSCI. I beg to move.

Earl Howe: Amendments Nos. 226 and 227, grouped here in my name, are designed for a purpose identical to that of Amendment No. 90. I simply add my firm support for everything which the noble Baroness has just said. It is not for the Secretary of State to fetter the operational freedom of the commission in relation to special reviews. If the commission decides to limit its work to certain areas during the first few months of its existence, that should surely be a matter for it. Once Ministers start saying that they will not allow the CQC its statutory functions in a manner that the chief executive believes to be necessary, we are into some very unwelcome political manipulation of a kind which Ministers have foresworn in our debates up to this point. I hope that the Minister will reassure us on this important point of principle.

Baroness Howarth of Breckland: It is a question of whether you see a glass half full or half empty. When I heard the statement in the other place, I thought that there had been some relenting, which is why I said previously that I had assumed that it was the second part of an acceptance that it would be a function of the commission to be able to report. I hope that my understanding is true and that reporting will be a function, even during the early stages of the new commission’s existence. Having lived through more reorganisations than most, I know that one can be distracted from the main purpose of life by reorganisation. A broader issue on which to keep

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moving forward keeps people’s minds alive. They know that they are helping their community and progressing the work overall. I only hope that my perception of the glass being half full is right.

Baroness Murphy: I support the amendments. I do not see the point of fettering the commission. It is a body that has to make many important decisions in the first year—we all understand that—and it should decide on its own programme. It makes no sense for it to be fettered right at the outset.

Baroness Thornton: Our debate on amendments tabled in relation to Clause 44 has been useful. I have listened carefully to the views just expressed, particularly the wisdom of the noble Baroness, Lady Howarth. We have discussed the remit of reviews and I have already confirmed that reviews and investigations will be one of the main functions of the Care Quality Commission. The commission will be able to carry out reviews into publicly funded or commissioned services on both specific and more general issues.

In both your Lordships’ House, and in the other place, we have heard much debate on the commencement of these provisions. It had been our intention to delay the commencement of the power to carry out special reviews and investigations for a year, other than to investigate matters that could pose a risk to the health, safety or welfare of people receiving health or social care. This was so that the commission and NHS providers could fully focus on ensuring that the new registration system would be up and running from 2010. It was certainly not because there was any doubt about the value of the reports the existing commissions have produced. However, having reflected on the concerns raised by so many in your Lordships’ House and elsewhere, including from the current commissions, I am pleased to be able to confirm that this is no longer our intention. The commission will decide for itself what reviews are necessary from the outset, taking account of the resources available to it and the need to fulfil all its statutory functions.

As the Committee will appreciate, there is actually no need to amend the Bill to achieve this: we simply need to commence the clause on the date that the commission takes on its other functions. I hope that by placing on the record our intention to commence the provisions relating to special reviews and investigations at the same time as it takes on its other functions—from April 2009—the amendments may be withdrawn.

Baroness Barker: Result! I am delighted and I thank the Minister for having listened. It is important to say that this was not just about people trying to protect their own backs. It stemmed from a genuine concern. The Minister’s words will be met with a great deal of pleasure throughout the whole world of social care. I thank her very much and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendment No. 91 not moved.]

Clause 44 agreed to.

Clause 45 [Power to extend periodic review function]:

Baroness Barker moved Amendment No. 91A:

The noble Baroness said: This is a probing amendment designed to elicit from the Government their view about the continued publication of performance ratings. It is often extraordinarily difficult for consumers of social care to find information about the quality of the care that they seek. The publication of star ratings has been of some benefit. Albeit that they are crude and limited in some cases, the general public and consumers of social care have found them helpful.

Paragraph 205 of the explanatory notes states that it is envisaged that in some cases the evaluation might be in the form of a comparative rating such as a star rating. That is somewhat at odds with the statement in paragraph 1.17 of the consultation document, which states:

star “Ratings of care homes”. That is confusing, and I move this amendment so that the Minister can tell us the Government’s intentions. I beg to move.

Baroness Thornton: I recognise how important it is that service users, especially those who self-fund and arrange their care themselves, have reliable, comparative information on the services that are available to them to enable them to make informed choices. This is especially important for vulnerable people who are making decisions that will have a long-term impact on their future.

Clause 45 allows for periodic reviews of individual regulated activities. In particular, we intend to use regulations under the clause to continue the assessment system that CSCI has recently introduced for social care providers—its “quality ratings”—so that there is no break in the process of the transfer over to the Care Quality Commission. Indeed, until the new registration system is up and running in 2010, the ratings will continue under the current arrangements.

The reasoning behind determining in regulations whether the commission is required to publish a report of its review or to assess the performance and publish reports of its assessment is important. In some cases, it may be enough to simply make the report of the review available—for instance, where we want the commission to review only the activity that an independent sector provider is carrying out for the NHS. In these cases, the level of provision may not warrant any kind of judgment on the overall level of quality as the results of the review will speak for themselves. However, in relation to social care, as I have already said, we intend to make regulations which will allow the continuation of CSCI’s quality

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ratings. I hope that by placing this on the public record, the noble Baroness, Lady Barker, will be reassured that the provisions allow for quality ratings and that it is our intention to continue them.

7 pm

Baroness Barker: The Minister is on a roll. That is a very welcome announcement. For absolute clarity, can I take it that the commencement of the clause will also be April 2009?

Baroness Thornton: Yes.

Baroness Barker: With that announcement, I am very happy to beg leave to withdraw the amendment. I thank the Minister for her answer.

Amendment, by leave, withdrawn.

Clause 45 agreed to.

Earl Howe moved Amendment No. 92:

(a) inform the Secretary of State of the fact, and(b) recommend any special measures which it considers the Secretary of State should take.(a) give the English NHS provider a notice under subsection (4), and(b) inform the Secretary of State that it has done so.(a) the respects in which the Commission considers that the English NHS provider is failing,(b) the action which the Commission considers the English NHS provider should take to remedy the failure, and(c) the time by which the Commission considers the action should be taken.(a) conduct a further review under section 44 in relation to the English NHS provider, and(b) include in its report under subsection (4) of that section a report on such matters as the Secretary of State may specify.”

The noble Earl said: This amendment is very much in the same vein as Amendment No. 89, which the Minister kindly said that she would take away and consider. It has been prompted by puzzlement on my part as to why under Clauses 46 and 47 the commission is to be given powers in relation to failings by English local authorities and Welsh NHS bodies but is not being given similar powers in relation to failings in relation to English NHS bodies.

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The key point here is that when the CQC has conducted a review or investigation of an NHS trust, it may have uncovered issues that need to be addressed not only by the trust but by the wider NHS community. In those circumstances, where patients are seriously at risk and there are lessons to be learnt of general applicability, the CQC should have the power to make appropriate recommendations to the Secretary of State. It may not be right in certain situations for the commission to suspend or cancel a provider’s registration. That course of action could well be thought not only too draconian but also impractical.

If, for example, as at Northwick Park hospital, failings are uncovered in maternity services, the closure of the whole unit is simply not an option, bearing in mind the need for expectant mothers in the locality to have a hospital in which to give birth. On the other hand, there could well be a case for the commission to say, “We have inspected the maternity unit at Northwick Park and uncovered significant failings. We believe that these have relevance for the local health economy and the wider NHS. Here are our recommendations for the Department of Health to promulgate as necessary”. Under the Bill as drafted, it does not appear possible for the commission to do that—it can only publish reports.

That is a significantly less far-reaching power than the power currently given to the Healthcare Commission. For that reason alone, the power should be reinstated here. Again, however, it looks decidedly odd that the commission is to be able to do everything that I have described when it has investigated a Welsh NHS trust or an English local authority, but not when it has investigated an NHS trust in England. I hope that with that explanation, the Minister will consider the amendment in a positive light. I beg to move.

Baroness Thornton: Amendment No. 92 seeks to give the commission the power to recommend that the Secretary of State takes special measures in relation to significant failings it identifies in an NHS body, which reflects existing provision in Section 53 of the 2003 Act. Indeed, we have had discussions in a similar vein on Amendments Nos. 40 and 89. I similarly hope that I can persuade the Committee that Amendment No. 92 is not necessary.

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