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.

--- Later in debate ---

[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.

Care Bill [HL]

Baroness Barker Excerpts

Wednesday 16th October 2013 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I commend the amendment of the noble Lord, Lord Patel of Bradford. I shall not say much more than that other than that he commented on the risk that the current situation could lead to more likelihood of a more medical approach to aftercare. Noble Lords might think that as a retired psychiatrist I would support that, but I do not; it is incredibly important that people who have a history of mental illness and need aftercare services receive the broadest possible support so that admission to hospital is not simply because there is inadequate support for them in the community. I commend his proposal.

[Baroness Barker (LD)]

My Lords, I wish to indicate my support for the continuance of Section 117, as I have done on many occasions before, not least during the passage of the most recent Mental Health Act—when various people, whom I shall not embarrass now by saying who they were, did indeed stand up to defend some of it—because it works.

When the Law Commission first made this proposal in its report, I had occasion to talk to that body. The noble Lord, Lord Patel, is right; the commission relies very heavily on the Mwanza case, and there is a great deal of dispute about the advisability of doing that. The question that I had when I first met the Law Commission still remains: when everything else in the legislation is geared towards enabling health and social care to work together to enable the transfer of people from acute health settings back into the community, why rip up the one piece of legislation that has been there doing that for 30 years? It is not just that some of us see Section 117 as being important with regard to the individuals whom we might know or come across; rather, we see it as an important means of bringing about the transfer that some of us have long hoped would happen in mental health services whereby, instead of having patients who revolve between acute and the community, we could have proper care planning in which people’s mental health needs were addressed by some of the same people, whichever setting they were in. It is not just about trying to preserve a pot of money; it is about trying to keep open a pathway to good and better practice. That is why the noble Lord, Lord Patel, as he always does in this area, has presented the House with a very persuasive argument. I have not yet fully understood why the department feels the need to make the changes that it is making.

[Baroness Wheeler]

My Lords, we fully support my noble friend in his valiant efforts once again to try to get this important issue on mental health aftercare sorted out. We recognise the Government’s concession in removing “the” from subsection (5)(a), but my noble friend is right that there still remains the very real risk that leaving the rest of the subsection in place could lead to local authorities arguing that,

“a need arising from or related to a mental disorder”,

was the requirement only to provide psychiatric, medical and follow-up services.

The statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising from the person’s mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. My noble friend’s amendment would instead define aftercare services as those services that reduce the risk of deterioration in the person’s mental condition and the likelihood of the person requiring readmission to hospital.

It is right that the definition of aftercare services focuses on reducing the likelihood of hospital readmission and does not lead to confusion or legal disputes about a local authority’s role in this or what services should be provided under Section 117 of the Mental Health Act. It is also right that aftercare continues to be viewed as a comprehensive range of generic services across healthcare, social care and other services such as suitable accommodation and community support.

Amendment 128A is a compromise offered by my noble friend that I hope the Government will take up because, as he said, he would prefer to delete Clause 5 entirely, so that the current position in relation to Section 117 remains unchanged. Mind, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association all consider that the best way to avoid confusion over the definition of aftercare is to remove Clause 71(5)(a) altogether.

I hope that the Minister will have some good news for my noble friend and for other Lords who, too, are very frustrated that the mental health aftercare issue has not been laid to rest in the way we thought it had under our discussions as far back as on the Health and Social Care Bill.

Care Bill [HL]

Baroness Barker Excerpts

Wednesday 16th October 2013 Lords Chamber

Moved by

[Baroness Barker]

139: After Clause 76, insert the following new Clause—
“Older Persons’ Commissioner
(1) In the Health and Social Care Act 2008, after section 128 insert—
“Part 2AOlder Persons’ Commissioner128A Establishment of an office of the Older Persons’ Commissioner
(1) There shall be an office of the Older Persons’ Commissioner.
(2) Schedule (The Older Persons’ Commissioner) shall have effect with respect to the Older Persons’ Commissioner.
128B Functions of the office of the Older Persons’ Commissioner
(1) The Older Persons’ Commissioner has the function under this Part of promoting the wellbeing, dignity and respect of older people and safeguarding and promoting their rights and welfare.
(2) In fulfilling their duties under subsection (1), the Older Persons’ Commissioner may review, and monitor the operation of, arrangements falling within subsection (2), (3) or (4) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the wellbeing, dignity and respect, and safeguarding and promoting the rights and welfare of older people.
(3) The arrangements falling within this subsection are the arrangements made by the providers of regulated services in England, or by the Secretary of State, for dealing with complaints or representations in respect of such services made by or on behalf of older people.
(4) The arrangements falling within this subsection are arrangements made by the providers of regulated services in England, or by the Secretary of State, for ensuring that proper action is taken in response to any disclosure of information which may tend to show that, in the course of, or in connection with, the provision of regulated services to older people—
(a) that a criminal offence has been committed;(b) that a person has failed to comply with any legal obligation to which he is subject;(c) that the health and safety of any person has been endangered; or(d) that information tending to show that any matter falling within one of the preceding paragraphs has been deliberately concealed.(5) The arrangements falling within this subsection are arrangements made (whether by providers of regulated services in England, by the Secretary of State or by any other person) for making persons available—
(a) to represent the views and wishes of older people to whom this Part applies; or(b) to ensure the adequate provision to older people of advice and support of any prescribed kind. (6) The Secretary of State may, by regulations confer power on the Older Persons’ Commissioner to require prescribed persons to provide any information which the Older Persons’ Commissioner considers it necessary or expedient to have for the purposes of his functions under this section.
(7) A statutory instrument containing regulations under subsection (5) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
128C Examination of cases by the Older Persons’ Commissioner
(1) The Secretary of State may, by regulations, make provision for the examination by the Older Persons’ Commissioner of the cases of particular older people.
(2) The regulations may include provision about—
(a) the types of case which may be examined;(b) the circumstances in which an examination may be made;(c) the procedure for conducting an examination, including provision about the representation of parties;(d) the publication of reports following an examination.(3) The regulations may, for the purposes of enabling the Older Persons’ Commissioner to examine or determine whether any recommendation made in a report following an examination has been complied with, make provision for—
(a) requiring persons to provide the Older Persons’ Commissioner with information; or(b) requiring persons who hold or are accountable for information to provide the Older Persons’ Commissioner with explanations or other assistance,for the purpose of an examination or for the purposes of determining whether any recommendation made in a report following an examination has been complied with.(4) For the purposes mentioned in subsection (3), the Older Persons’ Commissioner shall have the same powers as the High Court in respect of—
(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad); and(b) the provision of information.(5) No person shall be compelled for the purposes mentioned in subsection (3) to give any evidence or provide information which he could not be compelled to give or provide in civil proceedings before the High Court.
(6) The regulations may make provision for the payment by the Older Persons’ Commissioner of sums in respect of expenses or allowances to persons who attend or provide information for the purposes mentioned in subsection (3).
(7) A statutory instrument containing the first regulations made under subsection (1), (2) or (3) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(8) A statutory instrument that contains regulations made under subsection (6) is subject to annulment in pursuance of a resolution of either House of Parliament.
128D Obstruction
(1) The Older Persons’ Commissioner may certify an offence to the High Court where—
(a) a person, without lawful excuse, obstructs him or any member of his staff in the exercise of any of his functions under regulations made under section 128B(5) or 128C; or(b) a person is guilty of any act or omission in relation to an examination under regulations made by under section 128C which, if that examination were proceedings in the High Court, would constitute contempt of court.(2) Where an offence is so certified the High Court may inquire into the matter; and after hearing—
(a) any witnesses who may be produced against or on behalf of the person charged with the offence; and(b) any statement that may be offered in defence,the High Court may deal with the person charged with the offence in any manner in which it could deal with him if he had committed the same offence in relation to the High Court.128E Further functions
(1) The Older Persons’ Commissioner may, in connection with his functions under this Part give advice and information to any person.
(2) Regulations may confer power on the Older Persons’ Commissioner to assist an older person—
(a) in making a complaint or representation to or in respect of a provider of regulated services in England; or(b) in any prescribed proceedings.(3) For the purposes of subsection (2), assistance includes—
(a) financial assistance; and(b) arranging for representation, or the giving of advice or assistance, by any person.(4) Regulations under subsection (2) may also provide for assistance to be given on conditions, including (in the case of financial assistance) conditions requiring repayment in specified circumstances.
(5) Regulations may, in connection with the Older Persons’ Commissioner’s functions under this Part, confer further functions on the Commissioner.
(6) Regulations may, in particular, include provision about the making of reports on any matter connected with any of his functions.
(7) Apart from identifying any person investigated, a report by the Older Persons’ Commissioner shall not—
(a) mention the name of any person, or(b) include any particulars which, in the opinion of the Older Persons’ Commissioner, are likely to identify any person and can be omitted without impairing the effectiveness of the report,unless, after taking account of the public interest (as well as the interests of any person who made a complaint and other persons), the Older Persons’ Commissioner considers it necessary for the report to mention his name or include such particulars.(8) For the purposes of the law of defamation, the publication of any matter by the Older Persons’ Commissioner in a report is absolutely privileged.
(9) In subsection (1) of this section “proceedings” includes a procedure of any kind and any prospective proceedings.
(10) A statutory instrument containing the regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
128F Restrictions
(1) This Part does not authorise the Older Persons’ Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by, a court or tribunal.
(2) This Part does not authorise the Commissioner to exercise any function which by virtue of an enactment is also exercisable by the prescribed person.
128G Interpretation
(1) For the purposes of this Part “regulated services” has the same definition as “regulated activity” in section 8 of this Act as they relate to older people.
(2) This Part applies to any older person normally domiciled in England.”
(2) After Schedule 5, insert the following new Schedule—
Schedule 5AThe Older Persons’ CommissionerStatus1 (1) The Older Persons’ Commissioner is to be a corporation sole.
(2) The Older Persons’ Commissioner is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Older Persons’ Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.
Appointment and tenure of office2 Regulations may make provision—
(a) as to the appointment of the Older Persons’ Commissioner (including any conditions to be fulfilled for appointment);(b) as to the filling of vacancies in the office of Commissioner;(c) as to the tenure of office of the Older Persons’ Commissioner (including the circumstances in which he ceases to hold office or may be removed or suspended from office).Remuneration3 The Secretary of State shall—
(a) pay the Commissioner such remuneration and allowances; and(b) pay, or make provision for the payment of, such pension or gratuities to or in respect of him, as may be provided for under the terms of his appointment.Staff4 (1) The Commissioner may appoint any staff he considers necessary for assisting him in the exercise of his functions, one of whom shall be appointed as deputy Commissioner.
(2) During any vacancy in the office of Commissioner or at any time when the Commissioner is for any reason unable to act, the deputy Commissioner shall exercise his functions (and any property or rights vested in the Commissioner may accordingly be dealt with by the deputy as if vested in him).
(3) Without prejudice to sub-paragraph (2), any member of the Commissioner’s staff may, so far as authorised by him, exercise any of his functions.
General powers5 (1) Subject to any directions given by the Secretary of State, the Commissioner may do anything which appears to him to be necessary or expedient for the purpose of, or in connection with, the exercise of his functions.
(2) That includes, in particular—
(a) co-operating with other public authorities in the United Kingdom;(b) acquiring and disposing of land and other property; and(c) entering into contracts.Reports6 Regulations may provide for the Commissioner to make periodic or other reports to the Secretary of State relating to the exercise of his functions and may require the reports to be published in the manner required by the regulations.
Accounts7 (1) The Older Persons’ Commissioner must keep accounts in such form as the Secretary of State may determine.
(2) The Older Persons’ Commissioner must prepare annual accounts in respect of each financial year in such form as the Secretary of State may determine.
(3) The Older Persons’ Commissioner must send copies of the annual accounts to the Secretary of State and the Comptroller and Auditor General within such period after the end of the financial year to which the accounts relate as the Secretary of State may determine.
(4) The Comptroller and Auditor General must examine, certify and report on the annual accounts and must lay copies of the accounts and of his report before Parliament.
(5) In this paragraph “financial year”, in relation to the Older Persons’ Commissioner, means—
(a) the period beginning with the date on which the Older Persons’ Commissioner is established and ending with the next 31st March following that date; and(b) each successive period of twelve months ending with 31st March.Payments8 The Secretary of State may make payments to the Older Persons’ Commissioner of such amounts, at such times and on such conditions (if any) as he considers appropriate.
General9 In the House of Commons Disqualification Act 1975, in Part III of Schedule 1 (certain disqualifying offices), the following entries are inserted at the appropriate places—
“Older Persons’ Commissioner.”“Member of the staff of the Older Persons’ Commissioner.”10 In the Northern Ireland Assembly Disqualification Act 1975, the same entries as are set out in paragraph 9 are inserted at the appropriate places in Part III of Schedule 1.
11 (1) Regulations may provide that the office of Older Persons’ Commissioner shall be added to the list of “Offices” in Schedule 1 to the Superannuation Act 1972 (offices etc. to which section 1 of that Act applies).
(2) The Secretary of State shall pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of any increase attributable to provision made under sub-paragraph (1) in the sums payable out of money provided by Parliament under the Superannuation Act 1972.””

[Baroness Barker (LD)]

My Lords, given the hour I do not intend to detain the House for long, but I want to return to the subject of an older person’s commissioner, an issue raised so eloquently by the noble Baroness, Lady Bakewell, at an earlier stage in our deliberations. I do so for the same reason that many noble Lords have raised issues in connection with this Bill. The issues remain the same, but the legislative landscape is changing quite considerably, and the practical nature of services for people who will be affected by the Bill is also changing radically. Given these immense changes, coupled with the demographic developments that we know about, it is important to remind ourselves that there are still some gaps in the representation and protection of vulnerable groups in our society that need to be addressed.

I have not been involved in the Children and Families Bill, which I regret somewhat, and particularly today because the Grand Committee has been talking about the establishment of a children’s commissioner for England. Earlier on I looked at the proposal in some detail. It seeks the establishment of a person who is not a Crown employee and whose job will be to promote and protect the rights of children, and to have regard to the UN Convention on the Rights of the Child. Their primary job is to involve children who are living away from home or are in social care and to make known their views about their care. They do that by taking a systematic and thematic view of what is happening, and their job is to speak to government with the overall aim of improvement.

There is nothing there which is not needed by older people. I am going to talk about the fact that there is a raft of other bodies which have statutory duties in relation to older people, but there is a raft of bodies which have responsibilities in relation to care of children—not least of which is Ofsted. Despite children’s rights being perhaps more strongly enshrined in law, as they have been since the Children Act, we still need a Children’s Commissioner. The fact remains that we need an older person’s commissioner, too. We need somebody to be an advocate, to include older people and to talk to government. I do not want to pre-empt anything that might happen in your Lordships’ House tomorrow, but the report of the noble Lord, Lord Filkin, is being debated. It sets out in fairly stark terms how ill prepared government is for the implications of an ageing society.

Had another group of amendments before us on Report been dealt with in a different way, I might have rowed back. Your Lordships’ House decided the other day not to give powers of entry in cases where there is good reason to suspect that older people are being abused. I believe as firmly and as strongly as the noble Baroness, Lady Greengross, that that is absolutely wrong. If we are not going to give powers of entry in cases of abuse, then there is a case for there being an older person’s commissioner to raise those issues and gather evidence. Let us be in no doubt there will be further, tragic cases of elder abuse, and in the wake of them there will be calls for something to be done. Well, I think that something can be done now in the form of this proposal.

When we next convene to discuss this Bill on Report, we will turn our attention to some amendments tabled by the noble Earl, Lord Howe, on behalf of the Government about the appointment of the chief inspectors. The appointment of chief inspectors as officers within the CQC is welcome. It is welcome that there is going to be a Chief Inspector of Hospitals; it is a good thing that there is going to be Chief Inspector of Adult Social Care—I imagine that we have begun to receive information from the Chief Inspector of Adult Social Care, who took up her position this week. But let us be in no doubt that, however independent, experienced and formidable are the individuals, their role is limited. The CQC investigates merely licensed providers; it does not even investigate pathways of care. We know that the majority of care and help in the future will take place in the community—that is where the bulk of older people will be. Those chief inspectors will have but a very limited role, however welcome is their appointment.

If I were in the Minister’s shoes, I imagine that I would question whether the cost of setting up a commissioner makes it a valid thing to do. I sincerely hope that we will very soon be able to gather evidence from the commissioners, particularly the Older People’s Commissioner, in Wales. I know it has not been set up with this particularly in mind but I hope that somebody, somewhere, begins to research the economic benefit of having an older persons’ commissioner. We are going to have to look at the whole economics of ageing in a completely different way. The post of a commissioner could be very important and it would help if we started to move Government along to seeing older people as potentially economic assets in our country as well as people who need services. With that in mind, I beg to move.

[Baroness Bakewell (Lab)]

I rise to support this amendment as I think the House would expect me to because I put forward a similar amendment during the passage of the Health and Social Care Bill.

So here we are again. Time rolls on. I want to refer to the annual report I wrote in 2008-09 about the job I had as the Voice of Older People. I wrote that the job had proved a bombshell. Within hours of the announcement being made responses began. Letters, encounters, meetings and seminars showed me the range of cares particular to older people. At that time equality was my agenda and the issues were about the promotion of things such as equality in retirement, pensions and equal pay. However, concerns rapidly expanded. In no time at all I was being inundated with dilemmas about care homes, housing, rent levels and public loos. Expatriates were writing to me about claiming their pensions. End-of-life treatment was on the agenda again.

This agenda has not gone away. It is growing and it will go on doing so. We will hear tomorrow about the implications of the demographic and right now we are awaiting the ramifications of the Dilnot report. There is a campaign to get older people online, led by the noble Baroness, Lady Lane-Fox. There are concerns about fuel prices. I have recently read that E.ON, with which I have a special deal for a limited price because I am old, is withdrawing that favour from older people. Why? Breast cancer is very much on the agenda for older people. The risk improves the older you get but it does not reduce after 70 or 75. It goes on being a killer and becomes more seriously so.

Which Bill that will come before the House can encompass this vast agenda of the entire population that is growing old? This is a very difficult problem for the matter of law. We need a commissioner who can embrace housing, pensions, health, welfare and money. We need someone who can listen. The main thing about a commissioner is that they are not the spokesman for the established government—they are about us. They speak to government about what it is we want, what it is we would like, and on what we need guidance. The agenda is huge.

I am well aware that there is a multitude of charitable organisations that deal with all sorts of this fragmented agenda. I pay particular tribute to Age UK which is very, very strong in dealing with these issues, but what we need is for our complaints to be funnelled through an individual who belongs on the side of the old, who addresses the rest of the community about all these issues. I know that the Minister knows that the agenda is a wide one. What we need to know is where we can place this need—on which Bill and in which House? I support the amendment.

--- Later in debate ---

[Earl Howe]

My Lords, I am grateful for the opportunity to discuss this extremely well crafted amendment, which proposes the establishment of an older persons’ commissioner. Our ambition is to make this country one of the best places to grow old in and I begin by saying that I have some sympathy with the intention behind the amendment; to ensure that older people receive the high-quality care they need and also to support them to use the complaints system effectively when things go wrong. However, disappointingly for the noble Baronesses, I cannot subscribe to the solution that is proposed in the amendment. The main reason for this is that the provisions contained in the amendment are, by and large, covered by work already being undertaken elsewhere. The interests of service users are already protected through a number of routes.

I begin by citing the role of the CQC. The Care Quality Commission’s role is to ensure providers of regulated activities in England provide people with safe, effective, compassionate and high-quality care. The new chief inspectors for hospitals, adult social care and general practice will champion the views of patients and service users and judge the quality of care. Then, separate from the CQC, the new chief social worker will ensure that social work practice is directly inputting into policy development and we now have Healthwatch, whose function it is to represent service users’ views. If noble Lords look at what we are doing in the Bill, new statutory obligations are being introduced, such as the duties to establish safeguarding adults boards and to undertake safeguarding inquiries and/or reviews. We also have the government amendment to require independent advocacy in certain cases.

Looking beyond the Bill, the vulnerable older people’s plan is working towards having an accountable clinician to ensure proactive care planning for older people and those with the most complex needs. Furthermore, we want older people to have a major voice in issues that affect them. The Minister for Care and Support and the Pensions Minister take part in the UK Advisory Forum on Ageing. This group gives Ministers the opportunity to engage with and hear directly from older people on the key issues affecting them. I suggest that all these steps, taken together, go a considerable way towards addressing the concerns at which the amendment is aimed, but I need to be clear that, to minimise the impact on the public purse, we would not envisage setting up a new public authority alongside those functions.

My noble friend Lady Barker asked why we should not have an older persons’ commissioner since there is a children’s commissioner? If an older persons’ commissioner were established, the supporting structure would potentially be very large and would cost significantly more than the children’s commissioner. This is not only because of the comparatively larger number of older people who receive services compared to children, but also because the amendment confers a wider range of functions on the older persons’ commissioner than the children’s commissioner.

Michelle Mitchell, former director-general of Age UK said last year:

“For us it’s not just about having a commissioner; it’s about ensuring that older people’s issues are central to the mainstream – not only the government agenda, but business and the public sector as a whole”.

I support that view. What matters, surely, is what is actually happening and whether the system is pulling together to make it happen. We want to ensure, quite simply, that issues affecting older people are at the heart of government business. I am happy to explore ways to further enhance the voice of older people, although without creating additional costly bureaucracies. On that basis, I hope that the noble Baronesses will feel somewhat comforted that there is a lot going on to protect the interests of older people and that my noble friend will therefore feel able to withdraw the amendment.

[Baroness Barker]

My Lords, I thank the Minister for his characteristically comprehensive response and I am in complete agreement with him: there is a great deal going on, much of which is valuable and effective. I return to the central issue: I am not convinced that there is coherence, either within government, across government or in government interactions with the private and voluntary sectors and with local government. That is the issue to which I will return, and it is a point that the noble Baroness, Lady Bakewell, has made so eloquently.

I accept that this amendment is not perfect; it was crafted in order to bring the older persons’ commissioner within the scope of the Bill but it is not ideal. I thank the Minister for his response. We will continue to work away at this issue, I have no doubt. I beg leave to withdraw the amendment.

Amendment 139 withdrawn.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, the Opposition strongly support the thrust of the Francis report in its determination that the NHS be honest with patients who have been harmed. I very much echo the comments made by the noble Baroness, Lady Masham, in describing why we need an open culture. I welcome government Amendment 140. It is very important; we welcome the duty of candour being placed in the Bill. The amendment is less detailed than my own and will rely on regulations, as the noble Earl, Lord Howe, has said. The important thing is to get this in the Bill.

I have a couple of questions for the noble Earl. First, can he confirm that the regulations will be affirmative? Secondly, in considering the regulations, will he look at the issue of the threshold? For instance, the regulations might restrict the statutory duty of candour to cases that could be described as of severe harm or fatal; or it might go wider. In his report, Robert Francis used the word “serious”. Clearly, there is a distinction between severe harm and seriousness, but most patients and their relatives, or anyone involved in anything that could be described as a serious case, would wish the organisation in the health service to be as open as possible about what had happened.

These are not easy issues; but it is noticeable that the being open guidance is clear that cases of moderate harm and above must be disclosed. The NHS constitution does not put any limit on the level of harm that would be disclosed. I do not expect the noble Earl to respond to the detail of those questions tonight, but in drafting the regulations it would be reassuring to know, first, that consultation will take place with patient groups on the contents of those regulations before they are published and, secondly, that the question of the threshold by which the seriousness of the case would come within the regulations will be given very great consideration.

I should—at the end of the day rather than the start—declare my interest. I remind noble Lords of the interest I declared two days ago.

[Baroness Barker]

I have a quick follow-up to the question of the noble Lord, Lord Hunt of Kings Heath. Sir Robert Francis’s recommendations were clear that the duty of candour should apply where death or serious harm “may have been caused” or were believed or suspected to have been caused. That is an important distinction; it is not merely playing with words. When the Minister comes to respond, perhaps in writing, will he say whether that point will be covered in regulations?

[Earl Howe]

My Lords, I am sure that we are all aiming for the same effect and that there is little difference in the approach that we are taking. The amendment of the noble Lord, Lord Hunt, is drafted as a stand-alone duty: it would place a duty of candour on providers, but it would operate outside of the CQC registration system. As such, it is not clear who would enforce the duty of candour or what would be the consequences for a provider who did not observe the duty.

Introducing the duty as a requirement for registration with the CQC comes with a ready-made enforcement vehicle, including the power to prosecute providers who do not meet the duty. In Committee, we explained why this is our preferred approach. It would give the flexibility to develop the duty in consultation with service users and carers. I can indeed confirm that patient groups will be included. The duty itself will have the same legal power in secondary legislation as it would in primary legislation.

We are making real progress in taking this forward. In the summer, the CQC consulted on plans to introduce a duty of candour set through its registration requirements. The CQC is due to publish the findings from the consultation shortly. The department plans to consult on a draft regulation later in the autumn. I assure noble Lords that both I and my officials would be pleased to discuss the content of the draft duty of candour regulation with them in detail as we develop the final regulation. I confirm to the noble Lord, Lord Hunt, that these will be affirmative regulations.

On the threshold, both the Francis and the Berwick reports recommended that the statutory duty of candour for CQC-registered providers should apply in instances of death or serious injury/incident. There is a balance to be struck. We accept the Berwick report finding that an automatic duty of candour covering every single error could lead to defensive documentation and large bureaucratic overheads that would distract from care.

I hope that my amendment reassures noble Lords of our strong commitment to introducing a duty of candour and that they will feel able—