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Baroness Howarth of Breckland: My Lords, I am most grateful to the noble Earl, who reinforces my argument for someone in the commission to look after

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human rights. This would be only one part of the role envisaged for the human rights director. That role would also encompass mainstreaming, the rights of detained patients and others deprived of their liberty under the Mental Health Act. There will be many issues in relation to human rights within the health sector more generally on which this officer could advise the commission at the highest level and ensure that the information was accurate at every moment. Having the post designated in the Bill would give such a person strong and clear authority.

We have another precedent in relation to human rights. During the passage of the Human Rights Act, a position was established which is held by my noble friend Lady Campbell in the Human Rights Commission. So I think there are precedents for this kind of measure. It would be wrong to bind the new commission and its management excessively in the Bill, as has been outlined, but the measure clearly has a precedent in the old commission and I hope that the House will support that position.

Lord Ramsbotham: My Lords, I support the amendments that my noble friend Lady Howarth supports and the amendment that she is not sure whether she still supports. I support Amendment No. 3 because, while I absolutely agree with the noble Lord, Lord Warner, that legislation should be about “what”, not “how”, in this case there is a slightly lateral reason for supporting the idea that there should be a commissioner for social services on the commission. I have already mentioned the problem of children under Ofsted. If such a commissioner had to be on the commission, there would be a jumping-off point for the looking after of children, if that were deemed appropriate, because the commissioner would already be in place and you would not have to start again from scratch or search around within Ofsted.

Lord Lipsey: My Lords, at the risk of appearing to be wimp of the week in your Lordships’ House, I prefer Amendment No. 2 in the name of the noble Earl, Lord Howe, and Amendment No. 3 in the name of the noble Baroness, Lady Howarth, to my Amendment No. 8. They achieve much the same thing without injecting the structural over-rigidity that noble Lords have pointed to. I am not yet totally convinced that we have the best solution, as opposed to a better solution. Perhaps I may address the Minister specifically: given that we are now very much on consensus grounds, might it not be appropriate for the noble Earl to sit down with the noble Baroness, Lady Young, and those of us who have expressed a particular interest in this, including the noble Baroness, Lady Barker, to see whether we can find an even better solution to the problem at which these amendments are aimed and introduce it at Third Reading to enable the Bill to go through with a wider consensus than seemed likely at one stage—although it is up to the noble Earl whether he presses the amendment to a Division?

Baroness Murphy: My Lords, I am sure that the Minister will realise that we are all after the right consolation prize. I very much agree with what my noble friend Lady Howarth said. We have worked through this as a team, we are where we are, but we all

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had a great sympathy with where the noble Lord, Lord Lipsey, started from. Now we are trying to see whether in Amendment No. 2 we can at least get some balance of focus among the members of the commission who discharge its functions and make a variety of other stronger changes in the amendment of my noble friend Lady Howarth. Amendment No. 2 is the practical one, in my view, and I share the view of the noble Lord, Lord Lipsey, that we should at this point seek some consensus that we can agree to bring back, to reflect our continuing anxieties about the focus of the commission.

Lord Walton of Detchant: My Lords, my intervention will be extremely brief and I cannot but say somewhat wryly that in 19 years in this House I have learnt conclusively that one can never predict with any confidence that entries in one’s diary will be fulfilled when interesting developments, such as the intervention of Statements of various kinds, almost inevitably disrupt the timetable on which one would hope that the issues that one wished to speak about could be resolved.

However, I have great sympathy with Amendment No. 2, ably moved by the noble Earl, Lord Howe, and supported by others. I confess that when the Bill was first drafted, I, like many others, including the noble Lord, Lord Lipsey, and my noble friend Lord Ramsbotham, felt grave concerns about the merger of these very important bodies, each of which seemed to have clear-cut and distinct functions. The more I have listened—from time to time I have been concerned with the discussions in Grand Committee—the more I have recognised that there is a very substantial virtue in the merger of these bodies. In any event, this is now water under the bridge. Initially, I felt strongly in favour of Amendment No. 8, put forward by the noble Lord, Lord Lipsey. If this merged body is to function effectively, it might be necessary to have three separate commissions. But that is contrary to the whole ethos of the Bill. Integration is crucial for this whole issue; that is, a closer understanding and mutual interest between those concerned with the regulation of health, those concerned with the regulation of social affairs and those concerned with mental health.

Many years ago, I chaired the Nuffield Provincial Hospitals Trust meetings on communication between doctors in various branches of medicine, and on communication between doctors and members of other professions, and one comment has stuck in my memory. It was of a social worker speaking to a doctor, who said, “I can’t hear what you are saying when what you are rings so loudly in my ears”. Such a lack of mutual understanding quite often prejudiced the collaboration between doctors and social workers. The situation has vastly improved.

The crucial aspect of this Bill, which is enshrined in Amendment No. 2, is that within this commission there should be individuals who are experienced in and knowledgeable about health, social care and social matters and, also, those who have got experience in mental health. The membership must reflect that kind of interest. If that is achieved, it is likely that the integration will result in a much closer collaboration and mutual understanding between the various branches of work to which I have referred. For that reason, I

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strongly support the principle outlined in the amendment tabled by the noble Earl, Lord Howe, and others. The crucial thing is that that kind of membership will be achieved within this commission in order to develop the integration which everyone wishes to see.

Baroness Meacher: My Lords, I, too, support Amendments Nos. 2, 5 and 6, to which I added my name. The noble Earl, Lord Howe, clearly articulated the arguments for these amendments. I want to put on record my reasons for having shifted my position since we last debated these issues. In Committee, I pressed for a mental health sub-committee to try to make absolutely sure that the role of the Mental Health Act Commission in relation to detained patients was not lost. Others argued for a social care sub-committee or for specific work strands to be represented on the commission itself.

I thank Ministers for our very helpful discussion since the Committee stage on this issue and many others. They are clearly well aware of the concerns, in this House and elsewhere, about the potential for acute health services to dominate the CQC, if only because those services have such enormous public interest and considerable problems, as we know well.

I have become conscious of the need for flexibility within the CQC as, over time, services within the country and the role of the CQC evolve. Even at this stage, the remit of the CQC to regulate services delivered to individuals and small groups and to hospitals and large organisations may require an organisational structure that will not, in fact, fall neatly into health, social care and mental health. For example, taking one possible scenario to illustrate a point, one could envisage a structure with five work strands: individual rights, hospital services, community homes, commissioning, raised by the noble Lord, Lord Warner, and perhaps prison health services. In such a structure the individual rights strand could cover detained patients in psychiatric units, but also individuals whose rights are protected by the Mental Capacity Act, very much in the social care field. However, they have problems very similar to those of detained patients—they are, de facto, detained and they are often given medication without informed consent either because they are not capable of giving that consent or because they are alleged not to be capable. Another group of people who might be covered in that single strand of individual rights could be, for example, people on community treatment orders who have not been covered by the Mental Health Act Commission because those orders do not come into effect until the autumn of this year. Things are changing year by year.

I hope that I have said sufficient to explain why I have come to the conclusion that the one thing we must not do in this House at this time—we are not capable of doing it—is to try to be specific about the structure of the commission and sub-committees on the CQC. I therefore strongly support Amendments Nos. 2, 5 and 6. Those amendments take account of that vital flexibility. I would be concerned about having another jig at this because the incentive for a numberof noble Lords is to try to be more specific. That would be unhelpful and would not be in the best interests of patients and service users in future.

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4.30 pm

Baroness Barker: My Lords, my name is not added to any of these amendments. The reason for that is that I do not want a consolation prize. I am clear about what I want: a commission whose objectives are sufficiently clearly set out that its purpose is unmistakable and one which involves the right people making those objectives become a reality. I do not underestimate the difficulty of what is being attempted here. I hesitate to say this in front of the right reverend Prelates but—this follows on from the comments of the noble Lord, Lord Walton of Detchant—someone once said to me that trying to get health and social care groups to talk to each other in a meaningful way was like trying to get one bunch of people who believed that health professionals are gods to speak to another bunch of people, social workers, who have strong doubts about the existence of god but who are absolutely certain that, whatever else he is, he is not a health professional.

The standing of any regulator depends on the way in which it is set up—the objectives that are given to it and, often, the strength of the personalities and depth of experience of the people who go along to it. One problem is that we do not know who will be involved at any one time; we could have someone who was extremely forceful and knowledgeable about mental health, which might make us feel differently about the rest of the composition. We also need a body that is sufficiently resilient to be able to advise government when their policy is wrong and withstand the pressure that can fall on regulators when scandals happen. Scandals are one of the main drivers of policy, particularly in health and social care. We need a strong body that can ride out the storm of a scandal and keep true to its strategic objective.

I am not convinced that we have got an answer but I am convinced that we need to set out in statute the composition of the commission. That is why I would like the opportunity, between now and Report, to find out from the existing commissioners what, in their experience, has enabled them to do their jobs as well as they have done. In particular, I wish to find out from them what enabled them to be proactive and what made them sit up and think afresh. Has it been coming into direct contact with users; has it been doing long-term work with subgroups of people; or has it been the dynamic process of bringing different people together and moving them forward?

I want to end up with something like Amendment No. 2, which will mean that at any point when a strategic or major decision is made there is somebody who comes from a background sufficiently different from everybody else in the room who has the power to say, “No, what you are doing is wrong. Think again”.

However, I should still wish for the opportunity to talk to Ministers and the existing commissioner to make sure that finally, we get this right.

The Earl of Listowel: My Lords, I support Amendment No. 2 and what my noble friend Lady Howarth of Breckland said regarding the special nature of personal human relationships in terms of social care. There is

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concern that culturally, as a nation, we have so far undervalued and misunderstood the nature of that special relationship that we need to be very careful that that status is not in any way undermined. I was not a part of the group working through the Bill in Committee, for which I apologise, and I know that these thoughts were well represented.

Although I know that we are dealing with adults here, perhaps I may refer to the experience of children. I was at a meeting earlier today where a foster carer had two 13 year-old foster children with her. She said that when they came into her care they had a 30 per cent attendance rate at school; currently in her care, they both have a 100 per cent attendance rate and are doing very well in their studies—one wishes to go on to university. But in three years’ time, at the age of 16, they may have to move on from her care. Some 25 per cent of young people in care leave at the age of 16. I know that the Government are taking admirable steps to address this, but it will be a very long process.

If one compares what happens on the Continent—in Denmark, for instance—where a young person can be looked after in the same placement until their late 20s if they wish to, one sees that we have not recognised that enduring, long-term relationships can be so important in achieving what we wish. These children bear the cost of these long-term relationships not being valued by entering the criminal justice system and failing in various other ways; the adult population bear the cost of having to care for them in hospital when they might have been cared for at home if the necessary priority had been given. I am very worried about the status of those front-line people delivering the relationships which enable social care to function. There needs to be a recognition of the cost involved and that the best input into these carers is needed—foster carers in this case, and adult carers of other kinds.

I look forward to hearing reassurance from the Minister, which I am sure will be forthcoming. I also see that the new leader of the commission is here, so this is an opportunity to raise these issues with her.

Lord Low of Dalston: My Lords, I was going to support Amendment No. 8, tabled by the noble Lord, Lord Lipsey. I do not see that the demands of integration, which are a real potential strength of the commission, are incompatible with the need for specialisation. Indeed, no cake is indivisible; it has to be split up in some way or another. The main board of the commission will probably need specialist advice on issues dealing with health, social care and mental health. It is the role of the main board of the commission to bring those streams together in an integrated way and achieve cross-fertilisation.

My position has moved somewhat, as has that of other noble Lords, as the debate has gone along. Indeed, it has moved further in the course of this debate, as I shall indicate in a moment.

As discussions have taken place between Committee and today, I have been keen to see that we are not too prescriptive about what we put in the Bill and that we leave the new commission room to make sufficiently flexible arrangements as to its structure so that they

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can be changed over time to meet changing circumstances. That does not absolutely preclude putting something definite, such as specialist committees, in the Bill. For example, the Commission for Equality and Human Rights, which is often referred to in this context, has a disability committee which has been established for five years and the question of whether it should continue at the end of that period will be subject to review. We could do something like that in this Bill. However, I am persuaded that we should not do anything too prescriptive, and perhaps Amendment No. 2 will achieve that.

I think—I should be glad if the noble Earl, Lord Howe, would confirm this—that Amendments Nos. 2, 5 and 6 hang together, so I would not want Amendment No. 2 to be agreed to without Amendments Nos. 5 and 6. They refer to slightly different things and stand together as a package. However, what has most decisively caused me to shift my position further today is the fact that the noble Lord, Lord Lipsey, no longer wishes to press his Amendment No. 8. Indeed, he pre-emptively withdrew it even more forcefully than he withdrew Amendment No. 1.

Lord Lipsey: My Lords, I have not withdrawn my amendment. I said that I preferred others and that if another—or the process for finding an even better one—were accepted by the Minister, I would then be minded to do so.

Lord Low of Dalston: My Lords, I apologise to the noble Lord for reading too much into what he said but I am very happy to align my position with his. If the Government could come up with a formula that took account of the need to recognise the respective fields of health, social care and mental health in the commission’s structure—indeed, if they are not able to come up with a formula today but would, as the noble Lord suggested, have further discussions with interested Peers with a view to getting the right form of words on which we could all move forward together—I should be very happy to support that position.

Baroness Howe of Idlicote: My Lords, I apologise for not taking a very large part in this debate but, as your Lordships know, a lot of competing Bills have been going through the House simultaneously and my time has been taken up with the Criminal Justice and Immigration Bill. However, things have clearly moved on and I have very much kept in touch with what has been said. I had enormous concerns at the beginning, very much along the lines of those of other people who have spoken today, but I have been impressed by the extent to which everyone has been persuaded along this road. I should make it clear that this approach of amalgamating a number of bodies—what I call the “Lord Carter of Coles process”—has been going on throughout my time in your Lordships’ House in a number of areas, including legal services, equality, the criminal justice system and communications, with Ofcom; this is another one.

I should have been very much in favour of a number, if not all, of these amendments—in particular, I should have liked to support the suggestions put forward by

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my noble friend Lady Howarth—but if you are setting up this sort of commission and inspectorate, is it really sensible to give one group special attention over and above the others, as we have heard already with regard to the disability group? There is bound to be a feeling of inequality.

4.45 pm

What I have picked up, as has everyone else, is that we need to ask the Government to think through something that will meet those needs, because the provision is clearly not yet perfect. It is important that human rights are made explicit in the Bill. I very much like the phrase used by my noble friend Lady Howarth: the problem with nursing homes is that they have nursing but alas, in many cases, are no longer seen as homes for the elderly and those requiring full-time care. They do not get as much attention as they would if they were in their own homes.

We are down this road. The Government are determined to get all these groups to work together. They have been planning it in all the different areas that I mentioned ever since I came into your Lordships' House. That is their pattern. We have gone along with it to a certain extent and in some cases have approved the path that we are on. I have and will continue to have my reservations about what has been done, but we are where we are, as has been said by others, so I support the amendment.

Lord Darzi of Denham: My Lords, I recognise the need for the right competencies and expertise in particular areas of the commission’s work. I also understand and support the intentions behind most of the amendments.

As has been pointed out, last week the shadow chair of the Care Quality Commission—the noble Baroness, Lady Young—wrote to Peers signalling her commitment, working with the Appointments Commission, to ensure that the collective skills, expertise and background experience of the commission’s membership reflects the importance of mental health and social care as well as health and other users’ interests.

As the noble Lord, Lord Walton, pointed out, our purpose here is to achieve the right competencies to achieve the right integration. However, the amendments in this group reflect different approaches to ensuring that the Bill reflects that crucial aim.

I have some sympathy with Amendments Nos. 2, 5 and 6, proposed by the noble Earl, Lord Howe, and supported by the noble Baronesses, Lady Cumberlege, Lady Murphy and Lady Meacher. They propose flexible mechanisms which seek to ensure that the commission’s chair, members, committees and sub-committees collectively represent the range of the commission’s statutory functions. I will have to reflect on whether the noble Earl’s approach, which focuses on the commission’s vital role in monitoring the use of powers under the Mental Health Act and its review functions specifically under Clauses 42 and 44, really delivers the desired result. However, I applaud his ambition to secure proper representation while maintaining flexibility for the commission itself to decide how best to deliver its statutory functions. I am delighted to have heard

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that in recent days many noble Lords have acknowledged that it is vital for the commission to maintain that flexibility.

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