Elderly People: Abuse

Baroness Barker Excerpts

Wednesday 14th May 2014 Lords Chamber

[Baroness Barker (LD)]

My Lords, I thank the noble Baroness, Lady Cumberlege, for the opportunity to return to this issue. The law is an important expression of what we as a nation believe should be the common standards by which everybody in our society should be held to account. It is an important driver of professional behaviour. This afternoon, I wish to contend that, although we are making progress, our law in relation to elder abuse is still deficient in two respects.

In the Care Bill, we have taken a significant step forward by putting into law statutory duties on authorities to investigate adult abuse. Scotland already has the Adult Support and Protection (Scotland) Act 2007, which I want to come back to. We have a new corporate responsibility for wilful abuse or neglect by NHS staff and the Government are considering doing the same in relation to social care. I welcome that. However, during the passage of the Care Bill it was wrong and remiss of the Government not to increase powers of entry in circumstances where there is good reason to suspect that an older person is being abused and access is being denied by somebody else. For that reason, I think that we will continue to see incidents of abuse against older people.

Early last year and in the early part of this year, I took part in the review of the Mental Capacity Act. A very important part of the report produced by our committee under the excellent chairmanship of the noble and learned Lord, Lord Hardie, concerned the criminal law provisions of the Act, known more commonly as Section 44. Section 44 of the Mental Capacity Act introduced a criminal offence of ill treatment or neglect of a person who lacks capacity. However, there is an important flaw in that legislation. It requires the person to lack capacity or the person looking after them to have reasonable belief that they lack capacity for an offence to be committed. That is not the case in Scotland. There, if somebody is guilty of abuse of an older person, whether or not they lack capacity, that is an offence.

When people from the Ministry of Justice came to talk to us, we asked about the use of that provision. First, our committee was rather surprised to know that the Government do not collect any data; they use only media reports. We thought that that was rather remiss. However, from the media reports that they had, it was clear that there is a gap. The noble Baroness, Lady Cumberlege, talked about the millions of people who may be affected by such abuse, yet there have been only a handful of prosecutions under the Mental Capacity Act. It is clear to us that that law is deficient. Professional staff who may abuse older people do not really understand it. They do not understand their responsibilities and they certainly do not fear prosecution under that legislation. The central point of the legislation was to prevent older people and vulnerable adults from being susceptible to abuse. There is widespread recognition that that law is deficient and several judges have said so in making pronouncements about case law.

My plea to the Government today is that, in their response to the report of the committee on which I sat, they signal that we treat abuse of older people every bit as seriously as abuse of children and that we look at dealing with those two deficient pieces of law.

Care: Older People

Baroness Barker Excerpts

Wednesday 7th May 2014 Lords Chamber

[Earl Howe]

My Lords, the national eligibility threshold has been set at a level to reflect the most common current practice of local authorities. That will allow current practice in 98% of local authorities to continue as it does at present. The national minimum threshold will mean that people with autism, others who need care and carers will know what level of need is eligible for local authority care, no matter where they live in the country. I think most people welcome the element of the Care Bill that gave that certainty.

[Baroness Barker (LD)]

My Lords, one of the objectives of the Better Care Fund is to reduce demand on the NHS by improving preventive social care. Local authorities have sought to put more money into the Better Care Fund than the Government originally asked them to. Can the Minister say what the NHS’s response to the Better Care Fund proposals has been?

[Earl Howe]

The short answer to my noble friend is that it is too soon to say as the plans are currently in formation. However, the whole idea of the Better Care Fund is to enable joint working. It is an opportunity to make the best use of available resources and improve value for money through the collaborative redesign of existing services. The pay for performance element of the fund should incentivise local areas to make efficiencies and will provide initial evidence of the impact of the Better Care Fund on savings and outcomes.

Care Bill [HL]

Baroness Barker Excerpts

Wednesday 7th May 2014 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I have just one issue to raise, on Amendment 32 and the Government’s amendments in light of the Delegated Powers Committee report. I speak on behalf of a number of people who are grateful that the Government have been able to respond very quickly to this. It is much more sensible for this to be an affirmative instrument rather than a negative one.

[Baroness Barker (LD)]

My Lords, in view of the press coverage today, perhaps I could ask the Minister to confirm a point. When the Better Care Fund was announced, the intention was that projects would start in April 2015. Is that still the Government’s intention or has the timescale been put back? What seems to me constructive is the move to have more engagement from the NHS in setting up the projects under the Better Care Fund. One key aspect of the Better Care Fund on which it rests is ensuring that there are enough strong and appropriate providers of community services to ensure that older people get the care in the community that they need.

The noble Baroness, Lady Wall, put a question during our earlier exchanges that went straight to this matter. You cannot simply close spaces in the NHS and expect that somehow people will be provided—magically, at a stroke—with services in the community. I quite see why people have leapt on this as a story, but I struggle to see the substantive issue. I go back to a point that was made earlier: how many times have we stood in your Lordships’ House and talked about integration of health and social care as being a desirable end that will deliver better services? It seems to me that the NHS may be questioning some matters to do with budgets. That is not a case for undermining the Government’s whole policy.

[Earl Howe]

My Lords, I am grateful for the contributions of noble Lords. I will begin by clarifying that the Better Care Fund has not been suspended or delayed. My noble friend was absolutely right to say how important and long-awaited this initiative is. Successive Governments and leading health professionals have talked about joining up health and social care for a very long time. The Better Care Fund is a major step to making this a reality. It will be in operation from April 2015, which was always the intention. For the press to suggest that the scheme has been suspended is completely wrong.

The Cabinet Office implementation unit conducted a deep-dive review of the Better Care Fund in six local areas following the submission of draft plans. This was a small sample of the 151 plans across England and was based on initial drafts that have since been redrafted. The review found that the Better Care Fund is generating pace around service integration, but there are areas where improvement is needed. These include insufficient engagement with primary care and acute providers in the development of Better Care Fund plans and a lack of practical detail and clarity about how cashable savings will be released.

Since receipt of the Cabinet Office report, officials have worked with NHS England and the Local Government Association to improve the offer of support for local areas to address the issues that have been raised. To give councils the resources to start making progress immediately, the NHS will transfer an additional £200 million to councils in 2014-15 on top of the £900 million already committed. This funding will be used for social care with a health benefit and to prepare for the introduction of the Better Care Fund.

We are only half way through the planning and preparation process for the Better Care Fund and it is very premature to imply or state that the fund is in trouble—far from it. One would expect different areas of the country to progress at different rates; that has always been the case. Many areas of the country have been integrating services very successfully for a number of years, so it should not be surprising to anybody that some areas need to catch up. We are on the case, and so are NHS England and the Local Government Association. I am confident that, as I said earlier, we are broadly on track in this area.

--- Later in debate ---

[Baroness Barker (LD)]

My Lords, if it helps the Minister as he waits for some assistance in his response, I speak as one who has taken part in many of the discussions over the years. The Minister was right to acknowledge the work of a large number of people. One person who should be added to his list is the noble Baroness, Lady Greengross, who has worked tirelessly on this matter for some time. It is a measure of how long this debate has been running that when we first began to discuss it in this House, there were no direct payments for social care to anybody. Therefore, the matter did not arise. It is therefore extremely helpful that the Joint Committee on Human Rights has posed the question that it has. When we started, the scope to argue over what was a private arrangement and what was a public function was considerably less than it is now. Now, someone who has been assessed as needing and being entitled to social care may make an arrangement with a family member using a direct payment, but the question of whether it is a public function that is being discharged is still the one that goes to the heart of whether the Human Rights Act applies. It is extremely helpful that the Joint Committee has raised that question. Having got this far to overcome what has long been acknowledged as a tremendously unfair anomaly—whereby one older person in a residential home has rights and the person in the next room does not, simply because of who arranged, rather than funded, their care—let us get it right, at last.

[Lord Mackay of Clashfern (Con)]

My Lords, as I took part in the debate in this House that secured the original amendment to the Bill, I should very much like to associate myself with the remarks of thanks to my noble friend Lord Howe and to Norman Lamb and others in the other place. I think the root of this difficulty was the decision of this House from which Lord Bingham dissented. That was an indication that the decision might require revision in due course.

Abortion

Baroness Barker Excerpts

Thursday 3rd April 2014 Grand Committee

[Baroness Barker (LD)]

My Lords, I thank the noble Baroness, Lady Knight of Collingtree, for initiating the debate. This is a subject on which she and I hold very different views, but I admire the vigour with which she pursues her very strongly held convictions.

We are having this debate at least in part because of the ongoing campaign by the Daily Telegraph and the sting operations which it has mounted in support of that. Noble Lords will have seen the briefing from the Library. I think it is evident from that that the law is being upheld and that the DPP has yet to find a case where the law has been broken in this regard. It is also clear that the professional bodies—the GMC and the BMA—are dealing toughly with any professional about whom there is the remotest suspicion that they may not be upholding the law in full.

I want to make just one simple point. The NHS is under enormous pressure, particularly as regards maternity services. Given that, there is a legitimate question as to whether or not it is necessary to continue to require two doctors to authorise a procedure in this regard. I am not asking for the law to be changed on the basis of opinion but rather that research is done—that is, comparative research with regard to other countries where the authorisation of two doctors is required—to see whether scarce resources could not be used more effectively in advancing the healthcare of women and children. I am not asking for the law to be changed in any other respect. I think the other four criteria that have to be met should remain. I simply question whether, in this day and age, it is still necessary for two doctors to make that decision.

NHS: Bed Capacity

Baroness Barker Excerpts

Thursday 20th March 2014 Lords Chamber

[Earl Howe]

The noble Lord is absolutely right. That is why my ministerial colleague, Dr Poulter, has written to Sir Bruce Keogh. This issue lies at the heart of the NHS constitution: the patient’s dignity and shaping care around the needs and preferences of patients is absolutely at the centre of the constitution. This is why it is entirely appropriate for Ministers to make their views known and for Sir Bruce to ensure that all hospitals are aware of this principle.

[Baroness Barker (LD)]

My Lords, does the Minister agree that it is possible to discharge patients from hospital in the evening safely and that there are some patients for whom that is the best clinical option, but that hospitals are not good at ensuring that frail older people are discharged at the best time when they live on their own? Could he include that in the review carried out by NHS England?

[Earl Howe]

My noble friend is quite right. As she knows, there are far too many frail elderly people who end up in hospital in the first place. We must get better at the discharge arrangements for them and not keep them in hospital too long. This is the focus of much of the work going on in the department and NHS England at present concerning vulnerable older people. We will announce a comprehensive plan around this later in the year.

NHS: Seven-day Working

Baroness Barker Excerpts

Thursday 6th February 2014 Lords Chamber

[Baroness Barker (LD)]

My Lords, in 2003, the noble Lord, Lord Hunt of Kings Heath, the Minister and I were deep in the depths of the delayed discharges Bill. During our discussions, the journal Nursing Older People published clear evidence that if older people were discharged on a Friday, they were more likely to be readmitted to an acute hospital, or to die.

Let us flick forward to July 2013, when Sir Bruce Keogh concluded, in his review of 14 Trusts for NHS England, that,

“performance … was much worse … for their emergency patients, with admissions at the weekend and at night particularly problematic. General medicine, critical care and geriatric medicine were treatment areas with higher than expected mortality rates”.

In its 2013 report, Dr Foster stated that the mortality rate for patients who had routine surgery is 24% higher if the operation is performed just before the weekend and that the number of patients who return to hospital after being admitted at the weekend is 3.9% higher, so 10 years on it is the same story.

A lot has happened in that decade. Technology has improved and kit is marvellous these days. Data have become much more copious and available. Patients have become better informed and empowered. The pressure on resources was changed out of all recognition during the Labour Government, when lots more resources went into the NHS, but the rising tide of demand continued on ahead. It is the same story over a decade. One thing that we can conclude is that this is not about resources. That is not the answer to these issues.

This is therefore an interesting question for the Government to think about now that we are in a period of austerity. How do we address what we know to be long-standing and systemic issues? First, in order to have a seven-day-a-week NHS, we have to have better integrated social care and improved access to low-level social support. We know that 50% of the users of the NHS in future will be older people with long-term comorbidities, particularly dementia. The bulk of their care will not come from consultants; it will come from their families and friends. What is important is supporting their families and friends to look after them in the community.

Secondly, GPs have a critical role in determining access to the NHS. I think we can by now conclude that the GP contract negotiated by the previous Government was not the roaring success that it was made out to be at the time. GPs have a critical role in managing care pathways and access and we now need to go back and say to them, particularly since their response to Sir Bruce Keogh was simply to talk about resources, that there needs to be a change in their role in managing that point between all-out A&E access and long-term care.

Finally, we need to be absolutely clear with the British public that having a full seven-days-a-week service is not going to be realised in the short term. The general public will have to understand which parts of the health service they can expect to be available seven days a week and which they should not. The British public are very proud of the NHS and are, by and large, responsible. They want to make the best and most sparing use of it they can. Let us not deceive or mislead them into being wasteful and thinking that they are going to have everything all the time.

Health: Local Healthwatch Organisations

Baroness Barker Excerpts

Tuesday 5th November 2013 Lords Chamber

[Earl Howe]

I am very much in sympathy with that thought. However, it is up to the local Healthwatch organisation to organise its funding as it sees fit and in the most cost-effective way possible. I would not want to dictate to them what they should do but, clearly, for a Healthwatch to work effectively, one has to have volunteers who are ready and willing to do the work, which might involve the need to reimburse them for some expenses.

[Baroness Barker (LD)]

My Lords, will the Minister confirm that local Healthwatches retain the power to merge and reconfigure their services with neighbouring bodies if that would make for better outcomes for patients?

[Earl Howe]

That is potentially within their power, although it is for local Healthwatches which find themselves in that position to consult their commissioning local authority to make sure that the local authority is happy with whatever the proposals are.

NHS: London

Baroness Barker Excerpts

Wednesday 30th October 2013 Lords Chamber

[Earl Howe]

My Lords, the noble Lord raises the important question of capacity. The key point is that none of these changes will be implemented until such time as commissioners and the relevant providers are satisfied that the necessary capacity exists. That is a key point. Secondly, on the costing and the financial aspects of the proposals, the way in which we will be able to spend more money on front-line care and better-quality facilities is by spending less on duplicated facilities, underperforming services, and badly designed and out-of-date buildings, which cost a lot to maintain. Therefore, as part of this package, there will be new custom-built hospitals at Ealing and Charing Cross, costing about £80 million each, designed to deliver the specific services needed in those respective communities. That will be part of the way in which the money released will be invested for the betterment of patients in the area over future years.

[Baroness Barker (LD)]

My Lords, the most important part of this Statement is the part stating that none of these changes will come into effect until NHS England is convinced that the necessary primary and community services are in place. How will that be determined by NHS England? Secondly, who will be responsible for the integrated commissioning of community and primary services to bring about the necessary preventive services on which this reconfiguration is based?

[Earl Howe]

Largely, the judgment by NHS England will be made by local area teams—but not in isolation. It has to be a collaborative exercise, which is my overall answer to my noble friend’s second question. The successful integration of services must depend on close collaboration between the different constituent parts of the NHS but also with adult social care and local authorities. It is striking that already we are seeing this happening in north-west London, as we are in many other parts of the country. For the system to work as we want it to, all the constituent parts need to be effective and efficient. The integration of services, which is one example of how the NHS can become more productive in the future, as well as more clinically effective for patients, is an essential way of ensuring that we have a sustainable NHS in the future.

Care Bill [HL]

Baroness Barker Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness Emerton (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Hamilton, and agree with the views just expressed by the noble Baroness about spirituality. I ask for the forgiveness of your Lordships’ House for this late intervention on the subject. I speak as a retired nurse, but I am nevertheless aware of the situations that nurses are placed in concerning this issue.

Let me start at the beginning. The Nursing and Midwifery Council, places a requirement on every new graduate that each nurse, in partnership with the person, their carers and their families,

“makes a holistic, person centred and systematic assessment of physical, emotional, psychological, social, cultural and spiritual needs, including risk, and together, develops a comprehensive personalised plan of nursing care”.

When I was taught in the preliminary training school, holistic care was described as the physical, mental and spiritual well-being of the patient, as in the 1950s, language was not so sophisticated to call it holistic care with all the ingredients that the NMC spells out. Nevertheless, the principles were well rooted. As a student, I clearly remember the description of today’s holistic care likened to a three-legged milking stool: when one leg breaks, it affects the whole stool. Likewise, if there is a physical condition, the whole person requires attention, be that psychological or spiritual.

It became necessary in 2010 for the Royal College of Nursing to commission a survey on spirituality. It revealed that members wanted more education and guidance about spiritual care, clarification about personal and professional boundaries, and support in dealing with spiritual issues. Within the survey it emerged that there was agreement that spiritual care is a fundamental part of nursing currently much neglected through ignorance and misunderstanding. A pocket book was prepared for the use of nurses, which states:

“The practice of spiritual care is about meeting people at the point of deepest need. It is about not just ‘doing to’ but ‘being with’ them. It is about our attitudes, behaviours and our personal qualities … It is about treating spiritual needs with the same level of attention as physical needs”.

In 1988, as Hitchens quoted:

“Often it is not until a crisis, illness … or suffering occurs that the illusion of security is shattered. Illness, suffering … and ultimately death … become spiritual encounters as well as physical and emotional experiences”.

Spiritual care is not just about religious belief and practice or about imposing belief and values on another using a position to convert. It is not a specialist activity or the sole responsibility of a chaplain. It is about hope and strength, trust, meaning and purpose, belief and faith in self and others. For some, this includes a belief in a deity and a higher power, people’s values, love and relationships, morality, creativity and self- expression.

Eighty per cent of care is delivered by nurses in hospitals and hospices. Nursing homes and care homes are less well supported by registered nurses but again support workers need to understand the relationship between physical, mental and spiritual needs in order to gain the right support for the person being cared for. However, this can be achieved only if nurses have enough time to be with the patient to establish a relationship and to pick up where there is a need. It cannot be done in 15 minutes, but in 15 minutes a registered nurse may pick up the need and be able to pass it on to someone who can give the help that is needed.

I hope the Minister will feel able to support the amendment before us as the words “spiritual well-being” are more explicit about what is required than the word “beliefs”. I hope this short explanation of the depth and breadth in which the nursing profession has explored this subject reflects the enormous amount of work that is required by all caring staff in whatever capacity to understand that the need for holistic care to meet the needs of those being cared for and their families is not restricted to physical or psychiatric treatment but includes spiritual well-being covering many innermost personal needs at often the most vulnerable time in their lives.

[Baroness Barker (LD)]

My Lords, I thank the noble Lord, Lord Hamilton, for his kind words about the work I did on this issue. On Report, I tabled the amendment which stands in his name today because at that point the Government were working to a definition of well-being which was about emotional well-being, and it was my view that it did not sufficiently encapsulate the matters we would define as spiritual. My name is not on the amendment today because over the past few weeks I have discussed this at some considerable length with a number of people, not least with the Minister and the noble Lord, Lord Warner, on BBC Radio 4 at some unearthly hour a couple of Sundays ago.

I think the Minister has met us where we need to be because his amendment refers to “feelings and beliefs”, which is a fairly wide and inclusive term. It is important that we take his words, not the wording proposed by the noble Lord, Lord Hamilton, because most of the discussion this afternoon has been about health and healthcare in healthcare settings, such as end-of-life settings, but this Bill is about social care at its widest in the community. Therefore we are perhaps not talking about the well-being of people at the end stage of their life, and it is important that we stick to a wider definition of a person’s beliefs because we are not talking just about medical matters.

The way the Government have framed the argument is sufficiently wide to include spiritual beliefs. I think in the normal course of conversation, when we talk about beliefs, we have almost a hierarchy of them. Religious beliefs perhaps come fairly high at the top; then people would secondarily think about spiritual beliefs. They might go on to talk about political beliefs being important to a person’s well-being. That is why I think that this time the Government have got this right. It is sufficiently clear and sufficiently inclusive to reflect all the concerns that remain legitimate on behalf of people backing my noble friend Lord Cormack’s amendment.

On this occasion the belt and braces are unnecessary and the noble Earl, Lord Howe, has got the House to the point where it wants to be. I will be quite happy to support that, not least because I think if we reform it we go with that formulation of words. Then we will be able to do the one thing which I think the law has to do, which is to be there as a backstop for those people who believe that their feelings and wishes are not being acknowledged and are being abused. That is the primary purpose of this legislation. Therefore, it should be as wide as possible.

[Lord Elton (Con)]

What the noble Baroness has just said prompts me to point out a difficulty. We are in an age when there is controversy about spirituality, when people can actually lose their jobs over issues of spirituality. If there were to be a case arising under this legislation in which such a matter arose and spirituality was not mentioned in the Bill, the position of those people would be a great deal weaker than if the Bill was amended as my noble friend suggests. Like the Chief Whip, I know that it is contrary to our normal custom to divide at this stage, but it seems that this is an issue of sufficient importance on the one hand and of narrowness of scope on the other to make it both necessary and painless.

Care Bill [HL]

Baroness Barker Excerpts

Monday 21st October 2013 Lords Chamber

[Baroness Barker (LD)]

My Lords, during the deliberations on the Health and Social Care Bill, we spent a considerable amount of time discussing the details of the trust special administration arrangements, not least because it was the first occasion on which a legal process of that kind had been in legislation. We were aware then, and perhaps even more so now, that there has to be some power to bring these decisions to a conclusion. I find it remarkable that people have demonstrated in favour of keeping open Mid Staffordshire hospital, but they have. That is the power of emotion in respect of hospital care in particular.

However, I agree with the noble Lord, Lord Warner, that this amendment is not quite what is needed, although there are some things in it which are to be welcomed. The process that needs to be gone through whenever a hospital is to be closed is to reassure the public that there will be access to alternative services. That is the absolutely critical point and it was with that in mind that I was somewhat taken aback to hear the Minister say that this procedure—and I bear in mind that, as he said, this is the last procedure in a very long process—takes away from the trust special administrator the requirement to involve the public and the patients. It seems to me that that is the very last thing that you would want to do if you were trying to have a process involving political engagement. I therefore ask him how the department came to that decision.

[Earl Howe]

My Lords, the matters we have debated today are of great significance. Of course—and I need to make this clear—we do not want to see any NHS trust or foundation trust fail, but equally we cannot shirk the responsibility to take action if and when that happens. In our taxpayer-funded health system, every pound counts and every pound should be put to best use, providing high-quality, effective care. Failed organisations squander resources. I do not want to be derogatory about them in other ways, but they usually take for themselves an unfair proportion of resources in relation to the local health economy more widely. Failed organisations, if nothing is done, have to be propped up by government bail-outs. That cannot be right, particularly at a time when resources are as constrained as they are now. We need an effective regime for tackling these issues.

The House has agreed with this on two previous occasions, passing legislation in 2009, during the time of the previous Government, and again in 2012 to provide failure regimes for trusts and foundation trusts respectively. We thought that those regimes would be effective, but experience now shows that they need clarification. The noble Lord, Lord Hunt, suggested that this amendment represented a major change of policy and the noble Baroness, Lady Warnock, characterised it as an arbitrary overturning of the decision of the court in the south London case. The Government’s policy has been consistent. It is entirely unchanged. It is self-evidently not a change of policy. Had it been so, the recommendations made by the trust special administrator in south London would have been ones that we would have questioned as legally dubious in the department. On the contrary, we believe that the administrator’s recommendations fell squarely within the wording of the 2009 Act, which, as I mentioned earlier, used the phrase, “in relation to”. That was the phrase around which the judge’s ruling revolved, and it was a different interpretation of that phrase that the judge took.

The noble Lord, Lord Hunt, is very knowledgeable about the heath service, but I am afraid that on this matter he is wrong. His amendment would render the failure regime quite useless. Five years is too long for a failed hospital and the patients it serves to wait for an effective remedy, to say nothing of the cost to the public purse. One of the provisions that the noble Lord has tabled would require the Secretary of State to justify making the power operational after the end of the five-year period, but is that not the debate we should have now? In any event, the effect of accepting his amendment would lead to an incoherent muddle. Either the House believes that a trust special administrator must be able to take the action necessary to resolve serious and prolonged problems at a trust or it does not. A long wait and a report will make no difference to the issues of substance. I urge the House to be decisive on this rather than doing what is effectively kicking a can down the road.

I know that fears have been expressed that the clause we are inserting would enable the Government to make free with every hospital around the country. That is not so. In fact, I submit to your Lordships that that suggestion is scaremongering. The powers could have been used for a long time if it were the Government’s intention to close down every hospital or lots of hospitals. The regime was designed by the party opposite, lest we forget, to deal with the specific circumstances of a trust in failure. It enables an external expert to be appointed as administrator to take a fresh look at the situation and, working with the trust and its commissioners, to develop recommendations for the future.

One needs also—I say this particularly to the noble Lord, Lord Warner—to recognise that trust special administration is only ever invoked when the normal processes for agreeing a reconfiguration have hit the buffers. In normal circumstances commissioners and providers in a locality get together and very often agree about the way services should be reconfigured to make them clinically and financially sustainable. In the case of south London and in the case of Mid Staffordshire that process has been going on for a long time. It is only because we reached an intractable position that administrators were appointed in those instances.

We have heard today that some aspects of our amendment provoke strong feelings, particularly the clarification—and it is a clarification—that a trust special administrator can make recommendations that include other providers where those recommendations are necessary for, and consequential on, his core recommendations. I bring noble Lords’ attention to those key words. Of course I recognise those views, but I do not share them. The clarification is vital for the failure regimes to be effective. It may be possible for the solution to the problems faced by a failed organisation to be found within the boundaries of that organisation, but it may not. Indeed, it is quite likely that it will not be. The health service is formed of a complex network of interdependent providers, all influencing one another. It is plain that making changes to one has a knock-on effect elsewhere. The amendment is a reflection of that reality.

I have a degree of sympathy with those who have argued that the effect of this could be unfair on the successful provider impacted by the failure of a neighbour. Such a step would, of course, be taken reluctantly. But I argue that it must be possible to take such a step if, and when, that is the only way of resolving the problem. The amendment would not apply retrospectively. The date of the court hearing in the south London case is therefore not relevant.

The rest of my amendment makes minor changes and I hope that they will be acceptable to the House. I hope more strongly that the amendment as a whole will find favour. It could be, as some noble Lords have suggested, that additional things need to be done. We do not believe that to be the case but I have heard the arguments put by a number of noble Lords that the amendment might need additions at some time in future. Our minds are open to that. But I beg noble Lords not to lose this opportunity of passing my amendment, as it matters a very great deal, not just in local areas but in the health service as a whole, in the interests of equity and fairness, which, after all, underpin the whole NHS. I believe that noble Lords should reject the amendment proposed by the noble Lord, Lord Hunt.

These are going to be rare cases and they are always difficult. The problems by their very nature are intractable and serious. We must fix them and have mechanisms to do that in order to put services back on a sustainable footing. Otherwise, I respectfully submit, we ourselves will have failed. I beg to move.

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[Lord Deben (Con)]

My Lords, in general terms, I support the government amendments. I am sure that my noble friend will want to answer the specific issue which the noble Baroness, Lady Greengross, raised. However, I support the Government with a slight caveat. Similar parts of the localism agenda of the Government have likewise seemed to have devolved in order to encourage people to take responsibility. I agree that there is a problem of prescription—if I may use that word in the context of the health service—because we all want to add in to any freedom the particular issues about which we have a special concern. I have real sympathy with those for whom dementia is one of those issues; it certainly is for me. However, we have to guard against that because, in the end, it may produce an artificial series of priorities. In this case, it is much better for the Care Quality Commission to make its own mind up, because it is going to be responsible. I take a rather different view about the recent scandals, in that the commission has to take responsibility for the claims that have been made. If it has to take responsibility, it must have as much control over its agenda as it possibly can.

My concern is simply that the Localism Act claimed to give localities all kinds of new controls over their futures. Yet, this week, we again find the Secretary of State for DCLG calling in a locally agreed solar decision, one supported by the local authority and by the inspector, but turned down—for reasons which are extremely difficult to see—by the centre. I want an assurance from my noble friend that this is real devolution; that the powers which have been given will not be circumvented by some other mechanism within this Bill or other Bills. The purpose of such devolution is to enhance responsibility. My concern is that, often, people who are given and who claim to have responsibility find that the structures are so prescriptive that they cannot take that responsibility seriously. If the amendments are an attempt to ensure that they can carry through their responsibilities in a way which enables the country to look to them to do the job they ought to be doing, that is fine and dandy. However, I hope that we can have reassurance that this is a real change, and not something that is going to be circumvented for the convenience of some Secretary of State by other bits of this or other Bills.

[Baroness Barker]

My Lords, I draw to the House’s attention three questions put forward by Leonard Cheshire Disability. That organisation has worked extremely hard to support the Government in their stated objective of stopping 15-minute care appointments for older people, and its questions are worth following up.

First, why is it necessary to remove this power completely from the CQC; what will the CQC be stopped from doing by the absence of this power that otherwise it would not be? Secondly, the Government are committed to tackling poor commissioning and poor practice. If it is not going to be the role of the CQC to challenge local authorities on their commissioning practices, whose job will it be? Thirdly, is there any evidence that that power, as it exists, has been misused? Whatever one’s view about where responsibility should lie—the noble Lord, Lord Deben, made interesting points about that—those three questions are worthy of an answer when we come to formulate that view.

[Baroness Pitkeathley]

My Lords, I, too, am troubled by the seeming perversity of government Amendments 145, 146 and 149. The effect of the amendments seems to be to make it harder for the CQC to conduct investigations into local authority practices, particularly of commissioning. My understanding, from my hazy memory of when the CQC was set up, was that that was a particularly important function. Surely it has become more so, given the commitment to integration between services provided by the health service and those provided by local authorities. Was that not a key feature of establishing the CQC? The timing of this seems to be very odd—perverse, as the noble Lord, Lord Low, said—given the current huge concern about the way in which services are commissioned, the so-called 15-minute care visits, and so on.

Do the Government see a continuing role for the CQC in working with local authorities to improve the way that they commission services, or is this a retreat from the way the Government view the CQC? I was very involved in the discussions before the CQC’s relaunch, and understood that to be an important part of its function. The amendments appear to reduce the CQC’s power to help improve local authority commissioning and, because of that, its oversight of care quality. That is a great concern to us all, particularly when we are so concerned about the quality of the services which are commissioned.