House of Lords
Monday, 21 October 2013.
2.30 pm
Prayers—read by the Lord Bishop of Ripon and Leeds.
Introduction: Lord Verjee
2.39 pm
Rumi Verjee, Esquire, CBE, having been created Baron Verjee, of Portobello in the Royal Borough of Kensington and Chelsea, was introduced and took the oath, supported by Lord Dholakia and Baroness Brinton, and signed an undertaking to abide by the Code of Conduct.
Introduction: Baroness Suttie
2.45 pm
Alison Mary Suttie, having been created Baroness Suttie, of Hawick in the Scottish Borders, was introduced and took the oath, supported by Baroness Scott of Needham Market and Lord Kirkwood of Kirkhope, and signed an undertaking to abide by the Code of Conduct.
Russia: Human Rights
Question
2.50 pm
To ask Her Majesty’s Government what has been the response to the representations they have made to the government of Russia about the abuse of human rights of homosexuals in that country.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, the Prime Minister raised concerns about the protection of human rights for LGBT people with President Putin in their meeting at the G20 in September. The Russian authorities have given assurances that discrimination against sexual minorities is forbidden by their constitution, but we remain concerned about the protection of human rights for LGBT individuals and communities in Russia and about the impact of legislation banning the promotion of non-traditional sexual relations to minors on Russia’s LGBT community.
Lord Lexden (Con): I am grateful to my noble friend for confirming the Government’s opposition to oppressive new laws in Russia. What assessment have the Government made of the impact of the new laws on the lives of ordinary homosexual people and on the working of the civil organisations dedicated to promoting their welfare and interest? What steps are the Government taking to discourage other countries in the region from enacting similarly oppressive laws?
Baroness Warsi: My Lords, these laws have a huge impact on individuals and communities, in the way in which these communities feel that they can exercise their right to freedom of expression and peaceful assembly. The NGOs on LGBT issues with which we
have been working in Russia and other regions say that this has led to concerns of an increase in homophobia and homophobic attacks. It has also meant that the operating environment for NGOs that work in the LGBT field is much more difficult. We have been raising this matter for a number of years, since these laws first started to be enacted on a regional or provincial level, before it became national law. During 2013-14, we have invested £1.3 million specifically into NGOs working to protect human rights, of which LGBT is one area.
Lord Morgan (Lab): My Lords, the Orthodox Church has been remarkably bigoted in dealing with this issue. Does the Minister have any particular information on protests made by churches in Russia against this cruel persecution of a minority?
Baroness Warsi: I am not sure how the Orthodox Church, or any faith communities, have responded on this issue. However, the noble Lord will be aware that this issue can be seen in the light of our concerns on general human rights issues in Russia. He will be aware that Russia was one of our countries of concern referred to in our human rights report, and concerns about LGBT issues formed a large part of that.
Baroness Falkner of Margravine (LD): My Lords, does my noble friend agree that when President Putin says that there is no discrimination against homosexual people in Russia, we need to press him in discussions to enshrine in law non-discrimination regarding minors’ access to information? Moreover, what discussions are Her Majesty’s Government having with the Council of Europe on Russia’s membership, given that Russia has repeatedly been found to be the worst country for gay people to live in of the 49 countries that are members of the Council of Europe?
Baroness Warsi: First, I assure my noble friend that we take these matters incredibly seriously. The subject was raised by the Prime Minister at the highest level at the G20 in St Petersburg, and it was also raised at the margins. It was raised a few weeks later by my right honourable friend the Foreign Secretary with Foreign Minister Lavrov at the UN General Assembly in New York. We also have an annual human rights dialogue; in fact, we are one of the few countries, if not the only country in the European Union, to have that particular dialogue with Russia. We had our latest dialogue in May of this year and, in that, we raised the issue of LGBT issues. So it is a matter that we continue to press on, and one that we have raised at both a political and an official level.
Lord Laming (CB): My Lords, will the noble Baroness remind the House that the Russian Parliament recently passed legislation that is punitive towards gay people and that there can be no question of gay people being accorded equality in that country while this legislation remains on the statute book?
Baroness Warsi: It may be inappropriate for me to comment on a particular piece of legislation in a particular country but it seems fairly obvious from an initial reading of how this law has been drafted that it is in stark conflict with what the Russians say is part of their constitution.
Lord Bach (Lab): My Lords, Amnesty International’s report, Freedom under Threat, which I am sure the noble Baroness knows well, highlights the provocation and discrimination sustained by those in Russia who are protesting against the recent legislation which has just been referred to. Does the Minister believe that the representations made by Her Majesty’s Government have had any effect whatever on the Russians, and what do the Government intend to do next about it? Is the noble Baroness aware—I am sure that she is—of the very strong feeling not just in this House but in the country which expects the Government to use every opportunity to point out to the Russian Government that their behaviour in the field of human rights generally, and on LGBT rights in particular, is completely unacceptable?
Baroness Warsi: As the Minister with responsibility for human rights I can assure the noble Lord that this is an area that I not only cover as part of my brief in my job but take incredibly seriously. He will also be aware of my right honourable friend the Prime Minister’s personal commitment to these issues. This is not a matter on which we just make submissions in the margins of another meeting, it is something that we put to the front and centre in our meetings, which is why the Prime Minister has raised it at the highest level. I think that noble Lords will accept that it is our job to communicate and stress the strength of feeling not only in this House but across the country, as the noble Lord said, as well as to do the project work needed to support the NGOs which are doing the very difficult work on the ground.
Lord Taverne (LD): My Lords, will the Government also protest in the strongest possible terms about the appalling treatment of Greenpeace protestors?
Baroness Warsi: Noble Lords will of course be aware of the issue of the “Arctic Sunrise”—it has been in the headlines for a number of weeks—whose 30-person crew includes six Brits. The Foreign Secretary raised the issue with Foreign Minister Lavrov at the UN General Assembly and subsequently wrote to him in October. The Foreign Secretary has also met Greenpeace’s executive director, and officials are in regular contact. I can assure the House that extensive consular assistance and support has been provided to these individuals. However, at this stage we are treating it as a consular matter as we feel that that is the best way of progressing it to a positive outcome.
Lord West of Spithead (Lab): My Lords, I am sure the Minister is aware that the Russians treated with acclaim the victory by Lord Nelson at Trafalgar 208 years ago today, and I wonder whether the Royal Navy could maybe come to the nation’s assistance again. The coalition has been asking people to buy HMS “Illustrious”—which is the third “Invincible” class carrier, the other two having been scrapped earlier this year. I wonder if the House authorities might like to buy it to berth alongside the Palace of Westminster and accommodate the huge number of new Peers being created.
Baroness Warsi: My Lords, I have a huge amount of time and, indeed, a soft spot for the noble Lord, but I think that that question is probably outside the remit of this particular Question.
Syria: Humanitarian Aid
Question
2.58 pm
To ask Her Majesty’s Government what discussions they have held with other governments about increasing humanitarian aid to Syrian refugees.
Lord Kennedy of Southwark (Lab): My Lords, on behalf of my noble friend Lady Quin, and at her request, I beg leave to ask the Question standing in her name on the Order Paper.
Baroness Northover (LD): My Lords, the Government are in regular contact with other Governments about increasing humanitarian aid for Syrian refugees and Syrians in need within Syria. The UK led a lobbying effort at the G20 and the UN General Assembly last month, which raised a further $1 billion in pledges from the international community.
Lord Kennedy of Southwark: My Lords, I thank the noble Baroness and welcome the extent of the aid provided so far by the Government. There are some 2 million refugees outside Syria and some 4 million have been displaced by the conflict but there is also a need to get immediate assistance to those trapped in besieged areas and facing starvation. How can we best respond to the UN call today seeking to secure a halt to the fighting to allow desperately needed aid to get through?
Baroness Northover: I thank the noble Lord for his tribute to the Government for what they are doing. It is a dire situation, which noble Lords will see from the figures. A year ago there were 230,000 refugees from Syria. Now there are 2.1 million refugees—an eightfold increase. Clearly we have to work extremely hard to make sure that the pledges to which countries have committed themselves are delivered. We are pleased that the figure has reached the £1 billion mark but it is not sufficient and it is extremely important that humanitarian access is granted within Syria so that aid can get in where it is needed.
Baroness Hollins (CB): Can the Minister tell the House how Her Majesty’s Government are assisting UK-based charities working in Syria—such as Hand in Hand which featured recently on “Panorama”—either financially or by supporting links with international NGOs? Hand in Hand, which includes senior NHS doctors, is providing medical aid directly into areas outside government control—areas which international NGOs are unable to access. Will the Minister meet Hand in Hand directors with me to explore possible assistance to their work?
Baroness Northover: I am very happy to meet representatives from Hand in Hand, and I note what David Nott said over the weekend about his experiences
in Syria—the stories that he was reporting back were absolutely horrendous. The Government work very closely with a number of NGOs in this area and a range of organisations is working to try to get humanitarian aid in.
Lord Avebury (LD): My Lords, I am sure the whole House will welcome the extra £100 million recently allocated to humanitarian aid to Syria by the Deputy Prime Minister. What additional efforts does the Minister think could be made to persuade our European Union colleagues at the Commission to match the efforts that we are already making? The UK’s £500 million contribution is by far the largest of any European Union nation. Can we not persuade our colleagues to match that?
Baroness Northover: Yes, the Deputy Prime Minister led the UK delegation to the UN General Assembly and I am very pleased indeed that we were able to pledge, as my noble friend has said, a further £100 million at the General Assembly, bringing us up to the level of £500 million and making us the second largest bilateral donor. The European Commission has contributed $1.2 billion since the beginning of the Syria crisis and we have been working across the EU to encourage all countries to contribute.
Baroness Symons of Vernham Dean (Lab): Can the noble Baroness tell the House what humanitarian aid is being given to the Christian community in Syria? In particular have the Government made representations about the disappearance of Archbishop Yohanna of Aleppo who disappeared earlier this year on 23 April?
Baroness Northover: There are a number of groups suffering in particular in Syria and the noble Baroness is right to highlight the particular plight of Christians. We are emphasising their particular need. I will get her an update on the situation in relation to the Archbishop but she can be assured that the UK Government are well aware of the situation affecting these groups within Syria.
Lord Wright of Richmond (CB): Can the noble Baroness tell the House what steps we are taking to re-establish direct bilateral contact with the Syrian Government in Damascus, if only to enable us to help persuade President Assad’s Government to provide secure access for much needed humanitarian assistance within Syria itself?
Baroness Northover: The noble Lord will know about the UN Security Council presidential statement issued about three weeks ago seeking better humanitarian access and putting particular responsibility upon the Syrian Government. There are a number of things which the Syrian Government could do to make sure that visas are granted more readily and that travel permits are granted so that humanitarian aid can get in. Efforts are being taken forward to try to bring forward the peace process and I am sure he will know that UN Special Envoy Brahimi is leading an intensive period of preparation to try to ensure that there is a meeting in November for the Geneva II process.
Baroness Kinnock of Holyhead (Lab): My Lords, does the Minister agree with Medecins Sans Frontières, which says that the Syrian people are now presented with the absurd situation of chemical weapons inspectors freely driving through areas of desperate need while ambulances, food and drug supplies are being blocked? Is it not the case that two weeks after the Security Council agreement on access for humanitarian aid, nothing has actually changed?
Baroness Northover: The noble Baroness highlights a key point. It is obviously encouraging that the chemical weapons inspectors have been able to get into the areas they wished to visit, but it has also been quite striking that humanitarian aid has not necessarily been able to get into those same places. That is one of the reasons why the international community is putting particular stress on trying to encourage the Syrian Government to grant those rights of passage for humanitarian reasons.
NHS: EU Legislation
Question
3.06 pm
To ask Her Majesty’s Government what recent assessment they have made of the impact of European Union legislation on training and service delivery in the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): We are aware that concerns exist about the impact of EU legislation on some areas of training and service delivery within the NHS. That is why we recently announced the review of the implementation and impact of the working time directive, to be led by the Royal College of Surgeons. This follows the balance of competences review for health, which included concerns about the impact of this directive on continuity of care and doctors’ training.
Lord Kakkar (CB): My Lords, I declare an interest as professor of surgery at University College London. In 2010, the then Secretary of State for Health and Secretary of State for Business, Innovation and Skills were due to commence robust negotiations with our European partners on the working time regulations. Despite the welcome announcement of the current Health Secretary’s further review of the impact of those regulations, do the Government stand by their commitment to repeal this detrimental legislation as it applies to healthcare? This is now increasingly cited by coroners as having contributed to patient harm. Moreover, our trainees tell us that it is now undermining their ability to acquire the necessary skills for future independent consultant practice. Patients and doctors alike now blame these regulations for a destruction of professionalism in our health service.
Earl Howe: My Lords, it is the impact on our health service that we want the Royal College of Surgeons to look at specifically. In the coalition agreement, we committed to limiting the application of the working time directive in the UK, including in the NHS. Nobody wants to go back to the bad old days of tired doctors, but it is important for the working time
directive to have more flexibility for a health service that operates on a 24-hour basis. Increased flexibility for the NHS would allow it to take account of local needs and practices, while at the same time ensuring the health and safety of the workforce. We stand prepared to work with partners in Europe to that end. I believe there is strong support in the NHS for this.
Lord Ribeiro (Con): My Lords, I thank my noble friend for acknowledging the role that the president of the Royal College of Surgeons is playing to ensure that the European working time directive is not having an adverse impact on patient care. In the United States, the duty hours that surgeons work are limited to 80, although flexibility has been introduced into their working so that trainees nearing independent practice can work more flexibly and for more hours. As 80% of surgical trainees currently work more than 48 hours a week, is it not time that we applied some flexibility to the European working time directive?
Earl Howe: My noble friend speaks, as always, with great authority on these matters. The independent review is by clinicians and of clinicians, looking specifically at the issues associated with the implementation of the directive. It means that any issues that are identified and can be acted on without needing to change the law—which was one of the points underlying my noble friend’s question—could lead to swift and effective action. In addition, my noble friend might like to know that the review will be looking at how the directive interacts with the junior doctors’ contract. It is intended to provide a sensible front-line view of doctors’ working hours.
Lord Lea of Crondall (Lab): My Lords, does the Minister accept that the idea that the working time directive is universally denigrated by all members of staff of the National Health Service is very far from the truth? Does he also accept that there is a need to protect patients and the health of doctors themselves by having something along the lines of the working time directive, and that the Royal College of Surgeons ought to accept that that is the case?
Earl Howe: My Lords, I stress that this is not a step to find a way to make doctors work longer. As I said a moment ago, it is clearly in nobody’s interest to go back to the days when doctors were constantly tired and worked excessive hours. However, when senior clinicians tell us, as they have, that the implementation of the directive is harming patient safety and doctors’ training, we have to take that seriously. That is why we want to take a closer look at how this directive is impacting on the ground.
Lord Willis of Knaresborough (LD): My Lords, I welcome my noble friend’s very strong comment that the working time directive has huge benefits, as well as clearly having challenges. However, in terms of this review of surgeons’ training, will he also look at the fact that for at least two and a half days a week most of our theatres are absolutely empty, with no activity taking place? One of the big requirements is that there
should be more activity in terms of elective surgery within our hospitals—which would itself help the whole training issue.
Earl Howe: My noble friend makes an extremely good point, which I shall ensure is not lost on the president of the Royal College of Surgeons as he conducts his review.
Lord Crisp (CB): My Lords, this argument has been going on for a very long time—at least a decade. Will the Minister let us know when he expects the review to report and when he thinks that some action will come about as a result of it?
Earl Howe: We have asked the review to report by the end of January next year. We believe that that is an achievable target from the point of view of those carrying out the review, and the Government will not be slow to react to any recommendations made.
Lord Hunt of Kings Heath (Lab): My Lords, I refer noble Lords to my health interests in the register. The noble Earl will be aware that this country has introduced a strong process of revalidation of doctors and continuing professional development. Can he assure the House that doctors who come to practise in the UK from other European countries will have been subject to as strict a regime as that in the UK?
Earl Howe: My Lords, the noble Lord will know that doctors from the European Economic Area are deemed to have professional skills equivalent to those of doctors trained in this country. When doctors come from outside the European Economic Area, then, indeed, the GMC puts procedures in place to ensure that the skills of those professional people match those that we would wish to see in the National Health Service.
Viscount Bridgeman (Con): Can the Minister confirm that the proposed amendment to the free movement directive now gives competent authorities the powers to test EEA nurses for English proficiency before they get clearance to practise in the UK? If that is so, is it, in the Minister’s view, adequate in the interests of patient safety?
Earl Howe: My Lords, my department is absolutely committed to ensuring that regulated healthcare professionals are not able to work in the NHS without adequate English skills. The revision of the mutual recognition of professional qualifications directive, which impacts on registrations from within the EEA, clarifies that regulators such as the NMC can undertake proportionate language controls on professionals following registration.
Housing: Under-occupancy Charge
Question
3.14 pm
Asked by Baroness Hollis of Heigham
To ask Her Majesty’s Government what advice they give to social landlords whose tenants have fallen into arrears as a result of the under-occupancy charge.
Baroness Hollis of Heigham (Lab): My Lords, I declare an interest as chair of a housing association and I beg leave to ask the Question standing in my name on the Order Paper.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con): My Lords, social landlords had more than a year to design, develop and deliver strategies to mitigate the effects of under-occupancy and were advised to start building responsibly to avoid driving people into arrears. Prior to implementation, the Government, working collaboratively with the Chartered Institute of Housing, produced specific guidance for landlords, Making It Fit, and continue to fund its Making Best Use of Stock team, which assists landlords to find suitably sized accommodation for tenants. Fact sheets containing advice on home swaps, money management, payment options and how to look for and find work have also been issued. To be clear, 60% of those requiring social housing are single or couples without children, but over the last decades landlords have ignored this fact, resulting in larger homes being built, even though the greatest need is for smaller properties. Finally, £190 million has been provided this year to help vulnerable claimants.
Baroness Hollis of Heigham: My Lords, a recent sample shows that half of all affected tenants are in arrears and that three-bed houses are now hard to let. Do we move tenants to smaller accommodation? It cannot be done because there is none. Do we increase income with discretionary payments? For the 90% who are ineligible, it will not be done. Do we allow arrears to soar? As this could send us into the red, it should not be done. Or do we evict vulnerable families from their three-bed homes into temporary accommodation, back into an unwanted, hard-to-let, three-bed house? That can be done if we ignore the futility, misery and cost. Which of these options does the Minister favour?
Lord Freud: My Lords, it is simply premature to come to any conclusions as to the level of arrears. We will, of course, provide that information when we have the kind of reliable information that this House requires me, as a Minister, to deliver. There have been various surveys, but the samples are just too narrow. There are 1.4 million one-bedroom properties in the social rented sector and we are looking to have those managed more efficiently. I remind noble Lords that the scare stories about what would happen to our LHA reforms were very similar to the kind of stories that are being propagated now and we have not seen any poor reaction in terms of homelessness as a result of those reforms.
Lord Best (CB): My Lords, in relation to the evidence that the Minister mentions, can he give us an update on the consultation with me and others that he promised when noble Lords rejected the so-called bedroom tax repeatedly and firmly? When will that research programme be the subject of consultation with us? When is it likely to be concluded? Will he accept the evidence if it
shows that what he calls the “scare stories” turn out to be true and that a good deal of disruption and hardship are caused by this measure?
Lord Freud: My Lords, as the noble Lord knows, an elaborate programme of research is going on around this measure and will take place over a two-year period. Regular reports will be provided. I believe that the first interim reports are coming out in the spring. I will, of course, be pleased to talk to the noble Lord about the research and will give a great deal of attention to what we find. If there are concerns, we will match them. As noble Lords will know, we have made changes to the discretionary housing payments system this year to reflect some of the early concerns that have developed and we have found an extra £35 million for that.
Lord Stoneham of Droxford (LD): My Lords, I declare an interest as chair of Housing 21, a housing association. There is evidence that local authorities are not fully using the Government’s transitional support funding for ending the subsidy for under-occupied housing. What action are the Government taking to ensure that those in need get the support that the Government have provided for them?
Lord Freud: My Lords, my noble friend is right. Our very early soundings are that some local authorities are not spending all their DHP. Clearly, we provide that funding in order that vulnerable people are protected through this transition period and we have been monitoring that very closely.
The Lord Bishop of Ripon and Leeds: My Lords, is the Minister aware of the evidence that people who are leaving accommodation to avoid the under-occupancy charge are being rehoused in private accommodation at greater cost? What steps are being taken to monitor this?
Lord Freud: My Lords, as I have just pointed out, we are undertaking an elaborate set of research programmes to understand this. If a family moves into private accommodation, which is more expensive, it does not necessarily mean that there is a net cost, because it frees up larger accommodation in the social rented sector to which a family can move from the expensive private sector.
Police and Criminal Evidence Act 1984 (Amendment: Qualifying Offences) Order 2013
Motion to Approve
3.20 pm
Moved by Lord Taylor of Holbeach
That the draft order laid before the House on 8 July be approved.
Relevant document: 8th Report from the Joint Committee on Statutory Instruments.Considered in Grand Committee on 15 October.
Armed Forces and Reserve Forces (Compensation Scheme) (Consequential Provisions: Primary Legislation) (Northern Ireland) Order 2013
Motion to Approve
3.20 pm
That the draft order laid before the House on 27 June be approved.
Relevant document: 7th Report from the Joint Committee on Statutory Instruments.Considered in Grand Committee on 15 October.
Jobseeker’s Allowance (Domestic Violence) (Amendment) Regulations 2013
Motion to Approve
3.21 pm
That the draft Regulations laid before the House on 8 July be approved.
Relevant document: 8th Report from the Joint Committee on Statutory Instruments.Considered in Grand Committee on 15 October.
European Union (Approvals) Bill [HL]
Third Reading
3.21 pm
Clause 1: Approval of draft decisions under Article 352 of TFEU
Lord Gardiner of Kimble (Con): My Lords, this amendment corrects a reference in the Bill to an EU document, the number of which has changed during the passage of the Bill. I beg to move.
Bill passed and sent to the Commons.
Care Bill [HL]
Order of Consideration Motion
3.22 pm
That the order of the House of 8 October 2013 relating to the marshalling and order of consideration of amendments for the Report stage of the Care Bill be varied so far as is necessary to enable amendment 168A to be considered first today.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, the reason for this Motion is that the Government wish to give the House the opportunity to amend the order in which we take our Report stage debates today. Last week, I became aware of some concern that my Amendment 168A, relating to trust special administration, would have fallen for debate at a rather late hour this evening. I assure the House that this was not by design and that the Government are more than happy to facilitate an earlier debate. Clearly, the issue of trust special administration is an important one. I understand the wish of some noble Lords to debate it fully in prime time. Accordingly, the Motion in my name would allow the debate on Amendment 168A to be taken at the start of today’s proceedings on the Bill. I should also indicate to the House that in response to the request put to me last week by the noble Lord, Lord Hunt of Kings Heath, I would have no objection to relaxing the rules of debate that normally apply on Report so that this amendment can be debated in full if that, too, is the desire of the House. I beg to move.
Lord Hunt of Kings Heath (Lab): My Lords, I am most grateful to the noble Earl, Lord Howe, following my intervention last week. I made a similar proposition to the usual channels last Thursday, only to be told that there would be dire consequences for everything that your Lordships hold dear. I am glad that sense has none the less prevailed. I very much welcome this and support the noble Earl in his Motion.
Care Bill [HL]
Report (4th Day)
3.25 pm
168A: After Clause 109, insert the following new Clause—
“Trust special administration: powers of administrator etc.
(1) In section 65O of the National Health Service Act 2006 (Chapter 5A of Part 2: interpretation) (the existing text of which becomes subsection (1)) at the end insert—
“(2) The references in this Chapter to taking action in relation to an NHS trust include a reference to taking action, including in relation to another NHS trust or an NHS foundation trust, which is necessary for and consequential on action taken in relation to that NHS trust.
“(3) The references in this Chapter to taking action in relation to an NHS foundation trust include a reference to taking action, including in relation to another NHS foundation trust or an NHS trust, which is necessary for and consequential on action taken in relation to that NHS foundation trust.”
(2) In section 65F of that Act (administrator’s draft report), in subsection (1), for “45 working days” substitute “65 working days”.
(3) After subsection (2C) of that section insert—
“(2D) Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (2A) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”
(4) In section 65G of that Act (consultation plan), in subsection (2), for “30 working days” substitute “40 working days”.
(5) After subsection (6) of that section insert—
“(7) Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (4) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”
(6) In section 65N of that Act (guidance), after subsection (1) insert—
“(1A) It must, in so far as it applies to NHS trusts, include guidance about—
(a) seeking the support of commissioners for an administrator’s recommendation;
(b) involving the Board in relation to finalising an administrator’s report or draft report.”
(7) In section 13Q of that Act (public involvement and consultation by NHS Commissioning Board), at the end insert—
“(4) This section does not require the Board to make arrangements in relation to matters to which a trust special administrator’s report or draft report under section 65F or 65I relates before the Secretary of State makes a decision under section 65K(1), is satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9) (as the case may be).”
(8) In section 14Z2 of that Act (public involvement and consultation by clinical commissioning groups), at the end insert—
“(7) This section does not require a clinical commissioning group to make arrangements in relation to matters to which a trust special administrator’s report or draft report under section 65F or 65I relates before the Secretary of State makes a decision under section 65K(1), is satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9) (as the case may be).”
(9) In section 242 of that Act (public involvement and consultation by NHS trusts and foundation trusts), in subsection (6)—
(a) for “65I, 65R or 65U” substitute “or 65I”, and
(b) for the words from “the decision” to the end substitute “the Secretary of State makes a decision under section 65K(1), is satisfied as mentioned in section 65KB(1) or 65KD(1) or makes a decision under section 65KD(9) (as the case may be).”
(10) In Schedule 14 to the Health and Social Care Act 2012 (abolition of NHS trusts in England: consequential amendments)—
(a) after paragraph 4 insert—
“4A In section 13Q(4) (public involvement and consultation by Board), omit “makes a decision under section 65K(1),”.
4B In section 14Z2 (public involvement and consultation by clinical commissioning groups), omit “makes a decision under section 65K(1),”.”,
(b) in paragraph 15, after sub-paragraph (3) insert—
“(3A) In subsection (2D), omit “or an NHS trust” and “or the NHS trust.”,
(c) in paragraph 16 (the text of which becomes sub-paragraph (1)) at the end insert—
“(2) In subsection (7) of that section, omit “or an NHS trust” and “or the NHS trust”.”,
(d) in paragraph 24, after sub-paragraph (2) insert—
(e) after that paragraph insert—
“24A In section 65O (interpretation)—
(a) omit subsection (2), and
(b) in subsection (3), omit “or an NHS trust”.”, and
(f) in paragraph 35, omit the “and” preceding paragraph (d) and after that paragraph insert “, and
(e) in subsection (6), omit “makes a decision under section 65K(1),”.””
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): This clause would clarify and make small changes to the trust special administrator’s regime in the light of our experience following its use at South London Healthcare NHS Trust and Mid Staffordshire NHS Foundation Trust.
Your Lordships will know that the regime for trust special administration was introduced by the previous Government under the Health Act 2009. The aim of the regime has always been to provide, with a tight timescale, a sustainable future for the services provided by a failed trust. The regime is only ever used as a last resort, when all other efforts by a trust and its commissioners to develop a viable model of care have been unsuccessful. There comes a point when time has to be called on local efforts to resolve the situation. Problems should not be allowed to fester, and it is not right that taxpayer resources could be diverted away from patient care to bail out failing organisations.
The regime enables a failed trust to be put into administration. The role of the trust special administrator is to take charge of the trust while the board is legally suspended and to develop and consult on recommendations in a draft report, before making recommendations in a final report that secure a sustainable future for services. The unsustainable provider regime for NHS foundation trusts was amended in 2012 to make it compatible with the extended regulatory role given to Monitor to operate the new licensing regime. The regime is used only on an exceptional basis at the most seriously challenged NHS providers, where other solutions or interventions have failed. It is time-limited, to focus efforts on delivering a sustainable solution with statutory deadlines for each stage of the process.
Use of the regime at South London and Mid Staffordshire suggests that two stages of the administration process need to be extended. The administrator would benefit from having more time to produce its draft report, and it would be better to have a longer consultation. The clause would therefore extend the time that the administrator has to complete these two key stages by giving 65, rather than 45, working days to produce the draft report and allowing 40, rather than 30, working days to undertake consultation on that report. The existing powers to extend the various stages of an administration beyond these statutory time limits will remain, as there will always be cases where an extension is appropriate.
Secondly, the clause would put beyond doubt the Government’s existing position that the remit of a trust special administrator is to make recommendations that may apply to services beyond the confines of the trust in administration and that the Secretary of State, for NHS trusts, and Monitor, for foundation trusts, have the power to take decisions based on those wider recommendations.
Where severe and prolonged problems exist, the administrator appointed must be able to propose a viable solution. It was always the Government’s intention that the interpretation of the words “in relation to” could include wider actions where necessary and consequential on primary recommendations about the trust in administration. This clarification of the scope of the administrator does not constitute a change of
policy, is not retrospective, and is intended only to remove any uncertainty for the future.
NHS trusts, foundation trusts and other providers do not exist in isolation from each other. They are part of a complex, interdependent, local healthcare economy. Issues of clinical and financial sustainability nearly always cross organisational boundaries. Parliament must surely have intended originally that the legislation would enable an administrator to fix the problems that it was appointed to fix. If the only way to do this is to look beyond the confines of the failing trust then that is what it must do.
Thirdly, the clause would strengthen requirements for a trust special administrator appointed to an NHS foundation trust to seek the support of commissioners affected by their recommendations. A trust special administrator appointed to an NHS foundation trust is already required by statute to seek support for its draft and final recommendations from all commissioners of the trust in administration. This clause would extend that requirement so that the administrator would also be required to seek the support of commissioners of services affected by the administrator’s recommendations that are provided by other trust providers, with NHS England’s support being sought in the event that all commissioners did not agree.
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Fourthly, this clause would require the Secretary of State to produce guidance for trust special administrators appointed to an NHS trust about seeking commissioner support for their proposals and to involve NHS England. It is intended that the guidance would set out arrangements for a trust special administrator to seek support from NHS England for its recommendations if the trust special administrator was unable to secure the support of the commissioners affected by the recommendations.
Fifthly, this clause would clarify that the statutory obligations of commissioners to involve and consult patients and the public in planning and making service changes do not apply in respect of the trust special administration regime. It would also clarify that the disapplication provisions apply whether the trust special administrator process relates to a failing NHS foundation trust or an NHS trust.
As I have already set out, one of the principal benefits of the unsustainable provider regime is the speed with which it delivers recommendations for clinically and financially sustainable services. This accelerated process includes a specific consultation period, with no provision for referral for local authority scrutiny. We want to clarify that there is no potential conflict between the statutory obligation placed on commissioners and the requirements of the trust special administration regime.
Ultimately, NHS patients and the public suffer if we do not have a workable failure regime that can secure high-quality, financially sustainable health services that are in their best interests. In addressing a systemic crisis, a trust special administrator should not be compelled to consider only some solutions, but, rather, the best solutions in the interests of patients. Only then can we resolve the situation. I beg to move.
168B: After Clause 109, line 14, at end insert—
“( ) Before section 65F of that Act insert—
“65ZFZF Trust special administration: measures required before powers take effect
No power under this Act for the administrator to recommend taking action in relation to another NHS foundation trust or an NHS trust, or for any such action to be taken, shall be exercised until—
(a) at least 5 years have passed after the passing of the Care Act 2013;
(b) the Secretary of State has reported to both Houses of Parliament on the case for the operation of such a power; and
(c) an order made by statutory instrument giving effect to the recommendations of such report has been laid before and approved by a resolution of both Houses of Parliament.””
Lord Hunt of Kings Heath (Lab): My Lords, I beg to move my Amendment 168B as an amendment to Amendment 168A moved by the noble Earl, Lord Howe.
We have just heard the noble Earl suggest that his amendment makes small changes and is a clarification of the existing law. However, it is my contention that the amendment is nothing short of a major change in policy on the reconfiguration of NHS services. Your Lordships are being asked to agree to it even though the case, or one of the cases, on which it is based—that of Lewisham hospital—is subject to an imminent Court of Appeal hearing. If it is accepted by the House, it is my view that NHS hospitals will be at risk of having services shut down without their agreement, without extensive consultation and without agreement from commissioners.
The changes made to the special administration regime by the government amendment would also extenuate the problems caused by having a different failure regime for NHS trusts compared with NHS foundation trusts—a point that my noble friend Lord Warner has consistently made.
Finally, to be effective, the changes could be construed as meaning that, for the first time, the Secretary of State has the power to issue directions to require the boards of solvent and successful clinical commissioning groups and NHS foundation trusts to take steps that they do not wish to take.
I see this not as a clarification of the law but as a major policy change that is at odds with the approach taken by the Secretary of State in the 2012 Act, when he repeatedly put his faith in local commissioning by local doctors. I make it clear that I am not opposed to changes in services: I support the major reconfiguration of services where clinical evidence supports it. Indeed, I should like to see much faster progress. When I and my noble friend Lord Warner argued this during the passage of the Health and Social Care Bill, the Government ploughed on with their extensive and fragmentary changes. The Government have belatedly come to realise that the structure they imposed is actually a barrier to progress—hence the amendment. It is also clear that, given the dire financial straits of
many NHS organisations, the special administration process is likely to be used on an increasing basis. My concern is that giving so much power to trust special administrators is the wrong way to go about it. Indeed, evidence from Lewisham and Staffordshire suggests that it will often provoke widespread opposition and slow down progress.
As the noble Earl has said, the key change that the Government want to make is to ensure that the Secretary of State can act on recommendations that affect other NHS trusts, NHS foundation trusts or other providers and commissioners outwith the trust to which a special administrator has been appointed. How this would happen has been graphically illustrated in the case of Lewisham. The South London Healthcare NHS Trust was a badly performing trust with an accumulated deficit of £196 million. Consequently, a trust special administrator was appointed. In his draft report of 24 October 2012, he recommended that University Hospital Lewisham should no longer provide emergency care for critically ill patients who did not need to be admitted to hospital and that it should lose its obstetrics-led maternity unit.
The Secretary of State made some changes to those recommendations but Lewisham hospital would still have seen some significant downgrading in its services. This approach had no support locally and was blatantly unfair to the people of Lewisham. As Mr Justice Silber said when the Lewisham case came to the High Court:
“There are few issues which prompt such vociferous protest as attempts to reduce the services at a hospital which is highly regarded and which is much used by those who live in its neighbourhood”.
In the High Court, Lewisham Council and the campaign group argued that Lewisham hospital was not in the NHS trust over which the trust special administrator had been appointed and that the Secretary of State could make recommendations and decisions only in relation to the three hospitals in the South London Healthcare NHS Trust but not in relation to hospitals outside the trust area. The judge subsequently found in favour of Lewisham Council and concluded that the trust special administrator and the Secretary of State were not entitled to make recommendations and decide to reduce services at Lewisham because it was not a hospital over which the administrator had been appointed. It was situated in a totally different trust.
The appeal of the Lewisham decision by the Government will be held shortly. I find it remarkable that without hearing the outcome of the case they are seeking to amend the law in such a hasty way. The noble Earl said in his letter to us that the trust special administrator regime is,
“one way in which decisive action can be taken to deal with NHS trusts or NHS foundation trusts that are unsustainable in their current form”.
I agree, but surely not at the expense of well run trusts. Of course there need to be changes in the local health economy beyond just the trust that is failing; a trust does not fail in isolation but is part of a complex, interconnected system—change one bit and you impact on the other bits. However, the legislation was intended to deal with a simple case in which a trust had failed and was then broken up, with its assets being transferred or sold off. My contention is that this type of approach
is not suited to major reconfiguration processes and should not be a back-door way to achieve unpopular changes.
I should also say that the government amendment seems to introduce a major anomaly around commissioning. A clinical commissioning group that commissions services from a failing NHS foundation trust is entitled to define and protect essential NHS services, but a clinical commissioning group that commissions services from a successful NHS trust can now see local services removed, even if that clinical commissioning group considers those services to be essential.
Further, the scheme proposed by the amendment appears to be legally ineffective. Neither a clinical commissioning group nor a foundation trust is subject to the direction-making powers of the Secretary of State—both are independent corporate bodies with boards which are responsible for making their own decisions. It is unclear to me how the boards of the clinical commissioning group and a foundation trust are supposed to be legally required to carry through any decision which is made within a special administration process relating to another body.
Nor is it clear what happens if the commissioners do not wish to commission services against the model that the special administrator has proposed. That is the case in Mid Staffordshire, where the special administrator’s proposals have not found favour with either the public or the clinical commissioning group. There appears to be no limit to how far recommendations might stretch to be “necessary” and “consequent”. It is clear that one trust could have many commissioners, and changes in services could impact upon many other trusts. The special administrator is being given a free hand to cast his net as widely as he wishes.
In conclusion, there are serious defects in the special administration process which the noble Earl’s amendment does little to resolve; indeed, it brings further anomalies and inconsistencies. However, my key concern about the amendment is that it removes the requirement to go through a properly defined and structured reconfiguration process, with extensive consultation with the local community. From all that we have learnt about successful reconfigurations, we know that they need to take a special form of open and honest leadership, a patient process of engagement and consultation, and proper consideration of the wider impact. The Government really should think again about this and my amendment gives them the opportunity to do so.
Baroness Warnock (CB): My Lords, I have hesitated to speak before about the Lewisham situation, partly because I believe that some changes are needed in hospital provision over the whole country but mainly because, as a resident in the borough of Lewisham, I might be thought to be so biased that my opinions would carry no weight. However, the situation has radically changed with the introduction of the noble Earl’s amendment.
It is completely intolerable that the law should be changed and overturned in this hasty way, regardless of the fact that everybody admits that there is no fault to be found with the Lewisham hospital administration.
It is an admirable hospital and its extensive and thorough accident and emergency section is particularly valued by a large number of people, for whom Lewisham is a centre to which they can get easily by various forms of transport, let alone by ambulance.
The contention that it would make little difference to the residents of Lewisham if this comprehensive A&E department were closed was risible. The tests to see how long on average it would take to get there were carried out at dead of night, and in various ways there was a great deal of false suggestion in the administrator’s conclusions. Above all, the clinical commissioners were by no means convinced and were not in agreement with the proposals.
The reason for speaking so strongly in favour of the amendment moved by the noble Lord, Lord Hunt, is that things have now moved far beyond Lewisham. I am speaking not only about the Lewisham situation; the proposals are perfectly general—the powers proposed for the Secretary of State could be used anywhere in the country.
What we have now is a radical change of power and, as other noble Lords have said, all hospitals are now under threat of closure, whether or not they are successful or administered with financial prudence, as Lewisham has been. It seems to me that this is an absolutely arbitrary overturning of what was found in court. Therefore, I beg noble Lords to think of this amendment in that light and not just to be concerned with the two particular trusts but with hospital provision all over the country.
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Lord Warner (Lab): My Lords, although I am Lord Warner of Brockley in the London Borough of Lewisham, I do not intend to speak about the Lewisham case.
I am conscious that this is a topic which can rapidly cause eyes to glaze over as we go into some of the processes involved here. At the heart of this there is a fundamental problem which is much deeper and more serious than when the 2006 Act was passed. That was seven years ago. This procedure of trust special administrators was set up to deal with a relatively small number of cases that might come along. It was not a system set up to deal with major overhauls of acute hospitals up and down the country.
We are now in a very different financial situation from when this earlier legislation was going through Parliament. You pays your money and you takes your choice as to who you believe about the black hole that there will be in the NHS finances at the end of this decade. If you want to believe Sir David Nicholson, the outgoing chief executive of NHS England, it will be £30 billion. A number of noble Lords may be shaking their heads because they do not wish to believe him, but he says £30 billion. If you want to believe the Nuffield Trust, it will be somewhere north of £40 billion. If you want to consider the more measured estimate last week from the chief executive of Monitor, it will be £12 billion, but that assumes a level of efficiency savings which seem somewhat like fantasy football in terms of their deliverability. It is likely to be a lot more than £12 billion.
These are numbers which no one was even thinking about when the trust special administrator system was set up. I have some sympathy with the Government’s position because there is no doubt that we have a large and growing number of clinically and financially unsustainable acute trusts. The Government have a real problem that they are trying to tackle. However, I suggest that this particular way of tackling it is not the best way, because it is trying to adapt a system which was produced for a relatively small number of cases into a whole system set of arrangements. It has some curious quirks. It seems to treat clinical commissioning groups which are commissioning from foundation trusts differently from those commissioning from non-foundation trusts. I am not going to risk eyes glazing over by talking about this, but this set of proposals does not seem to treat different clinical commissioning groups in exactly the same way.
We must also start to engage the public in the scale of changes that will have to be made to the NHS in order to make it sustainable. It is not just that black hole issue; it is the clinical sustainability of some of its services. We are already finding difficulty in staffing A&E departments. There is a set of issues around whether the manpower would be sufficient to enable us to keep 24/7 acute specialist services on the same number of sites. I would suggest to the Minister as humbly as I can that you are not going to deal with the scale of the problem with this set of arrangements. For the sorts of reasons that the noble Baroness, Lady Warnock, set out, even if you have this set of arrangements on the statute book, you are going to end up with many cases of Lewisham hospital writ large, dotted around the country. There is nothing in these provisions which really ensures that the wider public debate about the reshaping of these services takes place. They are a recipe for a very large number of one-off local rows on a major scale. The lawyers in this House must be rubbing their hands at the prospect of judicial review because a very likely outcome of all this is a large number of contested claims about the way the exercise has been done. There simply will not be the political cover for TSAs to be bold in their thinking.
The noble Earl said we want them to be able to give very effective consideration to the solutions that are needed. I suggest that if you are a trust special administrator and you think you will be kicked from Land’s End to the north-east because of the controversy around the proposals, that is not likely to produce whole-system changes. We now have to think about reviewing whether the TSA system is fit for purpose and meets the needs of the circumstances we now face. That is why, although I am not normally in favour of wrecking amendments, I agree with my noble friend Lord Hunt’s idea that we should have a pause and think again about the best way to reconfigure hospital services so that politicians and the public can engage with this issue and have the kinds of public debates that we badly need to have if we are to maintain the NHS in anything like the form it is today.
Baroness Meacher (CB): My Lords, in part, I support the Minister because, as the noble Lord, Lord Warner, said, the Government have a problem. We know that for many years there have been attempts to close
hospitals that need to be closed and it can take 15 years for that to happen. If the Government can come forward with a sensible, reasonable way of making those decisions, I will back it all the way. However, I find myself agreeing with the idea that a rather quick fix designed to achieve some solution to the Lewisham problem is not the way to do it. This is a national problem of considerable significance. I ask the Minister to take this away, think hard about it and come back with a good set of proposals to help this country close hospitals when they need to be closed. I would certainly be there behind him.
Lord Kennedy of Southwark (Lab): My Lords, although I sit in this House as Lord Kennedy of Southwark, I actually live in Lewisham, very close to the hospital. I agree with the comments made by my noble friend Lord Hunt of Kings Heath. This is a major change of policy being sneaked through the door by the Government. I am amazed that the Minister has brought his amendment today when we are just a few days away from the case being heard in the Court of Appeal—it will be heard next week, I believe.
I live close to the hospital and I refer noble Lords to my declaration of interest that on a voluntary basis I chair a small committee in the hospital. Whatever the problems of the South London Healthcare NHS Trust, I cannot adequately describe to noble Lords the sense of injustice, unfairness and hurt about what is being imposed by the administrator. We have a good local hospital, which is supported by the local community, delivers on its targets and objectives and is financially solvent, but the administrator came along and ripped the heart out of the hospital.
I contend that the purpose of this amendment is to try to stop the campaign that we have seen in Lewisham over the past few months. The campaign has united the community like never before. We had more than 25,000 people on our march. Streets are plastered with posters to save the hospital. Any political party would be envious of the posters up in people’s windows about this campaign. Our local campaign is chaired by a local GP and has brought together health professionals and the local community.
Will the Minister tell the House whether he has visited Lewisham hospital? I asked him that question earlier this year; I know that he had not been then and hope that he has been there since to see the amount of local support and what a good local hospital it is. More important, there is no support at all for what the Government propose today. I hope that the House will support the amendment of my noble friend Lord Hunt of Kings Heath and reject the amendment of the noble Earl.
Lord Patel (CB): My Lords, I find myself in a strange position, because I agree in part with the amendment moved by the noble Earl and in part with the amendment moved by the noble Lord, Lord Hunt, although that is not a solution.
I agree with the noble Earl that we need to find a way of reconfiguring NHS services. That reconfiguration cannot just be done through dealing with failing hospitals. It must include other hospitals which currently seem to be delivering good-quality services. We have to find
a way out of that. The question is therefore whether the amendment allows us to move forward with reconfiguring NHS services. This is where I find myself more in tune with the suggestion of the noble Lord, Lord Warner, that it may not and that more is required.
Another concern I have is that the commissioners may express views. I would like some explanation of why the commissioners of the NHS foundation trust are to be treated separately from those who commission services from other hospitals. Another issue is that, if the commissioners disagree, NHS England would make the decision. That means that, ipso facto, they will agree with a special administrator—or they will not. In that case, what happens?
Another issue is consultation. Clearly, none of the configuration can occur smoothly unless the public are consulted. At what point will the special administrator consult both the public served by the failing hospital and the public served by the hospital that is not failing but whose services may require reconfiguration?
In summary, therefore, there is a need for amendments that will allow us to move forward with the reconfiguration of services throughout England. In that respect, I am with the noble Earl, but I wonder if he needs to go a bit further. He might consider looking at this further and tabling more amendments at a later stage.
Lord Mackay of Clashfern (Con): My Lords, there is of course quite a long process still to be gone through on the Bill. As the noble Lord, Lord Warner, has said, it seems clear that there is a serious problem. It occurs to me that the special administrator’s primary emphasis will be on the trust to which he or she has been appointed. It is also obvious that changes to one trust may affect neighbouring trusts. Some solution to the problems in the special administrator’s trust may rely on something done in a neighbouring trust.
On the other hand, in that situation it is extremely important that concentration on the problems of the neighbouring trust is given considerable emphasis. Otherwise, the situation may be distorted by too great an emphasis on the special administrator’s trust at the expense of neighbouring trusts brought in to try to help. I wonder whether the wise course might be for us to accept the amendment, in so far as it goes, with an undertaking that, as the Bill proceeds in the other place, that matter would be seriously considered.
This may be an opportunity for legislation that will not quickly arise again. As the noble Lord, Lord Warner, said, there is a serious problem and it might not be wise to put it off indefinitely. I can see the difficulties and understand the situation of the noble Lord, Lord Patel, but it is very difficult to see how to sort this out today. On the other hand, it might be unwise to lose the opportunity to take a step forward in the hope of improving the situation in later stages of this Bill.
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Baroness Barker (LD): My Lords, during the deliberations on the Health and Social Care Bill, we spent a considerable amount of time discussing the details of the trust special administration arrangements, not least because it was the first occasion on which a
legal process of that kind had been in legislation. We were aware then, and perhaps even more so now, that there has to be some power to bring these decisions to a conclusion. I find it remarkable that people have demonstrated in favour of keeping open Mid Staffordshire hospital, but they have. That is the power of emotion in respect of hospital care in particular.
However, I agree with the noble Lord, Lord Warner, that this amendment is not quite what is needed, although there are some things in it which are to be welcomed. The process that needs to be gone through whenever a hospital is to be closed is to reassure the public that there will be access to alternative services. That is the absolutely critical point and it was with that in mind that I was somewhat taken aback to hear the Minister say that this procedure—and I bear in mind that, as he said, this is the last procedure in a very long process—takes away from the trust special administrator the requirement to involve the public and the patients. It seems to me that that is the very last thing that you would want to do if you were trying to have a process involving political engagement. I therefore ask him how the department came to that decision.
Earl Howe: My Lords, the matters we have debated today are of great significance. Of course—and I need to make this clear—we do not want to see any NHS trust or foundation trust fail, but equally we cannot shirk the responsibility to take action if and when that happens. In our taxpayer-funded health system, every pound counts and every pound should be put to best use, providing high-quality, effective care. Failed organisations squander resources. I do not want to be derogatory about them in other ways, but they usually take for themselves an unfair proportion of resources in relation to the local health economy more widely. Failed organisations, if nothing is done, have to be propped up by government bail-outs. That cannot be right, particularly at a time when resources are as constrained as they are now. We need an effective regime for tackling these issues.
The House has agreed with this on two previous occasions, passing legislation in 2009, during the time of the previous Government, and again in 2012 to provide failure regimes for trusts and foundation trusts respectively. We thought that those regimes would be effective, but experience now shows that they need clarification. The noble Lord, Lord Hunt, suggested that this amendment represented a major change of policy and the noble Baroness, Lady Warnock, characterised it as an arbitrary overturning of the decision of the court in the south London case. The Government’s policy has been consistent. It is entirely unchanged. It is self-evidently not a change of policy. Had it been so, the recommendations made by the trust special administrator in south London would have been ones that we would have questioned as legally dubious in the department. On the contrary, we believe that the administrator’s recommendations fell squarely within the wording of the 2009 Act, which, as I mentioned earlier, used the phrase, “in relation to”. That was the phrase around which the judge’s ruling revolved, and it was a different interpretation of that phrase that the judge took.
The noble Lord, Lord Hunt, is very knowledgeable about the heath service, but I am afraid that on this matter he is wrong. His amendment would render the failure regime quite useless. Five years is too long for a failed hospital and the patients it serves to wait for an effective remedy, to say nothing of the cost to the public purse. One of the provisions that the noble Lord has tabled would require the Secretary of State to justify making the power operational after the end of the five-year period, but is that not the debate we should have now? In any event, the effect of accepting his amendment would lead to an incoherent muddle. Either the House believes that a trust special administrator must be able to take the action necessary to resolve serious and prolonged problems at a trust or it does not. A long wait and a report will make no difference to the issues of substance. I urge the House to be decisive on this rather than doing what is effectively kicking a can down the road.
I know that fears have been expressed that the clause we are inserting would enable the Government to make free with every hospital around the country. That is not so. In fact, I submit to your Lordships that that suggestion is scaremongering. The powers could have been used for a long time if it were the Government’s intention to close down every hospital or lots of hospitals. The regime was designed by the party opposite, lest we forget, to deal with the specific circumstances of a trust in failure. It enables an external expert to be appointed as administrator to take a fresh look at the situation and, working with the trust and its commissioners, to develop recommendations for the future.
One needs also—I say this particularly to the noble Lord, Lord Warner—to recognise that trust special administration is only ever invoked when the normal processes for agreeing a reconfiguration have hit the buffers. In normal circumstances commissioners and providers in a locality get together and very often agree about the way services should be reconfigured to make them clinically and financially sustainable. In the case of south London and in the case of Mid Staffordshire that process has been going on for a long time. It is only because we reached an intractable position that administrators were appointed in those instances.
We have heard today that some aspects of our amendment provoke strong feelings, particularly the clarification—and it is a clarification—that a trust special administrator can make recommendations that include other providers where those recommendations are necessary for, and consequential on, his core recommendations. I bring noble Lords’ attention to those key words. Of course I recognise those views, but I do not share them. The clarification is vital for the failure regimes to be effective. It may be possible for the solution to the problems faced by a failed organisation to be found within the boundaries of that organisation, but it may not. Indeed, it is quite likely that it will not be. The health service is formed of a complex network of interdependent providers, all influencing one another. It is plain that making changes to one has a knock-on effect elsewhere. The amendment is a reflection of that reality.
I have a degree of sympathy with those who have argued that the effect of this could be unfair on the successful provider impacted by the failure of a neighbour. Such a step would, of course, be taken reluctantly. But I argue that it must be possible to take such a step if, and when, that is the only way of resolving the problem. The amendment would not apply retrospectively. The date of the court hearing in the south London case is therefore not relevant.
The rest of my amendment makes minor changes and I hope that they will be acceptable to the House. I hope more strongly that the amendment as a whole will find favour. It could be, as some noble Lords have suggested, that additional things need to be done. We do not believe that to be the case but I have heard the arguments put by a number of noble Lords that the amendment might need additions at some time in future. Our minds are open to that. But I beg noble Lords not to lose this opportunity of passing my amendment, as it matters a very great deal, not just in local areas but in the health service as a whole, in the interests of equity and fairness, which, after all, underpin the whole NHS. I believe that noble Lords should reject the amendment proposed by the noble Lord, Lord Hunt.
These are going to be rare cases and they are always difficult. The problems by their very nature are intractable and serious. We must fix them and have mechanisms to do that in order to put services back on a sustainable footing. Otherwise, I respectfully submit, we ourselves will have failed. I beg to move.
Lord Hunt of Kings Heath: My Lords, I am grateful to the Minister and other noble Lords who have spoken in what has been an excellent debate. My feeling about the debate is that the House has conclusively come to a view that further discussion needs to take place on the matter. I will come back to that in a moment.
I agree with the noble Earl that failed organisations squander millions of pounds. He is absolutely right to say that the need for them to be propped up by others has a deleterious effect on the NHS as a whole. We know that at least 20 NHS trusts or foundation trusts are in severe financial difficulty at the moment. It is likely that that number will grow in future. That is why there is considerable doubt that the special administration provisions will apply to only a very small number of cases. There is every possibility that, over the next two or three years, it will have to be used in many cases. That is why I am concerned that the provisions that the noble Earl is asking us to agree to today will be used to lead to configuration of services in which the interests of the failing trust will be put at the heart of the process rather than interests of the health service as a whole in a given area. That is the crux of the issue and that is why Lewisham is so important. It is a very good hospital—it was minding its own business—and then, suddenly, a special administrator came along and said that to solve the problem of the trust that it was dealing with it would have to reduce Lewisham hospital services. That is the crux of the argument and why we are concerned about the provisions being put forward by the noble Earl today.
The noble and learned Lord, Lord Mackay, suggested that we should let the Government have their amendment today and it can then be dealt with in the other place. Of course, I always admire the other place’s assiduous attention to duty when scrutinising legislation, but the fact is that the other place is simply not geared up or able to do that. The noble Earl, Lord Howe, was rather rude about my amendment which was, of course, perfectly formed and correct in every way. Will the noble Earl, having listened to this debate, agree to pause and allow us to have further discussions—even between now and Third Reading in eight days’ time—to see whether it would be possible to come back with an amendment that is more suited to the circumstances he described? Is the noble Earl prepared to do that? If he were, I would welcome it.
Earl Howe: My Lords, I am more than willing to have discussions between now and Third Reading but I suggest to the House that it is necessary to pass the government amendment now and to look at whether we need to change that amendment at a future date. Our minds are open to that but, unless we pass the government amendment, we will have missed a historic opportunity to correct a vital lacuna in the law for the benefit of the NHS as a whole.
Lord Hunt of Kings Heath: My Lords, I am very grateful to the noble Earl. It would, however, be possible for him not to move his own amendment today, to allow for further discussions and to table a revised amendment at Third Reading. That is as far as I can go in offering the Opposition’s help in this matter.
Earl Howe: I am grateful to the noble Lord. However, as I indicated, this is a pressing and urgent matter. While I am always open to inter-party discussions, the time has come for the House to take a decision.
Lord Hunt of Kings Heath: My Lords, in view of that, I wish to test the opinion of the House.
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Contents 176; Not-Contents 242.
CONTENTS
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boateng, L.
Borrie, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clancarty, E.
Clarke of Hampstead, L.
Collins of Highbury, L.
Corston, B.
Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Temple Guiting, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Glasman, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hanworth, V.
Harries of Pentregarth, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Hattersley, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howells of St Davids, B.
Howie of Troon, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones of Whitchurch, B.
Jones, L.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kinnock of Holyhead, B.
Kinnock, L.
Kirkhill, L.
Lawrence of Clarendon, B.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Mendelsohn, L.
Mitchell, L.
Monks, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Paul, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Ramsay of Cartvale, B.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turner of Camden, B.
Uddin, B.
Valentine, B.
Walpole, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Wills, L.
Wood of Anfield, L.
Worthington, B.
Young of Hornsey, B.
Young of Old Scone, B.
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Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Ashcroft, L.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Bakewell of Hardington Mandeville, B.
Barker, B.
Bates, L.
Bell, L.
Benjamin, B.
Berridge, B.
Bhatia, L.
Bilimoria, L.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Borwick, L.
Bottomley of Nettlestone, B.
Bourne of Aberystwyth, L.
Bowness, L.
Brabazon of Tara, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Butler-Sloss, B.
Caithness, E.
Campbell of Surbiton, B.
Carrington of Fulham, L.
Cathcart, E.
Chadlington, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
Dannatt, L.
De Mauley, L.
Dear, L.
Deben, L.
Deighton, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Eaton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Emerton, B.
Empey, L.
Erroll, E.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Fellowes, L.
Fink, L.
Forsyth of Drumlean, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Glasgow, E.
Glendonbrook, L.
Goodlad, L.
Grade of Yarmouth, L.
Greaves, L.
Green of Hurstpierpoint, L.
Greengross, B.
Greenway, L.
Grender, B.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Hanningfield, L.
Harris of Richmond, B.
Heyhoe Flint, B.
Hill of Oareford, L.
Horam, L.
Howarth of Breckland, B.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hussain, L.
Hussein-Ece, B.
James of Blackheath, L.
Janvrin, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kakkar, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Krebs, L.
Laming, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Listowel, E.
Liverpool, E.
Livingston of Parkhead, L.
Loomba, L.
Lucas, L.
Luce, L.
Luke, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maginnis of Drumglass, L.
Mancroft, L.
Manzoor, B.
Mar, C.
Marks of Henley-on-Thames, L.
Marland, L.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Nash, L.
Neville-Jones, B.
Newby, L. [Teller]
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L.
Northover, B.
O'Cathain, B.
O'Neill of Bengarve, B.
Oppenheim-Barnes, B.
Oxburgh, L.
Palmer of Childs Hill, L.
Palumbo, L.
Parminter, B.
Patel, L.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Ramsbotham, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Redesdale, L.
Ribeiro, L.
Ripon and Leeds, Bp.
Roberts of Llandudno, L.
Roper, L.
Rotherwick, L.
Rowe-Beddoe, L.
Saatchi, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Skelmersdale, L.
Slim, V.
Spicer, L.
Stedman-Scott, B.
Stevens of Ludgate, L.
Stirrup, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Sutherland of Houndwood, L.
Suttie, B.
Swinfen, L.
Taverne, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tyler of Enfield, B.
Ullswater, V.
Verjee, L.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Warsi, B.
Watson of Richmond, L.
Wei, L.
Wheatcroft, B.
Whitby, L.
Wilcox, B.
Willis of Knaresborough, L.
Wilson of Tillyorn, L.
Wrigglesworth, L.
Young of Graffham, L.
Younger of Leckie, V.
4.32 pm
142: After Clause 82, insert the following new Clause—
After paragraph 3 of Schedule 1 to the Health and Social Care Act 2008 insert—
“Chief Inspectors3A (1) The non-executive members must—
(a) appoint an executive member to be the Chief Inspector of Hospitals,
(b) appoint an executive member to be the Chief Inspector of Adult Social Care, and
(c) appoint an executive member to be the Chief Inspector of General Practice.
(2) Each of those executive members is to exercise such functions of the Commission on its behalf as it determines.
(3) When exercising functions under sub-paragraph (2), an executive member must have regard to the importance of safeguarding and promoting the Commission’s independence from the Secretary of State.””
Earl Howe: My Lords, in moving Amendment 142, I shall speak to the other government amendments in this group, Amendments 143, 145, 146, 148, 149 and 150. This group relates to the ability of the Care Quality Commission to operate free from day-to-day intervention by Ministers. The amendments that I have tabled will place the CQC on a new footing of greater operational autonomy. They also clarify some of the arrangements for the new system of ratings to be operated by the CQC. I will outline the principle guiding the Government in tabling these amendments.
Last year we passed legislation that placed a duty on the Secretary of State to promote autonomy in the way that other bodies exercise their functions in relation to the health service. The changes that we are proposing build on this. They remove nine separate powers that the Secretary of State currently has to intervene in the day-to-day operation of the CQC. Additionally, they place the new chief inspector posts on a statutory footing, ensuring their longevity, with a specific duty to operate in a way that ensures the independence of the CQC’s judgments.
We are also introducing a new system of regular assessments of registered providers, which has no requirement for ministerial approval of the methodology. Each of these changes gives the CQC greater scope to get on with the day job without interference from Ministers. Why does this matter? The CQC has the key role in providing assurance of the quality of services provided to patients and service users. It needs to be able to inspect what it wants when it wants and to be free to report its findings as it wants. The proposed amendments and new clauses that I have tabled will see the Government relinquish a range of powers that intervene in the operational decisions of the CQC.
In addition to the amendments relating to the department’s powers to intervene in the work of the CQC and to place the chief inspectors on a statutory footing, I am also tabling a number of amendments relating to the performance assessment system operated by the CQC. The amendments clarify that the CQC will not undertake routine performance assessments of local authority commissioning but, rather, will be able to carry out special reviews of local authority commissioning under Section 48 of the Health and Social Care Act 2008. This will bring the position for commissioning by local authorities in line with that of NHS commissioning as put in place by the Health and Social Care Act 2012.
I will briefly set out two areas where the CQC’s freedom is not being enhanced and explain why. The changes that we are making will give the CQC greater freedom in its day-to-day work, as I have explained. When it comes to the CQC’s strategic role and activities, outside of its routine functions, it is appropriate that the Government maintain oversight of the commission.
The first area to which this applies is investigations of commissioning. The amendments we are making to Section 48 of the Health and Social Care Act 2008 make it clear that the CQC has the power to carry out a special review or investigation of commissioning—both of health commissioning by NHS England and NHS Clinical Commissioning Groups and of local authorities’ commissioning of adult social services. Such reviews
will only be possible with the approval of the Secretary of State for Health, in the case of NHS commissioning, and the Secretaries of State for Health and Communities and Local Government in the case of local authority commissioning.
Secondly, I reassure noble Lords that we are maintaining the arrangements through which the commission is accountable to the Department of Health. We will retain a range of the conventional measures that exist to manage an arm’s-length body of the Government. The non-executive members of the CQC’s board will continue to be appointed by the Secretary of State, who will also maintain the power to intervene if the commission fails to properly discharge any of its functions. The department will also continue to hold the CQC to account for its financial and operational performance. I hope that these amendments will find favour with the House, and I beg to move.
Lord Warner: My Lords, I express my concern about the provisions of subsection (4) of the Government’s new clause on the independence of the CQC. My instincts are that this will do the absolute reverse of what the Government are seeking to do in terms of the CQC’s independence, which is why my Amendment 143A seeks to remove subsection (4). I do not disagree in any way with the other provisions in this set of government amendments and will explain my thinking. Subsection (4) effectively prevents the CQC investigating, of its own mere motion, the extent to which local authority commissioning practices and decisions on adult social care damage user interests and well-being.
In effect, if the CQC considers, after looking at the results of its work on providers of services, that there is a major stumbling block to good, sound provision of services that promote the well-being of users—the provision in Clause 1 of the Bill—it has to seek the approval of the Secretary of State before it can do any kind of generalised or thematic review of local authority commissioning of services. It has to seek the approval not only of the Health Secretary but of the Secretary of State for Communities and Local Government. That seems a step backwards from the position we have now, where the CQC, as I understand it, could actually undertake these kinds of reviews. I do not see how the new subsection (4) helps the CQC to get to the root of a problem that may be affecting thousands of users of services. We have already seen that the providers were not the instigators of the policy of 15-minute home visits—it was the commissioners of services who instigated that policy. They required the providers to do that; they almost drove them along the path of not paying for the travel costs of the healthcare assistants who were making those visits. The institutional behaviour that has grown up and caused so much concern among the public and in Parliament has been driven by commissioners.
I suspect that we will have other kinds of such issues as we move through a decade of austerity in public services. It ought to be possible for the CQC to take the initiative and try to get to the bottom of those issues by carrying out a thematic review of the commissioning practices. That is why we need to take out subsection (4), which seems to be incompatible
with the rest of the provisions in this set of government amendments, which I thoroughly welcome. All credit to the Government for removing these requirements on the CQC, but why are they spoiling the ship for a ha’porth of tar? Why are we pushing back on the ability of the CQC to decide that it wants to carry out a review of commissioning practices, when that is not in the best public interest? The Government should think again about this.
Baroness Greengross: My Lords, I will speak against government Amendments 145, 146 and 149, and speak at the same time to Amendment 147 in my name.
The government amendments would remove from the Bill a requirement for the CQC to conduct regular reviews of adult social care, as the noble Lord, Lord Warner, indicated. The Bill gives us an important opportunity to ensure that local government commissioning is effectively regulated. Last year’s EHRC homecare inquiry evidence pointed to serious concerns about some commissioning practices, which were found to put the human rights of older people in particular at risk. Accordingly, the EHRC’s recent review of the inquiry recommendations welcomed the fact that the Government had signalled their intention that the CQC should conduct regular reviews of adult social care commissioning.
Unamended, Clause 83 would reframe Section 46 of the Health and Social Care Act 2008 to empower the CQC to conduct periodic reviews of adult social care providers and English local authorities which provide or commission adult social care. It was very disappointing to see that the Government intend to remove clauses requiring the CQC to conduct these reviews through Amendments 145, 146 and 149, in the name of the noble Earl, Lord Howe. Taken together, these amendments would remove the proposed new requirements for the CQC to conduct regular performance assessments or periodic reviews of local authority social care commissioning, and amend existing provisions relating to special reviews and investigations by the CQC. That would leave it able to review providers and to ask the Secretary of State for permission to run special reviews when there has been a particular issue but unable to run ongoing reviews of how local authorities commission services. It seems counterproductive to be removing this power at the same time as committing to challenging bad commissioning from local authorities.
The proposals announced by Norman Lamb about CQC reviews the other day are very helpful. But, again, they seem to be focused solely on providers and what they are doing, not on the commissioners who have directed these providers. If the CQC is being made independent, should it be seeking approval for such reviews? I believe that the Government have tabled this amendment because they believe that the provisions in the Health and Social Care Act 2008 will be sufficient to keep local authority adult social care commissioning under scrutiny. However, my analysis is that the human rights of people receiving care would be better protected by retaining the requirement under the Care Bill as currently drafted so that the CQC should conduct regular periodic reviews of local authorities’ commissioning of adult social care.
4.45 pm
If this amendment is adopted, the CQC will be able to conduct only periodic routinereviews but not of commissioners, which will leave the central element of the social care delivery system without regular independent scrutiny. Routine reviews would raise the standards of adult social care commissioning and, in my view, would result in higher-quality services which better protect the human rights of care service users. In the absence of routine scrutiny, the CQC would be unable to identify thematic trends or poor commissioning by individual authorities that indicate the need for a special review or investigation.
In summary, I am absolutely delighted that this has been recognised as a serious problem, but at the same time I am concerned that some of the Government’s amendments seem to be taking away some of the CQC’s power to act. I am not alone in this view. Leonard Cheshire Disability is worried that these amendments risk reducing the ability of the CQC to challenge poor quality commissioning. Therefore, I ask the Minister to reconsider. I leave him with a question because, from the tone of these amendments, it appears that the Government do not see a role for the CQC in improving local authority commissioning practices. If not the CQC, who does have this role?
I turn briefly to my Amendment 147. While I fully understand that Ministers do not wish to be too prescriptive in the Bill, I feel it cannot be left entirely up to them and the contingencies of the moment. The CQC’s remit covers a wide range of care delivery settings, including hospitals, care homes, dental and GP surgeries and all other care services in England. It will have a wide range of quality domains to supervise and it would be very easy to migrate the quality standards for an acute hospital into elder care where both the conditionality and capacity of the patients may be widely different. I feel that the CQC should be mandated to include indicators of the quality of services provided for the identification and treatment of those conditions that most frequently occur in a particular care setting. For older people this would include those conditions from which they are most likely to be suffering, such as dementia and continence issues.
Continence care should be established as an essential indicator of high-quality services across all care. I have declared my interests in the register—I am chair of the All-Party Parliamentary Group on Dementia and the All-Party Parliamentary Group for Continence Care. A number of recent assessments have demonstrated that continence care remains a low priority across NHS settings, with poor treatment resulting in escalated and more costly care needs and poorer patient outcomes. Indeed, the Francis inquiry included an entire chapter outlining the scale of failures in continence care. Given the expected rise in the prevalence of incontinence and the impact that poor care can have on patients and the NHS, continence care must be seen as a key indicator of high-quality care provision across care settings. An explicit requirement within the Care Bill for the CQC to assess providers for the quality of their continence care would directly respond to the failings in continence care identified by Francis, the stated purpose behind Part 2 of the Bill. This would encourage providers to
actively address how they manage incontinence by assessing their local protocols and policies about the condition, taking steps to improve awareness among staff about incontinence and undertaking internal audits to continuously improve care standards.
Lord Low of Dalston (CB): My Lords, I shall speak briefly against Amendments 145, 146 and 149. As the noble Baroness, Lady Greengross, has just pointed out, these will take away the requirement that the CQC conduct periodic reviews of adult social care commissioning. These amendments seem perverse, coming hard on the heels of the latest care home scandal, revealed by the coroner’s finding that neglect contributed to the deaths of five residents at Orchid View care home in West Sussex.
Last week, the Close to Home report on human rights and home care by the Equality and Human Rights Commission concluded that some commissioning practices were likely to put at risk the human rights of older people receiving care. The Leonard Cheshire report, Ending 15-Minute Care, also points to problems with commissioning. It would therefore seem to make sense to leave Clause 83 unamended so that the CQC is empowered to oversee the practices of those commissioning adult social care and not just of those providing it.
Lord Deben (Con): My Lords, in general terms, I support the government amendments. I am sure that my noble friend will want to answer the specific issue which the noble Baroness, Lady Greengross, raised. However, I support the Government with a slight caveat. Similar parts of the localism agenda of the Government have likewise seemed to have devolved in order to encourage people to take responsibility. I agree that there is a problem of prescription—if I may use that word in the context of the health service—because we all want to add in to any freedom the particular issues about which we have a special concern. I have real sympathy with those for whom dementia is one of those issues; it certainly is for me. However, we have to guard against that because, in the end, it may produce an artificial series of priorities. In this case, it is much better for the Care Quality Commission to make its own mind up, because it is going to be responsible. I take a rather different view about the recent scandals, in that the commission has to take responsibility for the claims that have been made. If it has to take responsibility, it must have as much control over its agenda as it possibly can.
My concern is simply that the Localism Act claimed to give localities all kinds of new controls over their futures. Yet, this week, we again find the Secretary of State for DCLG calling in a locally agreed solar decision, one supported by the local authority and by the inspector, but turned down—for reasons which are extremely difficult to see—by the centre. I want an assurance from my noble friend that this is real devolution; that the powers which have been given will not be circumvented by some other mechanism within this Bill or other Bills. The purpose of such devolution is to enhance responsibility. My concern is that, often, people who are given and who claim to have responsibility find that the structures are so prescriptive that they cannot
take that responsibility seriously. If the amendments are an attempt to ensure that they can carry through their responsibilities in a way which enables the country to look to them to do the job they ought to be doing, that is fine and dandy. However, I hope that we can have reassurance that this is a real change, and not something that is going to be circumvented for the convenience of some Secretary of State by other bits of this or other Bills.
Baroness Barker: My Lords, I draw to the House’s attention three questions put forward by Leonard Cheshire Disability. That organisation has worked extremely hard to support the Government in their stated objective of stopping 15-minute care appointments for older people, and its questions are worth following up.
First, why is it necessary to remove this power completely from the CQC; what will the CQC be stopped from doing by the absence of this power that otherwise it would not be? Secondly, the Government are committed to tackling poor commissioning and poor practice. If it is not going to be the role of the CQC to challenge local authorities on their commissioning practices, whose job will it be? Thirdly, is there any evidence that that power, as it exists, has been misused? Whatever one’s view about where responsibility should lie—the noble Lord, Lord Deben, made interesting points about that—those three questions are worthy of an answer when we come to formulate that view.
Baroness Pitkeathley: My Lords, I, too, am troubled by the seeming perversity of government Amendments 145, 146 and 149. The effect of the amendments seems to be to make it harder for the CQC to conduct investigations into local authority practices, particularly of commissioning. My understanding, from my hazy memory of when the CQC was set up, was that that was a particularly important function. Surely it has become more so, given the commitment to integration between services provided by the health service and those provided by local authorities. Was that not a key feature of establishing the CQC? The timing of this seems to be very odd—perverse, as the noble Lord, Lord Low, said—given the current huge concern about the way in which services are commissioned, the so-called 15-minute care visits, and so on.
Do the Government see a continuing role for the CQC in working with local authorities to improve the way that they commission services, or is this a retreat from the way the Government view the CQC? I was very involved in the discussions before the CQC’s relaunch, and understood that to be an important part of its function. The amendments appear to reduce the CQC’s power to help improve local authority commissioning and, because of that, its oversight of care quality. That is a great concern to us all, particularly when we are so concerned about the quality of the services which are commissioned.
Lord Hunt of Kings Heath: My Lords, first, I welcome the amendments in relation to CQC independence. I would like assurance that it does what it says on the tin. I assume that the CQC will be regarded as
independent. Perhaps it will be making fewer visits to the Secretary of State than it does at the moment. If there are weekly meetings, as is suggested, between the Secretary of State, the CQC, Monitor and NHS England, it is very difficult to believe that it is going to be truly independent. The proof of the pudding will be in the eating; but it is very difficult to know why the Secretary of State needs to see the CQC on such a regular basis if it is really an independent organisation.
Like other noble Lords, I am puzzled why the periodic reviews of local authority performance in commissioning adult social services have been removed from the Bill. I am surprised at the current policy, which is that, as part of wider moves to devolve responsibility for improvement in the sector, local authority commissioning performance and assessment will be led by councils. Presumably that means that it is government policy that the performance of the commissioning function of local authorities in adult social care will be reviewed by local authorities.
With the greatest respect for the noble Earl, Lord Howe, he knows that I am a great admirer of local authorities; I have served on two. However, like the noble Lord who spoke so eloquently earlier about solar decisions being called in by DCLG—to which, no doubt, the noble Earl will have a detailed response—I would not have thought that the commissioning performance of local authorities was thought to be so excellent that they can be left to themselves to police their performance in future.
5 pm
We debated the question of 15-minute visits and zero-hour contracts last week. I have no doubt that part of the problem is that it is local authorities that are commissioning the 15-minute visits, and that the amount of money they pay has an influence on the kind of contractual relationship that private-sector providers have with their staff. That is how zero-hour contracts come into being. Therefore, how on earth can we deal with the scandal of 15-minute visits unless we look at the way local authorities are commissioning?
I was interested that the Care and Support Minister, Norman Lamb, was reported last week as saying that the length of home care visits could be monitored by the Care Quality Commission. He said that, with the new independence of the CQC, from next April it proposes to look at whether home care visits are long enough to respond to people’s needs. Some independence, my Lords.
The CQC will also consider how staff working commissions might impact on the care issues under consideration; whether the service is able to respond to people’s needs in the allocated time; whether care is delivered with compassion, dignity and respect; how many staff have zero-hour contracts; and the levels of staff turnover. This is all true; it is from Community Care. Apparently, the Minister said that the CQC will use the information to drive its regulatory activity so that it will know when, where and what to inspect, and will be alerted quickly to the risk of poor-quality care in home-care settings. I put it to the noble Earl that that is all fine, but, given that often it is local authority commissioners who are responsible for the poor quality
of provision, surely the CQC should review and inspect the performance of local authorities. Therefore, I very much support my noble friend Lord Warner and other noble Lords on this.
Earl Howe: My Lords, I set out in my opening remarks the principle that lies behind the amendments that I tabled: namely, that the CQC should have more operational autonomy in its day-to-day activities. I sense that the principle is not inimical to many noble Lords. The amendments tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Greengross, are in contrast to that principle and seek to tie the hands of the regulator and commit it to considering specific issues in all circumstances.
I say straightaway that the issues raised by the noble Lords are important: namely, how providers deal with the most commonly recurring conditions in specific settings, and how hospitals are implementing NICE guidance on the use of medicines. I do not argue that the CQC should not consider these issues. It has made clear in its consultation document, A New Start, that NICE guidance will play an integral role in its new performance-assessment methodology. That shows that we can trust the regulator to set its own priorities and to change them in response to new challenges. However, I submit that they should not be in the Bill.
Noble Lords questioned the CQC’s role in the oversight of commissioning of both health and adult social care. The noble Lord, Lord Warner, tabled an amendment that would have the effect of allowing the CQC to carry out a study of the efficiency of commissioning without seeking the approval of the Secretary of State.
I will explain the approach that we are taking. We are maintaining powers for the CQC to carry out reviews of commissioning in both health and social care. However, where this happens, we believe that it should be a special rather than a periodic review. My noble friend Lady Barker asked why. The main role of the CQC is to inspect and regulate service provision. The very name, CQC, reflects that. Where this leads the CQC to believe that there are problems with local commissioning, it will have the power to look into this further. However, any review of commissioning will impact on the CQC’s capacity to regulate service provision. Therefore, it is only right that this should be carefully considered and subject to ministerial agreement.
If a noble Lord were to ask me in what circumstances such agreement would be withheld, I would be in some difficulty because it is hard to imagine circumstances in which, if there were clear evidence of poor commissioning practices in an area, that agreement would not be forthcoming.
Special reviews can be tailored in all sorts of ways. They can be tailored to look at how commissioners are delivering specific policy objectives—for example, personalisation or service integration. The special review powers could be used to target the poorest performers, conduct thematic reviews across all local authorities—and I shall mention that again in a second—or perform reviews of a cross-section of local authorities. These reviews are a sophisticated power that allows the CQC to get to the heart of an issue in a way that periodic
reviews cannot. If there is a good case for it conducting a review of that kind, it will not be stopped from doing so.
The noble Lord, Lord Warner, questioned the whole principle of ministerial sign-off for these special reviews. In fact, all special reviews and investigations by the CQC under Section 48 of the 2008 Act currently require the approval of the Secretary of State, so, in that sense, we are not doing anything radically new.
As I said, the CQC will be able to carry out a special review of commissioning where there is evidence that commissioning practices are contributing to the provision of poor care for patients and service users. A prime example of where the CQC could be tasked to conduct an investigation would be if it had evidence that 15-minute commissioning was taking place. That applies to any area where poor commissioning is identified as a contributory factor to the poor provision of care, either in terms of the quality of services or where access to services is raised as an issue by people who use them. I hope that that is reassuring. We are absolutely clear that the CQC will play a leading role in making sure that people receive acceptable standards of care. Indeed, only last week we announced that the CQC was considering the use of 15-minute care visits to vulnerable and elderly people. That is entirely appropriate and I emphasise that it will still have the power to carry out special reviews of that kind.
The noble Baroness, Lady Greengross, went further and said that it was counterproductive to remove the periodic review power for commissioning. She referred to statements about this made by my honourable friend, Norman Lamb, the Minister for Care and Support. I would simply say to her that retaining Section 46 functions—the periodic review functions—would offer the CQC nothing further in terms of enforcement powers against local authorities. Regardless of whether a review is undertaken under Section 46 or Section 48 in relation to an English local authority, the follow-up action remains exactly the same, with the CQC able to issue an improvement notice in the event of a local authority failing to discharge its functions and to recommend special measures to the Secretary of State in the event of substantial failings.
Our approach will allow the CQC to focus its efforts on those areas where there are concerns about commissioning, rather than on all commissioning, including commissioning where the normal oversight arrangements have revealed no overt problems. I should now like to come to those oversight arrangements, because the noble Baroness asked me who is responsible for the oversight of commissioners if it is not the CQC. We need to remember that commissioners are already regularly overseen, in a number of ways, in the new system. In the case of the commissioning of health services, the new NHS architecture has NHS England taking the central role in performance-managing the commissioning of NHS services. It ensures that clinical commissioning groups deliver the best possible services and outcomes for patients. The CCG assurance framework has been developed precisely to ensure that the CCGs are working to improve services and the quality of care for patients.
This new system is also more transparent. The CCG outcomes indicator set will support CCGs and health and well-being partners in improving health outcomes by providing comparative information on the quality of health services commissioned by CCGs and the associated health outcomes, and it will support transparency and accountability by making this information available to patients and the public. That is new. The first quarterly assurance conversations have now taken place between NHS England and CCGs. We expect that CCGs will want to make the outcome of these conversations available publicly as part of the commitment to transparency. The board will publish an annual assessment at the end of 2013-14, as required by legislation.
In addition, NHS England has its own governance processes in place, including the development of the direct commissioning assurance framework to demonstrate that it meets the standards required. As this is developed further, elements will be introduced to bring external scrutiny to its board and function. Ultimately, NHS England is held to account by the Department of Health for its commissioning activity against its delivery of the priorities set in the mandate.
That does not mean that there is no independent scrutiny of NHS commissioning. Health and well-being boards and local Healthwatch will ensure that the public voice is heard where there are concerns about the design and commissioning of services. Where local Healthwatch identifies concerns, it can raise these with Healthwatch England, which can in turn request the CQC to take action. Where the CQC has strong concerns that commissioning is having an impact on the quality and safety of provision, it can initiate—with ministerial permission—a special review or investigation. This is a much richer tapestry than perhaps some noble Lords have portrayed it.
On local authority commissioning, other measures in the Bill will strengthen the duties on local authorities in exercising their care and support functions. These include a new express duty to promote people’s well-being and a duty to shape local care markets to ensure that they are sustainable and diverse and that they offer high-quality care and support. They will not, as the noble Lord, Lord Hunt, fears, be left to themselves. To start with, the department will work with the local government and adult social care sector to produce statutory guidance on local authority commissioning of care and support. As well as this, the Government are committed to ensuring that there is a clear link between local authority commissioning and the outcomes and experiences of service users. That will be achieved through the adult social care outcomes framework, which will give local people, local Healthwatch and others robust and comparable information on councils’ performance. The Government are committed to making information on adult social care outcomes even more accessible and readily understood by people who use care and the wider public further to enhance transparency.
As with NHS commissioning, local Healthwatch and health and well-being boards will be able, through Healthwatch England, to raise concerns with the CQC about poor commissioning. This is independent, regular scrutiny that will be driven by the views of those with
direct experience of service failings—the service users themselves. Although this system is in its early stages, I genuinely believe that the mechanics are in place to ensure that local authority commissioning is scrutinised regularly and in a way that it has not been before.
My noble friend Lord Deben referred to the Localism Bill and wanted assurance that the powers given to the CQC will not be circumvented in various ways. I can assure my noble friend that it is not our intention that the powers given to the CQC will be circumvented by other legislative proposals or any other means.
My noble friend Lady Barker asked why we are stopping the CQC doing what it does now, and whether there is any evidence that the power has been misused. As I am sure my noble friend will agree, the CQC plays a very important role in regulating and inspecting health and care services. It is the nation’s chief whistleblower on health, but to do its job properly it must be able to act without fear or favour from the government of the day. In a nutshell, we want to make it a stronger organisation by ensuring that it has the freedom and independence always to speak out about patient safety concerns, irrespective of who is in government. The removal of the need for the CQC to gain the approval of the Secretary of State for its programme of inspections and so on will particularly complement the role of the CQC’s new chief inspectors in providing an authoritative and independent judgment of the quality of health and social care services.
I would say to the noble Baroness, Lady Pitkeathley, that the main objective for the CQC, as set out in the 2008 Act, is centred on service provision. The objective is to protect and promote the health, safety and welfare of people who use services. It will do this, as it does at the moment, through looking at service provision and it will look at local authority commissioning when there is evidence of problems.
5.15 pm
Finally, I turn to the question posed by the noble Lord, Lord Hunt, about the regular interaction between the CQC and my right honourable friend the Secretary of State. I hope he will bear in mind that the Department of Health and the Secretary of State act as system stewards, overseeing the work of the CQC and other arm’s-length bodies. It is essential as the regulator of providers that the CQC is independent in its judgments. That is not to say that Ministers and the department should not keep a regular watching brief over what is—he will acknowledge—a very active scene out there, not least in the area of the quality of care delivered by certain hospitals.
Having taken a little time over this, I hope that I have reassured noble Lords not only about the merits of our amendments but that their own fears about what we are asking the CQC to concentrate on are misplaced.
(1) Part 1 of the Health and Social Care Act 2008 (the Care Quality Commission) is amended as follows.
(2) In section 48 (special reviews or investigations), omit subsection (7) (Secretary of State’s power to make regulations as to procedure for representations before publication of report).
(3) In section 54 (studies as to economy, efficiency etc), in subsections (1) and (3), omit “, with the approval of the Secretary of State,”.
(4) After subsection (2) of that section, insert—
“(2A) The Commission may not exercise the power under subsection (1)(a), so far as it relates to the activity mentioned in subsection (2)(d), without the approval of the Secretary of State.”
(5) In section 55 (publication of results of studies under section 54), omit subsection (2) (Secretary of State’s power to make regulations as to procedure for representations before publication of report).
(6) In section 57 (reviews of data, studies and research), in subsection (1), omit “, with the approval of the Secretary of State,”.
(7) In section 61 (inspections carried out for registration purposes), omit—
(a) subsection (1) (Secretary of State’s power to make regulations specifying frequency etc. of inspections), and
(b) subsection (4) (Secretary of State’s power to make regulations as to procedure for representations before publication of report).
(8) In section 83 (annual reports), omit subsection (3) (Secretary of State’s power to direct preparation of separate reports).
(9) In paragraph 5 of Schedule 4 (inspection programmes etc.), omit—
(a) in sub-paragraph (1) (preparation of programme etc.), “, or at such times as the Secretary of State may specify by order,”, and
(b) sub-paragraph (3) (Secretary of State’s power to specify form of programme etc.).
(10) In consequence of subsections (3) and (6), omit section 293(3) and (4) of the Health and Social Care Act 2012.”
Lord Warner: My Lords, I listened carefully to the points made in this debate, particularly those made by the noble Earl, Lord Howe. I find this brave new world that we are moving into—of which he painted such an attractive picture—a bit puzzling. In the previous debate on the trust special administrator, we heard that the trust special administrator comes into play when this wonderful piece of architecture around commissioning has failed to deal with the job. The CCGs, supervised by NHS England, have simply not been able to deliver the changes that are required through the commissioning arrangements. In that area, the fall-back position which the Government insist that we have, is a trust special administrator, often to make good the deficiencies of an unsatisfactory commissioning set-up. The Government do not seem to have quite as much confidence in their new architecture for commissioning as the noble Earl suggested.
I turn to my amendment, which in effect maintains the status quo and the ability of the CQC to decide, in the light of the evidence it has had from its reviews of performance by providers, that there is a systemic problem with commissioning, the making of arrangements for adult social services. It seems odd that we should
just leave this, in effect, to all 152 local authorities and put in place another hurdle to be got over, which is the approval of two Secretaries of State, before the CQC can actually act in the area of commissioning. We have to bear in mind that in the good old days, when I was a director of social services in local government, I had to look over my shoulder at the Audit Commission as to how we were behaving and making our arrangements. The Audit Commission, however, has gone the way of all flesh, so that is the end of another watchdog that was there to make sure, without being too obtrusive, that there could be thematic reviews of the way local authorities carried out their commissioning behaviour. I do not think that this architecture is robust enough to safeguard patients, and I wish to test the opinion of the House.
5.20 pm
Contents 194; Not-Contents 220.
CONTENTS
Alli, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clancarty, E.
Clarke of Hampstead, L.
Collins of Highbury, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Emerton, B.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Glasman, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Greengross, B.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hanworth, V.
Harries of Pentregarth, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Hattersley, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hilton of Eggardon, B.
Hollick, L.
Hollins, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howe of Idlicote, B.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones of Whitchurch, B.
Jones, L.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kerr of Kinlochard, L.
Kilclooney, L.
King of Bow, B.
Kinnock of Holyhead, B.
Kinnock, L.
Kirkhill, L.
Laming, L.
Lane-Fox of Soho, B.
Lawrence of Clarendon, B.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mendelsohn, L.
Mitchell, L.
Monks, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Patel, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Quin, B.
Ramsay of Cartvale, B.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L. [Teller]
Turner of Camden, B.
Uddin, B.
Valentine, B.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Wills, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Worthington, B.
NOT CONTENTS
Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Bakewell of Hardington Mandeville, B.
Barker, B.
Bates, L.
Bell, L.
Benjamin, B.
Berridge, B.
Bichard, L.
Bilimoria, L.
Black of Brentwood, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Borwick, L.
Bottomley of Nettlestone, B.
Bourne of Aberystwyth, L.
Bowness, L.
Brabazon of Tara, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Butler-Sloss, B.
Caithness, E.
Carrington of Fulham, L.
Cathcart, E.
Chadlington, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dear, L.
Deben, L.
Deighton, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Eaton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Empey, L.
Erroll, E.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Fink, L.
Flight, L.
Forsyth of Drumlean, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glasgow, E.
Glendonbrook, L.
Goodlad, L.
Grade of Yarmouth, L.
Greaves, L.
Green of Hurstpierpoint, L.
Greenway, L.
Grender, B.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Horam, L.
Howe of Aberavon, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Janvrin, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kakkar, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Livingston of Parkhead, L.
Loomba, L.
Lothian, M.
Lucas, L.
Luce, L.
Luke, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maginnis of Drumglass, L.
Mancroft, L.
Manzoor, B.
Mar, C.
Marks of Henley-on-Thames, L.
Marland, L.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Nash, L.
Neville-Jones, B.
Newby, L. [Teller]
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L.
Northover, B.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Parminter, B.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Ramsbotham, L.
Randerson, B.
Razzall, L.
Redesdale, L.
Ribeiro, L.
Roberts of Llandudno, L.
Roper, L.
Rotherwick, L.
Rowe-Beddoe, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Skelmersdale, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Suttie, B.
Taverne, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Trefgarne, L.
Trimble, L.
True, L.
Tugendhat, L.
Tyler of Enfield, B.
Tyler, L.
Ullswater, V.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Warsi, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Willis of Knaresborough, L.
Wilson of Tillyorn, L.
Wrigglesworth, L.
Younger of Leckie, V.
5.32 pm
144: After Clause 82, insert the following new Clause—
“Staffing numbers and skills mix
The Care Quality Commission shall, in carrying out its functions, have regard to any official guidance on staffing numbers and skills mix.”
Lord Hunt of Kings Heath: My Lords, we come to an important amendment that relates essentially to staff ratios and guidance. I refer back to the Francis report, which focused very much, among many other serious matters, on staffing ratios and appropriate staffing numbers employed by NHS trusts.
We know very well that given the financial strain currently on the health service there is a large concern about whether there are enough staff on the wards to give appropriate care. Much of the concern around the quality of nursing care and the quality of care by healthcare assistants has related to essential aspects of care, including feeding, caring and all those things associated with what we would regard as appropriate caring. Underlining those things has been a concern as to whether enough staff are employed on the wards.
The noble Earl will know that the Francis report recommended that NICE should benchmark issues around appropriate staffing levels. He will also know that since the Francis report came out we have had the Keogh report into 14 trusts with outline mortality rates. It is interesting that one of the important conclusions of the Keogh review was the need to look seriously at staffing numbers. There seems to be a direct relationship between outline mortality rates and staffing levels on the wards and in clinical areas. We have also had the Berwick review, which the Government established, looking more generally at staffing levels within the health service. The review identified staffing levels as being one of the most important areas on which to focus when it comes to reviewing quality of care.
My amendment relates to ensuring that in its responsibilities the CQC has sufficient focus on staffing levels. This is a very important matter at a time when the health service is being presented with an increase in the number of patients and an increase in technology and complexity at the same time as having to operate on a budget that is just above a level budget. Things
are very difficult indeed in the health service. Roughly 70% of the budget of NHS organisations is spent on staffing and expenditure on nursing and healthcare assistants forms perhaps the most important element of the staffing budget. Therefore, in some way we need to protect staffing levels in such circumstances. My amendment suggests that this is a very important role for the CQC to play and I hope that the Minister will be sympathetic to it. I beg to move.
Baroness Gardner of Parkes: My Lords, I do not want to speak before whoever supports the noble Lord, Lord Hunt, in his amendment, so I will sit down and speak after the noble Baroness.
Baroness Wall of New Barnet: My Lords, I did not intend for that to happen. Noble Lords may find this quite tedious, but I want to follow both the theme and the specifics of the amendment moved by the noble Lord, Lord Hunt. As to the theme, his statement that things are difficult out there today is quite an understatement. Things are hugely difficult. I spent the morning with the TDA in my trust and heard very difficult messages around performance and, more importantly, around finance.
On the specific point about the suggested skill mix and the way of dealing with it in the Care Quality Commission, when we had our Care Quality Commission representative for Barnet and Chase Farm with us a couple of months ago—on a routine visit rather than an impromptu one—she set aside a session to talk to people about healthcare assistants. She got the same message that I have tried to impart to noble Lords on several occasions that the regulation of these people is hugely important. She was trying to understand what difference it would make. Patients who came in to listen at the event could not understand why healthcare assistants were not regulated in that way—although some thought that they were. There is also confusion about who they are and what role they play.
Healthcare assistants and nursing assistants are hugely important to the skill mix, but what they do and what they are able to do is paramount to being able to understand how their contribution to the skill mix really fits. I support the amendment. It can ensure that we once and for all deal with what it really means to be a healthcare assistant, what they can do and how they are regulated.
Baroness Emerton (CB): My Lords, I rise to speak to Amendment 159 standing in my name and in the names of the noble Lords, Lord Willis and Lord Warner, and of my noble friend Lord Patel. Amendment 159 is about safeguarding patients. I championed safe staffing levels during the proceedings on the Health and Social Care Bill and during the proceedings on the Care Bill to date but failed to get my amendments accepted following a firm rebuttal by the Minister. Therefore, it was with a slightly doubtful mind that on 29 July, before we left for the Summer Recess, I put my name to the amendment before us today.
I then began nine weeks of reflection on whether I should or should not withdraw my name. I want to share the experiences of those nine weeks that have
left my name on the amendment. I resolved to try to convince the Minister and noble Lords that if we wish to meet the challenges of high-quality, safe care acceptable to patients and their families in hospitals, we cannot ignore the contents of this amendment, set out under four headings. It recognises that it is only a small part of a very comprehensive Bill focusing on the acute hospital provider but it is nevertheless important that patients should be assured that all the measures that are taken will ensure their safety and the high quality of delivery of care to their satisfaction, resulting in a short length of stay, less likelihood of infection, reduced readmission rates and lower mortality rates.
Surely there is a cost-effective and care-effective way forward, despite the challenges it brings with it. The need to consider staffing levels in the community is equally important if we are to achieve an integrated service from primary healthcare and community care as well as from the acute providers in hospitals. Before the Recess I was involved in discussions about staffing levels with a number of very senior nurses, academics, the Royal College of Nursing and other organisations. The Bruce Keogh report focused on the seriousness of the situation, identifying 14 hospitals with high mortality rates and low staffing levels. That was quickly followed by the publication of the report by Professor Don Berwick, also just mentioned, on the safety of patients, which again referred to low levels of nursing staff as being a problem, but not measured against an evidence-based level.
The group of senior nurses formed themselves into the Safe Staffing Alliance, chaired by Elizabeth Robb, the chief executive of the Florence Nightingale Foundation, who had personally experienced introducing care bundles for five long-term conditions, which led to a dramatic reduction in mortality rates, and who was a member of the Keogh commission. The alliance busily engaged itself in examining the research evidence available internationally, and within the UK, on staffing levels. Its statement says:
“Under no circumstances is it safe to care for patients in need of hospital treatment with a ratio of more than 8 patients per registered nurse during the day time on general acute wards including those specialising in care for older people”.
Very soon after that, Robert Francis spoke to the CQC and referred to his original recommendation on staffing levels. He said, “So much of what went wrong in our hospitals is likely and indeed was in many regards the case in Stafford, due to there being inadequate numbers of staff either in terms of numbers or skills. The evidence given to my inquiry however was not sufficient to persuade me that there should be a minimum across the board staffing level, and I know not everyone agrees with that conclusion. But I could only act on the evidence I had and I was after all only dealing with the event arising out of a particular hospital so the inquiry for all the breadth in the end had limitations. However, evidence has been put forward to me since from the Safe Staffing Alliance to suggest there is a level below which it should be regarded a service is not safe, not that’s the adequate level of staffing but the level below which you cannot be safe. It does seem to me that it’s evidence that is worth consideration and therefore ought to be considered somewhere with regard
to whether there is some sort of benchmark which at least is a bit like mortality rates an alarm bell which should require at least questions to be asked about whether it is possible for a service to be safe given whatever the staffing situation is. I just ask you to consider that as being a potential way to show real support for staff, some of whom are working in really challenging circumstances”.