Consideration of Lords amendments, Programme motion in the Commons
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- I beg to move, That this House agrees with the Lords in the said amendment.
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Mr. SpeakerCrossbench- Quote
- Does the Minister want to continue? He should be making his speech.
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Mr. BradshawLabour- Quote
- I was expecting, Mr. Speaker, that after what I said you would say that it will be convenient to consider the other amendments, and I would then continue. However, I am happy to make my points on the first group of amendments now, if that would be in order.
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- Mr. SpeakerCrossbench
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- With this it will be convenient to consider Lords amendments Nos. 2 to 5, 24, 25 and 66.
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- Mr. BradshawLabour
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- Thank you, Mr. Speaker. In my view, the scrutiny of the Bill in both Houses has been enormously constructive, helped by the fact that there was broad cross-party support for the principle of integration and a genuine commitment to getting the framework right. Increasing integration of, and collaboration between, health and social care are among the key drivers behind the regulation framework provided for in the Bill, and constitute a recurrent theme running through Government policy. We introduced this group of amendments to address some of the key concerns that were debated at length here and in the other place. They were put forward in discussion with the current commissions as well as with the National Consumer Council, the Picker Institute, and Which?, all of which have welcomed them. Amendment No. 2 introduces a new main objective for the commission.
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Mr. Simon Burns (West Chelmsford) (Con)Conservative- Quote
- On a point of order, Mr. Speaker. I seek your guidance. Given that the Minister is now making his second speech on this amendment, does he need the leave of the House to do so?
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- Mr. SpeakerCrossbench
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- The Minister needs to reply at the end of the debate.
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- Mr. BradshawLabour
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- As I was saying, amendment No. 2 introduces a new main objective for the commission. We have been clear throughout that the commission’s main priority should be the safety and quality of services, and I said early on that I thought that its key functions and responsibilities were already set out in what was clause 2. However, we recognise that many people thought that this was not expressed clearly enough. The amendment introduces a clear, succinct statement of purpose, which resists the temptation to stray into other territory and create for the commission additional broad functions that it would have been unclear how it was to deliver, or to include a long list of objectives that could duplicate the functions of other statutory bodies. Instead, it emphasises that the welfare of patients and people who use social services should be at the heart of everything that the commission does. Amendment No. 3 amends the matters to which the commission must have regard and sets those out in a separate clause. We were initially cautious about creating too many general requirements in these areas that risked diluting the commission's priorities. However, we have been persuaded on two particular fronts to make changes that, through their careful construction, address key concerns about the regulator’s focus on people who use services, but still preserve the right balance. Those are the reference to Local Involvement Networks—or LINks—which relates to amendment No. 72 in the next group, and the expansion of the responsibility to promote and protect people’s rights. Another key issue in both Houses has been the desire to secure patient and user engagement in the commission’s work. We set out from the outset to create a body with a strong user focus, just as the existing bodies have. I have put on record my expectation that the commission will not only work closely with LINks but will find ways to engage with people who use services on a broader basis. Through Lords amendments Nos. 4, 24 and 25, we have responded to requests for this expectation to be set out explicitly in the Bill. Amendments Nos. 24 and 25 make it explicit that the commission must demonstrate to Parliament, as part of its annual reporting, how it is delivering against its statement on engagement. Amendment No. 66 also responds to one of the key themes of the debates—the importance of ensuring that social care and the commission’s responsibilities under the Mental Health Act 1983 are not neglected. We have given assurances in both Houses that that would not be the case, but various amendments were proposed to try to guarantee it by legislative means. In amendment No. 66 we have arrived at a solution that provides the reassurance that some people have been looking for without tying the commission’s hands. It will include a broad requirement for the board to include members with expertise relating to all three areas covered by the existing bodies: social care, monitoring the use of powers under the 1983 Act, and health care. We believe that the amendments improve on what was already in the Bill to make much clearer what is expected of the commission, without telling it how it should approach its task, and I commend them to the House.
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Mr. Stephen O'Brien (Eddisbury) (Con)Conservative- Quote
- I welcome this group of amendments, which delivers some of the changes that we were looking for, notably the inclusion of LINks—Local Involvement Networks—carers and service users, and proper representation for those with experience of health care, social care and functions under the Mental Health Act 1983. Unfortunately, it still fails to give the full independence needed for an effectively functioning regulator. Amendment No. 1, which simply creates space for amendments Nos. 2 and 3, is uncontroversial. Amendment No. 2 inserts a new clause on the commission’s objectives. I welcome that new clause, brought forward by the Government, as it responds to Conservative amendments from the other place and this House. I pay tribute to those on the Conservative Front Bench in the other place, particularly my noble Friend Earl Howe, on winning so many concessions from the Government. Indeed, a large number of the substantive Government amendments before us today come as a direct result of amendments tabled by Conservative Front Benchers in Grand Committee. Members of the Committee in this House will well remember that amendment No. 2 was originally tabled, in similar terms, by me, supported by my right hon. and hon. Friends and others from other Opposition parties—and the Minister is now introducing it himself. In Committee in this House, the Minister said: “we believe that the essence and desires behind the new clause are already in the Bill” and called attempts to lay out the objectives “flawed and unnecessary”––[Official Report, Health and Social Care Public Bill Committee, 15 January 2008; c. 186.] I hope that the Minister will take the opportunity to explain to the House why his colleagues in the other place disagreed, and whether he still considers such an amendment “flawed and unnecessary”. Surely it would have saved much parliamentary time to have accepted the amendment in Committee in this place.
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Mr. John Redwood (Wokingham) (Con)Conservative- Quote
- My hon. Friend is making an important point. Does he have any explanation for the flip-flop, or U-turn? Is this a rare occasion when a Minister has listened and realised that he was wrong?
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- Mr. O'BrienConservative
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- The best I can say to my right hon. Friend is that I would like to think so. I recall saying at the outset of the Committee that as we were aiming for as much consensus as possible on health and social care—not areas that are normally given to the playing of the party political game—I hoped that the Minister would avoid being tribal or having pride of authorship in the Bill. It was clear to us during the course of the Committee that accepting any Opposition amendments would cause the Minister physically to wince, so he did not accept one. Now we are back, mainly to implement the Conservative amendments, conceded in another place, that we presented in Committee. In answer to my right hon. Friend, there is a genuine question about what the price of saving face, or the price of not thinking quickly enough on one’s feet, is. As so much parliamentary time could have been saved had the amendments been accepted when they were first proposed, it is fair to ask precisely what has changed the Minister’s mind in the interim. There are indeed some questions about the new clause. A number of hon. Members, and their lordships, have expressed concerns about the picture of the Care Quality Commission painted by the report “Developing the NHS Performance Regime”, recently published under the aegis of the NHS chief executive. Paragraph 150 states: “The main responsibilities of the CQC are to: register health and social care providers; carry out a periodic assessment of all NHS…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.” The report continues: “However, the principal role of the CQC will be to register health and adult social care providers.” Paragraph 153 states: “The registration system will be a key function of the CQC. In operating this, the regulator will register, monitor compliance and take action in relation to healthcare providers’ adherence to the registration scheme.” Furthermore, paragraph 100 states that “the CQC’s approach to assessing the performance of NHS organisations includes their assessment of quality and of financial performance. Our expectation is that the CQC will continue to work closely with the Audit Commission on the latter”. However, what is the expectation for the former—assessment of quality? The document not only flies in the face of the amendment, which does not mention registration, but drives a massive wedge between the CQC’s social care and health care responsibilities. The NHS chief executive wants the health care side to be divested of performance monitoring, but presumably such monitoring will be built into the social care side. The chief executive reveals his hand in paragraph 100, which says: “we cannot have the same organisation being identified as ‘weak’ by the CQC and not identified as ‘underperforming’ by SHAs as performance managers”. Could that be construed as the chief executive wanting to keep the dirty laundry in-house instead of supporting the quasi-independent CQC? It remains clear that our model of separate independent regulation of quality and finances, which, sadly, was rejected in Committee, is much more transparent, effective and likely to support world-class patient care. I hope that the Minister will take the opportunity to explain the contradictory messages that the Bill and the Department are conveying. I welcome most of Lords amendment No. 3. Again, I pay tribute to the Conservative Front-Bench team in another place, whose amendments in Grand Committee inspired it. I am especially glad that Local Involvement Networks have finally made it on to the face of the Bill. I know that hon. Members in other parties will also welcome that. I welcome Lords amendment No. 72, which is in the next group, and adds the commission to the list of those to whom Local Involvement Networks must send copies of their annual reports. Again—I do not want to cause too much controversy—the Minister was strident in his opposition to the inclusion of LINks. He told me in Committee: “I do not think that the amendment requiring a statutory relationship with LINks is the right way to go about the matter… I am not sure that singling out LINks for special treatment in the form of a statutory relationship…is the right way of going about it.”—[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 152.] On Report, he said: “we do not believe that it is appropriate to dictate to those statutory and independent bodies the way in which they should involve LINks in inspections or consultations.”—[Official Report, 18 February 2008; Vol. 472. c. 88.] What has changed? Of course, a late concession is better than none, but the Minister should have been prepared to change his mind when we discussed those matters in Committee, rather than waiting until such a late stage and taking up the House’s time. I welcome proposed new subsection (1)(d) in Lords amendment No. 3, which recognises that the commission has a responsibility “to protect and promote the rights of people who use health…care services” and I remind the House that we debated that matter in Committee, and again the Minister was unwavering about it. The Government previously extended the provision only to children and vulnerable adults. Conservative Members believed that the CQC should promote the rights of all people, including those groups, but not excluding others. I am glad that the Government saw reason in another place. Again, I regret that the Minister did not see it sooner. I regret that the Government have retained clause 2(4) in proposed new subsection (2) of Lords amendment No. 3. As the provision is drafted, the CQC must still “have regard to such aspects of Government policy as the Secretary of State may direct.” That makes nonsense of the idea of independence. I accept that the Minister has made several concessions to the independence of the bodies that the Bill creates or modifies—but those leave the provision that I have just cited looking rather out of place. Through it, the Secretary of State retains significant control over the CQC. In addition, clause 42 provides that the Secretary of State “may direct the Commission to devise indicators” of quality. That is a retention of politically motivated targets, and the Bill is peppered with similar phrases. Dame Denise Platt stated in her powerful evidence: “We think that the independence should be clear. The body should have the opportunity to think, initiate and comment and to be accountable to parliament for what it does”—[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 14, Q18.] I am not sure that the Bill provides for that sort of independence. It contains many phrases along the lines of “with the agreement of the Secretary of State”. Speaking about clause 41, the Healthcare Commission stated in its submission: “there is a risk of conflict with the independence that the Bill envisages for the regulator”. It added: “We do not think that the Government should determine operational priorities for an independent regulator.” The independence of the regulator is key to freeing our NHS from political meddling. It is sad that the Government have not taken the opportunity to work towards that. The regulator will have the full confidence of the patients and front-line staff only when quality is its sole driver, not the political desires of the Government of the time. I am glad that we have won that and other concessions, but until the Secretary of State’s power as set out is removed from the Bill, it does not go far enough. As for LINks, I welcome Lords amendment No. 4 and its focus on service users, which has yet again been underpinned by amendments from the Conservative Front Bench in another place and a new clause proposed by me in Committee. I welcome the fact that, through Lords amendments Nos. 24 and 25, the CQC will be required to report on user involvement. The Minister rejected our proposals in Committee on the grounds that the advisory committee that the commission must establish under schedule 1 could allow such involvement. I am glad that he has changed his mind, but I would be grateful to know why.
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- Mr. RedwoodConservative
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- Is all this not just more evidence that the Government cannot get away from centralised, target-setting, interfering bossiness, messing up the health service and not allowing innovation and professional choice?
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- Mr. O'BrienConservative
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- My right hon. Friend reaches for the overarching principle that lies behind the mindset that informs Bills of this type. The Government have an opportunity to pick up on the enormous amelioration that we could have, in resettling the basis on which the NHS can deliver, organically and from patient-driven demand, improved health care outcomes, rather than having an input-driven, target-setting approach. That is set out in our autonomy and accountability Bill, which has been drafted by the Opposition and is ready to go. I am grateful to my right hon. Friend for giving me the opportunity to ensure that, if that opportunity had slipped the Government’s mind, it is now before them again. We also welcome the explicit mention of carers at the end of Lords amendment No. 4. However, I note the circularity that persists in the Bill, in Lords amendment No. 5, which states that in Chapter 1, “‘health and social care services’ has the meaning given by” clause 3, entitled “The Commission’s objectives”. Clause 3 defines “health and social care services” as “the services to which the Commission’s functions relate.” However, clause 2(1) states: “The Commission has the functions conferred on it by or under any enactment.” The Government have failed to investigate not only public health and health inspections, but adequate protection in the areas of cosmetic surgery, needs assessments for care, and health-related assessments for work, as regards the personal capacity assessment and health assessments in custody. Lords amendment No. 66, the final amendment in the group, ensures that the commission includes representatives of health care and social care, and action under the Mental Health Act 1983. I am glad that the amendment has been tabled, because the Minister strongly resisted such a proposal in Committee. We might have progressed through the opening clauses of the Bill much more quickly had the Government made that concession then. I note, for example, that in oral evidence the Mental Health Act Commission made clear the need for “adequate organisational and personal accountability at board level for the monitoring of and reporting on the needs and rights of detained patients.”––[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 9, Q9.] The Minister rejected our overtures, saying that our proposals “specify a great deal more prescriptive detail than we feel happy with…We believe it should be for the commission itself to establish the organisational structures…That should extend to the executive team it chooses to have…Specifying that the commission must have executive officers and committees that lead on different client groups could undermine the commission’s ability to adopt that integrated approach”.––[Official Report, Health and Social Care Public Bill Committee, 10 January 2008; c. 134-35.] I would be interested to know what has changed the Minister’s mind, in terms of the content of Lords amendment No. 66, between then and now.
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Sandra Gidley (Romsey) (LD)Liberal Democrat- Quote
- It would be churlish not to welcome the amendments, particularly those that reinforce the importance of social care. Given that most parties have tried to work together on some of these issues, it is a little churlish of the hon. Member for Eddisbury (Mr. O'Brien) to claim that every amendment in the other place resulted from the efforts of the Conservatives alone. I have read the Lords Hansard, and that is not quite my perspective—but I will move on.
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- Mr. BradshawLabour
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- I share the slight disappointment of the hon. Member for Romsey (Sandra Gidley) at the ungracious tone adopted by the hon. Member for Eddisbury (Mr. O'Brien). We made it clear throughout Committee that we were in listening mode, and open to constructive suggestions as to how to improve the Bill further. The hon. Gentleman referred to the contribution of his noble Friend Earl Howe when the Bill passed through the other place—and Earl Howe described the Government amendments as diamonds and gems. If the hon. Member for Eddisbury wants me to outline the exact differences between these amendments and those that he proposed in Committee, I shall be happy to do so, but let me say that his amendments were closer in form to stones and pebbles than to diamonds and gems. That is why we tabled our own amendments; if we had not, he would have criticised us for not listening and not improving the Bill. Thanks to the contributions of noble Lords from the Conservative, Liberal Democrat and Labour parties, as well as Cross Benchers in the other place, the Bill has been considerably improved, and I had hoped that the hon. Gentleman would have found it in himself to welcome that. The hon. Member for Romsey asked about rights. The answer to her question is that the rights include human rights, but are not exclusively about them. Lords amendment agreed to. Lords amendments Nos. 2 to 5 agreed to. Clause 13 Cancellation of registration Lords amendment: No. 6.
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- Mr. BradshawLabour
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- I beg to move, That this House agrees with the Lords in the said amendment.
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- Mr. SpeakerCrossbench
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- With this it will be convenient to discuss Lords amendments Nos. 7 to 23, 26 to 31, 53, 54, 67 to 72 and 84.
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- Mr. BradshawLabour
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- This group consists of concessions, where we have listened and responded carefully to debate, and some minor technical amendments. Amendments Nos. 15, 16, 18 to 21 and 28 to 31 make it explicit that, as has always been our stated intention, the new regulator must conduct periodic reviews of care commissioned by primary care trusts or local authorities. Amendments Nos. 18 and 19 mean that, following a special review or investigation, the regulator must consider whether the report raises issues on which it should advise the Secretary of State. Tabled in response to discussions on the independence of the new commission, amendments Nos. 17, 23 and 26 would moderate certain powers that the Secretary of State will have. We have also put on the record the fact that the commission can decide for itself when it begins its special reviews. Finally, amendments Nos. 8 and 72 make even more explicit the need for providers to learn from complaints, and require LINks to send their annual reports to the commission. Amendments Nos. 53 and 54 result from recommendations of the Delegated Powers and Regulatory Reform Committee, while the remaining amendments are simply technical and are intended to improve the Bill. I hope that the House will support them.
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- Mr. Stephen O'BrienConservative
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- I shall use precisely the same words as I used in my opening remarks on the previous group of amendments. I welcome—the Minister and the hon. Member for Romsey (Sandra Gidley) both seemed to miss my saying that—the majority of the amendments, which again pick up on points made by Conservatives in both Houses. It does not matter how much the Minister and the hon. Lady wish to deny that they were Conservative initiatives, they were indeed proposed by us in both Houses. I am pleased to say that some of them were supported by other Opposition parties. I am glad that the complaints function is addressed in regulations, although I fear that there are unresolved issues for patients, particularly for self-funders in social care. I am glad of greater scrutiny for prison and defence health care, although I retain some concerns about the powers of the Executive over that. I am glad of the amendments that limit the powers of the Secretary of State, but I am disappointed that no substantive amendments were achieved on malnutrition, given the powerful debates on that both in Committee and on Report. Amendments Nos. 6, 7, 9 and 11 are not controversial. Amendment No. 8, however, merits a bit of discussion. In addition to the handling of complaints and disputes, it enables regulations to make provision for the application of lessons learned from them. I am pleased to see the amendment on the amendment paper. It recognises that an effective complaints process includes a performance management output, so that mistakes are not repeated and loopholes are closed. I again pay tribute to my noble Friend Earl Howe for championing the amendment in another place, and I am pleased that the Government made the concession. However, it comes nowhere close to addressing the serious concerns that remain about the complaints arrangements both within registered providers and on a national scale through, inter alia, the parliamentary and health service ombudsman. I draw the House’s attention to cross-party concern on that. The hon. Member for Luton, North (Kelvin Hopkins) made a number of powerful speeches on the subject in Committee, saying: “A number of my hon. Friends, not necessarily members of the Committee, are concerned about changes in patient representation and procedures for patients making complaints in recent years.”—[Official Report, Health and Social Care Public Bill Committee, 17 January 2008; c. 346.] He was supported by the hon. Member for Tamworth (Mr. Jenkins) in holding the Government to account for their failure in that respect. The amendment fails to address three issues—resourcing the ombudsman, monitoring trends, and supporting complaints by social care users. If you remember, Mr. Speaker, the Committee had three evidence-taking sessions before it considered the Bill in detail. In the ombudsman’s written evidence, she said: “I have already explored with the Treasury the additional funding I am likely to require”. However, no figure has been put on that. This is a serious issue, as the saving made by the Care Quality Commission will no doubt be reported as a gross saving by the Department, but could be a net loss to the taxpayer. I must remind the Minister that at column 348 of our Committee proceedings he promised to write to me with “the exact figure”—a promise that his letter MS (H) 103035 failed to deliver on, dealing with the issue only in the broadest terms. It is disappointing that the Bill has reached its final stages, with this amendment, without that information coming before the House. I complained about that on Third Reading, but have had no response from the Minister. Looking at the complaints that the Healthcare Commission has received, the ombudsman faces a potential elevenfold increase in her work load. How much will that cost? We need to know whether the cost is admitted by the Treasury, or is it in denial of the costs of its very own legislation? Has the ombudsman been given the assurances and budgets requested and required? If not, why not? If the Minister does not know the answer, then after all this time, why not? If he does, but will not give it, surely we are right to place the question on the record.
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Angela Browning (Tiverton and Honiton) (Con)Conservative- Quote
- Associated with my hon. Friend’s comments is the fact that I am still unclear—I wonder whether he or, eventually, the Minister can clarify this—how some of the lessons learned and how the complaints procedure generally, whether it is through the Care Quality Commission or the ombudsman, will translate into changes of policy in either health or social care?
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- Mr. O'BrienConservative
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- My hon. Friend touches on an important point—how we benefit from the processes. That has not been particularly well thought through, not least because of the absence of, for instance, the great bed-watch campaigns that the old community health councils could collectively inspire. Indeed, the second of the three areas that I was discussing in relation to amendment No. 8 and our concerns, which remain unaddressed but have been part of the debate that has led us to this point, was monitoring the trends. For a regulator, local or national trends revealed through complaints can be a useful bellwether—precisely the point made by my hon. Friend—in directing its inspection activity. The amendment, however, fails to establish a mechanism for the monitoring of complaints trends at national level—as did the old bed-watch campaign, until it was summarily scrapped.
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- Sandra GidleyLiberal Democrat
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- I do not propose to go through the amendments at length, as we support most of them because they improve the Bill and make changes that we sought to secure in Committee. I particularly welcome the amendments that strengthen the role of the commission with regard to commissioning. My interpretation of Lords amendments Nos. 15 and 16 is that they would allow for the commissioning to be reviewed. I was very taken by the comments of Lord Warner on Report in the other place. He has considerable experience of health matters, and he said: “In the past, there has been a considerable reluctance on the part of the NHS, and often of the Department of Health and Ministers, to act when commissioners are failing. They are much more willing to act when providers are failing. The Bill is strongly focused on providers, with a registration system and a set of sanctions accordingly. I do not want to put the noble Baroness, Lady Young, in a difficult position in her future relationships with Ministers and SHAs, but there is an issue about whether, in the Bill, the commission should be able to require some action from the performance managers”.—[Official Report, House of Lords, 24 June 2008; Vol. 702, c. 1349.] Try as I might, I could see that there was a provision to review, but it was hard to see what sanctions were available if the commission felt there were problems in any area of commissioning. As it is a variable beast that works well in some areas of the country and less well in others, I felt Lord Warner raised a valid point that Lord Darzi did not fully address in his summing-up comments. It would, therefore, be helpful if the Minister were to add to them today, and put some flesh on the bones. I particularly welcome the many amendments that take out the reference to the Secretary of State—in respect of modifying reports, for example. Although there are still some provisions for the Secretary of State, it is pleasing that his role seems to have been almost totally emasculated by the other place. That will be welcomed by those who query whether the new body will be truly independent. It is still not perfect, but it is much better than it was, and it is clearer that there is less provision for Government interference of any kind.
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- Mr. BradshawLabour
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- On the issue of costs and the ombudsman, the hon. Member for Eddisbury (Mr. O'Brien) will know that the health service ombudsman for England is independent of Government, and she has made it clear that she has plans in place to ensure that her office is prepared to handle the expected increase from 1 April 2009. She has been exploring the funding that she is likely to require directly with the Treasury, rather than with my Department. She also made it clear in the memorandum that she tabled for the Committee, which has been shared with hon. Members, that she would be happy to provide them directly with any further information.
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- Mr. Stephen O'BrienConservative
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- The Minister rightly confirmed that the first legislative opportunity would be taken to introduce access to these arrangements for self-funders—we all hear and accept that, as he acknowledges. Given that such provision was not identified as part of the draft legislative programme recently announced by the Government, has the Minister had any indication as to whether we might expect it in the forthcoming legislative programme—after all, it was only a draft that was announced—or soon after? Alternatively, does he see it as a more distant horizon?
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- Mr. BradshawLabour
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- No, we want to do this as soon as we possibly can. I am sure that the hon. Gentleman will accept that no Minister can stand at the Dispatch Box in July and say exactly what will be in the next legislative Session. As I have said, it is certainly our intention to legislate at the earliest opportunity. As for the Care Quality Commission’s commissioning role, I do not think that we could have made it clearer, both during the passage of the Bill and in changing its wording in the other place, that the CQC’s role would include reviews of the process of commissioning. The hon. Member for Romsey (Sandra Gidley) made an important point about the overall importance of improving commissioning and the primary care trusts’ capacity to commission. It should not be forgotten that alongside the role of the CQC in improving the quality of commissioning through regulation, we also recently announced in the primary and community care strategy—and before that, in our proposed performance and failure regime—how PCTs’ commissioning could be better performance-managed. The Bill contains a power for the CQC to call on the Secretary of State to intervene where it believes that a PCT’s commissioning is not up to standard.
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- Mr. BurnsConservative
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- The Minister gave my hon. Friend the Member for Eddisbury (Mr. O’Brien) a perfectly valid and stock answer under the old regime. However, given that the Government have changed the regime in favour of transparency and have published a draft legislative programme, why can the Minister not define what the earliest possible moment is? Why can he not assure the House that it will be in the next Session of Parliament, as opposed to giving a vaguer answer—we would have expected that before the change to greater transparency?
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- Mr. BradshawLabour
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- Although we have, as the hon. Gentleman graciously acknowledged, improved the level of transparency through the process of publishing a draft legislative programme for consultation, he will know that that is not an exhaustive list of Bills and that the fact that a Bill has been published in the draft legislative programme does not necessarily guarantee that it will have a place in the final programme. As I said, I am not in a position—he has been here long enough to know that no Minister would be in this position—to say in July what will be in the next Queen’s Speech. Lords amendment agreed to. Lords amendments Nos. 7 to 31 agreed to. Clause 111 Powers of Secretary of State and devolved administrations Lords amendment: No. 32.
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- Mr. BradshawLabour
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- I beg to move, That this House agrees with the Lords in the said amendment.
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- Mr. BradshawLabour
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- This group of amendments reflect areas in part 2 of the Bill where arguments put forward in the other place merited serious consideration. We have also tabled amendments to achieve a new policy, which I will turn to first. Amendments Nos. 36, 60, 75 to 78 and 85 to 89 were introduced at Grand Committee stage in the other place to meet a Government commitment to abolish the Hearing Aid Council by April 2009 and to transfer the regulation of private hearing aid dispensers to the Health Professions Council. This group of amendments is intended to achieve that by paving the way for a future Order in Council under the section 60 provisions of the Health Act 1999, in addition to ensuring that public hearing aid dispensers can be regulated in the same way in the future. I accept that it is not ideal that this House did not have the opportunity to consider this provision in its deliberations in Committee. I hope, however, that hon. Members will forgive the fact that this is a late addition to the Bill in recognition of the very real benefits that this measure will bring for patients and consumers. First, this will provide improved protection for the hearing impaired and simplify the regulatory framework for hearing aid dispensers. Although the council has done a fantastic job over the past 40 years, it is operating under legislation that is increasingly outdated with gaps in consumer protection. The Health Professions Council, established in 2001, has modern and comprehensive legislation that will provide for a much more complete service to patients and consumers. As a multi-professional statutory regulator, it can provide greater resources while charging considerably smaller fees to the profession. Secondly, and importantly, the Hearing Aid Council itself, the Health Professions Council, the Royal National Institute for Deaf People and the British Society of Hearing Aid Audiologists are all fully supportive of this move, and are working together to ensure that the transition will be as smooth as possible. I turn now to the amendments that we have brought forward as a result of debates in the other place. Amendment No. 32 addresses concerns that the Secretary of State’s power of direction over the Council for Healthcare Regulatory Excellence in the Bill, as originally drafted, could be perceived as undermining the independence of the CHRE. The reason for including it in the Bill was as a mechanism to help the CHRE to prioritise its workload in busy periods, but having discussed it with the CHRE we are now confident that it can be dispensed with. On clause 116, I was persuaded by arguments put forward in the other place that the Bill could be strengthened to ensure that the careers of health care workers are not damaged by malicious or untrue allegations. Amendment No. 35 therefore requires the appropriate Minister to have regard “to the importance of avoiding unfair prejudice to health care workers against whom unsubstantiated allegations are made” when making the regulations setting out in detail how information can and should be shared.
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Mr. Charles Walker (Broxbourne) (Con)Conservative- Quote
- I have great sympathy with the Minister on that point because unsubstantiated allegations can ruin people’s lives. What would be the process for ascertaining whether they were indeed unsubstantiated?
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- Mr. BradshawLabour
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- That will depend on the evidence. I turn now to the issue of the Office of the Health Professions Adjudicator. Amendments Nos. 52 and 56 respond to concerns that the piloting of legally qualified chairs might be unfair to individual practitioners who appear in front of OHPA’s fitness to practise panels. Although I am clear that that can be done fairly, we have brought forward amendments Nos. 52 and 56 to ensure that if OHPA makes rules that include piloting provisions, these rules will be subject to the affirmative resolution procedure. That means that Parliament will have the opportunity to debate OHPA’s detailed proposals for the pilot, and will be able to reject them if it is felt that they are unfair. Amendments Nos. 33, 34, 55, 57 and 59 implement recommendations of the Delegated Powers and Regulatory Reform Committee. They provide that when the first regulations are made under clauses 114 and 115, conferring responsibilities and additional responsibilities on responsible officers for the first time, the regulations will be subject to the affirmative resolution procedure. Finally, amendments Nos. 62, 73, 74, 82 and 83 are technical and minor.
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- Mr. Stephen O'BrienConservative
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- Amendment No. 32, which leads this group, would remove the Secretary of State’s power of direction in relation to the CHRE. It is exactly the same as my amendment No. 207, which was tabled at the Commons Committee stage. The Government conceded after the point was raised again by my noble Friend Earl Howe. Of course, we welcome it and thank the Government for listening, even if they did take the whole process of the Bill to do so. Lady Justice Smith told the Committee during its oral evidence sessions: “it is important, particularly in the health sphere, that the adjudicatory body should be seen to be independent of Government because the Government are a huge customer of healthcare; the biggest customer of healthcare. Therefore, it is important that there should be no suspicion that the Government are in a position to pull strings behind the scenes, as to what goes on. Absolute clarity and absolute independence are really important.”––[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42, Q82.] The Minister rejected my amendment in Committee on the grounds that there was “no intention to fetter the body’s freedom” but “to ensure that, where necessary, a Secretary of State can ask the council to prioritise certain areas of its work load over others: for example, in cases in which there is particular public concern”.––[Official Report, Health and Social Care Public Bill Committee, 22 January 2008; c. 421.] That is as clear an admission of the political meddling that the Bill enables as one is likely to get. I am glad that the Government have conceded that point. I would be grateful if the Minister outlined why and how his views have changed since the Committee stage and why it was not possible to concede the points at that time. Exactly the same points were made to advance that argument in this House as were made in the other place, as the Minister mentioned. Amendments Nos. 33, 34, 55, 57, 58 and 59 were tabled in response to the Lords Delegated Powers and Regulatory Reform Committee and to Conservative amendments tabled by my noble Friend Earl Howe. The DPRRC recommended that regulations conferring responsibilities on responsible officers under new section 45B of the Medical Act 1983, as inserted by clauses 114 and 115, should be subject to the affirmative resolution procedure on their first exercise by each of the appropriate authorities. I note that the DPRRC made three specific recommendations and that the Minister accepted them all. The Minister will be aware that we called for regulations under clause 114 to be subject to the affirmative resolution, along with all the other regulations in the Bill. The House will recall that a quarter of the clauses in the Bill are dependent on regulation—a high proportion. In addition, there are a number of Henry VIII clauses that enable the amendment of primary legislation by secondary legislation, although the majority are already covered by the affirmative resolution. I am glad that the significant new step in regulatory policy—the creation of responsible officers—will have proper parliamentary scrutiny at its outset, at the very least. In Committee, we tried to pin down some of the policy on responsible officers. The discussion was framed by the concerns expressed by Lady Justice Smith during her oral evidence. She told us: “I really find it difficult to know how responsible officers are going to work and what role they will play in revalidation. I do not get that from this Bill.” She went on: “I cannot tell from the Bill how it will work, which bothers me. I am worried about responsible officers”.––[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 42-43, Q83.] One suggestion is that PCT medical directors will be the responsible officers. Indeed, the Minister told the Committee that while the Government “do not seek to be prescriptive, we think that a medical director would be perfectly appropriately for this role” and that “it would not require a full-time post.”––[Official Report, Health and Social Care Public Bill Committee, 22 January 2008; c. 431-33.] PCT medical directors are already busy and have many priorities. In her oral evidence, Lady Justice Smith noted that, saying: “I am really unhappy about that for several reasons…I do not like the idea of a medical director, who already has a lot of jobs, having to take on responsibility for revalidation as well as all his other jobs. I think that that is too much.” Part of her desire to have the responsible officer as a separate role arises from her concern that “the revalidation process should be clear and understood, that it should be summative and a proper test, and that it should not just involve shuffling pieces of paper around and rubber-stamping them”.
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- Mr. WalkerConservative
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- Perhaps my hon. Friend can help me. An allegation is an allegation. What in the Bill will protect members of the clinical professions from having allegations made against them? Surely the person making the allegation must be made aware that if the allegation is malicious, they will face legal action.
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- Mr. O'BrienConservative
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- I am most grateful to my hon. Friend, who makes a powerful point. We in this House must be supremely conscious to ensure that justice can be done, and can be seen to be done. We are talking about a quasi-judicial area, and it is of course important not to discourage whistleblowing, which is one of the best sources of information. The Minister of State, Department of Health, the hon. Member for Exeter (Mr. Bradshaw), and I have been asked the question: what does one do to guard against those who might be minded to make a malicious allegation? There are people who might be keen to do so, because of career jealousy or personal angst. What would be the threat against those who knew that they had done something wrong? The answer is not in the Bill. The Bill rightly ensures that information can be provided, and it could be malicious or non-malicious. If it is non-malicious, that is fine, and the allegation will be examined. Of course, as with laying information before the police, there is information that it is important to provide. If it is of the most catastrophic kind, we need to know it as soon as possible, so that the police or, in this case, the professions, can investigate. My hon. Friend’s point is about the middle ground—an issue that is not specified in the Bill. That could be improved.
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- Mr. WalkerConservative
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- rose—
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- Mr. O'BrienConservative
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- Perhaps I could just finish the point. There ought perhaps to be a safeguard. Somebody who makes a complaint needs to know that they can opt for an alert system. They can put the matter to an official body, which can then be on watch, or on alert, without launching a formal investigation. By that means, responsibility is offloaded from the individual. If the complaint is non-malicious, that is likely to give the person confidence that they have at least done the right thing. They will know that the official bodies are in possession of information that gives them the chance to be on watch, or to put in place an appropriate alert system. That happens in other areas, and quite properly so. The problem is that at the moment we do not have that necessary halfway house, which would at least in part provide the safeguard that my hon. Friend seeks in order to deter malicious tittle-tattle and worse. That is not in the Bill, but now that we have had this exchange, I hope that the matter will at the very least be picked up in the training and guidelines for all those involved officially in encouraging whistleblowing more widely, through marketing. We see advertisements encouraging whistleblowing in various parts of our community from time to time, so that we can get genuine information and so forth. That information will then be given, and the subject of the complaint can be officially put on watch; that way, allegations are not simply a way of passing on tittle-tattle. I hope that that addresses my hon. Friend’s valid and important point to some degree, and I am deeply grateful to him for raising it. When the Minister addresses the points raised in discussion on this group of amendments, it would be helpful if he amplified his views on whether there will be official processes—perhaps a formal alert system of the kind that I described—to avoid tittle-tattle and unfair stigmatisation. That would give whistleblowers clarity and peace of mind about the fact that their concerns are being dealt with professionally. It would also give professionals the confidence that they need in the system, and I hope that the Minister listened carefully to our exchange. Amendment No. 52 is coupled with amendment No. 56. They would ensure that the rules concerning the running of a pilot scheme for legally qualified chairs of panels were subject to the affirmative procedure. As I am sure the Minister remembers well, we have already had extensive debate about legally qualified chairs. The amendments were tabled in response to points made by my noble Friend Earl Howe in Grand Committee, and by others, about the fairness of the scheme. The Government amendments on legally qualified chairs that were brought forward on Report in the Commons did not go as far as they might have done, but they were an important concession by the Government, and they recognised the strength of the arguments—not least our own—on legally qualified chairs. The provision of legally qualified chairs arises from recommendation 79 of the Shipman inquiry’s fifth report, by Lady Justice Smith, then Dame Janet Smith. She reinforced her position during an oral evidence session in the Public Bill Committee, on 8 January, at column 37 of Hansard. Her grounds relate to effective chairmanship, the speed of proceedings, a higher standard of reasoned decision, and an ability to deal with the complexities of the civil standard of proof. It will be remembered that the Bill uses the civil, as opposed to the criminal, standard of proof for the processes in question. I am glad that both Houses will have the opportunity to scrutinise the final proposals when they come before us; that will be absolutely vital. Amendment No. 62 prevents schedule 8 from coming into force on the day the Act is passed. Will the Minister clarify why he has had to take that step? I am grateful that the Government have conceded that the commission should be able to conduct special reviews from the outset. The Government spokesman in another place noted: “The commission will decide for itself what reviews are necessary from the outset, taking account of the resources available to it and the need to fulfil all its statutory functions.”—[Official Report, House of Lords, 12 May 2008; Vol. 701, GC253.] Both the Commission for Social Care Inspection and the Healthcare Commission have produced valuable special reports that are able to assess the national picture of a specific issue. There was some concern about the Government’s desire to delay granting that power to the regulators—not least that the delay would have conveniently tied the hands of the regulator until after the next general election. The Minister opposed the move in Committee and we pushed it to a Division. Why did the Government not change their mind at that point rather than now, welcome though it is that we have now reached agreement? Amendments Nos. 73 and 74 make what the explanatory notes call “minor drafting changes” to schedule 7. Amendment No. 73 excises the phrase “member State” and replaces it with “relevant European State”. Often, these things can be absolutely fundamental, given how European legislation tends to work, but as far as I am aware, the relevant sections of the Medical Act 1983 have not been amended to read “relevant European State” instead of “member State”. Will the Minister explain the substance behind the amendment and why it is being made? Surely “member States” are easily definable and “relevant European States” less so. The amendment may not be so much a “minor drafting change”, although it must be thought to be that, given that the phrase is in the explanatory notes. It just worries me that it could be a definitional read-across that it is important to recognise, given that at the moment there is the introduction under European legislation of the 48-hour week. That is having a major effect on how health services can be provided in our country, let alone in other member states. We should have uniformity of definition. In answer to a written parliamentary question of mine, a Health Minister recently accepted that there was a great raft of member states that had not agreed to impose the 48-hour limit on the working week of those in the medical professions. We wonder whether a sleight of hand may be behind the issue. As I say, I have no reason to believe anything other than what is in the explanatory notes, but it is extraordinary that we should be asked to replace “member State” with “relevant European State” without an explanation, given that these things often carry such important cross-referencing in legislation. Amendment No. 82 ensures that the Council for Healthcare Regulatory Excellence would not be able to take action on the case of any individual in respect of whom there were or had been proceedings before the Office of the Health Professions Adjudicator. We raised the issue in Committee. The Minister contended that he had already achieved that through what was then Government new clause 6. He said the new clause meant that possible disputes about whether the council had the power to consider individual cases would be avoided. Why, then, were the Government unable to get the issue right in the first place? That question is left hanging in the air. The other matters in this group of amendments need not detain us any longer.
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- Mr. BradshawLabour
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- On the removal of the Secretary of State’s power of direction over the Council for Healthcare Regulatory Excellence, I should say that we did listen to the debate, both in Committee and the other place. We also spoke to the chairman of the CHRE, and we changed our minds. I ended up agreeing with the hon. Member for Eddisbury (Mr. O'Brien) on that matter. I think that amendment No. 35 was originally tabled by the hon. Member for Romsey (Sandra Gidley) in Committee; she raised concerns about the possibility of malicious complaints being made. The amendment is an attempt to address those concerns by ensuring that information must definitely reveal a threat to public safety if it is to be shared. We also made it clear in the amendment that the appropriate Minister, when making regulations under clause 116, “must have regard to the importance of avoiding unfair prejudice to health care workers against whom unsubstantiated allegations are made.” We have been seeking advice from an expert group whose conclusions will be published in the autumn. We will then consult on the principles that will underlie the regulations and guidance and, in due course, on the draft regulations themselves.
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- Mr. Stephen O'BrienConservative
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- I appreciate that this is a technical matter, but the Minister will understand that there are commencement dates and people need to make their plans. I may have misheard him, but I think he said that schedule 8 will need to be implemented before the main part of the Bill. That is the first time I have come across that in this House. I assume that a schedule can come into force before the main body of the Bill to which it relates.
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- Mr. BradshawLabour
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- I do not think that that is the case, but I undertake to write to the hon. Gentleman with clarification. The hon. Gentleman asked about amendment No. 73. The European Qualifications (Health and Social Care Professions) Regulations 2007 amend the heading of section 44 of the Medical Act 1983. We have changed the reference in the Bill to reflect that. It has no effect on the meaning of the provision. The difference that he highlights is that between a European member state and a relevant European state. A “relevant European state” means a member state of the European economic area or Switzerland. The Swiss have certain treaty rights despite not being members of the EAA, including free movement of Swiss professionals and the recognition of their qualifications by member states. Lords amendment agreed to. Lords amendments Nos. 33 to 36 agreed to. Clause 123 Public health protection Lords amendment: No. 37.
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- Mr. BradshawLabour
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- I beg to move, That this House agrees with the Lords in the said amendment.
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- Mr. BradshawLabour
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- Amendments Nos. 38, 40 and 41 strengthen the safeguards available for those subject to orders by justices of the peace by placing additional maximum time limits on detention, isolation or quarantine. Amendment No. 38 provides for an automatic review every 28 days where an individual is quarantined, isolated or detained under regulations made using section 45C of the Public Health (Control of Disease) Act 1984. Amendments Nos. 40 and 41 provide for the period of any extension of a measure for detention, isolation or quarantine imposed under an order not to exceed 28 days. There were concerns in the other place that the wording of the legislation could lead to disposal of dead bodies in a less than respectful manner. Amendments Nos. 37 and 39 clarify that where disposal of an infected or contaminated dead body is required, it is by way of cremation or burial. It was also felt that clarification was needed as regards who should be notified when an application for a justice of the peace order is made regarding a dead body. Amendments Nos. 42 and 43 deal with that issue. Amendment No. 47 ensures that regulations made using the emergency procedure in new section 45R are not subject to the process for making hybrid regulations. That is because the hybrid instrument procedure is a rather lengthy process and would not be appropriate where there is an imminent public health threat. Finally, amendments Nos. 44, 45 and 46 ensure that the first draft of the regulations under sections 45N and 45L(4), which provide for the making of additional provisions in relation to a justice of the peace’s order, are subject to the affirmative procedure.
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Anne Milton (Guildford) (Con)Independent- Quote
- I shall start with amendments Nos. 37 and 39, which ensure that dead bodies are disposed of respectfully. The former wording of the clause did not really protect the humane treatment of dead bodies, and I am sure that many in this Chamber would like to think that they will be buried or cremated, rather than disposed of. I would particularly like to thank those in the other place for picking up on this point. Conservatives in the Grand Committee commented that the insensitivity should be addressed, and I welcome those amendments. Amendment No. 38 makes available a right of review for special restrictions or requirements “imposed by virtue of a decision taken under the regulations”. Proposed new subsection (6B) would provide that where the restriction or requirement imposed was isolation, detention or quarantine of a person, the maximum period prior to review, and the maximum interval between reviews, would be 28 days. In addition, the review would be automatic for such measures. I fully support that amendment. In Committee, we had considerable discussion about issues relating to detention. I am pleased to see that the Minister has recognised some of the concerns about safeguards on the power to detain, isolate and quarantine people. The measures will restrict periods of detention, isolation or quarantine under the domestic regulation-making power to a maximum period of 28 days before a review must take place. We do not want a situation where people are held in isolation or quarantine indefinitely at the mercy of a periodic review. I therefore welcome the extra safeguards that the amendment will give to the liberties of those detained. The automatic review is most welcome, and it will not depend on an application. As I said, considerable concern was raised in Committee about the powers, and I know that organisations such as the National AIDS Trust have particular concerns on the matter. I am pleased that the Minister heeded some of the concerns raised in Committee. There has been a lot of discussion in the House on detention recently, and it is curious in some ways that the measures in this Bill received almost no attention. The powers are quite draconian; they may be necessary in certain circumstances, but we need to ensure that the public are protected. Amendments Nos. 40 and 41 will amend the Public Health (Control of Disease) Act 1984 to limit the period for which a part 2A order could impose detention, isolation or quarantine of a person to a maximum of 28 days. The amendments will also limit any extension of those measures to no more than 28 days, and provide a power to shorten the maximum periods further by regulation. I am pleased that the amendment will restrict the period of any extension of a justice of the peace order for detention, isolation or quarantine to no more than 28 days at a time. Once again, that will help to safeguard the human rights of those who have been detained, and it will protect the public from any miscarriages of justice. Consequently, I fully support that amendment. There is also a provision to shorten the maximum periods by regulation. If there is an opportunity to do so, and the 28 days is not found to be necessary in practice, I hope that the Minister will take up that option. Lords amendments Nos. 42 to 47 are largely technical. As someone who has not been a Member of Parliament for very long, I find it disappointing that such technicalities are not ironed out earlier. My hon. Friend the Member for Eddisbury (Mr. O'Brien) said in his remarks on the first group of amendments that much parliamentary time could have been saved by introducing such measures when the detail had been properly worked out. The group that we are considering is entitled, “Public health protection”, and public health staff will be greatly exercised by the implementation of some of the powers. The number of public health staff working in the NHS has more than halved in the past 10 years, since the Government came to power. In 1997, there were 3,000-odd key non-consultant public health staff, including nurses, nursing assistants and other key public health support workers. By 2006, that figure had fallen to 1,362—a 57 per cent. cut. As the amendments point out, public health staff are crucial to implementing some of the powers and ensuring public safety, yet a 57 per cent. cut in staff means that they have less time to exercise those powers. Indeed, in 2002, Derek Wanless served a warning on the Prime Minister that a failure to tackle public health challenges would contribute to an extra cost of up to £30 billion a year by 2022. The Prime Minister’s failure to tackle them forced the Government’s chief medical officer Sir Liam Donaldson to raise the alarm last July that the country was following the Wanless report’s worst case scenario. He noted: “There is strong anecdotal evidence from within the NHS which tells a consistent story for public health of poor morale, declining numbers and inadequate recruitment and budgets being raided so solve financial deficits in the acute sector.” Obesity rates, sexually transmitted infections and substance misuse are all rising. Indeed, since 1997, the proportion of boys aged two to 15 who are either overweight or obese has increased by 33 per cent. I recognise that the Bill contains provisions to do something to address that problem through weighing and measuring children. However, the statistics are shocking. The position has been exacerbated by the Government’s abandonment in 1999 of the Conservative Government’s targets of reducing obesity rates in the general population to 6 per cent. among men and 8 per cent. among women. Figures have recently been produced on sexually transmitted infections. Since 1997, cases of syphilis have increased by 1,654 per cent. Cases of gonorrhoea have increased by 44 per cent., of chlamydia by 148 per cent., of herpes by 17 per cent., of genital warts by 17 per cent. and of HIV by 11 per cent. The Minister may laugh, but I doubt whether it is a laughing matter for those suffering from a sexually transmitted disease or those involved in public health protection who are trying to deal with the problems, which are not only serious but increasing.
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Mr. Siôn Simon (Birmingham, Erdington) (Lab)Labour- Quote
- Surely the hon. Lady is stretching the facts to make a rather cheap partisan point. All the percentages that she cites are recorded increases, which have been recorded because of the massive extra resources that the Labour Government have put into the NHS, unlike the Tories, who systematically bled it dry and almost destroyed it.
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- Anne MiltonIndependent
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- I thank the hon. Gentleman for his intervention. It is interesting that he makes a party political point to knock me for making a party political point. I do not think that he will find that the increase in syphilis is down to extra recording. Syphilis has been recorded for quite some time. The issue is nothing to do with recording. To have sexually transmitted diseases at those levels in this day and age is very serious, and the issue is all about public health protection. On substance misuse, since 1997 the number of alcohol-related deaths has increased by 40 per cent. and the number of young people receiving treatment in hospital as a result of alcohol misuse has risen by 33 per cent. Smoking rates have fallen far more slowly since 1997 than in earlier years. In 2005, 24 per cent. of the adult population smoked, compared with 27 per cent. in 1998.
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- Mr. SimonLabour
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- Will the hon. Lady give way?
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- Anne MiltonIndependent
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- I will give way one last time, but the hon. Gentleman failed to make an adequate point last time, so I hope that he will make one this time.
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- Mr. SimonLabour
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- I am grateful to the hon. Lady for giving way again, but she failed adequately to respond to my point, so I will make it again, even more clearly. Is she seriously saying that if we greatly expand the number of health care professionals, as we have done, they will not inevitably produce, de facto, an increase in the number of recorded cases?
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- Anne MiltonIndependent
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- I am indeed going to suggest that. Perhaps the hon. Gentleman should have listened to my point that public health staff have been reduced—not increased—by 57 per cent. I suggest that he check those figures and write me an apology tomorrow, because I am right. Furthermore, health inequalities are crucial. Public health staff are the key to doing something about the rising rates of sexually transmitted infections, substance misuse and obesity. Although the inequality gap in circulatory disease mortality has declined and is on track to meet the target, the latest health inequalities figures show that the inequality gap in the infant mortality rate has not reduced by a sufficient amount to meet—
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- Anne MiltonIndependent
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- Thank you very much, Mr. Deputy Speaker. The Lords amendments before us are grouped under the heading “Public health protection”, and that is what we are talking about. We are talking about the duties placed on public health staff to detain and isolate people, and to protect the public. Let me finish by saying that health inequalities can be changed by public health staff. The inequality gap in the infant mortality rate has not been reduced by a sufficient amount to meet the target. The inequality gaps in male and female life expectancy at birth have both increased since the baseline. If current trends continue, the target will not be met. The inequality gap in cancer mortality has declined since the baseline, despite a slight increase in the last period. The minimum requirements for the 2010 target have already been met. However, that is irrelevant, as the meaningful outcome measure is the five-year survival rate. Although I welcome the Lords amendments, they place yet more duties on public health staff, who are struggling to meet the already onerous burden imposed by the rising rates of substance misuse and sexually transmitted infections, and, more worryingly than anything else, particularly from this Government, by the rising inequalities in health. Lords amendment agreed to. Lords amendments Nos. 38 to 47 agreed to. Clause 126 Administration: Great Britain Lords amendment: No. 48.
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- Mr. BradshawLabour
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- I beg to move, That this House agrees with the Lords in the said amendment.
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- Mr. BradshawLabour
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- Lords amendment No. 50 introduces a new clause into the Bill to amend section 164 of the National Health Service Act 2006, which allows the Secretary of State to authorise any primary care trust or other person to exercise the functions of determining authorities in relation to the making or varying of a determination on the remuneration for those providing NHS pharmaceutical services. There is corresponding provision in the National Health Service (Wales) Act 2006. The Government have repeatedly given a commitment, both in the public consultation and during the passage of the Bill, that the Secretary of State would continue to set the fees and allowances for the national elements of the community pharmacy contractual framework. However, we recognised the concerns raised during the passage of the Bill in this House and the other place that that might change in future. Amendment No. 50 addresses those concerns by ensuring that if, in future, a decision were made to appoint primary care trusts or other persons as determining authorities for the remuneration of those providing pharmaceutical services under section 126 of the National Health Service Act 2006, that may be done only through regulations. There are also a number of related consequential amendments as a result of amendment No. 50.
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- Mr. Stephen O'BrienConservative
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- I welcome the opportunity to debate this group of amendments. I am sorry that we did not receive any clarification on the health in pregnancy grant in another place. I must express my concern about amendment No. 48, and by extension, amendment No. 49. On the previous group of amendments, the Minister chose not to make any response whatever to my hon. Friend the Member for Guildford (Anne Milton), who made an outstanding contribution. I am sorry if we are delaying his teatime, but we hope to get some responses on this matter, as this is our last opportunity to get the Bill right. All the amendments now being proposed were initiated by the Opposition, supported by other Opposition parties, even as far back as the Committee stage in the House of Commons, but we are only now debating the proposals, to which the Government have at last acceded. The Government therefore have a serious duty not only to account for their conduct on the Bill but to ensure that the necessary clarifications are in place. They will have no further opportunity to do so, as no ping-pong is anticipated with this Bill. Amendment Nos. 48 and 49 will, as the explanatory notes somewhat euphemistically put it, allow the Department for Work and Pensions and Her Majesty’s Revenue and Customs “to share information to help develop and refine policies for pregnant women.” Can the Minister clarify what kind of data he envisages being shared? This proposal seems to add further confusion to the health in pregnancy grant. I will not detain the House by rehearsing the important and extensive arguments that we had in Committee—columns 455 and following—or in the other place, which showed clearly how little thought the Government appeared to have put into this measure, how little evidence it was based on, and how desperately Ministers seemed to be covering up for the Prime Minister’s ignorance, after he told the House from the Dispatch Box that nutrition was most important in the last months of pregnancy—Government reports confirm that that is not the case—and that this measure would assist that, for which there is little evidence.
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- Angela BrowningConservative
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- As a member of the Public Accounts Committee, I am trying to imagine what effect this measure will have on our proceedings. Representatives of Her Majesty’s Revenue and Customs appear regularly before the Committee, and I cannot imagine the kind of questions that I would put to the permanent secretary to find out how HMRC had aided the nutrition of pregnant women. Is that really HMRC’s responsibility?
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- Mr. O'BrienConservative
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- I dare say that many of us would like to be a fly on the wall, if not in the Public Gallery, of the next PAC meeting when my hon. Friend will have a chance to put precisely that question. It will be interesting to hear what answer is given, in view of the expected responsibilities. It is extraordinary to find ourselves in this situation, not least when the health in pregnancy grant has been tested by having gone through such a lengthy process in both Houses. By his own admission, the Minister found much of the debate on that grant somewhat frustrating. We support it in principle, but we do so on the basis of evidence that it is indeed in the early weeks of pregnancy, and often the time before conception, that is most important for the health—in the broadest possible definition—and the health care of women either just pregnant or seeking to become pregnant. How that will be understood in the rather clinical world of the PAC, I do not know. Like my hon. Friend, I remain fascinated and I remain to be convinced.
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- Angela BrowningConservative
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- Does my hon. Friend share my astonishment that although the Government conceded many points in Committee and have introduced many changes, this very issue—the pregnancy grant—was one of the core elements of the Bill, which was quite flawed, yet the Government appear not to have made any substantive changes to it? Does he share my concern that they have failed to address the problems in this crucial part of the Bill?
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- Mr. O'BrienConservative
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- I really do, which is why amendments Nos. 48 and 49 rightly raise this issue at this stage of our proceedings. The Government have sought to skate over what they know to be a patent embarrassment, and a patent inability to produce evidence, because they know that the evidence is not there to back up the Prime Minister’s statement from the Dispatch Box to a full House that nutrition was most important in the “last months of pregnancy”. The Prime Minister cannot undo those words or, as Hillary Clinton would say, “unspeak” them, as they are there on the record. It is difficult to have an explicit debate on a subject which was kicked off on the wrong basis by the absence of evidence for a prime ministerial opinion. We have not pinned down the function of the policy. On 6 December 2006, the then Chancellor of the Exchequer, now the Prime Minister, said: “I have received powerful representations”— his normal code for trying to dismiss things that have not come out of his own head— “that in the last months of pregnancy, when nutrition is most important”— I am quoting him— “and in the first weeks after birth, the extra costs borne by parents could be better recognised if we did more to help through our universal benefit—child benefit”—[Official Report, 6 December 2006; Vol. 454, c. 308.] The Treasury has repeatedly refused to make those “powerful representations” available; it has been asked, but repeatedly refuses to do so. I have asked, but I have had no response, despite a raft of parliamentary questions perfectly properly asking for the evidence that the Prime Minister has specifically and explicitly relied on. Both the Treasury and the Department of Health have failed to provide any evidence that nutrition is most important at those times. During the oral evidence sitting, as I am sure the Minister and my hon. Friend the Member for Tiverton and Honiton (Angela Browning) will remember, the Minister admitted, in contradiction to what the Prime Minister said, that the evidence suggested that the nutritional benefits specifically to the unborn child were more important earlier in the pregnancy. We agree with the Minister about that.
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- Angela BrowningConservative
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- Does my hon. Friend recall, as I do, that it was openly acknowledged in Committee that the money may not go on food and nutrition, even in the latter stages of pregnancy. It was suggested that the money could be used to pay off debts or buy other household items, so there is no guarantee at all that this money will benefit the unborn child.
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- Mr. O'BrienConservative
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- I am again grateful to my hon. Friend, whose memory serves her well. I recognise, Mr. Deputy Speaker, that I must remain in order in speaking to amendments Nos. 48 and 49, but it is vital to try to find the basis on which this approach and the relevant amendments have been brought before the House, to explain where we are today. I recall what I thought was a rather inelegant parallel when it was said in Committee that Australia had had a similar scheme, which had perhaps rather unfairly been called the “plasma payment”. It was being paid in the later stages of pregnancy, and rather than being spent on food and nutrition or vitamin supplements, it was used to buy wide-screen TVs. That was a most inappropriate use of something which was introduced for the ends that the Prime Minister is seeking to achieve. It was referred to when we were trying to understand the purpose of the health in pregnancy grant.
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Kelvin Hopkins (Luton, North) (Lab)Independent- Quote
- I cannot accept that giving additional money to expectant mothers will simply be wasted. A high proportion of them will be caring people who want the best for their imminent child, and they will do their best to provide the right nutrients for themselves. Undoubtedly some people will be in debt, but for most mothers, additional money will inevitably spill over into a diet that is a bit better. The hon. Gentleman is rightly saying that there should be a much more substantial increase for expectant mothers and for mothers after the child is born. I certainly agree with the need for much higher child benefit.
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- Mr. O'BrienConservative
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- I am grateful to the hon. Gentleman for helping us to recall what happened in Committee. Some of us who were a touch sceptical about the evidence sessions before they took place found that they helped a lot of us understand where the evidence that had inspired the Government to introduce the provisions might lie. That was particularly so in the case of the health in pregnancy grant. We all approached the grant in a benign way, with good will, because we wanted to see it happen. The hon. Gentleman is entirely right that the grant must be appropriate. Where there are scarce resources, and in particular where extra resources are being made available, they should be targeted at those who can benefit most from that support. Pregnant women are clearly in that category. It is best that resources are well targeted to deliver the best benefit. The evidence we were seeking was where that best benefit would lie. Rather than castigating those who might be presumed to misuse the money, on the contrary, I said to my hon. Friend the Member for Tiverton and Honiton (Angela Browning)—I hope that the hon. Gentleman heard me—that I thought it rather rough and unfair for the payment in Australia to be termed the “plasma payment”. This country should be better able to trust people to do the best for themselves if they are given the opportunity to do so with extra resources. That is precisely what I was seeking to ensure was being said in response to my hon. Friend. The big issue is that if there are scarce resources—if it is not possible to augment the payment proposed by the Government, who have identified what resources they are prepared to devote to the grant—we need to target them in the best way. The evidence does not suggest that it is best to put a nutritional opportunity at the tail end of a pregnancy, which is what the Prime Minister seemed to say when he was Chancellor of the Exchequer and that was announced, in effect, by voting the money, or the intended money. Rather, the evidence suggests that it should be provided in the early weeks, and prior to conception. That is the beef; that is the argument. We are all trying to achieve nutritional and health improvements. I do not think that the hon. Gentleman and I are at odds on that. It was helpful that he intervened, because I have been able to make it clear that we are not in the business of castigating people. On the contrary, we want them to derive the best benefit from a potential opportunity. However, in the light of all the discussion, and the evidence to the contrary of what the Prime Minister sought to pray in aid, we believe that what is delivered in the Bill is still based on a false premise. We would be far better off using the evidence sessions, which were designed to help the Committee, to ensure that the best benefit is delivered in the early years and prior to conception.
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- Angela BrowningConservative
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- The point was made in Committee—I think that it was borne out by the evidence session—that there are fundamentals in the nutrition of the unborn child, particularly in the early months. They include when nutrients, particularly calcium, phosphorous and vitamin D, are needed to lay down the skeletal frame. By the 25th week the internal organs will be well formed, although one would hope that the foetus would gain in weight thereafter. Many of the deficiencies in underweight babies result from lack of nutrient in the early stages. That was clearly stated, yet the Government appear not to have taken any notice of it.
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- Mr. O'BrienConservative
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- I bow to my hon. Friend’s experience and knowledge. I think that those of us who are men should trespass rather carefully on this area, as much of the expertise is clearly on her side. There is no doubt that the evidence entirely supports what she has said. It would have been better if the Government had had the grace to accept that on this occasion the Prime Minister “misspoke”—let us be kind—and that there was no evidence to support what he had said was the genesis of this part of the Bill. It is vital for future health that we consider this issue while discussing Lords amendments Nos. 48 and 49, because we shall not have a further opportunity to do so at this stage of the Bill’s passage. I hope that the Minister will respond, and will not choose to remain in his seat as he did when we debated the last group of amendments. Those who must implement the Bill will then be able to argue for a health in pregnancy grant to be made at the time when it will be of most value. As my hon. Friend will be the first to remember, a series of amendments were tabled in Committee—under both chairmanships—relating to the number of weeks involved. The issue was not whether the grant should be paid when a woman was 25, 24, 23, 21, 16 or even 12 weeks pregnant; it was to do with the pre-conception stage and the very early weeks of pregnancy, the fact that nutritional information was vital, and the benefit that could be derived from it.
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- Kelvin HopkinsIndependent
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- I have every sympathy with what the hon. Gentleman is saying, and I think we are all trying to move in the right direction. I entirely agree that the earliest stages of pregnancy, immediately after conception, are crucial. It is vital that alcohol abuse, for instance, is avoided at that stage. The difficulty for the Government, however, is that it is not really feasible to award a grant to someone on the basis that she is hoping to become pregnant. I think the best that the Government can do is ensure that expectant mothers are advised to eat properly and not to abuse their bodies, and told that they will receive a grant later which will help them out once their pregnancies are confirmed. The Government cannot seriously provide a grant just because someone is trying to become pregnant.
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- Mr. O'BrienConservative
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- The hon. Gentleman is right to highlight the practical difficulty, although I do not think it is an impossibility. After all, the NHS funds infertility treatment. That has quite an extensive scientific base. It involves diagnosis, and the assessment of people on the grounds of their wish to start a family, at the pre-conception stage. It is, however, more important for us to recognise that—as the hon. Gentleman also said—it is vital for good-quality assistance and advice to be given to women who seek to become or have just become pregnant, and who are abusing alcohol or drugs either on binges or on a regular basis. Nutritional impetus is crucial at that stage, because it may just provide an opportunity for the surmounting of what could otherwise be a much more serious health hurdle for both mother and unborn child. The Treasury has repeatedly refused to provide me with the evidence that I requested, despite the raft of parliamentary questions to which I have referred, and the Department too has provided no evidence that nutrition is most important during the later stages of pregnancy. The Minister admitted that during the oral evidence session. Given those policy shifts, I hope that the Minister will now explain exactly what stake Her Majesty’s Revenue and Customs and the Department for Work and Pensions have in the grant. In view of HMRC’s recent record on data handling, I am surprised that the Government are presenting any proposals that would help it to share data. That seems to be adding fuel to the fire, given its recent reputation and performance. What guarantees can the Minister give that this is not simply a power to allow tax inspectors and the DWP’s spies—that may sound pejorative, so I shall say its operatives—to harass pregnant women and new mothers? We need to be very careful that people do not feel oppressed by requests for information at what is often a sensitive and vulnerable time in their lives. Lords amendments Nos. 50, 63, 64, 65, 90 and 91 make the nationally negotiated elements of the pharmacy contract—about which the hon. Member for Romsey (Sandra Gidley) knows a great deal on the basis of experience—subject to regulations rather than local determination. They result from an amendment tabled by Earl Howe on Report, and they will give pharmacists business confidence. I hope that the hon. Lady will tell us how she feels that the proposals can be reconciled with the need for a more devolved NHS, particularly in relation to pharmaceutical services.
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- Sandra GidleyLiberal Democrat
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- I do not intend to detain the House for long. I shall confine my comments to the amendments that are before us, rather than those that we may wish were before us. I must come clean about Lords amendments Nos. 48 and 49. When I first read them, I thought, “This is a bit worrying: it effectively allows the Department for Work and Pensions and HMRC to share information.” Then I realised that that provision was already in the Bill. It is probably remiss of us—I hold up my hand as guilty—not to have examined that in Committee. I share the concern expressed by the hon. Member for Eddisbury (Mr. O'Brien). As the matter was not discussed in Committee, it would be helpful if the Minister could clarify the nature of the information likely to be shared, and the mechanisms that exist for the limiting and auditing of information sharing so that the “health in pregnancy” reason is not given when some other purpose is being served. That would be reassuring, in the light of the public interest in data sharing and data security. If the Minister does not have the details to hand, I am sure that many of us would like to be given the information at some stage. I welcome Lords amendment No. 50 and the consequential amendments relating to pharmaceutical services. I should record the fact that I am on the register of practising pharmaceutical chemists, and therefore have a potential interest. I welcome the reassurance that pharmacists will not necessarily find after investing in their businesses that local decisions will not support the services in which they have invested. It is difficult for companies to develop a strategy if numerous different provisions exist. We need to be reassured that plans to devolve the arrangements further will be subject to further scrutiny, because the issue is not straightforward. However, people to whom I have spoken who were concerned about the original provision in the Bill are pleased about the amendment, and I thank the Minister for it.
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- Mr. BradshawLabour
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- Like the hon. Member for Romsey (Sandra Gidley), I do not intend to repeat our lengthy discussions on the principle of the health in pregnancy grant—a principle that the Opposition opposed so strongly that they did not even bother to divide the Committee. I will, however, speak to Lords amendments Nos. 48 and 49. Clauses 126(6) and 129(6) amend section 122 of the Social Security Administration Act 1992 and section 116 of the Social Security Administration (Northern Ireland) Act 1992. Those were included in the Bill with the express intention of ensuring that both the Department for Work and Pensions and the Department for Social Development in Northern Ireland could verify that a woman had been given the appropriate health advice by an appropriate health professional, in order to be entitled to the health in pregnancy grant. Work to develop the arrangements for administering the grant subsequently established that both the Department for Work and Pensions and the Department for Social Development in Northern Ireland in fact already had sufficient access to information under the existing provisions to verify whether the necessary advice had been given. Accordingly, clauses 126(6) and 129(6) are no longer necessary, so amendments Nos. 48 and 49 will remove those provisions from the Bill.
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Mr. Graham Stuart (Beverley and Holderness) (Con)Conservative- Quote
- The Minister himself has said that, from a nutritional point of view, money would be best spent earlier in the pregnancy. Can he explain why the grant is being given so late in the pregnancy?
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- Mr. BradshawLabour
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- I recommend that the hon. Gentleman reads the Hansard of the Committee, where we discussed that at great length. The work also established that there was no information-sharing system that would permit the disclosure of health in pregnancy grant data for the purpose of further developing social security policy for supporting expectant mothers. In order to facilitate policy development, Government amendments Nos. 48 and 49 add references to the health in pregnancy grant to existing information systems which permit information to flow for a broad range of Department for Work and Pensions activities, including social security policy development. That data would include statistical information such as the number of claims, regional distribution and the stages when claims are made. Lords amendment agreed to. Lords amendments Nos. 49 and 50 agreed to. Before clause 138 New Clause Lords amendment: No. 51.
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- Mr. BradshawLabour
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- I beg to move, That this House agrees with the Lords in the said amendment.
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- Mr. BradshawLabour
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- Members will recall that the previous time this Bill was before the House we undertook to address the issue of the application of the Human Rights Act 1998 following the decision in YL v. Birmingham city council. The effect of that decision is that residents whose care is publicly arranged do not have those rights we intended to put in place when we introduced the Human Rights Bill into Parliament. These amendments seek to address the immediate impact of the YL case for people receiving publicly arranged care in care homes. It remains the Government’s view that in general the provision of publicly arranged health and social care should be considered a function of a public nature. The Government will therefore continue to treat those exercising such functions as subject to the Human Rights Act. In particular, it remains the Government’s firm view that independent providers of NHS care under the National Health Service Act 2006 are, as the law currently stands, exercising a function of a public nature. The Minister with responsibility for human rights has committed to consulting in the near future on how to address the general issue of the definition of “public authority” in future, perhaps by means of legislation. The consultation process is the place and time to work out which functions should be subject to the Human Rights Act, and to work out how that can best be achieved. I am grateful to all those who have worked with the Government in preparing the amendment. I would particularly like to note the contributions of the British Institute of Human Rights and the Equality and Human Rights Commission. The amendment is a step along the road to addressing the issues around the scope of the Human Rights Act, but it is a very important step. It will provide the additional protection of the Act to some of the most vulnerable people in our society. I commend it to the House.
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- Mr. Stephen O'BrienConservative
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- Lords amendment No. 51 makes local authority-funded private or voluntary sector care a function of a public nature under section 6(3)(b) of the Human Rights Act. It is important to note that privately funded individuals will still fall outside the scope of the Act. I would be grateful if the Minister also clarified the position of part-funders, which remains very unclear and therefore of grave concern to many who find themselves in that position. Nor does the amendment address the many failings identified in Government policy as regards the Human Rights Act. The Joint Committee on Human Rights report on the subject charted failings, under articles 2, 3, 8 and 14 of the European convention on human rights, in malnutrition and dehydration, which is a prime example, but also in inadequate assessment of a person’s needs; abuse, neglect and bullying; lack of privacy in mixed sex wards—another serious issue that many regard as a broken commitment by the Government—lack of dignity, especially for personal care needs; too hasty discharge from hospital; fear of making complaints, a subject on which we touched during discussion of an earlier group of amendments; and age, disability and racial discrimination. Given all that has been discussed about equality matters in relation to recent legislative proposals, that is a continuing worry. May I highlight, I hope for the benefit of the House, how important the matter is and set the context to show why the amendments matter and why the process was important. The Bill went through this House in Committee and on Report and then went to the Lords. It seems that that process has moved the Government’s position. I pay tribute to the hon. Member for Hendon (Mr. Dismore), who has been a doughty champion for that approach, and to the hon. Member for Luton, North (Kelvin Hopkins), who was often supported by the hon. Member for Tamworth (Mr. Jenkins) in Committee It was important for the Government to listen—we like to think they did—to the Opposition’s arguments. In this area, the Liberal Democrat spokesmen also made a significant and important contribution. Many of the amendments relating to that area were in their names. The Government seem to have come to a seriously and significantly modified view. According to the Government, MRSA affected about 6,000 people in 2006-07, and C. difficile about 56,000. By contrast, in 2006-07, 139,127 patients were discharged from hospital in a state of malnourishment. This is not just a malnutrition issue—it is also a human rights issue. The Joint Committee on Human Rights in its recent report “The Human Rights of Older People in Healthcare” noted that malnutrition and dehydration in care settings breached articles 2, 3 and 8 of the European convention on human rights. Figures cited in the Department of Health’s own nutrition action plan show that the cost of undernutrition is estimated at £7.3 billion a year, and a recent British Medical Journal study reported that about 20 per cent. of patients in hospital are malnourished.
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- Angela BrowningConservative
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- I am listening carefully to what my hon. Friend says, but as this legislation brings together health and social care, is he concerned about malnutrition among those, particularly the elderly, living at home with packages of social care, as well as those who are in residential or hospital care? Malnutrition among the elderly can cause not only general unwellness but symptoms that mimic other diseases, and often those diseases are not then identified.
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- Mr. O'BrienConservative
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- Precisely. My hon. Friend makes a powerful point, again from her own experience. That was discussed at some length with the Minister in Committee. Although there was an absence of common cause on the malnutrition issue, we recognised, particularly in the health care setting, where there are some statistics one can get hold of, that it has been extraordinarily difficult to get the under-nutrition, malnutrition, or inappropriate nutrition figures out of the social care settings, whether they are local authority, public sector or indeed private sector. Almost everyone knows that some people will arrive, whether it is into a social care setting or into a hospital setting, malnourished. It could be part of their condition. At the same time, the issue has been the rise in malnutrition among those who leave hospital. The thing about social care homes is that we do not have the same statistics— naturally, given that we are often dealing with the end of life—on people leaving to measure whether greater malnourishment has taken place. The weighing and measuring issues, which are addressed in the Bill, are important. Most of us remember from our childhoods that weighing and measuring were a natural first step in almost all interactions with the health or care services, not least in relation to health visitors. That is relevant to an earlier intervention on health and pregnancy. Such issues are vital to the future health of the people of our nation.
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- Angela BrowningConservative
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- That is particularly the case for the elderly, because as the body ages it does not absorb so well key minerals and vitamins from food, and deficiencies in vitamins and minerals in the elderly can lead to serious health consequences. That applies regardless of whether the elderly are cared for at home with a social care package, in residential or nursing homes or in hospital, where during longer stays there can be serious consequences.
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- Mr. O'BrienConservative
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- My hon. Friend is right. Interestingly, her two most recent interventions demonstrate how this point applies at all vulnerable stages of life, both in the early and later years. Some of us rather wish it might also apply in the middle stage, as then there would be some solution to the difficult problem of controlling weight. This is a serious issue. It is important that staff have knowledge and training, both in the care setting and in the hospital setting, where nurses are involved. They must recognise the importance of nutrition and have knowledge of it, and they must be able to monitor it. An appropriate amount of time must be available to care for people by ensuring that they eat regularly and eat the right things. People must be monitored for vital nutritional and vitamin values, particularly as an illness—or the condition of ageing—often means that digesting becomes more difficult. This is a human right, and we have been anxious to understand how that would have a direct bearing on Lords amendments Nos. 51 and 61. The British Medical Journal figures that I recently gave reaffirm those provided by BAPEN’s—the British Association for Parental and Enteral Nutrition—screening week, an initiative that the Government claimed to support. However, the Department of Health chose instead to describe the figures as, “hopelessly out of date or misinterpreted”. That was a surprise. Furthermore, the Government’s own figures, provided to me through a written parliamentary answer, showed that the number of under-nourished patients being discharged from hospital had risen by 84 per cent. since 1997. There has been a further discussion with the Minister on that point, and on what is described as an episode and how the percentages are reached. I acknowledge that there was some clarification of some of these statistics, but I believe that the Minister accepts that there is a vital issue here that must be considered. The question is whether the Lords amendments will be of assistance in respect of this prime example of a matter that is seen as a health issue but is in fact best described as a human rights issue. To do so enables us to define people’s entitlement, which in turn gives them rights. Rights confer power and are enforceable, whereas people have their health and care opportunities handed down to them from on high.
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- Mr. Graham StuartConservative
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- My hon. Friend spoke very quickly just now, so I may have misheard. It sounded to me as if he said that there had been an 84 per cent. increase in the number of patients leaving hospital suffering from malnutrition—and that in the 12th year of this Labour Government, with a near trebling of expenditure on the NHS. I wish through him to ask the Minister to explain to the House how that could have happened. I agree that being fed and looked after, particularly when one is elderly and vulnerable, should be recognised as a human right, but we need to have practical steps on the ground, rather than just more high-minded rhetoric.
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- Mr. O'BrienConservative
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- As I said, there has been some further discussion about the precise way the figure of 84 per cent. was reached, but through written parliamentary questions and the answers to them we realised that this was not just an anecdotal issue of the sort that we as Opposition Members are, of course, always being fed. This became a serious issue, and it was highlighted in Committee. The question is whether the Lords amendments will give us an opportunity to address the issue. I hope the Minister will explain whether the 84 per cent. figure has been reduced, and how that is worked out. What matters, however, is that the trend is very worrying. A health service and social care service should not lose sight of the simple things that are very easy to deal with if the appropriate measures and expectations are in place.
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- Mr. StuartConservative
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- On a positive note, may I, through my hon. Friend, congratulate Hull royal infirmary? I recently visited it and raised the issue of malnutrition. It was taking it seriously. It was using a coloured plate system to identify patients at risk and was putting in place a series of measures to tackle the problem and ensure that there is not the increase in malnutrition in hospital in our local area that we have, sadly, seen across the country under this Government.
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- Mr. O'BrienConservative
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- I am glad to hear that. I was recently in the Hull, Haltemprice and Howden area, but unfortunately I did not have the opportunity to visit Hull—although I was, of course, pleased that other positive results came from that part of the world. My hon. Friend raises an important point. I must not get diverted too far from the topic of the amendments, but let me say that the red plate system, or the red tray system of Westminster city council, is a marvellous way of ensuring that those who need extra attention in gaining nutrition due to either lack of appetite or lack of will get that attention. It means that the caring staff have the opportunity to give that attention without the vulnerable person losing face or feeling that they have been singled out, and it works very well. There is little evidence that the Government have decided to tackle this problem. Since the new year, they have failed to take the opportunities afforded by the publication of vital signs indicators for primary care trusts, the responses to the payment by results consultation and this Bill to demonstrate their intention to do so. None of the 83 vital signs targets relate to under-nutrition. It has been pointed out to the Department of Health that the lack of recognition for support services—such as for nutrition—in payment by results acts as a barrier to the commissioning of effective care pathways. Most damning was the voting down in Committee of an amendment that would have put tackling under-nutrition on the same statutory footing as tackling hospital-acquired infections. We could have avoided that situation. I was grateful for the full support that we received for that Conservative proposal from the Liberal Democrats, but, unfortunately, the Government failed to take it up, and we still do not see it. However, I think our rescue may come through the amendments in this group that give us the Human Rights Act application. Our approach should be to come from the human rights angle, rather than for the Bill to put under-nutrition and malnutrition on the same footing as hospital-acquired infections, however important they are. The latest available statistics show that MRSA and C. difficile affected about 62,000 people, whereas the number of people in a state of malnutrition when discharged from hospital only—forgetting the care settings for now—was more than double that at 139,127. We are not wrong to be deeply exercised about that, and to be critical of the Government because there is an opportunity to improve the health and well-being of so many people.
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- Mr. StuartConservative
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- As it has been recognised that these are human rights, how does my hon. Friend think that particularly vulnerable elderly people could use this right to take action in either a social care or health setting?
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- Mr. O'BrienConservative
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- My hon. Friend raises an important point, although it would be straying outside the scope of the amendments to address the detail of that, and I am conscious that a Member who might well be able to provide an expert answer and who introduced a private Member’s Bill is present—the hon. Member for Hendon (Mr. Dismore). I think he would agree with me if I were simply to reassure my hon. Friend that what is best for those who both need the rights and may be in a vulnerable position—particularly in the absence of an independent and trusted body such as the community health councils, which used to be great hand-holders for those charting their way through the labyrinth of the NHS while still vulnerable and in need of it—is best summed up by the term “an advocate”. What they need is somebody who can on their behalf prosecute the chance for them to exercise the rights and entitlements that come from the broad ambit of a human rights approach to these matters. Given the wider issues, it is a great shame that we have not had the opportunity to explore this issue, or the legislation addressing it, in depth in a Commons Committee stage. I dare say that that sentiment will be expressed by a number of people who have spent a lot of their time seeking to raise the issue in its broader sense. The Solicitor-General, herself a human rights lawyer, talked out the private Member’s Bill introduced by the hon. Member for Hendon on 15 June 2007. She could have allowed it the detailed scrutiny and consideration of a Committee stage—I supported that approach, as I know my colleagues were keen to do. As the Government waited until the Lords stages to table these amendments, we have been denied the opportunity of that detailed scrutiny. In discussing this final group of amendments, as the programming constraints that were approved in the earlier motion still give us the time to do, I hope that a couple of hon. Members who have been steadfast in seeking to champion this matter may have the opportunity to catch your eye, Mr. Deputy Speaker. This particular area may thus be linked with so many of the debates that took place on the private Member’s Bill.
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- Kelvin HopkinsIndependent
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- I am pleased to have the opportunity to speak briefly to the amendments, because I had the pleasure of moving amendments in Committee on these matters. At that time, we did not move the Government very far, but I was pleased that the Minister later agreed to meet a delegation, including a consortium of outside organisations, as well as myself and others, to discuss the issues and has moved in a positive direction. I am grateful for that, as I am sure others are. The problem we face is that the Human Rights Act 1998 applies to citizens in relation to the state, and that self-funders in private care homes do not have a relationship with the state in that context. It seems that we are moving towards a situation in which the others—those who are funded by local authorities in private care homes—will be able to exercise their human rights under that Act, as will all those in the few remaining public sector care homes. My concern is about self-funders in private care homes. One can foresee an anomalous situation involving two residents in adjacent rooms, whereby one is funded by the state and protected by the Human Rights Act, and the other is not. That would clearly be unsatisfactory, and one would want to see some change. Such a situation arises from two changes that have taken place over the past few years, both of which I opposed. Although it was not opposed by the three major parties, I opposed the large-scale privatisation of care homes. If they were all in the public sector, there would not be a problem; and if all care home residents were funded by the state, as had been recommended by the royal commission on long-term care, there would not be a problem, but such people are in a double bind. One or other of those things does not apply to them, and thus they are in difficulty. As I have said many times, in this Chamber and elsewhere, I would like a rapid move towards full state funding for all care home residents, paid for out of general taxation. I hope that at some future stage that will come to pass—I would like to think it will happen under my own Government—and I would also like the re-establishment of a strong public sector care homes sector.
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- Angela BrowningConservative
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- I have some sympathy with the hon. Gentleman. Does he recall that comparative standards in residential care in the public and the private sectors were discussed in a Committee evidence session and that, unfortunately, although there are always problems in both sectors, the comparison did not show the public sector in a very good light?
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- Kelvin HopkinsIndependent
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- The hon. Lady is right. Individual care homes perform very differently in both the public and private sectors, and since that session there have been public reports of serious failings in the private care sector too. Many people, particularly those who cannot speak for themselves, have been suffering inadequate care. I think that we do not care enough, or properly, for our elderly and vulnerable, and that comes down to resources. The public sector care homes were starved of resources for a long time. Many of them are not modern, and they have been understaffed and under pressure. The local authorities, which have been under the financial cosh for a long time, have been doing their best, but perhaps they have been squeezing funding for care homes to the point where some of those homes have not been very good. My own experience of a care home in my constituency, where my mother-in-law spent the last days of her life, was wonderful: the staff were directly employed and lived in the community, and the people in the care home came from the community. The care home was warm, friendly and caring, and my mother-in-law was as happy as she had ever been, given that she was nearing the end of her life.
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- Mr. Stephen O'BrienConservative
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- The hon. Gentleman might be coming on to this, but he will have heard me say that one of our gravest difficulties in contending with this issue is part-funders. That is because their relationship comes partly through taxpayer support, but their contract is as a private individual in the private sector. Does he have some thoughts on that?
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- Kelvin HopkinsIndependent
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- The hon. Gentleman raises a further complication. Again, if everyone were fully paid for by the state, that complication would not arise, and that is the direction in which we want to move, but the Government will doubtless have to examine it. One Conservative Back Bencher talked about a lack of care in the health sector in general. Although this Government have increased spending on health by enormous sums, our spending levels remain considerably behind those of Germany and France. I believe that the latest figures show that France spends about 2.5 per cent. more of its gross domestic product on health than we do—that is equivalent to £50 million per constituency. If we had spent an extra £50 million per constituency on health in every one of the past 30 years, we would be in a rather different position. Resources are still not as plentiful in the British health service as they are on the continent of Europe—in Germany and France—in terms of scanners, nurses, beds and so on. I want us to move further in their direction, with even more generous funding for health than we have now. I want us to move towards the levels of funding in France and Germany. It is noticeable that in France one does not have to wait to see a doctor or to have an operation—I know from friends who live in France that that is the position. I want Britain to be like France; I do not want us constantly to pretend that the situation is much better than it is. It is not as good as it should be, even though it is a lot better than it was in 1997; we have made considerable progress since then. I urge my Front-Bench team to continue to press ahead with additional health service spending and to move towards the levels of expenditure in France and Germany. I am talking about not only the money, but the quality of provision that such funding will make possible. We will have this continuing problem with the Human Rights Act because of these anomalies in respect of self-funders. I have never supported the idea of self-funding or private care homes. We need proper funding and democratically accountable local care homes built into the community, where people are directly and permanently employed from the community. I am talking about people whose own relatives go to those care homes, as was the case in the care home in my constituency that I mentioned, which is now sadly closed. There was pressure from government to close a public sector care home because it did not have built-in, en suite facilities and all the other care home standards that the Government wanted. That care home has now gone, and the staff who worked in it have retired or moved on; that body of people who did such a wonderful job is no longer there. May I add that they were all solid trade unionists, belonging to my trade union, the GMB, and that some of them were even members of my party? They were wonderful people. That is the sort of care that I want, where people are community-based and there is accountability to the local authority. People should be publicly funded in proper, well-funded care homes that are free to all at the point of need. We are some way from having that, but when we do, the Human Rights Act will apply to all care home residents because they will all be in a relationship with the state in terms of their care. I have made these points before, and I hope that my hon. Friend the Minister does not mind hearing them again. I thank him for the progress on this issue and I will support the amendments.
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- Sandra GidleyLiberal Democrat
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- I, too, welcome the amendments, and we should not let the other place take all the credit. It was clear from discussions in Committee that the Minister was sympathetic to the arguments that some of us were making. I was also part of the delegation mentioned by the hon. Member for Luton, North (Kelvin Hopkins). It was clear that the will existed to make the changes, and the Minister regretted that he did not have time to bring it to the Commons because work was needed on the detail.
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Mr. Andrew Dismore (Hendon) (Lab)Labour- Quote
- I too welcome the amendments and the remarks made by the hon. Member for Eddisbury (Mr. O’Brien) and his colleagues, who have welcomed this approach to the Human Rights Act 1998 and the European convention. That is a breath of fresh air as we do not always get that attitude from the Opposition on the benefits of that legislation. The hon. Gentleman cited with approbation my Committee’s report on older people in health care—both in hospitals and in care homes—although I do not propose to go through all the examples we described in that report. The hon. Gentleman was asked about enforceability and he batted the question over to me. The answer is twofold. First, and most importantly, if the Act does apply in these circumstances, it strengthens the hand of the staff involved in arguing for more resources and better instructions and in standing up for residents against management if asked to do things that are not human rights compliant, perhaps relating to dignity and respect, because of lack of time or ability to deal with a particular patient. Secondly, it enables a general raising of standards, which is the only way we will be able to ensure that the human rights of the elderly are respected, whether in care homes or hospitals. The rights will also be enforceable through judicial review. Indeed, the issue arose because of a judicial review in the YL case, in which Mrs. YL was about to be evicted from her care home in Birmingham after a dispute, and the House of Lords found that she did not have any enforceable rights in that case. Luckily, that case was resolved amicably after the damage had been done in the House of Lords, so Mrs. YL did not lose out. The law was however put in limbo by that decision.
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- Mr. Stephen O'BrienConservative
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- The hon. Gentleman is right on those two points, but on the second point, it will be important to ensure that the advocacy provision is properly framed.
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- Mr. DismoreLabour
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- I agree, and our report focuses on recognising the fact that using the law through the court process will not bring about the substantive institutional and attitudinal change that addressing the issue through the Human Rights Act should achieve. It can be used as a tool to lever up standards more generally. Advocacy—for example, through the patient advocacy and liaison services in hospitals—is part of that. Indeed, in NHS hospitals we should not have a problem, because they are carrying out a public function, so the patients are already protected by the Act. Examples, such as cases of malnutrition, were given, and good practice has spread rapidly and widely as a result. The problem arises in relation to care homes but goes way beyond, and involves the impact of the YL case across what we thought were the public services, but that have been privatised or contracted out. The issue has exercised my Committee, and we have produced two separate reports on the meaning of “public authority”. Earlier this year, we held a mini conference which was attended by Ministers, non-governmental organisations and others to discuss the best way to try to resolve the YL issue. I have also introduced a private Member’s Bill on the issue two years running, and I shall bring it back in the next Session, if it does not become law this Session, to keep up the pressure for wider reform. The amendments are very narrow. They would merely restore the position—of care homes only—before the YL case, and would affect only publicly funded residents. I think that that would include part-funders because of the way the amendment is phrased, but perhaps my hon. Friend the Minister can confirm that. As my hon. Friend the Member for Luton, North (Kelvin Hopkins) suggested, that creates an anomaly whereby two residents in neighbouring rooms could be in different positions vis-à-vis their legal rights. I suspect that that will not, however, make much difference in practice to the service that they receive from the care home, because it would be very difficult for staff to treat one patient better because he or she was covered by the Human Rights Act, so standards will be generally levered up in any event. The issue of the YL case remains unresolved. I tabled an amendment on Report, and my hon. Friend said that the Government would consider it. I am pleased that they did so and tabled this amendment in the Lords. He has been as good as his word in addressing this issue, but the basic problem remains. What is happening is that it is being addressed issue by issue. For example, the other place is considering amendments to the Housing and Regeneration Bill in relation to the applicability to housing associations. In a recent court case—it may be going to appeal so I shall not give details—the High Court found that housing associations were covered by the Human Rights Act, but whether that will be sustained on appeal remains to be seen. It is another open question. Every area of public service in which some elements are contracted out or privatised has this problem, but it is only being addressed piecemeal. We need a comprehensive solution. The amendment is welcome as an emergency provision to deal with an urgent problem that has arisen out of the YL case, but it does not resolve the overall position for care homes generally or the meaning of “public authority”. I hope that when my hon. Friend the Minister replies, he will be able to give us an indication of the Government’s plans for dealing with the general consequences of YL across the piece for care homes and public services more generally. How do the Government propose to consult and take the issue forward and, more importantly, to what time scale will they do that? There were indications in the other place that, for example, the original intention behind the Human Rights Act, which was that such cases would be covered, might be under question. For example, on housing, the Minister in the other place suggested that it was never intended that housing associations would be included within the meaning of “public authority”. However, that was clearly the intention, as shown by the debates in both Houses on the Human Rights Bill.
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- Kelvin HopkinsIndependent
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- Is my hon. Friend suggesting that a category of private institutions with private funding could be regarded as a public service—that a group of such organisations might be defined in law as a public service even though they are privately run and funded?
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- Mr. DismoreLabour
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- I am not sure that I would approach it from that direction. I would approach it from the other direction, which involves considering the service that is being delivered, its nature and where it comes from—and how it is paid for plays a large part, too. If my hon. Friend looks at my private Member’s Bill, which is still live—although I suspect it will not make much progress in October—he will see that in it I have set out a checklist of factors to consider. The more factors that apply, the more likely the institution is to be a public authority, whereas the fewer factors that apply, the less likely it is to be a public authority. The best way of approaching the overall picture probably is to consider the functions—who pays for them, who delivers them and the nature of the tasks being performed. There are a number of different formulations. I do not suggest that mine is ideal, but I come back to the simple point that we must have a comprehensive answer on the meaning of “public authority” in these circumstances. Although my hon. Friend the Minister’s amendment is extremely welcome, in that it deals with the urgent problem of funded care home residents, it does not deal with the much wider issue. We await some urgent announcements from the Government on how they will take the issue further forward. I hope that my hon. Friend will be able to focus on that when he replies. I welcome what he has done so far—so far, so good—but there is an awfully long way to go.
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- Mr. BradshawLabour
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- With the leave of the House, Madam Deputy Speaker. I was hoping to respond to my hon. Friend the Member for Hendon (Mr. Dismore), but I have just been sent a rather confusing note that slightly contradicts my introductory comments about the timing of the consultation on the scope of the Human Rights Act. I originally said that we would consult on the subject in the near future. My hon. Friend will probably know this better than I do, as he follows these things much more closely, but the note says that we are already consulting. I am sure that I shall be able to write to him with clarification. Whether we are already consulting or will consult soon, that consultation is the context in which to have the broader debate about which legislative vehicle should be used and what constitutes a public provision. The bill of rights and responsibilities announced in the draft legislative programme—of which the consultation, whether it has started or not, is part—would provide the legislative vehicle that my hon. Friend seeks. My hon. Friend and a number of hon. Members asked about the position of part-funders, about which there is still a misunderstanding. The amendment applies to all whose residential social care is arranged by a local authority; it is not to do with funding. For example, the Government’s view is that when a patient receives NHS nursing care, that is already a public function covered by the Human Rights Act, as I said in my opening remarks. Lords amendment agreed to. Lords amendments Nos. 52 to 91 agreed to.
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