Report stage in the Lords
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Baroness ThorntonLabour- Quote
- moved Amendment No. 7:
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Baroness CumberlegeConservative- Quote
- My Lords, it is very difficult to get this right without sounding like a creep and being patronising, but I want to thank Ministers for the consideration that they have given to this Bill—it is about 300 amendments that we have collectively put forward. The noble Baroness, Lady Howarth, described the eight days in Grand Committee as group work. She is right. There is something deliciously awful about being banged up in the Moses Room for eight days, but it brought us together and engendered great respect between us. In addition, we have had our rewards, which would not have been possible if we had not had such responsive and thoughtful Ministers. I am delighted to see the group of amendments proposed by the Minister as well as the new clause, “Statement on user involvement”, which follows in the next group. I think that this Bill was unwanted and unloved in its conception. It has been hard to find a group in the country that supports it. Usually with legislation there are a few champions, but apart from the architect, the noble Lord, Lord Warner, it has been hard to unearth them. However, because of how Ministers have conducted the Bill, many of the most recent briefings I have received start with the word “Welcome”. The warmest welcomes have come for the objectives set out in these amendments. It is very difficult to understand the resistance that there was in the other place. That may be because they do not have the right Ministers—it may be because they see amendments as a challenge to their virility. We, on the other hand, are past it, so I suppose we do not fight in quite the same way. I think that these objectives and the matters to which the commission must have regard are about right. I could quibble with one or two words, but I think that that would be churlish. I congratulate the wordsmiths who have fashioned such a good result. They have encapsulated most of what we have sought. I am pleased to see retained in subsection (1)(e) of the proposed new clause in Amendment No. 12 that the concept of action by the commission should be “proportionate to the risks” involved, and that it should target its actions only where there is need. I notice in new subsection (2) that: “In performing its functions the Commission must also have regard to such aspects of government policy as the Secretary of State may direct”. I fought that battle. I have lost it, and now I gracefully retire. I am not disappointed. I think that the gains we have acquired through the Committee stage outweigh the losses. I support the amendment.
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Lord Campbell-SavoursLabour- Quote
- My Lords, I want to say a few words on proposed new subsection (1)(e) referred to by the noble Baroness, Lady Cumberlege. What I have to say arises out of a conversation I had with a provider. Paragraph (e) says, “the need to ensure that action by the Commission in relation to health and social care services is proportionate to the risks against which it would afford safeguards and is targeted only where it is needed”. “Where it is needed” is the judgment of the commission. It was put to me that that might be the peg on which someone who felt they were being unreasonably targeted might want to bring legal action against the commission, which would defeat, as I understand it, the purposes of the Bill. If they were targeted and felt penalised, they would argue with the commission, “You are acting unfairly and unreasonably”. Do the Government feel that that wording is somehow insulated from the possibility of any legal action?
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Baroness Masham of IltonCrossbench- Quote
- My Lords, I am very concerned that prison health is not mentioned in the Government's bundle of amendments. The NHS is now responsible for prison health. This is very important. One of my concerns is that many people in prison have mental health problems, and some of the most complicated problems are those prisoners with dual diagnoses—mental health and addictions. The rise in infections such as hepatitis is also of concern. We have some very large prisons. Prisoners may fall through the net of care. If the need for inspection of health and social care is not written in this Bill for prisons, it may well be neglected by the commission, which will have an enormous amount to do across the country and in many institutions. The commission might think that prisoners are behind closed doors and are not a priority. That would be totally wrong. Prisoners come in and out as though on a conveyor belt. Society needs protection and ill prisoners need good health and welfare systems inside and on release from prison. I would like health and social care, including mental health, included in the new clause in Amendment No. 12, “Matters to which the Commission must have regard”. I hope that the noble Lord, Lord Darzi of Denham, will visit a few prisons and discuss the health needs of these institutions. With the reduction of resources by 40 per cent and reduced inspections by the CQC, I feel worried that prisons may be neglected and forgotten about.
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Baroness SternCrossbench- Quote
- My Lords, I would like to respond to the invitation from the Minister to speak to Amendments Nos. 10, 11, and the consequential—
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The Deputy Speaker (Lord Brougham and Vaux)Conservative- Quote
- After I have put Amendments Nos. 7 and 8 and moved on to Amendment No. 9 the noble Baroness can speak to her amendments, but she cannot speak to them at the moment. The noble Baroness wants to speak to Amendments Nos. 10 and 11, which are amendments to Amendment No. 9. I have not put Amendment No. 9, so she cannot do so yet. I want to put Amendment No. 7 first, then move on to Amendment No. 9, and then call Amendments Nos. 10 and 11 in the name of the noble Baroness, Lady Stern. To be in order, the noble Baroness, Lady Stern, cannot speak to her Amendment No. 10 as an amendment to Amendment No. 9 because Amendment No. 9 has not been called. I want first to get rid of Amendment No. 7.
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- Baroness Masham of IltonCrossbench
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- My Lords, are they not in the same group?
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- The Deputy SpeakerConservative
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- My Lords, Amendment No. 9 has not been spoken to, so I cannot call Amendments Nos. 10 and ll. Perhaps I may put Amendment No. 7. On Question, amendment agreed to. [Amendment No. 8 not moved.]
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- Baroness ThorntonLabour
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- moved Amendment No. 9:
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- Baroness SternCrossbench
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- moved, as an amendment to Amendment No. 9, Amendment No. 10:
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Baroness BarkerLiberal Democrat- Quote
- My Lords, I wish to address an issue in Amendment No. 10. In doing so, I thank the Minister for the work that she has done to bring forward the set of amendments which I believe she has now passed and which are now part of the Bill. Not only has she dealt with this matter and the House in a fair and exemplary manner, but the legislation is a great deal stronger as a result. I congratulate her and the Bill team. I am in something of a dilemma as regards Amendments Nos. 10 and 11. I was fully in favour of Amendment No. 10 and could not see what objection the Government could have to it because the word “rights” is far more inclusive than the concept of safety. For example, “rights” would include a patient’s right to expect that their safety would be taken into consideration by providers of services. Were I a government draftsman, I should be delighted to have a much wider and looser concept with which to deal, and, on balance, I still feel that way. However, I have a slight dilemma as regards the amendment of the noble Baroness, Lady Stern, which refers to rights but not to human rights. People who need social care have very few legal rights. For example, there is no right to receive services. However, as human beings they have an expectation that their human rights will be regarded. On the issue of safety, the noble Baroness, Lady Stern, is doing the Government a favour by proposing an alternative wording and I encourage the Minister to look at that seriously. I refer to double effect. Some medical treatments can have serious adverse consequences for some patients. Doctors may recommend those treatments because they believe it is in the best interest of a patient to do so even though they know that there may be adverse consequences. In doing so they might compromise, or pose a threat to, the safety of a patient. They take a calculated risk for a beneficial reason. This is slightly complicated but, were I in the Government’s shoes, I would prefer to have a measure which did not mention safety. On balance I support the approach taken by the noble Baroness, Lady Stern, but I would prefer the measure to refer to human rights rather than just to rights. However, I believe that she is on the right track and is offering the Government something which they would be very wise to accept.
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Baroness MeacherCrossbench- Quote
- My Lords, I had not intended to speak to this amendment but I wish to support the amendment of my noble friend Lady Stern. Working with the Healthcare Commission year by year, I am very conscious that we are required to meet all sorts of standards in relation to safety, care planning and all sorts of procedures, processes, systems and risk management. There are rafts and rafts of standards. When I go round our services—I shall not comment on all the services within my east London mental health trust—I question whether all these standards of the Healthcare Commission have any impact at all on the very personal experience of our service users and patients. For example, respect and dignity are very sensitive and personal issues. If one has in these objectives the right to dignity and respect, that may ensure that the CQC homes in on some of these very sensitive and personal rights which the regulation of systems and processes may not touch. I leave that thought with Ministers.
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Earl HoweConservative- Quote
- My Lords, it would be wrong if I did not add my few words of thanks to those of my noble friend Lady Cumberlege to the noble Baroness, Lady Thornton, and the noble Lord, Lord Darzi, for having listened so carefully to the issues we raised in Grand Committee, and for having responded so constructively to them. I particularly welcome Amendments Nos. 9 and 12, and not least the fact that we will now have LINks mentioned in the Bill. I am also glad to see “experiences”, in relation to the experiences of patients and service users, substituted for “satisfaction”. It is a more neutral term which is more conducive to the effective measurement of the quality of services. I congratulate the Minister on having reconfigured this part of the Bill in a way that reads a lot better than the original did. We have the objectives and the matters to which the commission must have regard. The way that the clauses flow from one another is a lot better and easier to understand. I for one am glad to see these amendments included in the Bill.
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Baroness Howarth of BrecklandCrossbench- Quote
- My Lords, I support the amendment of the noble Baroness, Lady Stern. I have seen services that offer supreme care but care that is patronising and rather overweening. I have seen care where there has been attention to detail but not to the individual. If we were to include the word “rights” as well as “safety”, we would have to pay attention to personalisation and dignity in residential care, as the noble Baroness, Lady Meacher, pointed out. It would make that subtle difference where care is good but not necessarily personalised and directed to ensure that each individual has that care. While I am on my feet, I add my thanks. It is an exceptional piece of legislation that includes a listening to users provision. The Government are to be congratulated on that if not on all the other clauses.
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- Baroness ThorntonLabour
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- My Lords, I thank my noble friend Lord Dubs and the noble Earl and noble Baroness for their contributions on Amendments Nos. 10 and 11. We are addressing those amendments, but I shall respond to some of the other points made. On behalf of myself and my noble friend I thank noble Lords for the warm welcome that they have given to our amendments. I remain convinced that our amendment represents a more appropriate reflection of the commission’s responsibilities. I shall take this opportunity to explain and address some of the points that were raised. We have responded to the concern expressed in Committee that the Bill should say more on the issue of rights by introducing a broader requirement for the commission to have regard to the need to protect and promote the rights of all those who use health and social care services. As I said in my opening remarks, we should also remember the context, which is that the regulatory regime will reflect the principles of the European convention. As I set out earlier, this includes, but is not limited to, human rights and that is why we do not believe that Amendment No. 53 is required. Our amendment, as drafted, is appropriate for a body of this type. After all, as I have said before, the commission will be one of a number of bodies with responsibilities in this area. So, while it is important that human rights should inform the commission’s approach and its thinking, its primary objective must be to protect the health, safety and welfare of people receiving services. Neither would it be appropriate to include rights among the outcomes the commission should be expected to focus on in carrying out its functions. I turn to the point made by my noble friend Lord Campbell-Savours about legal action being brought against the CQC. The Bill contains provisions for those with action being taken against them to make representations to the CQC before action is taken; for example, in Clause 23 on the right to make representations. We would not anticipate that legal action would be necessary if a care home felt that it was being targeted disproportionately.
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- Lord Campbell-SavoursLabour
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- My Lords, my noble friend did not say that it was not possible. I was seeking to find out whether it could be used as a peg for bringing legal action.
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- Baroness ThorntonLabour
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- My Lords, I did not say it was not possible; you would have to completely disregard the proportionality, which is already included in the Bill, to do that. It would be unlikely, and not likely to succeed either. The noble Baroness, Lady Stern, might be interested to know that the Equality and Human Rights Commission has also warmly welcomed the amendment, as drafted. The noble Baroness, Lady Masham, is a great champion of these issues, and she is right to be concerned. Later amendments on Crown application will ensure that the commission’s registration functions can apply to the Prison Service. Our consultation proposed that that should be the case.
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- Baroness Masham of IltonCrossbench
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- My Lords, will it be written in?
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- Baroness ThorntonLabour
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- My Lords, it will not be written into this part of the Bill. We do not believe that it is appropriate to accept Amendments Nos. 10 and 11 and hope that the noble Baroness will not press them.
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The Lord Speaker (Baroness Hayman)Crossbench- Quote
- My Lords, we are dealing with Amendment No. 10 as an amendment to Amendment No. 9, so it would helpful to know what the noble Baroness would like to do.
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- Baroness SternCrossbench
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- My Lords, I beg leave to withdraw the amendment. Amendment No. 10, as an amendment to Amendment No. 9, by leave, withdrawn. [Amendment No. 11, as an amendment to Amendment No.9, not moved.] On Question, Amendment No. 9 agreed to.
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The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham)Non-affiliated- Quote
- moved Amendment No. 12:
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- Baroness ThorntonLabour
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- moved Amendment No. 13:
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- Earl HoweConservative
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- My Lords, I have no hesitation in saying that in this cluster of amendments there is one rather large diamond in the shape of Amendment No. 13, which I warmly welcome, as well as a number of little gems. I am thinking particularly of Amendment Nos. 35, 44, 47 and 58, all of which, in their own ways, remove some of the concerns we had in Committee about the potential for the department and Ministers to influence the commission and the Council for Healthcare Regulatory Excellence. I am grateful to the Minister for having gone to the care that she has in looking at the points that we raised and I congratulate her on Amendment No. 25, which refers to a deceased registered proprietor. A number of us had some unease about the way in which that part of the Bill was worded. I am sure that it will now be better for that amendment, so I warmly welcome this group.
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Baroness PitkeathleyLabour- Quote
- My Lords, I too welcome this group of amendments, showing, as they do, the Government’s commitment to user involvement. I want particularly to speak in very warm support of the mention of carers in Amendment No. 13. One of the key concerns about the Bill was the original lack of requirement on the commission to involve and consult carers during the course of its work, alongside service users and patients. Carers’ lives are influenced to a considerable degree by the quality, accessibility and affordability of care services. Social care policy is finally recognising—through, for example, the Putting People First concordat and the National Strategy for Carers, the latest version of which was launched by the Prime Minister last week—that carers should be seen as partners in care and consulted and involved more by service providers. It was therefore essential that the Bill reflected these developments. These amendments will provide more recognition for carers and more recognition of the fact that most social care is provided not by any agency that is subject to inspection, but by family, friends and neighbours.
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- Lord Campbell-SavoursLabour
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- My Lords, I want briefly to intervene and make a suggestion. The statement on user involvement states: “The Commission must publish a statement describing how it proposes to— (a) promote awareness among service users and carers of its functions”. In Committee, I laboured the point regarding my personal experience. I would like to suggest to the Care Quality Commission as it begins its work that it should require homes to publish on their websites information about the existence of the commission’s reports and, if I had my way, actually to publish the reports. Most people, despite what other people think, do not even know of the existence of the current inspectorate arrangements prior to putting their relatives in homes. They find out about that pretty quickly when they are told about it, but very often they do not know in advance. I want a mechanism to inform people in advance, when they are looking at the glossies, that there is a report that they should read.
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- Baroness Masham of IltonCrossbench
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- My Lords, I, too, welcome the amendment, but will the service users or carers be able to state their concerns when there are not enough facilities? For example, there is the problem of intensive care costs, which was highlighted in the headlines of the Evening Standard today.
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- Baroness ThorntonLabour
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- My Lords, all I really need to say is that we are grateful for the thanks that have been expressed for these amendments. They would not have been possible without the fantastically expert Members of the Grand Committee who we were surrounded by and who know more than it is possible to say. My noble friend Lord Campbell-Savours had some wise words and helpful suggestions. I am very happy to say that we can now direct them to the chair of the CQC. I shall come back to the noble Baroness, Lady Masham, because I do not know the answer to her question at the moment. On Question, amendment agreed to.
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- Lord Darzi of DenhamNon-affiliated
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- moved Amendment No. 14:
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- Earl HoweConservative
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- moved Amendment No. 15:
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Baroness TongeNon-affiliated- Quote
- My Lords, I would like to speak very briefly. It is unusual for me to disagree with the noble Earl, Lord Howe. I am looking back to long ago when I was a chair of social services in a London borough. I was always concerned about the buck-passing that used to go on between education services and social services for children. It was very difficult for the two disciplines to work together. I am also worried that the Care Quality Commission is covering so much. As you know, I have accepted now what the Government are doing, but I still think that it has an enormous brief and I just do not know how it is ever going to have enough staff. The thought that children’s services may be in there somewhere and may get lost worries me because it is one of the crucial areas that we need to keep track of in this country. I felt pleasure that Ofsted was going to cover education and social services for children because that would bring things together. If the noble Earl feels that Ofsted may not be well equipped to cover children’s social services in the way it does education—I am quite sure he is right—we should strengthen Ofsted and make sure that it really is able to cover them, and that children’s services can be integrated and looked at by one inspectorate. That is a much healthier way to be than to have them separate.
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- Baroness Howarth of BrecklandCrossbench
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- My Lords, the noble Earl, Lord Howe, has put the argument about the difficulty of inspecting schools and children’s homes by the same methodology very eloquently. The methodology that Ofsted uses fills four boxes and in those boxes you either pass or fail, rather like school exams. In a children’s home, you cannot pass or fail; you have to be helped to reach the standard, which is that the children are going to be properly cared for holistically. Simply closing the home down—which is what happens if you are actually on the lower end of adequate—or not taking any more children into that establishment is unthinkable. I have personal experience of Ofsted refusing to allow young people to be taken into an establishment until it was brought up to another level, although the establishment was going to continue to operate. Those difficulties put the whole establishment at risk because of economic viability. Fortunately, it brought itself up to standard, as one would expect. I agree with the noble Baroness about the integration of services. We have reached this point; as we have said several times this evening, we are where we are. It breaks my heart to disagree with the noble Earl, Lord Howe; he knows that I am a huge admirer of him. Those services now on the ground are becoming integrated in terms of service delivery in schools and local authorities. That does not mean that you cannot change the method of inspection. That is the core of the problem—that Ofsted believes that it has an answer. Just as social care could learn from the methodology of Ofsted, because it has rigour, Ofsted too could learn about the holistic approach to services that are looking after children in terms of body, mind and soul. That is the less important message that I want the Minister to take away. After all, I was the Member who was sent to see the chief inspector because I was so determined, during the debate, to try to prevent the break-up of this regulation. Now that it has happened, further reorganisation would be disruptive. We must press for a different methodology.
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Lord WarnerCrossbench- Quote
- My Lords, we have over here the small corner of ex-directors of social services. I have huge regard for the approach that the noble Earl, Lord Howe, takes in many areas, but in this respect I must part company with him. We have talked a lot about integration of services in relation to this Bill. I used to have to try to balance, in a tightly constrained budget, the needs of protecting children with the needs of a growing elderly population; that is not easy to do. There have always been real issues about whether we could benefit children by integrating their services across departments. If Ofsted is not doing the inspections in the way in which it should, we should take that up with Ofsted. We should get the inspection right and should not try to put the clock back and reintegrate children’s services with adult social services. That would be a step backwards. The future of adult social care is much more related to integration and removing the barriers between adult social care and healthcare, particularly with an ever ageing population and many people with long-term chronic conditions. We do not want to go down this path but, if we do, and if we have concerns about the way in which Ofsted carries out inspections of children’s services, children’s social services and children’s social care, the evidence should be provided and the Government should be asked to look at that.
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- Lord Darzi of DenhamNon-affiliated
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- My Lords, following the brief discussion on the interaction between Ofsted and the Care Quality Commission in Grand Committee, I appreciate the fact that the noble Earl, Lord Howe, has given me the opportunity, with Amendment No. 15, to explore how the Care Quality Commission’s registration of care service providers will fit with Ofsted’s parallel registration regime for providers of children’s social care services under the Care Standards Act 2000. That is my understanding of the purpose of Amendment No. 15. Noble Lords will appreciate, as we have heard, that the regulation of children’s social care is now the responsibility of Ofsted. However, the regulation of children’s healthcare will remain with the healthcare regulator, the Care Quality Commission, in future. The purpose of Clause 4(2)(b) is to ensure that services are not regulated twice—by both Ofsted and the Care Quality Commission—by specifically excluding any services that are registered with Ofsted from the definition of “regulated activity”. To ensure that certain types of vital care services cannot fall between the cracks and be excluded from registration with either regulator, the definition of social care in Clause 5 is not a definition of adult social care. For example, those domiciliary care agencies which cater only for children can be within the scope of registration within the Care Quality Commission, so long as they are not already required to register with Ofsted. Alternative forms of drafting could well have resulted in neither body being able to assure the safety and quality of these vital care services. I know this is of particular concern to the Commission for Social Care Inspection. Of course, the commission and Ofsted are required to co-operate with each other, through Schedule 4 of the Bill and Ofsted’s parallel legislation, Schedule 13 of the Education and Inspections Act 2006. I thought that most of the discussion concerned Ofsted’s qualitative functionality as a regulator. The noble Baroness, Lady Tonge, very eloquently described—and was supported by my noble friend Lord Warner—how Ofsted is able to focus on the wider interest of children and young people, allowing a comprehensive view to be taken across care, education and skills. I am also led to believe that Ofsted took experienced inspectors with a significant knowledge of the social care sector and the inspection framework that Ofsted adopted in 2007 and was identical to the one used by the Commission for Social Care Inspection. As my noble friend said, if that framework is not functioning—the noble Earl, Lord Howe, has concerns about that—I have no doubt that as we wait for the inquiry of the Select Committee on Health, we can look at the functionality of Ofsted in more depth. I hope that I have been able to explain the benefit of Clause 4 and that the amendment can now be withdrawn.
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- Earl HoweConservative
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- My Lords, I am grateful to all noble Lords who have spoken and I recognise that we are where we are. This series of contributions has told me very politely that I am on the wrong track. I am very grateful for the politeness and the constructive comments. I shall go home tonight recognising that perhaps I am on the wrong track in seeking to reintegrate children’s social care with adult social care. But if there is one issue that I think we agree on, it is that we need to make sure that children’s social care is being regulated properly and that if Ofsted is in any way struggling to do the job, then it needs to have the right tools and support. I hope that this short debate has not been in vain in that sense and that Ministers will keep a watchful eye on what is happening in that sphere. For now, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Earl HoweConservative
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- moved Amendment No. 16:
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- Baroness TongeNon-affiliated
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- My Lords, first, I am delighted this time to support the noble Earl, Lord Howe, in Amendment No. 16. I am amazed that this had not occurred to me or anyone else in Committee. I suppose that we all made assumptions—I assumed that agencies employing staff used in health and social care would somehow be covered. I could not believe that that was not so. I support the noble Earl and look forward to hearing the Minister's response and his reassurance that the Bill covers what the amendment is intended to cover.
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- Baroness Howarth of BrecklandCrossbench
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- My Lords, the noble Earl has set out the case very clearly, but I wanted to follow through briefly on the area of accountability. The noble Earl said that some care homes or establishments might be too busy to make checks. Organisations that are accountable for running a service must have the time to carry out appropriate checks. That means that there is probably a double set of checks on the agency supplying the person, but also on those who are using the services. The noble Earl has put his finger on exactly the right point in the third category he mentions, where people are being supplied to individuals and there appears to be a real gap in regulation. That is exactly where there needs to be regulation.
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- Lord Darzi of DenhamNon-affiliated
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- My Lords, we have been consulting on which particular types of care services should be within the scope of registration with the Care Quality Commission. The consultation, which closes tomorrow, on 17 June, is particularly relevant to Amendment No. 16, because we are waiting until we have carefully considered the responses to the consultation before determining the range of agencies that will be regulated by the commission. I am grateful to the noble Earl for raising the issue and have no doubt that after receiving the responses tomorrow, we shall come back at Third Reading to address any gaps in the clauses. I shall make just a few points about definitions. The definition of “a person” in Part 1 may be a legal person—that is, an organisation or body—or, as I have been told, a natural person—that is, an individual. The Bill provides for the regulation of activities, and service providers will be required to register in respect of the activities listed in secondary legislation as “regulated activities”. There is no reason why “a person” cannot be an employment agency. In our consultation on the framework for the registration of health and social care providers, we have proposed personal care and nursing care as regulated activities. Agencies which supply healthcare workers fall within the scope of the Care Quality Commission, even where they supply services to children, as those are not regulated by Ofsted. We propose that anyone providing personal care or nursing care in people’s own homes—excluding, of course, relatives, friends or neighbours—should register with the commission. This therefore would include domiciliary care agencies. However, to avoid dual regulation, we propose that where workers are supplied to deliver personal or nursing care solely in settings where a person is already registered by the commission with regard to that activity, these types of agencies should not need to be registered. For example, where an agency supplies workers to a care home, the care home will already have to register and meet registration requirements. As I said earlier, we specifically asked about this in our consultation and we will consider the responses carefully before making a final decision. There is one other issue on proposed subsection (b) of the amendment. Qualified social workers employed by local authorities are regulated professionally by the General Social Care Council. Where a local authority provides a regulated activity, such as a local authority-run care home, it is intended that the care home that provides the accommodation, together with personal or nursing care, will be regulated, as I said earlier. Finally, in complying with the registration requirements, the provider will have to ensure that workers are safe and competent under proposed registration requirement No. 15 in our consultation document. As I promised earlier, if there is still a gap and if we are wiser after the consultation, I will look into this and bring forward any necessary amendments at Third Reading. I hope that the noble Earl will withdraw his amendment.
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- Earl HoweConservative
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- My Lords, that was a very helpful reply from the Minister. Of course I understand that, at this point, before the consultation has finished, it is difficult for him to comment in detail on these issues. I am grateful to him for saying that he will look at the points that I have raised and I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 13 [Cancellation of registration]:
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- Lord Darzi of DenhamNon-affiliated
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- moved Amendments Nos. 17 and 18:
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- Earl HoweConservative
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- moved Amendment No. 19:
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- Baroness MeacherCrossbench
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- My Lords, I rise to support Amendments Nos. 19 and 73 and to speak to Amendment No. 20. My noble friend Lady Finlay has asked me to give her apologies to your Lordships’ House. She has put her name to these amendments, but unfortunately she has an engagement arranged a year ago that she is unable to break. Amendment No. 19 envisages regulations providing for the CQC to ensure the implementation of recommendations coming out of complaints investigations. The noble Earl, Lord Howe, referred to this in relation to care homes. I want to say a few words about its relevance in relation to health trusts as well. I happen to be very well aware that health trusts can be relied on to undertake investigations into complaints; they could not get away with not doing that. But my experience of this is that they are far less reliable in terms of following up the recommendations coming out of those investigations, and yet without doubt it is those lessons which are far more important in fact than the investigations themselves. If you carry out the investigation and do nothing about the lessons, you will have achieved very little. In Committee I mentioned a particular case where a complaint had been made, an investigation undertaken and recommendations issued that a clozapine clinic should be established. In fact, nothing happened after that recommendation, with the net result that the patient contracted diabetes, which of course will affect him for the rest of his life. That is how serious it can be if these recommendations are not followed through with. They—not always, but often—throw up some serious issues. Considerable resources are devoted to these investigations. A lot of professionals’ time is devoted to thinking through the ramifications and the lessons that need to be learnt. It is therefore incredibly cost-ineffective if this is not done. As the noble Earl, Lord Howe, mentioned in speaking to Clause 16, the regulations already make provision for the handling of complaints and disputes. All this amendment does is to make sure that this piece of complaint handling—the following up of recommendations—is not neglected. I find it difficult to imagine that Ministers will not be more than happy to incorporate that small adjustment. I speak briefly to Amendment No. 73, which seeks to ensure that self-funders in care homes have access to an independent complaints procedure. The noble Earl, Lord Howe, has, as always, spoken eloquently on this. I make a couple of points. First, in discussing this, a number of us are concerned that we should not establish new bureaucracy, new procedures and elaborate new approaches. The idea of tacking the complaints process for self-funders on to existing local authority procedures is as cost-effective as you can make it. While the noble Earl, Lord Howe, suggested that this may be very expensive, my fear is that it could be rather inexpensive because, even if there is a relatively independent complaints process, such vulnerable self-funders in homes will be disinclined to make complaints, as will their relatives. Only in the most dramatic circumstances will such complaints be made. For that reason, it is important to have this facility. What about somebody who is, as it were, semi-starved? I happened to have a relative in such a situation some years ago. The idea that you cannot do anything about that because you feel so vulnerable, particularly if the complaints process is not independent, is a pretty appalling state of affairs in our society. That is one point: this is about as cost-effective as you can get it. Secondly, if Ministers are willing to accept this point, the regulations will need to make clear who can make such complaints. Tragically, the sort of people we are talking about will probably not be in a position to make the complaints themselves. Some of these people do not have any relatives to complain on their behalf. It may, indeed, be a CQC or LINk representative—or somebody of that kind—who sees something appalling happening and is the only person who can make a complaint on behalf of that resident. I put that concern on record. I go on to speak to Amendment No. 20, which makes provision for regulations to, “impose requirements as to the need to reduce health inequalities and discrimination on the basis of disability”. It will also ensure that the CQC takes full account of the Disability Discrimination Act 1995. My perspective, as always, tends to be a mental health one, simply because that is where my experience lies. I have no doubt that this amendment has relevance to other groups of people with disabilities. Currently, people with severe mental illness die 10 years younger than the population at large. They are particularly at risk of contracting heart disease, hypertension, diabetes, breast cancer, respiratory problems and bowel cancer. I suggest that health trusts are failing on a massive scale to fulfil their duties under the Disability Discrimination Act. Unwittingly, general practices may also make it quite difficult for this group to receive the services that they need. Many people with severe mental illness require reasonable adjustments in order to gain access to services. For example, on a practical level, people who are taking sedative medication should not be required to telephone at 8 am to get an appointment. This is of some importance. Practices which fail to adapt their policies in this kind of practical way are probably creating health problems rather than helping with them. For example, some people will stop taking medication for their psychiatric disorder in order to ensure that they can get up in the morning and have their physical health dealt with. Why is there apparently so little special provision for people with mental health problems? When you consider that about one person in six experiences mental health problems at some time in their life, it is important to question whether GPs have anything like adequate training in mental health. If GP trainees do not opt for a psychiatry job during their senior house officer years, they can qualify with little or no real exposure to the range of serious mental illnesses from which many of their patients will suffer, or to the minor mental health disorders from which 30 per cent or so of their patients will suffer. In my experience, the physical care of patients in psychiatric hospitals has been badly neglected over the years. Some additional resources are finally now being devoted to this issue; they are certainly well overdue. Insufficient attention is still paid to problems such as obesity despite the fact that a great deal of psychotropic medication leads directly to increased weight unless great care is given to the issue. The health regulator should surely have a remit to require some progress to be made to reduce this gross inequality. In the early stages of the CQC’s life it may have to focus on secondary health services rather than general practice and the proposed amendment allows for development over time. By leaving this issue to the realm of regulations we are avoiding imposing obligations on the Government which may prove impractical in the period immediately following the establishment of the CQC. I hope the Minister will see this as a fairly modest amendment but one of profound importance.
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- Baroness BarkerLiberal Democrat
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- My Lords, I wish to make a point in relation to Amendment No. 73. The National Health Service and local authorities are often described as monolithic, lumbering entities, but they can move with the swiftness of a gazelle when they see a financial liability looming. It is important that whatever legislation we put in place is grounded in reality. For eight years the National Health Service and local authorities argued with all the power and might of Philadelphia lawyers to get out of the possible liability of NHS continuing care, and it is important that we recognise now that no local authority in its right mind would go near a self-funder and advise them if it thought there was the remotest possibility that in doing so it would somehow attract a liability for that person’s care. It is incredibly important that self-funders have easy and swift access to some kind of support and I agree that it is preferable that that should be local to them. It is even more desirable that it is not a reactive service but a proactive one provided by people who come along and see someone, perhaps in a care home, whose capacity has perhaps declined since they first went in. If we want local authorities to do this, therefore, it is of the utmost importance that it is spelt out that they will not assume a liability for care by default; otherwise it will not happen. As the noble Earl, Lord Howe, said, at the moment local authorities have a statutory duty to assess, which they do not do in many cases. So they are not going to do this unless they are shielded from liability. That is my first point.
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- Lord Campbell-SavoursLabour
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- My Lords, perhaps the noble Baroness has read something into the amendment that is not quite there. It does not say that the local authority would have one of its employees act as a person handling complaints. It simply says that a matter should be referred to a local authority. It would be quite possible for a local authority to have at its disposal a team of people acting voluntarily who would take on the responsibility of carrying out the task of dealing with complaints. There is not necessarily any expenditure implication for a local authority or body in this amendment, as I understand it; there is simply a responsibility for it to accept it. It can then deal with it in the way I have suggested.
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Lord Low of DalstonCrossbench- Quote
- My Lords, I support Amendment No. 20, to which I have put my name. I shall speak briefly on it because time is getting on and the noble Baroness, Lady Meacher, has already moved it clearly and cogently. The absence of public health from the Bill has been noted intermittently in our debates. Anna Walker, the chief executive of the Healthcare Commission, has bemoaned the fact that the registration requirements explicitly say that the commission cannot bite on public health issues, so the CQC is dealing with healthcare rather than health. Amendment No. 20 offers a gentle but necessary correction to that tendency. As for disability discrimination, people exercising functions of a public nature are already prohibited from discriminating against disabled people under the Disability Discrimination Acts. The 1995 Act prohibits discrimination in the provision of goods and services, so Amendment No. 20 would not add a particularly onerous new burden on health authorities. It could, however, deal with some cases that are not covered by existing law. For example, it has been brought to my attention that people with mental health problems have particular difficulty when trying to volunteer in a health or social care setting. The Disability Discrimination Act would help to overcome that situation. Most importantly, it could enable the CQC to help providers to relate existing law and best practice to the daily reality of health and social care provision. The amendment would make things clearer and easier for both users and providers, and I am happy to support it.
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- Baroness ThorntonLabour
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- My Lords, we have had a number of useful debates about what requirements should be set under Clause 16. In Amendments Nos. 19, 20 and 73, the noble Earl, Lord Howe, the noble Baroness, Lady Meacher, and the noble Lord, Lord Low, have raised two issues that have attracted considerable debate: complaints, particularly the need for adequate arrangements for those who arrange their own care; and the importance of reducing health inequalities and discrimination. Perhaps I may respond first to Amendment No. 73. As the noble Earl, Lord Howe has made clear, the amendment is intended to fill a gap that exists when those who do not qualify for state support make a complaint about a service and feel that it has not been addressed appropriately. I remind noble Lords that anyone who has their care arranged by a local authority, even if they pay the full cost of that care, can refer a complaint to the Local Government Ombudsman. However, as I hope I made clear in Committee, we recognise that the fairness of current arrangements for those who arrange their own social care is an issue. We are talking to key stakeholders to agree a solution. We recognise the concern of the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, who also raised the matter. However, I am afraid that I am not able to say anything more in detail about that, other than that we expect to be able to put forward proposals soon. I hope to be able to make a statement regarding independent adjudication within the timescale of the Bill. The noble Baroness, Lady Barker, was correct that this is a complex issue. Therefore I should perhaps also say that, given the complexity of the ongoing discussions, we would not be able to bring legislative changes forward in the scope of this Bill. I hope that, given that assurance that we take the issue very seriously, the noble Earl will feel able to withdraw this amendment. When we debated these matters in Committee, I believe that we all agreed that it is as important that action is taken to follow up and learn from complaints as it is that they are dealt with properly. Amendment No. 19 would ensure that regulations under Clause 16 included requirements about how recommendations following a complaint were taken on board. I described to the Committee requirement 10 in the registration requirements, on which we have consulted. It would require providers to ensure that there were simple, clear arrangements for handling complaints and disputes, and that complaints were investigated and resolved promptly and effectively. Crucially in light of our debate now, it would also require providers to ensure that learning from complaints was reflected in risk management, quality assurance, clinical governance and training and development arrangements. Learning would be informed by a variety of sources, but we would expect recommendations from the ombudsman and other key sources to play a vital role. The commission will be able to use the full range of its enforcement powers to take action where people fail to meet those requirements. I believe that we are in the same place here. However, I recognise concern that there should be a clearer indication in the Bill of the importance we place on this issue. I therefore undertake to consider Amendment No. 19 with a view to bringing back an amendment at Third Reading. I turn to Amendment No. 20. The noble Baroness was absolutely right about the need to tackle health inequalities, on which she spoke with her usual great eloquence, and to ensure that services provide comprehensive healthcare to people even when they have particular needs that require specialist support. As I said in Committee, we have been consulting on registration requirements which are particularly relevant. However, every requirement is relevant, which is why it will be important that the commission enforces them all with equal rigour. Amendment No. 20 seeks to address discrimination. I appreciate that it is driving at the ability of the commission to act in relation to a failure to implement the Disability Discrimination Act. The Bill already provides the commission with precisely such a power. It will be able to take action against a registered provider in relation not only to the requirements in this Bill but to those in other relevant legislation. I agree with the intention of the amendment, but there is no need to duplicate requirements that already exist in legislation. What we must provide for, as the Bill already requires, is that the commission is mindful of those requirements when it monitors services. In light of this, and my commitment to look again at Amendment No. 19, I hope that the noble Earl and the noble Baroness will agree not to press their amendments.
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- Earl HoweConservative
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- My Lords, I very much welcome the Minister’s reply on the issues raised by Amendment No. 19. I am grateful to her for saying that she will take the matter away and look at it again. That is great news. It was encouraging to hear the noble Baroness say that she is looking actively for a solution on self-funders, and that proposals are likely to emerge soon. It is a pity that she is not yet in a position to go further than that. We had some extremely useful contributions, notably from the noble Baronesses, Lady Meacher and Lady Barker. I completely take the point of the noble Baroness, Lady Barker, that local authorities would not wish to perform the function I propose if there is any possibility that they may acquire a liability for the complainant’s care. I am not sure how that could come about but, if it is a risk, the contingency should certainly be avoided. The noble Lord, Lord Campbell-Savours, suggested an interesting way that the local authority might fulfil the function. I am grateful to him for that. Regrettably, this is not a matter that we will be able to take further this evening. I look forward to further discussions with the Minister, perhaps outside these four walls. For now, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 20 not moved.]
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- Lord Campbell-SavoursLabour
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- moved Amendment No. 21:
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- Baroness ThorntonLabour
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- My Lords, I thank my noble friend Lord Campbell-Savours who outlined these very serious issues in his usual clear and moving way. I welcome the opportunity to say how important it is that we take strong action to tackle infections. Amendment No. 21 would restructure the existing provision in relation to infections to require the commission to require providers to display information on their premises about recent instances of infection. Let me say straight away how sympathetic I am towards my noble friend’s intention with this amendment. It is, of course, crucial that such information is easily accessible to the public. I believe that this will be the case even without this amendment, but there is also scope for regulations under Clause 16 to include requirements along these lines. Although this issue is not covered in the current consultation, we will be consulting further later this year on the detail of what regulations under Clause 16 will cover. As noble Lords will be aware, these regulations will also include provision on managing infections and we will be revising the current code of practice on healthcare-associated infections, which will be used to determine compliance with those regulations, to apply to all regulated activities. Under the current code of practice, every NHS body is also required to have a director of infection prevention and control, who is required to make an annual statement on HCAIs in the organisation and to make this available to the public. In revising the code, we will consider how information on infections should be provided in all sectors. The revised code will be subject to a full public consultation so there will be an opportunity for people to comment on our proposals. In addition, the Health Protection Agency collects data on instances of MRSA, C. difficile and other infections from acute trusts under the mandatory surveillance system. These data are available on its website, where patients and their families can access the rates for each trust. Some information is also available on the NHS Choices website. Of course, the Bill already requires the commission to publish inspection reports under Clause 57(3), and Clause 80 requires the commission to make its reports available to the public, just as the current commissions do. I expect that, as now, reports will be available via the commission’s website and the public will also be able to request hard copies. We intend to publish regulations under Clause 85 requiring the commission to publish certain information about enforcement action that it has taken. This means that the public will be able to access information about how the commission is using the new powers it will have at its disposal to address infections wherever they occur. Of course, the commission will also publish information on how well services are performing for the purposes of public accountability, supporting people in making informed choices. So, arrangements are in place for this kind of information to be made available to the public, either by the commission or others. I hope that I have reassured my noble friend that we want to ensure that the public can access information about the services they use, that the Bill will in fact strengthen these arrangements, and that he will therefore agree to withdraw this amendment.
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- Lord Campbell-SavoursLabour
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- My Lords, I am grateful to my noble friend and I shall refer her remarks to the colleague with whom I have been discussing these matters. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 22 [Notice of proposals]:
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- Lord Darzi of DenhamNon-affiliated
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- moved Amendment No. 22:
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- Lord Darzi of DenhamNon-affiliated
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- moved Amendment No. 23:
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 24:
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- Baroness BarkerLiberal Democrat
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- My Lords, it is such riveting stuff that it is desperately difficult to keep away. I return to two issues that we debated in Committee. I put my hands up to the fact that these are issues for social care anoraks, but none the less they are important in the greater scheme of things. Amendment No. 24 returns to the question of which bodies are notified when the commission takes action under Clause 35. We talked at length in Committee about what would happen if action were taken against an individual social care worker. I understand, following helpful discussions with the Bill team, that in Clause 35 the bodies which are required to be notified are those responsible for the provision of care. We have so far not dealt with the fact that one of the standards on which providers will be judged is that they should only use registered staff if they are to be compliant. It seems to me that if a provider is found not to be compliant because they continue to use unregistered staff, that matter should be automatically reported to the General Social Care Council. I understand that under Clause 35(1)(d), “other persons” could include the General Social Care Council, but the General Social Care Council has an importance within the field of social care, being the registering body for social care workers, so I think that it merits mention on its own. Amendment No. 33 returns to the assessment of social care needs. I listened very carefully to the view put forward by the noble Baroness in Committee that commissioning would involve such an assessment. I disagree with that because very many PCTs, and increasingly local authority social services departments, are divesting themselves of their provider arms. They are in future unlikely to be commissioning large volume services for users with the growth of individual budgets and self-directed care. I was interested earlier to hear noble Lords talking about local authority homes. I do not think there will be local authority homes in future. In the group of amendments on agencies, spoken to by the noble Earl, Lord Howe, we underplayed the importance of brokers who will broker care for people who are going to buy it with individual budgets. So it is not fantastic to foresee a time fairly soon when local authorities will not be commissioning care, because that will be done under self-assessment and individual budgets. It is important to ensure that social care needs are assessed, even when they are not met and even when they are not recognised through the commissioning process. For that reason, I return to these two somewhat technical-sounding issues, but ones on which the quality of social care depends quite heavily. I beg to move.
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- Lord Darzi of DenhamNon-affiliated
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- My Lords, looking first at Amendment No. 33, I agree with the noble Baroness that assessing the quality of services provided is impossible without an assessment of the needs of the population that is being served. For local authorities, both individual needs assessments under Section 47 of the National Health Service and Community Care Act 1990 and joint strategic needs assessments carried out jointly with PCTs under Section 116 of the Local Government and Public Involvement in Health Act 2007 are relevant here. Joint strategic needs assessments relate to the needs where there is an overlap between what the PCT and local authority might provide and identify the current and future health and well-being needs of the local population. Local authorities are required to carry out individual needs assessments of those individuals who appear to them to require social services. Both of these functions are statutory duties of the local authority and play a crucial part in ensuring the effective provision of care, especially when one bears in mind that models of care, particularly adult social care, are changing very rapidly indeed. Both could therefore be encompassed within the commission’s reviews under Clause 42 or, indeed, Clause 44. Obviously, exactly what will be encompassed in those reviews will be dependent on the indicators that the commission will play an important role in developing.
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- Baroness BarkerLiberal Democrat
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- My Lords, I thank the Minister for that reply. I take his point about the GSCC and it is a helpful suggestion that it be referred to in the explanatory notes. On Amendment No. 33 and the periodic reviews, I welcome his statement about assessment. I will read his words carefully in Hansard. I wish to satisfy myself absolutely that what I wish to see—the assessment of all social care needs, not just those social care needs which meet eligibility criteria, which is actually what he said—is there. With that caveat, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 38 [Death of registered person]:
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- Lord Darzi of DenhamNon-affiliated
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- moved Amendment No. 25:
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- Lord Darzi of DenhamNon-affiliated
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- moved Amendments Nos. 26 and 27:
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- Baroness SternCrossbench
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- moved Amendment No. 28:
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- Earl HoweConservative
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- My Lords, in Amendments Nos. 34A and 34B, which are grouped here, I turn to an issue that I consider to be of fundamental significance for this part of the Bill and our understanding of the identity and functions of the Care Quality Commission. The issue turns on a very basic question: will the CQC actively promote the highest standards of care and treatment in health, social care and mental health, or will it merely seek to maintain and police a set of minimum standards that are geared to patient safety? The two aims are completely different. It is no exaggeration to say that the very character of the organisation will rest on what the answer to the question is. At the moment, we see the Healthcare Commission making it its business to assess the performance of NHS providers against not only a scale of quality standards but also each other in the way that trusts are ranked. The commission sees itself not just as a promoter of patient safety but also as actively assisting the drive to raise standards of care across the piece. In the same way, CSCI operates a quality rating system, which aims to achieve something very similar with social care providers. What prospect is there of the CQC continuing this kind of corporate mission? I was very struck when I read a few days ago chapter 6 of a document published by the Department of Health called Developing the NHS Performance Regime. The chapter covers independent regulation and says in paragraph 150: “The main responsibilities of the CQC are to … register health and social care providers … carry out a periodic assessment of all NHS providers and commissioners … carry out special reviews of services, along patient pathways or into other areas of concern or risk in terms of patient safety … carry out investigations into specific organisations where CQC believes that user safety is seriously at risk; and gatekeeping and proportionate regulation … However, the principal role of the CQC will be to register health and adult social care providers”. I do not belittle the importance of patient safety; of course not. However, the message from that to me is quite concerning; it is of a piece with the consultation document issued by the department on the framework for the registration of health and social care providers. That says, in paragraph 2.13: “The set of registration requirements in this consultation is intended to protect people using services from the risk of harm involved in the provision of health and social care. They do not seek to enforce best practice that other parts of the system will promote”. It continues: “In moving to a regulatory system which is based on essential safety and quality requirements rather than desirable best practice standards, we propose to put a greater regulatory focus on essential outcomes and on addressing the risks”. Taken together, these statements tell a very clear and, for me, rather depressing story. They tell us that the department is putting the CQC into a tight box marked “patient safety”. The principal role of the CQC, in the Government's eyes, will be to register health and social care providers and to police and enforce a set of minimum quality standards. The obvious question that springs from this realisation is: what significance should we now attach to the commission’s objectives as set out in Amendment No. 9? What weight should we place on the matters listed in Amendment No. 12 to which the commission must have regard? Those questions may seem surprising after our debates earlier, but if the commission’s main focus is registration and safety, what added value is likely to emanate from active user involvement in the commission’s work—the thing that we were all so keen on, and so glad to see incorporated into the amendment? Of course, these things are of key relevance if we are dealing with a regulator concerned with identifying and promoting best practice in health and social care. But contrary to the hopes of many of us, it does not appear that the CQC is going to be that kind of animal. In a real sense, the powers conferred upon the Healthcare Commission and on CSCI are going to be diluted by the Bill now before us. What is the Minister’s answer to this? If the CQC will not be directly promoting improvement and best practice in health and social care, who will be?
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- Lord WarnerCrossbench
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- My Lords, I had not intended to speak at such a late hour, but I feel that I must raise an area of concern which has come to me perhaps a little belatedly. It is prompted by the amendment of the noble Earl, Lord Howe, and the detail of the amendment moved by the noble Baroness, Lady Stern. We are getting ourselves into an increasingly difficult tangle over a set of words which keep being bandied about. I will illustrate this with five or six of these words. I am grateful for the movement that the Government have made in terms of bringing commissioning to bear more in the Bill. We will be discussing that later and I need not go into it now. However, when the Government were in a less accommodating mood in Committee, one of the arguments that was used for not doing this was that they were going to use guidelines in relation to commissioning. We now have in play: targets for performance review, registration requirements, guidelines, indicators of quality, and standards. Even anoraks such as ourselves may, broadly speaking, understand what all those words mean. However, I have to confess that even I am beginning to struggle intellectually with how the words all relate to one another. There is an issue for the Minister—to take them back to some of his colleagues to see whether we cannot get a little more clarity about the precise relationship between these words and what they all mean. We will certainly need a glossary—as will the noble Baroness, Lady Young, as chairman of the commission, together with her colleagues—to understand the relationship between these various pieces of terminology. Before we get to Third Reading, we need a little more clarity about how these words all relate to each other, to what extent they fall under the registration requirements, to what extent they are part of a performance management regime, and to what extent they are part of the information given to the public about how particular bodies are performing. I am sorry to dump this matter on the Minister this late at night, but before the Bill leaves the House I think that we should all be clear how the words relate to each other.
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- Baroness ThorntonLabour
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- My Lords, I thank my noble friend for those largely helpful comments. The amendments relate specifically to Clause 41, which concerns the publication of statements of standards relating to healthcare provided and commissioned by primary care trusts. PCTs will need to have reference to standards issued under this clause in discharging their duty of improvement under Clause 134. As we made clear in earlier discussions, it is important to remember that the standards which will be drawn up under Clause 41, unlike the registration requirements on which we have been consulting, are not intended to be requirements that providers of regulated activities must meet in order to be registered with the Care Quality Commission. The registration requirements that we have been consulting on will apply to all registered health or adult social care providers, including providers of non-NHS care. Breaches of those registration requirements will result in sanctions from the Care Quality Commission. Through the Bill, we are seeking to establish a unified framework for the regulation of health and adult social care services. The current consultation proposes registration requirements which the new commission will be able to enforce against any registered provider of care. They have been developed in line with the spirit of the relevant provisions of the European Convention on Human Rights and cover topics including safeguarding people when they are vulnerable; ensuring that people get care and treatment in safe, suitable places which support their independence, privacy and personal dignity; involving people in making informed decisions about their care and treatment; getting people’s ongoing agreement to care and treatment; responding to people’s comments and complaints; and supporting people in being independent. Standards under Clause 41, on the other hand, will not be subject to the Care Quality Commission’s enforcement powers if they are not met. Instead, they will be designed as improvement tools to help to deliver high-quality, publicly funded healthcare. As discussed in Grand Committee, we do not believe that the Secretary of State should be required to issue standards, as envisaged under Amendment No. 28. Standards should be issued only where it is clear from the evidence that they will assist in enabling quality to be improved, and sometimes the evidence does not allow for that. In my view—and I very much support the ambition of clear standards for all areas of healthcare—it is sufficient to give the Secretary of State an enabling power. We also stated in Grand Committee that we do not believe it is necessary to make similar provisions to apply to publicly funded social care, as envisaged by Amendment No. 29. Such related standards are for the Minister for Communities and Local Government to issue under the Local Government Act 1999. If the standards under Clause 41 are to deliver real improvements in care, they must be flexible enough to cope with changes—and indeed with improvements—in services over time and be subject to full public consultation. Consequently, to set them in legislation now, as Amendment No. 31 seeks to do, would begin to remove that flexibility and pre-empt any such consultation and engagement. Nor do I believe that the commission should be required to take certain standards into account in its periodic reviews of English NHS providers under Clause 42, as I understand is the noble Earl’s intention through Amendments Nos. 34A and 34B. I have already made it clear that we intend to delegate to the commission the function of setting indicators for use in periodic reviews of NHS providers. It may well decide to draw on the standards under Clause 41 in determining the indicators and methodology to adopt in those assessments, but that will be for the commission to decide. We can expect to see a great deal about quality and its enforcement under the next-stage review. Of course, under Clause 134, PCTs will already be required to take the standards under Clause 41 into account when exercising their duty to ensure that NHS healthcare continues to improve. The commission will undertake periodic reviews of PCTs to provide an independent assessment of how effective the PCT has been in assessing its local needs and improving outcomes for its local populations. Even if the commission decides that standards need not play a direct role in periodic reviews of NHS providers, it will nevertheless have contributed to the performance of PCTs. I hope that I have been able to set out clearly that it is through the commission’s registration requirement under Clause 16, rather than through the standards in Clause 41, that the important intention behind the amendments will be best met. I hope that with that clarification the noble Baroness will feel able to withdraw the amendment.
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- Speaker
- Baroness SternCrossbench
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- My Lords, I thank the Minister for that very full reply. It will probably benefit from being read at a different time of day, which I shall certainly do, but, in the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 29 not moved.]
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- Speaker
- Baroness ThorntonLabour
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- My Lords, I beg to move that consideration on Report be now adjourned. Moved accordingly, and, on Question, Motion agreed to. House adjourned at 10.11 pm.
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