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My view is that regulation is a wide, embracing and generic process. It is about drawing information from a whole variety of sources to allow a regulator to take a view about the performance of an individual institution and about its managers. It needs to draw from inspection as one source of evidence, but also from a whole variety of others—including the views and verdicts of carers, families and, indeed, staff. My experience in the regulatory field is of one who shies very much away from minimum inspection frequencies because, over time, services and circumstances change and that mix of information, from a whole variety of sources, needs to be adjusted.

The problem with minimum inspection frequencies as a statutory requirement is that they are, as your Lordships know well, quite difficult to change once in a statutory process, even if in statutory guidance. As a result, they are incredibly inflexible. In my previous regulatory roles, I have experienced circumstances where everyone knew that as a result of minimum inspection frequencies we were having to do things that were, frankly, crazy and a poor use of public resource. Yet we had no means of getting the appropriate regulatory change made to allow more flexibility. I really would not like to see the CQC in that position.

The noble Lord, Lord Campbell-Savours, aptly raised a recent report from the Commission for Social Care Inspection indicating that one of the best determinants of quality for a particular group of patients was, indeed, observation. Rather than a minimum inspection frequency, understanding how staff were relating to patients—and how that institution encouraged that degree of inter-relationship—was probably one of the best determinants of quality in that setting, which was the care for people with dementia. It would really be unfortunate, then, if the Care Quality Commission had an absolute requirement on minimum inspection frequencies and none on any of the other sources of information or regulatory models that it might feel best able to deploy, over the next few years, to produce the best outcome for users, patients, carers and their families.

As one word of support for the current Commission for Social Care Inspection, I do not believe that it operates a desk-based exercise supplemented by self-assessment. It is working hard to develop models that are genuinely risk-based and proportionate, taking the best research evidence it can for the most effective set of information to find out about an institution and the care settings of individuals. I believe that we should be giving the CQC that sort of encouragement for the future, rather than setting minimum inspection standards.

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Baroness Howarth of Breckland: My Lords, I was going to have a self-denying ordinance and not speak at this point, mainly because I did not want to get into a difficult debate with the noble Lord, Lord Campbell-Savours, for whom I have the utmost respect. I believe that his heart is solidly behind ensuring the protection of vulnerable people, but I feel that I need to support the noble Baroness, Lady Young, in her endeavour not to find herself with a set of minimum standards that will make regulation very difficult.

I just want to mention one group of people who have not been mentioned at all in this debate but who were mentioned a great deal by Members on the Benches opposite in a discussion on the previous Bill: the providers of those services, who have to deal with regulation. I spend quite a lot of time with providers and I am a provider myself; I declare an interest as the chair of Livability. I am immensely grateful that inspectors come in and do in-depth, all-round inspections, where they come to observe. There are some tick boxes—I may have a bit of a difference of opinion about terminology with my noble friend Lord Ramsbotham—but, all in all, the approach is very rounded.

I do not doubt for a minute that not every inspection is perfect. Having worked in so many large organisations, I know how difficult it is. However, I also know that service providers who feel that they have worked immensely hard to get their service to a high level of provision find it difficult to be faced with the fact that here we are considering streamlining regulation on the benefits to the vulnerable elderly so that they get more attention. One criticism made in the BBC report was that an inspector said that they did not want a poor report because it meant more work. Indeed it does mean more work, because if you get a poor report, you get the inspectors back quite a lot until you improve. One of the positive things about CSCI is that, unless the service is dangerous, in which case it is closed immediately, the organisation works hard with the provider to bring services up to the appropriate level, because the alternative—closure—is disastrous for the vulnerable elderly. Anyone with a medical background will tell you that if you move the frail elderly or vulnerable severely disabled people, the likelihood of their death is increased. I have been faced with that option myself in the past.

In thinking this through and thinking how we move forward, we should recognise that all of us—I am absolutely with my noble friend Lord Ramsbotham in this—want CSCI to have enough resources to carry out the inspections that it believes are needed, but not to be so stuck in a framework that it cannot manage that flexibly. We do not want really good providers being punished by what they may feel is overregulation because of those who do not provide the best service. I apologise for making my small intervention, despite having said that I would not speak.

4 pm

Baroness Thornton: My Lords, as I hope I made clear when we discussed my noble friend’s amendment on Report, there is no intention to reduce the total amount of inspection activity or to reduce the new

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commission’s ability to act where care providers are failing to meet the safety and quality of care that users are entitled to expect.

On Report, we heard the views of several noble Lords who, while emphasising the importance of visiting and dealing with poor services, recognise the value of focusing resources on those services rather than on those that are doing well, as explained by the noble Baroness, Lady Howarth, who should never apologise for her interventions. That is why we are emphasising the benefits of unplanned rather than routine inspection and of intelligent and proportionate regulation, as explained very well by the noble Baroness, Lady Young of Old Scone, who, from her great experience, put the case for how robust regulation might take place.

I wrote to my noble friend yesterday following up on our previous debate, including responses from the Commission for Social Care Inspection to the points that he raised. Again, I cannot emphasise enough the importance that we place on keeping providers on their toes. However, as I hope I made clear before, although it will not be necessary in most circumstances, Clause 61 already gives the Secretary of State the power to set the frequency of inspection in regulations, should that be required in particular circumstances. I feel like the referee who cannot take much action, in this case between the BBC, CSCI and the concerns expressed by my noble friend. However, if I can help in any way to clarify and reassure him about what has happened, I will be happy to do so.

On the point about CSCI getting worse, we have no evidence to suggest that its performance is changing for the worse or that standards are slipping, but I understand my noble friend’s concerns and I undertake to follow this up further.

I hope that my noble friend will appreciate that we are committed to establishing a proportionate regulator that focuses its attention where it is needed most to get the greatest safety and quality benefits for patients and service users. While drawing on the best experience of the current commissions, we intend to leave those vital inspection decisions to the discretion of the commission, as the noble Baroness, Lady Young, indicated. It will be the commission’s job to set specific frequencies if they are required, so I hope that my noble friend will feel able to withdraw his amendment.

Lord Campbell-Savours: My Lords, I have listened carefully to what my noble friend has said and to the comments of other noble Lords. The noble Lord, Lord Ramsbotham, said that there was a need to draw a clear distinction between regulation, audit and inspection and the approach of ticking boxes. I hope that the successor organisation has that clearly in mind when it sets out to undertake its task.

The noble Baroness, Lady Young, has sought to reassure me. I wish her good luck in the task that she is to undertake. However, “risk-based and proportionate” inspection frightens me, because I know, as will other Members of the House, what that means. It means that some will get through that should be sorted out, but they will not be sorted out because they will slip through under that regime. However, if we are to proceed by introducing and using the reserve power to which my noble friend referred, then so be it.

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The noble Baroness, Lady Howarth, referred to flexibility in inspection in her support for the noble Baroness, Lady Young. I understand perfectly where she is coming from, because she has made a number of contributions to which I have listened closely during the various proceedings on the Bill.

Finally, the Minister said that she undertakes to follow this up further. We could read a lot into that. I certainly want to do so, as long as following this up further is based on taking evidence not only from but through CSCI. If the information that my noble friend seeks comes from the senior management of CSCI, it will only reiterate the case that CSCI has made repeatedly in recent months that almost everything is all right. I do not accept that. If she means that she will seek evidence from a wider cohort of people—one that does not necessarily include the group that I have just referred to—I wish her the best of luck and I think that we will find where the truth lies. I hope that at some stage in the future I can table a Question to which she can give us far more up-to-date information than the information that is currently available. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Gardner of Parkes moved Amendment No. 4:

(a) the General Medical Council,(b) the General Dental Council,(c) the General Optical Council,(d) the General Osteopathic Council,(e) the General Chiropractic Council,(f) the Royal Pharmaceutical Society of Great Britain,(g) the Pharmaceutical Society of Northern Ireland, or(h) any regulatory body within the meaning of Schedule 3 to the 1999 Act established by an Order in Council under section 60 of that Act.”

The noble Baroness said: My Lords, I brought forward this amendment twice before when it covered only dentists, but at the Report stage on 24 June it became clear that this situation affects all healthcare professionals. They run the risk of finding themselves removed from registers simply because they have ceased to practise. They cease to practise for many reasons: maternity leave; illness; the wish to follow a different career for a time; or simply that they are old enough to think about giving up active practice. The amendment before noble Lords today contains a list of the healthcare professions that may be adversely affected.

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The General Dental Council considers it important that a list of non-practising dentists should have some public value rather than just private or personal value. I do not disagree, but the council underestimates the importance of knowing which trained professionals were practising as well as those who are still practising. All sorts of situations can arise. There could be an epidemic in an area, a pandemic could break out or a national emergency develop when it might be extremely useful to know where all those with skilled healthcare training could be contacted to give assistance. That can happen only if their details are retained on a register. People move house, sometimes to be closer to their families. The last dental register for retired dentists who wish to continue to be listed without continuing professional development and in a non-practising category was produced in 2004. Even by this year many of those details will be out of date. Who knows how much more time might go by before any call is made on these people?

I turn to the Good Samaritan issue, raised on Report by the noble Lord, Lord Walton of Detchant. At the moment doctors can remain on a list, but that is now under threat. What would be the noble Lord’s position if he were called on to save the life of a fellow Member of this House? Would it be a case of saying, “No, I am sorry”? That reminds me of the news story about the community support officer who was told not to dive in to save a drowning child. He said, “I can’t dive in the water to save that child who is drowning because health and safety prevents me from doing so”. Good Samaritans are needed on many occasions; indeed, in France you have a duty to be a Good Samaritan, but if you are a Good Samaritan in this country you are likely to be sued if anything goes wrong. For that reason, people are a bit doubtful about offering help.

A third important issue is whether the various equivalent health defence and protection organisations are willing to protect people when they are no longer practising. People do not know whether their cover will continue. Also, why is it that healthcare professionals are disadvantaged and treated as second-class practitioners in comparison with solicitors and accountants? Their councils have no intention of dropping the lists of non-practising members. You can remain on the list as a solicitor or accountant until the day you die and you value that position. We should value it for professionals in the healthcare field.

The Minister stated on 24 June that,

It is important to have that confirmed clearly, certainly as it applies to the General Dental Council. I do not intend to repeat the arguments because they are all set out in Hansard and anyone who is interested can look them up. The president of the General Dental Council said in a letter that I quoted on Report that,

On previous occasions, the Minister has kindly said that any of these medical councils would be knocking at an open door if they asked to have this amendment made, but I would like that point to be stated specifically

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so that I can be confident that it is true and that it will not be just written off. There are major changes ahead. I quote the Minister again. She said:

That is another important feature because non-practising people often still write in journals or lecture to other people. It is essential that there should be a differentiation between people who have been struck off the list for malpractice and those who have had an honourable career until whatever stage they decided not to continue. The amendment would cover that point.

I look to the Minister to reassure me on this. I am one of those awful, pig-headed people who tend to divide the House over issues if they have to. I do not want to have to, so I hope that she will be able to give me the reassurances that I seek. I beg to move.

Earl Howe: My Lords, I support my noble friend, who has argued her case extremely persuasively throughout the passage of the Bill. I was persuaded on the first occasion that she spoke to it and I am equally persuaded now. It would be helpful to hear from the Minister that she accepts the argument put forward by my noble friend and that she will use her best endeavours to encourage the regulatory bodies to take up this idea, look with favour on it and, where possible, apply for the necessary Section 60 order, which I understand is the process that would be needed for those bodies which do not have a scheme of this kind.

Lord Walton of Detchant: My Lords, I warmly support the principles underlying the amendment so ably proposed by the noble Baroness. But this is a complicated issue which raises all kinds of problems. I was very surprised on Report to learn from her that the General Dental Council was not allowing retired dentists to remain on the register. Whereas for many years retired doctors have been entitled to remain on the register, the concern that I expressed on Report was because a legal opinion recently taken by the General Medical Council now suggests that retired doctors wishing to remain on the register must pay the annual retention fee from which they have been exempt since the age of 65. It is 21 years since I had to pay a much reduced registration fee for the General Medical Council.

Another problem is that next year the General Medical Council proposes to introduce a programme of revalidation which may, if the doctor succeeds in having his or her practice revalidated, lead to the establishment of a licence to practise which will be distinct from registration. It is a complicated issue which might make it difficult for an amendment of this nature to be enshrined in primary legislation. The idea suggested by the noble Baroness that the issues involved might well be dealt with by secondary legislation has many attractions. As the noble Baroness, Lady Gardner, said, doctors take pride in remaining on the register and dislike the thought, even in retirement, that they will no longer be registered medical practitioners.

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Legally, a doctor who is qualified and who has never been erased from the register for disciplinary or other reasons would be entitled in an emergency to give medical support even if they were no longer registered, but many doctors would feel embarrassed and reluctant to do so without being on the register because of the potential fear of medical/legal complications. It is crucial that a mechanism be introduced whereby retired doctors can remain on the register. I should like to see the same for dentists and the other healthcare professionals listed in the amendment.

In principle, I warmly support the amendment, but I foresee difficulties in having it enshrined in primary legislation.

4.15 pm

Baroness Tonge: My Lords, I do not wish to try the patience of the House but I should like to make one additional point. Would it not be in all our interests for all the professions mentioned to have a list of retired members and for it to be nationally held? In a national emergency it might be extremely useful to know where all the retired physiotherapists or pharmacists are. It is a sad thing if a group of professional people from all of these specialties are just discharged when they retire, as if they are of no more use to society. We clearly know that they are. I hope that there is some device whereby the royal colleges—or whatever—can make sure that these people remain on the register.

Baroness Howarth of Breckland: My Lords, the noble Baroness made her arguments immensely persuasively yet again. I hope that the Minister can look at the issue, though I take the point made by my noble friend on primary legislation. I mentioned social workers when this issue was previously raised. Social workers do not have a right to appear on any of these lists because they are not defined as health professionals. Therefore, I hope that social workers will be considered too. Social workers can be members of the British Association of Social Workers, as I am, but their registration is completely separate. I am not registered at this moment—I do not get on and do the forms, not because I have not done the practice days. That is a separate issue. If the Minister is looking at the list of health professionals, it might be worth a glance at the other people in social care who seem to be missing.

Lord Colwyn: My Lords, having practised for 40 years myself, I continue my indemnity insurance because the Medical Protection Society will continue to indemnify you after you are retired as long as you are on the register.

Lord Rea: My Lords, as a retired member of one of the professions mentioned in the amendment, I support the feeling behind it. I hope that my noble friend will be able to come up with some formula that accepts the principles if not the wording.

Baroness Golding: My Lords, not to be left out, as a retired radiographer I was amazed when, less than two years ago, I was contacted to find out if I would like to train for a proper job and take up my former profession.

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