Care Bill [HL]

Debate between Baroness Wheeler and Baroness Northover

Monday 29th July 2013 Lords Chamber

[Baroness Wheeler]

My Lords, this is largely a group of government technical amendments, interspersed with amendments from noble Lords probing important aspects. On Clause 69, my noble friend Lord Patel’s Amendments 105AA and 105CA would ensure that local authority safeguarding inquiries do apply to adults in bail accommodation and, in respect of Safeguarding Adults Boards, would enable prison governors or other prison staff to be members of the board.

Government Amendments 105B and 105D address those issues. On safeguarding inquiries, the Government’s proposal to allow SABs to provide advice and assistance to persons in bail accommodation is a compromise. My noble friend has argued that that is not good enough and we strongly support that view. How can local authorities have premises in their areas where abuse or neglect could occur and not have a duty to conduct a safeguarding inquiry?

On prison governors being members of Safeguarding Adults Boards, my noble friend is exploring ways in which governors and prison staff can best participate in and learn about the board’s role and work. I look forward to the Minister’s response on how she thinks the Government’s amendments best facilitate this.

The remaining Clause 69 government amendments include a number of tidying-up measures which we support to reduce the burden on local authorities, such as clarifying local authority ordinary residence rules in relation to bail accommodation, explicitly exempting prisons and bail accommodation from local authority safeguarding adults reviews, and minor technical amendments to change the general language relating to the clause.

Under Clause 71 and Amendment 105Q from the noble Baroness, Lady Browning, we return again to the Secretary of State’s powers in relation to local authorities and NHS bodies. Both the noble Baroness and my noble friend Lord Touhig make a strong case for statutory guidance previously in place to continue to apply under the new legislation until the Secretary of State declares otherwise. The noble Lord and noble Baroness, as usual, speak strongly on autism and the Autism Act being embedded in the new legislation. However, there is a wider issue of ensuring that the Secretary of State retains ultimate responsibility, arguably more important than ever with the tendency of our current Secretary of State to hover above it all and act as if everybody else is responsible but him.

Amendment 105R of the noble Lord, Lord Low, to Clause 72 seeks to prevent a local authority from being able to delegate functions on its behalf under this part of the Bill. He is right to be cautious about how the local authority powers under this clause are used. I look forward to the Minister’s response to the amendment.

Finally, under government Amendment 105V in this group, I again raise an issue that I spoke of during last week’s safeguarding debate on the provider failure provisions under Clauses 47 to 49, designed to address responsibilities and actions in any future provider collapse, such as we saw most recently with Southern Cross residential care homes. The Lords Delegated Powers Committee expressed concern at the Bill’s failure to define what is meant by both “business failure” and “market failure”. Although I got an answer in passing in the following debate when the noble Earl the Minister responded to a question about provider failure from the noble and learned Lord, Lord Mackay, I would appreciate the Minister explaining today in more detail why the Government have chosen regulations to address these two issues, which are fundamental to the operation of the provider failure provisions of the Bill, rather than include the definitions in the Bill.

[Baroness Northover]

My Lords, I thank noble Lords for tabling the other amendments in this group on these very important issues. On the amendment in the name of the noble Lord, Lord Patel of Bradford, we agree that a person with care and support needs should be protected against abuse or neglect wherever they are. As I have already set out, prison governors and directors have in place procedures to follow in response to allegations of abuse or neglect. Governors and directors will provide assurance to the National Offender Management Service and Her Majesty’s Chief Inspector of Prisons, through their inspection regimes, that those procedures and their implementation provide similar protection to that available in the community. The Prisons and Probation Ombudsman will investigate individual complaints and incidents. I can assure the noble Lord, Lord Ramsbotham, that the Ministry of Justice and the NOMS have acknowledged that there is a need for improved directions to the Prison Service and probation trusts in this area. They will be working with officials from the Department of Health and stakeholders to develop instructions and guidance that will give clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. In addition, prison governors and other prison staff will be able to approach their local Safeguarding Adults Board for advice and assistance in improving their arrangements. The MoJ was, of course, fully consulted on the provisions relating to prisons in the Bill and will be working with the Department of Health and NOMS to develop detailed guidance so that people who are concerned about the safeguarding issue will know exactly how to raise it and get advice on how to approach it. The MoJ is fully involved in the development of all parts of this clause.

The noble Lord, Lord Ramsbotham, also raised the issue of a statutory obligation on the senior management of prisons to take responsibility for the care and support needs of prisoners. The governor or, in the case of contracted prisons, the director, has the primary duty of care for prisoners and is the appropriate first point for reporting concerns. There is an investigations procedure in place for cases in which prisoners suffer significant harm. Prisons are monitored by a range of inspectorates, including the CQC.

Health and Social Care Bill

Debate between Baroness Wheeler and Baroness Northover

Thursday 8th March 2012 Lords Chamber

[Baroness Wheeler]

My Lords, with an additional 68 government amendments tabled at the end of last week on the issue of HealthWatch England and the now much altered healthwatch organisations, it is somewhat of a challenge to work out exactly what the Government want from HealthWatch England and local healthwatch organisations. Why has not the Government’s time since Committee stage been spent on trying to address the issues and concerns raised by noble Lords which would ensure that HealthWatch England and local healthwatch organisations have the real status and authority to do the job that we all recognise is required of them? Instead they have concentrated on compiling one of the most confusing additional sets of amendments that we have seen on this Bill, which will seriously undermine the ability of both the national and local organisations to act as an effective and robust watchdog for patients and the public.

The new local arrangements for healthwatch organisations provide a plethora of contradictions and confusions and we shall discuss those under a later group. Sadly, none of that addresses the continuing concern across the House and among key patients’ groups and organisations about the HealthWatch-CQC relationship. Fortunately, Amendment 223A, from the noble Lord, Lord Patel, my noble friends Lord Harris, Lord Whitty and myself does. Those noble Lords have all made a coherent and powerful case for the amendment and for ensuring that HealthWatch England is independent. The amendment provides for a body corporate, with clear primary duties to represent the interests of patients and users of the National Health Service and of social care services, independent of any provider or regulator of those services. As well as powers to provide information and advice on the views of patients and standards of quality of care, the amendment provides HealthWatch England with powers to investigate complaints made by or on behalf of a patient or user of a local healthwatch organisation and to raise and investigate complaints relating to wider issues affecting patients or users in general.

The Government have said that they want to see HealthWatch England with genuine operational independence from CQC. However, attempts to do that by, for example, providing the majority membership of HealthWatch members on the HealthWatch board, or reassurances after the last debate in Committee in terms of HealthWatch England being able to speak out publicly in certain circumstances, even if their views conflict with its host body or government, miss the point. None of these small steps gives the unequivocal reassurance of independence that a robust patients’ watchdog, acting in the interests of patients, must have. In the new market-dominated system that we will soon have, independence and a collective voice for patients is more vital than ever. In the end, it will come back to how the proposed measures will play out in practice and how conflicts of interest between HealthWatch England and the CQC, or indeed healthwatch organisations in the local authority, will be dealt with.

Most important of all is the issue of public perception, understanding and confidence in the independence of HealthWatch. It is important that HealthWatch is seen to be credible and truly independent, able to challenge and to scrutinise the work and decisions of the regulators, both CQC and Monitor. The niceties of whether there is a majority of HealthWatch members on the board, whether they can combine or exchange data and whether they are part of an organisation that the Secretary of State keeps under review will escape a patient, carer or representative who, for example, makes a complaint about how CQC has investigated care in a residential home, only to find that the body investigating the complaint or championing improved quality of care on behalf of patients is a committee of the CQC itself.

I hope that the noble Baroness will address these concerns: in particular, points that were repeatedly made about how the culture clash between healthwatch and the CQC will be addressed and managed; how we will stop CQC—in the words of the noble Lord, Lord Patel—“suffocating” HealthWatch England; how the potential serious conflict of interest will be dealt with; and how public faith, trust and confidence in healthwatch can be achieved under the relationship with the CQC, particularly in light of that body’s major organisation and resource problems so starkly highlighted in the Department of Health’s recent CQC performance and capability review.

In the debate on the duty of candour, the Minister referred to the CQC as an organisation that was remote from patients. We need an independent HealthWatch England and we need local healthwatch bodies that everyone can rely on to be genuine patient representatives. I am afraid that the Bill gives us neither.

[Baroness Northover]

My Lords, this has been another excellent debate. I listened very carefully—as I did before—to the views expressed. Overall, there is clearly complete agreement on all sides of the House that the voice of patients and the public should be at the heart of the NHS. As the noble Lords, Lord Patel and Lord Harris, and the noble Baroness, Lady Masham, and others indicated, the history of how previous Governments tried to implement this is tortuous. The recent past has borne witness to a number of attempts to do it, and noble Lords referred to some of the problems. No attempt—not even Community Health Councils—managed to fulfil the worthy intentions of its architects, and we went from one to another.

As the noble Lord, Lord Patel, recognised—I appreciate his words—we seek here to take the strengths from past attempts, build on them and ameliorate the weaknesses as we develop our proposals for HealthWatch England. In the light of the comments of the noble Lord, Lord Harris, and as the noble Baroness, Lady Murphy, emphasised, it is worth remembering one of these previous attempts: the Commission for Patient and Public Involvement in Health. It was established in July 2003 and operated nationally and regionally, following regional government boundaries. Within five years it had been abolished after being seen to lack clout, to be too bureaucratic and too top-down for the public and those on the ground. Perhaps I may again remind the House of the judgment from the Health Select Committee’s 2007 Report into Patient and Public Involvement in the NHS, which stated:

“The evidence we received was overwhelmingly critical of the Commission”.

We are convinced that trying to recreate the commission is not the best way forward, and instead propose that HealthWatch England should be a statutory committee hosted—that was a very good description from the noble Lord, Lord Patel—by the CQC, which is a far more viable option.

I am well aware that this proposal has met with concern.

--- Later in debate ---

[Baroness Wheeler]

My Lords, on behalf of these Benches, I want to express our concern and exasperation at these cobbled-together, last-minute changes to the status and organisational arrangements for local healthwatch. We are utterly opposed to depriving local healthwatch of its statutory status. It is hard to see the logic behind the new approach, even for those of us who are supportive of the local development of social enterprises.

The noble Baroness has not explained why this last-minute change is taking place 14 months into the consideration of the Bill. Why was this new approach and dramatic change not spelt out and included in the consultation that the Government have conducted since Committee stage on healthwatch membership? Why such a fundamental change of direction at this late stage?

The Government’s argument is that the new arrangements will provide local authorities with the flexibility that they need in establishing healthwatch organisations and facilitating their networking with other local community organisations. In practice, this means that not only will each local healthwatch be very different, and it will take more than the proposed national kite mark to provide them with any joined-up coherence, but they will all develop at a very different pace as local authorities take time to decide on the form of structure, and then draw up and implement their commissioning arrangements, or further subcontracting arrangements, if they want to make things really confusing, and so on. This is hardly the smooth transition from LINks organisations to the proper and coherent structure of patient representation at local level that we need. Like so much in this Bill, what could be simple and straightforward is made fragmented and complicated and requires detailed explanation. The Government also make strong play of local healthwatch organisations having a statutory function through a seat on health and well-being boards, through making a contribution on that board and the statutory joint strategic needs assessments and the joint health and well-being strategy. healthwatch will also have statutory status through the statutory health and well-being boards’ ability to refer back to the NHS Commissioning Board plans that do not meet the needs of the local communities. So we have a second-hand, reflected statutory authority by participating in bodies that have statutory status.

It is interesting, too, that with clinical commissioning groups the Government have repeatedly argued that the Bill was needed to enable CCGs to be statutory bodies in their own right. Now we see exactly the opposite argument when it comes to patient representation.

Finally, there is the relationship of local healthwatch with the local authority, where there is again huge potential for conflict of interest, and concern that even the well intentioned authorities facing severe budget cuts could struggle to find the required funding for healthwatch organisations. Government amendments to address this and potential conflicts of interest by requiring local authorities to,

“have regard to ... any Secretary of State guidance on this matter”,

do not provide the safeguards that would be needed to ensure that patients, their carers or representatives should be able to expect if they are concerned that their complaint about a social services department is channelled through a non-statutory body funded and linked to the local authority itself.

As with the rest of the Bill, these are complicated structures understood and supported by no one, with details fleshed out at the last minute and sprung upon the House, in effect, only three working days before we are due to consider them, and with no opportunity for consultation on such fundamental change. Arguably most important of all is that it is impossible to see, among all these amendments, how these local organisations will relate to national healthwatch. Perhaps the kite marks are designed more to help HealthWatch England recognise who it has under its umbrellas than to assist local organisations networking with each other.

I hope that even at this late stage the Minister will acknowledge the concern, confusion and demoralisation, particularly among key patient organisations and groups, at the last-minute decision to change the status of local healthwatch organisations. I hope that she will agree to withdraw these amendments and instead restore statutory status to local healthwatch, enabling them to be organisations that everyone can rely on to be genuine patient representatives, fully trusted and supported by patients and the public.

[Baroness Northover]

Again, my Lords, what shines through is a great commitment to public and patient involvement at a local level; the only dispute is over the form of that. Again, noble Lords are familiar with the fact that various models have been tried, and I emphasise once again that we are seeking to build on the strengths of what has worked and mitigate some of the problems that have been encountered.

My noble friend Lady Jolly has tabled Amendments 234 and 235, the result of which would be to replace references to “people” with “local people” in Section 221 of the 2007 Act and insert the definition of “local people”. We talked about the difficulty of organisations— LINks in particular—reaching groups that were defined as hard to reach. The definition in my noble friend’s amendment says that when carrying out its functions, local healthwatch has to be representative of people who live in the area, service users and people who are representative of the local community. That applies to people of all ages and emphasises the need for local healthwatch to champion the views of the whole breadth of the local community. I am therefore grateful to my noble friend for this contribution, and I am happy to support her amendments.

Although I am sympathetic to the sentiment behind my noble friend Lady Cumberlege’s Amendments 232, 236 and 237, I hope I can reassure noble Lords that, as corporate bodies, local healthwatches will have the flexibilities to make their own arrangements for securing staff, accommodation and so on, so the local authority should not have to make such arrangements on their behalf. There is no need for express provision on payment of expenditure because the legislation requires local authorities to make arrangements to ensure that the relevant activities can be carried on in their area. Necessarily, that means providing adequate funding to enable the functions to be carried out. This is an important point that I hope reassures noble Lords: the statutory functions must be delivered, and that is a protection of these bodies.

My noble friend Lady Cumberlege is quite right about local healthwatches working out their own priorities and work, and they will no doubt be doing that in conjunction with what is found to be good practice around the country, information coming from HealthWatch England and so on. I assure my noble friend that staff are there to help to facilitate such work, not to dominate it. My noble friend Lady Jolly is right: local healthwatch is a partner with local authorities—the eyes and ears, as the noble Baroness, Lady Murphy, and others have said.

My noble friend Lady Cumberlege was concerned that government amendments would damage local healthwatch’s independence. I do not agree: the amendments do not dilute in any way the statutory functions of local healthwatch, including the ability to give advice to local authorities among others. In response to concerns that local authorities may try to suppress local healthwatch, we specifically brought forward Amendment 236E giving the Secretary of State the ability to publish conflicts of interest guidance that both local authorities and local healthwatch would have to have regard to.

The noble Lord, Lord Harris, raised a number of issues. He regretted the fact that yesterday he was not at the seminar that I mentioned. I regret that he was not there. It was interrupted by a couple of votes, but I am sure that he would have engaged with those who were speaking there. That would have helped to inform everybody. All Peers were invited and some from his group attended. I see a few shaking heads.

Health and Social Care Bill

Debate between Baroness Wheeler and Baroness Northover

Monday 19th December 2011 Lords Chamber

[Baroness Wheeler]

My Lords, I support this amendment from the noble Baroness, Lady Finlay, and I am grateful to her for explaining its context and background so clearly. The Parliamentary and Health Service Ombudsman is currently excluded from investigating complaints about the health service in Wales, so this amendment will ensure that the role of the Public Services Ombudsman for Wales, in investigating complaints against local health boards, NHS trusts, GP services and community health councils in Wales, is recognised and included in this Bill.

Ensuring that the Public Services Ombudsman for Wales has the legal right to share complaints reports with people he or she considers appropriate is a minor but important amendment and safeguard. I look forward to the Minister’s response.

[Baroness Northover]

My Lords, the amendment links to an important point of principle which we wholeheartedly support: that any patient or person who receives NHS-funded treatment or care, whether the treatment or care was provided by an NHS or private provider, should have recourse to the Health Service Ombudsman, should their complaint not be resolved through the NHS complaints arrangements at a local level. I assure my noble friend Lady Williams that that is the first stage.

I reassure noble Lords that these types of situation are already provided for in law. I wish to address directly what the noble Baroness, Lady Finlay, has raised, which is the situation in Wales. The Public Services Ombudsman for Wales recently called for his office to be given more power to independently investigate hospices. This follows complaints from the family of a teenage girl who died of leukaemia, about the way their concerns over her care were handled. The ombudsman pointed out that he had no power to investigate the family’s complaints against the hospice, although it received public funds, as it did not fall into the same category as a hospital or a council-run service.

In response to a report published by the Public Services Ombudsman for Wales in 2011, we understand the Welsh Government are looking into extending the ombudsman’s remit, to enable him to investigate complaints about hospices and hospice services, as well as extending the existing complaints advocacy arrangements to cover complaints about hospices.

I therefore hope that the noble Baroness will be reassured by what I have been able to say, in that regard.

Health and Social Care Bill

Debate between Baroness Wheeler and Baroness Northover

Thursday 15th December 2011 Lords Chamber

[Baroness Wheeler]

My Lords, I shall speak briefly in favour of these amendments, which would make HealthWatch England independent of the Care Quality Commission and strengthen its role so that it has the function of making recommendations, not just providing advice and information, to the Secretary of State, the NHS Commissioning Board, Monitor, the Care Quality Commission and local authorities.

I emphasise that we are strongly in favour of HealthWatch England having the powers that will make it the powerful consumer champion for the views and experiences of patients, their families and carers that we want to see. However, we firmly believe that this will not be achieved if it remains a sub-committee of the Care Quality Commission—an important issue that we will return to on Report, and which we believe is crucial to HealthWatch England’s success as a public watchdog and patients’ champion that is able to make a real difference. My noble friends Lord Warner and Lord Harris have set out the arguments for this very strongly. I will not go over them again. They were indeed thoroughly aired in the previous debate anyway.

The amendments in this group from my noble friends Lord Harris and Lord Rooker also seek to ensure that the Secretary of State consults local HealthWatch organisations before he or she gives a direction to HealthWatch England concerning its failure to discharge a significant function that it is required to undertake. We support this requirement. We also support the amendment requiring HealthWatch England’s annual report to be sent to all local healthwatch organisations.

On the issue of how the committee of HealthWatch England is to be constituted, although we are supportive of its members being elected from local HealthWatch organisations—as also proposed by my noble friends—we will want to consider this issue more fully in the light of whether the full independence of HealthWatch England from the Care Quality Commission is secured. We also want to consider how we can ensure that members of both HealthWatch England and local healthwatch organisations, are more fully reflective of their communities in terms of gender, disability and ethnicity. A great deal more thought and work needs to be undertaken on this issue, possibly as part of the pathfinder healthwatch transition pilots. I will be interested to hear the Minister’s views on how this could be taken forward.

I was going to comment on a number of other amendments but they have been thoroughly gone into by noble friends, so I will leave it at that.

[Baroness Northover]

My Lords, this has been another excellent debate. We have returned to the topic of HealthWatch, which we also discussed on 22 November. I listened very carefully to the views expressed in that debate. It seemed that there was a consensus, as there has been again today, about the need to have the patient voice very much at the heart of the NHS. There was agreement then, as I think there is today, that the Bill moves us forward in making sure that the patient voice is at the heart of the NHS. I thank the noble Lord, Lord Warner, for his comments in this regard.

However, I fully recognise that there are significant concerns about the way in which the Government are taking forward these proposals. When we discussed this previously, I made a commitment to continue discussing these issues. We have had subsequent meetings, which some noble Lords have attended; I thank them for their input. I found those meetings extremely constructive. I also attended the meeting between the noble Earl, Lord Howe, and the national association.

Our previous debate focused on the independence of HealthWatch England, which will be a statutory committee of the CQC. I understand that this risks, as the noble Lord, Lord Harris, said, dangerously compromising the independence that I talked about as being so important. Let me be clear why we are proposing this arrangement. There is a reason why, at present, there is no national statutory organisation to champion the patient voice. The last body, to which noble Lords made reference—the Commission for Patient and Public Involvement in Health—was abolished for being ineffective and lacking influence as well as being too expensive and too centralising. To quote from the Health Select Committee’s 2007 report into Patient and Public Involvement in the NHS:

“The evidence we received was overwhelmingly critical of the Commission”.

The noble Lord, Lord Warner, said that the Government should set up an authoritative, stand-alone body, and others have made similar points. This is, however, precisely the point. While I respect the view of the noble Lord, the Government have not been convinced that it would be possible to have such an authoritative stand-alone body in the form that they suggest. The previous Government’s attempt to do this with the commission did not work out well, as noble Lords know. The abolition of the commission was announced five months after it started work. It limped on for a further three years, chewing up £100 million and was universally criticised.

--- Later in debate ---

[Baroness Wheeler]

My Lords, noble Lords have spoken to their amendments effectively and comprehensively, so I will not deal with all the amendments. I start by giving our support to the spirit behind Amendment 318BA, tabled by my noble friend Lord Whitty and the noble Lord, Lord Low, and Amendment 322, tabled by my noble friends Lord Rooker and Lord Harris. They underline the crucial need to uphold the independence of local healthwatch organisations by enabling them to carry out their activities as they see fit, subject to any directions from Healthwatch England, and emphasise that they must not be regarded as either servants or agents of the local authority.

Local independence is vital for people to have trust and confidence in their local healthwatch organisations to articulate their priorities and the needs of the local community. To be effective, they must be able to scrutinise how consortia and health and well-being boards have undertaken public engagement and transparency, and how they are ensuring that the patient voice is embedded in the care pathway design. They also need to be able to scrutinise how lay representatives on consortia and health and well-being boards themselves undertake public engagement and transparency.

Amendment 318E in the name of the noble Baroness, Lady Cumberlege, would require local healthwatch organisations to provide the NHS Commissioning Board with their opinion on whether local plans take proper account of their views, as evidence in reports and recommendations. We support this, and of course underline that CCGs must also be required to consult local healthwatch organisations while commissioning plans are drawn up and developed.

On the question of how local healthwatch organisations are funded, we need to recognise the widespread concern raised by noble Lords and current LINks organisations that the arrangements for local healthwatch organisations and their dependence on funding from local authorities compromise their independence, particularly in terms of public perception and confidence in their role and work. With local authorities having greater involvement in healthcare—particularly public health—how will healthwatch organisations be able to exercise the independence that the public would expect?

A number of amendments seek to address that issue, either through guaranteeing resources or prescribing how the local authority should take decisions in relation to its commissioning of healthwatch, the allocation of resources and the governance arrangements. Perversely, some of them could have the unintentional consequence of tying in local healthwatch groups to the local authority more tightly. In view of the current economic climate and the massive cuts that local authorities are having to make, the concerns and unease over the future resourcing of local healthwatch organisations need to be addressed. I hope that the Minister will recognise this as a major issue, consult all stakeholders and come back to us on Report with reassurances and solutions.

This is the first time we have touched on the new independent advocacy services that local authorities will be required to establish to provide assistance to individuals making complaints about health or community care services or providers, including using the local healthwatch organisation to deliver this service. We are very sympathetic to Amendment 324 from the noble Lords, Lord Rix and Lord Wigley, and the noble Viscount, Lord Tenby. It seeks to prevent any case being dismissed from the outset or midway through as too complex or lengthy. Complaints against the health service are often complex and require long periods of support to be provided to the complainant. It is a service that should be provided to all users, and provision will need to be made to support people with mental health problems and learning difficulties, as well as people with disabilities.

We support Amendment 325 in the names of my noble friends Lord Rooker and Lord Harris. This would provide for advocacy to cover complaints about both health and social care. I look forward to the Minister’s response on these issues.

[Baroness Northover]

My Lords, again, we have had a very impressive and wide-ranging debate. It links in with the earlier debate on this area, as well as with our discussion the other day.

The noble Lord, Lord Low, made a very strong point when he talked about the need for confidentiality. I hope I can reassure him that HealthWatch England will be subject to the provisions of the Data Protection Act and other applicable law. However, these are complex matters, involving a number of interlocking pieces of legislation and other issues. As a result, I hope that the noble Lord will allow me to write to him with full details of how we see these provisions working. However, I hope that he will be reassured about the overarching effect of the Data Protection Act. He made some very telling and important points.

Our aim is for local healthwatch organisations to become an integral part of the commissioning of local health and social care services. They will build on the strengths of the existing Local Involvement Networks and, we hope, address their weaknesses. I have listened to the concerns that various noble Lords have expressed about independence, given local healthwatch organisations’ contractual relationships with local authorities. I hope I can reassure noble Lords that local healthwatch organisations will be very firmly in the lead in determining their own work programmes and local priorities. Local authorities, for example, cannot arbitrarily veto a local healthwatch organisation’s work plan or stop a local healthwatch organisation providing feedback or recommendations to HealthWatch England, nor can they suppress local healthwatch organisations’ reports with which they disagree. I am sorry that the noble Lord, Lord Warner, is not in his place, as no doubt he would be hopping up and down challenging me on these matters. It is extremely important that local healthwatch organisations are effective in this way: we have made the provision that we have. Nor can local authorities starve local healthwatch organisations of funds, as the noble Lord, Lord Harris, implies. Local healthwatch organisations must have sufficient resources to fulfil their statutory functions. Those are laid down and they have to deliver on that.

Health and Social Care Bill

Debate between Baroness Wheeler and Baroness Northover

Tuesday 13th December 2011 Lords Chamber

[Baroness Wheeler]

I also support Amendment 295G from the noble Baroness, Lady Greengross, replacing the similar amendment from the noble Baroness and the noble Lord, Lord Low, both of whom have argued the case strongly and convincingly on this matter.

The importance of addressing current loopholes in the application of the Human Rights Act to publicly funded healthcare and home care services is underlined by the scale of the legal anomaly that the amendment seeks to address. As we have heard, almost 500,000 older people receive essential care in their own homes provided by the local authority. Some 84 per cent of them lack the protection of the Human Rights Act because their care is provided by private or third sector organisations, or independently by 150,000 self-employed personal assistants who care for people in their homes through the application of personal care budgets or direct payments.

The noble Baroness’s own work in highlighting the inadequacy of at least 50 per cent of the home personal care received by older people as part of her recent inquiry underlined the prevalence of human rights abuses in home care settings. The report makes painful reading for all who want dignified and appropriate standards of care for older people in their homes. The stark reality is that, if their human rights are violated through inappropriate standards of care, they at present have no direct legal redress against their care providers.

Of course, we need to make the caveat that good practice is often exemplified by the private and voluntary sector. As a carer, the care provided by the private sector agency to the person I care for at home is of good quality and the care support workers are committed and dedicated professionals, despite long hours and low pay. Their care for the person that I care for is not covered by the Human Rights Act but would be if he were in residential care. That is a serious anomaly. I hope that the Minister will be able to reassure us that the Government recognise that this is a major problem and will take the opportunity presented in the Bill to address the matter. With an increasing number of people receiving home care from a private or voluntary sector organisation rather than directly from their local authority, there is a vital need for certainty around the application of the Human Rights Act to these care providers.

I was going to comment on four other amendments but none of them was spoken to so I will leave it at that.

[Baroness Northover]

My Lords, we have two diverse areas in this particular group. Clause 75 would consolidate the oversight of mergers involving NHS foundation trusts under the UK general merger control regime operated by the Office of Fair Trading’s Competition Commission. That is the area addressed by my noble friend Lord Clement-Jones. We argue that the approach that we are taking here would have a number of benefits.

First, it would eliminate the risk of double jeopardy for NHS foundation trusts. Uncertainty currently exists as to when and where the Enterprise Act 2002 would apply to mergers of activities involving foundation trusts. As a result, under the current arrangements for review of mergers involving foundation trusts by the Co-operation and Competition Panel, there is always potential risk of duplication or double jeopardy by both the OFT and the Co-operation and Competition Panel. The Bill proposes to consolidate oversight of foundation trust mergers under the OFT. It would already seem likely that most mergers between foundation trusts would meet the relevant thresholds, eliminating the uncertainty with the current approach. We therefore sympathise with my noble friend Lord Clement-Jones’s amendment but feel that it would not be required as foundation trusts would be captured.

Secondly, the OFT would provide effective, light-touch regulation regarding mergers. This gives confidence to providers that might be considering a merger and ensures that mergers go ahead where they are in patients’ best interests and that the process is not unduly delayed by bureaucratic approvals or the risk of political interference. The evidence demonstrates that this approach does not result in excessive intervention, as the Enterprise Act sets a high threshold for looking at the merging of activities.

Thirdly, the approach would avoid the duplication of specialist resources between the OFT and Monitor, ensuring better value for money. Mergers are a specialist area. It therefore seems a far better use of resources to maintain the responsibility and expertise within the OFT and the Competition Commission rather than resource a further sector-specific body. However, we appreciate and sympathise with the argument put forward that Monitor, as the dedicated health regulator, will have a valuable contribution to make in the review of foundation trust mergers.

As part of any merger investigation, the OFT and the Competition Commission would engage with Monitor as the sector regulator in order better to understand the services involved. They would obtain Monitor’s view on how a merger would affect services and whether it would bring benefits for patients. The OFT would need to consider whether the benefits of higher quality, a greater choice of goods or services and greater innovation outweighed the negative impacts of mergers. These views would then be considered in the analysis, along with other evidence. We want to work with noble Lords to see how we can ensure that Monitor’s role regarding mergers is adequately reflected in the Bill.

My noble friend Lord Clement-Jones was asking about thresholds. The thresholds for merger reviews are set out in the Enterprise Act. On this basis, the OFT would not generally review mergers involving a turnover of less than £70 million. This contrasts with the approach of the Co-operation and Competition Panel, which operates at significantly lower thresholds.

As my noble friend Lord Howe said in an earlier part of this debate, the operation or otherwise of EU competition law is something that he will take back and consider further in the light of what my noble friend Lord Clement-Jones said. At this stage, therefore, I will not go into that area further, but I refer the noble Lord, Lord Owen, to those discussions and the fruits of those discussions.

We move on to a separate area raised by the noble Baroness, Lady Greengross, and supported by the noble Lord, Lord Low. The issue raised by Amendments 280 and 295G is one in which I know the Equality and Human Rights Commission is keenly interested, and the Government have carefully considered it in the preparation of the Bill. The issue has been raised with us not only by the EHRC but by the Joint Committee on Human Rights. Noble Lords are right: these are extremely important issues.

The department has set out publicly and in detail the reasons for its firm view that private providers are now, and will be in future, exercising public functions when they provide NHS or public health services. The effect of this is that they are bound by the relevant duties in the Human Rights Act and the Equality Act when they provide those services. As the noble Lord, Lord Low, pointed out, these reasons can be found at paragraphs 1534 to 1537 of the Explanatory Notes and in our response to the letter from the Joint Committee on Human Rights to the Secretary of State, which is available on its website.

In summary, our view is based on the following arguments. NHS and public health services will continue to be commissioned by statutory bodies subject to the framework in the 2006 Act. The nature of the services provided will be determined by those commissioning bodies in the exercise of their statutory functions, and is not affected by the status of the provider. The services provided pursuant to those arrangements will be funded by the Secretary of State, the NHS body or the local authority concerned. There will be no contract between the patient and the provider other than where direct payments are concerned. The relevant provisions of the 2006 Act will continue to make no distinction between private and NHS providers.