Care Quality Commission (Healthwatch England Committee) Regulations 2012
(12 years ago)
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Lord Collins of Highbury
That this House regrets that the Care Quality Commission (Healthwatch England Committee) Regulations 2012 (SI 2012/1640) fail to provide sufficient safeguards to ensure the independence of Healthwatch England from the Care Quality Commission, despite Government assurances given to the House at report stage of the Health and Social Care Bill on 8 March 2012, and that the regulations fail to provide for effective national patient representation in the health service.
Lord Collins of Highbury
My Lords, my purpose in tabling this Motion is to highlight how these regulations, in their present form, may undermine the one thing Healthwatch England needs to succeed: public trust and confidence.
As my noble friend Lord Harris of Haringey argued so brilliantly on Report, an effective organisation for patients must be measured against three basic criteria: first, independence from the providers, commissioners and regulators of health services, because a patient complaint may involve the need to challenge any or all of these interests; secondly, genuine grass-roots representation from groups and individuals—no top-down organisation; thirdly, that its work and comments be derived from sound local information.
Over the past 40 years, we have seen community health councils, then patient participation forums and, most recently, LINks. They may not have always fully met these criteria, but each built on the progress of its predecessor in delivering greater patient involvement. No matter how often the Government assert to the contrary, the arrangements proposed in these regulations do not pass the test of independence. They say that Healthwatch England will have genuine operational independence by ensuring that the majority of its members are not also members of the Care Quality Commission. However, under the regulations the Healthwatch England chair must consult the CQC chair before the first appointments are made. That does not exactly reinforce the notion in my mind of independence. However, even with this measure and some of the others in place, it remains difficult to see how Healthwatch England can build public trust when its governance is controlled by the CQC, a body whose own organisation and resource problems have been so publicly aired.
The fear for many is that that the Healthwatch England committee will be rapidly absorbed into, and moulded and overwhelmed by, the dominant culture and infrastructure of the CQC. The Government have told us how important the duty of collaboration is within their reformed NHS. If that is the case, why not use this duty rather than leave Healthwatch England within the governance structure of the CQC?
The skill and ability of the new Healthwatch England chair will no doubt be a significant factor in whether it succeeds. I congratulate Anna Bradley on her appointment. Having worked at Which? for many years and been a former chief executive of the National Consumer Council, she is extremely well qualified to meet the challenge. From her public statements, it is clear that she fully appreciates that for Healthwatch England to succeed it must meet the challenge of independence and effective patient representation.
A key to this will be the strength of the local Healthwatch network. As local Healthwatch develops during the next six months, it must show that it listens to patients and service users and captures their feedback, a role that LINks have performed with distinction in many areas.
However, with no clear rules in law, we are potentially left with a range of different local social enterprises determining national representation. By not providing statutory status to local Healthwatch, the Government missed the opportunity for them to be organisations that were fully trusted and supported by patients and public alike. At the launch of Healthwatch England, Anna Bradley also acknowledged that, with stretched health and social care budgets, an ageing population and significant systems reform, it was essential that HWE be focused on real people, their experiences and their needs. She said that Healthwatch England would actively seek out evidence from all sections of the community and collate it to find out what needed to change. I fully understand her desire to ensure that such evidence is not dependent on those who shout the loudest. She said that Healthwatch England would go out of its way to hear from those who sometimes struggle to be heard. However, I fear that, with these regulations, we will have a body that is perceived to be appointed from high—a top-down organisation which is not representative. The 10 members recently appointed to Healthwatch England have highly relevant knowledge and experience, and I have no doubt that their specific skills and expertise will be a tremendous asset to its work—three have been appointed because of their specific local involvement. However, to be genuinely representative, there is a case for more, if not a majority, to be drawn from local Healthwatch.
Healthwatch England will be looked to by 152 local Healthwatches as an organisation that understands and has experience of both national and local problems and issues, including the special needs of deprived communities, people suffering as a result of health inequalities and people living in rural areas. The connection between local Healthwatch and Healthwatch England must be more than a brand, a name and a conversation.
The decision to restrict local Healthwatch membership of Healthwatch England to only four members, one from each of the four NHS regions, Greater London, North, Midlands and South, appears totally inadequate. In addition, the decision to restrict from 2013 local Healthwatch membership of Healthwatch England to people described as “directors” of local Healthwatch organisations is limiting and confusing.
Not only is there a risk of reduced funding with local authorities commissioning local Healthwatch, some of which we have already seen in the tendering process that has commenced, but there is also huge potential for conflicts of interest. Can we really ask a patient or carer to have confidence in a complaint being properly pursued when it involves a regulatory failure in a local authority social service? I am sure that patients will see the potential conflict of interest even if the Government cannot.
We are facing the prospect of fragmented services being delivered by multiple providers even within a single local authority. One issue of particular concern for me, which I have raised previously in the House, is the patient advocacy service, used by adults, young people and children wishing to make a complaint about NHS healthcare. There are currently three providers of the Independent Complaints Advocacy Service in England, commissioned by the Department of Health centrally. In future, this will be commissioned instead by 152 local authorities. It has been estimated that this will add £2.2 million to the cost of the service—which currently costs £11.7 million—massively reducing what is available for other patient services provided by the Local Involvement Networks.
Further, while there will be only one local Healthwatch contracted in a single local authority, this body will be permitted to subcontract most, if not all, of its activities. This will result in some areas in multiple contracts, solicitors’ fees and all the other on-cost of commissioning. The waste of public money on contracting is absolutely appalling.
In the end, it will come back to how the structure proposed in these regulations will play out in practice and how conflicts of interest between Healthwatch England and the CQC, or indeed Healthwatch organisations in local authorities, will be dealt with. The issues that the Minister must therefore address and questions that he must answer tonight are: how will public trust be maintained when a complainant about a CQC investigation into a care home discovers that the body investigating the complaint or championing improved quality of care on behalf of patients is a committee of the CQC itself? How will the culture clash between Healthwatch and the CQC be addressed and managed? How will the Minister, to quote the word used by many in this House, stop CQC “suffocating” Healthwatch England? How will he ensure that potentially serious conflicts of interest are dealt with?
I conclude with the issue I started with: public perception and understanding of, and confidence in, the independence of Healthwatch. It is important that Healthwatch is seen to be credible and truly independent, able to challenge and to scrutinise the work and decisions of the regulators, both CQC and Monitor. We need an independent Healthwatch England and we need local Healthwatch bodies that everyone can rely on to be genuine patient representatives. I am afraid that these regulations give us neither.
Baroness Jolly
My Lords, I will not speak at length this evening and will speak mainly of the issue of the independence of Healthwatch England. I was at the launch of Healthwatch England and met some of the members of the committee. As the noble Lord said, many come from wide and relevant backgrounds, and they were really enthusiastic about the task in hand. They represent all regions of the UK, disabilities and gender. I understand that the full committee is now appointed.
There is an undoubted need for a patient watchdog, as we have heard. Many hours were spent in debate in this Chamber, in Committee and on Report, on the Health and Social Care Bill to try to mould it as best as possible to achieve that. During that debate, some of us carried out a campaign with Ministers outside the Chamber as well as inside, but there was no acknowledgement that the siting of Healthwatch England as a committee within the Care Quality Commission would cause concern. Indeed, it was said that the connection would be beneficial to the process and result in improved channels of communication.
Those arguments are now past, and Healthwatch England is now constituted, but the secondary legislation we are discussing today is silent on the issue of independence. We are left to wonder whether that is a missed opportunity or a deliberate omission. I always look on the bright side, so let us assume that it is a missed opportunity.
We know that the chief executive officer of the CQC holds the budget for Healthwatch England. What safeguards are in place to ensure that the money is not used to support core Care Quality Commission business or, indeed, to prevent the board of the Care Quality Commission, of which the chair of Healthwatch England herself is a member, saying that the way that the Healthwatch England committee wanted to spend the allocation was not as it thought fit?
If so, where does that put both the Care Quality Commission and Healthwatch England—and, indeed, the confidence of the public in their watchdog—if a future chair of Healthwatch England goes native or a chair of the Care Quality Commission becomes overbearing? That is a reflection not on personalities or individuals but on roles and responsibilities. Both current incumbents of those positions have assured me that that could never happen, but we all know of instances where what seemed perfectly good appointments change the way that they work over time. Working arrangements honoured under one regime may not carry over to a successor.
I commend the work that Anna Bradley has done thus far in setting up the organisation and her commitment and understanding of the role. She has said:
“We will be accountable to Parliament not the CQC ... We will work with the CQC as strategic partners. Guarding that independence will be a very important aspect of my job and the committee’s job”.
As I said, Anna Bradley sits on the Care Quality Commission board as part of her role and is appointed directly by the Health Secretary. She is adamant that the patients’ champion will be fully independent from the regulator.
A set of arrangements has been developed to safeguard the independence of Healthwatch England, whose budget—£3 million in 2012-13—is determined by the Department of Health. Healthwatch England will have full editorial independence over its publications; its committee will set its own priorities; and the chair will appoint the committee, ensuring that a majority are not Care Quality Commission commissioners, and oversee the work of Healthwatch England’s director, its senior officer. Any disputes between the Care Quality Commission and Healthwatch should be resolved through “open and frank discussion”, with the Department of Health responsible for resolving any intractable issues.
The Government’s intention was clear about the independence of Healthwatch England when the Bill was being debated, and it is to be regretted that that did not find its way into legislation or this secondary regulation. This organisation will be closely watched. Its relationships with partners are clearly defined in legislation. Its first chair has been absolutely explicit about its independence very early in her appointment, with the clear support of both the CEO and the chair of the hosting organisation, the Care Quality Commission.
I want Healthwatch England and local Healthwatch to succeed. We owe that to all patients across the country. With all the changes working their way through the NHS and the care system—it is essential that, despite its name, we should not forget that Healthwatch watches after health and care—it is imperative that it is working as efficiently as possible to its agenda, not that of the many stakeholders. For the sake of the public, those in receipt of care, it must succeed.
I would welcome reassurance from my noble friend that the lack of regulation or independence will not impede Healthwatch England’s independent operation and an indication of how that can be guaranteed.
Lord Harris of Haringey
My Lords, I am pleased to have the opportunity to follow the noble Baroness, Lady Jolly, on this Prayer. She has highlighted the weakness in the Government’s position. I am confident that the people who have set up Healthwatch England are of good will and that they intend and wish it to work; that Anna Bradley will be an excellent person as chair of Healthwatch England; that the outgoing chair of the Care Quality Commission is committed to making it work; and that the chief executive of the Care Quality Commission is committed to making it work. I even believe that Ministers in the Department of Health are committed to making it work.
The problem is that we are provided with a framework of regulation which does not guarantee that in future. One or two appointments down the road, with a new leadership of the Care Quality Commission and, perhaps, with different Ministers at the Department of Health, how will those things be ensured, especially if budgets remain tight and Healthwatch England starts to be effective and makes criticisms which are difficult for Ministers—or, worse still, in this context, for the Care Quality Commission? That is when those problems may arise.
That is why, when the Bill was passing through this House, there was so much concern about the importance of independence for the Healthwatch structure. My concern is that, given that the legislation has passed, this is a wasted opportunity to make it stronger.
One of the lessons that is expected to come from the Mid-Staffs inquiry relates to independence. The report is expected to identify the systemic failure of organisations to focus primarily on the needs of the patients of that hospital. Because each was looking at its own area, nobody was taking the step back to say, “How does this work from the point of view of patients?”. That is where Healthwatch should come in and be influential: to cut through the complicated organisational structures which the Health and Social Care Act has bequeathed to the NHS. That is why the simple issue of how it preserves its independence is so vital.
When the Bill was going through Parliament, the noble Earl held a meeting to discuss how Healthwatch England should work. He made the point that there would be valuable synergies from Healthwatch England being located within the Care Quality Commission. He did not stress, but it was clearly part of the equation, that there would also be some useful cost savings associated with that. The cost savings could be achieved in a whole variety of ways. It would be possible to have an agency agreement whereby some of the back office functions were provided by the Care Quality Commission or any of the plethora of structures that the Health and Social Care Act has bequeathed to the NHS. Similarly, because the duty of co-operation exists, you would hope that those synergies could be activated without the need for the Healthwatch organisation to be subservient to the Care Quality Commission. It would have been possible in these regulations to create a structure which, while preserving the general framework of the Act, would ensure that there was independence.
If we look at the regulations that we have before us, we see a number of flaws. First and foremost, for example, is the size of the Healthwatch England committee. Potentially, this will be a committee of as few as six members. I appreciate that in the initial instance it is larger than that, because people of goodwill are trying to make this structure work. However, in three, four or five years’ time there may not quite be the same atmosphere or there may be a feeling that the wings of Healthwatch England need to be clipped back. In any event, with six to 12 members it is going to be extremely difficult to ensure that there really is the geographical diversity that is necessary; the coverage of all the many major areas of special need that exist as far as health and social care is concerned; and proper recognition of ethnicity and gender within that. Again, the initial membership has provided a reasonable attempt to achieve that diversity, but where is the guarantee of that in the future?
I know there is a feeling that small boards work well. The noble Baroness, Lady Cumberlege, who is not in her place on this occasion, has talked to us glowingly about the value of having small, dynamic boards to run organisations but this is a different sort of organisation. It is supposed to be one that represents the generality of the interests of patients across the whole country and which derives its authority from what is happening in local Healthwatch organisations around the country—the 150-odd local organisations that will exist. It is therefore not appropriate to have a small board in such a case, as it is not the same sort of structure.
Then we have the rather strange arrangements for the appointment process. In the first instance, the chair of Healthwatch England has to get the approval of the chair of the Care Quality Commission before appointments can be made. The future arrangements are that the chair will make the appointments directly but let us be clear: the chair of Healthwatch England is a Secretary of State appointment and has the potential to be the poodle of the Department of Health. I have been in the position of being in charge of the organisation representing patients and I remember successive Secretaries of State, from two parties, making attacks on the organisation because we were being effective and raising issues that were uncomfortable.
Under those circumstances, can we be satisfied with a future arrangement whereby the Secretary of State solely makes the appointment of that individual, who then appoints all the other members of the Healthwatch England committee? In the initial stage, you have a double lock where the chair of the Care Quality Commission gets involved but in future you will have someone who might be appointed as a poodle or to muzzle the watchdog nature of Healthwatch England appointing individuals who are, no doubt, like-minded. That is why the arrangements are strange.
We then have the provision for suspending members, which is set out here. Presumably, the suspension is different from disqualification but the Secretary of State may dispense with the chair of Healthwatch England for a variety of reasons, which includes,
“failing to carry out those duties”.
Who is going to determine what those duties should be? Essentially, we are being told that the Secretary of State will decide what he or she thinks is appropriate for Healthwatch England to be carrying out. Again, the chair then has similar powers in respect of individual members. I make a specific request of the Minister: that in his reply he spells out absolutely that it will not be appropriate for either the chair or the members of Healthwatch England to be suspended from their membership if they are pursuing their interpretation of what is in the interests of patients and their organisations, and the people that they represent.
Baroness Masham of Ilton
My Lords, the Explanatory Memorandum to these regulations states:
“The instrument also places a requirement on the chair to ensure that arrangements for the selection and appointment of persons take into account the principles of openness and transparency”.
The votes this evening illustrate that people want openness and transparency, and I commend this. I would like an assurance from the noble Earl, Lord Howe, that the members of Healthwatch England and the local Healthwatches will be treated well. As volunteers, LINks members have not been given enough support. It is disappointing that Healthwatch England will not be independent. It must not become a puppet of the CQC, which has had problems, and the local authorities that host it.
There is an immense amount to do to keep patients safe in the health service—those in care homes and those with mental problems. One hopes that Healthwatch England will support local Healthwatches. When there is so much fragmentation and so much to do, will the CQC and Healthwatch manage to cope? I hope there will be spot checks, otherwise inspections do not mean very much, as has been shown in the awful problem of the care home near Bristol. I hope that the Minister, who I think believes in independence in his heart, can give us some assurances tonight.
Lord Whitty
My Lords, I do not want to repeat the arguments that have been made. I was going to repeat the arguments that I made about the history of consumer representation in other sectors, but time is against us. The conclusion from that would be that independence and the perception of independence are vital for all the reasons that my colleagues have spelt out today. The Act is there, and the regulations will be there after tonight, but the Minister at least ought to be prepared to say that he will review the situation after, say, two years. If he were prepared to say that tonight, I would give Anna Bradley, who I have great respect for, and the other members the chance to prove that this situation works, but it might also show up some strains in it. If the Minister could say that, I would walk away tonight a happier man.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the noble Lord, Lord Collins, has posed a number of questions about Healthwatch England and how it will work within the Care Quality Commission, and I welcome this debate. In view of the time constraint, I am not sure that I am going to be able to cover all the points, particularly those relating to local Healthwatch, but I will do my best.
First, I would like to take a step back to the White Paper Equity and Excellence: Liberating the NHS where our first plans for Healthwatch were set out. The Health and Social Care Act 2012 was passed by Parliament in March this year and enacted the proposals for Healthwatch to be the new consumer champion for people in health and social care. As a result, locally and nationally, Healthwatch will bring about better national leadership on public engagement and better communication for patients, service users, members of the public and communities to enable their concerns to be heard and acted on.
In the debate on the Bill in the Lords, the Government made it clear that Healthwatch England has an important role to play for patients and the public to present their views on health and social care at the national level to inform service improvements. Accordingly, the 2012 Act set up Healthwatch England to be the national body that would present the collective voice of the people who use health and social care services so as to influence national policy, advice and guidance. The Act sets up Healthwatch England to have relationships with other national bodies, such as the NHS Commissioning Board, Monitor and the Care Quality Commission itself, and with local authorities and the Secretary of State. Healthwatch England has the power to advise these bodies and the Secretary of State for Health, which could include making recommendations, and the recipients of such advice are under a statutory duty to respond. This is an important power for Healthwatch England to drive the consideration of issues, get a response and make the correspondence public, which I believe is a very tangible way of delivering openness and transparency in how these bodies respond to the issues that Healthwatch England raises. That could be a matter relating to the actions of the CQC itself.
I believe that these arrangements will engender trust. They will also embed the patient and public voice and the experiences of patients and the public at the heart of services. Healthwatch England is able to build other national relationships, such as with Public Health England. In addition, Healthwatch England will provide the leadership and support to a network of local healthwatch organisations which, in turn, will feed back the information from local people and communities to inform the national picture of what needs to be heard, and acted upon.
Since the Act was passed, the Healthwatch England committee was launched on 1 October at a stakeholder event hosted by the first chair of Healthwatch England, Anna Bradley. The chair has appointed to the committee 10 members so far who, collectively, bring the range of expertise and experience required for Healthwatch England to operate strategically at the national level. Those members were shortlisted and interviewed by a selection panel through an open and transparent process. Independent members of the panel included Joe Irvin, chief executive of the National Association for Voluntary and Community Action, and the criteria were drawn up in consultation with external stakeholders.
I shall name the 10 members for the benefit of noble Lords. They are: John Carvel, who was social affairs editor of the Guardian for nine years and a Guardian staff writer for nearly 40 years; Alun Davies, who has worked as a policy and planning manager in an adult social services department in a unitary council in the south-west and has been actively involved in disabled people’s politics; Michael Hughes, an independent policy and research adviser who was the director of studies for six years at the Audit Commission overseeing national reports on a range of topics including adult and children’s social care; Christine Lenehan, who is director of the Council for Disabled Children and has worked with disabled children and their families for over 30 years; Jane Mordue, who is deputy chair of Citizens Advice; Dave Shields, who was a health and well-being strategy manager for Southampton City Council, developing the city’s health and well-being partnership; Patrick Vernon, who was the chief executive of the Afiya Trust, one of the leading race equality health charities in the country and previously worked as regional director for MIND; Christine Vigars, who is chair of Kensington and Chelsea LINk and a trustee and former chair of Age UK Kensington and Chelsea—she has taught social work and worked in community care development in the voluntary sector; David Rogers OBE, who is a councillor for East Sussex County Council and chairs the Local Government Association’s community well-being board; and Dag Saunders, who is chair of Telford and Wrekin LINk and is one of two representatives for LINks on the Healthwatch programme board at the Department of Health. I hope the House will agree that this membership will give Healthwatch England not only strong and independent leadership but also the right skills and knowledge in relation to the commissioning and delivery of health and social care services, as well as on public engagement, consumer advocacy, equality and diversity, and specialisms such as children and young people.
The noble Lord, Lord Collins, has questioned the extent to which Healthwatch England will be able to act independently. I suggest to him that it will be able to do this in a very real sense. Healthwatch England will set its own strategic priorities, separate from the CQC; it will have its own operational and editorial voice, again separate from the CQC; and it will develop its own business plan and take responsibility for managing its own budget.
Under the leadership of its new chair, Healthwatch England has already made great progress in putting arrangements in place to ensure that it will function independently of the Care Quality Commission, while benefiting from its position as a statutory committee of the commission, without compromising good governance and lines of accountability. In fact, the benefit of this structure runs both ways. It will immensely strengthen the link between the views of patients and the public and regulation. The advice that Healthwatch England provides to the Care Quality Commission will enable the commission to address failings in the provision of health and social care services. It will also enable the commission to address any local risk management systems and, at the same time, Healthwatch England will have the commission’s offer of valuable expertise in data management, the gathering and use of intelligence, analysis, and an evidence base of information to pool and share knowledge. The CQC has publicly committed in its consultation document on its strategy for 2013-2016 to make the most of the opportunity Healthwatch offers and to support its development to make sure people’s views, experiences and concerns about their local health and social care services are heard. The CQC has made it clear that people’s views, experiences and concerns will more systematically inform its work.
Working as a committee within the Care Quality Commission makes Healthwatch England very well placed to connect people’s concerns about safety and quality with the work of the commission. This symbiotic and symbolic relationship is unique and will go a long way to embedding what I know noble Lords want to see, which are the voices of the patient and the public at the heart of care.
I was asked what will happen if Healthwatch England goes off the rails in some way or goes native. The Secretary of State has a duty to keep the performance of the health service functions under review. That requirement involves keeping the effectiveness of the national bodies under review; these bodies are listed in the Act. The list includes the Care Quality Commission, and Healthwatch England as its committee. That reassurance should go a long way to make sure that the functions that these bodies are meant to perform are ones on which they will be held to account.
Lord Collins of Highbury
My Lords, I thank the Minister for his response, and all noble Lords for their contribution. The noble Baroness, Lady Jolly, said that this was a missed opportunity and I am glad that she recognises that on this occasion. I wish that, on Report, we could have pushed through some of those concerns in a much more positive way. I am afraid that it is still a missed opportunity in view of the contribution from the noble Earl. As my noble friend Lord Whitty says, there was an opportunity today to state publicly not only a genuine commitment, but how we can translate that commitment into the assurances that the public will want. I hope that the Government will keep this matter under review. It is a sad fact that we have an organisation whose formal governance is under the Care Quality Commission. The chief accounting officer of Healthwatch England will not be Anna Bradley; it will be the Care Quality Commission. That poses some fundamental issues for the public.
Nevertheless, we have had a good debate. Everyone on this side of the House wishes Healthwatch England every success. We certainly wish its new chair every success. In the light of the debate, I beg leave to withdraw the Motion.