19:00 - The House divided: - Ayes: 13 / Noes: 276 - Question accordingly negatived.
19:13 - The House divided: - Ayes: 208 / Noes: 280 - Question accordingly negatived.
19:26 - The House divided: - Ayes: 212 / Noes: 269 - Question accordingly negatived.
20:50 - The House divided: - Ayes: 217 / Noes: 265 - Question accordingly negatived.
21:02 - The House divided: - Ayes: 220 / Noes: 282 - Question accordingly negatived.
Bill Esterson (Sefton Central) (Lab)
Social services are under huge funding pressure, which has a knock-on effect on the NHS. New clause 9 highlights the crucial issue of funding and will contribute to addressing it. Just 10 days ago, I experienced at first hand those pressures on the NHS. I would have added my name to this new clause, but I was unable to be here because I spent three days in Southport and Formby district general hospital. I saw the pressures in the accident and emergency department resulting from beds not being available for the transfer of patients to the wards; the pressures arising from chronic staff shortages; the difficulty in helping patients to return home because of a lack of support in the community; and general practitioners sending older people to A and E with complex needs as there was a lack of other choice or care available. In large part, the cuts in social services funding meant that I saw all those things. Meanwhile, staff in the NHS are working incredibly hard, often doing double shifts to look after patients, for which I am extremely grateful, as are many others. I take this opportunity to thank them and everybody in the ambulance service for what they did for me and have done for many other people.
The evidence I collected during those three days shows just why we need to be confident that funding is in place. Unless the funding is adequate, both in social care and in the NHS, the challenges faced day by day, hour by hour in our NHS will grow worse. We need greater integration, provided through the all-party approach advocated by Sir John Oldham in the report by his Independent Commission on Whole Person Care. As the report says, practice needs to move on so that we can see more care provided at home, with professionals working closer together in the interests of the individual. The whole-person care approach would reduce the number of hospital admissions; it would keep more people at home for longer, reducing hospital admissions and avoiding the huge pressures that I witnessed. In the context of the Bill, we need to be confident that the funding is sufficient to deliver the new responsibilities, which is why we tabled new clause 9. I hope that Members will support it this evening.
New clause 19 calls for health bodies to promote the health and well-being of carers. As the independent commissions report states:
“Most care is delivered by people themselves and their families.”
That makes the health of carers vital. My dad cares for my mum, and his health is a major concern. Carers up and down the country face declining health as they care for loved ones. Caring for the people who care is also a vital aspect of care provision, and paid staff in the health and social care sectors are also carers. My right hon. Friend the Member for Salford and Eccles (Hazel Blears) talked about priority treatment going to volunteer carers—family members, friends and other volunteers. We should also consider that approach for everyone who works in the NHS or in social care. If we read the new clause in its widest sense, we should consider paid carers too, be they in the NHS or in social care.
Some 1.3 million people work in the NHS, and 1.5 million in social care. We should promote the health of NHS and social care staff as well as that of unpaid carers who do a fantastic job up and down the country. I hope that new clauses 9 and 19 receive the support of the House.
The Minister of State, Department of Health (Norman Lamb)
I share the frustration of many Members at the shortness of time that we have had to discuss such important issues.
Part 1 of the Bill brings in a long overdue and fundamental reform of care and support. It has been brought before the House after around five years of one of the most collaborative processes ever used to develop legislation, and I am very proud of this historic set of reforms.
I hope to have time to explain Government amendments 1 to 7 and 14, relating to clause 123 on regulations, but before that I shall try to address some of the key points that have been made. I fear that I do not have time to do justice to all the points, but I shall do my best.
On new clause 1 on power of access, which was tabled by my right hon. Friend the Member for Sutton and Cheam (Paul Burstow), it is my view that there is no gap in powers that would prevent care or other professionals from accessing those in urgent need of assistance. I am not alone in that view. The Association of Chief Police Officers says:
“Powers of entry are provided to us under both common law and PACE and I am satisfied that these would afford us access to premises where vulnerable individuals are considered to be at risk.”
The Association of Directors of Adult Social Services, which is an important organisation, agrees:
“We have no evidence that the proposed powers of entry would add significantly to the range of tools currently available to practitioners, rather we are concerned that this would encourage a coercive rather than negotiated approach to complex and difficult situations, and increase risk of harm or abuse. Any such power would not assist the complex next steps in assuring and supporting individuals, who have capacity, to stay safe.”
That view is confirmed by the chief social worker for adults, who said:
“An additional power of entry or access on its own would be insufficient, and indeed could make the situation worse.”
The inherent jurisdiction of the High Court to intervene provides a crucial final safety net. Beyond that, the critical thing is to issue, as we intend to do by the end of March, clear guidance on existing powers to ensure that all professionals working in this important area understand what powers they have available to them. I know that my right hon. Friend has been assiduous in pursuing that issue, and I am happy to involve him in the process of confirming those final guidelines that we intend to publish by the end of March.
On amendment 27 about the definition of abuse, the Joint Committee on the Draft Bill stated:
“Abuse is an ordinary English word, capable of being understood without being defined…to attempt an exhaustive definition always has the danger of omitting something which, as subsequent events make clear, should have been included.”
We agree and believe that the Bill is clear as drafted. Last week, I spoke to the all-party group, which is chaired by my hon. Friend the Member for South Swindon (Mr Buckland). I promised to go away and look at the matter and to talk to officials, but I am absolutely satisfied that the plain English words are very clear. The explanatory notes will be expanded to ensure that it is made clear. The guidance and explanatory notes will both have legal force, and courts will use them to interpret the intentions of the Bill.
Turning to amendment 28, the overarching well-being principle applies to safeguarding duties. Where partners become aware of abuse or neglect, it is imperative that they act, and the guidance will be absolutely clear on that point.
On new clause 26, I completely agree that police cells are a totally inappropriate place for someone in a mental health crisis. The crisis care concordat, which, for the first time ever, sets standards of crisis care, lays out our clear expectation that the use of police cells will drop by half by 2014-15. However, that must only be a start. The Home Secretary announced last year that there will be a review of the operation of sections 135 and 136 of the Mental Health Act 1983 on places of safety, and that is the right approach to take. However, I agree that we must end this awful practice of people ending up in police cells completely inappropriately.
I sympathise with new clause 11 on the Human Rights Act, but do not feel that it adds anything in terms of protection for individuals. None the less, I recognise the strength of feeling on the matter, so I expect that it will be discussed further in the final stages of the Bill’s passage in the other place. In the meantime, I am prepared to reflect on the points made and consider whether legislative clarification might be justified in order to make the Government’s position clear.
Paul Burstow
That is a helpful way forward, but I ask the Minister to say a little bit more about new clause 11 and the Human Rights Act issue.
Norman Lamb
I have already confirmed that we will return to the matter later in the process, and I hope that we will then end up in a satisfactory place.
Turning to new clauses 7 and 9 to which a number of hon. Members have spoken, the spending review considers spending pressures across adult care and support, the NHS and public health. In the current spending review period, we allocated significant additional funding to local authorities for adult care and support, including a transfer from the NHS of £1.l billion a year by 2014-15 to be spent on social care with a health benefit. That is not to say that I do not recognise how challenging the financial environment is for local authorities, but we know from figures provided by the local authorities themselves that the vast majority of cost savings have been achieved as a result of efficiencies and not of cutting services for people.
However, as the hon. Member for Leicester West (Liz Kendall) said in Committee, the answer is not just to throw more money at the system, but to look at how public funding is spent and to deliver a more radical reform of health and social care. That is why, in the spending review for 2015-16, we announced the better care fund, which is a £3.8 billion pooled budget for health and social care. That not only provides the resources needed to protect access to social care, but breaks absolutely new ground in establishing structures that will drive further and faster integration between health and social care.
As hon. Members have noted, the better care fund includes £135 million of additional funding for implementing the Bill in 2015-16. Some have argued that including that in the better care fund means that local authorities will face a choice between implementing the Bill and investing in integrated services. In my view, that is a false choice. On the contrary, our reforms are part of the same agenda, and we cannot afford to see those as separate issues. Both systems need to work more effectively together to help people live independently for longer.
Norman Lamb
I am conscious that I owe it to hon. Members to respond to all the issues that have been raised.
The reforms in the Bill to extend assessments and support for carers can play a big part in keeping people out of hospital. The spending review provided £335 million in 2015-16 to help local authorities’ transition to the capped cost system and to offer universal deferred payments. Locally, health and wellbeing boards have a statutory responsibility to analyse current and future health and care needs and to develop a strategy to address them. Given such an approach, there is no need for the proposed amendments.
Norman Lamb
I am sorry; I must ensure that I get through all the amendments.
On new clause 13, I am clear that the current lack of good information on deferred payment agreements is not acceptable, given the importance of the scheme. That is why we are working with national partners in local government and the National Association of Financial Assessment Officers to develop a range of questions that will improve and expand the data we already have. The new clause is therefore unnecessary as we already have plans under way to achieve a similar goal.
On new clause 4 on local authorities making “reasonable charges”, the Government’s proposal to set a clear amount beyond which a person’s income cannot be reduced is much clearer and provides stronger protection. I have written to my right hon. Friend the Member for Sutton and Cheam and other Committee members on this subject, and I would be happy to share the letter with other Members. I have nothing to add to that analysis and do not agree that the new clause is required.
On amendment 21 and new clause 15, the Bill makes it clear that local authorities must work to maintain a sustainable market that delivers a wide variety of high quality services for people who need care and support in the local area. Local authorities’ own commissioning is an important part of this process. Additionally, local authorities will have to have regard to the well-being of individuals when commissioning services. Therefore, any local authority that commissions inappropriately short care visits or does not consider the actual cost of care when setting fee levels is highly unlikely to be fulfilling their duties. These matters will be set out fully in statutory guidance. It would not be appropriate to have a nationally set formula that would lead to standard rates or “tariff prices” for care and support, as this is best left to local negotiations in the open market.
On new clause 24, local authorities are already under a duty to work with their local clinical commissioning groups and others through the health and wellbeing boards to undertake joint strategic needs assessments and to develop joint health and well-being strategies. Statutory guidance published in March 2013 makes it clear that these must be published and have specific regard to
“what health and social care information the community needs, including how they access it and what support they may need to understand it”.
Awareness-raising will be an important part of the Bill’s implementation. The Department will co-ordinate involvement of wider interests, including local authorities and the private and voluntary sectors, to raise the public’s awareness of the new arrangements, specifically on the need for people to plan for care costs. We will add to what is already available to monitor the effectiveness of information and advice, public accessibility and public awareness.
On new clauses 22 and 23 about financial advice, the Financial Conduct Authority already has a responsibility to keep under review the financial advice market as regards how it is serving customers, and qualifications for advisers, and this includes those looking to fund long-term care costs. These requirements are published in FCA rules. Such an addition to the Bill would therefore be unnecessary.
I understand the intention behind new clauses 17, 18 and 32—it is to ensure fair payment for care sector workers. In response to the Cavendish review, statutory guidance for the Bill will include guidance to local authorities on commissioning services and arranging contracts that will explicitly require them to have regard to ensuring that provider organisations adhere to minimum wage legislation, including, crucially, the payment of travel time between social care visits. We are also working closely with Her Majesty’s Revenue and Customs to ensure that the national minimum wage guidance is appropriate to the care sector. We have amended the Bill to enable specified bodies to provide training standards for groups of workers, initially focusing on health care assistants and social care support workers. This will form the core of the new care certificate.
New clause 31 is outside the remit of Health Education England, which has a delegated duty under the National Health Service Act 2006. The duty relates to education and training in relation to persons working, or considering working, in connection with the provision of services as part of the health service in England. The duty does not extend to regulated social care, which is taken to mean social care delivered by providers registered with the Care Quality Commission.
On new clause 5, given the inherent complexity presented by the different legislative frameworks operating in the different territories of the United Kingdom, we will look to develop principles on cross-border continuity of care that achieve the same practical effect as further legislation. I absolutely agree with the hon. Member for Edinburgh East (Sheila Gilmore) about the importance of this issue. We have started discussions with colleagues in the devolved Administrations and we will aim to publish the principles by November. I hope that that helps her.
On new clauses 3 and 19 about NHS work to identify and promote the health of carers, I can confirm that the guidance will absolutely reinforce the importance of co-operation between the NHS and local authorities on local authorities’ duty to identify carers. NHS England is developing its own action plan for identifying and supporting carers. In addition, our vision for out-of-hours hospital care, which will be published in April, will build on changes to the GP contract for 2014-15. All patients aged 75 and over will have a named accountable GP with responsibility for their care, and we will consider how we can extend this approach to all people with long-term conditions. The plan will emphasise the importance of GPs identifying carers and supporting them in their caring role by directing them to information, advice and support.
On new clauses 20 and 21, a legislative approach that compels schools, universities and colleges to identify young carers and student carers would not be in keeping with the Government’s drive to reduce burdens. The Department for Education has already been doing a lot in this regard, and it is now working with the National Governors Association in raising awareness in schools. The Department of Health has invested in many initiatives to help to identify and support young carers. We have trained over 150 school nurses as young carers’ champions. Along with other Departments, we will also explore the factors that are challenging in young adult carers’ transition from school to college or university. Along with ministerial colleagues, I will shortly write to Universities UK and the Association of Colleges to seek their engagement in this work.
Amendment 20, tabled by the hon. Member for Islington North (Jeremy Corbyn), is not required because the scope of the new powers in clause 12 already allows for the collection of such information if we choose to require it.
On amendments 31 to 33, we have carefully considered the issue of time frames in the care planning process, including reviews. On balance, we feel that a flexible approach is best. It is important for local authorities to retain the ability to be proportionate to the needs to be met. For some people—[Interruption.]
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. The Minister must be heard. Hon. Members are being rude in speaking.
Norman Lamb
Thank you very much, Madam Deputy Speaker.
For some people, the care planning process may be relatively simple, but for people with complex needs it is important that the plan is carefully produced and agreed with the person in order to meet their care and support needs effectively and appropriately.
Norman Lamb
I do not have time, I am afraid.
We will set out in guidance best practice on conducting care plans. I hope that that reassures the hon. Member for South Shields (Mrs Lewell-Buck).
Amendment 26 is unnecessary because the concepts of independent living and inclusion in the community are already core parts of the duty to promote individual well-being. We have merely captured them in more concrete ways rather than using those terms, which are too unclear, as the Law Commission agreed.
Schedule 2 to the Children Act 1989 requires local authorities to keep registers of sight-impaired children, and amendments 22 to 25 would only duplicate that. We have committed to explicitly reinforcing this duty in the forthcoming code of practice for children and young people with special educational needs or disabilities.
I turn briefly to the Government amendments. Amendments 1 and 2 simply clarify the scope of the regulation-making powers as set out in the other place by Lord Howe, the Under-Secretary with responsibility for quality. They ensure that regulations can specify where local authorities do have the power to be more generous and contribute to the costs of an adult with resources above the financial limit, as well as where they do not.
Amendment 3 allows regulations to specify where certain costs do not have to form part of the personal budget and thus do not count towards the cap on care costs. It has always been the intention that some provision, such as reablement, should be a universal, free service and therefore should not be incorporated in the personal budget. Such exemptions will not apply to general care and support that a local authority can charge for.
Amendments 4 and 5 correct small drafting omissions in clause 34. Amendment 6 will enable us to make provision in the regulations for the appeals system for the investigation of the appeals body itself—for example, regarding allegations of maladministration. Amendment 14 sets out that, as per usual practice, we will use affirmative regulations if we need to amend primary legislation as part of the appeals regulations.
Finally, on amendment 7, the feedback from local authorities is that it would make sense for them to have flexibility to be able to delegate functions relating to direct payments if they so wish. We agree and have accordingly tabled an amendment to remove the prohibition related to that.
Paul Burstow
I give notice that I would like to press new clause 9 to a vote and beg leave to withdraw new clause 1.
Clause, by leave, withdrawn.
Mr Dorrell
No, I do not believe that simply empowering the Care Quality Commission to go into that space is the answer to the question that I am posing. My right hon. Friend the Member for Sutton and Cheam (Paul Burstow) is closer to the right answer in identifying the health and wellbeing board at a local level as the beginnings of an organisation that can deliver a more joined-up commissioning process, joining up the social care system, the community health system, the primary health system and, of course, the hospital service—and I always add the social housing people. In a properly joined-up service, they would focus their attention on the needs of the individual patient service user—an awful piece of terminology; we cannot work out precisely what to call them.
I wish to highlight a bit of institutional tension. My right hon. Friend the Member for Sutton and Cheam proposes that this is a function for the CQC, but I am not entirely convinced. A tension underlying several contributions this evening relates to whether the CQC is the regulator of a provider, or an organisation with responsibility for charting the course, which I am looking for from the Minister, towards a new form of commissioning. The CQC has a full job to do responding to some of the things that my hon. Friend the Member for Bristol North West was talking about—culture and service quality on the provider side—and I am not persuaded that trying to manoeuvre it into the space of developing the kind of joined-up commissioning service I am describing is the right answer to that question.
Norman Lamb
I reassure my right hon. Friend that I want to chart the course with him. I completely agree on the need to bring commissioning together. The better care fund is a good nudge in the right direction, but we need to go much further in due course.
Mr Dorrell
I am grateful to the Minister for his encouragement that I am on the right path.
There is a serious question here. I agree with my right hon. Friend the Member for Sutton and Cheam that, at a local level, the health and wellbeing board is the organisation best placed to move forward with the process of more joined-up commissioning. How we, as MPs, satisfy ourselves that this is happening to the required standard, with the required levels of economic efficiency across the system as a whole and above the level of the health and wellbeing board, is one of the questions left unanswered by the institutions we currently have. I am not entirely persuaded that the CQC should be encouraged into what I regard as a vacuum.
Norman Lamb
Let me begin by thanking all Members for their contributions to the debate.
Part 2 of the Bill contains a range of measures to implement the Francis recommendations following the awful events at the Mid Staffordshire NHS Foundation Trust. The changes that we are introducing are intended to make a reality of Robert Francis’s recommendation that the NHS, and indeed all care services and those who work in them, should adopt and demonstrate a shared culture in which the patient is always the priority.
I accept the principle that lies behind new clause 8 and amendment 19, but the oversight of commissioning is not the core purpose of the CQC. I want the CQC’s main focus to be on providers and the quality of care provided for patients and service users. Any review or investigation of commissioning of services by the CQC will have an impact on its capacity to oversee service provision, and should be selected with care. It is therefore right for any CQC special review or investigation of commissioning to continue to be either at the request of, or subject to the approval of, Ministers—in the case of reviews of local authority commissioning, the Secretaries of State for both Health and Communities and Local Government.
I want to make my position absolutely clear. If there is strong evidence of a link between commissioning and poor care, the CQC will be able to examine it.
Norman Lamb
I will give way to my right hon. Friend the Member for Sutton and Cheam (Paul Burstow) first.
Paul Burstow
I apologise for getting in just before the hon. Lady.
May I return to a point that I raised in my opening remarks? At present, inspectors disavow the opportunity of providers to give them the evidence to which the Minister has referred. They say that they are not interested in it. Will the Minister ensure that the CQC and its inspectors are open and receptive to such evidence when providers offer it to them?
Norman Lamb
Subject to the fact that the CQC is an independent body, I will certainly reinforce that point in my discussions with it. In the context of mental health, we were discussing with the CQC only last week the importance of the role of commissioning as well as that of provision. I entirely accept that good care can be provided only if we get both the commissioning side and the provider side right: the two must go together.
Is it appropriate to set out the specifics of a review of commissioning in the Bill? I do not believe that it is. Flexibility is vital. While the CQC has a power to conduct special reviews and investigations of commissioning, that must be set in the context of other measures in the Bill that will strengthen the duties that local authorities must fulfil in exercising their care and support functions.
Mrs Lewell-Buck
Perhaps I am being impatient—the Minister may deal with this point later in his speech—but I should like to know who will routinely review local authority commissioning. If no one will be doing that, how will the CQC know that poor commissioning is taking place in a local authority area?
Norman Lamb
I take very seriously the point that the hon. Lady has raised, but if she will allow me to continue to present my argument, I shall be happy to return to it later if necessary.
The important new measures include an express duty to promote people’s well-being—a duty to shape local care markets to ensure that they are sustainable and diverse, and offer high quality care and support. The Department will work with the local government and adult social care sector to produce statutory guidance on local authority commissioning of care and support. However, a CQC review of commissioning remains an option. I reassure right hon. and hon. Members that we will review evidence of concerns about local authorities’ commissioning practice to establish whether it is appropriate to ask the CQC to undertake a targeted review under section 48 of the Health and Social Care Act 2008. Getting the message out to commissioners that the powers will be used is important in itself to concentrate minds. They will be under the spotlight if they fail in their commissioning responsibilities.
New clause 12 would require the CQC to consider integration of care as part of its performance assessments of registered providers of health and adult social care. In Committee, my right hon. Friend the Member for Sutton and Cheam made a strong case for the new system of performance ratings to be carried out by the CQC to look at care pathways, rather than focusing on separate institutions in isolation. He makes a very good case. I explained that a central tenet for the Government is that the independence of the CQC improves its effectiveness as a regulator. Clause 89 removes nine separate powers for the Secretary of State to intervene in the day-to-day workings of the commission, and we have deliberately removed the Secretary of State’s power to devise or approve the system for performance assessments and ratings.
The CQC has to be responsible for the system of performance assessment that it introduces, and placing specific requirements on the commission in legislation would not help in that regard. That is not to say that the CQC should not look into the integration of care. I told the Committee that I would pursue that matter in my discussions with the CQC, and I have done so. I have spoken to the CQC chair, David Prior, and to the chief executive. I am pleased to say that in that regard we are pushing at an open door. They absolutely understand the case that my right hon. Friend makes.
In recent weeks, the commission’s chief executive, David Behan, has set out plans for the CQC to carry out thematic inspections to look at the care pathways for different conditions. One such thematic programme will look at how people with dementia are handled by relevant services in a geographical area—acute health care, primary health care and adult social care, for example. Another is looking at how people move across transition points, such as when a disabled child becomes an adult—a point at which too often services fall down.
Mr Tom Clarke
The Minister has outlined that he wants to work with the commission, local authorities and others in these important matters. Does he agree that there are issues on which organisations such as Mencap have a lot to contribute? Would he see the Government’s approach on those matters as being inclusive in that respect?
Norman Lamb
I totally agree with the right hon. Gentleman. The more that we talk to organisations with expertise such as Mencap when we are designing the commissioning and inspecting of facilities, the better we are at the job that we do. We must not think that we have all the answers in Whitehall.
A future thematic review could consider the integration of health and social care services either in a particular location or across a particular condition. I am keen that the commission pursue that further, but, as I say, I think that we are pushing at an open door in that regard.
New clause 33 would create the new post of candour commissioner for England. The commissioner would be tasked with protecting and promoting a culture of candour and disclosure in the health and social care sectors, an ambition that I think we would all share. The Government are taking steps to make a culture of candour and openness a reality. We will put in place a statutory duty of candour on providers registered with the CQC—I am personally delighted that we are doing that. That will require providers of health and social care to be open with patients and service users where there are failings in care.
I commend to the House the excellent review of the duty of candour by Professor Norman Williams and Sir David Dalton, which was published last week. We will consider the recommendations of the review—I repeat that I thought it was excellent—as we develop regulations to implement the duty of candour as a requirement for registration with the CQC. We are also enhancing the professional duty of candour through changes to professional guidance and codes.
Effective whistleblowing and complaints systems are vital parts of an open and transparent culture. As the Committee Chair, my right hon. Friend the Member for Charnwood (Mr Dorrell), pointed out, what we are after is a system in which whistleblowing is no longer necessary because the culture is open. That will help to improve public and patient safety and the quality of services provided.
This Government support the right of staff working in the NHS to raise concerns and expect all NHS organisations to support staff who wish to do so. NHS organisations have to have in place policies that are compliant with whistleblowing legislation. Also, the CQC’s new inspection system will include discussions with hospitals about how they deal with whistleblowers, and the CQC is reviewing its arrangement for handling whistleblowing concerns. The CQC’s national adviser for patient safety has recently established, and chairs, a forum of whistleblowers, so the CQC understands the issue and recognises its central role in this regard.
I am sure that my hon. Friend the Member for Bristol North West (Charlotte Leslie) will agree with me that we will only achieve the change in culture that we are seeking by creating champions for candour and openness throughout every tier of every organisation—people who really believe in openness in both health and adult social care. Promoting and protecting candour is the business of every member of staff in health and social care. Indeed, the Dalton-Williams review prefaced its discussion of the candour threshold with a clear recommendation to establish a culture of candour based on training and support of staff and more accurate reporting of safety incidents.
I would also point out that the creation of a new office of candour commissioner would need funding. Given the measures we are already putting in place to support candour, I am not convinced that a candour commissioner would be the best use of finite resources.
New clause 28 would require the Secretary of State to commission an independent review of whistleblowing arrangements within six months of this Bill coming into force. I recognise that reviews, as suggested in this amendment, can play a key role in ensuring that legislation is operating as intended—a form of post-legislative scrutiny. It is for this reason that the Government, through the Department for Business, Innovation and Skills, have recently carried out “The Whistleblowing Framework: Call for Evidence”. This call for evidence is part of a review of the effectiveness of the legislation around whistleblowing, specifically considering whether the protections available in the Public Interest Disclosure Act 1998 for those wishing to raise concerns are effective. Members of the public and experts have been asked to submit evidence to BIS’s review. The findings will be published this spring. My Department has submitted evidence to this review on behalf of the health and care sectors, having taken the views of the professional regulatory bodies, but I do not support putting a commitment in primary legislation to undertake a review such as the one suggested in the amendment.
New clause 10 relates to the single failure regime for NHS trusts and foundation trusts. I repeat the assurance given in Committee that where the chief inspector of hospitals finds that patients are exposed to an immediate risk of harm, he will continue to be able to take swift and decisive action under section 31 of the Health and Social Care Act 2008. This new clause would prevent the CQC from being able to trigger trust special administration on quality grounds while it was using its powers under section 31. The chief inspector needs to be able to draw on the full range of the CQC’s powers to ensure regulatory action is appropriate in each case. We must not set unnecessary constraints on the CQC’s ability to address failings in quality. There may well be situations where the CQC needs urgently to suspend a particular service and also to consider trust special administration to ensure that high quality services can be sustained.
Let me make it clear that the CQC will be able to trigger trust special administration only where there has been a serious failure of quality and it is appropriate to do so. There are a number of ways to support trusts to improve, ensuring that special administration is only the last resort. Monitor and the NHS Trust Development Authority have a range of intervention powers and can also place trusts and foundation trusts in special measures to provide a package of measures to support improvement.
Paul Burstow
The Minister mentioned that a number of measures may be taken pre-failure in order to avoid the failure regime being triggered. Before tomorrow’s debate on clause 119, will he supply the measures by way of example, so that we can debate those very issues?
Norman Lamb
I am happy to ensure that a note goes to my right hon. Friend and other Members, as he requests.
New clauses 29 and 30 would introduce a power to create new requirements for registration with the CQC, one requiring providers to minimise the risk of harm to patients and service users, and the other requiring providers to inform patients and their representatives where treatment leads to harm, and to prepare a safety management plan. Section 20 of the Health and Social Care Act 2008 sets out the areas in which the Government may impose, through regulations, requirements on providers registered with the CQC. It is a broad power and expressly allows regulations for
“securing the health, safety and welfare of persons”
for whom services are provided. This is broad enough to include minimising harm to patients. In addition, it expressly includes a power for the registration requirements to cover
“the manner in which a regulated activity is carried on”,
which would cover a requirement to prepare a safety management plan.
Clause 80 also places a duty on the Government to introduce a new registration requirement of informing patients and service users where there have been failings in their care—the duty of candour. I hope that I have reassured my hon. Friend the Member for Bristol North West that the power already exists to include the proposed areas in the CQC registration requirements.
My Department is consulting on draft regulations to put in place new fundamental standards as requirements for registration with the CQC. These would require providers to take “appropriate steps” to mitigate the risks of service users receiving care that is “inappropriate or unsafe”. We plan to consult shortly on a new duty of candour requirement. We will, of course, develop the final regulations, which will be subject to the affirmative procedure, in the light of the comments received in the planned consultation.
Finally, I support the sentiment behind new clause 27, that providers of care services should be held to account where they allow abuse or neglect, and that there should be serious consequences where this occurs. Under the fundamental standards on which we are consulting at the moment, all providers registered with the CQC must take steps to avoid abuse and neglect, and take action where those occur. Where providers are responsible for abuse, the CQC will be able to prosecute them. In fact, in response to Winterbourne View, I took the view that there was a gap in the regulatory framework, which did not allow for proper corporate accountability. I felt that we had to change the arrangements to ensure that companies, trusts and other providers were held to account where they were responsible for abuse or neglect. We are achieving that objective.
In addition, we have brought forward proposals to respond to the most egregious failures of care. On 27 February, we published our consultation on the detailed proposals for a new criminal offence of ill-treatment or wilful neglect. The Berwick report was clear that this offence should apply to individuals and organisations, whether or not they are registered with the CQC. We agree with that approach, and are consulting on the proposal. The new criminal offence, together with the CQC’s responsibility to respond to poor quality care, is sufficient to ensure that action is taken against unacceptable standards of care, and that there are serious consequences where this occurs.
Paul Burstow
I am grateful for the Minister’s responses to my three new clauses. I look forward to hearing what other hon. Members have to say about their provisions, but on the basis of the assurances I have been given, I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 27
Corporate responsibility for neglect
‘(1) This section applies where a person registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 (a “registered care provider”) in respect of the carrying on of a regulated activity (within the meaning of that Part) has reasonable cause to suspect that an adult in their care is experiencing, or at risk of, abuse and neglect.
(2) The registered care provider must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom.
(3) Where abuse or neglect is suspected, the registered care provider is responsible for informing the Safeguarding Adults Board in its area and commits an offence if (without reasonable cause) it fails to do so.
(4) A registered care provider is guilty of an offence if the way in which its activities are managed or organised by its board or senior management neglects, or is a substantial element in, the existence and or possibility of abuse or neglect occurring.
(5) A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding two years, or to a fine, the range of which will be specified by regulations, or to both.’.—(Nick Smith.)
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Amendment (a) to Government new clause 34, in subsection (3), after ‘of’, insert ‘improving’.
Amendment (b) to Government new clause 34, in subsection (3), after ‘adult social care’, insert
‘; and if it has satisfied itself that the recipient is competent to handle the data in compliance with all statutory duties and to respect and promote the privacy of recipients of health services and adult social care.”.’.
New clause 25—Misuse of data provided by the Health and Social Care Information Centre: offence—
‘(1) A person or entity commits an offence if they misuse, or negligently allow the misuse of information they have requested and received from the Health and Social Care Information Centre.
(2) “Misuse” means—
(a) using information in a way that violates the agreement with the Health and Social Care Information Centre;
(b) using information in a way that does not violate the agreement with the Health and Social Care Information Centre, but that gives rise to use that is outside the agreed limits of use; or
(c) using information supplied by the Health and Social Care Information Centre in such a way as to allow or enable individual patients to be identified by a third party.
(3) A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction, to an unlimited fine;
(b) on conviction on indictment, to imprisonment for not more than two years or a fine, or both.
(4) An entity who is guilty of an offence under subsection (1)—
(a) is liable to an unlimited fine; and
(b) must disclose the conviction on all future applications to access data from the Health and Social Care Information Centre.’.
Government amendment 8.
Amendment 29, in clause 116, page 100, line 29, after ‘Authority’, insert
‘and the Secretary of State’.
Government amendments 17, 18, 15 and 16.
Dr Poulter
The Government are fully committed to the care.data programme and to the core principles that underpin its use, which are to present and promote transparency in the quality of health and care services to patients and the public, while protecting their privacy and confidentiality; to promote health and care research to help us to understand how to fight disease, cure illness and improve care; and to better integrate health and care services by using the data and information to understand what good, joined-up and integrated care looks like.
Dr Poulter
I have not said anything controversial yet, so if the hon. Gentleman will let me make some progress, I will happily give way later.
To realise the huge potential of health care data, patients and professionals must have absolute trust in the way that the data will be protected and used, together with an understanding of why collecting the data on such a scale is important. I absolutely understand that many people have concerns about how the process might work, but I am confident that the Government amendments will bring further reassurance to the House about the care.data programme.
The Government fully support NHS England’s decision to delay the start of the care.data programme so that more work can be done to build understanding and confidence. NHS England will be leading that work. In parallel, having listened to key stakeholders and to discussions in this place, the Government have brought forward a package of measures, including amendments to the Bill, to respond to concerns and to give the public greater clarity and reassurance that their data are safe.
The Health and Social Care Act 2012, which established the Health and Social Care Information Centre, introduced a raft of safeguards to balance the huge benefits that linking health and care data can bring. That offered people greater protection than was previously available. It is worth highlighting some sections of the 2012 Act as examples of that.
Under section 260, the Health and Social Care Information Centre must not publish the information that it obtains in a form that would enable an individual, other than a provider of care, to be identified. Similarly, under section 261, the HSCIC cannot disseminate share data that could be used to identify an individual, other than a provider of care, except when there is another legal basis for doing so, which could happen in the event of a civil emergency or public health emergency, such as a flu pandemic. Under section 263, the HSCIC must publish a code of practice that makes it clear how it and others should handle confidential data. Under section 264, the HSCIC must be open and transparent about the data it obtains by publishing a register with descriptions of the information. Indeed, the HSCIC is currently working to ensure that it is transparent about all the data it has released to others.
Moreover, the Government have made the commitment that if someone has concerns about data being used in this way, they can ask their general practice to note their objection and opt out of the system. Following that, no identifiable data about them will flow from their GP record to the HSCIC. Directions to the HSCIC under section 254 of the 2012 Act—separate from the amendments that the House is considering—will ensure that that commitment to patients has legal force.
We are going further than that. Having listened to key stakeholders and to discussions in Parliament, we have a further package of measures that, in parallel with NHS England’s further engagement activity, will respond to the concerns that we have heard and give the public additional reassurance that their data are safe. Of course, aggregated and anonymised data, which cannot be used to identify any individual person, should and will be made generally available. Indeed, a great deal of research relies on data of this type, where researchers do not need to see any data at the individual person level. Such aggregated and anonymous data are available now, and were available previously through the predecessor body to the HSCIC.
New clause 34 sets out a number of changes to the 2012 Act which, taken together, clarify when the HSCIC can and cannot release data. The new clause expressly prevents the HSCIC from using its general dissemination power where there is not a clear health care, adult social care or health promotion purpose—for example, for commercial insurance purposes. I am happy to confirm that the new clause enables anonymised information to be disseminated under the HSCIC’s general dissemination power for a wide range of health and care-related purposes, including for commissioning for a wide range of public health purposes and for research relating to health and care services such as the epidemiological research that is needed at the earliest stages of developing new treatments.
Jim Shannon (Strangford) (DUP)
Can the Minister reassure us that there will be no possibility of private companies obtaining the data and using them for their own purposes, instead of their being used for their original purposes in accordance with NHS data protection regulations?
Dr Poulter
I hope that I have already given the hon. Gentleman some reassurance that the data will have to be used for the benefit of the health and care service, or for the purposes of public health. They are not to be used for insurance purposes, for example. I will go on to outline some of the safeguards involved.
Barbara Keeley
Would the Minister like to comment on an announcement made at the launch of the MedRed BT health cloud—a cloud data system that is using our hospital episode statistics data—in the United States? At the launch, it was stated:
“People are using foreign data because it’s available. The UK made some gutsy decisions about data liberation. There’s political risk associated and they have a more tolerant climate over there.”
Will the Minister comment on the fact that we apparently have such a tolerant climate that MedRed and BT are now charging for access to our data on that cloud system in the United States?
Dr Poulter
I am not going to be drawn into commenting on an American system. The point is that there are strong safeguards under the 2012 Act to ensure that confidential data can be used only for the benefit of the health and care system. Of course, data that do not identify patients need to be used in a transparent way that can help to drive up care and services.
Dr Poulter
I have been generous in giving way to the hon. Lady; I hope that she will let me address her point. It is important that we have data that are open and transparent and that are used to expose the quality of care that is available from different health care providers. We are one year on from the Francis inquiry, and we need open and transparent data in order to understand and compare the quality of care services in hospitals and in different NHS health and care providers. This is about helping us to recognise what good care looks like, so that we can extend it throughout the system. It is also about exposing the few examples of bad care in an open and transparent way. If we had—
Dr Poulter
I am not going to give way. I am still addressing the hon. Lady’s point, and I am not saying anything controversial. If we had had better, more joined-up data that could have been used in a more transparent way beforehand, we might have been able to head off the events that we saw at Mid Staffs much earlier. This is about protecting patients and the public, and about using population-level data in an open and transparent way. Under the safeguards that we are introducing in the new clause, data will not be used for commercial insurance purposes. Let me give that reassurance.
Andy Burnham (Leigh) (Lab)
Where in the new clause does it say that? Nowhere does it say that the data cannot be passed to private health insurance companies. Proposed new subsection 1A states that such information could be passed on
“for the purposes of…the provision of health care or adult social care”.
This is a very wide provision, and I see no clarity in it that delivers on the commitment that the Minister is giving to the House.
Dr Poulter
Hopefully, if I am allowed to make some progress and address the points that have been raised, I will give further reassurances a little later. It would be useful—[Interruption.] I will answer the question a little later, so there is no point in heckling or being abusive. If the right hon. Gentleman will wait, I will talk him through the Government’s amendments so that he can gain a better understanding —
Dr Poulter
No, I am not afraid to give way. The hon. Gentleman should sit down, because he often has quite enough to say, and it is not always a very valuable contribution. In this context, he may do well to listen to some of the purposes of the amendments. As I have already outlined, there are strong safeguards set out in the 2012 Act on how data can be used. Data can be used only for the benefit of the health and care system. In order to reassure the public, we have tabled amendments to clarify further how data may be used.
Speaking to a great many people in recent days, as well as considering amendments tabled by other Members, has prompted the Government to re-table the new clause in order to clarify that these kinds of data may also be disseminated for other wider public health purposes, such as research into environmental factors associated with asthma, or for healthy eating. We have ensured that those other kinds of research can benefit from the data by changing the wording in the new clause to make it clear that information may be disseminated for the purposes of
“the provision of health care or adult social care”
or “the promotion of health”. I am sure that the House will agree that it is essential that that valuable data resource is available to support a broad range of health research.
New clause 34 clarifies that in disseminating information, and indeed in carrying out any of its functions, the Health and Social Care Information Centre must have regard to the need to promote and respect the privacy of those receiving health services and adult social care in England. It also requires the HSCIC to take into account advice from the advisory committee that the Health Research Authority is required to appoint under paragraph 8 of schedule 7 to the Bill. The advice from that committee, known as the confidentiality advisory group, will provide a new level of independent scrutiny of the HSCIC’s decisions to publish or disseminate information.
Amendment 17 would also enable the confidentiality advisory group to advise the HSCIC on the exercise of functions conferred in regulations under section 251 of the National Health Service Act 2006, or more generally on decisions to disseminate information that could be used to identify individual patients. For example, when new regulations are made under section 251 of the 2006 Act that confer functions on the HSCIC, the confidentiality advisory group could advise the HSCIC on proposals to release data. New clause 34 requires the HSCIC to have regard to that external advice on its exercise of any function under the 2012 Act of publishing or otherwise disseminating information.
Amendment 18 gives the Secretary of State regulation-making powers to set out the specific criteria that the confidentiality advisory group will be required to take into account in giving advice to the Secretary of State, the Health Research Authority or the HSCIC in carrying out their duties. That provision is intended to enable regulations which would require that the confidentiality advisory group considers: that the purpose for which the data will be used should be in the public interest and for the provision of health and care services; that any approved processing must respect and promote the privacy of patients and care service users; that the purpose cannot be achieved using suitably anonymised data, rather than identifiable data; that it is not reasonably possible to gain explicit patient consent to achieve that purpose; and that the applicant requesting the data has not misused those kinds of data in the past.
That last criterion would effectively introduce a new “one strike and you’re out” deterrent. Potentially, for some organisations, the risk of no longer being able to access those kinds of data may prove a more effective sanction than the current maximum monetary penalty of £500,000 that can be imposed under the Data Protection Act 1998. Taken together, those measures provide an additional level of scrutiny and assurance to the processes of the HSCIC in publishing or disseminating information. The Government’s amendments—new clause 34 and amendments 17 and 18—provide robust assurance that those kinds of data cannot be disseminated for purposes such as commercial insurance or for assessing an individual’s mortgage application.
Andy Burnham
Before the Minister sits down, I would be very appreciative if he could direct me to the precise part of new clause 34 that prevents a private health insurance company accessing data.
Dr Poulter
It is clear that the information can be used only for the benefit of the health and care service or for the purposes of promoting health. It is about benefits to the NHS or to the health and care system. That is also what the 2012 Act identifies regarding provision of data. Let us not forget that we had to put safeguards in place because at no point did the previous Government place any restrictions on the use of data. Under the previous Government’s regulations, before this Government came to power, there was greater potential for abuse of the system. Although I am sure the previous Government would not have intended data to be used by private health care companies for insurance purposes or by others, less rigid safeguards were in place to prevent that from happening.
This Government, both with the amendments and the 2012 Act, have clearly stipulated that the information can be used only for the benefit of the health and care system or the health service. That is very clear and the previous Government never put such a provision in place. This Government have also given patients an opt-out in the use of data—something the previous Government never properly put in place. We have introduced good provisions about protecting confidentiality and using information in the NHS in a responsible manner. If the previous Government had been concerned about the use of data, they should have put in place more robust safeguards when they were in power, but they did not.
Dr Poulter
No, the hon. Lady has had many interventions; I have been very generous—[Interruption.] I know she does not like hearing about Labour’s record in government on these issues, but I am afraid she needs to. This Government are putting in place safeguards to protect patient confidentiality. The previous Government failed on that agenda, and I am proud that we are able to table these amendments, which will lead to greater reassurance.
The amendments also help to clarify how data can be disseminated to support research for health and care commissioning, health and public health purposes, medical purposes, or other purposes relating to the provision of health care, adult social care or the promotion of health.
Government amendment 8 relates to the remit of the Health Research Authority. It has always been our intention that the HRA’s functions relate to health research and adult social care research, and the amendment clarifies that remit. It makes explicit that the HRA’s functions do not generally extend to research that relates to children’s social care, if that research is solely for the purposes of children’s social care. We must recognise that research may take place across the boundaries between health or adult social care and children’s social care, and the amendment will not inhibit such research. Although the HRA’s functions will not generally extend to children’s social care, the research ethics committees that the HRA establishes or recognises under clauses 113 and 114 will be able to consider children’s social care research in the round when considering a study that also involves health research or adult social care research.
A lot of research crosses health and social care, and some of it involves children. Where such research includes health elements, it already comes to the HRA special health authority for ethical consideration. Many university ethics committees accept HRA ethics committee approval and do not require separate approval by their own ethics committees. That will continue when the HRA becomes a non-departmental public body.
Paragraph 12(5) of schedule 7 gives the HRA a general power to do anything that appears to be necessary or desirable for the purposes of, or in connection with, the exercise of its functions. That power means that HRA can, if it feels it necessary or desirable, publish guidance that relates to children’s social care research where there is also an adult social care element or a health element that falls within the HRA’s remit.
Mr Speaker
The Minister is certainly in order and there is a continuation of Report stage tomorrow. I am sure he will want to be sensitive to the fact that other Members wish to contribute.
Dr Poulter
Indeed, Mr Speaker, and I hope that other Members will also be sensitive to that. The more interventions I take, the less opportunities there are for Members to speak. I have been very generous. I have taken interventions on a number of occasions from those on the shadow Front Bench, and from the hon. Member for Worsley and Eccles South (Barbara Keeley) and others. I have been generous with my time, but I want to preserve time for other Members to contribute to the debate, as I see you are keen for me to do, Mr Speaker.
Although the HRA amendments are important in ensuring that its remit is clearly and accurately defined, it will be able to work with those with an interest in children’s social care research when research crosses boundaries, to seek consistency in standards and to avoid unnecessary duplication.
Government amendments 15 and 16 are minor and technical. Amendment 15 is consequential to the addition of provisions on the better care fund—part 4—in Committee. It ensures that provisions on commencement cover the better care fund. Amendment 16 removes the privilege amendment inserted in the other place in accordance with the Commons’ sole privilege to deal with monetary matters.
The Government’s proposals ensure that we correct the difficulties we inherited from the previous Government in preserving confidential patient data. They ensure that we have in place a system in which NHS and care data must be used for the benefit of the health and care system and for public health purposes. They put us in a much better place to ensure that we enhance transparency and better use information to benefit patients. They ensure that we have a better basis on which to understand the basis of disease. If in the first place we had had the Health and Social Care Information Centre and the benefits we know will come from care.data, we would have been able to deal with and better combat many diseases while protecting patient confidentiality. We would have understood much more quickly the dangers of thalidomide and other drugs that were harmful to babies in utero. We would have been in a much better place to expose those examples of poor care, such as Mid Staffs; to develop national frameworks for treating diseases such as chronic obstructive pulmonary disease and heart disease; and to understand what good care looks like in the treatment of those conditions by collecting data in a fundamentally better and joined-up way.
The Health and Social Care Information Centre will, for the first time, provide us with a repository for joined-up, integrated data across health and care. Hon. Members often rightly talk of integrated care, and of the benefits of joining up health and care. Unless we have the data collected to understand what good integrated care looks like, and unless we understand what measures of integration are right, we will not be able properly to inform the debate on delivering integrated care or break down the silos that have sometimes existed to the detriment of patients across the health and care system. I hope hon. Members on both sides of the House can support that. I hope they decently recognise that this Government have put in place not just a patient opt-out if they do not want their data to be shared, but strong safeguards—much stronger safeguards than the previous Government —to protect patient confidentiality.
Grahame M. Morris
In principle, I support the utilisation of truly anonymised patient data sharing for the purposes of improving public health, but I take issue with a number of the Minister’s points, not least in relation to new clause 25, tabled by my hon. Friend the Member for Copeland (Mr Reed). Accountability is important. If the Minister and the Government are serious about addressing the public’s concern, they would ensure that the Secretary of State and Ministers are responsible rather than an unelected quango. Frankly, the Minister’s assurances at the Dispatch Box this evening, and those given to the Health Committee just a week or two ago, need to be in the Bill, so that there is a level of accountability and some comeback.
When we debated patient data sharing in Committee and, more recently, in Westminster Hall, my impression was that Ministers have tended to conflate legitimate patient privacy concerns, which are shared by hon. Members and members of the public, with the general lack of support for the utilisation of patient data for further research. They are mistaken, because right hon. and hon. Members are more or less unanimous in supporting any move that can lead to better research, improved care and increased safety.