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The amendments propose that part of the main objective should include a requirement to protect and promote rights. Will the Minister explain why the Government consider that the protection and promotion of the rights of service users should be less important for the commission than the protection and promotion of safety or welfare? Do the Government accept that it should be part of the commission’s ethos to encourage regulated service providers to provide their services in a way which protects and promotes the rights of service users? If the noble Baroness agrees, why was it not possible to include an express reference in the Bill under the provision on objectives? I should be grateful if the Minister could share her thinking on these questions with the House so that we can be clear why the stronger position originally advocated by the Joint Committee on Human Rights has not found favour with the Government. I beg to move.
Baroness Barker: My Lords, I wish to address an issue in Amendment No. 10. In doing so, I thank the Minister for the work that she has done to bring forward the set of amendments which I believe she has now passed and which are now part of the Bill. Not only has she dealt with this matter and the House in a fair and exemplary manner, but the legislation is a great deal stronger as a result. I congratulate her and the Bill team.
I am in something of a dilemma as regards Amendments Nos. 10 and 11. I was fully in favour of Amendment No. 10 and could not see what objection the Government could have to it because the word “rights” is far more inclusive than the concept of safety. For example, “rights” would include a patient’s right to expect that their safety would be taken into consideration by providers of services. Were I a government draftsman, I should be delighted to have a much wider and looser concept with which to deal, and, on balance, I still feel that way. However, I have a slight dilemma as regards the amendment of the noble Baroness, Lady Stern, which refers to rights but not to human rights. People who need social care have very few legal rights. For example, there is no right to receive services. However, as human beings they have an expectation that their human rights will be regarded.
On the issue of safety, the noble Baroness, Lady Stern, is doing the Government a favour by proposing an alternative wording and I encourage the Minister to look at that seriously. I refer to double effect. Some medical treatments can have serious adverse consequences for some patients. Doctors may recommend those treatments because they believe it is in the best interest of a patient to do so even though they know that there may be adverse consequences. In doing so they might compromise, or pose a threat to, the safety of a patient. They take a calculated risk for a beneficial reason. This is slightly complicated but, were I in the Government’s shoes, I would prefer to have a measure which did not mention safety. On balance I support the approach taken by the noble Baroness, Lady Stern, but I would prefer the measure to refer to human rights rather than just to rights. However, I believe that she is on the right track and is offering the Government something which they would be very wise to accept.
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Baroness Meacher: My Lords, I had not intended to speak to this amendment but I wish to support the amendment of my noble friend Lady Stern. Working with the Healthcare Commission year by year, I am very conscious that we are required to meet all sorts of standards in relation to safety, care planning and all sorts of procedures, processes, systems and risk management. There are rafts and rafts of standards. When I go round our services—I shall not comment on all the services within my east London mental health trust—I question whether all these standards of the Healthcare Commission have any impact at all on the very personal experience of our service users and patients. For example, respect and dignity are very sensitive and personal issues. If one has in these objectives the right to dignity and respect, that may ensure that the CQC homes in on some of these very sensitive and personal rights which the regulation of systems and processes may not touch. I leave that thought with Ministers.
Earl Howe: My Lords, it would be wrong if I did not add my few words of thanks to those of my noble friend Lady Cumberlege to the noble Baroness, Lady Thornton, and the noble Lord, Lord Darzi, for having listened so carefully to the issues we raised in Grand Committee, and for having responded so constructively to them.
I particularly welcome Amendments Nos. 9 and 12, and not least the fact that we will now have LINks mentioned in the Bill. I am also glad to see “experiences”, in relation to the experiences of patients and service users, substituted for “satisfaction”. It is a more neutral term which is more conducive to the effective measurement of the quality of services. I congratulate the Minister on having reconfigured this part of the Bill in a way that reads a lot better than the original did. We have the objectives and the matters to which the commission must have regard. The way that the clauses flow from one another is a lot better and easier to understand. I for one am glad to see these amendments included in the Bill.
Baroness Howarth of Breckland: My Lords, I support the amendment of the noble Baroness, Lady Stern. I have seen services that offer supreme care but care that is patronising and rather overweening. I have seen care where there has been attention to detail but not to the individual. If we were to include the word “rights” as well as “safety”, we would have to pay attention to personalisation and dignity in residential care, as the noble Baroness, Lady Meacher, pointed out. It would make that subtle difference where care is good but not necessarily personalised and directed to ensure that each individual has that care. While I am on my feet, I add my thanks. It is an exceptional piece of legislation that includes a listening to users provision. The Government are to be congratulated on that if not on all the other clauses.
Baroness Thornton: My Lords, I thank my noble friend Lord Dubs and the noble Earl and noble Baroness for their contributions on Amendments Nos. 10 and 11. We are addressing those amendments, but I shall
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I remain convinced that our amendment represents a more appropriate reflection of the commission’s responsibilities. I shall take this opportunity to explain and address some of the points that were raised. We have responded to the concern expressed in Committee that the Bill should say more on the issue of rights by introducing a broader requirement for the commission to have regard to the need to protect and promote the rights of all those who use health and social care services. As I said in my opening remarks, we should also remember the context, which is that the regulatory regime will reflect the principles of the European convention. As I set out earlier, this includes, but is not limited to, human rights and that is why we do not believe that Amendment No. 53 is required.
Our amendment, as drafted, is appropriate for a body of this type. After all, as I have said before, the commission will be one of a number of bodies with responsibilities in this area. So, while it is important that human rights should inform the commission’s approach and its thinking, its primary objective must be to protect the health, safety and welfare of people receiving services. Neither would it be appropriate to include rights among the outcomes the commission should be expected to focus on in carrying out its functions.
I turn to the point made by my noble friend Lord Campbell-Savours about legal action being brought against the CQC. The Bill contains provisions for those with action being taken against them to make representations to the CQC before action is taken; for example, in Clause 23 on the right to make representations. We would not anticipate that legal action would be necessary if a care home felt that it was being targeted disproportionately.
Lord Campbell-Savours: My Lords, my noble friend did not say that it was not possible. I was seeking to find out whether it could be used as a peg for bringing legal action.
Baroness Thornton: My Lords, I did not say it was not possible; you would have to completely disregard the proportionality, which is already included in the Bill, to do that. It would be unlikely, and not likely to succeed either.
The noble Baroness, Lady Stern, might be interested to know that the Equality and Human Rights Commission has also warmly welcomed the amendment, as drafted. The noble Baroness, Lady Masham, is a great champion of these issues, and she is right to be concerned. Later amendments on Crown application will ensure that the commission’s registration functions can apply to the Prison Service. Our consultation proposed that that should be the case.
Baroness Masham of Ilton: My Lords, will it be written in?
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Baroness Thornton: My Lords, it will not be written into this part of the Bill.
We do not believe that it is appropriate to accept Amendments Nos. 10 and 11 and hope that the noble Baroness will not press them.
The Lord Speaker (Baroness Hayman): My Lords, we are dealing with Amendment No. 10 as an amendment to Amendment No. 9, so it would helpful to know what the noble Baroness would like to do.
Baroness Stern: My Lords, I beg leave to withdraw the amendment.
Amendment No. 10, as an amendment to Amendment No. 9, by leave, withdrawn.
[Amendment No. 11, as an amendment to Amendment No.9, not moved.]
On Question, Amendment No. 9 agreed to.
8.15 pm
The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham) moved Amendment No. 12:
(a) views expressed by or on behalf of members of the public about health and social care services,(b) experiences of people who use health and social care services and their families and friends,(c) views expressed by local involvement networks about the provision of health and social care services in their areas,(d) the need to protect and promote the rights of people who use health and social care services (including, in particular, the rights of children, of persons detained under the Mental Health Act 1983 (c. 20), of persons who are deprived of their liberty in accordance with the Mental Capacity Act 2005 (c. 9), and of other vulnerable adults),(e) the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed,(f) any developments in approaches to regulatory action, and(g) best practice among persons performing functions comparable to those of the Commission (including the principles under which regulatory action should be transparent, accountable and consistent).(2) In performing its functions the Commission must also have regard to such aspects of government policy as the Secretary of State may direct.
(3) In subsection (1)(c), “local involvement network” has the meaning given by section 222(2) of the Local Government and Public Involvement in Health Act 2007 (c. 28).”
On Question, amendment agreed to.
Baroness Thornton moved Amendment No. 13:
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(2) The Commission may from time to time revise the statement and must publish any revised statement.
(3) Before publishing the statement (or revised statement) the Commission must consult such persons as it considers appropriate.
The noble Baroness said: My Lords, I ask noble Lords also to consider government Amendments Nos. 17, 18, 22, 23, 25, 26, 27, 35, 44, 45, 46, 47, 48, 49, 58 and 77.
The importance of user involvement in the Care Quality Commission’s work was another of the strong themes in our debates in Grand Committee and in the other place. We have been convinced from the outset that this must be a priority for the commission. However, a compelling case was made in Committee for the commission to have a more explicit duty to involve people who use services and their carers in its work.
Again various models were put forward. Having considered the most appropriate way to proceed we are now bringing forward Amendment No. 13 which would require the Care Quality Commission to consult on and publish a document setting out how it plans to involve, engage and inform people who use its services—and crucially their carers and families—in its work. It is most appropriate for the commission itself to determine the precise way in which it engages with users and carers but there should be a clear indication in the Bill what user involvement must cover. In this way it will be able to build on and continue the current commission’s good practice.
Therefore, the new clause requires the commission to seek views about not only health and social care services itself, but also how it carries out its own functions. It also makes it clear that the commission can involve people in its work, for instance, as lay inspectors. The commission must have proper regard to views expressed by service users and carers. Transparency will be the key to ensuring that the commission is being effective in engaging people in its work. Crucially, government Amendment No. 46 will require the commission to set out in its annual reports to Parliament what it has done to implement the statement on user involvement.
I am delighted to report that, in their briefing, the Picker Institute, Which? and the National Consumer Council strongly welcomed the Government’s proposals, which they consider will pave the way for a regulator that actively consults and engages with people. Local involvement networks will now provide an important vehicle for involving people in health and social care services and I am sure they will have an important role
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To support this, Amendment No. 49 would amend the Local Government and Public Involvement in Health Act 2007 to require LINks to send their annual reports to the Care Quality Commission, as well as to the Secretary of State. This is obviously not intended to remove the need for the commission to actively engage with people through LINks and in other ways, but it will help to ensure that the commission is fully aware of local people’s views on the services they receive across the country, and it reinforces our belief that LINks are a crucial means of ascertaining the views of users and carers.
I move now to the amendments tabled in response to concerns expressed in Committee about independence from the Secretary of State, in relation to both the Care Quality Commission and the Council for Healthcare Regulatory Excellence. In relation to the Care Quality Commission, compared to the current commissions, the new regulator will have new freedoms to determine how aspects of the registration system will work, and a greater flexibility in the enforcement powers at its disposal to use against failing providers. To demonstrate that we are genuinely determined to afford the commission as much independence as is practically possible, Amendments Nos. 35, 44 and 47 would delete “or modified” in Clause 42, remove the power for the Secretary of State to specify when the commission must publish its proposed programme of reviews, investigations and studies under Clauses 44, 50 and 53, and amend Clause 81 to ensure that the commission is free to determine for itself how it makes and publishes its plans for charging fees.
On professional regulation, Amendment No. 58 removes the Secretary of State’s power of direction over the CHRE in Clause 111. Although this power was included in the Bill to allow the Secretary of State to help the CHRE prioritise its workload, I recognise that noble Lords felt that this could be perceived as undermining the independence of the CHRE. The department has discussed the idea of removing it from the Bill with the CHRE, and as a result of reassurances from the CHRE, I am now confident that it can safely be dispensed with. This group of amendments also contains a number of drafting, minor and technical amendments. I do not intend to go into detail on those, although I am happy to clarify any issues that noble Lords might raise. I beg to move.
Earl Howe: My Lords, I have no hesitation in saying that in this cluster of amendments there is one rather large diamond in the shape of Amendment No. 13, which I warmly welcome, as well as a number of little gems. I am thinking particularly of Amendment Nos. 35, 44, 47 and 58, all of which, in their own ways, remove some of the concerns we had in Committee about the potential for the department and Ministers to influence the commission and the Council for Healthcare Regulatory Excellence. I am grateful to the Minister for having gone to the care that she has in looking at the points that we raised and I congratulate her on Amendment No. 25, which refers to a deceased
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Baroness Pitkeathley: My Lords, I too welcome this group of amendments, showing, as they do, the Government’s commitment to user involvement. I want particularly to speak in very warm support of the mention of carers in Amendment No. 13. One of the key concerns about the Bill was the original lack of requirement on the commission to involve and consult carers during the course of its work, alongside service users and patients. Carers’ lives are influenced to a considerable degree by the quality, accessibility and affordability of care services. Social care policy is finally recognising—through, for example, the Putting People First concordat and the National Strategy for Carers, the latest version of which was launched by the Prime Minister last week—that carers should be seen as partners in care and consulted and involved more by service providers. It was therefore essential that the Bill reflected these developments. These amendments will provide more recognition for carers and more recognition of the fact that most social care is provided not by any agency that is subject to inspection, but by family, friends and neighbours.
Lord Campbell-Savours: My Lords, I want briefly to intervene and make a suggestion. The statement on user involvement states:
(a) promote awareness among service users and carers of its functions”.In Committee, I laboured the point regarding my personal experience. I would like to suggest to the Care Quality Commission as it begins its work that it should require homes to publish on their websites information about the existence of the commission’s reports and, if I had my way, actually to publish the reports. Most people, despite what other people think, do not even know of the existence of the current inspectorate arrangements prior to putting their relatives in homes. They find out about that pretty quickly when they are told about it, but very often they do not know in advance. I want a mechanism to inform people in advance, when they are looking at the glossies, that there is a report that they should read.
Baroness Masham of Ilton: My Lords, I, too, welcome the amendment, but will the service users or carers be able to state their concerns when there are not enough facilities? For example, there is the problem of intensive care costs, which was highlighted in the headlines of the Evening Standard today.
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