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Both of these functions are statutory duties of the local authority and play a crucial part in ensuring the effective provision of care, especially when one bears in mind that models of care, particularly adult social care, are changing very rapidly indeed. Both could therefore be encompassed within the commission’s reviews under Clause 42 or, indeed, Clause 44. Obviously, exactly what will be encompassed in those reviews will be dependent on the indicators that the commission will play an important role in developing.
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When reviewing the provision of adult social services by local authorities, the commission will assess performance by reference to a set of national indicators. These indicators will form part of the single set of national indicators to be reflected in local area agreements used in comprehensive area assessments. These indicators could therefore look at the assessment of needs as part of the assessment of the performance of a local authority.
In addition, we have proposed that the registration requirements should include a requirement on providers of regulated activities to ensure that all people receiving services have their needs assessed, as we said in Grand Committee. In this way, not just those whose care is arranged or funded by the local authority are looked at by the Care Quality Commission, but all service users are covered. If a local authority as a provider is failing in this respect, the commission will be able to take direct action. I also reassure noble Lords that where the commission finds in its reviews that a local authority is failing in the performance of its adult social services functions, including the statutory duties to carry out needs assessments that I have mentioned, it will be obliged to inform the Secretary of State and can recommend any special measures that it considers that the Secretary of State should take under Clause 46.
I turn to Amendment No. 24. In Grand Committee, my noble friend Lady Thornton explained that we agree with the noble Baroness, Lady Barker, on the importance of the General Social Care Council as the key body in relation to the registration of the social care workforce. I have considered the noble Baroness’s concerns carefully and hope to provide reassurances. I should perhaps make it clear that under Clause 85 we anyway intend to allow the commission to make information about enforcement action publicly available.
Obviously, in cases where local authorities are commissioning social care from service providers against which the Care Quality Commission has taken
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We recognise that, in contrast to healthcare, a large proportion of social care services are provided by the independent sector and are self-funded. In many, if not in the majority of cases, the commission’s action will be against an organisation as a whole, rather than against a specific member of staff. In such cases, it is not necessary to require the commission to inform workforce-related bodies, such as the GSCC, as it would not fall to it to take any specific action. That said, when the Care Quality Commission has taken enforcement action against a specific person who is registered with the GSCC—for example, a registered manager who is also a registered social care worker—of course we would anticipate that the commission would inform the GSCC, as enabled by subsection (1)(d), which requires the commission to give notice of the actions specified to any other persons it considers appropriate.
In recognition that there may well be such cases, and if the noble Baroness would find it helpful, we would be very happy to specify the General Social Care Council explicitly within the explanatory notes to Clause 35 as a particularly important example of a body that may need to be notified under subsection (1)(d). I believe it would be preferable to make this link clear but leave a certain amount of flexibility according to the circumstances rather than accept this amendment as it stands, which will require the commission to inform the GSCC about every enforcement action it takes, whether concerning a person registered with the GSCC or not. Given those reassurances, I hope that the noble Baroness, Lady Barker, will feel able to withdraw her amendment.
Baroness Barker: My Lords, I thank the Minister for that reply. I take his point about the GSCC and it is a helpful suggestion that it be referred to in the explanatory notes. On Amendment No. 33 and the periodic reviews, I welcome his statement about assessment. I will read his words carefully in Hansard. I wish to satisfy myself absolutely that what I wish to see—the assessment of all social care needs, not just those social care needs which meet eligibility criteria, which is actually what he said—is there. With that caveat, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 [Death of registered person]:
Lord Darzi of Denham moved Amendment No. 25:
On Question, amendment agreed to.
Clause 39 [Power to modify Chapter in relation to newly regulated activities]:
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Lord Darzi of Denham moved Amendments Nos. 26 and 27:
“( ) Any regulated activity carried on by or on behalf of the Crown is for this purpose a newly regulated activity.”
On Question, amendments agreed to.
Clause 41 [Standards set by Secretary of State]:
Baroness Stern moved Amendment No. 28:
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 29 and 31 standing in my name and in the names of the noble Earl, Lord Onslow, and the noble Lord, Lord Dubs. These amendments are proposed by the Joint Committee on Human Rights and are a very slightly amended version of amendments not moved in Committee. Currently, the Bill provides for the Secretary of State to have the power to make standards in relation to the provision of NHS care. The Joint Committee on Human Rights is proposing that “may” should become “shall” and that the power to publish standards should also apply to all health and social care. We are also proposing that these standards should include specific and detailed matters to ensure that human rights are respected. This list in Amendment No. 31 is not plucked out of the air. It is based very closely on the recommendations arising from the Joint Committee on Human Rights’ inquiry into older people in healthcare. In that inquiry, the committee welcomed the existing healthcare standards which require the NHS to respect human rights and treat patients with dignity and respect. However, the committee felt that more specificity was needed. This was based very much on what emerged in our inquiry from the evidence we received and the places we visited.
The committee considered that the human rights of residents should be explicitly addressed in the standards which apply to both health and social care to make it clear that the human rights of people in care homes are as important and as enforceable as the human rights of patients in hospital. The committee went on to make a recommendation about the Bill we are discussing today. I will quote briefly what we said:
“We also recommend that when the Health and Social Care Inspectorates are merged the standards applicable to quality of care and other issues engaging the human rights of users of services should be the same for both NHS trusts and care homes. The unified standards should expressly require compliance with human rights standards by hospitals and care homes and state that patients and care home residents have the legal right to respect for and protection of their human rights. The newly established inspectorate should provide guidance to providers of services on the implications of such requirements”.
The Government responded to that recommendation very helpfully, saying:
“It is our intention to introduce an integrated registration system across health and adult social care, based on a set of requirements that apply across all settings”.
In light of that commitment, I ask the Minister why the Bill currently enables the Secretary of State to make new standards for the NHS but not for social care and why the Government do not consider it
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Earl Howe: My Lords, in Amendments Nos. 34A and 34B, which are grouped here, I turn to an issue that I consider to be of fundamental significance for this part of the Bill and our understanding of the identity and functions of the Care Quality Commission. The issue turns on a very basic question: will the CQC actively promote the highest standards of care and treatment in health, social care and mental health, or will it merely seek to maintain and police a set of minimum standards that are geared to patient safety? The two aims are completely different. It is no exaggeration to say that the very character of the organisation will rest on what the answer to the question is.
At the moment, we see the Healthcare Commission making it its business to assess the performance of NHS providers against not only a scale of quality standards but also each other in the way that trusts are ranked. The commission sees itself not just as a promoter of patient safety but also as actively assisting the drive to raise standards of care across the piece. In the same way, CSCI operates a quality rating system, which aims to achieve something very similar with social care providers.
What prospect is there of the CQC continuing this kind of corporate mission? I was very struck when I read a few days ago chapter 6 of a document published by the Department of Health called Developing the NHS Performance Regime. The chapter covers independent regulation and says in paragraph 150:
“The main responsibilities of the CQC are to ... register health and social care providers ... carry out a periodic assessment of all NHS providers and commissioners ... carry out special reviews of services, along patient pathways or into other areas of concern or risk in terms of patient safety ... carry out investigations into specific organisations where CQC believes that user safety is seriously at risk; and gatekeeping and proportionate regulation ... However, the principal role of the CQC will be to register health and adult social care providers”.
I do not belittle the importance of patient safety; of course not. However, the message from that to me is quite concerning; it is of a piece with the consultation document issued by the department on the framework for the registration of health and social care providers. That says, in paragraph 2.13:
“The set of registration requirements in this consultation is intended to protect people using services from the risk of harm involved in the provision of health and social care. They do not seek to enforce best practice that other parts of the system will promote”.
“In moving to a regulatory system which is based on essential safety and quality requirements rather than desirable best practice standards, we propose to put a greater regulatory focus on essential outcomes and on addressing the risks”.
Taken together, these statements tell a very clear and, for me, rather depressing story. They tell us that the department is putting the CQC into a tight box marked “patient safety”. The principal role of the CQC, in the Government's eyes, will be to register health and social care providers and to police and enforce a set of minimum quality standards.
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The obvious question that springs from this realisation is: what significance should we now attach to the commission’s objectives as set out in Amendment No. 9? What weight should we place on the matters listed in Amendment No. 12 to which the commission must have regard? Those questions may seem surprising after our debates earlier, but if the commission’s main focus is registration and safety, what added value is likely to emanate from active user involvement in the commission’s work—the thing that we were all so keen on, and so glad to see incorporated into the amendment?
Of course, these things are of key relevance if we are dealing with a regulator concerned with identifying and promoting best practice in health and social care. But contrary to the hopes of many of us, it does not appear that the CQC is going to be that kind of animal. In a real sense, the powers conferred upon the Healthcare Commission and on CSCI are going to be diluted by the Bill now before us. What is the Minister’s answer to this? If the CQC will not be directly promoting improvement and best practice in health and social care, who will be?
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We have heard some brave and ambitious statements from Ministers. If they are sincere about wanting the CQC to be a force for change in driving up standards, and if the amendment on objectives is really to count for something, we in Parliament ought to send out a clear signal to the commission’s shadow chair. She needs to formulate a mission statement which speaks not only of registering providers and guarding patient safety—activities that set rather unambitious horizons for the organisation—but of inspiring people to do better, celebrating best practice, promulgating it and, in so doing, giving the NHS the means whereby less high-achieving health providers can pull themselves up by the bootstraps, not because they have had a regulatory sword wielded over their heads in a rather threatening manner but because they are genuinely hungry to do so. The same would apply to social care providers.
For me, the most telling sentence in the Bill’s Explanatory Notes is the one that comes under Clause 41. At the end of paragraph 192, which covers the quality standards for NHS providers, it says that:
Indeed so. That is something which I believe, even at this late stage of our debates, we should reconsider—hence these amendments.
Lord Warner: My Lords, I had not intended to speak at such a late hour, but I feel that I must raise an area of concern which has come to me perhaps a little belatedly. It is prompted by the amendment of the noble Earl, Lord Howe, and the detail of the amendment moved by the noble Baroness, Lady Stern.
We are getting ourselves into an increasingly difficult tangle over a set of words which keep being bandied about. I will illustrate this with five or six of these words. I am grateful for the movement that the Government have made in terms of bringing
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We now have in play: targets for performance review, registration requirements, guidelines, indicators of quality, and standards. Even anoraks such as ourselves may, broadly speaking, understand what all those words mean. However, I have to confess that even I am beginning to struggle intellectually with how the words all relate to one another. There is an issue for the Minister—to take them back to some of his colleagues to see whether we cannot get a little more clarity about the precise relationship between these words and what they all mean. We will certainly need a glossary—as will the noble Baroness, Lady Young, as chairman of the commission, together with her colleagues—to understand the relationship between these various pieces of terminology. Before we get to Third Reading, we need a little more clarity about how these words all relate to each other, to what extent they fall under the registration requirements, to what extent they are part of a performance management regime, and to what extent they are part of the information given to the public about how particular bodies are performing. I am sorry to dump this matter on the Minister this late at night, but before the Bill leaves the House I think that we should all be clear how the words relate to each other.
Baroness Thornton: My Lords, I thank my noble friend for those largely helpful comments. The amendments relate specifically to Clause 41, which concerns the publication of statements of standards relating to healthcare provided and commissioned by primary care trusts. PCTs will need to have reference to standards issued under this clause in discharging their duty of improvement under Clause 134.
As we made clear in earlier discussions, it is important to remember that the standards which will be drawn up under Clause 41, unlike the registration requirements on which we have been consulting, are not intended to be requirements that providers of regulated activities must meet in order to be registered with the Care Quality Commission. The registration requirements that we have been consulting on will apply to all registered health or adult social care providers, including providers of non-NHS care. Breaches of those registration requirements will result in sanctions from the Care Quality Commission.
Through the Bill, we are seeking to establish a unified framework for the regulation of health and adult social care services. The current consultation proposes registration requirements which the new commission will be able to enforce against any registered provider of care. They have been developed in line with the spirit of the relevant provisions of the European Convention on Human Rights and cover topics including safeguarding people when they are vulnerable; ensuring that people get care and treatment in safe, suitable places which support their independence, privacy and
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Standards under Clause 41, on the other hand, will not be subject to the Care Quality Commission’s enforcement powers if they are not met. Instead, they will be designed as improvement tools to help to deliver high-quality, publicly funded healthcare.
As discussed in Grand Committee, we do not believe that the Secretary of State should be required to issue standards, as envisaged under Amendment No. 28. Standards should be issued only where it is clear from the evidence that they will assist in enabling quality to be improved, and sometimes the evidence does not allow for that. In my view—and I very much support the ambition of clear standards for all areas of healthcare—it is sufficient to give the Secretary of State an enabling power.
We also stated in Grand Committee that we do not believe it is necessary to make similar provisions to apply to publicly funded social care, as envisaged by Amendment No. 29. Such related standards are for the Minister for Communities and Local Government to issue under the Local Government Act 1999.
If the standards under Clause 41 are to deliver real improvements in care, they must be flexible enough to cope with changes—and indeed with improvements—in services over time and be subject to full public consultation. Consequently, to set them in legislation now, as Amendment No. 31 seeks to do, would begin to remove that flexibility and pre-empt any such consultation and engagement.
Nor do I believe that the commission should be required to take certain standards into account in its periodic reviews of English NHS providers under Clause 42, as I understand is the noble Earl’s intention through Amendments Nos. 34A and 34B. I have already made it clear that we intend to delegate to the commission
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Of course, under Clause 134, PCTs will already be required to take the standards under Clause 41 into account when exercising their duty to ensure that NHS healthcare continues to improve. The commission will undertake periodic reviews of PCTs to provide an independent assessment of how effective the PCT has been in assessing its local needs and improving outcomes for its local populations. Even if the commission decides that standards need not play a direct role in periodic reviews of NHS providers, it will nevertheless have contributed to the performance of PCTs.
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