Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2022

Debate between Baroness Wheeler and Baroness Brinton

Tuesday 8th February 2022 Grand Committee

[Baroness Brinton (LD) [V]]

My Lords, first, I thank the technical wizards who have mended the problem with the link to the Grand Committee so that I can contribute remotely. This sort of thing happens only very occasionally, and the smoothness with which most of the business goes on is extremely helpful. I am very grateful to them.

The Explanatory Memorandum says that these regulations are to ensure protection from Covid, and the Minister has explained why there is a requirement to extend the deadline for the department to carry out a review of the CQC regulations. However, why are a further three years needed? Perhaps he can explain how there will be accountability between now and then to enable the House and Parliament to see the progress. Given that we are talking about three years, will he undertake to provide your Lordships’ House with an interim report on progress? If it takes the full three years, can that be on an annual basis?

Finally, and perhaps most importantly, can the Minister outline how the review fits in with ongoing reforms such as the Health and Care Bill, which will come to the end of Committee tomorrow, and other social care reforms? Will it keep pace with all those new developments?

I want to add one other item. The Minister knows that, when we had the Statement in the Chamber last Thursday, I asked him why care homes had not yet received the details of the change of rules about the compulsory vaccination of staff. He kindly said at the Dispatch Box that he did not have the answers to hand but would write to me and my noble friend Lord Scriven, who also asked questions about this that day. I do not appear to have had anything. Given that this covers care homes and keeping patients safe, I wonder whether I can ask again.

On Wednesday afternoon, the director-general for adult social care wrote to providers of CQC-regulated adult social care activities about the removal of vaccination as a condition of deployment. Unfortunately, the problem is that it specifically excludes care homes. I believe we know that the problem exists in regulations that need to be revoked, but can the Minister explain to the Grand Committee exactly what the problem is? Clearly, reading that letter from the director-general at face value, care homes are sitting in a limbo which no other parts of the NHS or the wider settings for care are in, in that they should be applying compulsory vaccination.

The Minister said on Wednesday that the intention was quite clear. Unfortunately, this affects care homes, because it is to do with employment law. I know that some care homes have already been approached by staff they had to sack, asking whether they can have their jobs back, while they are still waiting to hear formally from government about when the revoking of the regulations will come into force. I hope the Minister can answer my question on this.

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for introducing this SI on Care Quality Commission registration, somewhat at the 11th hour before the current 2014 regulations run out on 31 March 2022. Of course, we fully support their extension beyond that date so that all providers of health and social care in England will continue to be required to register with the commission and to comply with the high patient safety and care quality standards it sets.

The SI is very brief and to the point, with the proposed extension to 31 March 2025 the only amendment to the 2014 regulations, and the activities regulated by the CQC and the fundamental standards with which all CQC-registered providers must comply all unamended and unchanged.

Like the noble Baroness, Lady Brinton, I fully understand the impact of the pandemic on the CQC’s capacity to undertake the full range of its work, but the Minister needs to explain why the extension of the regulations is for another three years, to 31 March 2025. Why so long? The Explanatory Memorandum says the extension is to

“allow the Government to review the 2014 Regulations to determine”

whether the scope of its current regulated activities

“is still proportionate to ensure that regulated activities are delivered safely to a high standard.”

The CQC’s role as regulator and the fundamental standards that it sets to ensure high-quality care are crucial. According to the Minister proposing the SI in the Commons on 26 January, time is needed

“to reform and consider the regulations more fully”.—[Official Report, Commons, 26/1/22; col. 8.]

This is a major review being undertaken by government, and we need to know much more about its extent and purpose. Why are three more years necessary to undertake this review? Can the Minister explain why, given its vital importance, the review cannot be undertaken in a shorter timeframe? What are the timescale, scope and terms of reference of the review? How are all stakeholders, including providers and patient organisations, to be consulted and involved?

As the Minister knows, under the Health and Care Bill currently in your Lordships’ House, the CQC is to take on the not inconsiderable additional duties of reviewing and assessing ICBs and the performance of local authorities in the delivery of adult social care. To what extent will consideration of the impact of this extended role be included in the review, including the significant additional resources that the CQC will need to undertake these new areas of responsibility?

We are less than two months away from when the current regulations expire, and we fully recognise the urgent necessity of this SI to ensure that the CQC’s vital role and that work will continue. I also look forward to the update that the noble Lord will provide on the questions raised by the noble Baroness, Lady Brinton, about care homes and last week’s decision on the mandatory vaccination of staff.

Health and Care Bill

Debate between Baroness Wheeler and Baroness Brinton

Lords Hansard - Part 2 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I am speaking in support of the amendments in the name of the noble Baroness, Lady Bennett, starting with Amendment 46. After many helpful discussions both today and earlier on in Committee looking at membership, structures and representations of ICBs, these amendments take us back to the first principles and ask your Lordships’ House to look at what should be in scope for the provision of NHS services. This is a really valid question.

The noble Baroness, Lady Bennett, referred to maternity services, but if I were to pick one of the services listed in Amendment 169, it would be dental services. There are millions of people in the country who cannot access an NHS dentist. The result is a worsening of dental health, which is especially worrying for children and young people. I am sorry to say that, over the years, Ministers have ignored the wider needs of the public regarding dental services. I think the point about specifying the provision of services such as this puts a very particular duty on the Secretary of State to force Ministers to make sure that they are also holding other parts of the health service to account.

The amendments turn our focus on to whether we still have an NHS that is a public health system or one that perhaps is paid for mainly by the public but run by a disparate number of bodies, including unaccountable private companies increasingly not based in the UK. They are particularly important in light of the report today in the press that the Secretary of State is planning to create the equivalent of school academies for failing hospitals and says that there will be a White Paper in due course. Just as an aside, do we need yet more reforms? Surely it would have been better to have a full range of Green Papers with an overarching vision of what the NHS in the 21st century should look like and how the structures should work. We are now waiting for two White Papers, while the passage of this Bill is irrevocably changing the structures of our NHS system.

Today’s announcement rings a number of alarm bells because there is an analogy with the education sector that is quite helpful. I remember that, in the 1990s, academies were going to be free from local authority control and that that, on its own, would inevitably make them improve—but that has not been the case. Various reports over the last 20 years have shown that a number of failing schools taken into multi-academy trusts and free schools have remained low performing. Structures on their own do not necessarily resolve this. Indeed, some multi-academy trusts have failed in their entirety, and one of their issues is the lack of public accountability—because Ministers have direct responsibility in the public realm for academies, and I worry that the Secretary of State may be proposing the same. If I was a senior leader in NHS England, I would be very concerned about that.

I am grateful for the earlier comments of the noble Earl, Lord Howe, on the need for Ministers to have the ability to appoint and, presumably, remove senior personnel on ICBs. But would the Secretary of State have responsibility for these academy equivalents and give them the right to access separate funding for capital expenditure and special projects? I raise this because part of the problem that we have at the moment is a diversity of funding mechanisms, structures and strands, which often take the eye of a leader—whether a Minister or one in the NHS—away from the provision of services.

The foundation of a public system was essentially removed by the 2012 Act, and, as the noble Baroness, Lady Bennett, said, the Constitution Committee suggested that there needed to be an interim remedy. It is important that we have reassurance that this Bill will not weaken it any further at all. I hope that the Minister can reassure your Lordships’ House that the Government want to protect the provision of NHS services, as part of a truly public health service.

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Baroness, Lady Bennett, for moving her amendment and other noble Lords for their contributions, particularly on the specific points about particular services, such as dentistry. All three amendments look back to the Health and Social Care Act 2012 and the National Health Service Act 2006 on the powers and duties of the Secretary of State in relation to the NHS and the services that it provides, restoring certain provisions in the 2006 Act.

Under the Bill, the ICBs and NHS England will have the duties to secure the provision of the services that make up the comprehensive NHS. There are probably noble Lords here today who were Members of your Lordships’ House in 2006. I came in in 2010, just as the equally marathon Health and Social Care Act from the coalition Government got under way, when the whole issue of the Secretary of State’s powers and duties came to the fore. As explained at the time, the aim was to separate the political from the operational responsibility and to better align the language to the reality of the purpose of the NHS, in “securing the provision of services”.

The arguments in 2010 and 2011 were fierce and passionate, centred around the subtle changes in the way that the duties were defined, as compared to the words in Sections 1 and 3 of the 2006 Act. They caused suspicion, confusion and fears that the NHS would be changed forever. These arguments remain a bit of a blur in my memory, but I recall the overwhelming view among leading experts on NHS law that the changes were technical and did not involve any substantial change in practice. We know that, in respect of this role, no change has happened.

I also recall the 2012 consideration of the issue by our Constitution Committee and the compromise recommendation subsequently adopted in the 2012 Bill of what became Section 1(3) of the 2006 Act, as amended:

“The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.”


No matter what is in any Act, this is and will always be the political reality.

Currently, the law places the duty on the Secretary of State to

“continue the promotion in England of a comprehensive health service designed to secure improvement … in the physical and mental health of the people of England, and … in the prevention, diagnosis and treatment of physical and mental illness”—

very much in the spirit of the NHS’s founding 1946 Act.

Amendments 46 and 168 seek to continue the 2006/2012 debate. It was claimed about the 2012 Act, and now about this Bill, that the change in wording implies that people will be denied access to treatment from the NHS because, for example, a particular ICB decides to exclude a service and because there is no duty on the Secretary of State to prevent this happening. However, there is no evidence that anyone has ever been denied access to an NHS service or that any service has been refused in general simply because of the change in the wording of the responsibilities of the Secretary of State. Amendment 169 returns to the same point, seeking to place a duty on the Secretary of State to “provide” a list of services, with some general headings such as ambulance services. But the reality is that this is not how the NHS functions or indeed ever has.

I endorse many of the comments made by the noble Baroness, Lady Brinton, about today’s announcement of yet another restructuring on the academy front, but, again, that is a debate for another day.

We could go back on the Secretary of State issue to the 2012 arguments and spend a lot of time on it. While we fully understand the concerns and fears that the current wording could engender among those who suspect a deeper reason for the changes in language, continuing to argue over this issue would not be very productive or get us anywhere. We need to get on with scrutinising the sweeping delegated and Henry VIII powers later in the Bill that our current Constitution Committee and Delegated Powers Committees have expressed such deep concern about.

David Fuller Case

Debate between Baroness Wheeler and Baroness Brinton

Tuesday 9th November 2021 Lords Chamber

[Baroness Wheeler (Lab)]

I thank the Minister for the Statement and its contents, and I fully welcome the Government’s announcement of an independent inquiry into this unspeakably vile and horrific crime. Across the House, our thoughts and hearts go out to the families of Wendy Knell and Caroline Pierce and those with deceased loved ones. These 100 victims—we are talking about the corpses of 100 women—were, as has been reported in the press, violated in the most monstrous, vile and sickening way.

Will the Secretary of State confirm that all the families impacted will have immediate access to the psychological counselling and support that they need? Will NHS staff at the hospital, many of whom will themselves be devastated, also have access to appropriate counselling and support? What steps are being taken to identify the 19 victims yet to be identified?

I also pay tribute to local Members of Parliament across Kent and Sussex who have spoken up on behalf of their communities in recent days. ln particular, the MP for Tunbridge Wells, Greg Clark, said over the weekend that authorities and politicians must

“ask serious questions as to how this could have happened and … establish that it can never happen again.”

This is why the inquiry is so crucial. Can the Minister set out its timetable and say when the terms of reference will be published? Can he confirm that its remit will allow it to make recommendations for the whole NHS, as well as for the local NHS trust?

Fuller was caught because of a murder investigation, which in itself prompts a number of questions about the regulation of mortuaries. The Human Tissue Authority, which regulates hospital mortuaries, reviewed one of the mortuaries in question as part of its regulatory procedures. It raised no security concerns, but found a lack of full audits, examples of lone working and issues with CCTV coverage in another hospital in the trust. Will the inquiry look at the way in which the HTA reviews hospital mortuaries, as well as its standards and how they are enforced? Will it be asked to recommend new processes that the Secretary of State will put in place if it is found that a mortuary fails to meet the necessary high standards for lone workers, security and care? If the HTA’s role is not to be included in the inquiry, how will this work be undertaken by the Government and within what timescales?

The requirement for NHS trusts to review their procedures and ensure that they are following current HTA rules and guidance is very welcome. This procedure must include the requirement for all mortuaries to document and record the access of all staff and visitors entering a mortuary, ensure that CCTV is in place comprehensively across all mortuaries, and that CCTV standards on usage and access records are fully enforced. Can the Minister confirm this? What is the timeframe for hospitals to adopt the extra rules that have been announced on CCTV coverage, swipe access and DBS checks in every single hospital and mortuary? Can the Minister confirm whether this will be guidance or a statutory requirement? There are, of course, other premises where dead bodies are stored, such as funeral directors, that do not fall under the regulatory remit of the Human Tissue Authority, so will the authority’s remit be extended? Will the inquiry look at regulations for other premises where bodies are stored?

The Minister will agree that the conduct of the inquiry itself will be very important for victims’ families. Will they be allowed to give evidence on the devastating impact that the crimes have had on them? When our loved ones are admitted into the hands of medical care, that is done on the basis of a bond of trust that they will be cared for when sick and accorded dignity in death. That bond of trust was callously ripped apart here. I repeat the offer from our shadow Secretary of State, Jonathan Ashworth, to work with the Secretary of State to ensure that something so sickening never happens again.

[Baroness Brinton (LD) [V]]

[Inaudible]—but that such a prolonged period of abuse was able to take place without it being noticed. We echo the sincere condolences to the families and friends of Wendy Knell and Caroline Pierce, as well as the many families and friends of those whose bodies David Fuller so foully desecrated.

The Statement says that the families and friends will have access to mental health support and counselling. That is good, but can the Minister confirm that it will be available for as long as they need it and will not be time limited? Will the staff at the mortuaries and hospitals, as well as the police and the over 150 family liaison officers involved in this case, also have access to counselling? They too have had to deal with this very distressing series of events.

We must obviously be very careful in our discussions today pending the sentencing of David Fuller, but we welcome the Secretary of State’s announcement for the upgrading of the trust’s independent review to an independent inquiry, to be chaired by Sir Jonathan Michael.

In August 2018, the Health Service Journal reported that 58 mortuaries that had been inspected in 2017-18 revealed that more than 500 “shortfalls” were exposed during that period. Worryingly, that included eight critical failings. At that time, the Human Tissue Authority as regulator and the various other regulated bodies undertook to look at the large increase in failings that year and to review practice. What actions were taken following those 2017-18 reports and were measures on access by staff to mortuaries among them? I ask this because, looking at the Human Tissue Authority’s codes of practice online, almost the entire focus seems to be on those whose role is to be involved with bodies. In Code A: Guiding Principles and the Fundamental Principle of Consent, the only reference I can find that does not relate to those with direct responsibilities for bodies is in paragraph 14 on page 7, which begins:

“Quality should underpin the management of human tissue and bodies.”


It goes on to say that this means that:

“practitioners’ work should be subject to a system of governance that ensures the appropriate and safe storage and use of human tissue and which safeguards the dignity of the living or deceased”,

and that

“premises, facilities and equipment should be clean, secure and subject to regular maintenance”.

One of the concerning issues relating to this case is that Mr Fuller ceased to be an employee of the Tunbridge Wells health authority in 2011 when the maintenance contract was subcontracted out. Will the inquiry look at not just whether employees of subcontractors working in sensitive areas are subject to DBS checks but whether there is a duty on their employer to report any findings to the hospital, or in this case the mortuary? Mr Fuller had a previous criminal record, but it is reported that the hospital did not know this.

There is another issue which I have not heard referred to either here or in the Statement in another place yesterday, and that is our criminal justice system’s approach to the desecration of bodies. The respected criminologist Professor Jason Roach from Huddersfield University has analysed the policing of and law in Britain towards necrophilia. He found an almost complete absence of case studies, which is not true in the rest of the world. Indeed, it was not until the Sexual Offences Act 2003 that necrophilia became a criminal offence in its own right, but he says there is no evidence that anyone has ever been prosecuted. He reports that, as part of his research in 2016, he was told by one senior police officer that it was very unlikely that the police would ever urge the Crown Prosecution Service to charge an offender.

One hypothesis that Professor Roach explores in his 2016 work “No Necrophilia Please, We’re British” is that

“the attitude of the British criminal justice system towards necrophilia echoes that of the British public, i.e. one of embarrassment, whereby those caught are either not charged with a criminal offence or, perhaps for the sake of the deceased’s family, are charged with a less degrading offence such as grave robbing. Both routes will produce less attention-grabbing stories”.

Can the Minister say if the review will look at police and criminal justice system attitudes towards necrophilia or other forms of desecration of bodies? One of the deeply unsatisfactory legacies of Jimmy Savile’s extended abuse is the suspicion of his undertaking such activities. However, perhaps through embarrassment, there has been no real examination of that case and the cultures of the places where he was able to have access to the dead.

Can the Minister say if any lessons learned so far will be reported and implemented straightaway, before the full independent inquiry reports, to give the public confidence that hospital mortuaries are safe and secured? As ever, if the Minister does not have any of the answers to my questions to hand, please will he write to me with them?

Coronavirus

Debate between Baroness Wheeler and Baroness Brinton

Monday 3rd February 2020 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for repeating the Statement and once again pay tribute to the medical, public health and NHS staff who are working so hard to deal with this crisis, both in the UK and internationally. Last week, the Minister underlined the importance of all public health authorities and the NHS working closely together to ensure clear co-ordination. Now that the World Health Organization has declared the virus a public health emergency of international concern, this is more important than ever.

As we have heard, 93 British nationals have now been repatriated to the UK and transferred to a dedicated NHS facility in the Wirral as a precautionary measure. Can the Minister update us on the health and well-being of those people in quarantine? There have also been reports that 15 health workers have been diagnosed in China. We know that the virus mainly spreads through contact with an infected person. Can the Minister outline what protections are in place for health workers, particularly for those in the Wirral and in Newcastle, who are in close contact with those in incubation?

One of the disturbing findings from the early stages of the virus so far has been reports that a number of the people who have sadly died had pre-existing conditions. Does the Minister have any further information on this, including on the particular types of pre-existing conditions and what steps will be taken here to advise and support these very vulnerable people in the UK?

On vaccine development, there have been suggestions that human trials of a vaccine could start soon and be progressed with unprecedented speed. I welcome the reference to this in the Statement. The Times today reports that the head of the Coalition for Epidemic Preparedness Innovations has mentioned that an investigational vaccine from gene sequencing of the pathogen through to clinical testing could happen in 16 weeks, with the earliest stages of clinical trials taking two to four months. We welcome the Government’s £20 million contribution to the coalition’s research to speed up development of a vaccine. Has the Minister any specific further information on how quickly they expect the vaccine to be available and ready to distribute?

The Minister will be aware that many east Asian people living in the UK have reported being the target of racist abuse linked to the outbreak, while Chinese businesses are suffering from bogus claims that Chinese culture is to blame for the coronavirus. Their community leaders have expressed concern about repercussions, as Chinese students, workers and tourists in Europe become a focus of fear and confusion about the virus. What steps are the Government taking to combat racism, stereotyping and making assumptions during the outbreak of the virus?

Finally, we fully support the Government’s public information campaign centred on simple preventive measures to minimise the risk of the virus spreading, such as by washing hands and using tissues when you sneeze. Can the Minister reassure the House that the campaign will be proportionate to the risk currently faced by the general UK population? While we need to alert the public, we all want to avoid causing unnecessary stress or creating a panic.

[Baroness Brinton (LD)]

I echo the thanks to medics, staff involved in logistics and especially the scientists working so rapidly to sequence the genome of the coronavirus. I support many of the points made by the noble Baroness, Lady Wheeler.

Our concerns are more about some of the very practical arrangements and the fact that the UK seems to be responding 24 or 48 hours behind some other countries. I note the Statement says that

“anyone who has travelled from Wuhan or Hubei province in the last 14 days should immediately contact NHS 111 to inform it of recent travel.”

It also says:

“Anyone who has travelled to the UK from mainland China in the past 14 days and is experiencing a cough, fever or shortness of breath should self-isolate”.


It is interesting that the Philippines, New Zealand, the USA, Singapore and Australia are now barring all foreign nationals from mainland China from entering their countries at all. I know that the World Health Organization is not yet saying that we should follow that, but I noticed that a report at the weekend said that about 340-odd people had come in from Wuhan just before the arrangements were put in place and that the Department of Health was now trying to track these people. Given that we now know that the disease can infect people prior to symptoms emerging, has the Department of Health been able to identify those people who arrived prior to the Government’s arrangements being put in place? Do the Government now have absolutely clear procedures to identify people coming not just from Wuhan and Hubei province but from mainland China so that they can contact them urgently if there are issues? Is everyone travelling in from China getting specific advice about who to contact and what to do?

Finally, what are the numbers of cases in regions outside Hubei? The press is reporting that at least 24 provinces, municipalities and regions in China have now told businesses not to resume work before 10 February at the very earliest. These account for 90% of exports from China. Given that many of our businesses rely on just-in-time manufacturing, I wondered whether the Government were assessing what the impact on our businesses would be if there was a gap in production and exports from China.