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Grand Committee

Monday, 31 October 2011.

Arrangement of Business

Announcement

3.30 pm

The Deputy Chairman of Committees (Baroness Pitkeathley): My Lords, before the noble Baroness, Lady Thornton, moves the Motion that the first statutory instrument be considered, I remind noble Lords that in the case of both statutory instruments, the Motion before the Committee will be that the Committee do consider the statutory instrument in question. In the case of the first statutory instrument, further proceedings in the Chamber will need to be tabled for further action to ensue. In the case of the second statutory instrument, the Motion to approve the draft regulations will be moved in the Chamber in the usual way.

I further remind noble Lords that if there is a Division in the House, the Committee will adjourn for 10 minutes.

Health Authorities (Membership and Procedure) Amendment Regulations 2011

Health Authorities (Membership and Procedure) Amendment Regulations 2011

Motion to Approve

3.31 pm

Moved By Baroness Thornton

Baroness Thornton: My Lords, I beg to move that the Grand Committee should consider these regulations, SI 2011/2200. I thought that it would be worth while to have a discussion about these regulations-which I think have now technically come into force-because they will be used, as far as I can see, to establish at least two of the bodies which we know about arising out of the Government's legislative programme. Indeed, my first questions are: how many more, which and when?

The first instrument concerns the establishment of the NHS Commissioning Board as a special health authority as a result of the legislation that is before the House right now and which we will be discussing in the Chamber tomorrow. The second instrument concerns the establishment of a research organisation as a result of the Public Bodies Bill and the proposed abolition of the Health Protection Agency and the Human Fertilisation and Embryology Authority. I think that the order will also be discussed in due course.

My first question to the Minister has to be this: do the Government have further proposals to use this legislation in order to set up more and new special health authorities, and if so, which ones, where and

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when? Will we see orders, for example, to establish special health authorities for the new sub-national bodies that David Nicholson keeps referring to? Will those bodies have formal status in legislation and will that be done by order?

I turn now to the substance of the regulations, and while I am not going to take very long, I have some questions to ask. One of the key issues is the removal of the restriction that prevents chairs, non-officers and officer members of strategic health authorities from being appointed to more than one strategic health authority at a time, a rule which I think is entirely reasonable. What has changed so much that a chair could or might want to serve, or indeed where it might be desirable for them to serve, on a special health authority as well as a strategic health authority? Do the Government propose to establish so many special health authorities that that could become a problem? For example, would it be possible for someone to be the chair of a strategic health authority that exists now, a member of another strategic health authority and a member of a special health authority as those bodies emerge? Apart from anything else, I would like to know whether those individuals would be paid for doing all those different jobs, and how much that is likely to cost. Is that envisaged as the purpose of this order?

Moving forward, what happens to the strategic health authorities in this process? Where are all the authorities going to be? Are they going to be sucked up into the sub-national bodies, and are they therefore going to be special health authorities? Is that going to be done slowly or will it all happen in one go in 2013? How will the new chairs and members of special health authorities be appointed, and by whom? Will there be an independent element in what happens in the appointments procedure-will it be open to public scrutiny or will it just be done by the Secretary of State? Will that be on the public record? How much will they be paid, for how many days and what will their jobs involve? Does the Minister expect or envisage that there may be a clash of interests as this policy develops?

As we head towards 2013, special health authorities-these sub-national bodies or whatever they are to be called-may bring forward and carry out the work of the national Commissioning Board. What will happen in those areas where you have members on the sub-national bodies and on the strategic health authorities? There may be discussions between the two about where the policy goes and there may be clashes of interest. I am thinking about things like the developing role of commissioning and the clinical commissioning groups, and the role and powers that strategic health authorities have had in the past to drive forward, for example, stroke strategies or support for cancer networks. Where does the Minister see those? What happens if somebody who had responsibility for them in a strategic health authority now serves on one of the other bodies and there is a clash of interest over where the resources are going and how they will be supported? How could that be resolved? I am thinking in particular about things like failure regime, reconfigurations, training and workforce planning. As the Minister knows, that is an important role of strategic health authorities.

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Who will be the arbiter if there are those sorts of clashes of interest about the new structures as they move forward? Would it be the Secretary of State or the NHS Commissioning Board?

There are a variety of questions, some of which it may not be possible to answer now, but which will have to be looked at as we move forward and if the proposals to establish more of these special health authorities are carried through with the different roles. I beg to move.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): I am grateful to the noble Baroness for tabling this debate on the Health Authorities (Membership and Procedure) Amendment Regulations, and I welcome the opportunity to respond. As she pointed out, we will gather in Committee several more times this week to review the impact of a number of pieces of legislation introduced by the Government and challenged by the noble Baroness.

I believe that the combination of these statutory instruments provides security to hard-working NHS staff to maintain the continuity and quality of services that patients need at a time of considerable pressure. We cannot forget that the NHS has been challenged to make up to £20 billion in savings over the next three and a half years, which will be reinvested back into front-line patient care. Alongside this, we are seeking to move to a more autonomous and locally accountable patient-centred NHS, focused on improving outcomes for patients. That is the background although-in reply to the points made by the noble Baroness at the beginning of her speech-I make it clear that this order has nothing directly to do with the establishment of the two special health authorities, the NHS Commissioning Board Authority and the Health Research Authority, as special health authorities. We will debate both tomorrow.

The effect of the Health Authorities (Membership and Procedure) Amendment Regulations 2011 is to allow the clustering of strategic health authorities and to provide greater flexibility among the non-executive and executive community to take up other board level posts in the health sector during the transition period. The 10 strategic health authorities have been clustered into four: NHS North of England, comprising North East, Yorkshire and the Humber and North West; NHS Midlands and East, East Midlands, East of England and West Midlands; NHS South of England, South West, South Central and South East Coast; and NHS London, which will simply encompass the existing strategic health authority.

That does not change the current structure of the NHS. There are still 10 strategic health authorities with the same boundaries which exist as legal statutory bodies. We have just simplified the governance of the strategic health authorities in order to sustain structural stability and reduce management costs. To do that, the Government are using powers that exist in legislation previously scrutinised by your Lordships' House. The correct procedures were followed in making appointments to the new clusters which complied with both the Commissioner for Public Appointments' code of practice and employment law, as appropriate. The posts are

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time-limited and will be disestablished when strategic health authorities are abolished-if the Bill goes through the House and becomes law-on 31 March 2013.

Each cluster board now comprises a chair, up to eight non-executive directors, four executive directors with voting rights and up to five other non-voting executive directors who lead and scrutinise the decisions of each of the constituent SHAs within the cluster. Clustering SHAs, as we have already done with PCTs, supports the delivery of the £20 billion NHS efficiency savings through significantly reducing the cost of NHS administration-a commitment of both this and the previous Government. The creation of SHA clusters is a step towards that. PCT and SHA management costs increased by more than £1 billion since 2002-03, a rise of more than 120 per cent. It would not be possible to make savings on the scale required while retaining the administrative superstructure of PCTs and SHAs.

In addition to the pressing needs that I have outlined, the Government have a responsibility to ensure that the transition to the new system of working in the NHS-subject to the passage of the Bill-supports the integrity of the health service, as well as continuity of accountability and minimised disruption to those working hard to deliver and maintain high-quality services on the front line.

In the current system, SHAs have a key role to play in ensuring the quality and safety of services, in driving performance and delivery, including safeguarding the cash limit and in responding to the QIPP challenge. SHA managers have done a commendable job in delivering that agenda. That is in part why the Government's response to the Future Forum report extends the life of SHAs to the end of March 2013. Until then, SHAs will retain their statutory responsibilities and remain accountable for delivery and transition. Given the context of major change, with new leadership starting to take up roles in the system, it is critical that strong SHA leadership teams continue in place to provide the right focus on delivery and ensure effective accountability.

Clustering provides resilience and alignment for the future. Already, a number of senior posts in SHAs are either not filled or are being covered through interim arrangements. That is not sustainable for a 17-month period, and the position is likely to deteriorate further over time. The risk posed by SHA atrophy is therefore too great, and clustering for greater collective resilience over the next 17 months is an essential response.

Sir David Nicholson has announced that the initial sub-national arrangements of the NHS Commissioning Board will mirror the geographical footprint of the SHA clusters. To give the board a greater sense of having a stake in the future, there is a strong argument for moving early to future geographical footprints. The Government are moving swiftly with those arrangements, drawing on the lessons learnt from PCT clustering, which show that once a decision to cluster is made, it is better to implement the changes quickly. It is also important to embed these arrangements before winter to reduce the impact of the extra operational pressure that the health service is put under at this time.



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3.45 pm

The noble Baroness asked a number of specific questions. First, she queried the provision allowing SHA chairs and non-executives to sit on the board of a special health authority. Schedule 2 to the Health Authorities (Membership and Procedure) Regulations 1996 lists those special health authorities of which chairmen and members of SHAs are not disqualified. In order to provide for greater flexibility among the non-executive community to take up other board level posts during the transition period in the health sector, the regulations have been amended to allow chairmen and members of SHAs to sit on any special health authority. Any individual conflicts of interest issues will be dealt with as they arise.

The noble Baroness asked about the appointments process. The decision by the NHS management board to cluster the 10 SHAs into four resulted in the existing substantive postholders being potentially at risk of redundancy. During a restructuring exercise it is normal to establish a ring-fenced selection pool in order to conduct a limited competition exercise. All substantive SHA chief executives were invited to apply. Recruitment to the SHA cluster executive-director posts followed a limited competition exercise similar to the appointments exercise conducted for the cluster chief executives. As I said, during a restructuring exercise this ring-fenced selection pool idea comes into play. Again, all substantive SHA executive directors were invited to apply for those posts.

Executive directors of SHAs fall within the remit of the same pay framework as SHA chief executives, the very senior managers-VSM-pay framework. Under the current VSM pay framework, the basic pay of each director is based on a percentage of their chief executive salary. Each of the SHA cluster roles represent a substantial increase in size, complexity and responsibility for each executive director. Therefore, no one will receive a pay increase for doing the same job.

To the extent that I have not answered the noble Baroness's questions I would be happy to follow up this debate in writing. She asked how many special health authorities will be established. I apologise for missing out an answer to that. One key change being introduced through the current Bill is to prevent special health authorities being established ad infinitum. Instead, they will be time limited. If there is a case for them existing permanently, they must become non-departmental public bodies, as we are doing for NICE, for example, and the information centre.

The noble Baroness asked about conflicts of interest. I hope that I have partially covered that. Should there be a potential conflict of interest between members of SHA and special health authority boards in developing policy, that matter will be looked at as and when the situation arises. She asked whether appointments would be open to public scrutiny and whether pay would be made public. Appointments must comply with the Commissioner for Public Appointments' code of practice. The Appointments Commission, to which the Secretary of State delegates SHA appointments, asked the commissioner to make these appointments, and that the appointments should be approved. All the remuneration arrangements are in the public domain.

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This is, in short, about increasing flexibility as we move through the transition.

The noble Baroness asked about the regional offices of the NHS Commissioning Board. I believe that I have covered the point about the regional arms of the NHS Commissioning Board. However it chooses to organise itself, those will all be part of the same organisation. They will not be separate authorities, as SHAs are at the moment.

I think that that covers the majority of the noble Baroness's questions. I hope that noble Lords are reassured about the sense of these arrangements, which are important in providing resilience to the NHS, in providing assurance to those who are working hard to maintain and deliver healthcare to those who need it and in reducing administrative costs. However, I look forward to any further questions that noble Lords may choose to ask me.

Lord Beecham: My Lords, first, I apologise for not being present for the opening part of the debate. I have just a couple of questions to put to the Minister. The first relates to the appointments to these very large bodies. Four bodies now cover the whole country, which is half the number of the Anglo-Saxon Heptarchy of some centuries ago; they cover very wide geographical areas. I wonder whether the noble Earl can indicate what steps are being taken to strike a geographical balance for the executive and non-executive appointments so that local knowledge across these very wide regions is reflected to the best degree possible-it is of course not completely possible, given their size-in the new arrangements.

The second question relates to the issue of scrutiny and the extent to which, if at all, the new bodies will be subject to the scrutiny of local authorities' health scrutiny committees under the existing framework. I am not sure the extent to which they would want to pursue that, but there may be cases when they would, and of course geography may play some part in that. It would certainly be welcome if the Minister could be clear that, in principle, the new SHAs, pending the creation of the new special health authorities, will be subject to the scrutiny process.

Baroness Williams of Crosby: Perhaps I may take this opportunity to ask the Minister a couple of questions as well. I am grateful to the noble Baroness, Lady Thornton, for raising this issue with a statutory instrument.

I am delighted to hear that some form of the SHAs will continue in the interim period-I think that they have, on the whole, done a very good job-and that there is a real sense that they can continue to play a significant part in the transition. It looks very much like, with the clustering, we are making a clear transition from where we are to where we are going. I, for one, would not object in the least to their remaining like that.

I have a couple of questions for the Minister. The first is whether he envisages that the regional offices of the NHS Commissioning Board-which, admittedly, we have not yet passed through Parliament-are likely to be very closely aligned to where the strategic health authorities are. Obviously, there is a lot to be said for continuity.



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The noble Earl also mentioned the need for flexibility, on which we could not agree more. Perhaps I may ask specifically whether one could raise the question of March 2013 not being a final date. There has, as we know, already been some softening of the original timetable as a result of the Future Forum and the listening exercise, which I think was broadly very much welcomed, partly because it enabled the new system to keep some of the quite distinguished and very experienced staff from the past. The noble Earl had the kindness to say that one of the problems is how one maintains experienced and well qualified staff. The more the transition can copy the strategic health authority structure, the more likely it is that we will be able to retain some of those very qualified and experienced staff. We know that quite a few of them have been lost and that the NHS could do with not more being lost. Is there any prospect of greater flexibility about the timetable, which was strongly supported by the Future Forum?

The second question is a more specific one about SHAs. As the noble Earl knows, SHAs have a large part in education and training, which is still a major area of uncertainty until the education and training legislation comes forward. Under Regulation 2.2 of the 1996 regulations, there was a specific commitment that where a strategic health authority contained medical or dental schools, a member of the authority would come from that background. They specifically stated that he or she should come from the background of education in the medical or dental school that was part of the strategic health authority. Will that be respected in the new circumstance? That would clearly be helpful in addressing future education and training issues.

My last question is a broader one about the Government's feeling that there was no need for an impact assessment. I confess that I am a little worried about that, because the clubbing together of membership has certain possible impacts. Lastly, as the noble Baroness properly mentioned the issue of the involvement of HealthWatch, will there be an insistence that at least one member of the cluster should be someone with a background on the health and well-being boards-in other words, representing the HealthWatch interests-in the decisions of the new cluster groups?

Let me say loud and clear that all of us regard the cluster groups as a good development; I did not want to quarrel with that. Our questions cluster around the cluster, rather than concerning the cluster itself.

Baroness Jolly: My Lords, I will add to the points raised hitherto. I welcome the emphasis on continuity, but I wonder whether there is an opportunity to think whether we are closing the door completely on appointing new non-executive directors. We are moving into a new world with a new mindset and culture. If we are going to retain non-executive directors currently in situ in SHAs, will that opportunity be lost? I should like that to be clarified.

We must not lose sight of the fact that these are enormous organisations geographically. From one end of Cornwall to the other end of Kent is further, distance-wise, than from London to Edinburgh. There

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are issues about representation on boards. There must be complete understanding of the different issues in metropolitan, rural and urban settings. That will be critical for any board.

Also, does the noble Earl have any figure for what the savings in management costs might be? I seem to remember that when this was done for PCTs and they were all enlarged to become coterminous with local authorities, management savings were promised but not delivered. What is the size of the savings that we hope for? Have the Government factored in the risk with all of this?

Earl Howe: My Lords, I am grateful to noble Lords for their questions, which I will try to deal with in order. The noble Lord, Lord Beecham, asked about the extent to which the new bodies will be subject to local authority scrutiny. There is no change to the existing arrangements for scrutinising SHAs. All 10 SHAs still exist. They must meet their duties as set out in legislation.

The noble Lord also made a good point about geographical representation, geographical balance and the spread of local knowledge. What we tried to achieve with the ring-fenced competition, to which I referred, across the geographical boundaries of each cluster was to arrive at a point where we had as much geographical representation as was practicable. The chairs of individual SHAs who were not appointed as cluster chairs were invited to become vice-chairs so that corporate knowledge could be preserved.

4 pm

My noble friend Lady Williams asked whether we envisage regional offices of the NHS Commissioning Board being aligned with strategic health authority outposts. We expect that the national arrangements of the NHS Commissioning Board will mirror the geographical footprint of the SHA clusters, as I made clear in my earlier remarks. That continuity was very much in our minds when the clusters were created. Sir David Nicholson announced that the initial sub-national arrangements of the board will mirror the footprint of the clusters. In addition, discussions are under way with existing and emerging national bodies to ensure alignment on sub-national geography, to give our teams a greater sense of having a stake in the future and thereby to reduce the risks to current delivery. There is a strong argument for moving earlier to future geographical footprints and giving as much early assurance as we can to the teams where that is possible and appropriate.

My noble friend also asked whether the date of March 2013 was set in stone. It is a final date. It is important that we do not have double running. The board and clinical commissioning groups will take on their commissioning responsibilities in April 2013, and we believe that it is important that PCTs and SHAs do not continue beyond that date. To have a confusion of responsibilities would be a retrograde step, although I understand my noble friend's point. It is worth bearing in mind that we have already amended our plans for the termination date of SHAs as a result of the work of the Future Forum.



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I will have to write to my noble friend on her question about the role of the SHAs in education and training, and in particular whether a member of an SHA cluster will automatically come from a medical education background. I am sorry that I cannot answer now.

My noble friend Lady Jolly asked about the management cost savings that we expect from the changes. She asked whether we had factored in risk. The reduction in the number of non-executive posts will result in savings of around £367,000 per year. It is worth pointing out that the overall calculation is difficult because some people who were members of SHA boards and who have not been accommodated on the cluster board have reverted to roles within SHAs, so although they are not any longer on an SHA board, they are still performing useful tasks at a managerial level. Therefore, it is not possible to correlate the drop in the number of board members with a saving. However, we are clear that annual savings of a significant amount will be achieved from this exercise.

Baroness Thornton: I thank the Minister, and everyone else, for taking part in this short but extremely useful debate. The Minister started out in his introduction by saying that this is all being done in the context of the £20 billion Nicholson challenge. However, I am certainly not convinced that setting up double structures will help the delivery of that particular challenge. I accept that there has to be some clustering of strategic health authorities because, as the Minister said, the clusters are a response to atrophy and, I would add, demoralisation among the staff. On the one hand, everyone who has spoken said what valuable institutions strategic health authorities are and what a valuable job they do. On the other, there is an acknowledgement from the Government that there is a danger of atrophy here. As the noble Baroness, Lady Jolly, said, that poses risks. Those risks need to be addressed.

I will read what the Minister said, but I am still unclear whether the clusters will cease to exist in 2013 or whether they will become the national Commissioning Board's sub-national instrument for delivery. Perhaps we will need to address that question tomorrow when we look at the NHS Commissioning Board. The issue of conflict of interest is potentially real and the Government will need to think about it as the process moves forward. When two mechanisms are in place for delivering healthcare in an area, conflicts of interest will need to be looked at. The noble Baroness, Lady Williams, raised some important points, particularly about HealthWatch. As I listened to her I thought, "I wish I had thought of that myself"-as I usually do when she speaks.

I am still not sure about the accountability of the national Commissioning Board. We will address its accountability at a national level, but I am also worried about the accountability and transparency of the clusters were they to become the sub-national boards for the national Commissioning Board. That is a bigger issue than we can possibly deal with here, but I am adding them, as it were, to the agenda of issues to be addressed as we move forward.

Motion agreed.



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Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2011

Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2011
Relevant documents: 29th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

4.08 pm

Moved by Earl Howe

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, the regulations before the Committee today relate to the registration of providers of NHS primary medical services with the Care Quality Commission. The effect of the regulations is straightforward. It defers the registration of most providers of NHS primary medical services by 12 months, until April 2013. The registration of a small number of out-of-hours providers of such services will still go ahead in April next year, and the commission has started the process of registering these providers.

As the independent regulator, the Care Quality Commission has a key role in assuring the public and people who use services that health and social care providers of "regulated activities" meet certain requirements. In order to be registered, providers must meet a series of essential safety and quality requirements on an ongoing basis. Where a registered provider fails to meet these requirements, the CQC has a range of enforcement powers that it can use to bring a provider back into compliance. In the case of the most serious failings, the CQC is able to cancel a provider's registration, which would result in the provider's closure.

The Committee will be familiar with some of the criticisms that have been levelled recently at the CQC, in particular that the number of inspections of providers that it carries out has fallen to unacceptably low levels and that it failed to respond appropriately to serious service failings, most notably in the case of the appalling abuse of residents at Winterbourne View, a hospital for people with learning disabilities.

The Government attach the highest importance to the role of the regulator in carrying out its statutory functions in an efficient and effective manner. The regulations before us are part of the process of how we and the CQC respond to these issues. Deferring the registration of around 9,000 providers of NHS primary medical services will give CQC additional time both to improve the registration process for this tranche of registrants and to increase the compliance activity of providers that are already registered with it.

Implementing the new registration system has required the Care Quality Commission to register around 21,000 providers already, bringing in, first, NHS providers; then independent sector healthcare providers and adult social care providers; and then independent ambulance and primary dental care providers. This has been a major programme of work for the CQC, which it has carried out well. However, given the scale of the task,

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it is perhaps not surprising that the number of compliance inspections carried out by the regulator fell. The current timetable set in regulations brings providers of NHS primary medical services into the registration system in April 2012. This would bring in around 9,000 additional providers and includes GP practices, out-of-hours primary medical care providers and some NHS walk-in centres.

Although we remain committed to the registration of providers with the CQC and are confident that this will provide effective levers to tackle providers who deliver sub-standard care to patients, we have reconsidered the timing of registering the majority of these providers in the light of the challenges that the CQC has faced. Following a consultation that came to an end in July, and engagement with key stakeholder representatives, we have decided that providers of NHS primary medical services who provide out-of-hours care to patients who are not registered at their practice will be required to register with the CQC as planned from April 2012.

Out-of-hours services tend to treat unfamiliar patients in unfamiliar surroundings and see a higher proportion of vulnerable patients with urgent care needs that are often more complex than those generally found in daytime general practice. As such, there is a more pressing need to register these services than other NHS primary medical services, which is why we are forging ahead with the registration of this group of providers. All other providers of NHS primary medical services will now be required to register in April 2013. The regulations before us amend the regulated activities regulations in order to achieve this delay.

In parallel with our consultation on the proposed changes, the CQC has reviewed its registration process, looked at streamlining its registration systems, and is increasing its scrutiny of providers that it already registers. Consultation responses made clear that a streamlined process would be welcomed. I am pleased to assure the Committee that the commission is taking steps in this direction. On the registration process for primary medical services, I am informed that the CQC is overhauling its online application process so that providers will be able to start completing the application sooner than in previous application rounds. The website will contain full information on the registration process and will provide updates on the progress of an application and how long it is anticipated that it will take for key decisions to be made. The CQC will also put in place a central team to handle applications, avoiding the risk of the registration of NHS primary medical care providers impacting on the CQC's ability to monitor the compliance of other registered providers. Noble Lords may recall that there were delays in registering dental practices earlier this year due to the volume of Criminal Records Bureau checks required. The CQC is considering a different approach, which I am assured will go a long way to resolving these problems.

The CQC will engage with providers of medical services over the coming months to ensure that they have a clear understanding of what registration will entail and how compliance with the registration requirements will be assessed. The CQC's compliance inspections have been increasing steadily since the spring. and I am confident that the delays proposed

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and the arrangements the commission is putting in to handle registration in April 2013 will allow this to continue and be sustained.

Looking beyond initial registration, the CQC is also proposing changes to strengthen and simplify its regulatory model. Importantly, the commission is planning to increase the number of inspections that it carries out. These proposals would see all registered providers of hospitals, social care providers and independent healthcare providers being inspected at least once a year, with primary dental care providers inspected at least once every two years.

I hope that the Committee will be reassured by the progress that the CQC is already making to improve its registration processes and to increase its focus on compliance and inspection. The delay to the registration of providers of NHS primary medical services that we are considering today will allow the commission the space and time that it needs to move further in this direction more quickly. I commend the regulations to the Committee.

Lord Collins of Highbury: I thank the Minister for his remarks about the regulations. I must admit that when I read the words:

"These Regulations may be cited as the ... Regulated Activities ... Regulations",

I felt as if I was participating in a Marx brothers' movie, as you wonder which part relates to which. However, behind the regulations lies a very important human story. I want to focus my comments and questions on some of those issues. The Minister referred to the fact that in respect of NHS primary care services there is clearly a risk that the problems which the Care Quality Commission faces now could still apply in 2013. Apart from simply delaying the requirement to register again, has the Minister any other contingency plans to deal with the capacity problems in the CQC?

A human-issue story concerning out-of-hours services relates to the report that the CQC wrote arising out of the Daniel Ubani case, where the real risk posed to patient care from out-of-hours services was apparent. I would like the Minister to spell out how the small number of-

The Deputy Chairman of Committees: My Lords, there is a Division in the Chamber. The Committee will adjourn until 4.29 pm, taking note that the Clocks in the Room are an hour fast.

4.19 pm

Sitting suspended for a Division in the House.

4.30 pm

Lord Collins of Highbury: I have received a warning that I must not repeat myself, so I shall try to start from where I left off, which was highlighting the CQC report on out-of-hours services arising from the Daniel Ubani case, which highlighted that we have a nationwide problem. Delaying the requirement to register for a further year means that a lot of the issues that need to be addressed by proper monitoring of compliance will not be.



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My other questions relate to which organisations are covered by the regulation. The estimate was about 230 organisations. Does that include the co-operatives such as SELDOC, established in south-east London? Is it simply those organisations separate from GPs? There is an issue about high-risk out-of-hours services stemming from provision within GP services by the use of locums employed directly. I would appreciate clarity about the risk assessments. What concerns me most is that within a 12-month period, the Care Quality Commission will be required to get in to 9,000 organisations, but the Government have given it 12 months to deal with about 230. Having been on the commission's website and seen the processes and procedures, and the advice being given to primary health services, I think we have a difficult job ahead of us.

I leave my remarks to those few specific points. On the extension of out-of-hours-I must not say out-of-office services, that is my trade union background coming out-the flexibility of the provision of services by primary health services is most important. People are reverting to organisations that do not have their medical records or knowledge of their conditions because they have to work and cannot get to a surgery within its opening times. I know from personal experience that even booking a medical appointment can be extremely difficult. You have to do it within a particular time frame. With those concerns, I leave my remarks.

Baroness Jolly: I should like the Minister to clarify one point. Out-of-hours services providers need to register a year early if they are not in the practice of treating patients from outside their area. Can the Minister clarify the situation regarding itinerant or travelling workers? Where I come from, huge swathes of people come in to pick strawberries, daffodils or whatever. They certainly do not register. I am not clear whether the out-of-hours providers would treat them as temporary residents. What is the case in those circumstances? Would GPs who currently provide services in Cornwall in a co-operative be required to register a year early?

Baroness Williams of Crosby: My Lords, I, too, have a couple of questions. I very strongly support my noble friend's question about itinerant or temporary workers. In addition to the people about whom the noble Baroness, Lady Jolly, spoke, there is also the Traveller community, which does not stay permanently in a single place, as we know from the Dale Farm episode. I am very concerned-I am sure that others in the Committee are, as well-about the position of mobile workers whose life involves moving from place to place, and about where they will be picked up by the providers.

My second question concerns the position of out-of-hours services. The General Medical Council has raised many concerns about out-of-hours providers who are not familiar with the English language, let alone some of the other languages that we have in this country. Will there be additional requirements for out-of-hours service providers above the basic medical requirements that they will have to meet?



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I should know the answer to my third question, but I confess that I do not. However, I am sure that the Minister does. When providers are registered, are the lists of those who are registered made available to local HealthWatch committees, local authorities and Parliament? That is very important. Transparency is almost invariably the best form of inspection.

Finally, with regard to the CQC, we all know-as the noble Lord and the noble Baroness, Lady Thornton, said-that it has been under heavy pressure. My question is: will the practice of non-notified inspections, as well as notified inspections, continue? I note that the Secretary of State referred to this just a couple of weeks ago in respect of the investigation of complaints about the treatment of elderly people when he called on the CQC to do an immediate inspection.

I have one final point. I do not expect the noble Earl to reply if he does not want to. The most effective form of inspection is by protecting whistleblowers. All of us are aware that whistleblowers are a very effective form of informal inspection. It was whistleblowers who came up with the terrible Winterbourne story. Are there any means of protecting whistleblowers, especially among NHS staff, from being forced into retirement or sacked? Among all possible forms of inspection, NHS staff are most likely to be able to alert the system too bad or poor standards. Have we given consideration to the possibility of protecting whistleblowers among NHS staff? I am sure that our colleague from the trade unions would be sympathetic to that idea.

Earl Howe: My Lords, noble Lords asked number of questions. The noble Lord, Lord Collins, focused in particular on the capacity of the CQC to fulfil the remit that we gave it. He questioned its ability to register 9,000 providers in 12 months. He will not be surprised to hear that we asked the same question of the CQC. We were assured that it is well placed to do that. It has registered 21,000 providers since April 2010. As I mentioned earlier, it is streamlining its processes to achieve the registration of primary care providers. However, the registration of primary dental care providers and independent ambulance providers in April 2011 highlighted the need for the CQC to make improvements to the registration process. In the light of that, we believed that it was preferable to delay registration by a year, during which time the CQC would be able to modernise and streamline its processes and tools so that the process runs more smoothly and is less burdensome both for providers and the CQC itself.

One of the main purposes of deferring the registration of providers of primary medical services was to provide the CQC with the space to improve its systems. We considered walk-in centres in this context. We perceived that there was a serious risk of capturing a significant number of providers under the definition of an NHS walk-in centre. We have concluded that rather than risk overburdening the CQC with a large number of applications in 2012, we will postpone the registration of these providers for 12 months. We believe that this will provide the CQC with the necessary breathing space. The CQC is already contacting those providers who it believes will need to register in April 2012 in

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order to start the registration process. The CQC will also work with other providers of NHS primary medical services and their representative organisations to identify and develop proposals to streamline the application process that will apply to those who are required to register in April 2013.

The noble Lord also asked me about the CQC's resources. Each year the CQC agrees its business plan and financial allocation with the Department of Health. The CQC's financial position is then kept under constant review during the financial year. The Department of Health has now agreed a business case submitted by the Care Quality Commission requesting approval to recruit additional compliance inspectors and compliance managers in order to undertake more frequent inspections. This approval has been given as part of the ongoing 2012-13 finance and business planning round and the CQC's indicative revenue budget for next year includes sufficient funding to allow the CQC to recruit the additional 229 full-time equivalent compliance inspectors and the additional 19 compliance managers that it requested.

As I indicated earlier, we considered whether there were different risks in the provision of out-of-hours care to justify registering providers of those services ahead of providers of other NHS primary medical services. The case of Dr Ubani has been mentioned, which is very pertinent in this regard. Many respondents expressed the view that there were strong reasons for us to register these providers next year. While there is little concrete evidence to demonstrate that there are greater risks in the provision of these services, we believe that there are material differences in the type of service they provide which justify their earlier registration. As I indicated earlier, some of the differences revolve around the fact that often out-of-hours services practitioners treat unfamiliar patients and see a higher proportion of vulnerable patients with urgent care needs, sometimes with more complex needs. That persuaded us that there was a more urgent case for registering those providers before the others.

The noble Lord made the very good point that in primary care nowadays an increasing range of services are provided. That is why the previous Government approached the question of regulation in the way that they did. Instead of defining scope in terms of organisational settings; for example, hospital and care homes, there is a list of regulated activities for which registration is required. This means that regulation is based on risk of harm to those receiving the care or treatment rather than inflexible organisational structures.



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This system of registration is flexible so that it can adapt to new and innovative service models. Basing the scope of registration on activities rather than settings means that regulation provides the same level of assurance wherever people choose to access care or treatment. In other words, legislation describes what providers must do, not how they must do it.

My noble friend Lady Jolly asked me a number of questions, in particular, about itinerant, travelling workers and how they are treated. The fact that a primary care provider accepts patients temporarily will not itself trigger registration from 2012. Those patients are likely to be temporary residents if they seek to access GP services in a particular area. I will write to my noble friend to clarify that, because I am sure that there are detailed issues within that question and I do not want to mislead her.

My noble friend Lady Williams also picked up that point and asked me about language requirements on out-of-hours providers. The language requirements are currently picked up under the system by which PCTs commission out-of-hours care. It is not open to the GMC, when registering a doctor who is registered abroad, to language-test that doctor, but employers clearly have a duty to ensure that any doctor employed in an out-of-hours service is capable of communicating with patients. The employer should ensure that patient needs in an area are being appropriately met by those who are charged with looking after them out of hours.

My noble friend also asked whether the list of registered providers will be available to local HealthWatch and to Parliament. I am advised that the list is available on the CQC website. Some bodies require notification, and HealthWatch England will be part of the CQC, if Parliament approves our plans, so there will be an automatic route of communication between the CQC itself and HealthWatch England.

My noble friend also asked me about whistleblowers. NHS workers are currently protected by whistleblowing legislation. The CQC is a named body under the Public Interest Disclosure Act, which protects whistleblowers. We are very keen that there should be no deterrent to whistleblowers. It was obviously concerning to see a case reported last week where a whistleblower was put under pressure by colleagues. We are looking at the implications of that case very closely. I cannot say more to my noble friend at the moment on that.

Motion agreed.

Committee adjourned at 4.49 pm.


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