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However, there is an overwhelming reason why we should press ahead with the current timetable. Accepting the amendment would mean that Parliament would have to consider an independent review of the benefits of establishing the commission before agreeing to it by affirmative resolution. Although the timescale set out in the amendment suggests a rapid review, it is appropriate to remind your Lordships’ House of the general support for the principle of bringing together health and social care regulation. As Anne Williams, president of the Association of Directors of Adult Social Services, said when giving evidence on the Bill:

As my noble friend Lord Warner also pointed out, we have already had extensive consultation on these proposals. Central to that ongoing process was the 2006 consultation, The Future Regulation of Health and Adult Social Care in England. That document sets out the benefits of bringing together the regulation of health and social care, such as enabling greater consistency of standards, inspection arrangements and performance assessment. The consultation showed that there was general support for the move to an integrated regulator. In particular, consumer organisations, which represent those people who use the services, see the case for having a single regulator because it will also provide a clear focus for the public, who often find the boundaries between health and social care artificial. We have been working very closely throughout the process with the existing commissions on transitional planning and workforce strategy to ensure that uncertainty is kept to a minimum. As Members of this House have already said, delay now would lead to increased uncertainty.

My noble friend Lord Patel of Bradford pointed out in Committee that we risk losing the valuable expertise that we must maintain in the new commission if we do not now get on with the show. The same sentiment was expressed by the National Consumer Council, the Picker Institute and Which? in their letter to noble Lords:

My noble friend Lord Patel also said that what is crucial now is that the shadow chair,

I am delighted that we have been able to secure a first-class shadow chair in the noble Baroness, Lady Young. I am sure she will provide the strong leadership that will ensure that there is a smooth handover next April. Fundamentally, the commission will help deliver safer and better quality care services for people who use them. We do not want to have to say to those same people that it will take the Government another period of delay and uncertainty to get to this point.

The regulatory framework that has enjoyed such excellent scrutiny in your Lordships’ House will support

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the kind of integrated, personalised services that we all want to see continue to develop, and I want to encourage that in my next-stage review. The noble Baroness, Lady Howarth, has pointed out that some were inclined to support delay not because they opposed the principle but because they felt that the timing was wrong or that the Bill as drafted would not give the new regulator the best possible starting point, particularly in relation to social care. We have listened to those concerns and brought forward many changes and amendments to the Bill: to introduce clearer objectives, to give the commission an explicit duty to involve and engage with service users and to give it the freedom to determine when and how it conducts reviews of services. I am delighted that the three current commissions have each welcomed those government amendments. We will explore these issues in more detail later on, but they should help reassure noble Lords that the framework is now in place to allow the establishment of the regulator to proceed.

There is no good reason to reconsider the case for the integration of health and social care regulation and the creation of the Care Quality Commission. Nor is there a case for subjecting the establishment of the commission to any further delay. I am therefore grateful to the noble Lord, Lord Lipsey, for highlighting that he will withdraw his amendment.

Lord Lipsey: My Lords, I do not intend to prolong much more the last rites of this dead parrot save to make a couple of points in response to the debate. The noble Lord, Lord Harris, my old chum and sparring partner, accused me of choosing the weakest of the arguments that had been put forward against my amendment. If those are the weakest arguments, I would be grateful if he would explain to me after this debate why Ministers chose them and not other arguments that might have been more convincing.

I am not sure that I agree with my previous noble friend Lady Wall that patients worry day and night about whether the new commission to look after their care will be established. They are worried, as am I, about what will happen to them, and that is why I have brought the matter before us.

In the period up to next April and beyond, when the commissioners and their staff are worrying about the colour of everybody’s carpets and the size of their desks, who will be in charge and who will tell whom what to do? I am worried that, during that period, the progress that we have genuinely made in regulation in this field will come to a halt. Most particularly—this will be partly on my conscience because I feel guilty that I did not pick up this problem earlier and try to raise these issues when first the Government proposed this solution—I worry terribly that there will be some dreadful scandal and that infections in hospitals will again get out of control as today’s report from the Healthcare Commission warns, or that some old person’s home might not receive a visit from an inspector because his or her superior was so busy dealing with the amalgamation that they did not have the time to organise the inspectorate and that, in consequence, all the residents died. That would be on my conscience as it would be on that of all noble Lords who have chosen not to support the amendment today.

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I take comfort from the many amendments that the Government have made to the Bill, all of which I regard as positive and helpful. I do not think that anybody who runs the commission could be unaware now of the danger of it becoming unbalanced as between the priority it gives to healthcare and that which it gives to social care. Knowing the noble Baroness, Lady Young of Old Scone, as I do, I am sure that she has taken that on board. Other amendments before us today may assist in this.

This will be no prolonged funeral, although I feel some regret and offer a heartfelt prayer that everything that I and other noble Lords have said during the passage of the Bill turns out to be utterly wrong and that the new commission is a fantastic success. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [The Care Quality Commission]:

Earl Howe moved Amendment No. 2:

(a) review, assessment and investigation of each kind under sections 42 and 44, and(b) the Mental Health Act 1983 (c. 20),

The noble Earl said: My Lords, I shall speak also to Amendments Nos. 5 and 6. I return to a concern which we debated at considerable length in Grand Committee without reaching a conclusion. It is how we can make sure that the three principal spheres in which the new commission will operate—healthcare, social care and the operation of the Mental Health Act—will each receive a fair and appropriate amount of the commission’s time and resources, and that the culture and ways of working which characterise those three different spheres of regulation will be respected and promoted. I confess freely that this is a very difficult aim to try to pin down in an amendment, but I am equally clear that the difficulty of arriving at an adequate form of words should not be an excuse for our doing nothing. It is an extremely important issue.

I have been heartened, as I knew I would be, by everything that the noble Baroness, Lady Young of Old Scone, has said and done since the announcement of her appointment as shadow chair of the commission. She circulated a letter to Peers a few days ago, in which she gave some very helpful reassurances. However, for the purposes of today’s debate, we need to remember that the noble Baroness will not be chair for ever, and that we are legislating for the statute book. Therefore, we need to put some safeguards in place that will stand the test of time.

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One of the reasons why formulating an amendment is so difficult is that while in our own minds we may conveniently separate health, social care and the operation of the Mental Health Act as discrete activities, we also

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know that one of the benefits of the new commission, if it works as we all hope it will, is that it will look more holistically at the way in which care is delivered in a given setting, and that its working methods will reflect and take account of the increasing convergence of health and social care and the crossovers that already exist between all three areas of care.

We have all acknowledged that while there are key differences between, for example, monitoring the welfare and rights of a detained mentally ill patient and assessing the welfare of residents in a care home, there are almost certainly ways in which each of those two kinds of regulatory activity is able to learn and gain from the other. The same applies to the regulation of healthcare as compared with that of social care. It would therefore be wrong to suggest that we want to preserve in aspic the methodology and culture of each of these forms of regulation, and that we somehow need to insulate them from change. Rather, we need to ensure that there are people on the commission and on its committees and sub-committees who have knowledge and experience of each field, who will take forward the development of regulation in those areas, and who will act as a defence against any potential erosion of the weight and emphasis that needs to be maintained on each principal sphere of activity.

We want to make sure in particular that the resources needed to deliver the effective regulation of social care and the activities currently undertaken by the Mental Health Act Commission should comprise an appropriate slice of the commission’s budget and manpower, and that neither of those activity streams will be at risk of becoming the poor relation of healthcare regulation. The undue ascendancy of healthcare regulation, despite everyone's best intentions, has to be a risk over the longer term.

The approach I have taken in these amendments is twofold. First, there should be a duty on the Secretary of State in making appointments to the membership of the commission to ensure a fair balance of disciplines in direct alignment with the commission’s key regulatory functions. Secondly, I suggest, without going quite as far as the noble Lord, Lord Lipsey, in his Amendment No. 8, that we can require the commission to take into account when establishing committees or sub-committees that the individuality of each kind of regulatory activity should be appropriately reflected in the overall way in which the commission operates. I say with great respect to the noble Baroness, Lady Howarth, that I do not think we need to be prescriptive beyond that rather generalised level. If the Minister were to accept Amendment No. 3, or something like it, I would support her very readily, but my problem with that amendment is that it singles out social care to the exclusion of the other spheres of activity and would tie down the commission to appointing one person, and one person only, as the “commissioner for social care”. For the reasons I have given, I feel instinctively that we should try to preserve flexibility in the make-up of the membership and that the balance of disciplines is what really matters. I shall, however, listen with attention to what she has to say.

I hope that the Minister will look constructively at these amendments and that she will understand that they are a genuine attempt to build in safeguards that

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will not prove to be an albatross around the commission’s neck over the longer term. The wording may not be right—it almost certainly is not—but I hope that it will provide a basis on which the thinking on this important issue can be taken forward. I beg to move.

Baroness Cumberlege: My Lords, I have added my name to the first of these amendments, which is of a slightly different order from the other more prescriptive amendments in the group.

I think it right that not only the Secretary of State but future Secretaries of State should be reminded of the three different spheres, as described by my noble friend. In his customary way he has fashioned an amendment which would sit very comfortably in the Bill as it proposes using review, assessment, investigations and the Mental Health Act as prompts when appointing to the commission people with knowledge and experience in the three component parts that will form this new body.

I agree with the noble Lord, Lord Warner, who stated on the previous amendment that parliamentarians are not appropriate people to micro-manage. Throughout the Bill’s passage I have tried to ensure the independence of the Care Quality Commission and that it has as much room to manoeuvre as possible. I share the view of other noble Lords that we have an experienced and formidable shadow chair appointed, which I welcome. I thank her for her letter of 12 June in which she let Members of this House know the way in which she plans to recruit members of the commission. She has clearly taken on board the views expressed by your Lordships in Grand Committee and will relay them to the Appointments Commission. So far, so good, but, of course, memories fade and Secretaries of State and chairs of commissions move on. It is tempting to try to secure the future with prescription but I do not think that is right, especially when it comes to management structures. We do not know what the future holds and so often Parliament lags behind trends. We are in a situation of catch-up.

We are already seeing a coalescence of health, both mental and physical, with social care. We are seeing joint chief executive appointments covering health and social care, new professions emerging, patient pathways being more clearly defined and modern technology encouraging very different ways of working both clinically and managerially. Increasingly, healthcare will be provided not in institutions but at home. Individual purchasers will commission healthcare and social care and definitions will change. Therefore, I am very reluctant to enshrine a management model, a straitjacket within which the CQC will have to work. Management should be dynamic, should reflect changing social and economic trends and encourage vision within the organisation. It should not constrain but liberate. Above all, it should be designed to do the business efficiently and with care and not be encumbered with an outdated management structure enshrined in law.

So, reluctantly, I do not support the more prescriptive amendments but think that the first one would act as a useful prompt to ensure that the Secretary of State is reminded of the comprehensive remit and duties of the CQC when recruiting members.

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Baroness Howarth of Breckland: My Lords, I shall speak to Amendments Nos. 3 and 4. One of the skills one learns in social care is group work. Those of us who have worked fairly closely together in the group that has taken this Bill forward have thought through these arguments time and again, and we have been considerably influenced towards the picture that we now see of how social care is moving forward.

I remind your Lordships forcefully that this is not where we started, and not where the outside world is in its view of the comparative positions of social care and health. We have had reassurances in this House, and I think that we have convinced ourselves that the Bill could give proper emphasis to all the parts. In matters of social care I usually include mental health because my own training included it. That is another issue that I am bound into and it is in close alignment with health and hospitals—the links are all there together.

I agree with Members on the opposite side—I say that because of the geography, not because of anything political, she says anxiously—that we have to move forward in different ways. I say that in order to emphasise that outside the walls of this now comfortable group which has come through to this position there is still a great deal of anxiety about where mental health and social care will reside in future. I take heart from the assurances of the noble Baroness, Lady Young of Scone, who has impressed even me by her strength of leadership already in how she has moved all these issues forward. I can hope only that this will continue.

However, there are other reasons for being absolutely clear about what prescription might be. The amendment moved by the noble Earl is prescriptive, if not tightly so. We are in the position of decisions being made—or rather, remade or even re-remade when you think how often social care has been discussed in the past five years. It is crucial that we get it right this time, and that having done so, we will not have to be concerned with the issues of disruption outlined by the noble Lord, Lord Harris. Continuity of service and personnel is what really counts in patient-client-people care, but there has been disruption in recent years.

I am proposing a dedicated social care commissioner in the amendment, but if I am honest I am not really convinced by my own arguments. As I said in an e-mail to the noble Earl, it is important to reinforce our view. I wish that I had been able to support the noble Lord, Lord Lipsey, earlier. I have been so influenced by the group work in this discussion that we find ourselves at a different place. That is probably what the noble Lord, Lord Warner, was trying to convince us of in his speech.

I repeat in all seriousness that we are in a different place, which has to be maintained in the outside world. I have only this week been involved in discussions about the place of social care and nursing services for the elderly, and the worry in some places that nursing homes are becoming more nursing than homes. I know that old people are becoming frailer but they are losing that home environment in their need for medical care as they become increasingly more frail.

These are the kind of things that I want us to maintain. That is why it is vital that on the commission there are people who understand that and who have

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lived through and have the experiences of some of the people on the ground, who, when you visit and talk to them, tell you time after time that they want personal, human care, not a medical centre. That is the crucial difference between these services. Social care is about individualised, often very long-term care, often at home. Medical care may be long term, but usually it is a short experience in hospital or with your doctor. They are crucially different elements. They overlap in places but people need to understand both. I certainly would not say that there should not be someone from healthcare on the commission, but there must someone from social care because it shows where the danger is.

4.15 pm

On the issue of human rights in Amendment No. 4, it would be useful if a member of staff was appointed to the new commission to fill the statutory position of human rights director. As is the case with social care, the human rights of the people who use social care and health services has been a continuing issue in our debates on this Bill. Having one senior officer specified in the Bill would give that person real authority within the commission to advise it at a senior level on its responsibilities in relation to human rights. This is an amendment I really believe in. It would also act as a strong reassurance for the new commission to place human rights at the centre of its work and activities. The argument against this proposal is simply put. It would be too great an interference with the structure of the new commission to set down specific provisions in the Bill and the commission would be able to get on with its job without interference from Parliament. Once again this proposal has a clear, recent legislative precedent. The Commission for Social Care Inspection, before its responsibilities for children’s social care were taken up by Ofsted, had the statutory position of children’s rights director set out in the Bill. Drawing from that experience, Dame Denise Platt has said that having an officer whose existence was established by Parliament gave that person real clout within CSCI in keeping children’s rights issues at the fore of its policies.

On wider human rights issues, it is pleasing that during the passage of the Bill the Government have brought forward amendments partially to close the human rights loophole in relation to publicly funded residents in private and voluntary sector care homes. This group of residents will now have the protection of the Human Rights Act, which is most welcome. But that still leaves the group of self-funders, as we mentioned in Committee.

The Earl of Onslow: My Lords, I am pretty certain that the YL case conundrum has not yet been sorted out. This is a problem both for this Bill and the Bill that is being debated in the Moses Room at the moment. It is a very deep and worrying problem which has not been sorted out. The Government have said that they are going to try to sort it out but they have not done so yet.

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